Attorney Grievance v. Malone, 269 A.3d 282

Background

Petitioner (Attorney Grievance Commission through Bar Counsel) charged Edward A. Malone with violating MLRPC 8.1(a),(b) and 8.4(a),(b),(c),(d) for knowingly misrepresenting and concealing admissions and disciplinary history on multiple Texas bar applications.
Malone had prior Virginia public reprimand and a private reprimand from the U.S. District Court (D. Md.); he failed to disclose those matters to Texas and made false statements to the Texas Board; Texas later canceled his Texas license.
In discovery Malone invoked the Fifth Amendment in response to two document requests and then made a blanket invocation at his deposition, declining to answer any questions. Bar Counsel did not move to compel; instead she moved in limine to preclude Malone from testifying at the disciplinary evidentiary hearing.
The hearing judge found Malone invoked the privilege in bad faith, granted the motion in limine, and then found by clear and convincing evidence Malone violated the charged MLRPC rules and proved several aggravating factors while finding no mitigating factors.
On appeal the Court of Appeals affirmed the findings of violations but held that a civil litigant is not forever precluded from waiving a prior Fifth Amendment invocation and testifying; trial courts should generally permit waiver unless doing so would unfairly prejudice the opponent or the invocation was a manipulative tactic.
The Court ordered a limited remand: Malone may testify as to mitigating factors; Bar Counsel may rebut; the hearing judge must issue supplemental findings on mitigation (and, if necessary, aggravation); determination of sanction deferred pending remand and further appellate proceedings.

Issues

Issue	Plaintiff's Argument (Bar Counsel)	Defendant's Argument (Malone)	Held
1. Does invoking the Fifth in discovery permanently preclude a civil litigant from later testifying at trial about the same matters?	Invoking privilege wholesale during discovery can be used as both shield and sword; preclusion is appropriate to prevent discovery abuse and unfair surprise (relying on Kramer).	A litigant may assert the privilege pretrial and later change his mind and testify at hearing; permanent preclusion penalizes exercise of constitutional rights.	A prior invocation does not forever preclude later waiver and testimony; courts should generally allow withdrawal but balance prejudice and potential bad-faith tactical invocation.
2. Was Malone "punished" for invoking the Fifth Amendment when the hearing judge precluded his testimony?	Preclusion was justified because Malone’s blanket invocation prejudiced Bar Counsel and was in bad faith.	Preclusion amounted to punishment for asserting constitutional right; Spevack and Sugarman protect invocation.	Court held Malone’s Fifth Amendment rights were recognized; exclusion was not punishment of the privilege itself. Preclusion of testimony on merits was within judge’s discretion given bad-faith invocation and Malone’s representation he'd likely not testify in chief, but exclusion as to mitigation was error.
3. Did Malone violate MLRPC 8.1 and 8.4 as alleged?	Bar Counsel: Malone knowingly made false statements and omissions on Texas applications and to the Texas Board, committing dishonesty, perjury (in Texas), and conduct prejudicial to the administration of justice.	Malone disputed some specifics and contended certain omissions related to Texas admissions should not trigger Maryland Rule 8.1; claimed some omissions were inadvertent.	Court affirmed hearing judge: clear and convincing evidence supports violations of 8.1(a),(b) and 8.4(a),(b),(c),(d). Malone did not except to these legal conclusions on appeal.
4. Remedy: Should Malone be allowed to present mitigation and is remand required?	Bar Counsel argued preclusion should extend to mitigation because discovery prejudice could not be cured and Malone invoked privilege in bad faith.	Malone sought to be allowed to testify at least about mitigation/sentencing factors; argued denial violated ability to present mitigating evidence.	Court held exclusion of mitigation testimony was error. Ordered limited remand to allow Malone to testify on mitigation, permit Bar Counsel rebuttal, and require supplemental findings; sanctions deferred pending remand.

Key Cases Cited

Spevack v. Klein, 385 U.S. 511 (attorney may invoke Fifth Amendment; cannot be disbarred solely for asserting privilege)
Maryland State Bar Association v. Sugarman, 273 Md. 306 (immunized testimony in other forum may be used in disciplinary proceedings)
Kramer v. Levitt, 79 Md. App. 575 (invoking Fifth during discovery may justify precluding later testimony on those matters to prevent discovery abuse)
Faith v. Keefer, 127 Md. App. 706 (invocation during discovery does not permanently bar later testimony; court must balance prejudice and context)
United States v. Certain Real Property Known as 4003-4005 5th Ave., 55 F.3d 78 (2d Cir.) (courts should generally permit waiver and seek means to accommodate both parties; consider bad-faith invocation and prejudice)
SEC v. Graystone Nash, 25 F.3d 187 (3d Cir.) (balancing test when litigant invoked Fifth in discovery; avoid unnecessarily harsh consequences)
Taliaferro v. State, 295 Md. 376 (factors for excluding belatedly disclosed evidence or considering continuance)