Attorney Grievance Comm'n of Md. v. Malone
| Decision Date | 31 January 2022 |
| Docket Number | Misc. Docket AG No. 47, Sept. Term, 2020 |
| Citation | 477 Md. 225,269 A.3d 282 |
| Parties | ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Edward Allen MALONE |
| Court | Court of Special Appeals of Maryland |
Argued by Jessica Boltz McCully, Asst. Bar Counsel (Lydia E. Lawless, Bar Counsel, Attorney Grievance Commission of Maryland), for Petitioner.
Argued by Craig S. Brodsky, Esquire (Goodell, DeVries, Leech & Dann, LLP), Baltimore, MD, for Respondent.
On November 20, 2020, Petitioner, the Attorney Grievance Commission of Maryland, acting through Bar Counsel, filed a Petition for Disciplinary or Remedial Action (the "Petition") alleging that Edward Allen Malone, Respondent, violated the following Maryland Lawyers’ Rules of Professional Conduct ("MLRPC"), as then enumerated1 : 8.1(a) and (b) (bar admission and disciplinary matters), and 8.4(a), (b), (c), and (d) (misconduct).
In pretrial discovery, Mr. Malone invoked the Fifth Amendment privilege against self-incrimination in response to two of Bar Counsel's requests for production of documents, as well as in response to every question Bar Counsel asked at Mr. Malone's deposition. Although Bar Counsel's position was that Mr. Malone invoked the Fifth Amendment improperly, Bar Counsel did not file a motion to compel discovery. Instead, Bar Counsel filed a motion in limine seeking to preclude Mr. Malone from testifying at the upcoming evidentiary hearing on the alleged MLRPC violations.
At a hearing on Bar Counsel's motion in limine , Mr. Malone argued that a litigant should be allowed to "assert the privilege pretrial" but later "change [one's] mind and then testify" at trial. Mr. Malone also told the hearing judge that he probably would not testify as part of his "case in chief" at the upcoming evidentiary hearing, but that, if he were found "guilty" at the hearing, he would want to "address the Court" concerning the "sentence" to be imposed. At the conclusion of the hearing on the motion in limine , the hearing judge found that Mr. Malone invoked the privilege against self-incrimination in bad faith at his deposition. The hearing judge granted Bar Counsel's motion in limine and precluded Mr. Malone from testifying at the evidentiary hearing.
Following the evidentiary hearing, the hearing judge found that Mr. Malone violated the MLRPC, as alleged by Bar Counsel. The hearing judge also concluded that Bar Counsel proved the existence of several aggravating factors, and that Mr. Malone failed to establish the existence of any mitigating factors.
Mr. Malone subsequently filed exceptions to the hearing judge's findings of fact and conclusions of law in this Court. He contends that the hearing judge improperly sanctioned him for his assertion of the Fifth Amendment privilege against self-incrimination during discovery. Mr. Malone requests that we remand the case to the circuit court for an entirely new evidentiary hearing or, alternatively, that we suspend him from the practice of law for three months.
As discussed below, the hearing judge properly found that Mr. Malone violated Rules 8.1(a) and (b) and Rules 8.4(a), (b), (c), and (d). However, a limited remand is warranted to allow Mr. Malone to testify as to mitigation. Following that testimony, the hearing judge shall issue a supplemental opinion addressing mitigating factors and, if necessary, aggravating factors. We shall defer determination of the applicable aggravating and mitigating factors and the appropriate sanction for Mr. Malone's violations of the MLRPC, pending the proceedings on remand and further proceedings in this Court.
Bar Counsel alleged in the Petition that Mr. Malone – a member of the Maryland Bar since 1999 – knowingly and intentionally provided false information to the Texas Board of Law Examiners (the "Texas Board" or the "Board") on several occasions during a multi-year quest to obtain admission to the Texas Bar. Bar Counsel alleged that Mr. Malone, on multiple occasions, knowingly failed to disclose to the Texas Board: (1) that he was admitted to practice law in the State of Virginia, in the United States District Court for the District of Maryland, and in other federal courts; and (2) that the Virginia State Bar and the United States District Court for the District of Maryland previously had sanctioned him. In addition, Bar Counsel alleged that, after the Texas Board opened an investigation and asked Mr. Malone to explain his failure to disclose his Virginia licensure and disciplinary history, Mr. Malone knowingly and intentionally made a false statement to the Texas Board when he claimed that he "failed to disclose [his] Virginia license and discipline to the board because [he] did not read the questions carefully enough" and that he "did not believe [he] was required to share [his] experience practicing law in Virginia." Bar Counsel alleged that Mr. Malone violated MLRPC 8.1(a), 8.1(b), 8.4(a), 8.4(b), 8.4(c), and 8.4(d).
On December 1, 2020, following Bar Counsel's filing of the Petition, this Court designated the Honorable Alison L. Asti of the Circuit Court for Anne Arundel County to conduct an evidentiary hearing in accordance with Maryland Rule 19-727. Judge Asti issued a Scheduling and Pre-Trial Order providing, among other things, that all discovery was to be completed by April 14, 2021, that all motions in limine were to be filed by April 30, 2021, and that the evidentiary hearing on Petitioner's charges would begin on May 5, 2021.
On February 3, 2021, Mr. Malone – who was not represented by counsel during the proceedings before the hearing judge in this case – filed an answer to the Petition, styled "Response to Petition for Disciplinary or Remedial Action." Mr. Malone admitted the majority of the factual allegations contained in the Petition, including: (1) that he knowingly and intentionally failed to disclose his admission to the Virginia State Bar, as well as his Virginia disciplinary history, to the Texas Board; and (2) that he made a knowing and intentional misrepresentation to the Texas Board when purporting to explain why he failed to disclose his Virginia license and discipline to the Board. However, Mr. Malone denied the allegations that he knowingly concealed his admission to, and his disciplinary history in, the United States District Court for the District of Maryland.
On February 25, 2021, the Assistant Bar Counsel responsible for Mr. Malone's case ("Bar Counsel") advised Mr. Malone by email of her intention to take his deposition remotely and provided him with potential dates for the deposition. Mr. Malone replied to Bar Counsel the following day, asking that he be allowed to "avert a deposition, as the facts of [Bar Counsel's] case are essentially undisputed." On March 1, 2021, Bar Counsel advised Mr. Malone by email that she was moving forward with his deposition, and asked that he provide his availability for the dates previously proposed. Mr. Malone subsequently replied: Bar Counsel subsequently advised Mr. Malone that he could invoke his Fifth Amendment privilege in response to specific questions at the deposition and again requested that he provide available dates. In response, Mr. Malone emailed Bar Counsel:
On March 2, 2021, Bar Counsel served Mr. Malone with a Notice of Deposition. On March 4, 2021, Mr. Malone filed a Motion for Protective Order to Quash the Notice of Deposition under Rule 2-403 in which he asserted, among other things, that "there is essentially no material issue of fact in dispute" and that "forcing a Respondent who has already confessed to undergo further examination is abusive and oppressive." Bar Counsel filed a response on March 5, 2021. By Order dated March 9, 2021, Judge Asti denied Mr. Malone's motion for a protective order. On March 12, 2021, Mr. Malone filed a reply3 again stating that no material facts were in dispute, and asserting that Bar Counsel had all the facts it needed to proceed against him at the evidentiary hearing. In response to Bar Counsel's suggestion that Mr. Malone invoke his Fifth Amendment privilege on a question-by-question basis during the deposition, Mr. Malone stated that "the plain language of the 5th amendment says that a person shall not be compelled to testify against himself, period!"
On March 16, 2021, Mr. Malone served "Supplemental Answers to Petitioner's First Set of Documents Requests" on Bar Counsel. In response to requests for "[a]ll correspondence ... between you and any individual identified in your Answers to Interrogatories" and for "[a]ll written correspondence or other documents you filed with and/or received from the Texas Board of Law Examiners," Mr. Malone objected on the basis of, among other things, the Fifth Amendment privilege against self-incrimination. Mr. Malone did not invoke the Fifth Amendment in response to Bar Counsel's other seven requests for production of documents.
On March 29, 2021, Mr. Malone appeared for his remote deposition. Mr. Malone invoked his Fifth Amendment privilege against self-incrimination in response to every question he was asked, including:
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