Attorney Grievance v. Ambe

Attorney Grievance Commission of Maryland v. Jude Ambe, Misc. Docket AG No. 21,
September Term, 2018. Opinion by Barbera, CJ.
ATTORNEY MISCONDUCT — DISCIPLINE — DISBARMENT — Respondent
Jude Ambe violated Maryland Attorneys’ Rules of Professional Conduct 19-301.1, 19-
301.2, 19-301.3, 19-301.4, 19-301.5, 19-301.15, 19-301.16, 19-303.3, 19-308.1, and 19-
308.4. These violations principally arose from Respondent’s inexcusable failure to appear
in court; various material misrepresentations to a tribunal and Bar Counsel; neglect of his
client’s case; and failure to properly maintain client funds in his attorney trust account. In
conjunction with several aggravating factors, these violations result in disbarment as the
appropriate sanction for Respondent’s misconduct.
Circuit Court for Montgomery County
Case No. 455261-V
Argued: September 8, 2019
IN THE COURT OF APPEALS
OF MARYLAND
Misc. Docket AG No. 21
September Term, 2018
ATTORNEY GRIEVANCE COMMISION OF
MARYLAND
v.
JUDE AMBE
Barbera, C.J.,
McDonald
Watts
Hotten
Getty
Booth
Adkins, Sally D.,
(Senior Judge, Specially Assigned)
JJ.
Opinion by Barbera, C.J.
Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
Filed: October 21, 2019
2019-10-21 13:35-04:00
Suzanne C. Johnson, Clerk
Petitioner, the Attorney Grievance Commission of Maryland, acting through Bar
Counsel, filed in this Court a Petition for Disciplinary or Remedial Action against
Respondent, Jude Ambe, regarding a complaint filed against him by a former client, Hans
Yondo Ngale (“Mr. Ngale”). The petition alleges violations of the Maryland Attorneys’
Rules of Professional Conduct (“MARPC”) 19-301.1 (Competence), 19-301.2 (Scope of
Representation), 19-301.3 (Diligence), 19-301.4 (Communication), 19-301.5 (Fees), 19-
301.15 (Safekeeping Property), 19-301.16 (Declining or Terminating Representation), 19-
303.3 (Candor), 19-308.1 (Bar Admission and Disciplinary Matters), and 19-308.4
(Misconduct).
On September 20, 2018, Petitioner filed its petition. This Court transmitted the
matter to the Circuit Court for Montgomery County and designated the Honorable James
A. Bonifant (“the hearing judge”) to conduct an evidentiary hearing and make proposed
findings of fact and conclusions of law. The hearing took place on February 13-14, 2019.
At the hearing, the judge heard testimony from Respondent and Mr. Ngale.
We adopt in large part the hearing judge’s proposed findings of fact and conclusions
of law. Based on the rule violations that Respondent committed, as well as the aggravating
and mitigating factors we have identified, we disbar Respondent.
I.
The Hearing Judge’s Findings of Fact
We summarize here the hearing judge’s findings of fact, which are supported by
clear and convincing evidence.
1
Background
Respondent was admitted to the New York Bar in 2009. He is not a member of the
Maryland Bar.1 During his legal career, Respondent operated an immigration law practice.
While representing Mr. Ngale, Respondent maintained an office in Montgomery County,
Maryland.
Mr. Ngale is a citizen of the Republic of Cameroon. His native language is Bakweri
and he speaks Pidgin English. He entered the United States through Mexico in April 2016
and immediately applied for asylum. In a written statement given to the Department of
Homeland Security, Mr. Ngale claimed he was imprisoned and tortured by Cameroonian
officials. While being transferred from one facility to another during his imprisonment,
Mr. Ngale escaped and traveled to Nigeria, then to Mexico.
1. First Master Calendar Hearing
The Department of Homeland Security held Mr. Ngale in a detention center in
Adelanto, California from April 17, 2016, to November 2016. Mr. Ngale received a
“Notice to Appear” before the United States Immigration Court (“Immigration Court”),
issued June 9, 2016. The Notice alleged that Mr. Ngale was subject to removal proceedings
because he was not a United States citizen or national, and he entered the country without
proper documentation. The Immigration Court scheduled a Master Calendar Hearing for
1
Respondent is nonetheless subject to the disciplinary authority of the Court of
Appeals pursuant to MARPC 19-308.5(a)(2).
2
June 22, 2016, to identify the issues in Mr. Ngale’s case and schedule deadlines and future
hearings.
Mr. Ngale spoke to Respondent on the telephone shortly before and after his first
Master Calendar Hearing on June 22, 2016. Mr. Ngale had learned of Respondent through
Norbert Chingo, another detainee at the Adelanto Detention Center. Respondent also
represented Norbert Chingo. Norbert Chingo’s brother, Derrick Chingo (“Mr. Chingo”),
knows Respondent through an adult soccer club in Maryland.
During the calls on June 22, 2016, Mr. Ngale hired Respondent to represent him
regarding his asylum petition and request to be released on bond. Mr. Ngale and
Respondent later disagreed about the terms of payment reached during those phone calls.
The hearing judge found that Respondent agreed to: (1) represent Mr. Ngale; (2) litigate
the asylum petition before the Immigration Court and help secure Mr. Ngale’s release on
bond; and (3) charge a $5,000 flat fee that included travel expenses. Mr. Ngale was to
remit $1,400 immediately and pay the balance over time after his release.
Respondent claimed that during the representation, Mr. Ngale permitted Mr. Chingo
to act on his behalf. In his statement under oath to Bar Counsel, Respondent stated that he
provided Mr. Chingo with a copy of a retainer agreement for Mr. Ngale. At trial,
Respondent testified to the contrary and admitted the terms of the representation were never
memorialized in writing.
3
2. Second Master Calendar Hearing
Upon the advice of Respondent, Mr. Ngale appeared pro se at the first Master
Calendar Hearing and requested a continuance to secure representation. The Immigration
Court granted the request and scheduled a second Master Calendar Hearing for July 13,
2016. On June 27, 2016, Mr. Ngale’s brother-in-law, Elvis Munjong, received $1,400 from
Mr. Ngale’s family via Western Union and gave it to Respondent. There are no billing
records for that transaction. Respondent could not confirm that he gave a receipt to Elvis
Munjong when he received the payment, but he testified that he later provided Mr. Chingo
with a receipt. Respondent did not produce any receipts or records of the payment,
however.
3. Third Master Calendar Hearing
On July 12, 2016, Respondent filed a Notice of Appearance on Mr. Ngale’s behalf
and a Motion for Continuance of the July 13, 2016, second Master Calendar Hearing. The
Immigration Court granted the motion, scheduled a third Master Calendar Hearing for
August 11, 2016, and stated in the order, “The Court expects both pleadings as well as all
application[s] for relief to be filed at the next hearing or they will be deemed
waived/abandoned.” Respondent did not inform Mr. Ngale of his intention to request a
continuance or that it was granted.
Respondent and Mr. Ngale spoke on the phone on July 12, 2016, and Respondent
instructed Mr. Ngale to fill out a Form I-589, Application for Asylum and for Withholding
4
Removal. In late July 2016, Respondent received by mail these documents and Mr. Ngale’s
handwritten narrative about his captivity in Cameroon.
On August 9, 2016, Respondent travelled to California and met Mr. Ngale at the
Adelanto Detention Center to prepare his asylum application before the upcoming third
Master Calendar Hearing. After that meeting, Respondent returned to his hotel room to
finalize the application. Respondent testified at the evidentiary hearing, and also under
oath in a statement to Bar Counsel, that immediately preceding the third Master Calendar
Hearing on August 11, 2016, he and Mr. Ngale reviewed and edited the application from
beginning to end. The hearing judge found that Respondent’s testimony was not credible
regarding how substantively Respondent reviewed the asylum application with Mr. Ngale.
Rather, Mr. Ngale’s testimony established that Respondent rushed through filling out the
application. Mr. Ngale’s testimony further established that Respondent did not give Mr.
Ngale an opportunity to read the application before appearing in court. Respondent
instructed Mr. Ngale to sign the application in front of the Immigration Court judge and
just say “yes” if asked whether Mr. Ngale had read the documents. Respondent filed this
application with the Immigration Court, and a hearing on the merits (“Merits Hearing”)
was scheduled for November 7, 2016.
4. First Bond Hearing
The Immigration Court judge also scheduled a bond hearing (“Bond Hearing”) for
October 19, 2016. Respondent filed a motion to appear by telephone. He testified that the
court denied the motion, and “for administrative reasons” rescheduled the Bond Hearing
5
to November 7, 2016, the same day as the Merits Hearing. Contrary to this testimony, the
hearing judge determined, based on a Show Cause Order issued by the Immigration Court,
that Respondent appeared via telephone at the October 19, 2016, Bond Hearing and
requested the continuance.
5. Merits Hearing and Second Bond Hearing
Respondent failed to appear at the November 7, 2016, Merits and Bond Hearings.
He had traveled to Cameroon on October 31, 2016, and returned on November 8, 2016.
Respondent did not file any motions for withdrawal, postponement, or to appear
telephonically, nor did he contact the Immigration Court to give notice of his absence. Mr.
Ngale requested a continuance at the Merits Hearing and the Immigration Court denied it.
Forced to proceed without counsel, Mr. Ngale represented himself and gave testimony
inconsistent with his application for asylum. For example, the torture described in the
asylum application included electrocution, but this description was omitted in Mr. Ngale’s
testimony. The application also described with detail the political group Mr. Ngale claimed
to be a member of, but Mr. Ngale testified that he did not “really know much about the
group” when questioned by the judge.
Based on those inconsistencies, the Immigration Court found Mr. Ngale not credible
and denied his asylum application. He was given thirty days to file an appeal. The
Immigration Court also ordered Mr. Ngale to be released on $25,000 bond.
6
6. Order to Show Cause
When Respondent missed the Merits and Bond Hearings on November 7, 2016, the
Immigration Court issued an Order to Show Cause regarding his absence. In an untimely
response to the Immigration Court, Respondent alleged he traveled to Cameroon on
October 30, 2016, due to a family emergency.
7. Release on Bond and Appeal
Mr. Ngale called Respondent the day after the Merits and Bond Hearings to get
assistance with securing the bond for his release. Respondent located a bond company who
wrote and arranged to pay the $25,000 bond and associated expenses. Respondent directed
Mr. Ngale to travel to Maryland after his release.
Mr. Chingo gave Respondent $6,000 on Mr. Ngale’s behalf for the bond and related
expenses. Respondent did not deposit the $6,000 in an attorney trust account. There are
no records about the bond expenses, nor documents showing how the money was spent
except for a deposit receipt from Bank of America. Respondent testified at the evidentiary
hearing that the bond premium and processing fee totaled $3,850. However, Respondent
could not properly account for the remaining $2,150. Respondent stated under oath to Bar
Counsel that he agreed to assist with the bond for an additional $1,250. When questioned
at the evidentiary hearing about how the $6,000 was allocated, Respondent omitted the
$1,250 from his testimony. Respondent also gave conflicting testimony on the various
expenses associated with transferring Mr. Ngale from California to Maryland. He could
not, however, provide any supporting documentation for those expenses.
7
In Maryland, Respondent and Mr. Ngale met to discuss appealing Mr. Ngale’s Order
of Removal, and Respondent proposed a $1,500 flat fee. They disputed the funds already
owed to Respondent, and Mr. Ngale paid $500 towards the appeal. Respondent did not
deposit the funds in an attorney trust account. Respondent filed a Notice of Appeal with
the Board of Immigration Appeals on December 5, 2016, and entered his appearance on
behalf of Mr. Ngale.
8. Termination
After the Notice of Appeal was filed, Respondent refused to discuss the appeal with
Mr. Ngale unless Mr. Ngale paid more money. Mr. Ngale terminated the representation in
December 2016, and requested his case file. Respondent refused to turn over the file and
informed Mr. Ngale that he needed the file to respond to the Immigration Court’s Show
Cause Order. At the evidentiary hearing, Respondent further testified that the file was
Respondent’s property. Mr. Ngale’s new attorney, Ms. Beach-Oswald, mailed Respondent
a letter on February 23, 2017, to inform him that she now represented Mr. Ngale and again
requested his case file.2 Respondent failed to respond.
Respondent never filed a motion with the Immigration Court to withdraw his
appearance as Mr. Ngale’s attorney. On March 8, 2017, the Board of Immigration Appeals
mailed Respondent a briefing schedule, directing Respondent to file Mr. Ngale’s appeal
2
Ms. Beach-Oswald mailed the letter to Respondent’s office but in the salutation
addressed the letter to “Mr. Tatung.”
8
brief by March 30, 2017. Respondent did not inform Mr. Ngale or Ms. Beach-Oswald of
the briefing schedule or that his appeal brief was due by the end of the month.
9. Bar Counsel’s Investigation
Mr. Ngale filed a complaint against Respondent with the Attorney Grievance
Commission on April 17, 2017. In his response, Respondent made assertions that
contradict his response to the Show Cause Order and his testimony at the evidentiary
hearing. Principally, Respondent explained that his trip to Cameroon was pre-planned,
contrary to the family emergency he cited in his response to the Show Cause Order to the
Immigration Court. Respondent further explained that when the Immigration Court
rescheduled Mr. Ngale’s October 19, 2016, Bond Hearing to November 7, 2016,
Respondent knew this date conflicted with his travel plans and informed Mr. Ngale about
the conflict. Furthermore, Respondent averred to Bar Counsel that Mr. Ngale and his new
attorney are using him as a “scapegoat” to re-open Mr. Ngale’s case. As such, he was “at
a lost [sic] why instead of thanking me; [sic] Mr. Ngale is filing a complaint against me.”
II.
The Hearing Judge’s Conclusions of Law
The hearing judge determined that Respondent violated MARPC 19-301.1, 19-
301.2(a), 19-301.3, 19-301.4(a) and (b), 19-301.5(a), 19-301.15(a) and (c), 19-301.16(a)
and (d), 19-303.3(a), 19-308.1(a), and 19-308.4(a), (c), and (d). Respondent excepts to
some of the hearing judge’s findings of fact and conclusions of law; Bar Counsel excepts
9
to none. We shall address each factual finding and conclusion of law to which Respondent
excepts and, in the course of doing so, address the hearing judge’s conclusions of law.
III.
Standard of Review
This Court has original and complete jurisdiction in attorney disciplinary
proceedings and “conducts an independent review of the record.” Attorney Grievance
Comm’n v. McLaughlin, 456 Md. 172, 190 (2017) (citation omitted). The hearing judge’s
findings of fact are left undisturbed unless those findings are clearly erroneous or either
party successfully excepts to them. Attorney Grievance Comm’n v. Kremer, 432 Md. 325,
334 (2013).
The hearing judge’s factual findings are not clearly erroneous if they are supported
by “any competent material evidence.” Attorney Grievance Comm’n v. McDonald, 437
Md. 1, 16 (2014) (citation omitted). We review the hearing judge’s conclusions of law
without deference. Attorney Grievance Comm’n v. Hamilton, 444 Md. 163, 178 (2015).
IV.
Discussion
Respondent’s Factual Exceptions
Respondent makes ten exceptions to the proposed findings of fact and conclusions
of law. The hearing judge determined―and we accept―that Mr. Ngale was more credible
than Respondent regarding several of the factual findings to which Respondent takes
exception. To the extent that the hearing judge relied on a credibility determination for a
10
factual finding or Respondent did not produce any other evidence that warrants overturning
the findings of fact or conclusions of law, we overrule those exceptions. Attorney
Grievance Comm’n v. Thompson, 462 Md. 112, 134 (2018) (“Given that Respondent did
not present further evidence in the record to reveal that the hearing judge’s findings were
clearly erroneous, we reject Respondent’s factual exceptions.”).
Those exceptions include whether: (1) Mr. Ngale struggles with the English
language; (2) the $5,000 flat fee included travel expenses; (3) Respondent was authorized
to seek a continuance of the July 13, 2016, hearing; (4) Mr. Ngale and Respondent
substantively reviewed the asylum application together; (5) Respondent appeared for the
October 19, 2016, Bond Hearing; and (6) Mr. Ngale requested an accounting.
Respondent did not produce any evidence regarding two of the remaining four
exceptions: (1) the date Respondent received Mr. Ngale’s partial payment of $1,400; and
(2) whether Derrick Chingo was authorized to speak on Mr. Ngale’s behalf. Neither
Respondent nor Mr. Ngale dispute that Respondent received $1,400 from Mr. Ngale’s
brother-in-law, Elvis Munjong; they only dispute the date it was received. The date,
however, is of no consequence to the conclusions of law and, absent evidence to the
contrary, nothing warrants disturbing this factual finding.
With regard to Mr. Chingo, Respondent urges this Court to assume Mr. Ngale
authorized Respondent to speak with Mr. Chingo on Mr. Ngale’s behalf. Mr. Ngale
“testified that Derrick Chingo talked to Respondent for him; he recited Derrick Chingo’s
street address from memory; and he asked Derrick Chingo to give money that was sent
11
from his family in Cameroon to Respondent.” As the hearing judge determined, however,
Respondent never received a written authorization from Mr. Ngale to interact with Mr.
Chingo on his behalf. Moreover, because Respondent and Mr. Ngale were in frequent
contact, there would be no reason Respondent should interact with Mr. Chingo in lieu of
Mr. Ngale (e.g., when providing a retainer agreement). As such, the hearing judge’s
finding that Respondent lacked authorization to interact with Mr. Chingo on Mr. Ngale’s
behalf is not clearly erroneous, and this exception is overruled.
Finally, Respondent excepts to the hearing judge’s finding that the “issue was not
the maintenance of an attorney trust account, but rather a complete failure to use the
attorney trust account.” Respondent put forth no argument or evidence in support of this
exception. Nonetheless, we discuss this exception further when addressing the mitigating
and aggravating factors that were argued in this case.
Conclusions of Law
We turn now to review the hearing judge’s conclusions of law.
MARPC 19-301.1: Competence
MARPC 19-301.1 requires an attorney to “provide competent representation to a
client.” Incompetent representation occurs when an attorney fails “to take necessary,
fundamental steps” in a client’s case. Attorney Grievance Comm’n v. Bellamy, 453 Md.
377, 393 (2017) (citations omitted). This Rule may be violated when an attorney fails to
appear in court on a client’s behalf, Bellamy, 453 Md. at 393; fails to adequately prepare a
12
client, Attorney Grievance Comm’n v. Chanthunya, 446 Md. 576, 601 (2016); or
mishandles client funds, Attorney Grievance Comm’n v. White, 448 Md. 33, 58 (2016).
Respondent violated MARPC 19-301.1 by failing to attend the November 7, 2016,
Merits and Bond Hearings. For an attorney to fail to appear without sufficient explanation
is a “particularly egregious” violation of Rule 19-301.1. Hamilton, 444 Md. at 180; see
also Attorney Grievance Comm’n v. Lang & Falusi, 461 Md. 1, 44 (2018). Respondent
had notice of the Merits Hearing as early as August 11, 2016, when that date was set by
the Immigration Court at the third Master Calendar Hearing. The October 19, 2016, Bond
Hearing was postponed to November 7, 2016, with the Merits Hearing, of which
Respondent also had notice.3 Respondent informed Mr. Ngale he would not attend the
Merits and Bond Hearings due to pre-existing travel plans, yet Respondent did not notify
the Immigration Court of his intentions. Neither did Respondent request a postponement
nor secure alternative representation for Mr. Ngale.
Respondent asks this Court to excuse his absence because Mr. Ngale’s family did
not pay for Respondent’s return airfare from Cameroon. However, this was not part of the
agreed upon fee arrangement, and even so, Respondent still was required to appear. As
Mr. Ngale’s counsel, Respondent was obligated to ensure Mr. Ngale received proper
representation at the Merits and Bond Hearings. Rather, Respondent inexcusably failed to
attend these hearings despite several months of advance notice.
3
There is conflicting testimony about whether the Immigration Court postponed the
hearing of its own accord or upon Respondent’s motion. The hearing judge determined
that it was Respondent who requested the postponement.
13
Respondent also violated MARPC 19-301.1 by failing to adequately review Mr.
Ngale’s asylum application with him. To his detriment, Mr. Ngale provided testimony
before the Immigration Court that conflicted with his asylum application. For example,
the Immigration Court judge quoted a line from the application about Mr. Ngale’s
“militant” siblings. When questioned about this statement, Mr. Ngale asked the judge,
“What is militant?” Had Respondent reviewed the application with Mr. Ngale and properly
prepared him for the Merits Hearing, these inconsistencies may have been reconciled
before appearing in court. Respondent denied Mr. Ngale the opportunity to understand the
contents of his asylum application, which led to Mr. Ngale’s inconsistent testimony and
ultimately the order of his removal to Cameroon.
Finally, Respondent violated MARPC 19-301.1 by failing to appropriately handle
and account for the funds entrusted to him on Mr. Ngale’s behalf during the pendency of
the representation.
MARPC 19-301.2(a): Scope of Representation
MARPC 19-301.2(a) requires lawyers to “abide by a client’s decision concerning
the objectives of representation.” For an attorney to satisfy those objectives, clients need
to be able to make informed decisions. Hamilton, 444 Md. at 182. “In order for a client to
make informed decisions … an attorney must give the client honest updates regarding the
status of his or her case.” Attorney Grievance Comm’n v. Shapiro, 441 Md. 367, 380
(2015).
14
Respondent violated MARPC 19-301.2 by requesting postponements without Mr.
Ngale’s knowledge or consent. Attorney Grievance Comm’n v. Edwards, 462 Md. 642,
698 (2019) (finding Rule violation where attorney filed motions for continuance and failed
to notify her client). Respondent filed motions to continue the July 13, 2016, second
Master Calendar Hearing and the October 19, 2016, Bond Hearing. Mr. Ngale even
appeared for the July 13, 2016, second Master Calendar Hearing under the impression that
it was going forward as originally scheduled. Respondent alleges the Immigration Court
of its own volition postponed the October 19, 2016, Bond Hearing, but the hearing judge
was not clearly erroneous in determining otherwise.
Respondent also violated MARPC 19-301.2 when he refused to discuss Mr. Ngale’s
appeal with Mr. Ngale because he had not been paid. Attorneys are obligated to keep
clients abreast of the status of their cases and refusing to do otherwise is a violation of this
Rule. See, e.g., Attorney Grievance Comm’n v. Brown, 426 Md. 298, 320 (2012) (finding
Rule violation where attorney ignored repeated requests for information); Attorney
Grievance Comm’n v. Reinhardt, 391 Md. 209, 218, 220 (2006) (same).
MARPC 19-301.3: Diligence
MARPC 19-301.3 requires an attorney to “act with reasonable diligence and
promptness in representing a client.” This Court has held that an attorney violates MARPC
19-301.3 by failing to appear at a scheduled court proceeding. Attorney Grievance
Comm’n v. Byrd, 408 Md. 449, 478 (2009). The rationale supporting a Rule 19-301.1
violation may support a Rule 19-301.3 violation. Attorney Grievance Comm’n v. Mooney,
15
359 Md. 56, 94 (2000). For the same reasons Respondent violated Rule 19-301.1 regarding
his absence from the November 7, 2016, Merits and Bond Hearings, the Court finds he also
violated Rule 19-301.3.
Respondent further violated this Rule by failing to sufficiently confer with Mr.
Ngale about the asylum application before the Merits Hearing. Attorney Grievance
Comm’n v. Smith, 457 Md. 159, 216–17 (2018) (finding that a failure to confer in a
meaningful way violates MARPC 19-301.3). Adequate preparation and consultation with
Mr. Ngale before the Merits Hearing would have reduced the likelihood of Mr. Ngale
giving inconsistent testimony; Respondent’s failure to do so thus violated MARPC 19-
301.3.
MARPC 19-301.4(a) and (b): Communication
MARPC 19-301.4(a) requires attorneys to keep clients reasonably informed about
the status of their cases and promptly reply to requests for information. Rule 19-301.4(b)
further requires that attorneys reasonably explain matters to their clients so that they may
make informed decisions. In Attorney Grievance Comm’n v. Kremer, we noted that
violations of this Rule are closely related to violations of MARPC 19-301.3. 432 Md. at
336.
This case is replete with examples of MARPC 19-301.4 violations. For the same
reasons Respondent violated MARPC 19-301.3, he violated MARPC 19-301.4. First,
Respondent failed to inform Mr. Ngale about the July 13, 2016, and October 19, 2016,
continuances. He also failed to communicate with Mr. Ngale in a manner that facilitated
16
preparing an accurate and complete asylum application. See Smith, 457 Md. at 217
(holding that attorney violated MARPC 19-301.4 by failing to communicate with his client
about the legal theories in his client’s post-conviction relief application). Neither did
Respondent review this application with Mr. Ngale nor prepare him for the Merits Hearing.
Finally, Respondent failed to explain to Mr. Ngale how his funds were to be distributed
during the representation.
MARPC 19-301.5: Fees
MARPC 19-301.5 requires that the fees charged by an attorney be reasonable. “[T]o
be reasonable, the fees must be commensurate with the legal services provided.” Bellamy,
453 Md. at 397. An otherwise reasonable fee at the beginning of a representation
“become[s] unreasonable if the lawyer fails to earn it.” Attorney Grievance Comm’n v.
Garrett, 427 Md. 209, 224 (2012) (citations omitted).
Respondent’s fee was not unreasonable at the onset of the representation, but
Respondent nonetheless violated MARPC 19-301.5 by failing to earn it. The hearing judge
found that Mr. Ngale and Respondent agreed upon a $5,000 flat fee with $1,400 payable
immediately and the remainder to be paid once Mr. Ngale was released and became
employed. Once Mr. Ngale’s application was denied, they further agreed to an additional
$1,500 for Respondent to handle Mr. Ngale’s appeal. Mr. Ngale paid Respondent $7,900
over the course of the representation: $1,400 towards the flat fee; $6,000 for costs related
to the bond and associated expenses; and $500 towards the appeal. Respondent kept no
records or receipts for any of those transactions. Moreover, Respondent’s testimony about
17
those funds was irresolute and conflicted with Mr. Ngale’s testimony, which the hearing
judge deemed more credible.
We recognize that the production of meaningful work determines the
reasonableness of a fee. Attorney Grievance Comm’n v. Framm, 449 Md. 620, 652–53
(2016) (finding a violation of this Rule where attorney’s work was not meaningful even
though one of her clients achieved the desired result). The hearing judge determined that
Respondent assisted Mr. Ngale with securing his bond and arranging his travel from the
detention center in California to Maryland. Respondent, however, was principally hired to
assist Mr. Ngale with his asylum application, not just to secure a bond. As previously
discussed, Respondent’s work on the asylum application was deficient―he rushed through
completing the application, spent little time reviewing it with his client, and failed to appear
in court as scheduled to argue the merits. Respondent did not perform meaningful work
on Mr. Ngale’s asylum application, thus he violated MARPC 19-301.5.
MARPC 19-301.15(a) and (c): Safekeeping Property
MARPC 19-301.15(a) directs that all “[f]unds shall be kept in a separate account
maintained pursuant to Title 19, Chapter 400 of the Maryland Rules, and records shall be
created and maintained in accordance with the Rules in that Chapter.” Maryland Rule 19–
407(a) requires attorneys to maintain records regarding the receipt and disbursement of
client funds. MARPC 19-301.15(a) also directs attorneys 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.” Lang, 461 Md. at 52. MARPC 19-301.15(c) requires that
18
pre-paid legal fees be deposited in an attorney trust account, and withdrawal of them is
permitted only when those fees are earned. Attorney Grievance Comm’n v. Sanderson, 465
Md. 1, 52–53 (2019) (finding a MARPC 19-301.15 violation where attorney failed to
maintain funds in trust until earned).
Respondent violated MARPC 19-301.15. As discussed above, on three separate
occasions Respondent received payments on Mr. Ngale’s behalf. Respondent never
deposited any of those funds into an attorney trust account. “An attorney violates [MARPC
19-301.15] when he or she does not deposit trust funds into an attorney trust account and
does not obtain the client’s informed consent to do otherwise.” Hamilton, 444 Md. at 189.
Respondent also did not create any records associated with either the deposit or
disbursement of those funds. See Attorney Grievance Comm’n v. Ross, 428 Md. 50, 78–
79 (2012) (finding Rule violation where attorney failed to maintain proper trust account
records). Respondent attempts to justify these failures by claiming that he earned his fee
by the time the money was received. The hearing judge, however, found no credible
evidence to support that assertion.
MARPC 19-301.16(a) and (d): Terminating Representation
MARPC 19-301.16(a)(3) requires attorneys to withdraw from representation when
discharged by a client. In Attorney Grievance Comm’n v. Davis, this Court held that an
attorney violated this Rule by failing to file a motion to withdraw her appearance after a
client terminated her. 375 Md. 131, 153 (2003); see also Attorney Grievance Comm’n v.
Steinberg, 395 Md. 337, 365 (2006) (finding that a six-month delay in filing a motion to
19
withdraw after termination was a violation of this Rule). Once an attorney-client
relationship is terminated, MARPC 19-301.16(d) mandates that the attorney “take steps to
the extent reasonably practicable to protect a client’s interests.” MARPC 19-301.16(d) is
violated when an attorney fails to return unearned fees and papers. Attorney Grievance
Comm’n v. Moore, 447 Md. 253, 269 (2016); see also Kremer, 432 Md. at 336.
Respondent violated MARPC 19-301.16(a). After Mr. Ngale terminated
Respondent in December 2016, Respondent was obligated to withdraw his appearance
before the Board of Immigration Appeals, but he failed to do so. Respondent provided no
justification for this failure and it resulted in Respondent’s receiving the briefing schedule
for Mr. Ngale’s appeal.
Respondent took no actions to notify Mr. Ngale about the briefing schedule, thereby
violating MARPC 19-301.16(d). Respondent further violated the Rule by refusing to
provide Mr. Ngale’s case file first to Mr. Ngale when requested in December 2016 and
again when requested by successor counsel in February 2017. Finally, Respondent violated
MARPC 19-301.16(d) by failing to return unearned funds. Because Respondent’s fee
became unreasonable based on his failure to perform meaningful work, as discussed above,
Respondent was obligated to provide a refund. See Attorney Grievance Comm’n v.
Patterson, 421 Md. 708, 735–36 (2011) (finding Rule violation where attorney did not
provide meaningful services, yet did not refund unearned fee to client).
20
MARPC 19-303.3: Candor Toward the Tribunal
MARPC 19-303.3(a)(1) provides, in pertinent part, that a lawyer “shall not
knowingly … make a false statement of fact or law to a tribunal.” This duty stems from
the proposition that “[e]very court has the right to rely upon an attorney to assist it in
ascertaining the truth of the case before it.” Attorney Grievance Comm’n v. Smith, 442
Md. 14, 34 (2015) (citation omitted). Therefore, “an attorney ‘must be candid at all times
with a tribunal or inquiry board.’” Attorney Grievance Comm’n v. Butler, 456 Md. 227,
238 (2017) (quoting Attorney Grievance Comm’n v. Joseph, 422 Md. 670, 699 (2011)).
Accordingly, a lawyer violates MARPC 19-303.3(a)(1) when he or she knowingly provides
a court with false information. Attorney Grievance Comm’n v. Ward, 394 Md. 1, 32 (2006).
Respondent violated MARPC 19-303.3. After he failed to appear at the November
7, 2016, Merits Hearing, the Immigration Court issued Respondent an Order to Show
Cause regarding his absence. In his response, Respondent wrote: “On or about the 30th[]
of October 2016, I had an emergency and was forced on very short notice to travel out of
the country to my native Cameroon in West Africa.” When questioned by Bar Counsel
about his absence, Respondent stated that the trip was pre-planned, and he knew about it
as early as October 18, 2016. Furthermore, he testified at trial that he traveled to Cameroon
for his uncle’s funeral and a swearing-in ceremony for which he was given short notice.
These various inconsistencies led the hearing judge to conclude that there was no
emergency necessitating Respondent’s urgent departure. Rather, the statement to the
Immigration Court was a misrepresentation to conceal Respondent’s misconduct. Because
21
this misrepresentation formed the basis of his reply to the Show Cause Order, the
misrepresentation was material and therefore Respondent violated MARPC 19-303.3.
MARPC 19-308.1: Bar Admissions and Disciplinary Matters
MARPC 19-308.1(a) is violated when an attorney knowingly makes a false
statement of material fact in a disciplinary matter. See, e.g., Attorney Grievance Comm’n
v. Robbins, 463 Md. 411, 462–63 (2019) (finding that attorney knowingly made false
statements in his letter to Bar Counsel because of his conflicting statement under oath to
Bar Counsel and testimony at trial).
Respondent violated MARPC 19-308.1 for the same reason he violated MARPC
19-303.3―he misrepresented his travel plans to Cameroon. In his letter to Bar Counsel,
Respondent wrote that when he learned the Bond Hearing was rescheduled from October
19, 2016, to November 7, 2016, he informed Mr. Ngale and Mr. Chingo about his pre-
planned travel arrangements. This statement directly contradicts his statements to the
Immigration Court in his reply to the Show Cause Order and his testimony at the
evidentiary hearing.
MARPC 19-308.4(a), (c), and (d): Misconduct
MARPC 19-308.4(a) is violated if any rule under the MARPC is violated. MARPC
19-308.4(c) is violated if an attorney “engage[s] in conduct involving dishonesty, fraud,
deceit or misrepresentation.” Intent to deceive is not required in finding a Rule 19-308.4(c)
violation as “long as an attorney knowingly makes a false statement, [because] he
necessarily engages in conduct involving misrepresentation.” Attorney Grievance Comm’n
22
v. Dore, 433 Md. 685, 708 (2013). Finally, MARPC 19-308.4(d) is violated when an
attorney’s conduct is “prejudicial to the administration of justice.” This occurs “when [an
attorney’s] conduct impacts negatively the public’s perception or efficacy of the courts or
legal profession.” Attorney Grievance Comm’n v. Barnett, 440 Md. 254, 267 (2014)
(citation omitted). Misconduct that constitutes a violation of MARPC 19-308.4(c) may
also violate 308.4(d). Attorney Grievance Comm’n v. Worsham, 441 Md. 105, 129–30
(2014).
Having violated several other Rules of Professional Conduct, Respondent violated
MARPC 19-308.4(a). Respondent’s statements to Bar Counsel and the Immigration Court,
which violated MARPC 19-303.3 and 308.1(a), also constitute violations of MARPC 19-
308.4(c), as they are misrepresentations. Finally, we agree with the hearing judge’s
assessment that Respondent’s conduct, taken as a whole, violates MARPC 19-308.4(d).
Attorney Grievance Comm’n v. Aita, 458 Md. 101, 138–39 (2018) (remarking in a MARPC
19-308.4(d) analysis that “[t]he public must be able to trust that when utilizing a lawyer’s
service, the lawyer will appear on their behalf when required and pursue the appropriate
remedies.”); see also Attorney Grievance Comm’n v. Walker-Turner, 428 Md. 214, 232
(2012) (finding a MARPC 19-308.4(d) violation where attorney failed to appear at
scheduled court proceedings).
Aggravating Factors and Mitigating Factors
We next address whether there are any mitigating or aggravating factors present.
“A weighing of ‘the attorney’s misconduct against any existing mitigating or aggravating
23
factors’ is essential to determining the proper sanction.” Attorney Grievance Comm’n v.
Steinhorn, 462 Md. 184, 202 (2018) (citations omitted). The Respondent must prove the
presence of mitigating circumstances by a preponderance of the evidence. See Joseph, 422
Md. at 695. Bar Counsel has the burden of proving the existence of aggravating factors by
clear and convincing evidence. See Thompson, 462 Md. at 131.
The mitigating factors we consider when determining the appropriate sanction
include:
1. absence of a prior disciplinary record;
2. absence of a dishonest or selfish motive;
3. personal or emotional problems;
4. timely good faith efforts to make restitution or to rectify consequences of
misconduct;
5. full and free disclosure to disciplinary board or cooperative attitude toward
proceedings;
6. inexperience in the practice of law;
7. character or reputation;
8. physical or mental disability or impairment;
9. delay in disciplinary proceedings;
10. interim rehabilitation;
11. imposition of other penalties or sanctions;
12. remorse; and
13. remoteness of prior offenses.
See Attorney Grievance Comm’n v. Lefkowitz, 463 Md. 165, 178–79 (2019).
Respondent testified that he learned “two, maybe three things” from this
disciplinary proceeding: (1) not to make exceptions on providing clients with a retainer
agreement, and (2) how to maintain an attorney trust account. In light of his experience,
Respondent instituted a new calendar system and hired an accountant to assist with his
attorney trust account.
24
The hearing judge determined that this testimony failed to demonstrate any
mitigating factors. First, Respondent’s new position on his attorney trust account was not
a mitigating factor because at “issue was not maintenance of an attorney trust account, but
rather a complete failure to use the attorney trust account.” Respondent excepts to this
characterization, to no avail. The record is devoid of any evidence that Respondent used
an attorney trust account while representing Mr. Ngale. Rather, Respondent admitted
multiple times during the hearing and under oath to Bar Counsel that he did not deposit
Mr. Ngale’s funds into an attorney trust account. We overrule the exception, and agree
with the hearing judge that Respondent’s newfound maintenance of his attorney trust
account is not a mitigating factor. Instituting a new scheduling system is likewise not a
mitigating factor. Respondent knowingly chose not to attend the November 7, 2016, Merits
and Bond Hearings, notwithstanding Respondent’s assertion to the contrary. There was no
scheduling error.
Respondent also testified at the hearing that he expressed regret to Mr. Ngale
“multiple times” about missing the November 7, 2016, Merits and Bond Hearings.
However, Respondent later testified that he did not speak with Mr. Ngale again after Mr.
Ngale terminated the representation in December 2016. Furthermore, in his letter to Bar
Counsel, Respondent questioned why Mr. Ngale filed a complaint against him rather than
thank him for his services. We accept the hearing judge’s determination that Respondent
never expressed regret to Mr. Ngale.
25
The aggravating factors we consider when determining the appropriate sanction
include:
1. prior disciplinary offenses;
2. dishonest or selfish motive;
3. pattern of misconduct;
4. multiple offenses;
5. “bad faith obstruction of the disciplinary proceeding by intentionally failing
to comply with rules or orders of the disciplinary agency;”
6. submission of false evidence, false statements, or other deceptive practices
during the disciplinary process;
7. refusal to acknowledge the wrongful nature of conduct;
8. the vulnerability of the victim;
9. substantial experience in the practice of law; and
10. display of indifference to making restitution.
See Attorney Grievance Comm’n v. Sperling, 434 Md. 658, 676–77 (2013) (citation
omitted).
Bar Counsel alleged, and the hearing judge agreed, that each of the above-listed
aggravating factors was present. We disagree regarding two of these factors. The evidence
does not support a finding that Respondent displayed a pattern of misconduct or obstructed
the disciplinary proceedings. The remaining aggravating factors are, however, supported
by clear and convincing evidence.
Most salient is the vulnerability of Mr. Ngale. This Court acknowledges that
immigrants are a vulnerable class, and as such, “we must impress upon [Respondent], and
all other lawyers, the importance of diligent representation and adequate communication
in immigration cases.” Attorney Grievance Comm’n v. Landeo, 446 Md. 294, 352–53
(2016); see also Attorney Grievance Comm’n v. Thomas, 440 Md. 523, 558 (2014) (“We
have recognized previously the special vulnerability of immigrants as clients.”). Mr. Ngale
26
was a vulnerable client who heavily depended on Respondent. He entered this country
with limited resources, struggles with the English language, and was detained in California
during nearly all of the representation.
Taking the other aggravating factors in turn, we begin by noting that this is
Respondent’s third disciplinary proceeding. This Court reprimanded Respondent on
February 22, 2012, for the unauthorized practice of law, among other rule violations.
Attorney Grievance Comm’n v. Ambe, 425 Md. 98 (2012). On October 24, 2012, the New
York Appellate Division also issued Respondent a censure (similar to a reprimand in
Maryland) for multiple violations of the New York Rules of Professional Conduct. In re
Ambe, 951 N.Y.S.2d 242 (N.Y. App. Div. 2012).
Respondent has a decade of experience in immigration law and has handled
hundreds of such cases, thus he is an experienced attorney. Despite this extensive
experience, Respondent committed multiple rule violations during his representation of
Mr. Ngale. When confronted with his misconduct, Respondent made deceitful statements
to Bar Counsel and the Immigration Court.
Respondent’s decision to travel to Cameroon in lieu of attending Mr. Ngale’s
November 7, 2016, Merits and Bond Hearings is a testament to his selfish motive. He
claimed multiple times that Mr. Ngale’s family was responsible for supplying him with
airfare from Cameroon to Los Angeles and that they failed to do so, thus warranting his
absence. The family’s provision of travel expenses, however, was not part of Respondent’s
fee agreement with Mr. Ngale. Moreover, the repeated finger-pointing speaks to
27
Respondent’s lack of remorse and indifference to making restitution, as further
demonstrated by his statement to Bar Counsel that Mr. Ngale should have thanked him
rather than file a complaint. See Aita, 458 Md. at 130 (“where an attorney attempts to shift
blame onto the client, we prefer to focus squarely on the conduct of the attorney.”) (internal
citations omitted).
V.
The Sanction
We are left to decide the appropriate sanction for Respondent’s misconduct.
Sanctions are imposed to protect the public, not to punish the lawyer. Attorney Grievance
Comm’n v. Phillips, 451 Md. 653, 677 (2017). Furthermore, they serve as deterrence
against similar misconduct. Attorney Grievance Comm’n v. Pennington, 387 Md. 565, 596
(2005). We evaluate the facts and circumstances of each case to ensure that the sanction
ordered is “commensurate with the nature and gravity of the violations and the intent with
which they were committed.” Attorney Grievance Comm’n v. Stein, 373 Md. 531, 537
(2003).
Disbarment is the appropriate sanction for Respondent’s numerous violations of the
MARPC while representing a vulnerable client. Among other violations, Respondent
neglected and abandoned his client; made misrepresentations to Bar Counsel and the
Immigration Court; mishandled funds; and failed to keep records. There are multiple
aggravating factors contributing to this sanction and no mitigating factors to that would
persuade us to moderate it.
28
Respondent’s pattern of dishonesty in his dealings with the Immigration Court and
during these disciplinary proceedings warrants disbarment. See Attorney Grievance
Comm’n v. Peters-Hamlin, 447 Md. 520, 547–49 (2016) (remarking that “disbarment is
ordinarily the sanction for intentional dishonest conduct”). The various and conflicting
excuses for Respondent’s failure to appear at the November 7, 2016, Merits and Bond
Hearings constitute unjustifiable misrepresentations. See Attorney Grievance Comm’n v.
Vanderlinde, 364 Md. 376, 414 (2001) (requiring disbarment for stealing, dishonesty,
fraudulent conduct, etc., absent compelling circumstances to lessen the sanction).
Respondent’s neglect of his client’s affairs, including his failure to communicate with his
client, also warrants disbarment. See Attorney Grievance Comm’n v. Mitchell, 445 Md.
241, 263 (2015) (citation omitted); see also Thomas, 440 Md. at 558 (collecting cases).
Considering the numerous violations of the MARPC, in conjunction with the
aggravating factors and lack of mitigating factors discussed above, we disbar Respondent.
IT IS SO ORDERED; RESPONDENT
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 JUDE AMBE.
29