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Attorney Grievance Commission v. Clevenger

Court of Appeals of Maryland

June 21, 2018

ATTORNEY GRIEVANCE COMMISSION, et al.
v.
TY CLEVENGER

          Argued: March 2, 2018

          Circuit Court for Anne Arundel County Case No. C-02-CV-16-003620

          Barbera, C.J., Greene Adkins McDonald Watts Hotten Getty, JJ.

          OPINION

          BARBERA, C. JUDGE

         Jurisdiction is not a flashy or glamorous area of the law. What it lacks in luster, however, it makes up for in fundamental importance in our legal system. As a threshold issue, one of significant constitutional dimension, jurisdiction must be addressed before a cause of action may proceed.

         This case began when the Appellee, Ty Clevenger, submitted to the Attorney Grievance Commission of Maryland a complaint alleging professional misconduct by three Maryland-barred attorneys while they were representing former Secretary of State Hillary Clinton. The Office of Bar Counsel thereafter informed Mr. Clevenger that it would not undertake an investigation of the allegations in his complaint because he had no personal knowledge of the allegations presented and was not an aggrieved party or client.

         Mr. Clevenger filed a petition for writ of mandamus in the Circuit Court for Anne Arundel County, seeking to compel Bar Counsel to open an investigation into the alleged misconduct of the named attorneys. The Attorney Grievance Commission and Bar Counsel (collectively, "the Commission") filed motions to dismiss the petition and to seal the case to protect the confidentiality of the complaint and responses. Mr. Clevenger opposed both motions. The circuit court granted the motion to seal and denied the Commission's motion to dismiss the petition. Following a hearing on the merits of the mandamus petition, the circuit court ordered the Commission to investigate the allegations presented in the complaint. The circuit court also vacated its previous order sealing the case.

         We granted a writ of certiorari to determine whether, before reaching the merits of the case, the circuit court had jurisdiction to entertain the petition for writ of mandamus. For the reasons that follow, we hold that because this Court has original and exclusive jurisdiction over attorney disciplinary matters, of which Bar Counsel's decision to investigate a complaint is a part, the circuit court was without jurisdiction to consider and grant the mandamus petition and to order Bar Counsel to conduct an investigation of the allegations in Mr. Clevenger's complaint.

         I. Facts and Procedural History

         A. The Initial Complaints

         Mr. Clevenger is a Texas-barred attorney residing in New York. On September 1, 2016, he sent a letter to the Attorney Grievance Commission of Maryland. In the letter, he alleged that three Maryland attorneys who had worked for former Secretary of State Clinton had engaged in inappropriate conduct that violated the Maryland Attorneys' Rules of Professional Conduct. Specifically, Mr. Clevenger alleged that the attorneys violated Rules 19-308.3, 19-303.4(a), and 19-308.4(c) by destroying evidence related to ongoing federal investigations, failing to report the misconduct of the other attorneys, and engaging in conduct involving dishonesty. The allegations appeared to Bar Counsel to be based solely on information derived from publicly available sources.

         On September 7, 2016, Mr. Clevenger sent a second letter, supplementing his complaint with additional information that he obtained from publicly available sources and alleging a further rule violation by one of the attorneys. Nearly three weeks later, Deputy Bar Counsel Raymond A. Hein sent a letter to Mr. Clevenger declining to conduct an investigation. Mr. Hein's letter provided the following:

It appears that you have no personal knowledge of the allegations presented in your correspondence, nor are you a personally aggrieved client or party possessing material information that would assist this office in reviewing such allegations. Under these circumstances, we decline to conduct an investigation of the named attorneys with you designated as the complainant.
The Maryland Rules grant Bar Counsel authority to open a complaint on Bar Counsel's own initiative. Pursuant to Maryland Rule 19-707(b), the records of an investigation by Bar Counsel, including the existence and content of any complaint or response, are confidential. In accordance with that rule, we are unable to provide you with additional information.

         By letter dated October 17, 2016, Mr. Clevenger replied, asserting that Bar Counsel's actions failed to comply with Maryland law because, in his view, Bar Counsel was required by rule to conduct an investigation. Mr. Clevenger also stated his belief that he had grounds to seek mandamus relief from the Court of Appeals. On October 24, 2016, ...


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