Attorney Grievance Comm'n of Md. v. Malone

482 Md. 82

285 A.3d 546

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND

v.Edward Allen MALONE

Misc. Docket AG No. 47, Sept. Term, 2020

Court of Appeals of Maryland.

November 18, 2022

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

Argued by Craig S. Brodsky (Goodell, Devries, Leech & Dann, LLP), Baltimore, MD, for Respondent.

Argued before: Fader, C.J., Watts, Hotten, Booth, Biran, Gould, Eaves, JJ.

Watts, J.

This attorney discipline proceeding involves a lawyer who engaged in a continued course of dishonest and deceitful conduct to gain admission to the Bar of Texas. In Attorney Grievance Comm'n v. Malone, 477 Md. 225, 291-92, 269 A.3d 282, 321-22 (2022) (" Malone I"), we concluded that Edward Allen Malone, Respondent, "knowingly and intentionally provided false responses on his sworn Texas bar applications" when he failed to disclose information concerning his prior disciplinary history and bar admissions and "declared under oath in his affidavit that the information he provided was true and correct, thereby committing perjury under Texas law." In addition, we concluded that Malone knowingly and intentionally failed to supplement his Texas Bar application and subsequent re-applications with accurate information and thereby failed to correct the misapprehension that he had fully disclosed his disciplinary history in the jurisdictions in which he was licensed. See id. at 292, 269 A.3d at 321. We determined that, with this misconduct, Malone, a member of the Bar of Maryland, violated Maryland Lawyers’ Rules of Professional Conduct ("MLRPC") 8.1(a) and (b) (Bar Admission and Disciplinary Matters), 8.4(a) (Violating the MLRPC), 8.4(b) (Criminal Act), 8.4(c) (Dishonesty, Fraud, Deceit, or Misrepresentation), and 8.4(d) (Conduct that is Prejudicial to the Administration of Justice). See id. at 294, 269 A.3d at 323.¹

Rather than imposing a sanction, we ordered a limited remand to the hearing judge to reopen the evidentiary hearing for the purposes of: (1) permitting Malone to testify concerning mitigating factors; (2) allowing Bar Counsel to call witnesses and introduce exhibits rebutting Malone's testimony with respect to mitigation; (3) allowing the parties to present arguments concerning mitigating and aggravating factors; and (4) allowing the hearing judge to issue supplemental findings of fact and conclusions of law as to mitigating factors and, if necessary, aggravating factors. See Malone I, 477 Md. at 293, 269 A.3d at 322. We deferred ruling on any applicable aggravating and mitigating factors and the appropriate sanction pending the outcome of the remand. See id. at 236-37, 269 A.3d at 289. The limited remand stemmed from our conclusion that regardless of his invocation of the Fifth Amendment in response to a question from Bar Counsel as to mitigation at a deposition, Malone should have been permitted to testify concerning mitigation at the disciplinary hearing. See id. at 294, 269 A.3d at 323.² As such, "we conclude[d] that the hearing judge's order precluding [ ] Malone from testifying at the evidentiary hearing was in error to the extent it prevented [ ] Malone from testifying as to mitigating factors." Malone I, 477 Md. at 263, 269 A.3d at 304.

On March 22, 2022, on remand, the hearing judge conducted a hearing. At the hearing, Malone testified as to mitigation and offered exhibits into evidence. On May 10, 2022, the hearing judge filed supplemental findings of fact and conclusions of law, making findings as to mitigating and aggravating factors.³

On October 4, 2022, we heard oral argument. For the below reasons, we disbar Malone.

BACKGROUND

Hearing Judge's Findings of Fact and Conclusions of Law

In Malone I, 477 Md. at 248-56, 269 A.3d at 295-300, we summarized the hearing judge's findings of fact as follows:

Background

Mr. Malone was admitted to the Bar of Maryland and the Bar of the Commonwealth of Virginia in 1999. He has also been admitted to practice in several United States District Courts, including: the Eastern District of Virginia in 2001, the Western District of Virginia in 2005, the District of Maryland in 2003, the District of Columbia in 2003, the Central District of Illinois in 2004, the Northern District of Illinois in 2013, the Eastern District of Texas in 2015, and the Western District of Texas in 2015.

Virginia Disciplinary History

On February 28, 2011, the Virginia State Bar issued Mr. Malone a public reprimand for violating Virginia Rules of Professional Conduct 1.3 (diligence), 1.16(d) (declining or terminating the representation), and 8.1(c) (failure to respond to bar counsel). Mr. Malone's discipline stemmed from two client complaints. The first complaint was filed by Derrick Clayton in December 2006. After Mr. Clayton retained Mr. Malone and paid him $1,000 to represent him in a family law matter, Mr. Malone only spoke with Mr. Clayton one time about the status of the case and failed to respond to Mr. Clayton's numerous requests for information. The second complaint was filed by Keya Woods in June 2007. Ms. Woods retained Mr. Malone to represent her husband in his appeal of a criminal conviction. Although Mr. Malone timely filed a notice of appeal, he failed to timely file the trial transcripts. The court ultimately dismissed the appeal.

The Virginia State Bar served Mr. Malone with a summons and subpoena duces tecum compelling his appearance before the Fourth District Committee and demanding that he produce both client files for inspection. After Mr. Malone failed to appear, the Virginia State Bar Disciplinary Board administratively suspended him from the practice of law for his non-compliance. In or around June 2009, Mr. Malone took steps to have the suspension lifted but still failed to provide responses to the complaints.

The Fourth District Committee held a hearing to determine whether Mr. Malone's conduct violated the Rules of Professional Conduct. As noted above, Mr. Malone was issued a public reprimand. The terms of the reprimand required Mr. Malone to complete six Continuing Legal Education hours within six months of the reprimand. Mr. Malone knowingly and intentionally failed to inform Maryland Bar Counsel of his public reprimand as required under Maryland Rule 19-737(a).

Mr. Malone failed to pay the disciplinary costs in connection with his reprimand, resulting in an administrative suspension on April 28, 2011. His failure to pay annual dues for two successive years resulted in his Virginia law license being forfeited on or about March 20, 2013. By order dated May 26, 2016, the Virginia State Bar Disciplinary Board terminated Mr. Malone's 2011 suspension for non-payment of costs.

Federal Court Disciplinary History On December 12, 2012, Chief Judge Deborah K. Chasanow of the United States District Court for the District of Maryland issued Mr. Malone a private reprimand, stating:

The Disciplinary & Admissions Committee of the Court has reviewed your response to the Court's Order to Show Cause dated November 7, 2012. By Order entered on September 26, 2012, you were found in contempt by Bankruptcy Court Judge James F. Schneider in the case [ ] In re T.D. Bistro, Inc. , Case No. 11-19367 JS, for failure to appear in a court proceeding without proper justification. Your response at the contempt hearing and to this Court's show cause order was to claim financial hardship.

The Disciplinary and Admissions Committee has found your explanation unacceptable. As an out-of-state attorney, you should not undertake representation of a client in this State if you are not prepared to appear at local proceedings.

The Court therefore, at the recommendation of the Disciplinary and Admissions Committee, hereby issues a private reprimand to you based on your conduct. Despite the informal nature of this letter, it shall be treated as an order of this Court closing this case.

Mr. Malone knowingly and intentionally failed to inform Bar Counsel of this private reprimand as required by Maryland Rule 19-737(a).

Texas Bar Application and Admission

On June 5, 2013, Mr. Malone filed an Application for Admission without Examination to the Texas Bar with the Texas Board [of Law Examiners ("the Texas Board")]. Question 3 of the application required Mr. Malone to "[l]ist all state, federal, and/or foreign jurisdictions where you have been licensed or admitted to practice law." Mr. Malone disclosed his admission to the Maryland Bar. Mr. Malone knowingly and intentionally failed to disclose his admission to the Virginia State Bar, the United States District Court for the District of Maryland, and various other federal district courts. The hearing judge found that, at or around the time Mr. Malone applied for admission to the Texas Bar in June 2013, he was actively representing clients before various federal district courts. Between May 2011 and February 2013, Mr. Malone represented a client before the United States Bankruptcy Court in the District of Maryland. This was the case in which Mr. Malone was held in contempt and that led to the issuance of the private reprimand in December 2012. In addition, between February 2013 and September 2013, Mr. Malone represented a client in a separate matter before the United States District Court for the District of Maryland. Between June 2013 and June 2014, Mr. Malone represented a client before the United States District Court for the Northern District of Illinois.

Question 13 of the application asked, "[h]ave you ever been held in contempt or sanctioned by a court?" Mr. Malone answered "no." Mr. Malone knowingly and intentionally misrepresented his disciplinary history by failing to disclose that he had been held in contempt by the United States Bankruptcy Court in the District of Maryland and sanctioned by the United States District Court for the District of Maryland.

Question 17(c) of the application asked, in relevant part, "[h]ave you ever been ... suspended from practice, disciplined,

...