ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Jose Expedito M. GARCIA
Misc. Docket AG No. 9, Sept. Term, 2008
Court of Appeals of Maryland
Aug. 28, 2009
979 A.2d 146
Robert N. Levin, Rockville, for Respondent.
Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS and BARBERA, JJ.
BATTAGLIA, J.
Jose Expedito Garcia, Respondent, pled guilty on November 29, 2007, to the crime of conspiracy to commit immigration
Findings of Fact
Mr. Garcia, a member of the Maryland Bar since June 25, 1997, maintained an office for the practice of law in Falls Church, Virginia. Mr. Garcia is an attorney and partner in the law firm of Calonge, Garcia, and Associates, P.C. located in Falls Church, Virginia. The firm assists aliens seeking to obtain permission to work in and to secure lawful permanent residence in the United States.
On or about April 11, 2001, an alien, “N.V.,” sought the immigration services of Mr. Garcia‘s firm which resulted in the firm filing an Application for Alien Labor Certification (form ETA 750) and a Petition for Alien Worker (form I-140) with what was then the Immigration and Naturalization Services (INS), and now Citizenship and Immigration Services (CIS). Because N.V. did not have the employment background and experience needed to qualify for that position, a false letter was created and filed in support of the forms filed with INS. The letter was drafted by Mr. Garcia‘s co-conspirator and falsely stated that N.V. had been employed in the field in the Philippines from October 1995 until June 1998. Mr. Garcia knowingly signed the letter in the name of the purported employer, and further, Mr. Garcia knew that the forged letter was to be filed with INS and was material to the adjudication of N.V.‘s applications.
INS initially granted the form I-140 but later determined that the Certification for Employment was false based on information recorded in N.V.‘s passport, which revealed that10 N.V. was working on a boat during the period when he purportedly was a caregiver in the Philippines. On April 22, 2003, INS sent a letter to Mr. Garcia‘s firm stating their intent to revoke the approval of the visa petition. Subsequently, Mr. Garcia persuaded his partner to draft a letter alleging that the fraudulent Certification of Employment was “in fact a product of an honest clerical error,” and requested that the visa petition be withdrawn.
On November 29, 2007, in the United States District Court for the Eastern District of Virginia, Mr. Garcia was charged with one count of conspiracy to commit immigration fraud and was filed in the case captioned United States of America v. Jose Expedito Garcia, Case No. 1:07CR473-001. Further, on November 29, 2007, Mr. Garcia was convicted pursuant to a plea agreement under which he plead guilty to the Criminal Information charging him with conspiracy to commit immigration fraud in violation of
(Footnotes omitted.)
Based upon these findings of fact, Judge Johnson concluded that Mr. Garcia violated
Conclusions of Law
violate or attempt to violate the rules of professional conduct, knowingly assist or induce another to do so, or do so through the acts of another; - commit a criminal act that reflects adversely on the lawyer‘s honesty, trustworthiness or fitness as a lawyer in other respects;
- engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
- conduct prejudicial to the administration of justice.
Mr. Garcia did violate the Maryland Rules of Professional Conduct by signing his name on a letter “purporting to verify employment for a [v]isa application” by representing himself to be the employer of the visa applicant. Despite the fact that it was Mr. Garcia‘s partner who drafted the fraudulent letter, which on its face did not appear to make any misrepresentations of fact immediately apparent to Mr. Garcia, his action of signing the letter was clearly intended to commit a fraud, deceive, or misrepresent to INS that he was the employer of N.V. Moreover, the conviction is a serious criminal act pursuant to
It is uncontested that Mr. Garcia was convicted in the United States District Court for the Eastern District of Virginia for conspiracy to commit immigration fraud in violation of
(Footnotes omitted.)
Judge Johnson added:
Finally, during the hearing on December 17, 2008, this Court was privy to observe Mr. Garcia‘s demeanor, candor,
I. Standard of Review
In attorney discipline proceedings, this Court has original and complete jurisdiction and conducts an independent review of the record. Attorney Grievance v. McClain, 406 Md. 1, 17, 956 A.2d 135, 144 (2008); Attorney Grievance v. Whitehead, 405 Md. 240, 253, 950 A.2d 798, 806 (2008); Attorney Grievance v. Zuckerman, 403 Md. 695, 709, 944 A.2d 525, 534 (2008); Attorney Grievance v. Nussbaum, 401 Md. 612, 632, 934 A.2d 1, 12 (2007); Attorney Grievance v. Lawson, 401 Md. 536, 571-72, 933 A.2d 842, 863 (2007). We review the hearing judge‘s conclusions of law de novo.
II. Discussion
A. Findings of Fact
Both Bar Counsel and Mr. Garcia filed exceptions; none of them went to the heart of the matter. Both filed an exception with respect to Judge Johnson‘s finding that Mr. Garcia “represent[ed] himself to be the employer of the visa applicant” by signing the letter, because both note that Mr. Garcia actually signed the name of the purported employer of the visa applicant, not his own name. In the Statement of Facts, to which Mr. Garcia stipulated in his guilty plea, it was stated, “[w]hen he signed the letter in the purported employer‘s name, the defendant did not investigate the truth of the contents of the letter but believed it to be true.” We sustain both parties’ exceptions, because the record reflects that Mr. Garcia signed the purported employer‘s name, not his own name.
Bar Counsel then excepts to the hearing judge‘s finding that Mr. Garcia‘s “co-conspirator” and partner drafted the employment verification letter and asserts that Ms. Quidilla, the office manager/secretary, and not Mr. Garcia‘s law partner, drafted the employment verification letter. Based upon our review of the record, Ms. Quidilla actually prepared the em
Mr. Garcia excepts to the hearing judge‘s finding that he persuaded his partner to state in the letter withdrawing the visa application that the error was the product of an honest clerical mistake. The Statement of Facts, to which Mr. Garcia stipulated in his guilty plea, in actuality stated:
4. Although the INS initially granted the form I-140, the INS later determined that the Certification of Employment was necessarily false ... [and] CIS [Citizenship and Immigration Services] sent a letter to the defendant‘s firm announcing the intent to revoke the approval of the visa petition.
5. In response to that intent to revoke the approval of the visa petition, the defendant‘s partner ... falsely asserted that the fraudulent Certification of Employment was “in fact a product of an honest clerical error.” The defendant, who knew that he had forged the letter, persuaded his partner to include in the letter a request to withdraw the visa petition. As a result of that request, the INS granted the withdrawal....’
Mr. Garcia, then, had persuaded his partner to include in the letter a request to withdraw the visa petition, rather than, had persuaded the partner to include that the mistake was “in fact a product of an honest clerical error.” Thus, we sustain this exception.
We have reviewed the remaining findings of fact and conclude that they are supported by clear and convincing evidence.
B. Conclusions of Law
Neither Bar Counsel nor Mr. Garcia excepted to any of Judge Johnson‘s Conclusions of Law. Judge Johnson found violations of
(b) commit a criminal act that reflects adversely on the lawyer‘s honesty, trustworthiness or fitness as a lawyer in other respects;
Judge Johnson concluded that Mr. Garcia was “convicted of a federal felony [and] has committed a serious crime and engaged in professional misconduct.”13 Mr. Garcia pled guilty and was convicted and sentenced for conspiracy to defraud the United States and making a false statement related to his signing the false employer letter, knowing that it was false. A guilty plea to such offenses necessarily reflects adversely on Mr. Garcia‘s honesty and trustworthiness as a lawyer, particularly because his conduct occurred in his role as an attorney. See Attorney Grievance v. Wingerter, 400 Md. 214, 222, 929 A.2d 47, 52 (2007) (finding violation of
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
Judge Johnson concluded that “[Mr. Garcia‘s] action of signing the letter was clearly intended to commit a fraud, deceive, or misrepresent ...,” which constitutes a violation of
[Wingerter] pled guilty to misprision of a felony and the statement of facts in support detailed the circumstances in which the crime occurred. The respondent admitted being aware of facts indicating that the named co-defendants were engaging in immigration fraud, making false statements and encouraging aliens to enter this country illegally and not reporting those crimes to the proper authorities. But the respondent also admitted taking steps to conceal the conspiracy. This was evidence of not simply a passive involvement; it demonstrated an active involvement. With this active concealment as a predicate, the hearing court can hardly be faulted for concluding that the respondent engaged in conduct in violation of Rule 8.4(b) and (c)—helping and counseling violators as to how to conceal their violations is a criminal act that reflects adversely on a lawyer‘s honesty, trustworthiness or fitness in other respects—and, in so doing, also engaged in conduct involving dishonesty, fraud, deceit or misrepresentation.
Id. at 230-31, 929 A.2d at 57-58 (footnote omitted). In the instant matter, Mr. Garcia pled guilty to aiding another in committing immigration fraud, as well as to active involvement in the fraud. Clearly, this is conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of
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;
Judge Johnson found, and we agree, that Mr. Garcia violated the Rules of Professional Conduct Rules 8.4(b)-(c). This conclusion sufficiently satisfies the parameters of a
Finally,
(d) engage in conduct that is prejudicial to the administration of justice;
Judge Johnson ruled that Mr. Garcia intentionally defrauded and deceived the immigration authorities, thereby “put[ting] into jeopardy Garcia‘s integrity as an attorney and hinder[ing] the proper administration of justice.” We have recognized that public confidence in the legal profession is a critical facet to the proper administration of justice, and conduct that negatively impacts on the public‘s perception of the courts or the legal profession violates
III. Sanction
Bar Counsel recommends that Mr. Garcia be disbarred, while Mr. Garcia recommends that we impose a two-year suspension from the practice of law to run concurrent with the one-year suspension imposed by New York, which commenced on June 12, 2008.
We evaluate every attorney grievance matter on its own merits, taking into account the facts and circumstances involved. See Attorney Grievance Comm‘n v. Powell, 328 Md. 276, 300, 614 A.2d 102, 114 (1992); Attorney Grievance Comm‘n v. Kemp, 303 Md. 664, 680, 496 A.2d 672, 680 (1985). The goal of attorney discipline is protection of the public, rather than the punishment of the erring attorney. Attorney Grievance v. Goff, 399 Md. 1, 30-31, 922 A.2d 554, 571 (2007); Attorney Grievance v. Mba-Jonas, 397 Md. 690, 702-03, 919 A.2d 669, 677 (2007); Attorney Grievance v. Rees, 396 Md. 248, 254, 913 A.2d 68, 72 (2006); Attorney Grievance v. Kreamer, 387 Md. 503, 533-34, 876 A.2d 79, 97 (2005). Imposing sanctions that are commensurate with the nature and gravity of the violations and the intent with which they were committed is consistent with, and in fact furthers, that purpose, Goff, 399 Md. at 30-31, 922 A.2d at 571; Attorney Grievance v. Stein, 373 Md. 531, 537, 819 A.2d 372, 375 (2003), in that such sanctions promote general and specific deterrence, Attorney Grievance Comm‘n v. Sliffman, 330 Md. 515, 529, 625 A.2d 314, 321 (1993); protect the integrity of the legal profession, Attorney Grievance v. Cassidy, 362 Md. 689, 698, 766 A.2d 632, 637 (2001); further the public‘s confidence in the legal profession, Attorney Grievance v. Christopher, 383 Md. 624, 639, 861 A.2d 692, 701 (2004); Stein, 373 Md. at 537, 819 A.2d at 375; Attorney Grievance v. Powell, 369 Md. 462, 474, 800 A.2d 782, 789 (2002); and take account of the facts and circumstances of each particular case. See Attorney Grievance v. Atkinson, 357 Md. 646, 656, 745 A.2d 1086, 1092 (2000); Attorney Grievance v. Gavin, 350 Md. 176, 197, 711 A.2d 193, 204 (1998).
When an attorney‘s conduct involves intentional dishonesty, fraud, deceit or misrepresentation, we do not discuss “degrees” of dishonesty, but generally order disbarment, absent compelling extenuating circumstances. Attorney Grievance v. Vanderlinde, 364 Md. 376, 418, 773 A.2d 463, 488 (2001). In Vanderlinde, we explained that disbarment was warranted because dishonest conduct by a lawyer is beyond excuse:
Upon reflection as a Court, in disciplinary matters, we will not in the future attempt to distinguish between degrees of intentional dishonesty based upon convictions, testimonials or other factors. Unlike matters relating to compe
tency, diligence and the like, intentional dishonest conduct is closely entwined with the most important matters of basic character to such a degree as to make intentional dishonest conduct by a lawyer almost beyond excuse. Honesty and dishonesty are, or are not, present in an attorney‘s character. Disbarment ordinarily should be the sanction for intentional dishonest conduct.
Id. at 397, 773 A.2d at 475. Compelling extenuating circumstances, we have held, must be “present and associated with the illegal or improper acts at the time committed.” Id. at 397, 773 A.2d at 475.
The Vanderlinde dictates are applicable, because the hearing judge found, and we agree, that “[Mr. Garcia‘s] action of signing the letter was clearly intended to commit a fraud, deceive, or misrepresent.” Such a finding warrants disbarment, absent compelling extenuating circumstances. See Id. at 418, 773 A.2d at 488.
Mr. Garcia states that “there are a number of mitigating factors that, taken together,” amount to compelling extenuating circumstances. He posits that “he falsely signed what he believed to be a true statement for the purpose of saving a client‘s ‘once-in-a-lifetime’ opportunity to apply for a green card at the request of someone he trusted“; that “[h]is primary motive was to protect the interest of the client“; and that “[h]e did not intend to profit personally from his actions.” Mr. Garcia‘s argument that an intentional and admitted fraud perpetrated against the immigration authorities is mitigated by a purported protection of the interests of a client, from which he failed to personally profit, is fatuous. Violations of
Mr. Garcia posits that his contrition before the hearing judge is compelling, but it is axiomatic that the vast majority of attorneys who face misconduct charges are contrite before the hearing judges, because we consider lack of remorse to be an aggravator. Mr. Garcia also argues that it is compelling
Disbarment in the present case is consistent with the sanction we imposed in Wingerter, 400 Md. at 236, 929 A.2d at 60. In Wingerter, Chief Judge Robert M. Bell, writing on behalf of a unanimous court, ordered the disbarment of an attorney for his involvement in a conspiracy to defraud the INS. Wingerter had been employed as in-house counsel for Global Recruitment and Immigration Services, Inc., a company that came under investigation by the federal government for immigration fraud, and pled guilty to misprision of a felony. In his guilty plea, Wingerter acknowledged that he took no steps to prevent the fraud and was active in the concealment of the crime:
“[He] did not notify federal judicial or law enforcement authorities of the fraud [or] take steps to stop the fraud [and he] took at least two steps to conceal the crime. First, [he] instructed employees at Global to start writing their initials next to his signature whenever they forged it, but further instructed the same employees to refrain from marking their initials whenever they forged an immigrant‘s or an employer‘s signature on an ETA 750 application (or related documents). [He] instructed the employees so be
cause he was concerned that if the employees began to initial the forged signatures of the immigrants and employers on the ETA 750 applications, the initials would expose the fact that the signatures were in fact forgeries. Second, [he] repeatedly informed the Department of Labor and certain immigrant clients that certain of the employer sponsors had decided to abandon certain ETA 750 applications for economic reasons when in fact he knew or should have known that it was because the government was investigating Global.”
Id. at 221-22, 929 A.2d at 52 (footnote omitted). The hearing judge found substantial facts to show that Wingerter intended to defraud the government and reached the conclusion, with which we agreed, that Wingerter violated
“5. That the statement of facts is unambiguous in describing dishonest, fraudulent and deceitful conduct by the Respondent over a time frame from 2000 to 2004 while Respondent was employed as in-house counsel for Global Recruitment and Immigration Services, Inc. (GRIS) based in Falls Church, Virginia.
6. That the conduct referenced in paragraph 5 included but was not limited to.
- Respondent‘s awareness that his signature on various immigration documents was being forged.
- Respondent‘s awareness that the signatures of immigrant clients of GRIS were being forged.
- Respondent‘s awareness that a light box was being utilized to forge signatures.
- Respondent‘s awareness that hundreds of ETA 750 applications were submitted on behalf of Cleaners of America (a potential employer of immigrant clients of GRIS) even though Cleaners of America did not have the capacity to hire such large numbers of immigrants.
- Respondent‘s awareness that he was not, in his capacity as GRIS’ in house legal counsel, the attorney of record for the applicants referenced in paragraph d.
Respondent‘s awareness that GRIS was under investigation by the Federal government regarding the submission of hundreds of ETA 750 forms on behalf of immigrant clients. - Respondent‘s awareness [that] GRIS was misinforming its immigrant clients regarding the status of their ETA 750 applications.
- Respondent‘s awareness of GRIS charging its immigrant clients fees to prepare ETA 750 forms.”
Id. at 219-20, 929 A.2d at 50-51 (internal quotations omitted). We applied the Vanderlinde standard of disbarment in Wingerter and explained that “absen[t] compelling extenuating circumstances justifying a lesser sanction, intentional dishonest conduct by a lawyer will result in disbarment.” Id. at 235, 929 A.2d at 60, quoting Attorney Grievance v. Ward, 396 Md. 203, 218, 913 A.2d 41, 50 (2006). We determined that Wingerter‘s “‘stellar’ practice, his pro bono commitment, his lack of pecuniary over-reaching or motivation and his mentoring,” although “commendable and ... not [to be] disregarded,” did not meet the “standard ... [of] compelling extenuating circumstances that would justify a lesser sanction than disbarment.” Id. at 236, 929 A.2d at 60.
In the present case, Judge Johnson‘s finding that Mr. Garcia “clearly intended” to defraud the immigration authorities is remarkably similar to the Wingerter findings. Although Mr. Garcia attempts to distinguish his circumstances from those of Wingerter‘s by arguing that Wingerter overlooked hundreds of instances of immigration fraud, whereas he only was convicted of a single instance of immigration fraud, we have repeatedly stated that “one instance of misconduct can be so egregious as to warrant the imposition of a significant sanction,” such as disbarment. Attorney Grievance v. Gisriel, 409 Md. 331, 386, 974 A.2d 331, 363 (2009) (disbarring an attorney after a single instance of misappropriating funds by forging a client‘s signature on a check); see also Attorney Grievance v. Roberts, 394 Md. 137, 146, 166-67, 904 A.2d 557, 562, 574-75 (2006) (same). We also are cognizant that like
Mr. Garcia also attempts to distinguish himself from Wingerter by likening his case to other cases in which we have not ordered disbarment. The cases of Attorney Grievance Comm‘n v. Parsons, 310 Md. 132, 527 A.2d 325 (1987), Attorney Grievance Comm‘n v. Maxwell, 307 Md. 600, 516 A.2d 570 (1986), and Prince George‘s County Bar Association v. Vance, 273 Md. 79, 327 A.2d 767 (1974), to which Mr. Garcia refers, are inapposite because they were decided before our bright-line admonition in Vanderlinde that disbarment results from “intentional dishonest conduct,” absent compelling extenuating circumstances. 364 Md. at 418, 773 A.2d at 488.
Mr. Garcia also relies on Attorney Grievance v. Potter, 380 Md. 128, 844 A.2d 367 (2004) and Attorney Grievance v. Floyd, 400 Md. 236, 929 A.2d 61 (2007), cases in which we ordered 90-days suspensions for violations of
In the case of Floyd, Floyd applied for a job with the Federal Trade Commission and failed to disclose, among other things, that her current employer and her primary reference was actually her husband. Floyd‘s employer/husband also wrote a letter to the FTC indicating that he would pay her $55,000 per year to remain at his firm—a letter that ultimately caused the FTC to raise her initial salary from $42,724 per year to $51,269 per year. After hiring Floyd, the FTC learned that her husband had provided the positive recommen-
Mr. Garcia‘s reliance on Attorney Grievance v. Sweitzer, 395 Md. 586, 911 A.2d 440 (2006) is also misplaced, because Sweitzer actually supports the imposition of disbarment in this case. In Sweitzer, we indefinitely suspended an attorney after he signed his estranged wife‘s name on a Motor Vehicle Administration, title-transfer Gift Certificate Form, without her authority, to take sole possession of the family car. When discussing sanctions, we explained that when “the government has been the victim of a violation of
Indefinite suspension has been deemed appropriate when the proof of a violation of
Maryland Rules of Professional Conduct 8.4(c) and(d) has fallen short of proof of fraudulent intent.*
*
*
We have ordered disbarment when the findings of fact supporting the violation of
Maryland Rules of Professional Conduct 8.4(c) and(d) reflected an intent to defraud the government.
Id. at 601, 911 A.2d at 449. In Sweitzer, the hearing judge did not find an intent to defraud the government, so that an indefinite suspension was ordered. See id. at 603, 911 A.2d at 450. In the present case, the hearing judge did explicitly conclude that Mr. Garcia exhibited an intent to defraud the immigration authorities: “[Mr. Garcia‘s] action of signing the letter was clearly intended to commit a fraud, deceive, or
Mr. Garcia also alleges that:
“Other cases involving criminal conduct by an attorney which did not lead to disbarment include: Attorney Grievance Comm‘n of Maryland v. Saul, 337 Md. 258, 653 A.2d 430 (1995) (lawyer convicted of bank fraud suspended indefinitely rather than disbarred in a reciprocal discipline case due to the absence of personal gain and lack of active participation in the fraud); Attorney Grievance Comm‘n of Maryland v. Gittens, 346 Md. 316, 697 A.2d 83 (1997) (lawyer convicted of first degree theft that initially included a mail fraud indictment suspended indefinitely rather than disbarred in a reciprocal discipline case after addiction to cocaine was found to be the root cause of the misconduct); Attorney Grievance Comm‘n of Maryland v. Mollick, 401 Md. 168, 931 A.2d 1092, Misc. Docket AG No. 32, Sept. Term 2007 (Joint Petition for Indefinite Suspension by Consent upheld by the Court despite the attorney‘s conviction for misprision of a felony as corporate counsel for a company accused of securities fraud and filing false financial statements, i.e., ‘illegal pyramid schemes‘); Attorney Grievance Comm‘n of Maryland v. Holt, 402 Md. 350, 936 A.2d 848, Misc. Docket AG No. 12, Sept. Term 2005 (lawyer serving as an Administrative Law Judge with U.S. Department of Agriculture who was convicted of drug possession and aiding and abetting the possession of cocaine suspended indefinitely rather than disbarred despite a finding of close connection between the lawyer‘s conduct and the practice of law); Mr. Holt was reinstated in In re: Reinstatement of Holt, 402 Md. 350, 936 A.2d 848 (2007). Attorney Grievance Comm‘n of Maryland v. Eckel, 392 Md. 75, 896 A.2d 304, Misc. Docket AG No. 75, Sept. Term 2005 (Joint Petition for Reprimand by Consent approved by the court despite the attorney‘s conviction of possession for cocaine in violation of
MRPC 8.4(b) ).”
Mr. Garcia, finally, posits that the New York proceedings instituted against him and his partner should influence our disciplinary sanction in this case. This case is not one of reciprocal discipline, but one premised upon conviction of a serious crime under
To conclude, in the present case, Judge Johnson found, in an immigration matter, that Mr. Garcia “intended to commit a fraud, deceive, or misrepresent,” and there are no compelling extenuating circumstances. Accordingly, we order disbarment.
IT IS SO ORDERED; RESPONDENT SHALL PAY ALL COSTS AS TAXED BY THE CLERK OF THIS COURT, INCLUDING COST OF ALL TRANSCRIPTS, PURSUANT TO
BELL, C.J., GREENE and MURPHY, JJ., dissent.
Dissenting Opinion by GREENE, J., in which BELL, C.J., and MURPHY, J., join.
I agree with the majority‘s conclusion that Respondent violated
Respondent resides in Maryland and is a member of the Maryland Bar, but maintains an office in Virginia for a practice limited exclusively to matters before the United States Citizenship and Immigration Service (CIS). The conduct that is the basis for his violation of
Because Respondent is licensed to practice law in New York and Maryland, he is subject to the disciplinary regulations governing the practice of law in both states. Respondent has been a member of the New York Bar since 1995 and a member of the Maryland Bar since June 25, 1997. New York acted first to initiate disciplinary proceedings. On June 12, 2008, the Appellate Division of the New York Supreme Court, the body that decides attorney disciplinary matters in that State, entered an interim Order of suspension, and on July 31, 2008, as a sanction for Respondent‘s misconduct in this matter, the court suspended Respondent from the practice of law in that state for a period of one year, effective June 12, 2008. In re Jose E.M. Garcia, 53 A.D.3d 1032, 860 N.Y.S.2d 923 (2008). Under New York law, although immigration fraud is a federal felony, and the crime “has no New York felony analog, it is considered a ‘serious crime’ (
“an attorney who in another jurisdiction (1) is disbarred, suspended, or otherwise disciplined, (2) resigns from the bar while disciplinary or remedial action is threatened or pending in that jurisdiction, or (3) is placed on inactive status based on incapacity,”
Maryland Rule 16-773(a) , and bar counsel has filed a Petition for Disciplinary or Remedial Action in the Court of Appeals, pursuant toRule 16-751(a)(2) .Maryland Rule 16-773(b) .
Attorney Grievance v. Weiss, 389 Md. 531, 556-57, 886 A.2d 606, 621 (2005) (Bell, C.J., dissenting). Even Judge Cathell, writing for the majority in Weiss, 389 Md. at 555, 886 A.2d at 620, pointed out that ”
In Weiss, this Court reaffirmed that “we usually do not deviate from the original jurisdiction‘s sanction,” but “we will do so when the conduct involved is of such [a] nature that it would not be tolerated from any member of the Bar in this State if the conduct occurred here.” 389 Md. at 552, 886 A.2d at 618. Although Petitioner did not seek reciprocal discipline in this case, either by initiating or processing the case as such, the facts and circumstances involved conduct that warranted a sanction by the New York Supreme Court, and that court did
It should be noted that while
Regarding the proper sanction to be imposed in attorney disciplinary matters, we recently reiterated, in Attorney Grievance v. Wingerter, 400 Md. 214, 234, 929 A.2d 47, 59-60 (2007), the purpose and goal of attorney disciplinary proceedings:
This Court has made clear that the well settled purpose and goal of attorney discipline proceedings is to protect the public, not to punish the erring attorney. That purpose is achieved, the public is protected, when the sanctions are commensurate with the nature and gravity of the violations and the intent with which they were committed. While the circumstances of each case—the nature and effect of the violations—are critical, and ordinarily decisive, factors in determining the severity of the sanction to be imposed, there are other important factors we have identified, including the lawyer‘s state of mind which underlies the misconduct, actual or potential injury flowing from the misconduct, the duty of this Court to preserve the integrity of the profession, the risk to the public in allowing the Respondent to continue in practice, and any mitigating or aggravating factors, the attorney‘s remorse for the misconduct, the likelihood of repetition of the misconduct, and the attorney‘s prior grievance history. (Citations omitted.)
We have stated on numerous occasions that “absent compelling circumstances conduct involving fraud or deceit will result in disbarment.” Attorney Grievance v. Molovinsky, 300 Md. 291, 296, 477 A.2d 1181, 1184 (1984). We have explicated the rationale for this position:
It is well settled that [d]isbarment ordinarily should be the sanction for intentional dishonest conduct. This is so, because [u]nlike matters relating to competency, diligence and the like, intentional dishonest conduct is closely en-
twined with the most important matters of basic character to such a degree as to make intentional dishonest conduct by a lawyer almost beyond excuse. Thus, like in the case of a misappropriation of entrusted funds, in the absence of compelling extenuating circumstances justifying a lesser sanction, intentional dishonest conduct by a lawyer will result in disbarment. (Citations omitted.)
Attorney Grievance v. Ward, 396 Md. 203, 218, 913 A.2d 41, 50 (2006). As to extenuating circumstances, we pointed out in Attorney Grievance v. Vanderlinde, 364 Md. 376, 397, 773 A.2d 463, 475 (2001) (quoting Attorney Grievance v. Flynn, 283 Md. 41, 45, 387 A.2d 775, 777 (1978)), that the compelling extenuating circumstances must be “present and associated with the illegal or improper acts at the time committed . . . .” As to the underlying criminal act giving rise to disciplinary action, we have said that “conduct occurring after the crime does not constitute an extenuating circumstance; rather, only mitigating factors present at the time of the commission of the crime are relevant.” Molovinsky, 300 Md. at 297, 477 A.2d at 1184-85. We have defined “mitigating factors,” pursuant to the American Bar Association Standards for Imposing Lawyer Sanctions (ABA Standards) (1986), as including
absence of a prior disciplinary record; absence of a dishonest or selfish motive; personal or emotional problems; timely good faith efforts to make restitution or to rectify consequences of misconduct; full and free disclosure to disciplinary board or cooperative attitude toward proceedings; inexperience in the practice of law; character or reputation; physical or mental disability or impairment; delay in disciplinary proceedings; interim rehabilitation; imposition of other penalties or sanctions; remorse; and finally, remoteness of prior offenses.
Sweitzer, 395 Md. at 599, 911 A.2d at 448 (citing Attorney Grievance v. Glenn, 341 Md. 448, 488-89, 671 A.2d 463, 483 (1996), for its application of the ABA Standards, Standard 9.31).
Similarly, in Attorney Grievance v. Lawson, 401 Md. 536, 576-77, 933 A.2d 842, 866 (2007), we determined that Mr. Lawson engaged in actions that “involved dishonesty and deceit and were prejudicial to the administration of justice.” We “analyz[ed] analogous cases and consider[ed] all of the mitigating and aggravating circumstances, including both Respondent‘s relative youth and inexperience and his lack of remorse and apprehension of the wrongness of his actions,” and indefinitely suspended Mr. Lawson, with the right to reapply for admission after one year. Lawson, 401 Md. at 585-86, 933 A.2d at 871. In Attorney Grievance v. Harrington, 367 Md. 36, 48, 51, 785 A.2d 1260, 1267, 1269 (2001), we also determined that the attorney had “engaged in dishonesty, deceit and misrepresentation,” but imposed only an indefinite suspension. Each of these cases is consistent with our requirement that we “appl[y] the facts and circumstances . . . to determine the appropriate sanction” in each attorney grievance case, even in matters involving intentional dishonest conduct. Attorney Grievance v. Duvall, 373 Md. 482, 497, 819 A.2d 343, 352 (2003) (quoting Attorney Grievance v. Lane, 367 Md. 633, 647, 790 A.2d 621, 628-29 (2002)).
In that case, we focused on the nature of Mr. Sweitzer‘s ethical duty, his mental state, the extent of the actual or potential injury caused by the lawyer‘s misconduct, and any aggravating or mitigating circumstances. See ABA Standards, Standard 3.0; see also American Bar Association Lawyer‘s Manual on Professional Conduct 101.3001 (2003). We considered the first two factors, the nature of the ethical duty violated and the lawyer‘s state of mind, simultaneously, noting that Mr. Sweitzer violated
As to the third factor, the amount of the actual or potential injury caused by the attorney‘s misconduct, we pointed out that Mr. Sweitzer “withdrew the Gift Certification Form prior to it becoming the basis for a loss by the State of the transfer tax moneys. . . .” Sweitzer, 395 Md. at 604, 911 A.2d at 451. We balanced Mr. Sweitzer‘s “attempt to defraud the State of what was a relatively modest amount . . . against the injury to the public.” Sweitzer, 395 Md. at 605, 911 A.2d at 451. We did not assess that the injury to the public was so great as to warrant a disbarment. Finally, we considered mitigating circumstances and noted that Mr. Sweitzer did not have a prior disciplinary record and that his violations were not the result of a pattern of misconduct. Sweitzer, 395 Md. at 605, 911 A.2d at 451.
Applying the same Standards that we recognized in Sweitzer to the present case, and recognizing that we must consider the facts and circumstances of each case to determine the appropriate sanction, I would hold, in the present case, that an indefinite suspension is a more appropriate sanction than disbarment. Not unlike Mr. Sweitzer, Mr. Garcia knowingly misrepresented his authority to sign the employment certification letter. Although he did not know all the facts concerning whether the statements contained in the employment certification letter were true, Mr. Garcia‘s decision to sign the letter as though he were the employer was, nonetheless, deceptive. Mr. Garcia, however, took steps to withdraw from the conspiracy and attempted to persuade his law partner to withdraw the visa application. “[A] conspirator‘s membership in a conspiracy continues until he withdraws from the conspiracy by affirmative action.” United States v. Urbanik, 801 F.2d 692, 697 (4th Cir.1986) (noting, however, that “[w]ithdrawal must be shown by evidence that the former conspirator acted to defeat or disavow the purpose of the conspiracy“). Although, in the present case, the Government discovered the false statement prior to Mr. Garcia‘s request to withdraw the application, the Government did not issue the visa to N.V. and the applicant did not benefit from his or Mr. Garcia‘s misdeeds.
In the present case, the injury to the public, in effect, was reduced when no visa was issued or procured by fraud. Though a crime was committed, Mr. Garcia was punished for his complicity in the conspiracy. In that regard, the injury to the public was rectified. Penultimately, two other factors played a significant role in producing Mr. Garcia‘s criminal behavior. Although he knew it was wrong and fraudulent to sign the certification letter as he did, Mr. Garcia‘s motive was to protect his client‘s interest in submitting the visa application before the termination of the amnesty deadline. See Attorney Grievance v. Breschi, 340 Md. 590, 602, 667 A.2d 659, 665 (1995) (noting that motive plays a large part in the Court‘s determination of the appropriate sanction). In that regard, Mr. Garcia‘s conduct was not as egregious as Mr. Wingerter‘s acts to conceal his involvement in hundreds of fraudulent immigration applications over a period of four years. Wingerter, 400 Md. at 219-20, 929 A.2d at 50-51 (holding that the attorney failed to prove any extenuating circumstances that would support a sanction less than disbarment). In Wingerter, Respondent made no attempt to withdraw from the conspiracy or try to minimize the harm done to the public.
Finally, the mitigating factors in this case also support suspension, not disbarment. Here, Respondent demonstrated remorse throughout the course of the underlying criminal proceedings and these disciplinary proceedings. See Attorney Grievance v. McCulloch, 397 Md. 674, 689, 919 A.2d 660, 668 (2007) (identifying remorse as a factor when declining to disbar Ms. McCulloch for misappropriating funds). Both the criminal court judge and the hearing judge in this case commented on Mr. Garcia‘s cooperation and genuine remorse
Accordingly, I dissent. Chief Judge Bell and Judge Murphy concur with the views expressed herein.