Attorney Grievance v. Kaufman

Attorney Grievance Commission of Maryland v. Kenneth Steven Kaufman, Misc. Docket AG No. 26, September 2018 Term. Opinion by Hotten, J. ATTORNEY DISCIPLINE — SANCTIONS — DISBARMENT The Court of Appeals disbarred Kenneth Steven Kaufman from the practice of law in Maryland. This Court found that Respondent violated MARPC 19-301.1 (Competence), 19-301.2 (Scope of Representation), 19-301.3 (Diligence), 19-301.4 (Communication), 19- 301.5 (Fees), 19-301.16 (Declining or Terminating Representation), 19-308.1 (Bar Admission and Disciplinary Matters), and 19-308.4 (Misconduct) in his representation of a former client.

Respondent failed to communicate with the client regarding the status of her case, ignored her many attempts to contact him, failed to respond to or oppose motions for summary judgment filed by the defendants in the case, failed to appear on behalf of his client at two hearings, failed to inform the client that her case was dismissed, failed to inform her that the defendants were seeking punitive sanctions, and failed to participate in the attorney grievance proceeding. His conduct warranted disbarment. Circuit Court for Montgomery County Case No. 455953-V Argued: September 5, 2019 IN THE COURT OF APPEALS OF MARYLAND Misc. Docket AG No. 26 September Term, 2018 __________________________________ ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. KENNETH STEVEN KAUFMAN __________________________________ Barbera, C.J., McDonald, Watts, Hotten, Getty, Booth, Raker, Irma S.

(Senior Judge, Specially Assigned) JJ. __________________________________ Opinion by Hotten, J. __________________________________ Filed: November 22, 2019 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. Suzanne Johnson 2020-03-27 16:48-04:00 Suzanne C. Johnson, Clerk The Attorney Grievance Commission of Maryland, acting through Bar Counsel (“Petitioner”), directed that charges be filed against Kenneth Steven Kaufman (“Respondent”), stemming from an investigation of claims by a former client, Aratesh Hekmat, pursuant to Maryland Rule 19-721.1 By Order dated October 9, 2018, this Court designated the Honorable Jill R. Cummins (“Hearing Judge”) of the Circuit Court for Montgomery County to consider the matter and render factual findings and conclusions of law. On December 13, 2018, Respondent was served with the Petition for Disciplinary or Remedial Action, Interrogatories, Request for Production of Documents, and Request for Admission of Facts and Genuineness of Documents, as well as the Writ of Summons and this Court’s October 9 Order, referring the matter to the Hearing Judge. Respondent failed to file an answer to the Petition, timely or otherwise.

As such, Petitioner filed a Motion for Order of Default. The circuit court granted the Motion and scheduled an evidentiary hearing on the Petition. The Order of Default notified Respondent that he could move to vacate the Order within 30 days of the entry of default. The circuit court issued a corresponding notice of default.

Respondent neglected to respond to the Order or the notice. 1 Md. Rule 19-721 provides, in pertinent part: (a) Commencement of Action. (1) Upon Approval or Direction of the Commission. Upon approval or direction of the Commission, Bar Counsel, on behalf of the Commission, shall file a Petition for Disciplinary or Remedial Action in the Court of Appeals. The Hearing Judge held the evidentiary hearing on February 25, 2019.

Respondent failed to appear. During the course of the hearing, it was determined that Respondent had failed to respond to Petitioner’s Request for Admission of Facts pursuant to Maryland Rule 2-424.2 Accordingly, the Hearing Judge deemed the requests admitted and entered the Petitioner’s Admission of Facts into evidence. At the conclusion of the proceeding, the Hearing Judge found, by clear and convincing evidence, that Respondent violated 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)3, 19-301.16 (Declining or Terminating Representation), 19-308.1 (Bar 2 Md. Rule 2-424(b) provides: (b) Response. Each matter of which an admission is requested shall be deemed admitted unless, within 30 days after service of the request or within 15 days after the date on which that party’s initial pleading or motion is required, whichever is later, the party to whom the request is directed serves a response signed by the party or the party’s attorney.

As to each matter of which an admission is requested, the response shall set forth each request for admission and shall specify an objection, or shall admit or deny the matter, or shall set forth in detail the reason why the respondent cannot truthfully admit or deny it. The reasons for any objection shall be stated. A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify an answer or deny only a part of the matter of which an admission is requested, the party shall specify so much of it as is true and deny or qualify the remainder. A respondent may not give lack of information or knowledge as a reason for failure to admit or deny unless the respondent states that after reasonable inquiry the information known or readily obtainable by the respondent is insufficient to enable the respondent to admit or deny.

A party who considers that a matter of which an admission is requested presents a genuine issue for trial may not, on that ground alone, object to the request but the party may, subject to the provisions of section (e) of this Rule, deny the matter or set forth reasons for not being able to admit or deny it. 3 Effective July 1, 2016, the Maryland Lawyers’ Rules of Professional Conduct (continued . . . ) 2 Admission and Disciplinary Matters), and 19-308.4 (Misconduct). We republish the Hearing Judge’s findings of fact and conclusions of law below. FINDINGS OF FACT The Hearing Judge rendered the following findings regarding Respondent’s legal practice and his representation of Ms. Hekmat: The Respondent[,] [Kenneth Steven Kaufman,] was admitted to the Bar of the State of Maryland on December 19, 1985. At all times relevant [to this action, Respondent] maintained an office for the practice of law at his home located in Montgomery County, Maryland.

Representation of Aratesh Hekmat On September 16, 2015, Arasteh Hekmat retained the Respondent to represent her in a claim against Francisco and Monica Lainez, Joe Muldoon, and JM Fine Homes, LLC[,] relating to a dispute over a real estate commission due from a real estate sale. Ms. Hekmat and Respondent signed an engagement letter as to his representation, fees, and billing practices. The Respondent agreed to represent Ms. Hekmat for a flat fee in the amount of $2,500 plus 33.3% of any funds recovered from a judgment or a settlement. Ms. Hekmat paid the Respondent $2,500.

The Respondent failed to provide Ms. Hekmat with a written agreement outlining the contingency fee [portion of their arrangement]. On April 25, 2016, the Respondent filed a complaint on behalf of Ms. Hekmat[,] naming Francisco and Monica Lainez, Joe Muldoon and JM Fine Homes, LLC[,] as defendants in the Circuit Court for Montgomery County, Case No. 420248V. On July 5, 2016, the Lainezes filed a Motion to Dismiss the Complaint. On August 1, 2016, the Respondent filed an opposition motion[.] On September 21, 2016, the [c]ircuit [c]ourt held a hearing on the Lainezes’ Motion to Dismiss.

At the conclusion of the hearing, the [c]ircuit (. . . continued) (“MLRPC”) were renamed the Maryland Attorneys’ Rules of Professional Conduct (“MARPC”) and re-codified, without substantive change, in Title 19 of the Maryland Rules. Respondent’s misconduct as to fees occurred both prior to July 2016, and after the recodification. For purposes of consistency and clarity, we refer to MARPC throughout this opinion. 3 [c]ourt denied the Motion to Dismiss as to Counts 1 & 2; and granted the Motion to Dismiss in part and dismissed Count 8 of the complaint with prejudice against the Lainezes. On January 17, 2017, Defendants Muldoon and JM Fine Homes, LLC filed a Motion for Summary Judgment.

On January 19, 2017, Defendants Lainezes also filed a Motion for Summary Judgment. The Respondent failed to advise Ms. Hekmat that the defendants had filed Motions for Summary Judgment. On January 19, 2017, the [c]ircuit [c]ourt held a pretrial/status hearing. At the pretrial hearing, the court scheduled a hearing on the motions for summary judgment for February 28, 2017 and scheduled the case for a one- day court trial on May 3, 2017.

The Respondent failed to advise Ms. Hekmat of the February hearing date, as well as[] the May trial date. On February 3, 2017, the Respondent filed a Motion to Extend Time to Respond to the Motions for Summary Judgment. The court did not rule on the Respondent’s February 3 motion. On February 13, 2017, the Respondent filed a second Motion to Extend Time to Respond[.] The court did not rule on the Respondent’s February 13 motion.

The Respondent failed to file a response or opposition to the Motions for Summary Judgment[.] As scheduled, on February 28, 2017, a hearing was held on the defendants’ Motions for Summary Judgment. The Respondent, having filed no opposition, failed to appear at the hearing to oppose the entry of summary judgment and the dismissal of Ms. Hekmat’s case. At the conclusion of the hearing[,] the court granted summary judgment in favor of all defendants and dismissed Ms. Hekmat’s case with prejudice, without leave to amend. Additionally, the court granted the defendants’ oral motions for leave to file a motion for monetary sanctions or attorneys’ fees pursuant to Maryland Rule 1-341.[4] The Respondent did not advise Ms. Hekmat that he failed to oppose the Motions for Summary Judgment, failed to appear for the hearing and that 4 Md. Rule 1-341 provides, in relevant part: (a) Remedial Authority of Court.

In any civil action, if the court finds that the conduct of any party in maintaining or defending any proceeding was in bad faith or without substantial justification, the court, on motion by an adverse party, may require the offending party or the attorney advising the conduct or both of them to pay to the adverse party the costs of the proceeding and the reasonable expenses, including reasonable attorneys’ fees, incurred by the adverse party in opposing it. 4 as a result, the court had dismissed her case. In addition, Respondent failed to notify Ms. Hekmat that the court had granted the defendants[’] Motion for leave to file a Rule 1-341 Motion for attorneys’ fees against her. The Respondent failed to file a motion for reconsideration of the court’s dismissal order and failed to provide any explanation to the court for his failure to appear at the hearing. On March 30, 2017, Mr. Muldoon and JM Fine Homes, LLC filed a Motion Requesting the Payment of Costs for Defending an Unjustified Proceeding against Ms. Hekmat.

The Respondent received a copy of the Rule 1-341 Motion but failed to advise Ms. Hekmat that it had been filed and failed to file a response. On April 26, 2017, the [c]ircuit [c]ourt scheduled a hearing on the Rule 1-341 Motion for May 31, 2017. The Respondent received notice of the May 31, 2017 hearing date and failed to advise Ms. Hekmat[.] Between February and May 2017, Ms. Hekmat made several attempts to contact the Respondent via phone calls and text messaging. The Respondent failed to respond to Ms. Hekmat[.] In May 2017, Ms. Hekmat personally travelled to the courthouse to review and determine the status of her case and learned, for the first time, that the defendants had filed motions for summary judgment, that a hearing had been held and that her case had been dismissed with prejudice.

Ms. Hekmat also learned that a hearing was scheduled for May 31, 2017 regarding a Motion for the payment of costs against her. Ms. Hekmat retained Alexi M. Silverman, Esquire as successor counsel. [M]s. Hekmat appeared at the hearing with Mr. Silverman and requested a postponement. The Respondent did not appear for the hearing.

The court granted the request and postponed the hearing to July 10, 2017. On July 5, 2017, Mr. Silverman filed an opposition, on behalf of Ms. Hekmat, to the Rule 1-341 Motion for payment of costs. At the hearing on July 10[,] the [c]ircuit [c]ourt denied the Rule 1-341 Motion for sanctions. (Internal citations omitted).

Petitioner’s Investigation On August 25, 2017, Ms. Hekmat filed a formal complaint with Petitioner, alleging that Respondent was unresponsive, and that the failure to thoroughly pursue her matter resulted in additional costs for Ms. Hekmat. The Hearing Judge found that, upon receiving notice of the allegations against him, Respondent did not cooperate with Petitioner in 5 investigating the merits of Ms. Hekmat’s claims against him. The Hearing Judge observed the following: By letter dated September 5, 2017, [Petitioner] forwarded Ms. Hekmat’s complaint to the Respondent and requested a written response within fifteen days. The Respondent failed to respond[.] On October 4, 2017, no response having been received, [Petitioner] wrote to the Respondent again, via certified mail, return receipt requested, enclosed a copy of the previous correspondence, and requested a response to the complaint no later than October 19, 2017.

On October 23, 2017, the certified letter was returned to [Petitioner] unclaimed. On November 16, 2017, [Petitioner] called the number the Respondent has on file with the Maryland Client Protection Fund and left a voice message asking him to return the call. The Respondent failed to return the call or otherwise respond[.] On December 4, 2017, no response having been received, [Petitioner] wrote to the Respondent again, enclosed copies of the previous correspondence and advised him that the matter had been docketed for further investigation. [Petitioner] requested a written response to the complaint within ten days. The Respondent failed to respond[.] On January 17, 2018, [Petitioner’s] investigator, Marc O. Fielder, called the Respondent and left a voice message requesting a return phone call and sent the Respondent an email requesting a reply.

The Respondent failed to return Investigator Fielder’s phone call or otherwise respond[.] On January 18, 2018, Investigator Fielder unsuccessfully attempted to make contact with the Respondent at his home and left a business card. On February 10, 2018, Investigator Fielder made a second attempt to contact the Respondent at his home. An individual who identified himself as the Respondent’s son answered the door and was given copies of the correspondence from [Petitioner] to give to the Respondent. The Respondent has failed to ever provide a response to [Petitioner].

CONCLUSIONS OF LAW Based on the aforementioned findings of fact, the Hearing Judge determined that the evidence concerning Respondent’s representation of Ms. Hekmat and conduct during 6 the Petitioner’s investigation, warranted sanctions under the following rules of professional conduct: MARPC 19-301.1 Competence The Hearing Judge concluded that Respondent violated Rule 19-301.15 when he failed to appear at the February 28, 2017 and May 31, 2017 hearings. In addition to his failure to appear, the Hearing Judge also concluded that Respondent did not demonstrate “the required legal knowledge, skill, thoroughness and preparation in his representation of Ms. Hekmat when he failed to file a response or opposition to defense counsels’ Motions for Summary Judgment, failed to file a Motion for Reconsideration after Ms. Hekmat’s case was dismissed, and failed to file a response or opposition to defense counsel’s Rule 1-341 motion.” MARPC 19-301.2 Scope of Representation The Hearing Judge determined that Respondent violated Rule 19-301.26 in his representation of Ms. Hekmat for the same reasons that he was in violation of Rules 19- 5 Md. Rule 19-301.1 provides: An attorney shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. 6 Md. Rule 19-301.2 provides, in relevant part: (a) Subject to paragraphs (c) and (d) of this Rule, an attorney shall abide by a client’s decisions concerning the objectives of the representation and, when appropriate, shall consult with the client as to the means by which they are to be pursued. An attorney may take such action on behalf of the client as is impliedly authorized to (continued . . . ) 7 301.1 and 19-301.4: “[t]he Respondent failed to pursue Ms. Hekmat’s case in any meaningful way.” MARPC Rule 19-301.3 Diligence The Hearing Judge concluded that the Respondent violated Rule 19-301.37 for the same reasons discussed regarding Rules 19-301.1 and 19-301.4.

MARPC Rule 19-301.4 Communication The Hearing Judge concluded that Respondent violated Rule 19-301.4(a) and (b) when he (1) failed to inform Ms. Hekmat of the February 28, 2017 and May 31, 2017 court dates; (2) failed to inform her that defendants had filed a Motion for Summary Judgment and that he had failed to file any response or opposition; (3) failed to inform her that he failed to appear at the February 28, 2017 hearing; (4) failed to inform her that her case had been dismissed with prejudice; and (5) failed to inform her that defense counsel had filed a Rule 1-341 Motion and that he had failed to respond in any manner. Additionally, the Respondent violated Rule 19- 301.4[8] by failing to respond to Ms. Hekmat’s phone calls and text messages for the period of February 2017 through May 2017. (. . . continued) carry out the representation. An attorney shall abide by a client’s decision whether to settle a matter.

In a criminal case, the attorney shall abide by the client’s decision, after consultation with the attorney, as to a plea to be entered, whether to waive jury trial and whether the client will testify. Md. Rule 19-301.3 provides, “[a]n attorney shall act with reasonable diligence and 7 promptness in representing a client.” 8 Md. Rule 19-301.4 provides: (a) An attorney shall: (1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in Rule 19-301.0 (f) (1.0), is required by these Rules; (continued . . . ) 8 MARPC 19-301.5 Fees The Hearing Judge determined that Respondent violated MARPC 19-301.5(a) and (c).9 Regarding MARPC 19-301.5(a), the court found that, while collecting the $2,500 (. . . continued) (2) keep the client reasonably informed about the status of the matter; (3) promptly comply with reasonable requests for information; and (4) consult with the client about any relevant limitation on the attorney’s conduct when the attorney knows that the client expects assistance not permitted by the [MARPC] or other law. (b) An attorney shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. 9 Md. Rule 19-301.5 provides, in relevant part: (a) An attorney shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment of the attorney; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (continued . . . ) 9 retainer from Ms. Hekmat was not unreasonable at the commencement of the representation, “it became unreasonable when Respondent failed to perform any legal services of value for Ms. Hekmat and failed to advance her claim [against the defendants] in any meaningful way.” See Attorney Grievance Comm’n v. Monfried, 368 Md. 373 , 393– 94, 794 A.2d 92 , 103–04 (2002) (finding that the attorney’s fee was unreasonable as a matter of law because the attorney performed practically no services in return for the money paid by the client’s mother); see also Attorney Grievance Comm’n v. Guida, 391 Md. 33 , (. . . continued) (7) the experience, reputation, and ability of the attorney or attorneys performing the services; and (8) whether the fee is fixed or contingent.

(b) The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the attorney will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client. (c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by section (d) of this Rule or other law. A contingent fee agreement shall be in a writing signed by the client and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the attorney in the event of settlement, trial or appeal; litigation and other expenses to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated.

The agreement must clearly notify the client of any expenses for which the client will be responsible whether or not the client is the prevailing party. Upon conclusion of a contingent fee matter, the attorney shall provide the client with a written statement stating the outcome of the matter, and, if there is a recovery, showing the remittance to the client and the method of its determination. 10 52–53, 891 A.2d 1085 , 1096–97 (2006) (finding that while the fee was not unreasonable on its face, it became unreasonable because the attorney did virtually no work after he received the fee). In addition, the Hearing Judge concluded that Respondent failed to return unearned fees, which violated Rule 19-301.5(a). The Hearing Judge also found that Respondent violated MARPC 19-301.5(c) because he failed to provide Ms. Hekmat with a written contingency fee agreement.

The Hearing Judge did not find, by clear and convincing evidence, that Respondent violated MARPC 19-301.5(b). At the outset of the representation, Respondent provided, in writing, the rate of his fee and expenses for which Ms. Hekmat would be responsible, thereby satisfying his obligations under 19-301.5(b). MARPC Rule 19-301.16 Declining or Terminating Representation The Hearing Judge found that Respondent violated Rule 19-301.16(d)10 when “he abandoned Ms. Hekmat’s case, in essence terminating his representation of Ms. Hekmat without giving her or the court proper notice.” The Hearing Judge further reasoned that Respondent had failed to meet his professional obligations, in violation of 19-301.16, when 10 Md. Rule 19-301.16 provides, in pertinent part: (d) Upon termination of representation, an attorney shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of another attorney, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The attorney may retain papers relating to the client to the extent permitted by other law. 11 he failed to return unearned legal fees to Ms. Hekmat as discussed in relation to the rules concerning fees.

MARPC Rule 19-308.1 Bar Admission and Disciplinary Matters The Hearing Judge found that Respondent violated Rule 19-308.111 during Petitioner’s investigation, by “knowingly and intentionally” failing to respond to Petitioner’s numerous attempts to obtain information and documentation related to the representation of Ms. Hekmat. MARPC Rule 19-308.4 Misconduct The Hearing Judge also found misconduct under Rule 19-308.4.12 The Hearing Judge determined that Respondent violated Rule 19-308.4(a) because of his failure to comply with the other Rules of Professional Conduct discussed above. In addition, the 11 Rule 19-308.1 states, in part: An applicant for admission or reinstatement to the bar, or an