Attorney Grievance Commission v. Koven

³³⁸ CATHELL, Judge. Bar Counsel, on behalf of the Attorney Grievance Commission (AGC), petitioner, and at the direction of the Review Board, filed a Petition for Disciplinary Action with this Court against Robert L. Koven, Esquire, respondent, pursuant to Maryland Rule 16-709. In the Petition, Bar Counsel alleges violations of Rules 1.1, 1.3, 1.4, 1.16, 8.1, and 8.4 of the Maryland Rules of Professional Conduct (MRPC), based on a complaint filed against respondent. This Court referred the matter to Judge Nelson W. Rupp, Jr. of the Circuit Court for Montgomery County, to conduct an evidentiary hearing in accordance with Maryland Rule 16-709(b).

Evidentiary hearings were conducted on March 9, 2000 and June 12, 2000, and a statement of findings of facts and conclusions of law was filed on July 17, 2000, in accordance with Maryland Rule 16-711(a). Judge Rupp found by clear and convincing evidence that respondent violated MRPC 1.1, 1.3, 1.4, 1.16(d), 8.1(b), 8.4(b), 8.4(c), and 8.4(d). Respondent has failed to file any exceptions to the findings of facts and conclusions of law made by Judge Rupp. We shall suspend respondent indefinitely, granting him permission to apply for readmission after two years.

I. Facts This disciplinary action arose out of one complaint filed by Mitchell N. Roth, Esquire, who had been retained to determine the status of work that respondent had not completed. BC Docket No. 99-259-16-9 Complaint of Mitchell N. Roth, Esquire There is evidence in the record, and Judge Rupp found that, in the summer of 1997, respondent was retained by COMSO, Incorporated (COMSO) to file applications for Alien Labor Certifications for three of COMSO’s employees, Ming Jian, Pradeep Karnati, and Radhika Madireddy. Respondent billed COMSO $3,000.00 for the preparing and filing of the three applications in the beginning of August 1997. COMSO paid ³³⁹ respondent for his services with a check dated September 12, 1997.

Respondent accepted the payment even though he never prepared or filed the Alien Labor Certification application for Radhika Madireddy and he prepared, but did not file, the applications for Ming Jian and Pradeep Karnati. Respondent deceived COMSO and Mr. Karnati into believing that Mr. Karnati’s application had been filed and that the United States Department of Labor was processing the application. Respondent provided COMSO and Mr. Karnati with a receipt for the application bearing the Control No. 9679783; however, the receipt actually belonged to one of respondent’s other clients and had been altered by respondent to refer to Mr. Karnati. Respondent also supplied COMSO and Mr. Karnati with other false and misleading information.

Correspondence from the Department of Labor, dated December 30, 1997, was given to COMSO and Mr. Karnati; however, respondent had inserted the names of COMSO and Mr. Kar-nati where appropriate. The correspondence was originally addressed to DelcoLine, Incorporated and its employee, Mo-seen Morani, both former clients of respondent. COMSO and Mr. Karnati also received copies of two letters, dated March 2, 1998 and June 22, 1998, addressed to the Department of Labor from respondent, concerning Mr. Karnati’s application. Respondent never sent these letters to the Department of Labor.

On February 4, 1998, respondent faxed a cover sheet to COMSO that stated that the Department of Labor was currently making a decision on reduction and recruitment cases. On March 23, 1998, Mr. Karnati received a fax from respondent that stated that “[a] ruling on this [the application] is expected the first week of April.” Respondent also deceived COMSO and Mr. Jian as to the status of Mr. Jian’s application. COMSO and Mr. Jian received a copy of a Department of Labor letter, dated February 2, 1998, acknowledging receipt of Mr. Jian’s application. The letter had been altered by respondent.

The letter was originally written to respondent’s client Today’s Dental Care and its employee, Marcel Jimenez. ³⁴⁰ COMSO retained Mr. Roth in the spring of 1998 to determine the status of the applications of its three employees. Respondent did not inform COMSO, its employees, or Mr. Roth that the applications had not been filed. Respondent also failed to refund the $3,000.00 he received for preparing and filing the applications. Respondent’s actions since the commencement of this disciplinary proceeding have been uncooperative.

Bar Counsel sent letters to respondent dated November 6, 1998 and November 23, 1998; respondent failed to answer either letter. Bar Counsel’s investigator called and left seven messages for respondent between December 22, 1998 and January 25, 1999; respondent did not respond to any of the calls. Respondent was also delinquent in filing a response to the Petition for Disciplinary Action and in providing discovery to Bar Counsel. Based upon the aforementioned findings of facts, Judge Rupp concluded that respondent violated the following in his representation: 1.

Respondent violated MRPC 1.1[ 1 ] (Competence), when he failed to prepare and file the application of Radhika Madireddy and when he failed to file the applications of Pradeep Karnati and Ming Jian. Respondent also violated MRPC 1.1 when he failed to cooperate and assist COMSO’s replacement counsel, Mitchell Roth, in his effort to determine the status of the applications. 2. Respondent violated MRPC 1.3[ 2 ] (Diligence), when he failed to file the applications. 3. Respondent violated MRPC 1.4[ 3 ] (Communication), when he failed to communicate with COMSO, Mr. Jian, ³⁴¹ Mr. Karnati, and Mr. Madireddy about the status of their applications. 4.

Respondent violated MRPC 1.16(d)[ 4 ] (Declining or terminating representation), by failing to truthfully advise Mr. Roth of the status of the applications and by failing to refund the $3,000.00 fee he had received from COM-SO for the work that he had allegedly done on the applications. 5. Respondent violated MRPC 8.1(b)[ 5 ] (Bar admission and disciplinary matters), when he failed to cooperate with Bar Counsel’s investigation and failed to timely respond to Bar Counsel’s Petition for Disciplinary Action and requests for discovery. 6. Respondent violated MRPC 8.4(b)[ 6 ] (Misconduct), when ³⁴² he accepted payment for work not performed and thereafter concealed that fact from COMSO and its employees. 7. Respondent violated Rule 8.4(c) and (d)[ 7 ] (Misconduct), by engaging in a continuing course of dishonesty.

Respondent intentionally altered Department of Labor letters and alien certification receipts, he created letters and faxes to mislead COMSO and its employees, and he submitted a false billing statement.

II

Discussion As we stated in Attorney Grievance Commission v. Sheridan, 357 Md. 1, 17-18 , 741 A.2d 1143, 1152 (1999): [T]his Court has original jurisdiction over all attorney disciplinary proceedings. The responsibility to make final determinations of an attorney’s alleged misconduct is reserved to us. As to disputed findings of fact made by [the hearing judge], “ ‘we [make] an independent, detailed review of the complete record with particular reference to the evidence relat[ed] to the disputed factual finding.’ ” In reviewing the record, however, this Court adheres to the fundamental principle that the factual findings of the assigned judge in an attorney disciplinary proceeding “are prima facie correct and will not be disturbed on review unless clearly erroneous.” This means that we will not tamper with the factual findings if they are grounded on clear and convincing evidence. We also keep in mind that it is elementary that the judge “may elect to pick and choose which evidence to rely upon.” Such deference is paid, in part, because she [or he] ³⁴³ is in the best position to assess first hand a witness’s credibility.

We add, however, that “an attorney in a disciplinary proceeding need only establish factual matters in defense of an attorney’s position by the preponderance of evidence, including whether mitigating circumstances existed at the time of