Wrong Rules Charged – A Rule 8.5 Dismissal
The Maryland Court of Appeals applied choice-of-law analysis and dismissed all charges against an attorney.
The opinion is unusual – and significant – in its extensive discussion of the application of Rule 8.5
The practice of law, like many other professions, has become more mobile. Our profession is no longer confined to the traditional law office setting. Indeed, attorneys can practice law from their home—or virtually anywhere—with the modern conveniences of a high-speed internet connection, a cellphone and a laptop. With this portability, it is increasingly possible for an attorney to practice law from a location other than the jurisdiction in which he or she is licensed. Some attorneys exclusively practice in a particular area of the law—such as federal bankruptcy or immigration—where they are not required to be barred in the state where they maintain a principal office, so long as their practice is limited to those predominantly federal areas of law. As more states adopt the Uniform Bar Examination, it’s also easier (and more common) for attorneys to become licensed in more than one state. Our Maryland Attorneys’ Rules of Professional Conduct (“MARPC”) are clear that, if an attorney practices law in this State—regardless of whether he or she is licensed in Maryland—the attorney is subject to the disciplinary authority of this State.
In this attorney grievance proceeding, the Respondent, Celestine Tatung has raised a choice of law question involving the rules of professional conduct that apply in a Maryland attorney disciplinary proceeding where the particular misconduct alleged by the Attorney Grievance Commission (the “Commission”) occurred in connection with his
representation of two clients in federal immigration proceedings in Texas. As we will discuss more fully herein, Mr. Tatung made a handful of careless mistakes in connection with his clients’ representation—he did not check to see if the immigration judge had any standing orders in place concerning telephonic appearances at master calendar hearings (which caused him to miss his clients’ hearings); he filed an affidavit purporting to authenticate his clients’ foreign witness affidavits in both of his clients’ cases when it only pertained to one client’s case; and he negotiated a fixed fee agreement for the representation (which included his travel expenses), anticipating that he would need to make only two trips to Texas, instead of the four trips that he ultimately made.
Mr. Tatung argues that, under the choice of law provisions set forth in MARPC 19- 308.5(b), the Commission was required to charge him under the rules of professional conduct that apply to federal immigration proceedings, and not the Maryland professional conduct rules. For the reasons stated in this opinion, we agree with Mr. Tatung. Accordingly, we shall dismiss the charges filed under the MARPC that pertain to the alleged wrongful conduct that arose in connection with the federal immigration proceeding.
The Commission also charged Mr. Tatung for violating the MARPC in connection with its investigation. Although the MARPC applies to allegations of misconduct arising in connection with the disciplinary investigation, based upon our independent review of the record, we conclude that Bar Counsel failed to prove by clear and convincing evidence that Mr. Tatung violated the MARPC in connection with the investigation. Accordingly, we shall also dismiss those charges. We explain below our analysis and conclusions that support the dismissal of all charges brought against Mr. Tatung.
The attorney is not admitted in Maryland but has an office there.
Judge Booth authored the opinion. Judge Harrell dissented.(Mike Frisch)