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Attorney Grievance Commission of Maryland v. Allenbaugh

Court of Appeals of Maryland

October 27, 2016

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND
v.
MARK HOWARD ALLENBAUGH

          Argued: October 7, 2016.

         Circuit Court for Montgomery County Case No. 31172-M.

          Barbera, C.J., Greene, Adkins, McDonald, Watts, Hotten, Getty, JJ.

          OPINION

          Watts, J.

         This attorney discipline proceeding involves a lawyer who failed to competently represent clients in two separate matters by failing to file a brief in an appeal and failing to obtain visas for a client and family in an immigration case, failed to communicate with a client, failed to perform work for which he had been paid, failed to keep a client's funds in an attorney trust account, delayed proceedings in an appeal, knowingly failed to respond to Bar Counsel, and engaged in conduct that would negatively impact the perception of the legal profession of a reasonable member of the public.

         Mark Howard Allenbaugh ("Allenbaugh"), Respondent, faces disciplinary action for two distinct instances of misconduct. The first matter is a reciprocal discipline case ("the reciprocal discipline matter"). On April 16, 2015, Bar Counsel, on behalf of the Attorney Grievance Commission, Petitioner, filed with this Court a "Petition for Disciplinary or Remedial Action, " alleging that the United States Court of Appeals for the Fourth Circuit ("the Fourth Circuit") had suspended Allenbaugh from the practice of law before the Fourth Circuit for two years, based on his failure to competently and diligently represent a client and to respond to court orders. In the petition, Bar Counsel alleged that Allenbaugh's misconduct before the Fourth Circuit violated the Maryland Lawyers' Rules of Professional Conduct ("MLRPC")[1] and sought reciprocal discipline. This petition initiated AG No. 9 in this Court.

         On April 16, 2015, this Court ordered the parties to show cause why this Court should not impose reciprocal discipline. On June 1, 2015, Bar Counsel filed in this Court a response to the show cause order, requesting that this Court suspend Allenbaugh from the practice of law in Maryland for two years. On June 2, 2015, Allenbaugh filed in this Court a response to the show cause order, requesting that this Court dismiss the request for reciprocal discipline, or, in the alternative, that this Court impose a sanction that would be less severe than suspension, i.e., a sanction without any suspension. On June 23, 2015, this Court designated the Honorable Anne K. Albright ("the hearing judge") of the Circuit Court for Montgomery County to hear AG No. 9.

         The second matter ("the Raphael matter") arose when Alexander Raphael ("Raphael"), a client of Allenbaugh and a citizen of Canada, filed a complaint against Allenbaugh.[2] On March 13, 2012, Raphael retained Allenbaugh to assist him in obtaining immigrant visas and permanent resident benefits for himself, his wife, and his two daughters. Allenbaugh accepted an up-front fee of $5, 000 from Raphael, and informed Raphael that he would put together an application for an L-1 visa.[3] Raphael, however, was ineligible for an L-1 visa, as he was not employed by an employer who could petition the United States Department of Homeland Security ("DHS") on his behalf. After receiving advice from Allenbaugh's assistant, Raphael's wife and two daughters subsequently entered the United States on non-immigrant, temporary visas, as Raphael had.

         Raphael's wife returned to Canada to visit family. She was barred from re-entering the United States when she arrived at the border. DHS declared her inadmissible to the United States because she had overstayed her temporary visa. Raphael attempted to obtain assistance from Allenbaugh, but his attempt went unanswered. Raphael and his two daughters eventually returned to Canada. Allenbaugh never filed any paperwork with DHS on Raphael's behalf and never sought work authorization for Raphael from the United States Department of Labor. Despite having performed no legal services for Raphael, Allenbaugh retained the $5, 000 that Raphael had paid him.

         On July 9, 2015, Bar Counsel filed in this Court a second "Petition for Disciplinary or Remedial Action" against Allenbaugh, charging him with violating MLRPC 1.1 (Competence), 1.4(a)(2) (Communication), 1.5(a) (Reasonable Fees), 1.15(a), 1.15(c) (Safekeeping Property), 1.16(d) (Terminating Representation), [4] 8.1(b) (Disciplinary Matters), 8.4(d) (Conduct That is Prejudicial to the Administration of Justice), and 8.4(a) (Violating the MLRPC) in representing Raphael. This petition initiated AG No. 25 in this Court, and did not concern the conduct that was at issue in AG No. 9. On July 13, 2015, this Court designated the hearing judge to hear AG No. 25.

         On September 2, 2015, Bar Counsel filed in this Court a motion to consolidate the two pending attorney discipline proceedings against Allenbaugh (AG Nos. 9 and 25). On September 3, 2015, this Court granted the motion to consolidate.

         The hearing judge held motions hearings on November 9, 2015, December 14, 2015, and January 14, 2016, concerning Bar Counsel's motion for an order of default, Allenbaugh's motion to vacate the order of default, and Bar Counsel's motion for sanctions against Allenbaugh for failure to respond to discovery requests, respectively. The hearing judge scheduled an evidentiary hearing for April 4, 5, and 6, 2016. On April 4, 2016, Allenbaugh did not attend the scheduled hearing. On May 19, 2016, the hearing judge filed in this Court an opinion including findings of fact and conclusions of law, concluding that, as to the reciprocal discipline matter, Allenbaugh had violated MLRPC 1.1, 1.3, 3.2, 3.4(c), 8.1(b), 8.4(d), and 8.4(a). As to the Raphael matter, the hearing judge concluded that Allenbaugh had violated MLRPC 1.1, 1.4(a)(2), 1.5(a), 1.15(a), 1.15(c), 8.1(b), 8.4(d), and 8.4(a).[5]

         Oral argument in this Court was scheduled on October 7, 2016; Allenbaugh failed to appear; and this Court issued a per curiam order in which we disbarred Allenbaugh. See Attorney Grievance Comm'n v. Mark Howard Allenbaugh, ___ Md. ___, ___ A.3d ___, Nos. 9 & 25, Sept. Term 2015, 2016 WL 5867218, at *1 (Md. Oct. 7, 2016). We now explain the reasons for Allenbaugh's disbarment.

         BACKGROUND

         After the consolidation of the reciprocal discipline matter and the Raphael matter, the hearing judge conducted a hearing and found the following facts, which we summarize.

         On December 12, 2000, this Court admitted Allenbaugh to the Bar of Maryland. At the time that the following conduct occurred, Allenbaugh was also a member of the Bar of the District of Columbia, the Virginia State Bar, and the Criminal Justice Act ("CJA") Panel for the Fourth Circuit.

         The Reciprocal Discipline Matter

         On September 11, 2014, the Fourth Circuit issued an order suspending Allenbaugh from the practice of law for two years. The Fourth Circuit also imposed a fine of $1, 000 against Allenbaugh for abandoning a client and an additional fine of $1, 000 for repeatedly ignoring orders of the court.

         The Fourth Circuit's sanctions arose as the result of Allenbaugh's repeated inaction on behalf of a client, Monterio Riley ("Riley"), whom Allenbaugh was appointed to represent in the matter of United States v. Riley, No. 13-4766, pursuant to his membership on the CJA Panel. On December 13, 2013, the Fourth Circuit directed Allenbaugh to file a brief and joint appendix on or before January 17, 2014. Allenbaugh filed a motion requesting an extension to March 21, 2014, which the Fourth Circuit granted. On March 21, 2014, Allenbaugh moved to further extend the deadline to March 24, 2014. The Fourth Circuit deferred action on the motion pending the filing of the brief and joint appendix by March 24, 2014. Allenbaugh did not file the brief or appendix.

         On April 7, 2014, the Fourth Circuit issued a notice under Local Rule of the Fourth Circuit 46(g), stating that it would refer Allenbaugh's failure to comply with the briefing order to the Fourth Circuit's Standing Panel on Attorney Discipline ("the Standing Panel") unless Allenbaugh filed the brief and appendix by April 22, 2014. On April 22, 2014, Allenbaugh filed a motion to extend the deadline to April 25, 2014. The Fourth Circuit denied the motion. Allenbaugh subsequently informed the Clerk of the Court that he would file the brief and appendix by May 9, 2014. Allenbaugh failed to file the brief and appendix by that date, but informed the Clerk of the Court that he would file by May 19, 2014. Allenbaugh, ultimately, never filed the brief or joint appendix.

         On June 13, 2014, the Standing Panel ordered Allenbaugh to show cause why he should not be struck as CJA appointed counsel in United States v. Riley. Additionally, the Standing Panel ordered Allenbaugh to show cause why his membership on the CJA Panel should not be revoked. Allenbaugh failed to file a response to the order to show cause by the due date of July 14, 2014.

         On July 28, 2014, the Standing Panel struck Allenbaugh's appointment in United States v. Riley and revoked his membership on the CJA Panel. Additionally, the Standing Panel directed Allenbaugh to show cause why additional discipline should not be imposed against him. Allenbaugh again failed to respond to the show cause order. In an order dated September 11, 2014, the Fourth Circuit concluded that Allenbaugh had violated Rule 1.3 (Diligence) of the Virginia Rules of Professional Conduct, Rules 30(a) (Appendix to the Briefs) and 31(a) (Serving and Filing Briefs) of the Federal Rules of Appellate Procedure, Local Rule of the Fourth Circuit 31(a) (Shortened Time for Service and Filing of Briefs in Criminal Cases), and the Fourth Circuit's briefing order in Riley. By virtue of the same order, the Fourth Circuit suspended Allenbaugh for two years from the practice of law before the Fourth Circuit and fined Allenbaugh $1, 000 for abandoning Riley and another $1, 000 for repeatedly failing to respond to court orders.

         In its order, which was admitted into evidence by the hearing judge, the Standing Panel made the following findings:

Allenbaugh failed to represent his client with reasonable diligence and failed to respond to directives of the Court. His violation of these duties was knowing and delayed his client's appeal. Allenbaugh has not provided any reason for the repeated lapses or any mitigating factor. Allenbaugh's statement to the Clerk that, in retrospect, he should have requested a continuance of the briefing schedule pending action by the Sentencing Commission on retroactive guideline amendments suggests only that counsel preferred to file the brief and appendix on his own schedule and fails to explain his repeated failure to follow Court orders.[6]
Suspension is generally the appropriate sanction when "a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client." ABA Standards § 4.42(a). Allenbaugh's failure to respond to two orders to show cause why he should not be disciplined for this misconduct was a further "serious breach of the attorney's professional obligations to the Court and the public, " In re Warbaugh, 644 F.3d 173, 176 (2d Cir. 2011), and a factor aggravating his original misconduct.
We find that Allenbaugh's persistent failure to represent his client and comply with orders of the Court, and his failure to respond to the Panel's orders to show cause, warrant imposition of a fine and suspension from practice before this Court. The Panel fines Mr. Allenbaugh $1, 000.00 for abandoning his client and an additional $1, 000.00 for repeatedly ignoring orders of the Court, for a total fine of $2, 000.00. The fine is payable by certified check to the Clerk of Court within 30 days of the date of this order. The Court also suspends Allenbaugh from practice before this Court for two years. Allenbaugh may apply for reinstatement after the suspension period, premised on his showing "familiarity with, and willingness to conform to, this court's rules and [his] obligations to clients, and [proof of] payment of any outstanding fines with interest from the due date." In Re Flannery, 186 F.3d 143, 146 (2d Cir. 1999).

(Alterations and footnote in original).

         Allenbaugh subsequently failed to report to Bar Counsel that he had been sanctioned by the Fourth Circuit. Allenbaugh's sanction by the Fourth Circuit came to the attention of Bar Counsel as a result of information provided by the Office of Disciplinary Counsel for the District of Columbia, which instituted a reciprocal discipline proceeding against Allenbaugh in the District of Columbia following the Fourth Circuit's sanctions against him.

         The Raphael Matter

         In September 2011, Allenbaugh met Raphael, a citizen of Canada. Raphael told Allenbaugh that he and his wife and two daughters were interested in immigrating to the United States. Allenbaugh informed Raphael that he could obtain visas, permanent residency, and Social Security cards if Raphael invested $25, 000 in a particular bail bonds business. Allenbaugh informed Raphael that the fee for these services would be $5, 000.

         Raphael subsequently came to the United States on a non-immigrant, temporary visa. Raphael then met with Allenbaugh in Allenbaugh's office in Costa Mesa, California and paid the $5, 000 fee in a cashier's check to retain Allenbaugh. Allenbaugh did not place the funds in an attorney trust account, despite the fact that Raphael had not consented in writing to having his funds kept in an account other than an attorney trust account.

         The retainer agreement between Allenbaugh and Raphael specified that Allenbaugh would obtain an L-1 visa for Raphael. This particular visa, however, was inapplicable to Raphael, as it requires an immigrant to be working for a foreign firm that does business in the United States. See supra Note 3. At some point, Raphael informed Allenbaugh that he had not invested $25, 000 in the bail bond company. Raphael asked Allenbaugh whether he could still bring his family to the United States. Allenbaugh told Raphael that his assistant would follow up with him. Later, Allenbaugh's assistant informed Raphael that "all would be taken care of" and that Raphael could bring his family to the United States. Allenbaugh failed to advise Raphael of the type of visa that his family needed to enter the United States.

         In July 2012, Raphael's wife and daughters came to the United States on non- immigrant, temporary visas that were valid for six months. In March 2013, Raphael's wife returned to Canada to visit family and was subsequently denied re-entry into the United States. DHS denied Raphael's wife entry into the United States because she did not have the proper type of visa and because she had stayed in the United States after her prior visa had expired.

         Raphael contacted Allenbaugh requesting assistance, and forwarded his wife's documents from DHS. Allenbaugh provided no assistance to Raphael regarding Raphael's wife's inadmissibility to the United States. Because Raphael's wife was unable to re-enter the United States, Raphael and his daughters returned to Canada. If Raphael and his daughters attempt to re-enter the United States, they too may be found inadmissible because they also overstayed their temporary visas and lack proper visas for those seeking to immigrate.

         After returning to Canada, Raphael requested that Allenbaugh continue assisting him and his family in immigrating to the United States. Allenbaugh's assistant assured Raphael that Allenbaugh would file the necessary paperwork so that Raphael and his family could re-enter the United States. In a subsequent conversation, Allenbaugh advised Raphael to find a job in California that paid a six-figure salary to facilitate the immigration process. After July 6, 2013, Allenbaugh did not respond to Raphael's requests for updates.

         Allenbaugh never drafted any documents on behalf of Raphael or his family for submission to DHS or the Department of Labor. Despite having conducted no meaningful legal work on Raphael's case, Allenbaugh did not refund any of the $5, 000 that Raphael had paid him. Allenbaugh also failed to provide Raphael with any accounting of the funds or any billing statements.

         In October 2013, Raphael filed a complaint against Allenbaugh with the State Bar of California. Because Allenbaugh was not licensed to practice law in California, the State Bar of California forwarded Raphael's complaint to Maryland Bar Counsel. On March 21, 2014, Bar Counsel forwarded Raphael's complaint to Allenbaugh and requested a response within fifteen days. Allenbaugh requested and was granted an extension until May 5, 2014. Allenbaugh failed to respond by the deadline.

         In a letter dated May 27, 2014, Bar Counsel again requested a response to Raphael's complaint. In a letter dated June 25, 2014, Allenbaugh briefly summarized his representation of Raphael and requested another extension to respond. In a letter dated July 8, 2014, Bar Counsel informed Allenbaugh that the Raphael matter had been docketed, and that his response to Raphael's complaint was due on July 29, 2014. Allenbaugh failed to respond. In a letter dated August 5, 2014, Bar Counsel requested a response within seven days. Once again, Allenbaugh failed to respond. In a letter dated August 19, 2014, Bar Counsel yet again requested a response. In a letter dated August 28, 2014, that was nearly identical to his June 25, 2014 letter, Allenbaugh again briefly summarized his representation of Raphael.

         On September 12, 2014, Bar Counsel sent Allenbaugh ten specific questions, including two in which Bar Counsel sought Allenbaugh's trust account records and time sheets relating to his representation of Raphael. Allenbaugh did not respond. As part of the investigation conducted by Bar Counsel, an investigator made two appointments with Allenbaugh in September and October 2015. Allenbaugh did not keep either appointment.

         Procedural History

         On April 16, 2015, Bar Counsel, on behalf of the Attorney Grievance Commission, filed with this Court a Petition for Disciplinary or Remedial Action, alleging that Allenbaugh's misconduct before the Fourth Circuit also violated the MLRPC. On the same day, this Court issued a Show Cause Order, ordering the parties to show cause in writing why this Court should not impose corresponding discipline.

         On June 1, 2015, Bar Counsel filed a response to the Show Cause Order, requesting that this Court impose discipline equal to that imposed by the Fourth Circuit and enter an order suspending Allenbaugh from the practice of law in Maryland for two years. On June 2, 2015, Allenbaugh filed a response and requested dismissal of the request for reciprocal discipline. In the alternative, Allenbaugh requested a "far less severe sanction-one without any suspension[.]"

         In his response, Allenbaugh asserted that a suspension from the practice of law in Maryland was inappropriate for three reasons. First, Allenbaugh contended that the Fourth Circuit is not "another jurisdiction" within the meaning of Maryland Rule 16-773(a) because the Fourth Circuit is not a State. Second, Allenbaugh argued that his due process rights were violated because he did not receive a hearing prior to being sanctioned by the Fourth Circuit, and Allenbaugh claimed that he was not given actual notice regarding the severity of the sanctions that he faced. Third, Allenbaugh maintained that his conduct before the Fourth Circuit would not be grounds for a two-year suspension in Maryland. Regarding potential mitigating factors, Allenbaugh asserted that he suffered anxiety and depression around the time of United States v. Riley, which affected his ability to represent Riley. Allenbaugh indicated in his response that he had sought treatment and that his anxiety and depression are under control. Allenbaugh also asserted that Riley had no meritorious grounds for appeal.[7] On June 8, 2015, Bar Counsel filed a reply to Allenbaugh's response, maintaining that this Court has jurisdiction to impose reciprocal discipline and contesting Allenbaugh's due process claims.

         On July 9, 2015, Bar Counsel filed with this Court the second Petition for Disciplinary or Remedial Action, thus initiating the Raphael matter. On September 2, 2015, Bar Counsel filed in this Court a Motion to Consolidate the reciprocal ...


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