In late February, the Maryland Court of Appeals (which is the highest court in Maryland) disbarred a long-time Maryland attorney, James Albert Frost, for alleging in emails that several Maryland judges had engaged in misconduct. The decision, Attorney Grievance Commission v. Frost, outlines the pertinent facts:
Respondent was admitted to the Maryland Bar on June 29, 1972. He does not maintain an office for the practice of law. On April 23, 2012, Respondent wrote an email to his ex-wife, stating, inter alia:
With regard to Case #110082-C, you know or should know that: (1) Ann S. Harrington, a
James Albert Frost
lawless judge, arranged for deputy sheriffs of the Montgomery County, MD, Sheriff’s Office to illegally arrest me on May 13, 2008, with no probable cause to do so and there by committed the crime under State of Maryland law of making a false report to an agency of the state with police powers; . . . (3) There was no basis in law or in fact for Judge Stephen P. Johnson, a weak man and corrupt judge acting under improper and political influence, to have me locked up in the county jail on a “no bond” order for 87 days and 87 nights but that’s what was done; and (4) The crooked State’s Attorney for Montgomery County, MD, John J. McCarthy, Esq., a protégé of Douglas F. Gansler, Esq., the corrupt Attorney General of Maryland, and a political ally of Maryland Governor O’Malley, a pretty-boy hack politician, didn’t let his assistant prosecutors drop the phon[y] charge against me until August 8, 2008.
With regard to Case #11041-C . . . you know or should know that the Maryland State Police deceived District Court of Maryland Commissioner Kaitlyn Boyle into signing a warrant to arrest me and then deceived Circuit Court Judge Joseph A. Dugan, Jr., into signing a search and seizure warrant by and through perjury on the warrant applications signed on August 13, 2008, by Maryland State Trooper Michael Brennan, who was ordered to do that by Maryland State Police Captain Clifford T. Hughes, his supervisor, and Maryland State Police Superintendent Terence B. Sheridan, who were acting under improper and political influence exerted (through an intermediary) by Governor O’Malley and his wife, Judge of the District Court of Maryland for Baltimore City Catherine Curran O’Malley.
Respondent made the April 23, 2012 statements regarding the Honorable Ann S. Harrington, specifically calling her a “lawless judge” and accusing her of “arrang[ing] for deputy sheriffs of the Montgomery County, MD Sheriff’s Office to illegally arrest [him]” knowing the statements to be false and with reckless disregard as to their truth or falsity. Respondent has no facts to support the statements made regarding Judge Harrington.
Respondent made the April 23, 2012 statements regarding the Honorable Stephen P. Johnson, Retired Judge for the District Court of Maryland for Montgomery County, specifically calling him “a weak man and corrupt judge acting under improper and political influence . . .” knowing the statements to be false and with reckless disregard as to their truth or falsity. Respondent has no facts to support the statement regarding Judge Johnson.
Respondent made the April 23, 2012 statement regarding John J. McCarthy, State’s Attorney for Montgomery County, specifically calling Mr. McCarthy a “crooked” State’s Attorney, knowing the statement to be false and with reckless disregard as to its truth or falsity. Respondent has no facts to support the statement regarding Mr. McCarthy.
Respondent made the April 23, 2012 statement regarding Douglas F. Gansler, Attorney General of Maryland, specifically calling Mr. Gansler “corrupt,” knowing the statement to be false and with reckless disregard as to its truth or falsity. Respondent has no facts to support the statement regarding Mr. Gansler.
Respondent made the April 23, 2012 statement regarding Governor O’Malley, specifically that he exerted “improper” influence over members of the Montgomery County Police Department, knowing the statement to be false and with reckless disregard as to its truth or falsity. Respondent has no facts to support the statement regarding Governor O’Malley.
Respondent made the April 23, 2012 statement regarding the Honorable Catherine Curran O’Malley, Judge [for the] District Court of Baltimore City, specifically that she exerted “improper” influence over members of the Montgomery County Police Department, knowing the statement to be false and with reckless disregard as to its truth or falsity. Respondent has no facts to support the statement regarding Judge Curran O’Malley.
On or about May 2, 2012, Respondent mailed a copy of the April 23, 2012 email to George Meng, Esquire. Prior to May 2, 2012, Respondent had no relationship or communication with Mr. Meng. On or about May 2, 2012, Respondent forwarded a copy of the April 23, 2012 email to Paul Carlin, Esquire. On or about May 2, 2012, Respondent forwarded a copy of the April 23, 2012 email to Katherine Kelly Howard, Esquire.
On May 4, 2012, Mr. Meng emailed Respondent asking why the April 23, 2012 email was sent to him, directing him to Rule 8.2, 8.3 and 8.4 of the Maryland Lawyers’ Rules of Professional Conduct and requesting a response as how the April 23, 2012 email did not violate Rules 8.2 and 8.4 and did not require reporting to Petitioner pursuant to Rule 8.3. On May 10, 2012, no response having been received to his May 4 email, Mr. Meng again emailed Respondent requesting a response to the questions posed on May 4, 2012. On May 18, 2012, Respondent emailed Mr. Meng stating, “You should have something from me in your mail Monday.” On May 18, 2012, Respondent mailed Mr. Meng a letter directed to Chief of Police J. Thomas Manger, Montgomery County, Maryland. The May 18, 2012 letter did not, in any way, respond to the questions posed by Mr. Meng in his emails of May 4 and May 10. Mr. Meng received the May 18, 2012 letter on May 21, 2012. On May 21, 2012, Mr. Meng emailed Respondent again requesting a response to his May 4 and May 10 emails.
On May 23, 2012, no further communication having been received from Respondent, Mr. Meng filed a complaint with the Petitioner and enclosed: (1) Respondent’s April 23, 2012 email, (2) Mr. Meng’s May 4, 2012 email to Respondent, (3) Mr. Meng’s May 10, 2012 email to Respondent, (4) Mr. Meng’s May 18, 2012 email to Respondent, (5) Respondent’s letter of May 1, 2012 to Chief of Police J. Thomas Manger, and (6) Mr. Meng’s May 21, 2012 email to Respondent.
Attorney George Meng was no ordinary member of the Maryland Bar. He was a long-time member of the Attorney Grievance Commission. Meng’s complaint was forwarded to Frost by Bar Counsel. Frost responded:
“The statements of mine concerning which objections have been presented to your office are protected from state action by the free speech clause of the First Amendment to the United States Constitution.”
The most interesting aspect of the article is it notes, as Ken Ditkowsky and I have noted, that attorneys in the Kids for Cash program, apparently kept silent about the Program because they didn’t want to prosecuted under Rule 8.3 which prohibits lawyers from criticizing judges. This is despite the fact, that has not been the law since the 1951 In Re Sawyer SCOTUS decision which allowed a Hawaii law professor to criticize a judge, a lawyer, a decision and a statute and said it was all protected by the First Amendment. Recent cases have made it clear attorney occupational speech is protected by the First Amendment also (Virginia Bar v. Hunter Hogan, In re Weddigen (4th Dist, Illinois 2015). IRS v. Loving (IRS has no jurisdiction over requiring tax preparers to be tested and licensed), Alvarez SCOTUS–man can lie about the fact he claims falsely to have a Medal of Honor from Congress, Citizens United — PACs can put out sleezy fake movies about the Clintons right before elections.
But the Kids for Cash in Penn. and the Seniors for Cash in Probate across the nation is one of the biggest reasons to let attorneys speak out and, as granted them in the Sawyer case, criticize a judge, a law or a court decision.
We have to end the code of silence for attorneys. It does no good, it engenders public mistrust of the law and legal system and judiciary, and with the prevalence of blogs and social media, it is near impossible to control when people can tweet and create blog posts right from a cell phone.
Worse, when a lawyer remains silent while the public records and videos lawless court proceedings that are little more than cash grabs for clouted attorneys and judges, it creates a situation where if an attorney does not speak out and reveal the wrongdoing, the attorney, as in Kids for Cash faces severe liability later when the authorities ask why scores of lawyers did not speak out to the FBI and states attorneys and to the public, warning everyone that the courtroom is corrupt and to expect that.
In fact, every courtroom should, like the internet, have a “take a survey” email sent out after every court appearance and that information should be made public where every professional present can rate the other party.
Our courtrooms are stuck in ye old England where silence and secrecy reigned and star chambers (ones where you were hauled in without notice, had no hearing, no discovery and were put in prison or stripped of your assets). That system never worked and in 1776 the Colonies of America said enough was enough and created a new nation with a new constitution where the First Amendment in rights granted to the people was Free Speech and a free press.
Our ancestors had it right in 1779 when the US constitution was provided with a First Amendment for free speech and a free press which was passed unanimously and without comment. Prior to that, the 13 colonies had various forms of free speech and free press written into their own constitutions.
I guess it’s simply time to go back to the 1780’s when lawyers understood what a free and open democracy meant.