Attorney Grievance Commission v. Heung Sik Park

PER CURIAM. On May 8, 2009, Petitioner, Attorney Grievance Commission, acting through Bar Counsel, filed with this Court a Petition for Disciplinary or Remedial Action against Respondent, Heung Sik Park. The petition alleged violations of the Maryland Lawyers’ Rules of Professional Conduct (MLRPC) arising out of Respondent’s representation of Chae Hong Min and his wife, Kyung Min, in the filing of an Application for Permanent Residence Status, an Application for Employment Authorization, and other immigration-related services. The petition charged Respondent with violating MLRPC 1.1 (competence); 1 1.3 (diligence); 2 1.4 (communication); 3 1.16 (de ¹⁸³ dining or terminating representation); 4 8.1 (bar admissions and disdplinary matters); 5 and, 8.4 (misconduct). 6 ¹⁸⁴ We issued an order, in accordance with Rule 16-752(a), 7 designating the Honorable John Hennegan of the Circuit Court for Baltimore County to hear evidence on the matter and issue findings of fact and conclusions of law.

After several unsuccessful attempts by Petitioner to obtain personal service on Respondent, a copy of our order, Bar Counsel’s petition, and a writ of summons issued by the hearing judge were delivered to an employee designated by the Client Protection Fund of the Bar of Maryland to act as Respondent’s agent for receipt of service, pursuant to Rule 16-753. 8 When Respondent subsequently filed no answer or response to the petition, Petitioner moved for an Order of Default. The hearing judge granted the order on October 22, 2009 and sent a Notice of Default to Respondent on November 6, 2009. Respondent filed nothing in response. On December 11, 2009, the court conducted a hearing on the matter.

Respondent did not appear at the hearing. Pursuant to Rule 2-323(e), 9 all averments in Bar Counsel’s petition were ¹⁸⁵ deemed admitted. Petitioner also offered into evidence the testimony of William M. Ramsey, an investigator it employed; Kyung Min, Respondent’s former client; and a binder of documents relating to the representation. Respondent, not present, offered no evidence.

Following the hearing, Judge Hennegan found by clear and convincing evidence that Respondent had violated MLRPC 1.1, 1.3, 1.4,1.16, 8.1, and 8.4. I. Judge Hennegan made a number of findings of fact, which we summarize as follows: On or about May 25, 2007, Respondent was retained by Chae Hong Min and his wife, Kyung Min, to file, on Mrs. Min’s behalf, applications for permanent residence status, employment authorization, and other immigration benefits. Respondent charged a flat fee of $1,200, plus $1,365 for application costs, which the Mins paid on or about May 25, 2007. Respondent notified the Mins in June 2007 that their applications were complete, and, shortly thereafter, the Mins executed the applications.

In July 2007, Respondent communicated to Mrs. Min that there were no issues with the applications. Mrs. Min received a notice from immigration authorities on or about September 7, 2007. She attempted to contact Respondent, but was unable to speak to him until sometime in October 2007. In October 2007, Respondent told Mrs. Min that she would receive her work permit within 30 days.

Mrs. Min did not receive her permit. Additionally, Respondent received a request for information from immigration authorities on October 11, 2007. Respondent did not inform the Mins about the request for information and he did not respond to the request. ¹⁸⁶ The Mins received another notice from immigration authorities in February 2008, and they spoke to Respondent on or about February 14, 2008. Respondent promised to contact the immigration authorities and update the Mins on the status of their applications.

He did not follow through on his promise. The Mins were unable to contact Respondent again until March 2008, despite leaving phone messages and calling a second phone number Respondent had provided to them, but that number was not in service the following day. When Mr. Min spoke to Respondent in March 2008, Respondent said that he was having personal problems, but would contact the Mins and provide more information about the case. Respondent did not provide the requested information.

The Mins made several subsequent attempts to communicate with Respondent, through telephone message and a visit to Respondent’s office in person, during regular business hours. At that visit, they were informed by an employee of a nearby office that Respondent was rarely in his office. 10 Despite these efforts, Respondent did not respond to the Mins. Mrs. Min eventually filed a Freedom of Information Act (FOIA) request to obtain her applications’ Notice of Decision. The notice informed Mrs. Min that her applications were denied because the requested information had not been forthcoming.

Mr. Min filed a complaint with Bar Counsel, which was received on or about June 13, 2008. Bar Counsel sent Respondent notice of the complaint and a request for written responses within fifteen days of June 17, 2008. In a letter dated July 10, 2008, Respondent wrote that his personal troubles and severe depression caused him not to follow up with the Mins’ representation. Respondent also included some, but not all, of the immigration documents relating to the representation.

Respondent wrote that he could not locate the remaining documents and indicated he would continue to respond to the complaint. ¹⁸⁷ Bar Counsel sent Respondent a second letter on or about July 25, 2008, indicating that the case had been docketed and asking how long Respondent would need to complete his response. Respondent did not respond to this letter. Bar Counsel sent a third letter to Respondent on August 8, 2008, which indicated that Mr. Min had requested additional information regarding his case. Bar Counsel asked Respondent to provide the requested information within ten days of the letter.

Respondent, again, did not respond to this letter. Bar Counsel’s attempts to contact Respondent through its investigator, William M. Ramsey, were unsuccessful. Investigator Ramsey visited Respondent’s office and home and left business cards in Respondent’s home’s door and mailbox, but Respondent did not respond. Investigator Ramsey was unable to contact Respondent on the telephone.

Based on the foregoing facts, the hearing judge drew, by clear and convincing evidence, the following conclusions of law: Petitioner alleged that the following Maryland Lawyers’ Rules of Professional Conduct, (MLRPC), were violated by Respondent: 1.1, dealing with competence; 1.3, dealing "with diligence; 1.4, dealing with communication with the client; 1.16, dealing with the termination of the representation; 8.1(b), dealing with responding to a disciplinary authority, and 8.4(d), dealing with conduct prejudicial to the administration of justice. For the reasons set forth below, there is clear and convincing evidence to find that each of these rules was violated. A. Rule 1.1. Competence MLRPC 1.1 provides that: A lawyer shall provide competent representation to a client.

Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. The evidence established that the applications prepared and filed by Respondent were incomplete and that, even though he was notified by the U.S.C.I.S. that additional information was necessary, he failed to act in a timely ¹⁸⁸ manner to provide the additional information requested and complete the process. There is clear and convincing evidence that Respondent failed to demonstrate the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation of the Mins, in violation of MLRPC 1.1. B. Rule 1.3.

Diligence MLRPC 1.3 provides that: A lawyer shall act with reasonable diligence and promptness in representing a client. There is clear and convincing evidence that the same conduct which violated MLRPC 1.1 establishes a violation of MLRPC 1.3. Respondent violated MLRPC 1.3 when he failed to act with reasonable diligence and promptness when he ignored the U.S.C.I.S.’s efforts to obtain additional information and failed to take the steps necessary to complete the application process. Respondent also violated MLRPC 1.3 when he failed to act with reasonable diligence and promptness in keeping the client advised of the progress of the applications and in responding to his client’s efforts to obtain formation about the case.

C. Rule 1.4. Communication MLRPC 1.4(a) provides that: 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 1.0(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. The evidence established that Respondent failed to promptly inform his client of the request for additional ¹⁸⁹ information sent to him on or about October 11, 2007. Further Respondent failed to inform them that they had 87 days to submit the additional information.

Additionally he neglected to inform them that the Application to Register Permanent Residence or Adjust Status had been denied on or about April 3, 2008. Respondent also failed to promptly comply with Mrs. Min’s reasonable requests for information, failed to inform the Mins that he was closing his office and did not provide a working telephone number where he could be contacted. This conduct constitutes clear and convincing evidence that Respondent violated MLRPC 1.4(a). D. Rule 1.16.

Declining or Terminating Representation. MLRPC 1.16(d) provides 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. The lawyer may retain papers relating to the client to the extent permitted by other law. In representing the Mins in this matter, Respondent charged a flat fee to complete Mrs. Min’s immigration applications.

He terminated the representation when he abandoned the representation, failed to provide all necessary services, and failed to keep the clients informed concerning the representation or his location. Respondent then failed to refund the unearned portion of the prepaid fee and failed to return papers to which the clients were entitled. There is clear and convincing evidence that Respondent violated MLRPC 1.16(d). See, e.g., Attorney Grievance Commission v. Tinsky, 377 Md. 646 , 835 A.2d 542 (2003) (holding that an attorney’s failure to notify his client of the closing of his office, taking a fee "without appearing at trial and his disappearance while his client’s cases were pending violated MLRPC 1.16(d)) and Attorney Grievance Commission v. McCulloch, 404 Md. 388 , 946 A.2d ¹⁹⁰ 1009 (2008) (holding that MLRPC 1.16(d) was violated when an attorney completed only a portion of the work required by the client, did not achieve the client’s objectives, kept the entire fee and failed to refund the unearned portion of the fee).

E. Rule 8.1. Bar Admission and Disciplinary Matters. MLRPC 8.1(b) provides that: An applicant for admission or reinstatement to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this Rule does not require disclosure of information otherwise protected by Rule 1.6. Respondent was sent letters on July 25 and August 8, 2008 by Assistant Bar Counsel.

Respondent was asked in both of these letters to respond. Respondent ignored these requests. Respondent also failed to respond to investigator Ramsey’s attempts to set up a meeting to discuss the complaint. Based on these facts, there is clear and convincing evidence that Respondent violated MLRPC 8.1(b).

See Attorney Grievance Commission v. Fezell, 361 Md. 234, 253 , 760 A.2d 1108, 1118 (2000) (holding that letters from Bar Counsel constitute lawful demands for information pursuant to MLRPC 8.1(b)), and Attorney Grievance Commission v. Hallmon, 343 Md. 390, 407-08 , 681 A.2d 510, 519-20 (1996) (holding that refusal to meet with an Assistant Bar Counsel about a complaint violated MLRPC 8.1.). F. Rule 8.4(d) Misconduct. MLRPC 8.4(d) provides that it is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice. Conduct that reflects negatively on the legal profession and sets a bad example for the public at large is prejudicial to the administration of justice.

At ¹⁹¹ torney Grievance Commission v. Goff, 399 Md. 1, 22 , 922 A.2d 554, 566 (2007). Respondent failed to keep his clients informed, failed to diligently pursue the clients’ immigration applications, abandoned the representation and failed to refund the unearned portion of the prepaid fee. Respondent also failed to respond to two or more lawful demands for information from Bar Counsel’s office. There is clear and convincing evidence that such conduct is likely to negatively impact the public’s perception of the legal profession and be prejudicial to the administration of justice in violation of MLRPC 8.4(d).

See, e.g., Attorney Grievance Commission v. Tinsky, 377 Md. 646 , 835 A.2d 542 (2003) ([holding that] an attorney engaged in conduct prejudicial to the administration of justice is in violation of MLRPC 8.4(d) when, after undertaking the representation of a client in two matters and having performed pursuant to that undertaking, the attorney, in effect, abandoned the representation); Attorney Grievance Commission v. Mooney, 359 Md. 56, 82 , 753 A.2d 17, 41 (2000) (holding that failure to represent a client in an adequate manner violated MLRPC 8.4(d)); Attorney Grievance Commission v. Singleton, 315 Md. 1, 7-8 , 553 A.2d 222, 224 (1989) ([holding that] a lawyer’s neglect and lack of competence constituted conduct prejudicial to the administration of justice).

II

This Court has original and complete jurisdiction over attorney discipline proceedings in Maryland. In our independent review of the record, we accept the hearing judge’s findings of fact as prima facie correct unless shown to be clearly erroneous, and we review de novo the hearing judge’s conclusions of law.