MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2001-23
Candor to the Tribunal
You ask the Committee’s opinion concerning the following fact situation:
In the Fall 2000, you prepared a Separation Agreement on behalf of a husband in a domestic matter. The Agreement was prepared and submitted to the wife and signed by her without the assistance of counsel. On or about January 12, 2001, the wife filed a Petition for Protection from Domestic Violence in the Circuit Court alleging that the husband had threatened to remove the child from Maryland and had in the past made threats against the wife’s health and safety. The husband retained you and you proceeded to enter into negotiations with counsel for the wife although the wife’s attorney had not entered his appearance in the domestic violence case.
During the course of the morning before the protective hearing, the attorneys spoke in an attempt to resolve the matter. Counsel for the wife wanted to enter into discussions concerning visitation and the custody arrangement. You simply wanted to dispose of the Domestic Violence Petition and address the custody and visitation issues through a properly filed custody case. You indicate that in Harford County, custody and visitation cases are routinely referred to the Office of Family Court Services. The fact that the Court in a domestic violence case could not refer the matter to the Office of Family Court Services was discussed by counsel but the wife’s counsel indicated that there was no custody case filed and there would not be one filed immediately. After several rounds of discussions, the parties met for the Domestic Violence hearing in Circuit Court, and in chambers, as well as in Court, there was a discussion concerning the need to file a custody case for the proper referral to the Office of Family Court Services. Counsel for the wife had several opportunities to discuss the status of a filing and never disclosed that a custody case had been filed with the Clerk. The husband agreed to an Order which provided that he would not remove the child from Maryland and that he would not threaten the wife.
Once the Agreement was placed on the record, the parties adjourned to a conference room and settled the visitation issue. At that time, counsel for the wife served the husband a Complaint for Custody, which had been filed pro se by the wife. You assert that the wife’s counsel’s failure to disclose the existence of a custody case changed the course of the litigation and came about as a result of his failure to tell you that such a case had been filed approximately three (3) hours prior to the Domestic Violence hearing. You indicate your opinion that the Defendant had the right to know that he had been sued and that the wife’s counsel misrepresented (by omission) a material fact. You indicate that by the time the negotiation was over, the Circuit Court judge had left for the day and it, therefore, affected the course of the litigation. Counsel for the wife maintains that he did nothing improper or unethical despite being referred to Rule 3.3 of the Rules of Professional Conduct.
It is not within the province of the Committee on Ethics to opine on the ethical propriety of the actions of an attorney that have already been committed. It is also the Committee’s policy not to opine on matters that are pending before a court unless requested to do so by a presiding judge. Since your inquiry requests the Committee to render an opinion as to the propriety of another attorney’s actions that have already been committed and since the matters involved relate to a pending court case, the Committee must respectfully decline to render an opinion.
This Committee has, on numerous occasions, rendered opinions regarding Rule 3.3, Candor to the Tribunal, as well as Rule 4.1, Truthfulness in Statements to Others. These opinions are available for your review at most Circuit Court libraries as well as the msba.org website.
We are sorry that we could not be more responsive to your inquiry.
REFERENCES: Rule 3.3, 4.1