Attorney Grievance v. Malone

Attorney Grievance Commission of Maryland v. Edward Allen Malone, Misc. Docket AG
No. 47, September Term, 2020. Opinion by Biran, J.
ATTORNEY DISCIPLINE – MISCONDUCT – APPLICATION OF THE FIFTH
AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION – LIMITED
REMAND – Respondent, Edward Allen Malone, was charged with violating Maryland
Lawyers’ Rules of Professional Conduct (“MLRPC”) 8.1(a) and (b) (bar admission and
disciplinary matters) and 8.4(a), (b), (c), and (d) (misconduct). In pretrial discovery, Mr.
Malone asserted 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 all
questions Bar Counsel asked Mr. Malone at his deposition. Bar Counsel filed a motion in
limine to preclude Mr. Malone from testifying at the evidentiary hearing on Bar Counsel’s
charges, and the hearing judge granted the motion. The hearing judge found that Mr.
Malone violated the MLRPC, as alleged by Bar Counsel.
The Court of Appeals held that a civil litigant who invokes the Fifth Amendment privilege
against self-incrimination in discovery is not forever precluded from waiving the privilege
and testifying at trial or submitting substantive responses to discovery requests. When
faced with a party’s application to waive the privilege after previously invoking it (or an
objection by an opposing party to a subsequent proposed waiver), the trial court should, in
general, take a liberal view toward the request to waive the privilege. However, the trial
court must be alert to the danger that the litigant might have invoked the privilege primarily
to abuse, manipulate, or gain an unfair strategic advantage over opposing parties. A trial
court’s response to a request to withdraw the privilege necessarily depends on the precise
facts and circumstances of each case.
In this case, the hearing judge acted within his discretion by precluding Mr. Malone from
testifying as to the alleged violations of the MLRPC. However, the balance of interests
favored allowing Mr. Malone to testify concerning mitigating factors at the evidentiary
hearing.
The Court of Appeals concluded that Mr. Malone violated Rules 8.1(a), 8.1(b), 8.4(a),
8.4(b), 8.4(c), and 8.4(d). The Court ordered a limited remand to the circuit court to allow
Mr. Malone to testify concerning mitigating factors. The Court deferred 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 the Court of Appeals.
Circuit Court for Anne Arundel County
Case No. C-02-CV-20-002203
Argued: October 6, 2021
IN THE COURT OF APPEALS
OF MARYLAND
Misc. Docket AG No. 47
September Term, 2020
ATTORNEY GRIEVANCE COMMISSION
OF MARYLAND
v.
EDWARD ALLEN MALONE
Getty, C.J.
McDonald
Watts
Hotten
Booth
Biran
Gould,
JJ.
Opinion by Biran, J.
Filed: January 31, 2022
Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2022-01-31
14:38-05:00
Suzanne C. Johnson, Clerk
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
1
Effective July 1, 2016, the Maryland Lawyers’ Rules of Professional Conduct
(“MLRPC”) were renamed the Maryland Attorneys’ Rules of Professional Conduct
(“MARPC”) and recodified without substantive changes in Title 19 of the Maryland Rules.
The Petition for Disciplinary or Remedial Action in this case only charges violations of the
MLRPC.
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.
2
I
Background
The Allegations of Professional Misconduct
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
3
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.
Mr. Malone’s Answer to the Petition
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.
Bar Counsel’s Effort to Depose Mr. Malone
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
4
that he provide his availability for the dates previously proposed. Mr. Malone subsequently
replied: “The 5th Amendment as made applicable through the 14th, protects a person
against testifying against himself. I therefore invoke my rights, and I respectfully request
you to call off your deposition.” 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: “I also invoke Rule 2-403[2] and object to the taking of the deposition
itself on grounds that it serves no other purpose than to annoy, embarrass, and oppress me.
Put simply. I am not sitting for a deposition. And if that means the Maryland Court of
Appeals will revoke my law license, then so be it.”
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
2
Maryland Rule 2-403(a) provides, in part: “On motion of a party, a person from
whom discovery is sought, or a person named or depicted in an item sought to be
discovered, and for good cause shown, the court may enter any order that justice requires
to protect a party or person from annoyance, embarrassment, oppression, or undue burden
or expense[.]”
3
The record suggests that Mr. Malone mailed his reply to the circuit court for filing
before receiving Judge Asti’s Order denying his motion for a protective order.
5
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!”
Mr. Malone’s Invocations of the Fifth Amendment
a. Responses to Document Requests
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.
b. The Deposition
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:
• “[C]an you just state and spell your name for the record, please.”
6
• “[D]id you receive the documents that I sent you that I’ll be referring to
today?”
• “[A]re you able to see what I am sharing on the screen?”
• “What, if any, factors are you contending should be considered in
mitigation of any potential sanction imposed in this matter?”
• “[Y]ou received Petitioner’s interrogatories and Petitioner’s request for
production of documents that were served upon you; is that right?”
• “[A]re you disputing that you received a reprimand from Virginia?”
• “[A]re you disputing that you received a private reprimand from the
United States District Court for the District of Maryland in 2012?”
• “[A]re you disputing that you knowingly and intentionally made
misrepresentations on your Texas Bar application for admission to the
Texas Bar?”
• “[C]an you explain the basis of … what your Fifth Amendment right is
when you’ve admitted much of these matters already in your answer to
the Petition for Disciplinary and Remedial Action in this case?”
In response to the question, “is it your intention today to assert your Fifth Amendment right
to any and all questions I ask you,” Mr. Malone replied, “Yes, ma’am.”
After asking questions for approximately 10 minutes, Bar Counsel stated: “Well, at
this time, I’m going to end the deposition, but I’m going [to] hold it open so that the Court
has an opportunity to weigh in on what’s clearly a discovery dispute in this case. So I think
this concludes the deposition for today.”
Bar Counsel’s Motion in Limine
Although Bar Counsel held the deposition open, Bar Counsel did not file a motion
to compel Mr. Malone to answer the questions he refused to answer on the basis of the
Fifth Amendment. Nor did Bar Counsel move to compel Mr. Malone to provide responsive
7
documents he withheld on the basis of the Fifth Amendment. Rather, on April 1, 2021, Bar
Counsel filed a motion in limine arguing that Mr. Malone should be precluded from
testifying at the upcoming evidentiary hearing. Mr. Malone filed an opposition to the
motion in limine on April 5, 2021.
The Hearing on the Motion in Limine
On April 26, 2021, the Honorable Robert J. Thompson of the Circuit Court for Anne
Arundel County4 held a hearing on Bar Counsel’s motion in limine. At the hearing, Bar
Counsel argued that, under the factors this Court set forth in Taliaferro v. State, 295 Md.
376 (1983),5 the hearing judge should preclude Mr. Malone from offering his own
testimony at the evidentiary hearing “based on his complete failure to answer any questions
at his deposition in this matter, in addition to failing to answer two of Petitioner’s requests
for document production.” Bar Counsel acknowledged that the respondent in an attorney
grievance matter may invoke his or her rights under the Fifth Amendment, but argued that,
in this case, Mr. Malone “has asserted his privilege in a wholesale manner” and, therefore,
“not in good faith.” Bar Counsel further argued that Mr. Malone’s “failure to answer any
4
On March 31, 2021, Mr. Malone filed a motion to recuse Judge Asti. By Order
dated April 7, 2021, Judge Asti granted the motion. On the same date, this Court designated
Judge Thompson to hear and determine this matter.
5
Taliaferro concerned a trial court’s exclusion of a purported alibi witness’s
testimony due to the defendant’s belated disclosure of the witness. This Court stated that
the decision to exclude such evidence “turns on the facts of the particular case,” and noted
several relevant factors to consider, including: “whether the disclosure violation was
technical or substantial, the timing of the ultimate disclosure, the reason, if any, for the
violation, the degree of prejudice to the parties respectively offering and opposing the
evidence, whether any resulting prejudice might be cured by a postponement and, if so, the
overall desirability of a continuance.” 295 Md. at 390-91.
8
questions at his deposition has prejudiced Petitioner’s ability to prepare for trial in this
matter, to prepare for cross-examination, in particular to … explore his defenses that he’s
asserted in this case and the positions that he’s asserted, in addition to exploring what
mitigation he intends to put on so that Petitioner could have taken additional discovery on
those matters.” Bar Counsel claimed that the prejudice could not be cured by a
postponement of the evidentiary hearing “because there doesn’t appear to be any indication
that Mr. Malone intends to cooperate with the Petitioner or act in good faith in this case.”
Bar Counsel indicated that she was not asking the hearing judge to “draw any sort of
negative [inference] from” Mr. Malone’s having asserted the Fifth Amendment. Rather,
Bar Counsel stated,
Petitioner is just asking that he not be allowed to use his Fifth Amendment
as both a shield in refusing to answer any questions at a deposition, but also
a sword in introducing new information at trial, if he be allowed to testify on
things that he … refused to answer questions about during his deposition.
In response, Mr. Malone told the hearing judge:
Well, Your Honor, I probably won’t be testifying in any type of case in chief
that I would be making.
I would like for the Court to allow me in case I am found to be, I’ll use the
word for lack of a better word, guilty, to at least address the Court in, what
I’ll call for lack of a better word, sentence.
Now, as far as being allowed to testify, I still would argue that the Fifth
Amendment privilege belongs to the suspect, and so it could be waived or
asserted…. I haven’t seen anything in the U.S. Constitution that says, well,
if you assert the privilege pretrial then you waive your right to change your
mind and then testify. So in that respect I don’t think … bar counsel is correct
in being able to do this to me.
9
Replying to Mr. Malone’s argument, Bar Counsel alluded to the Court of Special
Appeals’ decision in Kramer v. Levitt, 79 Md. App. 575, 588 (1989), which Bar Counsel
argued stands for the proposition that a civil litigant “who asserts their privilege against
self-incrimination during the discovery stage … then can be prohibited from testifying on
those same matters.” Bar Counsel argued that such a rule makes sense because “if a party
is free to shield themselves with a privilege during discovery but then has the full benefits
of their testimony at trial, it … completely guts the purpose of discovery in these cases.”
The hearing judge then considered the Taliaferro factors and Kramer v. Levitt, and
granted Bar Counsel’s motion in limine. The hearing judge found that Mr. Malone had
invoked his Fifth Amendment privilege in bad faith:
If … you had been asked a specific question about an alleged or purported
ethical violation and you had refused to answer that question, that would be
one thing, and it might be appropriate … in that case to invoke the Fifth
Amendment privilege, but you showed bad faith when you wouldn’t respond
to whether a document was being properly shown to you by Zoom or spelling
your name, that kind of thing.
Considering the prejudice to the parties, the hearing judge noted that “Mr. Malone
has told me insofar as prejudice to him that he probably won’t be testifying any way. So I
think that that minimizes the impact of any prejudice on him that there may be.” As for the
prejudice to Bar Counsel if Mr. Malone were permitted to testify, the hearing judge stated:
[W]hen you don’t have discovery it’s almost impossible to prepare for trial,
it’s almost impossible to prepare for cross-examination, it’s almost
impossible to prepare for impeachment of witnesses…. [Y]ou’re not on
notice of what defenses a party may have.
… I think bar counsel is right, and it also is echoed in the words of … Kramer
versus Levitt, that it’s not fair to be able to use … the Fifth Amendment
privilege as both a shield and a sword.
10
Finally, the hearing judge explained that “[t]rial is next week and it’s not going to
be postponed, because the rule requires that the trial be held within so many days of
receiving the assignment, and I think we might have a few extra days left in the order, but
not enough to postpone the case or allow for a second opportunity at deposition.”
By Order dated April 27, 2021, the hearing judge formally granted Bar Counsel’s
motion in limine and ordered that Mr. Malone would be precluded from testifying at the
evidentiary hearing.
The Evidentiary Hearing
The evidentiary hearing on the charges alleged in the Petition went forward on May
5, 2021. In his opening statement, Mr. Malone stated: “The evidence in this case will show
that myself, Respondent, engaged in a continuous course of conduct to procure a Texas
law license by fraud” but that, beginning in June 2016, he “corrected that or attempted to
correct that situation by seeking readmission into Virginia, by reapplying to Texas and by
no longer being deceitful.” Mr. Malone explained that he was now “attempting to restore
his life and get it back on track, so to speak, and that despite bar counsel’s characterization
of Respondent as a dishonest person, the evidence will show that Respondent engaged in
an awful scandal but that otherwise there isn’t a record of Respondent deceiving people,
defrauding people or engaging in obstruction of justice or anything disruptive to the judicial
system.”
Bar Counsel introduced more than 20 exhibits relating to Mr. Malone’s alleged
misconduct in Texas. Bar Counsel did not call any witnesses. Mr. Malone introduced 14
exhibits as well as the testimony of a former client, Taylor Bastiand Woodyard. Ms.
11
Woodyard testified that Mr. Malone represented her very effectively, and that she referred
him to family members and business associates who needed legal advice and
representation. According to Ms. Woodyard, the people to whom she referred Mr. Malone
provided her with “nothing but positive feedback about [Mr. Malone’s] … integrity, …
[his] knowledge of the law, [his] compassion and the way that [he] walk[s] them through
… each of their options as to what to do. They were very – and still are very impressed
with [Mr. Malone] and stated [he is] a credit to the law – the legal system.”
The exhibits Mr. Malone introduced included, among other things, a list of Virginia
Continuing Legal Education classes he had taken in 2016 as a “pre-condition to
readmission to the Virginia state bar,” a letter from the Texas Board “announcing a passing
score for the February 2020 bar exam,” and several news articles detailing his indictment
in Texas for holding himself out as a lawyer by reciting the Declaration of Independence
at a Fourth of July event at which attorneys traditionally read the Declaration.
In his closing argument, Mr. Malone again admitted that he had knowingly omitted
his Virginia licensure and disciplinary history from his Texas Bar application. Mr. Malone
also engaged in an extended colloquy with the hearing judge about various events in Texas
that did not directly bear on Bar Counsel’s charges but seemingly touched upon potential
mitigating factors. For example, Mr. Malone told the hearing judge about some of the
circumstances concerning his prior Virginia suspension. In addition, he provided more
information about his indictment in Texas for holding himself out as an attorney, and
argued that this criminal charge shows that he has already “been punished” and “suffered
consequences” for his professional misconduct.
12
At several points during his discussion with the hearing judge, Mr. Malone indicated
awareness that he should not be “testifying,” and curtailed his remarks concerning the
points he was trying to make. However, Mr. Malone did provide an explanation in his
closing argument concerning his failure to disclose his admission to, and his private
reprimand from, the United States District Court for the District of Maryland. As to why
he initially failed to disclose his admission to the federal district court in Maryland, Mr.
Malone stated that he was admitted in “about eight, nine courts. Now that doesn’t excuse
it but the reason it could have been was I don’t feel like writing all this stuff down,
admission date, admission year and all that stuff, each court[.]” Regarding the private
reprimand from the Maryland federal court, Mr. Malone stated: “My argument is that I lied
about Virginia and then what they’re trying to do is pin the second one on me. And it wasn’t
a conscious lie. I knew what I was doing with Virginia and I said, okay, I’m not going to
list that state. That was intentional…. This other one, I did not have that in mind. It was a
private reprimand. I forgot about it. I did.”
At that point, Bar Counsel objected that Mr. Malone was “using closing argument
to testify in this case.” The hearing judge replied that Bar Counsel’s objection “is noted,”
but did not rule on it. Mr. Malone then continued: “Okay. Well, the evidence is … that all
courts were listed. And so if that was intent to deceive, why would I have listed that court?
If I wanted to hide it, I would have just not listed it and they would have never known about
it. And it’s harder to find out about federal discipline than state. They wouldn’t have even
known that I was admitted in that court. So pinning that second deception on me was not
right. I think the Texas Board of Law Examiners was wrong in doing it. And I would hope
13
that this Court does not adopt their factual finding in that regard.” (Paragraph break
omitted.)
The Parties’ Proposed Findings of Fact and Conclusions of Law
On May 21, 2021, Bar Counsel filed Petitioner’s Proposed Findings of Fact and
Conclusions of Law. On May 27, 2021, Mr. Malone filed his Proposed Findings of Fact
and Conclusions of Law. In his submission, Mr. Malone again acknowledged his
“dishonesty in procuring admission in Texas.” However, he asked the hearing judge to
conclude that he “could not have possibly violated Rule 8.1” because his misconduct
involved attempts to gain admission to the Texas Bar, not the Maryland Bar. Mr. Malone
conceded that he violated Rule 8.4(c), in that “Respondent, by his own admission
intentionally concealed negative information about himself to the Texas Board … in
seeking admission to practice law in Texas.” Mr. Malone did not ask the hearing judge to
find that he knowingly omitted only his Virginia licensure and disciplinary history from
his Texas Bar applications, and that his failure to disclose his admission to, and his
disciplinary history in, the United States District Court for the District of Maryland, was
inadvertent.
In his submission, Mr. Malone did not expressly refer to “mitigation” or any of the
mitigating factors this Court has recognized in attorney grievance cases. However, Mr.
Malone asked the hearing judge to find facts that seemingly bore on the mitigating factors
14
of good character or reputation, interim rehabilitation, and imposition of other penalties or
sanctions.6
II
The Hearing Judge’s Findings of Fact and Conclusions of Law
On June 4, 2021, the hearing judge filed with this Court an opinion containing his
findings of fact and conclusions of law, as well as findings concerning aggravating and
mitigating circumstances. The hearing judge concluded that Mr. Malone violated MLRPC
8.1(a) and (b) and 8.4(a), (b), (c), and (d). The hearing judge also found that Bar Counsel
established the existence of several aggravating factors, and that Mr. Malone failed to
establish the existence of any mitigating factors.
A. The Hearing Judge’s Findings of Fact
We summarize here the hearing judge’s findings of fact.
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
6
For example, Mr. Malone asked the hearing judge to find that “Mr. Malone has
already paid a price for his misbehavior. He has faced the economic hardship of having his
Texas license canceled as well as the public embarrassment and humiliation of having his
license canceled and being indicted for simply reading the Declaration of Independence.”
15
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
16
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).7
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
7
At the time Mr. Malone received his public reprimand in Virginia, the Maryland
Rule that required him to disclose the reprimand to Bar Counsel was Rule 16-773(a).
Maryland Rule 19-737 was adopted in 2016, replacing prior Rule 16-773.
17
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).8
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. 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.
8
See footnote 7 above.
18
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, disqualified … or has your license ever been
qualified or conditioned in any way …?” Mr. Malone answered “no.” Mr. Malone
knowingly and intentionally misrepresented his disciplinary and licensing history by
failing to disclose the Virginia discipline and administrative suspensions and the reprimand
issued by the United States District Court for the District of Maryland.
The application included an affidavit, signed by Mr. Malone on June 3, 2013,
swearing that he “responded to all inquiries on [the application] fully and frankly, and all
the information contained in [the] application … is true and correct.” Mr. Malone’s
affidavit was knowingly and intentionally false.
To qualify for admission without examination, Mr. Malone was required to submit
his federal tax returns from 2006-2012. He failed to do so, asserting that his tax returns
were “none of the Board’s business.” Rather than submit the required documentation, on
November 18, 2013, Mr. Malone elected to apply for admission to the Texas Bar by taking
the February 2014 Texas Bar Examination. Mr. Malone took the exam but did not pass.
On May 9, 2014, Mr. Malone filed a sworn Re-Application for Admission to the
Bar of Texas. Again, Mr. Malone failed to disclose his admission to the Virginia Bar or the
19
various United States District Courts, including the District of Maryland, and failed to
disclose his disciplinary history. Rule X(e) of the Rules Governing Admission to the Bar
of Texas states, in part, that “[t]he Applicant has a continuing duty to ensure the accuracy
and completeness of the Applicant’s responses on the Application and to update those
responses until the Applicant is certified to the Supreme Court for licensure.”9
On December 5, 2014, Mr. Malone filed a second sworn Re-Application for
Admission to the Bar of Texas. Again, Mr. Malone failed to disclose his admission to the
Virginia Bar or the various United States District Courts, and failed to disclose his
disciplinary history.
Mr. Malone again took the Texas Bar Exam in July 2014 but did not pass. Mr.
Malone passed the February 2015 Texas Bar Exam and was admitted to the Texas Bar on
April 30, 2015.
On February 10, 2016, the Texas Board opened an investigation after receiving
notice of Mr. Malone’s disciplinary history in Virginia from the District Attorney of Sabine
and San Augustine Counties, Texas. On February 10, 2016, the Texas Board advised Mr.
Malone that it was investigating whether he obtained his Texas law license fraudulently or
by a willful failure to comply with the Rules Governing Admission to the Bar of Texas.
Rule XVII(b) provides:
All law licenses are issued on the condition that the Applicant has faithfully
complied with these Rules. If at any time it appears that an Applicant has
9
The Rules Governing Admission to the Bar of Texas ended the use of Roman
Numerals in December 2019. Rule X(e) is now Rule 10(e). Rule XVII(b), discussed below,
is now Rule 17(b). The language of these rules did not change when the numbering
changed.
20
obtained a license fraudulently or by willful failure to comply with these
Rules, after notice and hearing, the Board may recommend to the Supreme
Court that the license be withdrawn and canceled, and the name of the license
holder stricken from the roll of attorneys.
The Texas Board asked Mr. Malone to explain why he failed to disclose his Virginia
licensure and disciplinary history. Mr. Malone responded by letter dated February 25,
2016, as follows:
I failed to disclose my Virginia license and discipline to the board because I
did not read the questions carefully enough. In applying for a Texas law
license under the admission by motion program, I planned on using Maryland
as the reciprocal state. As such, I did not believe I was required to share my
experience practicing law in Virginia.
This statement by Mr. Malone to the Board was a knowing and intentional
misrepresentation.
On May 13, 2016, Mr. Malone appeared before the Texas Board for a hearing and
admitted that his statements to the Board in his February letter were false. He admitted to
carefully reading the application questions, that he knew of his requirement to disclose his
Virginia license and disciplinary history, and that he intentionally answered questions 3
and 17(c) falsely.
By Order and Opinion dated May 24, 2016, the Texas Board concluded that Mr.
Malone obtained “his license to practice law in Texas fraudulently or by willful failure to
comply with the Rules.” The Texas Board found that Mr. Malone’s knowing and
intentional misrepresentations on his bar applications “were material, were relied upon by
the Board, and benefitted Mr. Malone in that he was licensed to practice law in Texas
without any opportunity for the Board to make an informed determination regarding Mr.
21
Malone’s moral character.” The Texas Board further found a “clear and rational
connection” between Mr. Malone fraudulently obtaining his Texas law license and “the
likelihood he would injure a client, obstruct the administration of justice, or violate the
Texas Disciplinary Rules of Professional Conduct.” The Texas Board recommended to the
Supreme Court of Texas that Mr. Malone’s license be withdrawn and canceled.
The Supreme Court of Texas withdrew and canceled Mr. Malone’s Texas law
license by Order dated June 7, 2016. The Order required Mr. Malone to immediately notify
his Texas clients and all Texas tribunals in which he had a pending matter of the Order and
submit an affidavit stating he had done so. In response to the Supreme Court’s Order, Mr.
Malone submitted an affidavit asserting that “[the Supreme] Court has no authority to
compel me to do a thing… Requiring me to submit memos to judges and then file an
affidavit with this Court constitutes involuntary servitude.”
On June 15, 2016, Mr. Malone filed a Re-Application for Admission to the Texas
Bar. He answered affirmatively to the question whether he has been charged with fraud, or
alleged to have committed fraud, in a legal proceeding. Mr. Malone stated: “My
misrepresentation only became an issue when a District Attorney … came forward and
complained to the Board after I begin to expose and challenge his unconstitutional
practices.” The Texas Board granted Mr. Malone’s request that he not be required to retake
the Texas bar exam.
During Mr. Malone’s character and fitness investigation, the Texas Board asked him
to provide a complete list of all federal jurisdictions in which he was licensed. Based on
that list, the Board sent inquiries to multiple jurisdictions. The Board was advised by the
22
United States District Court for the District of Maryland that Mr. Malone had been issued
a private reprimand on December 12, 2012. As of 2016, Mr. Malone had failed to disclose
this private reprimand to the Board. Following the character and fitness investigation, the
Board notified Mr. Malone that a hearing would be held to determine whether
Mr. Malone’s incomplete and false disclosures in connection with multiple
applications for admission to the Bar of Texas indicates he lacks the good
moral character required for admission; whether Mr. Malone’s Virginia State
Bar disciplinary history indicates he lacks the good moral character required
for admission; whether Mr. Malone’s history of obtaining his Texas law
license by fraud or willful failure to comply with the Rules Governing
Admission to the Bar of Texas and the subsequent cancellation of that license
indicates he lacks the good moral character required for admission; and
whether Mr. Malone’s correspondence with the Supreme Court of Texas and
the Board of Law Examiners indicates he lacks trustworthiness in carrying
out responsibilities directly related to the judicial process.
At the July 7, 2017 hearing before the Board, Mr. Malone testified that he failed to
disclose his admission and disciplinary history in the United States District Court for the
District of Maryland because he did not “remember” he was admitted to that court. The
Board found Mr. Malone’s testimony not credible, noting that Mr. Malone was disciplined
in the United States District Court for the District of Maryland in December 2012 and
applied for admission to the Texas Bar only six months later in June 2013. The Board
further found that Mr. Malone’s “failure to provide credible testimony or a legitimate
explanation regarding the reason for his failure to disclose his disciplinary history with the
United States District Court for the District of Maryland, is indicative of dishonesty and a
lack of trustworthiness.”
By Order dated July 21, 2017, the Board concluded that Mr. Malone did not possess
the present good moral character required for admission to practice law in Texas. The Order
23
required, among other things, that Mr. Malone provide copies of the Order to any
jurisdiction in which he is admitted to practice law.
On August 17, 2017, Mr. Malone filed a Petition for Review in the District Court
for Travis County, Texas, requesting the court to review and overturn the Board’s decision
denying him admission to the Texas Bar. In the Petition, Mr. Malone alleged that the Board
denied him admission “because it wanted to punish him for ‘pulling one over’ on them and
failing to be humble in re-applying for a license.” He also accused the Board of acting out
of spite and trying to destroy him. In April 2020, Mr. Malone filed a Notice of Nonsuit in
the District Court for Travis County, asking the court to dismiss his claims against the
Board. On April 22, 2020, the Travis County District Court dismissed Mr. Malone’s claims
against the Board.
Mr. Malone reapplied for admission in Texas. At the time of the evidentiary hearing,
his application was pending satisfaction of the requirement of present good moral character
and fitness for admission to the Texas Bar.
B. The Hearing Judge’s Conclusions of Law
Based on his findings of fact, the hearing judge concluded by clear and convincing
evidence that Mr. Malone violated MLRPC 8.1(a) and (b), and 8.4(a), (b), (c), and (d).
Rule 8.1 – Bar Admissions and Disciplinary Matters
Rule 8.1 provides:
An applicant for admission to the bar, or a lawyer in connection with a bar
admission application or in connection with a disciplinary matter, shall not:
(a) knowingly make a false statement of material fact; or
24
(b) fail to disclose a fact necessary to correct a misapprehension known by
the person to have arisen in the matter, or knowingly fail to respond to a
lawful demand for information from an admissions or disciplinary authority,
except that this rule does not require disclosure of information otherwise
protected by Rule 1.6.
The hearing judge concluded:
The Respondent violated Rule 8.1(a) when he answered “no” to Questions
13 and 17(c) of the Texas Bar application…. The Respondent knowingly and
intentionally misrepresented his disciplinary history by failing to disclose
that he had been held in contempt by the bankruptcy court, sanctioned by the
United States District Court for the District of Maryland, and reprimanded
and administratively suspended in Virginia.
The Respondent also intentionally failed to disclose his admissions to the
Virginia Bar and various U.S. District Courts to conceal his disciplinary
history from the Board. By only disclosing his admission to Maryland in
response to a question requiring the Respondent to list all jurisdictions in
which he is licensed, the Respondent violated Rule 8.1(a).
Additionally, the bar application included an affidavit, signed by the
Respondent swearing that he “responded to all inquiries on [the application]
fully and frankly, and all the information contained in [the] application is true
and correct.” The Respondent’s affidavit was knowingly and intentionally
false. During the Board’s subsequent investigation of the Respondent, he
continued to make misrepresentations, falsely stating that his disclosure
failures were the result of not reading the bar applications questions carefully
enough. The Respondent’s numerous deliberate falsehoods to the Board to
fraudulently gain admission to the Texas Bar violate Rule 8.1(a).
The Respondent violated Rule 8.1(b) when he failed to supplement his June
2013 bar application and subsequent re-applications with his admissions and
disciplinary history, thereby failing to correct the misapprehension that he
had fully disclosed his disciplinary history in all licensed jurisdictions. By
failing to disclose his Virginia and U.S. District Court for the District of
Maryland admissions, and falsely answering questions regarding his
disciplinary history, the Respondent created the misapprehension. The
Respondent continually failed to correct this misapprehension. He failed to
provide the Board with a list of all federal jurisdictions in which he was
licensed until September 2016, when the Board explicitly asked for such
information during its character and fitness investigation of the Respondent’s
reapplication after his Texas license was cancelled. The Respondent’s
25
knowing and intentional concealment of material information from the Board
violated Rule 8.1(b).
Rule 8.4 – Misconduct
Rule 8.4 provides, in part:
It is professional misconduct for a lawyer to: (a) violate or attempt to violate
the Rules of Professional Conduct, knowingly assist or induce another to do
so, or do so through the acts of another; (b) commit a criminal act that reflects
adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in
other respects; (c) engage in conduct involving dishonesty, fraud, deceit or
misrepresentation; [or] (d) engage in conduct that is prejudicial to the
administration of justice[.]
The hearing judge concluded that Mr. Malone violated Rule 8.4(a) by violating
other rules of professional conduct.
The hearing judge concluded that Mr. Malone violated Rule 8.4(b) when he
knowingly and intentionally provided false responses on his sworn Texas bar applications,
and when he declared under oath in his affidavit that the information he provided was true
and correct, thereby committing perjury under Texas law.10 The hearing judge explained:
Although the Respondent was not charged with or convicted of perjury in
Texas, the Respondent committed perjury in violation of Rule 8.4(b) when
he declared under oath in the affidavit that the information contained in his
bar application was true and correct and that he had responded to all
10
The Texas perjury statute, Tex. Pen. Code § 37.02 (2021), states:
(a) A person commits an offense if, with intent to deceive and with
knowledge of the statement’s meaning:
(1) he makes a false statement under oath or swears to the truth of a
false statement previously made and the statement is required or
authorized by law to be made under oath; or
(2) he makes a false unsworn declaration under Chapter 132, Civil
Practice and Remedies Code.
(b) An offense under this section is a Class A misdemeanor.
26
questions fully and frankly. The Respondent’s affidavit was knowingly and
intentionally false. The Respondent’s conduct clearly reflects adversely on
his honesty and trustworthiness, in violation of Rule 8.4(b).
The hearing judge concluded that Mr. Malone also violated Rule 8.4(c):
The Respondent’s deliberate failure to disclose his admission to the Virginia
State Bar and various Federal District courts and his disciplinary history in
Virginia and the U.S. District Court for the District of Maryland on his
various Texas bar applications violated Rule 8.4(c). The Respondent made
numerous knowing and intentional misrepresentations to the Texas Board,
including answering no to questions on the bar application asking if he had
ever been held in contempt or sanctioned by a court or if he had ever been
disciplined or had his law license qualified or conditioned. The Respondent
continued his course of dishonest conduct when he repeatedly failed to
disclose his various admissions or disciplinary history on subsequent bar
applications.
…
The Respondent’s willfully dishonest conduct continued from his
misrepresentations on his June 2013 bar application to his false testimony
regarding his reason for failing to disclose his disciplinary history in the U.S.
District Court for the District of Maryland during his July 2017 Board
hearing. The Respondent’s sustained course of dishonesty in his efforts to
become and remain a Texas attorney violated Rule 8.4(c). Finally, each
violation of Rule 8.1(a) constitutes a violation of 8.4(c).
The hearing judge also concluded that Mr. Malone violated Rule 8.4(d):
The Respondent engaged in a pattern of dishonest and deceitful conduct in
his efforts to be admitted to the Bar in Texas. The Respondent deliberately
concealed material information from the Texas Board to obtain admission.
The Respondent’s conduct was not limited to a single instance of dishonesty
but continued over several years, leading to the withdrawal of his Texas law
license and denial of reapplication to the Texas Bar. The Respondent’s
conduct reflects negatively on [the] public’s perception of the legal
profession, in violation of Rule 8.4(d).
27
C. The Hearing Judge’s Findings as to Aggravating and Mitigating Factors
Aggravating Factors
We have enumerated the aggravating factors that, if found, are relevant to the
appropriate sanction:
(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.
Attorney Grievance Comm’n v. Sperling, 459 Md. 194, 275 (2018) (citation omitted). Bar
Counsel has the burden of proving the existence of aggravating factors by clear and
convincing evidence. Attorney Grievance Comm’n v. Edwards, 462 Md. 642, 708 (2019).
The hearing judge found the existence of five aggravating factors: (1) prior
disciplinary offenses; (2) a dishonest or selfish motive; (3) a pattern of misconduct; (4) bad
faith obstruction of the disciplinary proceeding; and (5) substantial experience in the
practice of law.
The hearing judge concluded that Mr. Malone received prior discipline, i.e., the
public reprimand by the Virginia State Bar on February 11, 2012, and the private reprimand
by the United States District Court for the District of Maryland on December 12, 2012.
28
The hearing judge concluded that Mr. Malone “demonstrated a dishonest and selfish
motive and committed a pattern of misconduct in his years long pursuit for admission to
the Texas Bar, engaging in a sustained course of dishonesty and deceit.”
The hearing judge concluded that Mr. Malone engaged in bad faith obstruction of
the disciplinary process, based on Mr. Malone’s invocation of the Fifth Amendment
privilege against self-incrimination at his deposition in response to every question he was
asked, including questions asking him: (1) to spell his name for the record; (2) whether he
received the documents that Bar Counsel had emailed him prior to the deposition; and
(3) whether he was able to see what Bar Counsel was sharing on her screen.
Finally, the hearing judge found that Mr. Malone was admitted to the Maryland Bar
in 1999 and, therefore, has substantial experience in the practice of law.
Mitigating Factors
We have previously listed relevant mitigating factors as including
absence of a prior disciplinary record; absence of a dishonest or selfish
motive; personal or emotional problems; timely good faith efforts to make
restitution or to rectify consequences of misconduct; full and free disclosure
to disciplinary board or cooperative attitude toward proceedings;
inexperience in the practice of law; character or reputation; physical or
mental disability or impairment; delay in disciplinary proceedings; interim
rehabilitation; imposition of other penalties or sanctions; remorse; and
finally, remoteness of prior offenses.
Attorney Grievance Comm’n v. Hodes, 441 Md. 136, 209 (2014) (citation omitted). An
attorney must prove the existence of mitigating circumstances by a preponderance of the
evidence. Edwards, 462 Md. at 708.
29
The hearing judge concluded that Mr. Malone failed to prove any mitigating
circumstances by a preponderance of the evidence.
III
Standard of Review
“This Court has original and complete jurisdiction in an attorney disciplinary
proceeding and conducts an independent review of the record. The hearing judge’s findings
of fact are left undisturbed unless those findings are clearly erroneous. We review the
hearing judge’s conclusions of law without deference.” Attorney Grievance Comm’n v.
Hoerauf, 469 Md. 179, 207-08 (2020) (cleaned up).
IV
Discussion
Either party may file “exceptions to the findings and conclusions of the hearing
judge[.]” Md. Rule 19-728(b). Bar Counsel has not filed any exceptions. In his exceptions,
Mr. Malone claims that the hearing judge erred by: “(1) punishing Respondent when he
invoked his Fifth Amendment right against self-incrimination; (2) failing to undertake an
analysis of mitigating factors; (3) failing to recognize the existence of various mitigating
factors; and (4) failing to properly analyze the existence of aggravating factors.”11
We disagree with Mr. Malone’s claim that the hearing judge “punished” him for
invoking the privilege against self-incrimination. We also determine that the hearing judge
11
Mr. Malone contends that the hearing judge erred in his application of the
aggravating factors of dishonest or selfish motive and pattern of misconduct. According to
Mr. Malone, “[w]hen analyzing those factors on page 24 [of his opinion]…, the trial court
30
properly concluded that Mr. Malone violated the MLRPC, as alleged by Bar Counsel.
However, we conclude that the hearing judge’s order precluding Mr. Malone from
testifying at the evidentiary hearing was in error to the extent it prevented Mr. Malone from
testifying as to mitigating factors. We conclude that a limited remand is necessary to permit
Mr. Malone to testify concerning mitigation, and to allow the hearing judge to make any
appropriate supplemental findings concerning mitigating factors and aggravating factors.
A. The Hearing Judge’s Ruling Precluding Mr. Malone From Testifying at the
Evidentiary Hearing
The Fifth Amendment provides: “No person ... shall be compelled in any criminal
case to be a witness against himself.” U.S. CONST. amend. V. In order to be subject to a
valid assertion of the Fifth Amendment privilege, an individual’s statement must be
compelled, testimonial, and self-incriminating. See Fisher v. United States, 425 U.S. 391,
408 (1976). “This right against self-incrimination is based on the ‘conviction that too high
simply details how [Mr. Malone] invoked the Fifth Amendment. The trial court never says
why invoking the Fifth Amendment was ‘dishonest or selfish’ or why it represents a
‘pattern of misconduct.’ This was clear error and the idea that the assertion of one’s
Constitutional rights is somehow dishonest, selfish, or misconduct is, to say the least,
deeply troubling.”
It appears that Mr. Malone has misunderstood this part of the hearing judge’s
opinion. The hearing judge analyzed the aggravating factors of dishonest or selfish motive
and pattern of misconduct on page 23 (and the top of page 24) of his opinion, without
mentioning Mr. Malone’s assertion of the Fifth Amendment. The confusion seemingly
stems from the headings the hearing judge used in the aggravating factors section of his
opinion. The hearing judge analyzed the aggravating factors of dishonest or selfish motive
and pattern of misconduct under a heading tied to the aggravating factor of prior discipline.
The hearing judge discussed the aggravating factor of bad faith obstruction of the
disciplinary proceeding, in part, under a heading tied to the factors of dishonest or selfish
motive and pattern of misconduct.
31
a price may be paid even for the unhampered enforcement of the criminal law and that, in
its attainment, other social objects of a free society should not be sacrificed.’” In re Ariel
G., 383 Md. 240, 245 (2004) (quoting Hoffman v. United States, 341 U.S. 479, 486
(1951)). To further these goals, “the Fifth Amendment allows an individual to refuse,
without threat of punishment, to respond to questions the answers to which not only would
support a criminal conviction, but also those that would ‘furnish a link in the chain of
evidence needed to prosecute the claimant for a ... crime.’” Id. (quoting Hoffman, 341 U.S.
at 486). To “invoke the right against self-incrimination, ‘it need only be evident from the
implications of the question, in the setting in which it is asked, that a responsive answer
... might be dangerous because injurious disclosure could result.’” Id. at 246 (quoting
Hoffman, 341 U.S. at 486-87).
Mr. Malone contends that the hearing judge erroneously relied on Maryland State
Bar Association, Inc. v. Sugarman, 273 Md. 306 (1974), and “punished” him for asserting
his Fifth Amendment privilege at the deposition and in response to Bar Counsel’s requests
for production of documents. Mr. Malone asks us to overrule Sugarman or to limit
Sugarman to its facts. We reject Mr. Malone’s characterization of the hearing judge’s
ruling, as well as his contention that Sugarman was incorrectly decided or that we should
limit its scope.
In Sugarman, this Court held that testimony compelled under a federal witness
immunity statute, 18 U.S.C. § 6002, may form the evidentiary basis for disciplinary action
against an attorney. 273 Md. at 318-19. Sugarman, an attorney, testified as a witness under
a grant of federal immunity in a criminal case against Dale Anderson in United States
32
District Court. Id. at 308. At Anderson’s trial, Sugarman admitted to having engaged in a
scheme to avoid income taxes for a client, which included providing fraudulent invoices to
the client for services Sugarman had not actually rendered. See id. at 308-09. After
Sugarman’s immunized testimony from the criminal trial was admitted at his disciplinary
hearing, the disciplinary panel recommended disbarment. See id. Sugarman argued before
this Court that the use of his compelled testimony at his disciplinary hearing violated the
Fifth Amendment. See id. at 309-10. This Court disagreed, holding that, while the Fifth
Amendment ensures that compelled testimony “can in no way lead to the infliction of
criminal penalties,” id. at 310 (quoting Kastigar v. United States, 406 U.S. 441, 461
(1972)), the admission of Sugarman’s immunized statements at the disciplinary hearing
did not violate the Fifth Amendment because disbarment is not a criminal penalty. See id.
at 315-16 (explaining that “disciplinary proceedings for professional misconduct are not
criminal proceedings” and relying on the “traditional view of disbarment” as “not intended
as punishment to the individual, but as protection to the public from such individuals”).
In his written opinion following the evidentiary hearing in this case, the hearing
judge cited Sugarman in a footnote after stating that he had precluded Mr. Malone from
testifying at the hearing. Mr. Malone interprets this citation of Sugarman as indicating that
the hearing judge failed to recognize that the Fifth Amendment applies to disciplinary
cases. From that premise, Mr. Malone argues that the hearing judge “punished” him for his
invocation of his privilege against self-incrimination by precluding his testimony.
Mr. Malone has misinterpreted the hearing judge’s reference to Sugarman. At the
hearing on the motion in limine, both Bar Counsel and the hearing judge made plain that
33
Mr. Malone did have the right under the Fifth Amendment to refuse to answer any
questions at his deposition, or to produce records, that might tend to incriminate him.
Of course, we agree: it is well settled that, unless the privilege previously has been
waived, an attorney charged with disciplinary offenses has the right under the Fifth
Amendment to refuse to answer a question – during discovery or at the evidentiary hearing
on the charges – if a truthful answer to such a question might tend to incriminate the
attorney. See, e.g., Spevack v. Klein, 385 U.S. 511 (1967); Attorney Grievance Comm’n v.
Unnamed Attorney, 298 Md. 36, 43-44 (1983). In Spevack, the Supreme Court held that an
attorney may not be disbarred on the basis of his invocation of the privilege against self-
incrimination. 385 U.S. at 514-15. In that case, the disciplinary body and the disbarring
court in New York assumed that the attorney legitimately could invoke the privilege with
respect to records sought by subpoena. The court ran afoul of the Fifth Amendment by
disbarring the attorney based on that assertion of the privilege. See id. at 517-18.
As discussed above, Sugarman addressed a different point: how the disciplinary
body may use testimony that was compelled in a different forum. This Court held that
immunized statements – which could not be admitted at an attorney’s criminal trial – may
be used as evidence in a disciplinary proceeding against the attorney.
Nobody has compelled Mr. Malone to make any statement, nor did the hearing judge
sanction Mr. Malone for what the hearing judge believed to be a legitimate invocation of
the privilege against self-incrimination. For this reason, Mr. Malone’s reliance on Spevack
34
is misplaced, as is his criticism of the hearing judge’s reference to Sugarman.12 Contrary
to Mr. Malone’s contention, Spevack and Sugarman comfortably co-exist.
Nevertheless, Mr. Malone’s exception to the hearing judge’s exclusion of his
testimony at the evidentiary hearing raises two important questions. First, when a
discovering party believes that a person has improperly invoked the Fifth Amendment to
avoid answering a question in a deposition or to respond to a written discovery request,
what relief may the party seek? Second, how should a trial judge in a civil case proceed
when a party, who invoked the Fifth Amendment regarding a particular subject during
pretrial discovery, subsequently indicates a desire to testify at trial on the same subject?
We consider these questions in turn.
1. The Proper Procedure to Complain About an Improper Assertion of the Fifth
Amendment Privilege in Civil Discovery
Under Maryland Rule 19-727(a), the hearing of a disciplinary or remedial action
generally “is governed by the rules of evidence and procedure applicable to a non-jury trial
in a civil action in a circuit court.” When a party in a civil action believes that a person has
improperly invoked the Fifth Amendment privilege against self-incrimination to avoid
answering a question in a deposition or to provide documents or other information in
12
Notably, the hearing judge did not rely on Sugarman in excluding Mr. Malone’s
testimony at the hearing on the motion in limine.
35
response to a discovery request, the Maryland Rules provide the discovering party with
tools to obtain relief.
With respect to a deposition, Maryland Rule 2-415(i) provides: “When a deponent
refuses to answer a question, the proponent of the question shall complete the examination
to the extent practicable before filing a motion for an order compelling discovery.” After
completing the deposition, the proponent of the question(s) that were not answered may
file a motion under Maryland Rule 2-432(b) for an order compelling the deponent to
answer the questions. Similarly, if a party fails to answer an interrogatory submitted under
Rule 2-421 or fails to comply with a request for production or inspection under Rule 2-422,
the discovering party may seek an order compelling discovery under Rule 2-432(b).13
13
Rule 2-432(b) provides, in pertinent part:
(1) When Available. A discovering party, upon reasonable notice to other
parties and all persons affected, may move for an order compelling discovery
if
….
(B) a deponent fails to answer a question asked in an oral or written
deposition,
…
(D) a party fails to answer an interrogatory submitted under Rule 2-421,
[or]
(E) a party fails to comply with a request for production or inspection
under Rule 2-422[.]
….
(2) Contents of Motion. A motion for an order compelling discovery shall
set forth: the question, interrogatory, or request; and the answer or objection;
and the reasons why discovery should be compelled[.]
36
At a hearing on the discovering party’s motion to compel, the hearing judge should
determine whether the invocation of the Fifth Amendment was proper, on a question-by-
question basis. See, e.g., United States v. Argomaniz, 925 F.2d 1349, 1355 (11th Cir.
1991). If the court concludes that the invocations were justified, the court should deny the
motion to compel discovery. To the extent the court determines that the person who
invoked the privilege cannot possibly incriminate himself or herself by answering
particular questions or interrogatories, or by producing documents in response to
particular discovery requests, the court should grant the motion to compel and order the
person to provide the requested discovery.14
If the court enters an order compelling discovery, and the person subject to the order
fails to comply with that order – either by continuing to invoke the Fifth Amendment
privilege in response to the questions the court ordered the person to answer, or otherwise
withholding the requested discovery – Rule 2-433(c) provides that “the court, upon motion
of a party and reasonable notice to other parties and all persons affected, may enter such
orders in regard to the failure as are just, including one or more of the orders set forth in
section (a) of this Rule.” Rule 2-433(a), in turn, allows the court to “enter such orders in
regard to the failure as are just,” including one or more of the following sanctions: “(1) An
order that the matters sought to be discovered, or any other designated facts shall be taken
14
In some instances, the hearing judge may find it necessary and appropriate to
conduct an ex parte, in camera examination of the person who has invoked the privilege
to determine whether the particular invocation(s) were appropriate, without potentially
disclosing privileged information to others. See, e.g., In re Kefalidis, 714 N.E.2d 243, 249
(Ind. Ct. App. 1999); United States v. Argomaniz, 925 F.2d 1349, 1355 (11th Cir. 1991).
37
to be established for the purpose of the action in accordance with the claim of the party
obtaining the order; (2) An order refusing to allow the failing party to support or oppose
designated claims or defenses, or prohibiting that party from introducing designated
matters in evidence; or (3) An order striking out pleadings or parts thereof, or staying
further proceeding until the discovery is provided, or dismissing the action or any part
thereof, or entering a judgment by default that includes a determination as to liability and
all relief sought by the moving party against the failing party if the court is satisfied that it
has personal jurisdiction over that party.” (Paragraph breaks omitted).
Different provisions apply where a party fails to appear for a deposition after proper
notice, or fails to serve a response to interrogatories under Rule 2-421 or to a request for
production or inspection under Rule 2-422, after proper service. In such a situation,
although the discovering party may proceed with a motion to compel discovery under Rule
2-432(b), it also has another option. That is, under Rule 2-432(a), the discovering party in
one of those instances may move for sanctions under Rule 2-433(a) without first moving
for, and obtaining, an order compelling discovery under Rule 2-432(b).15
15
Rule 2-432(a) provides:
Immediate Sanctions for Certain Failures of Discovery. A discovering
party may move for sanctions under Rule 2-433(a), without first obtaining an
order compelling discovery under section (b) of this Rule, if a party … fails
to appear before the officer who is to take that person’s deposition, after
proper notice, or if a party fails to serve a response to interrogatories under
Rule 2-421 or to a request for production or inspection under Rule 2-422,
after proper service. Any such failure may not be excused on the ground that
the discovery sought is objectionable unless a protective order has been
obtained under Rule 2-403.
38
To summarize these provisions, in a case where a party properly summoned for a
deposition fails to appear for the deposition, or where a party fails to serve any response to
interrogatories or a request for production of documents, the discovering party may
immediately move for sanctions under Rules 2-432(a) and 2-433(a). However, where a
deponent appears for the deposition but fails to answer one or more questions (on the basis
of a privilege or for any other reason), or where a party serves a response to interrogatories
or a request for production of documents but fails to answer one or more interrogatories or
document requests, the discovering party must first file a motion to compel discovery and
obtain an order compelling discovery under Rule 2-432(b) before a court may issue an
order imposing a sanction under Rule 2-433(a). See North River Ins. Co. v. Mayor and City
Council of Baltimore, 343 Md. 34, 78-79 (1996); Union Memorial Hosp. v. Dorsey, 125
Md. App. 275, 288-90 (1999).
In this case, Bar Counsel ended Mr. Malone’s deposition after approximately 10
minutes of questioning, during which Mr. Malone informed Bar Counsel that he would
assert the Fifth Amendment privilege in response to every question he was asked. Although
Bar Counsel stated on the record that she would “hold [the deposition] open so that the
Court has an opportunity to weigh in on what’s clearly a discovery dispute in this case,”
Bar Counsel did not file a motion to compel Mr. Malone to answer the questions that Bar
Counsel believed he had improperly refused to answer. Nor did Bar Counsel move to
compel Mr. Malone to provide responses to the two requests for production of documents
as to which he had asserted the Fifth Amendment privilege. Rather, Bar Counsel filed a
motion in limine seeking to preclude Mr. Malone from testifying at the evidentiary hearing.
39
In that motion, Bar Counsel asserted, among other things, that Mr. Malone’s refusal to
answer questions during his deposition precluded Bar Counsel from conducting additional
discovery concerning mitigation that Mr. Malone intended to present at the evidentiary
hearing.
It is not proper for a deponent to make a blanket assertion of the privilege against
self-incrimination. See Moser v. Heffington, 465 Md. 381, 404 (2019) (explaining that “a
blanket assertion of the privilege is not sufficient, that the privilege cannot be claimed in
advance of the questions, and that it must be asserted by a witness with respect to particular
questions”) (citing In re Morganroth, 718 F.2d 161, 167 (6th Cir. 1983)). Where a deponent
makes such a blanket assertion of the Fifth Amendment, it is incumbent upon the
discovering party to complete the deposition to the extent practicable, in keeping with Rule
2-415(i). This entails at least asking the deponent questions sufficient to identify each topic
or area of inquiry that the discovering party wants to cover at the deposition. Taking this
approach allows the discovering party – if they believe the assertion of the privilege is
improper – to make a record that can effectively be reviewed by a judge considering a
motion to compel discovery. The reviewing court then can determine on a question-by-
question basis whether the deponent properly invoked the Fifth Amendment. See United
States v. Melchor Moreno, 536 F.2d 1042, 1049 (5th Cir. 1976) (“A court must make a
particularized inquiry, deciding, in connection with each specific area that the questioning
party wishes to explore, whether or not the privilege is well-founded.”); see also
Argomaniz, 925 F.2d at 1355; Quinn v. Petto, 84 F.R.D. 104, 105-06 (M.D. Pa. 1979); Guy
v. Abdulla, 58 F.R.D. 1, 2 (N.D. Ohio 1973). For those questions where the assertion of the
40
privilege was improper – i.e., where the reviewing court determines that the deponent could
not potentially incriminate himself or herself with truthful answers – the court can compel
the deponent to return to the deposition table and answer them.
We cannot discern from the record whether Bar Counsel intended to ask Mr. Malone
about certain additional topics, but refrained from doing so after he said that he would
assert the Fifth Amendment in response to every question. However, it is clear that Bar
Counsel should have filed a motion to compel under Rule 2-432(b), rather than what was,
in substance, an immediate motion for sanctions under Rules 2-432(a) and 2-433(a). See
North River Ins. Co., 343 Md. at 78-79; Union Memorial Hosp., 125 Md. App. at 288-91.16
At oral argument, Bar Counsel attempted to justify the failure to file a motion to
compel discovery on Mr. Malone’s blanket assertion of the Fifth Amendment privilege,
which Bar Counsel characterized as a “constructive failure to appear” for the deposition,
thus rendering a potential motion to compel discovery “unproductive.” According to Bar
Counsel, the blanket assertion of the privilege brought this matter within the ambit of Rule
2-432(a), and permitted the imposition of immediate discovery sanctions. We disagree.
First, Bar Counsel did not seek the exclusion of Mr. Malone’s testimony based
solely on his failure to answer questions at his deposition. Rather, Bar Counsel also based
the motion on Mr. Malone’s invocation of the Fifth Amendment in response to two requests
for production of documents. Mr. Malone did not invoke the privilege against
16
Bar Counsel captioned the filing as a motion in limine. However, the nature of a
filing is determined by its substance, rather than its caption. See, e.g., Miller v. Mathias,
428 Md. 419, 442 n.15 (2012). Bar Counsel’s motion, in substance, was a motion for
immediate sanctions under Rules 2-432(a) and 2-433(a).
41
self-incrimination with respect to seven of Bar Counsel’s nine requests for production of
documents. Thus, to the extent Bar Counsel contends that Mr. Malone was totally
uncooperative in the discovery process and that this uncooperativeness justified foregoing
a motion to compel, Bar Counsel proceeds on a flawed premise.
Second, Mr. Malone did not fail to appear for his deposition. When a deponent
asserts the Fifth Amendment privilege in blanket fashion at a deposition, that assertion does
not convert the deponent’s appearance for the deposition into a failure to appear. Rather,
the deponent has appeared for the deposition, but failed to answer any questions based on
a claim of privilege. Under those circumstances, the discovering party’s remedy is no
different than if the deponent answers some questions but invokes the privilege as to other
questions. If the discovering party believes that the invocation of the privilege as to one or
more questions, or even all questions, is improper, the discovering party may move to
compel the deponent to answer the questions. It is not the discovering party’s prerogative
to determine whether it would be productive or unproductive to move to compel before
seeking sanctions in such a situation. Because, in such an instance, the deponent has not
“fail[ed] to appear before the officer who is to take that person’s deposition,” Md. Rule
2-432(a), the discovering party must first move for and obtain an order compelling
discovery – and the deponent must then fail to comply with the order – before the
discovering party may move for sanctions. See Attorney Grievance Comm’n v. McCarthy,
473 Md. 462, 483 (2021) (a discovering party may move for sanctions “in two scenarios –
where there is an order compelling discovery or where there is a complete failure to appear
for a deposition or to respond to interrogatories or a request for production or inspection”).
42
Despite Bar Counsel’s failure to file a motion to compel discovery, we do not sustain
Mr. Malone’s exception based on this error. Mr. Malone did not object to Bar Counsel’s
motion in limine on the ground that Bar Counsel improperly sought an immediate sanction
for his failure to answer questions at his deposition and to provide answers to two requests
for production of documents. Rather, Mr. Malone argued that sanctioning him for his
assertion of the privilege against self-incrimination would violate his rights under the Fifth
Amendment. In addition, Mr. Malone has not argued in his exceptions here that the hearing
judge erred by sanctioning him without first compelling him to provide discovery. In these
circumstances, Mr. Malone has waived or forfeited any complaint about Bar Counsel
seeking and obtaining a discovery sanction without first moving for and obtaining an order
compelling discovery. See McCarthy, 473 Md. at 481 (finding waiver or forfeiture of
argument that Bar Counsel improperly moved for sanctions without first obtaining an order
compelling discovery, where respondent failed to file a response or opposition to the
motion for sanctions at any time before the hearing judge granted the motion for sanctions,
and where respondent did not raise with the hearing judge the necessity of a motion to
compel until he filed a motion for reconsideration on the day of the disciplinary hearing).17
17
We trust that, in future cases where respondents invoke the Fifth Amendment
privilege in discovery, if Bar Counsel believes the invocation was inappropriate, Bar
Counsel will move to compel discovery, rather than seeking immediate sanctions while the
discovery period is ongoing. To be sure, the pretrial schedule in attorney grievance cases
provides a tight timetable for the parties to complete discovery. Thus, we expect that the
discovering parties in attorney grievance cases who find it necessary to file a motion to
compel discovery will often contemporaneously move to shorten the time to respond to the
motion to compel, and that hearing judges will look favorably on such motions to shorten
time. In addition, or alternatively, the discovering party (or the parties jointly) may apply
43
Nevertheless, as we discuss in the next section of this opinion, Bar Counsel’s failure
to move to compel discovery is relevant in assessing whether Bar Counsel would have been
prejudiced, had the hearing judge denied the motion in limine and allowed Mr. Malone to
testify at the evidentiary hearing.
2. A Trial Court’s Consideration of a Request to Testify at Trial After a Prior
Invocation of the Fifth Amendment Privilege Against Self-Incrimination During
Discovery
In moving to preclude Mr. Malone from testifying at the evidentiary hearing, Bar
Counsel relied on the Court of Special Appeals’ 1989 decision in Kramer v. Levitt, 79 Md.
App. at 575. The hearing judge, in turn, relied on Kramer v. Levitt in granting Bar
Counsel’s motion, noting that the Court of Special Appeals in that case reasoned that “it’s
not fair to be able to use … the Fifth Amendment privilege as both a shield and a sword.”
We have not previously analyzed Kramer v. Levitt.
Kramer sued Levitt for allegedly misappropriating funds that belonged to him. In
pretrial discovery, Levitt invoked the Fifth Amendment in response to Kramer’s requests
for admissions, interrogatories, and requests for production of documents. 79 Md. App. at
579. Kramer moved to compel this discovery; the circuit court denied that motion. Id. At
trial, Kramer’s counsel asked for permission to read the requests for admission to the jury
to this Court for an order extending the time to complete the hearing on Bar Counsel’s
charges when necessary to allow the parties to complete discovery after the hearing judge
has ruled on a motion to compel discovery. See Md. Rule 19-727(d) (“Unless extended by
the Court of Appeals, the hearing shall be completed within 120 days after service on the
attorney of the order entered under Rule 19-722” designating a circuit court judge to hear
the action.) (emphasis added). The hearing judge, in turn, may amend the scheduling order
for good cause. See Md. Rule 19-722(a).
44
as having been admitted by Levitt. Id. He argued that, because Levitt neither admitted nor
denied the matters raised in the requests for admission, Maryland Rule 2-424(b) required
that those matters be deemed admitted and conclusively established.18 Id. at 579-80. The
trial court agreed with Kramer, stating:
The assertion of the privilege against self-incrimination is available. And
obviously [the motions court] did not compel [Levitt] to respond after having
asserted that right. That gives [Levitt] the protection afforded by the
Consitutional [sic]. But it does not protect him from the rules of civil
procedure which provide that where an admission is requested and it’s
neither admitted nor denied it shall be taken as admitted. He has received his
constitutional protection, yet by having failed to respond they shall be
deemed as admitted.
Id. at 580. The trial court further ruled that, while he was not precluding Levitt from “from
taking the stand if he wishes to … testify,” he would “not permit him to testify contrary to
the admissions that he’s already made.” Id.
On appeal, the Court of Special Appeals held that the trial court erred by deeming
the requests for admission admitted. Id. at 582. First, the court explained that Rule 2-424(b)
“clearly states that in responding to a request for admissions, a party must specify an
objection, admit or deny the matter. [Levitt] did in fact comply with this directive.
Specifically, [Levitt] objected to the requests for admissions and asserted his Fifth
Amendment privilege as the reason for his objection.” Id. at 584 (emphasis added). Second,
the court reasoned that “the Fifth Amendment protection against compelled self-
18
Rule 2-424(b) provides, in pertinent part: “Each matter of which an admission is
requested shall be deemed admitted unless, within 30 days after service of the request or
within 15 days after the date on which that party’s initial pleading or motion is required,
whichever is later, the party to whom the request is directed serves a response signed by
the party or the party’s attorney.”
45
incrimination would be meaningless and hollow if the objective sought through the asking
of the question could be achieved as well by a refusal to answer as by the answer itself.”
Id. at 584-85 (internal quotation marks and citation omitted). For these reasons, the court
held, Levitt’s objection and refusal to respond to the requests based on the Fifth
Amendment “could not be considered evidence of the truth of the matters stated therein.”
Id. at 585.
However, the intermediate appellate court agreed with the trial court’s “ruling that
[Levitt] should be precluded from testifying at trial as to the matters raised in [Kramer’s]
request for admissions.” Id. at 587. The court observed that “if a party is free to shield
himself with the privilege during discovery, while having the full benefit of his testimony
at trial, the whole process of discovery could be seriously hampered.” Id. (quoting 8
Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure: Civil § 2018
(1970, 1988 Supp.)). The Court of Special Appeals thus opined “that when a defendant in
a civil action pleads his privilege against self-incrimination in response to discovery
requests, he is prohibited from testifying at trial on matters pertaining to these requests.”
Id. at 588. However, the court continued, “he is not precluded … from producing
independent witnesses to prove any defenses raised if he complies with the appropriate
discovery rules.” Id.
Notably, after invoking his Fifth Amendment privilege in response to discovery
requests, Kramer did not subsequently indicate his intent to waive the privilege prior to the
conclusion of discovery. A decade after deciding Kramer v. Levitt, the Court of Special
Appeals faced that situation in Faith v. Keefer, 127 Md. App. 706 (1999).
46
Keefer was the driver in a car accident in which his passenger, Rebecca Faith, was
killed. Ms. Faith’s husband and ex-husband brought a wrongful death and survival action
against Keefer in the Circuit Court for Washington County. See Faith, 127 Md. at 713.
Under the court’s scheduling order, the parties were to complete discovery by May 15,
1998. Id. at 716. Plaintiffs’ counsel served written discovery requests on Keefer’s counsel
on July 21, 1997. Id. Although Keefer did not serve any responses to those discovery
requests for almost 10 months, plaintiffs did not file a motion to compel discovery or for
sanctions under Rule 2-432. Id. at 718.
Plaintiffs’ counsel took Keefer’s deposition on February 16, 1998. Id. at 716. At the
start of the deposition, Keefer’s counsel noted that he had previously informed plaintiffs’
counsel that Keefer intended to invoke his Fifth Amendment privilege in response to all
questions concerning the accident, due to pending criminal charges against Keefer. Id.
Keefer’s counsel further stated that, upon the conclusion of the criminal matter, Keefer
would be available to answer any questions concerning the collision:
I was advised by Mr. Beasley [the attorney representing Keefer in his
criminal case] that the criminal trial is scheduled for April of this year, and
prior to the criminal trial going forward he was not going to permit Mr.
Keefer to answer any questions which might violate his Fifth Amendment
right of self[-]incrimination because of the pending criminal trial.
Last week I spoke to [plaintiffs’ counsel] and advised him that today’s
deposition might be very short and fruitless because of Mr. Beasley’s
concerns, and asked if we could postpone it. [Plaintiffs’ counsel] ... said that
he would prefer to move forward.
I note that the scheduling order in this matter indicates that discovery cutoff
is not until mid-May. Mr. Beasley has advised me that after Mr. Keefer’s
criminal trial in April [1998] he will permit Mr. Keefer to answer any
47
questions that [plaintiffs] may have with regard to the accident of January
17, 1997.
I explained this to [plaintiffs’ counsel], and it was his indication that he
preferred to go forward with today’s deposition....
Id. at 716-17. As his attorney had previewed, Keefer answered only a few questions at the
deposition and invoked his Fifth Amendment privilege in response to all questions about
the accident. Id. at 717.
In April 1998, Keefer pled guilty to homicide by motor vehicle while intoxicated in
relation to the accident in which Ms. Faith was killed. Id. In correspondence dated May
19, 1998, Keefer’s attorney informed plaintiffs’ counsel that Keefer was now available
for deposition:
Prior to the start of Mr. Keefer’s deposition, I advised you that [Keefer’s
criminal attorney would not permit him to answer certain questions] ... based
on the [p]endency of his criminal trial which was scheduled for April of this
year. As you know, Mr. Keefer pled guilty in that matter and was sentenced.
Pursuant to the agreement placed on the record, Mr. Keefer is now available
to answer any questions by way of deposition and I expect to have his
signature on the enclosed Answers to Interrogatories in the next several days.
Id. at 717-18. Plaintiffs chose not to re-depose Keefer. Id. at 718. In his answers to
plaintiffs’ interrogatories, Keefer provided details concerning the evening of the collision,
including that Ms. Faith had purchased alcohol that the two consumed in the hours prior
to the accident, and that after leaving a bar together at 1:00 a.m., Ms. Faith had insisted
that Keefer drive them back to the rooming house where they both were living, despite
knowing that Keefer was intoxicated. The accident occurred as they were driving to the
rooming house. Id. at 718-19.
48
On June 5, 1998, Keefer filed a motion for summary judgment based on Ms. Faith’s
assumption of risk, to which he attached his answers to plaintiffs’ interrogatories. Id. at
719. On June 23, 1998, plaintiffs filed a motion in limine to preclude Keefer from
testifying at trial about the collision. Plaintiffs explained that Keefer had invoked his Fifth
Amendment right against self-incrimination when questioned about the collision at his
deposition in February of 1998, and contended that, as a result, Keefer was precluded from
testifying about the accident at trial. See id. at 720.
The trial court denied plaintiffs’ motion in limine:
While at the time of the deposition, criminal charges were pending, the court
took the plea in the criminal charges in this case in April of this year, …
discovery apparently ended in mid-May, so there was time to take another
deposition…. [Plaintiffs], however, elected not to take advantage of that
opportunity because [they] felt, … under the law, that ... once he’s invoked
his Fifth Amendment rights he cannot come forth and testify later…. This is
moot anyway because even though it’s after [the] discovery … deadline,
[Keefer] did file answers to interrogatories which were attached to the motion
for summary judgment. And, of course, in those answers, it discussed the
incident and events leading up to it, including the intoxication and the
deceased’s actions in allegedly getting [Keefer] to operate the motor vehicle
when the unfortunate accident occurred. Even though the answers to the
interrogatories were filed after the discovery deadline, you know, absent any
showing of prejudice to [plaintiffs] because of lateness, I feel [Keefer] could
testify about the [content] of the interrogatories.
Id. at 720-21. The trial court granted summary judgment to Keefer, and plaintiffs appealed.
On appeal, plaintiffs argued that the trial court erred by denying their motion in
limine to preclude Keefer from testifying at trial. Relying on Kramer v. Levitt, plaintiffs
contended “that once Keefer invoked his Fifth Amendment privilege at the deposition, he
was forever precluded from testifying” about the events that took place on the evening of
the accident. Id. at 722. Thus, according to plaintiffs, it was error to grant summary
49
judgment based on Keefer’s answers to the interrogatories: “Keefer used his Fifth
Amendment privilege as a shield to hinder [plaintiffs’] preparation for trial and then as a
sword to obtain judgment in his favor.” Id. at 723. Plaintiffs also argued that Keefer’s
answers should have been excluded because they were not filed within the time provided
by the discovery deadline or within the time provided by Maryland Rule 2-421. Id. at 722.
The Court of Special Appeals rejected both of plaintiffs’ arguments. First, although
the court reiterated that “if a party is free to shield himself with the privilege during
discovery, while having the full benefit of his testimony at trial, the whole process of
discovery could be seriously hampered,” id. at 724 (quoting Kramer, 79 Md. App. at 587),
the court explained that
Kramer did not countenance, as [plaintiffs] urge, that whenever a party
invokes his Fifth Amendment privilege, he or she is forever precluded from
giving testimony in any form about the previously undisclosed matter. The
concern in Kramer was about someone who had invoked the privilege,
thereby thwarting discovery of relevant facts, and who then sought to rely on
those undisclosed facts at trial. Those concerns are not present here. Unlike
the defendant in Kramer, [Keefer] did not assert his privilege in order to
conceal facts until trial. Instead, he sought a relatively brief delay in
discovery, until resolution of his pending criminal charges. Keefer advised
[plaintiffs] of his intent to assert the privilege for a limited period of time,
and offered to resume his deposition when the criminal charges were
resolved. Once the criminal charges were resolved, which was in advance of
trial, [Keefer] furnished the Answers. Significantly, [plaintiffs] do not
complain that, during the period when [Keefer] relied on his Fifth
Amendment privilege, important evidence or discovery opportunities were
forever lost.
Id. at 724-25 (emphasis in original). The Court of Special Appeals noted that, in analyzing
similar situations, courts in other jurisdiction had considered whether the litigant’s prior
invocation of the privilege was “strategic,” id. at 725 (quoting FTC v. Sharp, 782 F. Supp.
501445, 1452 (D. Nev. 1991)), and whether the opposing party was prejudiced by the prior
invocation of the privilege, id. at 725-26 (citing Sharp, 782 F. Supp. at 1452, and FTC v.
Kitco of Nevada, Inc., 612 F. Supp. 1282, 1290 (D. Minn. 1985)). In the case before it, the
intermediate appellate court concluded that Keefer’s invocation of the privilege had not
“seriously hampered” discovery, id. at 727-28 (quoting Kramer, 79 Md. App. at 587), as
Keefer had offered to resume his deposition after his criminal case was resolved and
because any resulting “delay would have been brief, as the criminal trial was set for April
1998.” Id. at 726-28. For these reasons, the Court of Special Appeals held that Keefer’s
“invocation at his deposition of his Fifth Amendment right did not strip the court of its
discretion to consider the content of his Answers in connection with the summary judgment
motion.” Id. at 725.
Second, the Court of Special Appeals held that the trial court had not abused its
discretion by considering Keefer’s late answers to interrogatories. See id. at 728. In this
regard, the court found significant that plaintiffs had never moved for sanctions or to
compel discovery under Rule 2-432(a) or (b). Id. at 730. The court also relied on the trial
court’s finding that plaintiffs were not prejudiced by Keefer’s delay in providing his
answers. Id. at 731-32.
Other courts, similar to the Court of Special Appeals in Faith v. Keefer, have held
that the invocation of the Fifth Amendment privilege against self-incrimination during
discovery does not necessarily preclude a civil litigant from subsequently waiving the
privilege and responding to discovery requests or testifying at trial. See, e.g., Sharp, 782 F.
Supp. at 1452-53 (permitting defendant to testify at trial, where his invocation of the
51
privilege at his deposition was not “strategic,” and where the FTC had not “been unfairly
prejudiced” by the inability to obtain discovery from the defendant); Kitco, 612 F. Supp.
at 1290-91 (permitting defendant to testify because the FTC “was not solely dependent
upon the testimony of [the defendant] for pertinent information”); SEC v. Graystone Nash,
Inc., 25 F.3d 187, 192 (3d Cir. 1994) (“Because the privilege is constitutionally based, the
detriment to the party asserting it should be no more than is necessary to prevent unfair and
unnecessary prejudice to the other side.”).
We agree with the Court of Special Appeals in Faith v. Keefer and the courts in
other jurisdictions which have viewed this situation as requiring the trial court to balance
competing interests. As the United States Court of Appeals for the Second Circuit has
explained:
[B]ecause all parties – those who invoke the Fifth Amendment and those who
oppose them – should be afforded every reasonable opportunity to litigate a
civil case fully and because exercise of Fifth Amendment rights should not
be made unnecessarily costly, courts, upon an appropriate motion, should
seek out those ways that further the goal of permitting as much testimony as
possible to be presented in the civil litigation, despite the assertion of the
privilege. Thus, if there is a timely request made to the court, the court should
explore all possible measures in order to select that means which strikes a
fair balance and accommodates both parties. In doing this, it should give due
consideration to the nature of the proceeding, how and when the privilege
was invoked, and the potential for harm or prejudice to opposing parties.
United States v. Certain Real Property and Premises Known as 4003-4005 5th Ave.,
Brooklyn, NY, 55 F.3d 78, 83-84 (2d Cir. 1995) (cleaned up). Thus, in those instances
where a litigant in a civil proceeding who has invoked the Fifth Amendment in pretrial
discovery subsequently asks to withdraw the invocation and testify at trial, the trial court
“should, in general, take a liberal view towards such applications, for withdrawal of the
52
privilege allows adjudication based on consideration of all the material facts to occur.” Id.
at 84; see also In re 650 Fifth Avenue and Related Properties, 934 F.3d 147, 169-70 (2d
Cir. 2019) (same). The court “should be especially inclined to permit withdrawal of the
privilege if there are no grounds for believing that opposing parties suffered undue
prejudice from a litigant’s later-regretted decision to invoke the Fifth Amendment.”
4003-4005 5th Ave., 55 F.3d at 84.
When considering whether opposing parties would be prejudiced by the withdrawal
of the privilege, a trial court should “pay particular attention to how and when the privilege
was originally invoked. Since an assertion of the Fifth Amendment is an effective way to
hinder discovery and provides a convenient method for obstructing a proceeding, trial
courts must be especially alert to the danger that the litigant might have invoked the
privilege primarily to abuse, manipulate or gain an unfair strategic advantage over
opposing parties.” Id.; see also Graystone Nash, 25 F.3d at 190 (discussing “the potential
for exploitation” through abusive assertions of the Fifth Amendment in civil actions). In
such cases, “particularly if the litigant’s request to waive comes only at the ‘eleventh hour’
and appears to be part of a manipulative, ‘cat-and-mouse approach’ to the litigation, a trial
court may be fully entitled, for example, to bar a litigant from testifying later about matters
previously hidden from discovery through an invocation of the privilege.” 4003-4005 5th
Ave., 55 F.3d at 84-85; see also In re Edmond, 934 F.2d 1304, 1308 (4th Cir. 1991) (“By
selectively asserting his Fifth Amendment privilege, Edmond attempted to insure that his
unquestioned, unverified affidavit would be the only version. But the Fifth Amendment
53
privilege cannot be invoked as a shield to oppose depositions while discarding it for the
limited purpose of making statements to support a summary judgment motion.”).19
We agree with the Second Circuit that, “[i]n the end, exactly how a trial court should
respond to a request to withdraw the privilege – or indeed, more generally, how it should
react to any motion precipitated by a litigant’s assertion of the Fifth Amendment in a civil
proceeding – necessarily depends on the precise facts and circumstances of each case.”
4003-4005 5th Ave., 55 F.3d at 85. It is “not the province of appellate courts to try to set
down a hard and fast rule when, typically, the trial court is in a better position to know
what means will accomplish the end of accommodating all interests.” Id. (cleaned up); see
also Graystone Nash, 25 F.3d at 192-94 (emphasizing “the circumstances of the particular
litigation,” and, therefore, that an “appropriate remedy is within the discretion of the trial
court”); Robert Heidt, The Conjurer’s Circle-The Fifth Amendment Privilege in Civil
Cases, 91 Yale L.J. 1062, 1131-32 (1982) (“When previously invoking defendants …
indicate before trial their willingness to waive and respond to discovery, the decision
19
When a trial court provides relief to a party that would be unfairly prejudiced by
allowing testimony at trial on a matter as to which the opposing party invoked the Fifth
Amendment in discovery, the trial court is not punishing the opposing party for having
asserted the privilege. Rather, the trial court is ensuring that the party that was unable to
obtain pretrial discovery on a particular matter is not unfairly prejudiced. If, after discovery
has concluded, a party learns that a prior invoker of the Fifth Amendment intends to waive
the privilege and testify at trial, the party may file a motion in limine and request a ruling
that protects it from unfair prejudice that would result from the anticipated eleventh-hour
waiver. The requested relief may include the preclusion of testimony by the witness
regarding the topics as to which the witness invoked the privilege during discovery.
However, as discussed below, if the moving party – like Bar Counsel here – declined to
move to compel discovery before the discovery period ended and contends in the motion
in limine that the assertion of the privilege was improper, a trial court should take the failure
to move to compel into account when balancing the parties’ competing interests.
54
whether to allow them to testify at trial should turn on the degree of prejudice caused the
plaintiff by their earlier invokings. The court should consider the length of time between
the invokings and the invokers’ change of heart, and between their change of heart and
trial; the extent to which the invokings enabled them to learn about the plaintiff’s evidence
before responding; and the extra costs incurred by the plaintiff.”).
Applying these principles to the case before us, we conclude that the hearing judge
acted within his discretion to the extent he precluded Mr. Malone from testifying at the
hearing concerning his alleged violations of the MLRPC. Thus, we decline Mr. Malone’s
request that we order a remand to the hearing judge for a new evidentiary hearing to
determine the validity of Bar Counsel’s charges of professional misconduct. Key to our
determination on this point is Mr. Malone’s representation at the hearing on the motion in
limine that he “probably [would not] be testifying in any type of case in chief that [he]
would be making.” In combination with (1) Mr. Malone’s prior repeated statements to the
court that there were no material factual disputes between the parties and (2) the hearing
judge’s finding that Mr. Malone invoked the privilege in bad faith,20 Mr. Malone’s
20
Three of the questions Bar Counsel asked at Mr. Malone’s deposition bore
directly on the alleged MLRPC violations:
• “[A]re you disputing that you received a reprimand from Virginia?”
• “[A]re you disputing that you received a private reprimand from the
United States District Court for the District of Maryland in 2012?”
• “[A]re you disputing that you knowingly and intentionally made
misrepresentations on your Texas Bar application for admission to the
Texas Bar?”
55
representation that he “probably” would not offer testimony in his “case in chief” – i.e.,
that he would not be providing testimony aimed at defending himself against Bar Counsel’s
charges of professional misconduct – provided a sufficient basis for the hearing judge to
preclude Mr. Malone from so testifying. The hearing judge reasonably could conclude that
Mr. Malone’s representation “that he probably won’t be testifying … minimize[d] the
impact of any prejudice on him that there may be” from an order precluding him from
testifying concerning the alleged Rules violations.21
Given that, in his answer to the Petition, Mr. Malone already had substantively
addressed each of these points, it is clear that Mr. Malone asserted the Fifth Amendment
at his deposition in bad faith as to these questions.
21
In his answer to the Petition, Mr. Malone disputed the allegations that he
knowingly and intentionally failed to disclose his admission to, and his private reprimand
from, the United States District Court for the District of Maryland, to the Texas Board. As
discussed above, although Mr. Malone was precluded from testifying at the evidentiary
hearing, during his closing argument at the hearing he essentially testified about his failure
to disclose his admission to, and private reprimand from, the Maryland federal court. He
claimed that these omissions (unlike the omission of his Virginia licensure and disciplinary
history) were inadvertent. However, in his proposed findings of fact and conclusions of
law, Mr. Malone did not ask the hearing judge to find that he knowingly omitted only his
Virginia licensure and disciplinary history from his Texas Bar applications, and that his
failure to disclose his admission to, and his disciplinary history in, the United States District
Court for the District of Maryland, was inadvertent.
After allowing Mr. Malone effectively to testify (without cross-examination by Bar
Counsel) about his failure to disclose his admission to the Maryland federal district court
and the private reprimand, the hearing judge concluded that Mr. Malone knowingly and
intentionally failed to disclose those matters. Mr. Malone has not specifically excepted to
the hearing judge’s factual findings on these points. Nor has he excepted to the hearing
judge’s conclusion that he violated Rules 8.1(a) and 8.1(b) to the extent the hearing judge
based those conclusions on his failure to disclose his admission to, and his private
reprimand from, the federal court in Maryland.
56
However, after careful review of the transcript of the hearing on the motion in
limine, we conclude that the hearing judge should not have precluded Mr. Malone from
testifying concerning mitigating factors. To be sure, Mr. Malone was less than clear at the
hearing concerning his wish to testify about mitigating factors. He did not use the word
“mitigation” or the phrase “mitigating factors” in his colloquy with the hearing judge.
Rather, after explaining that he probably would not be testifying in his “case in chief,” Mr.
Malone stated: “I would like for the Court to allow me in case I am found to be, I’ll use the
word for lack of a better word, guilty, to at least address the Court in, what I’ll call for lack
of a better word, sentence.”
This request arguably could be interpreted as indicating a desire to address this
Court concerning the appropriate sanction if the hearing judge were to conclude that Mr.
Malone had committed one or more of the alleged MLRPC violations. However, the
hearing judge had no role in determining whether Mr. Malone would be permitted to
address this Court concerning an appropriate sanction. Thus, we believe the more logical
interpretation of Mr. Malone’s request is that he was asking the hearing judge for
permission to testify concerning factors that he believed should mitigate the severity of the
sanction that otherwise would be imposed if he were found to have violated the MLRPC.
That was a request that the hearing judge had the authority to consider and rule on. And,
In light of these circumstances, we see no need to order as part of the remand in this
case that Mr. Malone be permitted to testify as to his reasons for not disclosing his
admission to the United States District Court for the District of Maryland and/or the private
reprimand he received from that Court.
57
of course, the hearing judge was empowered to make findings of fact and issue conclusions
of law concerning mitigating factors.
Understanding Mr. Malone’s comments at the hearing on the motion in limine as
expressing a desire to withdraw his invocation of the Fifth Amendment as to the topic of
mitigation, we cannot affirm the hearing judge’s exclusion of testimony concerning
mitigation on the ground that Mr. Malone disclaimed an intention to provide such
testimony. Thus, we shall consider the hearing judge’s other grounds for excluding Mr.
Malone’s testimony, as applied to mitigation: (1) Mr. Malone invoked the privilege in bad
faith; (2) Mr. Malone’s invocation of the privilege prevented Bar Counsel from obtaining
pretrial discovery concerning mitigation, thereby unfairly prejudicing Bar Counsel; and
(3) the evidentiary hearing could not be postponed without running afoul of this Court’s
order setting a deadline for completion of the hearing.
We cannot conclude that Mr. Malone improperly invoked the Fifth Amendment
privilege in response to Bar Counsel’s one, very broad question concerning mitigation:
“What, if any, factors are you contending should be considered in mitigation of any
potential sanction imposed in this matter?” Because Bar Counsel did not file a motion to
compel Mr. Malone to answer that question, the hearing judge did not analyze or make a
finding as to whether a truthful answer to that question might tend to incriminate Mr.
Malone. We are not able to make such a finding.22
22
We can imagine a scenario in which a respondent would anticipate arguing that a
drug or alcohol problem should be considered in mitigation of a potential sanction, but due
to a pending criminal investigation, the attorney might be concerned about acknowledging
58
Nor can we say that Mr. Malone’s invocation of the privilege in response to the
question about mitigation was “part of a manipulative, ‘cat-and-mouse approach’ to the
litigation.” 4003-4005 5th Ave., 55 F.3d at 84-85. The hearing judge made no finding along
those lines, and the record does not suggest that Mr. Malone refused to answer the question
about mitigating factors to gain a tactical advantage against Bar Counsel. To be sure, Mr.
Malone misguidedly engaged in a battle of wills with Bar Counsel, starting with the email
exchange about whether the deposition would go forward, continuing with Mr. Malone’s
motion for a protective order, and culminating in his blanket assertion of the privilege at
the deposition. However, our review of the record does not leave us with the impression
that the reason Mr. Malone refused to answer the question about mitigation at his
deposition was so he could surprise Bar Counsel with that information for the first time at
the evidentiary hearing, thereby making it difficult for Bar Counsel to rebut his showing as
to mitigation.
With respect to prejudice, at the hearing on the motion in limine, Bar Counsel argued
that Mr. Malone’s “failure to answer any questions at his deposition has prejudiced
Petitioner’s ability to prepare for trial in this matter, to prepare for cross-examination, in
such a problem at the time of a deposition. We do not suggest that this scenario applied to
Mr. Malone. We only observe that, given the many mitigating factors that a respondent
theoretically could seek to establish at an evidentiary hearing, it is impossible to conclude
on the record before the hearing judge that Mr. Malone’s assertion of the privilege as to
Bar Counsel’s question concerning mitigation was improper.
Had Bar Counsel asked Mr. Malone specific questions about particular mitigating
factors, perhaps the hearing judge and we would have been able to conclude, at least with
respect to some of those factors, that Mr. Malone could not legitimately invoke the Fifth
Amendment. However, Bar Counsel did not proceed in that manner.
59
particular to … to explor[e] what mitigation he intends to put on so that Petitioner could
have taken additional discovery on those matters.” We agree that Bar Counsel could be
prejudiced by having to cross-examine Mr. Malone at the evidentiary hearing on the topic
of mitigating circumstances – and potentially put on rebuttal evidence in response to Mr.
Malone’s testimony – without having had the benefit of deposing him concerning his
claimed mitigation during the discovery period. However, had Bar Counsel promptly
moved to compel Mr. Malone to answer the question about mitigating factors, the hearing
judge could have held a hearing on that motion before the discovery period ended. At such
a hearing, the hearing judge would have explored whether Mr. Malone could legitimately
assert the Fifth Amendment privilege in response to Bar Counsel’s question about
mitigation. Because Bar Counsel chose not to file a motion to compel discovery, we do not
know how the hearing judge would have resolved the discovery dispute. Bar Counsel
properly bears the brunt of that uncertainty. Having chosen not to move to compel Mr.
Malone to answer the question about mitigating factors – despite believing that the
assertion of the privilege was improper – Bar Counsel’s claim at the hearing on the motion
in limine that Bar Counsel was prejudiced in preparing for Mr. Malone’s hearing testimony
on mitigation lacked merit. See Faith, 127 Md. App. at 730 (holding that the trial court did
not abuse its discretion by considering Keefer’s answers to interrogatories where plaintiffs
had not moved for relief under Rule 2-432(a) or (b)).
The hearing judge also based his ruling on Bar Counsel’s motion in limine on his
determination that “[t]rial is next week and it’s not going to be postponed, because the rule
requires that the trial be held within so many days of receiving the assignment, and I think
60
we might have a few extra days left in the order, but not enough to postpone the case or
allow for a second opportunity at deposition.” Had Bar Counsel moved to compel
discovery immediately after Mr. Malone’s deposition and also filed a motion to shorten
time for Mr. Malone to respond, conceivably the hearing judge could have held a hearing
on such a motion to compel prior to April 14, 2021, the date that discovery was to be
concluded. If necessary, the parties could have moved this Court for a brief extension of
time for the evidentiary hearing to be completed in order to allow Mr. Malone to resume
his deposition and provide Bar Counsel with additional responsive documents (either
because the hearing judge concluded that the assertion of the privilege was improper or
because Mr. Malone opted to waive the privilege and provide discovery as a condition to
testifying at the evidentiary hearing). Thus, in the circumstances of this case, we do not
find the imminence of the evidentiary hearing to be a factor supporting the preclusion of
Mr. Malone’s testimony.
In sum, we adopt the reasoning of Faith v. Keefer and the federal appellate courts
cited above and hold that a civil litigant who invokes the Fifth Amendment privilege
against self-incrimination in discovery is not forever precluded from waiving the privilege
and testifying at trial or submitting substantive responses to discovery requests. A trial
court should respond to a request to withdraw the privilege – if contested by a party – by
considering the totality of the circumstances surrounding the prior invocation and the
prejudice that the objecting party will suffer if the request is granted.
Here, the balance of interests favored allowing Mr. Malone to testify concerning
mitigating factors at the evidentiary hearing. We therefore sustain Mr. Malone’s exceptions
61
to the extent he complains about the hearing judge’s order precluding him from testifying
as to mitigation. As discussed below, our sustaining of this exception requires a limited
remand of this case to the hearing judge to allow Mr. Malone to testify concerning any
mitigating factors that he believes are present in this case.
B. Mr. Malone’s Violations of the MLRPC23
Based on his findings of fact, the hearing judge concluded by clear and convincing
evidence that Mr. Malone violated Rules 8.1(a) and (b) and 8.4(a), (b), (c), and (d). Mr.
Malone has not specifically excepted to any of the hearing judge’s conclusions of law
regarding Mr. Malone’s alleged violations of the MLRPC. We agree with the hearing
judge’s determinations.24
23
In Attorney Grievance Comm’n v. Tatung, 476 Md. 45 (2021), this Court
examined MARPC 19-308.5(b) (formerly MLRPC 8.5(b)), which states, in pertinent part:
“In any exercise of the disciplinary authority of this State, the rule of professional conduct
to be applied shall be … the rules of the jurisdiction in which the attorney’s conduct
occurred[.]” At no time in these proceedings has Mr. Malone raised an objection to the
charges being brought under Maryland’s rules of professional conduct, as opposed to
Texas’s rules. Thus, Mr. Malone has waived any potential claim for relief based on Rule
8.5(b) and Tatung. See Tatung, 476 Md. at 90 (stating that, where a Rule 8.5(b) issue “is
not properly raised, it will be deemed to be waived”).
24
Mr. Malone has excepted to two of the hearing judge’s factual findings. First, Mr.
Malone takes issue with the hearing judge’s finding that Mr. Malone decided in 2013 to
convert his Texas application to general admission by examination because he believed
that his tax returns were “none of the Board’s business.” Mr. Malone states that he “in fact
told the Texas Board that he decided to take the Texas law exam in order to learn Texas
law” and that the hearing judge “took a 2017 statement by Respondent that his tax returns
were ‘none of the board’s business’ out of context.” Second, Mr. Malone contends that the
hearing judge erred in finding that Mr. Malone told the Texas Board that he did not
“remember” being admitted to the United States District Court for the District of Maryland,
62
MLRPC Rule 8.1 – Bar Admissions and Disciplinary Matters25
We agree with the hearing judge’s conclusion that Mr. Malone violated Rule 8.1(a)
when he answered “no” to Questions 13 and 17(c) on his Texas Bar application. The
hearing judge concluded that, in so doing, Mr. Malone knowingly and intentionally
misrepresented his disciplinary history by failing to disclose that he had been held in
contempt by the bankruptcy court, sanctioned by the United States District Court for the
District of Maryland, and reprimanded and administratively suspended in Virginia. The
hearing judge also concluded that Mr. Malone violated Rule 8.1(a) by intentionally failing
to disclose his admissions to the Virginia Bar and various United States District Courts to
conceal his disciplinary history from the Texas Board. In addition, the hearing judge
concluded, Mr. Malone’s affidavit swearing that he “responded to all inquiries on [the
application] fully and frankly, and [that] all the information contained in [the] application
is true and correct,” was also knowingly and intentionally false. The hearing judge further
when in fact, he testified before the Board that it was the federal district court’s private
reprimand that he did not remember.
We shall assume for present purposes that Mr. Malone’s exceptions to these two
factual findings are well taken. However, sustaining these exceptions does not materially
affect the analysis whether Mr. Malone violated the MLRPC, as alleged by Bar Counsel.
25
As noted above, in his proposed findings of fact and conclusions of law that he
submitted to the hearing judge, Mr. Malone argued that, to the extent MLRPC 8.1 covers
conduct relating to bar admission, it only applies to efforts to obtain admission to the
Maryland Bar. Therefore, Mr. Malone argued, he could not have violated Rule 8.1 by
providing false information to the Texas Board or by failing to correct a misapprehension
that he had created in the Texas Board through his inaccurate applications for admission.
Mr. Malone has not included this argument in the exceptions he filed in this Court. Thus,
he has waived this argument, and we will not consider it.
63
found that, during the Board’s subsequent investigation of Mr. Malone, he continued to
make misrepresentations, falsely stating that his disclosure failures were the result of not
reading the bar applications questions carefully enough. Based on the record before the
hearing judge, we determine that the hearing judge’s conclusions regarding Rule 8.1(a) are
supported by clear and convincing evidence.
The hearing judge concluded that Mr. Malone violated Rule 8.1(b) when he
knowingly and intentionally failed to supplement his June 2013 bar application and
subsequent re-applications with his admissions and disciplinary history, thereby failing to
correct the misapprehension that he had fully disclosed his disciplinary history in all
licensed jurisdictions. The hearing judge further found that Mr. Malone failed to provide
the Board with a list of all federal jurisdictions in which he was licensed until September
2016, when the Board explicitly asked for such information during his character and fitness
investigation of his reapplication after his Texas license was canceled. We agree with the
hearing judge that this conduct violated Rule 8.1(b).
MLRPC Rule 8.4 – Misconduct
The hearing judge correctly concluded that Mr. Malone violated Rule 8.4(a) by
violating other Rules of Professional Conduct.
We also agree with the hearing judge’s conclusion that Mr. Malone violated Rule
8.4(b) when he knowingly and intentionally provided false responses on his sworn Texas
bar applications and when he declared under oath in his affidavit that the information he
provided was true and correct, thereby committing perjury under Texas law. By definition,
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this conduct also constituted a violation of Rule 8.4(c), which prohibits attorneys from
engaging in intentional acts of dishonesty.26
We also agree with the hearing judge’s conclusion that Mr. Malone violated Rule
8.4(d). His pattern of dishonest and deceitful conduct in his efforts to be admitted to the
Bar in Texas reflects negatively on the public’s perception of the legal profession.
C. A Limited Remand Is Necessary.
Under Maryland Rule 19-740(c)(1)(G), we direct a remand to the hearing judge for
further proceedings. Specifically, we direct that the hearing judge shall reopen the
evidentiary hearing for the sole purposes of: (1) allowing Mr. Malone to testify fully
concerning mitigating factors; (2) allowing Bar Counsel to call witnesses and introduce
exhibits in rebuttal of Mr. Malone’s testimony with respect to mitigation; (3) allowing the
parties to make arguments to the hearing judge 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.
The reopened evidentiary hearing shall be completed no later than 60 days following
the issuance of the mandate from this Court. Mr. Malone shall notify the hearing judge
26
We do not rely on the hearing judge’s finding that Mr. Malone testified falsely at
the July 2017 hearing before the Texas Board in concluding that Mr. Malone violated the
MLRPC, as charged by Bar Counsel. That false testimony occurred after the recodification
of the rules of professional conduct. Bar Counsel has not charged any violations of the
MARPC.
65
and Bar Counsel no later than 14 days following the issuance of the mandate whether he
wishes to testify regarding mitigating factors.27
Following the conclusion of the reopened evidentiary hearing, at the hearing judge’s
discretion, the hearing judge may direct Bar Counsel and Mr. Malone to submit
supplemental proposed findings of fact and conclusions of law regarding mitigating
factors and, to the extent the parties believe appropriate, aggravating factors. No later than
45 days following the conclusion of the evidentiary hearing, the hearing judge shall issue
a supplemental opinion making findings of fact and proposing conclusions of law
concerning mitigating factors. As part of his supplemental opinion, to the extent the
hearing judge believes necessary, the hearing judge also may revise his prior findings of
fact and conclusions of law concerning aggravating factors.28 The parties shall file any
exceptions to the hearing judge’s supplemental opinion in this Court no later than 45 days
after the issuance of that opinion. Following the filing of exceptions, the Clerk of this
Court shall schedule oral argument. We shall defer ruling on aggravating factors and
mitigating factors and determining the appropriate sanction for Mr. Malone’s violations
of the MLRPC until we have heard the parties’ oral arguments.
27
If Mr. Malone files a line in the circuit court stating that he does not wish to
provide additional testimony regarding mitigating factors, the hearing judge shall enter an
Order reinstating his prior findings of fact and conclusions of law as to aggravating and
mitigating factors.
28
We express no opinion concerning the hearing judge’s prior opinion finding the
existence of several aggravating factors and not finding the presence of any mitigating
factors.
66
V
Conclusion
For the reasons discussed above, we conclude that Mr. Malone violated MLRPC
8.1(a) and (b) (bar admission and disciplinary matters) and 8.4(a), (b), (c), and (d)
(misconduct). Because Mr. Malone should have been permitted to testify fully at the
evidentiary hearing concerning mitigation – notwithstanding his earlier invocation of the
Fifth Amendment in response to Bar Counsel’s deposition question about mitigation – we
order a limited remand to the circuit court to allow Mr. Malone to provide such testimony.
Following such testimony, the hearing judge shall issue supplemental findings of fact and
conclusions of law concerning mitigating factors and, if necessary, aggravating factors.
IT IS SO ORDERED.
67