Attorney Grievance Commission v. Jaseb

⁴⁶⁸ BATTAGLIA, Judge. The Attorney Grievance Commission, acting through Bar Counsel, filed a petition for disciplinary action against Setareh R. Jaseb (Respondent), alleging violations of the Maryland Rules of Professional Conduct. The Commission (Petitioner), acting through Bar Counsel, charged Respondent with violating Rules 3.3 (Candor Toward the Tribunal), 4.1 (Truthfulness in Statements to others), 5.3 (Responsibilities Regarding Non-lawyer Assistants), 8.4(c) and (d) (Misconduct), and 8.1(a) (Bar Admission and Disciplinary Matters). Pursuant to Maryland Rule 16-709 et seq., we referred the charges to Judge Martha G. Kavanaugh of the Circuit Court for Montgomery County to conduct a hearing and make findings of fact and conclusions of law.

After conducting an evidentiary hearing, Judge Kavanaugh concluded that Respondent had violated Rule 5.3, but that Respondent had not violated Rules 3.3, 4.1, 8.4(c) and (d) and 8.1(a). In this Court, Petitioner took exception to Judge Kavanaugh’s conclusion that Respondent did not violate Rule 8.4(d) of the Maryland Rules of Professional Conduct. Respondent took no exceptions to Judge Kavanaugh’s findings of fact or conclusions of law, but, instead, filed a Motion to Dismiss the petition for disciplinary action. I. Following an evidentiary hearing held on October 16, 2000, Judge Kavanaugh filed a memorandum opinion detailing her findings of fact and conclusions of law.

We set forth Judge Kavanaugh’s memorandum opinion below: “The issue before the Circuit Court for Montgomery County, Maryland, is whether or not Setareh R. Jaseb (hereinafter [Respondent), a 35-year-old Maryland attorney, violated the following rules of [a] Maryland Lawyer’s Rules of Professional Conduct: “Rule 3.3 CANDOR TOWARD THE TRIBUNAL (a) A lawyer shall not knowingly: ⁴⁶⁹ (1) Make a false statement of material fact or law to a tribunal. “Rule 4.1 TRUTHFULNESS IN STATEMENTS TO OTHERS (a) In the course of representing a client a lawyer shall not knowingly: (1) Make a false statement of material fact or law to a third person. “Rule 5.3 RESPONSIBILITIES REGARDING NON-LAWYER ASSISTANTS With respect to a nonlawyer employed or retained by or associated with a lawyer: Hi Hs H* H* (b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer. “Rule 8.J, MISCONDUCT It is professional misconduct for a lawyer to: Hi ^ H* Hí Hi H* (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; and (d) engage in conduct that is prejudicial to the administration of justice. “Rule 8.1: BAR ADMISSION AND DISCIPLINARY MATTERS ... a lawyer in connection with ... a disciplinary matter, shall not: (a) knowingly make a false statement of fact. “On October 16, 2000, a hearing was held before this Court. Counsel for the Attorney Grievance Commission, Raymond A. Hein, Esquire, was present. Respondent, Setareh R. Jaseb, was present with her counsel, Arthur G. Kahn, Esquire. Cooper V. Coleman, Teresa Burke Wright, ⁴⁷⁰ Esquire, and Respondent testified.

The Court received the following exhibits from the Petitioner: 1. March 13, 1998 letter from [Respondent to [B]ar [C]ounsel, Mr. Hein; 2. March 23, 1998 letter from Mr. Hein to [Respondent; 3. April 7, 1998 letter from [Respondent to Mr. Hein; 4.

May 12, 1999 Inquiry Panel testimony of [Respondent; 5. Certified District Court [of Maryland, sitting in Montgomery County] docket entries in Chinese Carpet Center, IncJAnetcom International v. Massoud Kowkabi (0602-0022009-96); 6. January 29, 1997 petition for bankruptcy filed for Joe Kowkabi by [Respondent; 7. November 19, 1997 letter from Cooper V. Coleman to Joel Zuckerman, Esquire, of Shein and Shelton; 8. and 9.

Recording and transcript of hearing before Judge Craven on January 28,1998; 10. and 11. Recording and transcript of phone message left by [R]espondent on Ms. Burke Wright’s answering machine on January 28,1998. “The Court received the following exhibits from the [Respondent: 1. March 17,1998 letter from Cooper V. Coleman to Mr. Hein; 2. February 9, 1998 letter from Cooper V. Coleman to Mr. Hein; 3.

January 29, 1998 petition for bankruptcy filed for Joe Kowkabi by [Respondent with December 10, 1997 affidavit. FACTS “In August, 1997, Anetcom International was assigned a $20,000 judgment against Massoud Kowkabi. The Director of Anetcom International, Cooper V. Coleman, garnished the $3,800 monthly rental income of a condominium owned by Kowkabi. The first garnishment mistakenly named the tenant rather than the actual lessee, Bank of Japan.

The ⁴⁷¹ Bank’s attorney, Teresa Burke Wright, placed the November rent in its trust account pending a District Court ruling. On October 31, 1997, [Respondent on behalf of her pro bono client, Kowkabi, filed a motion to quash garnishment of the rent because the wrong tenant was named. On November 4, 1997, Mr. Coleman filed an opposition to Kowkabi’s motion to quash garnishment. Mr. Coleman noted that the Bank of Japan was named in his second writ of garnishment filed on October 31, 1997.

Mr. Coleman offered a compromise, which would allow Kowkabi to retain 50% of all future rental payments under the lease until the $24,224 judgment was paid in full. “Around November 12th, [Respondent and Mr. Coleman spoke by telephone. During that conversation, Mr. Coleman agreed to release the $3,800 November rent because the [Respondent accepted his proposal about future rents. The [Respondent denies reaching a final agreement with Mr. Coleman, however, because her client was out of the country. Mr. Coleman was concerned because the [Respondent never sent a confirming fax.

He wrote to her prior law firm outlining his understanding of the agreement. “There was no further communication between [Respondent and Coleman until January 28, 1998, at the District Court for Montgomery County in Silver Spring, where [Respondent and Mr. Coleman were before the Honorable Thomas Craven for a motions hearing. Before the hearing, the [Respondent told Coleman her client was in Chapter 7 bankruptcy and gave him # 95-15772 as the case number. The [Respondent told Judge Craven ‘... Mr. Kowkabi is in bankruptcy proceedings and as such we ask that the motion to quash the garnishment be granted since he is in bankruptcy proceedings.

And I have that case number. The bankruptcy case ... ’ Judge Craven interrupted and, at his request, the [Respondent filed a suggestion of bankruptcy. “After the hearing the [Respondent insisted that the December and January rent escrow should be released because the proceedings were ‘Stayed.’ Mr. Coleman disagreed. ⁴⁷² “Ms. Teresa Burke Wright testified that she returned [R]espondent’s call after receiving the following voice mail message: ‘Ms. Burke Wright, hi, this is Setareh Jaseb calling on behalf of the Kowkabis. This is the case regarding Anetcom International v. Kowkabi. I am sure you are familiar with that case.

You have two months worth of, ah, rent payments in escrow. We were in court today and the District Court of Maryland, Judge Craven ordered, ah that the escrow account be handed over to the Kowkabis. So if you would please, ah, go ahead and send the amount of the escrow accounts to the address that you had before as soon as possible because we do need that money before, ah, the beginning of next month — before February first. Mr. Cooper Coleman said that he would call you as well so that we can get this done as soon as possible.

Ah, if he does not call you please I would ask you to call him. I am sure you ‘have his number. Ah, if you don’t have his number. I, I’m afraid I don’t have it in front of me but my phone number is 3-0-1-2-7-9-9-6-6-3 — if you would like to contact me regarding any questions you may have.

Otherwise, I would appreciate, ah, your immediate attention to this matter. Thank you, bye-bye.’ During the conversation, the [Respondent specifically stated that the Court ordered the release of the funds. Ms. Wright subsequently called Mr. Coleman who told her that the court did not order the release of the funds. The actual court order stated that the case was ‘stayed.’ “Mr. Coleman’s suspicions about the [Respondent became increasingly heightened.

On January 29, 1998, he searched the Bankruptcy Court files and learned that the case number the [Respondent gave him was a 1995 filing for Kowkabi’s business. He notified the [Respondent who on January 29, 1998, filed a Chapter 7 Petition for Kowkabi with his affidavit, dated December 11, 1997. The [Respondent told Mr. Coleman that she had not filed the petition on December 11th, but that another attorney had done so. ⁴⁷³ “Based upon the preceding scenario, Mr. Coleman filed a Complaint with the Attorney Grievance Commission. Respondent’s Testimony “The [R]espondent was born in Oklahoma in 1965.

She graduated from Widener University School of Law in 1992 and was admitted to the Maryland Bar on June 23, 1994. Her first position as an attorney was in June, 1996, with the Rockville firm of Shein and Shelton. Her pay was $1,000 per month. She engaged in research, collection of the firm’s past due accounts, answering the phones, filing, scheduling of hearings and typing.

Her time was evenly divided between secretarial work and solicitation of her own clients for which she could retain 60% of the fees. Her total client base consisted of three uncontested divorces, two domestic violence matters, three bankruptcy petitions, drafting a consignment contract and a personal injury case. The [Respondent received no supervision from the other lawyers at the firm. She relied on her own research at the Courthouse library. “The [Respondent handled minor legal matters for Kowkabi before she agreed to file his bankruptcy claim pro bono.

Kowkabi gave her a money order payable to the Bankruptcy Clerk for $175.00. On December 10th, Kowkabi signed the Bankruptcy Petition in duplicate, i.e., two signature pages. “The [Respondent left the firm October 31, 1997, because of a host of family problems. She is currently a single mother. “Before the January 28th hearing, [Respondent did not examine Kowkabi’s file. She saw a post-it note with her law clerk’s handwriting, indicating the old Bankruptcy number and the filing date of December 11th.

There was no date-stamped copy in the file. “The [R]espondent’s law clerk, Ali Pournader, worked only twice a week for three weeks. He organized her files and filed pleadings in court. Mr. Pournader left on a ‘sour note’ as he resented ‘running around.’ ⁴⁷⁴ “The [Respondent testified that despite Judge Craven’s ruling she, at the time, believed that he meant the funds should be released to her client. She ‘thought she had won’ even though Judge Craven said T will not quash anything.’ On cross examination, the [Respondent said she did not receive any notice from the Bankruptcy Court after December 11th even though she knew notice was due within 30 days.

The lack of notice did not concern her and she never notified Mr. Coleman or Ms. Wright about the December bankruptcy petition. “Bar counsel in his closing remarks acknowledged that it is for this Court to assess [Respondent's credibility and to evaluate her handling of the cases as either negligent or as fraudulent. Respondent’s counsel argued that his client’s behavior was a result of her inexperience, lack of supervision, and family problems. “This Court is suspicious of the [Respondent's course of dealing with Mr. Coleman. Respondent was wrong in her representations of fact and law to Judge Craven, Mr. Coleman and Ms. Wright. This Court is not convinced by clear and convincing evidence that the [Respondent engaged in intentional deceit.

Implicit in the court’s reasoning in Attorney Grievance Comm’n v. Myers, 333 Md. 440, 443 , 635 A.2d 1315 , [1316 (1994)] is the notion that to be a violation of Rule 8.4, a misrepresentation must be intentional. In Myers , the court remanded ‘the case to the hearing court for factual determination of whether the statements, which [it] found were false and misleading, were negligently uttered or constituted intentional misrepresentations.’ Id. It appears that the [Respondent here was negligent, which resulted in a ‘tangled web.’ “Specifically, the [Respondent acknowledged that she did not know in 1997 and 1998 the definitions of basic legal terms, i.e. ‘stay’. She did not adequately supervise her law clerk in that she never discussed nor confirmed with him the December 11th bankruptcy filing.

Respondent was negligent in not informing Mr. Coleman and Ms. Wright of the December 11th filing, and in not following up with the ⁴⁷⁵ Bankruptcy Court after 30 days had elapsed. The evidence that convinces this Court that [Respondent’s actions were not intentionally misleading is that she told Mr. Coleman on January 28th that the escrow funds should be released even though Mr. Coleman heard the clear ruling of Judge Craven which denied [Respondents motion to quash the garnishment. Moreover, [Respondent told Mr. Coleman that she was planning to call Ms. Wright to release the escrow and she told Ms. Wright to verify her representations with Mr. Coleman. Such naive behavior does not amount to fraud.

It does, however, show her lack of competence. “The Court finds by clear and convincing evidence that the [Respondent violated the following rule: 1. Rule 5.3: Responsibilities regarding nonlawyer assistants. “Since the evidence shows that the [Respondent’s conduct was negligent rather than intentional in dealing with Mr. Coleman, Judge Craven, Ms. Wright and Bar Counsel, this Court cannot find a violation of Rules 3.3, 4.1, 8.4(c) and (d), and 8.1. This Court recommends that if the [Respondent continues to practice law, she should attend C.L.E. classes and work under the supervision of an experienced member of the Bar.” II. A. Petitioner’s exception.

We note that this Court has original and complete jurisdiction over attorney disciplinary proceedings. See Attorney Grievance Comm’n v. Glenn, 341 Md. 448, 470 , 671 A.2d 463, 473 (1996). From our independent review of the record, we must determine whether the relevant findings of the hearing judge are based on clear and convincing evidence. The “hearing court’s findings of fact are prima facie correct and will not be disturbed unless they are