Attorney Grievance v. Tabe

Attorney Grievance Commission of Maryland v. Kevin Mbeh Tabe, AG No. 6, September Term, 2022 ATTORNEY DISCIPLINE – SANCTIONS – 90-DAY SUSPENSION – Supreme Court of Maryland* suspended from practice of law for 90 days, with conditions, lawyer who, among other things, failed to competently represent two clients in matters in connection with federal immigration proceedings. In both matters, lawyer failed to deposit fees into trust account. In one matter, lawyer did not appear at preliminary hearing, did not effectively explain asylum process to client, submitted asylum application with several important errors, and lost client’s only form of photographic identification. In second matter, lawyer failed to appear, and caused his client to not appear, at merits hearing, and neglected to include required affidavit with motion to reopen.

Such conduct violated Maryland Attorneys’ Rules of Professional Conduct (“MARPC”) 1.1 (Competence), 1.15(a) (Safekeeping Property), 8.4(d) (Conduct that is Prejudicial to Administration of Justice), and 8.4(a) (Violating MARPC); Maryland Rule 19-404 (Trust Account – Required Deposits); and Federal Immigration Rules of Professional Conduct for Practitioners, 8 C.F.R. § 1003.102 (a)(1), (l), (n), (o), (q), and (r). *At the time of the filing of the Petition for Disciplinary or Remedial Action in this case, the Supreme Court of Maryland was named the Court of Appeals of Maryland. At the November 8, 2022 general election, the voters of Maryland ratified a constitutional amendment changing the name of the Court of Appeals of Maryland to the Supreme Court of Maryland. The name change took effect on December 14, 2022. Circuit Court for Anne Arundel County Case No. C-02-CV-22-000727 Argued: February 3, 2023 IN THE SUPREME COURT OF MARYLAND* AG No. 6 September Term, 2022 ______________________________________ ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. KEVIN MBEH TABE ______________________________________ Fader, C.J. Watts Hotten Booth Biran Gould Eaves, JJ. ______________________________________ Opinion by Watts, J. Pursuant to the Maryland Uniform Electronic Legal Materials ______________________________________ Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2023-02-27 10:03-05:00 Filed: February 27, 2023 Gregory Hilton, Clerk *At the November 8, 2022 general election, the voters of Maryland ratified a constitutional amendment changing the name of the Court of Appeals of Maryland to the Supreme Court of Maryland.

The name change took effect on December 14, 2022. This attorney discipline proceeding involves a lawyer who, by his own admission, failed to competently represent two clients in connection with federal immigration proceedings, resulting in adverse outcomes for both. Both clients were asylum seekers in immigration detention when they retained Kevin Mbeh Tabe, Respondent, a member of the Bar of Maryland. Mr. Tabe did not deposit the funds paid by either client into his attorney trust account.

In the course of representing the clients in separate matters, Mr. Tabe failed to appear at two hearings, including a merits hearing, which he also caused his client to miss, did not effectively explain the asylum process to a client, submitted an asylum application with several important errors, lost a client’s only form of photographic identification, and neglected to include a required affidavit with a motion to reopen a matter. On April 20, 2022, on behalf of the Attorney Grievance Commission, Petitioner, Bar Counsel filed a “Petition for Disciplinary or Remedial Action” against Mr. Tabe, charging him with violating Maryland Attorneys’ Rules of Professional Conduct (“MARPC”) 1.1 (Competence), 1.15(a) (Safekeeping Property), 8.4(d) (Conduct that is Prejudicial to the Administration of Justice), and 8.4(a) (Violating the MARPC); Maryland Rule 19-404 (Trust Account – Required Deposits); and Federal Immigration Rules of Professional Conduct for Practitioners, 8 C.F.R. § 1003.102 (a)(1), (l), (n), (o), (q), and (r). On April 26, 2022, we designated the Honorable Stacy W. McCormack (“the hearing judge”) of the Circuit Court for Anne Arundel County to hear this attorney discipline proceeding. On September 19, 2022, the hearing judge conducted a hearing.

On November 4, 2022, the hearing judge issued an opinion including findings of fact and conclusions of law, concluding that Mr. Tabe had violated MARPC 1.1, 1.15,1 and 8.4(a) and (d); Maryland Rule 19-404; and 8 C.F.R. § 1003.102 (a)(1), (l), (n), (o), (q), and (r). On February 3, 2023, we heard oral argument. For the below reasons, we suspend Mr. Tabe from the practice of law in Maryland for 90 days with the condition of the engagement of an attorney monitor for a one-year period upon reinstatement to the practice of law in Maryland. The attorney monitor’s responsibilities shall include, but not be limited to, oversight of workload volume and stress management issues.

BACKGROUND The hearing judge found the following facts, which we summarize. On December 17, 2009, we admitted Mr. Tabe to the Bar of Maryland.2 During his practice of immigration law as relevant to this case, Mr. Tabe maintained a law office in Dallas, Texas. He maintained a Maryland attorney trust account. Representation of Fon Halley Fon After entering the United States seeking asylum in March 2019, Mr. Fon, a citizen of Cameroon, was detained at an immigration detention center located in Pine Prairie, Louisiana, and placed in removal proceedings in the U.S. Immigration Court in Oakdale, Louisiana.

Mr. Fon asked his aunt, Dorothy Fongum, to retain Mr. Tabe to represent him, as he believed he would not be released without an attorney’s assistance. In May 2019, Ms. Fongum retained Mr. Tabe to file an “Application for Asylum, Withholding Removal 1 In the petition for disciplinary or remedial action, Bar Counsel charged a violation of MARPC 1.15(a) only. 2 Mr. Tabe also gained admission to the Bar of New York in January 2009 and became licensed to practice law in Cameroon in 2012. -2- and [Convention Against Torture] Protection” for Mr. Fon and to represent Mr. Fon in immigration court, paying a flat fee of $4,000. Mr. Tabe did not place these funds in an attorney trust account pending the earning of fees or incurring of expenses. That same month, shortly after Mr. Tabe was retained to represent Mr. Fon, the court held a master calendar hearing3 which Mr. Tabe knew about, but did not appear at.

Based on Mr. Fon’s response to the immigration court’s inquiry about whether he had an attorney and Mr. Fon’s testimony at the disciplinary hearing in this case, the hearing judge found that Mr. Tabe had not informed Mr. Fon that he would not be present at the master calendar hearing. The immigration court rescheduled the hearing for June 6, 2019, because Mr. Tabe was not present. Mr. Fon asked to meet with Mr. Tabe before the rescheduled hearing, and Mr. Tabe said they would meet, but they never did. At the June 6, 2019 hearing, at which Mr. Tabe appeared, the immigration court ordered Mr. Fon’s asylum application be submitted by July 9, 2019.

Mr. Tabe gave Mr. Fon a blank asylum application to fill out and return to him, which Mr. Fon did, but the hearing judge found that Mr. Tabe did not “adequately explain the application process to Mr. Fon and failed to review the final application with Mr. Fon before it was filed with the court.” On June 27, 2019, Mr. Tabe filed the asylum application and, after doing so, mailed a copy to Mr. Fon. Mr. Fon informed Mr. Tabe of errors in the application regarding his date of birth, his date of entry into the United States, and his mother’s name. The hearing “A master calendar hearing is an initial hearing in a federal immigration 3 proceeding.” Attorney Grievance Comm’n v. Tatung, 476 Md. 45 , 56 n.6, 258 A.3d 234 , 241 n.6 (2021). -3- judge found that Mr. Fon’s testimony that Mr. Tabe had not provided the final application to him for review prior to filing it with the court was more credible than Mr. Tabe’s testimony that he had done so, in part because of the nature of the errors. After Mr. Fon alerted Mr. Tabe to the errors, Mr. Tabe failed to promptly file an amended application.

In early July 2019, Mr. Tabe received from Ms. Fongum Mr. Fon’s original Cameroonian National Identification Card and affidavits related to the asylum application. Mr. Tabe thereafter lost this identification card, which was Mr. Fon’s only form of photographic identification, as Mr. Tabe knew. On July 9, 2019, Mr. Tabe appeared at a master calendar hearing telephonically rather than in person, which he had not told Mr. Fon he would do, and which prevented Mr. Fon from meeting with him to discuss details of the case. The immigration court scheduled an individual hearing4 for Mr. Fon on August 13, 2019.

On July 10, 2019, Mr. Tabe filed a pre-hearing brief and additional evidence with the court, which included the affidavits and a copy of the identification card. Mr. Tabe met with Mr. Fon for the first and only time 2 weeks prior to the individual hearing, for 30 minutes. The hearing judge found that, at this meeting, Mr. Tabe “failed to adequately explain the asylum process to Mr. Fon or prepare Mr. Fon for his upcoming individual hearing.” The hearing judge noted that, at the disciplinary hearing, Mr. Fon testified that Mr. Tabe “never explained . . . exactly what [Mr. Fon] need[ed] to prove[,]” 4 “Individual hearings (or merits hearings) are substantive hearings conducted during removal proceedings to adjudicate contested matters, including (1) the charge of removability and (2) any applications for relief from removal, including applications for asylum, [Immigration and Nationality Act] withholding of removal, and withholding and deferral of removal under the Convention Against Torture.” Deborah E. Anker, Law of Asylum in the United States Appendix A § A3:25 (2022 ed.) (footnote omitted). -4- told him that the “asylum claim is not a big deal[,]” and did not go over the questions that he would ask Mr. Fon at the hearing. When Mr. Tabe returned some original documents to him, Mr. Fon alerted Mr. Tabe that his National Identification Card was missing.

Mr. Tabe told Mr. Fon he would find it and bring it to the individual hearing. After Mr. Tabe “discovered that he had misplaced Mr. Fon’s original identification card, he failed to advise Mr. Fon or explain to Mr. Fon how the missing identification card could impact his immigration case.” Mr. Tabe not only failed to carefully safekeep this important piece of evidence, but also the hearing judge found that there was no evidence that he attempted to recover it. At the August 13, 2019 individual hearing, the immigration court asked Mr. Tabe about the identification card and Mr. Tabe admitted he could not present it because he had misplaced it. The court relied in part on Mr. Fon’s lack of photographic identification in finding that he was not credible5 and therefore denying his application for asylum and ordering him removed from the country.

In early September 2019, Ms. Fongum retained Mr. Tabe on behalf of Mr. Fon to represent him in his appeal to the BIA. Ms. Fongum paid Mr. Tabe $1,400 toward a flat fee of $2,600, which Mr. Tabe failed to deposit in an attorney trust account. On September 30, 2019, Mr. Tabe filed a brief requesting that the BIA reverse the immigration court’s decision and grant asylum to Mr. Fon. On January 13, 2020, the BIA affirmed the 5 However, the BIA, on appeal, ruled that the lack of credibility was irrelevant because, even assuming Mr. Fon’s credibility, he had not satisfied his burden for the asylum claim. -5- immigration court’s decision and dismissed the appeal.

On September 28, 2020, Mr. Fon filed a complaint against Mr. Tabe with Bar Counsel. Representation of Christian Nkwizi After entering the United States seeking asylum in November 2018, Mr. Nkwizi, a citizen of Cameroon, was detained at an immigration detention center located in Folkston, Georgia, and placed in removal proceedings in the U.S. Immigration Court in Atlanta, Georgia. On January 4, 2019, Mr. Nkwizi retained Mr. Tabe to file an “Application for Asylum, Withholding Removal and [Convention Against Torture] Protection” for him and to represent him in immigration court for a flat fee of $3,000. Mr. Tabe failed to deposit the $3,000 he received for his representation of Mr. Nkwizi into an attorney trust account.

The hearing judge found that this fee was not unreasonable at first, but became unreasonable due to Mr. Tabe’s subsequent failure to provide services of value to Mr. Nkwizi. On March 12, 2019, Mr. Tabe filed an application for asylum on Mr. Nkwizi’s behalf. On April 17, 2019, Mr. Tabe filed a pre-hearing statement and additional evidence in support of the application.6 On May 15, 2019, the immigration court scheduled an individual hearing for Mr. Nkwizi for July 10, 2019, which Mr. Tabe received notice of. On May 23, 2019, Mr. Nkwizi was released from detention on parole and relocated to Boston, Massachusetts to live with family.

On June 26, 2019, Mr. Tabe filed a motion 6 At the disciplinary hearing, Mr. Nkwizi testified that his individual hearing was to occur on May 14, 2019, but there was a “microphone malfunction” and the court rescheduled the hearing for July 10, 2019. -6- to change the venue of Mr. Nkwizi’s proceedings to Boston. Mr. Tabe assured “Mr. Nkwizi that the motion to change venue would be granted and advised him that all his future hearings would be held in Massachusetts.” However, on July 1, 2019, the immigration court denied the motion to change venue and notified Mr. Tabe of the denial via email. Mr. Tabe failed to read the email regarding the denial of the motion or share it with Mr. Nkwizi. Relying on Mr. Tabe’s representation regarding the change of venue and assuming that the hearing in Georgia was not going forward, Mr. Nkwizi did not appear for his individual hearing on July 10, 2019.

Neither did Mr. Tabe, because he assumed the motion had been granted and had not read the email. “Due to his failure to appear, the court deemed Mr. Nkwizi’s asylum application to be abandoned and ordered him removed from the United States.” On his own initiative, Mr. Nkwizi learned of this order the next day, and contacted Mr. Tabe. Mr. Tabe said he had “missed an email” from the court and “promised” Mr. Nkwizi “that he would get things straight” by filing a motion to reopen the case. On July 30, 2019, Mr. Tabe filed the motion as he had said he would, arguing that reopening was appropriate because Mr. Nkwizi had not received timely notice that the motion to change venue had been denied. However, Mr. Tabe did not include an affidavit in support of his statements.

On August 26, 2019, the immigration court denied the motion to reopen, in part because of Mr. Tabe’s failure to include the affidavit. On October 6, 2019, Mr. Nkwizi filed a complaint against Mr. Tabe with Bar Counsel. -7- Aggravating and Mitigating Factors The hearing judge found seven aggravating factors: (1) prior disciplinary history; (2) a pattern of misconduct; (3) multiple offenses; (4) vulnerability of the victims; (5) substantial experience in the practice of law; (6) indifference to making restitution; and (7) likelihood of repetition of misconduct. The hearing judge also found four mitigating factors: (1) full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings; (2) remorse; (3) the absence of a dishonest or selfish motive; and (4) personal or emotional problems. 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) (The Court “shall review de novo the [hearing] judge’s conclusions of law.”); Md. R. 19-740(b)(2)(B) (“The Court shall give due regard to the opportunity of the hearing judge to assess the credibility of witnesses.”); Attorney Grievance Comm’n v. Slate, 457 Md. 610, 626 , 180 A.3d 134, 144 (2018). We may treat a hearing judge’s “findings of fact as established” when neither party excepts to them. Md. R. 19- 740(b)(2)(A). We determine whether clear and convincing evidence establishes that a lawyer violated an MARPC.

See Md. R. 19-727(c). DISCUSSION (A) Exceptions to Findings of Fact and Aggravating Factors Failure to Adequately Prepare Mr. Fon Mr. Tabe excepts to the hearing judge’s findings that he “failed to adequately -8- explain the asylum process to Mr. Fon or prepare Mr. Fon for his upcoming individual hearing” and that he only met with Mr. Fon once. Mr. Tabe contends that he explained the asylum process to Mr. Fon throughout his representation, including prior to sending a request for documents to Mr. Fon on June 1, 2019; in two visits, on July 17 and 22, 2019; and by providing Mr. Fon with copies of the filings in the case, including discussing the filings with him on July 25, 2019. We overrule Mr. Tabe’s exception.

At the hearing, Mr. Fon testified that Mr. Tabe never properly explained to him the process for seeking asylum and met with him only once to discuss the case. When Mr. Tabe asked Mr. Fon during cross-examination what happened the first time they met, prior to the meeting two weeks before the individual hearing, Mr. Fon testified that the only other meeting consisted of a brief introduction and no substantive discussion. Although Mr. Tabe testified otherwise, the hearing judge was entitled to assess both witnesses’ credibility and determine whose account to believe. We defer to the hearing judge’s credibility assessment.

Failure to Provide Services of Value to Mr. Nkwizi Mr. Tabe excepts to the hearing judge’s finding that he failed to provide services of value to Mr. Nkwizi and, therefore, charged an unreasonable fee. Mr. Tabe contends that although his actions resulted in the denial of Mr. Nkwizi’s asylum application and an order for his removal, Mr. Nkwizi has new counsel who can take advantage of his work on behalf of Mr. Nkwizi should the case be reopened. In addition, Mr. Tabe contends that he has submitted an affidavit of support for the reopening of Mr. Nkwizi’s case and refunded the $3,000 fee. -9- We overrule Mr. Tabe’s exception to the hearing judge’s finding that that he failed to provide services of value to Mr. Nkwizi and, as such, charged an excessive fee, as the hearing judge did not clearly err in making the finding. It is accurate that, at the disciplinary hearing, Mr. Tabe testified that he worked with Mr. Nkwizi’s family and filed Mr. Nkwizi’s application for asylum, and that he filed a pre-hearing brief, a witness list, and supporting documents.

In addition, Mr. Tabe testified that he had been prepared to represent Mr. Nkwizi at an individual hearing on April 24, 2019, which was rescheduled in advance, and at the May 14, 2019 hearing, at which he appeared, but which was rescheduled due to technical difficulties. Mr. Tabe also testified that in December 2021, he had provided Mr. Nkwizi7 an affidavit in support of a motion to reopen before the BIA. This does not establish, however, that Mr. Tabe’s services were of value or that the fee he charged was reasonable when his misconduct consisted of him neglecting an email from the court advising that Mr. Nkwizi’s motion for change of venue had been denied, and causing Mr. Nkwizi to miss his individual hearing on July 10, 2019 and be ordered removed from the country. Thereafter, Mr. Tabe filed a motion to reopen that was denied by the immigration court because he failed to include a necessary affidavit.

Mr. Tabe had been retained for the sole purpose of assisting Mr. Nkwizi in seeking asylum and, through his misconduct, he managed to have Mr. Nkwizi ordered removed from the country. It is axiomatic that when a lawyer files a motion for an extension, a postponement, a change of venue, or the like with a court and has received no response, the lawyer may not act as 7 Mr. Tabe mistakenly referred to Mr. Nkwizi as Mr. Fon in this part of his testimony. - 10 - though the motion has been granted and disregard an existing obligation. Mr. Tabe causing Mr. Nkwizi to miss the July 10, 2019 individual hearing after having not read the response from the court advising him of the denial of the motion for change of venue was inexplicable and served to undermine the value of the work he previously performed in the case. As of December 2021, when Mr. Tabe supplied the affidavit for Mr. Nkwizi’s use in a new motion to reopen, Mr. Nkwizi had been ordered removed from the country for over two years, since July 2019.

In the meantime, Mr. Nkwizi had retained new counsel whom he was most likely required to pay new fees, in addition to the $3,000 that he had already paid Mr. Tabe. The hearing judge did not credit Mr. Tabe’s testimony that he refunded the $3,000 to Mr. Nkwizi and in his exceptions before this Court (which we discuss more fully below), Mr. Tabe gives no reason for us to disturb the hearing judge’s finding. The notion that Mr. Tabe performed valuable work by completing the asylum application and other paperwork that new counsel may now utilize in pursuing Mr. Nkwizi’s application is based on the premise that Mr. Nkwizi’s case has been or will be reopened, which is an occurrence that is not established by the case record. And, even if it had been confirmed that Mr. Nkwizi’s motion to reopen had been granted, under the circumstances of the case, in which Mr. Tabe took a fee, failed to competently pursue the objective of the representation, and, rather, caused Mr. Nkwizi to be ordered removed from the country, necessitating that he obtain new counsel, and over three years later (at the time of the disciplinary hearing) the immigration case was still pending, it would be difficult to conceive that Mr. Nkwizi’s - 11 - asylum application would now move forward based on the paperwork submitted by Mr. Tabe in 2019 or that Mr. Tabe could be viewed as having provided valuable services.

Pattern of Misconduct and Likelihood of Future Violations Mr. Tabe excepts to the hearing judge’s finding of the aggravating factors of a pattern of misconduct and likelihood of future violations.8 Mr. Tabe asserts that his actions in the representation of Mr. Fon and Mr. Nkwizi did not constitute a pattern of misconduct because they were two “episodes” that occurred at roughly the same time. Mr. Tabe relies on this Court’s holding in Attorney Grievance Comm’n v. Riely, 471 Md. 458, 500-01 , 242 A.3d 206, 231 (2020), for the proposition that a finding of a pattern of misconduct should be supported by separate “episodes” of misconduct. For the same reason, Mr. Tabe contends that his actions did not indicate a likelihood of future misconduct. We overrule Mr. Tabe’s exception to the hearing judge’s finding of the aggravating factors of a pattern of misconduct and likelihood of future violation, as the hearing judge did not clearly err with respect to the findings.

In Riely, this Court declined to overrule the hearing judge’s finding that no pattern of misconduct occurred, where the petition 8 In his exceptions, Mr. Tabe states that he excepts to the hearing judge’s finding of the aggravating factor of indifference to making restitution. In the exceptions, however, Mr. Tabe does not elaborate on the point and, therefore, to the extent that he intended to except to this finding, we overrule the exception as Mr. Tabe provided no grounds on which to do otherwise. In addition, at the disciplinary hearing, Mr. Tabe testified that he wanted to make full restitution and that he was putting money together to do so. That Mr. Tabe may have eventually fully refunded both Mr. Fon’s and Mr. Nkwizi’s funds would not change the sanction in this case, because the refund would have “c[o]me long after [the attorney’s] dispute with [the client] and after [the client] had filed [a] complaint with Bar Counsel.” Attorney Grievance Comm’n v. Miller, 467 Md. 176, 225 , 223 A.3d 976, 1005 (2020). - 12 - concerned two separate matters set against the context of an attorney’s “high-volume immigration practice that, for the prior 30 years, had apparently been without incident.” Id. at 501 n.21, 242 A.3d at 231 n.21.9 In contrast, in this case, the hearing judge looked to our holding in Attorney Grievance Comm’n v. Chanthunya, 446 Md. 576, 607 , 133 A.3d 1034, 1052 (2016), for the proposition that a pattern of misconduct exists where an attorney “engaged in similar misconduct in separately representing two clients[.]” This case is easily distinguished from Riely.

See Attorney Grievance Comm’n v. Taniform, 482 Md. 272, 302 , 286 A.3d 1072 , 1089 (2022) (distinguishing the facts of the case from Riely and holding that the attorney’s “series of wrongful acts over a period of five months with two different clients” constituted a pattern of misconduct). Among other differences, in this case, the hearing judge found that Mr. Tabe had been reprimanded by the Commission in May 2019, for misconduct occurring between August 2016 and April 2017 that was substantially similar to that in the present case. This would establish a pattern in addition to the one revealed by, as the hearing judge put it, the “series of wrongful acts” in Mr. Tabe’s representation of Mr. Fon and Mr. Nkwizi. The reprimand also led the hearing judge to find the aggravating factor of likelihood of future misconduct, because Mr. Tabe’s “misconduct continued, despite prior discipline for similar misconduct,” in line with our precedent.

See, e.g., Attorney Grievance Comm’n 9 The dissent in Riely would have sustained “Bar Counsel’s exception to the hearing judge’s finding that the attorney did not engage in a pattern of misconduct” because the attorney “violated the same three” rules of professional conduct “while representing different sets of clients . . . in two different years[,]” which was “sufficient to establish a pattern of misconduct.” Riely, 471 Md. at 509-10 , 242 A.3d at 236-37 (Watts, J., dissenting). - 13 - v. Edwards, 462 Md. 642, 710 , 202 A.3d 1200, 1238 (2019) (This Court stated that the likelihood of the attorney “repeating her misconduct [was] apparent from her continued misconduct even after she was notified of the complaints filed against her.”). Although Mr. Tabe’s misconduct did not continue after he was notified of the complaints against him in this case, like the attorney in Edwards, he was reprimanded by the Commission for substantially similar misconduct, amidst his representation of the clients at issue. That the reprimand did not prevent Mr. Tabe from engaging in misconduct immediately thereafter is a strong basis for the hearing judge’s finding of the aggravating factor of likelihood of repetition, and the hearing judge did not clearly err in so finding. Vulnerability of Victims Mr. Tabe excepts to the hearing judge’s finding of the aggravating factor of vulnerability of the victims.

Mr. Tabe contends that this Court should not consider immigrant status as per se evidence of a vulnerable client and that, in this case, neither Mr. Fon nor Mr. Nkwizi was established as individually vulnerable. We overrule Mr. Tabe’s exception to the hearing judge’s finding of the aggravating factor of vulnerability of the victims, as the hearing judge’s finding is not clearly erroneous. Our precedent, as Mr. Tabe recognizes, establishes the vulnerability of immigrants as clients, in part because “[t]he potential to be removed from the country is a grave risk that is specific to immigrants who do not have permanent status within the United States, thereby making them vulnerable[.]” Attorney Grievance Comm’n v. Moawad, 475 Md. 424, 485 , 257 A.3d 611, 647 (2021). Not only did Mr. Tabe’s misconduct increase the likelihood of removal for both clients, but also both were especially vulnerable, contrary - 14 - to Mr. Tabe’s contention otherwise, because both had entered the country recently and been immediately detained, and both were asylum seekers, meaning they alleged having “experienced or fear[ed] persecution for reasons of race, religion, nationality, membership in a particular social group, or political opinion.” Deborah E. Anker, Law of Asylum in the United States § 1:1 (2022 ed.).

As such, both were recent immigrants who were in custody and vulnerable not only to removal but also to potentially being placed back in a situation in which they had allegedly experienced or had a fear of persecution. We recognize that there could be some instances in which the aggravating factor of the victim’s vulnerability would not apply in a disciplinary matter involving an immigration client. Although in Moawad, 475 Md. at 484-85 , 257 A.3d at 646-47 , we rejected the attorney’s contention that his clients were not vulnerable victims because one was “an accomplished medical doctor with significant education and work history in the United States,” and another was “an ‘articulate gentleman’ who arrived in the country to further his education and has ultimately established a career as an Emergency Medical Technician,” there might be a factual scenario in which the vulnerability factor would not apply, such as if the client had extensive experience navigating immigration proceedings or the attorney’s misconduct would not result in deportation. “Time will ultimately tell whether we spoke too broadly in Moawad and in prior cases,” Taniform, 482 Md. at 304 - 05, 286 A.3d at 1091, but, as in Taniform, here, too, “we are not persuaded on these facts that Mr. [Tabe]’s clients should not be deemed vulnerable for purposes of this aggravating factor.” - 15 - (B) Conclusions of Law Bar Counsel’s Exception Concerning Application of MARPC 8.5(b): Maryland’s Choice of Law Rule Bar Counsel excepts to the hearing judge’s conclusion that Mr. Tabe violated MARPC 1.1 by failing to competently represent the clients in immigration proceedings. Bar Counsel contends that, instead, under MARPC 8.5(b), the hearing judge should have concluded that the alleged misconduct involving the substance of the representation violated the Federal Immigration Rules of Professional Conduct for Practitioners (“FIRPCP”), and that the violation of MARPC 1.1 resulted from Mr. Tabe’s “failure to properly maintain client funds in an attorney trust account[.]” We sustain Bar Counsel’s exception.

In February 2005, we adopted MARPC 8.5(b), titled Choice of Law, after changes made in 2000 to the American Bar Association Model Rules concerning the choice of jurisdictional rules to be applied in disciplinary cases. See Taniform, 482 Md. at 329 , 286 A.3d at 1105 (Booth, J., concurring). MARPC 8.5(b) provides: Choice of Law. In any exercise of the disciplinary authority of this State, the rule of professional conduct to be applied shall be as follows: (1) for conduct in connection with a matter pending before a tribunal, the rules of the jurisdiction in which the tribunal sits, unless the rules of the tribunal provide otherwise; and (2) for any other conduct, the rules of the jurisdiction in which the attorney’s conduct occurred, or, if the predominant effect of the conduct is in a different jurisdiction, the rules of that jurisdiction shall be applied to the conduct.

An attorney shall not be subject to discipline if the attorney’s conduct conforms to the rules of a jurisdiction in which the attorney reasonably believes the predominant effect of the attorney’s conduct will occur. - 16 - Under the plain language of MARPC 8.5(b), in Maryland, in connection with a matter pending before a tribunal, the rules of the tribunal where an attorney’s alleged misconduct occurred must be applied in an attorney disciplinary proceeding, and, as stated in Comment 4 of the Rule, an attorney shall be subject only to the rules of professional conduct of that tribunal. As we explained in Attorney Grievance Comm’n v. Tatung, 476 Md. 45, 88 , 258 A.3d 234 , 260 (2021), “Rule 8.5(b) [] ensures that, where an attorney’s misconduct triggers jurisdiction and oversight by more than one disciplinary authority, the attorney is treated fairly and uniformly by each jurisdiction, as contemplated by the comments” to MARPC 8.5(b). With respect to immigration matters, the Executive Office of Immigration Review of the United States Department of Justice has established uniform regulations that govern the professional conduct of immigration attorneys. These regulations, the FIRPCP, are codified at 8 C.F.R. Part 1003, Subpart G. In this case, Bar Counsel filed charges alleging violations of the MARPC and the FIRPCP.

The hearing judge found violations of both MARPC 1.1 and 8 C.F.R. § 1003.102 (o) based on the same conduct.10 Under the plain language of MARPC 8.5(b) and 10 Under MARPC 1.1, the hearing judge concluded that Mr. Tabe violated the Rule in both Mr. Fon’s and Mr. Nkwizi’s cases by failing to provide competent representation. With respect to Mr. Fon, the hearing judge concluded that Mr. Tabe violated MARPC 1.1 by failing to appear at the May 15, 2019 hearing, failing to correct errors on Mr. Fon’s asylum application, failing to adequately prepare Mr. Fon for his individual hearing, and losing Mr. Fon’s Cameroonian National Identification Card. With respect to Mr. Nkwizi, the hearing judge concluded that Mr. Tabe violated MARPC 1.1 by failing to confirm whether the immigration court had granted the motion to transfer venue, failing to advise - 17 - our case law, Mr. Tabe cannot be subject to both sets of rules for the same conduct. Given that the misconduct in this case arises from matters pending before the federal immigration tribunal, the charges in this case should have been pursued under the federal immigration rules, unless the immigration rules do not contain a counterpart applicable to the alleged misconduct.

For instance, we have held that “the MARPC do[] not apply to [] alleged conduct involving . . . representation of [] clients in [a] federal immigration proceeding[,]” but if an immigration attorney who is licensed in Maryland commits violations of our professional conduct rules related to trust account violations, in addition to filing charges under the federal disciplinary rules contained in 8 C.F.R. § 1003.102 , the attorney may also be charged with violating MARPC 1.15(a) because the federal regulations do not contain any counterpart to that rule. Tatung, 476 Md. at 90-91 , 258 A.3d at 262 (footnote omitted). In Tatung, id. at 71, 258 A.3d at 250, the attorney challenged the propriety, under MARPC 8.5(b), of Bar Counsel charging him with violations of the MARPC “for conduct arising from this representation of his clients in the federal immigration proceedings in Texas[.]” The case represented the first instance in which an attorney had challenged charges filed under the MARPC based on the interpretation and meaning of MARPC 8.5(b)(1) since its adoption. See Tatung, 476 Md. at 73 , 258 A.3d at 251.

We held that because the attorney’s “conduct occurred in connection with the federal immigration court Mr. Nkwizi of the obligation to attend the July 10, 2019 hearing, and failing to appear at the hearing himself. The hearing judge concluded that Mr. Tabe violated 8 C.F.R. § 1003.102 (o) “for the same reasons this Court found that [Mr. Tabe] violated MARPC 1.1.” The hearing judge also concluded that Mr. Tabe violated MARPC 8.4(d) “for the same reasons [Mr. Tabe] violated [MARPC] 1.1 and 1.15.” - 18 - proceeding[,]” MARPC 8.5(b)(1) required us to apply the “rules of the jurisdiction where the tribunal sits[,]” i.e., the FIRPCP. Tatung, 476 Md. at 81-82 , 258 A.3d at 256-57. We disagreed with Bar Counsel’s argument “that, where the conduct involves another tribunal or jurisdiction, [Bar Counsel] is only required to apply the rules of the alternative jurisdiction when there is a conflict.” Id. at 87, 258 A.3d at 260.

We held that the use of the word “shall” in MARPC 8.5(b) “plainly and unambiguously mandates the application of the professional rules of the tribunal where the conduct arises in connection with a matter pending before a tribunal,” and