Attorney Grievance v. Lang & Falusi

Attorney Grievance Commission v. Steven Anthony Lang & Olayemi Isaac Falusi, Misc.
Docket AG No. 86, September Term, 2016
ATTORNEY MISCONDUCT — DISCIPLINE — INDEFINITE SUSPENSION —
Respondent Steven Anthony Lang violated Maryland Lawyers’ Rules of Professional
Conduct 1.1, 1.2, 1.3, 1.4, 1.5, 1.15, 1.16, 5.5, 7.1, 7.5, 8.1, and 8.4, and Maryland Rules
16-603, 16-604, and 16-601.1. These violations arose from Mr. Lang’s conduct in
representing a client in a foreclosure proceeding; assisting and enabling an unadmitted
attorney to practice law in Maryland; failing to maintain an attorney trust account; and
making material misrepresentations to Bar Counsel. An indefinite suspension is the
appropriate sanction for Mr. Lang’s misconduct.
ATTORNEY MISCONDUCT — DISCIPLINE — INDEFINITE SUSPENSION —
Respondent Olayemi Isaac Falusi violated Maryland Lawyers’ Rules of Professional
Conduct 1.1, 1.2, 1.3, 1.4, 1.5, 1.16, 5.5, 7.1, 7.5, 8.1, and 8.4, and Maryland Code
Annotated, Business Occupations & Professions § 10-601. These violations arose from
Mr. Falusi’s conduct in engaging in the unauthorized practice of law in Maryland by
representing three clients in Maryland matters; failing to disclose the existence of his law
practice on his application for admission to the Maryland Bar; and making material
misrepresentations to Bar Counsel concerning his practice. An indefinite suspension is the
appropriate sanction for Mr. Falusi’s conduct.
Circuit Court for Prince George’s County
Case No. CAE17-07945
Argued: April 9, 2018
IN THE COURT OF APPEALS
OF MARYLAND
Misc. Docket AG No. 86
September Term, 2016
ATTORNEY GRIEVANCE COMMISSION
OF MARYLAND
v.
STEVEN ANTHONY LANG &
OLAYEMI ISAAC FALUSI
Barbera, C.J.,
Greene
Adkins
McDonald
Watts
Hotten
Getty,
JJ.
Opinion by Barbera, C.J.
Watts, J., concurs and dissents
Filed: August 16, 2018
2018-08-16
12:48-04:00
On January 30, 2017, Petitioner, the Attorney Grievance Commission of Maryland,
acting through Bar Counsel, filed in this Court a Petition for Disciplinary or Remedial
Action (“Petition”) against Respondents Steven Anthony Lang and Olayemi Isaac Falusi.
From November 2012 to February 2014, Mr. Lang and Mr. Falusi were partners in Lang
& Falusi, LLP.
As for Mr. Lang, the Petition alleged violations of the Maryland Lawyers’ Rules of
Professional Conduct1 (“MLRPC”) 1.1 (Competence), 1.2 (Scope of Representation), 1.3
(Diligence), 1.4(a) and (b) (Communication), 1.5(a) (Fees), 1.15(a) and (c) (Safekeeping
Property), 1.16(d) (Declining or Terminating Representation), 3.3 (Candor Toward the
Tribunal), 5.5(a) (Unauthorized Practice of Law; Multijurisdictional Practice of Law),
7.1(a) (Communications Concerning a Lawyer’s Services), 7.5(a) (Firm Names and
Letterheads), 8.1(a) and (b) (Bar Admission and Disciplinary Matters), and 8.4(a), (c), and
(d) (Misconduct). The Petition also alleged that Mr. Lang violated Maryland Rules 16-603
(Duty to maintain account), 16-604 (Trust account — Required deposits), and 16-606.1
(Attorney trust account record-keeping).2
The Petition alleged that Mr. Falusi violated MLRPC 1.1, 1.2, 1.3, 1.4(a) and (b),
1
Effective July 1, 2016, the Maryland Lawyers’ Rules of Professional Conduct
(“MLRPC”) were renamed the Maryland Attorneys’ Rules of Professional Conduct and
recodified, without substantive change, in Title 19 of the Maryland Rules. Because we
judge Respondents’ conduct against the law at the time of their actions, we refer to the
MLRPC throughout.
2
Effective July 1, 2016, Title 16, Chapter 600 of the Maryland Rules were
recodified, without substantive change, to Title 19, Chapter 400. For the reasons stated
above, we will refer to Maryland Rules 16-600 et seq. throughout.
1.5(a), 1.15(a) and (c), 1.16(d), 3.3, 5.5(a) and (b), 7.1(a), 7.5(a), 8.1(a) and (b), and 8.4(a),
(b), (c), and (d). As with Mr. Lang, the Petition also alleged violations of Maryland Rules
16-603, 16-604, and 16-606.1. Finally, the Petition alleged that Mr. Falusi violated
Maryland Code Annotated, Business Occupations & Professions (“BOP”) § 10-601 (Bar
admission required to practice law in the State).
These violations stemmed from Respondents’ conduct as partners of Lang & Falusi,
LLP; their representation of multiple clients; Mr. Falusi’s application to the Bar of
Maryland; and Bar Counsel’s investigation of Respondents.
This Court transmitted the matter to the Circuit Court for Prince George’s County
and designated the Honorable Robin D. Gill Bright (“the hearing judge”) to conduct an
evidentiary hearing and make findings of fact and conclusions of law. Respondents filed
timely responses to the Petition, and an evidentiary hearing took place on November 6 and
8, 2017. At the hearing, the judge heard testimony from Respondents and four witnesses,
one of whom testified by way of a video deposition.
Upon considering the hearing judge’s findings of fact and conclusions of law and
independently reviewing the record, we adopt in large part the hearing judge’s proposed
findings of fact and conclusions of law. Based on the rule violations we have determined
the Respondents committed, as well as aggravating and mitigating factors we have
identified, we indefinitely suspend both Respondents.
I.
The Hearing Judge’s Findings of Fact
We summarize here the findings of fact made by the hearing judge, supported by
2
clear and convincing evidence.
Background
Mr. Lang was admitted to the Massachusetts Bar in 2010 and the Maryland Bar in
2012. Mr. Falusi was admitted to the Massachusetts Bar in 2009 and, after applying in
2011, was admitted to the Maryland Bar in 2016. In November 2012, Mr. Falusi registered
a limited liability partnership named “Lang & Falusi, LLP” (“the Firm”) with the Maryland
State Department of Assessments & Taxation (“SDAT”). The partnership was created to
provide professional legal services. The Firm’s principal office was listed as an address in
Silver Spring, Maryland, but it operated out of an office in Lanham, Maryland. The two
initially arranged to share office space and expenses but to maintain their own separate
practices, with Mr. Lang practicing criminal law and Mr. Falusi practicing immigration
law.
From January 2013 to December 2013, Mr. Lang and Mr. Falusi occupied the
Lanham office. The Firm’s letterhead listed the Lanham address, a website, and phone and
fax numbers. The letterhead also included a legend with two symbols—one was labeled
“†† Barred in Maryland and Massachusetts” and the other “† Barred in Massachusetts”—
but neither symbol appeared next to a name, and thus the symbols did not indicate to which
attorney they applied. Respondents also maintained a website for the Firm, which
advertised the Firm’s attorneys and listed the services they offered. The website provided:
Attorney Falusi represents clients in various areas of law, and due to his
unique background, his case dockets are overwhelmingly on immigration
law and criminal defense. He has successfully handled countless family-
based immigration visas, change of status, and adjustment of status. He also
handles political asylum, employment based visas, as domestic/VAWA
3
matters. Moreover, his experience as a criminal defense attorney and a
former prosecutor has served many of his clients prudently. Mr. Falusi is a
member of the Bar of the Commonwealth of Massachusetts, and the United
States District Court, First Circuit.
A separate page on the Firm’s website, “Areas of Practice,” listed various areas in which
the Firm’s attorneys practiced, including “Product Liability/Warranties, Federal Criminal
defense, Malpractice, Immigration, Bankruptcy, Criminal law, Business Law, Contract
Law, [and] Family Law (Divorce, Custody, Asset Conservation, Support Modification).”
The description, however, did not specify which attorney practiced in which areas. A
layperson may have surmised that Mr. Falusi was a Maryland attorney who focused on
immigration matters rather than an attorney whose practice was limited to immigration
matters (as he was not yet admitted in Maryland).
On February 4, 2014, Mr. Falusi filed a Withdrawal of Limited Liability
Registration with SDAT, dissolving the Firm.
Lang & Falusi, LLP’s PNC Bank Operating Account
Neither of the Respondents ever established an attorney trust account for the Firm.
Instead, they used a bank account at PNC Bank (the “Operating Account”), which was
established and managed by Mr. Falusi. Bank statements from that account and two
transaction summaries prepared by Bar Counsel were admitted into evidence. Relevant
here, those records showed various deposits from the Operating Account for legal services,
which included several checks with no reference in the memo line and other checks for
“legal work,” “legal fee,” and “attorney fees.” In addition, a $4,000.00 check made payable
to Diane Holder and Lang & Falusi, LLP was deposited into the Operating Account for
4
Mr. Falusi’s representation of Ms. Holder in a Massachusetts personal injury case. A check
for $2,500.00 was disbursed from the Operating Account to Ms. Holder and referenced
“case settlement” in the memo line. The hearing judge further found:
On November 18, 2013, Respondent Falusi deposited check #6619823 for
Eight Thousand and 00/100 Dollars ($8,000) from USAA Casualty Insurance
Company, payable to Lang & Falusi, LLP and a third party, Olivia Lang.
Respondent Lang handled a personal injury case for his daughter, Olivia []
Lang, and provided legal representation in connection with the settlement.
Respondent Lang received check #147 for One Thousand and 00/100 Dollars
($1,000) for “legal work done” on November 19, 2013. On November 21,
2013, check #146 for Six Thousand and 00/100 Dollars ($6,000) was
disbursed from the Operating Account to Olivia Lang.
Representation of Abby Daramola
In November 2010, Deeds Realty Services (“Deeds Realty”) filed a complaint
against Abby Daramola in the District Court of Maryland sitting in Baltimore City. Deeds
Realty claimed that Ms. Daramola wrote a bad check, in the amount of $6,000.00, due to
insufficient funds. On March 4, 2011, Deeds Realty won an affidavit judgment against
Ms. Daramola for $6,035.00. When she failed to make a payment on the judgment, Deeds
Realty asked the court to direct her to appear for an oral examination. The first oral
examination was held in February 2012, but it was not completed and was rescheduled.
Ms. Daramola failed to appear at the second oral examination, and the court issued an order
to show cause. After Ms. Daramola did not appear at the hearing on the show cause order,
the court issued a writ of body attachment.
At the evidentiary hearing in this disciplinary proceeding, Mr. Falusi testified that
one day, after a service at a church to which they both belonged, Ms. Daramola asked him
to call Deeds Realty’s attorney, Saul Jablon, to negotiate a payment plan. Mr. Falusi called
5
Mr. Jablon and stated that he was representing Ms. Daramola. The two reached a
settlement, and Ms. Daramola was to repay the amount in installments. On May 3, 2013,
Mr. Jablon sent Mr. Falusi a letter with a copy of the judgment, which included post-
judgment costs. Mr. Falusi drafted a settlement agreement for $7,565.64, which stated that
Ms. Daramola would pay $1,000.00 upon executing the agreement and subsequent monthly
installments of $500.00 towards the balance. The parties stipulated that Ms. Daramola
would have a fifteen-day grace period on the monthly installments, and Deeds Realty
would not make a report on Ms. Daramola’s credit. After consulting with Mr. Falusi, Ms.
Daramola signed the settlement agreement and gave it to Mr. Falusi. On or about May 10,
2013, Mr. Falusi sent a letter on the Firm’s letterhead (which he signed “O. Isaac Falusi,
Esq.”) to Mr. Jablon requesting a signature on the settlement agreement. Enclosed was a
check in the amount of $1,000.00. The check, made out to the “Law Office of Saul Jablon
for the Abby Daramola Case,” was issued from the Operating Account.
On May 13, 2013, Mr. Jablon asked the court to withdraw its finding of contempt
and cancel the show cause hearing. Ms. Daramola subsequently defaulted on her
payments. Mr. Jablon called Mr. Falusi to inform him of the default, and Mr. Falusi said
he would contact Ms. Daramola and call him back. Mr. Falusi did not do so.
Representation of Justina Ikpim
In July 2009, Justina Ikpim made a loan to Williams Areloegbe. Thereafter, she
contacted Mr. Falusi for legal advice as to whether she had a cognizable claim against Mr.
Areleogbe. On March 15, 2013, a $135.00 check from Ms. Ikpim to Lang & Falusi, LLP
was deposited into the Operating Account. On March 26, 2013, on behalf of Ms. Ikpim,
6
Mr. Falusi filed in the Circuit Court for Prince George’s County a Civil – Non-Domestic
Case Information Report bearing his signature. He also filed a complaint bearing Mr.
Lang’s signature. The names of Respondents appeared below the signature line in the
complaint, as did the name of the Firm and its Lanham address. Court records identified
Respondents as the attorneys of record, but Mr. Falusi never attempted to appear pro hac
vice. On March 27, 2013, payment in the amount of $143.55 was disbursed from the
Operating Account to the Circuit Court for Prince George’s County.
Representation of Dennis Bean
On May 30, 2013, in the Circuit Court for Montgomery County, foreclosure action
377650V (“First Foreclosure Action”) was initiated for a piece of property located on
Brunswick Avenue in Silver Spring, Maryland (“Property”), and owned by Dennis Bean.
Mr. Bean had defaulted on payments for a home equity line of credit, which was secured
by a second mortgage on his home. In July 2013, Mr. Bean twice met with Respondents
at their Lanham office to discuss Mr. Bean’s foreclosure case. Among other things, Mr.
Bean provided them with information concerning the trustee for the first of his three
mortgages, Samuel I. White, P.C., a Virginia law firm. He also informed Respondents that
his first mortgage was approximately $170,000.00.
On July 9, 2013, Mr. Bean retained Lang & Falusi, LLP by way of a Flat Fee
Agreement (“Agreement”). The Agreement was drafted by Mr. Falusi and printed on Firm
letterhead, and it provided that Mr. Bean would pay a flat fee of $3,500.00. The Agreement
listed Mr. Bean as “Client” and “Lang & Falusi, LLP, the firm and its members and
Associates, etc.” as “Attorneys.” The Agreement contained the following clause:
7
If the fee stated above is based on fixed fee, and a retainer is advanced, and
payments are made in installment by the Client by initialing heretofore Client
consents that any advances and/or payments foretasted is the property of the
Attorneys and can be held elsewhere other than a trust account, and used in
furtherance of the representation, and upon early termination but without a
conclusion of the object of the representation, any unearned fees will be
returned after a full accounting by the Attorneys.
Mr. Bean initialed on the line following this notice and signed at the end of the Agreement,
but neither Respondent clarified or explained the risks involved. Mr. Falusi signed on a
line marked “Witness,” which listed Respondents’ names below. Mr. Lang did not sign
the Agreement. Mr. Bean’s check for $3,500.00, payable to Lang & Falusi, LLP, was
deposited into the Operating Account on July 15, 2013.
Mr. Bean exchanged many emails with Respondents throughout the course of the
representation. On July 9, 2013, Mr. Bean emailed Mr. Falusi3 documents related to the
Property and home equity line of credit. Mr. Falusi responded on July 12, 2013, and
confirmed that he had received the email. On July 16, 2013, when he had not received an
answer on his motion to postpone the First Foreclosure Action, Mr. Bean emailed Mr.
Falusi4 and asked how long it typically takes to receive a response. On July 17, 2013, Mr.
Falusi replied that he would “check with the court tomorrow,” but that between fifteen and
thirty days was normal. The next day, on July 18, Mr. Falusi relayed to Mr. Bean that he
had spoken with the clerk’s office about the motion, which had not yet been ruled on.
3
Mr. Bean sent the email only to Mr. Falusi’s email address, but in the salutation,
he wrote to “Issac [sic] and Steve.”
4
Again, the salutation was directed to “Isaac/Steve,” but the email was sent only to
Mr. Falusi.
8
Mr. Lang entered an appearance on July 23, 2013, in the First Foreclosure Action.
As to the second mortgage, the plaintiffs/trustees were represented by Kristine D. Brown.
On July 26, 2013, Mr. Lang filed a motion for a preliminary injunction. The motion alleged
that the plaintiff’s filing of the First Foreclosure Action was deficient in a number of
respects. Based on those deficiencies, the motion stated, “Defendant seeks to file a lawsuit
against the Trustee for breach of her fiduciary duty.” The plaintiff opposed the motion.
On July 25, 2013, the court dismissed the First Foreclosure Action without prejudice.5
On September 3, 2013, prompted by a letter he received showing that his first
mortgage had been assigned to Green Tree Servicing, Mr. Bean emailed Respondents. Mr.
Lang replied, detailing a strategy of filing a lawsuit to void the Deed of Trust.6 Mr. Bean
again emailed Respondents on September 20, 2013, to voice his concern about the case.
Mr. Falusi reassured Mr. Bean that he would respond within the time period allowed,
writing that “[t]he firm gives a 30 day period to respond and we shall do so before the 30
days is over.” On September 24, 2013, Mr. Falusi sent a letter on Firm letterhead to Samuel
I. White, P.C. regarding Mr. Bean’s first mortgage. Mr. Falusi noted that the Firm had
been retained to represent Mr. Bean in the matter, stated Mr. Bean’s dispute of the
5
The circuit court’s order to dismiss the First Foreclosure Action was signed on
July 25, but it was not filed by the clerk until July 29. The dismissal was based on the
plaintiff’s Rule 2-506 motion, which was filed on July 21, five days before Mr. Lang’s
motion.
6
In his email, Mr. Bean was referring his first mortgage, which is why he mentioned
that it had been reassigned. Mr. Lang, however, was likely referring to filing a lawsuit to
fight a foreclosure as to Mr. Bean’s second mortgage, given that Mr. Lang eventually
sought to void the Deed of Trust for Mr. Bean’s second mortgage but took no action with
respect to his first mortgage.
9
$172,350.85 debt, and requested further information about the original creditor (which was
to be sent to the Lanham address on the letterhead). Mr. Falusi signed the letter above a
typed signature line reading “O. Isaac Falusi, Esquire”; he did not mention that he was not
barred in Maryland or that only Mr. Lang was representing Mr. Bean.
On September 26, 2013, Mr. Bean emailed Respondents to ask about the course of
the representation. Mr. Falusi replied, “We have sent out correspondence to them, . . .
however we can proceed with what you forwarded to us. Yes we are pursuing all options
available to us.” Subsequently, on October 24, 2013, Mr. Lang informed Mr. Bean that he
was “now ready to move forward with your case” and that he “will be working on it today.”
He also described “our plan to file a petition for a declaratory judgment voiding your deed
of trust” and objecting to “any foreclosure action [that] has taken place.”
On December 27, 2013, another foreclosure action, case number 385388V, relating
to Mr. Bean’s second mortgage, was docketed in the Circuit Court for Montgomery County
(“Second Foreclosure Action”). On January 14, 2014, Mr. Lang filed a motion for a
preliminary injunction, which was nearly identical to the one filed in the First Foreclosure
Action. As in the First Foreclosure Action, the plaintiffs/trustees were represented by
Kristine D. Brown.
On February 5, 2014, Mr. Bean emailed Mr. Falusi to ask him if he had been
receiving his emails because nobody had responded. Mr. Bean stated: “If you are not
going to help just let me know so I move forward [sic] and figure out my next step.” Mr.
Falusi replied on February 6, 2014, though from a different email address, and stated that
he had received Mr. Bean’s emails. Mr. Falusi explained:
10
[W]e were working on merger and the merger is now in full force as you
can tell from the name and address in the signature area. Steve is not on
board on the merged entity but he and I are still working on your case and
we will work on it until the final outcome. . . . We are gearing up for the
next filing and keep the emails coming.
In addition to Mr. Falusi’s name, “O. Isaac Falusi, Esquire,” his signature block contained
the name of a new law firm, “Thoronka, Taiwo, Thoronka & Falusi, PC,” with an address
in Silver Spring, Maryland.
The court denied Mr. Lang’s motion for a preliminary injunction in the Second
Foreclosure Action that same day, February 6, 2014, and set a hearing for February 27,
2014. Having learned that the court denied the motion, Mr. Bean sent another email to Mr.
Falusi and asked about the plan going forward. He also expressed concern about the
Respondents having separated and the Firm being dissolved. The next day, on February 7,
2014, Mr. Falusi replied, telling him that “we are still working together on your case and
many other cases we have together.” Mr. Falusi also explained that he and Mr. Lang were
parting ways because of their different goals.
On February 18, 2014, Mr. Falusi told Mr. Bean that he was working on a
complaint7 and hoped to file it in District Court later that day. On February 24, 2014, in
response to Mr. Bean’s inquiry about whether the complaint had been filed, Mr. Falusi
confirmed that it had. Also on February 24, 2014, three days before the hearing in the
Second Foreclosure Action, Mr. Lang informed Mr. Bean that he would not be present, but
that he would file a motion to postpone the case. The next day, Mr. Bean asked what would
7
Mr. Falusi was apparently referring to the petition for declaratory judgment to void
the Deed of Trust as to Mr. Bean’s second mortgage.
11
happen if the court denied the motion and nobody appeared at the hearing. Mr. Falusi then
provided Mr. Bean with the case number for the new case, but neither he nor Mr. Lang
responded to Mr. Bean’s question.
Mr. Lang filed a request for an extension two days before the hearing in the Second
Foreclosure Action. Mr. Lang claimed, without any supporting documentation, that he
would be unable to appear because he was in Chicago, Illinois working on a different case.
Mr. Lang’s motion did not state the opposing party’s position on the request. On February
27, 2014, the court had not ruled on the motion, and the hearing proceeded without Mr.
Lang. The court granted the trustee’s motion for leave to proceed with the foreclosure.
Mr. Bean contacted Mr. Falusi on March 5, 2014, stating that he looked up his case and
saw what had happened at the hearing. Mr. Falusi answered the next day, remarking that
the decision did “not bode well” for them, but he reassured Mr. Bean that if they “win the
fight on the new matter—voiding the title, then it would void everything they are doing.
We are also looking into filing a motion to vacate this recent judge’s order.”
Pursuant to that strategy, on February 19, 2014, Respondents had filed a new action
for declaratory judgment against Kristine D. Brown in the Circuit Court for Montgomery
County, case number 387359V, on Mr. Bean’s behalf. The lawsuit sought to void the Deed
of Trust related to the second mortgage. On April 25, 2014, while the declaratory judgment
action was ongoing, Samuel I. White, P.C. filed in the Circuit Court for Montgomery
County a new, separate action concerning Mr. Bean’s first mortgage, case number
390048V.
On July 23, 2014, Mr. Bean requested from Mr. Lang copies of all documents and
12
filings in his case. On August 22, 2014, Mr. Bean emailed Mr. Falusi and noted his concern
that nothing had been filed in his case and that a sale of the Property was scheduled for
September 6, 2014. On August 29, 2014, Mr. Bean again emailed Mr. Falusi, but this time
he expressed his frustration with Respondents’ lack of communication and involvement in
the case. Mr. Bean advised that if Respondents failed to assist him, he would be forced to
obtain new counsel, and he again requested copies of his entire client file. Respondents
did not provide Mr. Bean with a copy of his client file until on or about November 12,
2014.
On August 30, 2014, Mr. Lang emailed Mr. Bean. In the email, Mr. Lang stated
that he neither participated in the case involving Mr. Bean’s first mortgage nor appeared in
the pending action concerning Mr. Bean’s first mortgage. On September 8, 2014, Mr. Lang
moved to withdraw as counsel in the Second Foreclosure Action. On September 11, 2014,
the court notified Mr. Lang that he had not properly withdrawn under Maryland Rule
2-132(b). On September 29, 2014, Mr. Lang filed a Certification of Notice, which was
dated August 26, 2014, and a Disengagement Letter, which was dated September 24, 2014.
As to the Certification of Notice, Mr. Lang conceded that he wrote it after he received
notice from the court. Mr. Bean was not sent a copy of the Certification of Notice; he
discovered it in his client file later that year.
The defendant in the action for declaratory judgment filed a motion to dismiss on
September 19, 2014. Mr. Lang did not file an opposition on Mr. Bean’s behalf. On October
7, 2014, the court granted Mr. Lang’s motion to withdraw as Mr. Bean’s counsel. On
November 6, 2014, Mr. Bean wrote a letter to the court. He stated that he had not received
13
a copy of the files in his case and that without them, it would be difficult to proceed. On
November 10, 2014, the declaratory judgment action was dismissed with prejudice. On or
about November 12, 2014, Respondents provided Mr. Bean with his client file. Mr. Bean
did not receive an accounting of work the Firm had done, nor was he refunded any portion
of the $3,500.00 flat fee.
Deposits and Disbursements for Immigration Matters
Mr. Falusi also handled several immigration matters that involved disbursements
from and deposits into the Operating Account. Between May 2013 and October 2013, five
deposits were made: two made no reference in the memo line, while the other three were
for “legal fees,” “services,” and “immigration work.” Three disbursements on behalf of
four of Mr. Falusi’s immigration clients, in the amounts of $1,490.00, $590.00, and
$680.00, were made from the Operating Account to the U.S. Department of Homeland
Security.
Other Disbursements and Deposits
Beginning in February 2013 and continuing until December 2013, checks for
$550.00 each month, payable to the Annapolis Road Professional Building for rental space,
were disbursed from the Operating Account. On September 10, 2013, a check from the
Annapolis Road Professional Building for $1,250.00 was deposited into the Operating
Account. In addition, on January 20, 2014, a $3,000.00 check was disbursed from the
Operating Account, payable to Guardian Building Associates, for a security deposit and
rent for an address in Silver Spring, Maryland.
Various other disbursements from the Operating Account were made between
14
January 2013 and February 2014. Disbursements were made, for example, to Victoria’s
Secret, Giant Food, Ticketmaster, Enterprise Rental Car, Nordstrom’s, and Banana
Republic. Unknown ATM withdrawals were also made from the Operating Account.
Other debits from the Operating Account included payments to the Clerk of the Court for
Prince George’s County, Montgomery County Government, SDAT, FedEx, USPS, Sprint,
and others.
As for deposits, on April 16, 2013, $8,000.00 in cash was deposited into the
Operating Account, though other information concerning this deposit is unknown. On
April 19, 2013, a cash withdrawal of $7,979.82 was made from the Operating Account,
ostensibly for Mr. Falusi’s child support payments in the District of Columbia. Several
other deposits and disbursements were for attorney-related activity, including payments of
settlement money to clients and debits for attorney-related matters. The Operating
Account’s activity also included charges of a personal nature.
Bar Counsel’s Investigation of Mr. Lang
Bar Counsel opened an investigation into Mr. Lang based on his handling of client
matters. Bar Counsel sent a letter to Mr. Lang on December 15, 2014, requesting a
response to a complaint filed by Mr. Bean. Mr. Lang did not respond. Bar Counsel sent
another letter on January 26, 2015. Mr. Lang replied on February 13, 2015, that he assisted
Mr. Bean with his defense in a foreclosure action. Mr. Lang also stated that the declaratory
judgment action was not part of the representation agreement, but that he “did it for free”
to assist Mr. Bean.
In response, on April 22, 2015, Bar Counsel requested a complete copy of Mr.
15
Bean’s client file, including “trust account records to demonstrate the legal fees paid by
Mr. Bean were maintained in trust from the date they were received until they were fully
earned.” Mr. Lang asserted that he did not have Mr. Bean’s client file, he had never
handled any money, and Mr. Bean never gave him any money. Bar Counsel also inquired
as to why Mr. Lang had failed to maintain an attorney trust account. On July 29, 2015, Mr.
Lang answered that he received a waiver from the IOLTA program and, thus, former
Maryland Rule 16-606.1(d) did not apply to him. Mr. Lang further claimed that the Firm’s
monthly balance in the Operating Account was roughly $2,500.00, and that client funds
were not enough to generate interest.
Subsequently, on September 5, 2015, Mr. Lang sent a letter to Bar Counsel with a
further explanation of what had happened with Mr. Bean’s money. Mr. Lang stated that
Mr. Bean gave a check to his “assistant,” which was paid through his office, and that he
did not personally receive the money. He also advised that the Operating Account was
located at PNC Bank, but he could not access the account, did not know the account
number, and could not produce any bank records.
Bar Counsel’s Investigation of Mr. Falusi
Mr. Falusi was admitted to the Massachusetts Bar in 2009. On May 18, 2011, Mr.
Falusi submitted an Application for Admission to the Bar of Maryland to the State Board
of Law Examiners (“Board”). In July 2011, he sat for the Maryland Bar Examination,
which he passed. His admission to the Maryland Bar was delayed, however, because the
member with whom he initially interviewed recommended to the Character Committee that
a hearing be held. On February 27, 2012, the Co-Chair of the Character Committee for the
16
Fourth Appellate Circuit, William C. Brennan, Jr., Esq., wrote to Mr. Falusi, informing
him that the Committee intended to conduct a hearing pursuant to Rule 5 of the Rules
Governing Admission to the Bar. The Committee, Mr. Brennan wrote, would be assessing
whether Mr. Falusi possessed the requisite moral character to practice law. The hearing
was held on May 24, 2012. At the hearing, Mr. Falusi, who was not represented by counsel,
was confronted with the issues with which the Committee was concerned, which included
Mr. Falusi’s 1997 criminal conviction in the District Court of Maryland for Baltimore City
for uttering a false document and various credit and financial issues. The three-member
panel of the Committee, chaired by Mr. Brennan, gave Mr. Falusi more time to resolve
those issues.
Thereafter, Mr. Falusi retained John O. Iweanoge, II, Esq., to represent him in the
matter of his application for admission to the Maryland Bar. On December 6, 2012, Mr.
Iweanoge sent a letter to Mr. Brennan informing him of the representation. Then, on April
30, 2013, Mr. Iweanoge sent the Character Committee eight exhibits to supplement Mr.
Falusi’s application to the Bar. The eighth and final exhibit was a copy of Mr. Falusi’s
resume. The resume listed Mr. Falusi’s most recent legal employment as a Contract
Attorney for “Buckley Sanders, LLP” from “February 2011” to “Present.” He described
his work there as “[e]lectronic discovery and review of loan documents for purpose of
regulatory compliance.” Mr. Falusi failed to list on his resume his partnership at Lang &
Falusi, LLP, which, at the time he submitted the resume, was an active law practice with
an office in Lanham, Maryland.
In February 2015, after the Firm was dissolved, Mr. Falusi sent additional financial
17
documentation to the Character Committee. Mr. Falusi was unassisted by counsel at that
time. On June 9, 2015, the three-member panel of the Character Committee found, in a
written report and by a 2-1 vote, “that the Applicant has met his burden to demonstrate that
he presently possesses the requisite moral character for admission to the Maryland Bar.”
The Committee noted that Mr. Falusi “seems to have been careless in disclosing his
background information to the MA and MD bars but not to the point where the Committee
feels he was intentionally hiding information.” The dissenting panel member, though,
found “several instances” in which Mr. Falusi made false statements of material fact.
On January 27, 2016, the Board contacted Mr. Falusi to inform him of a hearing on
April 8, 2016, during which the Board would consider whether Mr. Falusi possessed the
requisite character and fitness for admission to the Bar. After the hearing, the Board
notified the Clerk of the Court of Appeals that it unanimously agreed with the majority of
the Character Committee. The Board therefore recommended that Mr. Falusi be admitted
to the Maryland Bar. Mr. Falusi appeared before the Court of Appeals on June 1, 2016,
where he took the oath of admission to the Bar.
By letter dated May 16, 2016, roughly two weeks before Mr. Falusi was sworn in,
Bar Counsel notified Mr. Falusi of Mr. Bean’s complaint and other issues and requested
that he respond. Mr. Falusi did not notify the Board or the Court of Appeals before he took
the oath of admission that he had been contacted by Bar Counsel. On June 16, 2016, Mr.
Falusi replied to Bar Counsel. He stated that he “did not have any relationship with Mr.
Bean,” and that when Mr. Bean came to their office, Mr. Falusi advised him that he was
not licensed to practice law in Maryland. Mr. Falusi also relayed to Bar Counsel that he
18
communicated with Mr. Bean to assist Mr. Lang. Mr. Falusi further stated that he only
practiced immigration law at the Firm, but he “perform[ed] paralegal work if/when
needed.”
II.
The Hearing Judge’s Conclusions of Law
The hearing judge determined that both Respondents violated MLRPC 1.1, 1.2(a),
1.3, 1.4(a) and (b), 1.5(a), 1.15(a), 1.16(d), 5.5(a), 7.1(a), 8.1, and 8.4; former Maryland
Rules 16-603, 16-604, and 16-606.1; and BOP § 10-601. The hearing judge also concluded
that Mr. Falusi violated MLRPC 5.5(b). Mr. Falusi excepts to each of the hearing judge’s
conclusions of law. Bar Counsel excepts to the hearing judge’s general conclusions as to
MLRPC 8.1 and 8.4, asking us to find specific violations of each Rule. We shall address
each conclusion and, in the course of doing so, will address the pertinent exceptions.
The hearing judge found the following aggravating factors as to Respondents Lang
and Falusi: “pattern of misconduct; multiple violations; and refusal to acknowledge the
misconduct’s wrongful nature.” The hearing judge did not find that Respondents
established any mitigating factors by a preponderance of the evidence. Bar Counsel alleges
the existence of additional aggravating factors. Mr. Lang and Mr. Falusi both advocate for
mitigating factors and argue that the hearing judge improperly found aggravating factors.
III.
Standard of Review
“In attorney discipline proceedings, this Court has original and complete jurisdiction
and conducts an independent review of the record.” Attorney Grievance Comm’n v.
19
McLaughlin, 456 Md. 172, 190 (2017) (citation omitted). We accept the hearing judge’s
findings of fact unless those findings are clearly erroneous, and we “give[] deference to the
hearing judge’s assessment of the credibility of the witnesses.” Attorney Grievance
Comm’n v. Butler, 441 Md. 352, 359 (2015). “A hearing judge’s factual finding is not
clearly erroneous if there is any competent material evidence to support it.” Attorney
Grievance Comm’n v. McDonald, 437 Md. 1, 16 (2014) (citation omitted). Pursuant to
Maryland Rule 19-741(b)(1), we review the hearing judge’s conclusions of law without
deference. Attorney Grievance Comm’n v. Hamilton, 444 Md. 163, 178 (2015).
All three parties elected to file, under Rule 19-728(b), exceptions to the hearing
judge’s findings of fact and conclusions of law and recommendations for sanction. We
determine whether the hearing judge’s findings met the standards in Rule 19-727(c). And,
under Rule 19-741(b)(2)(B), our review is limited to the findings of fact challenged by the
exceptions. If no exceptions are filed as to a particular fact, we may treat it as established.
Md. Rule 19-741(b)(2)(A). We also note that a hearing judge, in assessing the credibility
of witnesses and making findings of fact, is free to “pick and choose which evidence to
rely upon.” Attorney Grievance Comm’n v. Hodes, 441 Md. 136, 181 (2014) (citations
omitted). In that same vein, a hearing judge need not “mention every evidentiary matter”
in its findings of fact. Attorney Grievance Comm’n v. Vanderlinde, 364 Md. 376, 384
(2001).
An attorney must show the presence of mitigating circumstances by a
preponderance of the evidence. Attorney Grievance Comm’n v. Joseph, 422 Md. 670, 695
(2011) (citations omitted). The existence of aggravating factors must be demonstrated by
20
clear and convincing evidence. Md. Rule 19-727(c) (“Bar Counsel has the burden of
proving the averments of the petition by clear and convincing evidence.”); Attorney
Grievance Comm’n v. Eckel, 443 Md. 75, 85 n.5 (2015) (noting that aggravating factors
must be proven by clear and convincing evidence and not, as the hearing judge indicated,
by a preponderance of the evidence).
IV.
Discussion
Mr. Falusi’s Factual Exceptions
Exceptions Regarding the Factual Background
Mr. Falusi filed a number of exceptions to the hearing judge’s findings of fact. He
first takes issue with the hearing judge’s assessment of the Firm’s letterhead, arguing that
the hearing judge simply failed to understand the meaning of the symbols next to
Respondents’ names. This contention is unfounded. Mr. Falusi’s explanation—though he
concedes it was “not clearly marked”—is that Mr. Lang’s name, which was listed first on
the letterhead, corresponded to the top designation (“†† Barred in Maryland and
Massachusetts”), and Mr. Falusi’s name, which was listed second, corresponded to the
bottom designation (“† Barred in Massachusetts”). At best, this explanation renders the
symbols ambiguous, which comports with what the hearing judge found. At worst, it is
counter-intuitive, given that a designation with two symbols could reasonably refer to the
second-listed name rather than the first. Clear and convincing evidence was shown in that
regard. We overrule Mr. Falusi’s exception regarding the ambiguity of the letterhead.
Mr. Falusi also argues that the hearing judge “incorrectly made an inference
21
inconsistent with the facts” concerning the Firm’s website. He contends that the hearing
judge considered, but then ignored, the sentence in Mr. Falusi’s description on the website
that he was barred only in Massachusetts. As a result, Mr. Falusi argues that the hearing
judge “unreasonably inferred” that “[a] layperson may surmise that Respondent Falusi is a
Maryland attorney who concentrates on immigration as opposed to an attorney whose
practice is limited to immigration matters.” Mr. Falusi is correct that nothing on the
website, save for the mention of Mr. Lang’s Maryland Bar membership, referred to
Maryland or Mr. Falusi’s practice there. The Firm’s Maryland address did not appear on
the website, nor did the website directly state that Mr. Falusi practiced law in Maryland.
Clear and convincing evidence supports the hearing judge’s findings with respect to
the website. The Firm was established in and operated within Maryland; a lay person could
have easily searched the Firm’s name and found that it was located in Maryland; and the
website failed to disclaim that Mr. Falusi did not practice law in Maryland. Given that Mr.
Falusi’s description stated that he practiced law in areas other than immigration—namely,
criminal defense and domestic violence—a lay person may have inferred that he could, and
did, practice law in Maryland in areas other than immigration. Accordingly, Mr. Falusi’s
exception is overruled.
Exceptions Regarding the PNC Bank Operating Account
Mr. Falusi takes exception to the hearing judge’s finding that client and third-party
funds were deposited directly into the Firm’s Operating Account. He claims that no details
were provided about deposits and disbursements other than those in the official bank
statements. He argues that “[t]he mere fact that a client made payment or that certain fees
22
were paid on behalf of a client from the operating account does not suggest that the funds
used for the payment was [sic] client or third-party funds.” The hearing judge found that
the transaction summary, client summary, and monthly statements submitted into evidence
by Bar Counsel clearly and convincingly showed that client funds and third-party funds
were deposited, disbursed, and commingled in the Operating Account. Notes in the
transaction and client summaries, which were prepared by Bar Counsel’s investigator,
match the transactions found in the monthly statements and provided the basis for that
finding. Mr. Falusi’s exception is overruled.8
Exceptions Regarding Abby Daramola
Mr. Falusi excepts to the hearing judge’s finding that “[o]n Respondent Falusi’s
advice, Ms. Daramola signed the settlement agreement and gave the agreement to
Respondent Falusi.” Mr. Falusi argues that Ms. Daramola’s testimony before the hearing
judge confirms that she needed him merely to communicate with Mr. Jablon rather than
represent her interests. We give due regard, however, to the hearing judge’s evaluation of
Ms. Daramola’s testimony, and we review the record for competent material evidence that
Mr. Falusi in fact represented Ms. Daramola. We need look no further than Mr. Falusi’s
deposition testimony:
I did draft the agreement after speaking with - - after speaking with
Mr. Jablon. And, you know, I related the outcome with our discussion with
Mr. Jablon, related that to Ms. - - Ms. Daramola like look, you need to make
this payment or else it just, you know, you have no choice.
8
Mr. Falusi also insists that he could not have opened a Maryland IOLTA account
because he was not licensed in Maryland when he worked at the Firm. While it is correct
that Mr. Falusi himself could not have opened an IOLTA account, Mr. Lang or Lang &
Falusi, LLP as an entity could have (and should have) opened such an account.
23
You can’t get out of it. You got to - - you know, trying to get - - you
just have to make the first payment. And your first payment is $1,000. And
she made that.
When Mr. Falusi sent a letter to Mr. Jablon on Firm letterhead, his signature read “O. Isaac
Falusi, Esq.,” and Mr. Jablon addressed correspondence to him as “Isaac Falusi, Esq.”
Even considering Mr. Falusi’s strained definition of “advice,” we overrule his exception.
Exceptions Regarding Justina Ikpim
Mr. Falusi asserts that the hearing judge failed to account for “pertinent and material
facts” regarding Ms. Ikpim. Specifically, he claims that Ms. Ikpim, with whom Mr. Falusi
had a “familial relationship” (apparently Ms. Ikpim was his father’s girlfriend), came to
him for a personal favor rather than to obtain legal advice and representation. The hearing
judge considered Mr. Falusi’s testimony on the subject and decided that it did not bear on
whether Mr. Falusi provided legal representation to Ms. Ikpim. We find nothing in the
record to compel a contrary conclusion, so we overrule Mr. Falusi’s factual exceptions.
Exceptions Regarding Dennis Bean
Mr. Falusi first excepts to the hearing judge’s finding that he drafted the Flat Fee
Agreement that he and Mr. Bean signed. According to Mr. Falusi, the Agreement was the
Firm’s standard retainer agreement. At his deposition, Mr. Falusi testified that he drafted
the Agreement. Mr. Lang also testified that Mr. Falusi drafted the Agreement. The
exception is overruled.
Next, Mr. Falusi disputes that the hearing judge correctly identified the “Attorneys”
in the Agreement as “Lang & Falusi, LLP, the firm and its members and Associates, etc.”
The record contains clear and convincing evidence contradicting Mr. Falusi’s position.
24
Prior to signing the Agreement, Mr. Bean contacted Mr. Falusi to discuss the case. The
Agreement clearly states that the “Attorneys” are “Lang & Falusi, LLP, the firm and its
members and Associates, etc.,” and Mr. Falusi confirmed this fact during his deposition.
Mr. Falusi also confirmed that the Agreement was made among him, Mr. Bean, and Mr.
Lang; that Mr. Bean retained the members of the Firm; and that he was a member of the
Firm.
Pointing to Mr. Bean’s testimony, however, Mr. Falusi argues that Mr. Bean knew
that he was being represented only by Mr. Lang. Mr. Bean acknowledged in his testimony
that Mr. Lang was the lead attorney handling his case, but he never stated that Mr. Lang
was his only attorney. In fact, Mr. Bean testified that prior to signing the Agreement, he
discussed case strategy with both Respondents. When asked what he believed Mr. Lang
and Mr. Falusi would be doing for the $3,500.00, Mr. Bean stated that they would be
defending the foreclosures they had discussed at the meeting. When asked what he
understood to be Mr. Falusi’s role in the representation, Mr. Bean answered, “During our
meeting he told me Mr. Lang would be the lead but that, you know, he would be involved
in the case.” Then, when asked whether he understood Mr. Falusi to be his attorney, Mr.
Bean responded that he believed Mr. Falusi was one of his attorneys and that he was a
client of both Mr. Lang and Mr. Falusi. Mr. Falusi exchanged numerous emails with Mr.
Bean concerning case strategy and progress. Mr. Falusi was also the only attorney to sign
the Agreement; Mr. Lang did not sign it. Mr. Falusi’s exception is overruled because clear
and convincing evidence supports the hearing judge’s findings as to these facts.
Mr. Falusi also excepts to the hearing judge’s finding that neither Mr. Lang nor Mr.
25
Falusi explained to Mr. Bean the risks associated with the flat fee clause in the Agreement.
Mr. Bean testified that Respondents “just said what they’d do for the fee is represent me,
but not what they would do with the fee.” Even though Mr. Bean initialed under the flat
fee clause, Mr. Falusi could not affirmatively state whether he informed Mr. Bean of the
risks, and Mr. Lang testified that there were no risks to disclose. Mr. Falusi’s exception is
overruled.
Mr. Lang’s Factual Exceptions
Mr. Lang excepts to alleged “adverse inferences” that the hearing judge drew from
Bar Counsel when finding violations of the MLRPC, though he does not identify which
violations resulted from these inferences. While we at times permit a hearing judge to draw
adverse inferences, Attorney Grievance Comm’n v. Nwadike, 416 Md. 180, 197–98 (2010),
we find that—save for the exceptions of Mr. Falusi that we sustain—the hearing judge’s
findings of fact and conclusions of law were supported by clear and convincing evidence.
We therefore overrule this exception.
For the same reasons we overruled Mr. Falusi’s exceptions as to the findings of fact
concerning the Firm’s letterhead, we overrule Mr. Lang’s exception that any ambiguities
in the letterhead do not rise to a violation of the MLRPC by clear and convincing evidence.
Conclusions of Law
We begin our discussion with MLRPC 5.5, as a violation of this Rule provides, in
part, the foundation for other MLRPC violations.
MLRPC 5.5: Unauthorized Practice of Law; Multijurisdictional Practice of Law
Rule 5.5 provides, in part:
26
(a) A lawyer shall not practice law in a jurisdiction in violation of the
regulation of the legal profession in that jurisdiction, or assist another in
doing so.
(b) A lawyer who is not admitted to practice in this jurisdiction shall not:
(1) except as authorized by these Rules or other law, establish an
office or other systematic and continuous presence in this
jurisdiction for the practice of law; or
(2) hold out to the public or otherwise represent that the lawyer is
admitted to practice law in this jurisdiction.
Mr. Falusi
The hearing judge concluded that Mr. Falusi violated MLRPC 5.5(a) and (b) in his
representation of Ms. Daramola, Ms. Ikpim, and Mr. Bean. Mr. Falusi excepts to each of
these conclusions.
As we have said, and as Mr. Falusi notes in his exceptions to the hearing judge’s
conclusions under MLRPC 5.5(a) and (b), we determine “whether an individual has
engaged in the practice of law” by focusing on “whether the activity in question required
legal knowledge and skill in order to apply legal principles and precedent.” Attorney
Grievance Comm’n v. Hunt, 447 Md. 275, 283 (2016) (quoting Attorney Grievance
Comm’n v. Hallmon, 343 Md. 390, 397 (1996)). But that is not the only litmus test.
“Where trial work is not involved but the preparation of legal documents, their
interpretation, the giving of legal advice, or the application of legal principles to problems
of any complexity, is involved, these activities are still the practice of law.” Hallmon, 343
Md. at 397 (citations omitted). Section 10-101 of the Business Occupations and
Professions Article defines “practice law” as, among other things, “giving legal advice,”
and includes “preparing or helping in the preparation of any form or document that is filed
27
in a court or affects a case that is or may be filed in a court” and “giving advice about a
case that is or may be filed in a court.” BOP § 10-101(h)(1)(i), (h)(2)(iii), (h)(2)(iv).
Ms. Daramola
Concerning Ms. Daramola, the hearing judge concluded that Mr. Falusi held himself
out as a Maryland-licensed attorney to Ms. Daramola and Mr. Jablon, the attorney for
Deeds Realty. The hearing judge found that Mr. Falusi consulted with and provided legal
advice to Ms. Daramola, but he never explained to her that his practice was limited to
immigration law. The hearing judge noted that Mr. Falusi failed to inform Mr. Jablon that
his practice was limited to immigration law or tell Ms. Daramola that he could not contact
Mr. Jablon on her behalf. The hearing judge also found that Mr. Falusi negotiated and
prepared a settlement with Mr. Jablon, causing Mr. Jablon to withdraw his request for a
body attachment. Mr. Lang was not involved in the Daramola matter.
We overrule Mr. Falusi’s exceptions. Mr. Falusi called Mr. Jablon on Ms.
Daramola’s behalf to negotiate a payment plan for money she owed to Deeds Realty. Mr.
Falusi admitted to relaying to Ms. Daramola his conversations with Mr. Jablon, drafting a
payment agreement, and advising Ms. Daramola that she “can’t get out of it.” As a result,
Mr. Jablon withdrew his request for a body attachment. Mr. Falusi also held himself out
as Ms. Daramola’s attorney in his correspondence with Mr. Jablon, and he never explained
his jurisdictional limitations to Ms. Daramola or Mr. Jablon. The record shows that Mr.
Falusi violated MLRPC 5.5(a) and (b) by representing Ms. Daramola.
Ms. Ikpim
The hearing judge determined that Mr. Falusi’s actions “were well beyond assisting
28
a family friend” in Ms. Ikpim’s matter. The hearing judge noted that although Mr. Lang
filed the complaint in the matter, Mr. Falusi filed the Information Report. In finding a
violation of Rule 5.5, the hearing judge considered that the court in Ms. Ikpim’s matter
identified both Respondents as counsel for Ms. Ikpim, but Mr. Falusi never filed a motion
to enter pro hac vice or withdraw as counsel.
Mr. Falusi excepts to the hearing judge’s conclusion that he violated MLRPC 5.5(a)
and (b). We overrule his exception as to MLRPC 5.5(b). Mr. Falusi first contends that the
Information Report, at the time he signed and filed it, did not require an attorney’s signature
(as it does now). Mr. Falusi is correct, as far as that goes. Yet the court still identified him
as an attorney of record, and he failed to address the misidentification. Mr. Falusi next
argues that he intended to file for pro hac vice admission. He argues that “there was no
need for the case to continue after the Defendant filed for bankruptcy protection.” The
complaint was filed on March 26, 2013; the defendant did not notify the court of
bankruptcy until the beginning of July. Mr. Falusi failed to move to appear pro hac vice
or withdraw as counsel for three months. Even if he intended to, he never did, and the fact
that he intended to demonstrates that even Mr. Falusi believed that he was representing Ms.
Ikpim.
Mr. Falusi’s name and “Esq.” designation also appeared in the signature block of
the complaint, but the block did not include his jurisdictional limitations. Far from the
“minimal tangential relation” that Mr. Falusi described to Bar Counsel regarding his
involvement in Ms. Ikpim’s case, Mr. Falusi testified at his deposition that he “had a lot of
involvement” and was “at the center of it.” Mr. Falusi also testified that he gave Ms. Ikpim
29
advice in connection with her claim. Mr. Falusi violated MRLPC 5.5(b) by holding himself
out as Ms. Ikpim’s attorney. We address Mr. Falusi’s exceptions concerning 5.5(a) below.
Mr. Bean
In Mr. Bean’s case, the hearing judge concluded that Mr. Falusi violated MLRPC
5.5(a) and (b) by representing Mr. Bean. In so concluding, the hearing judge determined
that Mr. Bean believed that he retained both Respondents when he retained Lang & Falusi,
LLP. The hearing judge stated, “Respondent Falusi did not sign the fee agreement with
Mr. Bean merely as a ‘witness’ nor was Respondent Falusi performing the role of an
assistant or paralegal.” Rather, although both Respondents participated in Mr. Bean’s
initial consultation, the hearing judge concluded that it was Mr. Falusi with whom Mr.
Bean exchanged the majority of case preparation and strategy emails and telephone
conversations. The hearing judge further determined that Mr. Falusi provided legal advice
to Mr. Bean several times and, like with Ms. Daramola, Mr. Falusi never told Mr. Bean
that he was not a Maryland-licensed attorney.
Mr. Falusi excepts to these conclusions. As is clear from our discussion of the facts,
Mr. Bean thought that both Mr. Lang and Mr. Falusi were his attorneys. Mr. Falusi drafted
and signed the Agreement, and he exchanged emails with Mr. Bean regarding case strategy
and court procedures without Mr. Lang copied. Indeed, on one occasion, when Mr. Bean
asked Mr. Falusi if it was normal that he had not yet received a response on his motion to
extend, Mr. Falusi replied that he had “[j]ust finished talking to the Court’s Clerk about
your motion. They have not ruled on it and I am told to check back next week. This
essentially is good for you since it allows time for Steve and I to get our game plan on.” In
30
that email, Mr. Falusi asked Mr. Bean to copy Mr. Lang on future emails, but Mr. Bean
continued to send Mr. Falusi emails separately. On another occasion, in response to Mr.
Bean’s questions, Mr. Falusi advised that “I will be going to the Court this week, so I can
expatiate on what happened. Regarding the complaint, I am working on it right now and
hope to file it today through the district court in Silver Spring.” Mr. Falusi also sent a letter
to Samuel I. White, P.C. as Mr. Bean’s attorney.
Application of MLRPC 5.5(c)(1)
Mr. Falusi argues that to the extent he represented Mr. Bean and Ms. Ikpim, he was
under the supervision of Mr. Lang, an exception provided by MLRPC 5.5(c). Having
already determined that Mr. Falusi practiced law, the question becomes whether he
engaged in the unauthorized practice of law. The Rule provides, in pertinent part:
(c) A lawyer admitted in another United States jurisdiction, and not disbarred or
suspended from practice in any jurisdiction, may provide legal services on a
temporary basis in this jurisdiction that:
(1) are undertaken in association with a lawyer who is admitted to practice in
this jurisdiction and who actively participates in the matter.
To begin, we note that MLRPC 5.5(c)(1) speaks of “association” rather than “supervision,”
though the parties’ arguments in their papers to this Court refer to supervision.9 The latter
term is used more frequently in cases in which the person of interest is a subordinate lawyer
or a nonlawyer, like a legal assistant or paralegal, and a MLRPC 5.3 (Responsibilities
Regarding Nonlawyer Assistants) violation is alleged against a supervising attorney. See,
9
At oral argument in this Court, however, counsel for Mr. Falusi referred to Mr.
Falusi’s “association” with Mr. Lang.
31
e.g., Attorney Grievance Comm’n v. Shephard, 444 Md. 299, 330–31 (2015). The former
term, “association,” does not appear to have been addressed in our case law under this
iteration of the Rule, so we take this opportunity to clarify its scope.
In 2000, the American Bar Association (“ABA”) Report of the Commission on
Evaluation of the Rules of Professional Conduct proposed expanding the language of
Model Rule 5.5. The language was not adopted, but it formed the basis of a further
amendment in 2002. In 2002, the ABA Multijurisdictional Practice Commission proposed
an amendment to the 2000 language, and the amended language was adopted in August
2002. On December 16, 2003, the Select Committee, appointed by this Court, issued a
report recommending adoption of, among other things, the ABA’s formulation of Rule 5.5.
By a Rules Order dated February 8, 2005, this Court adopted MLRPC 5.5 as recommended
by the Select Committee. This version of the MLRPC was first printed in the 2006
Maryland Rules.
The comments to MLRPC 5.510 explain some aspects of the multijurisdictional
practice framework:
[5] There are occasions in which a lawyer admitted to practice in another
United States jurisdiction, and not disbarred or suspended from practice in
any jurisdiction, may provide legal services on a temporary basis in this
jurisdiction under circumstances that do not create an unreasonable risk to
the interests of their clients, the public or the courts. Paragraph (c) identifies
four such circumstances. The fact that conduct is not so identified does not
imply that the conduct is or is not authorized.
[6] There is no single test to determine whether a lawyer’s services are
provided on a “temporary basis” in this jurisdiction, and may therefore be
10
The comments to the current iteration of the Rule, 19-305.5, are identical in
substance to the comments recited here.
32
permissible under paragraph (c). Services may be “temporary” even though
the lawyer provides services in this jurisdiction on a recurring basis, or for
an extended period of time, as when the lawyer is representing a client in a
single lengthy negotiation or litigation.
[7] Paragraphs (c) and (d) apply to lawyers who are admitted to practice law
in any United States jurisdiction, which includes the District of Columbia
and any state, territory or commonwealth of the United States. The word
“admitted” in paragraph (c) contemplates that the lawyer is admitted and
excludes a lawyer who while technically admitted is not authorized to
practice, because, for example, the lawyer is on inactive status.
[8] Paragraph (c)(1) recognizes that the interests of clients and the public are
protected if a lawyer admitted only in another jurisdiction associates with a
lawyer licensed to practice in this jurisdiction. For this paragraph to apply,
however, the lawyer admitted to practice in this jurisdiction must actively
participate in and share responsibility for the representation of the client.
The text of the Rule and the comments thereto are instructive, but they do not
explain the meaning of the word “association.” After each proposed ethical rule, the Select
Committee report included (and the comments to MLRPC 5.5 themselves include) a
“Model Rules Comparison” paragraph. It stated that “Rule 5.5 is substantially similar to
the language of the Ethics 2000 Amendments to the ABA Model Rules of Professional
Conduct.” Thus, we find persuasive any interpretation of the ABA Model Rules and look
to those interpretations for guidance.
In 2014, the ABA Center for Professional Responsibility released a report
cataloging developments to the Model Rules between 1982 and 2013, including the
amendments to Model Rule 5.5 at issue here. ABA, A Legislative History: The
Development of the ABA Model Rules of Professional Conduct, 1982–2013 (Art Garwin
ed., 2013). That report described Model Rule 5.5(c)(1) as such:
New paragraph (c)(1) allows work on a temporary basis in a state by an
33
out-of-state lawyer who is associated in the matter with a lawyer admitted to
practice in the jurisdiction and who actively participates in the representation.
This provision promotes the client’s interest in counsel of choice in many
circumstances where the client has good reason to engage both a local and
an out-of-state lawyer.
Id. at 655. As the comments to the Rule explain, “temporary basis” is capable of no precise
definition, leaving us to determine on a case-by-case basis whether an out-of-state
attorney’s presence is temporary.
We find some guidance in two cases decided prior to the adoption of the
multijurisdictional practice rules, Attorney Grievance Commission v. Brown, 353 Md. 271
(1999), and Attorney Grievance Commission v. Harper, 356 Md. 53 (1999). In Brown, the
respondent Maryland attorney was held to have “associated with” Wilder, an attorney
licensed only in Virginia. 353 Md. at 278, 280, 289. Wilder assisted Brown in an
employment matter in Maryland. Id. at 276. Wilder never signed any court pleadings, but
his name appeared in the pleadings’ signature blocks; Brown introduced Wilder as his co-
counsel at an administrative hearing; and both attorneys’ names appeared together on
letterhead, but Wilder’s jurisdictional limitations were not indicated. Id. at 289–90. Under
the former rules—which made no formal mention of “association” and did not provide for
multijurisdictional practice—these facts were enough to find that Brown violated MLRPC
5.5 by allowing Wilder to engage in the unauthorized practice of law and MLRPC 7.1 and
7.5 for having a misleading letterhead. Id. at 290.
In Harper, two respondent attorneys were charged with violating MLRPC 5.5. 356
Md. at 60, 61. Kemp, a Maryland attorney, opened an office in Baltimore City with Harper,
an attorney licensed in the District of Columbia, to handle personal injury cases in
34
Maryland. Id. at 56–58. The two attorneys used the name “Harper & Kemp,” which
adorned their shared office suite, stationery, and checks. Id. at 64. They disputed whether
a partnership agreement was ever reached, but the partnership ostensibly was formed on
the basis of a fee-sharing arrangement. Id. at 58. In discussing whether Kemp violated
then-Rule 5.5(b) by assisting Harper’s unauthorized practice in Maryland, we noted:
Bar Counsel’s legal theory of the unauthorized practice aspects of this case
is that the lawyer who is admitted in another jurisdiction, but who is not
admitted in Maryland, may not practice law in Maryland in partnership with
a Maryland attorney, out of an office maintained by the partnership in
Maryland, unless the Maryland attorney supervises the work of the
unadmitted lawyer. Because both respondents accept this legal analysis, we
have no occasion in this matter to explore the theory further.
Id. at 61–62. Naturally, Harper argued that Kemp supervised his work in Maryland; Kemp
disagreed. Id. at 62–63. Harper’s primary contention was that “the degree of supervision
required to avoid violating BOP § 10-601 is inversely proportional to the knowledge and
experience of the unadmitted attorney in the field of practice in which that attorney is
engaged.” Id. at 63. In other words, Harper argued that because he had experience in
personal injury cases in the District of Columbia, he needed less supervision from a
Maryland attorney.
The hearing judge found that Kemp never supervised Harper, so Harper was
essentially arguing that he did not require supervision. Id. In dismissing Harper’s
argument, we stated:
That argument places an absurd construction on BOP § 10-601. Under that
argument an unadmitted attorney may maintain an office for the practice of
law in Maryland, and may counsel and represent Maryland residents on legal
matters involving the application of Maryland law, simply by arranging to
use the name of an admitted attorney in the ostensible firm name of the
35
unadmitted attorney’s practice.
Id.
Brown and Harper provide two different conceptions of what an “association”
between two lawyers might look like. In Brown, a Maryland attorney enlisted the
assistance of a Virginia attorney in one employment case, and the two attorneys shared
letterhead. That led to violations of MLRPC 7.1, 7.5, and then-Rule 5.5. In Harper, a
Maryland attorney essentially allowed a District of Columbia attorney to handle Maryland
cases by virtue of a fee-sharing arrangement and shared firm name.
The present case more closely resembles Brown, which, under the new
multijurisdictional practice rules, might have been decided differently. In this case, at the
time in question, Mr. Falusi was admitted to practice law in Massachusetts. The hearing
judge found that Respondents’ “initial arrangement” was for Mr. Falusi to practice
immigration law in Maryland and for Mr. Lang to practice criminal law.11 Indeed, the
hearing judge found that over the course of 2013, Mr. Falusi handled a number of
immigration matters in Maryland, and the hearing judge identified deposits into and
disbursements from the Operating Account in connection with those matters. The hearing
judge did not find, and Bar Counsel does not allege, that—as was the case in Harper—
Respondents created the Firm as a cover for Mr. Falusi’s unauthorized practice of law in
Maryland. Rather, throughout the life of the Firm, the hearing judge identified only three
11
There is no indication in the evidence produced at the hearing, and no finding by
the hearing judge, that Respondents’ business plan ever deviated from that “initial
arrangement.”
36
matters that involved Maryland law in which Mr. Falusi participated.
In the matters of Mr. Bean and Ms. Ikpim, Mr. Falusi was associated with Mr. Lang,
a Maryland attorney, who actively participated in those cases. In Ms. Ikpim’s case, the
record is unclear as to how much legal advice Mr. Falusi provided, but the record is clear
that Mr. Lang provided legal advice and drafted and signed the complaint. In Mr. Bean’s
matter, Mr. Lang was very involved with the case, exchanging numerous emails with Mr.
Bean. At times, Mr. Falusi exchanged emails with Mr. Bean regarding case strategy and
indicated that he was engaging in legal work on Mr. Bean’s behalf (e.g., working on
drafting a complaint), but Mr. Bean also had significant contact with Mr. Lang. According
to their testimony, which was neither disputed by Bar Counsel nor discredited by the
hearing judge, Respondents worked together on Mr. Bean’s case. Mr. Lang signed all of
the pleadings and was the only attorney of record listed in Mr. Bean’s cases. Mr. Falusi
did send a letter on Firm letterhead to one of Mr. Bean’s mortgage servicers on his behalf,
but Mr. Lang testified that he saw the letter before it was sent. We are convinced that this
constitutes “association,” whereby Mr. Lang “actively participate[d] in and share[d]
responsibility for the representation of the client[s].” MLRPC 5.5, cmt. 8.
We also conclude that Mr. Falusi provided his legal services on a temporary basis.
The record does not reflect that Mr. Falusi made a habit of practicing law in areas other
than immigration, given that only three instances of representation during an entire
calendar year are at issue here.
This precise factual situation—in which an out-of-state attorney establishes an
immigration practice in Maryland, partners with a Maryland attorney, and occasionally
37
assists the Maryland attorney in matters concerning Maryland law—may not have been
contemplated by the multijurisdictional practice rules and certainly has not been addressed
in our case law. However, the text of the Rule and comments appear to embrace such a
situation. Under the circumstances set forth above, Mr. Falusi practiced law in the matters
of Ms. Ikpim and Mr. Bean within the confines of MLRPC 5.5(c)(1). Therefore, we sustain
Mr. Falusi’s exceptions to the hearing judge’s conclusions that he violated MLRPC 5.5(a)
in the matters of Ms. Ikpim and Mr. Bean.
That said, although an attorney admitted elsewhere may, under MLRPC 5.5(c)(1),
provide temporary legal services in association with a Maryland-barred attorney, the
foreign attorney must still abide by MLRPC 5.5(b)(2) and make clear that he or she is not
admitted in Maryland. In addition to the misleading letterhead and website, Mr. Falusi
failed to disclose his jurisdictional limitations to the court, his clients, and the public at
large. We conclude that Mr. Falusi violated MLRPC 5.5(b)(2) in all three matters at issue
here.
Mr. Lang
MLRPC 5.5(a) also prohibits an attorney from assisting another in the unauthorized
practice of law. The hearing judge concluded that Mr. Lang violated MLRPC 5.5(a)
because he “permitted and assisted Respondent Falusi to practice law at Lang & Falusi,
LLP.” From the Firm’s “ambiguous letterhead and misleading website to the disingenuous
pleadings,” Mr. Lang was “complicit” in Mr. Falusi’s efforts to hold himself out as a
Maryland-licensed attorney.
We agree with the hearing judge that Mr. Lang permitted and assisted Mr. Falusi to
38
practice law at Lang & Falusi, LLP in violation of MLPRC 5.5(a). Mr. Lang made no
effort to indicate Mr. Falusi’s jurisdictional limitations on the Firm’s letterhead, website,
or pleadings. Mr. Lang filed the complaint and Mr. Falusi filed the Case Information Report
during their representation of Ms. Ikpim. The court identified both Mr. Lang and Mr.
Falusi as counsel, but at no time did Mr. Lang seek to correct the error. See Attorney
Grievance Comm’n v. Bocchino, 435 Md. 505, 535 (2013) (Maryland attorney violated
MLRPC 5.5(a) by permitting a disbarred attorney to draft, edit, and file pleadings under
the respondent attorney’s name without reproach; standing by as the disbarred attorney
held himself out to a client as her attorney; and failing to enter a separate retainer agreement
with that client).
MLRPC 1.1: Competence
MLRPC 1.1 mandates that attorneys provide competent representation to their
clients, which “requires the legal knowledge, skill, thoroughness and preparation
reasonably necessary for the representation.” It is axiomatic that “a complete lack of
representation is incompetent representation.” Attorney Grievance Comm’n v. Moore, 451
Md. 55, 79 (2017). For instance, “the failure to pursue a claim after filing a complaint
demonstrates not only incompetence, but also insufficient diligence.” Attorney Grievance
Comm’n v. Smith, 443 Md. 351, 371 (2015).
An attorney also violates MLRPC 1.1 by failing to attend a court appearance, absent
sufficient explanation. Attorney Grievance Comm’n v. Storch, 445 Md. 82, 87 (2015); see
Attorney Grievance Comm’n v. Hamilton, 444 Md. 163, 180 (2015) (“Failure to appear in
court when expected to do so is a particularly egregious violation of MLRPC 1.1.”);
39
Attorney Grievance Comm’n v. Shakir, 424 Md. 197, 205 (2012) (“[A] failure to appear at
a client’s hearing is a complete failure of representation.”). In Attorney Grievance Comm’n
v. Brady, 422 Md. 441 (2011), we held that an attorney violated MLRPC 1.1 when he failed
to file a response to a motion to dismiss or appear at a scheduled status conference for the
case. Id. at 457; Attorney Grievance Comm’n v. Butler, 426 Md. 522, 532–33 (2012)
(holding that the attorney’s failure to appear at a hearing without obtaining substitute
counsel violated MLRPC 1.1 because it “failed to provide his client with a basic element
of competent representation”).
The hearing judge concluded that both Respondents violated MLRPC 1.1 in their
representation of Mr. Bean. Because Mr. Bean retained both Respondents, the hearing
judge concluded that they were both “jointly responsible for the incompetent manner in
which they handled Mr. Bean’s cases.”
To support the conclusion that Mr. Lang violated MLPRC 1.1, the hearing judge
looked to Mr. Bean’s failure to appear at a hearing in Mr. Bean’s Second Foreclosure
Action. Two days before the hearing, Mr. Lang filed a motion for continuance because of
a scheduling conflict, but no documentation accompanied the motion to demonstrate that
conflict. Although the court had not granted the motion, Mr. Lang failed to appear at the
hearing. Consequently, the court ordered Mr. Bean’s foreclosure to proceed.
The hearing judge concluded that both Respondents violated MLPRC 1.1 due to
their representation of Mr. Bean in his declaratory judgment action. In that matter, Mr.
Falusi helped prepare the complaint, but each Respondent “did little to no work in the
matter” after the complaint was filed. For example, neither responded to a motion to
40
dismiss, and a review of testimony and email exchanges between Mr. Bean and
Respondents revealed that “minimal meaningful work was done” in his case. Moreover,
although Mr. Lang moved to withdraw his representation of Mr. Bean, the court initially
denied his motion due to his noncompliance with the Rules.
Mr. Lang
We agree with the hearing judge that Mr. Lang violated MLRPC 1.1 when he failed
to appear at the February 27, 2014 hearing in Mr. Bean’s Second Foreclosure Action
without prior court approval. Storch, 445 Md. at 87; Brady, 422 Md. at 457. Mr. Lang
also violated MLRPC 1.1 when, after filing a complaint for declaratory judgment, he and
Mr. Falusi “did little to no work in the matter”: neither responded to a motion to dismiss,
which was granted, and email exchanges and between Mr. Bean and the Firm confirm that
“minimal meaningful work was done” to advance his case, which the court ultimately
dismissed with prejudice. Smith, 443 Md. at 371; Brady, 422 Md. at 457.
Mr. Falusi
Mr. Falusi excepts that he could not have violated MLRPC 1.1 because he was not
licensed to practice in Maryland, was not an attorney of record in Mr. Bean’s cases, and
did not enter his appearance or file any pleadings in Mr. Bean’s cases. Because we
concluded above that Mr. Falusi engaged in the authorized practice of law due to his
association with Mr. Lang, he was therefore obligated to provide competent representation.
He did not as to Mr. Bean and thus violated MLRPC 1.1. After Mr. Falusi helped prepare
the complaint in Mr. Bean’s declaratory judgment action, he—like Mr. Lang—failed to
perform substantive work in that matter, which was ultimately dismissed with prejudice.
41
Smith, 443 Md. at 371; Brady, 422 Md. at 457.
MLRPC 1.2(a): Scope of Representation
An attorney violates MLRPC 1.2(a) by “fail[ing] to inform a client of the status of
his or her case, thereby denying the client the ability to make informed decisions.” Attorney
Grievance Comm’n v. Hamilton, 444 Md. 163, 182 (2015). In Attorney Grievance
Commission v. Brown, 426 Md. 298 (2012), we held that an attorney violated MLRPC
1.2(a) when two clients’ cases were dismissed due to the attorney’s inaction, the attorney
failed to inform either client of the dismissals, and he ignored their requests for
information. Id. at 320.
As above, the hearing judge concluded that both Respondents violated MLRPC
1.2(a) during their representation of Mr. Bean in his First and Second Foreclosure Actions.
In so finding, the hearing judge rejected Respondents’ claims that they represented Mr.
Bean solely for his second mortgage. The hearing judge reasoned that Mr. Falusi’s letter
of representation to Samuel I. White, P.C. demonstrated “Respondents’ knowledge and
intent to represent Mr. Bean” in proceedings involving his first mortgage.
Moreover, despite Mr. Bean’s “clear” objectives, the hearing judge concluded that
“neither Respondent adequately pursued” his case: On several occasions, Mr. Bean was
the one to update Respondents as to the opposing party’s actions in his case; and he often
queried the status of his case and Respondents’ efforts to obtain discovery and pursue his
defense. The hearing judge noted that even after Mr. Bean placed both Respondents on
notice that a foreclosure action was filed as to his first mortgage, neither Respondent took
any action.
42
Mr. Lang and Mr. Falusi
Like the attorney in Brown, Respondents violated MLRPC 1.2(a) by failing to
inform Mr. Bean of the consequences of Mr. Lang’s failure to appear at the February 27,
2014 hearing and failing to update Mr. Bean that the court ordered his foreclosure to
proceed. In fact, it was Mr. Bean who updated Respondents that the foreclosure was
permitted to proceed.12 Id. Neither Respondent did any substantive work in case number
390048V after Mr. Falusi sent the letter to Samuel I. White, P.C. For the reasons stated
earlier, we overrule Mr. Falusi’s exceptions that deny his role as Mr. Bean’s attorney.
MLRPC 1.3: Diligence
We determined in Attorney Grievance Commission v. Byrd, 408 Md. 449 (2009),
that an attorney violated MLRPC 1.3 when he failed to appear at a hearing. Id. at 478; see
Butler, 426 Md. at 534 (“A lawyer’s failure to appear for scheduled court dates without
good reason is a violation of 1.3.”); Attorney Grievance Comm’n v. Gisriel, 409 Md. 331,
371 (2009) (holding that an attorney violated MLRPC 1.3 by failing to respond to motions
12
Mr. Lang emailed Mr. Bean three days before the February 27, 2014 hearing to
inform Mr. Bean that Mr. Lang would not be present and that the court had not yet granted
his request to postpone. Mr. Bean replied to both Respondents: “[P]lease keep my [sic]
updated. What will it mean if they do not grant [the] extension and we are not at the hearing
on Friday?” Mr. Falusi responded and provided Mr. Bean only with the case number for
the newly-filed declaratory judgment action. On March 5, more than one week after the
court ordered Mr. Bean’s foreclosure to proceed, Mr. Bean emailed Mr. Falusi to inform
him of the court’s decision, writing, “I sent Steve and you an email asking what would
happen if no one appeared on my behalf and I received no response from either of you
regarding that matter. Now I see that they have granted the plaintiffs [sic] request to
proceed.” Mr. Falusi responded first with, “That decision does not bode well for us. It is
not good at all[.]” He then outlined their strategy to void the title and file a motion to
vacate the February 27 order. Mr. Lang replied a day later and reiterated Mr. Falusi’s
strategy.
43
to dismiss and attend a court hearing). In Mooney, we held that the same rationale for
finding a violation of MLRPC 1.1 could be used to find a violation of MLRPC 1.3. 359
Md. at 94.
The hearing judge concluded that both Respondents violated MLRPC 1.3 due to
their failure to “exercise reasonable diligence” when representing Mr. Bean. In support of
this conclusion, the hearing judge noted that neither Respondent filed a response to a
motion to dismiss in Mr. Bean’s declaratory judgment action, and Mr. Lang failed to appear
at a hearing on February 27, 2014 in Mr. Bean’s Second Foreclosure Action. Moreover,
Respondents failed to pursue discovery or meaningfully defend Mr. Bean from foreclosure.
Mr. Lang
Mr. Lang violated MLRPC 1.3 when he failed to appear at Mr. Bean’s February 27,
2014 hearing without prior court approval. Byrd, 408 Md. at 478. He also violated
MLRPC 1.3 for the same reasons he violated MLRPC 1.1—namely, his failure to pursue
Mr. Bean’s declaratory judgment action. Mooney, 359 Md. at 94.
Mr. Falusi
Mr. Falusi violated MLRPC 1.3 for the same reasons he violated MLRPC 1.1.
Mooney, 359 Md. at 94. As above, we overrule Mr. Falusi’s exceptions that deny his
representation of Mr. Bean. However, we sustain Mr. Falusi’s exceptions to the hearing
judge’s finding that he did not meaningfully pursue discovery or timely respond to Mr.
Bean’s emails—save for his failure to respond to Mr. Bean’s request for information as to
the consequences of Mr. Lang’s failure to appear, which will be discussed below.
MLRPC 1.4(a) and (b): Communication
44
In pertinent part, MLRPC 1.4(a) requires an attorney to “keep the client reasonably
informed about the status of the matter” and “promptly comply with reasonable requests
for information.” An attorney violates MLRPC 1.4(b) by failing to “explain a matter to
the extent reasonably necessary to permit the client to make informed decisions regarding
the representation.” A violation of MLRPC 1.4 turns on the substance, not regularity, of
communication; thus, frequent attorney-client communication does not necessarily negate
a violation of MLRPC 1.4. Attorney Grievance Comm’n v. Rand, 445 Md. 581, 608 (2015).
In Attorney Grievance Commission v. De La Paz, 418 Md. 534, 554 (2011), we held that
an attorney violated MLRPC 1.4 in part for failing to inform a client that his case had been
dismissed, a fact the client learned only by visiting the courthouse. Id. at 554. Similarly,
the attorney in Attorney Grievance Commission v. Fox, 417 Md. 504 (2010), violated
MLRPC 1.4 when he did not know that a client’s case was dismissed and failed to inform
the client of the same. Id. at 514, 517. Rule 1.4 violations are “closely linked to violations
of” Rule 1.3. Attorney Grievance Comm’n v. Gelb, 440 Md. 312, 321 (2014).
The hearing judge concluded that both Respondents violated MLRPC 1.4(a) and (b)
in their representation of Mr. Bean during the Second Foreclosure Action. In support, the
hearing judge stated that neither Respondent promptly informed Mr. Bean that the court
denied their motion to postpone the February 27, 2014 hearing. Moreover, the hearing
judge found that Mr. Lang did not advise Mr. Bean of the potential consequences of Mr.
Lang’s failure to appear at the hearing, and that in fact, it was Mr. Bean who notified
Respondents that the foreclosure would proceed because of Mr. Lang’s failure to appear.
Finally, the hearing judge concluded that Mr. Falusi did not timely respond to Mr. Bean’s
45
emails.
Mr. Lang
We agree with the hearing judge that Mr. Lang violated MLRPC 1.4(a) and (b) when
he did not respond to Mr. Bean’s request for information concerning the consequences of
Mr. Lang’s failure to appear at the February 27, 2014 hearing and when he failed to inform
Mr. Bean that the court permitted his foreclosure to proceed. Like the attorneys in De La
Paz and Fox, neither Respondent was aware that the court had ordered Mr. Bean’s
foreclosure to proceed until Mr. Bean, their client, informed them by email a week after
the court order was entered.
Mr. Falusi
As with Mr. Lang, Mr. Falusi violated MLPRC 1.4(a) and (b) for his lack of
communication concerning Mr. Lang’s failure to appear at the February 27, 2014 hearing.
While we sustain Mr. Falusi’s exceptions concerning the general timeliness of his and Mr.
Lang’s responses to Mr. Bean’s emails, that Respondents regularly communicated with
Mr. Bean does not require us to reach the opposite result. Rand, 445 Md. at 608.
We overrule Mr. Falusi’s exception to the hearing judge’s finding that Mr. Bean did
not have informed consent when he initialed the flat fee clause in the retainer agreement.
In Mr. Lang’s deposition, he testified that he did not explain to Mr. Bean any more than
what was written in the flat fee clause concerning the placement of Mr. Bean’s $3,500.00
in the Operating Account because, in Mr. Lang’s words, there were “no risks involved.”
Comment 6 to this Rule is illustrative, as it highlights Mr. Falusi’s dereliction of his
obligations to obtain Mr. Bean’s informed consent concerning the flat fee clause. Informed
46
consent requires an attorney to give a client “any explanation reasonably necessary to
inform the client or other person of the material advantages and disadvantages of the
proposed course of conduct and a discussion of the client’s or other person's options and
alternatives.” Such an explanation was not offered here.
MLRPC 1.5(a): Fees
Under MLRPC 1.5(a), an attorney may not charge an unreasonable fee. “An
advance fee given in anticipation of legal service that is reasonable at the time of the receipt
can become unreasonable if the attorney does not perform the services expected.” Attorney
Grievance Comm’n v. Smith, 457 Md. 159, 218 (2018).
The hearing judge concluded that both Respondents violated MLRPC 1.5(a)
because the $3,500.00 flat fee that Mr. Bean paid to Respondents was unreasonable
considering the work they performed. The hearing judge looked to the following facts to
support that conclusion. Mr. Bean retained both Respondents, but both “failed to provide
competent and diligent representation” or pursue Mr. Bean’s objectives. After
Respondents filed a petition for declaratory judgment, they performed no further
“substantive action”: neither Respondent filed any opposition to a motion to dismiss the
declaratory judgment action. Moreover, Mr. Lang failed to appear at a hearing in the
Second Foreclosure Action, thereby allowing Mr. Bean’s foreclosure to proceed.
Mr. Lang and Mr. Falusi
For reasons stated earlier, we overrule Mr. Falusi’s exception that he did not
represent Mr. Bean. As detailed below, we also overrule Mr. Falusi’s exception that the
$3,500.00 flat fee Respondents charged Mr. Bean was reasonable for services rendered.
47
Indeed, Mr. Falusi maintains that the time Mr. Lang expended on Mr. Bean’s case exceeded
the $3,500.00 flat fee. Mr. Falusi’s exception relies in part on a faulty premise—that the
reasonableness of a fee is determined at the time it was charged. See Smith, 457 Md. at
218. And we overrule Mr. Falusi’s exception that the $3,500.00 flat fee was reasonable
because Mr. Bean remained in his home throughout Respondents’ representation: such
facts go to mitigation, not reasonableness of a fee. See Attorney Grievance Comm’n v.
Jaseb, 364 Md. 464, 481 (2001).
Neither Respondent provided an accounting of hours spent on services performed,
so we agree with the hearing judge that both Respondents violated MLRPC 1.5(a) because
the $3,500.00 flat fee that Mr. Bean paid to Respondents was unreasonable given their
work performed. In an August 26, 2014 email to Mr. Bean, Mr. Lang listed the work
performed in three cases: numbers 377650V; 385388V; and 387359V. By Mr. Lang’s
own words, we may disregard the hours spent on case number 387359V, the declaratory
judgment action, as he testified at his deposition that any work performed on that matter
was outside of the flat fee agreement. For case number 377650V, Respondents filed a
motion for preliminary injunction. For case number 385388V, they filed a nearly identical
motion for preliminary injunction; Mr. Lang failed to attend the hearing, at which the court
ordered Mr. Bean’s foreclosure to proceed; and Respondents filed a motion to vacate that
order and a reply to plaintiff’s response to the motion to vacate.
MLRPC 1.15(a): Safekeeping Property
MLRPC 1.15(a) requires an attorney to hold client and third-party funds in an
attorney trust account separate from operating account pursuant to Title 16, Chapter 600 of
48
the Maryland Rules. For trust account purposes, an “attorney” is defined as “any
individual admitted by the Court of Appeals to practice law.” Rule 16-602(b). MLRPC
1.15(a) also requires an attorney to create and maintain records accounting for client and
third-party funds and preserve the records for at least five years after each record was
created.
The hearing judge concluded that both Respondents violated MLRPC 1.15(a). The
hearing judge assessed Respondents’ action or inaction concerning client or third-party
funds: Respondents failed to create or maintain an attorney trust account, instead using the
single Operating Account under the name of Lang & Falusi, LLP. Moreover, they
deposited legal fees and client funds into the Operating Account and made disbursements,
including for legal expenses, from that account. They failed to separate their own funds
from client and third-party funds. For example, client fees, including those of Mr. Bean,
were indistinguishably deposited into the Operating Account as if earned upon receipt.
Mr. Falusi
We sustain Mr. Falusi’s exception that he could not have violated MLRPC 1.15(a)
because he was not a Maryland-licensed attorney at the time he deposited client or
third-party funds into the Lang & Falusi, LLP Operating Account. The plain language of
Rule 16-602(b) explicitly defines an “attorney” in such a way as to exclude Mr. Falusi from
any obligation to comply with Maryland attorney trust account requirements under 1.15(a)
while he was practicing with Lang & Falusi, LLP; his only obligation arose after he was
admitted to the Maryland Bar in 2016. We therefore conclude that Mr. Falusi did not
violate MLRPC 1.15(a).
49
Even if Mr. Falusi was obligated under MLRPC 1.15(a) to hold in an attorney trust
account client or third-party funds related to his immigration practice, neither the retainer
agreements for or testimony from those clients are in the record.13 Accordingly, we cannot
conclude by clear and convincing evidence that Mr. Falusi did not obtain written informed
consent from those clients to hold those funds in the Operating Account. If he were under
a duty to hold client or third-party funds in an attorney trust account, his only violation
would be as to Ms. Ikpim’s $135.00 that was deposited into and disbursed from the
Operating Account to pay the filing fees in the Circuit Court for Prince George’s County.
Mr. Lang
We agree with the hearing judge that Mr. Lang violated MLPRC 1.15(a) when he
failed to create and maintain an attorney trust account, hold client and third-party funds
separate from Operating Account funds, and maintain (or create) attorney trust account
records and hold them for five years after their creation.
Although the hearing judge did not specify which funds Mr. Lang was required to
hold separate from his own, we infer that the judge concluded that such funds included the
laundry list of client and third-party checks discussed throughout her findings of fact. In
our review of the record, however, it appears that the majority of those client and
third-party funds related to Mr. Falusi’s immigration clients and his alone—save for the
fees or checks related to Mr. Bean, Ms. Ikpim, and Ms. Olivia Lang. The flat fee check
from Mr. Bean, the settlement check for Ms. Olivia Lang, and Ms. Ikpim’s check for
13
In Mr. Falusi’s exceptions to MLRPC 1.15(a), he stated that his immigration
clients signed the Firm’s flat fee retainer agreement.
50
payment to the circuit court should have been held in an attorney trust account. Mr. Lang
violated MLRPC 1.15(a) by failing to do so.
MLRPC 1.16(d): Terminating Representation
MLRPC 1.16(d) provides that “[u]pon termination of representation, an attorney
shall take steps to the extent reasonably practicable to protect a client’s interests.” Such
steps include returning client files and any unearned fees. An attorney violates Rule
1.16(d) when he or she “fail[s] to honor [the client’s] request for a copy of his case file(s)
at the end of the representation,” Brown, 426 Md. at 314, or does not promptly deliver a
copy of the client’s case file, Attorney Grievance Comm’n v. Page, 430 Md. 602, 630–31
(2013). In Attorney Grievance Commission v. Moore, 447 Md. 253 (2016), we held that
an attorney who failed to return the unearned portion from a flat fee agreement violated
MLRPC 1.16(d). Id. at 269; see also Attorney Grievance Comm’n v. Kremer, 432 Md.
325, 336 (2013) (violating MLRPC 1.16(d) by failing to timely return unearned fees).
Because Respondents “failed to take steps to the extent reasonably practicable to
protect Mr. Bean’s interests” when they terminated their representation in his case, the
hearing judge concluded that each Respondent violated MLRPC 1.16(d). The hearing
judge found that the following timeline supported that conclusion. In July 2013, Mr. Bean
requested a copy of his file, and in response, Mr. Lang filed a motion to withdraw from
Mr. Bean’s Second Foreclosure Action. Respondents held Mr. Bean’s file for one month
after the court granted Mr. Lang’s motion to withdraw. Moreover, Respondents did not
provide Mr. Bean with an accounting of the work performed or refund his fee.
Mr. Lang and Mr. Falusi
51
In a July 23, 2014 email, Mr. Bean first requested that Mr. Lang send his client file.
On August 29, Mr. Bean informed Respondents that he would be seeking other counsel
and again requested his file. One day later, Mr. Lang informed Mr. Bean that he would be
withdrawing as counsel in his declaratory judgment action and would send his file. At this
point, Respondents should have returned Mr. Bean’s client file and any unearned fees.
However, Mr. Lang did not send Mr. Bean’s client file until at least November 12, 2014,
and only after repeated demands. Between September 9 and 10, Mr. Bean inquired as to
the status of his file and provided a Kentucky address to which Mr. Lang could send it; Mr.
Lang responded and acknowledged that he was fired. On November 12, Mr. Bean told Mr.
Lang that he had still not received his file and that the “harm this is causing will be
irreparable.” Mr. Lang responded that evening, writing that he would mail the file the
following day. Such untimeliness to a client’s request for his or her file constitutes a clear
violation of MLRPC 1.16(d). Page, 430 Md. at 630–31; Brown, 426 Md. at 314. As
reflected in this Court’s discussion of MLRPC 1.5(a), Respondents’ $3,500.00 flat fee was
unreasonable, and their failure to return any unearned fees after they terminated
representation violated MLRPC 1.16(d). Moore, 447 Md. at 269.
Mr. Falusi excepts to the conclusion that he violated MLRPC 1.16(d) because, as
above, he argues that he did not represent Mr. Bean and therefore could not have terminated
any such representation. We overrule this exception for the reasons stated earlier.
MLRPC 7.1(a): Communications Concerning a Lawyer’s Services;
MLRPC 7.5(a): Letterhead
MLRPC 7.1 provides that an attorney “shall not make a false or misleading
52
communication about the lawyer or the lawyer’s services.” A communication becomes
false or misleading when it “omits a fact necessary to make the statement considered as a
whole not materially misleading.” Omitting such a fact in an attorney’s office letterhead
also violates MLRPC 7.5(a), which prohibits lawyers from using office letterhead in
violation of MLRPC 7.1. In Attorney Grievance Commission v. Brown, 353 Md. 271
(1999), Brown, a Maryland attorney, associated with a Virginia attorney (Wilder) while
representing a client before a Maryland administrative agency. Brown used letterhead that
included Wilder’s name as co-counsel, but he failed to indicate that Wilder was not licensed
in Maryland. We held that Brown violated both MLRPC 7.1 and 7.5(a) because his
“omission on his letterhead that Mr. Wilder was not licensed to practice in Maryland courts
without special admission could have misled each of his clients . . . into believing he or she
was receiving proper representation from both attorneys.” Id. at 290.
Mr. Lang and Mr. Falusi
The hearing judge concluded that both Respondents violated Rule 7.1(a), 14 given
misleading content in their letterhead and website concerning jurisdictional and practice
area limitations. According to the hearing judge, Respondents “continuously” used
letterhead that did not disclose that Mr. Falusi’s practice was limited to immigration law
and that he was not licensed to practice law in Maryland during this period. Moreover, the
letterhead did not differentiate which principal in Lang & Falusi, LLP was licensed to
14
On page 25 of the hearing judge’s Findings of Fact and Conclusions of Law, the
language for MLRPC 7.5(a) (Firm Names and Letterheads) is listed below the court’s
recitation of MLRPC 7.1(a). However, MLRPC 7.5(a), as a violation or otherwise, is not
mentioned in the remainder of the Conclusions of Law.
53
practice in Maryland. The hearing judge concluded that the firm’s website was misleading
as to whether Mr. Falusi’s practice was limited to immigration law.
As in Brown, Mr. Lang associated with Mr. Falusi, but the Firm’s letterhead omitted
Mr. Falusi’s jurisdictional limitations. 353 Md. at 290. We therefore agree with the
hearing judge that the Firm’s letterhead was materially misleading and thus both
Respondents violated MLRPC 7.1 and 7.5(a).
Rule 16-603: Duty to Maintain Account;
Rule 16-604: Trust Account Required Deposits;
Rule 16-601.1: Attorney Trust Account Record-Keeping
In Attorney Grievance Commission v. Ellison, 384 Md. 688 (2005), we held that an
attorney violated MLRPC 1.15(a) and Rules in Title 16, Chapter 600 because “a set of facts
that constitutes a violation of one may violate also the other without there necessarily
arising an unfairly duplicative set of sanctions.” Id. at 709 (violating MLRPC 1.15(a) and
Rules 16-606 and 16-609); id. (“[I]t is not outside the purview of this Court to draft
overlapping rules, a narrow one for managing attorney client trust fund accounts and a
broader one to set a minimum standard of professional conduct in dealing with
attorney/client trust funds.”).
The hearing judge concluded that Respondents violated Rule 16-603 because they
failed to maintain an attorney trust account throughout the lifetime of the Firm and accepted
funds intended for the benefit of third parties or clients.
The hearing judge concluded that both Respondents violated Rule 16-604. The
hearing judge observed that they shared a single Operating Account under the name of
Lang & Falusi, LLP. The hearing judge underscored that on several occasions,
54
Respondents deposited client and third-party fees into the Operating Account, all or some
of which were later dispersed to clients or third parties, including the U.S. Department of
Homeland Security. At least twice, the hearing judge noted, Respondents deposited
third-party settlement checks made payable to Lang & Falusi, LLP and their clients into
the Operating Account, later disbursing these funds to themselves and their clients.
The hearing judge concluded that both Respondents violated Rule 16-606.1 because
they did not maintain records of the client funds for Mr. Bean, Ms. Ikpim, and Ms.
Daramola that were deposited into and disbursed from the Operating Account.
Mr. Falusi
Mr. Falusi was not an “attorney” as it is defined in Title 16, Chapter 600. Md. Rule
16-602(b). As a result, he was under no obligation to maintain an attorney trust account,
make the required deposits into that account, or maintain records for that account during
his time at Lang & Falusi, LLP. We therefore sustain his exceptions concerning his
violations of these Rules. That Mr. Falusi escapes from a violation of MLRPC 1.15(a) and
other attorney trust account rules simply because he is not a member of this Bar is not
meant to lighten our understanding of his misconduct or encourage others to do the same.
Mr. Lang
For the reasons stated earlier in our discussion of MLRPC 1.15(a), we conclude that
Mr. Lang violated Rules 16-603, 16-604, and 16-601.1 for his conduct handling client or
third-party funds during his representation of Ms. Ikpim and Ms. Olivia Lang.
BOP § 10-601: Bar Admission Required to Practice Law in the State
The hearing judge concluded that both Respondents violated BOP § 10-601,
55
although Bar Counsel did not charge Mr. Lang with that violation. The hearing judge
reasoned that Mr. Falusi gave legal advice to Mr. Bean, Ms. Ikpim, and Ms. Daramola,
negotiated settlements, and held himself out as an attorney in his “overall conduct.” The
hearing judge determined that Mr. Lang consented to Mr. Falusi’s unauthorized practice of
law, given the Firm’s website and letterhead, his consultation with clients, and misleading
filings.
For the reasons stated in our discussion of MLRPC 5.5, we agree with the hearing
judge that Mr. Falusi violated BOP § 10-601. Mr. Lang, however, “may not be found
guilty of violating a Rule of Professional Conduct unless that Rule is charged in the Petition
for Disciplinary or Remedial Action.” Attorney Grievance Comm’n v. Brigerman, 441 Md.
23, 35 (2014) (quoting Attorney Grievance Comm’n v. Sapero, 400 Md. 461, 487 (2007)).
Although BOP § 10-601 is a statute rather than an ethical rule promulgated by this Court,
the same logic applies: Mr. Lang was afforded no notice of this charge. See In re Ruffalo,
390 U.S. 544, 550 (1968). We shall not find a violation where none was charged.
MLRPC 8.1(a) and (b): Bar Admissions and Disciplinary Matters
An attorney violates MLRPC 8.1(a) “whenever an attorney makes intentional
misrepresentations to Bar Counsel” in connection with a disciplinary matter. Attorney
Grievance Comm’n v. Mitchell, 445 Md. 241, 259 (2015) (emphasis added). Such
misrepresentations include intentionally misleading Bar Counsel about “the attorney’s
knowledge and ability to provide information to assist in the investigation.” Attorney
Grievance Comm’n v. Wills, 441 Md. 45, 56 (2014); see Attorney Grievance Comm’n v.
Lee, 393 Md. 385 (2006) (holding that an attorney violated MLRPC 8.1(a) when he falsely
56
told Bar Counsel that he was unable to obtain transcripts). Failure to respond to Bar
Counsel’s lawful request for information constitutes a violation of Rule 8.1(b). See Wills,
441 Md. at 56 (“Belated participation in a Bar Counsel investigation does not overcome a
violation of failing to respond to Bar Counsel in the first instance.”). In Attorney Grievance
Commission v. Grey, 448 Md. 1 (2016), an attorney failed both to respond to Bar Counsel
until a second letter notifying the attorney of a complaint or to provide copies of a client
file and trust account records. For his inaction as to Bar Counsel’s lawful requests, he
violated MLRPC 8.1(b). Id. at 26–27.
The hearing judge concluded that both Respondents violated MLRPC 8.1—Mr.
Lang for his actions in this attorney grievance proceeding and Mr. Falusi for his failure to
disclose material information in his application to the Maryland Bar.
Mr. Lang
Bar Counsel excepts to the hearing judge’s conclusion that Mr. Lang violated
MLRPC 8.1 generally, noting that the hearing judge’s comments demonstrate that Mr.
Lang violated subsections (a) and (b) of the rule. We sustain Bar Counsel’s exception and
conclude that Mr. Lang violated MLRPC 8.1(a) and (b).
The hearing judge concluded that Mr. Lang violated MLRPC 8.1 based on the
following facts. Bar Counsel sent an initial notice to Mr. Lang that he was the subject of a
complaint. After receiving no response, Bar Counsel sent a second letter, and Mr. Lang
filed an answer to the complaint. In reply to Bar Counsel’s request of an accounting of
client fees and disbursements, Mr. Lang did not attempt to retrieve any client records or
PNC Bank records, instead stating that an assistant handled the bookkeeping. Although
57
Mr. Lang maintained that did not have any such records or hold client funds, Lang & Falusi,
LLP held several client checks—including Mr. Bean’s $3,500.00—in its Operating
Account. The Firm did not hire staff, but Mr. Lang falsely stated to Bar Counsel that firm
personnel performed various functions in the office. The hearing judge found Mr. Lang’s
statements to be “not founded” and designed “to minimize his culpability.”
Mr. Lang knowingly made a false statement of material fact in violation of MLRPC
8.1(a) when he wrote Bar Counsel that he held no client funds—when in fact he did,
including Mr. Bean’s $3,500.00—and that he had staff—when in fact Lang & Falusi, LLP
hired no staff. Mitchell, 445 Md. at 259. The hearing judge concluded that such statements
were “unfounded” and done to “minimize his culpability.” See Wills, 441 Md. at 56. As
for subsection (b) and like the attorney in Grey, Mr. Lang failed to timely respond to Bar
Counsel’s requests for information or provide trust account and client records. He did not
respond to the initial letter Bar Counsel sent him; rather, only after a second letter did he
answer the complaint. Wills, 441 Md. at 56. In response to Bar Counsel’s request for an
accounting of disbursements and client fees, Mr. Lang indicated that he did not have access
to those records because they were handled by an assistant. Moreover, he made no attempt
to obtain PNC bank records or client records for Bar Counsel. Based on these facts, Mr.
Lang violated MLRPC 8.1(a) and (b).
Mr. Falusi
Again, because the hearing judge concluded that Mr. Falusi violated MLRPC 8.1
generally, Bar Counsel excepts and would have us find specific violations of MLRPC
8.1(a) and (b). Mr. Falusi insists that he has violated neither. We sustain Bar Counsel’s
58
exception and overrule Mr. Falusi’s.
The hearing judge concluded that Mr. Falusi violated MLRPC 8.1 based on the
following facts. When Mr. Falusi signed his Character Questionnaire for the Maryland Bar
on May 16, 2011, he affirmed his existing and continuing duty to provide full, candid
disclosure of accurate and current responses until he was admitted to the Bar. Such
disclosures included every position of full- or part-time employment that Mr. Falusi held
during the past five years. Mr. Falusi’s counsel submitted supplemental information on his
behalf, but Mr. Falusi “knowingly failed to disclose material information” regarding his
employment at the Firm as an attorney practicing law in Maryland. Although his
application remained pending before the Character Committee throughout the duration of
Lang & Falusi, LLP, at no time did Mr. Falusi disclose to the State Board of Law Examiners
or the Character Committee that he established Lang & Falusi, LLP for the purpose of
practicing law in Maryland and that he was actively practicing law in Maryland as a
principal at the Firm. The hearing judge stated that such failure was “for the purpose of
concealing from an admissions authority that he had engaged in the unauthorized practice
of law in Maryland prior to his admission to the Bar.”
In May 2011, moreover, Mr. Falusi answered “No” to Question 17(b) of the
Character Questionnaire as to whether he had “ever been the subject of a complaint or of a
disciplinary investigation or proceeding concerning [his] conduct as an attorney or as a
member of any other profession.” After Mr. Falusi’s receipt of Bar Counsel’s May 16,
2016 letter and before he was admitted to the Bar on June 1, 2016, he did not amend his
answer to Question 17(b) that he was then subject to a disciplinary complaint. As a result,
59
the hearing judge determined that Mr. Falusi “intentionally failed to disclose that he was
the subject of a disciplinary complaint,” a disclosure that he was obligated to make until
he was admitted to the Bar.
In his exceptions, Mr. Falusi first points to his testimony before the hearing judge
that in September 2015, “he disclosed his employment history after his 2011 Maryland Bar
application, and that the firm Lang & Falusi, LLP was listed among other places.” There
is no evidence in the record to support this claim; the hearing judge heard this testimony,
weighed it against other evidence in the case, and determined it was not credible. He asks
us to look to his testimony before the State Board of Law Examiners on April 8, 2016. In
that hearing, Mr. Falusi offered the following testimony:
Q Okay. Are you working now?
A Yes.
Q Where are you working?
A Well I have an immigration practice at this moment which is trying to
get off the ground.
Q Is it just you?
A Just me. Yes.
* * *
Q How long has your practice been up and running?
A It’s off and on. It’s been off and on since 2012, 2013, sorry.
Q Do you have an office?
A Yes, sir.
Q Okay, one thing at a time. You said off and on since when?
A 2013.
Q Where is your office?
A Silver Spring.
Q How do you practice in Silver Spring without a Maryland license?
A No, I do immigration law.
* * *
Q Okay. And you said it’s just you?
A Yeah.
Mr. Falusi failed to disclose his partnership and role in Lang & Falusi, LLP, during
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this testimony or otherwise. We understand Mr. Falusi’s claim that his answers during the
hearing were technically responsive to the questions asked, especially considering that Mr.
Falusi did not believe he was engaged in the unauthorized practice of law. But when
coupled with his failure to submit a complete resume in 2013 or anytime thereafter, the
story of his testimony becomes less sympathetic. Mr. Falusi created a Maryland entity,
engaged in the practice of law, and failed to disclose any of it in violation of his continuing
duty to supplement his Bar application. Mr. Falusi also failed to disclose that he was the
subject of a disciplinary complaint before he was admitted to the Maryland Bar. We sustain
Bar Counsel’s exception and conclude that Mr. Falusi violated MLRPC 8.1(b).
These same facts do not warrant finding a violation of MLRPC 8.1(a), but other
facts do. The hearing judge did not make specific findings as to that rule, so Bar Counsel
directs our attention to other parts of the hearing judge’s conclusions of law. The hearing
judge, in discussing MLRPC 8.4, found that “Mr. Falusi’s statements made to the Board
of [Law] Examiners . . . reveal intent to deceive.” As we noted above, Mr. Falusi’s answers
during the hearing were responsive to the questions and appear consistent with his own
characterization of his law practice, but the hearing judge was in the best position to gauge
Mr. Falusi’s credibility, and we accept that determination. Bar Counsel also argues that
Mr. Falusi, in response to Bar Counsel’s question whether Mr. Falusi had a relationship
with Mr. Bean, stated that he “did not have any relationship with Mr. Bean.” In Bar
Counsel’s view, this constitutes a knowingly false statement, and we agree. The full
written exchange between Bar Counsel and Mr. Falusi on this issue was as follows:
Bar Counsel: Explain your relationship with Mr. Bean, as well as the full
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extent of your involvement in Mr. Bean’s representation as
provided in the Flat Fee Agreement.
Mr. Falusi: I did not have any relationship with Mr. Bean. Mr. Bean came
to our office looking for legal representation and I advised him
that I was not licensed in the State of Maryland but Mr. Lang
who practices in the area would represent him. I also
communicated with Mr. Bean from time to time, assisting Mr.
Lang, Esquire.
Bar Counsel: Explain your relationship with Mr. Steven Lang. Please
confirm that you were Mr. Lang’s partner. Please confirm that
you were at no time an assistant to or employee of Mr. Lang.
Mr. Falusi: Mr. Lang and I established a law firm, Lang & Falusi, LLP in
2013. I practiced immigration law while he does non-
immigration practice work. I was not Mr. Lang’s employee or
assistant but infrequently assisted him by performing paralegal
work if/when needed.
Even if Mr. Falusi believed he did not represent Mr. Bean, Mr. Falusi’s involvement
in Mr. Bean’s case went far beyond what he described to Bar Counsel. As explained above,
Mr. Falusi emailed Mr. Bean without Mr. Lang copied to explain court procedures and case
strategy. He also said he was working on drafting a legal document for Mr. Bean and
would file it with the court later that day. Further, he sent a letter of representation to
Samuel I. White, P.C., a matter in connection with Mr. Bean’s first mortgage, declaring
that Mr. Bean had retained the Firm and stating Mr. Bean’s position in the matter. Mr.
Lang originally claimed to Mr. Bean that he had no involvement in that case.
Mr. Falusi raises a number of non-meritorious defenses. He claims that he did not
know whether to submit an updated resume to the Character Committee or the State Board,
given that his application was completed in 2011. He also appears to argue that four years
had elapsed since he swore that his application was true and complete and that he was under
62
a continuing duty to supplement it, which shows that he did not intentionally conceal
anything. We are not convinced. Mr. Falusi practiced at the Firm in 2013, a fact that he
surely did not forget, and he was asked about his practice of law in Maryland at the Board
hearing in 2016. He also contends that he thought the Character Committee already had
information regarding his disciplinary matter because the Committee is “part” of the Court
of Appeals. Even if that were true, that is no excuse not to disclose to anyone at all. Mr.
Falusi’s conduct violated MLRPC 8.1(a).
MLRPC 8.4: Misconduct
Rule 8.4(b) is violated when an attorney “commit[s] a criminal act that reflects
adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.”
We have held that engaging in the unauthorized practice of law in violation of MLRPC 5.5
and BOP § 10-601 (a misdemeanor, per BOP § 10-606) violates 8.4(b). Attorney
Grievance Comm’n v. Tanko, 427 Md. 15, 47 (2012). It is likewise professional
misconduct under MLRPC 8.4(c) for an attorney to “engage in conduct involving
dishonesty, fraud, deceit or misrepresentation,” whereby “dishonest acts, in and of
themselves are violative of [MLRPC] 8.4(c).” Attorney Grievance Comm’n v. Barnett, 440
Md. 254, 266 (2014) (quoting Attorney Grievance Comm’n v. Gisriel, 409 Md. 331, 383
(2009)). False statements to Bar Counsel during an investigation violate MLRPC 8.4(c).
Attorney Grievance Comm’n v. Dominguez, 427 Md. 308, 324 (2012). An attorney violates
MLRPC 8.4(d) by “engag[ing] in conduct that is prejudicial to the administration of
justice.” Generally, an attorney violates MLRPC 8.4(d) “when his or her conduct impacts
negatively the public’s perception or efficacy of the courts or legal profession.” Barnett,
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440 Md. at 267 (violating 8.4(d) in part for acting without client knowledge or consent
concerning the procedural posture of a client’s case and failing to communicate those
actions). Of note here, misconduct that constitutes a violation of 8.4(c) may also violate
8.4(d). Attorney Grievance Comm’n v. Payer, 425 Md. 78, 95 (2012) (false statements to
Bar Counsel violated MLRPC 8.4(c) and (d)); Attorney Grievance Comm’n v. Brown, 415
Md. 269, 279, 999 A.2d 1040 (2010) (same).
The hearing judge concluded that both Respondents violated MLRPC 8.4, though
for different reasons. In concluding that Mr. Lang violated 8.4, the hearing judge
determined that Mr. Lang’s misconduct was “intentional, misleading, and prejudicial to the
administration of justice.” The hearing judge looked to Mr. Lang’s failing to appear for a
court hearing and backdating his motion to withdraw to comply with the Maryland Rules.
For the hearing judge, such actions not only were in “direct contradiction to the [MLRPC],”
but they “negatively impact the sanctity of the legal profession.”
The hearing judge concluded that Mr. Falusi’s conduct was similarly “prejudicial to
the administration of justice” in violation of MLRPC 8.4. The hearing judge assessed that
prior to his admission to the Maryland Bar, Mr. Falusi “repeatedly represented himself as
a Maryland licensed attorney.” The hearing judge concluded that when Mr. Falusi
attempted to gain admission, he “neglected” to inform the Character Committee of a
pending disciplinary action against him; failed to submit an accurate resume “to reflect the
actual legal work he was undertaking” as a principal at Lang & Falusi, LLP; and made
statements and submitted documents to the State Board of Law Examiners that “reveal[ed]
intent to deceive.”
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Mr. Lang
Bar Counsel excepts to the hearing judge’s failure to conclude that Mr. Lang
violated specific subsections of MLRPC 8.4. Bar Counsel contends that the hearing
judge’s findings clearly support Mr. Lang’s violations of MLRPC 8.4(a), (c), and (d). We
agree and sustain Bar Counsel’s exceptions.
The record establishes that Mr. Lang’s actions were “intentional” and “misleading”
such that he violated MLRPC 8.4(c). He made material misrepresentations to Bar Counsel
during the course of this investigation, Dominguez, 427 Md. at 324; and he backdated a
motion to comply with the Rules of Civil Procedure to withdraw his appearance in Mr.
Bean’s case. We also agree that his “conduct is in direct contradiction to the Rules of
Professional Conduct,” “prejudicial to the administration of justice,” and “negatively
impact the sanctity of the legal profession” so as to violate MLRPC 8.4(d). Mr. Lang’s
misconduct in this attorney grievance proceeding by itself constitutes a violation of Rule
8.4(d), Payer, 425 Md. at 95, and his backdated motion, attorney trust account violations,
and violations of MLRPC 1.1, 1.3, and 1.4 further bolster our conclusion. See Barnett, 440
Md. at 267 (“Barnett’s actions violated [the client’s] trust and her reasonable expectation
that Barnett would diligently and honestly represent her interests. Such misconduct
negatively impacts the public’s perception of the legal profession.”). Finally, our earlier
analysis concerning Mr. Lang’s violations of MLRPC 1.1, 1.2(a), 1.3, 1.4(a) and (b), 1.5(a),
1.15(e), 1.16(d), 7.1(a), 7.5(a), and 8.4(c) and (d), also supports a conclusion that Mr. Lang
violated 8.4(a). Foltz, 411 Md. at 411.
Mr. Falusi
65
Bar Counsel also excepts to the hearing judge’s general conclusion that Mr. Falusi
violated MLRPC 8.4, asking us to confirm that he violated 8.4(a), (b), (c), and (d). Bar
Counsel avers that Mr. Falusi violated MLRPC 8.4(c) by repeatedly representing himself
as a Maryland attorney; failing to disclose a pending disciplinary action against him;
submitting an “inaccurate” resume to the Board; and making false statements to Bar
Counsel. We agree with Bar Counsel that Mr. Falusi’s conduct listed above violated 8.4(c).
We also agree that Mr. Falusi violated 8.4(b) because, at the very least, he engaged in the
unauthorized practice of law by representing Ms. Daramola in contravention of BOP § 10-
601.
Mr. Falusi disputes that he violated MLRPC 8.4 in his exceptions, arguing that he
did not practice law, he did not intentionally conceal his disciplinary matter, and his
conduct was not prejudicial to the administration of justice. The hearing judge concluded,
and Bar Counsel agrees, that Mr. Falusi’s conduct was prejudicial to the administration of
justice, which is a violation of 8.4(d). The same conduct that constituted a violation of
8.4(c) likewise constitutes a violation of 8.4(d). Mr. Falusi also necessarily violated 8.4(a)
by committing violations of MLRPC 1.1, 1.2, 1.3, 1.4, 1.5, 1.15, 1.16, 5.5, 7.1, 7.5, 8.1,
and 8.4.
Aggravating Factors
In Attorney Grievance Commission v. Shuler, 454 Md. 200 (2017), we enumerated
the aggravating factors upon which we rely in part to determine the appropriate sanction:
(1) prior attorney discipline; (2) a dishonest or selfish motive; (3) a pattern
of misconduct; (4) multiple violations of the MLRPC; (5) bad faith
obstruction of the attorney discipline proceeding by intentionally failing to
66
comply with the Maryland Rules or orders of this Court or the hearing judge;
(6) submission of false evidence, false statements, or other deceptive
practices during the attorney discipline proceeding; (7) a refusal to
acknowledge the misconduct's wrongful nature; (8) the victim's
vulnerability; (9) substantial experience in the practice of law; (10)
indifference to making restitution or rectifying the misconduct's
consequences; (11) illegal conduct, including that involving the use of
controlled substances; and (12) likelihood of repetition of the misconduct.
Id. at 218 (quoting Attorney Grievance Comm’n v. Shuler, 443 Md. 494, 506–07 (2015)).
For both Respondents, the hearing judge found that the following aggravating factors were
present: a pattern of misconduct; multiple violations; and a refusal to acknowledge the
wrongfulness of the misconduct. We agree.
Mr. Lang
It is self-evident from our earlier discussion that Mr. Lang engaged in a pattern of
misconduct and violated multiple Rules of Professional Conduct. From the beginning,
moreover, Mr. Lang has failed to acknowledge any wrongdoing. Such failures are either
due to his lack of understanding, as with the duty to maintain an attorney trust account and
the other obligations accompanying that duty; his genuine, but wholly misguided, belief
that his failure to appear at Mr. Bean’s hearing was appropriate; or his erroneous conviction
that Mr. Bean had no right to any portion of his fee simply because he remained in his
home throughout the litigation.
Bar Counsel excepts to the hearing judge’s failure to find that Mr. Lang’s conduct
was selfishly or dishonestly motivated and that Mr. Lang engaged in bad faith obstruction
of and other misconduct during this attorney grievance proceeding. We sustain these
exceptions. Mr. Lang’s misrepresentations to Bar Counsel during the course of its
67
investigation in this matter were designed to, in the words of the hearing judge, “minimize
his culpability” and therefore were motivated by selfish or dishonest interests. Almost
from the moment Lang & Falusi, LLP was formed and in this disciplinary proceeding, Mr.
Lang has engaged in misconduct violative of the MLRPC. His misrepresentations to Bar
Counsel were in bad faith in an attempt to avoid compliance with MLRPC 8.1(a) and (b).
Bar Counsel excepts to the hearing judge’s failure to find that Mr. Lang is indifferent
concerning returning any portion of Mr. Bean’s $3,500.00 fee. We likewise sustain this
exception. Although we do not decide whether Lang & Falusi, LLP earned the full value
of Mr. Bean’s $3,500.00, Mr. Lang’s insistence that restitution is not—and could not—be
owed highlights his indifference to righting any wrong that may be owed to Mr. Bean.
Finally, Bar Counsel excepts to the hearing judge’s failure to find that Mr. Lang is
likely to repeat his misconduct. We agree and sustain this exception. Until Mr. Lang
becomes aware of his duties under the MLPRC, particularly those with respect to attorney
trust accounts, he is likely to repeat his misconduct.
Mr. Falusi
Mr. Falusi attacks the hearing judge’s conclusions with respect to aggravating
factors, arguing that the hearing judge failed to articulate a basis for those findings. The
aggravating factors are self-explanatory, but we reach a different conclusion because we
have reached different conclusions with respect to the rules violated. Mr. Falusi did not
engage in a pattern of misconduct, but he did commit multiple violations and has refused
to acknowledge the misconduct’s wrongful nature. In the face of clear and convincing
evidence that Mr. Falusi engaged in the unauthorized practice of law and deceived the State
68
Board and Bar Counsel—knowingly or not—Mr. Falusi still has not acknowledged
wrongdoing on his part. The greatest concession he appears to have made is that the Firm’s
letterhead was not entirely clear. Mr. Falusi’s exception as to a pattern of misconduct is
sustained, but his other exceptions are overruled.
Mitigating Factors
We have recognized the following mitigating factors:
(1) the absence of prior attorney discipline; (2) the absence of a dishonest or
selfish motive; (3) personal or emotional problems; (4) timely good faith
efforts to make restitution or to rectify the misconduct’s consequences; (5)
full and free disclosure to the Commission or a cooperative attitude toward
the attorney discipline proceeding; (6) inexperience in the practice of law;
(7) character or reputation; (8) a physical disability; (9) a mental disability or
chemical dependency, including alcoholism or drug abuse, where: (a) there
is medical evidence that the lawyer is affected by a chemical dependency or
mental disability; (b) the chemical dependency or mental disability caused
the misconduct; (c) the lawyer’s recovery from the chemical dependency or
mental disability is demonstrated by a meaningful and sustained period of
successful rehabilitation; and (d) the recovery arrested the misconduct, and
the misconduct’s recurrence is unlikely; (10) delay in the attorney discipline
proceeding; (11) the imposition of other penalties or sanctions; (12) remorse;
(13) remoteness of prior violations of the MLRPC; and (14) unlikelihood of
repetition of the misconduct.
Attorney Grievance Comm’n v. Sperling, Misc. Docket AG Nos. 40, 76, 2018 WL
2296600, at *37 (Md. May 21, 2018) (quoting Attorney Grievance Comm’n v. Shuler, 443
Md. 494, 507 (2015)).
The hearing judge did not find that Respondents established any mitigating factors
by a preponderance of the evidence.
Mr. Lang
Mr. Lang excepts to the hearing judge’s failure to find any mitigating factor and
69
avers the presence of several.
We sustain Mr. Lang’s exception to the hearing judge’s failure to find that no
attorney disciplinary action was previously brought against him. Sperling, 2018 WL
2296600, at *37. He also excepts to the hearing judge’s failure to find that his inexperience
mitigates his misconduct. We sustain this exception. We have repeatedly mitigated
findings of wrongdoing where, as here, a recently-admitted attorney was involved. See,
e.g., Attorney Grievance Comm’n of Maryland v. Jaseb, 364 Md. 464 (2001) (involving an
attorney of three years). While Mr. Lang was barred in Massachusetts in 2010, he was not
admitted to the Maryland Bar until November 2012, the month Mr. Falusi registered Lang
& Falusi, LLP. Most of Mr. Lang’s MLRPC violations occurred while he was a partner at
the Firm and a member of the bar for, at most, two and a half years. Even throughout Bar
Counsel’s investigation of Mr. Lang, he had been practicing in Maryland for fewer than
three years.
Although not a mitigating factor we recognize, Mr. Lang excepts to the hearing
judge’s failure to find that his actions lacked any moral turpitude. We agree and sustain
this exception. Moral turpitude, as this Court has defined it, involves “an act of baseness,
vileness or depravity.” Attorney Grievance Comm’n of Maryland v. Marcalus, 414 Md.
501, 518 (2010) (quoting Attorney Grievance Comm’n of Maryland v. Proctor, 309 Md.
412, 419 (1987)). In some sense, Bar Counsel agrees, as Bar Counsel did not except to the
hearing judge’s failure to conclude that Mr. Lang violated MLRPC 8.4(b), generally
implicated only when it involves a moral turpitude. A highly fact-specific inquiry, id., we
can find no example of this Court finding moral turpitude for the acts committed by Mr.
70
Lang.
We overrule Mr. Lang’s exception to the hearing judge’s failure to find that he did
not intend to violate and was unaware that he was violating the MLRPC. He argues that
because he believed that he was merely making “mistakes,” neither he nor Mr. Falusi
“fail[ed] to admit wrongdoing.” Although he does not identify in his
Exception/Recommendation which “mistakes” he specifically made, Mr. Lang emphasizes
that he and Mr. Bean communicated over one hundred times by email and he was not on
the Operating Account and was unaware that it held client funds. The email
communications between Mr. Lang and Mr. Bean are more damning than saving, as they
highlight his unresponsiveness to Mr. Bean, incompetence in the law and procedure of
mortgage foreclosures, and failure to adequately pursue his defense. As for the Operating
Account, we reiterate our analysis above in which we found violations of the MLRPC and
the Maryland Rules for Mr. Lang’s misconduct concerning the Operating Account.
We also overrule Mr. Lang’s exception that “no one was damaged or hurt” by Mr.
Lang’s conduct because Mr. Bean remained in his home throughout the foreclosure
proceedings. In Attorney Grievance Comm’n of Maryland v. Jaseb, we addressed a similar
contention in the context of a late-filed bankruptcy petition. There, “Respondent and the
legal community are fortunate that the client was not prejudiced by Respondent’s negligent
conduct. That fact alone, however, does not define an appropriate sanction.” 364 Md. at
581. Unlike the client in Jaseb, who was unscathed by the attorney’s misconduct, Mr.
Bean’s foreclosure proceeded because of Mr. Lang’s failure to appear at the February 27,
2014 hearing and failure to counsel Mr. Bean as to the consequences of his absence.
71
Lastly, Mr. Lang excepts to the hearing judge’s failure to find that he “has become
more careful” since he began practicing law in Maryland in 2013. We overrule this
exception, as Mr. Lang continued to violate the MLRPC throughout his investigation by
Bar Counsel beginning in 2014.
Mr. Falusi
We identify two mitigating factors in Mr. Falusi’s case, though the hearing judge
found none. We first recognize Mr. Falusi’s absence of prior discipline and find that to be
a mitigating factor here. As for the clear absence of dishonest or selfish motive, we have
already concluded that Mr. Falusi engaged in intentional deceit during his Bar admission
proceedings with respect to his involvement with Lang & Falusi, LLP. Mr. Falusi also
fails to satisfy the fourth factor (timely good faith efforts to rectify the misconduct) because
he engaged in the unauthorized practice of law and then sought to conceal it from the
investigating authorities. As for the fifth factor, we do not find that Mr. Falusi’s
“voluntary” submission to an interview with Bar Counsel to be a mitigating factor,
considering that Mr. Falusi misrepresented his involvement in Mr. Bean’s case. We do
find, however, that Mr. Falusi, as Mr. Lang, was inexperienced and therefore that
mitigating factor weighs in his favor.
V.
The Sanction
Mr. Lang
While Bar Counsel recognizes that this Court has indefinitely suspended attorneys
for assisting in the unauthorized practice of law, it recommends that this Court disbar Mr.
72
Lang due to his “breadth of misconduct,” which include MLRPC 8.1 and 8.4 violations.
In the view of Bar Counsel, the ultimate sanction of disbarment is supported by the
following: Mr. Lang was dishonest and did not cooperate in Bar Counsel’s investigation;
he failed to attend a hearing on behalf of Mr. Bean and attempted to backdate a motion to
comply with the Maryland Rules; to “minimize his culpability,” he told Bar Counsel that
other staff or personnel performed functions within the Firm when in fact Lang & Falusi,
LLP hired no staff; he assisted Mr. Falusi to practice law in Maryland in contravention of
the MLRPC; and the hearing judge found his actions to be “intentional, misleading, and
prejudicial to the administration of justice.” Notably, Mr. Lang’s
“Exception/Recommendation” does not include a recommendation for sanction.
In Attorney Grievance Commission v. Hecht, 459 Md. 133 (2018), a then-suspended
attorney held himself out as authorized to practice law and continued representing a
husband and wife, the Crummits, for ten months in violation of MLRPC 5.5(a) and (b). Id.
at 150, 153, 157. Not only did he fail to communicate to the Crummits that he was
suspended, but once they learned of the suspension, he made misrepresentations to them
about the extent to which he was barred from providing legal services. Id. at 150. In
pursuing their representation, he failed to prosecute their personal injury matter adequately,
causing the case to be dismissed. Id. at 148. Moreover, he made misrepresentations to Bar
Counsel three times in violation of MLRPC 8.1(a): he “‘knowingly and intentionally’
attempted to deceive Bar Counsel” by submitting to Bar Counsel an affidavit asserting that
he notified the Crummits of his suspension; testified falsely that he only “assisted” Mrs.
Crummit in drafting pleadings and discovery materials; and lied to Bar Counsel under oath
73
that the Crummits authorized him to sign and submit documents in multiple instances on
their behalf. Id. at 152–53.
We determined that Hecht’s conduct was “clearly dishonest and deceitful,”
“reflect[ing] adversely on his honesty and trustworthiness as an attorney,” in violation of
MLRPC 8.4(a), (b), and (c). Id. at 154. Moreover, his “multiple misrepresentations both
to his client and to Bar Counsel” were prejudicial to the administration of justice and
violative of MLRPC 8.4(d). Id. Notwithstanding Bar Counsel’s recommendation for
disbarment, and our recognition that misconduct that, like Mr. Lang’s, involves “‘fraud,
dishonesty, or deceit’ usually results in disbarment,” we indefinitely suspended Mr. Hecht.
Id. at 158. While recognizing the presence of several aggravating factors, our finding of
the presence of “sufficient mitigation” militated against disbarment: he turned away
prospective clients; attempted to inform his other clients that he was suspended; and he
sought alternative counsel for the Crummits. Id.
The absence of mitigation may still mandate indefinite suspension as the appropriate
sanction for an attorney with multiple MLRPC violations, including those of Rule 5.5, 8.1,
and 8.4. In conduct strikingly similar to that of Mr. Lang, the attorney in Attorney
Grievance Commission v. Barton, 442 Md. 91 (2015), failed to appear at a hearing, which
resulted in the dismissal of her client’s case; failed to return unearned fees on behalf of
three clients; failed to file papers to correct a client’s deficiency notice; made
misrepresentations to the Bankruptcy Court; and failed to supervise a non-lawyer, resulting
in the non-lawyer’s unauthorized practice of law. Id. As such, we concluded that Ms.
Barton violated MLRPC 1.1, 1.3, 1.4(a), 1.4(b), 1.5(a), 1.15(a), 1.15(b), 1.16(d), 5.3(a),
74
5.3(b), 5.3(c), 5.4(b), 5.5(a), 8.4(a), and 8.4(c). Id. at 144. Notwithstanding multiple
violations and the absence of any mitigating factors, we held that an indefinite suspension
was warranted for Ms. Barton. Id. at 150.
We also indefinitely suspended the respondent in Attorney Grievance Commission
v. Lee, 393 Md. 546 (2006), who, in violation of MLRPC 1.3, 1.4, and 8.1(b), and 8.4(d),
failed to return unearned fees, respond to Bar Counsel’s inquiries, and diligently pursue his
client’s legal matter. The attorney there also had two prior sanctions for violations of the
MLRPC: a public reprimand for violations of MLRPC 1.3 and 1.4; and an indefinite
suspension for violations of MLRPC 1.3, 1.4(a), 8.1(a), and 8.4(c). Id. at 566. Despite the
attorney’s prior sanction history and the absence of “any significant mitigating factors,”
we indefinitely suspended the attorney because his conduct was “not so egregious that only
disbarment can adequately protect the public.” Id. at 565. In Attorney Grievance
Commission v. Landeo, 446 Md. 294 (2016), Landeo violated MLRPC 1.1, 1.3, 1.4(a)(2),
1.4(a)(3), 1.4(b), 1.5(a), 1.15(a), 1.15(c), 1.16(d), and 8.4(d), but we indefinitely suspended
her despite the presence of few mitigating factors and several aggravating factors because,
“although certainly egregious and displaying a gross lack of competence, and a pattern of
a lack of diligence and adequate communication, Landeo’s misconduct does not rise to a
level warranting disbarment.”
Although we disagree on the appropriate sanction, we agree with Bar Counsel that
Mr. Lang’s misconduct is egregious. As we indefinitely suspend Mr. Lang with the option
for reinstatement, we are by no means understating the severity of his misconduct. Rather,
in looking back to our jurisprudence concerning like circumstances, we do not conclude
75
that the public would be more protected with a sanction of disbarment. See, e.g., Moore,
451 Md. 55; Landeo, 446 Md. 294. Indeed, we have indefinitely suspended attorneys for
greater misconduct, Hecht, 459 Md. 133, and with fewer mitigating circumstances, Barton,
442 Md. 91; Lee, 393 Md. 546. We therefore indefinitely suspend Mr. Lang. While we
can make no prediction as to when, if ever, Mr. Lang will be reinstated, a condition of any
such reinstatement will be that Mr. Lang attend courses concerning his attorney trust
account obligations.
Mr. Falusi
Mr. Falusi suggests that a public reprimand is the proper sanction, while Bar
Counsel advocates for disbarment. Bar Counsel argues that we have previously disbarred
attorneys who, among other things, concealed their practice of law during the pendency of
their applications to the Bar. This case consists mainly Bar admissions matters and the
unauthorized practice of law. The two are necessarily connected: Mr. Falusi’s
unauthorized practice of law was precisely what he failed to disclose. On the one hand,
Mr. Falusi’s unauthorized practice of law is not so egregious as Bar Counsel alleged and
as the hearing judge found. On the other, his intent to conceal his practice cannot be
ignored.
With those two violations at the core of this case, disbarment would seem the
obvious sanction. “In unauthorized practice of law cases, ‘we primarily consider [] factors
of deterrence, whether the respondent’s conduct was willful and deliberate, and whether
the respondent cooperated with Bar Counsel’s investigation.’” Attorney Grievance
Comm’n v. Shephard, 444 Md. 299, 339 (2015) (quoting Attorney Grievance Comm’n v.
76
Shryock, 408 Md. 105, 126 (2009)). Bar Counsel directs us to Attorney Grievance
Commission v. Alsafty, 379 Md. 1 (2003), in support of disbarment. There, we reviewed
our prior decisions in which the unauthorized practice of law was a core violation. We
noted that in a prior case, Attorney Grievance Commission v. Barneys, “a divided Court
discerned a trend in this Court favoring disbarment.” Id. at 18 (citing Attorney Grievance
Comm’n v. Barneys, 370 Md. 566 (2002)). The respondent attorney in Alsafty committed
unauthorized practice of law by, among other things, representing multiple clients in civil
cases and filing twenty pleadings in divorce cases in Maryland courts. Id. at 7–8. He also
had business cards that failed to include his jurisdictional limitations, and he failed to
inform his clients of those limitations. Id. at 6–7. Disbarment was the appropriate sanction.
Id. at 20.
In disbarring the respondent attorney in Shephard, we considered the nature and
severity of her misconduct:
Respondent did not appear in state court on behalf of any client, nor has
Respondent been found to have violated MLRPC 8.4(b) or (c). In addition,
though the facts of this case demonstrate neither a failure to cooperate with
Bar Counsel nor wilful and deliberate dishonest or deceitful behavior, it is
clear that Respondent wilfully and deliberately assumed responsibilities as a
“Managing Attorney” in a law firm in Maryland, met with clients in
Maryland, and undertook the representation of those clients in Maryland. In
doing so, she misled clients and the general public by failing to disclose the
fact that she was not licensed to practice law in Maryland. Further, during
Respondent’s tenure as “Managing Attorney,” several clients paid fees to
[Respondent’s law firm] and did not receive the services that they were
promised.
Id. at 341. Conversely, in Attorney Grievance Commission v. Ambe, we characterized the
respondent attorney’s situation as follows:
77
The situation in the case sub judice appears to be that of an inexperienced
attorney who became licensed in 2009 (in New York), and without any prior
experience with lawyering in any jurisdiction, wanted to open a practice
dedicated solely to the practice of immigration law. He got in trouble when
he attempted to assist immigration clients in areas of the law he was not
permitted to practice in this state. There is absolutely no evidence that he was
attempting to solicit clients for representation in matters of Maryland law.
425 Md. 98, 140 (2012). Ambe is not unlike the present case, but it varies in one significant
respect: Ambe did not conceal his law practice from the State Board and misrepresent it
to Bar Counsel. Without that fact, Mr. Falusi’s conduct was less serious. But because of
his dishonesty, Mr. Falusi is more like the respondent in Shephard, in that he has violated
both 5.5 and 8.1.
We also find similarities between Mr. Falusi and the respondent attorney in Hecht.
As discussed above, Hecht, who was already suspended, engaged in the unauthorized
practice of law and made misrepresentations to Bar Counsel. Though there were different
aggravating and mitigating factors present in that case, Mr. Falusi’s inexperience, absence
of prior discipline, and relatively minor violation of 5.5 warrants a sanction less than
disbarment. An indefinite suspension is the proper sanction for Mr. Falusi’s transgressions.
IT IS SO ORDERED; RESPONDENTS
SHALL PAY ALL COSTS AS TAXED BY
THE CLERK OF THIS COURT,
INCLUDING COSTS OF ALL
TRANSCRIPTS, PURSUANT TO
MARYLAND RULE 19-709, FOR WHICH
SUM JUDGMENT IS ENTERED IN FAVOR
OF THE ATTORNEY GRIEVANCE
COMMISSION AGAINST OLAYMI ISAAC
FALUSI AND STEVEN ANTHONY LANG.
78
Circuit Court for Prince George’s County
Case No. CAE17-07945
Argued: April 9, 2018
IN THE COURT OF APPEALS
OF MARYLAND
Misc. Docket AG No. 86
September Term, 2016
______________________________________
ATTORNEY GRIEVANCE COMMISSION
OF MARYLAND
v.
STEVEN ANTHONY LANG AND OLAYEMI
ISAAC FALUSI
______________________________________
Barbera, C.J.
Greene
Adkins
McDonald
Watts
Hotten
Getty,
JJ.
______________________________________
Concurring and Dissenting Opinion by Watts, J.
______________________________________
Filed: August 16, 2018
Respectfully, I concur in part and dissent in part. I concur with the Majority’s
conclusion that Respondents engaged in voluminous instances of misconduct, including
acts that involved dishonesty, the unauthorized practice of law, and, in Falusi’s case,
criminal activity. The Majority also rightly determines that Respondents’ misconduct is
aggravated by many factors, including a refusal to acknowledge the wrongful nature of
their misconduct. I part company, however, with the Majority’s reasoning that indefinite
suspensions are the appropriate sanctions. In my view, imposing indefinite suspensions
here is completely unwarranted and inconsistent with the Court’s precedent. I would hold
that disbarment is the appropriate sanction for Respondents’ various serious instances of
misconduct.
I agree with the Majority that Lang violated MLRPC 1.1 (Competence), 1.2(a)
(Allocation of Authority Between Client and Lawyer), 1.3 (Diligence), 1.4(a)
(Communication), 1.4(b) (same), 1.5(a) (Fees), 1.15(a) (Safekeeping Property), 1.16(d)
(Terminating Representation), 5.5(a) (Unauthorized Practice of Law), 7.1
(Communications Concerning a Lawyer’s Services), 7.5 (Firm Names and Letterheads),
8.1(a) (Disciplinary Matters), 8.1(b) (same), 8.4(a) (Violating the MLRPC), 8.4(c)
(Dishonesty, Fraud, Deceit, or Misrepresentation), and 8.4(d) (Conduct That Is Prejudicial
to the Administration of Justice), and Maryland Rules 16-603 (Duty to Maintain Account),
16-604 (Trust Account Required Deposits), and 16-601.1 (Attorney Trust Account
Recordkeeping). And, I agree that Falusi violated MLRPC 1.1, 1.2(a), 1.3, 1.4(a), 1.4(b),
1.5(a), 1.16(d), 5.5(b)(2), 7.1, 7.5, 8.1(a), 8.1(b), 8.4(a), 8.4(b) (Criminal Act), 8.4(c),
8.4(d) and Md. Code Ann., Bus. & Occ. Prof. § 10-601 (Bar Admission Required to
Practice Law in State). See Maj. Slip Op. at 28-66.1
Of these many violations of the MLRPC and other laws, Respondents’ violations of
MLRPC 5.5, 8.1(a), and 8.4(c) are among the most serious and constitute intentional
dishonest conduct. Indeed, the Majority concludes that Lang and Falusi engaged in the
following misconduct in violation of MLRPC 5.5, 8.1(a), and 8.4(c). Falusi violated
MLRPC 5.5(a) and (b) in representing Daramola by, among other things, calling Jablon on
Daramola’s behalf to negotiate a payment plan for the amount she owed to Deeds Realty,
drafting a payment plan agreement, holding himself out as Daramola’s lawyer in
correspondence with Jablon, and failing to explain his jurisdictional limits to Daramola or
Jablon. See Maj. Slip Op. at 28. Falusi violated MLRPC 5.5(b) in the Ikpim matter by
signing and filing an Information Report, being identified in the trial court as an attorney
of record—a misidentification he failed to correct—and generally holding himself out as
Ikpim’s lawyer. See Maj. Slip Op. at 29-30. And, Falusi violated MLRPC 5.5(b)(2) in the
Daramola, Ikpim, and Bean matters by, “[i]n addition to the misleading letterhead and
website, [] fail[ing] to disclose his jurisdictional limitations to the court, his clients, and the
public at large.” Maj. Slip Op. at 38. Falusi violated MLRPC 8.1(a) by making statements
to the Board of Law Examiners with an intent to deceive as to his practice of law,
specifically, failing to disclose his practice of law with the Firm, and by failing to disclose
this attorney discipline proceeding to the Character Committee. See Maj. Slip Op. at 59,
61, 63. Falusi also violated MLRPC 8.1(a) by knowingly making a false statement to Bar
I also agree with the Majority’s resolutions of Respondents’ exceptions to the
1
hearing judge’s findings of fact. See Maj. Slip Op. at 21-26.
-2-
Counsel that he had no relationship with Bean, when, in actuality, Falusi engaged in e-mail
communications with Bean explaining court procedures and case strategy, indicated that
he was drafting a legal document for Bean that he would file with the trial court, and sent
a letter of representation to opposing counsel advising that Bean had retained the Firm and
stating Bean’s position in the case. See Maj. Slip Op. at 61-62. The Majority concludes
that “Falusi violated MLRPC 8.4(c) by repeatedly representing himself as a Maryland
attorney; failing to disclose a pending disciplinary action against him; submitting an
‘inaccurate’ resume to the Board; and making false statements to Bar Counsel.” Maj. Slip
Op. at 66.
As to Lang, the Majority concludes that Lang violated MLRPC 5.5(a) by permitting
and assisting Falusi in the unauthorized practice of law. See Maj. Slip Op. at 38-39.
Indeed, the Majority agrees with the hearing judge’s conclusion that, “[f]rom the Firm’s
‘ambiguous letterhead and misleading website to the disingenuous pleadings,’ [] Lang was
‘complicit’ in [] Falusi’s efforts to hold himself out as a Maryland-licensed attorney.” Maj.
Slip Op. at 38. Lang violated MLRPC 8.1(a) by knowingly falsely advising Bar Counsel
that he held no client funds when, in actuality, the Firm held several client checks, including
a check in the amount of $3,500 from Bean, and that he had staff, when, in actuality, the
Firm hired no staff. See Maj. Slip Op. at 58. Moreover, Lang’s misrepresentations were
made to “‘minimize his culpability.’” Maj. Slip Op. at 58. Lang violated MLRPC 8.4(c)
by making material misrepresentations to Bar Counsel during the investigation in this
attorney discipline proceeding and by backdating a motion to comply with the Maryland
Rules of Civil Procedure to withdraw his appearance in Bean’s case. See Maj. Slip Op. at
-3-
65.
In short, among other serious misconduct, Lang knowingly made false statements
to Bar Counsel and backdated a motion. See Maj. Slip Op. at 65. Falusi knowingly made
false statements to Bar Counsel, repeatedly falsely identified himself as a Maryland lawyer,
failed to disclose a pending attorney discipline proceeding against him, and submitted an
inaccurate résumé to the State Board of Law Examiners. See id. at 66. Additionally, Falusi
committed a crime by engaging in the unauthorized practice of law, thus violating MLRPC
8.4(b), see id., and Lang helped him to do so, see id. at 38-39.
In addition to conduct involving dishonesty, there are numerous aggravating factors.
Lang’s misconduct is aggravated by a pattern of misconduct, multiple violations of the
MLRPC, a refusal to acknowledge wrongful nature of his misconduct, a dishonest or selfish
motive, bad faith obstruction of this attorney discipline proceeding, indifference to making
restitution, and likelihood of repetition of the misconduct. See id. at 67-68. Falusi’s
misconduct is aggravated by multiple violations of the MLRPC and a refusal to
acknowledge his misconduct’s wrongful nature. See id. at 68-69. Meanwhile,
Respondents’ misconduct is mitigated only by the absence of prior attorney discipline and
inexperience in the practice of law. See id. at 70-72.
In innumerable cases, we have applied the principle that, “[a]bsent compelling
extenuating circumstances, disbarment is ordinarily the sanction for intentional dishonest
conduct.” Attorney Grievance Comm’n v. Slate, 457 Md. 610, 650, 180 A.3d 134, 158
(2018) (cleaned up). Of course, “[a]lthough intentional dishonest conduct ordinarily results
in disbarment, this Court considers the circumstances of each attorney discipline
-4-
proceeding to determine the appropriate sanction.” Attorney Grievance Comm’n v. Walter
Lloyd Blair, ___ Md. ___, ___ A.3d ___, No. 83, Sept. Term, 2009, 2018 WL 3414216, at
*12 (Md. July 13, 2018) (citations omitted).
From my perspective, the circumstances of this attorney discipline proceeding
inescapably lead to the conclusion that the appropriate sanction is disbarment. Among
several other instances of misconduct, Falusi committed a crime by engaging in the
unauthorized practice of law; Lang helped him do so; and both Respondents engaged in
dishonesty in multiple ways, including knowingly making false statements to Bar Counsel,
and, in Falusi’s case, representing himself to the court and clients to be a Maryland lawyer,
failing to disclose this attorney discipline proceeding to the Character Committee, and
submitting an inaccurate résumé to the Board. Additionally, both Respondents have
refused to acknowledge their wrongdoing, and the likelihood of repetition of the
misconduct is one of Lang’s aggravating factors. Disbarment is necessary to protect the
public, and to deter Respondents and other lawyers from practicing law without
authorization, helping others do so, lying to Bar Counsel, making misrepresentations to the
Board, and withholding information from the Character Committee.
In reasoning that indefinite suspensions are the appropriate sanctions, the Majority
relies on Attorney Grievance Comm’n v. Hecht, 459 Md. 133, 184 A.3d 429 (2018). See
Maj. Slip Op. at 73-74, 76, 78. In Hecht, 459 Md. at 158, 184 A.3d at 444, this Court
indefinitely suspended from the practice of law in Maryland, with the right to petition for
reinstatement after twelve months, a lawyer who engaged in the unauthorized practice of
law and violated multiple MLRPC, including MLRPC 8.4(b) and 8.4(c). The lawyer’s
-5-
misconduct was aggravated by prior attorney discipline, a pattern of misconduct, multiple
violations of the MLRPC, and significant experience in the practice of law. See id. at 157,
184 A.3d at 443. Critically, there were “several mitigating factors”; specifically,
[the lawyer had] repeatedly admitted that he made mistakes in the way he
handled [his client]s’ case. As the hearing judge noted, [the lawyer had]
“expressed remorse for the mistakes [that] he made in this matter[,] and did
not profit from [his clients’] case,” instead paying [his clients] $30,000 of his
own money as restitution. Finally, the hearing judge found that [the lawyer]
“made numerous unsuccessful efforts to get new counsel to represent [his
clients,] and had a reputation as a competent and truthful practitioner.”
Id. at 158, 184 A.3d at 443-44.
The circumstances of this attorney discipline proceeding sharply contrast with those
of Hecht. While Hecht involved several mitigating factors, this case involves only two—
the absence of prior discipline and inexperience in the practice of law. While the lawyer
in Hecht expressed remorse and admitted that he had made mistakes, both Respondents
have refused to acknowledge the wrongful nature of their misconduct. While the lawyer
in Hecht had a reputation for competence and truthfulness, the hearing judge did not find
that either Respondent has such a reputation. And, while the lawyer in Hecht took steps to
protect his clients—including paying them tens of thousands of dollars in restitution and
attempting to secure new counsel for them—there is no indication that either Respondent
took any such steps. To the contrary, Lang has shown an indifference to making restitution.
Given the material differences between this case and Hecht, I disagree with the Majority’s
statement that Hecht involved misconduct that was “greater” than Lang’s. Maj. Slip Op.
at 76. Additionally, it is an understatement to simply say, as the Majority does, that the
mitigating factors in Hecht were “different” from those that apply to Falusi. Id. at 78.
-6-
In its analysis of the appropriate sanction for Lang’s misconduct, in addition to
relying on Hecht, the Majority mentions other cases in which this Court imposed indefinite
suspensions—namely, Attorney Grievance Comm’n v. Moore, 451 Md. 55, 152 A.3d 639
(2017), Attorney Grievance Comm’n v. Lee, 393 Md. 546, 903 A.2d 895 (2006), Attorney
Grievance Comm’n v. Landeo, 446 Md. 294, 132 A.3d 196 (2016), and Attorney Grievance
Comm’n v. Barton, 442 Md. 91, 110 A.3d 668 (2015). See Maj. Slip Op. at 74-76. I would
find Moore, Lee, and Landeo inapplicable, as they did not involve violations of MLRPC
8.1(a) and 8.4(c). Similarly, Barton involved a violation of MLRPC 8.4(c), but not a
violation of MLRPC 8.1(a). See Maj. Slip Op. at 74-75. In my view, given that Lang
knowingly made a false statement of material fact to Bar Counsel, backdated a motion,
helped Falusi commit a crime by engaging in the unauthorized practice of law, committed
several other violations of the MLRPC, and garnered several serious aggravating factors,
the cases that the Majority relies on are distinguishable, and disbarment is warranted.
At one point, the Majority observes that Falusi’s misconduct “consists mainly [of]
Bar admissions matters and the unauthorized practice of law[,]” and then states: “With
those two violations at the core of this case, disbarment would seem the obvious sanction.”
Maj. Slip Op. at 76. I could not agree more. Additionally, the Majority notes that, like the
disbarred lawyer in Attorney Grievance Comm’n v. Shephard, 444 Md. 299, 119 A.3d 765
(2015), Falusi violated MLRPC 5.5 and 8.1. See Maj. Slip Op. at 78. Then, however, the
Majority determines that an indefinite suspension is warranted, referring to “similarities
between” Falusi’s misconduct and that of the lawyer in Hecht. Id. As discussed above,
Hecht is materially distinguishable, and does not provide a valid basis in this case for a
-7-
sanction that is less than disbarment.
In sum, the imposition of indefinite suspensions as the sanctions for Respondents’
misconduct is not in accord with this Court’s case law. The Majority states, with respect
to Lang’s sanction, that “we do not conclude that the public would be more protected with
a sanction of disbarment.” Id. at 75-76. I would conclude, however, with respect to Lang
and Falusi that disbarment would be the most effective way to impress upon Respondents,
and all other lawyers, the importance of not lying to Bar Counsel, not backdating motions,
not engaging in the unauthorized practice of law, and not helping others to do so, not
making misrepresentations to the Board, and not withholding information from the
Character Committee. In my view, this Court should not establish the precedent that an
indefinite suspension is the equivalent of disbarment in terms of protecting the public, and
I would not take such a position in this case.
For the above reasons, respectfully, I concur in part and dissent in part.
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