Attorney Grievance Commission v. Lichtenberg

Concurring Opinion by WILNER, J., in which HARRELL, J., joins. I concur in the result. I would dismiss the petition because I do not believe that Bar Counsel has presented to us any ³⁵⁹ basis for overturning Judge Kahl’s conclusion that Mr. Lichtenberg did not violate any of the rules or statutes alleged by Bar Counsel. I write separately only to express my disagreement with the Court’s refusal to construe § 22 — 103(f) of the Insurance Article.

When charges are brought against an attorney based on the violation of a statute, even one that is subject to administrative enforcement by some Executive agency, it is the proper and necessary function of this Court to construe the statute in the attorney grievance proceeding, if such construction is necessary to determine whether a violation of the Maryland Rules of Professional Conduct has occurred. I am not aware of any other instance in which this Court has shied from that responsibility simply because the statute has not previously been construed, or because it may be ambiguous, or because it is also subject to administrative enforcement by an Executive agency. If construction of the statute is relevant to a determination of the issue presented to us in the disciplinary proceeding, it is our duty and responsibility to construe the statute, even if the administrative agency is not a party. We are, in this case, ignoring that duty and responsibility and thus leaving uncertain, for every lawyer who operates or works for a title or settlement company, an issue of grave importance to them.

The notion that the Court should construe statutes only when adjudicating disputes in the normal litigation context is unprecedented, unwarranted, and unworkable. If this strange notion is intended as a disguised application of the doctrine of primary jurisdiction, it is, for the reasons stated in my dissent in the companion case of Attorney Grievance Commission v. Davis, 379 Md. 361 , 842 A.2d 26 , 2004 WL 243842 (2004), also Constitutionally