Take Five
The Maryland Court of Appeals remanded a bar discipline matter for the limited purpose of taking evidence of mitigating and aggravating factors
In pretrial discovery, Mr. Malone invoked the Fifth Amendment privilege against self-incrimination in response to two of Bar Counsel’s requests for production of documents, as well as in response to every question Bar Counsel asked at Mr. Malone’s deposition. Although Bar Counsel’s position was that Mr. Malone invoked the Fifth Amendment improperly, Bar Counsel did not file a motion to compel discovery. Instead, Bar Counsel filed a motion in limine seeking to preclude Mr. Malone from testifying at the upcoming evidentiary hearing on the alleged MLRPC violations.
At a hearing on Bar Counsel’s motion in limine, Mr. Malone argued that a litigant should be allowed to “assert the privilege pretrial” but later “change [one’s] mind and then testify” at trial. Mr. Malone also told the hearing judge that he probably would not testify as part of his “case in chief” at the upcoming evidentiary hearing, but that, if he were found “guilty” at the hearing, he would want to “address the Court” concerning the “sentence” to be imposed. At the conclusion of the hearing on the motion in limine, the hearing judge found that Mr. Malone invoked the privilege against self-incrimination in bad faith at his deposition. The hearing judge granted Bar Counsel’s motion in limine and precluded Mr. Malone from testifying at the evidentiary hearing.
Following the evidentiary hearing, the hearing judge found that Mr. Malone violated the MLRPC, as alleged by Bar Counsel. The hearing judge also concluded that Bar Counsel proved the existence of several aggravating factors, and that Mr. Malone failed to establish the existence of any mitigating factors.
The Respondent filed exceptions
As discussed below, the hearing judge properly found that Mr. Malone violated Rules 8.1(a) and (b) and Rules 8.4(a), (b), (c), and (d). However, a limited remand is warranted to allow Mr. Malone to testify as to mitigation. Following that testimony, the hearing judge shall issue a supplemental opinion addressing mitigating factors and, if necessary, aggravating factors. We shall defer determination of the applicable aggravating and mitigating factors and the appropriate sanction for Mr. Malone’s violations of the MLRPC, pending the proceedings on remand and further proceedings in this Court.
The charges
Bar Counsel alleged in the Petition that Mr. Malone – a member of the Maryland Bar since 1999 – knowingly and intentionally provided false information to the Texas Board of Law Examiners (the “Texas Board” or the “Board”) on several occasions during a multi-year quest to obtain admission to the Texas Bar.
The deposition
On March 29, 2021, Mr. Malone appeared for his remote deposition. Mr. Malone invoked his Fifth Amendment privilege against self-incrimination in response to every question he was asked, including:
• “[C]an you just state and spell your name for the record, please.”
• “[D]id you receive the documents that I sent you that I’ll be referring to today?”
• “[A]re you able to see what I am sharing on the screen?”
• “What, if any, factors are you contending should be considered in mitigation of any potential sanction imposed in this matter?”
• “[Y]ou received Petitioner’s interrogatories and Petitioner’s request for production of documents that were served upon you; is that right?”
• “[A]re you disputing that you received a reprimand from Virginia?”
• “[A]re you disputing that you received a private reprimand from the United States District Court for the District of Maryland in 2012?”
• “[A]re you disputing that you knowingly and intentionally made misrepresentations on your Texas Bar application for admission to the Texas Bar?”
• “[C]an you explain the basis of … what your Fifth Amendment right is when you’ve admitted much of these matters already in your answer to the Petition for Disciplinary and Remedial Action in this case?”
In response to the question, “is it your intention today to assert your Fifth Amendment right to any and all questions I ask you,” Mr. Malone replied, “Yes, ma’am.”
The court agreed that blanket assertion of the privilege was improper but that a limited remand to allow Respondent to offer mitigating evidence was required. (Mike Frisch)