Attorney Grievance Commission v. Gallagher

• Decision Date: 13 November 2002
• Docket Number: Misc. Docket Subtitle AG No. 30
• Citation: 371 Md. 673,810 A.2d 996
• Parties: ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Edward Patrick GALLAGHER.
• Court: Maryland Court of Appeals

810 A.2d 996

371 Md. 673

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Edward Patrick GALLAGHER.

Misc. Docket (Subtitle AG) No. 30, September Term, 2001.

Court of Appeals of Maryland.

November 13, 2002.

Melvin Hirshman, Bar Counsel, Dolores O. Ridgell, Assistant Bar Counsel for Attorney Grievance Commission of Maryland, for petitioner.

Edward Patrick Gallagher, Frederick, for respondent.

BELL, C.J., and ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ.

Opinion by CATHELL, J.

Bar Counsel, on behalf of the Attorney Grievance Commission, petitioner, and at the direction of the Review Board, filed a petition with this Court seeking disciplinary action against Edward Patrick Gallagher, respondent,¹ pursuant to Md. Rule 16-709.² The petition, which is based on the complaint of Mr. Phillip A. Lobo, alleges that respondent violated several Maryland Rules of Professional Conduct (MRPC),³ two provisions of the Business Occupations and Professions Article of the Maryland Code,⁴ and several sections of Title 16 of the Maryland Rules.⁵

On November 5, 2001, pursuant to Md. Rules 16-709(b) and 16-711(a),⁶ this Court assigned the matter to a judge in the Circuit Court for Montgomery County. On January 16, 2002, this Court granted respondent's motion to transfer the case to the Circuit Court for Frederick County and assigned Judge Julie R. Stevenson to conduct an evidentiary hearing and to make findings of fact and conclusions of law with respect to respondent's case. Respondent was duly served and he filed a timely answer to the petition. The evidentiary hearing took place on March 26 and 27, 2002. Judge Stevenson heard testimony from three witnesses of the petitioner, including: Sterling Fletcher, petitioner's investigator, Laurence Johnson, an expert in the area of immigration law and a member of the Maryland Bar and John DeBone, petitioner's paralegal. In addition to this testimony, petitioner read portions of the following into the record: respondent's testimony at the Inquiry Panel hearing held in this matter on February 28, 2001, respondent's testimony from petitioner's March 5, 2002 deposition of respondent and respondent's answers to petitioner's discovery requests. Petitioner's evidence also included a videotape of the deposition of the complainant, Phillip A. Lobo, which was admitted by the court, over respondent's objection, pursuant to Md. Rule 2-419(a)(3)(D).⁷ After his motions for dismissal and a continuance were denied, respondent offered no witnesses or additional evidence.

After the hearing, Judge Stevenson found, by clear and convincing evidence, that respondent willfully misappropriated funds and was in violation of Md. Rules 16-603, 16-604, 16-606, 16-607 and 16-609, Md.Code (1989, 2000 Repl.Vol., 2001 Supp.) §§ 10-302, 306 of the Business Occupations and Professions Article, as well as MRPC 1.15(a) and (b), 1.4(a) and 8.4(a), (b), (c) and (d). Respondent filed in this Court several exceptions to Judge Stevenson's findings of fact and conclusions of law. We overrule these exceptions and accept the hearing judge's findings of fact and conclusions of law. Considering respondent's egregious conduct, the appropriate sanction is disbarment.

I. Facts

We adopt the hearing court's findings of fact, but reorganize those facts to better suit the needs of this opinion. The facts are as follows:

A. The Complaint

This disciplinary hearing was initiated by a complaint made by Phillip A. Lobo (hereinafter, "Mr.Lobo") arising out of respondent's handling of Mr. Lobo's $30,000, which was to be deposited into an escrow account in the course of the representation of Mr. Lobo in obtaining a visa to enter the United States from India. Mr. Lobo, a citizen of India, currently resides in Australia. In 1998, petitioner received a letter from Mr. Lobo's Australian counsel stating Mr. Lobo's claim that respondent failed to return his $30,000 that was to be deposited in an escrow account in March of 1996.

B. The Agreement/Representation

In 1996, in addition to practicing law out of his Bethesda, Maryland office, respondent alleged that he also offered clients financial and investment advice. At that time, respondent had been taking referrals from a former client, Harbhagwan S. Suri (hereinafter, "Mr.Suri"), since 1995. Respondent represented Mr. Suri in Mr. Suri's effort to obtain a L-1 Visa to enter the United States from India. Mr. Suri obtained this visa, but had returned to India by 1995. Mr. Suri placed ads in a Bombay, India newspaper soliciting businessmen interested in obtaining visas to enter the United States. In February of 1996, Mr. Lobo read such an ad and contacted Mr. Suri, who he did not know prior to that time.

Mr. Lobo met with Mr. Suri and was told that Mr. Suri had a partner in the United States who could assist Mr. Lobo in obtaining a L-1 Visa to enter the United States. He told Mr. Lobo that respondent was his partner and showed Mr. Lobo documents that corroborated his partnership with respondent. Mr. Suri then explained the visa process and its expenses to Mr. Lobo. Mr. Lobo understood that Mr. Suri would prepare and complete the necessary documents in India and then forward them to respondent so that respondent could file them with the appropriate agency. Mr. Lobo was told that the process would cost the equivalent of between $7,000 and $7,500. Mr. Lobo agreed to engage their services by initially paying Mr. Suri the equivalent of $3,500.

During the preparation of the paperwork in India, Mr. Suri informed Mr. Lobo that Mr. Lobo's visa application could be expedited by placing $50,000 into an escrow account in the United States. He explained that this was necessary in order to convey Mr. Lobo's sincerity in regard to immigrating to the United States and would assist Mr. Lobo to commence operations for a United States subsidiary to his Indian company, Lobo Development. Although Mr. Lobo was initially disinclined to deposit this money, he eventually agreed to wire $30,000 to respondent with the understanding that it would be deposited into an escrow account. In late February of 1996, Mr. Lobo flew to Hong Kong and later wired $30,000 to respondent's personal bank account at Riggs National Bank on March 1, 1996. Mr. Suri gave respondent's account information to Mr. Lobo. Along with the money, Mr. Lobo sent respondent a letter and a photocopy of the transfer details via facsimile. This was the first direct communication between Mr. Lobo and respondent and it included, in addition to a request for written conformation and a copy of the escrow agreement from respondent, the language, "IN CASE OF NON-PERFORMANCE ON PROJECT FUNDING AND OR INABILITY TO OBTAIN L-1 VISA APPROVAL FOR ME, THIS DEPOSIT MAY BE CREDITED TO MY ACCOUNT."

On the same day, respondent sent a facsimile to Mr. Lobo in order to confirm respondent's receipt of Mr. Lobo's $30,000. The facsimile also included the escrow agreement, which was signed by both respondent and Mr. Suri. The letter was printed on respondent's letterhead. The escrow agreement states:

"ESCROW AGREEMENT

I, Edward Patrick Gallagher, Attorney-at-Law, do hereby agree to deposit and place in my legal escrow account at Riggs National Bank here in the Untied States the sum of US$30,000.00 (Thirty Thousand U.S. Dollars) as deposited by Mr. Phillip A. Lobo.

This amount shall remain in my legal escrow account for the purpose for which it is deposited, namely as a good faith deposit for Master Host Inn and Howard Johnson-Richmond. In case of non-performance on project funding and or inability to obtain L-1 Visa approval for Mr. Phillip A. Lobo, this deposit will be refunded to the depositor promptly.

This Escrow Agreement is jointly endorsed by Mr. Harbhagwan S. Suri, President, Intercontinental Business Services (USA), Inc. as well and the same guarantee of deposit refund will apply.

--------------------------------- ----------------------------- Edward Patrick Gallagher, Esquire Harbhagwan S. Suri, President Attorney-at-Law Intercontinental Business Services (USA). Maryland, USA Escrow Account RIGGS NATIONAL BANK Account No. XX-XXX-XXX (ABA # XXXXXXXXX) P.O. Box 1525 Washington, D.C. 20075 (USA) Telex: 197739 RIGGS UT Name of Depositor: Mr. Phillip A. Lobo --------------------------------- --------------------------------- Phillip A. Lobo Date" Signatures appear on the lines above the names of Mr. Suri and respondent. The stamp impression of the Intercontinental Business Services (USA), Inc. seal is under Mr. Suri's signature. The other lines were left blank for Mr. Lobo to sign and date. Respondent admits to preparing and signing this escrow agreement and the attached letter.

Mr. Lobo testified that he then returned to India from Hong Kong on March 9, 1996 and met with Mr. Suri, who then assisted Mr. Lobo in gathering information pertaining to Mr. Lobo's application for a L-1 Visa. When Mr. Lobo's L-1 Visa petition was completed, respondent sent it to the United States Immigration and Naturalization Service (INS) on April 11, 1996. The petition was approved by the INS subject to the United States Consulate's approval of Mr. Lobo's petition. The INS instructed Mr. Lobo to complete an interview at the United States Consulate in Bombay, India. The United States Consulate in Bombay denied Mr. Lobo's petition, stating that it needed "administrative processing." At respondent's hearing, testimony by petitioner's expert explained that this likely meant that Mr. Lobo's petition did not comply with the provision of the law or regulations, although submission of further documents would warrant further consideration.

In August of 1996, five months after he began the process, Mr. Lobo had yet to receive the L-1 Visa. He subsequently abandoned the matter and immigrated to Australia without the assistance of respondent. Mr. Lobo testified that he then requested the return of his $30,000 from respondent via Mr. Suri. After not receiving the money, Mr. Lobo...