Attorney Grievance Commission v. Kapoor

GREENE, J. The Attorney Grievance Commission of Maryland (“Petitioner”), acting pursuant to Maryland Rule 16-751, 1 filed two Petitions For Disciplinary Or Remedial Action against Respondent, Eric Jag Kapoor, on April 4 and May 6, 2005, respectively. The Petitions allege that Respondent, who was admitted to the Bar of this Court on December 11, 2001, violated several Maryland Rules of Professional Conduct (“MRPC”), specifically, 1.1 (Competence), 2 1.2 (Scope of Rep-reservation), ⁵¹⁰ 3 1.3 (Diligence), 4 1.4 (Communication), 5 1.5 (Fees), 6 1.15 (Safekeeping Property), 7 Rule 3.3(a) (Candor Toward the Tribunal), 8 Rule 5.5(a) (Unauthorized Practice of ⁵¹¹ Law), 9 8.1 (Bar Admission and Disciplinary Matters), 10 8.4 (Misconduct), 11 Maryland Rule 16-604 (Trust Account-Required Deposits), 12 § 10-304 of the Business Occupations and ⁵¹² Professions Article of the Maryland Code (2000, 2004 Repl.Vol.) (Deposit of Trust Money), 13 and § 10-306 of the Business Occupations and Professions Article of the Maryland Code (2000, 2004 Repl.Vol.) (Misuse of Trust Money). 14 In accordance with Maryland Rules 16-752(a) and 16-757(c), 15 we referred the petition to Judge John P. Miller of the Circuit Court for Baltimore City for an evidentiary hearing and to make findings of fact and conclusions of law. On August 29, 2005, and October 5, 2005, Judge Miller held hearings and on October 13, 2005, issued Findings of Fact and Conclusions of Law, in which he found, by clear and convincing evidence, that Eric Jag Kapoor had violated MRPC 1.2(a), 1.3, 1.5(c), 1.15(a) ⁵¹³ and (b), 3.3(a), 5.5(a), 8.1(a) and (b), 8.4(a), (b), (c) and (d), Maryland Rule 16-604, and §§ 10-304 and 10-306 of the Business Occupations and Professions Article. Oral argument before this Court occurred on February 2, 2006, after which we filed a per curiam order disbarring Respondent forthwith on February 3, 2006.

This opinion sets forth the reasons for Mr. Kapoor’s disbarment. BACKGROUND This disciplinary matter arises from Respondent’s representation of Mr. Christopher O’Brien in the settlement of a personal injury case, Respondent’s agreement to represent Ms. Yvonne Shirk in a bankruptcy matter while Respondent was decertified from the practice of law, and Respondent’s representation of Ms. Bolanle Sanya in the settlement of a personal injury case. As to Mr. O’Brien’s case, Respondent settled his client’s claim for $20,000 without his authorization or knowledge and deposited the check in a bank account titled in Respondent’s name and his mother’s name. During Bar Counsel’s investigation of the matter, Respondent made various false statements to Bar Counsel and his client in an attempt to conceal his misappropriation of the settlement proceeds.

In the case of Ms. Yvonne Shirk, Respondent was decertified from the practice of law on April 8, 2003, and was reinstated on June 10, 2004. On October 28, 2003, prior to his reinstatement, Respondent practiced law by agreeing to represent Ms. Shirk in a bankruptcy matter and accepted $50 in advance against his fee of $350.00. He did not deposit the fee in a trust account, but instead cashed the check and spent the money. When Ms. Shirk complained to Bar Counsel about Respondent’s representation, he attempted to conceal his representation of Ms. Shirk and stated that she had not given him any money.

As a result of an investigation by the Attorney Grievance Commission into these matters, Respondent was charged with violating the Rules of Professional Conduct. With respect to the complaints of Christopher P. O’Brien, Bar Counsel, and Ms. Yvonne Shirk, the hearing judge made the following findings of fact and conclusions of law: ⁵¹⁴ FINDINGS OF FACT & CONCLUSIONS OF LAW “The Court finds that the following facts have been established by clear and convincing evidence: “I. Complaint of Christopher P. O’Brien “A. Findings of Fact “Respondent, Eric Jag Kapoor, was admitted to the Bar of the Court of Appeals of Maryland on December 11, 2001. From the time of his admission and during the time relevant to this matter, Respondent practiced law as a partner in the law firm of Robaton & Kapoor in Baltimore City. “On January 10, 2002, complainant, Christopher P. O’Brien, was in an automobile accident in which he suffered injuries to his head. At the end of June or beginning of July 2002, Mr. O’Brien retained Respondent Kapoor to represent him in his efforts to obtain damages from the other driver involved in the accident.

The parties entered into a contingency fee agreement. Pursuant to this agreement, Respondent was to receive as his fee one-third of the amount recovered on behalf of Mr. O’Brien. The contingency fee agreement was not reduced to writing. “On August 19, 2003, Respondent settled Mr. O’Brien’s personal injury case with defendant driver’s insurance company, GEICO, for $20,000, without Mr. O’Brien’s knowledge or authorization. On the same day, GEICO, in confirmation of its conversation with Respondent, sent Respondent the following documents: a letter confirming the settlement, a check for $20,000, and a release intended for Mr. O’Brien’s execution. “The settlement check was made payable to the order of ‘Christophe P. O’Brian [sic] and [his] attorney Eric J. Kapoor, Esq.’ When Respondent received the check, he forged Mr. O’Brien’s signature and deposited the cheek into a personal account located at M & T Bank and titled in the name of the Respondent and his mother.

At that time, Respondent did not communicate to Mr. O’Brien ⁵¹⁵ that he had either received, endorsed, or deposited the settlement check. During the same time period, Mr. O’Brien alleged that Respondent did not respond to his calls or requests for information regarding the case. However, according to the phone records summary for Law Offices of Kapoor & Robaton during the billing period between August 3, 2003 and September 2, 2003, the following calls were placed to Mr. O’Brien’s cell phone: August 18, 2003 at 8:03 pm, lasting 7 minutes and 33 seconds; August 20, 2003 at 12:46 pm, lasting 1 minute and 12 seconds; 3 calls on August 21, 2003 at 1:50 pm, 7:6 pm and 9:20 pm, each lasting 1 minute and 2 seconds, minute, and 9 minutes and 1 second, respectively; 2 calls on August 25, 2003 at 2:27 pm and 2:28 pm, lasting 1 minute and 1 minute and 8 seconds, respectively; August 27, 2003 at 7:53 pm, lasting 1 minute and 13 seconds; 2 calls on August 28, 2003 at 4:50 pm and at 5:30 pm, each lasting 1 minute. “After the check was deposited into the M & T account, Respondent proceeded to reduce the account balance below $13,333.33 (amount to which Mr. O’Brien was entitled according to the terms of the contingency fee agreement). “In September 2003, Mr. O’Brien spoke with Melanie King, a GEICO insurance adjuster in charge of Mr. O’Brien’s matter, who informed him that the case was settled in August and that the matter was considered closed. On October 9, 2003, Respondent wrote Mr. O’Brien a letter, asserting that Mr. O’Brien had, in fact, authorized Respondent’s receipt of GEICO’s offer and the $20,000 settlement check.

It was not until on or about April 8, 2004 that Respondent properly deposited the funds actually due Mr. O’Brien into a trust account. “On April 9, 2004, as a result of the aforementioned events and Respondent’s conduct, Mr. O’Brien filed suit against the Respondent and his partner, Mr. David Robaton, Esq. O’Brien’s complaint alleged unauthorized settlement of his case and conversion of his funds as grounds ⁵¹⁶ for relief. In October 2004, upon final settlement of his lawsuit against Respondent, Mr. O’Brien received money due to him from the personal injury case. “On May 7, 2004, during Petitioner’s investigation of the complaint filed by Mr. O’Brien against the Respondent, Respondent gave a Statement Under Oath. When asked why the $20,000 settlement check was dated August 19, 2003, if, as alleged in Respondent’s October 9, 2003 letter Mr. O’Brien did not authorize the settlement until August 22, 2003, Respondent testified that GEICO had sent him the $20,000 check in mere hopes that Mr. O’Brien would accept it as full and final settlement of his matter.

Because the check was sent after Respondent, without authority, had accepted GEICO’s offer, Respondent’s testimony was false. “In the same Statement Under Oath, Respondent also stated that instead of depositing the $20,000 settlement check into his M & T account, he actually cashed it and placed the money in a safe in his apartment. Based on the facts as noted above, this statement, too, was false. “B. Conclusions of Law “Petitioner alleges that Respondent violated Rule 1.1 by settling Mr. O’Brien’s personal injury case without his authority. Rule 1.1 provides that ‘[a] lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skills, thoroughness and preparation reasonably necessary for the representation.’ This Court finds, by clear and convincing evidence, that by settling a client’s case without client authorization, Respondent did act in contravention with several principles of Maryland Rules of Professional Conduct.

However, in presenting its case, Petitioner proffered no evidence to indicate that Respondent also lacked the reasonably necessary knowledge, skills, thoroughness, and/or preparation called for under Rule 1.1. Although this Court does not condone the actions of an attorney which are clearly in violation of several Maryland Rules of Professional Conduct as outlined below, this Court con- ⁵¹⁷ eludes that Petitioner presented no evidence and therefore failed to meet its burden of proof regarding a Rule 1.1 violation. “Petitioner next alleges that Respondent violated Rule 1.2 by accepting a $20,000 check from GEICO in settlement of Mr. O’Brien’s personal injury case without any notice to Mr. O’Brien. “The clear and convincing evidence before this Court is that Respondent accepted GEICO’s settlement offer on August 19, 2003, and waited to inform Mr. O’Brien of this decision until several months thereafter. During the hearing before this Court, Mr. O’Brien testified that he was not aware of the settlement until September 2003, when he learned of the disposition of the case from a GEICO adjuster, Ms. Melanie King. There is no evidence before this Court that Respondent had consulted with Mr. O’Brien regarding the settlement prior to accepting the check from GEICO, prior to endorsing it, and prior to depositing it into his own account.

For these reasons, this Court finds, by clear and convincing evidence, that Respondent did not consult with the client regarding the settlement of a case, did not abide by the client’s decision whether to accept an offer of settlement, and as such, violated Rule 1.2(a). “In further allegations of misconduct, Petitioner proffers that Respondent violated Rules 1.3, 1.4(a) and 1.15(b) by failing to advise his client that he had received a check in settlement of the client’s matter. Rule 1.3 requires that a ‘lawyer shall act with reasonable diligence and promptness in representing a client.’ Rule 1.4(a) states that ‘[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.’ During the fact-finding hearing, Mr. O’Brien testified that he attempted to contact Respondent for at least two (2) months, telephoning him once a week, to no avail. However, in studying the telephone records entered into evidence as ⁵¹⁸ Petitioner’s Exhibit 3, Exhibit 6, this Court noted that at least ten (10) calls were placed from the Law Offices of Kapoor & Robaton between August 18, 2003 and August 28, 2003, to Mr. O’Brien, some lasting in excess of five (5) minutes. This Court finds that regarding the Rules 1.3 and 1.4(a) violations, Petitioner’s evidence does not meet its burden of proof by clear and convincing evidence.

As such, no violations exist. “Petitioner presented clear and convincing evidence indicating that upon receipt of the settlement check, Respondent did not promptly notify Mr. O’Brien of the recovered amount and did not promptly deliver to Mr. O’Brien any portion of the balance to which Mr. O’Brien was entitled. In addition, Mr. O’Brien testified that he did not have access to the settlement funds until 2004, over six (6) months after the funds were recovered. In fact, Mr. O’Brien claims, he did not even know that his case was settled for $20,000 until speaking with Ms. King, several months subsequent to the alleged settlement. For these reasons, this Court thus finds that Respondent violated Rule 1.15(b). “Petitioner further maintains that Respondent violated Rule 1.5(c) by failing to reduce the contingency fee agreement to writing. “Respondent agreed to represent Mr. O’Brien’s interests in a personal injury matter in return for a contingent fee equivalent to one third of Mr. O’Brien’s recovery.

The specifics of the fee agreement between Respondent and Mr. O’Brien were never reduced to writing. Respondent then negotiated a settlement on Mr. O’Brien’s behalf, and deposited the recovered amount into his own bank account. During the investigation proceedings conducted by the Petitioner, Respondent testified that if there was no copy of the fee agreement in his documents pertaining to O’Brien, then no such transcribed agree ⁵¹⁹ ment actually existed. In addition, Mr. O’Brien testified before this Court that when he sought Respondent’s services and agreed to pay him one third of any amount recovered, their agreement was not written down and was not otheiwise recorded.

Based on these facts, this Court finds by clear and convincing evidence that Respondent violated Rule 1.5(c). “At the hearing, Mr. David Robaton testified that during the time relevant to this matter, the law firm of Robaton & Kapoor maintained a separate trust account to be used for safekeeping client’s property and/or funds. However, when Respondent received Mr. O’Brien’s settlement check from GEICO, he failed to deposit it into the designated trust account, and instead, deposited the entire balance into his own personal account, titled in his name and the name of his mother. Subsequent to the deposit, Respondent withdrew monies from the account and reduced the balance below the amount to which Mr. O’Brien was entitled pursuant to the oral fee agreement between the parties. Respondent failed to deposit the remaining balance of Mr. O’Brien’s settlement check into the proper trust account until April 8, 2004.

Based on the clear and convincing evidence, this Court concludes that Respondent’s failure to deposit client’s funds into a trust account was in violation of Rule 1.15(a), Maryland Rule 16-604 and Md. Bus. Occ. & Prof.Code Ann. § 10-304. “Respondent is also charged with violating Rule 8.4(b), (c) and (d) by depositing client funds into his personal account, by appropriating those funds for his own use, by forging his client’s signature on the settlement check, and by committing perjury in his Statement Under Oath given to Petitioner by providing false testimony. “This Court acknowledges that it is not necessary for the Respondent to be charged or convicted of the criminal offense in order to find a violation of Rule 8.4(b). See ⁵²⁰ Attorney Grievance Commission v. Garland, 345 Md. 383, 394-5 , 692 A.2d 465 (1997) (holding that there is no requirement that the Respondent be charged with or prosecuted for the criminal offense to find a violation of Rule 8.4(b) of the Maryland Rules of Professional Conduct; all that is required is proof of the underlying conduct by clear and convincing evidence). “In support of its allegations of a Rule 8.4(b) violation, Petitioner presented, by clear and convincing evidence, that Respondent deposited his client’s funds into his personal account a the M & T bank, and that he subsequently reduced the account balance below the amount which should have been reserved as the funds of the client. In support of its allegations of forgery, Petitioner proffered to this Court the testimony of Mr. O’Brien, who confirmed that he never signed the $20,000 GEICO settlement check and that Respondent assured him T signed it for you.’ Finally, Petitioner contends that in Respondent’s Statement Under Oath provided during the investigation of Respondent, Respondent made several statements which were false, inaccurate, and which constituted perjury.

The inaccurate statements related to (1) whether the $20,000 check provided by GEICO was tendered as actual settlement or in mere hopes of settlement; and (2) whether Respondent cashed the settlement check and placed the money in a safe in his apartment. Based on the clear and convincing evidence submitted to the Court in Petitioner’s exhibits 1 through 4, and the testimony of Mr. O’Brien and Mr. Robaton during the hearing before this Court, this Court finds that Respondent’s aforementioned conduct (appropriation of funds, forgery of signature on check, and false testimony) reflects adversely on his fitness to practice law, his honesty, and his trustworthiness, and is, thus, in violation of Rule 8.4(b). “In addition to alleging a Rule 8.4(b) violation for the aforementioned conduct, Petitioner alleges that a Rule 8.4(c) violation similarly exists. This Court finds that the forged signature on the check and the dishonest state ⁵²¹ ments proffered by the Respondent during the investigation constitute conduct which involves dishonesty, fraud, deceit or misrepresentation. “Likewise, Petitioner alleges that the aforementioned conduct constitutes conduct which is prejudicial to the administration of justice and is in violation of Rule 8.4(d). Clearly, public confidence in the legal profession is a critical facet to the proper administration of justice.

Conduct that erodes public confidence is viewed properly as prejudicial to the administration of justice. It is well settled that ‘an attorney occupies a high position of trust with his client, and than an attorney must exercise the utmost good faith, fairness and fidelity toward the client.’ See Littell v. Morton, 369 F.Supp. 411, 425 (D.Md.1974), aff'd; 519 F.2d 1399 (4th Cir.1975); see also Homa v. Friendly Mobile Manor, 93 Md.App. 337, 346-7 , 612 A.2d 322 (1992) (stating that the fiduciary relationship which exists between an attorney and client carries with it the duty of loyalty and utmost good faith). For the reasons stated herein, this Court finds that the Petitioner demonstrated, by clear and convincing evidence, that Respondent engaged in conduct which is prejudicial to administration of justice and is in violation of Rule 8.4(d). “Lastly, Petitioner maintains that Respondent’s false statements noted above also warrant that a violation of Rule 8.1 be charged. “This Court finds that Petitioner has established, by clear and convincing evidence, that Respondent’s false statements constitute a knowing failure to respond to demand for information from a disciplinary authority. Petitioner’s request for Respondent to provide a Statement Under Oath were related to an investigation within the authority of the Attorney Grievance Commission and Bar Counsel.

Although Respondent had, in fact, complied with Petitioner’s request to participate in the investigative proceeding, the responses he provided to Petitioner’s inquiries were dishonest, untruthful, and inaccurate. ⁵²² Although this Court is aware that Rule 8.1(b) does not specify whether the response to a lawful demand for information must be truthful, surely the spirit of this Rule is such that it calls for honesty in communication with a disciplinary authority. This Court finds that Respondent violated Rule 8.1(b) when he falsely testified that GEICO sent him a check before he had agreed to settle his client’s case and when he falsely testified that he had maintained funds belonging to Mr. O’Brien in a safe in his apartment. “II. Complaint of Bar Counsel “A. Findings of Fact “Respondent was decertified from the practice of law on April 8, 2003 and was reinstated to the practice on June 10, 2004. On October 28, 2003, during the time when he was decertified, Respondent undertook to represent Ms. Yvonne Shirk in a bankruptcy matter. “On May 7, 2004, in his Statement Under Oath, Respondent testified that he had attempted to become re-certified and had sent a letter to the Client Protection Fund asking for a statement itemizing any monies he owed and submitting a change of address notice.

At the time of Petitioner’s investigation, no letter was sent actually to the Client Protection Fund. “B. Conclusions of Law “Petitioner alleges that Respondent violated Rule 5.5(a) by practicing law in Maryland during the time when he was not authorized to do so. Rule 5.5 states that ‘[a] lawyer shall not (a) practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction.’ The clear and convincing evidence before this Court is that Respondent agreed to represent Ms. Yvonne Shirk on October 28, 2003, after he was decertified from the practice of law on April 8, 2003, and before being reinstated to the practice on June 10, 2004. Accordingly, this Court finds that Respondent has committed a violation of Rule 5.5(a). ⁵²³ “The Respondent is also charged with testifying falsely under oath by stating that he sent to the Client Protection Fund a letter, requesting from them and providing to them certain information, in violation of Rules 8.1(a) and 8.4(b), (c) and (d). “The evidence before this Court is that at the time when Respondent testified to the Petitioner that he mailed a letter to the Client Protection Fund, alleging that he requested an itemization of monies owed and provided a change of address notice, no such letter was actually mailed. Although Petitioner has shown, by clear and convincing evidence, that Respondent’s statement regarding mailing of the letter was false, there is no evidence as to whether the statement was made in relation to a material fact.

Given the limited evidence produced with respect to these charges, this Court finds that the alleged Rule 8.1 violation cannot be sustained by a standard of clear and convincing evidence. “In relation to Petitioner’s allegations of Rule 8.4(b), (c) and (d) violations, this Court finds that, as stated previously, a false statement asserted during an investigative proceeding is in violation of this Rule. “HI. Complaint of Yvonne D. Shirk “A Findings of Fact “On October 28, 2003, Ms. Shirk retained Respondent to represent her in a bankruptcy proceeding. At that time, she presented Respondent with a $50 check to be applied to the $350 fee which Respondent requested as payment for his legal services. Subsequent to depositing the said check into his personal account, Respondent spent the money.

After Ms. Shirk complained to Bar Counsel about Respondent’s conduct, Respondent represented to Bar Counsel that Ms. Shirk never tendered a $50 check. Respondent made similar inaccurate representations (stating that he received no money from Ms. ⁵²⁴ Shirk) to the Bankruptcy Court through his partner, David Robaton. “B. Conclusions of Law “Petitioner charges Respondent with violations of Rule 1.15(a) and Md. Bus. Occ.Code Ann. § 10-304, contending that Respondent failed to place an unearned fee in a trust account. The clear and convincing evidence before this Court is that upon receipt of a $50 check from Ms. Shirk as partial payment of the fee, Respondent deposited such check into a personal, rather than a trust, account.

For these