Attorney Grievance Comm'n of Md. v. Ndi

Attorney Grievance Commission v. Benjamin N. Ndi
Misc. Docket AG No. 14, September Term 2017
Attorney Discipline – Misappropriation of Client Funds – Unauthorized Practice of
Law – Misrepresentations to Clients and to Bar Counsel – Disbarment. Disbarment
is the appropriate sanction when an out-of-state attorney failed to represent two clients
competently and diligently and to communicate with them adequately concerning their
cases, failed to inform potential clients of the jurisdictional limitations of his law practice,
engaged in the unauthorized practice of personal injury law in Maryland and mishandled
the proceeds of that action, failed to respond to Bar Counsel’s investigation in a timely
manner, and made various dishonest and false statements to his clients and Bar Counsel.
MLRPC 1.1, 1.3, 1.4, 1.5, 1.15, 1.16, 5.5, 7.1, 7.5, 8.1, 8.4; Maryland Rules 19-308.1, 19-
308.4, 19-404 (formerly Maryland Rule 16-604).
Circuit Court for Montgomery County
Case No. 433731
Argument: April 10, 2018
IN THE COURT OF APPEALS
OF MARYLAND
Misc. Docket AG No. 14
September Term, 2017
ATTORNEY GRIEVANCE COMMISSION
OF MARYLAND
V.
BENJAMIN N. NDI
______________________________________
Barbera, C.J.
Greene
Adkins
McDonald
Watts
Hotten
Getty,
JJ.
______________________________________
Opinion by McDonald, J.
______________________________________
Filed: May 1, 2018
This attorney disciplinary matter concerns Respondent Benjamin N. Ndi, an
attorney licensed in New York, but not in Maryland, who committed various violations of
the rules of professional conduct, as well as of a related rule concerning the use of attorney
trust accounts, while providing immigration and other legal services in Maryland. Mr. Ndi
did not cooperate fully with Bar Counsel’s investigation into his activities in Maryland,
failed to respond to discovery requests in this proceeding, and did not appear at the
evidentiary hearing before the hearing judge or at oral argument before this Court.
Following oral argument, we disbarred Mr. Ndi and ordered the Clerk of this Court to place
his name on the list of attorneys who are excluded from the practice of law in Maryland.1
We now explain the reasons why we took that action.
I
Background
A. Procedural Context
On June 8, 2017, the Attorney Grievance Commission (“Commission”), through
Bar Counsel, filed with this Court a Petition for Disciplinary or Remedial Action against
Mr. Ndi. The Commission charged him with violating Rules 1.1 (competence), 1.3
(diligence), 1.4 (communication), 1.5 (fees), 1.15 (safekeeping property), 1.16 (declining
or terminating representation), 5.5 (unauthorized practice of law), 7.1 (communications
concerning lawyer’s services), 7.5 (firm names and letterheads), 8.1 (bar admission and
disciplinary matters), and 8.4 (misconduct) of the Maryland Lawyers’ Rules of Profession-
1
See Maryland Rule 19-742(g).
al Conduct (“MLRPC”), as well as Maryland Rule 19-308.1 (bar admission and
disciplinary matters) and Maryland Rule 19-308.4 (misconduct) of the Maryland
Attorneys’ Rules of Professional Conduct (“MARPC”).2 He was also charged with
violating former Maryland Rules 16-603 (duty to maintain trust account) and 16-604 (trust
account – required deposits).3
Pursuant to Maryland Rule 19-722, this Court designated Judge Joan E. Ryon, of
the Circuit Court for Montgomery County, to conduct a hearing and to provide findings of
fact and recommended conclusions of law. Mr. Ndi retained counsel, who filed an answer
on his behalf. The answer admitted some of the allegations, denied others, and asserted a
lack of information or memory as to others. Mr. Ndi’s counsel subsequently filed a motion
to withdraw his appearance, which the hearing judge granted on December 7, 2017. No
new counsel entered an appearance, nor did Mr. Ndi appear on his own behalf.
Mr. Ndi did not respond to the written discovery requests of Bar Counsel or appear
for his deposition noticed by Bar Counsel. As a result, Bar Counsel filed a motion for
sanctions. Mr. Ndi did not respond to that motion. The hearing judge granted the motion,
2
Effective July 1, 2016, the MLRPC were renamed the MARPC and recodified in
Title 19 of the Maryland Rules. Because Mr. Ndi’s misconduct straddled both sides of the
effective date of the recodification of the rules of professional conduct, he managed to
commit violations of the same rules of professional conduct in their guise as both the
MLRPC and the MARPC. Because there is no substantive difference in the two
codifications of the rules invoked by the Commission, for simplicity we shall use the
shorter designations of the MLRPC throughout this opinion – e.g., “Rule 8.4” rather than
“Maryland Rule 19-308.4.”
3
Effective July 1, 2016, these two rules were re-codified as Maryland Rules 19-403
and 19-404 respectively.
2
striking Mr. Ndi’s answer and precluding him from introducing any testimony or evidence
at trial other than testimony as to mitigation.
The hearing proceeded as scheduled on January 8, 2018. Mr. Ndi did not appear.
The hearing judge issued findings of fact and recommended conclusions of law on
February 7, 2018. Neither party filed exceptions. This Court heard oral argument on April
10, 2018. Mr. Ndi did not appear.
B. Facts
We summarize the hearing judge’s findings of fact and the exhibits submitted at the
hearing as follows. As no exceptions have been filed, we treat the findings of fact as
established. Maryland Rule 19-741(b)(2)(A).
Bar Membership and Office Location
Mr. Ndi was admitted to the New York Bar in 2003. Mr. Ndi is not a member of
the Maryland Bar. During 2016 and 2017, he was in “delinquent status” with respect to
his New York Bar membership for failure to pay fees associated with that membership.
During that time period, he maintained an office for the practice of law in Montgomery
County, Maryland.
Representation of Martin Ndamchi Tamon
Martin Ndamchi Tamon, a native and citizen of Cameroon, entered the United States
on September 9, 2005, on a tourist visa. On September 6, 2006, Mr. Tamon filed a pro
se application for asylum with the United States Citizenship and Immigration Services.
Mr. Tamon’s asylum application was referred to the federal immigration court in
Baltimore.
3
In early February 2007, Mr. Tamon retained Mr. Ndi to represent him in the
immigration matter and paid him $2,000 for that purpose. In his notice of appearance
and subsequent filings, Mr. Ndi indicated a Takoma Park, Maryland, office address. Mr.
Ndi appeared with Mr. Tamon before an immigration judge on February 7, 2007, at a
master calendar hearing. Mr. Ndi told the court that Mr. Tamon intended to pursue his
asylum application before the immigration court. The immigration judge informed Mr.
Ndi that the asylum application was not in the proper format and ordered Mr. Ndi to re-
file the application in accordance with the immigration court’s guidelines by April 9,
2007.
Mr. Ndi failed to re-file Mr. Tamon’s asylum application. On April 23, 2007, the
immigration judge deemed Mr. Tamon’s asylum application to be abandoned and issued
an order that allowed Mr. Tamon 30 days to leave the United States, after which the order
would become an order of removal. A final order of removal would result in Mr. Tamon’s
arrest and deportation.
Mr. Ndi did not promptly inform Mr. Tamon of the immigration court’s order. Mr.
Tamon learned of the order only when he called Mr. Ndi’s office in May 2007 to check
on the status of his case.
On June 7, 2007, Mr. Ndi filed a motion with the immigration court to re-open Mr.
Tamon’s case. In the motion, he asserted that he was a solo practitioner and had been
“overwhelmed with work and inadvertently failed” to re-file the asylum application. The
motion incorrectly stated that Mr. Tamon had been ordered removed in absentia – i.e.,
because he had failed to appear for his case – and was based on case law regarding
4
removals in absentia. As indicated above, the removal order was the result of Mr. Ndi’s
failure to re-file the asylum application in the proper format. Attached to the motion was
an asylum application, but without the supporting documentation that had accompanied
Mr. Tamon’s original pro se application.
On June 22, 2007, the immigration court denied the motion to re-open Mr.
Tamon’s case. On August 2, 2007, Mr. Ndi filed an untimely motion to reconsider that
denial, but failed to specify any error of fact or law in the decision. Once again, the stated
basis of Mr. Ndi’s motion was that he was a solo practitioner who was overwhelmed with
work. The next day, the immigration court denied the motion to reconsider.
On November 23, 2007, Mr. Tamon filed a pro se appeal with the Board of
Immigration Appeals (“BIA”). Mr. Tamon explained that he had experienced difficulty
obtaining documents from Cameroon. However, the BIA denied his appeal as untimely.
Representation of Joseph Shonga
Joseph Shonga was also an immigration client of Mr. Ndi. On November 12,
2015, Mr. Shonga was in an automobile accident in Baltimore and sustained injuries.
On January 12, 2016, Mr. Ndi visited Mr. Shonga at his home in Laurel, Maryland,
and offered to represent Mr. Shonga in seeking compensation for those injuries.
According to Mr. Shonga, they entered into a written contingent fee agreement under
which Mr. Ndi would receive 31% of any recovery as his fee. Mr. Ndi did not provide
Mr. Shonga with a copy of the contingent fee agreement. During the meeting, Mr.
Ndi said that he would pay all of Mr. Shonga’s medical bills from the settlement and
5
then “see what is left.” Mr. Shonga provided Mr. Ndi with five bills related to his
medical treatment.
On April 29, 2016, Mr. Ndi called Mr. Shonga and asked him to come to his office
in Takoma Park. That same day, they met at the office, which was known as the “Center
for Immigration Law.” Mr. Ndi told Mr. Shonga that the insurance company had offered
to settle the case for $17,000 or $18,000. At Mr. Ndi’s recommendation, Mr. Shonga
signed a settlement agreement.
Mr. Shonga also signed a “Settlement Statement” that represented that the total
distribution was $17,000. According to the Settlement Statement, Mr. Ndi disbursed
$8,000 to Mr. Shonga as the “Amount to Clients.” He withheld $5,500 as the “Amount
to Attorneys,” which included: his fee of $5,666.67, increased by “Costs and
Disbursements” of $900 ($100 for “Consultation,”$300 for “Court fees,” and $500 for
“Paralegal Research”), and reduced by a “Discount” of $1,066.67. Mr. Ndi also
withheld $3,500 from Mr. Shonga’s total settlement for “Reimbursement of Client
Costs,” which included $1,000 for “Emergency Room Bill” and $2,500 for “Bill
Maryland Health Care Clinic.”
Mr. Ndi gave Mr. Shonga a check for $8,000 written on an account of the Center
for Immigration Law, which contained the notation “PI Settlement.” The account was
not an attorney trust account.
Mr. Ndi failed to promptly pay all of Mr. Shonga’s medical bills. Mr. Ndi made the
following disbursements to Mr. Shonga’s medical providers:
6
1) On or about June 21, 2016, a check to Emergency Medicine in the
amount of $124.86;
2) On or about June 21, 2016, a check to Neurological Medicine PA in
the amount of $248.34;
3) In or about October 2016, a payment to Progressive MRI LLC in
the amount of $250.00;
4) On or about November 20, 2016, a payment to Doctor’s Community
Hospital in the amount of $114.21; and
5) On or about March 2017, a payment to Carefirst BlueCross
BlueShield in the amount of $377.80.
Mr. Ndi did not disburse any amount in connection with “Maryland Health Care Clinic.”
In the months after he signed the settlement statement, Mr. Shonga continued to
receive bills from health care providers. However, Mr. Shonga was unable to reach Mr.
Ndi to obtain information about the status of payments to health care providers.
On October 23, 2017, Maryland Healthcare Clinics filed a lawsuit against Mr.
Shonga for failure to pay its bill.
Bar Counsel Investigation
Mr. Tamon filed a complaint concerning Mr. Ndi with Bar Counsel on March 24,
2016. On April 27, 2016, Bar Counsel wrote to Mr. Ndi at the Takoma Park, Maryland,
address provided by Mr. Tamon and requested a response to the complaint within 15
days. Mr. Ndi failed to respond to that letter, as well as to a follow-up letter from Bar
Counsel the next month.
On June 7, 2016, Bar Counsel sent copies of its previous correspondence and Mr.
Tamon’s complaint to Mr. Ndi at his Maryland addresses in Lanham and Burtonsville
7
and asked Mr. Ndi for information concerning his current business address, areas of
practice, and bar admissions.
In a letter dated June 20, 2016, Mr. Ndi provided an incomplete response to Bar
Counsel’s request on a letterhead for the Law Offices of Okedi & Ndi, Attorneys at Law,
at a Burtonsville, Maryland, address. The letterhead did not specify that Mr. Ndi was
licensed only in New York, or otherwise indicate jurisdictional limitations. Mr. Ndi did
not provide a copy of Mr. Tamon’s file, nor did he provide his email address or a list of
jurisdictions in which he was authorized to practice law.
The hearing judge found that Mr. Ndi made knowing and intentional
misrepresentations to Bar Counsel in the June 20, 2016 letter. First, Mr. Ndi blamed Mr.
Tamon for Mr. Ndi’s failure to re-file Mr. Tamon’s asylum application on time. Mr.
Ndi wrote: “The fact that I stated that I was a sole Practitioner was not the cause of the
delay. I forgot to add the statement that we also received the documents late from the
complainant.” This statement was false and misleading because the immigration judge had
only required that Mr. Ndi re-file the asylum application that Mr. Tamon had previously
filed, except in the proper format. No new documentation had been required.
Second, Mr. Ndi falsely stated that his practice was “limited to Immigration Law.”
In fact, as indicated above, Mr. Ndi had recently engaged in the unauthorized practice of
personal injury law in Maryland in Mr. Shonga’s case.
On July 14, 2016, Bar Counsel wrote to Mr. Ndi and requested the following: (1)
the address where he currently worked or maintained an office; (2) a list of jurisdictions
where he was licensed to practice law and the date of admission in each jurisdiction; (3)
8
certificates of good standing from each jurisdiction in which he was admitted to practice;
(4) an explanation for his failure to identify any jurisdictional limitations; and (5) Mr.
Tamon’s client file.
On July 26, 2016, Mr. Ndi responded to Bar Counsel on stationery with a letterhead
that indicated a Burtonsville, Maryland, address. However, it did not state that his practice
was limited to federal immigration matters. In the letter, Mr. Ndi stated that he was
admitted to practice law in New York, that he was in “active practice,” and that he
specialized in immigration law. However, he failed to provide a certificate of good
standing from New York. In the body of that letter, he provided an excerpt of what he said
was his “office letterhead.” The office letterhead purported to be for the “Law Offices of
Okedi & Ndi, Attorneys at Law” at a Washington, D.C. address. A notation indicated Mr.
Okedi was admitted in Maryland and New York, that Mr. Ndi was admitted in New York,
and that a third attorney was admitted in Maryland and the District of Columbia.
Subsequently, by letter dated August 1, 2016, the bar licensing authority in New
York advised Bar Counsel that, as of July 2015, Mr. Ndi was in delinquent status as a result
of his failure to pay bar dues.
Shortly thereafter, on September 9, 2016, Mr. Shonga filed a complaint with Bar
Counsel concerning his experience with Mr. Ndi. Bar Counsel sent a copy of the complaint
to Mr. Ndi on September 29, 2016 and requested a response. In a separate letter the next
day, Bar Counsel also requested again that Mr. Ndi provide a certificate of good standing
from New York. Mr. Ndi failed to respond to either request. Bar Counsel sent a follow-
up letter concerning Mr. Shonga’s complaint by certified mail, but the correspondence was
returned to Bar Counsel marked “Return to Sender, Unable to Forward.”
9
Five months later, on March 7, 2017, Mr. Ndi belatedly replied to the request for a
certificate of good standing with a letter that enclosed a certificate of good standing from
New York dated March 1, 2017. The cover letter was on letterhead with a Lanham,
Maryland, address.
On March 16, 2017, Mr. Ndi also belatedly responded to Bar Counsel’s request for
a response to Mr. Shonga’s complaint. The letterhead of that letter included the same
Washington, D.C. address and legend as the letterhead sent to Bar Counsel the previous
July and also indicated “in care of” a Lanham address.
In the March 16, 2017 letter, Mr. Ndi stated that he had not received Bar Counsel’s
inquiries because he was working in New York. He also stated that Mr. Shonga had signed
the settlement agreement and picked up his settlement check at Mr. Ndi’s Washington,
D.C. office. (Mr. Ndi was not licensed to practice law in the District of Columbia). Mr.
Ndi enclosed a copy of the retainer agreement, which stated that he would receive one-
third of any recovery. He also enclosed a copy of a settlement sheet dated April 29, 2016
and copies of cancelled checks drawn on an account of the Center for Immigration Law in
Takoma Park, purportedly to show that Mr. Shonga’s medical bills had been paid. The
account was not an attorney trust account. Mr. Ndi did not provide a copy of the check
received from the insurance company.
Although the settlement sheet represented that $2,500 would be disbursed to
“Maryland Health Care Clinic,” the other enclosures did not include a copy of a check to
that entity. The hearing judge found that Mr. Ndi knowingly and intentionally
misrepresented to Mr. Shonga that he had disbursed $2,500 to that entity to pay Mr.
10
Shonga’s bill. The hearing judge also found that Mr. Ndi made misrepresentations to Bar
Counsel in the March 16, 2017 letter concerning the amount of the settlement withheld
from Mr. Shonga and his knowledge of the medical bills to be paid.
The Website of Mr. Ndi’s Firm
As of July 14, 2016, the law firm of Okedi, Ndi & Associates maintained a website
at . The website listed the members of the
firm as Mr. Ndi and Gini Okedi, as well as the available services. The website included
an advertisement for “Experienced Litigation & Immigration Attorneys.” The website
listed the following areas of practice: Personal Injury, Complete Immigration Practice,
Employment Law, Family Law, Criminal Law-DUI/Traffic, Business Associations, and
“General Litigations.” Below the areas of practice, the advertisement provided phone
numbers for both Mr. Ndi and Mr. Okedi. The “About Us” page on the website stated, in
pertinent part, that “Attorney Benjamin N. Ndi and Gini Okedi’s goals [sic] are to assist
both individuals and corporations through counseling and representation in all matters that
relate to Immigration, Personal Injury, Family Law, Family Law [sic], Employment Law,
Criminal Law, and General Litigation.”
11
II
Discussion
Our authority to discipline an out-of-state lawyer who provides legal services in
Maryland is reflected in Rule 8.5(a)(2).4 Under that rule, an attorney who is not admitted
in Maryland is subject to the disciplinary authority of this Court if the attorney, among
other things: (1) provides or offers to provide any legal services in Maryland or (2) holds
himself out as practicing law in Maryland. Based on the facts found by the hearing judge,
Mr. Ndi is subject to the disciplinary authority of this Court under both of those prongs.
With respect to the alleged violations of the rules of professional conduct, the
hearing judge found that Mr. Ndi committed all but one5 of the alleged violations. Upon
due consideration of the hearing judge’s recommended conclusions of law, we hold as
follows.
Failing to Meet Basic Standards
We agree with the hearing judge that Mr. Ndi violated Rule 1.1 (competence), 1.3
(diligence), 1.4 (communication), and Rule 1.16 (declining or terminating representation).
4
See Maryland Rule 19-308.5(a)(2); see also Maryland Rule 19-305.5, comments
18, 19; Iowa Supreme Court Attorney Disciplinary Board v. Carpenter, 781 N.W.2d 263
(Iowa 2010) (applying similar rules of professional conduct to discipline out-of-state
lawyer who committed violations in the course of federal immigration practice within the
state); cf. Gadda v. Ashcroft, 377 F.3d 934 (9th Cir. 2004) (state supreme court’s discipline
of attorney whose practice was limited to immigration law not preempted by federal law).
5
Bar Counsel withdrew the alleged violation of Maryland Rule 16-603 (duty to
maintain trust account).
12
Rule 1.1 requires that a lawyer provide competent representation to a client. An
attorney violates Rule 1.1 if he “fails to act or acts in an untimely manner, resulting in harm
to his or her client.” Attorney Grievance Comm’n v. Brown, 426 Md. 298, 319 (2012).
Evidence that an attorney failed “to apply the requisite thoroughness and/or preparation in
representing a client is sufficient alone to support a violation of Rule 1.1.” Attorney
Grievance Comm’n v. McCulloch, 404 Md. 388, 398 (2008); see also Attorney Grievance
Comm’n v. Garrett, 427 Md. 209, 222-23 (2012).
Rule 1.3 requires a lawyer to act “with reasonable diligence and promptness.”
Failing to keep a client informed as to the status of the case and failing to respond to the
client’s inquiries violates that rule. See Attorney Grievance Comm’n v. Park, 427 Md. 180,
192 (2012).
Mr. Ndi failed to satisfy the standards of competence and diligence in both cases
investigated by Bar Counsel. In Mr. Tamon’s case he failed to re-file Mr. Tamon’s asylum
application with the immigration court in the proper format by the stated deadline, and the
asylum application was dismissed as a result. When Mr. Ndi filed a motion to reopen on
Mr. Tamon’s behalf, he incorrectly stated that Mr. Tamon had been ordered removed in
absentia and failed to include the supporting evidence that had been submitted with the
original pro se application. As a result, that motion was denied. He also failed to file a
timely motion to reconsider that decision, and the untimely motion he did file failed to state
any appropriate rationale. In Mr. Shonga’s case, Mr. Ndi violated the standards of
competence and diligence by failing to pay Mr. Shonga’s medical bill from Maryland
Healthcare Clinics, as he had promised.
13
Rule 1.4 requires a lawyer, among other things, to “keep the client reasonably
informed about the status of the matter” and “promptly comply with reasonable requests
for information.” Rule 1.4(a)(2), (a)(3). See Attorney Grievance Comm’n v. Van Nelson,
425 Md. 344, 354-55 (2012).
Mr. Ndi failed to promptly inform Mr. Tamon that his asylum application had been
deemed abandoned and that he had been given 30 days to voluntarily leave the county. Mr.
Tamon learned that his asylum application had been dismissed only when he called Mr.
Ndi’s office in May 2007 to check on the status of his case. In Mr. Shonga’s case, Mr. Ndi
violated Rule 1.4 by failing to respond to Mr. Shonga’s multiple telephone calls concerning
his unpaid medical bills.
Rule 1.16 requires in part that:
(d) Upon termination of representation, a lawyer shall take steps
to the extent reasonably practicable to protect a client’s interests, such
as giving reasonable notice to the client, allowing time for employment
of other counsel, surrendering papers and property to which the client
is entitled and refunding any advance payment of fee or expense that
has not been earned or incurred. The lawyer may retain papers relating
to the client to the extent permitted by other law.
An attorney violates Rule 1.16(d) when the attorney abandons representation of a client,
refuses to return records, and refuses to engage in further communications. Attorney
Grievance Comm’n v. Logan, 390 Md. 313, 318-19 (2005). In Mr. Shonga’s case, Mr. Ndi
violated Rule 1.16(d) when, after issuing Mr. Shonga a portion of his settlement check, he
refused to communicate with him and failed to pass along the remainder of the settlement
proceeds.
14
Mishandling Money Matters
We agree with the hearing judge that Mr. Ndi violated Rule 1.5 (fees), Rule 1.15
(safekeeping property), and former Maryland Rule 16-604 (trust account – required
deposits).
Rule 1.5(a) provides, in part that “[a] lawyer shall not make an agreement for,
charge, or collect an unreasonable fee or an unreasonable amount for expenses.” The rule
goes on to elaborate on factors used to determine a reasonable fee. The reasonableness of
a fee is not measured solely at the outset of the representation; indeed, an otherwise-
reasonable fee can become unreasonable if the lawyer fails to earn it. Attorney Grievance
Comm’n v. Garrett, 427 Md. 209, 224 (2012) (an otherwise-reasonable fee became
unreasonable because of the respondent-attorney’s neglect of the client’s matter and
abandonment of the client’s representation); Attorney Grievance Comm’n v. Patterson, 421
Md. 708, 732 (2011) (an otherwise-reasonable fee became unreasonable because of the
respondent-attorney’s lack of competence and diligence in representing the client).
In Mr. Shonga’s case, Mr. Ndi violated Rule 1.5(a) when he took a fee for his
unauthorized practice of law in Maryland. Moreover, he apparently retained settlement
funds to which he was not entitled – specifically, the $2,500.00 that was owed to Maryland
Healthcare Clinics.
Rule 1.15(a) requires, in pertinent part, that a lawyer “hold property of clients or
third persons that is in a lawyer’s possession in connection with a representation separate
from the lawyer’s own property.” In particular, the rule requires that funds be kept in an
15
attorney trust account. See Attorney Grievance Comm’n v. Hamilton, 444 Md. 163, 188
(2015). Rule 1.15 further requires that:
(d) Upon receiving funds or other property in which a client or
third person has an interest, a lawyer shall promptly notify the client or
third person. Except as stated in this Rule or otherwise permitted by
law or by agreement with the client, a lawyer shall deliver promptly to
the client or third person any funds or other property that the client or
third person is entitled to receive and, upon request by the client or third
person, shall render promptly a full accounting regarding such property.
(e) When a lawyer in the course of representation of a client is
in possession of property in which two or more persons (one of whom
may be the lawyer) claim interests, the property shall be kept separate
by the lawyer until the dispute is resolved. The lawyer shall distribute
promptly all portions of the property as to which the interests are not in
dispute.
Mr. Ndi violated Rule 1.15(a) when he failed to hold Mr. Shonga’s settlement funds
in an attorney trust account separate from his own personal funds. He violated Rule 1.15(d)
because he failed to promptly deliver funds to the medical providers to whom Mr. Shonga
owed money for treatment arising from the accident. Mr. Ndi received Mr. Shonga’s
settlement check on April 29, 2016, but did not pay his medical providers for months and,
in one case, nearly a year, afterward. He never paid Maryland Healthcare Clinics. Mr. Ndi
further violated Rule 1.15(d) when he failed to respond to Mr. Shonga’s attempts to obtain
an accounting of those funds and payments.
Mr. Ndi violated Rule 1.15(e) in Mr. Shonga’s case because he failed to keep funds
that were in dispute in a separate account. Mr. Ndi, on behalf of Mr. Shonga, received
$17,000 in settlement proceeds. He represented to Mr. Shonga that he would pay all of
Mr. Shonga’s medical bills from the settlement and then “see what was left.” The
16
settlement check was not deposited into an attorney trust account, an escrow account, or
other account separate from Mr. Ndi’s own funds. While he paid Mr. Shonga $8,000.00,
paid himself $5,500.00, and smaller amounts for medical bills, the disposition of the
remaining funds remains in question. Those funds have not been kept separate in violation
Rule 1.15(e).
Former Maryland Rule 16-6046 provided, in pertinent part, that:
Except as otherwise permitted by rule or other law, all funds, including
cash, received and accepted by an attorney or law firm in this State from
a client or third person to be delivered in whole or in part to a client or
third person, unless received as payment of fees owed the attorney by
the client or in reimbursement for expenses properly advanced on
behalf of the client, shall be deposited in an attorney trust account in an
approved financial institution.
In Mr. Shonga’s case, Mr. Ndi did not deposit the settlement proceeds into an attorney
trust account but apparently used a personal account to hold and disburse the settlement
funds.
Ignoring Jurisdictional Limitations
We agree with the hearing judge that Mr. Ndi violated Rule 5.5 (unauthorized
practice of law), Rule 7.1 (communications concerning lawyer’s services), and Rule 7.5
(firm names and letterheads).
Rule 5.5 provides, in part:
(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.
6
As indicated above, this rule has been re-codified as Maryland Rule 19-404.
17
(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. Ndi engaged in the unauthorized practice of law in violation of Rule 5.5(a) and
(b). He represented Mr. Shonga in a personal injury matter in Maryland while not licensed
to practice law in this State. He visited Mr. Shonga at home in Maryland and offered to
represent him in a personal injury action arising out of an accident in Baltimore. He in fact
did so, as memorialized in their written contingency fee agreement, then negotiated a
settlement with an insurance company, and accepted an offer on behalf of Mr. Shonga.
Mr. Ndi thus held himself out as an attorney licensed to practice law in Maryland
and failed to properly disclose his jurisdictional limitations to Mr. Shonga. His website
and some of the letterheads he used also failed to note his jurisdictional limitations.
Rule 7.1 provides, in part:
A lawyer shall not make a false or misleading communication
about the lawyer or the lawyer’s services. A communication is false or
misleading if it:
(a) contains a material misrepresentation of fact or law, or omits
a fact necessary to make the statement considered as a whole not
materially misleading.
Rule 7.5 provides, in part:
(a) A lawyer shall not use a firm name, letterhead or other
professional designation that violates Rule 7.1. A trade name may be
used by a lawyer in private practice if it does not imply a connection
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with a government agency or with a public or charitable legal services
organization and is not otherwise in violation of Rule 7.1.
(b) A law firm with offices in more than one jurisdiction may
use the same name in each jurisdiction, but identification of the lawyers
in an office of the firm shall indicate the jurisdictional limitations on
those not licensed to practice in the jurisdiction where the office is
located.
Mr. Ndi made multiple false or misleading statements about his services in violation
of Rules 7.1(a) and 7.5. Specifically, his June 20, 2016 letter to Bar Counsel used
letterhead that failed to disclose that he was licensed only in New York and that his practice
was limited to federal immigration matters. His July 26, 2016 and March 16, 2017 letters
to Bar Counsel used letterhead that failed to state that his practice was limited to federal
immigration matters. See Attorney Grievance Comm’n v. Johnson, 363 Md. 598 (2001)
(finding a violation where attorney was admitted to practice only in Virginia and the
District of Columbia, but his only office was located in Maryland and he did not indicate
his jurisdictional limitations on the firm’s letterhead).
Mr. Ndi also violated Rules 7.1(a) and 7.5 when he advertised, by way of a website,
his practice within the firm of Okedi, Ndi & Associates. The website identified Mr. Ndi
and Gini Okedi as the firm’s attorneys and stated that they practiced in several areas of law
including Personal Injury, Employment Law, Family Law, Criminal Law, “DUI/Traffic,”
and “General Litigations.” Neither the advertisement nor any other page on the website
stated that Mr. Ndi was licensed to practice law only in New York or that he was limited
to practicing immigration law in Maryland.
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Lying, Cheating, and Stealing
We agree with the hearing judge that Mr. Ndi violated Rule 8.1 (bar admission and
disciplinary matters) and various provisions of Rule 8.4 (misconduct).
Rule 8.1 provides:
An applicant for admission or reinstatement to the bar, or a
lawyer in connection with a bar admission application or in connection
with a disciplinary matter, shall not:
(a) knowingly make a false statement of material fact; or
(b) fail to disclose a fact necessary to correct a misapprehension
known by the person to have arisen in the matter, or knowingly fail to
respond to a lawful demand for information from an admissions or
disciplinary authority, except that this Rule does not require disclosure
of information otherwise protected by Rule 1.6.
During Bar Counsel’s investigation of Mr. Tamon’s complaint, Mr. Ndi
misrepresented that he engaged only in the practice of immigration law when that was not
true. In addition, during the investigation of Mr. Shonga’s complaint, he misrepresented
to Bar Counsel that “additional bills” were unknown to him when the settlement sheet that
he prepared for Mr. Shonga identified a bill for Maryland Healthcare Clinics. During the
pendency of both investigations, Mr. Ndi repeatedly failed to respond to Bar Counsel’s
lawful requests for information completely or in a timely manner.
Rule 8.4 provides, in pertinent part that it is professional misconduct for a lawyer
to:
(a) violate or attempt to violate the Maryland Lawyers’ Rules
of Professional Conduct, knowingly assist or induce another to do so,
or do so through the acts of another;
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(b) commit a criminal act that reflects adversely on the lawyer’s
honesty, trustworthiness or fitness as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit, or
misrepresentation;
(d) engage in conduct that is prejudicial to the administration of
justice.
Mr. Ndi violated each of those provisions.
As a consequence of his violating multiple rules of professional conduct, Mr. Ndi
violated Rule 8.4(a). See Attorney Grievance Comm’n v. Foltz, 411 Md. 359, 411 (2009)
(internal citations omitted).
Mr. Ndi violated Rule 8.4(b) with regard to Mr. Shonga’s matter. It is not necessary
that an attorney be charged with, or convicted of, a crime to have violated Rule 8.4(b). It
is only necessary that there be clear and convincing evidence that the attorney committed
a criminal offense and that the criminal conduct reflected adversely on the lawyer’s honesty
trustworthiness or fitness as an attorney. See, e.g., Attorney Grievance Comm’n v.
Garland, 345 Md. 383, 394-95, (1997). Mr. Ndi’s misappropriation of funds entrusted to
him for Mr. Shonga is a crime pursuant to Maryland Code, Business Occupations &
Professions (“BOP”) Article, §§10-306 and 10-606; see Attorney Grievance Comm’n v.
Hamilton, 444 Md. 163 (2015). Mr. Ndi’s unauthorized practice of law in Mr. Shonga’s
matter is a misdemeanor. BOP §§10-601 and 10-606.
The false statements to Bar Counsel in violation of Rule 8.1(a) were
misrepresentations that also violated Rule 8.4(c). Additionally, Mr. Ndi violated Rule
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8.4(c) when he misappropriated portions of Mr. Shonga’s settlement, to which Mr. Shonga
or his medical providers were entitled.
Finally, an attorney who engages in conduct that violates both Rules 8.4(b) and (c)
also usually violates Rule 8.4(d). Attorney Grievance Comm’n v. Reinhardt, 391 Md. 209,
222 (2006). Mr. Ndi’s misconduct, taken as a whole, brings the profession into disrepute
and was prejudicial to the administration of justice in violation of Rule 8.4(d). It impeded
the prompt resolution of Mr. Tamon’s asylum application based on the merits of that
application. It also meant that the settlement in Mr. Shonga’s case did not achieve its full
purpose.
III
Sanction
Aggravating and Mitigating Factors
In deciding on an appropriate sanction for professional misconduct, this Court
considers not only the misconduct itself, but also any aggravating or mitigating
circumstances and has looked to a list of factors identified by the American Bar
Association. See Attorney Grievance Comm’n v. Woolery, 456 Md. 483, 499 n. 10 (2017)
(listing aggravating and mitigating factors).
The hearing judge found that there were numerous aggravating circumstances
surrounding Mr. Ndi’s misconduct. She found that Mr. Ndi had a selfish motive because
he knew that he should not be engaged in a practice in Maryland beyond federal
immigration law and told Bar Counsel in June and July 2016 that he was adhering to that
restriction shortly after he had represented Mr. Shonga in a personal injury matter.
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The hearing judge found that Mr. Ndi had engaged in a pattern of misconduct in that
he failed to act competently and diligently on behalf of both Mr. Tamon and Mr. Shonga
and failed to communicate with both of those clients in a timely and honest manner.
The hearing judge further found that Mr. Ndi had committed multiple violations of
the rules involving two different clients and had engaged in bad faith obstruction of Bar
Counsel’s investigation by ignoring numerous requests for information and making false
statements when he did respond to some of those requests.
The hearing judge found that Mr. Ndi had failed to acknowledge the wrongfulness
of his conduct, when he blamed Mr. Tamon for his own mistakes in the immigration case,
and failed to participate in the disciplinary proceedings before the hearing judge.
The hearing judge found that both Mr. Tamon and Mr. Shonga, as immigrants, were
vulnerable victims of Mr. Ndi’s misconduct. She also found that Mr. Ndi had failed to
make restitution to either client.
The hearing judge found an additional aggravating factor in that the trust account
violations, unauthorized practice of law, and misappropriation are all independent
violations of the law.
Finally, the hearing judge found that there was a likelihood that the misconduct was
likely to be repeated.
The hearing judge also found that, as a member of the New York Bar since 2003,
Mr. Ndi had substantial experience in the practice of law – another aggravating factor.
The hearing judge found that, by not appearing in the disciplinary proceeding, Mr.
Ndi failed to establish any mitigating circumstances. We note, however, that, while Mr.
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Ndi was temporarily in delinquent status with the New York Bar, there is no evidence in
the record of any prior discipline against Mr. Ndi – usually a mitigating factor – and that
the hearing judge did not make a finding of the converse aggravating factor – prior
disciplinary offenses. While we may credit Mr. Ndi with this one mitigating factor, it has
minimal weight, especially in the context of an out-of-state attorney who likely would
already be disbarred in Maryland if he previously engaged in misconduct in this State
without being admitted here.
Summary
As this Court has frequently reiterated, the primary objective in sanctioning attorney
misconduct is to protect the general public and the integrity of the bar. Attorney Grievance
Comm’n v. Trye, 444 Md. 201, 224 (2015).
Bar Counsel recommended that Mr. Ndi be disbarred. Although Mr. Ndi violated a
baker’s dozen of the rules of professional conduct in his representation of Mr. Tamon and
Mr. Shonga and the hearing judge found a total of 11 aggravating factors, we do not simply
tote up the number of possible violations and aggravating factors to arrive at an appropriate
sanction. There can be a certain amount of “piling on” when the same underlying conduct
implicates numerous rules. Ultimately, the sanction must be tailored to the particular
conduct. However, the case for disbarment is heightened when violations related to basic
standards of practice, the handling of client funds, and trustworthy behavior, are committed
by an attorney who is not authorized to practice in Maryland to begin with.
In choosing to conduct his practice within the geographical confines of Maryland,
Mr. Ndi subjected that practice to the consumer protection rules that govern legal practice
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in Maryland. While this case arose out of the representation of just two clients, it exposed
serious issues as to how Mr. Ndi was practicing law in Maryland as an out-of-state attorney
and as to how he dealt with Bar Counsel. Mr. Ndi’s failure to participate in these
proceedings means that he has not even made the simple assertion that the proven
misconduct was an aberration, rather than an exemplar, of his practice.
The attorney in this case was not a novice, yet he practiced personal injury law
where he was not licensed to do so, he mishandled client money, he misled the regulatory
authority, and he defaulted in the proceeding charged with determining the truth as to his
conduct. This was more than negligence or good intentions gone astray. In such a case,
disbarment is called for, unless there is very strong mitigation. Here there is none. That is
why we issued an order disbarring Mr. Ndi.
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