Attorney Grievance Comm'n of Md. v. Ndi

• Decision Date: 01 May 2018
• Docket Number: Misc. AG No. 14, Sept. Term, 2017
• Citation: 459 Md. 42,184 A.3d 25
• Parties: ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Benjamin N. NDI
• Court: Court of Special Appeals of Maryland

459 Md. 42

184 A.3d 25

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND

v.Benjamin N. NDI

Misc. AG No. 14, Sept. Term, 2017

Court of Appeals of Maryland.

May 1, 2018

ARGUED BY Amy S. Paulick, Assistant Bar Counsel (Ebtehaj Kalantar, Esquire, Assistant Bar Counsel and Lydia E. Lawless, Bar Counsel, Attorney Grievance Commission of Maryland) FOR PETITIONER.

ARGUED BY No argument on behalf of Respondent, FOR RESPONDENT.

ARGUED BEFORE: Barbera, C.J., Greene, Adkins, McDonald, Watts, Hotten, Getty, JJ.

McDonald, J.

This attorney disciplinary matter concerns Respondent Benjamin N. Ndi, an attorney licensed in New York, but not in Maryland, who committed various violations of the rules of professional conduct, as well as of a related rule concerning the use of attorney trust accounts, while providing immigration and other legal services in Maryland. Mr. Ndi did not cooperate fully with Bar Counsel's investigation into his activities in Maryland, failed to respond to discovery requests in this proceeding, and did not appear at the evidentiary hearing before the hearing judge or at oral argument before this Court. Following oral argument, we disbarred Mr. Ndi and ordered the Clerk of this Court to place his name on the list of attorneys who are excluded from the practice of law in Maryland.¹ We now explain the reasons why we took that action.

IBackground

A. Procedural Context

On June 8, 2017, the Attorney Grievance Commission ("Commission"), through Bar Counsel, filed with this Court a Petition for Disciplinary or Remedial Action against Mr. Ndi. The Commission charged him with violating Rules 1.1 (competence), 1.3 (diligence), 1.4 (communication), 1.5 (fees), 1.15 (safekeeping property), 1.16 (declining or terminating representation), 5.5 (unauthorized practice of law), 7.1 (communications concerning lawyer's services), 7.5 (firm names and letterheads), 8.1 (bar admission and disciplinary matters), and 8.4 (misconduct) of the Maryland Lawyers' Rules of Professional Conduct ("MLRPC"), as well as Maryland Rule 19–308.1 (bar admission and disciplinary matters) and Maryland Rule 19–308.4 (misconduct) of the Maryland Attorneys' Rules of Professional Conduct ("MARPC").² He was also charged with violating former Maryland Rules 16–603 (duty to maintain trust account) and 16–604 (trust account—required deposits).³

Pursuant to Maryland Rule 19–722, this Court designated Judge Joan E. Ryon, of the Circuit Court for Montgomery County, to conduct a hearing and to provide findings of fact and recommended conclusions of law. Mr. Ndi retained counsel, who filed an answer on his behalf. The answer admitted some of the allegations, denied others, and asserted a lack of information or memory as to others. Mr. Ndi's counsel subsequently filed a motion to withdraw his appearance, which the hearing judge granted on December 7, 2017. No new counsel entered an appearance, nor did Mr. Ndi appear on his own behalf.

Mr. Ndi did not respond to the written discovery requests of Bar Counsel or appear for his deposition noticed by Bar Counsel. As a result, Bar Counsel filed a motion for sanctions. Mr. Ndi did not respond to that motion. The hearing judge granted the motion, striking Mr. Ndi's answer and precluding him from introducing any testimony or evidence at trial other than testimony as to mitigation.

The hearing proceeded as scheduled on January 8, 2018. Mr. Ndi did not appear.

The hearing judge issued findings of fact and recommended conclusions of law on February 7, 2018. Neither party filed exceptions. This Court heard oral argument on April 10, 2018. Mr. Ndi did not appear.

B. Facts

We summarize the hearing judge's findings of fact and the exhibits submitted at the hearing as follows. As no exceptions have been filed, we treat the findings of fact as established. Maryland Rule 19–741(b)(2)(A).

Bar Membership and Office Location

Mr. Ndi was admitted to the New York Bar in 2003. Mr. Ndi is not a member of the Maryland Bar. During 2016 and 2017, he was in "delinquent status" with respect to his New York Bar membership for failure to pay fees associated with that membership. During that time period, he maintained an office for the practice of law in Montgomery County, Maryland.

Representation of Martin Ndamchi Tamon

Martin Ndamchi Tamon, a native and citizen of Cameroon, entered the United States on September 9, 2005, on a tourist visa. On September 6, 2006, Mr. Tamon filed a pro se application for asylum with the United States Citizenship and Immigration Services. Mr. Tamon's asylum application was referred to the federal immigration court in Baltimore.

In early February 2007, Mr. Tamon retained Mr. Ndi to represent him in the immigration matter and paid him $2,000 for that purpose. In his notice of appearance and subsequent filings, Mr. Ndi indicated a Takoma Park, Maryland, office address. Mr. Ndi appeared with Mr. Tamon before an immigration judge on February 7, 2007, at a master calendar hearing. Mr. Ndi told the court that Mr. Tamon intended to pursue his asylum application before the immigration court. The immigration judge informed Mr. Ndi that the asylum application was not in the proper format and ordered Mr. Ndi to re-file the application in accordance with the immigration court's guidelines by April 9, 2007.

Mr. Ndi failed to re-file Mr. Tamon's asylum application. On April 23, 2007, the immigration judge deemed Mr. Tamon's asylum application to be abandoned and issued an order that allowed Mr. Tamon 30 days to leave the United States, after which the order would become an order of removal. A final order of removal would result in Mr. Tamon's arrest and deportation.

Mr. Ndi did not promptly inform Mr. Tamon of the immigration court's order. Mr. Tamon learned of the order only when he called Mr. Ndi's office in May 2007 to check on the status of his case.

On June 7, 2007, Mr. Ndi filed a motion with the immigration court to re-open Mr. Tamon's case. In the motion, he asserted that he was a solo practitioner and had been "overwhelmed with work and inadvertently failed" to re-file the asylum application. The motion incorrectly stated that Mr. Tamon had been ordered removed in absentia —i.e ., because he had failed to appear for his case—and was based on case law regarding removals in absentia . As indicated above, the removal order was the result of Mr. Ndi's failure to re-file the asylum application in the proper format. Attached to the motion was an asylum application, but without the supporting documentation that had accompanied Mr. Tamon's original pro se application.

On June 22, 2007, the immigration court denied the motion to re-open Mr. Tamon's case. On August 2, 2007, Mr. Ndi filed an untimely motion to reconsider that denial, but failed to specify any error of fact or law in the decision. Once again, the stated basis of Mr. Ndi's motion was that he was a solo practitioner who was overwhelmed with work. The next day, the immigration court denied the motion to reconsider.

On November 23, 2007, Mr. Tamon filed a pro se appeal with the Board of Immigration Appeals ("BIA"). Mr. Tamon explained that he had experienced difficulty obtaining documents from Cameroon. However, the BIA denied his appeal as untimely.

Representation of Joseph Shonga

Joseph Shonga was also an immigration client of Mr. Ndi. On November 12, 2015, Mr. Shonga was in an automobile accident in Baltimore and sustained injuries. On January 12, 2016, Mr. Ndi visited Mr. Shonga at his home in Laurel, Maryland, and offered to represent Mr. Shonga in seeking compensation for those injuries. According to Mr. Shonga, they entered into a written contingent fee agreement under which Mr. Ndi would receive 31% of any recovery as his fee. Mr. Ndi did not provide Mr. Shonga with a copy of the contingent fee agreement. During the meeting, Mr. Ndi said that he would pay all of Mr. Shonga's medical bills from the settlement and then "see what is left." Mr. Shonga provided Mr. Ndi with five bills related to his medical treatment.

On April 29, 2016, Mr. Ndi called Mr. Shonga and asked him to come to his office in Takoma Park. That same day, they met at the office, which was known as the "Center for Immigration Law." Mr. Ndi told Mr. Shonga that the insurance company had offered to settle the case for $17,000 or $18,000. At Mr. Ndi's recommendation, Mr. Shonga signed a settlement agreement.

Mr. Shonga also signed a "Settlement Statement" that represented that the total distribution was $17,000. According to the Settlement Statement, Mr. Ndi disbursed $8,000 to Mr. Shonga as the "Amount to Clients." He withheld $5,500 as the "Amount to Attorneys," which included: his fee of $5,666.67, increased by "Costs and Disbursements" of $900 ($100 for "Consultation," $300 for "Court fees," and $500 for "Paralegal Research"), and reduced by a "Discount" of $1,066.67. Mr. Ndi also withheld $3,500 from Mr. Shonga's total settlement for "Reimbursement of Client Costs," which included $1,000 for "Emergency Room Bill" and $2,500 for "Bill Maryland Health Care Clinic."

Mr. Ndi gave Mr. Shonga a check for $8,000 written on an account of the Center for Immigration Law, which contained the notation "PI Settlement." The account was not an attorney trust account.

Mr. Ndi failed to promptly pay all of Mr. Shonga's medical bills. Mr. Ndi made the following disbursements to Mr. Shonga's medical providers:

1) On or about June 21, 2016, a check to Emergency Medicine in the amount of $124.86;

2) On or about June 21, 2016, a check to Neurological Medicine PA in the amount of $248.34;

3) In or about October 2016, a payment to Progressive MRI LLC in the amount of $250.00;

4) On or about November 20, 2016, a payment to Doctor's Community Hospital in the amount of $114.21; and

5) On or about March 2017, a payment to Carefirst BlueCross BlueShield in the amount of $377.80.

Mr. Ndi did not disburse any amount in connection with "Maryland Health Care Clinic."

In the months after he signed the settlement statement, Mr. Shonga continued to receive bills from...