Baltimore County v. Barnhart

WATTS, J. This is an appeal from a grant of summary judgment by the Circuit Court for Baltimore County in an action for declaratory judgment brought by Baltimore County, Maryland (the “County”), appellant, against Virginia W. Barnhart, appellee. The County sought a ruling as to whether appellee, the former County Attorney, violated the Maryland Lawyers’ Rules of ⁶⁸⁵ Professional Conduct (“MLRPC”) by providing legal representation to David Willis, Jr. (“Willis”), a former County employee, in an administrative appeal of the County’s calculation of his retirement benefits, and sought to have appellee disqualified from representing Willis. The circuit court granted summary judgment in favor of appellee. The County appealed and presented one question, containing multiple parts, which we rephrased into four questions, as follows: 1 I. Did the circuit court err in finding that there was no genuine dispute of material fact as to whether appel-lee violated MLRPC 1.9 and 1.11, and thereby in granting summary judgment?

II

Did the circuit court err in finding that the County waived its right to request disqualification of appellee from representing Willis in the administrative appeal?

III

Did the circuit court err in finding that it did not have jurisdiction to rule on whether appellee violated MLRPC 1.9 and 1.11?

IV

Did the circuit court err in finding that declaratory judgment was an inappropriate vehicle for determining whether appellee violated MLRPC 1.9 and 1.11? 2 We answer the first three questions in the negative, and therefore shall affirm. ⁶⁸⁶ FACTUAL AND PROCEDURAL BACKGROUND Between May 1995, and 2001, appellee was the County Attorney for Baltimore County. In that capacity, appellee represented the County’s Employee Retirement System (“ERS”), an agency of the County government that provides pension benefits to retirees. Rowe Appeal In March 2007, appellee notified the County that she intended to provide legal representation to a retiring County employee, Brian J. Rowe, in an administrative appeal contesting the calculation of his retirement benefits. Rowe accrued service time as a member of a noncontributory pension benefit system prior to joining the County.

The County utilizes a contributory pension benefit system. 3 Md.Code (2002) § 37-203(f)(2) of the State Personnel and Pensions Article (“SPP”), effective during Rowe’s appeal, provided that: [I]f an individual transfers from a noncontributory system to a contributory system, on retirement the individual’s retirement allowance shall be reduced by the actuarial equivalent of the accumulated contributions that would have been deducted if the individual had earned the transferred service credit under the new system, including interest on those contributions. The interest rate used to calculate Rowe’s pension reduction was at issue in the appeal. The County used the interest rate of 7.875%, compounded monthly, known as the “valuation rate,” and Rowe contended that the County should have used the interest rate of 5%, compounded yearly, known as the “regular rate.” 4 ⁶⁸⁷ Prior to the enactment of SPP § 37-203, and its predecessors, there was no accepted state-wide policy or procedure governing how to handle the transfer of credit between the systems. 5 In 1990, the County worked with an outside consultant and the County’s Office of Law to “formulate! ] a proposed transfer system policy designed to address the question of how the new State requirements [would] be implemented administratively.” As a result, the ERS adopted the Transfer Policy, 6 which provided that the County was to calculate pension reductions using the valuation rate. In a memorandum, titled “Implementation of System [Transfer [P]olicy,” dated November 28, 1990, the County’s Office of Law stated: “It is the formal opinion of the Office of Law that [the] proposed system transfer policy, as amended, parallels the actual language of the new legislative enactments and thus[,] constitutes a legally tenable way of administering these new state mandates.” Notwithstanding the adoption of the Transfer Policy, the County, in practice, used the regular rate of interest to calculate the reduction of transferred benefits.

In 1998, during appellee’s tenure as County Attorney, Rowe, then the Baltimore County Auditor, undertook an audit of the ERS and issued a report to County officials and the general ⁶⁸⁸ public. In a final audit report dated June 9, 1998, Rowe advised the County that continuing to calculate benefit reductions with the regular interest rate, “could result in significantly lower contribution deficiencies than required by the Board’s policy, resulting in higher benefit payments to the member.” Rowe recommended in the final audit report that the County follow the Transfer Policy as endorsed by the November 28, 1990, memorandum, and calculate transferred benefits using the valuation interest rate. After the June 9, 1998, final audit report was released, Rowe had sought “another calculation of his deficiency to determine whether or not the County was complying with State law as he saw it,” which irrespective of his recommendation in the final audit report, Rowe believed required use of the regular interest rate. The County’s Office of Law responded in a memorandum, dated January 16, 2003, to Rowe’s contention, stating that “[t]he law [as it was then constructed] provides no interest rate or standards for determining the interest rate.

Accordingly, the General Assembly can be assumed to have left those decisions to the ERS.” Rowe’s retirement was to be effective April 1, 2007. On February 21, 2007, Rowe was provided an estimated calculation of his retirement benefits. Rowe’s retirement benefits were calculated using the valuation rate. On March 23, 2007, Rowe, represented by appellee, noted an appeal of the calculation of his retirement benefits to the Board of Appeals (the “Board”).

The Board held a hearing on Rowe’s appeal on November 28, 2007, and February 12, 2008. At the hearing, Rowe testified that he accepted the position of County Auditor in 1995, upon representations made to him that the value of his unpaid pension contributions would be calculated using the regular interest rate of 5%. On June 3, 2008, following Rowe’s hearing, the Board issued an opinion finding in favor of Rowe and ordering the County to recalculate Rowe’s retirement benefits using the regular interest rate. In its opinion and order, the Board reviewed the statutory history of SPP § 37-203(f)(2) and opinions by the Attorney General and County Attorney’s Office interpret ⁶⁸⁹ ing SPP § 37—203(f)(2).

The Board noted that on April 17, 2007, Senate Bill 583, entitled “Alternative Contributory Pension Selection'—Clarifications” passed and that Bill 583 amended SPP § 37-203(f)(2) to provide: Except as provided in § 87-204 of this subtitle, if an individual transfers from a noncontributory system to a contributory system, on retirement the individual’s retirement allowance shall be reduced by the actuarial equivalent of the member contributions that would have been deducted if the individual had earned the transferred service credit under the new system, including regular interest on those contributions. The Board concluded that this “means that the legislature was clarifying its intention with respect to each section set forth in the Bill, including SPP § 37-203(f)(2). The intention has always been to utilize [the] regular interest [rate] in the computation of the reduction.” The County filed a Motion for Reconsideration, which was denied by the Board on September 10, 2008. On October 1, 2008, the County petitioned for judicial review in the Circuit Court for Baltimore County. 7 Willis Appeal On August 2, 2008, Willis retired from employment with the County.

Prior to his employment with the County, Willis worked for the State of Maryland, which utilizes a noncontributory pension benefit plan. Willis disagreed with the County’s use of the valuation rate in calculating his retirement benefits and hired appellee to represent him in contesting the calculation. On August 13, 2008, appellee noted an appeal on behalf of Willis to the Board. Appellee, in the scope of her representation of Rowe and Willis in their appeals, sent letters to the County dated August 18, 2008, and October 22, 2008, in which she demanded correction of the County’s calculation of retirement benefits on behalf of Rowe, Willis, “and all others similarly situated past and future retirees who transferred ⁶⁹⁰ service credit from a noncontributory system to the County Retirement System.” In the letters, appellee stated an intention to initiate a class-action lawsuit if the County did not comply.

In a letter dated November 5, 2008, to appellee, the County for the first time raised an issue as to the propriety of appellee’s representation of County retirees. The County claimed the existence of a conflict of interest due to appellee’s prior representation of the ERS during her tenure as the County Attorney. In a letter to the County dated November 14, 2008, appellee responded that the County’s position was factually and legally incorrect. In the letter, appellee stated that she had “never participated personally and/or substantially in the matter at issue in Mr. Rowe’s or Mr. Willis’ appeals” and accused the County of raising the contention for tactical reasons.

On January 20, 2009, appellee sent an e-mail to the County stating: “Having not received any motion to disqualify me from representing Mr. Willis in his Board of Appeals hearing next week I assume that you have reconsidered and that you will not be seeking my disqualification!;.]” On January 21, 2009, six days before Willis’ scheduled hearing before the Board, 8 the County filed a Verified Complaint for Declaratory Judgment in the Circuit Court for Baltimore County, seeking that the circuit court find that: (1) appellee violated MLRPC 1.9 and 1.11 by accepting representation of Willis in a matter in which “she ‘participated personally and substantially’ during her tenure as County Attorney for Baltimore County, Maryland from 1995-2001,” and (2) appellee violated MLRPC 1.9 and 1.11 when she failed to request and obtain, pursuant to those Rules, informed consent for her representation of Willis from the County. On February 26, 2009, appellee filed a Motion to Dismiss the Complaint. On April 30, 2009, a circuit court judge, in a document titled “Memorandum to the File,” stated: “The Declaratory Judg ⁶⁹¹ ment Complaint is to no purpose because it asks for no relief that this court can or should grant in a specific case. Therefore, it should be dismissed.

I would make a Declaration that I cannot grant the relief requested because it is to no purpose discernable to me.” The circuit court judge stated: “If Baltimore County is asking that [appellee] be disqualified from representing a client in an administrative proceeding that is working itself through the system ... because of a violation of the Rules of Professional Conduct, then Baltimore County can amend its complaint in this case to ask for that relief.” On June 9, 2009, the County filed an Amended Verified Complaint for Declaratory Judgment, which repeated the two requests for relief in the original Complaint, and added a third request for declaratory judgment, seeking that appellee be disqualified from representing Willis in his administrative appeal. In the Amended Complaint, the County alleged that “[i]n her position as County Attorney, [appellee] knew or should have known that the Office of Law participated in the drafting of the Transfer Policy and a formal opinion, which concluded that the policy was in compliance with applicable State and county law.” The County alleged that “[a]s County Attorney, [appellee] was in the position to receive significant attorney-client confidences relating to the ERS and specifically, the issues related to this matter. Such confidences could have been conveyed during casual conversations with various County officials, employees and departments.” The County alleged that “[o]ne of the matters that [appellee] was privy to included” Rowe’s 1998 audit of the ERS. The County alleged that the findings of Rowe’s 1998 audit “form the basis for Mr. Willis’ challenge to the calculation of his retirement benefits.” In the Amended Complaint, the County alleged that prior to the issuance of Rowe’s final audit report, a draft report was provided to Frederick J. Homan, a member of the Board of Trustees for ERS, who was then serving as the Director of the County’s Office of Budget and Finance.

The County alleged that on May 28, 1998, Homan authored a memorandum titled “Response—ERS Compliance Audit.” Numerical reference 4 of the memorandum stated that, “issues related to the inter ⁶⁹² pretation of State and County provisions will be discussed with the Office of Law.” The County alleged that Homan recalled discussing with appellee the application of the Transfer Policy and that he “specifically sought the advice and counsel of [appellee] to clarify what, if any, fiduciary duty” the County Executive, as a member of the ERS Board of Trustees, had in regards to intervening in favor of a “ ‘prospective application’ of a Board policy that would benefit Mr. Rowe, Mr. Willis, and others and would cost the ERS thousands of dollars.” On July 7, 2009, appellee filed a Motion to Dismiss the Amended Complaint, or in the Alternative, Motion for Summary Judgment, alleging that: (1) the Amended Complaint failed to set forth facts sufficient to demonstrate a violation of the rules of professional conduct; (2) the County waived the right to seek disqualification of appellee from representing Willis by failing to object to appellee’s representation of Rowe on the exact issue for over a year; (3) the circuit court should decline to issue a declaratory judgment on the first two prayers for relief because the Court of Appeals has exclusive jurisdiction over attorney conduct matters; and (4) alternatively, the circuit court should decline to issue a declaratory judgment on the first two prayers for relief as the requested declaration would not terminate the controversy between the parties. 9 The County filed an Opposition to appellee’s motion, and appellee filed a Reply to the County’s Opposition. On September 29, 2009, appellee deposed Homan. At the deposition, Homan testified that he was the only individual ⁶⁹³ with personal knowledge of the allegations set forth in the Amended Complaint. Homan testified that he recalled having “maybe two or three” verbal conversations with appellee in 1998, around the time of the audit.

Homan testified that these conversations concerned a possible ethical issue involving Rowe’s actions during and after the preparation of the audit report. As to the discussion pertaining to the valuation rate, Homan testified that “the discussion was about the effect on Rowe and why Rowe was so interested in the one versus the other.” Homan testified that he did not recall appellee providing any legal advice during these conversations and that he had no personal knowledge of whether or not appellee researched the issue. Homan testified that he understood the issue in Rowe’s case to be “[t]he same as Mr. Willis’[ ] case ____generally the valuation rate versus the regular interest rate issue.” Homan testified that he first became aware of appellee representing Rowe, a former County employee, shortly after Rowe resigned but when asked why he did not raise the issue earlier, he answered “I don’t really have an answer for that.” Homan testified that he believed, at that time, that appellee’s representation was a violation of the MLRPC, and that “we discussed it internally but it wasn’t raised until later.” On September 30, 2009, the County deposed appellee. At the deposition, appellee testified that during her tenure as County Attorney she was not aware of the ERS audit and had no recollection of any conversation with Homan about the audit.

Appellee testified that she “remember[ed] having discussions at different times regarding issues [she] now [knew] to be part of that audit.” Appellee filed a Supplemental Memorandum in support of the Motion to Dismiss the Amended Complaint, or in the alternative Motion for Summary Judgment, which included excerpts from Homan’s deposition. On November 30, 2009, the County moved to strike the supplemental memorandum. On May 6, 2010, a hearing was held on appellee’s Motion to Dismiss the Amended Complaint, or in the alternative Motion ⁶⁹⁴ for Summary Judgment 10 and the County’s Motion to Strike the Supplemental Memorandum. The trial judge denied the County’s Motion to Strike.

The trial judge declined to rule on the Motion for Summary Judgment from the bench. Instead, after entertaining argument from both parties, the trial judge instructed the County that it had ten days to supplement its argument before a ruling on appellee’s motion. On May 17, 2010, the County filed a Supplemental Opposition. On May 19, 2010, appellee filed a letter in response to the County’s Opposition.

On June 21, 2010, the circuit court issued an Opinion and Order, granting summary judgment in favor of appellee. The circuit court stated: To this court, the thrust of [appelleej’s motion is three fold: (1) Assuming the allegations contained in the verified amended complaint are accepted as true, they do not allege a violation of the Rules of MLRPC. Furthermore, reviewing the verified statements, affidavits, exhibits, attachments, etc. leads to the conclusion that there is no dispute as to any material fact and that the allegations and all supplied documents do not, cannot, and will not sustain a violation of Rule 1.9 and 1.11 of the MLRPC. (2) That given the representation by [appellee] of Mr. Rowe in excess of two years prior to the Willis matter without suggestion of a conflict of interest by the County and given the fact that the matter litigated in Rowe is the precise issue in dispute in the Willis matter, the County has waived its right to move for either a declaration that [appellee] has violated the rules or for her disqualification in the Willis matter.

(3) As the County has asked this court for a declaration that [appellee] violated the rules involved, this court has no jurisdiction to do so as the Court of Appeals has the exclusive jurisdiction over such a matter upon a finding by the Attorney Grievance Commission that a violation has occurred. Additional ⁶⁹⁵ ly, that the request for Declaratory Judgment will not, in effect, terminate the controversy between the parties. For the reasons set forth below, this court is persuaded that [appellee]’s motion has merit and will grant her summary judgment. (Emphasis in original).

As to appellee’s alleged violation of the MLRPC, the circuit court held that “the allegations do not display a factual basis for a finding that the rules have been violated.” The circuit court stated: To this court, as indicated, the Amended Complaint represents no more than speculation, conjecture and unfounded conclusions without indicating a true sufficient basis for the relief sought.... The written exhibits also failed to generate issues of material fact vis a vis [appelleej’s role as County Attorney and the precise issue contained in the Willis dispute. The court gave additional opportunity to the County to flesh out/provide facts upon which the court could find the requisite genuine dispute as to a material fact. The court can find none.

As to appellee’s disqualification as counsel, the circuit court found that the County waived its argument that appellee should be disqualified from representing Willis, due to delay in bringing the request. The circuit court found that “the delay was due and occasioned by the County for tactical reasons.” As to jurisdiction, the circuit court found that “in seeking relief in this matter, [the County] is attempting to circumvent the entire process established to determine if an attorney has engaged in professional misconduct” and that the Court of Appeals has “primary jurisdiction” in a matter such as this one. STANDARD OF REVIEW This Court reviews de novo a grant of summary judgment. Injured Workers’ Ins.

Fund, v. Orient Express Delivery Serv., 190 Md.App. 438, 451 , 988 A.2d 1120 (2010) (citation omitted). We are “obliged to conduct an independent review of the ⁶⁹⁶ record to determine if there is a dispute of material fact. A material fact is one that will alter the outcome of the case, depending upon how the fact-finder resolves the dispute. Mere general allegations of conclusory assertions will not suffice.” Id. at 450-51 , 988 A.2d 1120 (citations and internal quotations omitted).

We will uphold the grant of summary judgment “where there is no genuine dispute as to any material fact and the party in whose favor judgment is entered is entitled to judgment as a matter of law.” Id. at 450 , 988 A.2d 1120 (internal quotations and citations omitted). We resolve all reasonable inferences in favor of the non-moving party. Id. at 451 , 988 A.2d 1120 . DISCUSSION I. On appeal, the County argues that the trial court erred in granting appellee’s motion for summary judgment because a genuine dispute of material fact exists under MLRPC 1.9 and 1.11 as to whether: (1) appellee’s representation of Willis is the “same or a substantially related matter” as her former representation of the County during her tenure as County Attorney; and (2) appellee is in possession of confidential government information obtained during her tenure as County Attorney, which could be used to the detriment of the County in her representation of Willis. 11 In contrast, appellee responds that the trial court properly granted summary judgment as the case involves no genuine issues of disputed material fact.

Appellee contends that Willis’ appeal concerns purely a question of statutory interpretation 12 and she never conducted any research nor was she ⁶⁹⁷ asked to give a legal opinion with respect to whether the County was required to use the regular rate or the valuation rate of interest in calculating transferred retirement benefits. Appellee argues that she possesses no confidential information which could be used to the detriment of the County in her representation of Willis. Appellee notes that “all of the documents in this matter are public records in the public domain,” and, as a result, there is no confidential information to be used to the County’s disadvantage in the Willis appeal. In sum, appellee maintains that she has not violated MLRPC 1.9 or 1.11, and there is no basis on which to grant her disqualification. 1.

Same or Substantially Related Matter MLRPC 1.9, titled “Duties to Former Clients,” provides in pertinent part: “A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.” (Emphasis added). Comment 2, affixed to MLRPC 1.9, explains that “[t]he scope of a ‘matter’ for purposes of this Rule depends on the facts of a particular situation or transaction. The lawyer’s involvement in a matter can also be a question of degree.” “Matters are ‘substantially related’ for purposes of this Rule if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client’s position in the subsequent matter.” MLRPC 1.9, Comment 3 (emphasis added). MLRPC 1.11 is titled “Special Conflicts of Interest for Former and Current Government Officers and Employees,” ⁶⁹⁸ and largely mirrors MLRPC 1.9.

MLRPC 1.11(a)(2) provides that “a lawyer who has formerly served as a public officer or employee of the government ... shall not otherwise represent a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency gives its informed consent, confirmed in writing, to the representation.” Interpretation of MLRPC 1.9 in Maryland case law is limited, 13 and is noticeably absent as to MLRPC 1.11. When evaluating the meaning of the phrase “the same or a substantially related matter,” as set forth in MLRPC 1.9, for the purpose of determining attorney disqualification, this Court, in Gatewood v. State, 158 Md.App. 458, 468 , 857 A.2d 590 (2004), aff'd, Gatewood, 388 Md. 526 , 880 A.2d 322 , observed that “[t]he case law in Maryland on this issue is sparse, but this is a point of law that crosses jurisdictional lines, and rulings from courts that have addressed similarly worded professional conduct rules are relevant.” (Citations omitted). We noted that in addressing a similar rule of professional conduct, the Supreme Court of Kansas 14 observed: ⁶⁹⁹ There is widespread agreement that conflict questions involving former clients should be resolved through application of the substantial relationship test. However, there is no standard definition of what the test should compare in determining whether there is a close connection between the conflicting representations.

Id. (citation omitted). In this case, the circuit court relied on Franklin v. Clark, 454 F.Supp.2d 356 (D.Md.2006), in determining whether a genuine dispute of material fact existed regarding appellee’s alleged violations of MLRPC 1.9 and 1.11. In Franklin , the District Court applied MLRPC 1.11 in ruling on a motion to disqualify an attorney, who represented a terminated Baltimore City police officer, and previously represented the Baltimore City Solicitor’s Office. 454 F.Supp.2d at 363-67 .

The District Court concluded that the matters of the attorney’s prior and current representation were not the same or substantially related. Id. at 367 . The District Court explained that the attorney “did not, and could not [have], engage[d] in any ‘investigative or deliberative process’ with regard to [the officer’s] termination[,]” and therefore was not “substantially ⁷⁰⁰ and personally involved” in the termination of the officer, pursuant to MLRPC 1.11(a). Id. at 366-67 .

In deciding whether the scope of the attorney’s former representation met the criteria of MLRPC 1.11, the District Court found it “helpful to review cases where former government attorneys were disqualified pursuant to MLRPC 1.11(a)[,]” such as: In United States v. Philip Morris, Inc., 312 F.Supp.2d 27 (D.D.C.2004), the court disqualified a former Justice Department attorney from representing a tobacco company after the government produced time sheets indicating that the attorney had logged more than 382 hours on substantially related litigation. In Dugar v. Board of Educ., 1992 U.S. Dist. LEXIS 8650 , 1992 WL 142302 (N.D.Ill.1992), the court disqualified an attorney bringing an action by a student who had been expelled because that attorney previously supervised the Chicago Board of Education attorneys who represented the board at student suspension and expulsion hearings. Likewise, in the companion case of Porter v. Board of Educ., 1992 U.S. Dist.

LEXIS 9617 , 1992 WL 166570 (N.D.Ill.1992), the court disqualified an attorney who brought a suit on behalf of teachers contesting the board’s disciplinary procedures because that attorney previously represented the board in teacher disciplinary actions. Id. at 366. In contrast to the cases discussed above, the District Court in Franklin held that the attorney’s involvement was “much more remote than the cases listed above.” Id. For example, the attorney “assert[ed] that he has no knowledge whatsoever concerning the reasons for terminating [the officer], the underlying factual incidents leading up to [the officer’s] termination, and the defendants’ response to [the officer’s] allegations that he was wrongfully terminated.

Indeed, [the attorney] was fired approximately two months before the events giving rise to [the officer’s] termination.” Id. As to MLRPC 1.11(c), the District Court in Franklin concluded that the attorney possessed no confidential information ⁷⁰¹ which could be used to the material disadvantage of his former client. Id. at 368 . The District Court acknowledged that the attorney had drafted a memorandum while representing the Solicitor’s Office, which addressed the law relevant to his current representation of the terminated police officer. 15 Id. at 363-64, 367 .

The District Court concluded that even though the memorandum “likely constituted a confidential attorney-client communication when it was created[,] the defendants waived any expectation of confidentiality when they voluntarily produced it through the course of discovery.” Id. at 367 . Returning to the present case, an examination of the record, in light of the case law discussed above, leads to the conclusion that the circuit court correctly determined that no genuine dispute of material fact existed as to whether appellee, during her tenure as County Attorney, was “substantially and personally involved” in the same matter being considered in Willis’ administrative appeal. Similarly, the record reveals no genuine dispute of material fact as to whether appellee possessed confidential government information acquired during her tenure as County Attorney, which could have been used to the material disadvantage of the County in Willis’ administrative appeal. The sole source of information as to appellee’s alleged conflict of interest is Homan.

A review of Homan’s deposition testimony reveals no facts from which a reasonable factfinder ⁷⁰² could determine that appellee violated MLRPC 1.9 and 1.11. Homan testified that he recalled “two or three” conversations with appellee regarding the calculation of the interest rate to be applied to transferred benefits. Nevertheless, according to Homan the substance of these conversations specifically involved whether Rowe had committed an ethical violation during and after the preparation of the 1998 audit report by advocating for the use of the regular interest rate, in contrast to the Transfer Policy, without disclosing the personal benefit he would obtain therefrom. As to the conversations, Homan testified: [APPELLEE’S COUNSEL]: Do you have any memory of what was said during these conversations? [HOMAN]: Yes, I do, and what the conversation—if I may just a little, just to put them in a little perspective so you know how they fit in. [APPELLEE’S COUNSEL]: Sure. [HOMAN]: The Auditor’s Office began to do an audit of the system. [APPELLEE’S COUNSEL]: Okay. [HOMAN]: Prior or as the audit was beginning, I was advised that Mr. Rowe had raised an issue, a personal issue for himself of the issue between the valuation rate and the regular interest rate.

That was communicated to members of my staff, one of whom was the Deputy Director, but also people inside would, to look at this matter. [APPELLEE’S COUNSEL]: And “this matter” being the interest rate issue? [HOMAN]: Yes. [APPELLEE’S COUNSEL]: Okay. And what was the second conversation you had with [appellee] after this draft report that was pulled back that was making the recommendation to not follow up the policy? [HOMAN]: Well, that was that, unbelievably enough, they’d actually done it without disclosing that they had a personal interest involved. I mean, they actually— ⁷⁰³ [APPELLEE’S COUNSEL]: When you said they had done it, they had— [HOMAN]: They actually made a recommendation that Board policy not be followed. [APPELLEE’S COUNSEL]: And other than disclosing that to [appellee], do you recall anything else about that conversation? [HOMAN]: Yeah. We talked about the very fact that Rowe and others in the office—I don’t think I knew about Willis specifically at that time—but Rowe and others in the office were going, would benefit by this recommendation.

Homan admitted that “there wasn’t really any substance to” his second conversation with appellee. As to his third conversation with appellee, Homan testified that the substance of that conversation again involved perceived ethical violations by Rowe: [APPELLEE’S COUNSEL]: And do you recall the substance of that conversation? [HOMAN]: It was about this memo and it was about the fact that—it was also about ethics. It was about the [ Valuation rate.... And essentially, the County Auditor had gone to the Council Chairman to write to him, the clear implication being that he wanted the County Executive to use his authority over other members of the Board of Trustees in their day-to-day capacities as department heads to make a change in the policy so they would be applied prospectively so that Mr. Rowe would have the regular interest rate versus the valuation rate utilized. [APPELLEE’S COUNSEL]: Do you recall—you said you talked about the ethics, the valuation rate and the fact that it involved a councilman and the County Executive.

Do you recall the substance of what you spoke about with regard to the ethics? [HOMAN]: Yes. I, frankly, believe that Mr. Rowe had committed ethical violations and I thought that he had also led the councilman inadvertently, unsuspectingly, which turned out to be true later. The auditor, in fact, wrote the ⁷⁰⁴ memo. The chairman did not.

And the chairman did not have the issues explained to him. But essentially, it was about that the auditor had clearly crossed the line. He was asking for a prospective application to benefit himself and he had utilized the councilman to do that in contracting the Executive, knowing full well that Executive was an ex-officio member of the Board. Homan specifically confirmed that the conversations he recalled with appellee regarding the correct transfer rate were limited in subject matter to a potential ethical issue involving Rowe: [APPELLEE’S COUNSEL]: You also indicated that you discussed the valuation rate.

I take it to mean you discussed the, which of the two ratings should be applied. Is that what the discussion was about with [appellee]? [HOMAN]: And the discussion was about the effect on Rowe and why Rowe was so interested in the one versus the other. [APPELLEE’S COUNSEL]: Do you recall any other conversations about the valuation rate other than why it would be to Mr. Rowe’s benefit to use one rate over the other? [HOMAN]: No. Homan was asked several times in the course of his deposition if he recalled appellee providing any legal advice regarding the transfer rate, and each time he responded that he did not: [APPELLEE’S COUNSEL]: And this was you communicating to [appellee] your views of the situation? [HOMAN]: Yes. [APPELLEE’S COUNSEL]: Okay. Did she, in response, give you any legal advice? [HOMAN]: I don’t recall her affirming or objecting. I don’t remember her commenting in that regard at all. [APPELLEE’S COUNSEL]: Okay.

Do you recall if she gave you any legal advice regarding the ethics of the situation? ⁷⁰⁵ [HOMAN]: Well, she believed that Rowe had crossed the line, clearly. I mean, that wasn’t an issue. I just don’t remember whether or not she made a comment as to the other part of the issue, which was the Moxley issue. [APPELLEE’S COUNSEL]: Well, other than [appellee] agreeing that she thought that Mr. Rowe had acted unethically, do you recall anything else that she advised you? [HOMAN]: No, I don’t recall anything. [APPELLEE’S COUNSEL]: Did [appellee] provide any advice in regards to all of this information? [HOMAN]: 1 don’t recall that. No. [APPELLEE’S COUNSEL]: Did she comment that you can recall in any way on this information you had provided to her? [HOMAN]: I don’t recall any specific comment.

I mean, mostly the conversation about, it was incredible that they did that.... [APPELLEE’S COUNSEL]: Did she opine to you that she believed that it did comply with the law? [HOMAN]: No, and she didn’t say that it didn’t. [APPELLEE’S COUNSEL]: But as far as you know, she never researched the issue; is that correct? [HOMAN]: I honestly don’t know if she ever researched the issue in that regard.... [APPELLEE’S COUNSEL]: But you have no personal knowledge whether she did or didn’t? [HOMAN]: I do not. I do not. The issue in Willis’ administrative appeal was whether the valuation interest rate or the regular interest rate would be utilized to calculate his retirement benefits. The record reveals that appellee was not personally involved in the calculation of Willis’ retirement benefits during her tenure as County ⁷⁰⁶ Attorney.

Appellee left her position as County Attorney in 2001, seven years prior to Willis’ retirement, and his subsequent raising of the issue regarding the calculation of his retirement benefits. There are no facts indicating appellee was at all personally or substantially involved in the manner in which the County calculated transferred retirement benefits during her tenure as County Attorney. Appellee, like the attorney whose conduct was at issue in Franklin , “did not, and could not [have], engage[d] in any ‘investigative or deliberative process’ with regard” to Willis’ appeal. Franklin, 454 F.Supp.2d at 866 .

The County’s Office of Law set forth a legal opinion on the transfer policy in the November 28, 1990, memorandum, prior to the start of appellee’s tenure as County Attorney. The Office of Law drafted another legal opinion, addressing the transfer rate, in 2003, after the conclusion of appellee’s tenure as County Attorney. Homan did not recall any conversations with appellee regarding what the legally correct transfer rate should be. 16 Homan specifically testified that appellee never rendered a legal opinion as to what the legally correct transfer rate should be. Homan did not know if appellee ever researched the issue.

Based on the record, the circuit court properly determined that there was no genuine dispute of material fact as to appellee’s having represented another in the same or a substantially related matter in violation of MLRPC Rules 1.9 and 1.11, and no genuine dispute of material fact as to appellees’ disqualification. 17 ⁷⁰⁷ 2. Confidential Government Information A review of Homan’s deposition reveals no genuine dispute of material fact as to whether appellee possessed confidential government information which could be used to the detriment of the County in Willis’ administrative appeal. 18 Homan testified that he could not identify with specificity any confidential information which appellee might possess: [APPELLEE’S COUNSEL]: And it’s your belief today that [appellee] possesses confidential information of the County’s that she can use to the County’s detriment in the Willis matter? [HOMAN]: I believe, as I said before, that [appellee], going back to the period of this audit, knew exactly what the County’s position was. But was aware or should have been aware that the County Attorney’s office was involved in the adoption of the policy, and if at any point in time had any ⁷⁰⁸ doubts about whether or not the County was doing what was appropriate, should have raised those issues to her client at the time. Having