Attorney Grievance v. Malone

Attorney Grievance Commission of Maryland v. Edward Allen Malone, Misc. Docket AG No. 47, September Term, 2020. Opinion by Biran, J. ATTORNEY DISCIPLINE – MISCONDUCT – APPLICATION OF THE FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION – LIMITED REMAND – Respondent, Edward Allen Malone, was charged with violating Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”) 8.1(a) and (b) (bar admission and disciplinary matters) and 8.4(a), (b), (c), and (d) (misconduct). In pretrial discovery, Mr. Malone asserted the Fifth Amendment privilege against self-incrimination in response to two of Bar Counsel’s requests for production of documents, as well as in response to all questions Bar Counsel asked Mr. Malone at his deposition.

Bar Counsel filed a motion in limine to preclude Mr. Malone from testifying at the evidentiary hearing on Bar Counsel’s charges, and the hearing judge granted the motion. The hearing judge found that Mr. Malone violated the MLRPC, as alleged by Bar Counsel. The Court of Appeals held that a civil litigant who invokes the Fifth Amendment privilege against self-incrimination in discovery is not forever precluded from waiving the privilege and testifying at trial or submitting substantive responses to discovery requests. When faced with a party’s application to waive the privilege after previously invoking it (or an objection by an opposing party to a subsequent proposed waiver), the trial court should, in general, take a liberal view toward the request to waive the privilege.

However, the trial court must be alert to the danger that the litigant might have invoked the privilege primarily to abuse, manipulate, or gain an unfair strategic advantage over opposing parties. A trial court’s response to a request to withdraw the privilege necessarily depends on the precise facts and circumstances of each case. In this case, the hearing judge acted within his discretion by precluding Mr. Malone from testifying as to the alleged violations of the MLRPC. However, the balance of interests favored allowing Mr. Malone to testify concerning mitigating factors at the evidentiary hearing.

The Court of Appeals concluded that Mr. Malone violated Rules 8.1(a), 8.1(b), 8.4(a), 8.4(b), 8.4(c), and 8.4(d). The Court ordered a limited remand to the circuit court to allow Mr. Malone to testify concerning mitigating factors. The Court deferred determination of the applicable aggravating and mitigating factors and the appropriate sanction for Mr. Malone’s violations of the MLRPC, pending the proceedings on remand and further proceedings in the Court of Appeals. Circuit Court for Anne Arundel County Case No. C-02-CV-20-002203 Argued: October 6, 2021 IN THE COURT OF APPEALS OF MARYLAND Misc.

Docket AG No. 47 September Term, 2020 ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. EDWARD ALLEN MALONE Getty, C.J. McDonald Watts Hotten Booth Biran Gould, JJ. Opinion by Biran, J. Filed: January 31, 2022 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2022-01-31 14:38-05:00 Suzanne C. Johnson, Clerk On November 20, 2020, Petitioner, the Attorney Grievance Commission of Maryland, acting through Bar Counsel, filed a Petition for Disciplinary or Remedial Action (the “Petition”) alleging that Edward Allen Malone, Respondent, violated the following Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”), as then enumerated1: 8.1(a) and (b) (bar admission and disciplinary matters), and 8.4(a), (b), (c), and (d) (misconduct). In pretrial discovery, Mr. Malone invoked the Fifth Amendment privilege against self-incrimination in response to two of Bar Counsel’s requests for production of documents, as well as in response to every question Bar Counsel asked at Mr. Malone’s deposition. Although Bar Counsel’s position was that Mr. Malone invoked the Fifth Amendment improperly, Bar Counsel did not file a motion to compel discovery.

Instead, Bar Counsel filed a motion in limine seeking to preclude Mr. Malone from testifying at the upcoming evidentiary hearing on the alleged MLRPC violations. At a hearing on Bar Counsel’s motion in limine, Mr. Malone argued that a litigant should be allowed to “assert the privilege pretrial” but later “change [one’s] mind and then testify” at trial. Mr. Malone also told the hearing judge that he probably would not testify as part of his “case in chief” at the upcoming evidentiary hearing, but that, if he were found “guilty” at the hearing, he would want to “address the Court” concerning the “sentence” to 1 Effective July 1, 2016, the Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”) were renamed the Maryland Attorneys’ Rules of Professional Conduct (“MARPC”) and recodified without substantive changes in Title 19 of the Maryland Rules. The Petition for Disciplinary or Remedial Action in this case only charges violations of the MLRPC. be imposed.

At the conclusion of the hearing on the motion in limine, the hearing judge found that Mr. Malone invoked the privilege against self-incrimination in bad faith at his deposition. The hearing judge granted Bar Counsel’s motion in limine and precluded Mr. Malone from testifying at the evidentiary hearing. Following the evidentiary hearing, the hearing judge found that Mr. Malone violated the MLRPC, as alleged by Bar Counsel. The hearing judge also concluded that Bar Counsel proved the existence of several aggravating factors, and that Mr. Malone failed to establish the existence of any mitigating factors.

Mr. Malone subsequently filed exceptions to the hearing judge’s findings of fact and conclusions of law in this Court. He contends that the hearing judge improperly sanctioned him for his assertion of the Fifth Amendment privilege against self-incrimination during discovery. Mr. Malone requests that we remand the case to the circuit court for an entirely new evidentiary hearing or, alternatively, that we suspend him from the practice of law for three months. As discussed below, the hearing judge properly found that Mr. Malone violated Rules 8.1(a) and (b) and Rules 8.4(a), (b), (c), and (d).

However, a limited remand is warranted to allow Mr. Malone to testify as to mitigation. Following that testimony, the hearing judge shall issue a supplemental opinion addressing mitigating factors and, if necessary, aggravating factors. We shall defer determination of the applicable aggravating and mitigating factors and the appropriate sanction for Mr. Malone’s violations of the MLRPC, pending the proceedings on remand and further proceedings in this Court. 2 I Background The Allegations of Professional Misconduct Bar Counsel alleged in the Petition that Mr. Malone – a member of the Maryland Bar since 1999 – knowingly and intentionally provided false information to the Texas Board of Law Examiners (the “Texas Board” or the “Board”) on several occasions during a multi-year quest to obtain admission to the Texas Bar. Bar Counsel alleged that Mr. Malone, on multiple occasions, knowingly failed to disclose to the Texas Board: (1) that he was admitted to practice law in the State of Virginia, in the United States District Court for the District of Maryland, and in other federal courts; and (2) that the Virginia State Bar and the United States District Court for the District of Maryland previously had sanctioned him.

In addition, Bar Counsel alleged that, after the Texas Board opened an investigation and asked Mr. Malone to explain his failure to disclose his Virginia licensure and disciplinary history, Mr. Malone knowingly and intentionally made a false statement to the Texas Board when he claimed that he “failed to disclose [his] Virginia license and discipline to the board because [he] did not read the questions carefully enough” and that he “did not believe [he] was required to share [his] experience practicing law in Virginia.” Bar Counsel alleged that Mr. Malone violated MLRPC 8.1(a), 8.1(b), 8.4(a), 8.4(b), 8.4(c), and 8.4(d). On December 1, 2020, following Bar Counsel’s filing of the Petition, this Court designated the Honorable Alison L. Asti of the Circuit Court for Anne Arundel County to conduct an evidentiary hearing in accordance with Maryland Rule 19-727. Judge Asti 3 issued a Scheduling and Pre-Trial Order providing, among other things, that all discovery was to be completed by April 14, 2021, that all motions in limine were to be filed by April 30, 2021, and that the evidentiary hearing on Petitioner’s charges would begin on May 5, 2021. Mr. Malone’s Answer to the Petition On February 3, 2021, Mr. Malone – who was not represented by counsel during the proceedings before the hearing judge in this case – filed an answer to the Petition, styled “Response to Petition for Disciplinary or Remedial Action.” Mr. Malone admitted the majority of the factual allegations contained in the Petition, including: (1) that he knowingly and intentionally failed to disclose his admission to the Virginia State Bar, as well as his Virginia disciplinary history, to the Texas Board; and (2) that he made a knowing and intentional misrepresentation to the Texas Board when purporting to explain why he failed to disclose his Virginia license and discipline to the Board.

However, Mr. Malone denied the allegations that he knowingly concealed his admission to, and his disciplinary history in, the United States District Court for the District of Maryland. Bar Counsel’s Effort to Depose Mr. Malone On February 25, 2021, the Assistant Bar Counsel responsible for Mr. Malone’s case (“Bar Counsel”) advised Mr. Malone by email of her intention to take his deposition remotely and provided him with potential dates for the deposition. Mr. Malone replied to Bar Counsel the following day, asking that he be allowed to “avert a deposition, as the facts of [Bar Counsel’s] case are essentially undisputed.” On March 1, 2021, Bar Counsel advised Mr. Malone by email that she was moving forward with his deposition, and asked 4 that he provide his availability for the dates previously proposed. Mr. Malone subsequently replied: “The 5th Amendment as made applicable through the 14th, protects a person against testifying against himself.

I therefore invoke my rights, and I respectfully request you to call off your deposition.” Bar Counsel subsequently advised Mr. Malone that he could invoke his Fifth Amendment privilege in response to specific questions at the deposition and again requested that he provide available dates. In response, Mr. Malone emailed Bar Counsel: “I also invoke Rule 2-403[2] and object to the taking of the deposition itself on grounds that it serves no other purpose than to annoy, embarrass, and oppress me. Put simply. I am not sitting for a deposition.

And if that means the Maryland Court of Appeals will revoke my law license, then so be it.” On March 2, 2021, Bar Counsel served Mr. Malone with a Notice of Deposition. On March 4, 2021, Mr. Malone filed a Motion for Protective Order to Quash the Notice of Deposition under Rule 2-403 in which he asserted, among other things, that “there is essentially no material issue of fact in dispute” and that “forcing a Respondent who has already confessed to undergo further examination is abusive and oppressive.” Bar Counsel filed a response on March 5, 2021. By Order dated March 9, 2021, Judge Asti denied Mr. Malone’s motion for a protective order. On March 12, 2021, Mr. Malone filed a reply3 2 Maryland Rule 2-403(a) provides, in part: “On motion of a party, a person from whom discovery is sought, or a person named or depicted in an item sought to be discovered, and for good cause shown, the court may enter any order that justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense[.]” 3 The record suggests that Mr. Malone mailed his reply to the circuit court for filing before receiving Judge Asti’s Order denying his motion for a protective order. 5 again stating that no material facts were in dispute, and asserting that Bar Counsel had all the facts it needed to proceed against him at the evidentiary hearing.

In response to Bar Counsel’s suggestion that Mr. Malone invoke his Fifth Amendment privilege on a question-by-question basis during the deposition, Mr. Malone stated that “the plain language of the 5th amendment says that a person shall not be compelled to testify against himself, period!” Mr. Malone’s Invocations of the Fifth Amendment a. Responses to Document Requests On March 16, 2021, Mr. Malone served “Supplemental Answers to Petitioner’s First Set of Documents Requests” on Bar Counsel. In response to requests for “[a]ll correspondence … between you and any individual identified in your Answers to Interrogatories” and for “[a]ll written correspondence or other documents you filed with and/or received from the Texas Board of Law Examiners,” Mr. Malone objected on the basis of, among other things, the Fifth Amendment privilege against self-incrimination. Mr. Malone did not invoke the Fifth Amendment in response to Bar Counsel’s other seven requests for production of documents. b.

The Deposition On March 29, 2021, Mr. Malone appeared for his remote deposition. Mr. Malone invoked his Fifth Amendment privilege against self-incrimination in response to every question he was asked, including: • “[C]an you just state and spell your name for the record, please.” 6 • “[D]id you receive the documents that I sent you that I’ll be referring to today?” • “[A]re you able to see what I am sharing on the screen?” • “What, if any, factors are you contending should be considered in mitigation of any potential sanction imposed in this matter?” • “[Y]ou received Petitioner’s interrogatories and Petitioner’s request for production of documents that were served upon you; is that right?” • “[A]re you disputing that you received a reprimand from Virginia?” • “[A]re you disputing that you received a private reprimand from the United States District Court for the District of Maryland in 2012?” • “[A]re you disputing that you knowingly and intentionally made misrepresentations on your Texas Bar application for admission to the Texas Bar?” • “[C]an you explain the basis of … what your Fifth Amendment right is when you’ve admitted much of these matters already in your answer to the Petition for Disciplinary and Remedial Action in this case?” In response to the question, “is it your intention today to assert your Fifth Amendment right to any and all questions I ask you,” Mr. Malone replied, “Yes, ma’am.” After asking questions for approximately 10 minutes, Bar Counsel stated: “Well, at this time, I’m going to end the deposition, but I’m going [to] hold it open so that the Court has an opportunity to weigh in on what’s clearly a discovery dispute in this case. So I think this concludes the deposition for today.” Bar Counsel’s Motion in Limine Although Bar Counsel held the deposition open, Bar Counsel did not file a motion to compel Mr. Malone to answer the questions he refused to answer on the basis of the Fifth Amendment. Nor did Bar Counsel move to compel Mr. Malone to provide responsive 7 documents he withheld on the basis of the Fifth Amendment.

Rather, on April 1, 2021, Bar Counsel filed a motion in limine arguing that Mr. Malone should be precluded from testifying at the upcoming evidentiary hearing. Mr. Malone filed an opposition to the motion in limine on April 5, 2021. The Hearing on the Motion in Limine On April 26, 2021, the Honorable Robert J. Thompson of the Circuit Court for Anne Arundel County4 held a hearing on Bar Counsel’s motion in limine. At the hearing, Bar Counsel argued that, under the factors this Court set forth in Taliaferro v. State, 295 Md. 376 (1983),5 the hearing judge should preclude Mr. Malone from offering his own testimony at the evidentiary hearing “based on his complete failure to answer any questions at his deposition in this matter, in addition to failing to answer two of Petitioner’s requests for document production.” Bar Counsel acknowledged that the respondent in an attorney grievance matter may invoke his or her rights under the Fifth Amendment, but argued that, in this case, Mr. Malone “has asserted his privilege in a wholesale manner” and, therefore, “not in good faith.” Bar Counsel further argued that Mr. Malone’s “failure to answer any 4 On March 31, 2021, Mr. Malone filed a motion to recuse Judge Asti.

By Order dated April 7, 2021, Judge Asti granted the motion. On the same date, this Court designated Judge Thompson to hear and determine this matter. 5 Taliaferro concerned a trial court’s exclusion of a purported alibi witness’s testimony due to the defendant’s belated disclosure of the witness. This Court stated that the decision to exclude such evidence “turns on the facts of the particular case,” and noted several relevant factors to consider, including: “whether the disclosure violation was technical or substantial, the timing of the ultimate disclosure, the reason, if any, for the violation, the degree of prejudice to the parties respectively offering and opposing the evidence, whether any resulting prejudice might be cured by a postponement and, if so, the overall desirability of a continuance.” 295 Md. at 390-91 . 8 questions at his deposition has prejudiced Petitioner’s ability to prepare for trial in this matter, to prepare for cross-examination, in particular to … explore his defenses that he’s asserted in this case and the positions that he’s asserted, in addition to exploring what mitigation he intends to put on so that Petitioner could have taken additional discovery on those matters.” Bar Counsel claimed that the prejudice could not be cured by a postponement of the evidentiary hearing “because there doesn’t appear to be any indication that Mr. Malone intends to cooperate with the Petitioner or act in good faith in this case.” Bar Counsel indicated that she was not asking the hearing judge to “draw any sort of negative [inference] from” Mr. Malone’s having asserted the Fifth Amendment. Rather, Bar Counsel stated, Petitioner is just asking that he not be allowed to use his Fifth Amendment as both a shield in refusing to answer any questions at a deposition, but also a sword in introducing new information at trial, if he be allowed to testify on things that he … refused to answer questions about during his deposition.

In response, Mr. Malone told the hearing judge: Well, Your Honor, I probably won’t be testifying in any type of case in chief that I would be making. I would like for the Court to allow me in case I am found to be, I’ll use the word for lack of a better word, guilty, to at least address the Court in, what I’ll call for lack of a better word, sentence. Now, as far as being allowed to testify, I still would argue that the Fifth Amendment privilege belongs to the suspect, and so it could be waived or asserted…. I haven’t seen anything in the U.S. Constitution that says, well, if you assert the privilege pretrial then you waive your right to change your mind and then testify.

So in that respect I don’t think … bar counsel is correct in being able to do this to me. 9 Replying to Mr. Malone’s argument, Bar Counsel alluded to the Court of Special Appeals’ decision in Kramer v. Levitt, 79 Md. App. 575, 588 (1989), which Bar Counsel argued stands for the proposition that a civil litigant “who asserts their privilege against self-incrimination during the discovery stage … then can be prohibited from testifying on those same matters.” Bar Counsel argued that such a rule makes sense because “if a party is free to shield themselves with a privilege during discovery but then has the full benefits of their testimony at trial, it … completely guts the purpose of discovery in these cases.” The hearing judge then considered the Taliaferro factors and Kramer v. Levitt, and granted Bar Counsel’s motion in limine. The hearing judge found that Mr. Malone had invoked his Fifth Amendment privilege in bad faith: If … you had been asked a specific question about an alleged or purported ethical violation and you had refused to answer that question, that would be one thing, and it might be appropriate … in that case to invoke the Fifth Amendment privilege, but you showed bad faith when you wouldn’t respond to whether a document was being properly shown to you by Zoom or spelling your name, that kind of thing. Considering the prejudice to the parties, the hearing judge noted that “Mr. Malone has told me insofar as prejudice to him that he probably won’t be testifying any way. So I think that that minimizes the impact of any prejudice on him that there may be.” As for the prejudice to Bar Counsel if Mr. Malone were permitted to testify, the hearing judge stated: [W]hen you don’t have discovery it’s almost impossible to prepare for trial, it’s almost impossible to prepare for cross-examination, it’s almost impossible to prepare for impeachment of witnesses…. [Y]ou’re not on notice of what defenses a party may have. … I think bar counsel is right, and it also is echoed in the words of … Kramer versus Levitt, that it’s not fair to be able to use … the Fifth Amendment privilege as both a shield and a sword. 10 Finally, the hearing judge explained that “[t]rial is next week and it’s not going to be postponed, because the rule requires that the trial be held within so many days of receiving the assignment, and I think we might have a few extra days left in the order, but not enough to postpone the case or allow for a second opportunity at deposition.” By Order dated April 27, 2021, the hearing judge formally granted Bar Counsel’s motion in limine and ordered that Mr. Malone would be precluded from testifying at the evidentiary hearing.

The Evidentiary Hearing The evidentiary hearing on the charges alleged in the Petition went forward on May 5, 2021. In his opening statement, Mr. Malone stated: “The evidence in this case will show that myself, Respondent, engaged in a continuous course of conduct to procure a Texas law license by fraud” but that, beginning in June 2016, he “corrected that or attempted to correct that situation by seeking readmission into Virginia, by reapplying to Texas and by no longer being deceitful.” Mr. Malone explained that he was now “attempting to restore his life and get it back on track, so to speak, and that despite bar counsel’s characterization of Respondent as a dishonest person, the evidence will show that Respondent engaged in an awful scandal but that otherwise there isn’t a record of Respondent deceiving people, defrauding people or engaging in obstruction of justice or anything disruptive to the judicial system.” Bar Counsel introduced more than 20 exhibits relating to Mr. Malone’s alleged misconduct in Texas. Bar Counsel did not call any witnesses. Mr. Malone introduced 14 exhibits as well as the testimony of a former client, Taylor Bastiand Woodyard.

Ms. 11 Woodyard testified that Mr. Malone represented her very effectively, and that she referred him to family members and business associates who needed legal advice and representation. According to Ms. Woodyard, the people to whom she referred Mr. Malone provided her with “nothing but positive feedback about [Mr. Malone’s] … integrity, … [his] knowledge of the law, [his] compassion and the way that [he] walk[s] them through … each of their options as to what to do. They were very – and still are very impressed with [Mr. Malone] and stated [he is] a credit to the law – the legal system.” The exhibits Mr. Malone introduced included, among other things, a list of Virginia Continuing Legal Education classes he had taken in 2016 as a “pre-condition to readmission to the Virginia state bar,” a letter from the Texas Board “announcing a passing score for the February 2020 bar exam,” and several news articles detailing his indictment in Texas for holding himself out as a lawyer by reciting the Declaration of Independence at a Fourth of July event at which attorneys traditionally read the Declaration. In his closing argument, Mr. Malone again admitted that he had knowingly omitted his Virginia licensure and disciplinary history from his Texas Bar application.

Mr. Malone also engaged in an extended colloquy with the hearing judge about various events in Texas that did not directly bear on Bar Counsel’s charges but seemingly touched upon potential mitigating factors. For example, Mr. Malone told the hearing judge about some of the circumstances concerning his prior Virginia suspension. In addition, he provided more information about his indictment in Texas for holding himself out as an attorney, and argued that this criminal charge shows that he has already “been punished” and “suffered consequences” for his professional misconduct. 12 At several points during his discussion with the hearing judge, Mr. Malone indicated awareness that he should not be “testifying,” and curtailed his remarks concerning the points he was trying to make. However, Mr. Malone did provide an explanation in his closing argument concerning his failure to disclose his admission to, and his private reprimand from, the United States District Court for the District of Maryland.

As to why he initially failed to disclose his admission to the federal district court in Maryland, Mr. Malone stated that he was admitted in “about eight, nine courts. Now that doesn’t excuse it but the reason it could have been was I don’t feel like writing all this stuff down, admission date, admission year and all that stuff, each court[.]” Regarding the private reprimand from the Maryland federal court, Mr. Malone stated: “My argument is that I lied about Virginia and then what they’re trying to do is pin the second one on me. And it wasn’t a conscious lie. I knew what I was doing with Virginia and I said, okay, I’m not going to list that state.

That was intentional…. This other one, I did not have that in mind. It was a private reprimand. I forgot about it.

I did.” At that point, Bar Counsel objected that Mr. Malone was “using closing argument to testify in this case.” The hearing judge replied that Bar Counsel’s objection “is noted,” but did not rule on it. Mr. Malone then continued: “Okay. Well, the evidence is … that all courts were listed. And so if that was intent to deceive, why would I have listed that court?

If I wanted to hide it, I would have just not listed it and they would have never known about it. And it’s harder to find out about federal discipline than state. They wouldn’t have even known that I was admitted in that court. So pinning that second deception on me was not right.

I think the Texas Board of Law Examiners was wrong in doing it. And I would hope 13 that this Court does not adopt their factual finding in that regard.” (Paragraph break omitted.) The Parties’ Proposed Findings of Fact and Conclusions of Law On May 21, 2021, Bar Counsel filed Petitioner’s Proposed Findings of Fact and Conclusions of Law. On May 27, 2021, Mr. Malone filed his Proposed Findings of Fact and Conclusions of Law. In his submission, Mr. Malone again acknowledged his “dishonesty in procuring admission in Texas.” However, he asked the hearing judge to conclude that he “could not have possibly violated Rule 8.1” because his misconduct involved attempts to gain admission to the Texas Bar, not the Maryland Bar.

Mr. Malone conceded that he violated Rule 8.4(c), in that “Respondent, by his own admission intentionally concealed negative information about himself to the Texas Board … in seeking admission to practice law in Texas.” Mr. Malone did not ask the hearing judge to find that he knowingly omitted only his Virginia licensure and disciplinary history from his Texas Bar applications, and that his failure to disclose his admission to, and his disciplinary history in, the United States District Court for the District of Maryland, was inadvertent. In his submission, Mr. Malone did not expressly refer to “mitigation” or any of the mitigating factors this Court has recognized in attorney grievance cases. However, Mr. Malone asked the hearing judge to find facts that seemingly bore on the mitigating factors 14 of good character or reputation, interim rehabilitation, and imposition of other penalties or sanctions.6 II The Hearing Judge’s Findings of Fact and Conclusions of Law On June 4, 2021, the hearing judge filed with this Court an opinion containing his findings of fact and conclusions of law, as well as findings concerning aggravating and mitigating circumstances. The hearing judge concluded that Mr. Malone violated MLRPC 8.1(a) and (b) and 8.4(a), (b), (c), and (d).

The hearing judge also found that Bar Counsel established the existence of several aggravating factors, and that Mr. Malone failed to establish the existence of any mitigating factors. A. The Hearing Judge’s Findings of Fact We summarize here the hearing judge’s findings of fact. Background Mr. Malone was admitted to the Bar of Maryland and the Bar of the Commonwealth of Virginia in 1999. He has also been admitted to practice in several United States District Courts, including: the Eastern District of Virginia in 2001, the Western District of Virginia in 2005, the District of Maryland in 2003, the District of Columbia in 2003, the Central 6 For example, Mr. Malone asked the hearing judge to find that “Mr. Malone has already paid a price for his misbehavior.

He has faced the economic hardship of having his Texas license canceled as well as the public embarrassment and humiliation of having his license canceled and being indicted for simply reading the Declaration of Independence.” 15 District of Illinois in 2004, the Northern District of Illinois in 2013, the Eastern District of Texas in 2015, and the Western District of Texas in 2015. Virginia Disciplinary History On February 28, 2011, the Virginia State Bar issued Mr. Malone a public reprimand for violating Virginia Rules of Professional Conduct 1.3 (diligence), 1.16(d) (declining or terminating the representation), and 8.1(c) (failure to respond to bar counsel). Mr. Malone’s discipline stemmed from two client complaints. The first complaint was filed by Derrick Clayton in December 2006.

After Mr. Clayton retained Mr. Malone and paid him $1,000 to represent him in a family law matter, Mr. Malone only spoke with Mr. Clayton one time about the status of the case and failed to respond to Mr. Clayton’s numerous requests for information. The second complaint was filed by Keya Woods in June 2007. Ms. Woods retained Mr. Malone to represent her husband in his appeal of a criminal conviction. Although Mr. Malone timely filed a notice of appeal, he failed to timely file the trial transcripts.

The court ultimately dismissed the appeal. The Virginia State Bar served Mr. Malone with a summons and subpoena duces tecum compelling his appearance before the Fourth District Committee and demanding that he produce both client files for inspection. After Mr. Malone failed to appear, the Virginia State Bar Disciplinary Board administratively suspended him from the practice of law for his non-compliance. In or around June 2009, Mr. Malone took steps to have the suspension lifted but still failed to provide responses to the complaints.

The Fourth District Committee held a hearing to determine whether Mr. Malone’s conduct violated the Rules of Professional Conduct. As noted above, Mr. Malone was 16 issued a public reprimand. The terms of the reprimand required Mr. Malone to complete six Continuing Legal Education hours within six months of the reprimand. Mr. Malone knowingly and intentionally failed to inform Maryland Bar Counsel of his public reprimand as required under Maryland Rule 19-737(a).7 Mr. Malone failed to pay the disciplinary costs in connection with his reprimand, resulting in an administrative suspension on April 28, 2011.

His failure to pay annual dues for two successive years resulted in his Virginia law license being forfeited on or about March 20, 2013. By order dated May 26, 2016, the Virginia State Bar Disciplinary Board terminated Mr. Malone’s 2011 suspension for non-payment of costs. Federal Court Disciplinary History On December 12, 2012, Chief Judge Deborah K. Chasanow of the United States District Court for the District of Maryland issued Mr. Malone a private reprimand, stating: The Disciplinary & Admissions Committee of the Court has reviewed your response to the Court’s Order to Show Cause dated November 7, 2012. By Order entered on September 26, 2012, you were found in contempt by Bankruptcy Court Judge James F. Schneider in the case [] In re T.D. Bistro, Inc., Case No. 11-19367 JS, for failure to appear in a court proceeding without proper justification.

Your response at the contempt hearing and to this Court’s show cause order was to claim financial hardship. The Disciplinary and Admissions Committee has found your explanation unacceptable. As an out-of-state attorney, you should not undertake representation of a client in this State if you are not prepared to appear at local proceedings. The Court therefore, at the recommendation of the Disciplinary and Admissions Committee, hereby issues a private reprimand to you based on 7 At the time Mr. Malone received his public reprimand in Virginia, the Maryland Rule that required him to disclose the reprimand to Bar Counsel was Rule 16-773(a).

Maryland Rule 19-737 was adopted in 2016, replacing prior Rule 16-773. 17 your conduct. Despite the informal nature of this letter, it shall be treated as an order of this Court closing this case. Mr. Malone knowingly and intentionally failed to inform Bar Counsel of this private reprimand as required by Maryland Rule 19-737(a).8 Texas Bar Application and Admission On June 5, 2013, Mr. Malone filed an Application for Admission without Examination to the Texas Bar with the Texas Board. Question 3 of the application required Mr. Malone to “[l]ist all state, federal, and/or foreign jurisdictions where you have been licensed or admitted to practice law.” Mr. Malone disclosed his admission to the Maryland Bar.

Mr. Malone knowingly and intentionally failed to disclose his admission to the Virginia State Bar, the United States District Court for the District of Maryland, and various other federal district courts. The hearing judge found that, at or around the time Mr. Malone applied for admission to the Texas Bar in June 2013, he was actively representing clients before various federal district courts. Between May 2011 and February 2013, Mr. Malone represented a client before the United States Bankruptcy Court in the District of Maryland. This was the case in which Mr. Malone was held in contempt and that led to the issuance of the private reprimand in December 2012.

In addition, between February 2013 and September 2013, Mr. Malone represented a client in a separate matter before the United States District Court for the District of Maryland. Between June 2013 and June 2014, Mr. Malone represented a client before the United States District Court for the Northern District of Illinois. 8 See footnote 7 above. 18 Question 13 of the application asked, “[h]ave you ever been held in contempt or sanctioned by a court?” Mr. Malone answered “no.” Mr. Malone knowingly and intentionally misrepresented his disciplinary history by failing to disclose that he had been held in contempt by the United States Bankruptcy Court in the District of Maryland and sanctioned by the United States District Court for the District of Maryland. Question 17(c) of the application asked, in relevant part, “[h]ave you ever been … suspended from practice, disciplined, disqualified … or has your license ever been qualified or conditioned in any way …?” Mr. Malone answered “no.” Mr. Malone knowingly and intentionally misrepresented his disciplinary and licensing history by failing to disclose the Virginia discipline and administrative suspensions and the reprimand issued by the United States District Court for the District of Maryland. The application included an affidavit, signed by Mr. Malone on June 3, 2013, swearing that he “responded to all inquiries on [the application] fully and frankly, and all the information contained in [the] application … is true and correct.” Mr. Malone’s affidavit was knowingly and intentionally false.

To qualify for admission without examination, Mr. Malone was required to submit his federal tax returns from 2006-2012. He failed to do so, asserting that his tax returns were “none of the Board’s business.” Rather than submit the required documentation, on November 18, 2013, Mr. Malone elected to apply for admission to the Texas Bar by taking the February 2014 Texas Bar Examination. Mr. Malone took the exam but did not pass. On May 9, 2014, Mr. Malone filed a sworn Re-Application for Admission to the Bar of Texas.

Again, Mr. Malone failed to disclose his admission to the Virginia Bar or the 19 various United States District Courts, including the District of Maryland, and failed to disclose his disciplinary history. Rule X(e) of the Rules Governing Admission to the Bar of Texas states, in part, that “[t]he Applicant has a continuing duty to ensure the accuracy and completeness of the Applicant’s responses on the Application and to update those responses until the Applicant is certified to the Supreme Court for licensure.”9 On December 5, 2014, Mr. Malone filed a second sworn Re-Application for Admission to the Bar of Texas. Again, Mr. Malone failed to disclose his admission to the Virginia Bar or the various United States District Courts, and failed to disclose his disciplinary history. Mr. Malone again took the Texas Bar Exam in July 2014 but did not pass.

Mr. Malone passed the February 2015 Texas Bar Exam and was admitted to the Texas Bar on April 30, 2015. On February 10, 2016, the Texas Board opened an investigation after receiving notice of Mr. Malone’s disciplinary history in Virginia from the District Attorney of Sabine and San Augustine Counties, Texas. On February 10, 2016, the Texas Board advised Mr. Malone that it was investigating whether he obtained his Texas law license fraudulently or by a willful failure to comply with the Rules Governing Admission to the Bar of Texas. Rule XVII(b) provides: All law licenses are issued on the condition that the Applicant has faithfully complied with these Rules.

If at any time it appears that an Applicant has 9 The Rules Governing Admission to the Bar of Texas ended the use of Roman Numerals in December 2019. Rule X(e) is now Rule 10(e). Rule XVII(b), discussed below, is now Rule 17(b). The language of these rules did not change when the numbering changed. 20 obtained a license fraudulently or by willful failure to comply with these Rules, after notice and hearing, the Board may recommend to the Supreme Court that the license be withdrawn and canceled, and the name of the license holder stricken from the roll of attorneys.

The Texas Board asked Mr. Malone to explain why he failed to disclose his Virginia licensure and disciplinary history. Mr. Malone responded by letter dated February 25, 2016, as follows: I failed to disclose my Virginia license and discipline to the board because I did not read the questions carefully enough. In applying for a Texas law license under the admission by motion program, I planned on using Maryland as the reciprocal state. As such, I did not believe I was required to share my experience practicing law in Virginia.

This statement by Mr. Malone to the Board was a knowing and intentional misrepresentation. On May 13, 2016, Mr. Malone appeared before the Texas Board for a hearing and admitted that his statements to the Board in his February letter were false. He admitted to carefully reading the application questions, that he knew of his requirement to disclose his Virginia license and disciplinary history, and that he intentionally answered questions 3 and 17(c) falsely. By Order and Opinion dated May 24, 2016, the Texas Board concluded that Mr. Malone obtained “his license to practice law in Texas fraudulently or by willful failure to comply with the Rules.” The Texas Board found that Mr. Malone’s knowing and intentional misrepresentations on his bar applications “were material, were relied upon by the Board, and benefitted Mr. Malone in that he was licensed to practice law in Texas without any opportunity for the Board to make an informed determination regarding Mr. 21 Malone’s moral character.” The Texas Board further found a “clear and rational connection” between Mr. Malone fraudulently obtaining his Texas law license and “the likelihood he would injure a client, obstruct the administration of justice, or violate the Texas Disciplinary Rules of Professional Conduct.” The Texas Board recommended to the Supreme Court of Texas that Mr. Malone’s license be withdrawn and canceled.

The Supreme Court of Texas withdrew and canceled Mr. Malone’s Texas law license by Order dated June 7, 2016. The Order required Mr. Malone to immediately notify his Texas clients and all Texas tribunals in which he had a pending matter of the Order and submit an affidavit stating he had done so. In response to the Supreme Court’s Order, Mr. Malone submitted an affidavit asserting that “[the Supreme] Court has no authority to compel me to do a thing… Requiring me to submit memos to judges and then file an affidavit with this Court constitutes involuntary servitude.” On June 15, 2016, Mr. Malone filed a Re-Application for Admission to the Texas Bar. He answered affirmatively to the question whether he has been charged with fraud, or alleged to have committed fraud, in a legal proceeding.

Mr. Malone stated: “My misrepresentation only became an issue when a District Attorney … came forward and complained to the Board after I begin to expose and challenge his unconstitutional practices.” The Texas Board granted Mr. Malone’s request that he not be required to retake the Texas bar exam. During Mr. Malone’s character and fitness investigation, the Texas Board asked him to provide a complete list of all federal jurisdictions in which he was licensed. Based on that list, the Board sent inquiries to multiple jurisdictions. The Board was advised by the 22 United States District Court for the District of Maryland that Mr. Malone had been issued a private reprimand on December 12, 2012.

As of 2016, Mr. Malone had failed to disclose this private reprimand to the Board. Following the character and fitness investigation, the Board notified Mr. Malone that a hearing would be held to determine whether Mr. Malone’s incomplete and false disclosures in connection with multiple applications for admission to the Bar of Texas indicates he lacks the good moral character required for admission; whether Mr. Malone’s Virginia State Bar disciplinary history indicates he lacks the good moral character required for admission; whether Mr. Malone’s history of obtaining his Texas law license by fraud or willful failure to comply with the Rules Governing Admission to the Bar of Texas and the subsequent cancellation of that license indicates he lacks the good moral character required for admission; and whether Mr. Malone’s correspondence with the Supreme Court of Texas and the Board of Law Examiners indicates he lacks trustworthiness in carrying out responsibilities directly related to the judicial process. At the July 7, 2017 hearing before the Board, Mr. Malone testified that he failed to disclose his admission and disciplinary history in the United States District Court for the District of Maryland because he did not “remember” he was admitted to that court. The Board found Mr. Malone’s testimony not credible, noting that Mr. Malone was disciplined in the United States District Court for the District of Maryland in December 2012 and applied for admission to the Texas Bar only six months later in June 2013.

The Board further found that Mr. Malone’s “failure to provide credible testimony or a legitimate explanation regarding the reason for his failure to disclose his disciplinary history with the United States District Court for the District of Maryland, is indicative of dishonesty and a lack of trustworthiness.” By Order dated July 21, 2017, the Board concluded that Mr. Malone did not possess the present good moral character required for admission to practice law in Texas. The Order 23 required, among other things, that Mr. Malone provide copies of the Order to any jurisdiction in which he is admitted to practice law. On August 17, 2017, Mr. Malone filed a Petition for Review in the District Court for Travis County, Texas, requesting the court to review and overturn the Board’s decision denying him admission to the Texas Bar. In the Petition, Mr. Malone alleged that the Board denied him admission “because it wanted to punish him for ‘pulling one over’ on them and failing to be humble in re-applying for a license.” He also accused the Board of acting out of spite and trying to destroy him.

In April 2020, Mr. Malone filed a Notice of Nonsuit in the District Court for Travis County, asking the court to dismiss his claims against the Board. On April 22, 2020, the Travis County District Court dismissed Mr. Malone’s claims against the Board. Mr. Malone reapplied for admission in Texas. At the time of the evidentiary hearing, his application was pending satisfaction of the requirement of present good moral character and fitness for admission to the Texas Bar.

B. The Hearing Judge’s Conclusions of Law Based on his findings of fact, the hearing judge concluded by clear and convincing evidence that Mr. Malone violated MLRPC 8.1(a) and (b), and 8.4(a), (b), (c), and (d). Rule 8.1 – Bar Admissions and Disciplinary Matters Rule 8.1 provides: An applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not: (a) knowingly make a false statement of material fact; or 24 (b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this rule does not require disclosure of information otherwise protected by Rule 1.6. The hearing judge concluded: The Respondent violated Rule 8.1(a) when he answered “no” to Questions 13 and 17(c) of the Texas Bar application…. The Respondent knowingly and intentionally misrepresented his disciplinary history by failing to disclose that he had been held in contempt by the bankruptcy court, sanctioned by the United States District Court for the District of Maryland, and reprimanded and administratively suspended in Virginia.

The Respondent also intentionally failed to disclose his admissions to the Virginia Bar and various U.S. District Courts to conceal his disciplinary history from the Board. By only disclosing his admission to Maryland in response to a question requiring the Respondent to list all jurisdictions in which he is licensed, the Respondent violated Rule 8.1(a). Additionally, the bar application included an affidavit, signed by the Respondent swearing that he “responded to all inquiries on [the application] fully and frankly, and all the information contained in [the] application is true and correct.” The Respondent’s affidavit was knowingly and intentionally false. During the Board’s subsequent investigation of the Respondent, he continued to make misrepresentations, falsely stating that his disclosure failures were the result of not reading the bar applications questions carefully enough.

The Respondent’s numerous deliberate falsehoods to the Board to fraudulently gain admission to the Texas Bar violate Rule 8.1(a). The Respondent violated Rule 8.1(b) when he failed to supplement his June 2013 bar application and subsequent re-applications with his admissions and disciplinary history, thereby failing to correct the misapprehension that he had fully disclosed his disciplinary history in all licensed jurisdictions. By failing to disclose his Virginia and U.S. District Court for the District of Maryland admissions, and falsely answering questions regarding his disciplinary history, the Respondent created the misapprehension. The Respondent continually failed to correct this misapprehension.

He failed to provide the Board with a list of all federal jurisdictions in which he was licensed until September 2016, when the Board explicitly asked for such information during its character and fitness investigation of the Respondent’s reapplication after his Texas license was cancelled. The Respondent’s 25 knowing and intentional concealment of material information from the Board violated Rule 8.1(b). Rule 8.4 – Misconduct Rule 8.4 provides, in part: It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; (b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects; (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; [or] (d) engage in conduct that is prejudicial to the administration of justice[.] The hearing judge concluded that Mr. Malone violated Rule 8.4(a) by violating other rules of professional conduct. The hearing judge concluded that Mr. Malone violated Rule 8.4(b) when he knowingly and intentionally provided false responses on his sworn Texas bar applications, and when he declared under oath in his affidavit that the information he provided was true and correct, thereby committing perjury under Texas law.10 The hearing judge explained: Although the Respondent was not charged with or convicted of perjury in Texas, the Respondent committed perjury in violation of Rule 8.4(b) when he declared under oath in the affidavit that the information contained in his bar application was true and correct and that he had responded to all 10 The Texas perjury statute, Tex.

Pen. Code § 37.02 (2021), states: (a) A person commits an offense if, with intent to deceive and with knowledge of the statement’s meaning: (1) he makes a false statement under oath or swears to the truth of a false statement previously made and the statement is required or authorized by law to be made under oath; or (2) he makes a false unsworn declaration under Chapter 132, Civil Practice and Remedies Code. (b) An offense under this section is a Class A misdemeanor. 26 questions fully and frankly. The Respondent’s affidavit was knowingly and intentionally false.

The Respondent’s conduct clearly reflects adversely on his honesty and trustworthiness, in violation of Rule 8.4(b). The hearing judge concluded that Mr. Malone also violated Rule 8.4(c): The Respondent’s deliberate failure to disclose his admission to the Virginia State Bar and various Federal District courts and his disciplinary history in Virginia and the U.S. District Court for the District of Maryland on his various Texas bar applications violated Rule 8.4(c). The Respondent made numerous knowing and intentional misrepresentations to the Texas Board, including answering no to questions on the bar application asking if he had ever been held in contempt or sanctioned by a court or if he had ever been disciplined or had his law license qualified or conditioned. The Respondent continued his course of dishonest conduct when he repeatedly failed to disclose his various admissions or disciplinary history on subsequent bar applications. … The Respondent’s willfully dishonest conduct continued from his misrepresentations on his June 2013 bar application to his false testimony regarding his reason for failing to disclose his disciplinary history in the U.S. District Court for the District of Maryland during his July 2017 Board hearing.

The Respondent’s sustained course of dishonesty in his efforts to become and remain a Texas attorney violated Rule 8.4(c). Finally, each violation of Rule 8.1(a) constitutes a violation of 8.4(c). The hearing judge also concluded that Mr. Malone violated Rule 8.4(d): The Respondent engaged in a pattern of dishonest and deceitful conduct in his efforts to be admitted to the Bar in Texas. The Respondent deliberately concealed material information from the Texas Board to obtain admission.

The Respondent’s conduct was not limited to a single instance of dishonesty but continued over several years, leading to the withdrawal of his Texas law license and denial of reapplication to the Texas Bar. The Respondent’s conduct reflects negatively on [the] public’s perception of the legal profession, in violation of Rule 8.4(d). 27 C. The Hearing Judge’s Findings as to Aggravating and Mitigating Factors Aggravating Factors We have enumerated the aggravating factors that, if found, are relevant to the appropriate sanction: (1) prior attorney discipline; (2) a dishonest or selfish motive; (3) a pattern of misconduct; (4) multiple violations of the MLRPC; (5) bad faith obstruction of the attorney discipline proceeding by intentionally failing to comply with the Maryland Rules or orders of this Court or the hearing judge; (6) submission of false evidence, false statements, or other deceptive practices during the attorney discipline proceeding; (7) a refusal to acknowledge the misconduct’s wrongful nature; (8) the victim’s vulnerability; (9) substantial experience in the practice of law; (10) indifference to making restitution or rectifying the misconduct’s consequences; (11) illegal conduct, including that involving the use of controlled substances; and (12) likelihood of repetition of the misconduct. Attorney Grievance Comm’n v. Sperling, 459 Md. 194, 275 (2018) (citation omitted). Bar Counsel has the burden of proving the existence of aggravating factors by clear and convincing evidence.

Attorney Grievance Comm’n v. Edwards, 462 Md. 642, 708 (2019). The hearing judge found the existence of five aggravating factors: (1) prior disciplinary offenses; (2) a dishonest or selfish motive; (3) a pattern of misconduct; (4) bad faith obstruction of the disciplinary proceeding; and (5) substantial experience in the practice of law. The hearing judge concluded that Mr. Malone received prior discipline, i.e., the public reprimand by the Virginia State Bar on February 11, 2012, and the private reprimand by the United States District Court for the District of Maryland on December 12, 2012. 28 The hearing judge concluded that Mr. Malone “demonstrated a dishonest and selfish motive and committed a pattern of misconduct in his years long pursuit for admission to the Texas Bar, engaging in a sustained course of dishonesty and deceit.” The hearing judge concluded that Mr. Malone engaged in bad faith obstruction of the disciplinary process, based on Mr. Malone’s invocation of the Fifth Amendment privilege against self-incrimination at his deposition in response to every question he was asked, including questions asking him: (1) to spell his name for the record; (2) whether he received the documents that Bar Counsel had emailed him prior to the deposition; and (3) whether he was able to see what Bar Counsel was sharing on her screen. Finally, the hearing judge found that Mr. Malone was admitted to the Maryland Bar in 1999 and, therefore, has substantial experience in the practice of law.

Mitigating Factors We have previously listed relevant mitigating factors as including absence of a prior disciplinary record; absence of a dishonest or selfish motive; personal or emotional problems; timely good faith efforts to make restitution or to rectify consequences of misconduct; full and free disclosure to disciplinary board or cooperative attitude toward proceedings; inexperience in the practice of law; character or reputation; physical or mental disability or impairment; delay in disciplinary proceedings; interim rehabilitation; imposition of other penalties or sanctions; remorse; and finally, remoteness of prior offenses. Attorney Grievance Comm’n v. Hodes, 441 Md. 136, 209 (2014) (citation omitted). An attorney must prove the existence of mitigating circumstances by a preponderance of the evidence. Edwards, 462 Md. at 708 . 29 The hearing judge concluded that Mr. Malone failed to prove any mitigating circumstances by a preponderance of the evidence.

III Standard of Review “This Court has original and complete jurisdiction in an attorney disciplinary proceeding and conducts an independent review of the record. The hearing judge’s findings of fact are left undisturbed unless those findings are clearly erroneous. We review the hearing judge’s conclusions of law without deference.” Attorney Grievance Comm’n v. Hoerauf, 469 Md. 179, 207-08 (2020) (cleaned up). IV Discussion Either party may file “exceptions to the findings and conclusions of the hearing judge[.]” Md. Rule 19-728(b).

Bar Counsel has not filed any exceptions. In his exceptions, Mr. Malone claims that the hearing judge erred by: “(1) punishing Respondent when he invoked his Fifth Amendment right against self-incrimination; (2) failing to undertake an analysis of mitigating factors; (3) failing to recognize the existence of various mitigating factors; and (4) failing to properly analyze the existence of aggravating factors.”11 We disagree with Mr. Malone’s claim that the hearing judge “punished” him for invoking the privilege against self-incrimination. We also determine that the hearing judge 11 Mr. Malone contends that the hearing judge erred in his application of the aggravating factors of dishonest or selfish motive and pattern of misconduct. According to Mr. Malone, “[w]hen analyzing those factors on page 24 [of his opinion]…, the trial court 30 properly concluded that Mr. Malone violated the MLRPC, as alleged by Bar Counsel.

However, we conclude that the hearing judge’s order precluding Mr. Malone from testifying at the evidentiary hearing was in error to the extent it prevented Mr. Malone from testifying as to mitigating factors. We conclude that a limited remand is necessary to permit Mr. Malone to testify concerning mitigation, and to allow the hearing judge to make any appropriate supplemental findings concerning mitigating factors and aggravating factors. A. The Hearing Judge’s Ruling Precluding Mr. Malone From Testifying at the Evidentiary Hearing The Fifth Amendment provides: “No person ... shall be compelled in any criminal case to be a witness against himself.” U.S. CONST. amend. V. In order to be subject to a valid assertion of the Fifth Amendment privilege, an individual’s statement must be compelled, testimonial, and self-incriminating.

See Fisher v. United States, 425 U.S. 391, 408 (1976). “This right against self-incrimination is based on the ‘conviction that too high simply details how [Mr. Malone] invoked the Fifth Amendment. The trial court never says why invoking the Fifth Amendment was ‘dishonest or selfish’ or why it represents a ‘pattern of misconduct.’ This was clear error and the idea that the assertion of one’s Constitutional rights is somehow dishonest, selfish, or misconduct is, to say the least, deeply troubling.” It appears that Mr. Malone has misunderstood this part of the hearing judge’s opinion. The hearing judge analyzed the aggravating factors of dishonest or selfish motive and pattern of misconduct on page 23 (and the top of page 24) of his opinion, without mentioning Mr. Malone’s assertion of the Fifth Amendment. The confusion seemingly stems from the headings the hearing judge used in the aggravating factors section of his opinion.

The hearing judge analyzed the aggravating factors of dishonest or selfish motive and pattern of misconduct under a heading tied to the aggravating factor of prior discipline. The hearing judge discussed the aggravating factor of bad faith obstruction of the disciplinary proceeding, in part, under a heading tied to the factors of dishonest or selfish motive and pattern of misconduct. 31 a price may be paid even for the unhampered enforcement of the criminal law and that, in its attainment, other social objects of a free society should not be sacrificed.’” In re Ariel G., 383 Md. 240, 245 (2004) (quoting Hoffman v. United States, 341 U.S. 479, 486 (1951)). To further these goals, “the Fifth Amendment allows an individual to refuse, without threat of punishment, to respond to questions the answers to which not only would support a criminal conviction, but also those that would ‘furnish a link in the chain of evidence needed to prosecute the claimant for a ... crime.’” Id. (quoting Hoffman, 341 U.S. at 486 ).

To “invoke the right against self-incrimination, ‘it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer ... might be dangerous because injurious disclosure could result.’” Id. at 246 (quoting Hoffman, 341 U.S. at 486-87 ). Mr. Malone contends that the hearing judge erroneously relied on Maryland State Bar Association, Inc. v. Sugarman, 273 Md. 306 (1974), and “punished” him for asserting his Fifth Amendment privilege at the deposition and in response to Bar Counsel’s requests for production of documents. Mr. Malone asks us to overrule Sugarman or to limit Sugarman to its facts. We reject Mr. Malone’s characterization of the hearing judge’s ruling, as well as his contention that Sugarman was incorrectly decided or that we should limit its scope.

In Sugarman, this Court held that testimony compelled under a federal witness immunity statute, 18 U.S.C. § 6002 , may form the evidentiary basis for disciplinary action against an attorney. 273 Md. at 318-19 . Sugarman, an attorney, testified as a witness under a grant of federal immunity in a criminal case against Dale Anderson in United States 32 District Court. Id. at 308 . At Anderson’s trial, Sugarman admitted to having engaged in a scheme to avoid income taxes for a client, which included providing fraudulent invoices to the client for services Sugarman had not actually rendered.

See id. at 308-09 . After Sugarman’s immunized testimony from the criminal trial was admitted at his disciplinary hearing, the disciplinary panel recommended disbarment. See id. Sugarman argued before this Court that the use of his compelled testimony at his disciplinary hearing violated the Fifth Amendment.

See id. at 309-10 . This Court disagreed, holding that, while the Fifth Amendment ensures that compelled testimony “can in no way lead to the infliction of criminal penalties,” id. at 310 (quoting Kastigar v. United States, 406 U.S. 441, 461 (1972)), the admission of Sugarman’s immunized statements at the disciplinary hearing did not violate the Fifth Amendment because disbarment is not a criminal penalty. See id. at 315-16 (explaining that “disciplinary proceedings for professional misconduct are not criminal proceedings” and relying on the “traditional view of disbarment” as “not intended as punishment to the individual, but as protection to the public from such individuals”). In his written opinion following the evidentiary hearing in this case, the hearing judge cited Sugarman in a footnote after stating that he had precluded Mr. Malone from testifying at the hearing.

Mr. Malone interprets this citation of Sugarman as indicating that the hearing judge failed to recognize that the Fifth Amendment applies to disciplinary cases. From that premise, Mr. Malone argues that the hearing judge “punished” him for his invocation of his privilege against self-incrimination by precluding his testimony. Mr. Malone has misinterpreted the hearing judge’s reference to Sugarman. At the hearing on the motion in limine, both Bar Counsel and the hearing judge made plain that 33 Mr. Malone did have the right under the Fifth Amendment to refuse to answer any questions at his deposition, or to produce records, that might tend to incriminate him.

Of course, we agree: it is well settled that, unless the privilege previously has been waived, an attorney charged with disciplinary offenses has the right under the Fifth Amendment to refuse to answer a question – during discovery or at the evidentiary hearing on the charges – if a truthful answer to such a question might tend to incriminate the attorney. See, e.g., Spevack v. Klein, 385 U.S. 511 (1967); Attorney