Attorney Grievance Comm'n of Md. v. Tatung, Misc. Docket AG No. 14, Sept. Term, 2020

CourtCourt of Special Appeals of Maryland
Writing for the CourtBooth, J.
Citation476 Md. 45,258 A.3d 234
Docket NumberMisc. Docket AG No. 14, Sept. Term, 2020
Decision Date26 August 2021
Parties ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Celestine TATUNG

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.

476 Md. 50

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

258 A.3d 238

in Texas. As we will discuss more fully herein, Mr. Tatung made a handful of careless mistakes in connection with his clients’ representation—he

476 Md. 51

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.

I

Background

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

476 Md. 52

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.

258 A.3d 239

II

Standard 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

476 Md. 53

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

258 A.3d 240
476 Md. 54

III

Factual 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

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8 practice notes
  • Attorney Grievance Comm'n of Md. v. Bonner, Misc. Docket AG No. 51, Sept. Term, 2020
    • United States
    • Court of Special Appeals of Maryland
    • March 3, 2022
    ...the underlying conduct, Bar Counsel withdrew its exception, presumably based upon our decision in Attorney Grievance Commission v. Tatung , 476 Md. 45, 74, 258 A.3d 234 (2021). Notwithstanding the fact that Bar Counsel is no longer excepting to the application of the D.C. Rules, Bar Counsel......
  • Attorney Grievance Comm'n of Md. v. White, Misc. Docket AG No. 7, Sept. Term, 2021
    • United States
    • Court of Special Appeals of Maryland
    • August 12, 2022
    ...and unambiguous, we need 480 Md. 356 not look beyond the language of the rule to inform our analysis." Att'y Grievance Comm'n v. Tatung , 476 Md. 45, 74, 258 A.3d 234 (2021) (citing Lisy Corp. v. McCormick & Co., Inc. , 445 Md. 213, 221, 126 A.3d 55 (2015) ). Maryland Rule 2-424(a) states, ......
  • Attorney Grievance Comm'n of Md. v. Malone, Misc. Docket AG No. 47, Sept. Term, 2020
    • United States
    • Court of Special Appeals of Maryland
    • January 31, 2022
    ...legitimately invoke the Fifth Amendment. However, Bar Counsel did not proceed in that manner.23 In Attorney Grievance Comm'n v. Tatung , 476 Md. 45, 258 A.3d 234 (2021), this Court examined MARPC 19-308.5(b) (formerly MLRPC 8.5(b)), which states, in pertinent part: "In any exercise of the d......
  • Attorney Grievance Comm'n of Md. v. Taniform, Misc. AG 40-2021
    • United States
    • Court of Appeals of Maryland
    • December 16, 2022
    ...choice of law issue did not comply with Rule 8.5(b) and this Court's discussion and holdings in Attorney Grievance Commission v. Tatung, 476 Md. 45 (2021), and Attorney Grievance Commission v. Bonner, 477 Md. 576 (2022). I write to express my view on how Bar Counsel should file charges when......
  • Request a trial to view additional results
8 cases
  • Attorney Grievance Comm'n of Md. v. Bonner, Misc. Docket AG No. 51, Sept. Term, 2020
    • United States
    • Court of Special Appeals of Maryland
    • March 3, 2022
    ...the underlying conduct, Bar Counsel withdrew its exception, presumably based upon our decision in Attorney Grievance Commission v. Tatung , 476 Md. 45, 74, 258 A.3d 234 (2021). Notwithstanding the fact that Bar Counsel is no longer excepting to the application of the D.C. Rules, Bar Counsel......
  • Attorney Grievance Comm'n of Md. v. White, Misc. Docket AG No. 7, Sept. Term, 2021
    • United States
    • Court of Special Appeals of Maryland
    • August 12, 2022
    ...and unambiguous, we need 480 Md. 356 not look beyond the language of the rule to inform our analysis." Att'y Grievance Comm'n v. Tatung , 476 Md. 45, 74, 258 A.3d 234 (2021) (citing Lisy Corp. v. McCormick & Co., Inc. , 445 Md. 213, 221, 126 A.3d 55 (2015) ). Maryland Rule 2-424(a) states, ......
  • Attorney Grievance Comm'n of Md. v. Malone, Misc. Docket AG No. 47, Sept. Term, 2020
    • United States
    • Court of Special Appeals of Maryland
    • January 31, 2022
    ...legitimately invoke the Fifth Amendment. However, Bar Counsel did not proceed in that manner.23 In Attorney Grievance Comm'n v. Tatung , 476 Md. 45, 258 A.3d 234 (2021), this Court examined MARPC 19-308.5(b) (formerly MLRPC 8.5(b)), which states, in pertinent part: "In any exercise of the d......
  • Attorney Grievance Comm'n of Md. v. Taniform, Misc. AG 40-2021
    • United States
    • Court of Appeals of Maryland
    • December 16, 2022
    ...choice of law issue did not comply with Rule 8.5(b) and this Court's discussion and holdings in Attorney Grievance Commission v. Tatung, 476 Md. 45 (2021), and Attorney Grievance Commission v. Bonner, 477 Md. 576 (2022). I write to express my view on how Bar Counsel should file charges when......
  • Request a trial to view additional results

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