Unnamed Attorney v. Attorney Grievance Commission

ELDRIDGE, Judge. The appellant, who is listed in the caption of this case as “Unnamed Attorney,” has been a member of the Maryland Bar since 1972. In early 1983, the Attorney Grievance Commission received several complaints concerning “flyers,” advertising the appellant’s services. Persons who had been involved in automobile accidents had received these flyers in the mail.

Following several communications between the appellant and Bar Counsel or an assistant bar counsel, Bar Counsel in October 1983 informed the appellant that the question of possible violations of the Code of Professional Responsibility would be referred to an Inquiry Panel. The Inquiry Panel, with one member dissenting, determined that the matter should be dismissed without a hearing. In light of the dissent, Bar Counsel transmitted the ⁴⁷⁶ Inquiry Panel recommendations and reports to the Review Board as required by Maryland Rule BV6 d 4(d). The Review Board thereafter remanded the case for a hearing before another Inquiry Panel.

On August 27, 1984, the newly formed Inquiry Panel served upon the appellant a “Certified Letter in Lieu of Subpoena” pursuant to Rule BV6 d 3(d). 1 The letter required the appellant’s attendance at a hearing scheduled for September 14, 1984, and demanded the production of various documents. 2 ⁴⁷⁷ The appellant, on September 13, 1984, commenced the present court action by filing in the Circuit Court for Prince George’s County a “Motion For A Protective Order, Or In The Alternative, Motion To Quash A Subpoena.” Based on various arguments set forth in the motion, including First Amendment contentions, the appellant sought an order either protecting him from having to comply with or quashing the “Certified Letter in Lieu of Subpoena.” Next, the Attorney Grievance Commission, by Bar Counsel’s office, on October 19, 1984, filed in the Circuit Court for Prince George’s County a “Motion For Contempt,” asserting that at the Inquiry Panel hearing on September 14th “the Respondent, upon advice of counsel, refused to answer proper questions during the course of the hearing” and “failed to produce the documents and records sought by the Inquiry Panel.” The Attorney Grievance Commission prayed for “an order requiring the Respondent to show cause why an order adjudging him in contempt shall not be passed” and for “such other and further relief as the Court deems appropriate.” The “Motion For Contempt” was said to be authorized by Rule BV6 d 3(e). 3 The circuit court ⁴⁷⁸ treated the contempt motion as part of the same case as the motion for a protective order, and assigned it the same civil action number. In accordance with the prayer in the contempt motion, the circuit court issued an order requiring the “Respondent” to show cause “why he should not be held in contempt of this Court.” The “show cause hearing,” together with a hearing on the motion for a protective order or to quash, were scheduled at the same time, before the same judge, on January 3, 1985. At the hearing, each side and the trial judge treated the issue underlying both motions as the same, namely whether the unnamed attorney was required to testify and produce the sought documents at an Inquiry Panel hearing. In fact, at the end of the hearing Assistant Bar Counsel represented to the court that the appellant’s “motion to quash or for protective order should be looked at as the answer to the motion for contempt.

That is the way I think it ought to be treated.” On January 22, 1985, the circuit court issued an order on the two motions which provided, in pertinent part, as follows: “This matter came before the Court on the Order to Show Cause filed by Inquiry Panel of the Attorney Grievance Commission of Maryland seeking to hold the Respondent in contempt for his failure to produce certain documents pursuant to a subpoena issued by that body---- A hearing was held in closed Court upon that Order and upon the Motion for Protective Order filed by the Respondent on January 3, 1985. Subsequently the matter was taken under advisement to consider the issues raised. “Accordingly, after consideration of the arguments advanced by counsel and the memorandum submitted in support thereof, it is this 22nd day of January, 1985, by the Circuit Court for Prince George’s County, Maryland, “ORDERED, that the Respondent produce for inspection the following items: ⁴⁷⁹ (1) Any and all financial journals and ledgers of the general account of the Respondent’s law office; (2) any and all contracts and agreements with advertising agencies, newspapers, printers, publishers and stationery producers and manufacturers; (3) any and all files of persons as of this date, who have filed formal complaints against the Respondent with the Attorney Grievance Commission.” The order was entered on the docket the same day. Ten days later, on February 1, 1985, the Attorney Grievance Commission filed a “Motion For Correction And/Or Modification Of Order” of January 22, 1985, pointing out that the January 22nd order did not address the unnamed attorney’s failure to testify before the Inquiry Panel and asking the court to modify the January 22nd order “to include a direction to the Respondent to testify and respond to proper questions at an Inquiry Panel hearing.” On February 4, 1985, before any ruling on the Attorney Grievance Commission’s motion to modify, the unnamed attorney filed an order of appeal and a motion to stay the January 22nd order pending appeal. Two days later, the circuit court granted the motion and directed that the January 22nd order be stayed pending appeal.

The court also entered an order “that a determination regarding correction and/or modification of the Court’s Order of January 22, 1985, also be stayed pending Appeal in this case.” Thereafter, the Attorney Grievance Commission filed in the Court of Special Appeals a motion to dismiss the appeal on the ground that the January 22, 1985, order was interlocutory in nature. The Court of Special Appeals on February 25, 1985, granted the motion and dismissed the appeal. Three days later, however, the intermediate appellate court sua sponte reconsidered the matter, recited that its order of February 25th was improvidently granted, denied the motion to dismiss, and reinstated the appeal. Prior to briefing and argument, the Court of Special Appeals certified the case to this Court pursuant to Rule ⁴⁸⁰ 1015.

In accordance with Rule 815, we granted the certification application and issued a writ of certiorari. In addition to the briefs and oral arguments on the merits of the case, the Attorney Grievance Commission has moved in this Court to dismiss the appeal on the ground that the circuit court’s January 22, 1985, order, at the time it was entered, was interlocutory and nonappéalable. The Commission’s theory is that a court order denying a motion to quash or enforcing an administrative subpoena is inherently interlocutory, and that appellate jurisdiction to review a circuit court order of this nature exists only when one refuses to obey the court order, is adjudged to be in contempt of court, and appeals the contempt order. The Attorney Grievance Commission primarily relies upon our recent decision in Sigma Reproductive Health Center v. State, 297 Md. 660 , 467 A.2d 483 (1983).

The Commission also relies on Alexander v. United States, 201 U.S. 117 , 26 S.Ct. 356 , 50 L.Ed. 686 (1906). We shall direct that the appeal in this case be dismissed, although on an entirely different ground than that argued by the Attorney Grievance Commission. (a) It has consistently been held in this State that where a court proceeding is commenced to quash dr to enforce an administrative subpoena, summons, search warrant, or similar process issued by an administrative agency or official, where the court refuses to quash or orders enforcement, and where the court’s order terminates the court proceeding, the order is final and appealable. The fact that the administrative proceedings may not be terminated does not render the court order interlocutory if nothing remains to be done in the trial court.

We have rejected the argument that, in this situation, one must be adjudged in contempt of the court order in order to obtain appellate review. For example, in Fred W. Allnutt, Inc. v. Comm’r, Lab. & Ind., 289 Md. 35 , 421 A.2d 1360 (1980), we held that a ⁴⁸¹ District Court order denying a motion to quash an administrative search warrant constituted a final appealable judgment. Chief Judge Murphy there pointed out for the Court that “once [the district judge] had issued the warrant and denied Allnutt’s motion to quash, nothing remained before the court. Consequently, the District Court’s order was appealable as a final judgment....” 289 Md. at 41 , 421 A.2d 1360 .

Again, in In Re Special Investigation No. 185, 293 Md. 652 , 655-656 n. 2, 446 A.2d 1151 (1982), where the Criminal Court of Baltimore refused to quash a summons duces tecum issued by the Attorney General pursuant to Code (1957, 1982 Repl.Vol.) Art. 27, § 592A, and ordered the production of documents in accordance with the summons, Judge Rodowsky noted for the Court: “Following the order of September 3, 1981 nothing remained before the Criminal Court of Baltimore. Thus the order was appealable as a final judgment. See Randall Book Corp. v. State, 49 Md.App. 131 , 430 A.2d 624 (1981), applying to a case of this type the principle enunciated in Fred W. Allnutt, Inc. v. Comm’r of Labor and Indus., 289 Md. 35 , 421 A.2d 1360 (1980). Cf.

In Re Special Investigation No. 186, 293 Md. 304 , 443 A.2d 120 (1982) (appeal entertained without discussion).” Later, in In Re Special Investigation No. 231, 295 Md. 366, 370 , 455 A.2d 442 (1983), where, in connection with an investigation by the Attorney General, a motion was filed in a trial court to disqualify an attorney, the Court in an opinion by Judge Smith stated: ⁴⁸² The above decisions were applied to hold appealable trial court orders denying motions to quash grand jury subpoenas in In Re Special Investigation No. 244, 296 Md. 80, 83-86 , 459 A.2d 1111 (1983), and In Re Special Investigation No. 249, 296 Md. 201, 203 , 461 A.2d 1082 (1983). See, in addition, Barnes v. Comm’r Of Labor & Indus., 45 Md.App. 396, 400 , 413 A.2d 259 (1980), aff'd, 290 Md. 9 , 427 A.2d 979 (1981), holding appealable a circuit court order requiring the production of documents at an administrative hearing pursuant to administrative subpoenas issued by the Commissioner of Labor and Industry. ⁴⁸¹ “In this case the proceeding consisted only of a motion to disqualify the attorney in question. Once the motion was denied there was nothing more to be done in this particular case. There was nothing else before the court.

There was nothing pending. Hence, we conclude that the order of the trial judge here settled the rights of the parties and terminated the cause. Thus, it was a final judgment.” ⁴⁸² The opinions relied on by the Attorney Grievance Commission are significantly distinguishable, as they involved motions and orders in pending court cases enforcing subpoenas for the production of documents in the pending judicial proceedings. Thus, Sigma Repro.

Health Cen. v. State, supra, 297 Md. at 664-666 , 497 A.2d 483 , was a circuit court criminal prosecution in which the defendant had a subpoena issued for the production of documents, the prosecution and the complainant moved to quash the subpoena, and the court denied the motion to quash. In holding that the order was not appealable as a final judgment, we emphasized that the criminal prosecution was still pending in the circuit court {id. at 665-666, 497 A.2d 483 ). Similarly, in Alexander v. United States, supra, 201 U.S.