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Atty. Griev. Comm'n of Maryland v. Zhang

Court of Appeals of Maryland

July 21, 2014

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND
v.
RUNAN ZHANG

Argued May 6, 2014

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Circuit Court for Montgomery County. Case No. 28641M. Michael John Algeo JUDGE.

ARGUED BY Lydia E. Lawless, Assistant Bar Counsel (Glenn M. Grossman, Bar Counsel, Attorney Grievance Commission of Maryland) FOR PETITIONER

ARGUED BY Joseph A. Hennessey, Esq. (Beins, Goldberg & Hennessey, LLP of Chevy Chase, MD) FOR RESPONDENT

ARGUED BEFORE Barbera, C.J., Harrell, Battaglia, Greene, Adkins, McDonald, Watts, JJ.

OPINION

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[440 Md. 137] Watts, J.

This attorney discipline proceeding concerns a Maryland lawyer who, among other things: (1) represented her niece in an annulment/divorce matter in Virginia even though she was not licensed to practice law in Virginia and even though a conflict of interest existed due to the lawyer's representation of her niece's husband in an immigration matter; (2) provided incompetent representation and advanced a ground for annulment without conducting adequate research or speaking to her niece; (3) authorized co-counsel to sign settlement agreements on behalf of her niece despite failing to advise her niece of the agreements and to obtain her consent; (4) misrepresented her [440 Md. 138] niece's ability to communicate in English and her consent to the terms of the settlement agreements; (5) held herself out as specializing in immigration and corporate law; and (6) concealed her role in her niece's representation from the trial court.

Runan Zhang (" Zhang" ), Respondent, a member of the Bar of Maryland, represented her niece, Yuxuan Zhang (" Wife" ), in Wife's annulment and subsequent divorce case, in the Prince William County Circuit Court in Virginia (" the Virginia Court" ), against Daji Song (" Husband" ), whom Zhang represented in an immigration matter. Husband filed a complaint against Zhang with the Attorney Grievance Commission of Maryland (" the Commission" ), Petitioner.

On April 15, 2013, on the Commission's behalf, Bar Counsel filed in this Court a " Petition for Disciplinary or Remedial Action" against Zhang, charging her with violating Maryland Lawyers' Rules of Professional Conduct (" MLRPC" ) 1.1 (Competence), 1.2 (Scope of Representation), 1.4 (Communication), 1.7 (Conflict of Interest: General Rule), 3.7 (Lawyer as Witness), 4.1 (Truthfulness in Statements to Others), 8.4(c) (Dishonesty, Fraud, Deceit, or Misrepresentation), 8.4(d) (Conduct That Is Prejudicial to the Administration of Justice), and 8.4(a) (Violating the MLRPC). On May 28, 2013, Bar Counsel filed in this Court an " Amended Petition for Disciplinary or Remedial Action" to add charges

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that Zhang violated MLRPC 1.16 (Declining or Terminating Representation), 3.1 (Meritorious Claims and Contentions), 5.5 (Unauthorized Practice of Law), and 7.4 (Communication of Fields of Practice), as well as the corresponding Virginia Rules of Professional Conduct (" VRPC" ) and District of Columbia Rules of Professional Conduct (" DCRPC" ).[1]

[440 Md. 139] On April 17, 2013, this Court designated the Honorable Michael John Algeo (" the hearing judge" ) of the Circuit Court for Montgomery County to hear this attorney discipline proceeding. On August 29, 2013, the hearing judge conducted a hearing. On October 24, 2013, the hearing judge filed in this Court findings of fact and conclusions of law, concluding that Zhang violated MLRPC 1.1, 1.2(a), 1.4(a), 1.7(a), 1.16(a), 3.1, 3.7(a), 4.1(a), 5.5(a), 7.4(a), 8.4(c), 8.4(d), and 8.4(a).[2]

On May 6, 2014, we heard oral argument. For the below reasons, we disbar Zhang.

BACKGROUND

In his opinion, the hearing judge found the following facts, which we summarize.

On June 21, 2000, this Court admitted Zhang to the Bar of Maryland. Zhang maintains a solo practice, The Law Offices of Runan Zhang, with offices in Rockville, Maryland and the District of Columbia. Zhang's website states that she specializes in immigration and corporate practice, and that she practices family law in Maryland, the District of Columbia, and Virginia.

On April 10, 2010, Wife, Zhang's niece, a non-United States citizen, married Husband, a United States citizen, in Fairfax, Virginia. On April 21, 2010, Zhang filed a Form I-130 (Petition for Alien Relative), with the United States Citizenship and Immigration Services (" USCIS" ) on Husband's behalf for Wife's benefit. From April 2010 until she withdrew her appearance on November 26, 2010, Zhang represented Husband in the immigration matter.

[440 Md. 140] By November 2010, Husband and Wife had separated, and Wife wished to pursue an annulment of the marriage. In November 2010, Zhang assisted Wife in drafting a complaint for annulment that Wife could file pro se in the Virginia Court. Zhang was not a member of the Bar of Virginia and, accordingly, asked her colleague, Diana Metcalf (" Metcalf" ), " to serve as co-counsel." Metcalf is a member of both the Bar of Maryland and the Bar of Virginia, and had shared office space with Zhang in Rockville, Maryland since approximately 2003.

On November 11, 2010, Zhang and Metcalf agreed: (1) that they would represent Wife as co-counsel; and (2) that Metcalf would move for Zhang's admission to the Virginia Court pro hac vice. An agreement memorializing those two points was drafted but not executed. At the beginning

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of the representation, Zhang provided Wife's e-mail address to Metcalf, but advised that Wife did not fluently speak English, and that Metcalf would thus be unable to directly communicate with Wife. Zhang assumed the responsibility of directly communicating with Wife. In reliance on Zhang's advisement concerning Wife's inability to fluently speak English, Metcalf had no direct contact with Wife from November 2010, when she was first retained, until March 1, 2011.

On November 15, 2010, Zhang recognized that she had a conflict of interest due to her representation of Husband in the immigration matter, so she did not enter her appearance in the annulment matter. Instead of resolving the conflict, Zhang deliberately and consciously chose to continue to act as counsel in all matters except for entering her appearance in the annulment matter and disclosing the representation to the Virginia Court. On November 18, 2010, Wife, pro se, filed in the Virginia Court a Complaint for Annulment, which had been prepared by Zhang on Wife's behalf. Although Zhang had prepared the complaint for annulment, Wife filed the complaint for annulment pro se in an attempt to conceal from the Virginia Court Zhang's conflict of interest and role as Wife's counsel. The complaint for annulment contained allegations of immigration fraud as to the marriage and the [440 Md. 141] Petition for Alien Relative that Zhang had filed on Husband's behalf.

On December 10, 2010, Husband, through his attorney Leon S. Demsky (" Demsky" ), filed a demurrer to the complaint for annulment. On January 7, 2011, Zhang, Metcalf, and Demsky appeared in the Virginia Court for a hearing, and Metcalf entered her appearance as Wife's counsel. At some point before the hearing, Zhang and Metcalf had negotiated an agreement (" the January Agreement" ) with Husband and Demsky. The January Agreement provided that Husband would withdraw the demurrer, Wife would amend the complaint for annulment, and the parties would seek only an annulment, not monetary or other equitable relief. Based on Zhang's assurances that Wife had consented to the January Agreement's terms, Metcalf signed the January Agreement on Wife's behalf. Although Zhang assured Metcalf that Wife had consented to the terms of the January Agreement, in actuality, Zhang had not discussed the terms of the January Agreement with Wife before its execution.

After execution of the January Agreement, the parties could not agree on the ground for the annulment. As a result, Husband, through Demsky, filed a second demurrer. Meanwhile, Zhang, who was acting as Wife's immigration attorney, arranged for Wife to obtain a visa to travel from China to the United States to participate at trial.

On February 9, 2011, Zhang conducted legal research and prepared an amended complaint for annulment and an opposition to the second demurrer, and offered to Metcalf to file the pleadings under Metcalf's name or Wife's name. On February 10, 2011, with Metcalf's permission, Zhang signed Metcalf's name to the opposition, which she filed in the Virginia Court. On February 16, 2011, Metcalf filed in the Virginia Court the amended complaint for annulment.

On February 17, 2011, Michael W. Lu (" Lu" ), Demsky's co-counsel, e-mailed Zhang to explore potential settlement of the annulment matter. Lu suggested that an annulment be pursued on the grounds of misunderstanding and mutual mistake [440 Md. 142] based on the circumstance: " that Wife, due to immigration issues, had been unable to return to the United States following the marriage to complete the marriage

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ceremonies, and that while the parties had registered for marriage, the marriage was never consummated." As Wife's " legal counsel," Zhang e-mailed Lu that mutual misunderstanding and mutual mistake were not acceptable grounds for the annulment; Zhang instead suggested that the parties pursue an annulment based on an alleged medical condition of Husband, namely, impotency. As of February 17, 2011, when the e-mail exchange between Zhang and Lu occurred, Zhang had never discussed with Wife whether the couple had engaged in marital relations, and had no basis to pursue an annulment based on impotency.[3] Zhang and Lu eventually agreed that Husband would pay $1,500 for a " global settlement" and " admit he has an impotency problem." On February 17, 2011, at 6:25 p.m., Zhang forwarded to Metcalf a copy of her e-mail correspondence with Lu with the message: " We may need to sign an agreement in court tomorrow."

On the morning of February 18, 2011, Metcalf appeared in the Virginia Court to argue in opposition to the second demurrer. Metcalf had not read the e-mail that Zhang had sent the previous evening, and thus was not aware that any settlement discussions had occurred between Zhang and Lu. Approximately fifteen minutes before the hearing, Zhang advised Metcalf that Husband was " impotent" and that, the previous night, Zhang and Lu had reached an agreement under which Wife would pursue an annulment based on Husband's medical condition. Metcalf questioned Zhang about how Husband's medical condition was discovered at such a late date, and inquired about the details of the negotiations. Zhang assured Metcalf that Wife had participated in the negotiations and that [440 Md. 143] she had communicated with Wife and Lu late into the evening until the agreement was reached. Wife had not, however, participated in the settlement discussions that occurred on February 17, 2011. In actuality, it was not until February 19, 2011, that Zhang, for the first time, discussed the terms of the agreement with Wife.

On February 18, 2011, before the hearing began, Demsky, Metcalf, and Zhang negotiated the final terms of the settlement agreement (" the February Agreement" ), which, in pertinent part, provided that Husband would pay Wife $2,000 as full and complete settlement of all claims, and that Husband " agrees that the annulment is uncontested, he will not object, defend, or contest any Complaint for Annulment based upon [his] being impotent [.]"

Prior to execution of the February Agreement, Zhang told Metcalf that: (1) she (Zhang) had discussed the terms of the February Agreement with Wife; (2) Wife understood and agreed to the terms; and (3) Wife authorized Metcalf to sign the February Agreement on her behalf. Metcalf was concerned about the implications of signing the February Agreement without speaking with Wife, and repeatedly asked Zhang whether Wife had agreed to the February Agreement's terms. Zhang repeatedly responded that Wife had agreed to the terms and authorized Metcalf to sign the February Agreement. In reliance on Zhang's representations, Metcalf signed the February Agreement on Wife's behalf.

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On February 18, 2011, Demsky and Metcalf submitted to the Virginia Court a proposed consent order reflecting the February Agreement's terms. The Honorable Lon E. Ferris signed the proposed consent order.

On February 19, 2011, for the first time, Zhang spoke with Wife about the February Agreement. Wife immediately advised Zhang that Husband was not, in fact, " impotent." Instead of informing Metcalf at that time that the February Agreement had been signed without Wife's authorization, Zhang attempted to negotiate additional terms binding Husband to the February Agreement. On February 25, 2011, for [440 Md. 144] the first time, Zhang admitted to Metcalf that she had not discussed the terms of the February Agreement with Wife prior to its execution and that Wife had advised her that Husband did not have the alleged medical condition.

On March 1, 2011, Wife directly contacted Metcalf for the first time, sending an e-mail in which she wrote, in fluent English, that: (1) she had not been advised of the terms of the February Agreement before its execution; (2) Husband was not " impotent" ; and (3) she did not consent to or authorize the execution of the February Agreement. Between March 1 and March 3, 2011, Zhang and Metcalf researched Virginia law and drafted a motion to set aside the February Agreement.

On March 3, 2011, Zhang filed in the Virginia Court a motion to set aside the February Agreement and consent order. The Virginia Court scheduled a hearing on the motion for March 18, 2011. Between March 3 and March 18, 2011, Zhang worked with Metcalf, as co-counsel, to prepare for the hearing. As part of that preparation, Zhang drafted notes and an argument for Metcalf. The notes that Zhang prepared contained multiple misrepresentations, including that: (1) Wife had given Metcalf " general authorization" to settle the case; (2) Husband had " demanded to get the settlement done in court on February 18, 2011" ; and (3) there had been a " miscommunication" between Metcalf and Wife " due to language difficulties." As a means of shielding herself from her misconduct ( i.e., her misrepresentation to Metcalf that Wife authorized her to sign the February Agreement), Zhang attempted to persuade Metcalf to make these misrepresentations to the Virginia Court in support of the motion to set aside the February Agreement.

On March 18, 2011, Zhang, Metcalf, and Demsky appeared in the Virginia Court for the hearing on the motion to set aside. Metcalf advised the Virginia Court that Zhang had assured her that Wife knew of and agreed to the February Agreement's terms. The Virginia Court vacated the February 18, 2011 consent order, and stated that an attempted fraud [440 Md. 145] had been perpetrated on the Virginia Court and that there was no good faith basis for the " impotency" claim.

On April 7, 2011, Husband filed in the Virginia Court a counter-complaint for divorce. In response to interrogatories that Husband propounded, Wife identified Zhang as a potential witness related to the immigration representation and allegations of events that occurred before and during the marriage.

On August 18, 2011, the Virginia Court denied Wife's complaint for annulment. At some point afterward, Husband and Wife were granted a divorce based on mutual separation.

In short, the hearing judge found as follows concerning Zhang's role in the representation of Wife:

Beginning in November 2010 and continuing at all relevant times thereto, [Zhang] represented Wife in her pursuit

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of an annulment and divorce in Prince William County, Virginia. Although [Zhang] did not enter her appearance in the [Virginia Court], there is no question that she was acting as an attorney as she provided legal counsel, advice, and representation to Wife as co-counsel to [] Metcalf []. [Zhang] provided legal advice, drafted pleadings and motions, assisted in preparation for hearings, conducted legal research, and participated in settlement negotiations on behalf of Wife. [Zhang] also stated to [Lu] that she represented Wife. The Court finds [Zhang]'s argument that she was not acting as an attorney and only as a " concerned family member" to be without merit.

STANDARD OF REVIEW

In an attorney discipline proceeding, this Court reviews for clear error a hearing judge's findings of fact, and reviews without deference the hearing judge's conclusions of law. See Md. R. 16-759(b)(1) (" The Court of Appeals shall review de novo the [hearing] judge's conclusions of law." ); Md. R. 16-759(b)(2)(B) (" The Court shall give due regard to the opportunity of the hearing judge to assess the credibility of witnesses." ); [440 Md. 146] see also Attorney Grievance Comm'n v. Fader, 431 Md. 395, 426, 66 A.3d 18, 36 (2013).

">As to exceptions, in Attorney Grievance Comm'n v. Bocchino, 435 Md. 505, 529, 80 A.3d 222, 235 (2013), we recently reiterated:

When a party files exceptions to the hearing judge's findings of fact, those exceptions will be overruled so long as the findings are not clearly erroneous. When a party takes exception to the hearing judge's conclusions of law, those exceptions will be overruled so long as the conclusions are supported by the facts found.

(Citations omitted).

DISCUSSION

A. Motion to Dismiss

Zhang moves to dismiss this attorney discipline proceeding on the grounds that the MLRPC do not apply to her conduct and that the Amended Petition for Disciplinary or Remedial Action was not sufficiently clear and specific to inform her of which rules of professional conduct applied.[4]

We conclude that the MLRPC apply to Zhang's conduct. Zhang had a law office in Maryland, and shared with Metcalf a conference room in a building in which Metcalf rented law office space in Maryland. As did the hearing judge implicitly, we reasonably infer that a substantial part of Zhang's conduct (including her representation that Wife had difficulty communicating in English, her soliciting Metcalf to serve as co-counsel, her authoring notes for Metcalf, and her discussions and preparation with Metcalf about the case) occurred in Maryland. Generally, " the rule[s] of professional conduct to [440 Md. 147] be applied shall be . . . the rules of the jurisdiction in which the lawyer's conduct occurred[.]" MLRPC 8.5(b)(2).[5]

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We conclude that the Amended Petition for Disciplinary or Remedial Action was " sufficiently clear and specific to inform [Zhang] of any professional misconduct charged[.]" Md. R. 16-751(c). In the Amended Petition for Disciplinary or Remedial Action, Bar Counsel charged Zhang with violating rules of professional conduct that have substantively identical counterparts in the MLRPC, VRPC, and DCRPC.[6] Indeed, Zhang fails to identify any material conflict among the MLRPC, VRPC, and DCRPC in question.

For the above reasons, we deny the motion to dismiss.

B. Contentions Other Than Exceptions

We address (and reject) Zhang's five contentions that do not constitute exceptions to the hearing judge's findings of fact and conclusions of law.

[440 Md. 148] First, we reject Zhang's contention that Bar Counsel inhibited her ability to contact Husband before the hearing. Bar Counsel offered to attempt to facilitate a telephonic or electronic deposition of Husband. Additionally, Bar Counsel provided Zhang's counsel with Husband's address. Thus, Bar Counsel actually facilitated Zhang's ability to contact Husband before the hearing.

Second, we reject Zhang's contention that her rights were violated because she could not confront the complainant ( i.e., Husband), who did not testify at the hearing. The right of confrontation under the Sixth Amendment to the United States Constitution and Article 21 of Maryland Declaration of Rights applies to a criminal case, not an attorney discipline proceeding. Cf. Attorney Grievance Comm'n v. Marcalus, 414 Md. 501, 521, 996 A.2d 350, 362 (2010) (" An attorney disciplinary proceeding . . . is not governed by the same standard of proof as a criminal trial, and it does not demand the same evidentiary burdens as does a criminal prosecution." (Citation omitted)).[7]

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Third, we reject Zhang's contention that the hearing judge erred in sustaining Bar Counsel's objections after Zhang's counsel asked Metcalf: " What provision of the Maryland or Virginia or the District of Columbia rules excuses you from having to communicate directly with your client?" ; " [440 Md. 149] [A]re you aware of any exception to Rule 1.4 in Maryland or Virginia that creates an exception excusing you in communicating directly with your client?" ; and " Isn't the critical inquiry whether or not there is confidential information that is being used in one representation to the next?" Zhang's counsel asked for Metcalf's opinion about the MLRPC, VRPC, DCRPC, and conflicts of interest. The hearing judge had not admitted Metcalf as an expert in the fields of the MLRPC, VRPC, DCRPC, or conflicts of interest.

Fourth, we reject Zhang's contention that the hearing judge erred in sustaining Bar Counsel's objections after Zhang's counsel asked Zhang: " Going back to your representation in the immigration matter, did you obtain from [Husband] any confidential information during the course of that representation?" ; and " In the course of your immigration representation, did you obtain any information from [Husband] aside from his name, address, and that he would be the sponsor for [Wife]'s immigration application?" Zhang's counsel asked for confidential information. Generally, " [a] lawyer shall not reveal information relating to representation of a client[.]" MLRPC 1.6(a) .

Fifth, we reject Zhang's contention that the hearing judge erred in declining to admit into evidence the Commission's investigator's report. In so contending, Zhang cites multiple exceptions to the rule against hearsay, but fails to explain why any ...


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