Attorney Grievance v. Taniform

Attorney Grievance Commission of Maryland v. Terence Taniform, Misc. Docket AG No.
40, September Term, 2021. Opinion by Gould, J.
ATTORNEY DISCIPLINE – SANCTIONS – INDEFINITE SUSPENSION
The Supreme Court of Maryland sanctioned an attorney with an indefinite suspension with
the right to reapply for reinstatement after 18 months for providing incompetent
representation, failing to file necessary papers, which nearly caused a client to get deported,
failing to communicate adequately with his clients, failing to promptly refund money, and
making intentional misrepresentations to clients, clients’ families, counsel, and Bar
Counsel. Such conduct violated Maryland Attorneys’ Rules of Professional Conduct 1.1
(Competence), 1.3 (Diligence), 1.4(a) and (b) (Communication), 1.15 (Safekeeping of
Property), 1.16(d) (Declining or Terminating Representation), 4.1 (Truthfulness in
Statements to Others), 8.1(a) and (b) (Bar Admission and Disciplinary Matters), and 8.4(a),
(c), and (d) (Misconduct), and Maryland Rule 19-407 (Attorney Trust Account Record-
Keeping).
Circuit Court for Montgomery County
Case No.: C-15-CV-21-000238
Argued: October 3, 2022
IN THE SUPREME COURT
OF MARYLAND*
Misc. Docket AG No. 40
September Term, 2021
______________________________________
ATTORNEY GRIEVANCE COMMISSION
OF MARYLAND
v.
TERENCE TANIFORM
______________________________________
Fader, C.J.,
Watts,
Hotten,
Booth,
Biran,
Gould,
Eaves,
JJ.
______________________________________
Opinion by Gould, J.
Pursuant to the Maryland Uniform Electronic Legal Materials
Booth, J., concurs.
Act (§§ 10-1601 et seq. of the State Government Article) this ______________________________________
document is authentic.
2022-12-16 14:38-05:00
Filed: December 16, 2022
Gregory Hilton, Clerk
* At the November 8, 2022 general election, the voters of Maryland ratified a constitutional
amendment changing the name of the Court of Appeals to the Supreme Court of Maryland.
The name change took effect on December 14, 2022.
On November 17, 2021, pursuant to Maryland Rule 19-721, the Attorney Grievance
Commission of Maryland (the “Commission”), acting through Bar Counsel, filed a Petition
for Disciplinary or Remedial Action (the “Petition”) against Terence Taniform. The
Petition alleged that Mr. Taniform violated multiple provisions of the Maryland Attorneys’
Rules of Professional Conduct (“MARPC”) and also violated the Professional Conduct for
Practitioners governing federal immigration proceedings set forth in 8 C.F.R. § 1003.102.
In accordance with Maryland Rules 19-722(a) and 19-727, we assigned the Petition to the
Honorable Theresa M. Chernosky of the Circuit Court for Montgomery County (the
“hearing judge”) to hold an evidentiary hearing and issue findings of fact and conclusions
of law.
The hearing occurred was held on May 16 and 17, 2022. At the beginning of the
hearing, the parties presented the court with a joint exhibit of stipulated facts. Bar Counsel
then presented its case with one witness and 31 exhibits. Mr. Taniform testified on his own
behalf, called one character witness, and submitted no exhibits.
On July 1, 2022, the hearing judge issued a written statement containing findings of
fact and conclusions of law (the “findings”), concluding by clear and convincing evidence
that Mr. Taniform violated MARPC 1.1 (Competence), 1 1.3 (Diligence), 1.4(a) and (b)
Effective July 1, 2016, the Maryland Lawyers’ Rules of Professional Conduct
1
(“MLRPC”) were renamed the MARPC and recodified without substantive modification
in Title 19, Chapter 300 of the Maryland Rules. Given that there are no material differences
between the two versions and Mr. Taniform committed violations of said rules after their
renaming, we will refer to all violations herein under their shorter designations as permitted
by Rule 19-300.1(22)—e.g., “Rule 1.1” as opposed to “Rule 19-301.1.”
(Communication), 1.15 (Safekeeping of Property), 1.16(d) (Declining or Terminating
Representation), 4.1 (Truthfulness in Statements to Others), 8.1(a) and (b) (Bar Admission
and Disciplinary Matters), and 8.4(a), (c), and (d) (Misconduct), and Maryland Rule 19-
407 (Attorney Trust Account Record-Keeping).2
Mr. Taniform filed exceptions to the findings pursuant to Maryland Rule 19-728(b).
Oral arguments were held before this Court on October 3, 2022. As explained
below, we overrule Mr. Taniform’s exceptions, sustain the hearing judge’s findings, and
determine that an indefinite suspension with the right to apply for reinstatement after 18
months is the appropriate sanction under the facts and circumstances of this case.
BACKGROUND
Factual Findings
Mr. Taniform was born in Cameroon. There, in 2003, he graduated from the
University of Yaoundé II, with a bachelor’s degree in law. He subsequently emigrated to
the United States in 2007, at the age of 24. He arrived in Sacramento, California, and
planned to go to the University of the Pacific to obtain an LLM. At that point, he intended
to eventually return to Cameroon. He enrolled at the University of the Pacific but withdrew
after he lost his financial support when his grandfather died. When he told his family that
2
As noted, Mr. Taniform was charged with violations of both the MARPC and the
Professional Conduct for Practitioners governing federal immigration proceedings set forth
in 8 C.F.R. § 1003.102. The hearing judge determined that the charges under the Federal
Immigration Rules of Professional Conduct and MARPC implicated substantively
identical provisions, and that the factual findings made as to the latter would apply to the
charges under the former. As neither party excepted to that determination, we shall not
address the choice of law issues implicated in this matter.
2
he wanted to return to Cameroon for his grandfather’s funeral, he learned there was an
outstanding warrant for his arrest in that country due to his political activity there while in
college. Mr. Taniform then moved to Maryland to be with an uncle and petitioned for
asylum. In 2009, he was granted political asylum and became a U.S. citizen.
In 2014, he was married with two children. He began law school at the University
of Dayton in Ohio, but his family remained in Maryland. While in law school, he was
diagnosed with anxiety and depression, for which he was treated.
During law school, Mr. Taniform interned for a Maryland immigration attorney,
Kevin Tabe. His tasks included conducting initial client interviews and filling out asylum
forms, green card applications, and other immigration forms.
Mr. Taniform graduated law school in 2017 and was admitted to the Maryland Bar
in December 2017. During 2018, he stayed busy working on document review projects in
the District of Columbia. He also worked for Mr. Tabe on a case-by-case basis, for which
he had a limited role. According to Mr. Taniform, “we would discuss the case together,
and I would tell him what, I would go through the case telling what difficulties I think
might come up with the case, and then he would discuss with me on how to handle those.”
Mr. Taniform’s assignments included visiting Mr. Tabe’s clients in detention centers
around the country, interpreting for them at their preliminary hearings (master calendar
hearings), and helping them complete the asylum forms. Eventually, Mr. Taniform began
representing the clients at their final hearings.
In 2019, Mr. Taniform began representing his own clients. He maintained an office
in Montgomery County, focusing his practice on immigration law. He was assisted by
3
Kuji Mundi, a paralegal in California working in immigration law. Mr. Mundi conducted
initial client interviews and filled out asylum forms.
A. Representation of Fon Halley Fon
On March 1, 2019, Fon Halley Fon, a citizen of Cameroon, entered the United States
at the port of entry at San Ysidro, California. On April 23, the Department of Homeland
Security and Immigration and Customs Enforcement (“ICE”) formally charged him with
removal under the Immigration and Nationality Act and served him with notice to appear
in court. He was arrested by immigration authorities, detained in Mississippi for two
months, and then transported to Louisiana. While in Louisiana, he hired Mr. Tabe to file
an asylum petition on his behalf. Mr. Tabe filed the petition, but on August 13, the
immigration judge found Mr. Fon removable as charged, denied his petition, and ordered
him to be deported to Cameroon.
On Mr. Fon’s behalf, Mr. Tabe appealed the case to the Board of Immigration
Appeals (the “BIA”). On January 13, 2020, the BIA denied the appeal and gave Mr. Fon
30 days to petition for a review of the denial.
While Mr. Fon remained in detention in Louisiana, he authorized his aunt, Dorothy
Fongum, to find counsel on his behalf. By happenstance, upon the recommendation of
someone (not Mr. Tabe), Ms. Fongum retained Mr. Taniform on Mr. Fon’s behalf to file a
motion to reopen the BIA appeal and, according to Mr. Fon, to also file the necessary
paperwork to secure his release on parole or bond. The deadline for filing the motion to
reopen was February 12.
4
On January 28, 2020, Mrs. Fongum signed a retainer agreement on behalf of Mr.
Fon, agreeing to pay Mr. Taniform $5,000, with an initial deposit of $1,500. Ms. Fongum
advanced the $1,500 by check.
Mr. Taniform testified that Ms. Fongum provided him with documents to file the
motion to reopen. He also testified that he reached out to Mr. Mundi for assistance.
After he retained Mr. Taniform, Mr. Fon spoke with him by phone. Mr. Taniform
told Mr. Fon that he would seek to reopen the case to introduce new evidence based on a
change in conditions in Cameroon. Mr. Taniform also agreed to seek Mr. Fon’s parole or
release from detention.
Approximately two weeks after he retained Mr. Taniform, Mr. Fon called Mr.
Taniform to tell him that ICE wanted Mr. Fon to sign a deportation form because he had
lost his appeal. Mr. Taniform advised Mr. Fon to tell ICE that he had a lawyer taking care
of his case. He also told Mr. Fon not to worry because he would file the motion to reopen
by February 10.
On February 3, 2020, Ms. Fongum attempted to reach Mr. Taniform by phone. Mr.
Taniform sent her a text message saying that he would call her back. When he did not, on
February 5, Ms. Fongum left another message for Mr. Taniform, asking why he was not
returning her calls.
In February, Mr. Fon met with and told an ICE officer that he had retained counsel
to reopen his case. The officer agreed to give Mr. Fon additional time before scheduling
his deportation.
5
Between February and May 2020, Mr. Taniform had multiple phone conversations
with Mr. Fon and Ms. Fongum regarding the status of Mr. Fon’s case. Each call was
initiated by either Mr. Fon or Ms. Fongum. Mr. Fon called Mr. Taniform weekly to find
out what was happening with his case; each time, Mr. Taniform told him that he was
working on his case and that Mr. Fon need not worry. On February 10, Mr. Taniform told
Mr. Fon that the motion to reopen had been filed and that he was waiting for a response
from the BIA. Mr. Taniform testified that Mr. Taniform said that he believed what he had
said because, he claimed, that’s what Mr. Mundi had told him. Mr. Taniform did not in
fact file the motion to reopen before the February 12 deadline or anytime thereafter.
On February 26, 2020, fourteen days after the motion to reopen was due, Mr.
Taniform deposited Ms. Fongum’s $1,500 check into his attorney trust account.
After February 10, Mr. Fon continued to contact Mr. Taniform weekly to inquire
whether there had been any update from the BIA; each time, Mr. Taniform led Mr. Fon to
believe that the motion had been filed and that he had not received an update from the BIA.
On March 24, Ms. Fongum sent Mr. Taniform a text message asking whether he had
contacted the court to verify its receipt of Mr. Fon’s appeal documents.
Mr. Taniform testified that he had directed Mr. Mundi to file a “skeletal” motion by
the February 12 deadline advising the BIA that Mr. Fon was seeking to reopen the case,
and that he intended to subsequently file a supplemental motion stating the basis for the
request. Mr. Taniform claimed that each time he told Mr. Fon or Ms. Fongum that the
motion was pending, he was referring to the “skeletal” motion. He acknowledged that he
never informed Mr. Fon or Ms. Fongum of his plan to first file a “skeletal” motion and
6
then to file a supplemental one. He admitted that he never drafted or filed a supplemental
motion and never directed Mr. Mundi to do so. In contrast to his testimony at the hearing,
when he responded to Bar Counsel’s investigation, Mr. Taniform never made any claim
about “skeletal” or supplemental motions.
In early April, ICE officers again met with Mr. Fon to schedule his deportation. He
told them that he was represented by a lawyer and was contesting his deportation. Mr. Fon
believed that he would be putting his life in jeopardy if he signed his deportation papers.
After that meeting, Mr. Fon called Mr. Taniform who said that the motion was
pending, that he did not know why he was unable to get any updates, that Mr. Fon should
not sign any deportation papers, and that he would call the BIA to check on the status of
the case. When Mr. Fon next called Mr. Taniform, Mr. Taniform stated that he learned
that, because of the coronavirus pandemic, everything had been delayed. Mr. Taniform
told Mr. Fon to be patient. In fact, Mr. Taniform never contacted the BIA regarding the
status of Mr. Fon’s case. At his hearing, Mr. Taniform testified that Mr. Mundi told him
that things may have been delayed because of the pandemic.
Throughout April, Ms. Fongum made multiple requests for information regarding
the status of Mr. Fon’s case, and each time, Mr. Taniform failed to respond.
In mid-May, an ICE officer met again with Mr. Fon. The officer told him that he
needed to sign the deportation paperwork because his file indicated that no motion had
been filed with the BIA and that no attorney had entered an appearance on his behalf. As
a result, Mr. Fon had no choice but to sign the deportation paperwork, which he said felt
was like he was signing his “death paper.” Mr. Fon had Ms. Fongum call ICE, which
7
confirmed that nothing in their system indicated that Mr. Fon was contesting his
deportation.
Mr. Fon called and told Mr. Taniform what the ICE had said. Mr. Taniform said
their information was not correct and that he would find out from BIA what was going on.
He told Mr. Fon not to worry. He also stated that he would file a motion to stay the
deportation. After that, Mr. Fon tried numerous times to call Mr. Taniform, but Mr.
Taniform would not take his calls. At that time, Mr. Fon was scheduled to be deported in
early November.
In May, Mr. Taniform told Ms. Fongum that he would file a motion to reopen Mr.
Fon’s appeal and stay his deportation. Mr. Taniform testified that when he said this, he
was referring to the supplemental motion he intended to file.
Mr. Fon then retained a new lawyer, Ruth Hargrove. On July 2, when contacted by
Ms. Hargrove, Mr. Taniform stated that he had filed a motion to reopen the appeal and
promised to send her a copy. Ms. Hargrove followed up her phone conversation with an
email and a text message requesting copies of the motion and the motion to stay Mr. Fon’s
deportation. Of course, Mr. Taniform had nothing to send to Ms. Hargrove, so he didn’t.
When Mr. Taniform did not respond to Ms. Hargrove, she contacted the BIA which
informed her that Mr. Taniform had filed neither a motion to reopen Mr. Fon’s case nor a
motion to stay his deportation. On July 6, Ms. Hargrove emailed and texted Mr. Taniform,
repeating what the BIA had told her and requesting a response from him within 24 hours.
Mr. Taniform responded that he had “been in and out of the ER for the last two days” and
would reply to her later that day. Mr. Taniform never contacted Ms. Hargrove again.
8
On July 9, Ms. Hargrove sent Mr. Taniform an email summarizing his
misrepresentations to Mr. Fon and Ms. Fongum and demanding a refund of the $1,500
retainer Ms. Fongum had paid. Mr. Taniform never responded.
On October 2, 2020, Ms. Hargrove filed a motion to reopen Mr. Fon’s case.
Meanwhile, ICE proceeded with Mr. Fon’s deportation; they put him on a plane from
Louisiana to Texas, and began arranging his deportation to Cameroon. They gave him a
plane ticket and scheduled to deport him on November 10. At that time, Mr. Fon was
“living in fear and pain, knowing that anything could happen” if he was returned to
Cameroon.
On November 5, Ms. Hargrove filed an emergency motion to stay Mr. Fon’s
deportation. The BIA granted the motion on November 9. On November 24, ICE released
Mr. Fon from detention subject to GPS monitoring. Subsequently, Ms. Hargrove filed a
motion to reopen the case, which the BIA granted, based on both Mr. Taniform’s and Mr.
Tabe’s ineffective assistance of counsel. Mr. Fon had a master calendar hearing scheduled
for October 2022. The outcome of that hearing is not part of the record in this matter.
At his hearing, Mr. Taniform testified that Mr. Mundi would typically provide him
with draft motions to approve and sign, but he could not explain why this did not happen
in Mr. Fon’s case. Mr. Taniform maintained that he had asked Mr. Mundi for a copy of
the filed motion on numerous occasions, and even though there had been problems with
Mr. Mundi’s work in the past, Mr. Taniform did nothing further to ensure that the motion
had been filed in Mr. Fon’s case. Mr. Taniform neither called Mr. Mundi as a witness nor
9
offered corroborating evidence that he had tasked Mr. Mundi with preparing Mr. Fon’s
motion.
B. Representation of Clovis Tangmoh Fozao
Clovis Tangmoh Fozao (“Clovis”), a citizen of Cameroon, entered the United States
in or about 2019. On February 11, 2020, an immigration court denied his asylum petition,
and he was detained by immigration authorities in Louisiana. On February 28, Clovis’s
brother, Felix Fozao (“Felix”),3 acting on Clovis’s behalf, retained Mr. Taniform to
represent Clovis to appeal the immigration court’s decision and to file an application for
parole.4 Mr. Taniform agreed to represent Clovis for a fee of $3,250, with an initial deposit
of $2,000.
Felix paid $1,000 on February 28 and another $1,000 on March 2, which Mr.
Taniform deposited into his operating account without his client’s consent. On March 5,
he transferred $1,050 of those funds into his attorney trust account.
On March 6, Mr. Taniform entered his appearance in Clovis’s case and noted an
appeal. The Notice of Appeal form warned that “[the BIA] may summarily dismiss your
appeal if you do not file a brief or statement within the time set in the briefing schedule.”
The deadline for filing the brief or statement was May 27.
3
We intend no disrespect by using the first names of Clovis Fozao and his brother
Felix Fozao. We do this only for purposes of clarity.
4
Mr. Taniform testified that he agreed to file the application for parole on a pro
bono basis.
10
Sometime between February 28 and April 8, Felix sent a text message to Mr.
Taniform stating: “It’s been [a while]. I just wanted to find out about the appeal case of
Fozao Clovis Tangmoh[.] Also, to find out how we can apply for parole and or bond for
him[.]” Mr. Taniform replied: “[a]ppeal notice has been received. We are waiting [for] a
briefing order[.] Call me on Thursday 10 am and let’s talk about the parole and or bond[.]”
On April 28, Felix sent a text message to Mr. Taniform emphasizing the urgent need
to file the request for parole. Mr. Taniform responded by text message that day, stating
that he was working on the motion and attaching a picture of it. Felix sent Mr. Taniform
text messages on April 29 and May 20 in which he identified errors in the motion, including
Clovis’s name, but Mr. Taniform never responded.
On May 22, Felix sent a text message to Mr. Taniform stating: “I just had a call
from my brother Fozao Clovis Tangmoh informing me that some documents have been
sent to you from the court that require your action on or before May 27th 2020[.] I was
calling so that we could talk about them.” Mr. Taniform never responded. On June 15,
Felix sent multiple text messages to Mr. Taniform requesting information about the status
of Clovis’s case. In response, Mr. Taniform falsely told Felix that he was in the process of
filing Clovis’s appeal. Mr. Taniform failed to file a brief by the May 27 deadline or at any
time thereafter.
Mr. Taniform testified that he never filed the appeal brief because he procrastinated
and believed a brief could be filed late and still be accepted by the court. He contended
that he told Felix and Clovis that everything was fine because he believed that he could fix
the problem.
11
On July 2, the BIA dismissed Clovis’s appeal because “statements were not
provided on the Notice of Appeal that meaningfully apprise[d] the Board of the specific
reasons underlying the challenge to the Immigration Judge’s Decision.” That same day,
the BIA sent Clovis a notice of its decision and informed him that any petition for review
of the decision must be filed within 30 days.
Nonetheless, on July 7, Mr. Taniform knowingly and intentionally misrepresented
to Felix that Clovis’s appeal and his application for parole were going well. When Felix
told Mr. Taniform that Clovis’s appeal had been dismissed, Mr. Taniform replied that this
was not true. On July 13, Felix terminated Mr. Taniform’s representation of Clovis and
requested a refund of the $2,000. Mr. Taniform did not respond to that request.
C. Bar Counsel’s Investigation
1. The Fon Matter
On July 15, 2020, Ms. Fongum filed a complaint with Bar Counsel. On July 22,
Bar Counsel wrote to Mr. Taniform, enclosed the complaint, and requested a written
response. In response, Mr. Taniform refunded the $1,500 to Ms. Fongum on September
15. On September 18, he responded to Bar Counsel with the following statement:
When I assured Mrs. Fongum and Ms. Hargrove that everything was ok, I
was under the impression that the motion had been filed because the file had
been moved to another section of the cabinet that had all completed files that
had already been treated.
At his hearing, Mr. Taniform acknowledged that he never looked at Mr. Fon’s client
file because he knew that it did not contain a copy of the motion to reopen.
12
On September 23, Mr. Fon also filed a complaint with Bar Counsel against Mr.
Taniform.
2. The Fozao Matter
On July 24, 2020, Felix filed a complaint with Bar Counsel. On July 30, Bar
Counsel wrote to Mr. Taniform, enclosed Felix’s complaint, and requested a written
response. In response, Mr. Taniform refunded the $2,000 to Felix on September 15. On
September 18, he responded to Bar Counsel with the following statement, similar to his
response to Bar Counsel in its investigation of Ms. Fongum’s complaint:
When I assured Mr. Felix that everything was ok, I was under the impression
that the brief had been filed because some files including Mr. Clovis Fozao’s
file had been mistakenly moved to another section of the cabinet that had all
completed files.
On November 6, Bar Counsel wrote to Mr. Taniform and requested, in part, Mr.
Taniform’s complete client file and his attorney trust account records relating to his
representation of Clovis. Mr. Taniform failed to provide this information. When
questioned about the transfer of the retainer from Mr. Taniform’s operating account to his
trust account, Mr. Taniform stated to Bar Counsel that:
Since my bank does not accept bank transfers and deposits into a trust
account, I had to withdraw the money and deposit it into the trust account.
The reason why I only deposited $1,50.00 [sic] is because I began the appeal
process by filing a notice of intent to appeal coupled with a request for fee
waiver for [Clovis]. Lastly, as noted on my last response to the board, I had
agreed to file an application for parole with immigration and customs
Enforcement [sic] pro bono.
13
STANDARD OF REVIEW
This Court has original jurisdiction over attorney discipline proceedings and
conducts an independent review of the hearing judge’s findings of fact and conclusions of
law. Attorney Grievance Comm’n v. Hamilton, 444 Md. 163, 178 (2015). We review the
hearing judge’s conclusions of law without deference. Md. Rule 19-740(b)(1). We may
treat any facts not challenged by exceptions as established. Md. Rule 19-740(b)(2)(A). “If
exceptions are filed,” we determine “whether the findings of fact have been proved by the
requisite standard of proof set out in Rule 19-727(c).” Md. Rule 19-740(b)(2)(B). Under
Rule 19-727(c), Bar Counsel must prove its allegations of misconduct by clear and
convincing evidence. In contrast, the respondent must prove any affirmative defenses and
any mitigating or extenuating circumstances by a preponderance of the evidence. Id.DISCUSSION
Either party may file exceptions to the hearing judge’s findings of fact or
conclusions of law. Md. Rule 19-728(b). Here, Bar Counsel did not file any exceptions.
Mr. Taniform, on the other hand, excepts to multiple findings of fact and conclusions of
law, each of which we address below.
A. Exceptions to the Hearing Judge’s Findings of Fact
1. The Fon Matter
Mr. Taniform excepts to the court’s findings that he (1) made “knowing and
intentional misrepresentations” to Mr. Fon and Ms. Fongum that he had filed the motion
to reopen the case; and (2) misrepresented to Ms. Hargrove that he would send her a copy
of the motion to reopen the case. He also excepts to the hearing judge’s finding that he
14
was not credible. While Mr. Taniform concedes that his statements to Mr. Fon, Ms.
Fongum, and Ms. Hargrove were inaccurate and misleading, he contends the hearing
judge’s findings are not justified because his statements were not made for personal gain.
At his hearing, Mr. Taniform blamed Mr. Mundi for failing to both file the motion
and send a copy to Ms. Hargrove. According to Mr. Taniform, his only errors were that he
failed to follow up with Mr. Mundi, failed to obtain a copy of the motion from Mr. Mundi,
and failed to verify that the motion was filed. He contends that these failures evidence
incompetence and a lack of diligence, not dishonesty or fraud.
A hearing judge’s findings of fact are generally accepted unless they are clearly
erroneous. Attorney Grievance Comm’n v. Whitehead, 405 Md. 240, 253 (2008). We defer
to the credibility findings of the hearing judge because “[t]he hearing judge is in the best
position to evaluate the credibility of the witnesses and to decide which one to believe and,
as we have said, to pick and choose which evidence to rely upon.” Attorney Grievance
Comm’n v. Barton, 442 Md. 91, 122 (2015) (quotation omitted).
Here, the hearing judge had ample reasons to conclude that Mr. Taniform’s
explanations were not credible and that he had knowingly and intentionally misled Mr.
Fon, Ms. Fongum, and Ms. Hargrove.5 Among other things, despite his representations to
the contrary, Mr. Taniform had to have known that he had never signed a “skeletal” motion,
never prepared and filed a supplemental motion, never called the BIA to check on the status
of the matter, and never had any basis for leading Mr. Fon to believe that he was on top of
5
Notably, Mr. Taniform does not except to the finding that he told Mr. Fon
numerous times that he would check with BIA about the status of the motion but never did.
15
the matter. Accordingly, we overrule Mr. Taniform’s exception to the hearing judge’s
finding that he made multiple misrepresentations in the Fon matter and that his testimony
was not credible.
2. The Fozao Matter
Mr. Taniform excepts to the hearing judge’s finding that “the Respondent
knowingly and intentionally misrepresented to Felix that Clovis’s appeal and his
application for parole were going well.” Here again, according to Mr. Taniform, although
his statements were inaccurate and misleading, they were not made for personal gain. He
contends that he was justified in making these statements because he intended to file the
brief late and ask the court’s permission to accept it late. Had that occurred, he contends,
Clovis’s case would have been “back on track.”
For self-evident reasons, Mr. Taniform’s attempt to rationalize his actions in this
manner only substantiates the hearing judge’s finding. Accordingly, we overrule his
exception to the hearing judge’s finding that he made knowing and intentional
misrepresentations in the Fozao matter.
3. Bar Counsel’s Investigation
Mr. Taniform excepts to the hearing judge’s finding that he made a knowingly false
and intentionally misleading statement to Bar Counsel by attempting to rationalize his
misrepresentations to Ms. Fongum and Ms. Hargrove—that the motion had been filed—
on the basis that Mr. Fon’s file had been placed in the completed files cabinet. According
to Mr. Taniform, his answer was merely incomplete because he did not tell Bar Counsel
16
that he had assigned responsibility for the motion to Mr. Mundi. Again, we are not
persuaded.
The hearing judge determined that Mr. Taniform’s attempt to shift responsibility to
Mr. Mundi was self-serving, unsupported, and not credible. Moreover, as the hearing judge
observed “[a]t trial, [Mr. Taniform] acknowledged that he never looked at Mr. Fon’s client
file because he knew that it did not contain a copy of the motion to reopen.” There is,
therefore, ample evidence to support the hearing judge’s finding that Mr. Taniform
intentionally and knowingly misled Bar Counsel.
Similarly, Mr. Taniform excepts to the hearing judge’s finding that he made a
knowingly and intentionally false statement to Bar Counsel when he rationalized his failure
to file the brief in Clovis’s matter on the same basis—that the file had mistakenly been
moved to the completed files cabinet. Mr. Taniform contends that his misrepresentation to
Bar Counsel stemmed from his inadvertent cutting and pasting of the same language he
used in his response to Bar Counsel in the Fon matter, and was therefore not intentional.
Again, the hearing judge had an adequate evidentiary basis to conclude that because Mr.
Taniform knew that no brief had been filed, his statement to Bar Counsel was knowingly
and intentionally false.
We therefore overrule Mr. Taniform’s exceptions to the hearing judge’s findings
that he knowingly and intentionally misled Bar Counsel during its investigation.
B. Exceptions to the Hearing Judge’s Findings on Mitigating Factors
We recognize the following mitigating factors in considering the appropriate
sanction:
17
(1) the absence of prior attorney discipline; (2) the absence of a dishonest or
selfish motive; (3) personal or emotional problems; (4) timely good faith
efforts to make restitution or to rectify the misconduct’s consequences;
(5) full and free disclosure to [Bar Counsel] or a cooperative attitude toward
the attorney discipline proceeding; (6) inexperience in the practice of law;
(7) character or reputation; (8) a physical disability; (9) a mental disability or
chemical dependency, including alcoholism or drug abuse, where: (a) there
is medical evidence that the lawyer is affected by a chemical dependency or
mental disability; (b) the chemical dependency or mental disability caused
the misconduct; (c) the lawyer’s recovery from the chemical dependency or
mental disability is demonstrated by a meaningful and sustained period of
successful rehabilitation; and (d) the recovery arrested the misconduct, and
the misconduct’s recurrence is unlikely; (10) delay in the attorney discipline
proceeding; (11) the imposition of other penalties or sanctions; (12) remorse;
(13) remoteness of prior violations of the M[A]RPC; and (14) unlikelihood
of repetition of the misconduct.
Attorney Grievance Comm’n v. Allenbaugh, 450 Md. 250, 277-78 (2016) (citing Attorney
Grievance Comm’n v. Shuler, 443 Md. 494, 506-07 (2015)).
The hearing judge found that Mr. Taniform proved by a preponderance of the
evidence the mitigating factors of: (1) absence of prior attorney discipline, (2) personal or
emotional problems, (3) inexperience in the practice of law, and (4) unlikelihood of
repetition of the misconduct. As to the mitigating factor of personal or emotional problems,
the hearing judge explained that, during law school, Mr. Taniform suffered from mental
health issues for which he sought professional help and was diagnosed with anxiety and
depression. The hearing judge noted that Mr. Taniform had been treated with medication
and counseling.
Mr. Taniform excepts to the hearing judge’s failure to find: (1) an absence of a
dishonest or selfish motive, (2) timely effort to make restitution, (3) cooperative attitude
towards the attorney disciplinary proceeding, (4) character or reputation, and (5) remorse.
18
The short answer is that, as explained above, the hearing judge was in the best
position to assess the credibility and persuasiveness of Mr. Taniform’s and his character
witness’s testimony, see Barton, 442 Md. at 122, and the hearing judge cannot be faulted
for not finding these mitigating factors here. Given Mr. Taniform’s repeated
misrepresentations to his clients, their families, and Bar Counsel, his failure to return the
fees after demand by his clients, his failure to take any action to rectify his omissions while
he was still representing Mr. Fon and Clovis, and his efforts to shift responsibility for his
misconduct to Mr. Mundi, the hearing judge was well within her discretion when she
declined to find these additional mitigating factors.6 We therefore overrule Mr. Taniform’s
exceptions to the hearing judge’s failure to do so.
C. Exceptions to the Hearing Judge’s Findings on Aggravating Factors
The Court considers the following aggravating factors:
(1) prior attorney discipline; (2) a dishonest or selfish motive; (3) a pattern
of misconduct; (4) multiple violations of the [MARPC]; (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.
6
Mr. Taniform’s character witness, Yomba Yokwan, a close friend who considered
Mr. Taniform like a brother, testified that Mr. Taniform was dependable, hard-working,
kind, a good friend, a good father, and conscientious. While obviously complimentary, we
do not question the hearing judge’s failure to include character and reputation as a
mitigating factor based solely on the testimony of one very good friend.
19
Attorney Grievance Comm’n v. Sperling, 459 Md. 194, 275 (2018).
The hearing judge found that Bar Counsel proved by clear and convincing evidence:
(1) a dishonest or selfish motive, (2) a pattern of misconduct, and (3) vulnerability of the
victims. Mr. Taniform excepts to each of these findings.
1. A Dishonest or Selfish Motive
The hearing judge found that Mr. Taniform had a selfish or dishonest motive:
when he made repeated knowing and intentional misrepresentations to Mr.
Fon, Ms. Fongum, and Ms. Hargrove in an effort to conceal his failure to file
the motion to reopen. The Respondent demonstrated a dishonest and selfish
motive in the Fozao matter when he intentionally misrepresented to Felix that
everything was “ok” with Clovis’s case, despite having failed to draft or file
the brief by the May 27 deadline. In both the Fon and Fozao matters, the
Respondent agreed to the representation, accepted funds, and then failed to
perform the work for which he was retained essentially abandoning the
clients. While there doesn’t seem to be a selfish motive for failing to do this
work as requested, the selfish motive comes in when Respondent fails to
answer honestly and fails to respond at all to the inquires in order to avoid
the problem or deflect the responsibility.
According to Mr. Taniform, Bar Counsel did not prove a dishonest or selfish motive
by clear and convincing evidence. Our independent review of the record confirms that the
hearing judge had a sufficient evidentiary basis for finding a dishonest and selfish motive;
accordingly, we overrule Mr. Taniform’s exception to that finding.
2. A Pattern of Misconduct
The hearing judge found that Mr. Taniform engaged a pattern of misconduct. The
hearing judge explained:
There is also a pattern of misconduct present in these situations. Not only
does Respondent fail to file petitions in both the Fon and Fozao matter, but
he then repeatedly is dishonest in saying that he has filed them. He fails to
admit his error and continues to deny. At some point in both cases, he follows
20
the denials with being nonresponsive to his clients and their families who are
looking to determine the status of the filings.
Mr. Taniform excepts to this finding because, he contends, these two matters
occurred during the same five-month period.
A pattern of misconduct can be demonstrated “by multiple violations over time, or
a series of acts with one goal.” Sperling, 459 Md. at 276. In Attorney Grievance Comm’n
v. Coppola, 419 Md. 370, 406 (2011), we found that Mr. Coppola’s “series of acts clearly
formed a pattern of misconduct, albeit with one goal in mind. One goal, though, does not
obviate that Coppola engaged in a series of acts over a number of days.” See also Shuler,
443 Md. at 500 (finding a pattern of misconduct evidenced by the failure to appear or by
appearing late at multiple hearings, all in one case over a three-month period).
Here, Mr. Taniform engaged in a series of wrongful acts over a period of five
months with two different clients. Although arguably over a short period of time, Mr.
Taniform nonetheless made multiple misrepresentations to Mr. Fon, Mrs. Fongum, and
Ms. Hargrove to hide the fact that he completely neglected Mr. Fon’s case. Similarly, in
the Fozao matter, on multiple occasions, Mr. Taniform made misrepresentations to Felix,
again to hide the fact that he had neglected to file a brief on Clovis’s behalf.
Citing to Attorney Grievance Comm’n v. Riely, 471 Md. 458, 500-01 (2020), Mr.
Taniform claims that this Court should not look at how many acts the attorney committed,
but instead how many “‘episodes’ those violations relate to.” According to Mr. Taniform,
the record shows that he committed only two “episodes” during the same time frame.
21
Mr. Taniform’s reliance on Riely is misplaced. In Riely, we overruled Bar Counsel’s
exception to the hearing judge’s failure to find the aggravating factor of a pattern of
misconduct. There, we stated:
Mr. Riely had what appears to be a high-volume immigration practice that,
for the prior 30 years, had apparently been without incident. We decline to
characterize these two matters as a “pattern of misconduct.”
Id. at 501, n.21.
Unlike in Riely, Mr. Taniform’s misconduct cannot be juxtaposed against a 30-year,
otherwise unblemished career. Rather, as Mr. Taniform acknowledges, he had only two
years of experience. Further, it warrants pointing out that where one hearing judge may
find that Bar Counsel proved the factor by clear and convincing evidence, another hearing
judge presented with the same evidence may reasonably find otherwise. Just because we
declined in Riely to find fault in a hearing judge’s failure to find this aggravating factor
does not imply that a hearing judge presented with similar facts in another case would not
be entitled to find this factor.
Accordingly, we overrule Mr. Taniform’s exception to the hearing judge’s finding
of the aggravating factor of a pattern of misconduct.
3. The Victim’s Vulnerability
Based on the evidence, the hearing judge was not inclined to find victim
vulnerability as an aggravating factor because both Mr. Fon and Clovis had help from
family members to retain and communicate with counsel, both clients were able to
communicate with Mr. Taniform when they could reach him, and both were neither of a
vulnerable age nor lacking in cognitive abilities. The hearing judge nevertheless felt
22
constrained to find this aggravating factor because, in Riely, we stated that “[i]mmigrants,
especially those at risk of removal from the United States, are a marginalized group that
this Court has recognized as vulnerable victims of professional misconduct.” 471 Md. at
500. The hearing judge reasonably interpreted this as a per se rule that immigration clients
are automatically deemed vulnerable.
Mr. Taniform excepts to the hearing judge’s finding of this factor, and urges us to
reject such a per se rule. According to Mr. Taniform,
If immigrant clients are to be considered vulnerable victims in every case,
lawyers specializing in immigration law will always be subject to an
aggravating factor in attorney grievance matters. That alone could be a
chilling effect for those wishing to pursue immigration law as a practice area.
While the immigrant clients in these matters were certainly vulnerable in that
they faced removal, they were not vulnerable within the class of immigrant
clients – as the Court below noted. Neither of the clients at issue were
especially young or senior nor were they laboring under a disability that
would make them particularly vulnerable. Bar Counsel did not prove this
aggravating factor by clear and convincing evidence and the Court below
should not have made this finding of fact.
Mr. Taniform traces our statement in Riely about the vulnerability of immigration
clients to Attorney Grievance Comm’n v. Brisbon, 422 Md. 625, 642 (2011) (quotation
omitted), where we recognized that the Maryland Immigration Consultant Act was enacted
to “offer simple protection to extremely vulnerable people, largely unable or unwilling as
a practical matter to defend themselves, from being preyed on.” According to Mr.
Taniform, our recognition that immigration clients are generally vulnerable and need
protection does not translate to a blanket rule that the aggravating factor of the victim’s
vulnerability must automatically be found.
23
We recently addressed an argument similar to Mr. Taniform’s in Attorney
Grievance Comm’n v. Moawad, 475 Md. 424, 484-85 (2021), where one of the
immigration client victims was an “accomplished medical doctor” who made a career in
the United States as an emergency medical technician. We rejected the argument that the
vulnerability of the victim factor should not be considered, stating:
This Court has emphasized a need to protect the public by “impress[ing]
upon . . . lawyers, the importance of diligent representation and adequate
communication in immigration cases.” Attorney Grievance Comm’n v.
Landeo, 446 Md. 294, 352–53, 132 A.3d 196 (2016); see also Attorney
Grievance Comm’n v. Thomas, 440 Md. 523, 558, 103 A.3d 629 (2014).
Although the circumstances of Mr. Togbetse, Dr. Hao, and Ms. Liang may
differ from many immigrants’ experiences, this fact does not prevent each of
the clients in this case from being classified as vulnerable. Mr. Moawad’s
actions in this case caused substantial prejudice that risked impacting his
clients’ ability to maintain jobs and homes in the United States. The potential
to be removed from the country is a grave risk that is specific to immigrants
who do not have permanent status within the United States, thereby making
them vulnerable regardless of what occupation or socioeconomic status they
have attained. Attorneys play an important role in protecting
this vulnerable class, and hence attorneys who provide substandard services
to immigrants should, in turn, face significant consequences.
Id. at 485.
Time will ultimately tell whether we spoke too broadly in Moawad and in prior
cases, but we are not persuaded on these facts that Mr. Taniform’s clients should not be
deemed vulnerable for purposes of this aggravating factor. Accordingly, we overrule Mr.
Taniform’s exception to the hearing judge’s finding of this factor.
D. The Hearing Judge’s Conclusions of Law
From the foregoing factual findings, the hearing judge found by clear and
convincing evidence that Mr. Taniform violated MARPC 1.1, 1.3, 1.4(a) and (b), 1.15,
24
1.16(d), 4.1, 8.1(a) and (b), and 8.4(a), (c), and (d), and Maryland Rule 19-407. Mr.
Taniform admits to violating MARPC 1.1, 1.3, 1.4(a) and (b), and 8.4(a) and (d), and Rule
19-407, but excepts to the hearing judge’s conclusion that he violated MARPC 1.15,
1.16(d), 4.1, 8.1(a) and (b), and 8.4(c).
We review all conclusions of law de novo, even if no exceptions are taken. As
discussed below, we conclude that the hearing judge’s findings are supported by clear and
convincing evidence. We will first discuss the uncontested conclusions of the hearing
judge, and then address the conclusions to which Mr. Taniform excepts.
1. Violations that Mr. Taniform Concedes
a. MARPC 1.1 (Competence)
MARPC 1.1 requires attorneys to provide competent representation to all clients.
To do so, an attorney must apply “appropriate knowledge, skill, thoroughness, and
preparation to the client’s issues.” Attorney Grievance Comm’n v. Brooks, 476 Md. 97,
131 (2021) (quoting Attorney Grievance Comm’n v. Rheinstein, 466 Md. 648, 709 (2020),
cert. denied, ___ U.S. ___, 141 S. Ct. 370 (2020)).
An attorney can violate this rule by failing to file necessary motions or failing to
appear at a hearing, Attorney Grievance Comm’n v. Walker-Turner, 428 Md. 214, 226-28
(2012); Attorney Grievance Comm’n v. Brigerman, 441 Md. 23, 35 (2014) (quoting
Attorney Grievance Comm’n v. Shakir, 427 Md. 197, 205 (2012)), or by failing to act in a
timely manner, causing harm to the client, Attorney Grievance Comm’n v. Brown, 426 Md.
298, 319 (2012).
25
Clear and convincing evidence supports the conclusion that Mr. Taniform did not
provide competent representation to his clients as required under Rule 1.1.
b. MARPC 1.3 (Diligence)
MARPC 1.3 requires an attorney to “act with reasonable diligence and promptness
in representing a client.” This Rule can be violated when an attorney fails to communicate
with the client or fails to “advance the client’s cause or endeavor[.]” Attorney Grievance
Comm’n v. Bah, 468 Md. 179, 208 (2020) (quoting Attorney Grievance Comm’n v.
Edwards, 462 Md. 642, 699 (2019)); see also Attorney Grievance Comm’n v. Smith-Scott,
469 Md. 281, 340 (2020) (noting that the same justifications for finding a violation of
MARPC 1.1 for incompetence can support a finding of a violation of 1.3).
The hearing judge found that Mr. Taniform violated this Rule in the Fon matter
when he failed to file a motion and failed to check with the BIA as to whether the motion
was filed. The hearing judge found that Mr. Taniform violated this Rule in the Fozao
matter when he failed to timely file the brief and failed to file a motion after the appeal was
dismissed.
Clear and convincing evidence supports the hearing judge’s finding that this Rule
was violated.
c. MARPC 1.4 (Communication)
MARPC 1.4 provides:
(a) An attorney shall:
(1) promptly inform the client of any decision or circumstance with
respect to which the client’s informed consent, as defined in Rule 19-
301.0 (f) (1.0), is required by these Rules;
(2) keep the client reasonably informed about the status of the matter;
26
(3) promptly comply with reasonable requests for information; and
(4) consult with the client about any relevant limitation on the
attorney’s conduct when the attorney knows that the client expects
assistance not permitted by the Maryland Attorneys’ Rules of
Professional Conduct or other law.
(b) An attorney shall explain a matter to the extent reasonably necessary to
permit the client to make informed decisions regarding the representation.
MARPC 1.4 can be violated if a client has made several “reasonable requests for
information, which may include a general status update or for documents pertaining to the
case[,]” to no avail. Attorney Grievance Comm’n v. Planta, 467 Md. 319, 349 (2020);
Attorney Grievance Comm’n v. Dailey, 474 Md. 679, 705 (2021). An attorney also violates
this Rule when he misrepresents a case’s status to a client. Attorney Grievance Comm’n v.
Fox, 417 Md. 504, 517 (2010).
The hearing judge concluded that Mr. Taniform violated MARPC 1.4(a) when he
“failed to adequately communicate with or respond to requests for information from his
clients and his clients’ family members in the Fon and Fozao matters.” Mr. Taniform made
misrepresentations to Mr. Fon, Ms. Fongum, and Ms. Hargrove about the status of the Fon
matter, and to Felix about the status of the Fozao matter. The hearing judge concluded that
Mr. Taniform violated Rule 1.4(b) by his “failure to advise Mr. Fon that he had not filed
the motion to reopen” and “repeated misrepresentations to the contrary” that “prevented
Mr. Fon from making informed decisions regarding his immigration matter[.]” Similarly,
in the Fozao matter, the hearing judge found that Mr. Taniform’s misrepresentations
“prevented Felix and Clovis from making informed decisions about [Clovis’s] immigration
matter[.]”
27
Clear and convincing evidence supports the hearing judge’s finding that this Rule
was violated.
d. MARPC 8.4 (Misconduct)
MARPC 8.4, in relevant part, states:
It is professional misconduct for an attorney to:
(a) violate or attempt to violate the Maryland Attorneys’ Rules of
Professional Conduct, knowingly assist or induce another to do so, or do so
through the acts of another;
* * *
(d) engage in conduct that is prejudicial to the administration of justice[.]
When an attorney’s actions “bring the legal profession into disrepute[,]” he has
committed a violation of MARPC 8.4(d). Attorney Grievance Comm’n v. Plank, 453 Md.
446, 465 (2017) (citation omitted). This includes “acts of dishonesty and incompetence,
[and even] intentional representations to Bar Counsel[.]” Dailey, 474 Md. at 710.
The hearing judge found that Mr. Taniform’s other rule violations also constituted
violations of MARPC 8.4(a).
The hearing judge found that Mr. Taniform violated MARPC 8.4(d) when he
“undertook the representation of two immigration clients, failed to perform the work for
which he was retained, and made knowing and intentional misrepresentations to the client
and the client’s family members regarding the status of their cases.” Clear and convincing
evidence supports the hearing judge’s finding that sections (a) and (d) of Rule 8.4 were
violated.
28
e. Maryland Rule 19-407 (Attorney Trust Account Record-Keeping)
Rule 19-407 provides that:
(a) Creation of Records. The following records shall be created and
maintained for the receipt and disbursement of funds of clients or of third
persons:
(1) Attorney Trust Account Identification. An identification of all
attorney trust accounts maintained, including the name of the financial
institution, account number, account name, date the account was
opened, date the account was closed, and an agreement with the
financial institution establishing each account and its interest-bearing
nature.
(2) Deposits and Disbursements. A record for each account that
chronologically shows all deposits and disbursements, as follows:
(A) for each deposit, a record made at or near the time of the
deposit that shows (i) the date of the deposit, (ii) the amount,
(iii) the identity of the client or third person for whom the funds
were deposited, and (iv) the purpose of the deposit;
(B) for each disbursement, including a disbursement made by
electronic transfer, a record made at or near the time of
disbursement that shows (i) the date of the disbursement, (ii)
the amount, (iii) the payee, (iv) the identity of the client or third
person for whom the disbursement was made (if not the payee),
and (v) the purpose of the disbursement;
(C) for each disbursement made by electronic transfer, a
written memorandum authorizing the transaction and
identifying the attorney responsible for the transaction.
(3) Client Matter Records. A record for each client matter in which
the attorney receives funds in trust, as follows:
(A) for each attorney trust account transaction, a record that
shows (i) the date of the deposit or disbursement; (ii) the
amount of the deposit or disbursement; (iii) the purpose for
which the funds are intended; (iv) for a disbursement, the payee
and the check number or other payment identification; and (v)
the balance of funds remaining in the account in connection
with the matter; and
(B) an identification of the person to whom the unused portion
of a fee or expense deposit is to be returned whenever it is to
be returned to a person other than the client.
(4) Record of Funds of the Attorney. A record that identifies the funds
of the attorney held in each attorney trust account as permitted by Rule
19-408 (b).
29
(b) Monthly Reconciliation. An attorney shall cause to be created a monthly
reconciliation of all attorney trust account records, client matter records,
records of funds of the attorney held in an attorney trust account as permitted
by Rule 19-408 (b), and the adjusted month-end financial institution
statement balance. The adjusted month-end financial institution statement
balance is computed by adding subsequent deposits to and subtracting
subsequent disbursements from the financial institution’s month-end
statement balance.
(c) Electronic Records. Whenever the records required by this Rule are
created or maintained using electronic means, there must be an ability to print
a paper copy of the records upon a reasonable request to do so.
(d) Records to be Maintained. Financial institution month-end statements,
any canceled checks or copies of canceled checks provided with a financial
institution month-end statement, duplicate deposit slips or deposit receipts
generated by the financial institution, and records created in accordance with
section (a) of this Rule shall be maintained for a period of at least five years
after the date the record was created.
The hearing judge found that Mr. Taniform violated this Rule by failing to provide
Bar Counsel with the requested client records. Mr. Taniform does not contend otherwise.
Clear and convincing evidence supports the hearing judge’s finding that this Rule was
violated.
2. Violations to Which Mr. Taniform Excepts
Mr. Taniform excepts to the hearing judge’s conclusions that he violated Rules 1.15,
1.16(d), 4.1, 8.1(a) and (b), and 8.4(c). We overrule each exception.
a. MARPC 1.15 (Safekeeping of Property)
Rule 1.15 provides, in relevant part, that:
(a) An attorney shall hold property of clients or third persons that is in an
attorney’s possession in connection with a representation separate from the
attorney’s own property. Funds shall be kept in a separate account
maintained pursuant to Title 19, Chapter 400 of the Maryland Rules, and
30
records shall be created and maintained in accordance with the Rules in that
Chapter. Other property shall be identified specifically as such and
appropriately safeguarded, and records of its receipt and distribution shall be
created and maintained. Complete records of the account funds and of other
property shall be kept by the attorney and shall be preserved for a period of
at least five years after the date the record was created.
* * *
(c) Unless the client gives informed consent, confirmed in writing, to a
different arrangement, an attorney shall deposit legal fees and expenses that
have been paid in advance into a client trust account and may withdraw those
funds for the attorney’s own benefit only as fees are earned or expenses
incurred.
An attorney violates Rule 1.15 when, without the client’s consent, he either fails to
deposit client funds into an attorney trust account or deposits client funds into a personal
or operating account before those funds are earned. Smith-Scott, 469 Md. at 350 (citation
omitted); Attorney Grievance Comm’n v. Van Nelson, 425 Md. 344, 355-56 (2012).
The hearing judge found that Mr. Taniform violated this Rule because he failed to
safeguard Felix’s funds until they were earned. According to the hearing judge, without
his client’s consent, Mr. Taniform deposited the $2,000 retainer into his operating account
before it was earned and then transferred $1,050 of those funds into his attorney client trust
account at a time when no fees were due and owing. At his hearing, Mr. Taniform insisted
that he had earned the $950 left in his operating account. The hearing judge found that Mr.
Taniform had only done “some minimal work” on Clovis’s case and that he failed to
provide any records, including timesheets or invoices, to substantiate his claim that he had
earned that fee.
31
Mr. Taniform contends that, even in the absence of timesheet records, “it is clear
that [he] had obviously met with the client, reviewed the status of the case and filed
pleadings with the immigration court” and that he had earned the money he retained in his
operating account. To the contrary, given that the evidence establishes that Mr. Taniform
filed only an appearance and notice of appeal, did not file the appeal brief that he had been
hired to file, and did not file the application for parole he had agreed to file, we conclude
that clear and convincing evidence supports the hearing judge’s conclusion that Mr.
Taniform violated Rule 1.15. See Attorney Grievance Comm’n v. Thomas, 409 Md. 121,
163-65 (2009); Attorney Grievance Comm’n v. Stinson, 428 Md. 147, 172 (2012).
b. MARPC 1.16 (Declining or Terminating Representation)
MARPC 1.16(d) provides:
Upon termination of representation, an attorney shall take steps to the extent
reasonably practicable to protect a client’s interests, such as giving
reasonable notice to the client, allowing time for employment of another
attorney, surrendering papers and property to which the client is entitled and
refunding any advance payment of fee or expense that has not been earned
or incurred. The attorney may retain papers relating to the client to the extent
permitted by other law.
The hearing judge found that Mr. Taniform violated Rule 1.16(d) by failing to
timely refund to Mr. Fon and Mr. Fozao their unearned retainers. Mr. Taniform takes
exception to this finding, arguing that he returned the money within 60 days of being
requested to do so. As stated above, Mr. Taniform failed to return the funds on his clients’
demands and only did so after complaints with the Commission were filed. Under these
circumstances, we cannot find fault with the hearing judge’s failure to credit Mr. Taniform
with promptly returning unearned funds to his clients.
32
We find that clear and convincing evidence supports the hearing judge’s conclusion
that Mr. Taniform violated Rule 1.16(d) by failing to return unearned fees. See Attorney
Grievance Comm’n v. Lang, 461 Md. 1, 54 (2018); Attorney Grievance Comm’n v. Moore,
447 Md. 253, 269 (2016); Attorney Grievance Comm’n v. Kremer, 432 Md. 325, 333
(2013).
c. MARPC 4.1 (Truthfulness in Statements to Others)
MARPC 4.1(a) provides:
In the course of representing a client an attorney shall not knowingly:
(1) make a false statement of material fact or law to a third person; or
(2) fail to disclose a material fact when disclosure is necessary to
avoid assisting a criminal or fraudulent act by a client.
The hearing judge found that Mr. Taniform violated this Rule when he made
knowing and intentional material misrepresentations to Mr. Fon, Ms. Fongum, Ms.
Hargrove, and Bar Counsel about the Fon matter, and knowing and intentional material
misrepresentations to Felix in the Fozao matter.
Mr. Taniform contends that he did not violate this Rule because he did not make
willful and intentional misrepresentations for personal gain. For the reasons explained
above in the discussion about Mr. Taniform’s exceptions to the hearing judge’s factual
findings, we conclude that there is clear and convincing evidence to support the hearing
judge’s finding that Mr. Taniform violated this Rule.
33
d. MARPC 8.1 (Bar Admission and Disciplinary Matters)
MARPC 8.1 provides:
An applicant for admission or reinstatement to the bar, or an attorney 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
(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 19-301.6.
The hearing judge concluded Mr. Taniform violated MARPC 8.1(a) in his letter to
Bar Counsel by providing a false explanation to Bar Counsel for his misrepresentations to
Ms. Fongum, Ms. Hargrove, and Felix—namely, that he wrongly believed the motion had
been filed because his clients’ files had been misfiled in the completed files cabinet. The
hearing judge found that Mr. Taniform admitted he never checked the contents of Mr.
Fon’s file because he knew the motion to reopen was not in there and that he also admitted
that his statement to Bar Counsel for the Fozao matter was false. The hearing judge also
observed that Mr. Taniform never corrected his misrepresentations to Bar Counsel.
Similarly, the hearing judge found that Mr. Taniform violated Rule 8.1(b) when he
failed, in response to Bar Counsel’s inquiry, to provide his complete client file and trust
account records relating to his representation of Clovis.
Mr. Taniform excepts to the hearing judge’s conclusion that he violated this Rule,
again claiming that he did not undertake the wrongful actions for personal gain. But
whether he did so for personal gain is of no moment. We find that clear and convincing
34
evidence supports the hearing judge’s conclusion that Mr. Taniform violated this Rule in
his letters to Bar Counsel and in his failure to provide his client files and records.
e. MARPC 8.4 (Misconduct)
MARPC 8.4(c) states:
It is professional misconduct for an attorney to:
* * *
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation[.]
“As used in this Rule, a misrepresentation is made when the attorney knows the
statement is false, and cannot be the product of mistake, misunderstanding, or
inadvertency.” Attorney Grievance Comm’n v. Dore, 433 Md. 685, 698 (2013) (cleaned
up; quotations omitted). “Attorneys violate [MARPC] 8.4(c) when they misrepresent to
their clients the status of their clients’ cases, or conceal material information from their
clients, even if they have not misrepresented explicitly the information.” Attorney
Grievance Comm’n v. Mitchell, 445 Md. 241, 261 (2015) (quotation omitted).
Here, the hearing judge concluded that Mr. Taniform violated Rule 8.4(c) in the Fon
matter “each and every time he made a misrepresentation or misleading statement to Mr.
Fon about the status of his immigration case[,]” when he made misrepresentations to Ms.
Fongum and Ms. Hargrove, and when he made misrepresentations to Bar Counsel that
violated Rule 8.1(a). The hearing judge also concluded that Mr. Taniform violated Rule
8.4(c) in the Fozao matter when he knowingly and intentionally misrepresented to Felix
that Clovis’s case was going well.
35
Mr. Taniform excepts to these conclusions, arguing that there was not clear and
convincing evidence that he violated the Rule and that he did not make the representations
for personal gain. Here, again, the evidence supports the conclusion that Mr. Taniform
made misrepresentations to his clients, their families, and Ms. Hargrove about the status of
his clients’ cases, made misrepresentations to Bar Counsel about the cases, and concealed
material information from his clients. This is ample clear and convincing evidence to
support the hearing judge’s conclusion that this Rule was violated. See Mitchell, 445 Md.
at 261.
SANCTION
Having overruled Mr. Taniform’s exceptions and adopted the hearing judge’s
factual findings and conclusions of law, it falls upon us to determine the appropriate
sanction. In doing so, we are mindful that the purpose of sanctioning an attorney is to
protect the public from those unfit to practice law, not to punish the attorney. Attorney
Grievance Comm’n v. Karambelas, 473 Md. 134, 176-77 (2021). We consider a variety
of factors, including the rules that were violated, the mental state of the attorney, the
injuries, if any, caused by the attorney’s misconduct, and the relevant aggravating and
mitigating factors. Attorney Grievance Comm’n v. Allenbaugh, 450 Md. 250, 277 (2016).
The Commission recommends disbarment as the appropriate sanction. In contrast,
Mr. Taniform urges us to impose an indefinite suspension with the right to apply for
reinstatement after a defined period. Based on our consideration of the relevant facts and
circumstances, and guided by our prior decisions in comparable contexts, we shall impose
an indefinite suspension, with the right to apply for reinstatement after 18 months.
36
“The virtues of character, honesty, and integrity are the cornerstone of our legal
profession.” Attorney Grievance Comm’n v. Vasiliades, 475 Md. 520, 564 (2021). In
Attorney Grievance Commission v. Vanderlinde, 364 Md. 376, 418 (2001), we found that
disbarment is often the appropriate sanction when an attorney’s wrongful actions involve
dishonesty. We emphasized that:
[o]nly if the circumstances are that compelling, will we even consider
imposing less than the most severe sanction of disbarment in cases of
stealing, dishonesty, fraudulent conduct, the intentional misappropriation of
funds or other serious criminal conduct, whether occurring in the practice of
law, or otherwise.
Id. at 414; see also Attorney Grievance Comm’n v. Hamilton, 444 Md. 163, 200 (2015)
(finding that dishonesty alone could be the basis for disbarment).
In our recent decision in Attorney Grievance Commission v. Collins, 477 Md. 482,
529-30 (2022), we reexamined when intentional dishonest conduct warrants disbarment
under the standard set forth in Vanderlinde, 364 Md. at 376. There, we analyzed cases post-
Vanderlinde and observed that disbarment has generally been warranted in cases where the
intentional dishonest conduct has also been accompanied by “theft, fraud, harm to a client
or third party, or the intentional misappropriation of funds.” Collins, 477 Md. at 530.
But, when there has been no misappropriation of money, intentional dishonesty has
not always resulted in disbarment. See, e.g., Attorney Grievance Comm’n v. Keating, 471
Md. 614, 656 (2020) (sanctioning attorney to an indefinite suspension with the right to
reapply for reinstatement after six months after finding that the attorney, who had had a
long and respected career, acted without a selfish motive, and took action to try to mitigate
a potential conflict of interest and protect the interests of her client’s estate and legatees);
37
Attorney Grievance Comm’n v. Lane, 367 Md. 633, 646-47 (2002) (“We have not,
however, always found disbarment to be the appropriate sanction where there is
misrepresentation involved, especially where misappropriation of money was not
involved.”).
Determining the appropriate sanction is not a science. Far from it. There is no
algorithm to generate an appropriate sanction from the various combinations and
permutations of rule violations, mitigating and aggravating factors, and fact patterns. Thus,
as we have repeatedly said, each case must be assessed on its specific facts and
circumstances. See e.g., Attorney Grievance Comm’n v. Malone, ___ Md. ___, 2022 WL
17074738, at *22 (2022); Attorney Grievance Comm’n v. Bonner, 477 Md. 576, 621-22
(2022) (citing Attorney Grievance Comm’n v. Palmer, 417 Md. 185, 211 (2010)). We can,
of course, look for guidance in prior similar cases.
In recommending disbarment, the Commission relies on Attorney Grievance
Commission v. Park, 427 Md. 180 (2012). There, the respondent was retained by two
individuals to apply for “residence status, employment authorization, and other
immigration benefits.” Id. at 185. He failed to provide follow-up information requested
by the immigration authorities, failed to keep his clients informed, and otherwise neglected
his clients’ matters, resulting in the denial of his clients’ applications. Id. at 185-87. In
response to the bar complaint, the respondent initially informed Bar Counsel that he was
suffering from severe depression and partially responded to Bar Counsel’s request for
information. Id. at 186. But then he failed to respond to Bar Counsel’s follow-up letters.
Ultimately, he was found in violation of Rules 1.1, 1.3, 1.4, 1.16, and 8.4. Id. at 187.
38
We observed that prior cases based on similar facts supported the sanction of
disbarment, and we noted that “[i]n the absence of mitigation (as here), disbarment is the
appropriate sanction when an attorney abandons a client by failing to pursue the client’s
interests, failing to communicate with the client, ignoring a client’s repeated requests for
status updates, terminating the representation without notice by failing wholly to provide
effective services, and failing to return unearned fees.” Id. at 196. Although Mr. Taniform
did prove mitigating factors, Bar Counsel’s reliance on Park is certainly not misplaced.
Bar Counsel also relies on Attorney Grievance Comm’n v. Thomas, 440 Md. 523(2014). There, the respondent was retained to represent an immigration client in removal
proceedings. Id. at 531-32. He filed an untimely application for asylum in the wrong
forum. Id. at 532. He then told his client not to appear at the client’s scheduled removal
hearing because he said that it was canceled. Id. In reality, the hearing had not been
canceled, and at the hearing, the client was ordered to be removed in absentia. Id.Subsequently, the respondent failed to respond to the multiple attempts to contact him and
also failed to inform his client of the status of his case. Id. After the client submitted a
complaint to Bar Counsel, the respondent failed to respond to Bar Counsel’s requests for
information. Id. Ultimately, he was found to have violated Rules 1.1, 1.3, 1.4, 8.1, and
8.4. Id.In determining the appropriate sanction, we first recognized that because the
respondent did not participate in the proceedings, there were no mitigation factors to
consider, and then determined that the relevant aggravating factors were (1) bad faith
obstruction of the disciplinary proceedings, (2) refusal to acknowledge the wrongful
39
conduct, (3) vulnerability of the victim, and (4) indifference to making restitution. Id. at
557. We observed that “[d]isbarment is warranted in cases involving flagrant neglect of
client affairs, including the failure to communicate with clients or respond to inquiries from
Bar Counsel.” Id. at 558. Because the respondent “failed to communicate with his client,
failed to complete any of the work that he was retained to complete, and failed to participate
in these proceedings in any way[,]” we determined that disbarment was the appropriate
sanction. Id. Again, Bar Counsel’s reliance on Thomas is reasonable.
In addition to Park and Thomas, there are other cases involving client neglect and
misrepresentation that could support the sanction of disbarment, many of which are
summarized in Attorney Grievance Comm’n v. Shapiro, 441 Md. 367, 396-405 (2015)
(discussing Lane, 367 Md. 633, Attorney Grievance Comm’n v. Brown, 426 Md. 298(2012), Attorney Grievance Comm’n v. Lawson, 428 Md. 102 (2012), Attorney Grievance
Comm’n v. Pennington, 387 Md. 565 (2005), Attorney Grievance Comm’n v. Davy, 435
Md. 674 (2013), and Attorney Grievance Comm’n v. Steinberg, 432 Md. 471 (2013)).
And, of course, there is no shortage of cases of serious client neglect or
abandonment, including some that involved intentional dishonesty, in which we stopped
short of disbarring the attorney in favor of an indefinite suspension. See, e.g., Attorney
Grievance Comm’n v. Lee, 393 Md. 546, 557, 567 (2006) (indefinite suspension for
violations of Rules 1.3, 1.4(a)(2), 1.4(a)(3), 1.16(d), 3.2, 8.1(b), and 8.4(d)); Attorney
Grievance Comm’n v. David, 331 Md. 317, 318-19, 324 (1993) (indefinite suspension with
right to apply for reinstatement after six months for violating Rules 1.1, 1.3, 1.4(a), 1.5(a),
1.15(b), 1.16(d), 5.3(b), 8.1(a), 8.1(b), 8.4(c) and 8.4(d)); Attorney Grievance Comm’n v.
40
Mooney, 359 Md. 56, 97-98 (2000) (indefinite suspension with right to apply for
reinstatement after 90 days for violating Rules 1.1, 1.3, 1.4(a)(2), 1.4(a)(3), 1.4(b), 5.1(a),
5.3(b) 8.4(c), and 8.4(d)); Attorney Grievance Comm’n v. Sperling, 432 Md. 471 (2013)
(indefinite suspension for client neglect, and misrepresentations to client and the court).
In settling upon a sanction of indefinite suspension, we find five cases particularly
helpful. In Attorney Grievance Comm’n v. Garfield, 369 Md. 85 (2002), we sanctioned an
attorney to an indefinite suspension with the right to reapply after thirty days for violations
of Rules 1.1, 1.3, 1.4, 1.16, and 8.4. There, the attorney neglected his professional
responsibilities to his clients, resulting in cases being dismissed for want of prosecution
and barred by the statute of limitations. Id. at 92. In mitigation, the attorney established
that his misconduct was directly attributable to the fact that he had been abusing drugs. Id.
at 94. He cooperated with Bar Counsel, apologized for his failings, and offered to make
his clients whole. Id. In sanctioning him, we recognized that the attorney had a long and
otherwise reputable career and stated: “‘[w]e are not unmindful of the benefits of returning
a rehabilitated attorney to the productive practice of law,’ and recognize that we ‘could be
doing a disservice by forever barring’ Respondent from ‘returning to the practice of law’
or by prolonging his absence to such an extent that it would be difficult for him to
return.” Id. at 107 (quoting Attorney Grievance Comm’n v. Goldsborough, 330 Md. 342,
365 (1993)).
In Attorney Grievance Comm’n v. Landeo, 446 Md. 294 (2016), in her
representation of multiple immigration clients, Ms. Landeo:
41
failed to provide competent representation; failed to provide diligent
representation in time-sensitive immigration matters and waited months to
file documents in three separate immigration cases; failed to keep her clients
reasonably informed about the status of their matters, promptly comply with
her clients’ reasonable requests for information, and explain matters to the
extent reasonably necessary to permit her clients to make informed decisions
regarding the representation; charged and collected attorney’s fees for
services that she failed to provide to any meaningful degree or at all; failed
to deposit attorney’s fees and filing fees into an attorney trust account; failed
to deposit attorney’s fees into an attorney trust account prior to those fees’
being earned and without the clients’ informed consent, confirmed in writing,
to a different arrangement; failed to reasonably protect her clients’ interests
and timely surrender papers and property to which the clients were entitled;
and engaged in conduct that would negatively impact the perception of the
legal professional of a reasonable member of the public.
Id. at 304. As a result, we found that she violated Rules 1.1, 1.3, 1.4, 1.15, 1.16, and 8.4.
Among the harms suffered by her clients, one client was deported. Id. at 317, 349-50.
We found that Ms. Landeo “acted intentionally in depositing her clients’ attorney’s
fees and filing fees into an account other than an attorney trust account, and that [she], at a
minimum, acted negligently, if not knowingly, in failing to provide competent and diligent
representation and in failing to adequately communicate with her clients.” Id. at 349-50.
We noted that her representation could be characterized “as being ‘marked by serious
neglect and inattention.’” Id. at 353 (quoting David, 331 Md. at 323). We found only one
mitigating factor, the absence of prior attorney discipline, and five aggravating factors: the
vulnerability of the victims, multiple violations, refusal to acknowledge her misconduct’s
wrongful nature, a pattern of misconduct, and substantial experience in the practice of law.
Id. at 350-53.
After reviewing sanctions in similar cases (including Lee, David, and Mooney,
among others), we concluded that “although certainly egregious and displaying a gross
42
lack of competence, and a pattern of lack of diligence and adequate communication, [her]
misconduct did not rise to a level warranting disbarment.” Id. at 354.
Another instructive case is Attorney Grievance Comm’n v. Riely, 471 Md. 458(2020). There, we sanctioned an immigration attorney to an indefinite suspension with the
right to apply for reinstatement after one year. Id. at 506. He had been a practitioner for
over 35 years. Id. at 466. Late in his career, however, he neglected two of his clients,
which “at least temporarily put those clients at risk of removal from the United States.” Id.
at 466. He also made misrepresentations to one client, an ICE agent, and Bar Counsel. Id.We found that his actions violated Rules 1.1, 1.3, 1.4, 1.16, 4.1, 8.1, and 8.4. Id. at 500-
01.
We also found several mitigating factors: no prior disciplinary record, good
character and reputation, remorse, cooperating with Bar Counsel, and good faith efforts to
rectify his misconduct. Id. at 501-02. Ultimately, we concluded that Mr. Riely’s
misconduct “was not motivated by a lawyer’s decision to profit at the expense of his clients,
but began as a failure to attend to the details of the matters he had agreed to undertake on
behalf of those clients and, most seriously, his effort to minimize and conceal his own
mistakes in that regard.” Id. at 505.
In Riely, we found instructive Attorney Grievance Comm’n v. Koven, 361 Md. 337(2000), a case with similar facts. Riely. 471 Md. at 505-06. In Koven, although the
attorney:
was paid his full fee for that work, [he] prepared only two of [three]
applications [for alien labor certifications] and never filed any of them. He
lied repeatedly to the clients that he had made the filings and created fictitious
43
documents to lead them to believe that the government was processing their
applications. When his representation was terminated, he never refunded the
money that he had been paid. Nor did he cooperate with successor counsel
or Bar Counsel.
Riely, 471 Md. at 506 (citing Koven, 361 Md. 337)). Mr. Koven violated the same rules
that Mr. Riely violated plus Rule 8.4. We indefinitely suspended Mr. Koven with the right
to reapply for reinstatement after two years.
Using our sanction in Koven as a guidepost, we concluded that Mr. Riely’s conduct
was comparatively less egregious, and therefore settled on a shorter wait period (one year)
before he could apply for reinstatement. Id. at 506.
In Attorney Grievance Comm’n v. Shapiro, 441 Md. at 376, we indefinitely
suspended an attorney who failed to inform his client that the Health Claims Arbitration
Office had dismissed her claim due to his failure to attach a Certificate of Merit. We found
that he violated Rules 1.2, 1.3, 1.4, 1.8, 1.16, and 8.4. He concealed this information for
five years and led his client to believe that the case was proceeding. Id. He also falsely
claimed that a settlement had been reached, met with his client about this fictional
settlement, and then advised her that he did not have the money she was to receive from
the settlement. Id. After analyzing several similar cases where the attorney had made
misrepresentations, we found that the appropriate sanction was an indefinite suspension.
Id. at 408.
In determining the appropriate sanction, we noted that the attorney’s actions
involved only one client and that no misappropriation of money was involved.
Recognizing that the sanction must be tailored to the specifics of the case, we stated:
44
we tend to favor disbarment when attorneys’ misrepresentations and
deceitful actions are committed against multiple clients, are paired with
violations of the rules pertaining to the proper handling of client or third party
money or property, or are joined with a large number of other violations
(whether of the M[A]RPC or the Maryland Code).
Id. at 399. Thus, notwithstanding the gravity of the misconduct, we concluded that an
indefinite suspension was more appropriate than disbarment under the facts of that case.
We also indefinitely suspended the attorney in Attorney Grievance Comm’n v.
Reinhardt, 391 Md. 209 (2006). There, the attorney lost a client’s file, failed to take any
action on the case after filing the complaint, and misrepresented to his client that he was
working on the case. Id. at 220. He contended that he did not inform the client about the
lost file because he was embarrassed and that he frequently looked for the file. Id. at 224.
We determined that his actions failed to evidence “that he acted out of a fraudulent or
selfish motive.” Id. Because his conduct involved only one client and one case and because
no misappropriation of funds or criminal conduct was involved, we found that an indefinite
suspension was the appropriate sanction. Id. at 227.
Armed with these cases as a guide, we now turn to the specific facts and
circumstances of Mr. Taniform’s case. Mr. Taniform’s transgressions involved intentional
dishonesty on matters going to the heart of the representation of his clients, including the
status of their matters and his actions. He knowingly and intentionally misrepresented facts
to his clients, their representatives, and Bar Counsel. He failed to promptly refund money
to his clients, failed to properly communicate with them, and, as he acknowledged,
neglected his clients’ matters and provided incompetent representation.
45
The aggravating factors of a dishonest or selfish motive, a pattern of misconduct,
and the victims’ vulnerability were established. And, we hasten to point out, even if Mr.
Taniform’s clients were not or are not ultimately deported—about which we can only
speculate—we have no difficulty finding that Mr. Taniform’s misconduct did, indeed,
harm his clients. They were lied to, their cases were compromised, and the uncertainty and
delays resulting from Mr. Taniform’s misconduct undoubtedly amplified the anxiety that
any immigration client would reasonably expect to endure. Disbarment would not be out
of the realm of reasonableness here.
.That said, the nature of the dishonesty and the mitigating factors present here nudge
us toward a slightly less severe sanction. Mr. Taniform’s misrepresentations were made in
two cases, when he was less than three years out of law school, and while he was
experiencing personal or emotional problems. He has not been previously disciplined. Mr.
Taniform had little experience or training in running a law practice and was experiencing
personal or emotional problems. Although the hearing judge reasonably found the
aggravating factor of a selfish or dishonest motive, we are mindful that he did not commit
his misconduct to profit at the expense of his clients, but rather, like Mr. Shapiro, because
he “created a lie that snowballed over time.” See Shapiro, 441 Md. at 407. In that regard,
he ultimately, though belatedly, refunded the unearned fees to both clients. He did not
engage in misappropriation, make a misrepresentation to a court, or commit any criminal
offense. And finally, we ascribe great significance to the hearing judge’s finding that Mr.
Taniform is unlikely to repeat the misconduct in the future if he continues receiving
counseling and implements a system for tracking cases and deadlines. In sum, the
46
circumstances presented here differ from those in recent years in which the Vanderlinde
standard has been triggered, resulting in disbarment.
Accordingly, we shall indefinitely suspend Mr. Taniform with the right to apply for
reinstatement after 18 months with the following two conditions. First, Mr. Taniform must
demonstrate by a report of a mental health care professional, pre-approved by Bar Counsel,
that he is capable of resuming the practice of law. The health care professional’s report
shall include a description of any necessary counseling or treatment plan. Any
disagreement between Mr. Taniform and Bar Counsel over the approval of such mental
health care professional shall be decided by this Court. Second, Mr. Taniform shall engage
an attorney monitor for a one-year period upon reinstatement to the practice of law in
Maryland.
IT IS SO ORDERED; RESPONDENT
SHALL PAY ALL COSTS AS TAXED BY
THE CLERK OF THIS COURT,
INCLUDING COSTS OF ALL
TRANSCRIPTS, PURSUANT TO
MARYLAND RULE 19-709(d), FOR
WHICH SUM JUDGMENT IS ENTERED
IN FAVOR OF THE ATTORNEY
GRIEVANCE COMMISSION AGAINST
TERENCE TANIFORM.
47
Circuit Court for Montgomery County
Case No.: C-15-CV-21-000238
Argued: October 3, 2022
IN THE SUPREME COURT
OF MARYLAND*
Misc. Docket AG No. 40
September Term, 2021
ATTORNEY GRIEVANCE COMMISSION
OF MARYLAND
v.
TERENCE TANIFORM
Fader, C.J.,
Watts,
Hotten,
Booth,
Biran,
Gould,
Eaves,
JJ.
Concurring Opinion by Booth, J.
Filed: December 16, 2022
*At the November 8, 2022 general election, the
voters of Maryland ratified a constitutional
amendment changing the name of the Court of
Appeals of Maryland to the Supreme Court of
Maryland. The name change took effect on
December 14, 2022.
1
I concur with all aspects of the Majority’s opinion concerning the findings of fact,
conclusions of law, and the appropriate sanction to be imposed in this case. I write
separately to express my views on an issue that is not presented to the Court because neither
party chose to raise it, and it is therefore waived. See Maj. Slip Op. at 2 n.2. That said, I
feel compelled to register my concern over the application of the choice of law provision
set forth in the Maryland Attorneys’ Rule of Professional Conduct (“MARPC”) 19-
308.5(b) (hereinafter “Rule 8.5(b)”). In this case, the Office of Bar Counsel’s charges filed
in its petition, its presentation to the hearing judge (including its proposed findings of fact
and conclusions of law), and the hearing judge’s consideration of the choice of law issue
did not comply with Rule 8.5(b) and this Court’s discussion and holdings in Attorney
Grievance Commission v. Tatung, 476 Md. 45 (2021), and Attorney Grievance
Commission v. Bonner, 477 Md. 576 (2022). I write to express my view on how Bar
Counsel should file charges when another jurisdiction’s professional rules are required to
be applied under Rule 8.5(b), how the charges should be presented to the hearing judge,
and how the hearing judge should consider and apply them.
The Attorney Grievance Commission’s Filing of Charges and Bar Counsel’s
Presentation of this Case
This case involved two matters arising in connection with federal immigration
proceedings. As we discussed in detail in Tatung, the Executive Office of Immigration
Review (“EOIR”) of the United States Department of Justice has promulgated regulations
“to establish uniform regulations that govern the professional conduct of immigration
attorneys and to ensure that the regulations are applied in a manner consistent with state
disciplinary authorities having jurisdiction over the same conduct.” 476 Md. at 86. These
regulations (hereinafter referred to as the “federal immigration professional”) are codified
at 8 C.F.R. pt. 1003.
As more fully discussed in the Majority’s opinion, the matters which formed the
basis for the charges filed in this case arose from Mr. Taniform’s representation of clients
in two separate immigration proceedings. In connection with these immigration matters,
the Attorney Grievance Commission, through Bar Counsel, charged Mr. Taniform with
violating the MARPC. In its petition for disciplinary or remedial action, Bar Counsel laid
out the MARPC as the operative rules to be applied. In an alternative-style pleading, Bar
Counsel charged Mr. Taniform with violating corresponding federal immigration
professional rules, in the event this Court determined that “the federal immigration
professional rules apply to any or all of the Respondent’s conduct” under Maryland Rule
8.5(b).
On the first day of the hearing, Assistant Bar Counsel stated that the Commission
had charged Mr. Taniform with violations of “the corresponding [] federal immigration
rules regarding professional conduct for practitioners” and asked the hearing judge “to
make findings under both the Maryland Rules and their corresponding immigration rules.”
On the second day, Assistant Bar Counsel reiterated that she was asking the hearing judge
to make findings under both sets of rules. She went on to state, “[h]owever, because both
sets of rules overlap, there’s a lot of overlap, I only plan to really address the Maryland
attorneys’ rules of professional conduct in closing today, with the understanding that the
facts that establish those rule violations also establish rule violations of the corresponding
2
federal immigration rules.” On neither day did Assistant Bar Counsel address, nor make
arguments specific to, the federal immigration professional rules.
After the hearing in this matter, as is its custom and practice, the Office of Bar
Counsel submitted proposed findings of fact and conclusions of law to the hearing judge.
Once again, Bar Counsel featured the MARPC as the professional rules to be applied by
the hearing judge, but recited corresponding federal immigration professional rules, “in the
event the Court of Appeals determined, pursuant to [Rule 8.5(b)] that the federal
immigration [professional] rules” applied. Bar Counsel did not undertake any analysis as
far as which rules were the operative rules for the hearing judge to apply, but instead sought
to have the hearing judge make conclusions under both sets of rules for some of the
immigration related matters (such as the competence, diligence, and communication
violations).
Then, on other matters—and for reasons that are unclear to me—Bar Counsel’s
proposed conclusions of law only refer to violations of the Maryland Rule, with no
reference to a corresponding federal immigration professional rule, even though there is
very clearly a federal counterpart. For example, Bar Counsel’s proposed conclusions assert
that Mr. Taniform violated Maryland Rule 8.4(c) in connection with his representation of
his clients in immigration proceedings with no reference to the corresponding federal
immigration professional rule. As we observed in Tatung, 476 Md. at 86–87, the
corresponding federal immigration professional rule appears to be different from Maryland
Rule 8.4(c). Compare 8 C.F.R. § 1003.102(c) (stating that a professional violates the
federal immigration professional rules where he or she “[k]nowingly or with reckless
3
disregard makes a false statement of material fact or law, or willfully misleads, misinforms,
threatens, or deceives any person . . . concerning any material and relevant matter related
to a case, including knowingly or with reckless disregard offering false evidence[]”), with
Rule 8.4(c) (stating that it is “professional misconduct for an attorney to: . . . engage in
conduct involving dishonesty, fraud, deceit or misrepresentation[]”). As discussed below,
Bar Counsel’s proposed conclusions of law embrace a mix and match approach, which this
Court expressly rejected in Tatung and Bonner.
Hearing Judge’s Findings of Fact and Conclusions of Law
When faced with the alternative charges under two separate sets of professional
rules, the hearing judge determined that “the conduct is covered by the Maryland Rules so
imposing the Federal Rules would duplicate coverage rather than covering a different
behavior or conduct.” The hearing judge then concluded that, because “the findings of
fact” for violations of the federal immigration professional rules “would be the same” as
the findings necessary to establish a violation of the MARPC, she would proceed to make
findings exclusively under the MARPC. For the reasons explained more fully below, the
hearing judge’s analysis was incorrect under Rule 8.5(b) and this Court’s holding in
Tatung.
Rule 8.5(b)
We recently described the genesis of Maryland’s choice of law rule that applies to
allegations of an attorney’s professional misconduct—Maryland Rule 8.5(b)—in Tatung.
476 Md. at 74-75. It was added by a rules order of this Court in February 2005 in light of
changes that were made in 2000 to the ABA Model Rules. Id.
4
Maryland Rule 8.5(b) states:
In any exercise of the disciplinary authority of this State, the rule of
professional conduct to be applied shall be as follows:
(1) for conduct in connection with a matter pending before a tribunal, the
rules of the jurisdiction in which the tribunal sits, unless the rules of the
tribunal provide otherwise; and
(2) for any other conduct, the rules of the jurisdiction in which the attorney’s
conduct occurred, or, if the predominant effect of the conduct is in a
different jurisdiction, the rules of that jurisdiction shall be applied to the
conduct. An attorney shall not be subject to discipline if the attorney’s
conduct conforms to the rules of a jurisdiction in which the attorney
reasonably believes the predominant effect of the attorney’s conduct will
occur.
(Emphasis added).
Rule 8.5(b) “establishes the set of professional conduct rules that apply when an
attorney practices in more than one jurisdiction—either by virtue of their physical presence
or contacts with a particular jurisdiction, or their license to practice in more than one
jurisdiction.” Tatung, 476 Md. at 77. In either circumstance, comment 2 explains that
“[a]n attorney may be potentially subject to more than one set of rules of professional
conduct that impose different obligations.” Maryland Rule 8.5, cmt. 2. The choice of law
provisions established by Rule 8.5(b) recognize that “[t]he attorney may be licensed to
practice in more than one jurisdiction with differing rules, or may be admitted to practice
before a particular court with rules that differ from those of the jurisdiction or jurisdictions
in which the attorney is licensed to practice.” Id. “Additionally, the attorney’s conduct
may involve significant contacts with more than one jurisdiction.” Id.
5
Comment 3 explains that subsection (b) “seeks to resolve such potential conflicts”
in professional conduct rules between jurisdictions based upon the “premise . . . that
minimizing conflicts between the rules, as well as uncertainty about which rules are
applicable, is in the best interest of both clients and the profession (as well as the bodies
having authority to regulate the profession).” Maryland Rule 8.5, cmt. 3. Accordingly,
subsection (b)
takes the approach of (i) providing that any particular conduct of an attorney
shall be subject to only one set of rules of professional conduct, (ii) making
the determination of which set of rules applies to particular conduct as
straightforward as possible, consistent with recognition of appropriate
regulatory interests of relevant jurisdictions, and (iii) providing protection
from discipline for lawyers who act reasonably in the face of uncertainty.
Id. (emphasis added).
As we noted in Tatung, “Rule 8.5(b) divides multi-jurisdictional conduct into two
categories—conduct that occurs in connection with a matter pending before a tribunal, and
‘other’ conduct.” 476 Md. at 77 (quoting Rule 8.5(b)(2)). We pointed out that “Rule
8.5(b)(1) states that when misconduct occurs in connection with a matter pending before a
tribunal, the disciplinary authority ‘shall’ apply the professional conduct rules of the
jurisdiction in which the tribunal sits, unless the tribunal’s own rules specify otherwise.”
Id. at 78 (quoting Rule 8.5(b)(1)). We observed that “[t]he plain language of subsection
(b)(1)—which mandates the application of the rules of the tribunal where the conduct
occurred—is confirmed by comment 4 (explaining that, where the ‘attorney’s conduct
relat[es] to a proceeding pending before a tribunal, the attorney shall be subject only to the
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rules of professional conduct of that tribunal’)[.]” Id. (alterations in original) (quoting
Rule 8.5(b)(1), cmt. 4).
We then discussed Rule 8.5(b)(2), which “applies to ‘other conduct’—in other
words, conduct that does not occur in connection with a matter pending before a tribunal.”
Id. at 79 (emphasis in original). In such instances, we observed that “the disciplinary
authority of this State ‘shall’ apply ‘the rules of the jurisdiction in which the attorney’s
conduct occurred or, if the predominant effect of the conduct is in a different jurisdiction,
the rules of that jurisdiction shall be applied to the conduct.’” Id. (emphasis in original)
(quoting Rule 8.5(b)(2)).
Application of Rule 8.5(b) in Tatung
In Tatung, Bar Counsel charged the attorney with violating the MARPC for alleged
misconduct in immigration proceedings. Mr. Tatung filed a motion to dismiss the charges,
on the basis that Bar Counsel was required to charge him under Rule 8.5(b) with violating
the federal immigration professional rules, instead of the MARPC. In connection with our
consideration of the parties’ exceptions and our determination of the sanction to impose,
we considered Mr. Tatung’s choice of law argument. Bar Counsel argued that it did not
need to apply the federal immigration professional rules to the underlying conduct
involving immigration proceedings because the federal immigration professional rules and
the MARPC were consistent with one another. Stated another way, Bar Counsel asserted
that, where the conduct involves another tribunal or jurisdiction, it is only required to apply
the rules of the alternative jurisdiction when there is a conflict. 476 Md. at 73.
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We expressly rejected Bar Counsel’s interpretation of Rule 8.5(b) as being
inconsistent with the plain language of the rule, as well as the comments. We stated that
“[t]he rule does not give the disciplinary authority the discretion to apply the rules of
another tribunal jurisdiction only in the event of a conflict.” Id. at 87 (emphasis in original).
We reiterated that “the Maryland Rules are ‘precise rubrics’ which are to be strictly
followed.” Id. at 87–88 (quoting Gen. Motors Corp. v. Seay, 388 Md. 341, 344 (2005);
and then citing Maryland Rule 1-201(a) (explaining that, “[w]hen a rule, by the word ‘shall’
or otherwise, mandates [] conduct, . . . the court may compel compliance with the rule or
may determine the consequences of the noncompliance in light of the totality of the
circumstances and the purpose of the rule []”)).
In Tatung, we observed that Mr. Tatung’s conduct all occurred “in connection with
federal immigration proceedings in Texas.” 476 Md. at 72. We further determined that,
even where Mr. Tatung’s conduct did not physically occur in Texas, the conduct
nevertheless occurred “in connection with” the Texas immigration proceeding. Id. at 82.
Accordingly, we determined that the federal immigration professional rules applied and
governed the conduct. Id.
We further stated that “[o]ur interpretation of Rule 8.5(b) [] ensures that, where an
attorney’s misconduct triggers jurisdiction and oversight by more than one disciplinary
authority, the attorney is treated fairly and uniformly by each jurisdiction, as contemplated
by the comments” to Rule 8.5(b). Id. at 88. We pointed out, for example, that “Mr.
Tatung’s conduct could be the subject of several disciplinary proceedings—in Maryland
(where he [was] not licensed but maintain[ed] a physical office), in the District of Columbia
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(where he [was] licensed), in a [Board of Immigration Appeals (“BIA”)] disciplinary
proceeding (where the conduct arose), or even in Texas (the state in which the conduct
occurred).” Id. (brackets added) (emphasis in original). And in fact, that is precisely what
occurred in Mr. Tatung’s situation. Upon learning that Mr. Tatung was not licensed in
Maryland, his clients “withdrew their Maryland complaints and re-filed in the District of
Columbia.” Id. We noted that comment 6 instructs that it is “important for the disciplining
jurisdictions to apply the same professional rules to the alleged misconduct to avoid any
inconsistencies.” Id. (citing Rule 8.5, cmt. 6).
Applying the choice of law provision to Mr. Tatung’s conduct, we determined that
the federal immigration professional rules promulgated under 8 C.F.R. § 1003.102 clearly
applied to the proceedings before the federal immigration tribunal. Id. at 89. We held that,
“[u]nder Rule 8.5(b)(1), any charges filed by the Commission for misconduct arising in
connection with the matter pending before the tribunal should have been filed under those
rules.” Id. (emphasis added). We further determined that:
even if the misconduct did not arise during a court proceeding (for example,
negotiating a fee agreement for representation in the immigration
proceedings), the misconduct occurred “in connection with” the federal
immigration proceeding. Moreover, even if the conduct had not fallen within
Rule 8.5(b)(1), the conduct would have been subject to the “predominant
effect” test under Rule 8.5(b)(2). Maryland’s connection to the specific
conduct in this case is limited to Mr. Tatung having a physical office in
Maryland (where he exclusively practices immigration law). The clients and
their relatives were not Maryland residents, Mr. Tatung did not meet with
them in the State, and the conduct occurred exclusively in a federal
immigration court in Texas.
Id. We held that, although the Commission “ha[d] jurisdiction to investigate and ultimately
sanction Mr. Tatung for any misconduct pursuant to Maryland Rule 8.5(a), under the
9
choice of law provisions set forth in Rule 8.5(b), the MARPC does not apply to the alleged
conduct involving Mr. Tatung’s representation of his clients in the federal immigration
proceeding.” Id. at 89-90. We held that “[u]nder Rule 8.5(b)(1), the Commission was
required to charge Mr. Tatung under the federal immigration professional rules.” Id. at 90(emphasis added).
We provided some additional guidance to the Office of Bar Counsel and
respondents. First, we observed that where the choice of law issue “is not properly raised,
it will be deemed to be waived.” Id. Second, we pointed out that, “with respect to the
application of the federal regulations in immigration proceedings, the regulations
specifically contemplate that the rules contained therein may be supplemented by a state’s
professional conduct rules.” Id. (emphasis in original) (citing 8 C.F.R. § 1003.102(explaining that the enumerated “categories do not constitute the exclusive grounds for
which disciplinary sanctions may be imposed by the public interest[]”)). “So, for example,
if an immigration attorney who is licensed in Maryland commits violations of our
professional conduct rules related to trust account violations, in addition to filing charges
under the federal disciplinary rules contained in 8 C.F.R. § 1003.102, the attorney may also
be charged with violating MARPC 1.15(a) because the federal regulations do not contain
any counterpart to that rule.” Id. at 90–91.
Third, we cautioned that our dismissal of the charges in the Tatung matter “should
not be construed as precedent for the notion that we will dismiss attorney misconduct
charges in any instance where the Commission files charges under one set of professional
conduct rules and a subsequent determination is made by this Court that the choice of law
10
provisions in Rule 8.5(b) mandated the application of the professional rules of another
jurisdiction or tribunal.” Id. at 91. As we explained,
the substance of the professional conduct rules, in most instances, is the
same. A competence violation under our MARPC will be, in almost every
instance, a competence violation of the rules of another jurisdiction. Given
that these professional rules have been enacted for the protection of the
public, we do not and will not dismiss charges lightly. As part of our original
jurisdiction over these matters, we have the authority to remand a case to the
hearing judge for further proceedings where we determine it is appropriate.
See Rule 19-741(c), Rule 1-201(a) (explaining that where a rule, by the word
“shall” mandates certain conduct (such as the application of the choice of law
provisions), we may “consider the consequences of noncompliance in light
of the totality of the circumstances and the purpose of the rule”).
Id. Under the particular facts of Tatung, we determined that dismissal of the charges was
appropriate because we concluded, “based upon our independent review of the record[,]
that, had we not dismissed the[] charges, we would have sustained most of Mr. Tatung’s
exceptions, and we conclude[d] that the handful of careless mistakes that he made would
not have resulted in a sanction of more than a public reprimand.” Id. at 91–92.
Application of Rule 8.5(b) in Bonner
We discussed the application of Rule 8.5(b) once again in Bonner, 477 Md. 576. In
that case, the Commission, acting through Bar Counsel, filed a petition for disciplinary or
remedial action against Keith Bonner, alleging violations of the MARPC. 477 Md. at 582-
83. Presumably in response to our decision in Tatung, Bar Counsel filed an amended
petition, charging Mr. Bonner with violations of corresponding rules under the District of
Columbia Rules of Professional Conduct (hereinafter the “D.C. Rules”). Id. at 583. In a
similar manner to the charges filed in the instant case, Bar Counsel filed charges under the
D.C. Rules in the alternative to the corresponding charges filed under the MARPC. Id.
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Following a hearing, the judge issued written findings of fact and conclusions of law. Id.
at 583–84. In his findings, the hearing judge correctly considered and applied the choice
of law provisions in Maryland Rule 8.5(b) and determined that the D.C. Rules applied to
Mr. Bonner’s conduct because the “predominant effect of the conduct” occurred in the
District of Columbia. The hearing judge concluded that Mr. Bonner violated D.C. Rule
8.4(a), (b), and (c), and correctly made conclusions of law under the D.C. Rules. Id. at 584.
Bar Counsel filed an exception to the hearing judge’s failure to make legal
conclusions under both the Maryland Rules and the D.C. Rules that were pleaded in the
alternative. Id. at 597–98. We overruled Bar Counsel’s exception. We restated the same
principles pertaining to the correct application of Md. Rule 8.5(b) that we had expressed in
Tatung. We reiterated that under the plain language of the rule, as well as the comments
to the rule, only “one set of professional rules should apply to a particular act or acts of
conduct.” Id. at 598 (emphasis in original). We emphasized that “[t]he overarching
principle behind Maryland Rule 8.5(b) is to ensure the consistent application of one set of
ethics rules where the misconduct is potentially subject to two sets of rules.” Id. at 599
(emphasis in original).
We explained that
it was appropriate for Bar Counsel to file charges under the D.C. Rules, and
for the hearing judge to apply the same, given that the predominant effect of
Mr. Bonner’s misconduct occurred in the District of Columbia. However,
given Bar Counsel’s filing of charges under the D.C. Rules (albeit pleaded
“in the alternative” to the Maryland Rules), and the hearing judge’s correct
application of those rules, it was unnecessary for the hearing judge to also
render legal conclusions under the corresponding Maryland Rule based upon
the same underlying misconduct. The comments to the Rules expressly
contemplate that only one set of ethics rules will apply to particular acts of
12
misconduct. Where particular misconduct is identified and charged, the
conduct should be subject to the application of only one set of professional
rules. To hold otherwise would be to create situations where more than two
sets of rules apply to the same discrete acts of misconduct, and with
potentially inconsistent results, particularly where the professional rules are
not identical.
Id. at 600.
To illustrate the potential unfairness or conflict with Bar Counsel’s attempt to
charge Mr. Bonner under two separate sets of professional rules for the same conduct, we
observed that the charges filed “in the alternative” by Bar Counsel— in that case under
D.C. Rule 8.4(d) and Maryland Rule 8.4(d)—contained different standards. Id. We
observed that “Maryland Rule 8.4(d) appears to be a watered-down version of D.C. Rule
8.4(d).” Id. (comparing Maryland Rule 8.4(d) (“[i]t is professional misconduct for an
attorney to: [] engage in conduct that is prejudicial to the administration of justice[]”
(emphasis added)), with D.C. Rule 8.4(d) (“[i]t is professional misconduct for a lawyer to:
[] engage in conduct that seriously interferes with the administration of justice[]”
(emphasis added))). We observed that “Bar Counsel withdrew its charge under D.C. Rule
8.4(d) presumably because it is not identical to Maryland Rule 8.4(d) as far as the nature
and degree of misconduct required to prove a violation.” Id.
We specifically rejected Bar Counsel’s argument that the hearing judge erred by
failing to render legal conclusions concerning Maryland Rule 8.4(d) under Bar Counsel’s
alternative style pleading. We stated that, “[t]o permit Bar Counsel to charge, and a hearing
judge to apply, in a mix and match fashion, two sets of professional rules to the same acts
of misconduct is inconsistent with the plain language and purpose of Maryland Rule
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8.5(b)—which is to apply one set of professional rules to particular misconduct.” Id.
at 600–01 (emphasis in original).
In support of its argument that the hearing judge erred in failing to make legal
conclusions pertaining to the violations of the Maryland Rules, Bar Counsel directed us to
Maryland Rule 19-727(e), which provides that the hearing judge is required to “prepare
and file a written statement which shall contain [] findings of fact and conclusion of law as
to each charge.” Id. at 601 n.13. We stated that, “[a]lthough Bar Counsel correctly cites
to the legal rule concerning the hearing judge’s obligation, that rule must be read
consistently with the choice of law provisions contained in Maryland Rule 8.5(b), which
requires that one set of professional rules apply to the misconduct alleged.” Id. We
determined that “[i]t would be inconsistent with the plain language of the choice of law
provisions contained in Maryland Rule 8.5(b) for the hearing judge to apply the D.C. Rules
and the Maryland Rules to the same underlying misconduct.” Id.
We explained, however, that “if a petition involves charges involving separate acts
of misconduct, each separate act of misconduct may involve the application of a separate
set of professional rules.” Id. For example, we explained that “in Tatung, we applied the
federal []immigration [professional] rules to the attorney’s conduct arising from his
representation of clients in federal immigration proceedings and applied the Maryland
Rules to separate allegations of misconduct arising from the disciplinary proceeding
itself.” Id. (emphasis in original) (citing Tatung, 476 Md. at 92–93). We observed that “it
was appropriate in Tatung to apply the Maryland Rules to the separate acts of alleged
misconduct related to the Maryland disciplinary proceeding.” Id. We expressly reiterated,
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that “[i]n disciplinary matters arising under Maryland Rule 8.5(b), Bar Counsel should
identify the discrete act or acts of misconduct and apply one set of professional rules to the
particular act or acts of misconduct.” Id. (emphasis in original).
Returning the Application of 8.5(b) in this Case
In this case, Bar Counsel’s charges, presentation of its case, and proposed findings
of fact and conclusions of law do not comport with our discussion and holdings in Tatung
and Bonner. Although Bar Counsel’s petition charged violations of the federal
immigration rules in the alternative to the MARPC, it is clear—from the charges Bar
Counsel set forth in the petition, its presentation of its case, and the proposed findings of
fact and conclusions of law that it filed with the hearing judge—that Bar Counsel’s primary
focus was on application of the MARPC as the operative rules. In its pleadings and
argument, Bar Counsel did not attempt to determine the correct application of the choice
of law provisions as required by Rule 8.5(b). Bar Counsel appears to believe that it fulfills
its obligation under Rule 8.5(b) if it files charges under the professional rules of another
jurisdiction as an alternative to the MARPC, in the event this Court determines that the
professional rules of another jurisdiction apply in connection with our ultimate review.
In my view, the discussion concerning which professional rules govern conduct
involving another tribunal or jurisdiction does not start at the end of the process with this
Court making an original determination under Rule 8.5(b) of the law that applies to the
underlying conduct. Rather, such analysis must start at the beginning of the process—with
the filing of the initial charges presented in the petition for disciplinary proceedings. In
other words, prior to filing its initial petition, the Commission should undertake a Rule
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8.5(b) analysis, and if the analysis reveals that another jurisdiction’s professional rules
apply to the underlying conduct, the Commission, through Bar Counsel, should file charges
under those professional rules. In such instances, the other jurisdiction’s professional rules
should be the operative rules that should be charged and presented to the hearing judge for
the hearing judge to apply. If Bar Counsel decides to file charges under the MARPC in the
alternative, in the event that the hearing judge, or ultimately this Court, determines that the
charges filed under the other jurisdiction’s professional rules are improper, Bar Counsel
may do so. However, under Rule 8.5(b), the professional rules of the applicable
jurisdiction or tribunal should be the operative set of rules charged, and they should not be
pleaded as an alternative to the MARPC.
Bar Counsel’s approach—which requests that the hearing judge apply two sets of
professional rules to particular conduct without undertaking an analysis under Rule 8.5(b),
and which utilizes a “mix and match” application of two sets of professional rules to
underlying conduct that is clearly governed by the professional rules of another jurisdiction
or tribunal—is inconsistent with its obligations to correctly charge and apply the choice of
law provisions under Rule 8.5(b) and our recent holdings in Tatung and Bonner. In my
view, Bar Counsel’s approach to Rule 8.5(b) also creates confusion before the hearing
judge (and for the attorney who is the subject of the petition) as to which rules it is seeking
to apply.
In proceedings that involve the application of Rule 8.5(b), the hearing judge should
be guided by our discussion of the rule in Tatung and Bonner. The hearing judge should
consider and apply Rule 8.5(b), and the hearing judge’s analysis and conclusions under the
16
rule should be reflecting in his or her findings of fact and conclusions of law. See Bonner,
477 Md. at 584. If the hearing judge determines that Rule 8.5(b) requires the application
of the professional rules of another jurisdiction or tribunal, the hearing judge should make
conclusions of law under those professional rules. Id. Where Bar Counsel alleges
violations of the MARPC in the alternative to the operative professional rules of the other
jurisdiction, the hearing judge may make conclusions of law under the alternatively-
pleaded rules, but is not required to do so. Id. at 600–01 and n.13.
In this case, it is clear that the federal immigration professional rules applied to the
particular conduct involving the two immigration cases. The hearing judge incorrectly
determined that she could apply the Maryland Rules because they “overlapped.” That is
not the correct application of the choice of law provisions.
17