Attorney Grievance v. Garcia

• Decision Date: 28 August 2009
• Docket Number: Misc. Docket AG No. 9, September Term, 2008.
• Citation: 410 Md. 507,979 A.2d 146
• Parties: ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Jose Expedito M. GARCIA.
• Court: Court of Special Appeals of Maryland

979 A.2d 146

410 Md. 507

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Jose Expedito M. GARCIA.

Misc. Docket AG No. 9, September Term, 2008.

Court of Appeals of Maryland.

August 28, 2009.

Gail D. Kessler, Asst. Bar Counsel (Melvin Hirshman, Bar Counsel, Atty. Grievance Com'n), for Petitioner.

Robert N. Levin, Rockville, for Respondent.

Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS and BARBERA, JJ.

BATTAGLIA, J.

Jose Expedito Garcia, Respondent, pled guilty on November 29, 2007, to the crime of conspiracy to commit immigration fraud in violation of 18 U.S.C. §§ 371¹ and 1546(a)² in the United States District Court for the Eastern District of Virginia; he was sentenced on February 8, 2008, to 10 weekends in jail, two years of supervised probation, 50 hours of community service, and a fine of $750.00.³ Subsequently, Bar Counsel, acting on behalf of the Attorney Grievance Commission, Petitioner, on May 12, 2008, filed with this Court,⁴ pursuant to Rules 16-751(a)(2)⁵ and 16-771(b),⁶ a Petition for Disciplinary or Remedial Action.⁷ Bar Counsel charged Mr. Garcia with violating Rule 8.4(a)-(d) of the Maryland Rules of Professional Conduct.⁸ We referred the case pursuant to Rule 16-752(a),⁹ to the Honorable Eric M. Johnson of the Circuit Court for Montgomery County, for hearing pursuant to Rule 16-757(c).¹⁰ Following a hearing on December 17, 2008, Judge Johnson submitted his findings of fact as follows:

Findings of Fact

Mr. Garcia, a member of the Maryland Bar since June 25, 1997, maintained an office for the practice of law in Falls Church, Virginia. Mr. Garcia is an attorney and partner in the law firm of Calonge, Garcia, and Associates, P.C. located in Falls Church, Virginia. The firm assists aliens seeking to obtain permission to work in and to secure lawful permanent residence in the United States.

On or about April 11, 2001, an alien, "N.V.," sought the immigration services of Mr. Garcia's firm which resulted in the firm filing an Application for Alien Labor Certification (form ETA 750) and a Petition for Alien Worker (form 1-140) with what was then the Immigration and Naturalization Services (INS), and now Citizenship and Immigration Services (CIS). Because N.V. did not have the employment background and experience needed to qualify for that position, a false letter was created and filed in support of the forms filed with INS. The letter was drafted by Mr. Garcia's co-conspirator and falsely stated that N.V. had been employed in the field in the Philippines from October 1995 until June 1998. Mr. Garcia knowingly signed the letter in the name of the purported employer, and further, Mr. Garcia knew that the forged letter was to be filed with INS and was material to the adjudication of N.V.'s applications.

INS initially granted the form 1-140 but later determined that the Certification for Employment was false based on information recorded in N.V.'s passport, which revealed that N.V. was working on a boat during the period when he purportedly was a caregiver in the Philippines. On April 22, 2003, INS sent a letter to Mr. Garcia's firm stating their intent to revoke the approval of the visa petition. Subsequently, Mr. Garcia persuaded his partner to draft a letter alleging that the fraudulent Certification of Employment was "in fact a product of an honest clerical error," and requested that the visa petition be withdrawn.

On November 29, 2007, in the United States District Court for the Eastern District of Virginia, Mr. Garcia was charged with one count of conspiracy to commit immigration fraud and was filed in the case captioned United States of America v. Jose Expedito Garcia, Case No. 1:07CR473-001. Further, on November 29, 2007, Mr. Garcia was convicted pursuant to a plea agreement under which he plead guilty to the Criminal Information charging him with conspiracy to commit immigration fraud in violation of 18 U.S.C. §§ 371 and 1546(a). Mr. Garcia was sentenced on February 8, 2008, to serve ten weekends in jail at the Alexandria Detention Center and placed on two years of supervised probation and to complete 50 hours of community service. Further, Mr. Garcia was ordered to pay a fine in the amount of $750.00 and $100.00 assessment.

(Footnotes omitted.)

Based upon these findings of fact, Judge Johnson concluded that Mr. Garcia violated Rule 8.4 of the Maryland Rules of Professional Conduct:

Conclusions of Law

Maryland Rule 16-771(g) provides that "a final judgment of any court of record convicting an attorney of a crime, whether the conviction resulted from a plea of guilty, nolo contendere, or a verdict after trial, is conclusive evidence of the guilt of the attorney of that crime'" (emphasis added). Also, Maryland Rule of Professional Conduct 8.4 for misconduct states in relevant part that it is professional misconduct for a lawyer to:

(a) violate or attempt to violate the rules of professional conduct, knowingly assist or induce another to do so, or do so through the acts of another;

(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other aspects;

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

(d) conduct prejudicial to the administration of justice.

Mr. Garcia did violate the Maryland Rules of Professional Conduct by signing his name on a letter "purporting to verify employment for a [v]isa application" by representing himself to be the employer of the visa applicant. Despite the fact that it was Mr. Garcia's partner who drafted the fraudulent letter, which on its face did not appear to make any misrepresentations of fact immediately apparent to Mr. Garcia, his action of signing the letter was clearly intended to commit a fraud, deceive, or misrepresent to INS that he was the employer of N.V. Moreover, the conviction is a serious criminal act pursuant to Md. Rule 16-701(k) that puts into jeopardy Mr. Garcia's integrity as an attorney and hinders the proper administration of justice.

It is uncontested that Mr. Garcia was convicted in the United States District Court for the Eastern District of Virginia for conspiracy to commit immigration fraud in violation of 18 U.S.C. §§ 371 and 1546(a). An attorney convicted of a federal felony has committed a serious crime and engaged in professional misconduct. Thus, this Court finds that upon Mr. Garcia entering a guilty plea to the crimes charged in the United States District Court he necessarily violated MRPC 8.4 and as such is subject to discipline by the Court of Appeals of Maryland pursuant to Md. Rule 16-721(a).

(Footnotes omitted).

Judge Johnson added:

Finally, during the hearing on December 17, 2008, this Court was privy to observe Mr. Garcia's demeanor, candor, and remorse for his conduct. Since the commencement of the proceedings in Virginia he has never contested his guilt, has accepted full responsibility for his unlawful conduct and demonstrated deep regret and embarrassment. Based on the testimony presented it is evident that his family has shared a brunt of the humiliation incurred by Mr. Garcia. It is not this Court's disposition to make any findings or recommendation beyond those mandated by Maryland Rules, but having observed Mr. Garcia's appearance of shame, this Court is compelled to make note of such behavior or repentance.

I. Standard of Review

In attorney discipline proceedings, this Court has original and complete jurisdiction and conducts an independent review of the record. Attorney Grievance v. McClain, 406 Md. 1, 17, 956 A.2d 135, 144 (2008); Attorney Grievance v. Whitehead, 405 Md. 240, 253, 950 A.2d 798, 806 (2008); Attorney Grievance v. Zuckerman, 403 Md. 695, 709, 944 A.2d 525, 534 (2008); Attorney Grievance v. Nussbaum, 401 Md. 612, 632, 934 A.2d 1, 12 (2007); Attorney Grievance v. Lawson, 401 Md. 536, 571-72, 933 A.2d 842, 863 (2007). We review the hearing judge's conclusions of law de novo. Rule 16-759(b)(1);¹¹ McClain, 406 Md. at 17, 956 A.2d at 144; Whitehead, 405 Md. at 253, 950 A.2d at 806; Attorney Grievance v. Kreamer, 404 Md. 282, 292, 946 A.2d 500, 506 (2008); Attorney Grievance v. Parsons, 404 Md. 175, 184, 946 A.2d 437, 443 (2008). In our review of the record, the hearing judge's findings of fact generally will be accepted unless they are clearly erroneous. Rule 16-579(b)(2);¹² Whitehead, 405 Md. at 253, 950 A.2d at 806; Attorney Grievance v. Harris, 403 Md. 142, 155-56, 939 A.2d 732, 740 (2008); Nussbaum, 401 Md. at 632, 934 A.2d at 12; Attorney Grievance v. Siskind, 401 Md. 41, 54, 930 A.2d 328, 335 (2007); Attorney Grievance v. Mininsohn, 380 Md. 536, 564, 846 A.2d 353, 370 (2004).

II. Discussion

A. Findings of Fact

Both Bar Counsel and Mr. Garcia filed exceptions; none of them went to the heart of the matter. Both filed an exception with respect to Judge Johnson's finding that Mr. Garcia "represent[ed] himself to be the employer of the visa applicant" by signing the letter, because both note that Mr. Garcia actually signed the name of the purported employer of the visa applicant not his own name. In the Statement of Facts, to which Mr. Garcia stipulated in his guilty plea, it was stated, "[w]hen he signed the letter in the purported employer's name, the defendant did not investigate the truth of the contents of the letter but believed it to be true." We sustain both parties' exceptions, because the record reflects that Mr. Garcia signed the purported employer's name, not his own name.

Bar Counsel then excepts to the hearing judge's finding that Mr. Garcia's "co-conspirator" and partner drafted the employment verification letter and asserts that Ms. Quidilla, the office manager/secretary, and not Mr. Garcia's law partner, drafted the employment verification letter. Based upon our review of the record, Ms. Quidilla actually prepared the employment verification letter that Mr. Garcia signed, and so we sustain the exception.

Mr. Garcia excepts to the hearing judge's finding...