Attorney Grievance Commission v. Brisbon

MURPHY, J. Brenda C. Brisbon, Respondent, was admitted to the Maryland Bar on December 20, 1977, and was indefinitely suspended from the practice of law on March 17, 2005. Attorney Grievance Commission v. Brisbon, 385 Md. 667, 676 , 870 A.2d 586, 591 (2005). On August 23, 2010, the Attorney Grievance Commission of Maryland, Petitioner, filed a PETITION FOR DISCIPLINARY OR REMEDIAL ACTION against Respondent. On August 24, 2010, this Court ordered that the charges against Respondent “be heard and determined by ⁶²⁹ Judge Charles J. Peters, of the Eighth Judicial Circuit [the Hearing Judge], in accordance with 16-757[.]” The Hearing Judge filed “FINDINGS OF FACT AND CONCLUSIONS OP 1 LAW” in which he concluded that Respondent “engaged in the unauthorized practice of law [i]n acting as an ‘immigration consultant’ for [Mr. Kobina Nkrumah, and his wife, Nicole Smoot-Nkrumah],” and, as a result, “violated Maryland Lawyers’ Rules of Professional Conduct [ (MRPC) ] 1.1, 1.4, 1.5, 5.5, and 8.4(a), (b), (c) and (d).” Respondent noted seven EXCEPTIONS to the Hearing Judge’s findings and conclusions.

Three exceptions complain that the Hearing Judge’s findings and conclusions did not include any discussion of (1) Respondent’s background, (2) the fact that there were two “immigration consultant” signs outside Respondent’s office, and (3) the fact that Respondent used a computer program to complete the immigration forms that she prepared for Mr. and Mrs. Nkrumah. Two exceptions complain that the Hearing Judge made erroneous factual findings. Two exceptions involve Respondent’s assertion that (in the words of her Exceptions), “Bar Counsel failed to show by clear and convincing evidence that [Respondent] committed unauthorized practice of law.” For the reasons that follow, we shall overrule each of Respondent’s exceptions, and order that she remain suspended indefinitely from the practice of law. Background MRPC 1.1, in pertinent part, states that a lawyer “shall provide competent representation to a client.” MRPC 1.4(a)(4), in pertinent part, states that a lawyer “shall 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.” MRPC 1.5(a), in pertinent part, states that a lawyer “shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses.” MRPC 5.5(a), states that “a lawyer shall not practice law in a jurisdiction in violation of the ⁶³⁰ regulation of the legal profession in that jurisdiction, or assist another in doing so.” MRPC 8.4, in pertinent part, provides: It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Maryland Lawyers’ Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; (b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects; (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) engage in conduct that is prejudicial to the administration of justice[.] The record includes the following “STIPULATIONS OF FACT” signed by the Respondent, Respondent’s hearing counsel, and Bar Counsel: The Petitioner, the Attorney Grievance commission of Maryland, by its attorney, Gail D. Kessler, and the Respondent, Brenda C. Brisbon, through her attorney, [ ], stipulate that the following facts are true: 5.

That since Respondent was indefinitely suspended on March 17, 2005, she has not been reinstated to the Maryland State Bar or admitted to any State Bar. 6. On June 20, 2008, Kobina Nkrumah met with the Respondent at her office in Baltimore City 7. On June 20, 2008, Respondent accepted a $100.00 fee for her consultation with Kobina Nkrumah about handling Mr. Nkrumah’s immigration matter. 8. Respondent never told Mr. Nkrumah and/or Mrs. Smoot[-]Nkrumah that she was not admitted to the Maryland State Bar and could not practice law. ⁶³¹ 9.

Respondent never told Mr. Nkrumah and/or Mrs. Smoot[-]Nkrumah that she was not admitted to any Bar. 10. Mr. Nkrumah and Mrs. Smoot-Nkrumah paid Respondent $1,200.00 to handle Kobina Nkrumah’s immigration matter. 11. Respondent gave Kobina Nkrumah a July 2008 receipt for payment of $600.00. That receipt identified the Respondent as an attorney.

July 11, 2008 receipt attached hereto and incorporated herein as exhibit number 3. 12. At one of Respondent’s meetings with Mr. Nkrumah and/or Mrs. Smoot-Nkrumah, she gave them a document titled “Additional Documents Needed for Adjustment of Status (Form I-485)[.”] Document titled “Additional Documents Needed for Adjustment of Status[”] (Form 1-485) attached hereto and incorporated herein as exhibit number 4. 13. The handwriting titled “Additional Documents Needed for Adjustment of Status” (Form 1-485) marked exhibit number 4 herein, is Respondent’s handwriting. 14. Mr. Nkrumah and Mrs. Smoot-Nkrumah gave Respondent two money orders totaling $1,365.00 to be submitted with their application forms to The Department of Homeland Security, United States Citizenship and Immigration Services.

The two money orders totaling $1,365.00 are attached hereto and incorporated herein as exhibit number 5. 15. Respondent prepared Mr. Nkrumah and Mrs. SmootNkrumah’s application forms that were submitted to The Department of Homeland Security, United States Citizenship and Immigration Services. Mr. Nkrumah and Mrs. Smoot-Nkrumah’s application forms are attached hereto and incorporated herein as exhibit numbers 6, 7, 8, 9, and 10 herein. 16. Respondent submitted Mr. Nkrumah and Mrs. SmootNkrumah’s application forms, marked exhibit numbers ⁶³² 6, 7, 8, 9, and 10 herein to The Department of Homeland Security, United States Citizenship and Immigration Service along with her letter dated July 15, 2008.

Respondent’s letter dated July 15, 2008 attached hereto and incorporated herein as exhibit number 11. 17. Respondent agreed to represent Mr. Nkrumah and Mrs. Smoot-Nkrumah at their January 22, 2009 interview/meeting with The United States Citizenship and Immigration Services. Request for Applicant to Appear for Initial Interview attached hereto and incorporated herein as exhibit number 12. 18. Respondent failed to appear at Mr. Nkrumah and Mrs. Smoot-Nkrumah’s January 22, 2009 scheduled interview/meeting with The United States Citizenship and Immigration Services.

She had been admitted to the hospital the day before the scheduled meeting, and was not discharged until January 26, 2009. The Hearing Judge’s FINDINGS OF FACT AND CONCLUSIONS OF LAW included the following findings and conclusions: The Court finds the following facts have been established by clear and convincing evidence: 7. In 2006 or 2007, the Respondent opened an office as an “Immigration Consultant at 228 East 25th Street, First Floor, Baltimore, Maryland 21218. On the Respondent’s “Immigration Consultant” stationary, the Respondent listed the same telephone number, (410) 467-3833, and facsimile number, (410) 467-1165, used by the Respondent for her law practice ...

The Respondent also produced business cards listing: BRENDA C. BRISBON, P.A. Immigration Consultant Although the Respondent used the title of “Brenda C. Brisbon, P.A.,” she was unable to state whether or not her professional association was still in existence in 2008. ⁶³³ 8. Other than chance observations by the Respondent of two unidentified men who claimed to be immigration consultants, the Respondent failed to take any steps to familiarize herself with the legal limitations and duties of an immigration consultant. The Respondent was not familiar with the Maryland Immigration Consultant Act (“MICA”), §§ 14-3301 to -3306 of the Commercial Law Article. The Respondent worked as an immigration consultant for clients other than the Complainant in this case.

The number of clients, however, was never provided to the Court. As part of her duties as an immigration consultant, the Respondent testified that she would fill out forms, assist clients in filling out forms, and submit the completed forms to the United States Citizenship and Immigration Services (“USCIS”). 9. On June 20, 2008, Kobina Nkrumah (“Nkrumah” or “Mr. Nkrumah”) met with the Respondent at her office located at 228 East 25th Street, First Floor, Baltimore, Maryland 21218. At that meeting the following occurred: a.

Nkrumah advised the Respondent that he had recently married an American citizen and that he wanted his new wife to sponsor him for status as a permanent resident in the United States. According to Respondent, Nkrumah’s case presented a “potential difficulty,” as Nkrumah had made the same request to the USCIS on a previous occasion based on an earlier marriage to another American Citizen. b. The Respondent agreed to fill out the necessary forms for this process and submit the forms to the USCIS. The Respondent provided Mr. Nkrumah with a list entitled “Additional Documents Needed for Adjustment of Status (Form 1-285)”...

The Respondent also wrote information about fee on this list. c. Nkrumah and the Respondent agreed that the fee for these services would be $1,000. The Respondent charged Nkrumah $100 as an initial consultation fee. No written contract or agreement was ever executed. d.

The respondent filled out a form entitled “Initial Consultation Sheet” with the following heading: ⁶³⁴ Law office of BRENDA C. BRISBON, P.A. The Court does not find that this form was shown to Mr. Nkrumah. The Form shows that the Respondent engaged in an extensive interview with Mr. Nkrumah and obtained significant personal and legal information, including Mr. Nkrumah’s marital status and employment history, as well as the history of any prior immigration filings. 10. On July 11, 2008, Mr. Mkrumah and his wife, Nicole Smoot-Nkrumah, met with th Respondent. At that meeting, the following occurred: a.

The respondent prepared the following forms: (1) 1-130, Petition for Alien Relative ... (2) 1-485, Application to Register Permanent Residence or Adjust Status ... (3) 1-765, Application for Employment Authorization ... (4) G-325A, Biographic Information for both Mr. Nkrumah and Mrs. Smoot-Nkrumah ...

(5) 1-864, Affidavit of Support Under Section 213A of the Act ... Although the 1-130, 1-485, and 1-765 forms had signature lines for the “person preparing” such forms, the Respondent failed to sign any of the forms or note that she prepared the forms. Although the Respondent testified that these omissions were an “oversight,” the Court does not find her testimony credible. The court finds that an oversight may have been failing to sign one form but not failing to sign all of the forms. b.

The Nkrumahs provided the Respondent with two money orders in the total amount of $1365 payable to the USCIS to cover the filing fees ... c. The Respondent agreed to accompany the Nkrumahs to their interview with the United States Immigration Officer for an additional fee of $200. ⁶³⁵ d. The Nkrumahs paid the Respondent $600, and the Respondent gave them a receipt for the payment ... The receipt was signed by the respondent and had the following heading: LAW OFFICE OF BRENDA C. BRISBON 22 EAST 25TH STREET Baltimore, MD 21218 TEL.

(410) 467-3833 FAX: 410 467-1165 On the same date, prior to this meeting, the Respondent received in the mail a letter from a health insurance company ... denying the Respondent health insurance coverage. The letter included laboratory results indicating that the Respondent was (gravely ill]. The Respondent was emotionally distraught after the receipt of this information. Nonetheless, the Respondent decided to go ahead with the meeting with the Nkrumahs. 11.

On July 15, 2008, the Respondent sent to the Nkrumahs by facsimile an “I 864A, Contract Between Sponsor and Household Member” ... The facsimile copy shows that the form had been sent “FROM THE LAW OFFICE, BRENDA BRISBON PHONE NO.:4104673833 Jul. 15 2008 02:14 P.M.” The I-864A form sent by facsimile was executed by the Nkrumahs and then returned to the Respondent. The executed form was located in the Respondent’s office file. 12. On or about July 22, 2008, the Respondent filed with the USCIS the documents she prepared on behalf of the Nkrumahs ...

With these documents, she also submitted a cover letter, which identified the Respondent as an immigration consultant. She did not copy that letter to the Nkrumahs, nor was there testimony that she gave the Nkrumahs a copy of that letter. 13. On or about August 1, 2008, the Respondent sent a letter to Mr. Nkrumah stating that there had been “difficulties regarding the Form 1-765 (Application for Employment Authorization)”... The first Form 1-765 submitted by the ⁶³⁶ Respondent was outdated, and the Respondent enclosed a current version of Form 1-765.

The Respondent prepared the form, but once again, she failed to sign the form as the preparer. Respondent’s letter further explained to Mr. Nkrumah that there was no additional filing fee required and requested that the form be mailed directly to USCIS. The Respondent’s letter was not on her Immigration Consultant letterhead. The Court finds that the Respondent never gave the Nkrumahs any document that would have identified the Respondent as an immigration consultant. 14.

On or about October 22, 2003, the Respondent, as stated on “Status Notes and Communications” in Respondent’s office file ... called Mr. Nkrumah, and Mr. Nkrumah stated that he would send the Respondent a check for $300. The Respondent noted that the balance due as of that date was $600 for a total fee of $1200. This fee included the $200 charge for the Respondent’s attendance at the Nkrumahs’ interview with the United States Immigration Officer. 15. On or about October 27, 2008, the Nkrumahs received from the USCIS a “Request for Applicant to Appear for Initial Interview” scheduling the interview for December 18, 2008 ...

On or about November 13, 2008, the interview was cancelled by the USCIS. 16. On or about November 26, 2008, the Nkrumahs received another “Request for Applicant to Appear for Initial Interview” rescheduling the interview for January 22, 2009 ... The Respondent was notified of this date. It is noted on the “Request for Applicant to Appear for Initial Interview” that the Nkrumahs could be accompanied by an “attorney or authorized representative.” The Respondent testified that although she believed that this was a “gray area,” she believed that she could accompany the Nkrumahs as an authorized representative.

Under federal regulations, a person appearing before the USCIS may only be “represented by an attorney in the United States ..., an attorney outside of the United states ..., or an accredited representative.” 8 C.F.R. § 103.2 (a)(3). An accredited representative is defined as “[a] person representing an organization ⁶³⁷ described in [8 C.F.R. §] 292.2,” 8 C.F.R. § 292.1 (a)(4), which is “a non-profit religious, charitable, social service or similar organization established in the United States and recognized as such by the Board [of Immigration Appeals],” 8 C.F.R. § 292.2 (a). The Respondent did not qualify as an accredited or authorized representative. The Court finds that the Respondent’s testimony about a “gray area” was not credible.

The Court finds that the Respondent, having practiced exclusively as an immigration lawyer for over ten years with approximately 2000 clients, would have been aware of the federal regulations governing such proceedings. The Respondent further testified that, in retrospect, her decision to agree to attend the interview was a “huge mistake.” This Court finds that this statement was merely a post hoc characterization to disguise the Respondent’s decision to attend the interview knowing that, as a suspended attorney, she was not authorized to attend. 17. The Respondent agreed to represent the Nkrumahs at their January 22, 2009, interview with the USCIS in Fair-fax, Virginia. The Respondent, however, failed to appear at the Nkrumah’s interview on January 22, 2009, because she was admitted to the hospital the day before the interview and was not discharged until January 26, 2009. 18.

On or about January 25, 2009, the Respondent received a telephone call from the Nkrumahs, who were enraged by the failure of the Respondent to attend the interview. The Respondent testified that, at some point, she met with the Nkrumahs and offered to refund the fee she received from them. The Respondent testified, however, that the Nkrumahs told her to keep the money. The Court does not find this testimony credible. 19.

As stipulated by the parties, the Respondent never told the Nkrumahs that she was not currently admitted to the Maryland State Bar and could not practice law. Although the Court finds that the Respondent was, at the very least, grossly negligent in her use of stationery and a facsimile transmission listing the Respondent as an attorney over three years after her suspension, because the Nkrumahs did ⁶³⁸ not testify and the Petitioner did not offer the testimony of any other client of the Respondent, this Court cannot find by clear and convincing evidence that the Respondent affirmatively represented herself as an attorney to the Nkrumahs. Conclusions of Law C. Respondent engaged in