Argued: 7 October 2014
Circuit Court for Baltimore County Case No. 03-C-13-13179
Barbera, C.J., Harrell, Battaglia, Greene, Adkins, McDonald, Watts, JJ.
I. The Story of the Straight-Forward Made Complicated
In this attorney disciplinary action, the Attorney Grievance Commission of Maryland ("Petitioner" or "the Commission"), acting through Bar Counsel, filed a Petition for Disciplinary or Remedial Action ("PDRA") against Gayton Joseph Thomas, Jr., Esquire ("Respondent" or "Thomas"), charging him with violations of the Maryland Lawyers' Rules of Professional Conduct ("MLRPC") arising out of his representation of Mohamed Abou Sarieh Hamed ("Hamed"). Respondent was charged with violating MLRPC 1.1 (Competence),  1.3 (Diligence),  1.4 (Communication),  8.1(b) (Bar Admission and Disciplinary Matters),  and 8.4(c) and (d) (Misconduct). The Commission served Thomas on 6 December 2013 with a copy of the PDRA, Writ of Summons, and Order for Hearing under Maryland Rule 16-752(a). For reasons that we hope shall become clear in comparatively short order, we set out here the averments of the PDRA:
1. The Respondent, Gayton J. Thomas, Jr., Esquire was admitted to the Bar of the Court of Appeals of Maryland on June 21, 2000.
2. The Complainant, Mohamed Abou Sarieh Hamed, is a citizen of Egypt. Hamed retained Respondent in December 2009 to represent him in immigration proceedings. Hamed was placed in removal proceedings in October 2009.
3. On August 25, 2010, Respondent sent an email to Hamed's sister, setting forth a proposed course of action. Respondent indicated that he intended to file a motion to change venue from Arlington, Virginia to Baltimore, Maryland. He also intended to file an Application for Asylum with the Arlington Asylum Office.
4. Respondent incompetently represented Hamed. The asylum application could only be filed in Immigration Court because Hamed was already in removal proceedings. Also, an asylum application was untimely because it was not filed within one year after Hamed's arrival in the United States.
5. Respondent informed Hamed of a hearing scheduled in Immigration Court for September 9, 2010. However, on that date, Respondent told Hamed not to appear in court because the hearing had been canceled. In fact, the hearing was held and the Immigration Court ordered Hamed to be removed from the United States in absentia.
6. Hamed and his sister made numerous attempts to contact the Respondent to discuss the status of Hamed's case. Hamed's sister sent $700.00 for attorney's fees to Respondent four days after the September 9, 2010 hearing. Respondent did not respond to Hamed or his sister and did not inform them of the status of Hamed's case.
7. Hamed learned of the removal order in November 2012.
8. Respondent has not responded to several inquiries by the Petitioner related to Hamed's complaint.
9. Petitioner charges that Respondent, by his acts and omissions as described herein, engaged in professional misconduct as defined in Maryland Rule 16-701(i) and that he violated [MLRPC 1.1, 1.3, 1.4, 8.1, and 8.4].
(minor alterations added). Thomas did not file (timely or otherwise), under Maryland Rule 16-754, an Answer to the PDRA.
The case was assigned to a hearing judge in the Circuit Court for Baltimore County to conduct an evidentiary hearing and render findings of fact and recommended conclusions of law with regard to the charges. In view of there being no Answer to the PDRA, Petitioner filed a Motion for Order of Default. An order granting the motion was signed and an order entered. Thomas did not appear for the hearing. Hamed was the only witness called by Bar Counsel. In the hearing judge's opinion, the following factual findings were made:
Mohamed Abou Sarieh Hamed ("Hamed" or "Mr. Hamed"), who filed with the Commission the complaint against Thomas, is an Egyptian citizen. He was "admitted to the United States at New York, New York on or about October 11, 2008, as a nonimmigrant visitor (B-2) with authorization to remain in the United States for a temporary period not to exceed April 10, 2009." Hamed was placed in removal proceedings on October 28, 2009, when it was alleged that he "remained in the United States beyond April 10, 2009, without authorization from the Immigration and Naturalization Service or its successor the Department of Homeland Security." It was further alleged at that time that Hamed was "employed for wages or other compensation starting on April 10, 2009, at the People's Bureau of the Great Socialist People's Libyan Arab Jamahiriya in Washington, D.C., " again without proper authorization. Hamed was provided paperwork requiring him to appear before an immigration judge "to show why [he] should not be removed from the United States" based on the charges lodged. He was to appear at 901 North Stuart Street, Suite 1300, Arlington, Virginia, on "a date to be set" and at "a time to be set."
Roughly six weeks after he was placed in removal proceedings, on December 9, 2009, Hamed and his sister, Engie Abou Sarieh Hamed ("Ms. Hamed"),  first made Thomas's acquaintance at a social event. They met at a reception hosted by the Bahrain Embassy, where Ms. Hamed works as a communications officer. At that time, Thomas introduced himself as an immigration lawyer. Hamed, his sister, and Thomas then discussed briefly Hamed's immigration issues. At the conclusion of their conversation, Thomas invited Hamed and his sister to meet at his office to discuss the matter in greater detail.
The following day, December 10, 2009, before any meeting took place, Thomas sent to Ms. Hamed an email with the subject line "immigration." In this lengthy email, Thomas recites the relevant facts, as he understands them to be, and outlines various options. Thomas mentions that Hamed arrived in the United States "a little over a year ago on a visitor visa" and "was detained by DHS/ICE for overstaying the period authorized by his visa." Thomas also indicates that Hamed "is a COPT from Egypt, but has not experienced threats or violence on account of his religion, and neither have his immediate family members." Thomas further indicates that Hamed "has a girlfriend, and they wish to marry."
In this same email, Thomas points out that, once married, Hamed's "wife can file a petition on his behalf." He adds that, "[b]ecause she is a U.S. citizen, [Hamed] is eligible for a green card and would not be removed for overstaying his visa." Thomas raises the concern that, "[b]ecause they are getting married AFTER [he] was put into removal proceedings, U.S. immigration law states that any such marriage is assumed to be fake (meaning fraudulent, or only entered for the purpose of staying in the United States)." Thomas closes the email by indicating that "the hardest part of this case will be proving that the marriage is bona fide." He emphasizes that "the most important thing to do is . . . to create as much evidence as possible, i.e., create bank joint accounts, cell phone accounts, leases, joint property ownership, joint insurance policies, etc. . . ."
On December 13, 2009, Thomas, in an email to Ms. Hamed, confirms that "we are changing tracks and focusing on asylum rather than adjustment of status via marriage." According to Thomas, the plan now is for the asylum application to be based on Hamed's "membership in a social group, i.e., those who are believed to be homosexual but are not, due to a rare disease that deprives the body of testosterone, and who as a result, will be persecuted." Thomas further explains that "the argument is not that the government is persecuting [Hamed], but rather that the government will not attempt to prevent others from harming him."
In a prior email, also dated December 13, 2009, Thomas asks Ms. Hamed to facilitate a conversation with Hamed's treating physician, presumably with the intent of obtaining information to support the anticipated asylum application. Hamed, pursuant to the request, reached out to Dr. Thompson via email two days later. In that email, Ms. Hamed tells Dr. Thompson that she has spoken with an attorney "to help [her] brother Mohamed so he can stay in the United States and can complete [his] treatment." She lets Dr. Thompson know that Thomas will be in touch. The record does not contain any indication that Dr. Thompson and Thomas ever spoke, although Thomas was copied on the email.
By email dated December 18, 2009, Thomas thanks Ms. Hamed (for something, at this point, unknown) and indicates that he "will most likely be in DC this Monday or Tuesday so that may be a good time to meet."Thomas adds that he "will also try and find out when [Hamed's] first Immigration Court date is set to be scheduled." Other than an email dated January 19, 2010, in which Ms. Hamed simply informs Thomas that her brother has moved to Maryland, there appears to have been no additional written correspondence between the parties until March 23, 2010. On that date, in a 4:07 p.m. email, Thomas asks Ms. Hamed whether her "brother received his notice to appear in immigration court yet." On March 25, 2010, two days later, Thomas sent another email in which he indicates that he contacted the immigration court in Arlington, Virginia and learned that there was no record of Hamed's case. According to Thomas, the "court clerk advised that the Department of Homeland Security has not yet forwarded [Hamed's] file to the court."
Five months later, on August 24, 2010, Ms. Hamed wrote to Thomas, requesting a status report. Thomas responded the following day, outlining the various steps that needed to be taken, as well as the anticipated costs of the asylum application and removal process. Notably, the exhibits offered by the Commission do not include any written confirmation of a hearing date scheduled for the removal proceedings. One is left to depend entirely on the testimony of Hamed for this information.
Via his sworn statement, Hamed claimed that he "had oral conversations with Thomas." Both in his written statement and at the March 19, 2014, hearing, Hamed indicated that his removal hearing was scheduled for September 9, 2010. According to Hamed's testimony, Thomas called on the morning of the hearing and told Hamed and his sister that "it was not necessary to go because there was not going to be a hearing." Hamed further testified that Thomas told him that the immigration court was "in summer recess." According to Hamed, Thomas assured him that there was "no clock on [his] case."
Four days following the scheduled hearing, Ms. Hamed provided to Thomas her check no. 286 in the amount of $700, with the indication that it was for "lawyer fees." On the same exhibit, there is what purports to be a message to Thomas from Ms. Hamed in which she indicates "that [they] must talk sometime this week to fix how [they] will meet in the first hearing date." It would appear that Hamed and his sister, at least as of September 13, 2010, were laboring under the impression that the first hearing was to occur at some point still in the future. On September 20, 2011, one year later, Ms. Hamed emailed Thomas, mentioning that they had not heard from him in a "[l]ong time, " and asking whether he had any news about the case.
Another year passed and Hamed married on September 16, 2012. According to Hamed, following his marriage, he learned, in November 2012, that the proceeding scheduled for September 9, 2010, had gone forward, and that he had been ordered removed. According to Hamed, he currently faces "serious immigration problems and fear[s] being deported back to Egypt." Hamed testified that he is scheduled for a hearing in immigration court in July 2014.
On February 4, 2013, Hamed, with the assistance of his current immigration lawyer, filed with the Commission a complaint against Thomas. In that paperwork, Hamed claims that he "retained Thomas to represent [him] in removal proceedings before the Immigration Court in Arlington, Virginia." According to Hamed, "[a]lthough Thomas agreed to represent [him] and there was extensive correspondence between Thomas and [Hamed] or [his] sister, [he] later learned that [he] had been ordered removed in absentia on September 9, 2010." Hamed also indicates that he employed Thomas on September 13, 2010, and paid him $1, 550.
Hamed submitted with his complaint a letter from the immigration attorney, Alan M. Parra ["Parra"]. In this letter, Parra makes clear that he is writing on behalf of his client, Hamed. According to Parra, "[Thomas] provided erroneous legal advice by stating that he would file the application to the asylum office when [Hamed] was already in removal proceedings." Parra also alleges that Hamed "was initially informed orally by [Thomas] that he would have to appear before the Immigration Court on September 9, 2010, but on that date Thomas told him by telephone that the hearing had been cancelled and that it was not necessary for Hamed to appear." According to Parra, "[Thomas's] failure to provide adequate representation has caused Hamed severe harm." It is Parra, on behalf of Hamed, who urges the Commission "to investigate this matter and to take the appropriate disciplinary action." Parra adds that the same "information will also be provided to the Immigration Court in support of a motion to reopen based upon ineffective assistance of counsel."
Upon receipt of Hamed's complaint, the Commission made inquiry of Thomas. In its initial correspondence, dated February 21, 2013, the Commission informed Thomas of the complaint and asked for a written response within 15 days. When Thomas failed to respond, the Commission sent another letter, this one dated March 20, 2013, requesting a reply within ten days. The March 20, 2013, letter was sent via certified mail, return receipt requested. The Commission pointed out that, if Thomas failed to respond, "the complaint made concerning [him] can only become one of increasing concern to [the] office and result in further steps by [the] office to resolve the matter." Thomas was reminded that, pursuant to Rule 8.1 of the Maryland Lawyers' Rules of Professional Conduct, "an attorney shall not knowingly fail to respond to a lawful demand for information from a disciplinary authority . . . ."
When there was still no response from Thomas, yet another letter was sent, this one on April 19, 2013. Thomas was asked to "submit a written response to [Hamed's] complaint" within ten days. He also was to enclose a copy of his client file. In addition, Thomas was asked to address specifically "the allegation that [he] intended to file an asylum petition at the Arlington Asylum Office when the petition should have been filed in Immigration Court" and "the claim that [he] advised [Hamed] not to appear at the September 9, 2010, hearing, resulting in an order for his removal." Thomas was reminded, yet again, of his responsibility to cooperate with the Commission's investigation. Still, Thomas did not respond. On May 3, 2013, the Commission sent a final letter to Thomas, again via certified mail, return receipt requested. Thomas again was asked to provide a response to the complaint and again was reminded of his responsibility pursuant to Rule 8.1. Thomas did not respond.
(minor alterations added) (some internal footnotes omitted) (citations omitted). Based on her analysis of the record, the hearing judge concluded that the Commission failed to prove, by clear and convincing evidence adduced at the hearing, that Thomas violated MLRPC 1.1, 1.3, 1.4, or 8.4(c) or (d), ...