Attorney Grievance Comm'n of Md. v. Khandpur

• Decision Date: 18 July 2011
• Docket Number: Sept. Term,2010.,Misc. Docket No. AG 3
• Citation: 421 Md. 1,25 A.3d 165
• Parties: ATTORNEY GRIEVANCE COMMISSION OF MARYLANDv.Jagjot Singh KHANDPUR.
• Court: Maryland Court of Appeals

421 Md. 1

25 A.3d 165

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND

v.Jagjot Singh KHANDPUR.

Misc. Docket No. AG 3

Sept. Term

2010.

Court of Appeals of Maryland.

July 18, 2011.

Dolores O. Ridgell, Assistant Bar Counsel (Glenn M. Grossman, Bar Counsel, Attorney Grievance Commission of Maryland), for Petitioner.William C. Brennan, Jr., Esquire of Brennan, Sullivan, McKenna, LLP, Greenbelt, MD, for Respondent.Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS and BARBERA, JJ.GREENE, J.

Pursuant to Maryland Rule 16–715, the Attorney Grievance Commission of Maryland (“Petitioner”), acting through Bar Counsel, filed a Petition for Disciplinary or Remedial Action against Jagjot S. Khandpur (“Respondent”), charging him with professional misconduct arising out of his representation of Bhuwani S. Subedi in his application for asylum. Petitioner charged Respondent with violating Rules 1.3 (Diligence),¹ 1.4 (Communication),² 1.15 (Safekeeping Property),³ 3.4(c) (Fairness to Opposing Party and Counsel),⁴ 8.1 (Bar Admission and Disciplinary Matters),⁵ and 8.4(c) and (d) (Misconduct) ⁶ of the Maryland Rules of Professional Conduct (“MRPC”). In accordance with Maryland Rule 16–752(a),⁷ we referred the matter to the Honorable Robert A. Greenberg, of the Circuit Court for Montgomery County, to conduct an evidentiary hearing and to render findings of fact and recommend conclusions of law. In response to our request, Judge Greenberg held an evidentiary hearing on September 20, 2010, and rendered the following findings of fact and conclusions of law.

FINDINGS OF FACT

Respondent was admitted to practice law in Maryland on June 11, 2001, and has since maintained a solo law practice in Montgomery County, Maryland. He was born, educated, and attended law school in India. In 1993, he was awarded an LLM by Howard University in Washington, D.C., and admitted to the District of Columbia Bar. He was staff counsel at an information technology company until he entered private practice in 1997. Since then he has been a sole practitioner, without support staff. He handles primarily immigration matters and typically has no more than ten active files at a time.

The hearing judge noted that Respondent “opened an Interest on Lawyers' Trust Account (IOLTA) at the Bank of America,” in 2001. Until 2008, Respondent failed to retain monthly statements for this account and, for the period between 2006 and 2008, he did not identify which client or matter was the source of funds on his bank deposit records. He has since changed his practices to retain monthly statements and keep more detailed deposit records.

On or about February 14, 2006, Bhuwani Shanker Subedi, a native of Nepal, entered the United States. In June 2006 a friend of Respondent's, Mohan Thapa, referred Subedi to Respondent to handle Subedi's application for asylum. In early August, Respondent met with Thapa and Subedi, explained that the asylum application would need to be filed within one year of Subedi's arrival in the United States, and agreed to represent Subedi in preparing the written application and representing him at an asylum interview. Both Respondent and his client spoke Hindi and had no trouble communicating. On or about August 3, Respondent sent his client a letter relaying their agreement: Subedi would pay a fixed fee of $1,500, to be paid in two equal installments, and Respondent would represent Subedi in his application for asylum, culminating in an asylum interview with the Immigration and Naturalization Service (INS). If the matter ended up in immigration court, an additional fee would be negotiated.

Judge Greenberg found that Subedi made an initial $750 payment in cash “on a date uncertain,” and that this payment was never deposited in Respondent's IOLTA. He found that Thapa provided the second $750 payment by check, which was deposited directly into Respondent's personal account on or about February 4, 2007. Although it was due by February 14, 2007—one year after Subedi's arrival in the United States—Respondent did not file his client's application for asylum until on or about March 27, 2007. Respondent testified that the delay was due to the client's failure to provide essential information, but Judge Greenberg noted that no documentation or records were produced to support this claim. Immigration authorities returned the application as incomplete on June 4. Respondent resubmitted an amended application but it was denied and the INS commenced deportation proceedings. Subedi retained new counsel and filed this grievance. Because Subedi did not testify at the hearing, Judge Greenberg did not give any weight to his complaint in determining these facts. According to the hearing judge, he “based [his] findings solely on Respondent's testimony, admissions to Bar Counsel and its representatives, and the other exhibits admitted at trial.”

On or about September 16, 2008, Respondent met with Petitioner's investigator, Marc O. Fiedler. Respondent told Fiedler that Subedi's payments had been deposited in Respondent's IOLTA until they were earned and agreed to provide financial records, which were not timely produced. On February 24, 2009, Respondent and Bar Counsel entered into a Conditional Diversion Agreement (CDA) under Maryland Rule 16–736, which was contingent on Respondent producing certain specific financial records to substantiate his story. Respondent provided copies of monthly bank account statements for his IOLTA, but no other documentation. When Bar Counsel informed Respondent that he had violated the CDA by failing to produce the required records, Respondent promised to get more records from his bank and provide them by May 26, 2009. On June 1, Respondent provided some additional records, but none of the records produced explained what happened to the fees paid by Subedi or Thapa. As a result, on November 18, 2009, Petitioner revoked the CDA and, subsequently, began these proceedings.

CONCLUSIONS OF LAW

Judge Greenberg concluded that there was clear and convincing evidence that Respondent violated Maryland Rules of Professional Conduct 1.3 (Diligence), 1.15 (Safekeeping Property), and 8.4(d) (Misconduct). He found that Respondent violated Rule 1.3 by failing to file Subedi's asylum application on time. Respondent violated Rule 1.15 by failing to keep proper records for his IOLTA, failing to fully account for either the original $750 cash payment or the subsequent $750 check, and failing to deposit advance fee payments in trust until they were earned. He violated Rule 8.4(d) by falsely stating to Petitioner's investigator and in the CDA that he had deposited the prepaid funds into his IOLTA, and by failing to produce complete records, in a timely manner, after a legitimate demand by Bar Counsel, to show the receipt and distribution of trust funds.

Judge Greenberg concluded that there was not clear and convincing evidence that Respondent had violated Rule 8.1 (Bar Admission and Disciplinary Matters) or Rule 8.4(c) because Respondent's false statements were “misinformed, not devious,” and his delayed production of documents was “either through laziness or ineptitude,” but not “deceitful.” Bar Counsel announced at the Circuit Court hearing that it would not pursue its allegation that Respondent had violated Rule 1.4 (Communication). Judge Greenberg did not address the allegation in the petition that Rule 3.4(c) (Fairness to Opposing Party and Counsel) had been violated, and neither party filed an exception to this omission.

STANDARD OF REVIEW

We explained in Attorney Grievance v. Sapero, 400 Md. 461, 478, 929 A.2d 483, 493 (2007):

This Court has original and complete jurisdiction over attorney disciplinary proceedings. Attorney Grievance Comm'n v. Cherry–Mahoi, 388 Md. 124, 152, 879 A.2d 58, 76 (2005) (citations omitted). As noted in Attorney Grievance Comm'n v. Mahone, 398 Md. 257, 265–66, 920 A.2d 458, 463 (2007): “We accept a hearing judge's findings of fact unless we determine that they are clearly erroneous. Attorney Grievance Comm'n v. Guida, 391 Md. 33, 50, 891 A.2d 1085, 1095 (2006). As to the scope of our review, we take into consideration whether the findings of fact have been proven by the requisite standard of proof set out in Rule 16–757(b). This Rule provides that Bar counsel has the burden of proving the averments of the petition by clear and convincing evidence, and the attorney who asserts an affirmative defense or a matter of mitigation or extenuation has the burden of proving the defense or matter of mitigation or extenuation by a preponderance of the evidence. Guida, 391 Md. at 50–51, 891 A.2d at 1095 (citing Rule 16–757(b)). ‘Weighing the credibility of witnesses and resolving any conflict in the evidence are tasks proper for the fact finder.’ State v. Stanley, 351 Md. 733, 750, 720 A.2d 323, 331 (1998). With regard to the hearing judge's conclusions of law, our review is de novo. Attorney Grievance Comm'n v. Harrington, 367 Md. 36, 49, 785 A.2d 1260, 1267–68 (2001).”

DISCUSSION

Bar Counsel filed an exception to Judge Greenberg's finding that Respondent did not violate MRPC 8.1(b) by failing to respond in a timely manner to Bar Counsel's requests for records. Respondent filed two exceptions to the hearing judge's findings of fact and two exceptions to the court's conclusions of law.

First, Respondent excepts to Judge Greenberg's finding that Respondent did not keep proper records for his IOLTA because the hearing judge did not note that monthly statements were available online. Second, Respondent objects to the hearing judge's finding that Subedi's first $750 payment was paid in cash on a “date uncertain,” before the conclusion of the representation. Respondent maintains that the $750 check from Thapa was the first payment received, and that the second payment was not received until after the asylum interview. Respondent's third exception is to Judge Greenberg's conclusion that Respondent violated MRPC 1.3 (...