Attorney Grievance Commission v. Robaton

BARBERA, J. The Attorney Grievance Commission of Maryland (“Petitioner”), acting through Bar Counsel and pursuant to Maryland Rule 16-751(a), 1 filed a Petition for Disciplinary or Remedial Action against David M. Robaton, Respondent. On August 22, 2008, Bar Counsel charged Respondent with violating the following Maryland Rules of Professional Conduct (“MRPC”): 1.1 (Competence), 2 1.3 (Diligence), 3 3.3(a)(1) (Candor Toward the Tribunal), 4 5.5(a) (Unauthorized Practice of Law; Multijurisdictional Practice), 5 and 8.4(c) and (d) (Misconduct). 6 Pursuant to Maryland Rule 16-752(a), 7 we re ⁴²⁰ ferred the petition to the Honorable Charles G. Bernstein of the Circuit Court for Baltimore City, to conduct an evidentiary hearing and make findings of fact and conclusions of law. Judge Bernstein held an evidentiary hearing on January 22, 2009, at which Respondent appeared and participated. On March 5, 2009, Judge Bernstein issued, pursuant to Maryland Rule 16-757(c), 8 the following findings of fact and proposed conclusions of law.

Findings of Fact and Conclusions of Law [ 9 ] This Court finds that the following facts have been established by clear and convincing evidence pursuant to the hearing held on January 22, 2009. Complaint of the Honorable Duncan W. Keir Findings of Fact 1. At the beginning of June 2007, Rodney T. Williams consulted Michael Wolf, a bankruptcy preparer. The pur ⁴²¹ pose of the consultation was to stop the foreclosure proceeding which had been instituted against Williams’ residence. 2.

Williams paid Wolf $800 for his services. 3. Wolf advised Williams to file for bankruptcy to stop the pending foreclosure proceeding. He accompanied Williams to the United States Bankruptcy Court in Baltimore and helped him obtain the forms to file a bankruptcy petition. 4. Williams filed the bankruptcy petition at the courthouse.

While Williams was filling out the forms, Wolf called Williams’ creditors on his behalf. 5. Wolf advised Williams to obtain the services of an attorney and recommended respondent. 6. After Williams’ petition was filed, a meeting of creditors was set for July 13, 2007. The meeting date was subsequently changed to July 31, 2007. 7.

Williams made an appointment with respondent concerning his bankruptcy. On June 6, 2007, Williams and respondent entered into a fee agreement whereby respondent agreed to represent Williams in the bankruptcy proceeding for a fee of $1,500. Pursuant to this agreement, Williams paid respondent $780 on June 6, 2007 and $220 on June 13, 2007. 8. Respondent knew Wolf because Wolf had previously been his client. 9.

Respondent was aware that Wolf was a bankruptcy preparer and that Williams had consulted him before he came to respondent. 10. Respondent did not enter his appearance in Williams’ bankruptcy proceeding in June 2007 because he was not equipped to file documents electronically, as the bankruptcy court required attorneys to do. 11. Consequently, respondent decided to complete Williams’ bankruptcy filing by preparing documents that Williams would file pro se, rather than entering his appearance on Williams’ behalf. 12. Respondent prepared a statement of financial affairs on Williams’ behalf on or about June 12, 2007.

Williams ⁴²² was present when he prepared the statement. Respondent also prepared a Chapter 13 plan, summary of schedules, and Schedules A through J. 13. Local Bankruptcy Rule 9010-5 required respondent to enter his appearance on Williams’ behalf when he prepared the Statement of Financial Affairs and other documents connected with the petition. 14. Question 9 on the statement of financial affairs stated: Payments related to debt counseling or bankruptcy “List all payments made or property transferred by or on behalf of a debtor to any persons, including attorneys, for consultation concerning debt consolidation, relief under the bankruptcy law or preparation of a petition in bankruptcy within one year immediately preceding the commencement of this case.” Respondent, on Williams’ behalf, checked the box marked “None.” He did not list Williams’ payment to Wolf. 15.

Williams testified that he believed he advised respondent that he paid Wolf. 16. Respondent advised the Bankruptcy Court on November 8, 2007 that he did not ask Williams whether or not he had paid Wolf any money. 17. The statement respondent prepared for Williams was false because Williams had, in fact, paid Wolf for consultation in connection concerning relief under the bankruptcy law. 18. Williams’ payment to Wolf should have been disclosed in answer to Question 9. 19.

On June 19, 2007, Williams filed a statement of financial affairs, schedules A through J, a summary of schedules, a matrix of creditors, a credit counseling certificate, and a Chapter 13 Plan. 20. On July 1, 2007, respondent’s admission to practice before the United States District Court of Maryland lapsed because of respondent’s failure to renew his membership in the bar of that court. ⁴²³ 21. On July 26, 2007, respondent mailed his entry of appearance in Williams’ bankruptcy case to Gerard Vetter, Esquire, Standing Chapter 13 Trustee, who had been appointed trustee in Williams’ case. Respondent did not mail his entry of appearance to the clerk of the bankruptcy court. 22.

On July 31, 2007, respondent appeared at the meeting of creditors on Williams’ behalf. 23. Respondent handed the entry of appearance to Vetter at the meeting of creditors. 24. The next proceeding in Williams’ bankruptcy case was the confirmation hearing scheduled for August 14, 2007. Respondent was aware of the hearing and advised Williams of the date.

Williams expected respondent to attend. 25. Respondent did not mark the date correctly in his calendar and failed to appear. 26. At the hearing, Judge Duncan Keir learned that Williams was represented by respondent. Judge Keir discovered that respondent had not entered his appearance on Williams’ behalf and, further, that he was not admitted to practice before the United States District Court. 27.

Judge Keir further learned at the hearing that Williams had paid both Wolf and respondent and that respondent had not advised the court of the payments Williams had made to either. 28. Bankruptcy Rule 2016(b) requires attorneys to advise the court, within fifteen days of an order for relief, of compensation they have been paid. Respondent made no filing with the court advising it of Williams’ payment to him for preparation of the bankruptcy filings. 29. Judge Keir directed the U.S. Trustees’ Office to investigate Wolfs and respondent’s activities.

On August 15, 2007, Edmund Goldberg, Esquire, of the U.S. Trustees’ Office, filed a Motion To Review Debtor’s Transactions With Attorney And Undisclosed Bankruptcy Petition Preparer. 30. On August 23, 2007, Judge Keir issued an order to show cause why sanctions should not be imposed against respondent and Wolf. ⁴²⁴ 31. On August 29, 2007, respondent filed a response to the motion. A hearing took place in the matter on November 8, 2007.

At that proceeding, respondent represented to the court that he had not asked Williams about payments he had made to Wolf. He had no explanation at that time for his failure to appear, other that [sic] to say he believed it was to take place on the following day. Respondent had refunded Williams his $1,000 prior to the proceeding. 32. Because respondent was not admitted to the United States District Court, Judge Keir referred this matter to the Attorney Grievance Commission for possible discipline. 33.

Respondent testified that when he became aware that his membership in the federal bar had lapsed, he applied for admission on August 17, 2007. He said that his admission was on hold, pending the outcome of any disciplinary proceeding against him. Conclusions of Law 1. By appearing at the meeting of creditors when he was not authorized to practice before the U.S. District Court, respondent violated Rule 5.5(a) and 84(d).

Rule 5.5(a) prohibits an attorney from practicing law in a jurisdiction in which he is not authorized to do so. When he represented Williams at the meeting of creditors on July 31, 2007, his membership in the bar of the United States District Court had lapsed. Therefore, he was practicing law in a jurisdiction in which he was not licensed in violation of Rule 5.5(a). Respondent’s unauthorized representation of Williams also violated Rule 8.4(d).

Attorney Grievance Comm’n v. Awuah, 374 Md. 505 , 823 A.2d 651 (2003)(holding self out as Maryland attorney while suspended in Maryland violates 5.5(a) and 8.4(d)). In this case, his unauthorized practice impaired the expeditious resolution of Williams’ bankruptcy petition. 2. Respondent violated Rules 1.1 and 84(d) by failing to enter his appearance with the United States Bankruptcy Court. ⁴²⁵ Respondent never entered his appearance with the Bankruptcy Court. Even though he prepared an entry of appearance and delivered it to the trustee both by hand and by mail, his appearance was never entered with the court as required by Local Bankruptcy Rule 9010-5.

This rule requires that an attorney who prepares a bankruptcy petition, of which the schedules and statement of financial affairs are part, “be counsel of record in all matters arising in the administration of the case”. Because respondent did not enter his appearance (which he could have lawfully done because he was admitted in June 2007), he violated the Rule. As a result, he did not get court notices and deprived the court and trustee of the knowledge that the debtor was being assisted by counsel. 3. Respondent violated Rules 1.1, 1.3, and 8.4(d) by failing to appear at the confirmation hearing on August 14, 2007.

The failure to appear at a scheduled court proceeding without a sufficient explanation is a violation of Rules 1.1, 1.3, and 8.4(d). Attorney Grievance Comm’n v. Tinsky, 377 Md. 646 , 835 A.2d 542, 545-46 (2003); Attorney Grievance Comm’n v. Harris, 366 Md. 376 , 784 A.2d 516, 531-32 (2001); Attorney Grievance Comm’n v. Mooney, 359 Md. 56 , 753 A.2d 17, 26 (2000). Respondent’s reason for his failure to do so was that he had not correctly calendared the date of the hearing, which is not a sufficient excuse. Respondent’s lack of membership in the federal bar does not excuse his failure to accompany his client to court once he had obligated himself to the client.

Had he appeared on that day, he would have been able to answer the questions which were eventually posed to him by Judge Keir at the hearing on November 8 and possibly obviated the necessity for an investigation by the United States Trustee’s Office and the subsequent hearing. 4. Respondent violated Rules 1.1 and 8.4(d) by failing to disclose his compensation as required by Bankruptcy Rule 2016(b). Williams paid respondent $1,000 of an agreed-upon fee of $1,500. At no time did respondent disclose this fact, even ⁴²⁶ though both [sic] Bankruptcy Rule 2016 required him to do so.

This shows a lack of the thoroughness required by Rule 1.1. It also deprived the court and creditors of the ability to find out how much of the debtor’s assets had been paid to the attorney and thus violated Rule 8.4(d). 5. Respondent violated Rule 1.1, 84(c), and 84(d) by failing to disclose Wolfs compensation. There is no dispute that respondent the [sic] answer to question 9, which respondent filled out in Williams’s presence, was erroneous.

Williams had paid $800 to Wolf and this information was called for by the question. Moreover, Williams testified that his recollection was he told respondent about his payment to Williams. Respondent’s evidence is that he did not know of the payment and did not ask Williams. He acknowledged that he knew that Wolf had referred Williams to him and that he knew Wolf was a bankruptcy preparer.

At a minimum, respondent’s failure to fill out the form accurately, when the correct information was available to him, is a violation of Rule 1.1 and 8.4(d). Petitioner contends that respondent also engaged in dishonest conduct in violation of Rule 8.4(c), even if the court accepts respondent’s version of events. The question called for the debtor to disclose payments to bankruptcy preparers and respondent knew that Wolf was one. Thus, he had sufficient information to be put on inquiry that the answer was “yes”.

Even without this information, it was still dishonest for him to check “no” without asking Williams, who was with him when he filled out the form. By checking “no”, respondent represented that this was the truth, when by his own admission, he had no basis for believing it was. Even when this incident is viewed in the light most favorable to respondent, his conduct amounts to an intentional misrepresentation. Accordingly, respondent violated Rule 8.4(c).

Conclusion For the reasons stated above, this Court finds, by clear and convincing evidence, that respondent had violated Maryland ⁴²⁷ Rules of Professional Conduct 1.1, 1.3, 3.3(a), 5.5(a), 8.4(c) and 8.4(d). Judge Bernstein found no facts in mitigation