Attorney Grievance v. Velasquez

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IN THE COURT OF APPEALS OF MARYLAND Misc. Docket AG No. 14 September Term, 2003 ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. RAY I. VELASQUEZ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Opinion by Bell, C.J. Filed: April 9, 2004 The Attorney Grievance Commission of Maryland, the petitioner, acting pursuant to Maryland Rule 16-751,1 approved the filing by Bar Counsel of a Petition For Disciplinary or Remedial Action against Ray I. Velasquez, the resp ondent. In that petition, Bar Counsel charged him with misconduct, as defined by Maryland Rules 16-701 (i), 2 and 16-812, and consisting of violation s of variou s of the M aryland Rule s of Professional Conduct, as adopted by the latter Maryland Rule. In particular, the respondent was alleged to have violated Rules 1.3, Diligence,3 1.4, Communication, 4 1.5, Fees,5 1.5, S afek eepi ng P rope rty, 6 1.16, 1 Maryland Rule 16-751 provides: (a) Com mencem ent of discip linary or remed ial action.- Up on appro val of the Commission, Bar Counsel shall file a Petition for Disciplinary or Remedial Action in the Court of Appeals. 2 Pursuant to Maryland R ule 16-70 1 (i) Profe ssional misc onduct o r miscond uct has the meaning set forth in Rule 8.4 of the Maryland Rules of Professional Conduct, as adopted by Rule 16-812. The term includes the knowing failure to respond to a request for information authorized by this Chapter without asserting, in writing, a privilege or other basis for such failure. 3 Pursuant to Maryland Rule 1.3, [a] lawyer shall act with reasonable diligence and promptness in representing a client. 4 Rule 1.4 provides: (a) A lawyer shall keep a client reasonably informed about the status of a matter a nd pro mptly com ply with re asonab le reque sts for in forma tion. (b) A law yer shall explain a matter to the extent reaso nably necessa ry to permit th e client to make inform ed dec isions re gardin g the rep resenta tion. 5 Rule 1.5 provides: (a) A law yer s fee shall be reasonab le. The fac tors to be co nsidered in determining the reasonableness of a fee include the following: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the lega l serv ice p rope rly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment Declining or Terminating Representation,7 5.5, Unauthorized Practice of Law,8 8.1, Bar by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the prof essional relatio nship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) wh ether the fee is fix ed or co ntingen t. 6 Rule 1.15 provides, as relevant: (a) A lawyer shall hold property of clients or third persons that is in a lawyer s possession in connection with a representation separate from the lawyer s own property. Funds shall be kept in a separate account maintained pursuant to Title 16, Chapter 600 of the Maryland Rules. Other proper ty shall be id entified as such and ap propria tely safeg uarded . Complete records of such account funds and of other property shall be kept by the lawyer and shall be preserved for a period of five years after termina tion of th e repres entation . 7 As pertinent, Rule 1.16 provides: * * * * (d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law . 8 Rule 5.5 provides: A law yer shall not: (a) practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction; or (b) assist a person who is not a member of the bar in the performance of activity that constitutes the unauthorized 2 Admission and Disciplinary Matters,9 and 8.4, M isconduc t,10 of the Maryland Rules of Professional Conduct. We referred the case to the H onorable S ean D. W allace, of the C ircuit Court for Prince Georg e s County, for a hearing pursuant to Rules 16-752 (a)11 and 16-757 practice of law . 9 Rule 8.1 p rovides, as re levant: An ap plicant for ad mission or re instatemen t to the bar or a lawyer in connection with a bar admission application or in connection with a disciplinary ma tter, shall not: * * * * (b) fail to disc lose a fact n ecessary to corr ect a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for info rmation from an ad miss ions or disciplinar y auth ority, except that this Rule does not require disclosure of information otherwise protected by Rule 1.6. 10 Rule 8.4, as relevant, provides: It is professional misconduct for a lawyer to: (a) violate or attempt to violate the rules of professional conduct, knowingly assist or induce another to do so, or do so through the acts of an other; (b) commit a criminal act that reflects adversely on the lawyer's hone sty, trustworthine ss or fitness a s a lawyer in other respe cts; (c) engage in conduct involving dishonesty, fraud, deceit or misreprese ntation; (d) engage in conduct that is prejudicial to the administration of justice; * * * * 11 Rule 16-752 (a) provides: (a) Order. Upon the filing of a Petition for Disciplinary or Remedial Action, the Court of Appeals may enter an order designating a judge of any circuit court to hear the action and the clerk responsible for maintaining the record. The order of designation shall require the judge, after consultation 3 (c).12 Following the hearing, the hearing court found facts and drew conclusions of law as follows. Havin g been disbarre d in 198 4, see Attorney Grievance Comm n v. Velasquez, 301 Md. 450, 483 A. 2d 354 (1984), the respondent was reinstated in 1997 as a member of the Maryland Bar, after which he established his law practice in Upper Marlboro, Maryland. The respon dent is n ot adm itted to p ractice in Virgin ia. In 2000, the respondent accepted a retainer to represent Milton Moreno in connection with his criminal conviction of rape in Virginia. Pursuant to the retainer agreement, executed by Mr. Moreno s sister, the respondent agreed to investigate the charges of which Mr. Moreno had been convicted and request a new trial. Less than a month after the retainer agreement was executed, he visited Mr. Moreno at a Virginia State prison, during which he offered [Mr. Moreno] legal advice about his case, including advice about grounds for a new trial and/or post-conviction relief. The respondent did not inform Mr. Moreno that he was not admitted to practice in Virginia. He has not visited Mr. Moreno since. Nor has the with Bar Counsel and the attorney, to enter a scheduling order defining the extent of discovery and setting dates for the completion of discovery, filing of motions, and hearing. 12 Maryland Rule 16-757 (c) provides: (c) Findin gs and co nclusions. T he judge s hall prepare and file or d ictate into the record a statement of the judge's findings of fact, including findings as to any evidence regarding remedial action, and con clusions of law. If dictated into the record, the statement shall be promptly transcribed. Unless the time is extended by the Court of Appeals, the written or transcribed statement shall be filed with the clerk responsible for the record no later than 45 days after the conclusion of the hearing. The clerk shall mail a copy of the statement to each party. 4 respondent spoken to him by phone or communicated with him by written correspondence. No motions, petitions or other pleadings were filed in a court on Mr. Moreno s behalf. I n short, rather than rendering any meaningful service to Mr. Moreno, the respondent aband oned h is repres entation of M r. Mor eno, w ithout in formin g him o f its term ination. The respondent was paid $ 1500.00 at the time of the execution of the retainer agreement and, subsequently, he received an addition al $ 800 .00. None of these monies was deposited into an attorney trust or escrow account and, because the only meaningful service rendered Mr. Moreno was the visit to the prison, little if any of the monies were, or ever have been, e arned. Comp laints were filed by Mr. Moren o with bo th the Maryland State Bar Association and the Virginia State Bar Association.13 The Maryland State Bar Association forwarded the complaint filed with it to the petitioner, which, in the course of investigating it, sent several written requests for information to the respondent. The respondent failed to respond timely on two occasions. He did, however, provide some of the requested information, first 13 The Virginia complaint was forwarded to that State s Standing Committee on Unauthorized Practice of Law, which, following an investigation, determined that the respondent had engaged in activity, in Virginia, constituting the practice of law. The respondent wa s advised of the com mittee s determination by letter from V irginia s Assistant Ethics Counsel. In that letter, Ethics Counsel offered to refrain from prosecuting the respon dent civilly or criminally in exchange for the respo ndent s acknowledgment of the facts found and agreement to refrain from future unauthorized practice in the State. Although the respondent did not return the proposed letter agreement, prosecution was not pursued due to the running of the one year statute of limitation s on un author ized pra ctice pro secutio ns. 5 by letter and subsequently by a document captioned, Affidavit of Ray Velasquez. Following up on the information in the affidavit, the petitioner made a written request for additional inform ation fr om the respon dent. T he respondent did not respond at all to that reques t. Based on these findings of fact, the hearing judge concluded that the respondent violated each of the rules charged, except Rule 8 .4 (a). Rule 1.3 was violated, he said, when, having been engage d to provide legal services to M ilton Moreno, [the re spondent] failed to act with reasonable diligence and promptness in carrying out that representation. Because the respon dent did no t keep Mr. Moreno informed as to the status of the representation or inform h im that h e was n ot licens ed to pr actice la w in V irginia, R ule 1.4 (a) and (b) we re violat ed. Combining the respon dent s lack o f a license to p ractice law in Virginia w ith his failure to render any meaningful services in connection with the representation he had undertaken and noting the respondent s collection and retention of a fee, the hearing judge found a violation of Rule 1.5 (a ). Having c ollected the f ee, the respo ndent s fa ilure to hold it in an escrow account se parate from his persona l funds, un til earned , violated, he determined, Rule 1 .15 (a). The Rule 1.16 (d) violation consisted of th e respondent s abandonment of his representation of Mr. Moreno, without giving reasonable notice or returning the unearned fee. With respect to Rule 5.5 (a), the hearing judge concluded: 6 As determined by the Virginia State Bar s Standing Committee on Unauthorized Practice of Law, and by this court upon its review of the evidence in this matter, the Respondent engaged in activity constituting the practice of law in Virginia, where the Respo ndent w as not autho rized to practice. He therefore violated MRPC 5.5 (a), which prohibits a lawyer from practicing law in a jurisdiction where doing o violates the regulation of the legal profession in that jurisdiction. The Rules of the Supreme Court of Virginia prohibit any person who is not duly licensed or authorized to practice law in the Com monw ealth of V irginia from engaging in the practice of law or in any [manner] holding himself out as authorized or qualified to practice law in the Com monw ealth of V irginia. Virgin ia Rules of Court, Par t Six, § I. The hearing judge added that, because Section 54.1-3904 of the Virginia Code Annotated provides that the unauthorized practice of law is a crime, a class 1 misdeme anor, punis hable by both fine a nd impriso nment, the r esponde nt s unauth orized prac tice of law in Virginia also constituted the commission of a criminal act reflecting adversely on his honesty, trustwo rthiness or fitne ss as a law yer in othe r respec ts, in viola tion of R ule 8.4 ( b). The responde nt s unauth orized prac tice in Virgin ia, coupled w ith the failure to disclose that fact to the client and accepting a fee for representation that he could not perform, were, to the hearing judge, conduct involving dishonesty, fraud, deceit or misrepresentation. That conduct, he was satisfied , violated Rule 8 .4 (c). Rule 8.1 (b) was violated, the hearing judge con cluded, w hen the resp ondent kn owingly faile d to respond to the petitioner s lawful dema nd for information. T aken in its entirety, the Respondent s conduct was preju dicial to the adm inistratio n of jus tice and therefo re violat ed M RPC 8.4 (d). No exceptions were taken to the hearing judge s findings of fact or the conclusions 7 of law with respect to the charged miscond uct. Indeed , the respond ent did not p articipate at all in the proceedings. Referencing the re spondent s earlier disbarment for commingling his personal and business funds with client funds in his escrow account and converting client funds to his own personal and bu siness u se, see Attorney Grievance Comm n v. Velasquez, 301 Md. 450, 483 A. 2d 354 (1984), the petitioner recommends the ultimate sanction, disbarme nt, as the appropriate sanction for the misconduct found in this case. In doing so, the petitioner relies on Attorney Grievance Comm n v. Tinsky, 377 Md. 646, 835 A. 2d 542 (2003). The respondent in Tinsky was found to have violated MRPC 1.1, 1.3, 1.4, 1.16 (d) and 8.4 (d) in con nection w ith his represe ntation of a client in two criminal cases then pending in the C ircuit Co urt for P rince G eorge s Cou nty, Mar yland. Id. at 649-652, 835 A. 2d at 544-546. The facts underlying those findings consisted of the respondent accepting a fee and enterin g his appearance in those two cases and then failing to appear at scheduled trials. Id. In addition, without notice to the c ourt or to his client, the resp ondent clo sed his law office in Upper Marlboro, Maryland. Id. In support of its recommendation that the respondent be disbarred, Bar Counsel emphasized the respondent s complete and unexplained abandonment of his law practice and his failure to return unearned fees. Id. at 653, 835 A. 2d at 546. Accepting that recommendation, we stated: Tinsky betrayed the trust that his clients p laced in him when th ey sought his a ssistance an d the public trust with which he was endowed when he was admitted to the Bar of this Court. Id. at 655-656, 835 8 A. 2d at 547. As in Tinsky, after having undertaken the representation for which he charged, and received a fee, and without informing the client that he was going to do so, the respondent abandoned his repre sentatio n of M r. Mor eno. Moreover, he did not return the unearned fee. Thus, the respondent violated the same rules that the respondent in Tinsky violated. The respondent in this case, however, violated additional rules. He was found to have engaged in the unauthorized practice of law in Virginia. Because unauthorized practice is a crime in Virginia, as in most States, that conduct doubled as the commission of a crime reflecting on the respondent s fitness to practice and, wh en it is considered that the respondent failed to disclose his lack of licensure, it constituted conduct involving fraud, deceit or misrepresentation. In the case sub judice, both the conduct and the violations are consequently more egregious than in Tinsky. In Attorney G rievance C omm n v. Alsafty, 379 Md. 1, 18, 838 A. 2d 1213,1223 (2003), this Court reiterated what it acknowledged in Attorney Grievance Comm n v. Barneys, 370 Md. 566, 592, 805 A.2d 10 40, 1055 (2002), that th ere is a trend in this Court favoring disbarment as the appropriate sanction for the unauthorized practice of law. We pointed out that the Court in Barneys identified three reasons distinguishing the cases resulting in disba rment, see Attorney Grievance Comm'n v. Johnson, 363 Md. 598, 770 A.2d 130 (2001); Attorney Grievance Comm'n v. Briscoe, 357 Md. 554 , 745 A.2d 103 7 (2000); Attorney Grievance Comm'n v. Harper and Kemp, 356 Md. 53, 737 A.2d 55 7 (1999); 9 Attorney Grievance Comm'n v. James, 355 M d. 465, 735 A.2d 10 27 (1999 ); Attorney Grievance Comm'n v. Kennedy, 319 Md. 110, 570 A.2d 1243 (1990), from the one in which disbarment was not the sanction, see Attorney G rievance C omm'n v . Harris-Sm ith, 356 Md. 72, 737 A.2d 567 (19 99). In the cases in which disbarment was the sanction, deterrence was identified as a significant objectiv e in the s anction decisio n, id. at 588-89, 805 A.2d at 1052-53, there was an absence of a plausible basis for engaging in the conduct in the particular jurisdiction - in Harris-Sm ith, a federal overlay, id. at 589, 805 A. 2d at 1053, i.e., a valid admission to the federal bar and, thus, in that case, a rig ht to practice in Maryland, if done consistent with that admission - and there was no attemp t to comply w ith the rules related to the practice of law in the jurisdiction where the unauthorized practice occurr ed. Id. at 589- 90, 805 A. 2d a t 1053. The significance of a plausible basis for engaging in the objectionable conduct in the subject jurisdiction is that, like the existence of the federal overlay in Harris-Sm ith, it serves to negate any allegation of a deliberate and willful intent to violate that jurisdiction s unauthorized practice rule. While, to be sure, the unauthorized practice in Alsafty and Barne ys occurred in Maryland and the unauthorized practice in this case occurred in Virginia, the prin ciples g overni ng them are the s ame. There is absolutely no basis for the responde nt to have believed that he was authorized to practice law in Virginia. Therefore, his decision to accept the represe ntation of Mr. Moreno in Virginia in connection with a Virginia conviction, with the intent of obtaining a 10 new trial in Virginia, was a willful and deliberate violation of the Virginia unauthorized practice law. Moreover, imposing the ultimate sanction in a case of this kind furthers the purpose of attorney disc iplinary procee dings. As w e have of ten explain ed, that purp ose is to protect the p ublic and not to punish the e rring attor ney. Tinsky, 377 Md. at 653, 835 A. 2d at 546; Attorney Grievance C omm n v. Franz, et. al., 355 Md. 752, 760-61, 736 A.2d 339, 343-44 (1999) Attorney Grievance C omm n of M aryland v. Myers, 333 Md. 440, 446-47, 635 A.2d 1315, 13 18 (1994); Attorney Grievance Comm n v. Goldsborough, 330 Md. 342, 364, 624 A.2d 503, 513 (1993); Attorney Grievance Comm'n v. Protokowicz, 329 Md. 252, 262-63, 619 A.2 d 100, 10 5 (1993); Atto rney G rievance Com m'n v. Myers, 302 Md. 571, 580, 490 A.2d 231, 236 (1985); Attorney Grievance Comm n v. Velasquez, 301 Md. 450, 459, 483 A.2d 354, 359 (1984); Attorney Grievance C omm n v. M ontgomery, 296 Md. 113, 119, 460 A.2d 597, 600 (1983). The public interest is served when a sanction designed to effect general and specific deterrence is imposed on an attorney who violates the disciplinary rules. See Protokowicz, 329 M d. at 262-63 , 619 A.2d at 105; Attorne y Grievance Comm n v. Owrutsky, 322 Md. 334, 355, 587 A .2d 511, 52 1 (1991); Attorney Grievance Comm n v. Alison, 317 Md. 523 , 540-41, 565 A .2d 660, 668 (198 9). Accordingly, either for th e reason u rged by the petitioner, the responde nt s abandonment of his client, without refunding the fee, or because, in addition to the abandon ment, the respondent engaged in the unauthorized practice of law, committing in the process a criminal act bearing on his f itness to practic e, the appro priate sanctio n is 11 disbarme nt. This is especially so where, as in this case, the respondent previously has been disbarre d. IT IS SO ORDERED; RESPONDENT SHALL PAY ALL COST S AS TAXED BY THE CLERK OF THIS COURT, INCLUDING C O S T S O F A L L T R A N SC R IP T S, PURSUANT TO MARYLAND RULE 16-761, F O R WHICH SU M JUDGMENT IS ENTERED IN FAVOR OF THE ATTORNEY GRIEVANCE COMM ISSION AGAINST RAY I. VEL ASQ UEZ . 12

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