Attorney Grievance v. Ambe

Attorney Grievance Commission of Maryland v. Jude Ambe, Misc. Docket AG No. 21, September Term, 2018. Opinion by Barbera, CJ. ATTORNEY MISCONDUCT — DISCIPLINE — DISBARMENT — Respondent Jude Ambe violated Maryland Attorneys’ Rules of Professional Conduct 19-301.1, 19- 301.2, 19-301.3, 19-301.4, 19-301.5, 19-301.15, 19-301.16, 19-303.3, 19-308.1, and 19- 308.4.

These violations principally arose from Respondent’s inexcusable failure to appear in court; various material misrepresentations to a tribunal and Bar Counsel; neglect of his client’s case; and failure to properly maintain client funds in his attorney trust account. In conjunction with several aggravating factors, these violations result in disbarment as the appropriate sanction for Respondent’s misconduct. Circuit Court for Montgomery County Case No. 455261-V Argued: September 8, 2019 IN THE COURT OF APPEALS OF MARYLAND Misc. Docket AG No. 21 September Term, 2018 ATTORNEY GRIEVANCE COMMISION OF MARYLAND v. JUDE AMBE Barbera, C.J., McDonald Watts Hotten Getty Booth Adkins, Sally D., (Senior Judge, Specially Assigned) JJ.

Opinion by Barbera, C.J. Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. Filed: October 21, 2019 2019-10-21 13:35-04:00 Suzanne C. Johnson, Clerk Petitioner, the Attorney Grievance Commission of Maryland, acting through Bar Counsel, filed in this Court a Petition for Disciplinary or Remedial Action against Respondent, Jude Ambe, regarding a complaint filed against him by a former client, Hans Yondo Ngale (“Mr. Ngale”). The petition alleges violations of the Maryland Attorneys’ Rules of Professional Conduct (“MARPC”) 19-301.1 (Competence), 19-301.2 (Scope of Representation), 19-301.3 (Diligence), 19-301.4 (Communication), 19-301.5 (Fees), 19- 301.15 (Safekeeping Property), 19-301.16 (Declining or Terminating Representation), 19- 303.3 (Candor), 19-308.1 (Bar Admission and Disciplinary Matters), and 19-308.4 (Misconduct). On September 20, 2018, Petitioner filed its petition.

This Court transmitted the matter to the Circuit Court for Montgomery County and designated the Honorable James A. Bonifant (“the hearing judge”) to conduct an evidentiary hearing and make proposed findings of fact and conclusions of law. The hearing took place on February 13-14, 2019. At the hearing, the judge heard testimony from Respondent and Mr. Ngale. We adopt in large part the hearing judge’s proposed findings of fact and conclusions of law.

Based on the rule violations that Respondent committed, as well as the aggravating and mitigating factors we have identified, we disbar Respondent. I. The Hearing Judge’s Findings of Fact We summarize here the hearing judge’s findings of fact, which are supported by clear and convincing evidence. 1 Background Respondent was admitted to the New York Bar in 2009. He is not a member of the Maryland Bar.1 During his legal career, Respondent operated an immigration law practice. While representing Mr. Ngale, Respondent maintained an office in Montgomery County, Maryland.

Mr. Ngale is a citizen of the Republic of Cameroon. His native language is Bakweri and he speaks Pidgin English. He entered the United States through Mexico in April 2016 and immediately applied for asylum. In a written statement given to the Department of Homeland Security, Mr. Ngale claimed he was imprisoned and tortured by Cameroonian officials.

While being transferred from one facility to another during his imprisonment, Mr. Ngale escaped and traveled to Nigeria, then to Mexico. 1. First Master Calendar Hearing The Department of Homeland Security held Mr. Ngale in a detention center in Adelanto, California from April 17, 2016, to November 2016. Mr. Ngale received a “Notice to Appear” before the United States Immigration Court (“Immigration Court”), issued June 9, 2016. The Notice alleged that Mr. Ngale was subject to removal proceedings because he was not a United States citizen or national, and he entered the country without proper documentation.

The Immigration Court scheduled a Master Calendar Hearing for 1 Respondent is nonetheless subject to the disciplinary authority of the Court of Appeals pursuant to MARPC 19-308.5(a)(2). 2 June 22, 2016, to identify the issues in Mr. Ngale’s case and schedule deadlines and future hearings. Mr. Ngale spoke to Respondent on the telephone shortly before and after his first Master Calendar Hearing on June 22, 2016. Mr. Ngale had learned of Respondent through Norbert Chingo, another detainee at the Adelanto Detention Center. Respondent also represented Norbert Chingo.

Norbert Chingo’s brother, Derrick Chingo (“Mr. Chingo”), knows Respondent through an adult soccer club in Maryland. During the calls on June 22, 2016, Mr. Ngale hired Respondent to represent him regarding his asylum petition and request to be released on bond. Mr. Ngale and Respondent later disagreed about the terms of payment reached during those phone calls. The hearing judge found that Respondent agreed to: (1) represent Mr. Ngale; (2) litigate the asylum petition before the Immigration Court and help secure Mr. Ngale’s release on bond; and (3) charge a $5,000 flat fee that included travel expenses.

Mr. Ngale was to remit $1,400 immediately and pay the balance over time after his release. Respondent claimed that during the representation, Mr. Ngale permitted Mr. Chingo to act on his behalf. In his statement under oath to Bar Counsel, Respondent stated that he provided Mr. Chingo with a copy of a retainer agreement for Mr. Ngale. At trial, Respondent testified to the contrary and admitted the terms of the representation were never memorialized in writing. 3 2.

Second Master Calendar Hearing Upon the advice of Respondent, Mr. Ngale appeared pro se at the first Master Calendar Hearing and requested a continuance to secure representation. The Immigration Court granted the request and scheduled a second Master Calendar Hearing for July 13, 2016. On June 27, 2016, Mr. Ngale’s brother-in-law, Elvis Munjong, received $1,400 from Mr. Ngale’s family via Western Union and gave it to Respondent. There are no billing records for that transaction.

Respondent could not confirm that he gave a receipt to Elvis Munjong when he received the payment, but he testified that he later provided Mr. Chingo with a receipt. Respondent did not produce any receipts or records of the payment, however. 3. Third Master Calendar Hearing On July 12, 2016, Respondent filed a Notice of Appearance on Mr. Ngale’s behalf and a Motion for Continuance of the July 13, 2016, second Master Calendar Hearing. The Immigration Court granted the motion, scheduled a third Master Calendar Hearing for August 11, 2016, and stated in the order, “The Court expects both pleadings as well as all application[s] for relief to be filed at the next hearing or they will be deemed waived/abandoned.” Respondent did not inform Mr. Ngale of his intention to request a continuance or that it was granted.

Respondent and Mr. Ngale spoke on the phone on July 12, 2016, and Respondent instructed Mr. Ngale to fill out a Form I-589, Application for Asylum and for Withholding 4 Removal. In late July 2016, Respondent received by mail these documents and Mr. Ngale’s handwritten narrative about his captivity in Cameroon. On August 9, 2016, Respondent travelled to California and met Mr. Ngale at the Adelanto Detention Center to prepare his asylum application before the upcoming third Master Calendar Hearing. After that meeting, Respondent returned to his hotel room to finalize the application.

Respondent testified at the evidentiary hearing, and also under oath in a statement to Bar Counsel, that immediately preceding the third Master Calendar Hearing on August 11, 2016, he and Mr. Ngale reviewed and edited the application from beginning to end. The hearing judge found that Respondent’s testimony was not credible regarding how substantively Respondent reviewed the asylum application with Mr. Ngale. Rather, Mr. Ngale’s testimony established that Respondent rushed through filling out the application. Mr. Ngale’s testimony further established that Respondent did not give Mr. Ngale an opportunity to read the application before appearing in court.

Respondent instructed Mr. Ngale to sign the application in front of the Immigration Court judge and just say “yes” if asked whether Mr. Ngale had read the documents. Respondent filed this application with the Immigration Court, and a hearing on the merits (“Merits Hearing”) was scheduled for November 7, 2016. 4. First Bond Hearing The Immigration Court judge also scheduled a bond hearing (“Bond Hearing”) for October 19, 2016. Respondent filed a motion to appear by telephone.

He testified that the court denied the motion, and “for administrative reasons” rescheduled the Bond Hearing 5 to November 7, 2016, the same day as the Merits Hearing. Contrary to this testimony, the hearing judge determined, based on a Show Cause Order issued by the Immigration Court, that Respondent appeared via telephone at the October 19, 2016, Bond Hearing and requested the continuance. 5. Merits Hearing and Second Bond Hearing Respondent failed to appear at the November 7, 2016, Merits and Bond Hearings. He had traveled to Cameroon on October 31, 2016, and returned on November 8, 2016.

Respondent did not file any motions for withdrawal, postponement, or to appear telephonically, nor did he contact the Immigration Court to give notice of his absence. Mr. Ngale requested a continuance at the Merits Hearing and the Immigration Court denied it. Forced to proceed without counsel, Mr. Ngale represented himself and gave testimony inconsistent with his application for asylum. For example, the torture described in the asylum application included electrocution, but this description was omitted in Mr. Ngale’s testimony.

The application also described with detail the political group Mr. Ngale claimed to be a member of, but Mr. Ngale testified that he did not “really know much about the group” when questioned by the judge. Based on those inconsistencies, the Immigration Court found Mr. Ngale not credible and denied his asylum application. He was given thirty days to file an appeal. The Immigration Court also ordered Mr. Ngale to be released on $25,000 bond. 6 6.

Order to Show Cause When Respondent missed the Merits and Bond Hearings on November 7, 2016, the Immigration Court issued an Order to Show Cause regarding his absence. In an untimely response to the Immigration Court, Respondent alleged he traveled to Cameroon on October 30, 2016, due to a family emergency. 7. Release on Bond and Appeal Mr. Ngale called Respondent the day after the Merits and Bond Hearings to get assistance with securing the bond for his release. Respondent located a bond company who wrote and arranged to pay the $25,000 bond and associated expenses.

Respondent directed Mr. Ngale to travel to Maryland after his release. Mr. Chingo gave Respondent $6,000 on Mr. Ngale’s behalf for the bond and related expenses. Respondent did not deposit the $6,000 in an attorney trust account. There are no records about the bond expenses, nor documents showing how the money was spent except for a deposit receipt from Bank of America.

Respondent testified at the evidentiary hearing that the bond premium and processing fee totaled $3,850. However, Respondent could not properly account for the remaining $2,150. Respondent stated under oath to Bar Counsel that he agreed to assist with the bond for an additional $1,250. When questioned at the evidentiary hearing about how the $6,000 was allocated, Respondent omitted the $1,250 from his testimony.

Respondent also gave conflicting testimony on the various expenses associated with transferring Mr. Ngale from California to Maryland. He could not, however, provide any supporting documentation for those expenses. 7 In Maryland, Respondent and Mr. Ngale met to discuss appealing Mr. Ngale’s Order of Removal, and Respondent proposed a $1,500 flat fee. They disputed the funds already owed to Respondent, and Mr. Ngale paid $500 towards the appeal. Respondent did not deposit the funds in an attorney trust account.

Respondent filed a Notice of Appeal with the Board of Immigration Appeals on December 5, 2016, and entered his appearance on behalf of Mr. Ngale. 8. Termination After the Notice of Appeal was filed, Respondent refused to discuss the appeal with Mr. Ngale unless Mr. Ngale paid more money. Mr. Ngale terminated the representation in December 2016, and requested his case file. Respondent refused to turn over the file and informed Mr. Ngale that he needed the file to respond to the Immigration Court’s Show Cause Order.

At the evidentiary hearing, Respondent further testified that the file was Respondent’s property. Mr. Ngale’s new attorney, Ms. Beach-Oswald, mailed Respondent a letter on February 23, 2017, to inform him that she now represented Mr. Ngale and again requested his case file.2 Respondent failed to respond. Respondent never filed a motion with the Immigration Court to withdraw his appearance as Mr. Ngale’s attorney. On March 8, 2017, the Board of Immigration Appeals mailed Respondent a briefing schedule, directing Respondent to file Mr. Ngale’s appeal 2 Ms. Beach-Oswald mailed the letter to Respondent’s office but in the salutation addressed the letter to “Mr. Tatung.” 8 brief by March 30, 2017.

Respondent did not inform Mr. Ngale or Ms. Beach-Oswald of the briefing schedule or that his appeal brief was due by the end of the month. 9. Bar Counsel’s Investigation Mr. Ngale filed a complaint against Respondent with the Attorney Grievance Commission on April 17, 2017. In his response, Respondent made assertions that contradict his response to the Show Cause Order and his testimony at the evidentiary hearing. Principally, Respondent explained that his trip to Cameroon was pre-planned, contrary to the family emergency he cited in his response to the Show Cause Order to the Immigration Court.

Respondent further explained that when the Immigration Court rescheduled Mr. Ngale’s October 19, 2016, Bond Hearing to November 7, 2016, Respondent knew this date conflicted with his travel plans and informed Mr. Ngale about the conflict. Furthermore, Respondent averred to Bar Counsel that Mr. Ngale and his new attorney are using him as a “scapegoat” to re-open Mr. Ngale’s case. As such, he was “at a lost [sic] why instead of thanking me; [sic] Mr. Ngale is filing a complaint against me.” II. The Hearing Judge’s Conclusions of Law The hearing judge determined that Respondent violated MARPC 19-301.1, 19- 301.2(a), 19-301.3, 19-301.4(a) and (b), 19-301.5(a), 19-301.15(a) and (c), 19-301.16(a) and (d), 19-303.3(a), 19-308.1(a), and 19-308.4(a), (c), and (d).

Respondent excepts to some of the hearing judge’s findings of fact and conclusions of law; Bar Counsel excepts 9 to none. We shall address each factual finding and conclusion of law to which Respondent excepts and, in the course of doing so, address the hearing judge’s conclusions of law.

III

Standard of Review This Court has original and complete jurisdiction in attorney disciplinary proceedings and “conducts an independent review of the record.” Attorney Grievance Comm’n v. McLaughlin, 456 Md. 172, 190 (2017) (citation omitted). The hearing judge’s findings of fact are left undisturbed unless those findings are clearly erroneous or either party successfully excepts to them. Attorney Grievance Comm’n v. Kremer, 432 Md. 325, 334 (2013). The hearing judge’s factual findings are not clearly erroneous if they are supported by “any competent material evidence.” Attorney Grievance Comm’n v. McDonald, 437 Md. 1, 16 (2014) (citation omitted).

We review the hearing judge’s conclusions of law without deference. Attorney Grievance Comm’n v. Hamilton, 444 Md. 163, 178 (2015).

IV

Discussion Respondent’s Factual Exceptions Respondent makes ten exceptions to the proposed findings of fact and conclusions of law. The hearing judge determined―and we accept―that Mr. Ngale was more credible than Respondent regarding several of the factual findings to which Respondent takes exception. To the extent that the hearing judge relied on a credibility determination for a 10 factual finding or Respondent did not produce any other evidence that warrants overturning the findings of fact or conclusions of law, we overrule those exceptions. Attorney Grievance Comm’n v. Thompson, 462 Md. 112, 134 (2018) (“Given that Respondent did not present further evidence in the record to reveal that the hearing judge’s findings were clearly erroneous, we reject Respondent’s factual exceptions.”).

Those exceptions include whether: (1) Mr. Ngale struggles with the English language; (2) the $5,000 flat fee included travel expenses; (3) Respondent was authorized to seek a continuance of the July 13, 2016, hearing; (4) Mr. Ngale and Respondent substantively reviewed the asylum application together; (5) Respondent appeared for the October 19, 2016, Bond Hearing; and (6) Mr. Ngale requested an accounting. Respondent did not produce any evidence regarding two of the remaining four exceptions: (1) the date Respondent received Mr. Ngale’s partial payment of $1,400; and (2) whether Derrick Chingo was authorized to speak on Mr. Ngale’s behalf. Neither Respondent nor Mr. Ngale dispute that Respondent received $1,400 from Mr. Ngale’s brother-in-law, Elvis Munjong; they only dispute the date it was received. The date, however, is of no consequence to the conclusions of law and, absent evidence to the contrary, nothing warrants disturbing this factual finding.

With regard to Mr. Chingo, Respondent urges this Court to assume Mr. Ngale authorized Respondent to speak with Mr. Chingo on Mr. Ngale’s behalf. Mr. Ngale “testified that Derrick Chingo talked to Respondent for him; he recited Derrick Chingo’s street address from memory; and he asked Derrick Chingo to give money that was sent 11 from his family in Cameroon to Respondent.” As the hearing judge determined, however, Respondent never received a written authorization from Mr. Ngale to interact with Mr. Chingo on his behalf. Moreover, because Respondent and Mr. Ngale were in frequent contact, there would be no reason Respondent should interact with Mr. Chingo in lieu of Mr. Ngale (e.g., when providing a retainer agreement). As such, the hearing judge’s finding that Respondent lacked authorization to interact with Mr. Chingo on Mr. Ngale’s behalf is not clearly erroneous, and this exception is overruled.

Finally, Respondent excepts to the hearing judge’s finding that the “issue was not the maintenance of an attorney trust account, but rather a complete failure to use the attorney trust account.” Respondent put forth no argument or evidence in support of this exception. Nonetheless, we discuss this exception further when addressing the mitigating and aggravating factors that were argued in this case. Conclusions of Law We turn now to review the hearing judge’s conclusions of law. MARPC 19-301.1: Competence MARPC 19-301.1 requires an attorney to “provide competent representation to a client.” Incompetent representation occurs when an attorney fails “to take necessary, fundamental steps” in a client’s case.

Attorney Grievance Comm’n v. Bellamy, 453 Md. 377, 393 (2017) (citations omitted). This Rule may be violated when an attorney fails to appear in court on a client’s behalf, Bellamy, 453 Md. at 393 ; fails to adequately prepare a 12 client, Attorney Grievance Comm’n v. Chanthunya, 446 Md. 576, 601 (2016); or mishandles client funds, Attorney Grievance Comm’n v. White, 448 Md. 33, 58 (2016). Respondent violated MARPC 19-301.1 by failing to attend the November 7, 2016, Merits and Bond Hearings. For an attorney to fail to appear without sufficient explanation is a “particularly egregious” violation of Rule 19-301.1.

Hamilton, 444 Md. at 180 ; see also Attorney Grievance Comm’n v. Lang & Falusi, 461 Md. 1, 44 (2018). Respondent had notice of the Merits Hearing as early as August 11, 2016, when that date was set by the Immigration Court at the third Master Calendar Hearing. The October 19, 2016, Bond Hearing was postponed to November 7, 2016, with the Merits Hearing, of which Respondent also had notice.3 Respondent informed Mr. Ngale he would not attend the Merits and Bond Hearings due to pre-existing travel plans, yet Respondent did not notify the Immigration Court of his intentions. Neither did Respondent request a postponement nor secure alternative representation for Mr. Ngale.

Respondent asks this Court to excuse his absence because Mr. Ngale’s family did not pay for Respondent’s return airfare from Cameroon. However, this was not part of the agreed upon fee arrangement, and even so, Respondent still was required to appear. As Mr. Ngale’s counsel, Respondent was obligated to ensure Mr. Ngale received proper representation at the Merits and Bond Hearings. Rather, Respondent inexcusably failed to attend these hearings despite several months of advance notice. 3 There is conflicting testimony about whether the Immigration Court postponed the hearing of its own accord or upon Respondent’s motion.

The hearing judge determined that it was Respondent who requested the postponement. 13 Respondent also violated MARPC 19-301.1 by failing to adequately review Mr. Ngale’s asylum application with him. To his detriment, Mr. Ngale provided testimony before the Immigration Court that conflicted with his asylum application. For example, the Immigration Court judge quoted a line from the application about Mr. Ngale’s “militant” siblings. When questioned about this statement, Mr. Ngale asked the judge, “What is militant?” Had Respondent reviewed the application with Mr. Ngale and properly prepared him for the Merits Hearing, these inconsistencies may have been reconciled before appearing in court.

Respondent denied Mr. Ngale the opportunity to understand the contents of his asylum application, which led to Mr. Ngale’s inconsistent testimony and ultimately the order of his removal to Cameroon. Finally, Respondent violated MARPC 19-301.1 by failing to appropriately handle and account for the funds entrusted to him on Mr. Ngale’s behalf during the pendency of the representation. MARPC 19-301.2(a): Scope of Representation MARPC 19-301.2(a) requires lawyers to “abide by a client’s decision concerning the objectives of representation.” For an attorney to satisfy those objectives, clients need to be able to make informed decisions. Hamilton, 444 Md. at 182 . “In order for a client to make informed decisions … an attorney must give the client honest updates regarding the status of his or her case.” Attorney Grievance Comm’n v. Shapiro, 441 Md. 367, 380 (2015). 14 Respondent violated MARPC 19-301.2 by requesting postponements without Mr. Ngale’s knowledge or consent.

Attorney Grievance Comm’n v. Edwards, 462 Md. 642, 698 (2019) (finding Rule violation where attorney filed motions for continuance and failed to notify her client). Respondent filed motions to continue the July 13, 2016, second Master Calendar Hearing and the October 19, 2016, Bond Hearing. Mr. Ngale even appeared for the July 13, 2016, second Master Calendar Hearing under the impression that it was going forward as originally scheduled. Respondent alleges the Immigration