Attorney Grievance Comm'n of Md. v. Tatung

• Decision Date: 26 August 2021
• Docket Number: Misc. Docket AG No. 14, Sept. Term, 2020
• Citation: 476 Md. 45,258 A.3d 234
• Parties: ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Celestine TATUNG
• Court: Court of Special Appeals of Maryland

476 Md. 45

258 A.3d 234

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND

v.Celestine TATUNG

Misc. Docket AG No. 14, Sept. Term, 2020

Court of Appeals of Maryland.

August 26, 2021

Argued by Lydia E. Lawless, Bar Counsel (Lydia E. Lawless, Bar Counsel, Attorney Grievance Commission of Maryland), for Petitioner.

Argued by David G. Mulquin (Brault Graham, LLC), Rockerville, MD, for Respondent.

Argued before: Barbera, C.J., McDonald, Getty, Booth, Biran, Alan M. Wilner (Senior Judge, Specially Assigned), Glenn T. Harrell, Jr. (Senior Judge, Specially Assigned), JJ.

Booth, J.

Harrell, J., Dissents.

The practice of law, like many other professions, has become more mobile. Our profession is no longer confined to the traditional law office setting. Indeed, attorneys can practice law from their home—or virtually anywhere—with the modern conveniences of a high-speed internet connection, a cellphone and a laptop. With this portability, it is increasingly possible for an attorney to practice law from a location other than the jurisdiction in which he or she is licensed. Some attorneys exclusively practice in a particular area of the law—such as federal bankruptcy or immigration—where they are not required to be barred in the state where they maintain a principal office, so long as their practice is limited to those predominantly federal areas of law. As more states adopt the Uniform Bar Examination, it's also easier (and more common) for attorneys to become licensed in more than one state. Our Maryland Attorneys’ Rules of Professional Conduct ("MARPC") are clear that, if an attorney practices law in this State—regardless of whether he or she is licensed in Maryland—the attorney is subject to the disciplinary authority of this State.

In this attorney grievance proceeding, the Respondent, Celestine Tatung has raised a choice of law question involving the rules of professional conduct that apply in a Maryland attorney disciplinary proceeding where the particular misconduct alleged by the Attorney Grievance Commission (the "Commission") occurred in connection with his representation of two clients in federal immigration proceedings in Texas. As we will discuss more fully herein, Mr. Tatung made a handful of careless mistakes in connection with his clients’ representation—he did not check to see if the immigration judge had any standing orders in place concerning telephonic appearances at master calendar hearings (which caused him to miss his clients’ hearings); he filed an affidavit purporting to authenticate his clients’ foreign witness affidavits in both of his clients’ cases when it only pertained to one client's case; and he negotiated a fixed fee agreement for the representation (which included his travel expenses), anticipating that he would need to make only two trips to Texas, instead of the four trips that he ultimately made.

Mr. Tatung argues that, under the choice of law provisions set forth in MARPC 19-308.5(b), the Commission was required to charge him under the rules of professional conduct that apply to federal immigration proceedings, and not the Maryland professional conduct rules. For the reasons stated in this opinion, we agree with Mr. Tatung. Accordingly, we shall dismiss the charges filed under the MARPC that pertain to the alleged wrongful conduct that arose in connection with the federal immigration proceeding.

The Commission also charged Mr. Tatung for violating the MARPC in connection with its investigation. Although the MARPC applies to allegations of misconduct arising in connection with the disciplinary investigation, based upon our independent review of the record, we conclude that Bar Counsel failed to prove by clear and convincing evidence that Mr. Tatung violated the MARPC in connection with the investigation. Accordingly, we shall also dismiss those charges. We explain below our analysis and conclusions that support the dismissal of all charges brought against Mr. Tatung.

IBackground

On May 20, 2020, the Commission, through Bar Counsel, filed a Petition for Disciplinary or Remedial Action against Mr. Tatung, alleging that he had violated numerous provisions of the rules of professional conduct. These included Maryland Attorneys’ Rules of Professional Conduct ("MARPC")¹ 1.1 (Competence), 1.3 (Diligence), 1.4 (Communication), 1.5 (Fees), 1.15 (Safekeeping Property), 3.3 (Candor Toward the Tribunal), 8.1 (Bar Admission and Disciplinary Matters), and 8.4 (Misconduct). Bar Counsel also charged Mr. Tatung under Maryland Code, Business Occupations and Professions Article ("BOP") § 10-304.

Pursuant to Rule 19-722(a), we designated Judge Bryon S. Bereano of the Circuit Court for Prince George's County ("the hearing judge") to conduct a hearing concerning the alleged violations and to provide findings of fact and conclusions of law. Following a hearing in November 2020, the hearing judge concluded that Mr. Tatung violated Rule 1.1, Rule 1.3, Rule 1.5, Rule 8.1(a), and Rule 8.4 (a), (c) and (d). The hearing judge concluded that there was insufficient evidence to establish violations of Rule 1.4, Rule 1.15, Rule 3.3, and BOP § 10-304.

IIStandard of Review

In discussing the underlying facts and the legal issues presented in this case, we note that this Court has original and complete jurisdiction in attorney disciplinary proceedings and conducts an independent review of the record. Attorney Grievance Comm'n v. Ambe , 466 Md. 270, 286, 218 A.3d 757 (2019) (citations omitted). As part of that original jurisdiction, Rule 19-741(c)(1) states that "[t]he Court of Appeals may order (A) disbarment, (B) suspension, (C) a reprimand, (D) placement on inactive status, (E) dismissal of the disciplinary or remedial action, or (F) a remand for further proceedings" in grievance cases when deemed appropriate.

In an attorney grievance matter, this Court reviews the lower court's recommended conclusions of law de novo . Md. Rule 19-741(b)(1) ; Attorney Grievance Comm'n v. Thomas , 440 Md. 523, 545, 103 A.3d 629 (2014). When assessing the hearing judge's findings of fact, we review for clear error. Attorney Grievance Comm'n v. Maldonado , 463 Md. 11, 33, 203 A.3d 841 (2019). If exceptions to the findings of facts are filed, the Court "shall determine whether the findings of fact have been proven by the requisite standard of proof set out in Rule 19-727(c)." Md. Rule 19-741(b)(2)(B) ; Maldonado , 463 Md. at 33, 203 A.3d 841. "Bar Counsel has the burden of proving the averments of the petition by clear and convincing evidence." Md. Rule 19-727(c). "If the attorney asserts an affirmative defense or a matter of mitigation or extenuation, the attorney has the burden of proving the defense or matter by a preponderance of the evidence." Id.

Prior to the evidentiary hearing, Mr. Tatung filed a motion in limine , arguing that, under the choice of law provisions set forth in Rule 8.5(b), he was required to be charged under the federal rules promulgated by the Executive Office of Immigration Review ("EOIR") of the United States Justice Department, namely 8 C.F.R. § 1003.102 (2012). Mr. Tatung asserted that, under the plain language of Rule 8.5(b), the MARPC did not apply to the alleged misconduct that arose in the context of the Texas federal immigration proceeding.

The hearing judge denied Mr. Tatung's motion and proceeded with the evidentiary hearing. We address the choice of law issue more fully herein. But to provide some context for our conclusion concerning the choice of law provisions, and the reasons for our dismissal, we provide the factual background and procedure that informs our decision. Bar Counsel and Mr. Tatung each filed several exceptions to the hearing judge's findings of fact and conclusions of law.²

IIIFactual and Procedural Background

A. Mr. Tatung's Law Practice

Mr. Tatung was admitted to the District of Columbia bar on October 12, 2007. Mr. Tatung is not a member of the Maryland bar. In 2009, Mr. Tatung opened a law office in Prince George's County. He practices exclusively in immigration matters, representing approximately 300 clients per year and regularly appears in several United States immigration courts across the country every year.

B. Mr. Tatung's Representation of Cameroon Citizens in a Federal Immigration Proceeding in Texas

This disciplinary proceeding arises from Mr. Tatung's representation of two clients in immigration proceedings that occurred in the federal immigration court in Texas. Anim Khan and Rachel Amasioni ("the clients") are citizens of Cameroon. In January 2017, the clients presented themselves at the El Paso, Texas Port of Entry seeking asylum. They were detained at the El Paso processing center and placed in removal proceedings in the United States Immigration Court in El Paso, Texas with the Honorable William L. Abbott to preside over both of their cases. Both clients had relatives living in Ohio, and the relatives knew one another from the local Cameroonian community.³

Prior to Mr. Tatung's representation, the clients were represented by another attorney. After the first attorney withdrew from the cases, in July 2017, the clients’ relatives contacted Mr. Tatung by telephone and retained him to represent the clients. The understanding was that Mr. Tatung would represent both individuals in their removal proceedings and attempt to obtain asylum for them in the United States. Mr. Tatung signed retainer agreements with the clients’ relatives, as contacts. Neither the clients nor their family members received copies of any signed, executed retainer agreements. Under the terms of the representation, Mr. Tatung agreed to charge each client a flat fee of $5,000 for the duration of the representation, which included Mr. Tatung's travel expenses from Maryland to El Paso, Texas. Based upon his prior experience, Mr. Tatung expected that he would need to make two appearances in each case. The cases were originally set for the same day, which would enable Mr. Tatung to travel to Texas for both cases at the same...