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

Court of Appeals of Maryland

February 19, 2016

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND
v.
JENNIFER VETTER LANDEO

         Argued January 7, 2016.

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          Circuit Court for Montgomery County. Case No. 30653-M.

         ARGUED BY Amy S. Paulick, Assistant Bar Counsel (Glenn M. Grossman, Bar Counsel, Attorney Grievance Commission of Maryland) FOR PETITIONER.

         ARGUED BY David A. Martella, Esq. of Rockville, MD (Barry H. Helfland, Esq. of Rockville, MD) FOR RESPONDENT.

         Barbera, C.J., Battaglia, Greene, Adkins, McDonald, Watts, Hotten, JJ. Opinion by Watts, J.

          OPINION

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          [446 Md. 304] Watts, J.

         This attorney discipline proceeding involves a lawyer who, in an extensive amount of misconduct, failed to provide competent [446 Md. 305] representation; failed to provide diligent representation in time-sensitive immigration matters and waited months to file documents in three separate immigration cases; failed to keep her clients reasonably informed about the status of their matters, promptly comply with her clients' reasonable requests for information, and explain matters to the extent reasonably necessary to permit her clients to make informed decisions regarding the representation; charged and collected attorney's fees for services that she failed to provide to any meaningful degree or at all; failed to deposit attorney's fees and filing fees into an attorney trust account; failed to deposit attorney's fees into an attorney trust account prior to those fees' being earned and without the clients' informed consent, confirmed in writing, to a different arrangement; failed to reasonably protect her clients' interests and timely surrender papers and property to which the clients were entitled; and engaged in conduct that would negatively impact the perception of the legal professional of a reasonable member of the public.

         Jennifer Vetter Landeo (" Landeo" ), Respondent, a member of the Bar of Maryland, represented three immigrants--Brenda Castillo (" Castillo" ), Jenny Flores (" Flores" ), and Binia Martinez-Ramos (" Martinez-Ramos" )--in matters concerning their immigration status. Landeo's clients and/or family members filed complaints against Landeo with the Attorney Grievance Commission (" the Commission" ), Petitioner.

         On December 30, 2014, on the Commission's behalf, Bar Counsel filed in this Court a " Petition for Disciplinary or Remedial Action" against Landeo, charging her with violating Maryland Lawyers' Rules of Professional Conduct (" MLRPC" ) 1.1 (Competence), 1.3 (Diligence), 1.4 (Communication), 1.5(a) (Reasonable Fees), 1.15(a), 1.15(c), 1.15(d) (Safekeeping Property), 1.16(d) (Terminating Representation), 5.3(a), 5.3(b), 5.3(c) (Responsibilities Regarding Nonlawyer Assistants), 8.4(c) (Dishonesty, Fraud, Deceit, or Misrepresentation), 8.4(d) (Conduct That is Prejudicial to the Administration of Justice), 8.4(a) (Violating MLRPC).

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          [446 Md. 306] On January 15, 2015, this Court designated the Honorable Steven G. Salant (" the hearing judge" ) of the Circuit Court for Montgomery County to hear this attorney discipline proceeding. On August 3, 4, and 5, 2015, the hearing judge conducted a hearing. On September 28, 2015, the hearing judge filed in this Court an opinion including findings of fact and conclusions of law, concluding that: (1) as to the Castillo matter, Landeo had violated MLRPC 1.3, 1.4, 1.15, 1.16, and 8.4, but had not violated MLRPC 1.5; (2) as to the Flores matter, Landeo had violated MLRPC 1.3, 1.4, 1.15, 1.16, and 8.4, but had not violated MLRPC 1.5 or 5.3; [1] and (3) as to the Martinez-Ramos matter, Landeo had violated MLRPC 1.1, 1.3, 1.4, and 8.4, but had not violated MLRPC 1.5[2], 1.16, or 5.3.[3]

         On January 7, 2016, we heard oral argument. For the below reasons, we indefinitely suspend Landeo from the practice of law in Maryland with the right to apply for reinstatement after ninety days.

         BACKGROUND

         The hearing judge found the following facts, which we summarize.

         On December 12, 2001, this Court admitted Landeo to the Bar of Maryland. Since January 2004, Landeo has worked at [446 Md. 307] Landeo and Capriotti, LLC, which focuses on immigration law. Landeo is not fluent in any language other than English. Thus, Landeo uses bilingual office assistants to communicate with Spanish-speaking clients; none of the office assistants are certified interpreters or translators.

         The Castillo Matter

         In 2003, Castillo, a native and citizen of Guatemala, entered the United States illegally. Castillo is fluent in Spanish, speaks little English, and cannot read English. In 2009, Castillo married Steven Keener, Jr. (" Keener" ), a United States citizen. Keener is fluent in English, but not Spanish.

         On February 23, 2012, Castillo and Keener met with Landeo for the first and only time. Castillo and Keener retained Landeo to file three documents on Castillo's behalf to assist Castillo in obtaining legal permanent resident status. The first document--Form I-130, or an " Immediate Family Petition" --would, if granted, allow Castillo to obtain a green card[4] through " consular processing," or applying in person at the United States consulate in Guatemala. The second document--Form I-601, or a " Waiver of Unlawful Presence" --would, if granted, allow Castillo to return to the United States without being subject to the rule that an illegal immigrant who returns to his or her home country cannot

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return to the United States for ten years. The third document was a visa[5] application.

         Keener paid Landeo a $600 retainer and agreed to pay $200 per month for sixteen months, for a total of $3,800 in attorney's fees, plus a $520 filing fee,[6] for the Immediate Family [446 Md. 308] Petition. Keener ended up paying Landeo a total of $3,000 in attorney's fees and the $520 filing fee. Landeo did not deposit the attorney's fees or filing fee into an attorney trust account, nor did Landeo have Castillo's and Keener's consent, confirmed in writing, to deposit the fees into an account other than an attorney trust account.

         Landeo testified that she planned to refrain from filing the Immediate Family Petition until after the Department of Homeland Security promulgated an amendment to the regulation regarding waiver of unlawful presence.[7] Landeo failed to adequately convey, either herself or through her staff, to either Castillo or Keener that she planned to wait to file the Immediate Family Petition.

         Landeo provided Castillo and Keener with a retainer agreement that was in English. Landeo did not provide a retainer agreement that was in Spanish. The retainer agreement stated: " I/We acknowledge that each and every part of this legal services agreement has been explained to me in Spanish by the person named below as an interpreter." The retainer agreement, however, did not name an interpreter, and no interpreter was present at the meeting; Castillo relied on Keener to communicate with Landeo.

         In a letter dated April 16, 2012, Landeo requested that Castillo and Keener provide the $520 filing fee and the documents that were necessary to file the Immediate Family Petition. As of July 2012, Castillo and Keener had provided Landeo the filing fee and all of the documents that were necessary to file the Immediate Family Petition. On July 30, 2012, Landeo signed an attorney appearance form to be attached to the Immediate Family Petition. Landeo, however, did not file the Immediate Family Petition with the United [446 Md. 309] States Citizenship and Immigration Services (" USCIS" )[8] until nearly eight months later, on March 28, 2013. In the interim, on January 3, 2013, the Department of Homeland Security published the amendment to the regulation regarding waiver of unlawful presence; and, on March 4, 2013, the amendment became effective. The amendment in no way affected the form or substance of Immediate Family Petitions.

         Between May 2012 and March 2013, Landeo never directly communicated with Castillo or Keener, despite Castillo's multiple

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attempts to speak with Landeo. Between May 2012 and March 2013, Castillo telephoned Landeo's office at least fifteen times requesting status updates and information as to the filing of the Immediate Family Petition. Castillo requested that Landeo call her back, but Landeo failed to do so. Keener also attempted to speak with Landeo by telephone. Whenever Castillo and Keener telephoned Landeo's office to speak with Landeo, a member of the firm's staff told them that Landeo was " unavailable." When Keener was unable to speak with Landeo by telephone and requested a meeting with Landeo, the firm's office manager indicated that, under the retainer agreement, Keener would need to pay $250 for a meeting with Landeo.

         Castillo and Keener decided to check the Immediate Family Petition's status on USCIS's website, but discovered that they needed the receipt number to monitor its progress. When Castillo and Keener telephoned Landeo's office, the firm's office manager told them that the Immediate Family Petition was " in process," which they took to mean that the Immediate Family Petition had been filed, and Landeo was awaiting a receipt number. On multiple later occasions, Castillo asked [446 Md. 310] Landeo's office for a receipt number so that she could check the Immediate Family Petition's status on USCIS's website, and a member of the firm's staff told Castillo that Landeo was unavailable and that the staff member was not in a position to provide the receipt number. Landeo never explained to Castillo or Keener why she delayed in filing the Immediate Family Petition.

         In March 2013, Castillo telephoned USCIS and learned that Landeo had not yet filed the Immediate Family Petition. On March 20, 2013, Keener telephoned Landeo's office and stated that he would stop paying fees until Landeo provided a receipt for the filing of the Immediate Family Petition. Eight days later, Landeo filed the Immediate Family Petition. Castillo and Keener had been unaware of any plan on Landeo's part to file the Immediate Family Petition in mid-March 2013. On April 4, 2013, the firm's office manager telephoned Keener to tell him that he had a receipt number for the Immediate Family Petition. By that time, however, Keener had already told Landeo's office that he and Castillo were terminating Landeo's representation and were in the process of retaining a new lawyer. After the termination of her representation, Landeo sent Castillo and Keener a bill for $4,205.

         On April 5, 2013, Castillo and Keener retained a new immigration lawyer, Xavier Racine (" Racine" ), to file an Immediate Family Petition and a Waiver of Unlawful Presence. On that day, Racine sent to Landeo a letter in which he requested the contents of Castillo's file as well as a refund of unearned fees. On April 8, 2013, Landeo received the letter. In addition to sending the letter, Racine telephoned Landeo's office to facilitate the transfer of the file, but was unable to speak with Landeo; instead, Racine was able to communicate with Landeo only through an office assistant and via e-mail. Landeo's office assistant told Racine that the file had been sent to him, but it had not. On May 21, 2013, in response to an e-mail from Racine, Landeo e-mailed Racine to state that the documents in Castillo's file would be scanned and sent to his office. Racine waited until June 13, 2013, but Landeo did not send the documents in Castillo's file or provide a refund to [446 Md. 311] Castillo and Keener; as such, Racine filed a complaint with the Commission against Landeo. As of August 6, 2013, Racine had not received Castillo's file, and Castillo and Keener had not received a refund.

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         The Flores Matter

         In July 2002, Flores, a native and citizen of El Salvador, entered the United States illegally. Flores speaks English, but prefers communicating in Spanish.

         On October 1, 2010, Flores met with Landeo and retained Landeo to file two documents on her behalf. The first document--Form I-360, or an " Abused Spouse Petition" --is a petition filed by an immigrant who is protected under the Violence Against Women Act, if he or she is married to a United States citizen and is a victim of domestic violence.[9] The second document--Form I-485, or an " Adjustment of Status" --would, if approved, allow Flores to get a green card for work authorization.[10]

         In the retainer agreement, Flores agreed to pay Landeo $2,500 in attorney's fees, plus a $1,170 filing fee.[11] As of June 1, 2011, Flores had paid Landeo $2,500. On August 30, 2012, Flores paid the filing fee. Landeo never placed the fees in an attorney trust account.

          [446 Md. 312] As of June 27, 2011, Flores had provided Landeo with all of the documents that were necessary to file the Abused Spouse Petition, and Flores had signed the Abused Spouse Petition; thus, as of that date, the Abused Spouse Petition was ready for filing. Landeo, however, did not file the Abused Spouse Petition until nearly three months later, on September 22, 2011.

         At some point after the filing of the Abused Spouse Petition, Landeo's office forwarded to Flores letters in which USCIS stated that it had made " a prima facie determination" as to the Abused Spouse Petition. Between July 6, 2012 and October 1, 2012, Landeo mailed to Flores letters informing Flores that the " prima facie determination" as to her classification as an abused spouse of a United States citizen had been extended. Flores requested from Landeo an explanation of USCIS's prima facie determination as to the Abused Spouse Petition, but Landeo never provided Flores with an explanation.

         In a letter dated July 6, 2012, Landeo recommended filing the Adjustment of Status before USCIS approved the Abused Spouse Petition; the retainer agreement, however, provided that the Adjustment of Status would be filed after USCIS approved the Abused Spouse Petition.[12] Although it was not possible to obtain a work permit while the Abused Spouse Petition was pending, in the July 6, 2012 letter, Landeo stated that Flores " may wish to proceed with filing [her A]djustment of [S]tatus application so that [she could] obtain

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work authorization while" the Abused Spouse petition was pending. In a letter dated July 10, 2012, Flores agreed to having the Adjustment of Status filed before USCIS approved the Abused Spouse Petition. Landeo, however, never explained the process to Flores.

          [446 Md. 313] As of September 27, 2012, Flores had provided Landeo with all of the documents that were necessary to file the Adjustment of Status. Landeo, however, never filed the Adjustment of Status.

         On December 4 and 7, 2012, Flores telephoned Landeo's office asking for a status update. During the latter telephone call, a member of Landeo's staff told Flores that Landeo would telephone her when the Adjustment of Status was " ready for signature." On December 17, 2012, Flores visited Landeo's office to ask for a copy of her file. At some point between December 17 and 27, 2012, Flores terminated Landeo's representation and retained a new lawyer, Jonathan Bloom (" Bloom" ).

         On December 27, 2012, Bloom mailed and faxed to Landeo a letter in which he requested Flores's file. On January 2, 2013, Landeo mailed to Bloom a letter in which she stated that would " scan and e[-]mail [Flores's] file before the end of the week." As of January 18, 2013, Bloom had not received anything else from Landeo; on that date, Bloom sent to Landeo a second letter in which he requested Flores's file. On January 24, 2013, a member of Landeo's staff e-mailed to Bloom scanned copies of Flores's file. In a letter dated February 7, 2013, Bloom reiterated his request for the originals of Flores's file and requested a refund of the $1,170 filing fee and $1,250 in unearned attorney's fees.[13] On February 22, 2013, Landeo mailed to Bloom Flores's file and a statement of account, according to which Flores owed Landeo $2,138.72. Landeo never refunded attorney's fees to Flores.

         The Martinez-Ramos Matter

         In 1997, Martinez-Ramos, a native and citizen of Honduras, entered the United States illegally. Martinez-Ramos does not read or write English, and, at all relevant times, communicated only in Spanish. On or about November 15, 1999, Martinez-Ramos [446 Md. 314] was granted " Temporary Protective Status," which allows an immigrant from a country that is suffering from war or natural disaster to be protected from deportation, obtain work authorization, and obtain authorization to leave and return to the United States.

         In 2009, without authorization from the United States government, Martinez-Ramos left the United States and returned to Honduras. Because Martinez-Ramos failed to get advance permission to leave and re-enter the United States, she was detained when she attempted to illegally re-enter the United States at the Texas border in 2010. On August 21, 2010, an order for Martinez-Ramos's removal and deportation was issued. Martinez-Ramos was released, however, on an " Order of Supervision," which provided her with a conditional grace period to remain in the United States. To avoid removal, Martinez-Ramos had to get her Temporary Protective Status reinstated; in December 2010, USCIS reinstated Martinez-Ramos's Temporary Protective Status.

         In a letter dated June 14, 2012, USCIS informed Martinez-Ramos that it had withdrawn her Temporary Protective Status. In the letter, USCIS stated that Martinez-Ramos could appeal the decision

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withdrawing her Temporary Protective Status by filing a Form I-290B, or " Notice of Appeal or Motion," within thirty-three days of the date of the letter; USCIS stated: " If a motion or appeal is not filed within [thirty-three] days[,] this decision is final." Thus, the deadline for filing the Notice of Appeal or Motion was July 17, 2012.

         On July 6, 2012, Martinez-Ramos met with Landeo, and communicated with Landeo through one of Landeo's part-time assistants, who acted as an interpreter. On that day, Martinez-Ramos retained Landeo to file a " Motion to Reopen/Reconsider Denied/Revoked" Temporary Protective Status on her behalf. Landeo charged Martinez-Ramos $1,600 in attorney's fees and $730 in filing fees and other costs. Landeo did not deposit the $730 in filing fees and other costs into an attorney trust account.

          [446 Md. 315] As of July 10, 2012, Landeo had completed a brief for the Notice of Appeal or Motion. On July 14, 2012, Landeo signed an attorney appearance form. Thus, the Notice of Appeal or Motion was ready for filing three days before the deadline. However, Landeo did not file the Notice of Appeal or Motion until more than three months later, on October 23, 2012. The Notice of Appeal or Motion did not provide any reasons for the late filing. Landeo never explained the late filing to Martinez-Ramos. On December 13, 2012, USCIS denied the untimely Notice of Appeal or Motion.

         Meanwhile, on September 12, 2012, Martinez-Ramos retained Landeo to file a work permit application on her behalf. Landeo charged Martinez-Ramos $350 in attorney's fees and $565 in filing fees and other costs. Landeo never filed the work permit application. Landeo did not deposit the $565 in filing fees and other costs into an attorney trust account.

         In September 2012, Martinez-Ramos met with her immigration officer. At the meeting, the immigration officer wrote something on a paper and gave it to Martinez-Ramos; the note was written in English, and Martinez-Ramos, who speaks and writes only in Spanish, was unable to understand the note. Accordingly, Martinez-Ramos went to Landeo's office to ask for an explanation of the note, but Martinez-Ramos was unable to meet with Landeo to have the note explained to her.

         On October 1, 2012, Martinez-Ramos visited Landeo's office to ask for copies of documents so that she could show her immigration officer that she was represented by a lawyer and that she had filed a Notice of Appeal or Motion. On October 12, 2012, during a telephonic conversation, a member of Landeo's staff told Martinez-Ramos that she could pick up the documents that day. As of that date, however, Landeo had not filed either the Notice of Appeal or Motion or the attorney appearance form.

         On November 7, 2012, Martinez-Ramos visited Landeo's office to ask whether Landeo had heard anything about the Notice of Appeal or Motion, and to inform Landeo that she would be meeting with her immigration officer on November [446 Md. 316] 26, 2012. On November 8, 2012, a member of Landeo's staff informed Martinez-Ramos that Landeo's office had not heard anything about the Notice of Appeal or Motion, and that, if Landeo's office had still not heard anything by November 26, 2012, Landeo would telephone Martinez-Ramos's immigration officer. Landeo failed to telephone Martinez-Ramos's immigration officer by November 26, 2012. On November 26, 2012, during her meeting with her immigration officer, Marinez-Ramos was detained for purposes of deportation. Between July 6, 2012, when Martinez-Ramos first retained Landeo, and November 26,

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2012, when Martinez-Ramos was detained for purposes of deportation, Martinez-Ramos had no direct contact with Landeo. On November 28, 2012, in an e-mail, Landeo wrote that she had spoken with Martinez-Ramos's immigration officer.[14]

         On November 27, 2012, one day after Martinez-Ramos had been detained for purposes of deportation, Martinez-Ramos's sister, Marcia Vasquez (" Vasquez" ), and Vasquez's husband, Isaac Vasquez (" Isaac" ), sought to retain Landeo for " initial evaluation, review[,] and legal advice" concerning Martinez-Ramos's detainment. On that day, Landeo signed an attorney appearance form for an " alien detained." Three days later, Vasquez and Isaac went to Landeo's office to find out what Landeo had learned; at that time, a member of Landeo's staff advised Vasquez and Isaac that Landeo was unavailable and that it would cost $250 to set up an appointment with Landeo. At that point, Vasquez requested the documents in Martinez-Ramos's file, but Landeo's office was unable to provide the documents and stated that Vasquez would need to wait five business days.

         On December 5, 2012, Vasquez retained Landeo to file a Form I-246, or a " Motion to Stay Removal," on Martinez-Ramos's [446 Md. 317] behalf. Landeo charged Vasquez $600, which Vasquez paid on that date. On December 7, 2012, Landeo mailed the Motion to Stay Removal to the United States Immigration and Customs Enforcement (" ICE" ).[15] On December 10, 2012, ICE informed Landeo that, per the instructions on Form I-246, the Motion to Stay Removal needed to be hand-delivered to the ICE office in Baltimore. On that day, Landeo telephoned Vasquez, told her what ICE had stated, and said that she could travel to Baltimore for another $600. Vasquez told Landeo to " definitely go" to Baltimore, and provided her credit card information to pay the additional $600.

         Ultimately, Landeo's office could not process Vasquez's credit card information. On December 11, 2012, Landeo's assistant telephoned Vasquez about Landeo's office's inability to process Vasquez's credit card, and stated that to go to Baltimore Landeo needed the money to be paid. Vasquez decided not to pay Landeo another $600 because she believed that Landeo had done nothing since being retained. On that date, Vasquez went to Landeo's office to retrieve the documents from Martinez-Ramos's file.

         On December 14, 2012, Martinez-Ramos was deported.

         Aggravating Factors and Mitigating Factors

         The hearing judge found three aggravating factors: (1) " a pattern of misconduct" ; (2) " multiple violations of the" MLRPC; and (3) a refusal " to acknowledge the wrongfulness of [Landeo's] misconduct[.]" The hearing judge found at least one mitigating factor: " no prior [attorney] disciplinary offenses."

         Without expressly crediting the evidence, the hearing judge discussed evidence of mitigating factors that Landeo had offered. According to the hearing judge, Landeo testified as follows. As of

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2007, Landeo had two sons. In August 2007, Landeo married her current husband, with whom she has had [446 Md. 318] two more children. Landeo's husband was physically abusive to her and her children. At least two of Landeo's children had either physical or developmental issues, such as attention deficit hyperactivity disorder and pyloric stenosis.[16] In early 2014, Landeo separated from her husband.

         Landeo suffers from chronic severe anemia, which causes fatigue, mental cloudiness, and an inability to function. Landeo also suffers from depression and anxiety, but denied that her mental health affected her ability to represent her clients.

         On July 30, 2015-- i.e., four days before the hearing in this attorney discipline proceeding began--Landeo mailed to Flores a check for $1,170, and mailed to Vasquez a check for $840. Landeo intended the checks to be refunds of filing fees.

         As a result of this attorney discipline proceeding, Landeo " sets available dates for clients to meet with her for questions[.]" However, Landeo's retainer agreement still states that if requested by the client a meeting with her after the initial meeting costs $250. Landeo and her law partner are in the " process" of creating a Spanish version of her retainer agreement, but, as of the hearing in this attorney discipline proceeding, they had not completed the Spanish version of the retainer agreement. Landeo no longer charges large retainers up front, and instead charges small monthly payments; Landeo puts only earned fees into her operating account, and puts unearned fees in trust.[17] Landeo will no longer have a part-time assistant, but instead will have a full-time assistant who will contact Landeo with important messages or if a client is upset or concerned.

          [446 Md. 319] According to Landeo's counsel, any delays that occurred during Landeo's representation of Castillo, Flores, and Martinez-Ramos were because Landeo was either away from the office or sick with the flu, which became pneumonia in January 2013.

         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 a hearing judge's conclusions of law. See Md. R. 16-759(b)(2)(B) (" The Court [of Appeals] shall give due regard to the opportunity of the hearing judge to assess the credibility of witnesses." ); Attorney Grievance Comm'n v. Shuler, 443 Md. 494, 501, 117 A.3d 38, 43 (2015) (" [T]his Court reviews for clear error a hearing judge's findings of fact[.]" (Citations omitted)); Md. R. 16-759(b)(1) (" The Court of Appeals shall review de novo the [hearing] judge's conclusions of law." ). This Court determines whether clear and convincing evidence establishes that a lawyer violated an MLRPC. See Md. R. 16-757(b) (" The [Commission] has the burden of proving the averments of the petition [for disciplinary or remedial action] by clear and convincing evidence." ).

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