258 A.3d 234
Md.2021Background
- Respondent Celestine Tatung, a D.C.-barred immigration attorney who maintains a law office in Maryland, represented two Cameroonian clients in removal/asylum proceedings before the Immigration Court in El Paso, Texas.
- During the representation Tatung: missed an August 23, 2017 master calendar hearing after requesting telephonic appearance (Judge Abbott had a standing order limiting telephonic appearances); filed an attestation affidavit that authenticated foreign witness statements for only one client but it was filed in both clients’ files; and negotiated a flat fee (including travel) then later sought additional fees after making more trips than anticipated.
- The immigration judge held merits hearings, requested briefing on a novel “forced marriage” social-group issue, and ultimately denied asylum; the BIA later rejected ineffective-assistance claims.
- The Attorney Grievance Commission (Bar Counsel) filed disciplinary charges under the Maryland Attorneys’ Rules of Professional Conduct (MARPC) alleging competence, diligence, fee, candor, and misconduct violations; a hearing judge found multiple MARPC violations.
- The Court of Appeals addressed whether MARPC Rule 8.5(b) required applying EOIR/federal professional-conduct rules (8 C.F.R. § 1003.102) instead of MARPC for conduct “in connection with” the immigration tribunal, and separately reviewed alleged misconduct in the disciplinary investigation.
- The Court held that Rule 8.5(b)(1) requires applying the rules of the jurisdiction where the tribunal sits (EOIR rules) to conduct connected to that proceeding, dismissed the MARPC charges arising from the immigration matter, and, after independent review, dismissed the remaining MARPC charges relating to the disciplinary investigation for lack of proof by clear and convincing evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Choice of law under MARPC Rule 8.5(b): which conduct rules govern alleged misconduct connected to an immigration court proceeding? | Commission: MARPC may govern because Tatung maintains an office in Maryland and performed some work from there; apply MARPC unless a conflict exists. | Tatung: Rule 8.5(b)(1) mandates applying the rules of the jurisdiction where the tribunal sits (EOIR regulations), so MARPC should not govern the immigration-related charges. | Court: Rule 8.5(b)(1) plainly requires applying the tribunal’s jurisdiction rules for conduct connected to a matter before that tribunal; EOIR rules apply; MARPC charges tied to the immigration proceeding were dismissed. |
| Whether Tatung violated MARPC (competence/diligence/fees/misconduct) for his handling of the immigration matter | Commission: Tatung’s missed hearing, erroneous filing of attestation, and fee conduct show violations of MARPC (Rules 1.1, 1.3, 1.5, 8.4). | Tatung: Mistakes were careless, not fraudulent or sanctionable under the applicable EOIR standards; choice-of-law bars MARPC application here. | Court: Because EOIR rules govern, the MARPC-based charges arising from the immigration proceeding were improperly charged and dismissed; Court also noted that the mistakes were minor and unlikely to merit more than a reprimand if judged under MARPC. |
| Whether Tatung made false statements or otherwise violated MARPC in responding to Bar Counsel (Rule 8.1/8.4) during the disciplinary investigation | Commission: Tatung omitted or misstated material facts (e.g., initially not acknowledging the missed master calendar hearing; misstatements about the attestation affidavit) amounting to violations. | Tatung: He timely responded to multiple Bar Counsel letters, corrected the record when prompted, and any misstatements were inadvertent/careless, not knowing falsehoods. | Court: MARPC governs conduct during the investigation; on independent review Bar Counsel failed to prove violations by clear and convincing evidence; findings of Rule 8.1/8.4 violations were reversed and those charges dismissed. |
| Appropriate remedy (dismissal, remand, or sanction) given choice-of-law error and merits | Commission: Proceed under MARPC was proper; if choice-of-law requires EOIR rules, remand or recharging is sufficient. | Tatung: Dismiss charges under MARPC because Rule 8.5(b) requires EOIR rules for tribunal-related conduct; also denies MARPC violations in the investigation. | Court: Dismissed MARPC charges tied to the immigration proceedings because EOIR rules should have governed; dismissed investigation-related MARPC charges for failure of proof. Court declined to remand because, on the record, violations (if any) would not warrant discipline beyond a possible reprimand. |
Key Cases Cited
- Gadda v. Ashcroft, 377 F.3d 934 (9th Cir. 2004) (federal EOIR professional-conduct rules allow supplementary state regulation and promote cooperation with state disciplinary authorities)
- Gen. Motors Corp. v. Seay, 388 Md. 341 (Md. 2005) (Maryland rule interpretation follows statutory construction principles; plain language controls)
- In re Lyons, 780 N.W.2d 629 (Minn. 2010) (applying ethics rules of the jurisdiction where a tribunal sat to out-of-state litigation conduct)
- In re Ponds, 888 A.2d 234 (D.C. 2005) (applying Maryland rules to misconduct that occurred in Maryland litigation under similar choice-of-law provisions)
- Attorney Grievance Comm’n v. Zhang, 440 Md. 128 (Md. 2014) (discussing Rule 8.5(b)(2) predominant-effect analysis in multi-jurisdictional disciplinary matters)
- Attorney Grievance Comm’n v. Ambe, 466 Md. 270 (Md. 2019) (Court’s original jurisdiction over attorney disciplinary proceedings and standards of review)