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Serial Abuse of Discovery Rules Warrants Disbarment

By Charles S. Fax, Litigation News Associate Editor

The Maryland Court of Appeals’ opinion in Attorney Grievance Commission v. Mixter is not an easy read. The text spans 130 pages and contains 79 footnotes. Seven appendices consume another 20 pages. The prose flows unevenly and the quotidian narrative quickly bogs down in excruciating detail. Mixter should be required reading, however, for every litigator who wants to understand better the nexus between the prosaic civil rules of discovery and the Draconian sanction of disbarment for abuse of those rules.


Mark Mixter was a seasoned, successful Maryland civil trial lawyer who represented plaintiffs and defendants over a 35-year career. By all accounts, Mixter’s clients held him in high esteem and greatly appreciated his zealous advocacy of their cases. Indeed, calling Mixter’s advocacy “zealous” would be an understatement. The Court of Appeals found that in 22 cases, over a period of approximately 7 years, Mixter abused the rules concerning subpoenas; made frequent misrepresentations in motions to compel and for contempt; frequently noted depositions in the wrong venue; failed to make good-faith attempts to resolve discovery disputes and then lied about it; misrepresented the contents of court orders; and misrepresented the required terms of expert witness compensation. While many of these violations in and of themselves might be construed as warranting, at most, a protective order under Rule 26 or sanctions under Rule 37 (or their state equivalents), the court found that Mixter violated the discovery rules so flagrantly, repeatedly, and relentlessly that he should be disbarred.


For example, in 35 instances, Mixter issued subpoenas duces tecum to out-of-state witnesses over whom the Maryland courts lacked personal jurisdiction, misrepresenting to the recipients that they could be compelled to appear in Maryland to make the requisite document production. Worse, in a number of those cases, when the witness balked at making the production, Mixter filed repeated motions to compel and for sanctions. In these motions, he routinely failed to disclose the location of the witness, endeavoring to mislead the tribunal into believing that it had personal jurisdiction in the matter. Mixter engaged in the same practice—regularly noticing nonparty document production and depositions for his Baltimore office—when the nonparty witness, though located in Maryland, was not in Baltimore, making Baltimore an improper venue under the Maryland Rules of Procedure. Again, when those witnesses refused to succumb to his tactics, Mixter would seek to enforce his invalid in-state subpoenas through motions to compel or for sanctions.


The Court of Appeals noted further that Mixter had the habit of serving subpoenas returnable in less than the required 30 days—and then, in seeking to enforce those subpoenas, routinely misrepresenting to the court the date of service, generally attesting that the subpoenas were served on or about the date of their issuance. Mixter also filed numerous false certifications of good-faith efforts to resolve discovery disputes, often failing to advise the court of adverse counsel’s attempts to communicate with him in the matter. In 13 cases, Mixter either ignored court orders or misrepresented their contents to reviewing courts. He misrepresented to health care providers that the opposing party had no objection to release of their confidential medical records.


Mixter’s serial misconduct over a protracted period of time was well known within a segment of the bar, and indeed, in a number of the cases reviewed by the Court of Appeals, courts imposed discovery sanctions on him. Why, then, did it take so long to hold him accountable programmatically for his chronic discovery abuses? The answer could be that lawyers did not file grievances against him. Rather, they litigated their cases, obtained sanctions when warranted, resolved their claims, and moved on.


Although lawyers are ethically bound to report professional misconduct, it is often a disagreeable, time-consuming, and ultimately frustrating task—and it is generally not compensated. When the case is over, what is the incentive to re-open the thick file to undertake the arduous process of developing the record to substantiate a grievance; then draft and finalize it; then, as required in Maryland, defend your grievance before a “peer review” panel of laypersons and attorneys who may be unfamiliar with the law? Mixter exploited his adversaries’ desire to forget about him when the case was over. That strategy worked until his time ran out.


Keywords: sanctions, attorney misconduct, ethics, discovery rules


 

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