Attorney Grievance Commission v. Alsafty

BELL, C.J. The Attorney Grievance Commission of Maryland, the petitioner, acting pursuant to Maryland Rule 16-751, 1 approved the filing by Bar Counsel of a Petition For Disciplinary or Remedial Action against Mahmoud Alsafty, the respondent. The petition filed by Bar Counsel charged him with misconduct, as defined by Maryland Rules 16 — 701(i), 2 and 16-812, and consisting of violations of various of the Maryland Rules of Professional Conduct, as adopted by the latter Maryland Rule. The petition alleged, in particular, that the respondent violated Rules 1.3, Diligence, 3 1.4, Communication, 4 5.5, Unauthorized Practice of Law, 5 7.1, Communications Concerning a ³ Lawyer’s Services, 6 8.4(b), (c) and (d), Misconduct, 7 of the Maryland Rules of Professional Conduct and Maryland Code (1989, 2000 Replacement Volume) §§ 10-601 and 10-606 of the Business Occupations and Professions Article. 8 We referred ⁴ the case to the Honorable John C. Themelis, of the Circuit Court for Baltimore City, for hearing under Rules 16-752(a) 9 and 16-757(c). 10 Following the hearing, the hearing court found facts and drew conclusions of law. The petitioner did not except to the hearing court’s findings of fact or the conclusions of law with respect to the charged misconduct.

It did except, however, to two findings made, and ⁵ conclusions drawn, by the hearing court, but they were directed at findings made and conclusions drawn in connection with charges that were neither alleged, nor included, in the Petition for Disciplinary or Remedial Action. 11 The petitioner recommends the ultimate sanction, disbarment. The respondent filed respondent’s Exceptions to Findings of Fact and Conclusions of Law and recommendation of Sanction. His exception, in its entirety, states: “Respondent takes exception to the extent that Judge Themelis’ [sic] found that Respondent intentionally violated MRPC 8.4 or any other provision in his finding.” Rather than disharment, his written recommendation is that he be suspended indefinitely from the practice of law, “with the right to reapply to practice law not less than an amount of time that the Maryland Court of Appeals deems appropriate under the circumstances.” The hearing court made findings of fact as follows. The respondent is a member of the New York State Bar.

Although he has taken the Maryland Bar Examination on several occasions, he has not been successful and, therefore, is not authorized to practice law in Maryland. The hearing court found by clear and convincing evidence that the respondent did practice law in Maryland without a license from December 2000 until April 2002. The respondent applied to take the Maryland Bar Examination in March 2001, approximately three months after the date the hearing court determined he had wrongfully begun to practice law in this State. In applying to take the Bar Exam, he stated that he did not have any condition or impairment that affected or could have affected his ability to practice law in a competent and professional manner.

The respondent also ⁶ failed to reveal that he was practicing law in Maryland or had an office for that purpose at 1600 Hanover Street, Baltimore. In response to a letter from a member of the 6th Appellate Circuit Character Committee, he did acknowledge that, “[s]ince by admission to United States District Court on February 23, 2001 to date I represent some indigent clients before the said court.” Being ineligible to take the Maryland Out-of-State Attorneys’ exam, despite his admission to the New York Bar, the respondent was required to take, and did take, the general bar examination. The respondent’s practice consisted of domestic, civil, bankruptcy and immigration cases. 12 He maintained a law office at 1600 South Hanover Street. In three of the windows of that office, in large gold letters, were the words, “Law Offices of Alsafty and Alsafty.” The respondent’s office stationary contained the letterhead, “Law Offices of Alsafty and Alsafty.” In addition, he maintained possession and use of business cards, on which appeared, “Mahmoud Alsafty, ATTORNEY AT LAW, 1600 South Hanover Street, Baltimore, MD 21230 USA; (410) 385-8333, (410) 385-1233, Fax (410) 385-8333; [email protected].” There was no indication on the stationary or the business cards that the respondent’s practice was limited to federal courts.

The respondent’s business cards were displayed and distributed from his office, where the petitioner’s investigator was able to obtain one. They were also apparently displayed and distributed in other places, as well. One of the respondent’s business cards was obtained by a future client at a mosque. ⁷ In light of the availability of the respondent’s business cards at various locations, the hearing court concluded that, given the respondent’s own testimony regarding his knowledge that his sister printed business cards for him, he knew or should have known that they would be circulated, as indeed they were. In addition, the hearing court determined that the respondent’s business cards “included his Bar numbers for New York, Maryland Federal Court, and D.C. Federal Court.” From the foregoing, it concluded: “In this case, Respondent held himself out to be licensed to practice law in Maryland, by use of signs and letterhead that did not adequately advise prospective clients that he was not licensed to practice law in Maryland. [The inclusion of his Bar numbers] was insufficient to avoid giving the impression that he was licensed to practice in Maryland.

The impression it gave was that respondent was admitted to practice law in Maryland and, in addition, in those other courts. It is a common practice to designate the other jurisdictions in which an attorney is licensed to practice in addition to the state where his/her principal offices are located. In addition, the business cards did not specify Respondent’s practice was limited to Federal Courts, nor did he advise clients that he was not licensed to practice law in Maryland.” As a member of the Bar of New York the respondent was able to practice in the federal courts to which he was admitted, even though those courts are outside of New York. He was not, however, admitted to practice before the District Court for the District of Maryland until February 23, 2001, some two months after he began to practice in this State and after he started practicing in the federal court.

Thus, for those two months, the hearing court concluded, the respondent was also “practicing law in Federal Court ... without either a license to do so or the right to do so.” Aside from his legitimate federal practice in the areas of bankruptcy and immigration, the respondent represented clients in divorce actions in state courts located in Baltimore City and Baltimore County and in at least one civil action in ⁸ the District Court of Maryland, sitting in Baltimore City. It was, in fact, as a result of the representation in the latter case, an action against Bank of America, that the complaint giving rise to these proceedings was filed. Counsel for the bank wrote to Bar Counsel to inform him that the respondent, who was representing one Ashan Tahir in an action against the bank, was not a member of the Maryland Bar, a fact that the letter indicated the respondent had confirmed. In addition, Bar Counsel was provided with two letters, signed by the respondent, relating to the litigation with the bank.

Both letters was on stationary with letterhead reading “Law Offices of Alsafty and Alsafty, at 1600 South Hanover Street.” The letter addressed to the bank was signed, “Mahmoud Alsafty, Esquire” and contained a copy of a complaint and an attachment, both of which were signed by the respondent as the attorney for the plaintiff, Mr. Tahir. With regard to the respondent’s divorce practice, he filed pleadings in twenty cases during the applicable time period, nineteen (19) in Baltimore City and one (1) in Baltimore County. Moreover, the respondent appeared before a Baltimore City Domestic Relations Master on several occasions representing clients in uncontested cases, causing her to believe that he was a member of the Maryland Bar. 13 Having obtained the respondent’s card at a mosque, Ashraf Abou-Bakr contacted the respondent in March 2001, and retained him, on behalf of Yasser Ahmed, his nephew, to obtain for Ahmed a labor certification, which would permit Ahmed to work in Abou-Bakr’s restaurants, and which would ultimately result in a green card, ie. permanent alien status. The respondent charged a fee of $2000, of which Abou-Bakr paid, $1000 ($300 up front and an additional $700 before he left for Egypt).

The remainder was paid by Ahmed. Although ⁹ the respondent filed for the labor certification the next month, he failed to advise Ahmed of an option that would expedite the process and save him a year of waiting time and which the respondent had used when representing another of AbouAhmed’s friends. Thereafter, there was little or no contact between the respondent and Ahmed with regard to the labor certification process. The respondent did, however, counsel Ahmed for his manic depression.

When Abou-Bakr inquired about the expedited process, the respondent agreed to pursue it for an additional $500 fee. Although the additional $500 was purportedly necessary for required advertising, the respondent failed to advise either Ahmed or Abou-Bakr that the additional cost would be used for that purpose. Further, he did not apprise them as to the disposition of the $ 2000 he had already received. Abou-Bakr did not agree to the additional fee and discharged the respondent, believing the $ 2000 was to be the only fee.

He did not demand a refund of any of the fee paid, however. The labor certification was eventually obtained by Ahmed, but it would not have been had the respondent not filed for it when he did. The hearing court concluded that the respondent violated each of the rule violations charged, with the exception of Rule 1.3. 14 With respect to Rule 1.4, the hearing court, found that, because there had been little contact between the respondent and Ahmed concerning the labor certification matter and, because the respondent failed to give adequate information to the clients concerning what was required to pursue the expedited labor certification process, it was “satisfied by clear and convincing evidence that Respondent violated [sections (a) and (b)], for failing to keep Abou-Bakr and Ahmed reasonably informed about the status of the matters undertaken, failing to comply with reasonable requests for information, and failure ¹⁰ to explain everything necessary to allow the client to make informed decisions regarding the representation.” The hearing court concluded that “there is clear and convincing evidence that Respondent violated MRPC 8.4(b) by engaging in the unauthorized practice of law in Maryland, and by doing so based on the facts, by clear and convincing evidence, violated MRPC 5.5(a) and BOP § 10-601, a misdemeanor under BOP § 10-606 that reflects on his trustworthiness, honesty, and fitness to practice law.” In addition to the facts it found, the court’s conclusions in this regard were supported by the following analysis: “Respondent explained that he thought that he could practice law if he lived in Maryland, applied for the Maryland Bar, and had a Maryland Federal Bar License, and was licensed in another state, based on a case he read, but he could not remember the name of the case. After Dr. Benedek began treatment and medicated him,[ 15 ] Respon ¹¹ dent could have researched the law and presented the case during the hearing.

He did not, and he did not explain what, if anything, he did to attempt to locate the case. In addition, Respondent used different letterhead depending on the situation. He used his ‘Law Offices’ letterhead when dealing with client matters ..., but used plain or ‘personal’ letterhead when dealing with the Board of Law Examiners.... This Court was not satisfied with the explanations that he gave concerning the different letterheads. “Furthermore, Respondent tried to hide the existence of his law office and practice from the Board of Law Examiners.

In part II (Character Questionnaire) of his Application for Admission to the Bar of Maryland (Petitioner’s exhibit 3), he did not disclose that he had a law practice at 1600 South Hanover Street in question 13(b), at page 10 (employment history for the past five years). He put his last employment as attorney for the law office of Sharyn D’Urso in Connecticut. Also, he did not disclose in his letter to Robinson (Petitioner’s exhibit 6) that he currently had a law office at 1600 South Hanover Street. He said he currently represented some indigent clients in U.S. District Court in Maryland, preceded by his job as an attorney in Connecticut. “If Respondent was truthful when he said he honestly believed he was not doing anything improper, he would have disclosed his law practice to the Board of Law Examiners instead of hiding it.

His argument that he was ignorant of the law simply is not credible. In his letter to Robinson on November 11, 2001 (Petitioner’s exhibit 6), Respondent did not disclose his law practice at 1600 South Hanover Street. This is evidence to support the argument he was fully aware that a lawyer, not admitted to the Maryland Bar, may not practice or attempt to practice law in the State unless duly admitted. See BOP § 10-601.

Respondent says he mailed in his outdated Application to the Bar, the Standard-97 form (Petitioner’s exhibit 4) along with the actual Applica ¹² tion for Admission to the Bar of Maryland (Petitioner’s exhibits 2 and 3), in which he disclosed his law practice at 1600 South Hanover Street. However, the State Board of Law Examiners never received the outdated form, and I did not find his testimony regarding the general application credible. He apparently introduced it as an exhibit to show that in fact he did advise the Bar Examiners that he was practicing law at 1600 South Hanover Street even though that information was not disclosed elsewhere. “There are more inconsistencies in Respondent’s testimony. When this Court asked him if he had drafted any deeds in Maryland, he initially said no.

Later, he testified that he did draft a deed for his mother in which she deeded the 1600 South Hanover Street property back to him, because he did not want to impose upon his friend to draft a second deed for the same property. After admitting that he certified drafting the deed as an attorney, he testified that he thought Federal law applied to land records. This testimony is not credible, because Respondent filed the deed in the land records in the Circuit Court for Baltimore City. In addition, Respondent knew the difference between State and Federal Court, because he stated that he represented indigent clients in matters in Federal Court and divorce cases in State Court, and filed divorces in the Circuit Court for Baltimore City. “Finally, Respondent testified he knew by February 13, 2002 that he was no longer permitted to practice law in Maryland or use letterhead indicating he was authorized to practice law in Maryland, as shown by his letter to Ridgell (Petitioner’s exhibit 11).

However, the evidence presented shows he continued to use the letterhead after February 13, 2002 (his February 21, 2002 letter certifying he drafted the deed for the 1600 South Hanover Street property (attachment to Petitioner’s exhibit 14)), and in his letter of April 5, 2002 to Ahmed (Petitioner’s exhibit 1, attachment 3).” Relying on Attorney Grievance Comm’n v. Harris-Smith, 356 Md. 72 , 737 A.2d 567 (1999), the hearing court found by clear and convincing evidence that the respondent violated ¹³ Maryland Rule of Professional Conduct 7.1. 16 In support, it observed that “[t]he Harris-Smith court held that an attorney has to specifically state that his or her practice is limited to the Maryland and D.C. Federal Courts in all cards, signs, telephone listings, letterhead, and the like, to avoid making false and misleading misrepresentations.” In concluding that the respondent violated Rule 8.4(c), the hearing court relied on Attorney Grievance Comm’n v. Barneys, 370 Md. 566 , 805 A.2d 1040 (2002) and the following analysis: “In this case, Respondent misrepresented that he was authorized to practice law in Maryland by omitting the jurisdictional limitations of his practice on business cards and letterhead. He never told Abou-Bakr or Ahmed that he was not licensed to practice in Maryland. He appeared before Master Pinderhughes on several occasions and neither disclosed to her that he was not licensed to practice law in Maryland nor that he represented both parties in divorce cases. Respondent testified that he did not disclose either because no one asked, and he believed he could represent both parties if he disclosed any conflicts and each agreed.

However, no witnesses were called by him to support his claim. As in Barneys , he does not deny he engaged in the unauthorized practice of law. Further evidence of misrepresentation is Respondent’s omission of his 1600 Hanover Street law practice in the Character Questionnaire section of his Application for Admission to the Bar of Maryland ... and in response to [member of the Character Committee Turhan] Robinson’s letter----” Finally, with regard to the final violation charged, Rule 8.4(d), the hearing court wrote: “In this case, Respondent’s conduct in total was prejudicial to the administration of justice. He filed pleadings and ¹⁴ represented both parties in divorce cases filed, without disclosing so, in the Circuit Courts for both Baltimore City and County, and he [represented] an individual in District Court.

He testified that he did not disclose that he was licensed to practice law in Maryland, because no one asked. He appeared before Master Pinderhughes on several occasions without disclosing that he represented both parties in divorce cases, and he did not disclose to her that he was not licensed to practice law in Maryland. He knew enough to disclose conflicts to the parties, without being asked, from what he learned in Judge Fader’s Family Law class. However, he did not disclose to his clients, to the general public, or to Master Pinderhughes that he was not licensed in Maryland.

He was purposely deceitful and dishonest to the Character Committee. Finally, Respondent did not deny what he did was the unauthorized practice of law, but Respondent argues it was mitigated by his untreated bipolar condition. What Respondent did is prejudicial to the administration of justice, and this Court finds, by clear and convincing evidence, that Respondent violated Rule 8.4(d).” The hearing court addressed, and rejected the respondent’s argument in mitigation, that his conduct was precipitated by, and therefore account should be taken of, the bi-polar disorder from which he was suffering. In rejecting the respondent’s mitigation argument, it reasoned: “Mitigation “In Respondent’s Character Questionnaire in Part II of the Application for Admission to the Bar of Maryland, he certified that he read the Maryland Rules of Professional Conduct, and that he would devote the necessary time to acquainting himself with those standards and ideals (Petitioner’s exhibit 3, question 18(a), page 12).

The Application for Admission to the Bar of Maryland is signed under penalty of perjury. Also, Respondent testified he read the Maryland Rules of Professional Conduct. Ignorance of the Rules is no excuse for his misconduct. See Attorney Grievance Commission of Maryland v. Stein, 373 Md. 531 , 819 ¹⁵ A.2d 372 (2003).

In that case, the Court of Appeals of Maryland held that an attorney has an obligation to know the ethics rules. Id. at 542, 819 A.2d 372 . “Respondent suggests that this Court should consider that his bi-polar II and post-traumatic stress disorders resulting from his torture in 1997 are mitigating factors. However, he discontinued treatment in 1998, and did not resume treatment until the Attorney Grievance Commission started disciplinary proceedings against him in 2002. Furthermore, on February 14, 2001, Respondent stated in his Character Questionnaire (Petitioner’s exhibit 3, question 14(a)(i), page 11) that he did not have any condition or impairment that in any way currently affects or could affect his ability to practice