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Maryland Attorney Loses Law License for Criticizing Judges

Published on Mar 23, 2014 at 3:27 pm in General Blogs.

Disbarment – the loss of a law license – is an extreme sanction. Yet, in a recent case, Maryland’s top court rejected an attorney’s argument that his emailed criticism of several of Maryland’s government and legal officials was protected as free speech and upheld the decision to yank James Albert Frost’s law license.

An attorney’s knowingly false statements impugning the integrity and qualifications of several judges and public legal officers constitute a violation of the Maryland Lawyer’s Rules of Professional Conduct (MLRPC) and are not protected speech under the First Amendment to the United States Constitution, the Court of Appeals has ruled.

In addition, where an attorney repeatedly makes false allegations about the qualifications or integrity of “a judge, adjudicatory officer or public legal officer,” without any explanation or investigation into the allegations, he has demonstrated a lack of fitness to practice law and disbarment is an appropriate sanction, the state’s top court said.

But the decision was not unanimous. Judge Robert N. McDonald said he couldn’t agree with the majority decision because the primary purpose in an attorney discipline proceeding is to protect the public from inept lawyers, not to protect public officials from criticism. McDonald said he would suspend Frost for his failure to respond adequately to the AGC’s inquiry but was not comfortable disbarring him based on what appeared to be an expression of opinion.

Frost was admitted to the Maryland Bar in June 1972. He does not maintain an office for the practice of law. In April 2012, he wrote an e-mail to his ex-wife calling various Maryland state judges and officials, among other things, “lawless,” “corrupt,” “weak” and described one high-placed Maryland political leader as a “pretty boy politician.” Frost was apparently angry over what he described as an “illegal arrest” that resulted in his spending 87 days in county jail.

Frost emailed a copy of the communication to three attorneys, including George Meng, a Maryland personal injury lawyer. Frost did not know Meng. Meng responded by emailing Frost and asking why the email was sent to him. Meng also directed Frost to the rules for lawyers’ conduct and asked Frost to explain how the email was not a violation of those rules. Frost’s only response was to snail mail Meng a letter that did not respond to the question. Meng then filed a complaint with the Attorney Grievance Commission (AGC) of Maryland. The lawyer/investigator for the AGC sent a copy of the complaint to Frost and asked for a response in about 30 days. Frost said his statements were protected by the free speech clause of the First Amendment and, in a second letter, Frost scolded the AGC for getting involved. The AGC asked Frost to substantiate his claims. Although he sent copies of his letters to the members of the AGC, Frost did not provide a substantive response to the Bar Counsel’s requests for information.
In an evidentiary hearing for which Frost did not appear, the judge noted that Frost had made several statements knowing them to be false and with reckless disregard for their truth or falsity. The judge also found that Frost violated the rules when he failed to provide a substantive response to the AGC’s letters. The hearing judge found by “clear and convincing evidence” — a very high legal standard – that Frost’s actions were a violation of several sections of Maryland’s rules of conduct for attorneys.

Under those rules, an attorney is expected to respond to a lawful inquiry from the AGC, even if the attorney views the complaint as frivolous. In addition, another rule provides that a lawyer shall not make a statement that the lawyer knows to be false concerning the qualifications or integrity of a judge or a public legal officer or a candidate for election.

The AGC recommended disbarment for the unsubstantiated badmouthing of the judicial and political officials. Frost asked the court to dismiss the case, arguing that his statements were protected by the Free Speech Clause of the First Amendment and that there was insufficient service of process.

The decision then went up to the Court of Appeals. The court concluded that the facts were as established by the hearing judge and agreed with the hearing judge that Frost had violated the rules of professional conduct.

The court then turned its attention to the proper remedy for the violation. Sanctions are put into place to protect the public and the public’s confidence in the legal profession, not to punish attorneys, the court said. Sanctions protect the public when they prevent conduct and remove those who are unfit to continue in the practice of law. The court noted that it had recommended disbarment in a similar case.

The Maryland personal injury lawyers at Belsky, Weinberg & Horowitz are experienced in negligence, auto accident, medical malpractice and other types of legal matters. Contact us through our online contact form or call us at 410-234-0100 so that we can help you with your legal matters.

Court Keeps Rule That Denial of a Request to Change Venue Can Not Be Immediately Appealed

Published on Dec 23, 2013 at 3:10 pm in General Blogs.

Deciding the best place to try a case – forum selection – is important in many ways to a lawsuit. How long it takes for a case to conclude, the likelihood of victory and the amount of damages awarded by a judge or jury can be vastly different, depending on the county where the case is heard. As a result, lawyers on both sides of the case carefully scrutinize the places where a lawsuit can be filed so as to determine the best location for handling the case.

The fact that venue is important means that lawyers often maneuver for the best judicial forum for their clients even before the trial begins. In a case of first impression, Maryland’s Court of Special Appeals has clarified the law on the question of whether a trial court’s denial of a request to transfer a lawsuit before trial has begun can be immediately appealed.

Relying on what had been written about the issue in lawsuits dealing with other matters, the appeals court said it was persuaded to refuse Aleksey Kulikov’s attempt to immediately appeal the court order denying his request to take his case to another court.

Court Upholds Insurer’s Refusal to Cover Carport Collapse From Weight of 2010 Blizzard

Published on Dec 9, 2013 at 3:13 pm in General Blogs.

The winter of 2010 was memorable for the record amount of snow that it dumped on Maryland. For several days, Charm City businesses, courts and public transportation remained closed because of blizzard conditions. Many Maryland homeowners also remember the damage caused by the snow and ice – many roofs needed repair and some failed under the weight of the wintry weather.

An Anne Arundel couple’s attempt to have their insurer reimburse them under their homeowners’ insurance policy for the damage caused by the February 2010 collapse of their carport was stymied by Maryland’s Court of Special Appeals when it upheld their insurer’s refusal to pay their claim. State Farm Fire and Casualty Insurance (State Farm) denied the claim on the ground that the carport was not a building and that the policy only covered losses due to collapse of buildings.

Under more than a foot of snow and ice, Moira and Gregory Taylor’s carport collapsed. The Taylors had built the detached carport in 2007. Before construction, Mrs. Taylor had called her State Farm insurance agent to ask whether the carport would be covered under the policy. Taylor recollected that the agent said the carport would be covered. The 20×20 structure was built on an existing asphalt pad next to the house. It was not attached to the Taylor’s house. When the carport fell, it landed on the Taylors’ two cars, a snow blower and a power washer.

Court: Temporary Total Disability Payments Must Stop When Worker Achieves Maximum Medical Improvement

Published on Dec 6, 2013 at 3:14 pm in Workers Compensation.

Maximum medical improvement is an important concept in workers’ compensation cases. Maximum medical improvement (MMI) occurs when an injured employee has reached the maximum benefit that can be obtained from medical care. At that point, a doctor can evaluate any lingering impairment to determine the extent of the permanent injury to the employee’s body.

An injured worker’s recent attempt to change longstanding workers’ compensation laws to allow her to continue to receive temporary total disability benefits after achieving MMI has been rejected by Maryland’s Court of Special Appeals.

Court Dismisses Medical Malpractice Lawsuit, Ruling That Certificate Was Insufficient

Published on Oct 28, 2013 at 3:02 pm in General Blogs.

Once again the Maryland courts have thrown a medical malpractice case out of court because of perceived shortcomings in the certificate that is required before the case can go to court.

There are several hoops that plaintiffs must go through in order to file a medical malpractice claim in Maryland. Plaintiffs are required to first file a claim with Health Care Alternative Dispute Resolution Office (HCADRO). In order to weed out bad claims, plaintiffs are also required to file a certificate of a qualified expert attesting to a departure from the standard of care and attesting that the departure from that is the reason for the alleged injury. A certificate of merit must also be filed.

Critics say that the certificate requirement only makes it more difficult to bring medical malpractice cases to court and increases the cost of litigation. And, not all states require certificates. The Oklahoma courts ruled in June that the certificate requirement was unconstitutional, impeded access to the courts and added to the cost of litigation.

Insurer’s Refusal to Pay Accidental Death Benefits After Man’s Colon is Perforated During Surgery Upheld by Court

Published on Sep 30, 2013 at 2:58 pm in General Blogs.

A death seven hours after a colon perforation would seem to qualify as accidental. But, a woman’s quest to obtain $67,000 in accidental death benefits under her husband’s insurance policy has been stymied by her insurer ruling against her — explaining that perforation is a known risk of colonoscopies — and two federal courts deciding that the insurance company had not abused its discretion in making the decision.

Sherri Thomas’ husband, Duane Middleton, underwent a partial colonoscopy in February 2010. During the medical procedure, the cecum – lining — of his colon was unintentionally perforated, resulting in his death a short time later.

The amended death certificate listed the manner of death as an accident and the cause of death as acute peritonitis due to perforation of the cecum during a colonoscopy, with hepatitis C, cirrhosis of the liver, hypertension, and chronic renal insufficiency as other significant conditions contributing to his death.

In Lawsuit Over Birth Injuries, Evidence Alleging Midwife’s Negligence Should Have Been Allowed

Published on Aug 29, 2013 at 2:50 pm in General Blogs.

A Baltimore-based hospital should have been allowed to present evidence of the nurse-midwife standard of care and the role that violation of that standard might have caused in a medical malpractice case involving a baby born with cerebral palsy and other health issues, a Maryland appeals court recently ruled.

In Enzo Martinez and others v. Johns Hopkins Hospital, Maryland’s intermediate appellate court reversed the Circuit Court for Baltimore City court and sent the case back for a new trial, ruling that The Johns Hopkins Hospital (JHU) should have been allowed to present testimony about the role the midwife used by Rebecca Fielding and Enso Martinez played in their son Enzo Martinez’s injuries.

Fielding went into labor with Enzo on March 25, 2010. She had decided to have a natural birth at home with a woman who was a registered nurse-midwife and a doula. A doula is a labor coach who provides support for a woman in labor. Unfortunately, the baby was not in the proper position, which often leads to the infant not being able to progress through the birth canal. In an attempt to expedite delivery, the midwife took several actions – fundal pressure, intramuscular injections of Pitocin and an episiotomy — which, did not work. Eventually the midwife decided that Fielding should go to the hospital.

Court Declines to Dismiss Medical Malpractice Lawsuit over Allegations of Unnecessary Heart Surgeries

Published on Jul 14, 2013 at 2:47 pm in General Blogs.

A Maryland court has refused to throw out a medical malpractice lawsuit brought by a couple who were told by a local hospital that the husband’s multiple stent surgeries were necessary and then, who received a letter from the Department of Justice – which was investigating the doctor for criminal healthcare fraud – telling the man that the surgeries were not necessary.

Defendants Peninsula Regional Medical Center and Dr. John McLean had asked the court to dismiss the lawsuit, arguing that Julian Peacock had waited too long to bring his lawsuit. Maryland’s federal trial court disagreed.

“Reading the complaint in the light most favorable to the plaintiffs, the court finds that dismissal of the Peacocks’ claims on limitations grounds would be premature at this stage of the litigation. Maryland courts have repeatedly cautioned that whether a defendant fraudulently concealed a cause of action and whether a plaintiff exercised ordinary diligence in investigating a claim are usually questions for the jury,” the United States District Court for the District of Maryland said in Julian Peacock et al. v. Peninsula Regional Medical Center, et al.

Oklahoma Court Rules that Professional Certificate Requirement is Unconstitutional

Published on Jun 23, 2013 at 2:38 pm in General Blogs.

The Supreme Court of Oklahoma has struck down the requirement that an affidavit of merit must be filed in legal actions for professional negligence.

Under Title 12 O.S. 2011 Section 19, the plaintiff must attach an expert’s affidavit in civil actions for professional negligence. The Sooner state’s top court held in the June 4 ruling that the statute is a special law that violates the Oklahoma constitution and that it also creates an unconstitutional financial burden on access to the courts in violation of the state’s constitution.

“It is undisputed that during the course of litigation the plaintiffs will be required to prove their case, as any other cause requires. They just do not have to provide expert testimony before it can be filed,” the court said in Timothy Wall v. John S. Marouk, D.O.

Maryland’s “Good Samaritan Act” Does Not Shield Commercial Ambulance Companies from Medical Malpractice Lawsuits

Published on Jun 9, 2013 at 2:41 pm in Medical Malpractice.

Commercial ambulances are not immune from liability for negligence under Maryland’s “Good Samaritan Act,” the state’s top court has ruled.

The Good Samaritan Act provides immunity from lawsuits for ordinary negligence for volunteer fire departments, ambulance and rescue squads.

Maryland’s “Fire and Rescue Act” provides immunity from lawsuits for fire and rescue companies for ordinary negligence for “any act or omission in the course of performing their duties.”

TransCare Maryland, Inc. and others v. Bryson Murray and othersdealt with the question whether one or both of the statutes relieved a commercial ambulance company of liability for ordinary negligence that allegedly occurred during the transfer of a patient between medical facilities. “We hold that they do not,” the Court of Appeals concluded.

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