A Maryland lawyer who invoked the Fifth Amendment during a bar counsel investigation into ethical violations will get the chance to present mitigating factors to a judge following a new ruling from Maryland’s highest court.
The lawyer, Edward A. Malone, will still face disciplinary action for violations of the Maryland Lawyers’ Rules of Professional Conduct under the decision, issued Monday.
But Malone will first be allowed to address a hearing judge and present mitigating factors to be weighed before he is sanctioned.
The question of Malone’s testimony arose because he refused to answer questions from bar counsel during a deposition in March 2021.
Malone first tried to block the deposition and objected “on the grounds that it serves no other purpose than to annoy, embarrass and oppress me,” according to an email quoted in the Court of Appeals opinion. “Put simply. I am not sitting for a deposition. And if that means the Maryland Court of Appeals will revoke my law license, then so be it.”
When he sat for the remote deposition, Malone invoked his Fifth Amendment right against self-incrimination and refused to answer any questions, including stating his name.
A hearing judge later ruled that Malone could not testify at an evidentiary hearing over his conduct and that he had invoked the Fifth Amendment in bad faith at his deposition.
The case against Malone stems from allegations that he intentionally failed to disclose his disciplinary history in Maryland and in Virginia when he applied to join the Texas bar.
In 2012, Malone received a private reprimand from then-Chief Judge Deborah K. Chasanow in U.S. District Court in Maryland. Chasanow issued the private reprimand because Malone had been held in contempt for missing a hearing in bankruptcy court without proper justification.
In 2011, the Virginia State Bar issued a public reprimand against Malone for failing to represent clients and for failing to respond to a bar counsel investigation. Malone’s Virginia law license was then suspended because he did not pay disciplinary costs associated with his sanction. His law license was forfeited in 2013 after he failed to pay dues for two years, according to the Court of Appeals opinion.
Malone failed to disclose any of that disciplinary history, or the fact that he was admitted to practice law in Virginia, when he applied to join the Texas bar, a hearing judge found, in violation of Maryland’s rules of professional conduct for lawyers.
Malone claimed at his evidentiary hearing that he did intentionally leave Virginia off his application to the Texas bar in order to hide his past discipline there, but that he did not intentionally fail to disclose the private reprimand in Maryland. He said he had forgotten about the private reprimand, according to the decision.
The Court of Appeals agreed with the hearing judge’s finding that Malone committed the violations, but found that Malone should have been allowed to testify about mitigating factors as the judge weighed what sanction to recommend.
“Because Mr. Malone should have been permitted to testify fully at the evidentiary hearing concerning mitigation — notwithstanding his earlier invocation of the Fifth Amendment in response to bar counsel’s deposition question about mitigation — we order a limited remand to the circuit court to allow Mr. Malone to provide such testimony,” Judge Jonathan Biran wrote for the Court of Appeals.
The court also found that bar counsel should have filed a motion to compel Malone’s testimony after he invoked the Fifth Amendment at his deposition. Instead, bar counsel filed a motion in limine to block Malone from testifying at his evidentiary hearing.
Bar Counsel Lydia E. Lawless declined to comment for this story.
Malone provided a comment through his lawyer, Craig Brodsky.
“Mr. Malone is pleased that the Court of Appeals recognizes the importance of the Fifth Amendment and determined that he should have been permitted to put on mitigation evidence at trial. We cannot say much more until the case has concluded,” Brodsky said in an email.
Malone’s Texas law license was withdrawn and canceled in 2016, after the Texas Board of Law Examiners learned of the discipline he had left off his application. The following year, after Malone reapplied to the Texas bar, the board found that Malone did not have the good moral character required to be a lawyer in Texas.
Malone was also indicted in 2016, after his Texas law license had been canceled, for “holding himself out as a lawyer” at an event where lawyers typically read the Declaration of Independence. The indictment was later quashed.