Attorney Grievance Comm'n of Md. v. Aita

• Citation: 181 A.3d 774,458 Md. 101
• Decision Date: 27 March 2018
• Docket Number: Misc. Docket AG No. 90, Sept. Term, 2016
• Parties: ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Anna G. AITA
• Court: Court of Special Appeals of Maryland

458 Md. 101
181 A.3d 774

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND
v.
Anna G. AITA

Misc. Docket AG No. 90, Sept. Term, 2016

Court of Appeals of Maryland.

March 27, 2018

Argued by Amy S. Paulick, Asst. Bar Counsel (Lydia E. Lawless, Bar Counsel, Attorney Grievance Commission of Maryland), for Petitioner.

Argued by Andrew Jay Graham, Esquire (Kramon & Graham, PA, Baltimore, MD), for Respondent.

Argued before Barbera, C.J., Greene, Adkins, McDonald, Watts, Hotten, Getty, JJ.

Hotten, J.

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On or about November 18, 2016, the Attorney Grievance Commission of Maryland ("Petitioner"), directed that charges be filed against Anna G. Aita ("Respondent"). On February 16, 2017, Petitioner, acting through Bar Counsel, filed in this Court a Petition for Disciplinary or Remedial Action ("Petition") against Respondent. The misconduct stemmed from Respondent's representation of two former clients in immigration matters. Specifically, Petitioner alleged that Respondent failed to represent these clients competently and diligently, failed to communicate with them regarding the status of

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their cases, failed to appear in court on their behalf, failed to safeguard their funds, charged the clients an unreasonable fee, failed to refund unused immigration filing fees to the client, misrepresented material facts to an immigration judge, failed to ascertain the status of the clients' cases, and failed to advise the clients of the status of their cases. Based on the misconduct, Petitioner alleged violations of Maryland Lawyers' Rules of Professional Conduct ("MLRPC") 1.1 (Competence), 1.3 (Diligence), 1.4 (Communication), 1.5 (Fees), 1.15 (Safekeeping property), 1.16(d) (Declining or Terminating Representation), 3.3(a)(1) (Candor Towards the Tribunal), and 8.4(a), (c), and (d) (Misconduct). Petitioner further averred violations of former Maryland Rules 16–604 (Trust Account–Required Deposits) and 16–606.1 (Attorney Trust Account Record–Keeping).¹

On February 27, 2017, this Court transferred the matter to Judge Glenn L. Klavans ("the hearing judge"), of the Circuit

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Court for Anne Arundel County, to conduct an evidentiary hearing ("the hearing"). The Clerk of the Circuit Court for Anne Arundel County issued a summons on February 28, 2017. The Petition and summons were served on Respondent on April 3, 2017. After receiving an extension of time, an Answer was filed on May 3, 2017. Petitioner and Respondent met with the hearing judge for a scheduling conference on April 21, 2017. Petitioner filed an Amended Petition for Disciplinary or Remedial Action on May 18, 2017. Respondent filed a timely Answer on June 2, 2017. An evidentiary hearing took place, from July 24, 2017, through July 27, 2017. At the conclusion of the hearing, the hearing judge directed the parties to file Proposed Findings of Fact and Conclusions of Law by August 21, 2017.

THE HEARING JUDGE'S FINDINGS OF FACT

We summarize the hearing judge's findings of fact. Respondent was admitted to the Maryland Bar on June 19, 2002. She began a solo law practice in May of 2003, and described her areas of concentration as immigration, criminal, traffic, family, and civil litigation. She speaks, reads, and writes in both English and Spanish. Although Respondent resides in Easton, Maryland, she maintains her office for the practice of law in Glen Burnie, Maryland. Respondent testified that she has experienced recurrent health problems, including problems with sciatica on both sides, and bulging discs in her back. She also testified that she had vertigo in 2013 and micro colitis, which is similar to irritable bowel syndrome. Respondent did not present any evidence confirming the aforementioned diagnoses or treatment. The misconduct related to this investigation by Bar Counsel involves Respondent's representation of two clients, Isaac Escalante and Ingris Ardon.

Representation of Isaac Escalante

Isaac Escalante ("Escalante") is a native of Guatemala who entered the United States in February of 2002. He resides with his partner, Francisca Calmo Ramos ("Calmo Ramos"), in Sudlersville, Maryland. They have five children together who

458 Md. 110

are all United States citizens. Escalante does not speak or read English fluently. In

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March of 2012, Escalante was arrested for traffic violations in Queen Anne's County, Maryland, and was taken into custody by the Department of Homeland Security ("DHS"), Immigration and Customs Enforcement. Thereafter, Escalante was placed in removal proceedings.

In April of 2012, Calmo Ramos retained Respondent to represent Escalante in his criminal and immigration matters. A retainer agreement was provided to Escalante in both English and Spanish. The total fee for representation in both cases was $2,500. Escalante paid Respondent $2,500 in increments. The funds were not held in an attorney trust account, and had not been previously earned at the times of payment. Escalante did not provide his informed consent, in writing, agreeing to the deposit of his advance fee payments in a non-trust account. Respondent contended that the payments were not placed in an attorney trust account because they were received too close in time to when they were earned, or alternatively, that such incremental payments had been earned. However, Respondent produced no account records, timesheets, or other evidence to substantiate these claims. Escalante was satisfied with the services that Respondent rendered regarding his traffic case.

In Escalante's immigration case, Respondent filed an Application for Cancellation of Removal with the immigration court. Sometime in 2012, during Escalante's detention, Respondent came to his house to sort through the family's personal documents with Calmo Ramos, to ascertain which documents would be helpful in supporting Escalante's application for Cancellation of Removal. Respondent made copies of the family's original documents, but never returned the originals. Respondent also did not file any of the documentation she collected from Calmo Ramos. During the hearing, Respondent testified that these documents were not helpful to Escalante's case, but also denied ever receiving the supporting documentation.

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A Master Calendar hearing² was scheduled in Escalante's case for November 26, 2013 at 1:00 p.m. at the immigration court in Baltimore, Maryland. At 1:05 p.m. that day, Respondent sent Escalante a text message indicating that her partner attorney, Charles Yates ("Yates"), would be substituting for her in immigration court. In actuality, Yates was not Respondent's partner, but rather an independent attorney acting as a substitute. Escalante replied to Respondent by text message, "[w]hen is my court?" At 2:10 p.m., Respondent replied, "[t]oday 1:00 p[.]m." Escalante replied, "I didn't know." At the time that he received Respondent's text message at 2:10 pm, Escalante was working on the Eastern Shore of Maryland. Yates appeared at the immigration court on Respondent's behalf, but Escalante did not appear. Yates contacted Respondent to alert her that Escalante had failed to appear, but received no response. The immigration judge ordered Escalante removed from the United States of America in absentia . Escalante contacted Respondent on the afternoon of November 26, 2013, through a text message saying "I am Isaac, please answer me. I need to speak with you." Respondent never replied. Escalante sent another text message on November 27, 2013, inquiring about the status of his case. Again, Respondent did not reply.

Respondent initially testified that she had a telephone conversation with Escalante

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on the morning of November 26, 2013, and advised him of the hearing and Yates' representation. Later, Respondent changed her testimony and asserted that she left Escalante a telephone message. Additionally, Respondent testified that she failed to appear on behalf of Escalante in immigration court because her cat died.

Respondent presented a copy of a letter in English from her client file, addressed to Escalante, dated October 19, 2013. The letter reflects that a Master Calendar hearing is scheduled for

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November 26, 2013, at 1:00 pm. The letter also states "[i]f you do not understand this document, I further note that it is your responsibility to have it translated." No proof was offered that the letter was mailed. Escalante never received it.

On January 20, 2014, Escalante again attempted to contact Respondent by text and asked if he could reopen his immigration case. Respondent replied, "[y]ou can. I am going to need 295 dollars." On February 18, 2014, Respondent filed a Motion to Reopen Escalante's case. Escalante paid the $110 filing fee for the motion. Respondent deposited Escalante's fees into her firm's operating account. In the Motion to Reopen, Respondent falsely...