Attorney Grievance Commission v. Velasquez

BELL, C.J. The Attorney Grievance Commission of Maryland, the petitioner, acting pursuant to Maryland Rule 16-751, 1 approved the filing by Bar Counsel of a Petition For Disciplinary or Remedial Action against Ray I. Velasquez, the respondent. In that petition, Bar Counsel charged him with misconduct, as defined by Maryland Rules 16-701(i), 2 and 16-812, and consisting of violations of various of the Maryland Rules of Professional Conduct, as adopted by the latter Maryland Rule. In particular, the respondent was alleged to have violated Rules ⁶⁵³ 1.3, Diligence, 3 1.4, Communication, 4 1.5, Fees, 5 1.5, Safekeeping Property, 6 1.16, Declining or Terminating Representation, 7 ⁶⁵⁴ 5.5, Unauthorized Practice of Law, 8 8.1, Bar Admission and Disciplinary Matters, 9 and 8.4, Misconduct, 10 of the Maryland Rules of Professional Conduct. We referred the case to the Honorable Sean D. Wallace, of the Circuit Court for Prince George’s County, for a hearing pursuant to Rules 16-752(a) 11 and 16-757(c). 12 Following the hearing, the hearing court ⁶⁵⁵ found facts and drew conclusions of law as follows.

Having been disbarred in 1984, see Attorney Grievance Comm’n v. Velasquez, 301 Md. 450 , 483 A.2d 354 (1984), the respondent was reinstated in 1997 as a member of the Maryland Bar, after which he established his law practice in Upper Marlboro, Maryland. The respondent is not admitted to practice in Virginia. In 2000, the respondent accepted a retainer to represent Milton Moreno in connection with his criminal conviction of rape in Virginia. Pursuant to the retainer agreement, executed by Mr. Moreno’s sister, the respondent agreed to investigate the charges of which Mr. Moreno had been convicted and request a new trial.

Less than a month after the retainer agreement was executed, he visited Mr. Moreno at a Virginia State prison, during which he “offered [Mr. Moreno] legal advice about his case, including advice about grounds for a new trial and/or post-conviction relief.” The respondent did not inform Mr. Moreno that he was not admitted to practice in Virginia. He has not visited Mr. Moreno since. Nor has the respondent spoken to him by phone or communicated with him by written correspondence. No motions, petitions or other pleadings were filed in a court on Mr. Moreno’s behalf.

In short, rather than rendering any meaningful service to Mr. Moreno, the respondent abandoned his representation of Mr. Moreno, without informing him of its termination. The respondent was paid $ 1500.00 at the time of the execution of the retainer agreement and, subsequently, he received an additional $ 800.00. None of these monies was deposited into an attorney trust or escrow account and, because the only meaningful service rendered Mr. Moreno was the visit to the prison, little if any of the monies were, or ever have been, earned. ⁶⁵⁶ Complaints were filed by Mr. Moreno with both the Maryland State Bar Association and the Virginia State Bar Association. 13 The Maryland State Bar Association forwarded the complaint filed with it to the petitioner, which, in the course of investigating it, sent several written requests for information to the respondent. The respondent failed to respond timely on two occasions.

He did, however, provide some of the requested information, first by letter and subsequently by a document captioned, “Affidavit of Ray Velasquez.” Following up on the information in the affidavit, the petitioner made a written request for additional information from the respondent. The respondent did not respond at all to that request. Based on these findings of fact, the hearing judge concluded that the respondent violated each of the rules charged, except Rule 8.4(a). Rule 1.3 was violated, he said, when, having been “engaged to provide legal services to Milton Moreno, [the respondent] failed to act with reasonable diligence and promptness in carrying out that representation.” Because the respondent did not keep Mr. Moreno informed as to the status of the representation or inform him that he was not licensed to practice law in Virginia, Rule 1.4(a) and (b) were violated.

Combining the respondent’s lack of a license to practice law in Virginia with his failure to render any meaningful services in connection with the representation he had undertaken and noting the respondent’s collection and retention of a fee, the hearing judge found a violation of Rule 1.5(a). Having collected the fee, the respondent’s failure to hold it in an escrow ⁶⁵⁷ account separate from his personal funds, until earned, violated, he determined, Rule 1.15(a). The Rule 1.16(d) violation consisted of the respondent’s abandonment of his representation of Mr. Moreno, without giving reasonable notice or returning the unearned fee. With respect to Rule 5.5(a), the hearing judge concluded: “As determined by the Virginia State Bar’s Standing Committee on Unauthorized Practice of Law, and by this court upon its review of the evidence in this matter, the Respondent engaged in activity constituting the practice of law in Virginia, where the Respondent was not authorized to practice.

He therefore violated MRPC 5.5(a), which prohibits a lawyer from practicing law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction. The Rules of the Supreme Court of Virginia prohibit any person who is ‘not duly licensed or authorized to practice law in the Commonwealth of Virginia’ from engaging in the practice of law or in any [manner] holding himself out as authorized or qualified to practice law in the Commonwealth of Virginia. Virginia Rules of Court, Part Six, § I.” The hearing judge added that, because Section 54.1-3904 of the Virginia Code Annotated provides that the unauthorized practice of law is a crime, a class 1 misdemeanor, punishable by both fine and imprisonment, the respondent’s unauthorized practice of law in Virginia also constituted the commission of a criminal act reflecting adversely on his honesty, trustworthiness or fitness as a lawyer in other respects, in violation of Rule 8.4(b). The respondent’s unauthorized practice in Virginia, coupled with the failure to disclose that fact to the client and accepting a fee for representation that he could not perform, were, to the hearing judge, conduct involving dishonesty, fraud, deceit or misrepresentation.

That conduct, he was satisfied, violated Rule 8.4(c). Rule 8.1(b) was violated, the hearing judge concluded, when the respondent knowingly failed to respond to the petitioner’s lawful demand for infor ⁶⁵⁸ mation. “Taken in its entirety, the Respondent’s conduct was prejudicial to the administration of justice and therefore violated MRPC 8.4(d).” No exceptions were taken to the hearing judge’s findings of fact or the conclusions of law with respect to the charged misconduct. Indeed, the respondent did not participate at all in the proceedings. Referencing the respondent’s earlier disbarment for commingling his personal and business funds with client funds in his escrow account and converting client funds to his own personal and business use, see Attorney Grievance Comm’n v. Velasquez, 301 Md. 450 , 483 A.2d 354 (1984), the petitioner recommends the ultimate sanction, disbarment, as the appropriate sanction for the misconduct found in this case.

In doing so, the petitioner relies on Attorney Grievance Comm’n v. Tinsky, 377 Md. 646 , 835 A.2d 542 (2003). The respondent in Tinsky was found to have violated MRPC 1.1, 1.3, 1.4, 1.16(d) and 8.4(d) in connection with his representation of a client in two criminal cases then pending in the Circuit Court for Prince George’s County, Maryland. Id. at 649-652 , 835 A.2d at 544-546 . The facts underlying those findings consisted of the respondent accepting a fee and entering his appearance in those two cases and then failing to appear at scheduled trials.

Id. In addition, without notice to the court or to his client, the respondent closed his law office in Upper Marlboro, Maryland. Id. In support of its recommendation that the respondent be disbarred, Bar Counsel emphasized the respondent’s “complete and unexplained abandonment of his law practice and his failure to return unearned fees.” Id. at 653 , 835 A.2d at 546 .

Accepting that recommendation, we stated: “Tinsky betrayed the trust that his clients placed in him when they sought his assistance and the public trust with which he was endowed when he was admitted to the Bar of this Court.” Id. at 655-656 , 835 A.2d at 547 . As in Tinsky , after having undertaken the representation for which he charged, and received a fee, and without informing the client that he was going to do so, the respondent abandoned his representation of Mr. Moreno. Moreover, he ⁶⁵⁹ did not return the unearned fee. Thus, the respondent violated the same rules that the respondent in Tinsky violated.

The respondent in this case, however, violated additional rules. He was found to have engaged in the unauthorized practice of law in Virginia. Because unauthorized practice is a crime in Virginia, as in most States, that conduct doubled as the commission of a crime reflecting on the respondent’s fitness to practice and, when it is considered that the respondent failed to disclose his lack of licensure, it constituted conduct involving fraud, deceit or misrepresentation. In the case sub judice, both the conduct and the violations are consequently more egregious than in Tinsky .

In Attorney Grievance Comm’n v. Alsafty, 379 Md. 1, 18 , 838 A.2d 1213, 1223 (2003), this Court reiterated what it acknowledged in Attorney Grievance Comm’n v. Barneys, 370 Md. 566, 592 , 805 A.2d 1040, 1055 (2002), that there is a trend in this Court favoring disbarment as the appropriate sanction for the unauthorized practice of law. We pointed out that the Court in Barneys identified three reasons distinguishing the cases resulting in disbarment, see Attorney Grievance Comm’n v. Johnson, 363 Md. 598 , 770 A.2d 130 (2001); Attorney Grievance Comm’n v. Briscoe, 357 Md. 554 , 745 A.2d 1037 (2000); Attorney Grievance Comm’n v. Harper, 356 Md. 53 , 737 A.2d 557