In a novel case applying the Fifth Amendment's right against self-incrimination to attorney discipline, Goodell DeVries lawyers Craig Brodsky and George Mahaffey convinced the Maryland Court of Appeals that their client, Ed Malone, should have been able to testify in his own defense despite asserting the Fifth Amendment during discovery.
Mr. Malone had previously asserted his Fifth Amendment privilege, refusing to testify because he feared prosecution in Texas for participating in a lawyers' reading of the Declaration of Independence while not a lawyer. Bar Counsel never moved to compel the testimony, instead moving in limine to preclude Mr. Malone from testifying at trial. The Circuit Court granted the motion and precluded Mr. Malone from testifying on the 14 mitigation factors identified by the Court of Appeals. After the Circuit Court issued its Findings of Fact and Conclusions of Law, Mr. Malone filed exceptions to ruling with the Maryland Court of Appeals. On February 1, 2022, the Court of Appeals unanimously reversed, affirming that the Fifth Amendment applies to attorney discipline and faulting Bar Counsel for not moving to compel the testimony that the circuit court later precluded. It held that Mr. Malone should have been permitted to testify on mitigation. The case has now been remanded to the Circuit Court for Montgomery County to hear that evidence.
This case is significant because it affirms lawyers' right to assert the Fifth Amendment in disciplinary cases and underscores the importance of mitigation evidence in attorney disciplinary proceedings.