Attorney Grievance Comm'n v. Pierre

Attorney Grievance Commission of Maryland v. Marylin Pierre, AG No. 42, September Term, 2021. ATTORNEY DISCIPLINE — SANCTION — REPRIMAND The Court issued a reprimand to an attorney who (1) made a knowing and intentional misrepresentation that impugned the integrity of sitting judges during an election campaign and (2) made a knowing and intentional misrepresentation by omission of information on an out-of-state bar application. The attorney’s conduct violated Maryland Attorneys’ Rules of Professional Conduct 8.2(a) (Judicial and Legal Officials) and 8.4(a), (c), and (d) (Misconduct), as well as New York Disciplinary Rules 1-101 (Maintaining Integrity and Competence of the Legal Profession), and 1-102 (Misconduct). Circuit Court for Anne Arundel County Case No. C-02-CV-21-001655 Argued: February 2, 2023 IN THE SUPREME COURT OF MARYLAND* AG No. 42 September Term, 2021 ______________________________________ ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. MARYLIN PIERRE ______________________________________ Fader, C.J., Watts, Hotten, Booth, Biran, Eaves, Battaglia, Lynne, A.

(Senior Justice, Specially Assigned), JJ. ______________________________________ Opinion by Fader, C.J. Battaglia, J., concurs. Pursuant to the Maryland Uniform Electronic Legal Watts, J., concurs and dissents. Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. ______________________________________ 2024.04.26 11:06:08 -04'00' Filed: August 16, 2023 Gregory Hilton, Clerk * At the November 8, 2022 general election, the voters of Maryland ratified a constitutional amendment changing the name of the Court of Appeals of Maryland to the Supreme Court of Maryland. The name change took effect on December 14, 2022.

This Attorney Grievance Commission of Maryland proceeding concerns the alleged professional misconduct of Marylin Pierre, the respondent and a member of the Bar of this State. It also concerns an overlay of factors that significantly complicates our review of Ms. Pierre’s alleged violations of the Maryland Attorneys’ Rules of Professional Conduct (“MARPC”). That overlay arises from the circumstances in which the investigation of Ms. Pierre began and the absence of provisions in our rules to guide investigations arising in such circumstances. The core allegations against Ms. Pierre arose from accusations made in an August 2020 campaign email.

The email was sent by the campaign manager for a slate of four sitting judges against whom Ms. Pierre was running for a seat on the Circuit Court for Montgomery County. Sent just over two months before election day, the email was directed to Montgomery County attorneys and identified an “Urgent Need for Action.” The email alleged, among other things, that Ms. Pierre’s campaign had made false statements about the sitting judges, that Ms. Pierre had misstated her professional qualifications, and that she had engaged in unprofessional conduct in connection with a lawsuit more than two decades earlier. Among the recipients of the campaign email was then-Bar Counsel. In the absence of any rules or procedures governing the investigation of allegations of misconduct arising in the midst of a judicial election, Bar Counsel immediately opened an investigation, informed the sitting judges’ campaign manager of the existence of the investigation, and sought additional information.

Soon thereafter, less than two months before the election, Bar Counsel sent Ms. Pierre a letter summarizing many of the allegations leveled by her rivals’ campaign and insisted that Ms. Pierre respond to them in writing, in many cases by explaining and justifying statements made by her or her campaign, within two weeks. The judicial electoral context in which the MARPC violations at the heart of this matter arose, combined with the timing of the investigation, presents two challenges for our review of those violations. First, any case in which alleged violations arise from speech that is related to an election or that is critical of judges presents First Amendment concerns. This case involves both.

Second, the initiation of an investigation into an attorney challenging a slate of sitting judges at a sensitive point in the campaign gives rise to a risk that the investigation will be perceived as an attempt to interfere in the election to favor the sitting judges. In that circumstance, absent a need to proceed expeditiously, the good faith of Bar Counsel—which is something we do not question here—may be insufficient to avoid undermining public confidence in the integrity of the attorney disciplinary process. Both of those challenges play prominently in our review of the charges against Ms. Pierre and our consideration of the appropriate sanction. After completing its investigation, the Commission, acting through Bar Counsel, filed a petition for disciplinary or remedial action in which it alleged that Ms. Pierre violated the MARPC and the New York Code of Professional Responsibility Disciplinary Rules (“NYDR”) as a result of her: (1) misleading or false statements about the sitting judges in her 2020 campaign materials; (2) willful misrepresentations about her background on her 1999 Application for Admission to the Bar of New York (“New York Bar Application”); (3) willful misrepresentations about her background and career experience on her applications for various judgeships in Montgomery County between 2 2012 and 2017; and (4) false statements under oath and failure to timely respond to Bar Counsel’s investigatory demands.

The Commission asserted that Ms. Pierre’s conduct violated MARPC 8.1 (Bar Admission and Disciplinary Matters) (Rule 19-308.1), MARPC 8.2 (Judicial and Legal Officials) (Rule 19-308.2), MARPC 8.4 (Misconduct) (Rule 19-308.4),1 NYDR 1-101 (Maintaining Integrity and Competence of the Legal Profession), and NYDR 1-102 (Misconduct).2 The assigned hearing judge found by clear and convincing evidence that Ms. Pierre had violated each MARPC and NYDR alleged, although the hearing judge rejected several of the grounds on which Bar Counsel had relied for those violations. The hearing judge also determined the existence of seven aggravating and four mitigating factors. Bar Counsel filed no exceptions. Ms. Pierre filed exceptions that, in effect, challenge all of the hearing judge’s findings of fact and conclusions of law that were adverse to her.

We sustain many of Ms. Pierre’s exceptions to the hearing judge’s findings of fact but overrule those exceptions concerning two false statements she made about the sitting judges and a misrepresentation on her New York Bar Application. We sustain Ms. Pierre’s exceptions to the hearing judge’s conclusions of law that she violated MARPC 1 Effective July 1, 2016, the Maryland Lawyers’ Rules of Professional Conduct, which employed the numbering format of the American Bar Association Model Rules, were renamed the MARPC and recodified without substantive modification in Title 19, Chapter 300 of the Maryland Rules. For ease of reference and comparison with our prior opinions and those of other courts, we will refer to the MARPC rules using the numbering of the model rules, as permitted by Rule 19-300.1(22) and as identified in the paragraph to which this footnote is appended. 2 The Commission charged Ms. Pierre under the NYDR that were in place in 1999, which was the year Ms. Pierre engaged in the conduct alleged to have violated those rules. 3 8.1(a) and (b) and 8.4(b). We overrule her exceptions to the hearing judge’s conclusions of law that she violated MARPC 8.2(a), MARPC 8.4(a), (c), and (d), and NYDR 1-101 and 1-102.

Bar Counsel recommended the sanction of disbarment, while Ms. Pierre recommended imposing no sanction. Given the overlay of circumstances mentioned above, and without intending to diminish the seriousness of the misconduct in which Ms. Pierre engaged, we will issue a reprimand. BACKGROUND A. Context The 2020 election for four seats on the Circuit Court for Montgomery County is the context underlying both the initiation of the investigation that resulted in this proceeding and several of the alleged violations. We therefore begin by discussing four considerations arising from that context that are important to our analysis.

First, any investigation into a candidate for elected office that is undertaken at a sensitive point in the electoral process presents risks that should be avoided or minimized to the extent possible.3 Few things in our form of government rise to the level of importance of the State’s interest in promoting faith in the integrity of the electoral process by which citizens choose their elected officials. Any perception that a government actor has attempted to exert undue influence on the outcome of an election risks undermining 3 Our comments and analysis throughout this opinion are confined to the activities of the Commission and Bar Counsel, and specifically are not intended to encompass the activities of entities whose responsibilities include oversight of the electoral process. 4 that faith. Government investigations of candidates for office during the heat of a campaign—especially, but not only, if they become a matter of public knowledge before the election—risk either: (1) an appearance of an attempt to exert influence on the election; or (2) actually affecting the outcome, whether intended or not.4 To avoid the potentially corrosive or otherwise unintended effects that could accompany the pursuit of an investigation during the heat of an election, future investigations by Bar Counsel into alleged misconduct by a candidate in a judicial election should generally be postponed until after the election unless: (1) doing so would put an individual or the public at risk from past or potential future misconduct that is within the purview of the Commission and that could be avoided by prompt investigation; or (2) prompt investigation is necessary to preserve evidence. In either case, Bar Counsel should generally confine pre-election activities to what is necessary to satisfy the exigency.

Although our own rules do not yet contain such guidance,5 other investigative agencies 4 See, e.g., Dennis Halcoussis, Anton D. Lowenberg & G. Michael Phillips, An Empirical Test of the Comey Effect on the 2016 Presidential Election, 101 Soc. Sci. Q. 161, 168-69 (2020) (concluding that “[a]nnouncements by the FBI regarding investigations of Clinton’s emails . . . did appear to have an effect” on the candidates’ electoral chances); Nathaniel Rakich, How Trump’s Indictment Could Affect the 2024 Election, FiveThirtyEight (Mar. 31, 2023), https://fivethirtyeight.com/features/trump-indictment- 2024-election/ (last accessed July 26, 2023), archived at https://perma.cc/QY37-5NDE. 5 Following the issuance of this opinion, we will refer to the Standing Committee on the Rules of Practice and Procedure consideration of adopting a rule establishing procedures for addressing alleged misconduct violations that arise during the pendency of election campaigns generally and campaigns for judicial offices specifically. 5 have recognized in rule or practice that such investigations should be delayed, postponed, or at least not disclosed during the run-up to an election.6 The sensitivity of the timing of such investigations is recognized in memoranda distributed to employees of the United States Department of Justice. In a 2022 memorandum, Attorney General Merrick Garland stated that all Department employees “must be particularly sensitive to safeguarding the Department’s reputation for fairness, neutrality, and nonpartisanship.”7 For that reason, the Attorney General directed that any 6 For example, Michigan Rules governing judicial disciplinary procedures state that “[i]f a request for investigation is filed less than 90 days before an election in which the respondent is a candidate” and is not frivolous, the investigating commission “shall postpone its investigation until after the election” unless two-thirds of the commission members determine “the public interest and the interests of justice require otherwise.” Mich.

Ct. R. 9.220(C). On the federal level, the United States Department of Justice has an unwritten but widely acknowledged general practice of delaying public disclosure of investigative steps related to electoral matters or a candidate for office within 60 days of a primary or general election. See U.S. Dep’t of Just., Off. of the Inspector Gen., A Review of Various Actions by the Federal Bureau of Investigation and Department of Justice in Advance of the 2016 Election 16-18 (2018) (“[T]here is a general admonition that politics should play no role in investigative decisions, and that taking investigative steps to impact an election is inconsistent with the Department’s mission and violates the principles of federal prosecution.”); Federal Prosecution of Election Offenses 8-9 (Richard C. Pilger ed., 8th ed. 2017) (discussing Department of Justice procedure when investigating an individual in relation to election fraud, noting that “any criminal investigation by the Department must be conducted in a way that minimizes the likelihood that the investigation itself may become a factor in the election. . . . Accordingly, it is the general policy of the Department not to conduct overt investigations . . . until after the outcome of the election allegedly affected by the fraud is certified.”). 7 Election Year Sensitivities Memorandum from the Attorney General to All Department of Justice Employees (May 25, 2022), available at https://www.documentcloud.org/documents/22089098-attorney-general-memorandum- election-year-sensitivities, archived at https://perma.cc/P9VR-QD98.

The 2022 memorandum is substantially similar in relevant part to a 2012 memorandum from Attorney General Eric Holder. See, e.g., Election Year Sensitivities Memorandum from the Attorney General to All Department of Justice Employees (Mar. 9, 2012), available at 6 employee facing “an issue, or the appearance of an issue, regarding the timing of statements, investigative steps, charges, or other actions near the time of a primary or general election [should] contact the Public Integrity Section of the Criminal Division . . . for further guidance.”8 In February 2020, then-Attorney General William Barr similarly warned of the need to “be sensitive to safeguarding the Department’s reputation for fairness, neutrality, and nonpartisanship,” and imposed special requirements for the opening of any investigation into a candidate for federal office.9 His memorandum announcing the requirements recognized that [i]n certain cases, the existence of a federal criminal or counter- intelligence investigation, if it becomes known to the public, may have unintended effects on our elections. For this reason, the Department has long recognized that it must exercise particular care regarding sensitive investigations and prosecutions that relate to political candidates, campaigns, and other politically sensitive individuals and organizations—especially in an election year.[10] Second, election-related speech is at the very heart of the First Amendment to the United States Constitution and Article 40 of the Maryland Declaration of Rights.11 This https://www.justice.gov/sites/default/files/oip/legacy/2014/07/23/ag-memo-election-year- sensitivities.pdf, archived at https://perma.cc/7PP2-TN8X. 8 Id. 9 Additional Requirements for the Opening of Certain Sensitive Investigations (Feb. 5, 2020), available at https://docs.house.gov/meetings/JU/JU00/20200624/110836/HHRG-116- JU00-20200624-SD009-U19.pdf, archived at https://perma.cc/553S-B85D. 10 Id. 11 The First Amendment to the United States Constitution provides in relevant part: “Congress shall make no law . . . abridging the freedom of speech[.]” Article 40 of the Maryland Declaration of Rights provides in relevant part: “[T]hat every citizen of the State ought to be allowed to speak, write and publish [that citizen’s] sentiments on all subjects, being responsible for the abuse of that privilege.” 7 Court has acknowledged that “‘speech about the qualifications of candidates for public office,’ including judicial candidates, is ‘at the core of our First Amendment freedoms.’” Attorney Grievance Comm’n v. Stanalonis, 445 Md. 129, 140 (2015) (quoting Republican Party of Minn. v. White, 536 U.S. 765, 774 (2002)). Such political speech is entitled to “the highest level of First Amendment protection.” Stanalonis, 445 Md. at 141 ; see also McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 346-47 (1995) (“Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution.

The First Amendment affords the broadest protection to such political expression[.]” (quoting Buckley v. Valeo, 424 U.S. 1, 14-15 (1976)). Third, speech that is critical of judges is also subject to robust free speech protection. See Attorney Grievance Comm’n v. Frost, 437 Md. 245, 265-68 (2014). As a result, for such speech to be actionable as a violation of the MARPC, it must meet the high standard set forth by the United States Supreme Court in New York Times v. Sullivan, 376 U.S. 254, 279-80 (1964), which is to say that it must be false and must have been made either knowing it to be false or with reckless disregard for its truth or falsity.

Frost, 437 Md. at 263 . Fourth, given Bar Counsel’s close association with the Judiciary, special considerations apply to investigations by Bar Counsel into the conduct of a candidate in a judicial election during the pendency of the election. This Court is ultimately responsible for the regulation of the practice of law in the State. Attorney Grievance Comm’n v. Clevenger, 459 Md. 481, 492 (2018) (“Our power to issue rules concerning practice and 8 procedure in Maryland courts derives from the Maryland Constitution, and the General Assembly has recognized our broad authority to regulate the practice of law[.]” (citations omitted)).

In furtherance of that responsibility, we, by Rule, have established the Attorney Grievance Commission and the position of Bar Counsel. The Commission, established by Rule 19-702, is comprised of 12 members, including nine attorneys and three non- attorneys, all appointed by this Court for three-year terms and subject to removal by this Court at any time. Md. Rule 19-702(a), (b), (f). Among other duties, the Commission appoints Bar Counsel, subject to approval from this Court; supervises Bar Counsel’s activities; authorizes Bar Counsel’s employment of attorneys, investigators, and other staff; approves or rejects Bar Counsel’s recommendations concerning actions to take after investigating complaints, including dismissal, reprimand, or the filing of a petition for disciplinary or remedial action; and prepares an annual budget for the disciplinary fund subject to this Court’s approval.

Md. Rule 19-702(h). The position of Bar Counsel is established by Rule 19-703. Bar Counsel is appointed by the Commission, subject to this Court’s approval, and serves at the pleasure of the Commission. Md. Rule 19-703(a).

Among other duties, Bar Counsel is charged with investigating professional misconduct or incapacity by attorneys in the State; filing statements of charges and prosecuting all disciplinary and remedial proceedings; filing petitions for disciplinary and remedial actions in the Commission’s name; monitoring and enforcing compliance with this Court’s disciplinary and remedial orders; and initiating, intervening in, and prosecuting actions to enjoin the unauthorized practice of law. Md. Rule 19-703(b). 9 The roles and activities of the Commission and Bar Counsel with respect to all aspects of attorney discipline investigations, proceedings, and dispositions are further established by Rules promulgated by this Court. See Md. Rules 19-701–19-752. Although the Commission and Bar Counsel, by design, function independently of this Court, they play a critical role in carrying out our responsibility to regulate the legal profession in Maryland by, as set forth in the Commission’s mission statement, “protecting the public and maintaining the integrity of the legal profession.”12 The Commission’s and Bar Counsel’s close connection to the Judiciary advise caution in taking actions against a candidate who is challenging sitting judges to avoid the possibility that members of the public may perceive such actions as motivated by a desire to support the sitting judges.13 With that context, we turn to the facts of the matter before us.

B. Procedural History In the November 2020 general election, five candidates were vying for four seats on the Circuit Court for Montgomery County. Four of the candidates, Judges Bibi Berry, David Boynton, Christopher Fogleman, and Michael McAuliffe, were sitting judges who had been appointed by Governor Lawrence J. Hogan, Jr. following their formal vetting and nomination by the Montgomery County Judicial Nominating Commission. Exec. Order. 12 See Attorney Grievance Commission of Maryland, Administrative and Procedural Guidelines, Updated Nov. 23, 2021, available at: https://www.courts.state.md.us/sites/default/files/import/attygrievance/docs/administrativ eprocedures.pdf, archived at https://perma.cc/6UXZ-EWEE. 13 In discussing the need to avoid the possibility that members of the public may perceive an investigation or charges pursued by Bar Counsel as improperly motivated, we do not mean to suggest that the actions of Bar Counsel in this case were improperly motivated. 10 No. 01.01.2019.05.

The four sitting judges were running together as a unified slate, with a campaign chaired by J. Stephen McAuliffe III. One of the challengers was Ms. Pierre, who had been unsuccessful in several attempts at making it through the nominating commission and was attempting to win a seat by direct election, as permitted by the Maryland Constitution. Md. Const. art. IV, §§ 3, 5.

On August 28, 2020, just over two months before the November 3 election, Mr. McAuliffe sent a campaign email to attorneys in Montgomery County with the subject line, “Lawyers and the Urgent Need for Action.” The email had a picture of the four sitting judges, referenced an earlier email promoting the qualifications of the sitting judges and the rigorous process by which they were selected, and provided “some facts about the challenger, Ms. Marylin Pierre.” Mr. McAuliffe provided some factual information to refute claims that Ms. Pierre had made about bias in the judicial selection process and diversity on the bench, and then made a series of allegations against Ms. Pierre under the headings “Deliberately Inflating Her Qualifications” and “Unprofessional Conduct as an Attorney.” Among the allegations were that Ms. Pierre (1) had claimed to have courtroom experience that she did not have, (2) had made several statements during the campaign that were “untrue and misleading to voters,” and (3) in the mid-1990s, had evaded service of process in a case and was taken into custody on a body attachment when she did not appear in court. One of the recipients of Mr. McAuliffe’s email was Bar Counsel, who received it as a member of the Montgomery County Bar Association. Mr. McAuliffe’s email was sent at 3:48pm on Friday, August 28. At 4:47pm, Bar Counsel replied.

Bar Counsel 11 (1) informed Mr. McAuliffe that she had opened an investigation to determine whether Ms. Pierre had violated any rules of professional conduct, (2) asked Mr. McAuliffe to provide “any information or documentation in [his] possession that support[ed] any allegation that Ms. Pierre made false or misleading statements,” and (3) asked him to identify individuals with personal knowledge of the allegations in his email. Bar Counsel informed Mr. McAuliffe that the investigation was confidential and asked that he maintain that confidentiality. Mr. McAuliffe responded 30 minutes later thanking Bar Counsel for the email response “and for opening an investigation.” He agreed to maintain the confidentiality of the investigation, but asked if he could inform the individual sitting judges about it, and offered to discuss the matter by phone. Subsequent correspondence references a telephone conversation that evening.

On Monday, August 31, the next business day, Mr. McAuliffe responded by providing the information Bar Counsel had requested. On September 7, less than two months before the election, Bar Counsel sent Ms. Pierre a letter stating that a complaint had been docketed in Bar Counsel’s name based on Mr. McAuliffe’s email and that “an investigation will be conducted[.]” In the letter, Bar Counsel asked that Ms. Pierre respond in writing to 12 different inquiries and provide documentation to support her responses. For example, after identifying two statements Ms. Pierre allegedly made about the consequences of voting for the sitting judges, Bar Counsel wrote: 12 Please provide all information and documentation to support your statement that any firm would control “Justice” in the Circuit Court for Montgomery County. Please also state whether your tweets should be read as an accusation that the sitting judges are, or will be, in violation of Rule 18-102.4(b) or (c).

And after identifying tweets by Ms. Pierre sent in the aftermath of the death of George Floyd, Bar Counsel wrote: Please state with specificity what you contend the public could expect to “hear” from sitting judges regarding the death of George Floyd and associated proceedings that would not violate Rule 18-102.10. and: If you contend that an arrestee can be “presumed of committing murder” and that the burden of proof is on a criminal defendant to “prove that they are not guilty of contributory negligence and involuntary manslaughter” are accurate statements of the law, please provide all authority to support your position. Bar Counsel requested a response by September 21. Ms. Pierre put her malpractice carrier, CNA, on notice of the investigation. CNA opened a claim file on September 15, 2020 identifying “J McAuliffe III” as the claimant against Ms. Pierre.

Ms. Pierre did not respond to Bar Counsel’s letter by September 21. When Bar Counsel followed up the next day, Ms. Pierre requested additional time to see if her carrier would retain counsel for her. In several subsequent email exchanges, Bar Counsel continued to request a response to the original letter, while Ms. Pierre said she was still waiting for an answer from CNA and did not want to respond without an attorney. Bar Counsel also sought dates to take Ms. Pierre’s statement under oath, to which Ms. Pierre did not respond.

Ms. Pierre, through counsel (not retained by CNA), ultimately 13 responded to Bar Counsel’s September 7 letter on December 4 and sat for a statement under oath on December 18. In November 2021, after completing the investigation, Bar Counsel filed a petition for disciplinary or remedial action. A four-day hearing was scheduled to begin in April 2022. However, this Court granted Ms. Pierre’s emergency motion to stay the proceedings to consider questions related to discovery disputes and the effect of recent changes to the Rules.

We lifted the stay on May 11, 2022 after changes to Rule 19-726 rendered the discovery issue moot. After a four-day merits hearing in September 2022, the hearing judge issued a written opinion containing findings of fact and conclusions of law. C. The Hearing Judge’s Findings of Fact The hearing judge’s findings of fact address five categories of alleged misconduct by Ms. Pierre: (1) misrepresentations about sitting judges; (2) misrepresentations about her own experience; (3) misrepresentations about events that transpired in a lawsuit against her in the mid-1990s; (4) misrepresentations about her employment in the early 1990s at a company called Network Engineering, Inc.; and (5) her misrepresentations to Bar Counsel and failure to cooperate with the investigation. We address each category in turn. 1.

Misrepresentations About Sitting Judges The Commission alleged misconduct associated with three statements Ms. Pierre made about sitting judges during the campaign. First, on May 20, 2020, Ms. Pierre’s campaign Twitter account posted: Also there are some sitting judges who are only English speakers send people to jail because they could not speak English and discriminate 14 against people based on skin color, country of origins, religious backgrounds or sexual orientations. Moco is cosmopolitan & need more! At the hearing, Ms. Pierre acknowledged that the statement was false.

She testified that the impetus for the tweet was her mistaken recollection of Child in Need of Assistance (“CINA”) hearings in 2004 and 2005 during which she had misremembered a circuit court judge threatening her client with contempt if the client did not learn English. In fact, the judge—who was no longer an active judge at the time of the tweet—had ordered Ms. Pierre’s non-English speaking client to attend English class as part of a reunification plan, and the judge did not threaten or take any disciplinary action when the client failed to attend the class. Ms. Pierre also argued that she did not send out the tweet, although she acknowledged that her campaign did and that she supplied the information on which it was based. The hearing judge found that Ms. Pierre authorized the tweet, that it was false, and that Ms. Pierre knew it was false or acted with reckless disregard at the time.

Second, on May 23, 2020, Ms. Pierre’s campaign Twitter account posted: The Sitting Judges are somewhat diverse in that they are black, Asian, gay, and straight, and men and women. But they are not really diverse. They are an in-group. Most of them have worked at the same law firm, go to the same church, and are related by marriage.

At the hearing, Mr. McAuliffe testified based on personal knowledge that the statement that “[m]ost” of the sitting judges worked at the same law firm, went to the same church, and were related by marriage was false, both as to the four sitting judges running for reelection and as to the bench as a whole. As with the first tweet, Ms. Pierre claimed that she had not posted it herself. Unlike with the first tweet, Ms. Pierre asserted that this statement was an accurate reflection of her opinion or belief. The only support she 15 identified for the statement was: (1) a claim that a member of the bar told her that four judges on the bench attended the same church; and (2) that she had overheard someone else say that one of the sitting judges was related by marriage to another.14 The hearing judge found that Ms. Pierre was responsible for the tweet, that it was false, and that Ms. Pierre acted with reckless disregard at the time.

Ms. Pierre also introduced an exhibit at the hearing, Respondent’s Exhibit P, 14 which purported to show connections by law firm or familial relationship among current and former members of the bench from Montgomery County. Exhibit P identified: • Two judges as having worked at Miles & Stockbridge, Rachel McGuckian and Rosalyn Tang. However, although both were judges at the time of the 2022 hearing, neither had been appointed at the time of the campaign tweet and only one was ever on the circuit court. • Three judges and the spouses of two other judges as having worked at Debelius, Clifford, Debelius, Crawford & Bonifant. However, of the three judges, one (John Debelius) had retired from the circuit court in 2017 and a second (Gary Crawford), who was never a circuit court judge, retired from the District Court of Maryland in 2011. • Two judges as having worked at Paley Rothman.

However, only one of those judges had been appointed at the time Ms. Pierre sent her tweet. The other, Kathleen Dumais, was not appointed until December 2021. • Two judges as having worked for the law firm Ethridge, Quinn, Kemp, McAuliffe, Rowan & Hartinger. However, one of those judges, again Judge Dumais, was not appointed until December 2021. • Eight judges as “Related.” However, the only purported relationship identified among active judges on the circuit court bench was between Judges Christopher Fogleman and John Maloney, who the exhibit claimed were “[r]elated by marriage per sources at Judge Fogleman’s investiture.” Exhibit P thus (1) did not identify a single law firm in common between even two active judges at the time of Ms. Pierre’s tweet, and (2) identified, based on an anonymous source, only one familial relationship between two sitting judges. (Information about the dates of service of the judges mentioned above can be found on the Maryland Manual On- line, available at https://msa.maryland.gov/msa/mdmanual/html/mmtoc.html. 16 Third, Ms. Pierre’s campaign made several references to a statement Judge Berry had made at a campaign forum.

During the forum, Judge Berry was asked about a study that identified high incarceration rates of Black men in the State. Judge Berry responded: What we do, is there are a lot of correctional options other than incarceration. We’re not incarcerating people who are non-violent offenders for long periods of time or anything like that. There is home detention, there’s inpatient residential treatment, there’s problem solving courts, there’s work release or weekend incarceration.

There are a lot of things you can do. So, we’re not . . . certainly, I understand that it is an issue, but it’s not as much of an issue as being portrayed by the other two candidates[15] . . . . Ms. Pierre attended the forum. Her campaign later sent a text message to prospective voters that read, “When a sitting judge says ‘it’s not much of an issue’ that Black males are jailed at a higher rate in MD it’s clear we need Marylin Pierre, who understands restorative justice.” Her campaign made similar statements elsewhere, including after Mr. McAuliffe emailed her complaining that her use of the quote was out of context and misleading.

In some of those statements, she corrected her omission of the word “as” from the quoted language; in at least one other, she did not. At the hearing, Ms. Pierre acknowledged that her use of the quote without including “as” before “much” was incorrect but said that was what she had heard and that the inaccuracy was an oversight. Noting that Ms. Pierre had republished the statement after 15 “[T]he other two candidates” appears to be a reference to Ms. Pierre and a second challenger, Thomas P. Johnson, III, whose name was not on the ballot but who was running as a write-in candidate. See Official 2020 Presidential General Election results for Montgomery County (last updated Dec. 4, 2020) available at: https://elections.maryland.gov/elections/2020/results/general/gen_results_2020_4_by_co unty_16-1.html, archived at https://perma.cc/NER7-8PAH. 17 being informed that it was inaccurate, the hearing judge found that Ms. Pierre had knowingly and intentionally misrepresented the substance of the quote. 2.

Misrepresentations About Ms. Pierre’s Experience The Commission also alleged that Ms. Pierre knowingly and intentionally misrepresented her legal experience in her campaign statements and in her answers to questionnaires submitted in connection with her eight applications for a judgeship. a. Campaign Statements The Commission cited two instances from the campaign in which it alleged that Ms. Pierre had misled voters about her experience and qualifications. First, in a campaign text to Montgomery County voters, Ms. Pierre stated that she has practiced “civil and criminal law in Maryland’s trial and appellate courts.” Interpreting that statement as a representation that she had practiced civil law in both trial and appellate courts, and criminal law in both trial and appellate courts, the Commission asserted that it was a knowing and intentional misrepresentation because Ms. Pierre had never represented a client in a criminal matter in an appellate court. Second, during a candidate forum, Ms. Pierre stated that she had “represented clients in hundreds of cases in state and federal trial and appellate courts, [and that] some of [her] cases have established precedents in the State of Maryland and are regularly cited by courts in other states.” The Commission contended that the statement was a knowing and intentional misrepresentation because Ms. Pierre had not represented a client in a federal appellate court and had not represented a client in a Maryland appellate court that had resulted in a reported opinion. 18 The hearing judge found that Ms. Pierre’s statements were “essentially true” because Ms. Pierre had practiced both civil and criminal law, had practiced in both trial and appellate courts, had practiced in both federal and state courts, had represented clients in hundreds of cases, and had handled cases at the trial level that had later resulted in reported appellate opinions.

The hearing judge declined to “undertake the parsing and/or dissection [of Ms. Pierre’s words] required to accept [the Commission’s] analysis on this issue.” b. Judicial Questionnaires The Commission also alleged that Ms. Pierre misrepresented the scope of her legal experience in each of the eight questionnaires she submitted in applying for judgeships between March 2012 and August 2017.16 In each of those questionnaires, Question 16 asked applicants, with respect to each of five subparts, about their experience “[w]ith respect to the last five years.” The Commission alleged that Ms. Pierre’s answers were false and misleading. With respect to the entirety of Question 16, instead of confining her responses to information about the most recent five years, Ms. Pierre included her entire career. She testified that she had misread Question 16 when completing the first 16 Applicants for a judicial vacancy are required to submit a confidential personal data questionnaire that asks for detailed information about an applicant’s personal history, education, law practice, business and civic involvement, any disciplinary history either as a party in a legal matter or in professional life, and other questions relevant to an application for a judicial vacancy.

See Maryland Courts, How to Apply for a Judicial Vacancy, https://www.courts.state.md.us/judgeselect/judgeappl (last visited August 10, 2023), archived at https://perma.cc/VM5X-UPNG. 19 questionnaire in 2012, and then simply updated the information on subsequent questionnaires to add additional experience. The Commission also alleged that Ms. Pierre made further false representations concerning her experience in response to subparts (b), (c), (d), and (e) of Question 16 on all eight questionnaires. In subpart (b), applicants were asked what percentage of their appearances were in specified types of courts. Ms. Pierre’s answers, which varied across the eight questionnaires, ranged from 0-3% of matters in federal court, 0-5% in state appellate court, 55-70% in state circuit court, 10-30% in the District Court of Maryland, and 10-20% in other courts.

The hearing judge determined that a correct response in each case would have been that more than 99% of her cases were in state circuit courts, and so found that Ms. Pierre’s answers were false. However, given the “wildly inconsistent” responses, and observing that Ms. Pierre had in the past represented clients in appellate cases and federal cases, the hearing judge concluded that if Ms. Pierre had intended to mislead, her answers “would not have been so carelessly inconsistent.” On that basis, the hearing judge determined that her misrepresentations were not knowing and intentional. In subpart (c), applicants were asked to identify the percentage of their litigation that was civil or criminal. In her first three questionnaires, Ms. Pierre responded that 75% of her cases were civil.

That percentage went up to 85% in the next three questionnaires and 90% in the final two. The hearing judge found those answers to be false because the correct response on every questionnaire would have been that her practice was more than 99% civil. However, based on the same rationale applied to the subpart (b) responses, the 20 hearing judge concluded that Ms. Pierre’s misrepresentations were not knowing and intentional. In subpart (d), applicants were asked to identify “the number of cases [the applicant] tried to verdict or judgment (rather than settled)” and whether the applicant was “sole counsel, chief counsel, or associate counsel.” In her first questionnaire, Ms. Pierre responded that she had “tried over five hundred cases to verdict or judgment.” In her second questionnaire, that response went down to “over 430,” and then progressively increased back to “over 500” by her final questionnaire.

At the hearing, Ms. Pierre testified that she thought the question encompassed any cases in which a judge had issued any decision, including if an agreement by the parties to settle resulted in a dismissal of the case by the court. She further testified that she provided what she believed to be a conservative estimate of such cases, albeit for her entire career rather than just the most recent five years. The hearing judge rejected that explanation, finding that an experienced attorney like Ms. Pierre could not misunderstand the meaning of “tried to verdict or judgment” and that it was inconceivable that she had tried that many cases to verdict or judgment. On that basis, the hearing judge concluded that Ms. Pierre’s responses were knowingly and intentionally false “for the purpose of bolstering her judicial applications.” In subpart (e), applicants were asked to identify the percentage of their cases that involved jury trials.

In her first three questionnaires, Ms. Pierre responded 5%. In her last five questionnaires, she responded 1%. Finding that Ms. Pierre had handled only two jury trials in her entire career, both before 1996, the hearing judge concluded that her responses were false. The hearing judge further found that Ms. Pierre’s responses were knowing and 21 intentional misrepresentations because the judge “[could ]not accept that [Ms. Pierre] did not recall that she had had only two jury trials throughout her career[.]” 3.

Misrepresentations Concerning a Student Loan Case and Associated Failure to Appear, Body Attachment, and Detention The Commission alleged that Ms. Pierre made knowing and intentional misrepresentations in her questionnaire responses and in her 1999 New York Bar Application regarding a student loan case against her in the mid-1990s. The underlying facts concern a lawsuit filed in November 1993 by the New York State Higher Education Services Corporation (“N.Y. Higher Education”) against Ms. Pierre in the Circuit Court for Montgomery County. In the lawsuit, N.Y. Higher Education alleged that Ms. Pierre had defaulted on promissory notes associated with her student loans. After Ms. Pierre defaulted on payments owed pursuant to a settlement payment plan and the court entered a judgment against her, she failed to appear in court in response to a show cause order.

The court issued a writ of body attachment, and Ms. Pierre was taken into custody by the sheriff. Ms. Pierre testified that she had failed to appear due to a personal tragedy. She posted bail and was released the same day. On March 25, 2004, N.Y. Higher Education filed a line of satisfaction. a.

Ms. Pierre’s Judicial Applications The Commission alleged that in her responses to questions on seven of her eight judicial questionnaires, Ms. Pierre knowingly and intentionally failed to disclose facts concerning her failure to respond to the show cause order, the issuance of the writ of body attachment, and her detention by the sheriff. First, Question 28 called upon applicants to 22 disclose whether they had “ever been arrested, charged, or held by federal, state, or other law enforcement authorities for violation of any federal law or regulation, state law or regulation, or county or municipal law, regulation or ordinance.” On her first questionnaire, from 2012, Ms. Pierre responded that a body attachment had been filed against her for nonpayment of her student loans and that she had been detained on July 1, 1996. She did not disclose the incident in response to Question 28 on the subsequent seven questionnaires. The hearing judge accepted Ms. Pierre’s testimony that, after the first questionnaire, she interpreted Question 28 to relate only to criminal proceedings.

Finding that interpretation to be reasonable, the hearing judge found that Ms. Pierre’s failure to disclose was not a knowing and intentional misrepresentation. Second, Question 29 called upon applicants to “[g]ive particulars of any litigation, including divorce, in which you personally are now or previously have been either a plaintiff or defendant. For each, list the dates, the names of the moving parties, the number of the case, the court, and the grounds for the litigation.” In all eight questionnaires, Ms. Pierre disclosed: “New York State Higher Education filed a suit for nonpayment of student loans against me on November 16, 1993. I was able to pay them off and they filed a Line of Satisfaction on March 25, 2004.” The hearing judge found that Ms. Pierre’s response to Question 29 was “sufficient” and so not a knowing and intentional misrepresentation.

Question 32 asked if there was “any other information concerning [her] background that might be considered detrimental or that otherwise should be taken into consideration by the Commission[.]” On each of the eight questionnaires, Ms. Pierre answered no. With 23 respect to the seven questionnaires after the first, the hearing judge found that, because Ms. Pierre did not disclose “her failure to appear, the Show Cause Order and the Body Attachment in the Higher Education case in response to Questions 28 or 29, . . . she was required to disclose the detrimental information in response to Question 32[.]” The hearing judge did not identify the basis for the implicit conclusion that Ms. Pierre understood that the incident, which had occurred in 1996 and which she blamed on a personal tragedy, would be considered detrimental to her fitness for the bench in 2013 through 2017. b. Ms. Pierre’s New York Bar Application The Commission also alleged that Ms. Pierre made knowing and intentional misrepresentations by providing incomplete information about the student loan case in response to Questions 16 and 17(b) on her New York Bar Application. Question 16 asked, in relevant part, whether Ms. Pierre had “ever been arrested, taken into custody, charged with, indicted, convicted or tried for, or pleaded guilty to, the commission of any felony or misdemeanor or the violation of any law or ordinance, except traffic or parking violations[.]” Ms. Pierre answered no.

As with Question 28 on the judicial questionnaires, the hearing judge accepted Ms. Pierre’s testimony that she believed the question applied only to criminal proceedings. The hearing judge found that interpretation reasonable. Question 17(b) asked whether Ms. Pierre had “ever failed to answer any ticket, summons or other legal process served upon [her] at any time” and “[i]f so, was any warrant, subpoena or further process issued against [her] as a result of [her] failure to respond to such legal process?” Ms. Pierre answered “yes,” identified the student loan case, and explained that she had a court date related to nonpayment of student loans for 24 which she was sent a summons and did not appear because she was hospitalized and forgot. She further stated: “A summons was sent to my house and I answered it to the Court’s satisfaction.

No further action was taken on the summons since I have made arrangements to pay the student loan.” The hearing judge concluded that response was a knowing and intentional “misrepresent[ation] by omission that the court issued a writ of body attachment for her failure to appear in response to a show cause order, and that she was detained and brought to court by the Sheriff and charged.” Having made that finding, the hearing judge also “f[ound] that [Ms. Pierre] falsely swore that her answers were complete and truthful when she signed the Bar Application[.]” 4. Misrepresentations About Ms. Pierre’s Employment with Network Engineering The Commission alleged that Ms. Pierre had made knowing and intentional misrepresentations in her judicial applications and during a statement under oath in December 2020 about her prior employment in the late 1990s with Network Engineering. Question 14 on each of the eight judicial questionnaires asked for a chronological description of the applicant’s “law practice and experience after . . . graduation from law school[.]” As part of her description, Ms. Pierre included that she had served as “corporate counsel” for Network Engineering from December 1997 through August 1999. She testified to the accuracy of that information during her statement under oath made in December 2020.

At the hearing, Ms. Pierre again testified that the information about her employment with Network Engineering was accurate. In response to a question about why she had not 25 disclosed that position on her 1999 New York Bar Application in response to a question asking the applicant to identify any “law firm, law department or legal institution” in which she had worked, Ms. Pierre testified that the position had not been part of a law firm, law department, or legal institution. The hearing judge found that Ms. Pierre’s testimony was not credible because Ms. Pierre “was unable to describe, with any detail, any legal work she claims to have performed as ‘corporate counsel’” and because the judge believed Ms. Pierre should and would have disclosed that role on her New York Bar Application if it were correct. On that basis, the hearing judge found that Ms. Pierre knowingly and intentionally misrepresented her position with Network Engineering on her judicial applications and in her statement under oath. 5.

Misrepresentations to Bar Counsel and Failure to Cooperate with Investigation The Commission alleged that Ms. Pierre failed to cooperate with Bar Counsel’s investigation. As discussed above, Bar Counsel initiated correspondence with Ms. Pierre on September 7, 2020, less than two months before the election. Bar Counsel’s five-page letter set forth 12 numbered paragraphs: (1) nine paragraphs identified statements or categories of statements made by Ms. Pierre or her campaign and asked that she explain or substantiate the basis for the statements; (2) one paragraph inquired whether during a particular online campaign forum Ms. Pierre had been asked whether she had ever been taken into custody and what her answer was; (3) one paragraph asked whether she had disclosed information about her evasion of service, the writ of body attachment, and her detention as part of the student loan litigation on her judicial questionnaires; and (4) the 26 final paragraph asked for documentation of five endorsements she claimed to have received. The letter asked that Ms. Pierre provide the information and documentation by September 21.

When Ms. Pierre did not meet that deadline, Bar Counsel sent follow-up requests on September 22 (requesting a response by September 29), October 4 (requesting a response by October 9), October 16 (requesting a response), and November 6 and 9 (requesting that Ms. Pierre provide dates to make a statement under oath). From September 23 through November 9, Ms. Pierre corresponded with Bar Counsel to seek more time to obtain counsel, which she was initially hoping would be provided by her malpractice carrier, CNA. On November 9, Ms. Pierre informed Bar Counsel that CNA had denied her request and that she was in the process of obtaining other representation. On November 19, not having received dates from Ms. Pierre, Bar Counsel scheduled a statement under oath for December 18 and emailed Ms. Pierre a copy of a subpoena.

On December 4, Ms. Pierre, through counsel, responded substantively to the inquiries contained in Bar Counsel’s September 7 letter. She also sat for the statement under oath on December 18. At the hearing, Ms. Pierre testified that she spoke with CNA several times while awaiting its response and that she learned that CNA was denying coverage on November 2, which was the day before the election. The hearing judge, observing that Ms. Pierre had sent Bar Counsel an email on November 6 stating that she was still waiting to hear from CNA, found Ms. Pierre’s testimony to not be credible.

The hearing judge further found that Ms. Pierre “knowingly and intentionally delayed responding to Bar Counsel’s requests for information without excuse.” 27 D. The Hearing Judge’s Conclusions of Law The hearing judge concluded that Ms. Pierre violated: • MARPC 8.1(a) and (b) (Bar Admission and Disciplinary Matters), when she: (1) “unequivocally testified falsely during her statement under oath on December 18, 2020 that she worked as general counsel for Network Engineering”; (2) signed her New York Bar Application in March of 1999 attesting to its accuracy; and (3) “failed to timely respond to Bar Counsel’s requests for information made on September 7, 2020, September 22, 2020, and October 4, 2020[,] and when she failed to provide available dates for her statement under oath.” • MARPC 8.2(a) and (b) (Judicial and Legal Officials), when she made statements that “were either knowingly false or made with reckless disregard as to their truth or falsity” and “were made for the specific purpose of misleading voters about both [her] credentials and the qualifications and integrity of the sitting judges.” • MARPC 8.4(a), (b), (c), and (d) (Misconduct), when she violated other rules of professional conduct and when she “knowingly and intentionally testified falsely,” “chose to misrepresent her qualifications for her personal gain” on both her judgeship applications and in her campaign materials, and “made numerous misrepresentations by omission” by not disclosing certain details of her 1996 court case. • NYDR 1-101 (Maintaining Integrity and Competence of the Legal Profession), when she failed to disclose on her New York Bar Application the details of her 1996 student loan case, including that “the court issued a writ of body attachment for her failure to appear in response to a show cause order, that she was detained and brought to court by the Sheriff[,] and that she was required to post a bond.” • NYDR 1-102 (Misconduct), “when she falsely swore that her answers were complete and truthful when she signed the [New York] Bar Application[.]” DISCUSSION I. EXCEPTIONS TO THE HEARING JUDGE’S FINDINGS OF FACT “This Court has original and complete jurisdiction in attorney discipline proceedings and conducts an independent review of the record.” Attorney Grievance 28 Comm’n v. Bonner, 477 Md. 576, 584 (2022). “The hearing judge’s findings of fact are left undisturbed unless those findings are clearly erroneous or either party successfully excepts to them.” Attorney Grievance Comm’n v. Fineblum, 473 Md. 272, 289 (2021) (quoting Attorney Grievance Comm’n v. Ambe, 466 Md. 270, 286 (2019)). Bar Counsel did not file any exceptions. Having reviewed the record thoroughly, we find no error in the hearing judge’s findings of fact that favored Ms. Pierre and so will not disturb them. Ms. Pierre filed a lengthy document that we interpret as excepting to all of the hearing judge’s findings of fact and conclusions of law that were adverse to her.

Because Ms. Pierre does not tie most of her exceptions directly to specific findings of fact, we will address them generally as they relate to the five categories of misconduct set forth above. A. Misrepresentations About Sitting Judges 1. Background Legal Principles As noted at the outset of this opinion, several aspects of the context in which this matter has arisen will prove critical to our resolution of Ms. Pierre’s exceptions and our consideration of appropriate discipline for the violations we sustain. We therefore begin with a discussion of background legal principles that help define the standards that apply to the hearing judge’s findings and conclusions.

In Attorney Grievance Commission v. Stanalonis, 445 Md. 129 (2015), we discussed the significance of the election context in assessing claims of violations of the MARPC. We explained that the election context was important for three reasons. “First, as the [United States] Supreme Court has observed, ‘speech about the qualifications of candidates 29 for public office,’ including judicial candidates, is ‘at the core of our First Amendment freedoms.’” Id. at 140 (quoting Republican Party of Minnesota v. White, 536 U.S. 765, 774 (2002)). Such speech “is core political speech and has the highest level of First Amendment protection.” Stanalonis, 445 Md. at 140-41 . “Second, the election context is significant as there inevitably is some imprecision in language used during the heat of a political campaign.” Id. at 141 . Short timeframes in which to respond, “limited time to vet language,” and a natural preference for “a short and snappy one-liner” over lengthier explanations with more context are features of elections that courts must take into account in assessing whether statements violate the MARPC.

Id. at 141-42 . Third, because MARPC 8.2(a) also regulates statements made about “public legal officers,” including the Attorney General and State’s Attorneys, “whatever we hold [with respect to judicial campaigns] will also control what a lawyer may say about a candidate for election” to those other offices. Id. at 142 . This matter involves not just an election contest, but an election for a judicial position, which adds important context of its own.

MARPC 8.2(a) provides: “An attorney shall not make a statement that the attorney knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.” As we have noted, “the purpose of [MARPC] 8.2(a) is not to protect judges, judicial officers, or public legal officials from unkind or undeserved criticisms. Rather, [MARPC] 8.2(a) protects the integrity of the judicial system, and the public’s confidence therein[.]” Attorney Grievance Comm’n v. Frost, 437 Md. 245, 263 (2014); see MARPC 30 8.2 cmt. 1 (“Assessments by attorneys are relied on in evaluating the professional or personal fitness of individuals being considered for election or appointment to judicial office and to public legal offices . . . . [F]alse statements by an attorney can unfairly undermine public confidence in the administration of justice.”). To ensure that enforcement of MARPC 8.2(a) does not infringe on core speech rights, a high standard is embedded within that rule, which encompasses only speech that is false and made with knowledge of its falsity or with reckless disregard as to its truth or falsity. As we observed in Stanalonis, “[i]n the First Amendment context, ‘reckless disregard for truth or falsity’ evokes the subjective test for civil liability for defamation of a public figure set forth in New York Times Co. v. Sullivan, 376 U.S. 254 (1964).” 445 Md. at 143 .

Under that test, “reckless disregard” demands more than just a conclusion that a reasonable person would have refrained from making the comment or performed additional investigation. That standard demands that the plaintiff produce “sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of [the defendant’s] publication.”17 Id. (quoting St. Amant v. Thompson, 390 U.S. 727, 731 (1968)). Nonetheless, as we highlighted in Stanalonis: “Every Maryland attorney takes an oath to act ‘fairly and honorably.’ Those who seek judicial office must resist the temptation to advance at the risk of violating that pledge.” 445 Md. at 149 (footnote omitted). 17 As we observed in Stanalonis, there is disagreement among the states concerning whether an objective or subjective test should apply in attorney discipline cases. 445 Md. at 143 .

As in that case, we need not resolve that disagreement here because it would not be dispositive as to the statements at issue. 31 One additional point bears on our assessment of Ms. Pierre’s exceptions to the hearing judge’s findings of fact. As she correctly points out, in assessing both whether a statement is false and whether the speaker had knowledge of its falsity or acted with reckless disregard thereof, there is an important distinction between statements of fact and statements of opinion. “Under the First Amendment there is no such thing as a false idea. . . . But there is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society’s interest in ‘uninhibited, robust, and wide-open’ debate on public issues.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40 (1974) (quoting Sullivan, 376 U.S. at 270 ).

Although statements of opinion are generally not subject to being proven false, statements of fact are. Moreover, statements of opinion, even those widely viewed as erroneous or unfair, are both less likely to mislead and more valuable to protect in the service of free and open public discourse than are false statements of fact. See id. It is therefore false statements of fact that are the subject of MARPC 8.2(a) and analogous provisions in other states.

See, e.g., Matter of Callaghan, 796 S.E.2d 604, 628 (W. Va. 2017) (finding judicial candidate’s materially false statements on campaign flyer impugning opponent were not protected by First Amendment and violated rules of professional conduct); In re O’Toole, 24 N.E.3d 1114, 1126 (Ohio 2014) (“Lies do not contribute to a robust political atmosphere, and ‘demonstrable falsehoods are not protected by the First Amendment in the same manner as truthful statements.’” (quoting Brown v. Hartlage, 456 U.S. 45, 60 (1982))); In re Chmura, 608 N.W.2d 31, 33 (Mich. 2000) (finding canon of judicial conduct restricting false or misleading public communications 32 by judicial candidates unconstitutionally overbroad before narrowing it to prohibit only “knowingly or recklessly using forms of public communication that are false”). 2. The Statements at Issue The hearing judge concluded that clear and convincing evidence established that three different campaign statements made by Ms. Pierre were false and that Ms. Pierre either knew they were false or made them with reckless disregard for their truth or falsity. We address each in turn. First, with respect to the tweet that “some sitting judges who are only English speakers send people to jail because they could not speak English,” Ms. Pierre conceded before the hearing judge that the statement is false, and the record establishes that it is.

Ms. Pierre contends, however, that her campaign’s tweet was not knowingly and intentionally misleading, or made with reckless disregard as to its truth or falsity, because it was based on her mis-recollection of a proceeding in which a judge had ordered her client to take English classes as part of a CINA reunification plan. She also suggests that her tweet was protected as a statement of opinion, rather than fact. We find no clear error in the hearing judge’s findings. First, even if Ms. Pierre’s recollection about the single incident were accurate, it would have provided no support for her campaign’s tweet.

Second, other than that mistaken recollection, Ms. Pierre offered no basis at all for the tweet. Third, a statement that judges send people to jail because they do not speak English is a statement of fact, subject to demonstrable verification, not a statement of opinion. Whether viewed through an objective or subjective lens, the record supports the hearing judge’s finding that Ms. Pierre, at a minimum, acted with reckless disregard for the truth 33 or falsity of her statement at the time she made it. We therefore overrule Ms. Pierre’s exceptions to the hearing judge’s findings of fact concerning her campaign’s tweet about judges sending people to jail for not speaking English.

Second, with respect to the tweet that “[m]ost” of the sitting judges “have worked at the same law firm, go to the same church, and are related by marriage,” Ms. Pierre excepts to all of the hearing judge’s findings of fact. We overrule those exceptions. Ms. Pierre first contends that the statement is one of opinion, which she sincerely held, rather than one of fact. In making that argument, Ms. Pierre recasts the statement as a general allegation that the sitting judges are not diverse and are all part of “an in-group.” Notably, however, the same tweet includes two other sentences that state exactly that— that the sitting judges “are not really diverse” and “are an in-group.” Those sentences were not the basis for either the Commission’s charges or the hearing judge’s findings.

A statement that “[m]ost” sitting judges have worked at the same law firm is a statement of fact subject to objective verification. The same is true of statements that “[m]ost” sitting judges go to the same church and are related by marriage. At trial, Mr. McAuliffe testified from personal knowledge that all three contentions were false, and Ms. Pierre did not provide evidence that any of them were true. Ms. Pierre also argues that the hearing judge erred in finding that she knew the statements were false or acted with reckless disregard for their truth or falsity at the time they were made.

We disagree. At the hearing, Ms. Pierre identified the sole bases for her purported belief that her statement was true at the time she made it as: (1) having overheard an anonymous source state that two active judges and one retired judge were related by 34 marriage; and (2) having been told by a member of the bar that four (out of 23) active judges attend the same church. Ms. Pierre also contends that she identified a sufficient number of relationships among the active judges to provide general support for her belief that her statement was true. However, the comments on which she relies, even if true, would not come close to supporting her statement, and the general support she purports to have identified in her Exhibit P is sufficiently deficient, see discussion above at note 14, that it lends significantly more weight to the Commission than to her.

We therefore overrule Ms. Pierre’s exceptions to the hearing judge’s factual findings that Ms. Pierre’s tweet about most sitting judges working at the same law firm, attending the same church, and being related (1) were false, and (2) were made knowing they were false or with reckless disregard for their truth or falsity. Finally, Ms. Pierre also excepts to all of the hearing judge’s findings concerning her several campaign statements about an answer Judge Berry gave at a candidate forum attended by Ms. Pierre. At that forum, when asked about a study identifying a high rate of incarceration of Black men in Maryland, Judge Berry provided an answer that discussed various alternatives to incarceration and concluded: “I understand that it is an issue, but it’s not as much of an issue as being portrayed by [the other two candidates.]” See discussion above at 19. The first statement with which the Commission takes issue, which is representative of the others, is an October 20, 2020 text message stating: Hi [voter], this election matters.

When a sitting judge says “it’s not much of an issue” that Black males are jailed at a higher rate in MD it’s clear we need Marylin Pierre, who understands restorative justice. Can we count on your support? 35 Mr. McAuliffe