Attorney Grievance Commission v. Akpan

JOHN C. ELDRIDGE, J., Retired, Specially Assigned. On August 20, 2007, the Attorney Grievance Commission of Maryland, by Bar Counsel, filed in this Court a “Petition For Disciplinary Or Remedial Action” against the respondent, Emmanuel Damascus Akpan. Mr. Akpan was admitted to the Bar of this Court on June 16,1994; he also has been admitted to practice law in several other jurisdictions. He maintains an office for the practice of law in Silver Spring, Maryland.

The Attorney Grievance Commission in the petition alleged that Mr. Akpan, in connection with his representation of Mr. Julius K. Muli, violated several Maryland Lawyers’ Rules of Professional Conduct. Pursuant to Maryland Rules 16-752(a) and 16-757(c), this Court referred the matter to Judge Eric M. Johnson of the Circuit Court for Montgomery County. 1 Judge Johnson’s findings and conclusions, in relevant part, are as follows (footnotes omitted): “Bar Counsel alleges that Mr. Akpan violated MRPC 1.1 (Competence), 1.3 (Diligence), 1.4 (Communication), 1.5(a) (Fees), 1.16(d) (Declining or Terminating Representation), and 8.4(c),(d) (Misconduct). ²⁸⁰ “On December 21, 2007, this matter was heard in the Circuit Court for Montgomery County, before Judge Eric M. Johnson. At the conclusion of the hearing, this Court dictated into the record a statement of its findings of fact and conclusions of law with respect to alleged violations of MRPC 1.1 (Competence), 1.3 (Diligence), and 1.5(a) (Fees), finding no violation of those rules of professional conduct. “The only issues that remain are the alleged violations of MRPC 1.4 (Communication), 1.16(d) (Declining or Terminating Representation), and 8.4(c),(d) (Misconduct). “Mr. Akpan, a member of the Maryland Bar since June 16, 1994, represented Mr. Muli commencing on or about January 10, 2006. Mr. Akpan’s retainer agreement states that Mr. Akpan’s law firm will represent Mr. Muli ‘at the second interview for obtaining [permanent] residence.’ The interview was to be conducted by the Citizenship and Immigration Service (CIS) of the United States Department of Homeland Security, and its purpose was to discuss the adjustments of Mr. Muli’s immigration status and his application for permanent residence. “Although Mr. Akpan wrote to CIS for a postponement of the interview, no postponement occurred and neither he nor Mr. Muli appeared.

Subsequently, Mr. Muli was placed in removal proceedings. A trial in Immigration Court was scheduled for June 21, 2006. “Mr. Muli notified Mr. Akpan that he had been placed in removal proceedings and met with Mr. Akpan on March 22, 2006. Mr. Akpan explained to Mr. Muli the nature of removal proceedings. Since Mr. Muli was not given a second interview, Mr. Akpan discussed with Mr. Muli the need to file a new 1-130 Application for Alien Relative in order, to obtain that second interview.

Even though the January 10, 2006, retainer agreement may not have contemplated the filing of an 1-130 petition (because one had been filed prior to Mr. Akpan’s involvement in the case), Mr. Akpan filed the petition, ²⁸¹ signed by Ms. Boone, Mr. Midi’s wife, on or about April 4, 2006. Mr. Akpan testified that the representation he provided after March 22, 2006, with respect to re-filing the 1-130 petition was covered by his initial retainer agreement of January 10, 2006. “On June 21, 2006, neither Mr. Muli nor Mr. Akpan attended the removal proceedings. Although Mr. Akpan advised Mr. Muli in preparation for the removal proceedings and talked about attending the removal proceedings together with Mr. Muli, Mr. Akpan claims that he did not represent Mr. Muli in the removal proceedings. He notes that the retainer agreement, signed on January 10, 2006, states, inter alia, ‘this fee does not include professional services in connection with administrative or court review....’ Mr. Akpan testified that Mr. Muli neither retained him nor executed a retainer agreement for that service. “Mr. Akpan had expressed to Mr. Muli the importance of Mr. Muli’s appearance at the removal proceeding; however, Mr. Muli did not attend because he mis-calendared the date and relied upon Mr. Akpan to notify him of the trial date based on the assumption that Mr. Akpan would be representing him with respect to the removal proceedings. * ❖ * “Maryland Rule 16-757(b) provides that ‘[t]he petitioner has the burden of proving the averments of the petition by clear and convincing evidence.’ “I. No attorney-client relationship existed with respect to the removal proceedings before the Immigration Court. “The Restatement (Third) of the Law Governing Lawyers addresses the formation of an attorney-client relationship as follows: ‘A relationship of client and lawyer arises when: ‘(1) a person manifests to a lawyer the person’s intent that the lawyer provide legal services for the person; and ... ²⁸² ‘(b) the lawyer fails to manifest lack of consent to do so, and the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide the services .... ’ While an attorney-client relationship existed with regards to services relating to securing a second interview as evidenced by the January 10, 2006, retainer agreement, there is insufficient evidence to support the existence of an attorney-client relationship arising out of Mr. Akpan’s alleged representation at the removal proceedings on June 21, 2006.

While the record is replete with assumptions that Mr. Muli made with respect to Mr. Akpan’s alleged representation at the removal proceedings, scant, if any, testimony supports the assertion that Mr. Muli manifested to Mr. Akpan his intent that Mr. Akpan provide legal services with respect to the removal proceedings. Thus, the Court does not find an attorney-client relationship existed with respect to the removal proceedings by clear and convincing evidence. “II. Communication “MRPC 1.4 states that ‘[a] lawyer shall: ... (2) keep the client reasonably informed about the status of the matter----’ ‘A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.’ “Mr. Akpan did not promptly inform his client of the scope of his representation when Mr. Akpan became aware of Mr. Muli’s removal proceedings.

After becoming aware of Mr. Muli’s removal proceedings, Mr. Akpan took steps to secure Mr. Muli with a second interview by re-filing the 1-130 petition. Mr. Akpan did not inform Mr. Muli that he was not representing Mr. Muli with respect to the removal proceedings, as he should have. Even though Mr. Akpan had the basis to believe that Mr. Muli had not engaged him for the purpose of pursuing his interest in the Immigration Court, he nevertheless violated Rule 1.4(a) and (b) as he communicated to Mr. Muli ... information which led Mr. Muli to incorrectly ²⁸³ assume that he would be represented when such was not the case. “III. Misconduct. “MRPC 8.4 states that ‘[i]t is professional misconduct for a lawyer to ...

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation [and] (d) engage in conduct that is prejudicial to the administration of justice.’ There is no evidence that Mr. Akpan engaged in conduct involving any dishonesty, fraud, deceit or misrepresentation. However, Mr. Akpan’s failure to comply with MRPC 1.4 in his failure to communicate with his client is conduct that was prejudicial to the administration of justice under subsection (d). Mr. Akpan’s failure to clarify and define the scope of his representation left Mr. Muli to assume that Mr. Akpan was going to represent Mr. Muli at the removal proceedings and that Mr. Akpan was going to inform Mr. Muli of the June 21, 2006, trial date. Mr. Akpan’s conduct in failing to properly communicate the scope of his representation resulted in Mr. Muli’s failure to appear at the removal proceeding.

Although Mr. Muli admits that he did not appear for the removal proceedings due to his oversight, he relied on Mr. Akpan to inform him of the trial date because he incorrectly assumed that Mr. Akpan was representing him in that matter. “IV. Declining or Terminating Representation “MRPC 1.16(d) states that ‘[ujpon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred.’ There is no evidence that Mr. Akpan’s representation of Mr. Muli with respect to the January 10, 2006, retainer agreement terminated. Mr. Akpan testified that the re-filing of the 1-130 petition after Mr. Muli received the Notice to Appear was a continuation of the services under that retainer agreement. Further, ²⁸⁴ it was Mr. Muli’s belief that Mr. Akpan’s representation continued and extended to his removal proceedings.

Therefore, the allegation that Mr. Akpan violated MRPC 1.16(d) is without merit. “For the reasons set forth in this opinion, the Court finds that Mr. Akpan violated MRPC 1.4 and 8.4(d), but did not violate MRPC 1.1,1.3,1.5(a), 1.16(d), or 8.4(c).” The Attorney Grievance Commission filed no exceptions to Judge Johnson’s findings and conclusions. The Commission did point out, in its recommendation to this Court regarding the appropriate sanction, that Mr. Akpan had previously been reprimanded in May 2004 pursuant to Maryland Rule 16-737. 2 Based on Judge Johnson’s determination that Mr. Akpan violated Rules 1.4 and 8.4(d) of the Maryland Lawyers’ Rules of Professional Conduct, and considering the prior reprimand, the Attorney Grievance Commission has recommended that Mr. Akpan be reprimanded by this Court. Mr. Akpan filed seven exceptions to Judge Johnson’s findings and conclusions, arguing that particular findings, and the ²⁸⁵ conclusions resulting therefrom, were “unsupported by clear and convincing evidence” and were “clearly erroneous.” Mr. Akpan has recommended that “this Court should dismiss the disciplinary action.” The first of Mr. Akpan’s exceptions is that Judge Johnson’s “findings of facts are unsupported by clear and convincing evidence because the trial court reached its findings without independent expert testimony in the practice of immigration law.” Mr. Akpan complains: “Bar Counsel failed to present an expert in immigration law and the trial court refused to hear