*1 100A.3d 1112 MARYLAND ATTORNEY GRIEVANCE COMMISSION OF v.
Runan ZHANG. 11, Sept. Term, Docket No. 2013. Misc. AG Appeals Maryland. Court July 2014. Aug.
Reconsideration Denied 2014. *8 Lawless, Lydia (Glenn E. Assistant Bar Counsel M. Gross- man, Counsel, Bar Attorney Grievance Commission Mary- land) for Petitioner.
Joseph A. Hennessey, Esq. (Beins, Goldberg & Hennessey, MD) LLP Chase, of Chevy Respondent.
ARGUED BARBERA, BEFORE: C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, McDONALD and WATTS, JJ.
WATTS, J.
This attorney discipline proceeding concerns a Maryland who, (1) among things: other represented her niece in an matter in Virginia though annulment/divorce even she was not licensed to practice law in Virginia and even though a conflict of interest existed due the lawyer’s representation of her niece’s matter; (2) husband an immigration provided incompetent representation and advanced a ground for annul- ment without conducting adequate research or speaking her (3) niece; authorized co-counsel to sign agreements settlement on behalf of her niece despite failing to advise her niece of agreements and to consent; obtain her misrepresented *9 English in and her consent ability
niece’s to communicate (5) out held herself agreements; the terms of the settlement law; and immigration corporate and as specializing from the trial representation role in her niece’s concealed her court. Bar a (“Zhang”), Respondent,
Runan member (“Wife”), niece, Yuxuan Maryland, represented of case, in the subsequent divorce Wife’s annulment (“the Virginia County Prince Circuit William Court (“Husband”), Court”), Daji Song Zhang repre- whom against complaint Husband immigration in an matter. filed sented of Attorney with Grievance Commission against Zhang (“the Commission”), Maryland Petitioner. behalf, on the Bar Counsel April
On Commission’s Remedial Disciplinary filed “Petition for or this Court Maryland against Zhang, violating Action” her with charging (“MLRPC”) 1.1 Lawyers’ Rules of Professional Conduct (Communica of (Competence), (Scope Representation), 1.2 1.4 (Conflict tion), Rule), (Lawyer 1.7 of 3.7 as Interest: General 8.4(c) Witness), (Truthfulness Others), 4.1 in Statements to 8.4(d) Fraud, Deceit, Misrepresentation), or (Dishonesty, Justice), (Conduct Prejudicial Administration of That Is 8.4(a) MLRPC). 28, 2013, Bar (Violating May On Disciplin in this Court an “Amended Petition for Counsel filed charges violated ary or Remedial Action” add or 3.1 (Declining Terminating Representation), MLRPC 1.16 (Unauthorized (Meritorious Contentions), Prac 5.5 Claims (Communication Practice), Law), of tice of and 7.4 Fields of as Rules of Professional Con corresponding Virginia well as (“VRPC”) and District of Rules of Professional duct Columbia (“DCRPC”).1 Conduct violating (Compe- Specifically, Zhang charged
1. VRPC 1.1 tence), (Communication), (Con- (Scope Representation), 1.2 of 1.4 1.7 Rule), (Declining Terminating Repre- flict of General 1.16 Interest: sentation), Contentions), (Meritorious (Lawyer Claims and 3.7 as 3.1 Witness), Others), (Unauthorized (Truthfulness in Statements to 5.5 4.1 (Communication Practice), Law), of Fields and 8.4 Practice of 7.4 of (Misconduct), (Competence), (Scope Representa- 1.1 1.2 and DCRPC On April this Court designated the Honorable (“the Algeo John hearing judge”) Michael the Circuit Court *10 Montgomery County attorney for to hear this discipline pro 29, 2013, ceeding. August hearing judge On conducted a 24, 2013, hearing. On in judge October filed this law, of fact findings concluding Court and conclusions of that 1.1, 1.2(a), 1.4(a), 1.16(a), Zhang 1.7(a), 3.1, violated MLRPC 8.4(a).2 3.7(a), 4.1(a), 5.5(a), 7.4(a), 8.4(c), 8.4(d), and 6, 2014, May On argument. we heard oral For the below reasons, we Zhang. disbar
BACKGROUND In facts, his opinion, hearing judge following found the which we summarize. 21, 2000,
On June Zhang this Court Bar admitted Maryland. Zhang maintains a solo practice, The Law Offices Zhang, Rockville, of Runan in with offices Maryland and the District of Zhang’s Columbia. website special- states that she in izes immigration corporate practice, and that she practices family law in Maryland, Columbia, the District of and Virginia. 10, 2010, Wife,
On April niece, a Zhang’s non-United States citizen, Husband, citizen, Fairfax, married a United States Virginia. 21, 2010, (Peti- April On Zhang filed a Form 1-130 Relative), tion for Alien with the Citizenship United States (“USCIS”) and Immigration Services on Husband’s behalf Wife’s benefit. From April until she withdrew her 26, 2010, appearance on Zhang November represented Hus- band in immigration matter.
tion), (Communication), (Conflict Rule), 1.4 1.7 of Interest: General (Meritorious (Declining Terminating 1.16 Representation), 3.1 Contentions), Witness), (Truthfulness (Lawyer Claims and 3.7 as 4.1 Others), (Unauthorized Practice), (Miscon- Statements to 5.5 and 8.4 duct). MLRPC, hearing judge 2. The solely based his conclusions of law on the alleged did not address the violations of the VRPC and DCRPC. separated, had By Husband and Wife November pursue marriage. an annulment of Wife wished drafting complaint Zhang assisted Wife November in the pro Virginia could file se Court. for annulment Wife and, accord- Virginia not a Bar of was member Zhang (“Metcalf’), “to Diana Metcalf ingly, colleague, asked of both Bar of Metcalf is member serve as co-counsel.” space shared Maryland Virginia, and the Bar of and had office Rockville, 2003. Maryland approximately since (1) agreed: and Metcalf On November co-counsel; and that Metcalf they represent Wife as would pro move for admission Court would two agreement memorializing points An those hac vice. At the beginning representa- not executed. drafted but Metcalf, tion, e-mail but provided Wife’s address *11 fluently English, not and speak advised that Wife did with directly thus unable to communicate Metcalf would be responsibility directly the communi- Zhang Wife. assumed on advisement concern- Zhang’s with Wife. reliance cating no inability speak Metcalf had ing fluently English, Wife’s 2010, she was contact with from November when direct Wife retained, first until March 2011. Zhang that she had recognized
On November in her of Husband representation conflict of interest due to matter, her appearance the so she did not enter immigration conflict, resolving the in annulment matter. Instead of the as consciously chose to continue to act deliberately and Zhang for except entering appearance in all matters counsel representation to the disclosing the matter and the annulment Wife, se, 18, 2010, pro filed Virginia Court. On November Annulment, had which Complaint the Court a for Virginia Zhang on by Zhang Although been Wife’s behalf. prepared annulment, for Wife filed complaint had prepared from attempt se an conceal complaint pro for annulment as of interest and role Court conflict Virginia alle- for annulment contained complaint counsel. The Wife’s marriage fraud as to the and gations immigration Petition for Alien Relative that had filed on Husband’s behalf. 10, 2010, Husband,
On his Leon through attorney December Demsky (“Demsky”), S. filed demurrer to the complaint 7, 2011, Metcalf, annulment. January Zhang, Demsky On appeared in the hearing, Court for a and Metcalf appearance entered her At point as Wife’s counsel. some hearing, before the and Metcalf had an negotiated (“the agreement Agreement”) with January Husband Demsky. January Agreement provided The that Husband demurrer, would withdraw the Wife would amend com- annulment, plaint for the parties only would seek an annulment, not other monetary equitable relief. Based Zhang’s assurances that Wife had consented to the January terms, Agreement’s signed January Metcalf Agreement on behalf. Although Zhang Wife’s assured Metcalf that hadWife consented January to the terms of the Agreement, actuality, Zhang had not discussed the terms of January Agreement its Wife before execution. January
After execution of the Agreement, parties could agree ground on the result, for the annulment. As a Husband, through Demsky, filed a second demurrer. Mean- while, Zhang, acting who was as immigration attorney, Wife’s arranged for to obtain a visa to from Wife travel China to the United States to participate at trial.
On February legal conducted research and an prepared complaint amended for annulment opposi- and an *12 demurrer, to tion the and second offered to Metcalf file to the pleadings under Metcalfs name or February Wife’s name. On 10, 2011, Zhang with Metcalfs permission, signed Metcalfs name to the opposition, which she filed in the Virginia Court. 16, 2011, February On Metcalf filed in Virginia the Court the amended for annulment. complaint 17, 2011, (“Lu”),
On February Michael Lu W. co- Demsky’s counsel, Zhang explore e-mailed to potential settlement annulment matter. Lu suggested that an pur- annulment be sued on of grounds the and misunderstanding mutual mistake Wife, immigration due “that to
based on the circumstance: issues, to return the United States follow had been unable to ceremonies, and complete marriage to the ing marriage the mar registered marriage, had for parties that while the counsel,” “legal As Wife’s riage was never consummated.” Lu mutual and mutual Zhang misunderstanding that e-mailed annulment; grounds not acceptable mistake were annulment pursue that the an Zhang suggested parties instead Husband, of alleged namely, medical condition based on an 17, 2011, when the e-mail ex February As of impotency. occurred, Lu Zhang and had never change Zhang between in mari had couple engaged discussed with Wife whether relations, an no to annulment based pursue tal and had basis eventually agreed Lu that Hus impotency.3 Zhang on and $1,500 “admit “global for a settlement” and he pay band would at problem.” February an On 6:25 impotency has corre copy forwarded to Metcalf a her e-mail p.m., Zhang to may sign Lu ‘We need spondence message: with agreement in court tomorrow.” an morning February appeared Metcalf
On the opposition to second demur- argue Court to that had sent the Zhang rer. Metcalf had not read e-mail any thus was not aware that settlement previous evening, and Lu. Zhang Approxi- had occurred between and discussions mately hearing, Zhang minutes before the advised fifteen that, previous and “impotent” Metcalf that Husband was agreement and Lu had an under which night, Zhang reached medical an annulment based Husband’s pursue Wife would Metcalf about how Husband’s questioned condition. date, at such a late medical condition was discovered the negotiations. the details of assured inquired about negotiations in the participated Metcalf that Wife had "argued hearing judge had that she misunder- 3. The stated marriage failure consummate a stood the difference between however, hearing judge argument, impotency.” The discredited this [Zhang] prior that at no time stating: "Given the fact that admits her, did February discuss sex life with she did she Wife's suggest grounds any for annulment.” have basis in fact either *13 she had communicated with Wife and Lu late evening into the agreement not, however, until the was reached. Wife had participated the settlement discussions that occurred on In February actuality, 2011. it was not February until time, Zhang, for the first discussed the terms of the agreement Wife. 18, 2011, February
On before the began, Demsky, Metcalf, and Zhang negotiated the final terms of the settle- (“the which, agreement February ment Agreement”), in perti- part, provided $2,000 nent that Husband pay would Wife as claims, complete full and of all settlement and that Husband uncontested, “agrees the annulment is object, he will not defend, any or contest Complaint for Annulment based upon being impotent[.]” [his]
Prior to execution of February Agreement, Zhang told (1) Metcalf that: (Zhang) she had discussed the terms of the (2) Wife; February Agreement with Wife understood and terms; agreed to the and Wife authorized Metcalf to sign February Agreement on her behalf. Metcalf was con- cerned implications about the of signing February Agree- Wife, ment without speaking with repeatedly asked Zhang whether agreed Wife had to the February Agreement’s terms. Zhang repeatedly responded that Wife had agreed to the terms and authorized sign Metcalf to the February Agree- ment. on Zhang’s representations, reliance Metcalf signed February Agreement on Wife’s behalf. 18, 2011, February
On Demsky and Metcalf submitted to Court a proposed consent order reflecting February Agreement’s terms. The Honorable Lon E. Ferris signed the proposed consent order. 19, 2011, February time,
On for the first Zhang spoke with February Wife about the Agreement. Wife ad- immediately not, vised Zhang fact, that Husband was In- “impotent.” stead of informing Metcalf at that time that the February Agreement had signed authorization, been without Wife’s Zhang attempted to negotiate additional terms Hus- binding band to the February Agreement. February On time, she had admitted Metcalf that
the first *14 with February Agreement the of the Wife discussed terms her and that Wife had advised that to its execution prior condition. alleged Husband did not have the medical 1, 2011, for directly contacted Metcalf the On March Wife wrote, in time, fluent sending first an email which she (1) the terms of that: had not been advised of the English, she (2) execution; its Husband was February Agreement before (3) did not to or authorize and she consent the “impotent”; 1March February Agreement. of the Between and execution 3, 2011, law Virginia and Metcalf and Zhang March researched aside the February Agreement. drafted motion to set 3, 2011, filed in Court a Zhang Virginia On March the February set the and consent Agreement motion to aside the hearing The Court scheduled a on motion Virginia order. 18, 18, 2011, March and March for March 2011. Between Metcalf, co-counsel, prepare worked as to Zhang As that drafted hearing. part preparation, Zhang *15 in at all Beginning continuing November 2010 and relevant thereto, times in [Zhang] represented pursuit Wife of an annulment and divorce in County, Virginia. Prince William Although did not enter her in [Zhang] appearance Court], [Virginia is no question acting there she was as counsel, attorney advice, an as she provided legal representation to Wife as co-counsel to Metcalf [ ] [ ]. advice, [Zhang] provided legal drafted pleadings and mo- tions, assisted in preparation hearings, conducted legal research, and in participated negotiations settlement behalf of [Zhang] Wife. also stated to that she repre- [Lu] sented Wife. The Court finds [Zhang]’s argument that she acting was not as an attorney only as a “concerned family member” to without be merit.
STANDARD OF REVIEW attorney an discipline proceeding, this Court reviews for fact, clear error a hearing judge’s findings of and reviews without hearing judge’s deference the of conclusions law. See 16-759(b)(l) (“The Md. R. Court of Appeals shall review de [hearing] law.”); novo the judge’s conclusions of Md. R. 16- 759(b)(2)(B) (“The shall give regard Court due to the opportu- nity hearing judge credibility assess the of wit-
146 Fader, Attorney also Comm’n v. nesses.”); 431 see Grievance (2013). 395, 426, 36 Md. A.3d v. Bocchi- Attorney Comm’n Grievance in exceptions, As to no, (2013), recently we 435 Md. 80 A.3d reiterated: hearing judge’s to the party exceptions a files
When fact, long will be overruled so as findings exceptions those party erroneous. a takes findings clearly are not When law, conclusions of those exception hearing judge’s the conclusions are long will be overruled so as exceptions by the facts found. supported (Citations omitted).
DISCUSSION A. Motion to Dismiss attorney discipline pro moves to dismiss this to her grounds apply on the that the MLRPC do not ceeding Disciplinary the Amended Petition for conduct and sufficiently specific Action was not clear and Remedial applied.4 which rules of conduct professional inform her of Zhang’s conduct. apply conclude that the MLRPC We with Metcalf a Maryland, had a law office shared rented law building conference room which Metcalf space Maryland. hearing judge implicitly, office As did the conduct reasonably part we infer that substantial *16 difficulty had commu- (including representation her Wife as co- English, soliciting in her Metcalf to serve nicating counsel, Metcalf, authoring her notes for and her discussions case) in with Metcalf about the occurred preparation to “the of conduct Maryland. Generally, professional rule[s] attorney discipline proceed- filing, Zhang moved to dismiss this 4. In her however, Zhang’s ing jurisdiction. argument, coun- for lack of At oral 8.5(a)(1) (“A jurisdiction. conceded that this Court has See MLRPC sel Appeals practice of in this State is admitted the Court State, regardless subject disciplinary authority of where to the of this occurs.”). lawyer’s conduct the jurisdiction the which ... the rules of shall be applied be 8.5(b)(2).5 MLRPC lawyer’s occurred[.]” conduct Disciplinary or Amended Petition that the We conclude to inform “sufficiently specific clear and Action was Remedial R.Md. charged[.]” misconduct any professional [Zhang] of 16-751(c). or Reme Disciplinary Petition for In the Amended of violating rules Action, charged Zhang with Bar Counsel dial counter substantively identical conduct that have professional Indeed, VRPC, MLRPC, DCRPC.6 parts MLRPC, among the material conflict identify any fails to VRPC, in question. and DCRPC reasons, the motion to dismiss. deny
For above we Exceptions Than B. Contentions Other (and five contentions do reject) Zhang’s address We findings of fact exceptions hearing judge’s to the constitute of and conclusions law. apply her MLRPC do not reject We contention that the
5. pending in the matter was conduct because the annulment/divorce 8.5(b)(1) ("[T]he MLRPC Virginia until June 2012. See Court applied ... for conduct in professional to be shall be of conduct rule[s] tribunal, pending the rules of the with a matter before connection sits[.]”). Bar Counsel filed the jurisdiction in which the tribunal 15, 2013; thus, April at Disciplinary Remedial Action on Petition for proceeding during attorney discipline was the annul- this no time pending in the Court. matter ment/divorce reject predominant effect of Similarly, we the contention that the ("[T]he 8.5(b)(2) Virginia. rule of Zhang's was in See MLRPC conduct jurisdic- applied of professional be shall be ... the rules conduct to occurred, or, predominant lawyer's if the in which the conduct tion jurisdiction, the rules of that conduct is in a different effect of the conduct.”). Zhang applied maintained a law jurisdiction shall be attorney Maryland, who shared office office in solicited Metcalf—an engaged with Metcalf in space Maryland, in discussions to assist her in involving representation of Wife Maryland, engaged conduct predominant examining Zhang’s as to Maryland. contention conduct, grounds on which to alter effect we find no applies that the MLRPC case. determination charged pointing only of rules worth distinction between sets 6. The corresponding to VRPC does not contain a subsection out is that the 8.4(d), concerning prejudicial conduct to the administration MLRPC justice. *17 148
First, reject we Zhang’s contention that Bar Counsel inhib- ability ited her to contact Husband before the Bar hearing. Counsel offered to attempt to facilitate a telephonic or elec- tronic deposition of Husband. Bar Additionally, Counsel pro- Zhang’s vided counsel with Thus, Husband’s address. Bar Counsel actually facilitated ability to contact Husband before the hearing.
Second, reject we Zhang’s contention that her rights were violated because she could not confront the complainant (i.e., Husband), testify who did not at hearing. right The of confrontation under the Sixth Amendment to the United States Constitution 21 and Article of Maryland Declaration of case, Rights applies to a criminal not an attorney discipline proceeding. Attorney Marcalus, Grievance Comm’n v. Cf. 501, 521, (2010) (“An 414 Md. 996 A.2d 362 attorney disciplinary ... proceeding governed is not by the same trial, standard proof of as a criminal and it does not demand evidentiary the same burdens as does a criminal prosecution.” (Citation omitted)).7
Third,
reject
we
Zhang’s contention that the hearing
judge erred
Bar
sustaining
objections
Counsel’s
after
Zhang’s counsel asked
provision
Metcalf: “What
Mary
land or
or the
District
Columbia
you
rules excuses
having
from
directly
client?”;
communicate
with your
unpersuaded by Zhang’s
7. We are
reliance on this Court’s dicta in
Lee,
89, 114,
Attorney
Grievance Comm’n v.
387 Md.
874 A.2d
(2005) (”[A]ny
respondent
prejudiced by
concerns that
... has been
during
false
process
statements made
the Peer Review
are ameliorated
respondent
ultimately
the fact that the
opportunity
...
will have the
oath,
complainant,
to confront
evidentiary hearing.”
under
at an
(Citations omitted)).
process
The Peer Review
is a confidential and
process
panel consisting
informal
lawyers
which a
and at least one
layperson
complainant
respondent
hears from the
and the
and deter-
mines whether the
disciplinary
matter can be resolved without formal
Lee,
98, 102,
action.
Id. at 99 n.
Fourth, reject we that Zhang’s hearing contention objections Bar judge sustaining erred Counsel’s after Zhang’s Zhang: “Going your represen counsel asked back to matter, tation in the did immigration you obtain from [Hus confidential information any during band] the course of that representation?”; and “In your immigration the course of representation, you any did information obtain from [Hus name, address, aside from his and that he be band] would sponsor immigration application?” for coun Zhang’s [Wife]’s sel asked for confidential information. Generally, “[a] shall not reveal information relating representation to of a 1.6(a). MLRPC dient[J”
Fifth, reject Zhang’s we contention that hearing judge erred in declining to admit into evidence the Commission’s investigator’s report. contending, so multiple cites exceptions against hearsay, to the rule fails explain why but any exception applies such to the investigator’s Commission’s- report. Findings
C. of Fact The does not except any hearing Commission judge’s findings of fact. of Zhang excepts to multitude hearing judge’s findings of fact. sustain one of only We Zhang’s exceptions hearing to the of fact. judge’s findings
First, Zhang’s we overrule to the exception hearing judge’s finding that her practiced website stated that she family Virginia. law hearing judge The admitted into website, printouts Zhang’s evidence page which contained a Action, especially “Representation that was entitled Civil includ[e,]” and, below “Practices included family practice” law Thus, link Virginia.” hearing divorce at “Type finding err in that website stated judge clearly did not law in practiced family Virginia. that she Second, Zhang’s exception we overrule (Petition for Alien that she filed a Form 1-130 judge’s finding Relative) for Wife’s benefit. with USCIS on Husband’s behalf that is “the petitioner” The Form 1-130 states Husband [i.e., Thus, the “[y]our beneficiary.” relative is the Wife] clearly finding err filed hearing judge did the Form 1-130 with USCIS Husband’s behalf Wife’s benefit.
Third, hearing to the Zhang’s exception we overrule in the represented immigra that she Husband judge’s finding 26, ... 2010.” April tion “from 2010 until November matter 2010, the Form 1-130 with Zhang On filed USCIS. April 3, 2010, In a Husband informed the August letter dated In a withdrawing that the Form I-130.8 letter USCIS he was 26, 2010, “It Zhang informed USCIS: came dated November recently ... that has withdrawn my [Husband] attention therefore, ..., notice that I am no my his this is petition added). The record con longer (Emphasis on this case[.]” Zhang that indicate that tains no written communications Thus, November 2010. learned about Husband’s letter before clearly finding Zhang err in that hearing jüdge the did immigration April in the matter “from represented Husband 26, 2010[,]” ... when she notified USCIS 2010 until November case. longer that she was no involved with the Fourth, to the Zhang’s exception hearing we overrule complaint that she drafted the for annulment judge’s finding hearing, Zhang representa- 8. At the testified that she believed that opinion, hearing August tion of Husband ended on 2010. In his part Zhang’s testimony. "give We due judge credit of did not this hearing judge credibility regard opportunity to assess the to the 16—759(b)(2)(B). of witnesses.” Md. R.
151 15, 2010, Zhang that filed se. On November e- pro Wife Metcalf, stating: mailed ready got filing
I all the documents for the annu[ ]lment I representing case in VA. But realized that was the counsel If lawyer, they both he hired [Wife] [Husband.] a[ ] me for conflict I am disqualify thinking would interest. case, get first as the se complaint pro you file hearing up. involved when the court comes added). Thus, (Emphasis hearing judge clearly did not that finding complaint err drafted the that Wife filed pro se matter.9 annulment/divorce
Fifth, overrule Zhang’s exception we judge’s finding provided that she advice to legal Wife in the represented Wife matter. As annulment/divorce acknowledged, has she drafted pleadings, prepared hear ings, legal and conducted research on Wife’s behalf. Metcalf testified that it had been her understanding would matter, represent Wife and that annulment/divorce Metcalf was “to sponsor Zhang, who is not admitted to [ ] And, practice hac pro hearing judge vice.” expressly discredited allegation only she acted as event, a concerned In any relative Wife. “a rela personal ... tionship purported ‘client’ does not preclude court from finding attorney-client that an relationship exists.” At torney Grievance Comm’n v. 410 Md. Shoup, (2009) (citation omitted). Thus, A.2d the hearing *20 did not in judge clearly err that finding Zhang provided legal advice to Wife and in represented Wife the annulment/divorce matter.
Sixth,
Zhang’s exception
we overrule
to the hearing
judge’s finding that she informed Lu that she represented
in the
February
Wife
matter. On
annulment/divorce
Although
hearing judge
9.
the
excerpt
admitted into evidence an
of a
deposition
Zhang
at which
testified that she did not assist Wife in
preparing
complaint, “resolving any
the
conflict in the evidence” is the
Marcalus,
hearing judge’s role.
atMd.
Zhang e-mailed for annulment. proposed ground not to a agree she could added). Thus, judge clearly did not hearing the (Emphasis represented informed Lu that she Zhang in that finding err matter. in the Wife annulment/divorce hear Seventh, Zhang’s exception the we overrule and, “colleague” per Metcalfs finding that she was ing judge’s At in matter. co-counsel the agreement, annulment/divorce instances, that Metcalf testified in at least three hearing, the estab Additionally, the record was her “co-counsel.” Zhang occasions, and Metcalf met that, Zhang at two lishes least annulment, case, grounds for possible to discuss Wife’s annulment, Zhang for sponsoring for and Metcalfs complaint Thus, Virginia vice admission before Court. pro hac Zhang in that clearly finding did not err hearing judge and, co-counsel “colleague” per agreement, Metcalfs matter. annulment/divorce Zhang’s exception we overrule
Eighth, a conflict of recognized that she she had judge’s finding chose to continue to deliberately consciously and and interest entering appear for except act as counsel all manners disclosing representa matter and ance in the annulment e Zhang November tion to the Court. On Metcalf, that she “realized stating [she]was mailed green in the both representing [Wife] [Husband] counsel lawyer, If he hired immigration a[] case. application card (Em they disqualify me for the conflict interest.” would added). testified that she did Additionally, Metcalf phasis vice admission because pro hac sponsor in the represented that she “had [H]usband remembered member[,]” and thus “could family of her other sponsorship him in a divorce.” party an represent opposing not now Nonetheless, by drafting continued Wife representing attending hearings, partici for and preparing pleadings, Thus, hearing judge negotiations. settlement pating she had a finding Zhang recognized clearly did not err consciously chose to deliberately conflict of interest and *21 continue to act as in all Wife’s counsel manners except entering appearance the annulment matter and disclos- ing the representation Virginia the Court.
Ninth, we overrule exception hearing the judge’s finding that she informed Metcalf that Wife did not fluently speak English directly would not be able to communicate with At hearing, Metcalf. Metcalf testified that Zhang informed her that Wife “wanted all the commu go nication to through Zhang” and that “English [ ] Wife’s was Thus, not very good[.]” the hearing judge clearly did not err that finding Zhang informed Metcalf that Wife did not fluently speak English and directly would not be able to communicate with Metcalf.
Tenth, we overrule Zhang’s exception hearing judge’s that finding “appeared” she in the Virginia Court for hearings January on 2011 and March 2011. The context of the hearing judge’s opinion makes clear that the hearing judge found that Zhang physically present Court, not Zhang had appearance entered an in the Virginia Court.
Eleventh, we sustain Zhang’s exception to judge’s finding that signed Metcalf January Agreement Wife’s behalf “based on [Zhang]’s assurances that con Wife terms”; sented to the the record indicates that signed Metcalf January Agreement on Zhang’s based assurances that Metcalf was sign authorized to agreement because “had authority to speak for” At hearing, Wife. Metcalf “Zhang testified: represented that communications [Wife]’s request would go through [Zhang, [Zhang] a]nd had authority speak for” Wife. At a deposition, Zhang testified (1) that: Wife and parents Wife’s had authorized Zhang “to (2) make the decision for Wife; the best for” had informed Metcalf that Metcalf was authorized to sign January Agreement behalf; on Wife’s although spoke Wife and parents Wife’s before the January 2011, hearing, Zhang did not discuss the January Agreement’s terms, which Thus, had not been yet. determined the hearing *22 specifi- Metcalf that Wife Zhang that assured finding
judge’s was Agreement January terms of the consented to the cally clearly erroneous. hearing to the
Twelfth, Zhang’s exception we overrule January Agree- the she did not discuss finding that judge’s The record its execution. terms with Wife before ment’s the nor discussed Zhang Metcalf that neither demonstrates execution, its terms with Wife before January Agreement’s in reliance January Agreement executed the and that Metcalf authority to Zhang that had the Zhang’s representation on for Wife. speak to the
Thirteenth, Zhang’s exception overrule we 9, 2011, that, pre she February judge’s finding hearing and opposition for annulment complaint an amended pared 2011, February or name. On under Metcalfs Wife’s be filed Metcalf, stating: Zhang e-mailed tomorrow, the amended will file I to Manassas going am clerk, I tomorrow. called opposition and the complaint com- the amendment to judge [the] order[ed] she said simple to a form based changed complaint I plaint, [so] my niece’s your I under name or fraud. can file on the you prefer. name whichever that, on finding err in
Thus, judge clearly did not hearing complaint amended an February Zhang prepared name. filed under Metcalfs Wife’s to be opposition Fourteenth, Zhang’s exception we overrule Plaintiff, she Wife was finding that judge’s “[b]ecause affirmatively proving grounds the burden carried concedes, accurate state- this is an As annulment.” of the law. ment
Fifteenth, to the hear Zhang’s exception overrule we 17, 2011, “immediate she February that on judge’s finding ing annulment, by sought an that Wife ly Lu] made clear [to 17, 2011, February On may be available.” whatever avenue potential about a settlement to Lu’s email response Lu, “willing stating case, e-mailed Wife fight the court for the “goal Wife’s [wa]s annulment^]” annul marriage,” and “the has to grant the annul- cour[t] Thus, ment.” the hearing judge did not clearly finding err made it clear to Lu that an annul- Wife wanted through any ment available means.
Sixteenth, we overrule Zhang’s exception to the hear ing judge’s finding suggested that she the parties pursue an annulment on ground alleged “impotency.” Husband’s On February offer, in response to Lu’s settlement Lu, Zhang emailed rejecting the proposed settlement and for the suggesting first time: “You might consider the follow ing ground for the annulment: Grounds for annulment can *23 also include impotency.... If a marriage was never consum mated, (Para this grounds constitutes viable for annulment.” omitted). Thus, graph break the hearing judge did not clearly err in finding that it was Zhang who first suggested that the parties pursue an annulment on ground of Husband’s alleged “impotency.”
Seventeenth, Zhang’s we overrule exception to the hearing judge’s finding that she misunderstood the difference between failure to consummate a marriage and “impotency” and any did not have in suggest basis fact to either as a ground for annulment. At hearing, Zhang testified that only research as to to failure consummate a marriage consisted of “Googling” the “no phrase marriage consumma tion” and reading to[, that “no equal consummation [was] a ground for impotency.” Zhang was] admitted that she did not know what “impotency” meant, but “assumed it was the as same the no deposition, consummation.” At a Zhang also that, prior Lu, admitted to negotiating with she had not discussed with Wife whether the couple engaged had in mari Thus, tal relations. the hearing judge clearly did not err finding Zhang that misunderstood the distinction between failure to marriage consummate a and impotency, and that she lacked a basis for suggesting either as a ground for annul ment. to the Zhang’s exception we overrule
Eighteenth, had told that she finding that she Metcalf hearing judge’s February her consent to with Wife and obtained spoken that, February testified Agreement. Metcalf an to agreement had reached parties advised that the “impotency,” on Husband’s an annulment based pursue in the actively had participated to that Wife led her believe repeatedly that she asked Metcalf testified negotiations. the terms with Wife and she had discussed Zhang whether February Agreement, “okay” was whether Wife that, after Metcalf testified affirmatively. Zhang responded not, fact, to “that she had talked ward, informed her confirms testimony Zhang’s of the 17th.” night [Wife] during negotiation with Wife speak that she did not February Agreement; prior to execution process day until the speak she did not with Wife according Zhang, Thus, February Agreement signed. after the told Metcalf clearly finding err judge did and obtained consent to had with Wife Wife’s spoken that she February Agreement. Nineteenth, exception to the we overrule Met- finding attempted persuade she hearing judge’s Court misrepresentations calf to make herself from her misconduct- of the Motion to shield support that Wife authorized her misrepresenting Metcalf namely, *24 17, 2011, Zhang March February Agreement. the On sign to a “statement containing [she] Metcalf notes provided could use in for preparations [her] could make or that [she] The say Virginia to to the” Court. going what was [she] including multiple misrepresentations, contained statement (1) to “general authorization” given that: had Metcalf Wife (2) case; to the settlement get Husband “demanded settle the 18, 2011”; and there was February in court on done “lan Metcalf and due to between Wife “miscommunication” notes did not mention guage difficulties.” Thus, negotiations. the settlement played during the role she that, to shield clearly finding did not err hearing judge misconduct, to Zhang attempted persuade herself from her misrepresentations Virginia Metcalf to make to the Court. Twentieth, Zhang’s exception we overrule to the hear ing judge’s finding Virginia Court stated that an perpetrated fraud had been on the Court attempted Virginia and that there was no faith for the good “impotency” basis claim. admitted into hearing judge transcript The evidence 18, 2011, hearing Virginia of the March before the Court. According transcript, Virginia granted Court motion to set aside and stated: “This is a mutual fraud on the ... I’m going prior Court vacate the order as there is no faith good impotency party.” basis claim either Thus, the hearing judge clearly finding did err that the Virginia Court stated an attempted perpetrat fraud had been ed.
D. Conclusions Law The not except any Commission does of the hearing matter, judge’s conclusions law. As a preliminary contends that the hearing judge’s conclusions of law “are categorically flawed” because the hearing judge applied the MLRPC and failed to predicate “differentiate facts underlying predicate violations and underlying Mary- [R]ule facts land reasons, Rule violations.” For the above judge properly applied the MLRPC to the facts of this case. We, therefore, Next, general overrule this exception. we address Zhang’s specific exceptions to the hearing judge’s conclusions of law. (Competence)
MLRPC 1.1 Zhang excepts hearing judge’s determination 1.1, that she violated MLRPC and argues that clear and convincing evidence does not establish she incompetent because Metcalf was counsel. Wife’s
“A lawyer provide competent shall representation Competent representation to a client. requires legal skill, knowledge, thoroughness preparation reasonably *25 158 1.1. “Compliance for the MLRPC
necessary representation.” It more than what to do. requires knowing with [MLRPC 1.1] knowledge problem---- the to the client’s requires applying apply requisite thoroughness a failure to ‘Evidence of alone representing client is sufficient preparation and/or ”1.1’ Attorney to a violation of Grievance support [MLRPC] McCulloch, 388, 397-98, 946 A.2d v. 404 Md. Comm’n omitted). (2008) (citation and internal marks quotation Here, convincing supports and evidence clear 1.1. The judge’s conclusion violated MLRPC acted as counsel for record demonstrates Wife Virginia, despite being matter annulment/divorce in Virginia, “legal licensed to law and without the practice skill, reasonably knowledge, thoroughness preparation lack necessary representation.” for the MLRPC 1.1. thoroughness represent of Wife is legal knowledge by negotiation February most demonstrated of the vividly appreciate legal did not understand or Agreement. marriage distinction a failure to consummate a between alleged “impotence,” Husband’s and her research into the of a search of “no only Google phrase matter consisted time, that, Zhang testified at the marriage consummation[.]” meant, it “impotency” she did not know what but “assumed Nevertheless, Zhang the no consummation.” was the same as any legal speak failed to conduct research with Wife to Lu that Husband consider an annulment suggesting before of ground “impotence.” Husband’s 1.2(a) (Scope Representation and MLRPC Allocation Authority Lawyer) Between Client and hearing judge’s conclusion that Zhang excepts 1.2(a) the record she violated MLRPC because demonstrates “general authority represent that she had inter [Wife]’s ests.” 1.2(a) in relevant provides, part:
MLRPC by concerning abide a client’s decisions shall [A] and, when shall objectives representation appropriate, they client as to the means which are to consult with the *26 of the may A take such action behalf pursued. lawyer be to out the impliedly carry representa- client as is authorized whether to lawyer by tion. A shall abide a client’s decision settle a matter. Thaxton, Comm’n v. 415 Attorney Grievance
In Md. (2010), lawyer 482 we held that a violated MLRPC A.3d 1.2(a) client’s consent to a settle- by “fail[ing] to obtain his ment!.]”
Here, convincing supports clear and evidence 1.2(a). judge’s conclusion that violated MLRPC The sign authorized Metcalf to record demonstrates February January Agreement Agreement, both the though agreements even Wife did not know of the terms of agreements. and had not consented to the Metcalf executed Agreement Zhang’s based assurances that she January agreement, though Zhang was authorized to even sign at that she had not discussed the acknowledged deposition agreement prior of the with to its execution. terms Wife February Agreement Metcalf executed the based on February Agree assurances that that she had discussed the Wife, ment’s terms with and that had in the participated Wife and consented to the terms of the negotiations agreement. not with actuality, Zhang spoken February had Wife about the consent, Agreement or not speak obtained Wife’s and did until the day February Agreement signed. Wife after was simply, Put there were two occasions on which instruct agreements ed Metcalf to execute settlement on Wife’s behalf despite not discussed the terms with and not having Wife securing to into agreem Wife’s consent enter the settlement ents.10 Although Zhang may general authority speak have had on behalf
10. interests, authority of Wife and to make decisions in Wife’s best such agreements did not extend to execution of Wife's settlement absent February consent. It was not in Wife’s best interests to enter into the Agreement ground "impotence,” on the as Wife “did false Husband's agree impotent” [Husband] and a motion to set aside the February Agreement had to be filed. Whether Metcalf should have Zhang's where raised an issue about authorization is not relevant 1.4(a) (Communication)
MLRPC Zhang excepts hearing judge’s determination 1.4(a) given general authority that she violated MLRPC negotiations the interests of achieve “represent ] [Wife] an annulment[.]” 1.4(a) provides, pertinent part:
MLRPC A shall: any inform the client of decision or circum- promptly consent,
stance with to which the client’s informed respect 1.0(f), Rules; as in Rule is these required defined (2) keep reasonably the client informed about the status matter; *27 (3) promptly comply requests with reasonable for infor- mation; and limitation on any consult the client about relevant the lawyer’s lawyer
the conduct when knows the client assistance not the expects permitted [MLRPC] or other law.
Comment [2] to MLRPC 1.4 explains that “a lawyer who an opposing receives from counsel offer settlement a civil controversy ... inform the promptly must client of its sub- unless the client has indicated that the previously stance will be or has authorized proposal acceptable unacceptable reject to or to the offer.” lawyer accept Here, convincing supports clear and evidence 1.4(a). judge’s Zhang conclusion that violated MLRPC There Zhang were at least two occasions where failed to communi- Wife, ie., Zhang cate with when authorized Metcalf to execute lack of agreements despite settlement Wife’s behalf Wife’s of, to, the terms of the knowledge agreements. consent interests, authorization to act in best as as Wife’s well wanted to an annul- general knowledge pursue Wife ment, Zhang did not relieve of her under responsibility signing agreements assured Metcalf that Wife authorized represented to Metcalf that Wife knew of and consented to the terms of February Agreement. 1.4(a) to communicate with Wife. As Comment [2] MLRPC a “must lawyer receiving promptly settlement offer explains, previ inform the client of its substance unless the client has that the will be or unac ously proposal acceptable indicated reject or to ceptable lawyer accept or has authorized the Here, the offer.” the record does not demonstrate that Wife prior of the settlements proposed knew substance And, February Agreement, case of the their execution. only it is that not did not know of the terms of the clear Wife agreement, agreed but that she would not have to the terms obligated had she known them. to communicate inform” “promptly with Wife and Wife about settlement 1.4(a)(1). Zhang MLRPC did not do so.11 agreements. (Conflict 1.7(a) Rule) of Interest: MLRPC General Zhang excepts hearing judge’s conclusion that 1.7(a), she violated MLRPC that she did not have argues Wife, attorney-client an as relationship with Metcalf was Wife’s counsel. asserts that there was no conflict of interest because Husband was a former client whose represen tation on August prior ended months to the start of case. annulment/divorce provides: MLRPC 1.7
(a) (b), Except provided as shall not paragraph if represent representation a client involves a conflict of *28 A interest. conflict of interest exists if: (1) representation the of one client will be ad- directly client; verse to another or
(2) significant representation there is a risk that the or clients materially by one more will be limited the Zhang's attempt 11. to blame Metcalf for the lack of communication is unavailing. attorney That Metcalf was the of record does not diminish Zhang’s negotiation process. Zhang, role in the It is that clear Metcalf, negotiating February Agreement, in took the lead the and that specifically represented February she to Metcalf the the that terms of Wife, Agreement had been discussed with and that Wife consented to And, event, any the terms. in whether Metcalf’s conduct violates the MLRPC or VRPC is not at issue. client, to another a former client
lawyer’s responsibilities lawyer, interest of the by personal or a third a person (b) a conflict of Notwithstanding the existence of interest (a), a if: lawyer may represent a client paragraph under (1) reasonably lawyer believes that the will be lawyer the provide competent diligent representation able to client; each affected
(2) law; prohibited by the is not representation (3) the assertion of a does not involve representation by client by against represented claim one client another proceeding in or other lawyer litigation the same tribunal; before a consent, confirmed gives each affected client informed writing.
in
Here,
convincing
supports
evidence
clear and
1.7(a).
that
violated
judge’s
conclusion
MLRPC
co-counsel, and she
in the
represented
was Metcalfs
Wife
Zhang’s
matter. That
is
niece does not
Wife
annulment/divorce
annul-
relationship
during
with Wife
mean
family
one of a concerned
strictly
matter was
ment/divorce
a
a
entirely possible
member.
It is
for
be both
a
relative in connection to a relative-
lawyer and
concerned
(“[A]
at
client.
MLRPC
Representation) hearing judge’s conclusion Zhang excepts 1.16(a), and that she was not argues she violated MLRPC she representing from Wife because required withdraw in appearance Virginia never entered her Court. 1.16(a) part: lawyer in relevant shall provides, “[A]
MLRPC or, representation a client where has com- represent not menced, if: representation from the of a client shall withdraw representation [MLRPC] will result violation omitted). (Paragraph or other break law[.]” Here, convincing supports clear and evidence 1.16(a). conclusion that violated MLRPC judge’s Husband representing had a conflict of interest both Thus, although Zhang at the same time. did not and Wife Court—and, indeed, appearance enter her appearance could not enter her because she was not licensed hac practice Virginia pro vice—Zhang or admitted representa to not at all because her obligated represent Wife 1.7(a).12 Zhang tion a violation of MLRPC did so constituted anyway. contention, 1.16(a) Contrary Zhang's MLRPC does not state that
12. lawyer "appearance,” and instead states shall withdraw his or representation” represen- that a "shall withdraw from the if the Thus, Zhang's argument she was tation has commenced. *30 (Meritorious Contentions) MLRPC 3.1 Claims and to the Zhang excepts hearing judge’s conclusion that 3.1, she violated that Lu argues represented MLRPC first that “impotent” Demsky Husband was via e-mail on which copied Demsky Husband were and which neither nor Husband right rely corrected. contends that she had a on the veracity represent of Lu’s statements and to them as true to Virginia Court.
MLRPC 3.1 provides: A lawyer bring shall not or defend a or assert proceeding, therein, or controvert an issue unless there is a basis for frivolous, includes, doing example, so that is not which for a extension, good argument faith for an modification or rever- sal of law. A existing lawyer may nevertheless so defend as to that proceeding require every element of the be moving party’s case established.
A lawyer violates MLRPC 3.1 where “the is unable [ ] good argument to make a faith on the merits of the action taken[.]” Cmt. [2] MLRPC 3.1. Here, clear and convincing supports evidence judge’s conclusion that Zhang violated MLRPC 3.1. The record demonstrates that Zhang—not suggested Lu—first an annulment based on Husband’s “impotence” despite having no of, believe, knowledge or reason to that Husband such a had condition, medical despite having discussed the matter with admitted much a deposition. Wife. as at In other words, Zhang lacked a faith good asserting basis for Hus- band’s medical condition alleged ground as for annulment. That Husband’s counsel agreed Zhang’s suggestion does not absolve from proposing “impotence” ground as a for annulment any knowledge without or basis for believing to prevail ground. Wife would be able on such a The lack of a good asserting faith basis such a was manifest- ground
required representation to withdraw from the of Wife because she never appearance Virginia misreading entered her in the Court is based on 1.16(a). of MLRPC setting February order aside the Virginia ed Court’s Agreement at behest. Wife’s 3.7(a) Witness) (Lawyer as
MLRPC conclusion that Zhang excepts hearing judge’s 3.7(a), that, and maintains because she she violated MLRPC no attorney, herself to be Wife’s there was never considered resign “to herself as a witness or as need for her strike the Rule was not attomey[.]” Zhang argues [Wife’i’s because, in the implicated having appearance not entered her Court, she did not “act as advocate at a trial[.]” 3.7(a) provides *31 MLRPC as follows:
A lawyer shall not act as advocate at a trial which the likely necessary is to be a witness unless: lawyer (1) issue; testimony relates to an uncontested testimony legal relates to the nature and value of case; services rendered in the or
(3) disqualification lawyer would work substantial hardship on the client.
Here, convincing supports hearing clear and evidence 3.7(a). judge’s Zhang Zhang conclusion that violated MLRPC lawyer Wife’s counsel. contention that a does not act as an advocate where he or she does not enter his or her in a appearance particular court lacks merit. MLRPC 3.7 does not state that the “advocate at a trial” must have entered appearance his or her in a court to be considered an “advo- cate.” And the term is by “advocate” defined Black’s Law assists, defends, Dictionary as person pleads, who or “[a] (8th prosecutes for another.” Dictionary Black’s Law ed. 2004). Thus, Zhang appearance that did not enter her does not responsibility complying relieve her of the with MLRPC 3.7(a). Indeed, very matter at issue demonstrates that 3.7(a). Zhang violated MLRPC In the interrogato- answers to Metcalf, Zhang provided Zhang ries that to is identified as a potential witness. This that Zhang, acting demonstrates while as an advocate for by preparing interrogato- Wife answers (the advocate) ries, identified herself as a potential witness. 4.1(a) (Truthfulness Others) MLRPC Statements hearing judge’s conclusion that excepts 4.1(a), argues she violated MLRPC that the conclusion is supported by convincing not clear and evidence. MLRPC 4.1(a) provides: course of a client a representing lawyer shall
knowingly:
(1) make a false statement of material fact or law to a person; third
(2) fail to disclose a material fact when disclosure is necessary assisting to avoid a criminal or fraudulent act by a client.
Comment [1] MLRPC 4.1 explains misrepresentations can occur in “A misrepresentation one of two manners: can occur if the lawyer incorporates or affirms a statement of person Misrepresen- another knows is false. tations can also occur true but state- partially misleading ments or omissions that are the equivalent affirmative false statements.”
Here, clear and evidence convincing supports 4.1(a). conclusion that judge’s violated MLRPC *32 falsely to that difficulty told led Metcalf believe Wife had English with the and that all language communication had to through Zhang falsely be handled her. also led to Metcalf believe that had in the participated negotia- Wife settlement tions on and that February Wife knew of and to February Agreement. consented the terms of the Metcalf that, discussing testified after the matter with there Zhang, “no in question mind” that she was left with the [her] “impression” Zhang that had discussed the February Agree- ment’s terms prior February with Wife the execution of the Thus, Agreement “okay” and that Wife was with the terms. Zhang there are at least two instances where made false statements of fact to material Metcalf. 5.5(a) (Unauthorized Law) Practice of
MLRPC Zhang excepts hearing judge’s to the conclusion that 5.5(a), she violated MLRPC that argues she did not represent before the in the Virginia Wife Court annulment/di ie., matter; vorce she did not in practice Virginia. law 5.5(a) MLRPC states: “A shall in practice law a jurisdiction in regulation legal profession violation of the in jurisdiction, that or assist another in so.” doing Comment 5.5 in explains, part: [1] MLRPC further relevant “A lawyer may practice only jurisdiction law in a in which the lawyer is authorized to practice.”
Here, convincing clear and supports hearing evidence 5.5(a). judge’s Zhang conclusion that violated MLRPC It is readily apparent in represented Wife the annul- Although Zhang matter. not sign any plead- did ment/divorce ings Court, Virginia submitted to the it is undisputed that filed, drafted and prepared pleadings to be participated negotiations, settlement and prepared hearings. for Draft- ing pleadings, engaging negotiations, research, conducting and preparing hearings routinely are actions taken by lawyers practice engage law. To in the practice of law does not require that one enter an appearance, or even initiate a lawsuit. See Attorney Grievance Comm’n v. Bris- bon, (2011) (“Where 422 Md. 31 A.3d trial work is not documents, involved but the preparation legal advice, their interpretation, giving of legal or the applica- legal tion of principles problems of any complexity, is involved, (Cita- these practice activities are still the of law.” omitted)). short, tion and internal quotation marks represented Wife Court although she was not to practice licensed law in Virginia and did not enter her appearance in the matter. annulment/divorce 7.4(a) (Communication Practice)
MLRPC of Fields of Zhang excepts judge’s determination 7.4(a). that she violated MLRPC Zhang argues *33 petition any amended failed to allegation include that she held that, fair accordingly, she lacked out as a and specialist herself charge. notice of the 7.4(a) may “A communicate the provides: lawyer
MLRPC particular practice does or does lawyer fact that the A law, 7.1. subject requirements [MLRPC] to the fields as a publicly or herself out shall not hold himself lawyer specialist.”
Here, convincing supports and evidence clear 7.4(a). violated MLRPC Zhang conclusion that judge’s it one of the best states that “is Zhang’s law firm’s website prac law immigration corporate in the and specialized firms describes area.” The website Washington, tice DC corpora and immigration in the being “specialized as clients and individual representing corporate tion law practice transactions.” matters and business immigration on their held herself demonstrate These two statements immigration a publicly specialist” her law firm “out as and law.13 corporation 8.4(c) (Dishonesty, Fraud, MLRPC Deceit, Misrepresentation) or conclusion that hearing judge’s
Zhang excepts 8.4(c) that “none of the argues MLRPC she violated the elements compose violations which predicate ‘clear and proven by have been Rule 8.4 violation M[L]RPC ” convincing evidence.’ 8.4(c) misconduct for a professional “It is provides: MLRPC fraud, involving dishonesty, engage to ... conduct Attorney Grievance deceit[,] misrepresentation[.]” Dore, (2013), 685, 707-08, 73 A.3d v. Comm’n 433 Md. under dishonesty misrepresentation “that we stated allegation petition filed Although specific in the amended 13. there is no website, identifying Bar these statements from Bar Counsel 7.4, placing charged of MLRPC thus Counsel a violation holding publicly being charged herself out as notice she And, hearing, excerpts were admit- specialist. from the website at the case, providing Zhang with during thus ted into evidence Bar Counsel’s opportunity to address the matter.
169
8.4(c)
In
requirement
have no
of intent to
[MLRPC]
deceive.”
words,
attorney
other
as an
a
long
knowingly
“so
makes
false
statement,
in
necessarily
involving misrep-
he
conduct
engages
8.4(c)
resentation
MLRPC
No intent
is
].
to deceive
[under
(citation omitted).
necessary.”
at
73
at 174
Id.
A.3d
deceit,
hand,
on
Fraud and
the other
that
typically require
allege
Bar Counsel
and
intent to
Id. at
prove an
deceive.
Here, convincing supports clear and hearing evidence the 8.4(c). judge’s that Zhang Zhang conclusion violated MLRPC was not truthful in her dealings concerning Metcalf representation, Wife’s and false made statements of material fact to Metcalf about to ability English Wife’s communicate in of, to, knowledge and Wife’s and consent the terms February Agreement. These circumstances alone demon- Zhang engaged strate that in involving dishonesty conduct and addition, misrepresentation. hearing to prior aside, motion Zhang to set Metcalf provided with notes that contained numerous misrepresentations, including that Wife had given “general Metcalf authorization” to settle case when, actuality, in it was advised Zhang who Metcalf she Wife, (Zhang) had authorization to for speak and it was deposition who at a global testified that she had been given parents. authorization Wife and Wife’s The statement prepared by Zhang obscured her role representation Wife’s altogether misrepresented the facts of the case. This certainly dishonesty, conduct involved if not an intent to deceive the Court Virginia repre- as to role in Wife’s sentation. 8.4(d) (Conduct Prejudicial
MLRPC That Is Justice) to Administration excepts hearing to judge’s conclusion that 8.4(d). she violated MLRPC
“It is professional misconduct ... engage prejudicial conduct that is justice[.]” the administration of 8.4(d). “In general, [lawyer] MLRPC violates [MLRPC] 8.4(d) or when impacts public’s his conduct negatively the
170 Dore, legal profession.” of the courts or perception efficacy (citation quotation at A.3d at and internal 433 Md. omitted). marks
Here, supports evidence convincing clear 8.4(d). Zhang violated MLRPC judge’s conclusion Virginia in an matter represented Wife annulment/divorce though practice licensed law even she convey failed to the terms and had a conflict of interest. She Wife, agreements to January February settlement agreements on Wife’s yet sign she authorized Metcalf to false *35 conduct, making engaged dishonest Zhang behalf. concealing to Metcalf misrepresentations and and statements from the representation role in Court. Wife’s And, February Agreement resulted in the Zhang’s conduct entirety, Zhang’s in its conduct being set aside. Considered legal profession, on and the and negatively attorneys reflected disrepute. into bringing legal profession had the the effect MLRPC) 8.4(a) (Violating the MLRPC that judge’s the conclusion she Zhang excepts hearing to 8.4(a). violated MLRPC violate or professional
“It is misconduct for to[] [MLRPC], knowingly or induce attempt to the assist violate so, do the through another[.]” another do or so acts 8.4(a). MLRPC
Here, supports the convincing clear and evidence 8.4(a). that As judge’s Zhang conclusion violated MLRPC 1.2(a), above, 1.1, 1.4(a), MLRPC discussed violated 8.4(d). 5.5(a), 7.4(a), 1.7(a), 3.1, 3.7(a), 4.1(a), 8.4(c), and 1.16(a), E. Sanction Zhang. recommends we disbar Bar Counsel subject not “be to formal Zhang argues that she should prove Bar Counsel failed to the violations discipline” because Alternative by convincing the clear and evidence. of MLRPC reprimand we her. ly, recommends Dore, In at A.3d at we stated: 433 Md. sanctions, impose goal When we our is not to the punish [lawyer], public but rather to protect public’s profession confidence legal deter other [and] To lawyers violating goal, from achieve this [MLRPC]. the sanction should be commensurate the nature and intent gravity misconduct and the with which it sanction, was committed. an determining we appropriate often refer to the American Bar Association’s Standards for Sanctions, Imposing Lawyer which focus the nature of violated, state, duty ethical the lawyer’s mental potential injury by extent of the actual or caused misconduct, lawyer’s any aggravating mitigating [factor]s. (citations
(Second alteration original) quotation and internal omitted). marks
Here, duty violated, as to the nature of the ethical 1.1, 1.2(a), 1.4(a), 1.7(a), 1.16(a), 3.1, 3.7(a), violated MLRPC 4.1(a), 8.4(d) 5.5(a), 7.4(a), 8.4(c), by Wife in representing interest; an despite matter a conflict of annulment/divorce failing to provide competent representation and to conduct adequate grounds annulment; research into by making misrepresentations concerning to Metcalf ability Wife’s English of, communicate in knowledge and Wife’s and consent *36 to, February the terms of the Agreement; and by effectively role in concealing representation her from Wife’s the mind, Court. As to of state the record demonstrates that, Zhang in purposefully engaged misconduct to assist Wife
in a personal matter. potential As to the actual or injury that caused, Zhang’s misconduct Zhang’s misconduct negatively impacted public’s the of perception legal profession, and February necessitated that the Agreement be set aside.
In Attorney Grievance v. Davy, Comm’n 435 Md. (2013),
80 A.3d 342-43 stated: we (a) Aggravating factors include: prior disciplinary of- (b) fenses; (c) motive; dishonest or pattern selfish of mis- (d) (e) conduct; offenses; multiple faith of bad obstruction the [attorney] disciplinary by proceeding[ intentionally fail- ] (f) [Commission]; comply rules or orders
ing to statements, evidence, false or other of false submission [attorney] disciplinary practices during deceptive nature of acknowledge wrongful refusal to (g) proceeding]; (h) (i) conduct; victim; expe- substantial vulnerability of the law; (j) in the of indifference practice [and] rience making restitution.
(Some (citation original) and breaks paragraph alterations omitted). fac-
Here, aggravating not find hearing judge any did review, two aggrava- our we discern Upon independent tors. engaged pattern in a of misconduct ting factors: violated several MLRPC. factors: following mitigating
The
constitute
(b)
(a)
record;
of a
absence
prior disciplinary
absence of
(c)
motive;
or
or
personal
prob-
selfish
emotional
dishonest
(d)
lems;
or to
faith efforts make restitution
timely good
(e)
misconduct;
of
full and free disclo-
rectify consequences
toward
cooperative
or
attitude
[the Commission]
sure
(f)
];
attorney
inexperience
discipline] proceeding[
[the
(h)
law;
or
(g)
reputation;
physical
character
practice
of
(i)
in-
disability
dependency
or chemical
disability;
mental
(1)
when:
there is medical
cluding
drug
alcoholism or
abuse
[lawyer]
depen-
that the
is affected
a chemical
evidence
(2)
or
dependency
or mental
the chemical
dency
disability;
(3)
misconduct;
disability
[lawyer’s
mental
caused the
disability
from the
or mental
recovery
dependency
chemical
by meaningful
period
and sustained
is demonstrated
rehabilitation;
recovery
arrested
successful
unlikely;
of that misconduct is
misconduct and recurrence
(k)
];
O') delay
attorney] disciplinary proceeding[
[the
(l)
sanctions;
remorse;
imposition
penalties
of other
(m)
offenses.
prior
remoteness
[and]
(some
712-13,
at 344
173 finding argues hearing judge finding that the erred not (1) mitigation: the the a following prior absence of disciplinary (2) record; motive; (3) a the absence of selfish or dishonest her taking steps to alert the of the misrepre- Court sentation “impotence”; coopera- about Husband’s her review, tion with Upon Bar Counsel. our we independent prior determine that the record establishes the absence of attorney discipline as sole At oral mitigating factor. argument, prior Bar Counsel conceded that had no disciplinary record.
As to other three factors to alleged be rectification, mitigating—motive, and attitude—the record re- futes, than supports, Zhang’s rather contentions.
made a regarding misrepresentation Husband’s medical condi- Wife, tion to help relative. the motivation of Although helping a may relative not be at the egregious most end of (ie., selfishness seeking gain), personal Zhang nonetheless personal had a interest in achieving a for her positive outcome relative, and her was from motive not free self-interest. of a filing motion to set February Agree- aside the ment dishonesty based on her own does constitute a “timely faith ... good rectify consequences of effort[ ] 713, Davy, And, 435 Md. at A.3d misconduct[.]” 80 at 344. there is no basis conclude that Zhang cooperative Bar cooperation Counsel such would rise to level Thus, aof mitigating record, factor. based on this we con- only clude that mitigating prior factor is the absence of attorney discipline.
In Attorney 353, Grievance v. Elmendorf, Comm’n 404 Md. 357, 360, 363, (2008), A.2d Court this reprimanded lawyer 8.4(d). a who violated MLKPC The lawyer exchanged personal a e-mails with woman in- who quired any way “whether there was get require- around the ment that parties be separated year one order to obtain 355-56, no-fault divorce.” Id. at at 946 A.2d 543-44. “brief, e-mail,” off-the-cuff via response told the woman: “You can file you whatever want so long as it parties say year, has been a the court won’t it question *38 174 356, at to that.” Id. at 946 A.2d long parties agree as the
so
concluding
reprimand
appropriate
In
a
was the
544.
that
found,
sanction,
that
hearing
“the
not
judge
we observed that
conduct,
gave
in the
the
[lawyer] intentionally engaged
the
followed,
that it ‘was such
intending
simply
it
be
but
advice
that
given
impression
woman]
it
have
the
[the
could
is ac-
misrepresenting information to the Court
intentionally
forth
informa-
long
parties
as the
set
the same
ceptable as
”
Also,
363,
(emphasis
original).
946
at 548
in
tion.’ Id. at
A.2d
upon
that” the woman acted
there was “no indication
363,
Id. at
In
v.
408 Md.
Attorney Grievance Comm’n
426,
(2009),
419,
1010,
1024
this
A.2d
Court
969
days
of law for
practice
sixty
from
suspended
8.4(d).
and
This Court
who violated MLRPC 3.3
stated:
for
[lawyer]
expungement petitions
charges
filed
[T]he
in
have
ineligible
attempt
peti-
an
expungement
Further,
“slip by”
granted.
tions
the court and be
[lawyer]
aware of the
hearing judge found
was
ac-
three-year waiting
by
was evidenced
his
period—this
Counsel, as
to that effect in a letter to Bar
knowledgement
he
striking
wording
petitions
as
his
certain
in the
well
in
his
regard
misleading
filed—and that
actions
this
were
in-
[lawyer]’s actions were
the District Court. While the
and,
degree, negligent,
to a
his
misleading
deed
lesser
necessitating
actions
to the level
disbarment.
do
rise
Vanderlinde,
v.
Md.
Attorney
See
Grievance Comm’n
364
376,
463,
(dishonest—perjurious
A.2d
488 [
]
773
ordinarily
should result
disbar-
fraudulent—conduct
ment).
consider, mitigation,
[lawyer’s
And when we
and,
by the
any prior disciplinary
lack of
action
as stated
misunderstanding
the relevant case
judge, “his
law[,]”
in this case is
statutory
appropriate
sanction
sixty day suspension.
(last
Tanko,
425-26,
at
175 In Attorney McGlade, Grievance Comm’n v. 425 Md.
546, 550, 543, 534, 547, 549, (2012), 42 A.3d though even disbarment, the Commission recommended this Court indefi- nitely suspended from the practice law a lawyer who 1.1, 1.2, 1.4, 8.4(d). 1.3, 3.3, 8.4(a), 8.4(c), violated MLRPC McGlade, 549-50, id. at at explained A.3d we why an suspension indefinite appropriate sanction: appropriate
The
sanction in this
must
greater
case
be
than the
imposed
sanctions
other cases—a sixty-day
[two
suspension and a forty-five-day suspension],
[the
because
*39
lawyer]’s
a
conduct—negotiating
settlement without his
client’s knowledge while suggesting to opposing counsel that
and, worse,
the client was being consulted
suggesting there-
after to the court that the negotiated consent order had his
approval—was
client’s
more severe than that in
of
either
sanction,
those cases. The
though, ought not be as severe
as the
case],
disbarment
ordered
[another
as
[the
judge] did not find that
lawyer]
[the
committed a crime or
perpetrated an actual fraud upon
Moreover,
the court.
we
do not overlook
lawyer’s
reputation
[the
fine
lawyer,
as a
his otherwise
record,
unblemished disciplinary
and the “mo-
dicum” of
remorse found
hearing judge].
[the
And, in Attorney
Keiner,
Grievance
492,
Comm’n v.
421 Md.
22, 527,
521-
27
(2011),
A.3d
174
we disbarred a
lawyer who
1.4(a),
violated
1.4(b), 8.4(a), 8.4(b),
MLRPC
8.4(c),
8.4(d).
and
lawyer
The
clients;
failed to communicate with
“misappropriated
resources,
the law firm’s
by using the firm’s
postage, paper, various office supplies, and Accurint subscrip
tion to
potential clients”;
locate
and “altered and deleted
documents within the firm’s electronic client files.” Id. at
522-
Here, niece, Wife, her in an annul- Zhang represented despite matter conflict of interest ment/divorce of in an matter immigration her Husband representation with law being practice Virginia. not to despite licensed Wife, of made mis- representation furtherance of her issues, concerning key including representations to co-counsel agreements, steps communication and settlement and took conceal role in Wife’s misconduct representation. Such and false statements dishonesty, misrepresentations, involved of material fact. and in agreement
Under this
jurisprudence,
Court’s
Commission,
appropri
we
that disbarment is the
conclude
1.1, 1.2(a),
of
Zhang’s
ate
for
violations MLRPC
sanction
8.4(c),
1.4(a),
1.16(a), 3.1, 3.7(a), 4.1(a), 5.5(a), 7.4(a),
1.7(a),
8.4(a).14
8.4(d),
conduct involved a series
Zhang’s
period
acts
over a
intentional dishonest
committed
sustained
ranged
misleading
time.
conduct
from
dishonest
ability
speak English
deceiving
Metcalf about Wife’s
Keiner,
at
421 Md.
27 A.3d at
Virginia Court. Cf.
(Where
misconduct,
lawyer engages
in “intentional dishonest
exclusively by
personal
gain,”
motivated
his desire
“does
totality
mitigation”
lawyer proves
where “the
nec
extenuating
circumstances’
‘compelling
constitute
*40
disbarment[,]” then
essary
a sanction less than
permit
to
(Citations omitted)); Attorney
appropriate.
disbarment
is
Vanderlinde,
v.
364 Md.
773 A.2d
Grievance Comm’n
(2001) (“[Ijntentional
closely
dishonest conduct is
488
most
matters of
character
important
entwined with the
basic
aby
to
intentional
conduct
degree
to such a
as make
dishonest
ordinarily
beyond excuse.... Disbarment
almost
conduct.”).
for intentional
should be the sanction
dishonest
Zhang’s
Repri-
a
disagree
reprimand.
14. We
of
recommendation
practice
may
periods
suspension
law
be
mands or short
of
from
of
appropriate
in cases in which there are few violations of the MLRPC
See,
fairly
e.g., Elmendorf, 404 Md. at
where the conduct is
innocuous.
contrast,
Here,
multiple
A.2d at 548.
violated
946
exact—during
representation,
be
Wife’s
and her
MLRPC—thirteen to
dishonesty, misrepresentations, and the unauthorized
conduct involved
law, among
practice
things.
other
of
factor,
only
There is
one
lack
mitigating
prior
attorney
discipline, and no compelling extenuating circumstances.
Moreover, two aggravating factors accompany Zhang’s mis
in
conduct—Zhang engaged
pattern
of misconduct and vio
lated numerous
carefully
MLRPC. We have
examined
Dore,
mental state. See
memorializing Husband. regarding false information ing a time, helping from changed mental state Zhang’s Over from the to concealment of her misconduct family member acts committed intentional dishonest Virginia through Court to conceal steps of time. took period over a sustained Court, by drop- Virginia from the representation of Wife to the Bar of to seek hac vice admission plan pro ping a conflict of interest existed. because she realized Virginia the facts and Later, misrepresent Metcalf to Zhang asked February Agree- to the signing circumstances that led 2011, Zhang’s to conceal role ment at the March representation. Wife’s similar, more Zhang’s misconduct is
Although ostensibly McGlade, 549-50, lawyer in 425 Md. at serious than that of the disbarring this refrained from 42 A.3d at which Court (1) an lawyer “perpetrate[ did not ] where: (2) court”; lawyer’s misconduct was upon actual fraud (3) incident; mitigated an isolated remorse comprised of (1) contrast, Zhang’s false By misconduct. here: lawyer’s Virginia Lu eventually to Metcalf and led statements at- stating order and that an vacating the consent Court’s Court; on the tempted perpetrated fraud had been (2) over a multiple misrepresentations prolonged made timé; the record does not demonstrate period of misconduct. mitigates Zhang’s remorse satisfied that disbarment is the sanction Simply put, we are Dore, at public[.]” 433 Md. “protect that will best omitted). (citation quotation at and internal marks A.3d initial a Zhang’s help into account mental state taking Even relative, and even if that mental state were be deemed factor, impo- would not prevent such circumstances mitigating conduct involved intention- Zhang’s sition of disbarment where that are ally conduct—pervasive misrepresentations dishonest Thus, extenuating circumstances. by compelling not excused initial motivation despite recognition our member, inten- help family have may mental state been
179
type
pervasiveness
conduct of
tional dishonest
extenuating cir-
compelling
lack of
and the
Zhang displayed,
that disbar-
cumstances,
inescapable conclusion
leads to the
otherwise
sanction. To conclude
appropriate
ment
is
worth of
years’
out of
exception
to carve a one-case
would be
Vanderlinde,
418,
See,
Zhang engaged member, Attorney help family a desire to a by motivated cf. 254, Sheinbein, 224, 261, 244, Md. v. 372 Grievance Comm’n (This 992, a 998 Court disbarred A.2d 812 son, country; flee the suspect, his a murder lawyer helped who duty is the attorney’s “Inherent in an this Court stated: law, family’s his or his of the even above own upholding interests.”), a to conceal her and later was motivated desire initially motivation had Although Zhang’s own misconduct. relative, clearly changed motivation help Zhang’s been to misconduct. concealing interest of her own purely selfish 305, Blum, 275, v. 373 Md. Attorney Grievance Comm’n Cf. (2003) (This Court disbarred a 818 A.2d misrepresentations blatant “multiple, who had made ... in an to obfuscate the truth and save his own attempt skin.”).16 Zhang’s obligation abandonment of her ethical be significant period occasions such a multiple honest over time, sponsoring combined with her involvement false Court, February Agreement and her efforts to misconduct, conceal her own us that disbarment is persuades sanction. appropriate reasons, For Zhang. the above we disbar ORDERED; PAY IT SHALL IS SO RESPONDENT BY THE ALL AS TAXED CLERK OF THIS COSTS factually from that 16. Wc arc aware that misconduct is distinct lawyers rely only in Sheinbein and Blum. We on Sheinbein for the premise lawyer’s help family that a motive to member does not Similarly, rely only militate favor of we on Blum a lesser sanction. lawyer's premise for the that a motive to conceal his or her own greater misconduct militates in favor of a sanction. COURT, TRANSCRIPTS, INCLUDING COSTS OF ALL 16-76KB), MARYLAND PURSUANT TO RULE FOR SUM ENTERED IN WHICH JUDGMENT IS FAVOR OF THE ATTORNEY GRIEVANCE COMMISSION AGAINST RUNAN ZHANG. McDONALD, JJ.,
ADKINS and concur and dissent. McDONALD, J., concurring dissenting, which ADKINS, J., joins. *43 Majority Opinion thoroughly
The
and accurately reviews the
proceeding.
record of this
I
with
agree
Majority’s disposi-
My
tion of the exceptions.
only disagreement
is with the
I
impose
sanction. would
an indefinite suspension.
question
There is no
that Ms. Zhang
provi
violated several
MLRPC1;
sions of the
the more
question
difficult
is the
suggests
ripe
1. One of the violations in this case
that a rule
is
7.4(a)
particular,
we
revision.
find that Ms.
violated MLRPC
"specialized”
because she stated on her website that she
in certain
166-68,
practice. Majority op.
areas of
at
In my “absence a selfish motive” does not mean words, “selfless.” In other attorney an errant need not be a candidate for canonization to be of a worthy sanction short of Rather, disbarment. this mitigating helps distinguish factor situations in which an attorney purposes acts for of self- advancement, greed, or some purpose, dishonest from those which attorney an goes astray a misguided effort to help another. Although many of her actions were wrong, mislead *44 court, ing a and self-defeating, Ms. Zhang’s underlying motivation and, was to help her niece unlike the situation in Sheinbein,2 goal obtaining divorce for her niece was perfectly legal. I would reserve disbarment for serious mis conduct with a less benevolent motive.
Judge
joins
ADKINS
this opinion.
(2013),
7.4,
[1],
Perhaps
Rule
Comment
at 561.
it would be worth
considering conforming
revision to our rule.
Sheinbein,
Attorney
Grievance Comm’n v.
372 Md.