Attorney Grievance Commission v. Chanthunya ( 2016 )

Attorney Grievance Comm’n v. Alexander Manjanja Chanthunya, Misc. Docket AG No.
58, September Term, 2014
ATTORNEY DISCIPLINE – SANCTIONS – INDEFINITE SUSPENSION FROM
PRACTICE OF LAW IN MARYLAND WITH RIGHT TO APPLY FOR
REINSTATEMENT AFTER SIXTY DAYS – Court of Appeals indefinitely suspended
from practice of law in Maryland with right to apply for reinstatement after sixty days
lawyer who failed to engage in sufficient preparation, and failed to adequately
communicate, with two clients in immigration cases. Such conduct violated Maryland
Lawyers’ Rules of Professional Conduct (“MLRPC”) 1.1 (Competence), 1.3 (Diligence),
1.4(a)(2), 1.4(a)(3), 1.4(b) (Communication), 8.4(d) (Conduct That Is Prejudicial to
Administration of Justice), and 8.4(a) (Violating MLRPC).
Circuit Court for Montgomery County
Case No. 30451-M
Argued: September 28, 2015
IN THE COURT OF APPEALS
OF MARYLAND
Misc. Docket AG No. 58
September Term, 2014
______________________________________
ATTORNEY GRIEVANCE COMMISSION
OF MARYLAND
v.
ALEXANDER MANJANJA CHANTHUNYA
______________________________________
Barbera, C.J.
Battaglia
Greene
Adkins
McDonald
Watts
Harrell, Jr., Glenn T. (Retired,
Specially Assigned)
JJ.
______________________________________
Opinion by Watts, J.
Harrell, J., joins in judgment only.
______________________________________
Filed: March 25, 2016
This attorney discipline proceeding involves an immigration lawyer who failed to
represent two clients competently, diligently, and with adequate communication, and who
was alleged to have committed a crime by touching a female client’s breast without her
consent.
Alexander Manjanja Chanthunya (“Chanthunya”), Respondent, a member of the
Bar of Maryland, represented Souadou Traore (“Traore”) in her applications for a green
card1 and a waiver of grounds of inadmissibility,2 and represented Therese Vanguere
(“Vanguere”) in an application for asylum.3 Chanthunya failed to engage in sufficient
preparation, and failed to adequately communicate, with both clients, who filed complaints
against Chanthunya with the Attorney Grievance Commission (“the Commission”),
Petitioner.
On October 24, 2014, on the Commission’s behalf, Bar Counsel filed in this Court
a “Petition for Disciplinary or Remedial Action” against Chanthunya, charging him with
violating Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”) 1.1
(Competence), 1.3 (Diligence), 1.4 (Communication), 3.3(a)(1) (Candor Toward the
Tribunal), 8.4(b) (Criminal Act), 8.4(c) (Dishonesty, Fraud, Deceit, or Misrepresentation),
1
A green card is “[a] registration card evidencing a resident alien’s status as a
permanent U.S. resident.” Green Card, Black’s Law Dictionary (10th ed. 2014).
2
“If [a person who immigrates is] inadmissible to the United States and [is] seeking
an immigrant visa, adjustment of status, certain nonimmigrant statuses[,] or certain other
immigration benefits, [the person who immigrates] must file [a] form to seek a waiver of
certain grounds of inadmissibility.” I-601, Application for Waiver of Grounds of
Inadmissibility, U.S. Citizenship and Immigration Services, https://www.uscis.gov/i-601
[https://perma.cc/B3T7-L57Y].
3
Asylum is “[p]rotection of usu[ally] political refugees from arrest by a foreign
jurisdiction[.]” Asylum, Black’s Law Dictionary (10th ed. 2014).
8.4(d) (Conduct That Is Prejudicial to the Administration of Justice), and 8.4(a) (Violating
the MLRPC).
On October 30, 2014, this Court designated the Honorable Terrence J. McGann
(“the hearing judge”) of the Circuit Court for Montgomery County to hear this attorney
discipline proceeding. On March 25 and 26, 2015 and April 29, 2015, the hearing judge
conducted a hearing, at which Chanthunya was present and self-represented. On June 18,
2015, the hearing judge filed in this Court an opinion including findings of fact and
conclusions of law, concluding that Chanthunya had violated MLRPC 1.1, 1.3, 1.4, 8.4(b),
and 8.4(d), but had not violated MLRPC 8.4(a).4 The hearing judge found that testimony
by Traore that Chanthunya touched her breast was not credible.5 In our view, the hearing
judge’s explanation of his finding reveals that the hearing judge based his findings on what
he believed a victim of sexual assault would or should do—namely, report the incident to
law enforcement and/or the victim’s spouse, and cease contact with the perpetrator.
On September 28, 2015, we heard oral argument. On October 1, 2015, we remanded
this attorney discipline proceeding to the hearing judge to address important issues that
arose out of the hearing judge’s findings of fact and conclusions of law. Chief among other
4
The Commission withdrew the charges that Chanthunya had violated MLRPC
3.3(a)(1) and 8.4(c).
5
Specifically, Traore testified as follows. In Summer 2009 or 2010, Traore visited
Chanthunya’s office to give him some papers that were related to her legal matters. Traore
said that she needed to use the restroom. Chanthunya gave her the key to the restroom.
Traore used the restroom and returned the key to Chanthunya, who then touched Traore’s
breast. Traore asked: “What [was] that for?” Chanthunya’s only response was: “Well.”
Chanthunya did not ask for permission to touch Traore’s breast. Traore did not in any way
give Chanthunya permission to touch her breast.
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issues, we ordered the hearing judge to “[p]rovide a better explanation for why he found
that [] Traore’s testimony [that Chanthunya touched her breast] was not credible . . . , if
indeed [the hearing judge] continue[d] to maintain that[.]” On January 22, 2016, the
hearing judge filed in this Court a supplemental opinion in which the hearing judge
maintained that Traore’s testimony that Chanthunya touched her breast was not credible,
and concluded that Chanthunya had violated MLRPC 8.4(a), but had not violated MLRPC
8.4(b).
In his supplemental opinion, the hearing judge provided essentially the same basis
for finding not credible Traore’s testimony that Chanthunya touched her breast without her
consent. Given that we have already remanded this attorney discipline proceeding to the
hearing judge to address this matter, and that the hearing judge provided the same
inappropriate basis for finding that Traore’s testimony was not credible in his supplemental
opinion, we conclude that it would be futile to remand yet again to the hearing judge to
properly address the matter of Traore’s credibility.
Nonetheless, for the below reasons, we indefinitely suspend Chanthunya from the
practice of law in Maryland with the right to apply for reinstatement after sixty days.
BACKGROUND
In his original opinion, the hearing judge found the following facts, which we
summarize.
In 1978, Chanthunya first became a lawyer. Over twenty years later, on June 24,
1999, this Court admitted Chanthunya to the Bar of Maryland.
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Chanthunya’s Representation of Traore
In 1998, Traore, a citizen of Guinea, entered the United States. In 2009, Traore
retained Chanthunya to represent her in her application for a green card and her application
for a waiver of grounds of inadmissibility. On November 23, 2009, on Traore’s behalf,
Chanthunya filed an application for a green card with the United States Citizenship and
Immigration Service (“USCIS”). The application for a green card contained inaccurate
statements and spaces that were not filled in that should have been, and Chanthunya failed
to attach required or necessary documents, such as the identification page of Traore’s
passport. In December 2009, April 2010, and September 2010, USCIS requested
additional documents from Chanthunya, who failed to inform Traore of USCIS’s three
requests.
USCIS scheduled an interview regarding Traore’s application for a green card.
Chanthunya failed to: prepare Traore for the interview; advise her of what to expect at the
interview; appear at the interview himself; and ask USCIS to reschedule the interview.
USCIS denied Traore’s application for a green card and a waiver of grounds of
inadmissibility, and Chanthunya failed to inform Traore as much. After USCIS informed
Traore about the applications’ denial, Traore contacted Chanthunya, who promised to file
an appeal. Traore, however, did not receive notice from USCIS that the appeal had been
filed. Traore telephoned Chanthunya to ask about the status of the appeal, and Chanthunya
promised to call her back. Chanthunya, however, failed to contact Traore, prompting her
to visit USCIS herself. Upon visiting USCIS, Traore was unable to confirm that the appeal
had been filed. Chanthunya’s omissions cost Traore the opportunity to have USCIS
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consider the appeal.
Finally, on at least ten occasions during Chanthunya’s representation of her, Traore
visited Chanthunya’s office because he was not answering her telephone calls.
Chanthunya’s Representation of Vanguere
In 2007, Vanguere, a citizen of the Central African Republic, entered the United
States. Vanguere applied for asylum and retained Chanthunya to represent her in her
application for asylum. Chanthunya failed to: prepare Vanguere for the asylum hearing;
advise her of the benefits and risks of postponing her case; advise her of the type of
evidence that she needed; and submit on Vanguere’s behalf corroborating evidence, such
as evidence that Vanguere’s family members had been persecuted in the Central African
Republic.6 Chanthunya also failed to review the Baltimore Immigration Court’s file to
ensure its completeness. Although the Baltimore Immigration Court denied Vanguere’s
application for asylum, the hearing judge found that the denial was due to Vanguere’s lack
of credibility, not Chanthunya’s lack of preparation.
Vanguere subsequently filed a motion to reopen her asylum application based on
ineffective assistance of counsel by Chanthunya as well as changed country conditions in
the Central African Republic. The Board of Immigration Appeals granted the motion, and
remanded the case to the Baltimore Immigration Court for a de novo asylum hearing.
6
The record includes a transcript of the asylum hearing, which occurred in the
Baltimore Immigration Court on May 4, 2009. At the asylum hearing, Vanguere testified
as follows. All of Vanguere’s family members belonged to a political party called the
Movement of the Liberation of the People of Central Africa. On January 1, 1991, members
of an opposing political party killed Vanguere’s father. On May 28, 2001, a group of
soldiers shot Vanguere’s uncle.
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Aggravating Factors and Mitigating Factors
The hearing judge found that Chanthunya’s misconduct is aggravated by a pattern
of misconduct, multiple violations of the MLRPC, refusal to acknowledge the
misconduct’s wrongful nature, and substantial experience in the practice of law. The
hearing judge found that Chanthunya’s misconduct is mitigated by the absence of prior
attorney discipline and the absence of a dishonest or selfish motive.
Remand and Supplemental Opinion
In his original opinion, the hearing judge found that Traore’s testimony that
Chanthunya touched her breast during a meeting in Chanthunya’s office was not credible.
The hearing judge explained the basis for his finding as follows:
[Traore] never called [law enforcement], never reported [the alleged assault]
to any authorities[,] and continued to be represented by [Chanthunya]. If
[Traore] told her husband[,] it would be odd that he never confronted
[Chanthunya;] and[,] if [Traore] didn’t tell her husband[,] that would be an
abnormal reaction. I wasn’t convinced by clear and convincing evidence that
[Chanthunya] assaulted [] Traore[.]
In his original opinion, the hearing judge concluded that Chanthunya had violated MLRPC
8.4(b) (Criminal Act) and 8.4(d) (Conduct That Is Prejudicial to the Administration of
Justice), but the hearing judge did not explain the bases for those conclusions. The hearing
judge also concluded that Chanthunya had not violated MLRPC 8.4(a) (Violating the
MLRPC).
The Commission excepted to the hearing judge’s finding that Traore’s testimony
concerning Chanthunya’s touching of her breast was not credible. The Commission
pointed out that Traore’s testimony on this point was uncontested, that the hearing judge
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concluded that Chanthunya violated MLRPC 8.4(b) (Criminal Act), and that the only basis
for such a conclusion was the Commission’s allegation that Chanthunya sexually assaulted
Traore. The Commission asserted that the hearing judge’s finding was influenced by the
hearing judge’s “assumptions or beliefs about what the victim of a sexual assault would or
should do[.]” (Emphasis omitted). The Commission also excepted to the hearing judge’s
conclusion that Chanthunya had not violated MLRPC 8.4(a).
We remanded to the hearing judge with instructions to address the following four
issues:
1. Reconciliation of what appears to be a discrepancy between his
determination that [Chanthunya] violated [MLRPC] 8.4(b) in [] Traore’s
case and his finding that [] Traore’s testimony was not credible as to the facts
underlying the alleged [MLRPC] 8.4(b) violation; 2. Provide a better
explanation for why he found that [] Traore’s testimony was not credible on
the issue of the unconsented sexual touching, if indeed he continues to
maintain that; 3. Clarify the bases for the conclusion that “There is not clear
and convincing evidence that [Chanthunya] violated [MLRPC] 8.4(a)”,
while also concluding elsewhere that [MLRPC] 1.1, 1.3, 1.4, 8.4(b), and
8.4(d) were violated; and 4. Explain the basis for the conclusion that
[Chanthunya] violated [MLRPC] 8.4(d).
(Citations and paragraph breaks omitted).
In his supplemental opinion, the hearing judge determined that Chanthunya did not
violate MLRPC 8.4(b) because the Commission failed to prove by clear and convincing
evidence that Chanthunya sexually assaulted Traore. The hearing judge again found that
Traore’s testimony that Chanthunya touched her breast was not credible because:
Traore was vague regarding the date on which the alleged incident occurred,
she failed to report the incident to the authorities, her husband failed to take
any action[,] and she continued to allow [Chanthunya] to represent her. []
Traore’s previous deceptions with respect to her immigration application cast
additional doubt about her credibility. . . . Traore conceded that she: lied to
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US Government officials to gain entry into the United States; prepared a false
document that she wanted to use for her asylum application; and lied on her
Facebook page when she said [that] she worked for the French Government.
In his supplemental opinion, the hearing judge concluded that Chanthunya had
violated MLRPC 8.4(d) (Conduct That Is Prejudicial to the Administration of Justice) by
violating MLRPC 1.1 (Competence), 1.3 (Diligence), and 1.4 (Communication) in
representing Traore and Vanguere, and that Chanthunya had violated MLRPC 8.4(a)
(Violating the MLRPC) by violating other MLRPC.
STANDARD OF REVIEW
In an attorney discipline proceeding, this Court reviews for clear error a hearing
judge’s findings of fact, and reviews without deference a hearing judge’s conclusions of
law. See Md. R. 16-759(b)(2)(B) (“The Court [of Appeals] shall give due regard to the
opportunity of the hearing judge to assess the credibility of witnesses.”); Attorney
Grievance Comm’n v. Shuler, 443 Md. 494, 501, 117 A.3d 38, 43 (2015) (“[T]his Court
reviews for clear error a hearing judge’s findings of fact[.]” (Citations omitted)); Md. R.
16-759(b)(1) (“The Court of Appeals shall review de novo the [hearing] judge’s
conclusions of law.”). This Court determines whether clear and convincing evidence
establishes that a lawyer violated an MLRPC. See Md. R. 16-757(b) (“The [Commission]
has the burden of proving the averments of the petition [for disciplinary or remedial action]
by clear and convincing evidence.”).
DISCUSSION
(A) Contentions Other Than Exceptions
Chanthunya contends that the hearing judge erred in admitting records from USCIS
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into evidence because the records were inadmissible hearsay. In making this allegation,
Chanthunya specifies only one exhibit: the Commission’s Exhibit 4, which is USCIS’s
response to a request under the Freedom of Information Act by Michael Schwartz
(“Schwartz”), Traore’s new lawyer. When the Commission offered its Exhibit 4 into
evidence at the hearing, Chanthunya objected solely on a ground other than hearsay.7 Thus,
Chanthunya failed to preserve for review the issue of whether the Commission’s Exhibit 4
was inadmissible hearsay. See Peterson v. State, 444 Md. 105, 148, 118 A.3d 925, 949
(2015) (“When an objector sets forth the specific grounds for his [or her] objection, the
objector will be bound by those grounds and will ordinarily be deemed to have waived
other grounds not specified[.]” (Brackets, citation, ellipsis, and internal quotation marks
omitted)).8
7
At the hearing, during Schwartz’s direct-examination, Assistant Bar Counsel asked
Schwartz why he never asked for pages that were redacted from responses to requests under
the Freedom of Information Act. Schwartz responded: “Because they aren’t germane to
the purposes for which I am seeking the record.” Immediately afterward, Assistant Bar
Counsel offered the Commission’s Exhibit 4 into evidence. The hearing judge asked
Chanthunya whether he objected, and Chanthunya responded: “Yes.” The hearing judge
asked for the basis of Chanthunya’s objection, and Chanthunya responded: “My objection
is, just as [Schwartz] said, the [Freedom of Information Act] request [is] germane to the
papers.” The hearing judge offered Chanthunya the opportunity to voir dire Schwartz
about the Commission’s Exhibit 4, and Chanthunya did so. After Chanthunya finished the
voir dire, the hearing judge admitted the Commission’s Exhibit 4 into evidence over
Chanthunya’s objection. At no point did Chanthunya indicate that hearsay was another
ground for his objection to the Commission’s Exhibit 4.
8
We note that, prior to the hearing in this attorney discipline proceeding,
Chanthunya filed a “Motion to Strike [the Commission]’s Responses to [Chanthunya]’s
Request for Admissions,” in which Chanthunya argued that the intended introduction into
evidence of the Commission’s Exhibit 4 was problematic because “[i]t [wa]s not known
what [wa]s in the blocked pages[,] but certainly [the blocked pages] must have a bearing
on the case for or against” him, and that he had “no effective means of defending himself
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Chanthunya also contends that the hearing judge erred in accepting Ana Zigel
(“Zigel”) as an expert in the field of immigration and nationality law and in allowing Zigel
to opine that Chanthunya was neither competent nor diligent in representing Traore and
Vanguere. Specifically, Chanthunya argues that: (1) the Commission did not disclose
during discovery that it would offer Zigel as an expert witness; (2) Zigel’s opinions lacked
a sufficient factual basis; (3) Zigel impermissibly speculated; and (4) Zigel’s opinions
lacked a basis that was generally accepted as reliable. We reject all of Chanthunya’s
arguments.
Chanthunya fails to state whether he ever required the Commission by interrogatory
to identify anyone whom the Commission intended to call as an expert witness at the
hearing. See Md. R. 2-402(g)(1)(A) (“A party by interrogatories may require any other
party to identify each person, other than a party, whom the other party expects to call as an
without knowing the reasoning upon which USCIS twice denied [] Traore’s” application
for waiver of grounds of admissibility and the “reasoning process upon which USCIS
granted [] Traore’s” third application. In essence, Chanthunya moved in limine to preclude
introduction of the Commission’s Exhibit 4. The hearing judge denied the motion.
Chanthunya filed a motion for reconsideration, again referencing the Commission’s
Exhibit 4, and arguing that the Commission “did not rebut or offer any explanation why
[Chanthunya] would not be prejudiced by missing information from [] Traore’s file that
[the Commission] intends to submit to the [hearing judge] as part of its evidence[,]” and
asserting that it was “incumbent on the [Commission] that its case be based on fact and not
speculations[.]” The Commission opposed the motion for reconsideration. In a reply to
the opposition, Chanthunya contended that he had “demonstrated that [the Commission]’s
failure to obtain full and complete records from USCIS and the [Baltimore] Immigration
Court prejudice[d] him in preparation of his defense to [the] charges of misconduct.” The
hearing judge denied the motion for reconsideration. Chanthunya did not expressly
contend in his filings that the Commission’s Exhibit 4 was inadmissible hearsay. And, at
the hearing in this attorney discipline proceeding, Chanthunya did not reference the
arguments made in his filings or otherwise indicate a basis for not admitting the
Commission’s Exhibit 4 other than the reason that he provided at the hearing.
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expert witness at trial[.]”). The record contains a scheduling order by the hearing judge
stating that all discovery had to be completed by March 11, 2015. The discovery order did
not specify a date for disclosure of expert witnesses, i.e., order the parties to disclose expert
witnesses by a certain date. In the absence of a requirement by the hearing judge in the
scheduling order that the parties disclose expert witnesses without being asked to do so,
Maryland Rule 2-402(g) governs. As such, pursuant to Maryland Rule 2-402(g), it was
incumbent upon Chanthunya to request the identification of experts by interrogatory, which
he failed to do.
Zigel’s opinions had a sufficient factual basis. See Md. R. 5-702(3) (“[A] sufficient
factual basis [must] support [] expert testimony.”). As the hearing judge detailed in his
opinion, Zigel reviewed several documents related to Chanthunya’s representation of
Traore and Vanguere, and Zigel identified several defects in those documents; for example,
Chanthunya failed to attach essential documents, such as the identification page of Traore’s
passport, to Traore’s application for a green card.
As long as an expert is qualified to testify, a sufficient factual basis supports an
expert’s opinion, and the expert’s testimony will be helpful to the trier of fact, the expert
may testify. See Md. R. 5-702 (“Expert testimony may be admitted, in the form of an
opinion or otherwise, if the court determines that the testimony will assist the trier of fact
to understand the evidence or to determine a fact in issue. In making that determination,
the court shall determine (1) whether the witness is qualified as an expert by knowledge,
skill, experience, training, or education, (2) the appropriateness of the expert testimony on
the particular subject, and (3) whether a sufficient factual basis exists to support the expert
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testimony.”); Md. R. 5-701 (excepting experts from the requirement that opinions be
“rationally based on the perception of the witness”); Md. R. 5-703(a) (“The facts or data in
the particular case upon which an expert bases an opinion or inference may be those
perceived by or made known to the expert at or before the hearing.”); see also Cerrato-
Molina v. State, 223 Md. App. 329, 333 n.1, 115 A.3d 785, 788 n.1, cert. denied, 445 Md.
5, 122 A.3d 975 (2015) (“The appellant makes an automatic villain of the verb ‘speculate.’
It is a rush to judgment. The word’s etymology looks to the Latin root ‘spec,’ meaning ‘to
look at.’ ‘To speculate’ is then to think about the implications of what one has looked at
and seen. Blind or purely random speculation, to be sure, can be treacherously deceptive.
Informed and educated speculation, on the other hand, is a salutary and, indeed,
indispensable part of the decision-making process.”). In other words, an expert may render
an opinion as long as the expert’s opinion is based on sufficient facts, as opposed to the
expert’s mere speculation. See In re 2012 Legislative Districting, 436 Md. 121, 188, 80
A.3d 1073, 1111 (2013) (“An expert’s opinion must be grounded in sufficient facts, such
that it constitutes more than mere speculation or conjecture.” (Brackets, citation, and
internal quotation marks omitted)). Here, in his findings of fact, the hearing judge detailed
Zigel’s qualifications as an expert, and it is obvious from Zigel’s testimony that she had
reviewed documents pertaining to Chanthunya’s representation of Traore and Vanguere.
Chanthunya’s allegation that Zigel’s testimony was speculation is without merit.
An expert’s opinion must have a basis that is generally accepted as reliable if and
only if the expert’s opinion is scientific; in other words, the “Frye-Reed test” applies only
“to evidence based on scientific opinion.” Montgomery Mut. Ins. Co. v. Chesson, 399 Md.
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314, 328, 923 A.2d 939, 947 (2007) (citations omitted). Thus, the “Frye-Reed test” does
not apply to a legal expert’s opinion that a lawyer violated the MLRPC.
In sum, the hearing judge did not err in admitting Zigel as an expert in the field of
immigration and nationality law and in allowing Zigel to opine that Chanthunya was
neither competent nor diligent in representing Traore and Vanguere.
Chanthunya also contends that the hearing judge erred by failing to tell him at the
hearing that the Commission met the burden of proving by clear and convincing evidence
that Chanthunya had violated the MLRPC. Chanthunya alleges that he did not testify at
the hearing because he did not think that the Commission had met its burden. Contrary to
Chanthunya’s assertion, in an attorney discipline proceeding, a hearing judge has no
obligation to inform the lawyer at the hearing whether the Commission has met its burden
of proof; if the lawyer has any evidence to offer and/or anything about which to testify, the
lawyer should do so at the hearing, even if the lawyer does not think that the Commission
has met its burden of proof. Here, Chanthunya decided not to testify at the hearing, and
his attempt to blame the hearing judge for the consequences of his decision is misplaced.
Finally, Chanthunya contends that the hearing judge erred in not applying the law
of ineffective assistance of counsel, as embodied in such cases as Strickland v. Washington,
466 U.S. 668 (1984), in evaluating his representation of Traore and Vanguere. Specifically,
Chanthunya argues that the hearing judge should have applied the “performance” prong
and the “prejudice” prong under Strickland, 466 U.S. at 690, 696 (“[A] court deciding an
actual ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct
on the facts of the particular case, viewed as of the time of counsel’s conduct. . . . [A] court
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making the prejudice inquiry must ask if the defendant has met the burden of showing that
the decision reached would reasonably likely have been different absent the errors.”). See
also Gross v. State, 371 Md. 334, 350, 809 A.2d 627, 636 (2002) (This Court referred to
the two-step inquiry under Strickland as “Strickland’s performance and prejudice
prongs[.]”).
Chanthunya is mistaken. The law of ineffective assistance of counsel applies to
cases in which a person has been criminally charged and convicted—typically, cases that
arise out of petitions for postconviction relief. By contrast, in an attorney discipline
proceeding, a hearing judge’s role is to find facts and conclude whether the lawyer violated
the MLRPC, as this Court has interpreted and applied them. For the purpose of determining
whether a lawyer has violated the MLRPC, Strickland and its progeny do not apply to the
analysis in an attorney discipline proceeding.
(B) Findings of Fact
Finding That Traore’s Testimony About Sexual Touching Was Not Credible
In response to the hearing judge’s supplemental opinion, the Commission excepts
to the hearing judge’s finding that Traore’s testimony regarding Chanthunya’s touching of
her breast was not credible. With regard to the hearing judge’s finding in his supplemental
opinion that Traore’s “husband failed to take any action[,]” the Commission points out that
Traore’s husband did not testify, and, thus, there was no evidence that Traore’s husband
took no action; and, in any event, the Commissions asserts that it is inappropriate to assess
a witness’s testimony based on someone else’s actions or omissions. The Commission
contends that it was inappropriate for the hearing judge to consider that Traore did not
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contact law enforcement or terminate Chanthunya’s representation because Traore testified
that she “didn’t know what [she] was supposed to do, because” Chanthunya had Traore’s
immigration files, which included information about “all [of her] problems with the green
card.”
Reluctantly, we overrule the Commission’s exception to the hearing judge’s finding
that Traore’s testimony that Chanthunya touched her breast was not credible. Although
the hearing judge again, partially, based his finding on what he believed that a victim of
sexual assault would or should do—namely, report the incident to law enforcement and/or
the victim’s spouse, and cease contact with the perpetrator—the conundrum is that, even if
the hearing judge relied on incorrect grounds in finding Traore’s testimony that
Chanthunya touched her breast not credible, it does not follow that Traore’s testimony that
Chanthunya touched her breast was, indeed, accurate. It is possible that Traore’s testimony
was inaccurate—i.e., not credible—and the hearing judge found that Traore’s testimony
was not credible for the wrong reasons. By way of analogy, suppose that a witness
inaccurately testified that “two plus two equals five,” and a hearing judge found that the
witness’s inaccurate testimony was not credible on the ground that “the witness was
wearing a red tie, and people who wear red ties always lie.” That the hearing judge found
that the witness’s testimony was not credible for the wrong reason does not mean that the
witness’s testimony was accurate. In the end, even though no other evidence contradicted
Traore’s testimony, this Court declines to supersede the hearing judge’s determination that
Traore’s testimony on this matter was not credible. See Md. R. 16-759(b)(2)(B) (“The
Court [of Appeals] shall give due regard to the opportunity of the hearing judge to assess
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the credibility of witnesses.”); Attorney Grievance Comm’n v. Mahone, 435 Md. 84, 104,
76 A.3d 1198, 1210 (2013) (“Weighing the credibility of witnesses and resolving any
conflict in the evidence are tasks [that are] proper for the” hearing judge. (Citation and
internal quotation marks omitted)).
Under the circumstances of this attorney discipline proceeding, we will not supplant
the hearing judge’s finding that Traore’s testimony was not credible. We cannot stress
enough, however, that we disapprove of the manner in which the hearing judge addressed
Traore’s testimony. In his original opinion, the hearing judge found Traore’s testimony
not credible solely on the following grounds: (1) Traore “never called [law enforcement],
never reported [the alleged assault] to any authorities[,] and continued to be represented
by” Chanthunya; and (2) “[i]f [Traore] told her husband[,] it would be odd that he never
confronted [Chanthunya;] and[,] if [Traore] didn’t tell her husband[,] that would be an
abnormal reaction.” The bases for the hearing judge’s findings were so inappropriate that
we instructed the hearing judge, on remand, to “[p]rovide a better explanation for why he
found that [] Traore’s testimony was not credible on the issue of the unconsented sexual
touching, if indeed he continues to maintain that[.]” In his supplemental opinion, not
adhering to this Court’s instruction, the hearing judge essentially gave the same reasons
that he had already expressed for finding that Traore’s testimony was not credible, and
simply added a few inconsequential new reasons.9 Specifically, the hearing judge once
9
The new reasons were as follows:
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again relied on the circumstances that Traore “failed to report the incident to the
authorities[;] her husband failed to take any action[;] and she continued to allow
[Chanthunya] to represent her.” Our concern is that, in both his original opinion and his
supplemental opinion, which was in response to our remand order, the hearing judge based
his finding on what he believed a victim of sexual assault and the victim’s spouse would
or should do—namely, inform law enforcement and cut off contact with the perpetrator,
and, in the victim’s spouse’s case, confront the perpetrator.
These beliefs are unfounded, and indicative of an uninformed view of the manner
in which a victim of sexual assault responds to the occurrence. Contrary to the hearing
judge’s analysis, it is well known that, in many instances, a victim of sexual assault refrains
Traore was vague regarding the date on which the alleged incident
occurred[.] . . . Traore conceded that she: lied to US Government officials to
gain entry into the United States; prepared a false document that she wanted
to use for her asylum application; and lied on her Facebook page when she
said [that] she worked for the French Government.
Traore’s inability to recall the exact date on which Chanthunya allegedly touched her breast
is the only one of these reasons that directly relates to the alleged assault itself and provides
little to no support for the hearing judge’s finding that Traore’s testimony was not credible.
The Commission excepts to the other new reasons for which the hearing judge found
that Traore’s testimony was not credible. For example, the Commission contends that the
hearing judge clearly erred in finding that Traore “prepared a false document that she
wanted to use for her asylum application”; the Commission asserts that Traore testified that
it was Chanthunya who proposed that she prepare a false document, which he would file
as part of an application for asylum. As discussed above, the fact that the hearing judge
found that the witness’s testimony was not credible for the wrong reason does not mean
that the witness’s testimony was accurate. Accordingly, even if we sustained the
Commission’s exceptions to the new reasons for which the hearing judge found that
Traore’s testimony was not credible, it would not follow that Traore’s testimony was
accurate.
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from informing anyone of the sexual assault. Even when the victim informs someone, the
disclosure may occur a great deal of time after the assault. There are voluminous possible
reasons for the victim’s permanent or protracted silence; examples include fear of
retaliation by the perpetrator, an unwillingness to relive the experience, or, perhaps, fear
that the victim will be disbelieved, ridiculed, or ostracized.10
In an attorney discipline proceeding, a hearing judge must evaluate an allegation of
sexual assault as the hearing judge would evaluate any other allegation of misconduct.
Such an analysis would necessarily include consideration of the circumstances of the
alleged misconduct, the purported victim’s demeanor and manner of presentation in court,
and consideration of any evidence that supports or contradicts the purported victim’s
report. Simply stated, we do not want hearing judges in future attorney discipline
proceedings to assess a report of sexual assault in the manner that the hearing judge did in
this attorney discipline proceeding—namely, by evaluating the allegation of sexual assault
based on the hearing judge’s unfounded beliefs of what a victim of sexual assault would or
should do after such an incident.
Other Factual Matters
The Commission excepts to the hearing judge’s refraining from finding as an
aggravating factor vulnerability of the victims—Chanthunya’s clients, Traore and
10
Case in point: In this attorney discipline proceeding, Traore testified that she
“didn’t know what [she] was supposed to do” about Chanthunya’s touching of her breast
because Chanthunya had her immigration files, which included damaging information
about her. In other words, Traore feared that, if she informed anyone of the alleged assault,
Chanthunya could harm her chances of succeeding in her immigration matters, or reveal
the damaging information about her.
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Vanguere, both of whom were not United States citizens and who had immigrated to this
country. In Attorney Grievance Comm’n v. Thomas, 440 Md. 523, 558, 103 A.3d 629,
649 (2014), this Court concluded that a lawyer’s misconduct was aggravated by
vulnerability of the victim, even though this Court did not state that the hearing judge found
as much. This Court noted the “special vulnerability of immigrants as clients[,]” given that
people who immigrate to this country may be “extremely vulnerable people, largely unable
or unwilling as a practical matter to defend themselves[] from being preyed on[.]” Id. at
558, 103 A.3d at 649 (citations and internal quotation marks omitted). Here, as we did in
Thomas, we determine that vulnerability of the victims was an aggravating factor.
Accordingly, we sustain the Commission’s exception.
In response to the hearing judge’s original opinion, Chanthunya excepted to several
of the hearing judge’s findings of fact, asking us “to review the [testimony] of the witnesses
. . . and draw [our] own independent conclusions.” Chanthunya contends, among other
things, that the hearing judge “[w]rongful[ly] evaluat[ed]” the evidence presented, that one
of the hearing judge’s findings is a “total lie[,]” that the hearing judge considered only
evidence presented on direct examination and ignored testimony that Chanthunya elicited
on cross-examination, and that the hearing judge “didn’t grasp the main issue” concerning
Traore’s application for a green card. For example, Chanthunya contends:
The hearing judge noted in his findings the following:
USCIS scheduled an interview on [] Traore’s
application for her green card. [] Traore and [her husband]
appeared, but [Chanthunya] failed to appear. He called them
at 7:30 am that morning and said that he had a flat tire. He did
not ask USCIS to reschedule the interview on his client’s
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behalf. He did not advise [] Traore and [her husband] as to
what to expect at their interview. He did not prepare them for
the interview. [Chanthunya] provided no evidence to explain
his contradicting statements to his client and USCIS as to
whether his failure to appear at the interview was deliberate or
accidental. He provided no evidence that he prepared the client
for the interview, or that he communicated with USCIS on the
morning of the interview regarding his failure to appear.
The hearing [j]udge erred in his summary because he only considered
what [] Trao[r]e said in Examination in Chief. The [hearing j]udge did not
include in his summary what [] Trao[r]e testified in Cross[-]Examination.
He also did not review the documentary evidence in [the Commission]’s
Exhibit 4. Hence the Summary did not represent the whole truth about
matters regarding the Interview.
(Record references and bolding omitted). Thus, Chanthunya appears to take issue with the
hearing judge’s allegedly not having considered or included in the findings of fact all of
the testimony and evidence. We are unable to extrapolate much more from Chanthunya’s
exceptions.
We observe initially that, just because Chanthunya disagrees with the hearing
judge’s findings of fact does not make the findings of fact clearly erroneous. And, that the
hearing judge does not mention a particular piece of evidence or particular testimony in
making findings of fact does not mean that the hearing judge failed to consider such
evidence. Indeed, as this Court has recognized:
Our hearing [judges]’ duties are to consider all evidence properly
submitted in the discipline process. Absent indications that such evidence is
not considered, we presume it was considered along with all the other
evidence. . . . The fact that [] testimony [i]s not specifically discussed in the
[hearing judge]’s finding does not indicate a failure to consider it. Moreover,
the [hearing judge is] free to disregard th[e] evidence if it was not credible.
The reception of evidence is to a large degree entrusted to the discretion of
the trial judge and will seldom be reversed.
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Attorney Grievance Comm’n v. Vanderlinde, 364 Md. 376, 385, 773 A.2d 463, 468 (2001)
(citation and paragraph break omitted). Moreover, “weighing the credibility of witnesses
and resolving any conflict in the evidence are tasks proper for the fact finder. . . . [T]he
hearing judge may pick and choose which evidence to rely upon[.]” Attorney Grievance
Comm’n v. Marcalus, 414 Md. 501, 512, 996 A.2d 350, 356 (2010) (brackets, citations,
and internal quotation marks omitted). Reviewing Chanthunya’s exceptions as a whole,
we are “unable to discern any meaningful challenge to the hearing judge’s findings of fact,”
Attorney Grievance Comm’n v. Davy, 435 Md. 674, 694, 80 A.3d 322, 333 (2013); as
such, we overrule the exceptions.
In response to the hearing judge’s original opinion, Chanthunya also excepted to the
hearing judge’s finding that there were several defects in documents that were related to
Chanthunya’s representation of Traore. The hearing judge’s finding was supported by
Zigel’s expert opinion that there were several defects in the documents. Thus, the hearing
judge did not clearly err.
For the above reasons, we overrule all of Chanthunya’s exceptions to the hearing
judge’s findings of fact.11
(C) Conclusions of Law
By excepting to the hearing judge’s finding that Traore’s testimony that Chanthunya
touched her breast was not credible, the Commission implicitly excepts to the hearing
11
In response to the hearing judge’s supplemental opinion, Chanthunya repeats the
contentions and exceptions that he made in response to the hearing judge’s original
opinion. For the above reasons, we reject those contentions and overrule those exceptions.
- 21 -
judge’s conclusion in his supplemental opinion that Chanthunya did not violate MLRPC
8.4(b). Chanthunya excepts to the hearing judge’s conclusion that he violated MLRPC
8.4(d). For the below reasons, we overrule both parties’ exceptions and uphold all of the
hearing judge’s conclusions of law.
MLRPC 1.1 (Competence) and MLRPC 1.3 (Diligence)
“A lawyer shall provide competent representation to a client. Competent
representation requires the legal knowledge, skill, thoroughness and preparation
reasonably necessary for the representation.” MLRPC 1.1. “A lawyer shall act with
reasonable diligence and promptness in representing a client.” MLRPC 1.3.
Here, clear and convincing evidence supports the hearing judge’s conclusions in his
original opinion that Chanthunya violated MLRPC 1.1 and 1.3 in representing Traore. On
Traore’s behalf, Chanthunya filed an application for a green card with USCIS. The
application for a green card contained inaccurate statements and spaces that were not filled
in, and Chanthunya failed to attach essential documents, such as the identification page of
Traore’s passport. Additionally, after USCIS scheduled an interview regarding Traore’s
application for a green card, Chanthunya failed to: prepare Traore for the interview; advise
her of what to expect at the interview; appear at the interview himself; and ask USCIS to
reschedule the interview. Additionally, Chanthunya failed to pursue an appeal of USCIS’s
denial of Traore’s applications for a green card and for a waiver of grounds of
inadmissibility.
Clear and convincing evidence supports the hearing judge’s conclusions in his
original opinion that Chanthunya violated MLRPC 1.1 and 1.3 in representing Vanguere.
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Chanthunya failed to: prepare Vanguere for the asylum hearing; advise her of the benefits
and risks of postponing her case; advise her of the type of evidence that she needed; and
submit on Vanguere’s behalf corroborating evidence, such as evidence that Vanguere’s
family members had been persecuted in the Central African Republic. Chanthunya also
failed to review the Baltimore Immigration Court’s file to ensure its completeness.
MLRPC 1.4(a)(2), 1.4(a)(3), and 1.4(b) (Communication)
“A lawyer shall: . . . (2) keep the client reasonably informed about the status of the
matter; [and] (3) promptly comply with reasonable requests for information[.]” MLRPC
1.4(a) (paragraph break omitted). “A lawyer shall explain a matter to the extent reasonably
necessary to permit the client to make informed decisions regarding the representation.”
MLRPC 1.4(b).
Here, clear and convincing evidence supports the hearing judge’s conclusion in his
original opinion that Chanthunya violated MLRPC 1.4(a)(2) and 1.4(a)(3) in representing
Traore.12 On three occasions, USCIS requested additional documents from Chanthunya,
who failed to inform Traore of USCIS’s requests. Additionally, after Traore telephoned
Chanthunya to ask about an appeal’s status, Chanthunya promised to call her back;
however, Chanthunya failed to update Traore. Furthermore, on at least ten occasions
during Chanthunya’s representation, Traore visited Chanthunya’s office because he was
not answering her telephone calls.
Clear and convincing evidence supports the hearing judge’s conclusion in his
12
In making his conclusion of law, the hearing judge did not specify a subsection of
MLRPC 1.4.
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original opinion that Chanthunya violated MLRPC 1.4(b) in representing Vanguere.
Chanthunya failed to advise Vanguere of the benefits and risks of postponing her case.
MLRPC 8.4(b) (Criminal Act)
“It is professional misconduct for a lawyer to . . . commit a criminal act that reflects
adversely on the lawyer’s honesty, trustworthiness[,] or fitness as a lawyer in other
respects[.]” MLRPC 8.4(b).
Here, as discussed above, we will not supercede the hearing judge’s finding that
Traore’s testimony that Chanthunya touched her breast was not credible; accordingly, we
do not reverse the hearing judge’s conclusion in his supplemental opinion that Chanthunya
did not violate MLRPC 8.4(b).
MLRPC 8.4(d) (Conduct That Is Prejudicial to the Administration of Justice)
“It is professional misconduct for a lawyer to . . . engage in conduct that is
prejudicial to the administration of justice[.]” MLRPC 8.4(d). “Generally, a lawyer
violates MLRPC 8.4(d) where the lawyer’s conduct would negatively impact the
perception of the legal profession of a reasonable member of the public.” Shuler, 443 Md.
at 505, 117 A.3d at 45 (brackets, citation, ellipsis, and internal quotation marks omitted).
For example, a lawyer can violate MLRPC 8.4(d) by violating MLRPC 1.1 (Competence),
1.3 (Diligence), and MLRPC 1.4 (Communication). See Attorney Grievance Comm’n v.
Heung Sik Park, 427 Md. 180, 194, 46 A.3d 1153, 1161 (2012) (per curiam) (“[The
lawyer]’s failure to pursue [his client]’s applications diligently and competently, as well as
his failure to maintain sufficient communication with [his client], as demonstrated by our
conclusion that [the lawyer] violated MLRPC 1.1, 1.3, and 1.4, constitutes conduct that
- 24 -
brings disrepute to the legal profession, in violation of MLRPC 8.4(d).”). A lawyer can
violate MLRPC 8.4(d) even if the lawyer’s conduct was not known or intended to be known
publicly. See Attorney Grievance Comm’n v. Basinger, 441 Md. 703, 715, 109 A.3d 1165,
1172 (2015) (“[The lawyer] raise[d a] red herring[] in contending that he did not violate
MLRPC 8.4(d) because[] his statements were ‘private’ in the sense that they were ‘not
known or intended to be known publicly[.]’”).
Here, clear and convincing evidence supports the hearing judge’s conclusion in his
original and supplemental opinions that Chanthunya violated MLRPC 8.4(d) in
representing Traore and Vanguere. As discussed above, Chanthunya violated MLRPC 1.1,
1.3, 1.4(a)(2), 1.4(a)(3), and 1.4(b) by failing to provide competent and diligent
representation and failing to adequately communicate with Traore and Vanguere.
MLRPC 8.4(a) (Violating the MLRPC)
“It is professional misconduct for a lawyer to[] violate or attempt to violate the”
MLRPC. MLRPC 8.4(a).
Here, clear and convincing evidence supports the hearing judge’s conclusion in his
supplemental opinion that Chanthunya violated MLRPC 8.4(a) in representing Traore. As
discussed above, Chanthunya violated MLRPC 1.1, 1.3, 1.4(a)(2), 1.4(a)(3), and 8.4(d) in
representing Traore.13
13
The Commission did not charge Chanthunya with violating MLRPC 8.4(a) in
representing Vanguere, so we decline to conclude that Chanthunya violated MLRPC 8.4(a)
in that instance. However, had the Commission charged Chanthunya with violating
MLRPC 8.4(a) in representing Vanguere, we would have no difficulty in concluding that
clear and convincing evidence supports a conclusion that Chanthunya violated MLRPC
8.4(a) based on Chanthunya’s other violations of the MLRPC in representing Vanguere.
- 25 -
(D) Sanction
In its filing, the Commission recommended that we indefinitely suspend
Chanthunya from the practice of law in Maryland with the right to apply for reinstatement
after six months in the event that the MLRPC 8.4(b) violation is found. Otherwise, the
Commission recommends that we indefinitely suspend Chanthunya from the practice of
law in Maryland with the right to apply for reinstatement after sixty days. In his filing,
Chanthunya recommended that we dismiss this attorney discipline proceeding.
In Shuler, 443 Md. at 506-07, 117 A.3d at 46, this Court stated:
This Court sanctions a lawyer not to punish the lawyer, but instead to
protect the public and the public’s confidence in the legal profession. This
Court accomplishes these goals by: (1) deterring other lawyers from
engaging in similar misconduct; and (2) suspending or disbarring a lawyer
who is unfit to continue to practice law.
In determining an appropriate sanction for a lawyer’s misconduct, this
Court considers: (1) the MLRPC that the lawyer violated; (2) the lawyer’s
mental state; (3) the injury that the lawyer’s misconduct caused or could have
caused; and (4) aggravating factors and/or mitigating factors.
Aggravating factors include: (1) prior attorney discipline; (2) a
dishonest or selfish motive; (3) a pattern of misconduct; (4) multiple
violations of the MLRPC; (5) bad faith obstruction of the attorney discipline
proceeding by intentionally failing to comply with the Maryland Rules or
orders of this Court or the hearing judge; (6) submission of false evidence,
false statements, or other deceptive practices during the attorney discipline
proceeding; (7) a refusal to acknowledge the misconduct’s wrongful nature;
(8) the victim’s vulnerability; (9) substantial experience in the practice of
law; (10) indifference to making restitution or rectifying the misconduct’s
consequences; (11) illegal conduct, including that involving the use of
controlled substances; and (12) likelihood of repetition of the misconduct.
Mitigating factors include: (1) the absence of prior attorney discipline;
(2) the absence of a dishonest or selfish motive; (3) personal or emotional
problems; (4) timely good faith efforts to make restitution or to rectify the
misconduct’s consequences; (5) full and free disclosure to the Commission
- 26 -
or a cooperative attitude toward the attorney discipline proceeding; (6)
inexperience in the practice of law; (7) character or reputation; (8) a physical
disability; (9) a mental disability or chemical dependency, including
alcoholism or drug abuse, where: (a) there is medical evidence that the
lawyer is affected by a chemical dependency or mental disability; (b) the
chemical dependency or mental disability caused the misconduct; (c) the
lawyer’s recovery from the chemical dependency or mental disability is
demonstrated by a meaningful and sustained period of successful
rehabilitation; and (d) the recovery arrested the misconduct, and the
misconduct’s recurrence is unlikely; (10) delay in the attorney discipline
proceeding; (11) the imposition of other penalties or sanctions; (12) remorse;
(13) remoteness of prior violations of the MLRPC; and (14) unlikelihood of
repetition of the misconduct.
(Brackets, citation, and ellipses omitted).
In Attorney Grievance Comm’n v. Mooney, 359 Md. 56, 98, 97, 84, 87-88, 753
A.2d 17, 39, 31, 33-34 (2000), this Court indefinitely suspended from the practice of law
in Maryland, with the right to apply for reinstatement after ninety days, a lawyer who, in
separately representing four clients, violated MLRPC 1.1 (Competence), 1.3 (Diligence),
1.4 (Communication), 5.1 (Responsibilities of Partners, Managers, and Supervisory
Lawyers), 5.3 (Responsibilities Regarding Nonlawyer Assistants), 8.4(c) (Dishonesty,
Fraud, Deceit, or Misrepresentation), and 8.4(d) (Conduct That Is Prejudicial to the
Administration of Justice). As to the first client, the lawyer failed to appear at the client’s
trial, and later “fail[ed] to respond to [his client’s] attempted communications[.]” See
Mooney, 359 Md. at 74, 77, 753 A.2d at 26, 28. As to the second client, the lawyer falsely
promised his client’s mother that he would file a petition and visit his client in jail. See id.
at 87, 753 A.2d at 34. As to the third client, the lawyer’s nonlawyer assistants incorrectly
informed the lawyer’s client that the client did not need to attend his trial, and the lawyer
failed to keep his client informed of his case’s status. See id. at 89-90, 753 A.2d at 34-
- 27 -
35. As to the fourth client, the lawyer “fail[ed], without sufficient explanation, to subpoena
witnesses and to obtain medical records, which may have exculpated his client”; failed to
respond to his client’s communications; and failed to ensure that the lawyer’s associate
knew that he had assigned a case to her. See id. at 93-95, 753 A.2d at 37. In Mooney, id.
at 87-88, 753 A.2d at 33-34, in finding a violation of MLPRC 8.4 as to the second client,
this Court stated:
The relevant provisions of M[L]RPC 8.4[, namely, MLRPC 8.4(c)
and 8.4(d),] have already been stated, supra. We agree that insufficient
action was taken by [the lawyer] and that he misrepresented to the client’s
mother that he was “taking such efforts.” The record reflects that on
numerous occasions respondent told [his client’s mother] things that were
not true: (1) he told her that he was going to file a petition for reverse waiver;
and (2) that he was going to visit her son in jail. He performed neither of
these activities. His comments were made with the intent to mislead his
client and his client’s mother. The evidence presented justifies a finding of
misconduct under M[L]RPC 8.4. Accordingly, we overrule respondent’s
exception with regard to his misrepresentations to [his client and his client’s
mother].
(Footnote omitted). In concluding that an indefinite suspension from the practice of law in
Maryland with the right to apply for reinstatement after ninety days was the appropriate
sanction, this Court did not note any aggravating factors, and noted only one mitigating
factor: the absence of prior attorney discipline. See id. at 98, 753 A.2d at 39.
In Attorney Grievance Comm’n v. Brugh, 353 Md. 475, 478-79, 727 A.2d 913, 915,
914 (1999), this Court indefinitely suspended from the practice of law in Maryland, with
the right to apply for reinstatement after sixty days, a lawyer who violated MLRPC 1.1
(Competence), 1.3 (Diligence), 1.4 (Communication), 1.16(d) (Terminating
Representation), and 8.4(d) (Conduct That Is Prejudicial to the Administration of
- 28 -
Justice). In separately representing each of three clients, the lawyer “neglected the matter
and failed to communicate with his client.” Brugh, 353 Md. at 476, 727 A.2d at 913. This
Court observed that, at the time of his misconduct, the lawyer was experiencing personal
problems in that his wife was having an affair. See id. at 477, 727 A.2d at 914. This Court
also noted that the hearing judge found that the lawyer suffered from an adjustment
disorder; that the lawyer had “recover[ed]” thanks to antidepressants and therapy; and that
the lawyer was “genuinely remorseful.” Id. at 478, 727 A.2d at 914. Finally, at oral
argument, the lawyer’s counsel stated that the lawyer intended to pay within six months
the money that the lawyer owed to his former clients. See id. at 478, 727 A.2d at 914.
Here, Chanthunya violated MLRPC 1.1 (Competence), 1.3 (Diligence), 1.4(a)(2),
1.4(a)(3), 1.4(b) (Communication), and 8.4(d) (Conduct That Is Prejudicial to the
Administration of Justice). Chanthunya’s misconduct cost Traore the opportunity to have
USCIS consider an appeal, and impeded the progress of both of his clients in becoming
naturalized.
We note five aggravating factors: (1) a pattern of misconduct, as Chanthunya
engaged in similar misconduct in separately representing two clients; (2) multiple
violations of the MLRPC; (3) a refusal to acknowledge the misconduct’s wrongful nature;
(4) substantial experience in the practice of law, as Chanthunya had been a member of the
Bar of Maryland for approximately ten years at the time of his misconduct; and (5) the
victims’ vulnerability, as both of Chanthunya’s clients, Traore and Vanguere, were not
United States citizens and had immigrated to this country, see Thomas, 440 Md. at 558,
103 A.3d at 649 (This Court noted the “special vulnerability of immigrants as clients[,]”
- 29 -
given that people who immigrate to this Country may be “extremely vulnerable people,
largely unable or unwilling as a practical matter to defend themselves[] from being preyed
on[.]” (Citations and internal quotation marks omitted)).
We note two mitigating factors: (1) the absence of prior attorney discipline; and (2)
the absence of a dishonest or selfish motive.
We conclude that the appropriate sanction for Chanthunya’s misconduct is an
indefinite suspension from the practice of law in Maryland with the right to apply for
reinstatement after sixty days. This sanction will impress on Chanthunya and other lawyers
in immigration cases the importance of representing their clients competently, diligently,
and with adequate communication, as clients in such cases are vulnerable and dependent
on their lawyers for their—and, in some instances, their family members’—very ability to
continue living in the United States.
As noted above, in its filing, the Commission initially recommended that we
indefinitely suspend Chanthunya from the practice of law in Maryland with the right to
apply for reinstatement after six months. At oral argument, however, Assistant Bar
Counsel stated that, if this Court concluded that Chanthunya did not violate MLRPC 8.4(b),
the Commission would recommend that we indefinitely suspend Chanthunya from the
practice of law in Maryland with the right to apply for reinstatement after sixty days. Upon
consideration of Chanthunya’s violations of MLRPC 1.1, 1.3, 1.4(a)(2), 1.4(a)(3), 1.4(b),
and 8.4(d), the negative impacts that Chanthunya’s misconduct had on both of his clients,
the five aggravating factors, and the fact that there are only two mitigating factors—the
absence of prior attorney discipline and the absence of a dishonest or selfish motive—to
- 30 -
adequately protect the public, we are more than convinced that the sanction that Bar
counsel recommended at oral argument, an indefinite suspension with the right to apply for
reinstatement after sixty days, is appropriate.
Although not involving entirely similar misconduct, Mooney and Brugh are helpful
in determining the appropriate sanction in this case. Chanthunya’s misconduct was not as
serious as the lawyer’s misconduct in Mooney, 359 Md. at 98, 97, 84, 87-88, 753 A.2d at
39, 31, 33-34; for example, Chathunya did not violate MLRPC 8.4(c). Accordingly,
Mooney suggests that Chanthunya’s misconduct merits a sanction that is less than an
indefinite suspension with the right to apply for reinstatement after ninety days.
Chanthunya’s misconduct is similar to that of the lawyer in Brugh, 353 Md. at 353
Md. at 476, 727 A.2d at 913; like the lawyer in Brugh, Chanthunya neglected cases and
failed to communicate with clients. It is true that the lawyer in Brugh, id. at 478-79, 727
A.2d at 915, 914, violated an MLRPC that Chanthunya did not—namely, MLRPC 1.16(d)
(Terminating Representation)—and the lawyer in Brugh engaged in misconduct involving
three clients, in contrast to Chanthunya’s misconduct involving two clients. No
aggravating factors, however, accompanied the misconduct of the lawyer in Brugh, id. at
477, 727 A.2d at 914. And, significantly, the lawyer in Brugh, id. at 477-78, 727 A.2d at
914, offered substantial evidence of mitigating factors in the form of personal problems, a
mental disability, remorse, and an effort to make restitution. Here, although Chanthunya’s
misconduct involved only two clients, as opposed to three, and although he did not violate
MLRPC 1.16(d), there were multiple aggravating factors and fewer mitigating
accompanying Chanthunya’s misconduct. Specifically, only two mitigating factors
- 31 -
accompany Chanthunya’s misconduct, and five aggravating factors—including a refusal
to acknowledge the misconduct, substantial experience in the practice of law, and the
victims’ vulnerability—accompany Chanthunya’s misconduct. A comparison of Brugh
with this case indicates that an indefinite suspension with the right to apply for
reinstatement after sixty days is the appropriate sanction for Chanthunya.
For the above reasons, we indefinitely suspend Chanthunya from the practice of law
in Maryland with the right to apply for reinstatement after sixty days. The suspension will
begin thirty days after the date on which this opinion is filed.
IT IS SO ORDERED; RESPONDENT SHALL PAY
ALL COSTS AS TAXED BY THE CLERK OF
THIS COURT, INCLUDING COSTS OF ALL
TRANSCRIPTS, PURSUANT TO MARYLAND
RULE 16-761(b), FOR WHICH SUM JUDGMENT
IS ENTERED IN FAVOR OF THE ATTORNEY
GRIEVANCE COMMISSION AGAINST
ALEXANDER MANJANJA CHANTHUNYA.
Judge Harrell joins in the judgment only.
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