Attorney Grievance Commission v. Moore

McDonald, j. This attorney disciplinary matter concerns a lawyer with 25 years’ experience who was reprimanded by this Court in 2009 for his admitted violations of the Maryland Lawyers’ Rules of Professional Responsibility (“MLRPC”) relating to neglect of clients and a failure to respond to requests for information from Bar Counsel. Shortly after receiving that reprimand, Respondent Richard W. Moore, Jr. undertook representation of clients in two immigration matters that took him down the same path of nonperformance of his professional obligations. To his credit, Mr. Moore has, as before, largely admitted the violations.

We also recognize what appears to be his sincere remorse and the relationship of these violations to his difficulty in coping with long-standing personal issues. The hearing judge aptly characterized the source of Mr. Moore’s misconduct as “representational paralysis in the face of a difficult case rather than ... dishonesty.” Nevertheless, as the regulator of the legal profession in Maryland, we are obligated to protect the public as best we can from attorneys who fail, for whatever reason, to conform to professional norms. Accordingly, we suspend Mr. Moore from the practice of law indefinitely until such time as he can satisfy the Court that the misconduct will not recur. ²⁵⁹ Background A Procedural Context On March 31, 2015, the Attorney Grievance Commission (“Commission”) through Bar Counsel, filed a Petition for Disciplinary or Remedial Action with this Court against Mr. Moore. The Commission charged Mr. Moore with violations of MLRPC 1.1 (Competence), 1.3 (Diligence), 1.4 (Communication), 1.5 (Fees), 1.15 (Safekeeping Property), 1.16 (Declining or Terminating Representation), 8.1(b) (Bar Admission and Disciplinary Matters), and 8.4(c) & (d) (Misconduct) arising out of his representation of clients in two immigration matters.

Pursuant to Maryland Rule 16-752(a), the Court designated Judge Julie L. Glass of the Circuit Court for Baltimore County to conduct a hearing concerning the alleged violations and to provide findings of fact and recommended conclusions of law. Before the hearing judge, the Commission did not pursue the alleged violations of MLRPC 1.5, 1.15, and 8.4(c). The parties entered into a comprehensive stipulation of facts and Mr. Moore stipulated to most of the remaining violations of the MLRPC. On October 7 and 8, 2015, the hearing judge conducted an evidentiary hearing, at which several witnesses, including Mr. Moore, testified and the stipulation and other documents were admitted into evidence.

On November 12, 2015, the hearing judge issued a thorough memorandum opinion in which she made detailed findings of fact concerning the alleged violations, as well as findings concerning aggravating and mitigating circumstances. In her recommended conclusions of law, the hearing judge concluded that Mr. Moore had committed all of the remaining violations charged by the Commission. Neither party filed any exceptions to the hearing judge’s findings and conclusions. Oral argument before this Court on March 3, 2016, largely concerned the appropriate sanction.

B. Facts The hearing judge’s fact findings are uncontested, as the parties stipulated to most of them and no exceptions were filed ²⁶⁰ by either side. Therefore, we treat the hearing judge’s fact findings as established. Maryland Rule 16-759(b)(2)(A). Those findings, as well as undisputed matters in the record, reveal the following.

Law Practice Mr. Moore has been a member of the Maryland Bar since June 1991. During the period of time pertinent to this case, he maintained a law office in Baltimore County. Approximately 80 percent of his practice is dedicated to immigration law. Prior Discipline In June 2009, Mr. Moore was reprimanded by consent for failing to provide diligent representation, failing to communicate with a client, and failing to respond to requests for information from Bar Counsel, in violation of MLRPC 1.3, 1.4, and 8.1(b).

See Attorney Grievance Commission v. Moore, 409 Md. 303 , 973 A.2d 820 (2009). Representation of Mauro Pasqualucci Mauro Pasqualucci was born in Italy in 1955, came to the United States with his family as child in 1964, and has resided primarily in the United States since that time. Beginning in 1974, near the end of the Vietnam War, he served in the Marines for two years and was honorably discharged. After his discharge from the military, Mr. Pasqualucci was convicted of a drug offense and served time in federal prison.

Following his release from prison in the early 1980s, Mr. Pasqualucci has worked as a licensed taxi cab driver in Annapolis for the past three decades, apparently without further incident until July 2009. At that time, he was arrested by immigration authorities, and was threatened with deportation to Italy, apparently based on his decades-old criminal conviction. After his arrest, Mr. Pasqualucci was confined in the Howard County Detention Center. Mr. Pasqualucci had difficulty communicating with friends and family outside the detention center.

A friend of Mr. Pasqualucci arranged for Mr. Moore to represent him and eventually posted a $20,000 bond for Mr. ²⁶¹ Pasqualucci’s release. Mr. Pasqualucci paid Mr. Moore $2,500 for his services in the immigration case. A hearing was scheduled before an immigration judge on August 10, 2009 while Mr. Pasqualucci was still being detained. Although Mr. Moore had been engaged to represent Mr. Pasqualucci as of that date, Mr. Moore had not filed his appearance and was not present at the hearing.

The hearing was rescheduled to allow Mr. Pasqualucci time to contact Mr. Moore. On the same date as the hearing, Mr. Moore sent a letter to Mr. Pasqualucci, listing several options for avoiding deportation. One of the options was to file an N-600 Application for Certificate of Citizenship (which would allow Mr. Pasqualucci to become an American citizen based on the citizenship of Mr. Pasqualucci’s father, who had become a naturalized citizen in 1967). 1 Although Mr, Moore knew that filing this application could be an appropriate strategy for Mr. Pasqualucci to avoid deportation, Mr. Moore never discussed this option further with Mr. Pasqualucci and never filed the application. ²⁶² Nine months later, after Mr. Pasqualucci had been released from the detention center, he had another hearing before the immigration judge on May 27, 2010. Shortly before the hearing Mr. Moore appeared at the courthouse and met with Mr. Pasqualucci for the first time.

During the hearing, Mr. Moore advised the court that Mr. Pasqualucci contended that he was a United States citizen through his father and thus was not susceptible to deportation. Mr. Moore admitted that he did not have any evidence of Mr. Pasqualueci’s citizenship. The court advised Mr. Moore that he had until July 25, 2010, to provide proof of Mr. Pasqualucci’s claim of citizenship and continued the case until December 16, 2010. At the subsequent hearing on December 16, 2010, the immigration judge was reluctant to resolve the case on the materials Mr. Moore had submitted.

At the suggestion of the immigration judge, Mr. Moore requested, and was granted, a further continuance to file the N-600 Application. A fourth hearing was scheduled for August 11, 2011. Mr. Moore did not communicate with Mr. Pasqualucci between the December 2010 hearing and the August 2011 hearing, even though Mr. Pasqualucci tried to reach Mr. Moore, eventually for the purpose of terminating the representation. When Mr. Pasqualucci finally met with Mr. Moore at the August 2011 hearing, he asked Mr. Moore why he had been so unresponsive.

Mr. Moore said that he had been having “personal issues.” During the hearing, Mr. Pasqualucci told the immigration judge that he wished to terminate Mr. Moore’s representation and the court once again continued the case. At the hearing, Mr. Moore also asked for a continuance to file the N-600 Application, which the court again granted. Eventually, Mr. Pasqualucci engaged another attorney who filed an application for citizenship based on Mr. Pasqualucci’s prior military service. On the basis of that application, Mr. Pasqualucci obtained citizenship on July 19, 2013.

Mr. Moore neither filed the N-600 Application nor filed a motion to strike his appearance even though he understood that he had been terminated after the August 2011 hearing. ²⁶³ Although Mr. Moore had conducted research and gathered documentation related to Mr. Pasqualucci’s childhood, family history, and education, Mr. Moore did not provide the research or return the documentation to Mr. Pasqualucci upon termination of the representation. He did, however, return Mr. Pasqualucci’s fee, but only after Mr. Pasqualucci had filed a complaint with the Commission in March 2014. Representation of the Custodio Family Not long after he parted ways with Mr. Pasqualucci, Mr. Moore agreed to represent the fiancé and daughter of Michael Carrillo Custodio in another immigration matter. On October 31, 2011, Mr. Custodio retained Mr. Moore and paid him $5,000 for legal services.

Mr. Moore successfully assisted Mr. Custodio in obtaining a visa in May 2012 to allow Mr. Custodio’s fiancé and her daughter to enter the United States. After they arrived in the United States, Mr. Custodio and his fiancé were married. After the wedding, Mr. Moore prepared and attempted to file an 1-485 form (to adjust the status of the wife and stepdaughter to that of permanent residents of the United States), an 1-864 form (an affidavit showing that an immigrant has adequate means of financial support, required for most family-based immigrants), and an 1-693 form (report of medical examination and vaccination record). 2 Immigration authorities scheduled an interview of Mr. Custodio’s wife and her daughter for September 27, 2013, and Mr. Custodio obtained all necessary documentation for the interview. However, before the interview, Mr. Moore informed Mr. Custodio that the interview was canceled due to “staffing issues.” In fact, Mr. Moore did not know the actual reason for ²⁶⁴ the cancellation and had made no effort to determine the actual reason.

Mr. Custodio later learned from immigration authorities that the interview had been canceled because Mr. Moore failed to submit the necessary documents to them before the interview. Mr. Moore mistakenly believed that he had provided the necessary documentation, but he had not verified that the immigration authorities had the documents that were required. Ultimately, the application for Mr. Custodio’s wife and her daughter was denied due to the failure to provide the documentation prior to the date of the interview. Mr. Custodio received a letter notifying him of the denial and of the 30-day deadline for an appeal.

Prior to the end of the 30 days, Mr. Custodio sent Mr. Moore a letter with all the necessary documentation. Mr. Custodio also attempted to contact Mr. Moore, but Mr. Moore did not respond. Mr. Moore did not file an appeal and did not inform Mr. Custodio of his failure to do so. Nor did he return Mr. Custodio’s calls or otherwise respond to his requests for information about the case.

Failure to Respond to Bar Counsel On March 26, 2014, Mr. Pasqualucci filed a complaint with the Commission about his experience with Mr. Moore. That same day, Bar Counsel sent a letter to Mr. Moore informing him of the complaint and asking for a written response within 15 days. Mr. Moore did not respond. Bar Counsel sent him a second letter by certified mail, dated April 16, 2014, requesting a written response within 10 days.

According to the postal return receipt, Mr. Moore’s law office received the letter on April 17, 2014. On April 28, 2014, Bar Counsel received a letter from Mr. Moore dated April 24, 2014. On May 6, 2014, Mr. Custodio filed a complaint with the Commission against Mr. Moore. Again, Bar Counsel sent Mr. Moore a letter the same day notifying him of the complaint and requesting a written response.

Mr. Moore failed to respond in a timely manner. On June 23, 2014, Bar Counsel sent Mr. Moore a second letter requesting a written response ²⁶⁵ within 10 days. On July 9, 2014, after receiving no response to the second letter, Bar Counsel sent a third letter informing Mr. Moore that a written response was required within 15 days. On August 5, 2014, after Mr. Moore still had not responded, Bar Counsel sent Mr. Moore a fourth letter asking for a written response to Mr. Custodio’s complaint within seven days.

According to the postal receipt, the August 5, 2014 letter was received by Mr. Moore’s office on August 6, 2014. Mr. Moore still did not provide a timely response. Mental Health Evidence At the request of Bar Counsel, Mr. Moore underwent a psychiatric evaluation by Jeffrey S. Janofsky, M.D., on September 15, 2015. Dr. Janofsky testified at the hearing and his written report was submitted in evidence.

According to Dr. Janofsky, Mr. Moore does not suffer from a psychiatric or personality disorder, but has an “avoidant personality trait.” As a result, Mr. Moore tends to avoid stressful situations, such as resolving issues with clients he perceives to be aggressive, assertive or demeaning toward him. Mr. Moore did not dispute Dr. Janofsky’s analysis and the hearing judge found it to be “very credible].” During his testimony, Dr. Janofsky also recounted similar findings made by another psychiatrist, who had treated Mr. Moore as part of a conditional diversion agreement during his prior disciplinary matter in 2009, and by a licensed clinical social worker with whom Mr. Moore had met intermittently since 2011. Mr. Moore testified — credibly, according to the hearing judge — that his personal or emotional problems are in part related to his being a survivor of domestic violence and abuse committed by his second wife. They were divorced six years before the Pasqualucci representation began, but she continued to engage in verbal abuse until 2014, when she pled guilty to a criminal charge in relation to the abuse.

Discussion The hearing judge concluded that Mr. Moore violated MLRPC 1.1, 1.3, 1.4, 1.16, 8.1(b), and 8.4(d). We review ²⁶⁶ recommended conclusions of law without deference to the hearing judge. Maryland Rule 16-759(b)(1). For the reasons that follow, we agree with all of the hearing judge’s conclusions of law.

A. Violations of MLRPC MLRPC 1.1 MLRPC 1.1 requires that an attorney “provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” As the hearing judge noted, a failure to make required filings in a client matter demonstrates a lack of preparation and thoroughness necessary to provide competent representation. Attorney Grievance Comm’n v. Guida, 391 Md. 33, 54 , 891 A.2d 1085 (2006). Although an attorney has adequate knowledge or skill to represent a client, the attorney violates MLRPC 1.1 if the attorney fails to apply that knowledge and skill as necessary.

Attorney Grievance Comm’n v. De La Paz, 418 Md. 534, 553 , 16 A.3d 181, 192 (2011). An unexplained failure to appear in court at a client’s hearing is a complete failure of representation and violates MLRPC 1.1. See Attorney Grievance Comm’n v. Harris, 366 Md. 376, 403 , 784 A.2d 516 (2001). The hearing judge found that Mr. Moore “performed virtually no work in Pasqualucci’s case and failed to file papers and pleadings on his behalf.” Mr. Moore “knew as early as August 2009 that a[n] N-600 application was a viable option for his client, but did not file such application despite being instructed by the Immigration Court.” The hearing judge determined that this failure, together with his unexplained failure to appear at the initial hearing when Mr. Pasqualucci was still in detention, demonstrated “an absence of thoroughness and preparation” in violation of MLRPC 1.1.

The hearing judge also found that Mr. Moore’s “representation of Custodio was far below the minimum level of competency ²⁶⁷ required from attorneys” because he “performed little to no services on behalf of Custodio.” We agree with those conclusions. MLRPC 1.3 MLRPC 1.3 states that “[a] lawyer shall act with reasonable diligence and promptness in representing a client.” Mr. Moore stipulated that he violated MLRPC 1.3 during his representation of Mr. Pasqualucei and the hearing judge agreed. So do we. It perhaps goes without saying that a lack of preparation or thoroughness that would violate MLRPC 1.1 also violates MLRPC 1.3.

See Attorney Grievance Comm’n v. McCulloch, 404 Md. 388, 398 , 946 A.2d 1009 (2008); Attorney Grievance Comm’n v. Mooney, 359 Md. 56, 94 , 753 A.2d 17 (2000). Accordingly, Mr. Moore’s conduct that violated MLRPC 1.1 also violated MLRPC 1.3. Mr. Moore did not stipulate to a violation of MLRPC 1.3 with respect to Mr. Custodio. However, the hearing judge concluded that Mr. Moore failed to keep Mr. Custodio adequately advised of the progress of his application and did not respond to Mr. Custodio’s efforts to obtain information about the case.

We agree that these facts display a lack of diligence, in violation of MLRPC 1.3. MLRPC14 MLRPC 1.4(a) requires an attorney to: promptly inform a client of any decision or