A jury decided the fate of Marilyn Mosby, Baltimore’s former top prosecutor, last week. In her second federal criminal case in recent months, the jury convicted Mosby of one count of mortgage fraud for making false statements to multiple mortgage lending companies as she purchased two properties in Florida. They acquitted her on another count.
Already convicted on two counts of perjury for lying about her finances when withdrawing $90,000 from her city retirement account to purchase the Florida homes, it seems certain that Mosby’s political career is over. But will she lose her license to practice the law?
According to her lawyers, probably not. It was over a month after Mosby’s conviction before Maryland’s bar counsel even filed a petition with the state’s Supreme Court to temporarily suspend Mosby’s license. For her part, showing the height of chutzpah — or maybe knowing the bar counsel’s inclinations — Mosby is already fighting this temporary suspension. Her lawyer reportedly believes that the “final sanction in the attorney discipline case will not be significant, so a temporary suspension of Mosby’s law license threatens to exceed the actual punishment she will receive in the end.”
That’s outrageous. But it should come as no surprise. State bar associations, which exist to uphold the integrity of the legal profession and protect the public from unscrupulous lawyers, will typically pursue even minor violations of their code of professional conduct with zeal. Yet when it comes to rogue prosecutors like Mosby, who have refused to do their jobs and even engaged in misconduct while in office, these bar associations have been strangely silent or willing to cut sweetheart deals.
This is a problem. While a state’s supreme court has the final say on lawyer regulation and discipline in most states, these bar associations often function as the quasi-independent enforcement arm of the courts. Indeed, the high courts tend to defer to their recommendations.
Sadly, there’s a perception that many bar counsels who enforce their state’s ethical rules don’t do so evenhandedly, often giving those on the left a free pass or, at most, a slap on the wrist for even the most egregious conduct.
Don’t believe us? Just look at what’s happened — or hasn’t happened — to rogue prosecutors who have left office under clouds of scandal.
In St. Louis, former Circuit Attorney Kim Gardner resigned in disgrace among investigations and scathing reports about misfeasance, malfeasance, and general dysfunction in her office. Only after it became apparent that she essentially suborned perjury (though no finding to that effect has ever been entered) did the state bar counsel take any action. Most lawyers would expect to face suspension or disbarment for similar actions.
Instead, the bar counsel entered into an agreement with Gardner that recommended merely a public reprimand — essentially a statement by the state’s supreme court that she did something bad and shouldn’t do it again — and a fine of $750. The Missouri Supreme Court did just that. It’s a slap on the wrist and a gift to the ethically challenged Gardner.
Then there’s the case of Rachael Rollins, the former district attorney of Suffolk County, Massachusetts. Despite her history of bizarre behavior such as an apparent road-rage incident in a supermarket parking lot or threatening reporters who later showed up to cover that altercation, President Joe Biden decided to appoint her as the United States attorney — the chief federal law enforcement officer — for the entire state of Massachusetts. Her nomination proved to be so controversial that Vice President Kamala Harris had to cast the tie-breaking vote to secure her confirmation. That’s unheard of for a U.S. attorney nominee.
According to a Department of Justice inspector general (IG) report, Rollins committed a series of unethical and criminal acts while in office. In fact, the IG accused her of lying to federal investigators during his investigation.
That’s a federal crime, and the IG referred her — the sitting U.S. attorney — for criminal prosecution by the Justice Department. Of course, the Biden Justice Department declined to prosecute the case, but Rollins did have to resign in disgrace.
A separate federal investigation by the Office of Special Counsel found that her violations of the Hatch Act, which prohibits certain political activity by government officials, were “among the most egregious transgressions of the Act that OSC has ever investigated.”
While many lawyers speculated that the state bar would institute disciplinary proceedings against Rollins, nothing has happened. It has been eight months since the IG released his report and Rollins resigned, yet she remains eligible to practice law.
Finally, there’s the situation of Kevin Clinesmith. Despite admitting to doctoring an email that FBI officials then relied on to obtain a warrant to surveil a member of President Trump’s 2016 campaign, he received less than a slap on the wrist from D.C. Bar authorities. In Clinesmith’s case, they didn’t even begin disciplinary proceedings until five months after he entered his guilty plea — and even then only after a media organization raised questions about his lack of bar discipline. Ultimately, the bar recommended, and the court overseeing it agreed, “to let Clinesmith off suspension with time served; the bar, in turn, restored his status to ‘active member’ in ‘good standing.’”
All of this stands in stark contrast to how state bar associations have aggressively pursued the bar licenses of lawyers who represented then-President Trump in the aftermath of the 2020 election. Assuming, for the sake of argument, that there can be good-faith disagreement about whether their actions merit punishment, such as formal sanctions or disbarment, the question remains: Why have state bar authorities not pursued misconduct allegations as aggressively against these three rogue prosecutors and others on the left?
The natural conclusion one can draw is that it’s because the bar authorities generally agree with the political persuasions of these rogue prosecutors, but not with those of the lawyers who represented Trump. It’s a double standard that shouldn’t stand.
Regardless, it’s high time to start a larger conversation about the vast power state bar associations wield over the livelihoods of lawyers practicing under their supervision. The American Bar Association is currently pushing several problematic policies, including a speech code for lawyers that likely violates the First Amendment. Some states have already adopted some of these policies, giving bar counsels even more power to punish actions — and speech — with which they disagree.
Considering their apparent partisan inclinations, that should chill all of us.
