WATTS, J.
This attorney discipline proceeding involves an immigration lawyer who failed to represent two clients competently, diligently, and with adequate communication, and who was alleged to have committed a crime by touching a female client's breast without her consent.
Alexander Manjanja Chanthunya ("Chanthunya"), Respondent, a member of the Bar of Maryland, represented Souadou Traore ("Traore") in her applications for a green card
On October 24, 2014, on the Commission's behalf, Bar Counsel filed in this Court a "Petition for Disciplinary or Remedial Action" against Chanthunya, charging him with violating Maryland Lawyers' Rules of Professional Conduct ("MLRPC") 1.1 (Competence), 1.3 (Diligence), 1.4 (Communication), 3.3(a)(1) (Candor Toward the Tribunal), 8.4(b) (Criminal Act), 8.4(c) (Dishonesty, Fraud, Deceit, or Misrepresentation), 8.4(d) (Conduct That Is Prejudicial to the Administration of Justice), and 8.4(a) (Violating the MLRPC).
On October 30, 2014, this Court designated the Honorable Terrence J. McGann ("the hearing judge") of the Circuit Court for Montgomery County to hear this attorney discipline proceeding. On March 25 and 26, 2015 and April 29, 2015, the hearing judge conducted a hearing, at which Chanthunya was present and self-represented. On June 18, 2015, the hearing judge filed in this Court an opinion including findings of fact and conclusions of law, concluding that Chanthunya had violated MLRPC 1.1, 1.3, 1.4, 8.4(b), and 8.4(d), but had not violated MLRPC 8.4(a).
On September 28, 2015, we heard oral argument. On October 1, 2015, we remanded this attorney discipline proceeding to the hearing judge to address important issues that arose out of the hearing judge's findings of fact and conclusions of law. Chief among other issues, we ordered the hearing judge to "[p]rovide a better explanation for why he found that [] Traore's testimony [that Chanthunya touched her breast] was not credible ..., if indeed [the hearing judge] continue[d] to maintain that[.]" On January 22, 2016, the hearing judge filed in this Court a supplemental opinion in which the hearing judge maintained that Traore's testimony that Chanthunya touched her breast was not credible, and concluded that Chanthunya had violated MLRPC 8.4(a), but had not violated MLRPC 8.4(b).
In his supplemental opinion, the hearing judge provided essentially the same basis for finding not credible Traore's testimony that Chanthunya touched her breast without her consent. Given that we have already remanded this attorney discipline proceeding to the hearing judge to address this matter, and that the hearing judge provided the same inappropriate basis for finding that Traore's testimony was not credible in his supplemental opinion, we conclude that it would be futile to remand yet again to the hearing judge to properly address the matter of Traore's credibility.
Nonetheless, for the below reasons, we indefinitely suspend Chanthunya from the practice of law in Maryland with the right to apply for reinstatement after sixty days.
In his original opinion, the hearing judge found the following facts, which we summarize.
In 1978, Chanthunya first became a lawyer. Over twenty years later, on June 24, 1999, this Court admitted Chanthunya to the Bar of Maryland.
In 1998, Traore, a citizen of Guinea, entered the United States. In 2009, Traore retained Chanthunya to represent her in her application for a green card and her application for a waiver of grounds of inadmissibility. On November 23, 2009, on Traore's behalf, Chanthunya filed an application for a green card with the United States Citizenship and Immigration Service ("USCIS"). The application for a green card contained inaccurate statements and spaces that were not filled in that should have been, and Chanthunya failed to attach required or necessary documents, such as the identification page of Traore's passport. In December 2009, April 2010, and September 2010, USCIS requested additional documents from Chanthunya, who failed to inform Traore of USCIS's three requests.
USCIS denied Traore's application for a green card and a waiver of grounds of inadmissibility, and Chanthunya failed to inform Traore as much. After USCIS informed Traore about the applications' denial, Traore contacted Chanthunya, who promised to file an appeal. Traore, however, did not receive notice from USCIS that the appeal had been filed. Traore telephoned Chanthunya to ask about the status of the appeal, and Chanthunya promised to call her back. Chanthunya, however, failed to contact Traore, prompting her to visit USCIS herself. Upon visiting USCIS, Traore was unable to confirm that the appeal had been filed. Chanthunya's omissions cost Traore the opportunity to have USCIS consider the appeal.
Finally, on at least ten occasions during Chanthunya's representation of her, Traore visited Chanthunya's office because he was not answering her telephone calls.
In 2007, Vanguere, a citizen of the Central African Republic, entered the United States. Vanguere applied for asylum and retained Chanthunya to represent her in her application for asylum. Chanthunya failed to: prepare Vanguere for the asylum hearing; advise her of the benefits and risks of postponing her case; advise her of the type of evidence that she needed; and submit on Vanguere's behalf corroborating evidence, such as evidence that Vanguere's family members had been persecuted in the Central African Republic.
Vanguere subsequently filed a motion to reopen her asylum application based on ineffective assistance of counsel by Chanthunya as well as changed country conditions in the Central African Republic. The Board of Immigration Appeals granted the motion, and remanded the case to the Baltimore Immigration Court for a de novo asylum hearing.
The hearing judge found that Chanthunya's misconduct is aggravated by a pattern of misconduct, multiple violations of the MLRPC, refusal to acknowledge the misconduct's wrongful nature, and substantial experience in the practice of law. The hearing judge found that Chanthunya's misconduct is mitigated by the absence of prior attorney discipline and the absence of a dishonest or selfish motive.
In his original opinion, the hearing judge found that Traore's testimony that Chanthunya touched her breast during a meeting in Chanthunya's office was not
In his original opinion, the hearing judge concluded that Chanthunya had violated MLRPC 8.4(b) (Criminal Act) and 8.4(d) (Conduct That Is Prejudicial to the Administration of Justice), but the hearing judge did not explain the bases for those conclusions. The hearing judge also concluded that Chanthunya had not violated MLRPC 8.4(a) (Violating the MLRPC).
The Commission excepted to the hearing judge's finding that Traore's testimony concerning Chanthunya's touching of her breast was not credible. The Commission pointed out that Traore's testimony on this point was uncontested, that the hearing judge concluded that Chanthunya violated MLRPC 8.4(b) (Criminal Act), and that the only basis for such a conclusion was the Commission's allegation that Chanthunya sexually assaulted Traore. The Commission asserted that the hearing judge's finding was influenced by the hearing judge's "assumptions or beliefs about what the victim of a sexual assault would or should do[.]" (Emphasis omitted). The Commission also excepted to the hearing judge's conclusion that Chanthunya had not violated MLRPC 8.4(a).
We remanded to the hearing judge with instructions to address the following four issues:
(Citations and paragraph breaks omitted).
In his supplemental opinion, the hearing judge determined that Chanthunya did not violate MLRPC 8.4(b) because the Commission failed to prove by clear and convincing evidence that Chanthunya sexually assaulted Traore. The hearing judge again found that Traore's testimony that Chanthunya touched her breast was not credible because:
In his supplemental opinion, the hearing judge concluded that Chanthunya
In an attorney discipline proceeding, this Court reviews for clear error a hearing judge's findings of fact, and reviews without deference a hearing judge's conclusions of law. See Md. R. 16-759(b)(2)(B) ("The Court [of Appeals] shall give due regard to the opportunity of the hearing judge to assess the credibility of witnesses."); Attorney Grievance Comm'n v. Shuler, 443 Md. 494, 501, 117 A.3d 38, 43 (2015) ("[T]his Court reviews for clear error a hearing judge's findings of fact[.]" (Citations omitted)); Md. R. 16-759(b)(1) ("The Court of Appeals shall review de novo the [hearing] judge's conclusions of law."). This Court determines whether clear and convincing evidence establishes that a lawyer violated an MLRPC. See Md. R. 16-757(b) ("The [Commission] has the burden of proving the averments of the petition [for disciplinary or remedial action] by clear and convincing evidence.").
Chanthunya contends that the hearing judge erred in admitting records from USCIS into evidence because the records were inadmissible hearsay. In making this allegation, Chanthunya specifies only one exhibit: the Commission's Exhibit 4, which is USCIS's response to a request under the Freedom of Information Act by Michael Schwartz ("Schwartz"), Traore's new lawyer. When the Commission offered its Exhibit 4 into evidence at the hearing, Chanthunya objected solely on a ground other than hearsay.
Chanthunya fails to state whether he ever required the Commission by interrogatory to identify anyone whom the Commission intended to call as an expert witness at the hearing. See Md. R. 2-402(g)(1)(A) ("A party by interrogatories may require any other party to identify each person, other than a party, whom the other party expects to call as an expert witness at trial[.]"). The record contains a scheduling order by the hearing judge stating that all discovery had to be completed by March 11, 2015. The discovery order did not specify a date for disclosure of expert witnesses, i.e., order the parties to disclose expert witnesses by a certain date. In the absence of a requirement by the hearing judge in the scheduling order that the parties disclose expert witnesses without being asked to do so, Maryland Rule 2-402(g) governs. As such, pursuant to Maryland Rule 2-402(g), it was incumbent upon Chanthunya to request the identification of experts by interrogatory, which he failed to do.
Zigel's opinions had a sufficient factual basis. See Md. R. 5-702(3) ("[A] sufficient factual basis [must] support [ ] expert testimony."). As the hearing judge detailed in his opinion, Zigel reviewed several documents related to Chanthunya's representation of Traore and Vanguere, and Zigel identified several defects in those documents; for example, Chanthunya failed to attach essential documents, such as the identification page of Traore's passport, to Traore's application for a green card.
As long as an expert is qualified to testify, a sufficient factual basis supports an expert's opinion, and the expert's testimony will be helpful to the trier of fact, the expert may testify. See Md. R. 5-702 ("Expert testimony may be admitted, in
An expert's opinion must have a basis that is generally accepted as reliable if and only if the expert's opinion is scientific; in other words, the "Frye-Reed test" applies only "to evidence based on scientific opinion." Montgomery Mut. Ins. Co. v. Chesson, 399 Md. 314, 328, 923 A.2d 939, 947 (2007) (citations omitted). Thus, the "Frye-Reed test" does not apply to a legal expert's opinion that a lawyer violated the MLRPC.
In sum, the hearing judge did not err in admitting Zigel as an expert in the field of immigration and nationality law and in allowing Zigel to opine that Chanthunya was neither competent nor diligent in representing Traore and Vanguere.
Chanthunya also contends that the hearing judge erred by failing to tell him at the hearing that the Commission met the burden of proving by clear and convincing evidence that Chanthunya had violated the MLRPC. Chanthunya alleges that he did not testify at the hearing because he did not think that the Commission had met its burden. Contrary to Chanthunya's assertion, in an attorney discipline proceeding, a hearing judge has no obligation to inform the lawyer at the hearing whether the Commission has met its burden of proof; if the lawyer has any evidence to offer and/or anything about which to testify, the lawyer should do so at the hearing, even if the lawyer does not think that the Commission has met its burden of proof. Here, Chanthunya decided not to testify at the hearing, and his attempt to blame the hearing judge for the consequences of his decision is misplaced.
Finally, Chanthunya contends that the hearing judge erred in not applying the
Chanthunya is mistaken. The law of ineffective assistance of counsel applies to cases in which a person has been criminally charged and convicted — typically, cases that arise out of petitions for post-conviction relief. By contrast, in an attorney discipline proceeding, a hearing judge's role is to find facts and conclude whether the lawyer violated the MLRPC, as this Court has interpreted and applied them. For the purpose of determining whether a lawyer has violated the MLRPC, Strickland and its progeny do not apply to the analysis in an attorney discipline proceeding.
In response to the hearing judge's supplemental opinion, the Commission excepts to the hearing judge's finding that Traore's testimony regarding Chanthunya's touching of her breast was not credible. With regard to the hearing judge's finding in his supplemental opinion that Traore's "husband failed to take any action[,]" the Commission points out that Traore's husband did not testify, and, thus, there was no evidence that Traore's husband took no action; and, in any event, the Commissions asserts that it is inappropriate to assess a witness's testimony based on someone else's actions or omissions. The Commission contends that it was inappropriate for the hearing judge to consider that Traore did not contact law enforcement or terminate Chanthunya's representation because Traore testified that she "didn't know what [she] was supposed to do, because" Chanthunya had Traore's immigration files, which included information about "all [of her] problems with the green card."
Reluctantly, we overrule the Commission's exception to the hearing judge's finding that Traore's testimony that Chanthunya touched her breast was not credible. Although the hearing judge again, partially, based his finding on what he believed that a victim of sexual assault would or should do — namely, report the incident to law enforcement and/or the victim's spouse, and cease contact with the perpetrator — the conundrum is that, even if the hearing judge relied on incorrect grounds in finding Traore's testimony that Chanthunya touched her breast not credible, it does not follow that Traore's testimony that Chanthunya touched her breast was, indeed, accurate. It is possible that Traore's testimony was inaccurate — i.e., not credible — and the hearing judge found that Traore's testimony was not credible for the wrong reasons. By way of analogy, suppose that a witness inaccurately
Under the circumstances of this attorney discipline proceeding, we will not supplant the hearing judge's finding that Traore's testimony was not credible. We cannot stress enough, however, that we disapprove of the manner in which the hearing judge addressed Traore's testimony. In his original opinion, the hearing judge found Traore's testimony not credible solely on the following grounds: (1) Traore "never called [law enforcement], never reported [the alleged assault] to any authorities[,] and continued to be represented by" Chanthunya; and (2) "[i]f [Traore] told her husband[,] it would be odd that he never confronted [Chanthunya;] and[,] if [Traore] didn't tell her husband[,] that would be an abnormal reaction." The bases for the hearing judge's findings were so inappropriate that we instructed the hearing judge, on remand, to "[p]rovide a better explanation for why he found that [ ] Traore's testimony was not credible on the issue of the unconsented sexual touching, if indeed he continues to maintain that[.]" In his supplemental opinion, not adhering to this Court's instruction, the hearing judge essentially gave the same reasons that he had already expressed for finding that Traore's testimony was not credible, and simply added a few inconsequential new reasons.
These beliefs are unfounded, and indicative of an uninformed view of the manner in which a victim of sexual assault responds to the occurrence. Contrary to the hearing judge's analysis, it is well known that, in many instances, a victim of sexual assault refrains from informing anyone of the sexual assault. Even when the victim informs someone, the disclosure may occur a great deal of time after the assault. There are voluminous possible reasons for the victim's permanent or protracted silence; examples include fear of retaliation by the perpetrator, an unwillingness to relive the experience, or, perhaps, fear that the victim will be disbelieved, ridiculed, or ostracized.
In an attorney discipline proceeding, a hearing judge must evaluate an allegation of sexual assault as the hearing judge would evaluate any other allegation of misconduct. Such an analysis would necessarily include consideration of the circumstances of the alleged misconduct, the purported victim's demeanor and manner of presentation in court, and consideration of any evidence that supports or contradicts the purported victim's report. Simply stated, we do not want hearing judges in future attorney discipline proceedings to assess a report of sexual assault in the manner that the hearing judge did in this attorney discipline proceeding — namely, by evaluating the allegation of sexual assault based on the hearing judge's unfounded beliefs of what a victim of sexual assault would or should do after such an incident.
The Commission excepts to the hearing judge's refraining from finding as an aggravating factor vulnerability of the victims — Chanthunya's clients, Traore and Vanguere, both of whom were not United States citizens and who had immigrated to this country. In Attorney Grievance Comm'n v. Thomas, 440 Md. 523, 558, 103 A.3d 629, 649 (2014), this Court concluded that a lawyer's misconduct was aggravated by vulnerability of the victim, even though this Court did not state that the hearing judge found as much. This Court noted the "special vulnerability of immigrants as clients[,]" given that people who immigrate to this country may be "extremely vulnerable people, largely unable or unwilling as a practical matter to defend themselves[ ] from being preyed on[.]" Id. at 558, 103 A.3d at 649 (citations and internal quotation marks omitted). Here, as we did in Thomas, we determine that vulnerability of the victims was an aggravating factor. Accordingly, we sustain the Commission's exception.
In response to the hearing judge's original opinion, Chanthunya excepted to several of the hearing judge's findings of fact, asking us "to review the [testimony] of the
(Record references and bolding omitted). Thus, Chanthunya appears to take issue with the hearing judge's allegedly not having considered or included in the findings of fact all of the testimony and evidence. We are unable to extrapolate much more from Chanthunya's exceptions.
We observe initially that, just because Chanthunya disagrees with the hearing judge's findings of fact does not make the findings of fact clearly erroneous. And, that the hearing judge does not mention a particular piece of evidence or particular testimony in making findings of fact does not mean that the hearing judge failed to consider such evidence. Indeed, as this Court has recognized:
Attorney Grievance Comm'n v. Vanderlinde, 364 Md. 376, 385, 773 A.2d 463, 468 (2001) (citation and paragraph break omitted). Moreover, "weighing the credibility of witnesses and resolving any conflict in the evidence are tasks proper for the fact finder.... [T]he hearing judge may pick and choose which evidence to rely upon[.]" Attorney Grievance Comm'n v. Marcalus, 414 Md. 501, 512, 996 A.2d 350, 356 (2010) (brackets, citations, and internal quotation
In response to the hearing judge's original opinion, Chanthunya also excepted to the hearing judge's finding that there were several defects in documents that were related to Chanthunya's representation of Traore. The hearing judge's finding was supported by Zigel's expert opinion that there were several defects in the documents. Thus, the hearing judge did not clearly err.
For the above reasons, we overrule all of Chanthunya's exceptions to the hearing judge's findings of fact.
By excepting to the hearing judge's finding that Traore's testimony that Chanthunya touched her breast was not credible, the Commission implicitly excepts to the hearing judge's conclusion in his supplemental opinion that Chanthunya did not violate MLRPC 8.4(b). Chanthunya excepts to the hearing judge's conclusion that he violated MLRPC 8.4(d). For the below reasons, we overrule both parties' exceptions and uphold all of the hearing judge's conclusions of law.
"A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation." MLRPC 1.1. "A lawyer shall act with reasonable diligence and promptness in representing a client." MLRPC 1.3.
Here, clear and convincing evidence supports the hearing judge's conclusions in his original opinion that Chanthunya violated MLRPC 1.1 and 1.3 in representing Traore. On Traore's behalf, Chanthunya filed an application for a green card with USCIS. The application for a green card contained inaccurate statements and spaces that were not filled in, and Chanthunya failed to attach essential documents, such as the identification page of Traore's passport. Additionally, after USCIS scheduled an interview regarding Traore's application for a green card, Chanthunya failed to: prepare Traore for the interview; advise her of what to expect at the interview; appear at the interview himself; and ask USCIS to reschedule the interview. Additionally, Chanthunya failed to pursue an appeal of USCIS's denial of Traore's applications for a green card and for a waiver of grounds of inadmissibility.
Clear and convincing evidence supports the hearing judge's conclusions in his original opinion that Chanthunya violated MLRPC 1.1 and 1.3 in representing Vanguere. Chanthunya failed to: prepare Vanguere for the asylum hearing; advise her of the benefits and risks of postponing her case; advise her of the type of evidence that she needed; and submit on Vanguere's behalf corroborating evidence, such as evidence that Vanguere's family members had been persecuted in the Central African Republic. Chanthunya also failed to review the Baltimore Immigration Court's file to ensure its completeness.
"A lawyer shall: ... (2) keep the client reasonably informed about the status of the matter; [and] (3) promptly comply with reasonable requests for information[.]" MLRPC 1.4(a) (paragraph break omitted). "A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation." MLRPC 1.4(b).
Here, clear and convincing evidence supports the hearing judge's conclusion in his original opinion that Chanthunya violated MLRPC 1.4(a)(2) and 1.4(a)(3) in representing Traore.
Clear and convincing evidence supports the hearing judge's conclusion in his original opinion that Chanthunya violated MLRPC 1.4(b) in representing Vanguere. Chanthunya failed to advise Vanguere of the benefits and risks of postponing her case.
"It is professional misconduct for a lawyer to ... commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness[,] or fitness as a lawyer in other respects[.]" MLRPC 8.4(b).
Here, as discussed above, we will not supercede the hearing judge's finding that Traore's testimony that Chanthunya touched her breast was not credible; accordingly, we do not reverse the hearing judge's conclusion in his supplemental opinion that Chanthunya did not violate MLRPC 8.4(b).
"It is professional misconduct for a lawyer to ... engage in conduct that is prejudicial to the administration of justice[.]" MLRPC 8.4(d). "Generally, a lawyer violates MLRPC 8.4(d) where the lawyer's conduct would negatively impact the perception of the legal profession of a reasonable member of the public." Shuler, 443 Md. at 505, 117 A.3d at 45 (brackets, citation, ellipsis, and internal quotation marks omitted). For example, a lawyer can violate MLRPC 8.4(d) by violating MLRPC 1.1 (Competence), 1.3 (Diligence), and MLRPC 1.4 (Communication). See Attorney Grievance Comm'n v. Heung Sik Park, 427 Md. 180, 194, 46 A.3d 1153, 1161 (2012) (per curiam) ("[The lawyer]'s failure to pursue [his client]'s applications diligently and competently, as well as his failure to maintain sufficient communication with [his client], as demonstrated by our conclusion that [the lawyer] violated MLRPC 1.1, 1.3, and 1.4, constitutes conduct that brings disrepute to the legal profession, in violation of MLRPC 8.4(d)."). A lawyer can violate MLRPC 8.4(d) even if the lawyer's conduct was not known or intended to be known publicly. See Attorney Grievance Comm'n v. Basinger,
Here, clear and convincing evidence supports the hearing judge's conclusion in his original and supplemental opinions that Chanthunya violated MLRPC 8.4(d) in representing Traore and Vanguere. As discussed above, Chanthunya violated MLRPC 1.1, 1.3, 1.4(a)(2), 1.4(a)(3), and 1.4(b) by failing to provide competent and diligent representation and failing to adequately communicate with Traore and Vanguere.
"It is professional misconduct for a lawyer to[ ] violate or attempt to violate the" MLRPC. MLRPC 8.4(a).
Here, clear and convincing evidence supports the hearing judge's conclusion in his supplemental opinion that Chanthunya violated MLRPC 8.4(a) in representing Traore. As discussed above, Chanthunya violated MLRPC 1.1, 1.3, 1.4(a)(2), 1.4(a)(3), and 8.4(d) in representing Traore.
In its filing, the Commission recommended that we indefinitely suspend Chanthunya from the practice of law in Maryland with the right to apply for reinstatement after six months in the event that the MLRPC 8.4(b) violation is found. Otherwise, the Commission recommends that we indefinitely suspend Chanthunya from the practice of law in Maryland with the right to apply for reinstatement after sixty days. In his filing, Chanthunya recommended that we dismiss this attorney discipline proceeding.
In Shuler, 443 Md. at 506-07, 117 A.3d at 46, this Court stated:
(Brackets, citation, and ellipses omitted).
In Attorney Grievance Comm'n v. Mooney, 359 Md. 56, 98, 97, 84, 87-88, 753 A.2d 17, 39, 31, 33-34 (2000), this Court indefinitely suspended from the practice of law in Maryland, with the right to apply for reinstatement after ninety days, a lawyer who, in separately representing four clients, violated MLRPC 1.1 (Competence), 1.3 (Diligence), 1.4 (Communication), 5.1 (Responsibilities of Partners, Managers, and Supervisory Lawyers), 5.3 (Responsibilities Regarding Nonlawyer Assistants), 8.4(c) (Dishonesty, Fraud, Deceit, or Misrepresentation), and 8.4(d) (Conduct That Is Prejudicial to the Administration of Justice). As to the first client, the lawyer failed to appear at the client's trial, and later "fail[ed] to respond to [his client's] attempted communications[.]" See Mooney, 359 Md. at 74, 77, 753 A.2d at 26, 28. As to the second client, the lawyer falsely promised his client's mother that he would file a petition and visit his client in jail. See id. at 87, 753 A.2d at 34. As to the third client, the lawyer's nonlawyer assistants incorrectly informed the lawyer's client that the client did not need to attend his trial, and the lawyer failed to keep his client informed of his case's status. See id. at 89-90, 753 A.2d at 34-35. As to the fourth client, the lawyer "fail[ed], without sufficient explanation, to subpoena witnesses and to obtain medical records, which may have exculpated his client"; failed to respond to his client's communications; and failed to ensure that the lawyer's associate knew that he had assigned a case to her. See id. at 93-95, 753 A.2d at 37. In Mooney, id. at 87-88, 753 A.2d at 33-34, in finding a violation of MLRPC 8.4 as to the second client, this Court stated:
(Footnote omitted). In concluding that an indefinite suspension from the practice of law in Maryland with the right to apply for reinstatement after ninety days was the appropriate sanction, this Court did not note any aggravating factors, and noted only one mitigating factor: the absence of prior attorney discipline. See id. at 98, 753 A.2d at 39.
In Attorney Grievance Comm'n v. Brugh, 353 Md. 475, 478-79, 727 A.2d 913, 915, 914 (1999), this Court indefinitely suspended from the practice of law in Maryland, with the right to apply for reinstatement after sixty days, a lawyer who violated MLRPC 1.1 (Competence), 1.3 (Diligence), 1.4 (Communication), 1.16(d) (Terminating Representation), and 8.4(d) (Conduct That Is Prejudicial to the Administration of Justice). In separately representing each of three clients, the lawyer "neglected the matter and failed to communicate with his client." Brugh, 353 Md. at 476, 727 A.2d at 913. This Court observed that, at the time of his misconduct, the lawyer was experiencing personal problems in that his wife was having an affair. See id. at 477, 727 A.2d at 914. This Court also noted that the hearing judge found that the lawyer suffered from an adjustment disorder; that the lawyer had "recover[ed]" thanks to antidepressants and therapy; and that the lawyer was "genuinely remorseful." Id. at 478, 727 A.2d at 914. Finally, at oral argument, the lawyer's counsel stated that the lawyer intended to pay within six months the money that the lawyer owed to his former clients. See id. at 478, 727 A.2d at 914.
Here, Chanthunya violated MLRPC 1.1 (Competence), 1.3 (Diligence), 1.4(a)(2), 1.4(a)(3), 1.4(b) (Communication), and 8.4(d) (Conduct That Is Prejudicial to the Administration of Justice). Chanthunya's misconduct cost Traore the opportunity to have USCIS consider an appeal, and impeded the progress of both of his clients in becoming naturalized.
We note five aggravating factors: (1) a pattern of misconduct, as Chanthunya engaged in similar misconduct in separately representing two clients; (2) multiple violations of the MLRPC; (3) a refusal to acknowledge the misconduct's wrongful nature; (4) substantial experience in the practice of law, as Chanthunya had been a member of the Bar of Maryland for approximately ten years at the time of his misconduct; and (5) the victims' vulnerability, as both of Chanthunya's clients, Traore and Vanguere, were not United States citizens and had immigrated to this country, see Thomas, 440 Md. at 558, 103 A.3d at 649 (This Court noted the "special vulnerability of immigrants as clients[,]" given that people who immigrate to this Country may be "extremely vulnerable people, largely unable or unwilling as a practical matter to defend themselves[] from being preyed on[.]" (Citations and internal quotation marks omitted)).
We note two mitigating factors: (1) the absence of prior attorney discipline; and (2) the absence of a dishonest or selfish motive.
We conclude that the appropriate sanction for Chanthunya's misconduct is an indefinite suspension from the practice of law in Maryland with the right to apply for reinstatement after sixty days. This sanction will impress on Chanthunya and other lawyers in immigration cases the importance of representing their clients competently, diligently, and with adequate
As noted above, in its filing, the Commission initially recommended that we indefinitely suspend Chanthunya from the practice of law in Maryland with the right to apply for reinstatement after six months. At oral argument, however, Assistant Bar Counsel stated that, if this Court concluded that Chanthunya did not violate MLRPC 8.4(b), the Commission would recommend that we indefinitely suspend Chanthunya from the practice of law in Maryland with the right to apply for reinstatement after sixty days. Upon consideration of Chanthunya's violations of MLRPC 1.1, 1.3, 1.4(a)(2), 1.4(a)(3), 1.4(b), and 8.4(d), the negative impacts that Chanthunya's misconduct had on both of his clients, the five aggravating factors, and the fact that there are only two mitigating factors — the absence of prior attorney discipline and the absence of a dishonest or selfish motive — to adequately protect the public, we are more than convinced that the sanction that Bar counsel recommended at oral argument, an indefinite suspension with the right to apply for reinstatement after sixty days, is appropriate.
Although not involving entirely similar misconduct, Mooney and Brugh are helpful in determining the appropriate sanction in this case. Chanthunya's misconduct was not as serious as the lawyer's misconduct in Mooney, 359 Md. at 98, 97, 84, 87-88, 753 A.2d at 39, 31, 33-34; for example, Chanthunya did not violate MLRPC 8.4(c). Accordingly, Mooney suggests that Chanthunya's misconduct merits a sanction that is less than an indefinite suspension with the right to apply for reinstatement after ninety days.
Chanthunya's misconduct is similar to that of the lawyer in Brugh, 353 Md. at 476, 727 A.2d at 913; like the lawyer in Brugh, Chanthunya neglected cases and failed to communicate with clients. It is true that the lawyer in Brugh, id. at 478-79, 727 A.2d at 915, 914, violated an MLRPC that Chanthunya did not — namely, MLRPC 1.16(d) (Terminating Representation) — and the lawyer in Brugh engaged in misconduct involving three clients, in contrast to Chanthunya's misconduct involving two clients. No aggravating factors, however, accompanied the misconduct of the lawyer in Brugh, id. at 477, 727 A.2d at 914. And, significantly, the lawyer in Brugh, id. at 477-78, 727 A.2d at 914, offered substantial evidence of mitigating factors in the form of personal problems, a mental disability, remorse, and an effort to make restitution. Here, although Chanthunya's misconduct involved only two clients, as opposed to three, and although he did not violate MLRPC 1.16(d), there were multiple aggravating factors and fewer mitigating accompanying Chanthunya's misconduct. Specifically, only two mitigating factors accompany Chanthunya's misconduct, and five aggravating factors — including a refusal to acknowledge the misconduct, substantial experience in the practice of law, and the victims' vulnerability — accompany Chanthunya's misconduct. A comparison of Brugh with this case indicates that an indefinite suspension with the right to apply for reinstatement after sixty days is the appropriate sanction for Chanthunya.
For the above reasons, we indefinitely suspend Chanthunya from the practice of law in Maryland with the right to apply for reinstatement after sixty days. The suspension will begin thirty days after the date on which this opinion is filed.
Judge HARRELL joins in the judgment only.
Traore's inability to recall the exact date on which Chanthunya allegedly touched her breast is the only one of these reasons that directly relates to the alleged assault itself and provides little to no support for the hearing judge's finding that Traore's testimony was not credible.
The Commission excepts to the other new reasons for which the hearing judge found that Traore's testimony was not credible. For example, the Commission contends that the hearing judge clearly erred in finding that Traore "prepared a false document that she wanted to use for her asylum application"; the Commission asserts that Traore testified that it was Chanthunya who proposed that she prepare a false document, which he would file as part of an application for asylum. As discussed above, the fact that the hearing judge found that the witness's testimony was not credible for the wrong reason does not mean that the witness's testimony was accurate. Accordingly, even if we sustained the Commission's exceptions to the new reasons for which the hearing judge found that Traore's testimony was not credible, it would not follow that Traore's testimony was accurate.
