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Attorney Grievance Commission of Maryland v. Aita

Court of Appeals of Maryland

March 27, 2018


          Argued: January 8, 2018

          Circuit Court for Anne Arundel County Case No. C-02-CV-17-564

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


          Hotten, J.

         On or about November 18, 2016, the Attorney Grievance Commission of Maryland ("Petitioner"), directed that charges be filed against Anna G. Aita ("Respondent"). On February 16, 2017, Petitioner, acting through Bar Counsel, filed in this Court a Petition for Disciplinary or Remedial Action ("Petition") against Respondent. The misconduct stemmed from Respondent's representation of two former clients in immigration matters. Specifically, Petitioner alleged that Respondent failed to represent these clients competently and diligently, failed to communicate with them regarding the status of their cases, failed to appear in court on their behalf, failed to safeguard their funds, charged the clients an unreasonable fee, failed to refund unused immigration filing fees to the client, misrepresented material facts to an immigration judge, failed to ascertain the status of the clients' cases, and failed to advise the clients of the status of their cases. Based on the misconduct, Petitioner alleged violations of Maryland Lawyers' Rules of Professional Conduct ("MLRPC") 1.1 (Competence), 1.3 (Diligence), 1.4 (Communication), 1.5 (Fees), 1.15 (Safekeeping property), 1.16(d) (Declining or Terminating Representation), 3.3(a)(1) (Candor Towards the Tribunal), and 8.4(a), (c), and (d) (Misconduct). Petitioner further averred violations of former Maryland Rules 16-604 (Trust Account-Required Deposits) and 16-606.1 (Attorney Trust Account Record-Keeping). [1]

         On February 27, 2017, this Court transferred the matter to Judge Glenn L. Klavans ("the hearing judge"), of the Circuit Court for Anne Arundel County, to conduct an evidentiary hearing ("the hearing"). The Clerk of the Circuit Court for Anne Arundel County issued a summons on February 28, 2017. The Petition and summons were served on Respondent on April 3, 2017. After receiving an extension of time, an Answer was filed on May 3, 2017. Petitioner and Respondent met with the hearing judge for a scheduling conference on April 21, 2017. Petitioner filed an Amended Petition for Disciplinary or Remedial Action on May 18, 2017. Respondent filed a timely Answer on June 2, 2017. An evidentiary hearing took place, from July 24, 2017, through July 27, 2017. At the conclusion of the hearing, the hearing judge directed the parties to file Proposed Findings of Fact and Conclusions of Law by August 21, 2017.


         We summarize the hearing judge's findings of fact. Respondent was admitted to the Maryland Bar on June 19, 2002. She began a solo law practice in May of 2003, and described her areas of concentration as immigration, criminal, traffic, family, and civil litigation. She speaks, reads, and writes in both English and Spanish. Although Respondent resides in Easton, Maryland, she maintains her office for the practice of law in Glen Burnie, Maryland. Respondent testified that she has experienced recurrent health problems, including problems with sciatica on both sides, and bulging discs in her back. She also testified that she had vertigo in 2013 and micro colitis, which is similar to irritable bowel syndrome. Respondent did not present any evidence confirming the aforementioned diagnoses or treatment. The misconduct related to this investigation by Bar Counsel involves Respondent's representation of two clients, Isaac Escalante and Ingris Ardon.

         Representation of Isaac Escalante

         Isaac Escalante ("Escalante") is a native of Guatemala who entered the United States in February of 2002. He resides with his partner, Francisca Calmo Ramos ("Calmo Ramos"), in Sudlersville, Maryland. They have five children together who are all United States citizens. Escalante does not speak or read English fluently. In March of 2012, Escalante was arrested for traffic violations in Queen Anne's County, Maryland, and was taken into custody by the Department of Homeland Security ("DHS"), Immigration and Customs Enforcement. Thereafter, Escalante was placed in removal proceedings.

         In April of 2012, Calmo Ramos retained Respondent to represent Escalante in his criminal and immigration matters. A retainer agreement was provided to Escalante in both English and Spanish. The total fee for representation in both cases was $2, 500. Escalante paid Respondent $2, 500 in increments. The funds were not held in an attorney trust account, and had not been previously earned at the times of payment. Escalante did not provide his informed consent, in writing, agreeing to the deposit of his advance fee payments in a non-trust account. Respondent contended that the payments were not placed in an attorney trust account because they were received too close in time to when they were earned, or alternatively, that such incremental payments had been earned. However, Respondent produced no account records, timesheets, or other evidence to substantiate these claims. Escalante was satisfied with the services that Respondent rendered regarding his traffic case.

         In Escalante's immigration case, Respondent filed an Application for Cancellation of Removal with the immigration court. Sometime in 2012, during Escalante's detention, Respondent came to his house to sort through the family's personal documents with Calmo Ramos, to ascertain which documents would be helpful in supporting Escalante's application for Cancellation of Removal. Respondent made copies of the family's original documents, but never returned the originals. Respondent also did not file any of the documentation she collected from Calmo Ramos. During the hearing, Respondent testified that these documents were not helpful to Escalante's case, but also denied ever receiving the supporting documentation.

         A Master Calendar hearing[2] was scheduled in Escalante's case for November 26, 2013 at 1:00 p.m. at the immigration court in Baltimore, Maryland. At 1:05 p.m. that day, Respondent sent Escalante a text message indicating that her partner attorney, Charles Yates ("Yates"), would be substituting for her in immigration court. In actuality, Yates was not Respondent's partner, but rather an independent attorney acting as a substitute.

         Escalante replied to Respondent by text message, "[w]hen is my court?" At 2:10 p.m., Respondent replied, "[t]oday 1:00 p[.]m." Escalante replied, "I didn't know." At the time that he received Respondent's text message at 2:10 pm, Escalante was working on the Eastern Shore of Maryland. Yates appeared at the immigration court on Respondent's behalf, but Escalante did not appear. Yates contacted Respondent to alert her that Escalante had failed to appear, but received no response. The immigration judge ordered Escalante removed from the United States of America in absentia. Escalante contacted Respondent on the afternoon of November 26, 2013, through a text message saying "I am Isaac, please answer me. I need to speak with you." Respondent never replied. Escalante sent another text message on November 27, 2013, inquiring about the status of his case. Again, Respondent did not reply.

         Respondent initially testified that she had a telephone conversation with Escalante on the morning of November 26, 2013, and advised him of the hearing and Yates' representation. Later, Respondent changed her testimony and asserted that she left Escalante a telephone message. Additionally, Respondent testified that she failed to appear on behalf of Escalante in immigration court because her cat died.

         Respondent presented a copy of a letter in English from her client file, addressed to Escalante, dated October 19, 2013. The letter reflects that a Master Calendar hearing is scheduled for November 26, 2013, at 1:00 pm. The letter also states "[i]f you do not understand this document, I further note that it is your responsibility to have it translated." No proof was offered that the letter was mailed. Escalante never received it.

         On January 20, 2014, Escalante again attempted to contact Respondent by text and asked if he could reopen his immigration case. Respondent replied, "[y]ou can. I am going to need 295 dollars." On February 18, 2014, Respondent filed a Motion to Reopen Escalante's case. Escalante paid the $110 filing fee for the motion. Respondent deposited Escalante's fees into her firm's operating account. In the Motion to Reopen, Respondent falsely represented to the immigration court that Escalante failed to appear for his hearing on November 26, 2013, because Escalante's "car broke down while he was over one hour away in an area with no taxi service and no public transportation. He was unable to find someone to bring him to court on the day of his [M]aster [C]alendar hearing."

         On February 19, 2014, the immigration judge granted the Motion to Reopen and set another hearing for March 11, 2014. Respondent never informed Escalante that his case was reopened and scheduled for another hearing. On March 11, 2014, both Escalante and Respondent failed to appear, and Escalante was ordered removed in absentia for a second time.

         In 2015, Escalante was arrested by DHS, taken into custody, and denied bond because of the final order of removal. After learning of Escalante's arrest, Calmo Ramos telephoned Respondent. Calmo Ramos paid Respondent $200 to file a second Motion to Reopen on Escalante's behalf. Respondent did not file the Motion to Reopen and later sent Calmo Ramos a money order for $295, representing the motion filing fees, the Cancellation of Removal application fee, and a DHS biometrics fee. Escalante filed a complaint with the Attorney Grievance Commission in July of 2015. Escalante first learned that he was ordered removed in absentia after he filed a complaint with the Attorney Grievance Commission.

         Escalante subsequently retained Rene Swafford ("Swafford"), Esquire. Swafford tried several times to contact Respondent by telephone, and left two messages for her, but Respondent never returned the calls. In September of 2015, Swafford requested a copy of Escalante's client file from Respondent, but received no response. Respondent contended that she did not provide Escalante's file because Swafford did not present a release signed by Escalante, granting permission. In December of 2015, Bar Counsel requested that Respondent provide Escalante's file to Swafford. In January of 2016, Respondent complied.

         Representation of Ingris Ardon

         Ingris Ardon ("Ardon") is a native of Guatemala, who does not speak or read English fluently. She resides in Reisterstown, Maryland with her three children, who are all United States citizens. In July 2013, Ardon retained Respondent to represent her at her individual calendar hearing[3] on October 29, 2013. Pursuant to the retainer agreement, which was in both English and Spanish, Respondent charged Ardon a flat fee of $3, 000 for the representation, with $1, 000 due at signing, and the balance due over a period of four months in installments of $500 each. Ardon paid Respondent a total of $2, 500 in increments. The funds were not deposited into a trust account, and were not previously earned at the times of payment.

         Ardon also paid Respondent $185 on September 14, 2013, to be used for the filing fee for the Application for Suspension of Deportation and biometric fee charged by DHS. Respondent did not deposit this payment into a trust account. Ardon did not provide her informed consent, in writing, agreeing to the deposit of her advance fee payments and filing fee in a non-trust account. Respondent claimed that such payments were not deposited into a trust account because they were received so close in time to when they were earned, or alternatively, that because they were paid in increments, the incremental payments had been earned. However, Respondent could produce no evidence, account records or timesheets to substantiate these claims.

         Respondent instructed Ardon to bring documents to her office to demonstrate her eligibility for Suspension of Deportation. Ardon provided Respondent with 585 pages of documents. Respondent also instructed Ardon to write out a personal history. Ardon did not understand what she was supposed to compose and sought clarification. Respondent replied that Ardon should seek assistance from her children and canceled several of their appointments. Respondent never filed any applications, pleadings, or supporting documentation on Ardon's behalf. According to Respondent, she was not provided sufficient proof of continuous physical presence, or proof of hardship to Ardon's children, should Ardon be deported to Guatemala.

         In October 2013, Respondent reminded Ardon that a $500 payment was due on October 20, 2013. On October 19, 2013, Respondent granted Ardon an extension. On October 21, 2013, Ardon texted Respondent that, "I sent the check by mail. I hope it's not lost and you receive it." Ardon followed up by text on October 24, 2013 by asking, "[t]ell me did you get the check, " and Respondent replied, "[y]es." However, Respondent later sent correspondence to Ardon claiming that she never received the $500 payment in October of 2013. No proof was presented regarding receipt of the check, or process by any bank. Ardon was supposed to be fingerprinted by DHS as a requirement for her Application for Suspension of Deportation. Respondent advised Ardon on the procedure for fingerprinting via text message. After going to several administrative offices within DHS to secure documents for fingerprinting, Ardon was unable to do so.

         On October 29, 2013, Ardon and her three children appeared in immigration court for the scheduled individual hearing. Respondent sent Ardon a text message just prior to the scheduled hearing that she would not be coming to court with her because Respondent's family member had an emergency. However, Respondent testified that her cat sustained a fatal blood clot. Respondent informed Ardon that a substitute attorney, Yates, would appear on her behalf and seek a continuance. Ardon had never met Yates previously. When Yates arrived, he told Ardon and her family "I know nothing about your case." It appeared that the hearing had been rescheduled due to a government shutdown. However, Respondent was unaware of the rescheduling, and made no effort to ascertain its status.

         On December 18, 2013, Respondent sent Ardon a letter releasing her as a client because of Ardon's failure to make the October and November 2013 payments pursuant to the retainer agreement. The letter also indicates that Respondent was going to withdraw from Ardon's case, but Respondent never entered her appearance with the court. On December 20, 2013, Respondent sent Ardon a letter informing her that Respondent would apply the $185 filing fee towards Ardon's balance. Ardon requested a refund of all of her money, but Respondent failed to refund funds specifically paid to her in trust for the payment of filing fees.

         Expert Witness Testimony

         Petitioner called John F. Gossart, Jr. ("Judge Gossart"), a retired federal immigration Judge, as an expert in immigration law and immigration court procedure. Judge Gossart testified that Respondent's representation of Escalante and Ardon was incompetent. Judge Gossart opined that an Application for Cancellation of Removal is a discretionary one, and while Escalante met the basic requirements under the law, he would need supporting evidentiary documents to demonstrate that removal to Guatemala would result in extreme and unusual hardship to his five children. According to Judge Gossart, the application Respondent filed was bare bones, illegible in parts, and lacked supporting evidence. The hearing judge did not accept Judge Gossart's opinions regarding the merits of Escalante's case, but conceded that the documents Respondent did not file were relevant.

         There was conflicting evidence in Ardon's case regarding her eligibility for relief, because Ardon could not demonstrate seven years of continuous physical presence in this country. Judge Gossart testified that Ardon had provided Respondent with evidence to support an application for Suspension of Deportation. Ardon provided Respondent with bank statements, pay stubs, tax returns, personal references, and her children's school records, among other things, which would have been relevant evidence for such an application. Judge Gossart opined that Respondent's failure to file anything with the immigration court, including a Motion to Continue, an Entry of Appearance, or any supplemental evidence to go forward on Ardon's Application for Suspension of Deportation, reflected incompetence. In Ardon's case, the immigration court would not have been able to notify Respondent that the hearing was going to be postponed because Respondent had not filed an Entry of Appearance.

         Respondent called Ronald Richey ("Richey"), Esquire, to testify on her behalf as an expert in immigration law and immigration court procedure. Richey opined that Respondent's representation of Escalante and Ardon was competent and diligent, but he also provided conflicting testimony. Regarding Escalante, Richey said that he would have filed more supporting documents, not sent a Spanish-speaking client a letter in English, and that an attorney should file a Motion to Reopen a case for a detained client, not ignore the matter. Further, Richey asserted that an attorney could call the immigration court, visit the court, or call a toll free telephone number to inquire about the status of a matter.

         Regarding representation of Ardon, Richey explained that it was not a violation of a standard of care to request a continuance when a client has not provided all the necessary evidence to support her case. However, Richey determined that the evidence Ardon provided to Respondent was relevant.

         Respondent's Testimony

         Respondent's explanation as to why she did not place client funds in a trust account was because she "earned the fees fairly quickly, " and that there were occasions when she could not deposit money in the bank for ten or fifteen days. She testified that she wished she had discontinued Ardon's representation sooner. The hearing judge noted a lack of remorse, and that Respondent was protecting her own self-interest. On cross-examination, Respondent admitted that she has been practicing immigration law for fourteen years. She was familiar with a toll-free telephone system to check on matters, but could not explain why she did not follow up on Escalante's case. When confronted with her failure to inform Escalante of his hearing dates, she blamed him for not returning her calls. Regarding Escalante's new counsel's request for his file, Respondent initially denied receiving the calls, but then blamed Swafford for not stating the reason for her call. Regarding the $500 payment sent by Ardon in October 2013 that Respondent later denied receiving in a letter, Respondent explained that she did not return Ardon's fees because she felt Ardon still owed her money.

         Various friends, colleagues, and associates of Respondent testified on her behalf that she was honest and a good lawyer. None of those witnesses were knowledgeable on the subject of immigration law or Respondent's reputation within the immigration law community, except Yates.


         Based on the aforementioned findings of fact, the hearing judge concluded that the evidence concerning Respondent's representation of Escalante and Ardon established violations of MLRPC 1.1 (Competence), 1.3 (Diligence), 1.4(a) and (b) (Communication), 1.5 (Fees), 1.15(a), (c), and (d) (Safekeeping Property), 1.16(d) (Declining or Terminating Representation), 3.3(a)(1) (Candor Towards the Tribunal), and 8.4(a) and (c) (Misconduct). The hearing judge additionally found violations of former Maryland Rules 16-604 and 16-606.1. The following are summaries of the relevant MLRPC and the hearing judge's reasoning for concluding Respondent violated each part:

         Rule 1.1 Competence

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.

         Respondent violated Rule 1.1 in Ardon's matter by failing to pursue any relief before the immigration court, all while allowing the client to rely on Respondent's representations that she would do so. In both Escalante's and Ardon's matters, Respondent violated Rule 1.1 by sending Yates, a substitute attorney with no knowledge of the matters and no relationship with the clients, on her behalf.

         Rule 1.3 Diligence

         A lawyer shall act with reasonable diligence and promptness in representing a client.

         Respondent violated Rule 1.3 in Escalante's case because she failed to ensure that he was aware of his November 26, 2013, hearing or to file any of his supporting evidence with the court. Respondent further lacked diligence because she failed to file an Entry of Appearance, supporting documentation, witness list, or a Motion to Continue on Ardon's behalf.

         Rule 1.4 Communication

(a) A lawyer shall:
(1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule l.0(f), is required by these Rules;
(2) keep the client reasonably informed about the status of the matter;
(3) promptly comply with reasonable requests for information; and
(4) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Maryland Lawyers' Rules of Professional Conduct or other law.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

         In Escalante's matter, Respondent violated Rule l.4(a) when she failed to keep him reasonably informed about the status of his case, most particularly, the scheduled hearing dates. She failed to promptly comply with reasonable requests for information from Escalante and his partner, Calmo Ramos. Regarding Ardon, Respondent violated Rule 1.4(a) when she failed to keep her reasonably informed regarding the status of her case.

         In Escalante's case, Respondent purportedly sent him letters in English, a language he cannot read or write. Respondent's inclusion in the letter that "[i]f you do not understand this document… it is your responsibility to have it translated" makes clear that Respondent violated Rule l.4(b) when she did not communicate with the client in a manner that allows the client to make an informed decision.

         Rule 1.5 Fees

A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the ...

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