DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY

Transcription

1 DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY In the Matter of: ) ) DOUGLAS F. GANSLER, ) Bar Docket No ) Respondent. ) REPORT AND RECOMMENDATION OF THE BOARD ON PROFESSIONAL RESPONSIBILITY This matter comes before the Board on Professional Responsibility (the Board ) as a result of a public reprimand imposed upon Douglas F. Gansler ( Respondent ) by the Court of Appeals of Maryland ( Maryland Court ) on November 12, The Board recommends that the District of Columbia Court of Appeals (the Court ) impose the functionally identical reciprocal discipline of public censure. I. Background Respondent was admitted to our Bar on October 24, During the period of the misconduct in question, Respondent was also a member of the Bar of the Maryland Court. Bar Counsel filed a certified copy of the Order of the Maryland Court dated November 12, 2003, with the Court. The Court issued an Order on December 19, 2003, directing Respondent to show cause why identical discipline should not be imposed and directing the Board either to: (i) recommend whether identical, greater, or lesser discipline should be imposed as reciprocal discipline, or (ii) determine whether the Board should

2 proceed de novo. Order, In re Gansler, No. 03-BG-1345 (Dec. 19, 2003). Bar Counsel recommends the functionally identical reciprocal discipline of public censure. Respondent, in a letter to the Board's Executive Attorney dated December 24, 2003, contends that reciprocal discipline should not be imposed. II. The Maryland Proceeding The Attorney Grievance Commission of Maryland filed a petition for disciplinary action against Respondent on November 7, 2002, alleging that Respondent had violated several Maryland Rules of Professional Conduct ( MRPC ) in out-of-court statements made to the press in his capacity as State's Attorney for Montgomery County, Maryland, regarding four criminal prosecutions. The petition was referred to Judge Julie R. Stevenson of the Circuit Court for Frederick County for an evidentiary hearing and to make findings of fact and conclusions of law. Maryland Bar Counsel introduced videotapes of Respondent's statements and testimony from its expert. Respondent testified and presented testimony from his expert as well as from two Deputy State's Attorneys for Montgomery County. Judge Stevenson issued a ruling in which she found that Respondent violated MRPC 3.6(a) in respect of one of the prosecutions. Both Respondent and Maryland Bar Counsel took exceptions to Judge Stevenson s findings and conclusions. The Maryland Court overruled 2

3 Respondent s exception and on November 12, 2003, issued a forty-eight page opinion finding violations of MRPC 3.6(a), 3.6(b), 1 and 8.4(a) 2 in 1 MRPC 3.6 provides in its entirety: (a) A lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding. (b) A statement referred to in paragraph (a) ordinarily is likely to have such an effect when it refers to a civil matter triable to a jury, a criminal matter, or any other proceeding that could result in incarceration, and the statement relates to: (1) the character, credibility, reputation or criminal record of a party, suspect in a criminal investigation or witness, or the identity of a witness, or the expected testimony of a party or witness; (2) in a criminal case or proceeding that could result in incarceration, the possibility of a plea of guilty to the offense or the existence or contents of any confession, admission, or statement given by a defendant or suspect or that person's refusal or failure to make a statement; (3) the performance or results of any examination or test or the refusal or failure of a person to submit to an examination or test, or the identity or nature of physical evidence expected to be presented; (4) any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or proceeding that could result in incarceration; (5) information the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and would if disclosed create a substantial risk of prejudicing an impartial trial; or (6) the fact that a defendant has been charged with a crime, unless there is included therein a statement explaining that the charge is merely an accusation and that the defendant is presumed innocent until and unless proven guilty. (c) Notwithstanding paragraph (a) and (b) (1-5), a lawyer involved in the investigation or litigation of a matter may state without elaboration: (1) the general nature of the claim or defense; (2) the information contained in a public record; (3) that an investigation of the matter is in progress, including the general scope of the investigation, the offense or claim or defense involved and, except when prohibited by law, the identity of the persons involved; (4) the scheduling or result of any step in litigation; (5) a request for assistance in obtaining evidence and information necessary thereto; (6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and (7) in a criminal case: (i) the identity, residence, occupation and family status of the accused; (ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person; (iii) the fact, time and place of arrest; and 3

4 statements with respect to three of the prosecutions. We describe only the statements as to which the Maryland Court found violations. The first of these prosecutions was of Albert W. Cook, Jr., who was a suspect in the killing of Sue Wen Stottsmeister, who died after being attacked while jogging in a recreational area. Arrested on an unrelated matter, Cook confessed to the Stottsmeister killing, and the police convened a press conference to announce that he would be charged with murder. The Maryland Court described the press conference: Gansler attended that press conference and made several statements to the media regarding the anticipated prosecution of Cook. He described Cook's confession and the circumstances surrounding his custodial statements to police: The police were able to obtain a confession completely consistent with [Cook's] constitutional rights, he confessed within just a few hours with incredible details that only the murderer would have known. He was then provided the opportunity to rest and... he slept, and where he had said was one of the best nights of sleep he had gotten in a long time. This morning at dawn, he was taken up to the crime scene, video taped by police, and went over in detail by detail every step of what he did to Ms. Stottsmeister this past January. Gansler further stated that investigators had boot print matches and that type of thing, or actually in this case the sneaker matches, but we're very confident, obviously more than confident that we have apprehended the right person.... (iv) the identity of investigating and arresting officers or agencies and the length of the investigation. 2 MRPC 8.4(a) provides: It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.... 4

5 After the press conference, police charged Cook with the murder of Stottsmeister. 3 The statement of charges, which was filed in the District Court of Maryland, Montgomery County, stated: Cook provided a full and detailed account of the assault and murder of Stottsmeister.... Cook provided details about the murder that would only be known by the perpetrator of the crime. Maryland Court Opinion ( Opinion ) at 6-7. The second case involved Robert P. Lucas, who was charged with the murder of Monsignor Thomas Martin Wells, who was beaten and killed while asleep at the rectory of his parish. The statement of charges, issued June 17, 2000, noted that Lucas's shoes had a shoe print consistent with the ones found on the crime scene and that Lucas had confessed to the crime. Id. at 7-8. The Maryland Court described Respondent's statement: The police held a press conference on June 18, 2000 to announce the arrest of Lucas and the charges against him. Gansler spoke at the press conference: The Montgomery County Police... were able to determine definitively that indeed it was Mr. Lucas who had committed the crime. They were able to do so by following him. They conducted surveillance for over 24 hours. And then when they actually found him, he was wearing a very unique shoe, a very unique boot, and the print of that boot matched the print that was found at the scene of the crime, and then further questioning revealed, in fact, he was the person that had done it. He offered several remarks about the evidence against Lucas, which he described as a confession from the perpetrator as well as scientific and forensic evidence to corroborate that confession.... Gansler then expressed his opinion that we 3 Judge Stevenson noted, specifically, that the statement of charges in Cook's case had not been filed at the time of the June 5, 2001 press conference. 5

6 Id. at 8. have found the person who committed the crime at this point and that the case against Lucas will be a strong case. Additionally, Gansler commented at the press conference that it was a violent murder and that Lucas has a criminal record which includes residential burglaries and that will be obviously something that will come out later on as well. In fact, Lucas's criminal record came out again later, when Deputy State's Attorney Katherine Winfree discussed it at Lucas's bond hearing on the Monday after the press conference. The third case involved James Edward Perry, who had been convicted of first-degree murder and sentenced to death for his role in the murder of an eight year-old quadriplegic boy, the boy's mother, and a nurse. The conviction was reversed and Respondent made extra-judicial comments in the period before retrial. The Maryland Court described the statements as follows: Id. at 9. While preparing for Perry's retrial, Gansler made extrajudicial statements that the Gazette Community News published on April 5, According to the Gazette's report, Gansler had announced that he has decided to offer [Perry] a plea bargain and that, when the offer is formally presented, Perry would have six weeks to make a decision. The article also recounted the events of a hearing in the Perry case, held the day before, at which the court appointed new defense counsel. At that hearing, according to the Gazette, the prosecutor did not mention the plea bargain offer and Perry's lawyers declined to discuss a plea offer or any details about the case. Observing that this case was its first opportunity to consider MRPC 3.6, the Maryland Court reviewed the history of regulation of pretrial publicity and dealt at length with the public record exception to the rule, 6

7 which the Maryland Court found to be a safe harbor protecting Respondent from disciplinary action as to several of his statements. The Maryland Court concluded, however, that Respondent violated MRPC 3.6 by commenting on Cook's confession, by discussing the plea offer to Perry, and by opining as to the guilt of Cook and Lucas. Id. at 37. The Maryland Court also found a violation of MRPC 8.4(a). 4 Id. at 44. The Maryland Court imposed the sanction of public reprimand by the court. Its analysis was as follows: Bar Counsel recommends that we issue a reprimand. On numerous occasions, Gansler spoke outside of court about matters that had a substantial likelihood of depriving several criminal defendants of fair trials. Gansler presented no evidence of mitigating circumstances. The appropriate sanction in this case is one which demonstrates to members of this legal profession the type of conduct that will not be tolerated and which maintains the integrity of the Bar by preventing Gansler's transgressions from bringing its image into disrepute. Attorney Grievance Comm'n v. Culver, 371 Md. 265, 277, 808 A.2d 1251, 1258 (2002) (quoting Attorney Grievance Comm'n v. Garfield, 369 Md. 85, 98, 797 A.2d 757, 764 (2002)). A reported reprimand satisfactorily communicates to Gansler and other members of the Bar that improper extrajudicial statements dangerously jeopardize the foundational principles of our system of criminal justice. Accordingly, Gansler is hereby reprimanded. Id. at The Maryland Court found that Respondent's violation of MRPC 3.6 also violated MRPC 8.4(a), which finds misconduct when a lawyer "violates or attempts to violate the Rules of Professional Conduct." See also Attorney Grievance Comm'n v. Gallagher, 371 Md. 673, , 810 A.2d 996, 1018 (2002). 7

8 II. Reciprocal Discipline Under D.C. Bar R. XI, 11(f)(2), there is a rebuttable presumption in favor of the imposition of identical reciprocal discipline unless the respondent demonstrates by clear and convincing evidence, or the Court finds on the face of the record, that one or more of the five exceptions set forth in D.C. Bar R. XI, 11(c) applies: (1) The procedure elsewhere was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or (2) There was such infirmity of proof establishing the misconduct as to give rise to the clear conviction that the Court could not, consistently with its duty, accept as final the conclusion on that subject; or (3) The imposition of the same discipline by the Court would result in grave injustice; or (4) The misconduct established warrants substantially different discipline in the District of Columbia; or (5) The misconduct elsewhere does not constitute misconduct in the District of Columbia. See In re Zdravkovich, 831 A.2d 964, 968 (D.C. 2003) (citing In re Gardner, 650 A.2d 693, 695 (D.C. 1994); In re Zilberberg, 612 A.2d 832, 834 (D.C. 1992)). Respondent did not file a response to the Statement of Bar Counsel but he did, in his letter to the Executive Attorney ( Respondent s Letter ) dated December 24, 2003, argue that each of the foregoing exceptions applied. We treat each of these contentions in turn. 8

9 A. Whether the Maryland procedure was so lacking in notice or opportunity to be heard as to constitute deprivation of due process. Respondent was clearly given procedural due process. The petition filed in the Maryland disciplinary proceeding gave notice of the charges; Respondent received a full evidentiary hearing; and the recommendations of Judge Stevenson were reviewed in detail by the Maryland Court in its forty-eight page opinion. Respondent argues, however, that he had no notice that the statements he made could be deemed to be misconduct: In addition, no court in any jurisdiction in the United States has held that a publicly elected official cannot publicly restate that which is already public. Respondent s Letter at 6. Respondent's argument constitutes an attempt to relitigate here issues that have been resolved by the disciplining court. Our Court has steadfastly resisted such efforts at relitigation. See, e.g., In re Zdravkovich, 831 A.2d at 969 (rejecting the attempt to relitigate the findings of the Maryland Court). In analyzing Respondent's exceptions from Judge Stevenson's conclusions, the Maryland Court defined public information for purposes of the MRPC 3.6 safe harbor in the broadest possible way, but found as a matter of fact that Respondent's discussion of Cook's confession had not been public information until after Respondent's statement. Opinion at Respondent's other statements constituting misconduct, i.e., his opinion as to guilt, and the subject of a guilty plea, were found not to be 9

10 covered by the public information safe harbor. Id. at In any event, the record shows that Respondent was accorded procedural due process and his attempts to relitigate the Maryland proceeding must be rejected. B. Whether the Maryland proceeding reflects such infirmity of proof such that the Court could not accept the disciplining court's findings as final. Here Respondent asserts: At no time during the lengthy pendency of this matter in Maryland, did the AGC [Attorney Grievance Commission] provide a scintilla of proof that I knew or should have known that any comment that I made would have a substantial likelihood of materially prejudicing an adjudication proceeding. Moreover, at no time did the AGC allege that any of my comments did not comport materially with matters of public record. Respondent s Letter at 6. The Maryland Court devoted substantial attention to this issue. First, it noted that the MRPC 3.6 standard of substantial likelihood of material prejudice originated in the Supreme Court's landmark decision in Gentile v. State Bar of Nevada, 501 U.S (1991). In addition, the Maryland Court reviewed the circumstances of Respondent's comments and concluded that he knew or should have known of their substantial likelihood of materially prejudicing the proceeding. Opinion at Respondent is not privileged to relitigate those issues here. Further, the record of the Maryland proceedings shows no basis for any argument as to infirmity of proof; the facts relevant here were largely undisputed and Respondent had ample opportunity to pursue any factual contentions before the Maryland Court. 10

11 Again, this is not an opportunity to relitigate the Maryland proceedings. See In re Bridges, 805 A.2d 233, 235 (D.C. 2002) ( infirmity of proof exception carries heavy burden; relitigation not permitted). C. Whether the imposition of discipline would result in grave injustice. Here, Respondent essentially alleges that the Maryland disciplinary proceedings were politically motivated, and that reciprocal discipline based on those proceedings would result in grave injustice. Respondent s Letter at 6-7. The allegations against Respondent were supported by evidence and the Maryland Court found violations of Maryland ethical rules. Reciprocal discipline is therefore appropriate. In re Jones, 599 A.2d 1145, 1148 (D.C. 1991) (rejecting contention that Virginia proceeding was part of harassment plot). D. Whether the Maryland misconduct constitutes misconduct in the District of Columbia. The fifth exception prohibits reciprocal discipline if the misconduct in the disciplinary jurisdiction would not constitute misconduct in the District of Columbia. In most reciprocal cases, this exception does not come into play; because of the similarity in disciplinary rules across jurisdictions, misconduct in another jurisdiction usually constitutes misconduct here. Due, however, to the considerable differences between the Maryland and District of Columbia provisions relating to pretrial publicity, there is need to focus on this exception. In dealing with this issue, in this case and others, Bar Counsel has offered an interpretation of District of 11

12 Columbia Rule of Professional Conduct ( Rule ) 8.5(b), entitled Choice of Law, which eviscerates the exception. Bar Counsel's position that Rule 8.5(b) applies in reciprocal discipline cases usually makes no difference, but it may here, and therefore we address the choice of law issue first. (1) Choice-of-law question. Bar Counsel contends that the first step in the analysis of this issue is to determine, under Rule 8.5(b), a choice of law rule adopted in 1996, whether the ethical rules of Maryland or the District of Columbia would apply. Finding that the predominant effect of Respondent's conduct would be in Maryland, Bar Counsel contends that under Rule 8.5(b) the Maryland rules would apply to this conduct. Bar Counsel thus states: Under D.C. Bar R. XI, 11(c)(5), this jurisdiction will not impose reciprocal discipline if [t]he misconduct elsewhere does not constitute misconduct in the District of Columbia. The first step in analyzing reciprocal matters under this exception is to determine which disciplinary rules should be applied. Effective November 1, 1996, the Court adopted Rule 8.5 the disciplinary rule which controls choice of law questions. If under Rule 8.5 we determine that the foreign jurisdiction's rules should apply, our inquiry under D.C. Bar R. XI, 11(c)(5) is satisfied, and we properly should adopt the conclusions of law made by the disciplining court. In the instant matter, our Rule 8.5 dictates that the Maryland rules apply. Respondent is licensed to practice both here and in Maryland. The record reflects that he primarily practices in Maryland as State's Attorney. In addition, Respondent's misconduct had its predominant effect in Maryland where the criminal prosecutions occurred. Finally, the misconduct occurred after the November 1, 1996, effective date of Rule 8.5. Statement of Bar Counsel ( BC Stat. ) at (footnotes omitted). 12

13 We disagree with Bar Counsel's approach, which, if adopted, would effectively delete the 11(c)(5) exception from Rule XI. This exception has been consistently applied to preclude reciprocal discipline based on conduct which, if it occurred within the District of Columbia, would not violate the ethical rules in place here. See, e.g., In re Coale, Bar Docket No at 5 (BPR Apr. 22, 2004), aff d, No. 03-BG-479 (May 11, 2004) (conduct violative of Indiana rules not a basis for reciprocal discipline because the Indiana misconduct did not constitute misconduct in the District of Columbia); In re Swisher, 827 A.2d 807 (D.C. 2003) (per curiam) (reciprocal discipline not imposed for failure to pay amount owed on a judgment for non-payment of a promissory note, which was a ground for discipline by West Virginia court but not misconduct under D.C. rules). In re Youmans, 588 A.2d 718 (D.C. 1991) provides a helpful example. At the relevant time, New Jersey prohibited an attorney from depositing an advance on fees into a personal account. Under District of Columbia rules, such an advance became the attorney's property, and could properly be put into a personal account. 5 The Court upheld the Board's recommendation that reciprocal discipline could not be based on the attorney's handling of the advance fees: New Jersey in addition found Respondent to have violated its Rules of Professional Conduct when he deposited a client's 5 Since the decision in Youmans, the rule governing an attorney s handling of advance legal fees has been amended. Effective January 2000, Rule 1.15(d) states that advances on unearned fees are to be treated as property of the client and required to be deposited into a trust account, unless the client consents to a different arrangement. 13

14 advance on fees into his personal account instead of his trust account. The rule in the District of Columbia is different. Under D.C. Legal Ethics Committee Opinion 113, fee advances are not required to be deposited in a trust account. Thus, this misconduct elsewhere does not constitute misconduct in the District of Columbia, D.C. Bar Rule XI 11(c)(5), and may not be the subject of reciprocal discipline. See In re Gregory, 574 A.2d 265 (D.C. 1990). In re Youmans, 588 A.2d at 719 (internal footnote omitted). In re Gregory, 574 A.2d 265 (D.C. 1990) is also helpful. This case presented the question whether reciprocal discipline could be based on Maryland discipline for violating a particular ban on in-person solicitation of clients. The Court stated, As the Board recognized, reciprocal discipline must be imposed in this jurisdiction unless, inter alia, the misconduct elsewhere does not constitute misconduct in the District of Columbia.... The burden is on the attorney to prove the negative by clear and convincing evidence. Id. at 268. The Court concluded that the respondent s in-person solicitation of clients, which violated the Maryland rule, did not violate the corresponding rule in this jurisdiction, and reciprocal discipline could not be imposed on that basis. Id. at The Court remanded the matter to the Board for a determination of whether respondent's solicitations in Maryland would have violated a different rule in this jurisdiction, DR 2-103(A)(3), as then in force in the District of Columbia. 6 As seen from the foregoing cases, the Court has consistently viewed the exception as prohibiting reciprocal discipline, i.e., discipline based on foreign 6 On remand, the Board found that it could not be proved that respondent violated DR 2-103(A). Order, In re Gregory, Bar Docket No (BPR Dec. 14, 1990). 14

15 disciplinary proceedings of District of Columbia lawyers for conduct which would not be misconduct if it occurred here. In effect, these cases reflect the implied insertion of the phrase if it occurs into the exception, i.e., reciprocal discipline will not be imposed if the misconduct elsewhere does not constitute misconduct [if it occurs] in the District of Columbia. The obvious reason for this exception is illustrated by the facts in Gregory and Youmans, where our Court declined to impose discipline for conduct which was not improper in this jurisdiction. The exception reflects a judgment that the Court should not sanction members of our Bar in reciprocal proceedings, unless they engaged in conduct which would be misconduct here. 7 Reciprocal discipline is derivative in that it is based on disciplinary action by another jurisdiction. Reciprocal discipline is deferential in character; its purpose is to extend the reach of our disciplinary system to conduct elsewhere that has resulted in discipline. See In re Zdravkovich, 831 A.2d at 969 ( Underlying our strict standard in reciprocal bar discipline cases is... the idea that there is merit in according deference, for its own sake, to the actions of other jurisdictions with respect to the attorneys over whom we share supervisory authority. ). The purpose of reciprocal discipline is described in a report of the American Bar Association s Commission on Multijurisdictional Practice: 7 We recognize that Rule 8.5 would permit Bar Counsel to proceed in an original matter against a member of our Bar for conduct which would not violate our ethical rules if the standards in Rule 8.5(b) for applying the rules of another jurisdiction were satisfied. 15

16 If a lawyer suspended or disbarred in one jurisdiction is also admitted in another jurisdiction and no action can be taken against the lawyer until a new disciplinary proceeding is instituted, tried, and concluded, the public in the second jurisdiction is left unprotected against a lawyer who has been judicially determined to be unfit. Any procedure which so exposes innocent clients to harm cannot be justified. The spectacle of a lawyer disbarred in one jurisdiction yet permitted to practice elsewhere exposes the profession to criticism and undermines public confidence in the administration of justice. ABA Commission on Multijurisdictional Practice, Client Representation in the 21 st Century 77 (Adopted by the House of Delegates of the American Bar Association Aug. 2002). Obviously, a lawyer disbarred in another jurisdiction for intentional misappropriation should not be allowed to practice in the District of Columbia D.C. Bar R. XI, 11(c)(5), however, reflects the judgment that this form of derivative discipline should not be imposed on a lawyer for conduct which would be considered acceptable here just because it was considered improper somewhere else. We note that the reciprocal discipline provisions of the American Bar Association s Model Rules for Lawyer Disciplinary Enforcement combine the counterpart to our D.C. Bar R. XI, 11(c)(4) and (5) into one provision, as follows: (3) The discipline imposed would result in grave injustice or be offensive to the public policy of this jurisdiction. (Emphasis added.) Model Rules for Lawyer Disciplinary Enforcement Rule 22(D)(3) (amended Aug. 2002). We conclude that this provision reflects the same policy that 16

17 underlies our D.C. Bar R. XI, 11(c)(5), and that that policy would be frustrated by Bar Counsel's application of Rule 8.5(b) to prevent analysis of whether the conduct prohibited in the disciplinary jurisdiction would be prohibited here. Under Bar Counsel's view of the operation of Rule 8.5(b), the 11(c)(5) exception would seldom preclude reciprocal discipline because there would almost never be an instance when foreign conduct would be evaluated under our rules. Thus, as applied by Bar Counsel, Rule 8.5(b) operates to render the exception under D.C. Bar R. XI, 11(c)(5) a nullity. Bar Counsel's interpretation must be weighed against the strong presumption against repeal by implication. As the Court noted in Teachey v. Carver, 736 A.2d 998, (D.C. 1999): The cardinal principle of statutory construction is to save and not to destroy.... Repeals by implication are not favored, and we will not deem existing law to have been implicitly repealed unless the intention of the legislature is clear and manifest (citations to other authorities omitted). In a more recent case, the Court reiterated the rule that a later-enacted statute will not be held to have implicitly repealed an earlier one unless there is a clear repugnancy between the two. Leonard v. District of Columbia, 794 A.2d 618, 626 (D.C. 2002). We see nothing in Rule 8.5(b) suggesting that the Court intended to eliminate the D.C. Bar R. XI, 11(c)(5) exception to the imposition of reciprocal discipline. Rule 8.5 states: 17

18 (a) Disciplinary Authority. A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction, regardless of where the lawyer's conduct occurs. A lawyer may be subject to the disciplinary authority of both this jurisdiction and another jurisdiction where the lawyer is admitted for the same conduct. (b) Choice of Law. In any exercise of the disciplinary authority of this jurisdiction, the Rules of Professional Conduct to be applied shall be as follows: (1) For conduct in connection with a proceeding in a court before which a lawyer has been admitted to practice (either generally or for purposes of that proceeding), the rules to be applied shall be the rules of the jurisdiction in which the court sits, unless the rules of the court provide otherwise; and (2) For any other conduct, (i) If the lawyer is licensed to practice only in this jurisdiction, the rules to be applied shall be the rules of this jurisdiction, and (ii) If the lawyer is licensed to practice in this and another jurisdiction, the rules to be applied shall be the rules of the admitting jurisdiction in which the lawyer principally practices; provided, however, that if particular conduct clearly has its predominant effect in another jurisdiction in which the lawyer is licensed to practice, the rules of that jurisdiction shall be applied to that conduct. Comment 3 explains the purpose of Rule 8.5(b): Its premise is that minimizing conflicts between rules, as well as uncertainty about which rules are applicable, is in the best interest of both clients and the profession (as well as the bodies having authority to regulate the profession). Accordingly, it takes the approach of (i) providing that any particular conduct of an attorney shall be subject to only one set of rules of professional conduct, and (ii) making the determination of which set of rules applies to particular conduct as straightforward as possible, consistent with recognition of appropriate regulatory interests of relevant jurisdictions. Giving continued force to D.C. Bar R. XI, 11(c)(5) does not undermine Rule 8.5(b) or its evident purpose. As applied here, Maryland law governs Respondent's conduct as judged in the original proceeding in Maryland; it 18

19 would also apply if our Bar Counsel had decided to proceed against Respondent in an original proceeding. Therefore, as applied here Rule 8.5 would have the salutory result of avoiding confusion as to which rules apply to Respondent's behavior for purposes of determining whether he engaged in misconduct. Section 11(c)(5) serves to ensure that foreign discipline not be automatically duplicated here without an analysis of whether our public policy would be offended. All the exception does is to preclude the imposition of reciprocal discipline if Respondent s conduct had it occurred in the District of Columbia would not have violated our rules. For purposes of D.C. Bar R. XI, 11(c)(5), the analysis must assume District of Columbia rules govern the conduct in question. (2) Question of whether Respondent has established that his conduct would not have violated the District of Columbia Rules of Professional Conduct. On this issue, Respondent states as follows: There exists no caselaw or precedent of any kind in the District of Columbia to remotely suggest that a publicly elected law enforcement officer cannot publicly state that which is already public. Respondent s Letter at 7. The question is whether by this statement he discharges his burden to establish that his statements would not violate the District of Columbia rules. Bar Counsel submits that Respondent's extrajudicial statements would violate District of Columbia Rules 3.6 and 3.8(f). BC Stat. at These rules provide: 19

20 Rule 3.6. Trial publicity. A lawyer engaged in a case being tried to a judge or jury shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of mass public communication if the lawyer knows or reasonably should know that the statement will create a serious and imminent threat to the impartiality of the judge or jury. Rule 3.8. Special responsibilities of a prosecutor. The prosecutor in a criminal case shall not: *** (f) Except for statements which are necessary to inform the public of the nature and extent of the prosecutor's action and which serve a legitimate law enforcement purpose, make extrajudicial comments which serve to heighten condemnation of the accused. The issue is whether the comments found to be violative of MRPC 3.6 would violate the pertinent rules in the District of Columbia, i.e., Rules 3.6 and 3.8(f). The Maryland Court found violations in Respondent's comments on Cook's confession, in his discussion of a plea offer to Perry, and in his opining on the guilt of Cook and Lucas. In considering whether these statements would violate our rules, we rely upon the facts as found by the Maryland Court. Maryland Rule 3.6 is different from our Rule 3.6 in several respects. 8 Most significant is the difference in circumstances covered by the rules. MRPC 3.6(a) covers statements as to an adjudicative proceeding; MRPC 8 In certain respects the Maryland rule is less stringent; for example, it provides a safe harbor for dissemination of public information. The standard by which statements are measured is also different, although the effect of the difference may be negligible. MRPC 3.6 prohibits statements that the lawyer knows or reasonably should know... will have a substantial likelihood of materially prejudicing an adjudicative proceeding. Our Rule 3.6 prohibits a statement if the lawyer knows or reasonably should know that the statement will create a serious or imminent threat to the impartiality of the judge or jury. 20

21 3.6(b) lists particular types of statements likely to have the proscribed effect, i.e., material prejudice, relating to a civil matter triable to a jury, a criminal matter, or any other proceeding that could result in incarceration. In contrast, our Rule 3.6 is entitled Trial Publicity and applies to a lawyer engaged in a case being tried to a judge or jury. There is no original case in this jurisdiction construing our Rule 3.6. Nonetheless, because neither the Cook, Lucas, or Perry cases were being tried at the time of the extrajudicial statements in question, it seems clear that those statements did not fall within the ambit of our Rule 3.6. The question then becomes whether Respondent's statements would, if made in the District of Columbia, violate Rule 3.8(f). Again, there is no original case construing this rule. Rule 3.8, entitled Special Responsibilities of a Prosecutor, certainly would apply to Respondent. And while we note the Court's reluctance to have our disciplinary law developed in the context of reciprocal cases, 9 we have no doubt that statements of opinions as to a defendant's guilt and comments on a defendant's confession would tend to heighten condemnation of the accused, as contemplated by Rule 3.8(f). The Maryland Court's opinion is obviously not focused on our Rule 3.8(f). However, by demonstrating the prejudicial impact of Respondent's statement, the opinion points to a conclusion that Respondent's comments "heighten condemnation" of the accused. As to his comments on the confession, the Maryland Court stated: 9 See In re Childress, 811 A.2d 805, 807 (D.C. 2002). 21

22 Not only did Gansler announce the existence of Cook's confession, but he also furnished specific information of the surrounding circumstances, including that Cook provided "incredible details that only the murderer would have known." Gansler magnified the prejudicial effect of his statements by bolstering the believability of the confession. He stated that, before Cook traveled to the crime scene and "went over in detail by detail every step of" the murder, the police had provided him with a restful night's sleep. If we found no fault with such public disclosures, we would be allowing attorneys, in effect, to evade the operation of the exclusionary rule by taking advantage of the probative value of the confession without regard to its constitutionality or admissibility as evidence. That is, Gansler made Cook's confession public even though its contents might never reach the jury as a result of a constitutional challenge. His actions, in this regard, run afoul of our principles of criminal justice, as Chief Justice Rehnquist illustrated: The outcome of a criminal trial is to be decided by impartial jurors, who know as little as possible of the case, based on material admitted into evidence before them in a court proceeding. Extrajudicial comments on, or discussion of, evidence which might never be admitted at trial and ex parte statements by counsel giving their version of the facts obviously threaten to undermine this basic tenet. Gentile, 501 U.S. at 1070, 111 S. Ct. at 2742, 115 L. Ed. 2d at 920. Opinion at 38. On Respondent's statements of opinion as to guilt of the defendants, the Maryland Court reasoned: [H]owever, Gansler's proclamation that "they" had apprehended the persons who committed the crimes in the Cook and Lucas cases directly contravened the provisions of MRPC 3.6(b)(4) (opinion on guilt of [sic] innocence). The comments blatantly expressed Gansler's opinion of the guilt of the defendants. In contrast to the lawyer in Gentile, who refused to comment on 22

23 confessions and evidence from searches, see Gentile, 501 U.S. at 1046, 111 S. Ct. at 2730, 115 L. Ed. 2d at 905 (Kennedy J., dissenting), Gansler supported his opinions of guilt by pointing to specific circumstances, such as confessions and physical evidence, to make his views more reliable. Gentile differs from the case before us for yet another reason: Gansler is a prosecutor, not a defense lawyer. Prosecutors play a unique role in our system of criminal justice. We recognized this recently in Walker v. State, 373 Md. 360, , 818 A.2d 1078, 1098 (2003), where Judge Harrell for the Court stated: Prosecutors are held to even higher standards of conduct than other attorneys due to their unique role as both advocate and minister of justice. The special duty of the prosecutor to seek justice is said to exist because the State's Attorney has broad discretion in determining whether to initiate criminal proceedings. Bracks v. Wells, 184 Md. 86, 90, 40 A.2d 319, 321 (1944). The office of prosecutor is therefore "not purely ministerial, but involves the exercise of learning and discretion," and he or she "must exercise a sound discretion to distinguish between the guilty and the innocent." Id. The responsibilities of the prosecutor encompass more than advocacy. The prosecutor's duty is not merely to convict, but to seek justice. "His obligation is to protect not only the public interest but the innocent as well and to safeguard the rights guaranteed to all persons, including those who may be guilty." Sinclair v. State, 27 Md. App. 207, , 340 A.2d 359, 369 (1975). In addition to their special role as ministers of justice, prosecutors have limitations not experienced by criminal defense attorneys in that defense attorneys have the benefit of their client's presumption of innocence. In other words, a criminal defense attorney may announce an opinion that his or her client is innocent with a lesser risk of causing prejudice because the law, itself, presumes the defendant's innocence. On the other hand, a prosecutor's opinion of guilt is much more likely to create prejudice, given that his or her words carry the authority of the government and are especially persuasive in the 23

24 public's eye. See Scott M. Matheson, Jr., The Prosecutor, The Press, and Free Speech, 58 FORDHAM L. REV. 865, 886 (1990) ("When the prosecutor speaks publicly about a pending case, he cannot separate his representational role from his speech, and he thereby involves the state in the extrajudicial comment."). Opinion at In light of the prejudicial impact of the statements, as found by the Maryland Court, it appears unlikely that our Court would find these statements to have been necessary to inform the public of the nature and extent of the prosecutor's action and... to serve a legitimate law enforcement purpose. The Court does not need to reach definitive conclusions here, however. It is sufficient for the Court to conclude as we would recommend, that Respondent has not carried his burden of establishing that his Maryland misconduct would not be misconduct in the District of Columbia. 10 Nor is it clear on the face of the record that Respondent's conduct would not violate our Rule 3.8(f). There need not be precise alignment between the rules violated in the disciplining jurisdiction and the District of Columbia rules that would be violated by the same conduct. See, e.g., In re Reiner, 561 A.2d 479, 482 (D.C. 1989) (per curiam) (reciprocal discipline may be imposed despite slight variations in wording between the District of Columbia rules and the rules of the foreign jurisdiction, as long as the two sets of rules have the same substantive effect ). The D.C. Bar R. XI, 11(c)(5) exception does not preclude reciprocal discipline. 10 In view of the fact that Respondent's conduct would violate Rule 3.8(f), we need not address whether the Court would find a violation of Rule 8.4(a) in these circumstances. 24

25 E. Whether the misconduct would warrant substantially different discipline. In order to fall within this exception, Respondent must establish first that the misconduct, if it occurred in an original case, would have resulted in different discipline and second, that the difference in sanction would be substantial. In re Sheridan, 798 A.2d 516, 522 (D.C. 2002) (citing In re Garner, 576 A.2d 1356, 1357 (D.C. 1990)). Respondent's assertion under this exception does not speak to the relevant criteria, but rather comments that he has always been overly-cautions about what I say in large measure due to my background as a federal prosecutor in the District of Columbia. Respondent s Letter at 7. In previous reciprocal cases from Maryland, our Court has determined that the functional equivalent to Maryland's public reprimand is public censure by the Court. See, e.g., In re Morrison, No. 03-BG-581, slip op. at 2 (D.C. May 27, 2004) In re Bridges, 805 A.2d 233, 234 (D.C. 2002); In re Greenberg, 762 A.2d 42, 42 (D.C. 2000) (per curiam). Public censure has been imposed in a variety of circumstances. 11 Respondent's statements of opinion about the guilt of Cook and Lucas, and his comments about the possible plea agreement in Perry, would be regarded as fairly serious, certainly not trivial or technical violations of our Rule 3.8(f). Public censure would certainly be within the range of sanctions for Respondent's misconduct had it occurred in the District of Columbia. Therefore, this exception to reciprocal discipline is not applicable. 11 See, e.g., In re Mitchell, 727 A.2d 308, 315 (D.C. 1999) and cases cited therein. 25

26 Conclusion Based on the foregoing, the Board recommends that the Court impose the functionally identical reciprocal discipline of public censure. BOARD ON PROFESSIONAL RESPONSIBILITY By: Timothy J. Bloomfield Chair Dated: July 9, 2004 All members of the Board concur in this Report and Recommendation except Mr. Wolfson, who has filed a separate concurring and dissenting statement joined by Ms. Holleran Rivera. 26

27 DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY In the Matter of: ) ) DOUGLAS F. GANSLER, ) Bar Docket No ) Respondent. ) CONCURRING AND DISSENTING STATEMENT OF MEMBER PAUL R.Q. WOLFSON I agree with the Board insofar as it concludes that District of Columbia Rule of Professional Conduct ( Rule ) 8.5(b) does not eliminate the Board s obligation and authority in reciprocal cases to determine, under D.C. Bar R. XI, 11(c)(5), whether the misconduct sanctioned by the original jurisdiction would constitute misconduct in the District of Columbia. After that point, however, I part company with the Board, because I believe that, in light of (a) the significant differences between the Maryland and District of Columbia rules on extrajudicial statements by lawyers and prosecutors, (b) the absence of any decisional law in the District construing either of the potentially relevant rules, (c) the fact that Respondent s case was not tried in Maryland with the distinct elements of the District rules in view, and (d) the fact that we do not even have before us the record of the Maryland disciplinary trial, it would not be appropriate to impose reciprocal discipline on Respondent. Rule 3.6. The Board correctly observes that the District s Rule 3.6 is significantly different from the equivalent rule in Maryland. The District s rule, as the Board points out, applies only to a [a] lawyer engaged in a case being tried to a judge or jury ; Maryland s rule does not. But there is another significant difference. Maryland s Rule 3.6 prohibits extrajudicial statements that the lawyer knows or reasonably should know will have a substantial likelihood

28 of materially prejudicing an adjudicative proceeding. The District s Rule 3.6 prohibits only statements that the lawyer knows or reasonably should know will create a serious and imminent threat to the impartiality of the judge or jury. By any standard, Maryland s Rule 3.6 is significantly stricter than the District s. Because of this difference, the Maryland Court of Appeals comprehensive opinion about the evils of extrajudicial statements, especially by prosecutors, simply does not help us decide whether Respondent s statements would contravene the more permissive standard in the District. Conceivably, in a reciprocal case coming from Maryland in which Maryland found a violation of its Rule 3.6, the Board might itself review the record of the Maryland disciplinary proceeding to determine whether the extrajudicial statements presented a serious and imminent threat to the impartiality of the judge or jury, but for the Board to do so on a cold record without any opportunity to question the witnesses for itself would be difficult indeed. In this case, it is impossible, because the Board does not even have the transcript of the Maryland proceedings. Rule 3.8. As an alternative, the Board concludes that Respondent s statements violated the District s Rule 3.8(f), which provides that prosecutors shall not, [e]xcept for statements which are necessary to inform the public of the nature and extent of the prosecutor s action and which serve a legitimate law enforcement purpose, make extrajudicial comments which serve to heighten condemnation of the accused. There seems to be no question that this rule imposes special restrictions on prosecutors beyond those imposed on all lawyers by Rule 3.6. On the other hand, there is no case law in this jurisdiction construing this rule, and I perceive at least three interpretive difficulties in applying this rule to Respondent s case. First, were Respondent s public statements necessary to inform the public about the nature and extent of the actions of the prosecutor s office? Necessary is a word of many 2

29 meanings, and one could construe the rule either narrowly or broadly, depending on one s conception of the proper balance between the rights of the accused to a public trial and the importance of keeping the public informed about the operations of the criminal justice system. Indeed, Respondent maintains that he has a responsibility to inform the public about the criminal justice system, and that the public was deeply interested in proceedings and developments in the three particular cases at issue. Whether any particular extrajudicial statement that Respondent made was necessary to this task is not a question with a self-evident answer. Second, did Respondent s actions serve legitimate law enforcement purposes? Respondent maintains that two of the press conferences were for the purpose of informing the public that prolonged manhunts had been concluded. The third statement, about a case remanded after an appeal in the court system, may also have been made to inform the public of Respondent s intentions about the case in the future. Third, did Respondent s statements serve to heighten condemnation of the accused? There is no question that Respondent expressed confidence in each case that the accused was guilty, but it does not necessarily follow that his statements were so harsh as to heighten condemnation of the accused. Nor is it clear from the rule whether Respondent s purpose is a factor to be taken into account when determining whether his actions served to heighten condemnation. It may well be that, in an original proceeding at which a full record would be developed and reviewed by this Board, our disciplinary system might conclude that Respondent s statements violated Rule 3.8. In my judgment, however, the record before us does not allow us to conclude with sufficient confidence that Respondent violated this rule. There are simply no findings by the Maryland Court of Appeals in its opinion which is all that we have that assist 3