Maryland high court dismisses ethics charges against immigration lawyer

Maryland’s high court Thursday dismissed disciplinary charges against an Upper Marlboro immigration lawyer, ruling the state’s Attorney’s Rules of Professional Conduct did not apply to his alleged unethical conduct because it occurred in a federal immigration court in another state.

In its 6-1 decision, the Court of Appeals cited the “choice of law” provision of the Maryland rules – Rule 8.5(b)(1) – which states that charges of ethical misconduct must be brought under the rules of the jurisdiction where the court sits.

As a result, the Maryland Attorney Grievance Commission was foreclosed from bringing charges against Celestine Tatung under the state’s rules because the alleged misconduct occurred in his representation of two Cameroon nationals seeking asylum in Executive Office of Immigration Review courts in Texas, where they lived, the Court of Appeals ruled.

The commission could have brought charges under EOIR’s conduct rules, the high court stated in dismissing the charges leveled under the Maryland Attorneys’ Rules of Professional Conduct because the MARPC is inapplicable.

The high court noted that it could have allowed the commission to amend its complaint to bring EOIR charges but said Tatung’s alleged misconduct amounted to a “handful of careless mistakes” that would have resulted in a sanction of no more than a public reprimand.

Judge Brynja M. Booth, in writing for the court, said the case “marked the first instance in which an attorney squarely challenged charges filed under the MARPC” based on Rule 8.5(b)(1), which has been in effect since 2005.

Tatung’s attorney on Friday hailed the Court of Appeals’ decision.

“It was an argument that I was not aware of having been litigated earlier,” said David G. Mulquin, of Brault Graham LLC in Rockville. “The facts of this case seemed to fit. Fortunately, the court agreed.”

Bar Counsel Lydia E. Lawless, the commission’s chief administrative prosecutor, declined to comment on the decision.

The Court of Appeals said Maryland attorneys should not construe its ruling “as precedent for the notion that we will dismiss attorney misconduct charges in any instance where the commission files charges under one set of professional conduct rules” but another set applies.

“A competence violation under our MARPC will be, in almost every instance, a competence violation of the rules of another jurisdiction,” Booth wrote. “Given that these professional rules have been enacted for the protection of the public, we do not and will not dismiss charges lightly. As part of our original jurisdiction over these matters, we have the authority to remand a case to the hearing judge for further proceedings where we deem it appropriate.”

The high court said it has sanctioned immigration lawyers who might have been able to raise the choice of law defense successfully. However, the court added it will not revisit those cases because the attorneys waived the defense by failing to raise it during their disciplinary proceedings, the court added.

Tatung, who is licensed in the District of Columbia but not Maryland, falls under Attorney Grievance Commission jurisdiction because he maintains a law office in the state, the high court said.

In Tatung’s case, the grievance commission alleged violations of MAPRPC rules pertaining to competence, diligence, communication, fees, candor toward the court and misconduct in his representation of two Texas clients in federal immigration court in El Paso.

These alleged ethical transgressions involved Tatung’s failure to keep abreast of the immigration judge’s standing order that attorneys appear in person, rather than by telephone, for calendar hearings; mistakenly filing an affidavit for one client in the other client’s case; and charging each client $5,000 for the entire case but then charging another $2,500 each to cover his expenses for having to take additional trips to Texas that he did not anticipate but should have.

Both clients lost their asylum bids and were deported. They appealed, claiming they had received ineffective assistance of counsel.

The Board of Immigration Appeals disagreed, saying Tatung’s counsel was not ineffective. The now former clients submitted complaints to the grievance commission, which investigated.

The investigation resulted in the commission filing an additional charge alleging Tatung failed to be sufficiently forthcoming with investigators.

The Court of Appeals held that this charge of misconduct could be brought because it related to Tatung’s dealings with Maryland authorities and not the federal immigration court in Texas. However, the high court held that the commission had failed to prove this charge by “clear and convincing evidence.”

Booth was joined in the decision by Chief Judge Mary Ellen Barbera and Judges Robert N. McDonald, Joseph M. Getty, Jonathan Biran and Alan M. Wilner, a retired jurist sitting by special assignment.

Judge Glenn T. Harrell Jr., in dissent, said the high court should have publicly remanded Tatung for having violated the Maryland rules regarding fees and general misconduct because the rules are analogous to EOIR’s.

Harrell, a retired judge, was sitting by special assignment.

The Court of Appeals issued its decision in Attorney Grievance Commission of Maryland v. Celestine Tatung, Misc. Docket No.14, September Term 2020.