Argued: October 7, 2016.
Court for Montgomery County Case No. 31172-M.
Barbera, C.J., Greene, Adkins, McDonald, Watts, Hotten,
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
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") and sought reciprocal discipline. This
petition initiated AG No. 9 in this Court.
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.
second matter ("the Raphael matter") arose when
Alexander Raphael ("Raphael"), a client of
Allenbaugh and a citizen of Canada, filed a complaint against
Allenbaugh. 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. 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.
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.
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),  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.
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
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).
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.
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.
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.
Reciprocal Discipline Matter
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.
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.
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.
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.
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.
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
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).
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.
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.
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.
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.
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.
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
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.
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
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.
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.
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.
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.
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
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. 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.
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