Argued: September 28, 2015
Circuit Court for Montgomery County Case No. 30451-M
Barbera, C.J. Battaglia Greene Adkins McDonald Watts Harrell, Jr., Glenn T. (Retired, Specially Assigned) JJ. Harrell, J., joins in judgment only.
This attorney discipline proceeding involves an immigration lawyer who failed to represent two clients competently, diligently, and with adequate communication, and who was alleged to have committed a crime by touching a female client's breast without her consent.
Alexander Manjanja Chanthunya ("Chanthunya"), Respondent, a member of the Bar of Maryland, represented Souadou Traore ("Traore") in her applications for a green card and a waiver of grounds of inadmissibility,  and represented Therese Vanguere ("Vanguere") in an application for asylum. Chanthunya failed to engage in sufficient preparation, and failed to adequately communicate, with both clients, who filed complaints against Chanthunya with the Attorney Grievance Commission ("the Commission"), Petitioner.
On October 24, 2014, on the Commission's behalf, Bar Counsel filed in this Court a "Petition for Disciplinary or Remedial Action" against Chanthunya, charging him with violating Maryland Lawyers' Rules of Professional Conduct ("MLRPC") 1.1 (Competence), 1.3 (Diligence), 1.4 (Communication), 3.3(a)(1) (Candor Toward the Tribunal), 8.4(b) (Criminal Act), 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 October 30, 2014, this Court designated the Honorable Terrence J. McGann ("the hearing judge") of the Circuit Court for Montgomery County to hear this attorney discipline proceeding. On March 25 and 26, 2015 and April 29, 2015, the hearing judge conducted a hearing, at which Chanthunya was present and self-represented. On June 18, 2015, the hearing judge filed in this Court an opinion including findings of fact and conclusions of law, concluding that Chanthunya had violated MLRPC 1.1, 1.3, 1.4, 8.4(b), and 8.4(d), but had not violated MLRPC 8.4(a). The hearing judge found that testimony by Traore that Chanthunya touched her breast was not credible. In our view, the hearing judge's explanation of his finding reveals that the hearing judge based his findings on what he believed a victim of sexual assault would or should do-namely, report the incident to law enforcement and/or the victim's spouse, and cease contact with the perpetrator.
On September 28, 2015, we heard oral argument. On October 1, 2015, we remanded this attorney discipline proceeding to the hearing judge to address important issues that arose out of the hearing judge's findings of fact and conclusions of law. Chief among other issues, we ordered the hearing judge to "[p]rovide a better explanation for why he found that  Traore's testimony [that Chanthunya touched her breast] was not credible . . ., if indeed [the hearing judge] continue[d] to maintain that[.]" On January 22, 2016, the hearing judge filed in this Court a supplemental opinion in which the hearing judge maintained that Traore's testimony that Chanthunya touched her breast was not credible, and concluded that Chanthunya had violated MLRPC 8.4(a), but had not violated MLRPC 8.4(b).
In his supplemental opinion, the hearing judge provided essentially the same basis for finding not credible Traore's testimony that Chanthunya touched her breast without her consent. Given that we have already remanded this attorney discipline proceeding to the hearing judge to address this matter, and that the hearing judge provided the same inappropriate basis for finding that Traore's testimony was not credible in his supplemental opinion, we conclude that it would be futile to remand yet again to the hearing judge to properly address the matter of Traore's credibility.
Nonetheless, for the below reasons, we indefinitely suspend Chanthunya from the practice of law in Maryland with the right to apply for reinstatement after sixty days.
In his original opinion, the hearing judge found the following facts, which we summarize.
In 1978, Chanthunya first became a lawyer. Over twenty years later, on June 24, 1999, this Court admitted Chanthunya to the Bar of Maryland.
Chanthunya's Representation of Traore
In 1998, Traore, a citizen of Guinea, entered the United States. In 2009, Traore retained Chanthunya to represent her in her application for a green card and her application for a waiver of grounds of inadmissibility. On November 23, 2009, on Traore's behalf, Chanthunya filed an application for a green card with the United States Citizenship and Immigration Service ("USCIS"). The application for a green card contained inaccurate statements and spaces that were not filled in that should have been, and Chanthunya failed to attach required or necessary documents, such as the identification page of Traore's passport. In December 2009, April 2010, and September 2010, USCIS requested additional documents from Chanthunya, who failed to inform Traore of USCIS's three requests.
USCIS scheduled an interview regarding Traore's application for a green card. Chanthunya failed to: prepare Traore for the interview; advise her of what to expect at the interview; appear at the interview himself; and ask USCIS to reschedule the interview.
USCIS denied Traore's application for a green card and a waiver of grounds of inadmissibility, and Chanthunya failed to inform Traore as much. After USCIS informed Traore about the applications' denial, Traore contacted Chanthunya, who promised to file an appeal. Traore, however, did not receive notice from USCIS that the appeal had been filed. Traore telephoned Chanthunya to ask about the status of the appeal, and Chanthunya promised to call her back. Chanthunya, however, failed to contact Traore, prompting her to visit USCIS herself. Upon visiting USCIS, Traore was unable to confirm that the appeal had been filed. Chanthunya's omissions cost Traore the opportunity to have USCIS consider the appeal.
Finally, on at least ten occasions during Chanthunya's representation of her, Traore visited Chanthunya's office because he was not answering her telephone calls.
Chanthunya's Representation of Vanguere
In 2007, Vanguere, a citizen of the Central African Republic, entered the United States. Vanguere applied for asylum and retained Chanthunya to represent her in her application for asylum. Chanthunya failed to: prepare Vanguere for the asylum hearing; advise her of the benefits and risks of postponing her case; advise her of the type of evidence that she needed; and submit on Vanguere's behalf corroborating evidence, such as evidence that Vanguere's family members had been persecuted in the Central African Republic. Chanthunya also failed to review the Baltimore Immigration Court's file to ensure its completeness. Although the Baltimore Immigration Court denied Vanguere's application for asylum, the hearing judge found that the denial was due to Vanguere's lack of credibility, not Chanthunya's lack of preparation.
Vanguere subsequently filed a motion to reopen her asylum application based on ineffective assistance of counsel by Chanthunya as well as changed country conditions in the Central African Republic. The Board of Immigration Appeals granted the motion, and remanded the case to the Baltimore Immigration Court for a de novo asylum hearing.
Aggravating Factors and Mitigating Factors
The hearing judge found that Chanthunya's misconduct is aggravated by a pattern of misconduct, multiple violations of the MLRPC, refusal to acknowledge the misconduct's wrongful nature, and substantial experience in the practice of law. The hearing judge found that Chanthunya's misconduct is mitigated by the absence of prior attorney discipline and the absence of a dishonest or selfish motive.
Remand and Supplemental Opinion
In his original opinion, the hearing judge found that Traore's testimony that Chanthunya touched her breast during a meeting in Chanthunya's office was not credible. The hearing judge explained the basis for his finding as follows:
[Traore] never called [law enforcement], never reported [the alleged assault] to any authorities[, ] and continued to be represented by [Chanthunya]. If [Traore] told her husband[, ] it would be odd that he never confronted [Chanthunya;] and[, ] if [Traore] didn't tell her husband[, ] that would be an abnormal reaction. I wasn't convinced by clear and convincing evidence that [Chanthunya] assaulted  Traore[.]
In his original opinion, the hearing judge concluded that Chanthunya had violated MLRPC 8.4(b) (Criminal Act) and 8.4(d) (Conduct That Is Prejudicial to the Administration of Justice), but the hearing judge did not explain the bases for those conclusions. The hearing judge also concluded that Chanthunya had not violated MLRPC 8.4(a) (Violating the MLRPC).
The Commission excepted to the hearing judge's finding that Traore's testimony concerning Chanthunya's touching of her breast was not credible. The Commission pointed out that Traore's testimony on this point was uncontested, that the hearing judge concluded that Chanthunya violated MLRPC 8.4(b) (Criminal Act), and that the only basis for such a conclusion was the Commission's allegation that Chanthunya sexually assaulted Traore. The Commission asserted that the hearing judge's finding was influenced by the hearing judge's "assumptions or beliefs about what the victim of a sexual assault would or should do[.]" (Emphasis omitted). The Commission also excepted to the hearing judge's conclusion that Chanthunya had not violated MLRPC 8.4(a).
We remanded to the hearing judge with instructions to address the following four issues:
1. Reconciliation of what appears to be a discrepancy between his determination that [Chanthunya] violated [MLRPC] 8.4(b) in  Traore's case and his finding that  Traore's testimony was not credible as to the facts underlying the alleged [MLRPC] 8.4(b) violation; 2. Provide a better explanation for why he found that  Traore's testimony was not credible on the issue of the unconsented sexual touching, if indeed he continues to maintain that; 3. Clarify the bases for the conclusion that "There is not clear and convincing evidence that [Chanthunya] violated [MLRPC] 8.4(a)", while also concluding ...