Attorney Grievance v. Malone

Attorney Grievance Commission of Maryland v. Edward Allen Malone, Misc. Docket AG No. 47, September Term, 2020 ATTORNEY DISCIPLINE – SANCTIONS – DISBARMENT – Court of Appeals disbarred lawyer who, among other things, knowingly and intentionally misrepresented his disciplinary history on Texas Bar application by failing to disclose his prior disciplinary history; intentionally failed to disclose his admission to various bars in attempt to conceal his disciplinary history from Texas Board of Law Examiners; knowingly and intentionally provided false affidavits under oath, swearing that all information contained in his Texas Bar applications was true and correct; and knowingly and intentionally misrepresented that disclosure failures in his Texas Bar application were result of not reading application questions carefully enough. In addition, over period of several years, lawyer knowingly and intentionally failed to supplement Texas Bar application and re-applications with information concerning bar admissions and disciplinary history, thereby failing to correct misconception that he had fully disclosed his disciplinary history in all jurisdictions in which he was licensed; and engaged in pattern of dishonest and deceitful conduct that was prejudicial to administration of justice in applying to be admitted to Texas Bar. Such conduct violated Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”) 8.1(a) and (b) (Bar Admission and Disciplinary Matters), 8.4(b) (Criminal Act), 8.4(c) (Dishonesty, Fraud, Deceit, or Misrepresentation), 8.4(d) (Conduct that is Prejudicial to Administration of Justice), and 8.4(a) (Violating MLRPC).

Circuit Court for Anne Arundel County Case No. C-02-CV-20-002203 Argued: October 4, 2022 IN THE COURT OF APPEALS OF MARYLAND Misc. Docket AG No. 47 September Term, 2020 ______________________________________ ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. EDWARD ALLEN MALONE ______________________________________ Fader, C.J. Watts Hotten Booth Biran Gould Eaves, JJ. ______________________________________ Opinion by Watts, J. ______________________________________ Filed: November 18, 2022 Pursuant to the Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2022-11-18 12:54-05:00 Gregory Hilton, Clerk This attorney discipline proceeding involves a lawyer who engaged in a continued course of dishonest and deceitful conduct to gain admission to the Bar of Texas. In Attorney Grievance Comm’n v. Malone, 477 Md. 225, 291-92 , 269 A.3d 282, 321-22 (2022) (“Malone I”), we concluded that Edward Allen Malone, Respondent, “knowingly and intentionally provided false responses on his sworn Texas bar applications” when he failed to disclose information concerning his prior disciplinary history and bar admissions and “declared under oath in his affidavit that the information he provided was true and correct, thereby committing perjury under Texas law.” In addition, we concluded that Malone knowingly and intentionally failed to supplement his Texas Bar application and subsequent re-applications with accurate information and thereby failed to correct the misapprehension that he had fully disclosed his disciplinary history in the jurisdictions in which he was licensed. See id. at 292 , 269 A.3d at 321 .

We determined that, with this misconduct, Malone, a member of the Bar of Maryland, violated Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”) 8.1(a) and (b) (Bar Admission and Disciplinary Matters), 8.4(a) (Violating the MLRPC), 8.4(b) (Criminal Act), 8.4(c) (Dishonesty, Fraud, Deceit, or Misrepresentation), and 8.4(d) (Conduct that is Prejudicial to the Administration of Justice). See id. at 294 , 269 A.3d at 323 .1 Rather than imposing a sanction, we ordered a limited remand to the hearing judge to reopen the evidentiary hearing for the purposes of: (1) permitting Malone to testify 1 Effective July 1, 2016, the MLRPC were renamed the Maryland Attorneys’ Rules of Professional Conduct, or MARPC, and renumbered without substantive change in Title 19 of the Maryland Rules. The petition for disciplinary or remedial action charged only violations of the MLRPC. concerning mitigating factors; (2) allowing Bar Counsel to call witnesses and introduce exhibits rebutting Malone’s testimony with respect to mitigation; (3) allowing the parties to present arguments concerning mitigating and aggravating factors; and (4) allowing the hearing judge to issue supplemental findings of fact and conclusions of law as to mitigating factors and, if necessary, aggravating factors. See Malone I, 477 Md. at 293 , 269 A.3d at 322 .

We deferred ruling on any applicable aggravating and mitigating factors and the appropriate sanction pending the outcome of the remand. See id. at 236-37 , 269 A.3d at 289 . The limited remand stemmed from our conclusion that regardless of his invocation of the Fifth Amendment in response to a question from Bar Counsel as to mitigation at a deposition, Malone should have been permitted to testify concerning mitigation at the disciplinary hearing. See id. at 294 , 269 A.3d at 323 .2 As such, “we conclude[d] that the 2 During discovery, “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.” Malone I, 477 Md. at 235 , 269 A.3d at 288 .

Bar Counsel took the position that Malone invoked the Fifth Amendment improperly but did not seek to compel discovery. See id. at 235 , 269 A.3d at 288 . “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.” Id. at 235-36 , 269 A.3d at 288 . On April 26, 2021, the hearing judge conducted a hearing on the motion in limine. See id. at 241 , 269 A.3d at 291-92 .

In Malone I, we summarized Malone’s contentions at the hearing as follows: 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. -2- hearing judge’s order precluding [] Malone from testifying at the evidentiary hearing was in error to the extent it prevented [] Malone from testifying as to mitigating factors.” Malone I, 477 Md. at 263 , 269 A.3d at 304 . On March 22, 2022, on remand, the hearing judge conducted a hearing. At the hearing, Malone testified as to mitigation and offered exhibits into evidence.

On May 10, 2022, the hearing judge filed supplemental findings of fact and conclusions of law, making findings as to mitigating and aggravating factors.3 On October 4, 2022, we heard oral argument. For the below reasons, we disbar Malone. BACKGROUND Hearing Judge’s Findings of Fact and Conclusions of Law In Malone I, 477 Md. at 248-56 , 269 A.3d at 295-300 , we summarized the hearing judge’s findings of fact as follows: 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 District of Id. at 236 , 269 A.3d at 288 (brackets omitted).

The hearing judge ruled that Malone had invoked the Fifth Amendment privilege against self-incrimination in bad faith, granted Bar Counsel’s motion in limine, and precluded Malone from testifying at the evidentiary hearing, including as to mitigating factors. See id. at 236, 263 , 269 A.3d at 288, 304 . 3 On April 5, 2022, with the approval of the hearing judge and with Malone’s consent, Bar Counsel filed a “Consent Motion for Extension of Time to File Findings of Fact and Conclusions of Law” in which Bar Counsel requested an extension of time from May 6, 2022, to May 13, 2022, for the hearing judge to file findings of fact and conclusions of law. On the same day, this Court granted the motion. -3- 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 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). 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 -4- 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 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). 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 [of Law Examiners (“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 -5- 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. 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 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.” 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. -6- 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 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. Malone’s moral character.” The Texas Board further found a “clear and rational connection” between Mr. Malone fraudulently obtaining -7- 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 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 -8- 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 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. (Footnotes omitted) (ellipses and most alterations in original).4 Based on these findings of 4 In Malone I, 477 Md. at 290 n.24, 269 A.3d at 321 n.24, we explained that Malone excepted to two of the hearing judge’s findings of fact: First, Mr. Malone t[ook] issue with the hearing judge’s finding that Mr. Malone decided in 2013 to convert his Texas application to general -9- fact, the hearing judge concluded by clear and convincing evidence that Malone violated MLRPC 8.1(a), 8.1(b), 8.4(a), 8.4(b), 8.4(c), and 8.4(d). See Malone I, 477 Md. at 256 , 269 A.3d at 300 .5 Malone I In Malone I, 477 Md. at 290 , 269 A.3d at 320-21 , we determined that the hearing judge correctly concluded that Malone violated MLRPC 8.1(a), 8.1(b), 8.4(a), 8.4(b), 8.4(c), and 8.4(d). We explained: We agree with the hearing judge’s conclusion that Mr. Malone violated Rule 8.1(a) when he answered “no” to Questions 13 and 17(c) on his Texas Bar application.

The hearing judge concluded that, in so doing, admission by examination because he believed that his tax returns were “none of the Board’s business.” Mr. Malone state[d] that he “in fact told the Texas Board that he decided to take the Texas law exam in order to learn Texas law” and that the hearing judge “took a 2017 statement by Respondent that his tax returns were ‘none of the board’s business’ out of context.” Second, Mr. Malone contend[ed] that the hearing judge erred in finding that Mr. Malone told the Texas Board that he did not “remember” being admitted to the United States District Court for the District of Maryland, when in fact, he testified before the Board that it was the federal district court’s private reprimand that he did not remember. We “assume[d] for present purposes that Mr. Malone’s exceptions to these two factual findings [we]re well taken[,]” but stated that “sustaining these exceptions [did] not materially affect the analysis [of] whether Mr. Malone violated the MLRPC, as alleged by Bar Counsel.” Id. at 290 n.24, 269 A.3d at 321 n.24. 5 The hearing judge originally found “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[,]” and concluded that Malone had failed to prove any mitigating factors by a preponderance of the evidence. Malone I, 477 Md. at 260-61 , 269 A.3d at 303 . In addition to excepting to the hearing judge’s ruling concerning the invocation of his Fifth Amendment privilege against self-incrimination, Malone excepted to what he described as the hearing judge’s “fail[ure] to undertake an analysis of mitigating factors[,] [] fail[ure] to recognize the existence of various mitigating factors[,] and [] fail[ure] to properly analyze the existence of aggravating factors.” Id. at 262 , 269 A.3d at 303-04 (cleaned up). - 10 - Mr. Malone knowingly and intentionally misrepresented his disciplinary history by failing to disclose that he had been held in contempt by the bankruptcy court, sanctioned by the United States District Court for the District of Maryland, and reprimanded and administratively suspended in Virginia.

The hearing judge also concluded that Mr. Malone violated Rule 8.1(a) by intentionally failing to disclose his admissions to the Virginia Bar and various United States District Courts to conceal his disciplinary history from the Texas Board. In addition, the hearing judge concluded, Mr. Malone’s affidavit swearing that he “responded to all inquiries on [the application] fully and frankly, and [that] all the information contained in [the] application is true and correct,” was also knowingly and intentionally false. The hearing judge further found that, during the Board’s subsequent investigation of Mr. Malone, he continued to make misrepresentations, falsely stating that his disclosure failures were the result of not reading the bar applications questions carefully enough. Based on the record before the hearing judge, we determine that the hearing judge’s conclusions regarding Rule 8.1(a) are supported by clear and convincing evidence.

The hearing judge concluded that Mr. Malone violated Rule 8.1(b) when he knowingly and intentionally failed to supplement his June 2013 bar application and subsequent re-applications with his admissions and disciplinary history, thereby failing to correct the misapprehension that he had fully disclosed his disciplinary history in all licensed jurisdictions. The hearing judge further found that Mr. Malone failed to provide the Board with a list of all federal jurisdictions in which he was licensed until September 2016, when the Board explicitly asked for such information during his character and fitness investigation of his reapplication after his Texas license was canceled. We agree with the hearing judge that this conduct violated Rule 8.1(b). *** The hearing judge correctly concluded that Mr. Malone violated Rule 8.4(a) by violating other Rules of Professional Conduct. We also agree with the hearing judge’s conclusion that Mr. Malone violated Rule 8.4(b) when he knowingly and intentionally provided false responses on his sworn Texas bar applications and when he declared under oath in his affidavit that the information he provided was true and correct, thereby committing perjury under Texas law.

By definition, this conduct also constituted a violation of Rule 8.4(c), which prohibits attorneys from engaging in intentional acts of dishonesty. We also agree with the hearing judge’s conclusion that Mr. Malone violated Rule 8.4(d). His pattern of dishonest and deceitful conduct in his efforts to be admitted to the Bar in Texas reflects negatively on the public’s - 11 - perception of the legal profession. Id. at 291-92 , 269 A.3d at 321-22 (footnote omitted) (alterations in original).

As discussed above, we remanded the case to the hearing judge for further proceedings and the issuance of a supplemental opinion with findings of fact and conclusions of law concerning mitigating factors and, if warranted, revision of the prior findings of fact and conclusions of law concerning aggravating factors. See id. at 293 , 269 A.3d at 322-23 . Hearing Judge’s Supplemental Findings of Fact and Conclusions of Law Below is a summary of the hearing judge’s supplemental findings of fact and conclusions of law with respect to mitigating and aggravating factors. Mitigating Factors In the supplemental findings of fact and conclusions of law, the hearing judge began by observing that he had “heard and considered” Malone’s testimony and found “him credible on certain topics and not credible on others.” The hearing judge noted that he had considered Malone’s “overall demeanor, difficulty in acknowledging the wrongful nature of his conduct, and propensity to blame others for his conduct.” The hearing judge stated that although Malone had taken numerous continuing legal education classes on ethics through the Virginia Bar, he (the hearing judge) “was left with the impression that [Malone] has a fundamental misunderstanding of legal ethics in general, and in particular, why it is fundamentally important that attorneys be genuine and honest.” According to the hearing judge, “[a]n example of this fundamental disconnect” could be found in Malone’s seeming inability to understand that “it was wrong to note his association with a Texas traffic court - 12 - case as ‘pro hac’ at a time when he was neither licensed, nor permitted, pro hac vice, to practice law in Texas.” The hearing judge rejected Malone’s contention that he had taken responsibility for his misconduct and rehabilitated himself, finding that such assertions were undermined by Malone’s “apparent inability to understand why some of his actions are wrong.” The hearing judge explained that, “[b]eginning in or around June 2016, [Malone] continued to perpetrate falsehoods[,]” and that on July 7, 2017, at a character and fitness hearing of the Texas Board, Malone falsely 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 recall that he was admitted to that particular court.

The hearing judge concluded that Malone’s testimony before the Texas Board was not credible, explaining that Malone had been disciplined in the District Court of Maryland in December 2012, only six months before he applied to the Texas Bar in June 2013, and that Malone represented a client in the District Court at the time that he applied to the Texas Bar in June 2013. The hearing judge pointed out that, in an order dated July 21, 2017, the Texas Board concluded that Malone did not possess the good moral character required for admission to the Texas Bar. The hearing judge explained that instead of accepting responsibility for his misconduct in the application process, Malone filed a petition for review in a Texas trial court, stating that the Texas Board had 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[.]” The hearing judge noted that Malone accused the Texas Board “of acting out of spite and trying to destroy” him and “lying and behaving arrogantly.” - 13 - The hearing judge explained that although Malone stipulated to the factual findings in Virginia’s revocation opinion concerning his representation of a client in a Texas court after the Texas Board had rescinded his law license, he “failed and refused to acknowledge that his conduct constituted the unauthorized practice of law.” (Citations omitted). Instead, on remand before the hearing judge, Malone testified that the Texas court “had mistreated and wronged him because they reported him and got him in trouble.” (Cleaned up).

After recounting all of the above, the hearing judge found that Malone had demonstrated by a preponderance of the evidence mitigation in the form of his church and volunteer work. The hearing judge explained that Malone is involved with at least two churches and provides “practical advice on an informal basis to churches wishing to do such things as renew their charters or articles of incorporation.” According to the hearing judge, Malone’s legal training and involvement with the churches allow him to provide such services on a limited basis and any concerns about Malone practicing law without a license were “allayed by” Malone’s “credible testimony that his work was limited in scope to practical matters supplementing the work of others who were licensed to provide legal services in those jurisdictions.” The hearing judge also found that Malone has been very involved in other non-legal volunteer activities that benefit his community. In addition, the hearing judge found that Malone “has demonstrated remorse to the degree to which he understands his ethical shortcomings.” Aggravating Factors The hearing judge found the existence of the same five aggravating factors for the same reasons given in the original opinion: (1) prior disciplinary offenses; (2) a dishonest - 14 - 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.6 With respect to the first factor, the hearing judge found that on February 11, 2012, the Virginia State Bar publicly reprimanded Malone and, on December 12, 2012, the United States District Court for the District of Maryland privately reprimanded him. Regarding the second and third factors, the hearing judge found that Malone had “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.” As to the fourth factor, the hearing judge explained that Malone had engaged in bad faith obstruction of the disciplinary proceeding.

The hearing judge stated that, on March 2, 2021, Bar Counsel served Malone with a notice of deposition, and two days later, on March 4, 2021, Malone filed a motion for a protective order and to quash the notice of deposition, arguing, in part, that the deposition would violate his Fifth Amendment right against self-incrimination. On March 9, 2021, the hearing judge denied Malone’s motion. On March 29, 2021, Malone appeared remotely for the deposition but did not answer any questions,7 instead invoking his Fifth Amendment privilege against self-incrimination in 6 In both the original and supplemental findings of fact and conclusions of law, the hearing judge’s discussion of the reasons for finding each factor appeared to overlap among the factors. 7 After responding in the affirmative when asked whether it was his intention to assert the Fifth Amendment privilege to any and all questions, Malone invoked the Fifth Amendment in response to all other questions. See Malone I, 477 Md. at 240-41 , 269 A.3d at 291 . - 15 - response to each question asked, including questions asking him to spell his name for the record, whether he had received documents emailed to him by Bar Counsel prior to deposition, and whether he was able to see what Bar Counsel was sharing on the screen.

On April 1, 2021, Bar Counsel filed a motion in limine requesting that Malone be precluded from testifying at the evidentiary hearing and, after a hearing on April 26, 2021, the hearing judge granted the motion, ruling that Malone had invoked the Fifth Amendment privilege against self-incrimination in bad faith. As such, Malone was precluded from testifying at the evidentiary hearing. With respect to the fifth factor, the hearing judge found that Malone’s misconduct was aggravated by substantial experience in the practice of law, as he was admitted to the Bar of Maryland in 1999. STANDARD OF REVIEW In an attorney discipline proceeding, we review for clear error a hearing judge’s findings of fact and review without deference a hearing judge’s conclusions of law.

See Md. R. 19-740(b)(1) and (b)(2)(B); Attorney Grievance Comm’n v. Slate, 457 Md. 610, 626 , 180 A.3d 134, 144 (2018). We determine whether clear and convincing evidence establishes that a lawyer violated an MLRPC. See Md. R. 19-727(c). DISCUSSION (A) Exceptions 1.

Mitigating Factors Malone excepts to the hearing judge’s failure to find particular alleged mitigating factors. We overrule all of the exceptions. - 16 - Timely good faith efforts to make restitution or to rectify consequences of the misconduct Malone excepts to the hearing judge’s failure to find the mitigating factor of timely good faith efforts to make restitution or to rectify consequences of the misconduct. Malone contends that, in failing to find that he made good faith efforts to make restitution for his actions in Texas, the hearing judge overlooked the circumstance that he had been ordered to return only unearned fees to clients and that at the hearing on remand, he testified that he not only returned unearned fees but also provided full refunds to clients because he was remorseful. Malone alleges that his testimony demonstrated his efforts to make restitution and rectify the consequences of his misconduct and showed that he accepted responsibility for his actions.

We overrule Malone’s exception to the lack of a finding of the mitigating factor of timely good faith efforts to make restitution or to rectify the consequences of the misconduct. To be sure, at the remand hearing, Malone testified that, while he was licensed to practice law in Texas from 2015 to June of 2016, he represented three clients who paid to retain his services and that he refunded their money. Malone testified about his reasons for refunding the money, stating: “The Texas Supreme Court told me to give back all unearned funds, all unearned fees. I felt ashamed that I let the clients down.

I wanted to give them back enough so that they can hire somebody else, so I issued full refunds.” Malone also testified that, even though he was not required to give the clients full refunds, he did so because he “couldn’t take them to the finish line and [he] felt bad[,]” “[t]hat [he] was wrong[,]” and that he thought it was the right thing to do because if the client did not - 17 - get anything from him, the client “should receive a refund so they can hire another attorney.” We have explained on more than one occasion that “we afford a great deal of deference to the hearing judge’s credibility determinations[,]” and that “[t]he underlying justification for our deference to the hearing judge’s credibility determinations is based on the premise that the hearing judge is in the best position to assess the credibility of witnesses[.]” Attorney Grievance Comm’n v. Miller, 467 Md. 176, 195 , 223 A.3d 976, 987 (2020) (cleaned up). See also Attorney Grievance Comm’n v. Tanko, 408 Md. 404, 420 , 969 A.2d 1010, 1020 (2009) (“Undoubtedly, the hearing judge had the best opportunity to evaluate the veracity of the respondent’s explanation concerning his” alleged violation of the MLRPC.). In addition, we have stated that, “[g]enerally, a hearing judge maintains a great deal of discretion in determining which evidence to rely upon[,]” and, in making “findings of fact, the hearing judge is permitted to pick and choose which evidence to rely upon from the conflicting array of facts presented.” Miller, 467 Md. at 195 , 223 A.3d at 987 (cleaned up). In addition, Maryland Rule 19-740(b)(2)(B) instructs that we “give due regard to the opportunity of the hearing judge to assess the credibility of witnesses.” In this case, at the outset of the supplemental findings of fact and conclusions of law, the hearing judge explained that he found Malone “credible on certain topics and not credible on others.” In other words, the hearing judge stated that he found some of Malone’s testimony not credible.

It is apparent that the hearing judge found Malone’s testimony as to providing refunds to clients and the reasons for the refunds not credible. - 18 - Given the nature of the testimony, the hearing judge may have been unable to ascertain that the amount of any unearned fees would have been less than a full refund, and in the event that the hearing judge was satisfied that a full refund would have exceeded the amount of unearned fees, the hearing judge was not required to credit Malone’s testimony as to either giving full refunds or the reasons for doing so. The only exhibit that Malone referred to during this testimony was Exhibit D, which Malone testified was “a list of client[s] in Texas that [he] had to disengage with after Texas withdrew [his] law license.” Exhibit D is an untitled four-line document (that appears to have been typed by Malone or his counsel) listing four clients, three by name, with the word “refunded” and an amount for each client—$3,500, $750, $1,000, and $1,000. The hearing judge was in the best position to assess the veracity of Malone’s testimony as to the matter, and we accord deference to the hearing judge’s determination. Cooperative attitude during the proceedings For three reasons, Malone excepts to the hearing judge’s failure to find the mitigating factor of a cooperative attitude during the proceedings.

First, according to Malone, the hearing judge ignored that he self-reported matters that led to the filing of the petition for disciplinary or remedial action. Second, Malone contends that the hearing judge ignored that, in Malone I, this Court noted that he had cooperated during the investigation and discovery process. Third, Malone argues that the record in this case demonstrates that he had a cooperative attitude during the proceedings—namely, he responded to the petition for disciplinary or remedial action and Bar Counsel’s discovery requests, he sat for a deposition, and he appeared for and took part in the evidentiary - 19 - hearing—all of which, according to Malone, shows that he was cooperative. We overrule Malone’s exception to the hearing judge not finding the mitigating factor of a cooperative attitude toward the attorney discipline proceeding.

As with the mitigating factor of timely good faith efforts to make restitution or to rectify the consequences of the misconduct, this mitigating factor—having a cooperative attitude—is one that is based on the attorney’s behavior, demeanor, and, in part, credibility. In this case, we decline to disturb the hearing judge’s non-finding of the mitigating factor. In the supplemental findings of fact and conclusions of law, at the beginning of the section titled “Mitigating Factors,” the hearing judge accurately identified the list of mitigating factors that this Court considers in determining an appropriate sanction. The hearing judge’s list included the factor of “full and free disclosure to disciplinary board and cooperative attitude toward proceedings.” As such, the hearing judge’s opinion demonstrates that, as with other potentially applicable mitigating factors, the judge was aware of this factor and declined to find it.

That Malone may have self-reported his misconduct to the Maryland Bar (and other jurisdictions), thus, according to him, beginning the disciplinary proceeding and leading to an investigation, is not dispositive of whether he had a cooperative attitude toward the attorney discipline proceeding. Pursuant to Maryland Rule 19-737(a), an attorney who is disbarred, suspended, or otherwise disciplined in another jurisdiction is required to promptly inform Bar Counsel of the discipline. That Malone self-reported means that he fulfilled the duty imposed upon all attorneys in Maryland to comply with the Rule on self- reporting and does not necessarily demonstrate that the mitigating factor of a cooperative - 20 - attitude toward the disciplinary proceedings is established. To the extent that Malone relies on language from this Court’s opinion in Malone I and contends that the opinion and record demonstrate that the factor of a cooperative attitude toward the disciplinary proceedings exists, we disagree.

In Malone I, we did not make a determination with respect to any mitigating factors, as the hearing judge initially found none, and the purpose of the remand was to provide Malone with the chance to offer evidence as to mitigation. In bringing the instant exception, Malone appears to rely on our discussion in Malone I of Bar Counsel’s explanation for the failure to file a motion to compel discovery before seeking to exclude Malone’s testimony at the disciplinary hearing based on his assertion of the Fifth Amendment privilege at a deposition. In Malone I, 477 Md. at 272 , 269 A.3d at 309 , we stated that, “to the extent Bar Counsel contend[ed] that [] Malone was totally uncooperative in the discovery process and that this uncooperativeness justified foregoing a motion to compel, Bar Counsel proceed[ed] on a flawed premise.” We explained that although Malone had failed to answer any questions at his deposition, he had responded to seven of Bar Counsel’s nine requests for production of documents without invoking the privilege against self-incrimination and that the assertion of the Fifth Amendment privilege in blanket fashion at the deposition did not equal a failure to appear at the deposition, such that the discovering party could move for sanctions under Maryland Rule 2-432(a) without having obtained an order to compel. See id. at 271-72 , 269 A.3d at 309-10 .

In Malone I, we did not determine that the mitigating factor of cooperative attitude - 21 - had been established or otherwise indicate that on remand the hearing judge was to find the factor. Rather, we explained that Malone had responded, in part, to Bar Counsel’s request for production of documents and appeared for the deposition and that, as a result, the imposition of immediate sanctions under Maryland Rule 2-432(a) was not permitted. See id. at 271-72 , 269 A.3d at 309-10 . Insofar as Malone’s argument that the mitigating factor of a cooperative attitude applies because of language in this Court’s opinion in Malone I is concerned, he has taken our discussion out of context.

As to Malone’s contention that his participation in discovery and the evidentiary hearing shows that the mitigating factor of cooperation is applicable, again the conduct that Malone relies on is conduct that is expected of any respondent in a disciplinary matter and will not necessarily warrant a determination that the mitigating factor of a cooperative attitude applies—especially where the hearing judge has found just the opposite by finding the aggravating factor of bad faith obstruction of the disciplinary process (which we address below). Self-reporting to other jurisdictions Further, Malone excepts to the hearing judge’s failure to find as mitigation that he self-reported his conduct to other courts, which he testified he did so that his record would be “out in the open” and to show that he “express[ed] remorse” for his actions. Malone also contends that, in addition to self-reporting, he has suffered other consequences for his actions, including the cancellation of his Texas law license and the Texas Board’s refusal to approve his reapplication for admission, which “forc[ed]” him to take the bar exam again. Malone argues that the hearing judge was wrong to indicate that his self-reporting - 22 - and rehabilitation efforts “were undercut by his inability to understand why some of his actions were wrong, including allegedly testifying that he did not remember being admitted to the District Court[.]” Malone asserts that this is “factually incorrect[,]” as he “was not testifying about being admitted to the court, but rather, that he had forgotten the negative experience surrounding the private reprimand he received from that court.” We overrule the exception.

To be sure, at the remand hearing, Malone testified that he self-reported his actions to courts in Maryland and Virginia and the federal court “in order for everything to be out in the open and so [he] wouldn’t have to run and hide and duck anymore.” Malone also responded in the affirmative to questions from his counsel about whether he self-reported because he wanted a fresh start, to rehabilitate himself, and to express remorse. But, the hearing judge was not required to credit Malone’s testimony that he self-reported his misconduct to express remorse for his actions. It is just as likely that Malone self-reported to other jurisdictions because he was aware that he had an obligation to do so and knew that his misconduct would be reported or uncovered in due course in any event, i.e., that his self-reporting was not related to or demonstrative of remorse. In Attorney Grievance Comm’n v. Keating, 471 Md. 614, 652 , 243 A.3d 520, 543 (2020), we determined that the mitigating factor of full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings was present, explaining that the attorney self-reported her conduct in a letter to the Attorney Grievance Commission and fully cooperated with the Commission and a replacement personal representative during probate proceedings.

We observed that Bar Counsel correctly noted - 23 - that the attorney “self-reported her conduct only after [an individual] initiated Petition to Caveat proceedings.” Id. at 652 , 243 A.3d at 543 . We concluded, though, that the attorney “voluntarily shared her transgressions with the Attorney Grievance Commission instead of maintaining the charade of the falsely attested will or hoping the Orphans’ Court would not find or report her violation.” Id. at 652 , 243 A.3d at 543 . We stated that the attorney had “cooperated fully throughout the process and worked with” the individual who replaced her as personal representative to ensure resolution of a client’s estate administration. Id. at 652 , 243 A.3d at 543 .

Similar observations cannot be made in this case about Malone, who had a duty to report his misconduct to other jurisdictions and who, as found by the hearing judge, was not fully cooperative throughout the disciplinary process. In addition, the consequences that Malone brings to our attention, e.g., the cancellation of his law license in Texas and the refusal of the Texas Board to approve his reapplication for admission to the Bar, as establishing the mitigating factor of the imposition of other penalties or sanctions are nothing more than the natural consequences of his having made false statements on bar applications in Texas. See Attorney Grievance Comm’n v. Bonner, 477 Md. 576, 611 , 271 A.3d 249, 270 (2022) (“We will not recognize the natural consequences of intentional misconduct as constituting a mitigating factor that would militate against the imposition of a more serious sanction.”). Delay of proceedings Malone excepts to the hearing judge having not addressed what he alleges is mitigation evidence concerning the lack of a delay in the proceedings.

Malone states that - 24 - Bar Counsel filed the petition for disciplinary or remedial action on December 1, 2020, he responded to discovery requests, and the evidentiary hearing occurred on May 5, 2021— five months later. According to Malone, this is “direct evidence that Respondent did delay the underlying proceedings[.]”8 We overrule the exception. To the extent that, with this exception, Malone argues that he should receive some form of mitigation credit for not having delayed the proceedings himself, by being dilatory in discovery or perhaps with his invocation of the Fifth Amendment privilege, this is an illusory argument. It is not expected that an attorney would do anything other than participate in disciplinary proceedings and not delay the process.

There is no ground for the finding of a mitigating factor simply because an attorney has not engaged in delay of a disciplinary proceeding. As to any allegation of delay by Bar Counsel, the record in this case demonstrates that, on November 20, 2020, Bar Counsel filed the petition for disciplinary or remedial action and on December 1, 2020, this Court issued an order designating a hearing judge. On January 28, 2021, Bar Counsel filed a “Proof of Service” document, stating that, on January 27, 2021, Bar Counsel served Malone with a writ of summons and copies of the December 1, 2020 order and the petition for disciplinary or remedial action. On February 3, 2021, Malone filed a response to the petition.

On February 10, 2021, the hearing judge at the time issued a scheduling and pretrial order, setting the deadlines for discovery and 8 In making the exception, although Malone states that “[t]his is direct evidence that Respondent did delay the underlying proceedings[,]” it is unclear whether Malone means that Bar Counsel delayed the proceedings or whether he means that he did not delay the proceedings. - 25 - motions in limine, and establishing April 26, 2021 as the pretrial conference date and May 5, 2021 as the evidentiary hearing date. The parties then engaged in discovery and filed various motions, which we discussed at length in Malone I, 477 Md. at 238-44, 269 A.3d at 290-93 . On April 7, 2021, the hearing judge at the time granted a motion to recuse that Malone filed, and we issued an order designating a new hearing judge. See id. at 241 n.4, 269 A.3d at 291 n.4.

On May 5, 2021, the evidentiary hearing occurred. See id. at 244 , 269 A.3d at 293 . Based on this sequence of events, it is clear that there was no delay of the disciplinary proceeding by Bar Counsel. Lack of harm Finally, Malone excepts to the hearing judge’s failure to find as a mitigating factor that no member of