United States District Court, D. Maryland
IRWIN R. KRAMER, Plaintiff,
GLENN M. GROSSMAN, et al., Defendants.
ELLEN LIPTON HOLLANDER, District Judge.
Pursuant to the Declaratory Judgment Act, 28 U.S.C. §§ 2201-02, Irwin R. Kramer, plaintiff, a licensed attorney in Maryland, has filed suit against the Attorney Grievance Commission of Maryland ("Commission") and Glenn M. Grossman, in his capacity as Bar Counsel to the Commission. Kramer seeks a declaration that he has a right under the First Amendment to the United States Constitution to use certain domain names for his website. Plaintiff also seeks a declaration that any action to punish, sanction, or otherwise discipline him for his use of those domain names would be unconstitutional. Id.
In particular, Kramer operates a website with the domain name "AttorneyGrievance.com." See Complaint, ECF 1. He also owns the domain names "AttorneyGrievances.com, " "AttorneyGrievanceLaw.com, " "GrievanceAttorneys.com, " "GrievanceLawyer.com, " and "GrievanceLawyers.com, " all of which redirect the user to "AttorneyGrievance.com." See id. According to plaintiff, he uses the website "to provide helpful information for attorneys faced with grievances, and to raise awareness of legal services designed to assist them." Id. ¶ 9. Defendants claim the domain name "AttorneyGrievance.com" may mislead the public into believing that the website is connected to the Commission, in violation of the Maryland Lawyers' Rules of Professional Conduct ("MLRPC"). According to plaintiff, defendants have threatened plaintiff with disciplinary action if he continues to use the domain names.
The Complaint includes three counts, and numerous exhibits were attached to the suit. Count I includes requests for (1) "a judgment declaring Plaintiff's First Amendment right to use the domain AttorneyGrievance.com' for a website involving the attorney grievance and disciplinary process"; (2) "a judgment declaring as unconstitutional any action to punish, to sanction or to discipline Plaintiff for using the domain AttorneyGrievance.com'"; (3) "a judgment declaring Plaintiff's First Amendment right to use the phrase "attorney grievance' to describe and to identify a website involving the attorney grievance and disciplinary process"; (4) "a judgment declaring as unconstitutional any action to punish, to sanction or to discipline Plaintiff for using the phrase attorney grievance' to describe and to identify a website involving the attorney grievance and disciplinary process." Id. ¶ 26. Count II requests the same declarations as to the domain "AttorneyGrievances.com" and the phrase "attorney grievances." Id. ¶ 33. Count III requests the same declarations as to the domains "AttorneyGrievanceLaw.com, " "GrievanceAttorneys.com, " "GrievanceLawyer.com, " and "GrievanceLawyers.com." Id. ¶ 40. Notably, plaintiff's requests for relief relate only to the domain names themselves, and not to the actual content of the websites he owns and operates.
Along with his Complaint, plaintiff filed a Motion for Summary Judgment ("Kramer Motion, " ECF 3), and a supporting memorandum ("Kramer Memo, " ECF 3-1), in which he claims that "there are no genuine disputes of material fact" and that he is "entitled to a declaratory judgment as a matter of law." Defendants did not file an opposition to the Kramer Motion. Instead, they filed a Motion to Dismiss the Complaint ("Bar Motion, " ECF 9), along with a supporting memorandum ("Bar Memo, " ECF 9-1). The Bar Motion lodges numerous procedural challenges to plaintiff's Complaint, including that plaintiff lacks Article III standing, that the issue is not ripe for adjudication, that this Court should abstain from deciding the case, and that the suit is barred by sovereign immunity. Plaintiff filed an opposition to the Bar Motion (ECF 10), along with a supporting memorandum ("Pl. Opp., " ECF 10-1). Defendants did not file a reply.
No hearing is necessary to resolve the motions. See Local Rule 105.6. For the reasons that follow, I will grant the Bar Motion in part and deny it in part. And, I will deny the Kramer Motion, without prejudice.
Kramer was admitted to the Maryland Bar in 1987. He works at the law firm of Kramer & Connolly. Complaint ¶ 6. His practice includes the representation of lawyers who are the subjects of attorney grievance proceedings. Id. To advertise his practice, plaintiff maintains a website devoted to this practice area, which is accessible at "AttorneyGrievance.com." Id. He also is the registered owner of other domain names: "AttorneyGrievances.com, " "AttorneyGrievanceLaw.com, " "GrievanceAttorneys.com, " "GrievanceLawyer.com, " and "GrievanceLawyers.com." Id. ¶¶ 6, 9. Since June 2012, plaintiff has placed advertisements for "AttorneyGrievance.com" in the "Lawyer-to-Lawyer" referral section of The Daily Record, which is a Maryland-based news publication providing legal and business information. Id. ¶ 9; see Ex. A to Complaint (ECF 1-1).
Grossman has served as Bar Counsel to the Commission since July 2010. Complaint ¶ 7. Under Maryland law, Bar Counsel has the power, inter alia, to investigate professional misconduct, to issue reprimands, and to prosecute attorneys for alleged violations of the Maryland Lawyer's Rules of Professional Conduct. See Md. Rule 16-712(b). Id. The Commission consists of twelve members appointed by the Maryland Court of Appeals. Among other things, it appoints Bar Counsel, subject to approval by the Court of Appeals. See Md. Rule 16-711(h); Complaint ¶ 8.
On January 2, 2013, James A. Gaither, Assistant Bar Counsel, sent a letter to Kramer regarding the use of the "AttorneyGrievance.com" domain name. Complaint ¶ 10. In the letter, Gaither stated, Ex. F. to Complaint (ECF 1-6):
[Y]our firm's use of the domain name "AttorneyGrievance.com" raises additional concerns, which I request that you... address. The name appears to be prima facie misleading in that it may mislead a potential client into believing that your firm is associated with the Attorney Grievance Commission of Maryland. If you believe otherwise, please indicate so in your response. Please also describe how your firm's use of this domain name does not unjustly increase your website traffic volume at the expense of the Attorney Grievance Commission.
Kramer responded by letter dated January 8, 2013. See Ex. C to Complaint (ECF 1-3). He stated: "I do not understand the basis for [the assertion that the domain name is misleading].... I am not aware of any ethical rule precluding domain names describing specific practice areas." Id.
In a letter of January 23, 2013, Gaither wrote to Kramer, stating: "Our office remains firm on its position concerning your use of the domain name AttorneyGrievance.com. In response to your letter, the basis for the assertion that using this name may be misleading lies in Rule 7.1, Rule 7.2, and Rule 7.5 of the Maryland Lawyers' Rules of Professional Conduct (MLRPC')." Ex. E to Complaint (ECF 1-5). Further, Gaither explained: "Per Rule 7.5, a trade name may be used... if it does not imply a connection with a government agency or with a public or charitable legal services organization.... Use of the domain name AttorneyGrievance.com' implies a connection with the Attorney Grievance Commission of Maryland." Id. According to Gaither, "Rule 7.2 requires the disclosure of the identity of lawyers advertising their services." Id. Gaither also said: "Again, your domain name, without disclosure of your identity, may be misleading in that a potential client may misinterpret your website to be either affiliated with the Attorney Grievance Commission or, although just briefly, may misinterpret it to be the official AGC website." Id. The letter concluded, id.: "[I]t is our position that your use of this domain name violates the MLRPC."
Plaintiff disagreed with Bar Counsel's position and provided Bar Counsel with a research memorandum supporting the propriety of his use of the domain name "AttorneyGrievance.com" for a website "designed to help lawyers faced with attorney grievances." See Ex. I to Complaint (ECF 1-9). In the cover letter to the memorandum, dated February 19, 2013, plaintiff stated: "If you continue to insist on the discontinuance of this domain, I shall sooner take the site down than run the risk of disciplinary action. However, I sincerely hope that, after reviewing the authorities cited, we may work together to resolve any remaining concerns." Id.
Mr. Gaither replied in a letter dated February 19, 2013. See Ex. J to Complaint (ECF 1-10). He stated, id.:
While I do appreciate your effort in putting forth your response, Bar Counsel maintains its position in this matter. Nevertheless, and in pursuit of fairness in this matter, without having to proceed in federal court, or through the disciplinary process... I would like to discuss with you an additional option that may appeal to both sides.
Although a telephone discussion appears to have taken place between Mr. Kramer and Mr. Gaither, the details of that discussion are not clear. However, on May 21, 2013, Mr. Gaither advised Mr. Kramer: "Bar Counsel is not inclined to accept your proposed changes. As a result, I am constrained to docket this matter unless you make the changes that we discussed in prior correspondence." Ex. K to Complaint, ECF 1-11.
Plaintiff continues to use the disputed domain name, but he has done so only with the consent of defendants, who agreed to "stay the investigation pending a decision" in this case. ECF 10-3. Plaintiff initiated this suit to obtain the declaratory relief described earlier.
Standard of Review
A. Motion to Dismiss
A motion pursuant to Rule 12(b)(6) constitutes an assertion by a defendant that, even if the facts alleged by the plaintiff are true, the complaint fails as a matter of law "to state a claim upon which relief can be granted." Whether a complaint states a claim for relief is assessed by reference to the pleading requirements of Fed.R.Civ.P. 8(a)(2). It provides that a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." The purpose of the rule is to provide the defendant with "fair notice" of the claim and the "grounds" for entitlement to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 n.3 (2007); see Ashcroft v. Iqbal, 556 U.S. 662 (2009).
In reviewing such a motion, a court "must accept as true all of the factual allegations contained in the complaint, '" and must "draw all reasonable inferences [from those facts] in favor of the plaintiff.'" E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011) (citations omitted); see Kendall v. Balcerzak, 650 F.3d 515, 522 (4th Cir.), cert. denied, ____ U.S. ____ , 132 S.Ct. 402 (2011); Monroe v. City of Charlottesville, 579 F.3d 380, 385-86 (4th Cir. 2009), cert. denied, 559 U.S. 992 (2010). However, a complaint that provides no more than "labels and conclusions, " or "a formulaic recitation of the elements of a cause of action, " is insufficient. Twombly, 550 U.S. at 555. Similarly, the defendant's motion will be granted if the "well-pleaded facts do not permit the court to infer more than the mere possibility of ...