Attorney Grievance Comm'n of Md. v. Allenbaugh

450 Md. 250

148 A.3d 300

Attorney Grievance Commission of Maryland

v.Mark Howard Allenbaugh

No. 9, 25, Sept. Term, 2016

Court of Appeals of Maryland.

October 27, 2016

Argued by: Amy S. Paulick, Assistant Bar Counsel (Glenn M. Grossman, Bar Counsel, Attorney Grievance Commission of Maryland) for Petitioner.

No argument of behalf of Respondent.

Barbera, C.J., Greene, Adkins, McDonald, Watts, Hotten, and Getty, JJ.

Watts, J.

This attorney discipline proceeding involves a lawyer who failed to competently represent clients in two separate matters by failing to file a brief in an appeal and failing to obtain visas for a client and family in an immigration case, failed to communicate with a client, failed to perform work for which he had been paid, failed to keep a client's funds in an attorney trust account, delayed proceedings in an appeal, knowingly failed to respond to Bar Counsel, and engaged in conduct that would negatively impact the perception of the legal profession of a reasonable member of the public.

Mark Howard Allenbaugh (“Allenbaugh”), Respondent, faces disciplinary action for two distinct instances of misconduct. The first matter is a reciprocal discipline case (“the reciprocal discipline matter”). On April 16, 2015, Bar Counsel, on behalf of the Attorney Grievance Commission, Petitioner, filed with this Court a “Petition for Disciplinary or Remedial Action,” alleging that the United States Court of Appeals for the Fourth Circuit (“the Fourth Circuit”) had suspended Allenbaugh from the practice of law before the Fourth Circuit for two years, based on his failure to competently and diligently represent a client and to respond to court orders. In the petition, Bar Counsel alleged that Allenbaugh's misconduct before the Fourth Circuit violated the Maryland Lawyers' Rules of Professional Conduct (“MLRPC”)¹ and sought reciprocal discipline.

This petition initiated AG No. 9 in this Court.

On April 16, 2015, this Court ordered the parties to show cause why this Court should not impose reciprocal discipline. On June 1, 2015, Bar Counsel filed in this Court a response to the show cause order, requesting that this Court suspend Allenbaugh from the practice of law in Maryland for two years. On June 2, 2015, Allenbaugh filed in this Court a response to the show cause order, requesting that this Court dismiss the request for reciprocal discipline, or, in the alternative, that this Court impose a sanction that would be less severe than suspension, i.e. , a sanction without any suspension. On June 23, 2015, this Court designated the Honorable Anne K. Albright (“the hearing judge”) of the Circuit Court for Montgomery County to hear AG No. 9.

The second matter (“the Raphael matter”) arose when Alexander Raphael (“Raphael”), a client of Allenbaugh and a citizen of Canada, filed a complaint against Allenbaugh.² On March 13, 2012, Raphael retained Allenbaugh to assist him in obtaining immigrant visas and permanent resident benefits for himself, his wife, and his two daughters. Allenbaugh accepted an up-front fee of $5,000 from Raphael, and informed Raphael that he would put together an application for an L-1 visa.³

Raphael, however, was ineligible for an L-1 visa, as he was not employed by an employer who could petition the United States Department of Homeland Security (“DHS”) on his behalf. After receiving advice from Allenbaugh's assistant, Raphael's wife and two daughters subsequently entered the United States on non-immigrant, temporary visas, as Raphael had.

Raphael's wife returned to Canada to visit family. She was barred from re-entering the United States when she arrived at the border. DHS declared her inadmissible to the United States because she had overstayed her temporary visa. Raphael attempted to obtain assistance from Allenbaugh, but his attempt went unanswered. Raphael and his two daughters eventually returned to Canada. Allenbaugh never filed any paperwork with DHS on Raphael's behalf and never sought work authorization for Raphael from the United States Department of Labor. Despite having performed no legal services for Raphael, Allenbaugh retained the $5,000 that Raphael had paid him.

On July 9, 2015, Bar Counsel filed in this Court a second “Petition for Disciplinary or Remedial Action” against Allenbaugh, charging him with violating MLRPC 1.1 (Competence), 1.4(a)(2) (Communication), 1.5(a) (Reasonable Fees), 1.15(a), 1.15(c) (Safekeeping Property), 1.16(d) (Terminating Representation),⁴ 8.1(b) (Disciplinary Matters), 8.4(d) (Conduct That is Prejudicial to the Administration of Justice), and 8.4(a) (Violating the MLRPC) in representing Raphael. This petition initiated AG No. 25 in this Court, and did not concern the conduct that was at issue in AG No. 9. On July 13, 2015, this Court designated the hearing judge to hear AG No. 25.

On September 2, 2015, Bar Counsel filed in this Court a motion to consolidate the two pending attorney discipline proceedings against Allenbaugh (AG Nos. 9 and 25). On September 3, 2015, this Court granted the motion to consolidate.

The hearing judge held motions hearings on November 9, 2015, December 14, 2015, and January 14, 2016, concerning Bar Counsel's motion for an order of default, Allenbaugh's motion to vacate the order of default, and Bar Counsel's motion for sanctions against Allenbaugh for failure to respond to discovery requests, respectively. The hearing judge scheduled an evidentiary hearing for April 4, 5, and 6, 2016. On April 4, 2016, Allenbaugh did not attend the scheduled hearing. On May 19, 2016, the hearing judge filed in this Court an opinion including findings of fact and conclusions of law, concluding that, as to the reciprocal discipline matter, Allenbaugh had violated MLRPC 1.1, 1.3, 3.2, 3.4(c), 8.1(b), 8.4(d), and 8.4(a). As to the Raphael matter, the hearing judge concluded that Allenbaugh had violated MLRPC 1.1, 1.4(a)(2), 1.5(a), 1.15(a), 1.15(c), 8.1(b), 8.4(d), and 8.4(a).⁵

Oral argument in this Court was scheduled on October 7, 2016; Allenbaugh failed to appear; and this Court issued a per curiam order in which we disbarred Allenbaugh. SeeAttorney Grievance Comm'n v. Mark Howard Allenbaugh, 450 Md. 211, 147 A.3d 392, 2016 WL 5867218, at *1 (2016). We now explain the reasons for Allenbaugh's disbarment.

BACKGROUND

After the consolidation of the reciprocal discipline matter and the Raphael matter, the hearing judge conducted a hearing and found the following facts, which we summarize.

On December 12, 2000, this Court admitted Allenbaugh to the Bar of Maryland. At the time that the following conduct occurred, Allenbaugh was also a member of the Bar of the District of Columbia, the Virginia State Bar, and the Criminal Justice Act (“CJA”) Panel for the Fourth Circuit.

The Reciprocal Discipline Matter

On September 11, 2014, the Fourth Circuit issued an order suspending Allenbaugh from the practice of law for two years. The Fourth Circuit also imposed a fine of $1,000 against Allenbaugh for abandoning a client and an additional fine of $1,000 for repeatedly ignoring orders of the court.

The Fourth Circuit's sanctions arose as the result of Allenbaugh's repeated inaction on behalf of a client, Monterio Riley (“Riley”), whom Allenbaugh was appointed to represent in the matter of United States v. Riley, No. 13-4766, pursuant to his membership on the CJA Panel. On December 13, 2013, the Fourth Circuit directed Allenbaugh to file a brief and joint appendix on or before January 17, 2014. Allenbaugh filed a motion requesting an extension to March 21, 2014, which the Fourth Circuit granted. On March 21, 2014, Allenbaugh moved to further extend the deadline to March 24, 2014. The Fourth Circuit deferred action on the motion pending the filing of the brief and joint appendix by March 24, 2014. Allenbaugh did not file the brief or appendix.

On April 7, 2014, the Fourth Circuit issued a notice under Local Rule of the Fourth Circuit 46(g), stating that it would refer Allenbaugh's failure to comply with the briefing order to the Fourth Circuit's Standing Panel on Attorney Discipline (“the Standing Panel”) unless Allenbaugh filed the brief and appendix by April 22, 2014. On April 22, 2014, Allenbaugh filed a motion to extend the deadline to April 25, 2014. The Fourth Circuit denied the motion. Allenbaugh subsequently informed the Clerk of the Court that he would file the brief and appendix by May 9, 2014. Allenbaugh failed to file the brief and appendix by that date, but informed the Clerk of the Court that he would file by May 19, 2014. Allenbaugh, ultimately, never filed the brief or joint appendix.

On June 13, 2014, the Standing Panel ordered Allenbaugh to show cause why he should not be struck as CJA appointed counsel in United States v. Riley. Additionally, the Standing Panel ordered Allenbaugh to show cause why his membership on the CJA Panel should not be revoked. Allenbaugh failed to file a response to the order to show cause by the due date of July 14, 2014.

On July 28, 2014, the Standing Panel struck Allenbaugh's appointment in United States v. Riley and revoked his membership on the CJA Panel. Additionally, the Standing Panel directed Allenbaugh to show cause why additional discipline should not be imposed against him. Allenbaugh again failed to respond to the show cause order. In an order dated September 11, 2014, the Fourth Circuit concluded that Allenbaugh had violated Rule 1.3 (Diligence) of the Virginia Rules of Professional Conduct, Rules 30(a) (Appendix to the Briefs) and 31(a) (Serving and Filing Briefs) of the Federal Rules of Appellate Procedure, Local Rule of the Fourth Circuit 31(a) (Shortened Time for Service and Filing of Briefs in Criminal Cases), and the Fourth Circuit's briefing order in Riley. By virtue of the same order, the Fourth Circuit suspended Allenbaugh for two years from the practice of law before the Fourth Circuit and fined Allenbaugh $1,000 for abandoning Riley and another $1,000 for repeatedly failing to respond to court orders.

In its order,...