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")
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.
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),
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).
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.
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.
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
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
On July 28, 2014, the Standing Panel struck Allenbaugh's appointment in
In its order, which was admitted into evidence by the hearing judge, the Standing Panel made the following findings:
(Alterations and footnote in original).
Allenbaugh subsequently failed to report to Bar Counsel that he had been sanctioned by the Fourth Circuit. Allenbaugh's sanction by the Fourth Circuit came to the attention of Bar Counsel as a result of information provided by the Office of Disciplinary Counsel for the District of Columbia, which instituted a reciprocal discipline proceeding against Allenbaugh in the District of Columbia following the Fourth Circuit's sanctions against him.
In September 2011, Allenbaugh met Raphael, a citizen of Canada. Raphael told Allenbaugh that he and his wife and two daughters were interested in immigrating to the United States. Allenbaugh informed Raphael that he could obtain visas, permanent residency, and Social Security cards if Raphael invested $25,000 in a particular bail bonds business. Allenbaugh informed Raphael that the fee for these services would be $5,000.
Raphael subsequently came to the United States on a non-immigrant, temporary visa. Raphael then met with Allenbaugh in Allenbaugh's office in Costa Mesa, California and paid the $5,000 fee in a cashier's check to retain Allenbaugh. Allenbaugh did not place the funds in an attorney trust
The retainer agreement between Allenbaugh and Raphael specified that Allenbaugh would obtain an L-1 visa for Raphael. This particular visa, however, was inapplicable to Raphael, as it requires an immigrant to be working for a foreign firm that does business in the United States.
In July 2012, Raphael's wife and daughters came to the United States on non-immigrant, temporary visas that were valid for six months. In March 2013, Raphael's wife returned to Canada to visit family and was subsequently denied re-entry into the United States. DHS denied Raphael's wife entry into the United States because she did not have the proper type of visa and because she had stayed in the United States after her prior visa had expired.
Raphael contacted Allenbaugh requesting assistance, and forwarded his wife's documents from DHS. Allenbaugh provided no assistance to Raphael regarding Raphael's wife's inadmissibility to the United States. Because Raphael's wife was unable to re-enter the United States, Raphael and his daughters returned to Canada. If Raphael and his daughters attempt to reenter the United States, they too may be found inadmissible because they also overstayed their temporary visas and lack proper visas for those seeking to immigrate.
After returning to Canada, Raphael requested that Allenbaugh continue assisting him and his family in immigrating to the United States. Allenbaugh's assistant assured Raphael that Allenbaugh would file the necessary paperwork so that Raphael and his family could re-enter the United States. In a subsequent conversation, Allenbaugh advised Raphael to find a job in California that paid a six-figure salary to facilitate the immigration process. After July 6, 2013, Allenbaugh did not respond to Raphael's requests for updates.
Allenbaugh never drafted any documents on behalf of Raphael or his family for submission to DHS or the Department of Labor. Despite having conducted no meaningful legal work on Raphael's case, Allenbaugh did not refund any of the $5,000 that Raphael had paid him. Allenbaugh also failed to provide Raphael with any accounting of the funds or any billing statements.
In October 2013, Raphael filed a complaint against Allenbaugh with the State Bar of California. Because Allenbaugh was not licensed to practice law in California, the State Bar of California forwarded Raphael's complaint to Maryland Bar Counsel. On March 21, 2014, Bar Counsel forwarded Raphael's complaint to Allenbaugh and requested a response within fifteen days. Allenbaugh requested and was granted an extension until May 5, 2014. Allenbaugh failed to respond by the deadline.
In a letter dated May 27, 2014, Bar Counsel again requested a response to Raphael's complaint. In a letter dated June 25, 2014, Allenbaugh briefly summarized his representation of Raphael and requested another extension to respond.
On September 12, 2014, Bar Counsel sent Allenbaugh ten specific questions, including two in which Bar Counsel sought Allenbaugh's trust account records and time sheets relating to his representation of Raphael. Allenbaugh did not respond. As part of the investigation conducted by Bar Counsel, an investigator made two appointments with Allenbaugh in September and October 2015. Allenbaugh did not keep either appointment.
On April 16, 2015, Bar Counsel, on behalf of the Attorney Grievance Commission, filed with this Court a Petition for Disciplinary or Remedial Action, alleging that Allenbaugh's misconduct before the Fourth Circuit also violated the MLRPC. On the same day, this Court issued a Show Cause Order, ordering the parties to show cause in writing why this Court should not impose corresponding discipline.
On June 1, 2015, Bar Counsel filed a response to the Show Cause Order, requesting that this Court impose discipline equal to that imposed by the Fourth Circuit and enter an order suspending Allenbaugh from the practice of law in Maryland for two years. On June 2, 2015, Allenbaugh filed a response and requested dismissal of the request for reciprocal discipline. In the alternative, Allenbaugh requested a "far less severe sanction— one without any suspension[.]"
In his response, Allenbaugh asserted that a suspension from the practice of law in Maryland was inappropriate for three reasons. First, Allenbaugh contended that the Fourth Circuit is not "another jurisdiction" within the meaning of Maryland Rule 16-773(a) because the Fourth Circuit is not a State. Second, Allenbaugh argued that his due process rights were violated because he did not receive a hearing prior to being sanctioned by the Fourth Circuit, and Allenbaugh claimed that he was not given actual notice regarding the severity of the sanctions that he faced. Third, Allenbaugh maintained that his conduct before the Fourth Circuit would not be grounds for a two-year suspension in Maryland. Regarding potential mitigating factors, Allenbaugh asserted that he suffered anxiety and depression around the time of
On July 9, 2015, Bar Counsel filed with this Court the second Petition for Disciplinary or Remedial Action, thus initiating the Raphael matter. On September 2, 2015, Bar Counsel filed in this Court a Motion to Consolidate the reciprocal discipline matter and the Raphael matter. This Court granted the motion.
On September 8, 2015, Bar Counsel filed a Motion for an Order of Default in the reciprocal discipline matter, which the hearing judge granted on September 25, 2015. Bar Counsel also filed a Motion for an Order of Default in the Raphael matter. On November 9, 2015, both parties appeared before the hearing judge for a hearing on the motion for an order of default. Allenbaugh appeared, but had not filed a responsive pleading. During the hearing, Allenbaugh requested an extension so that he could seek assistance of counsel, which the hearing judge denied. The hearing judge granted the motion for an order of default in the Raphael matter, but informed Allenbaugh that he could file a motion to vacate the order of default. On December 8, 2015, Allenbaugh filed a motion to vacate the order of default. On December 14, 2015, following a hearing, the hearing judge granted the motion to vacate the order of default in the Raphael matter. The hearing judge set deadlines for discovery and scheduled three days for the evidentiary hearing: April 4, 5, and 6, 2016. On December 23, 2015, Bar Counsel moved for sanctions based on Allenbaugh's failure to respond to Bar Counsel's discovery requests. The hearing judge ordered that all of Bar Counsel's Requests for Admissions of Fact and Genuineness of Documents were deemed admitted, and Allenbaugh was precluded from introducing evidence or testimony that had been sought by Bar Counsel during discovery. Allenbaugh failed to submit a prehearing statement; and on April 4, 2016, Allenbaugh did not appear for the scheduled evidentiary hearing. The hearing judge took the matter under advisement and offered both parties the opportunity to file proposed findings of fact and conclusions of law. Allenbaugh did not submit proposed findings of fact and conclusions of law.
Neither party excepts to any of the hearing judge's findings of fact; thus, we "treat the findings of fact as established[.]" Md. R. 19-741(b)(2)(A). In an attorney discipline proceeding, this Court reviews without deference a hearing judge's conclusions of law.
As to reciprocal discipline cases, in
(Citations and internal quotation marks omitted). Maryland Rule 16-773(e), in turn, provided as follows:
(Paragraph breaks omitted). We have explained that Maryland "Rule 16-773(f) does not require us to impose identical discipline; rather, the Court has the long-established duty to impose discipline that is consistent with our attorney discipline jurisprudence by assessing, independently, the propriety of the sanction imposed by a sister jurisdiction, as well as the sanction recommended by Bar Counsel."
Neither party excepts to the hearing judge's conclusions of law. For the below reasons, we uphold the hearing judge's conclusions of law.
"A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness[,] and preparation reasonably necessary for the representation." MLRPC 1.1.
Here, clear and convincing evidence supports the hearing judge's conclusion that Allenbaugh violated MLRPC 1.1 in representing Riley in the reciprocal discipline matter. Allenbaugh repeatedly failed to file a brief and appendix in Riley's appeal, even after being granted an extension. Although, in response to this Court's show cause order, Allenbaugh claimed he believed that Riley had no meritorious claims to bring on appeal in the Fourth Circuit— and, thus, that his inaction did not prejudice Riley—such excuses do not undermine the hearing judge's findings with respect to Allenbaugh's violation of MLRPC 1.1. Allenbaugh delayed filing the brief and appendix for six months, and even failed to follow through after promising the Clerk of the Court that he would file the brief and joint appendix by certain dates. Further, "the factual findings of the originating jurisdiction are treated ordinarily as conclusive evidence of an attorney's misconduct."
Similarly, clear and convincing evidence supports the hearing judge's conclusion that Allenbaugh violated MLRPC 1.1 in representing Raphael. Specifically, Allenbaugh failed to identify the proper type of visa for which Raphael and his family might qualify, instead advising Raphael to obtain an L-1 visa, for which Raphael was ineligible. After Allenbaugh's assistant provided advice to Raphael that Raphael's wife could immigrate to the United States, Allenbaugh failed to advise Raphael regarding the type of visa that he and his family would need and how to avoid violating immigration laws. As a result, Raphael's wife was subsequently deemed inadmissible to the United States by DHS, and Raphael and his daughters eventually left the United States because his wife could not return. Further, the hearing judge specifically noted that if Raphael and his daughters seek to re-enter the United States, they may be deemed inadmissible also because they, like Raphael's wife, overstayed their temporary visas.
"A lawyer shall act with reasonable diligence and promptness in representing a client." MLRPC 1.3.
Clear and convincing evidence supports the hearing judge's conclusion that Allenbaugh violated MLRPC 1.3 in representing Riley. Over a six-month period, Allenbaugh failed to file a brief and appendix on Riley's behalf, despite being given multiple opportunities to do so.
"A lawyer shall . . . keep the client reasonably informed about the status of the matter[.]" MLRPC 1.4(a)(2).
Clear and convincing evidence supports the hearing judge's conclusion that Allenbaugh violated MLRPC 1.4(a)(2) in representing Raphael. Allenbaugh provided no substantive information regarding the visa application to Raphael, but rather deferred to his assistant, who told Raphael that Allenbaugh would "take[] care of" Raphael's visa application, while providing no further details. When Allenbaugh spoke with Raphael directly, the extent of his legal advice was to suggest that Raphael obtain a job in California with a six-figure salary. Allenbaugh was also unresponsive to Raphael's request for assistance when Raphael's wife was denied re-entry into the United States. And, after July 6, 2013, Allenbaugh stopped communicating with Raphael entirely.
MLRPC 1.5(a) stated, in relevant part:
"[I]t is well established that a fee arrangement is unreasonable if the attorney fails to perform any meaningful work on behalf of the client in exchange for the fee."
Here, clear and convincing evidence supports the hearing judge's conclusion that Allenbaugh violated MLRPC 1.5(a) in representing Raphael. Raphael paid Allenbaugh $5,000 for assistance with obtaining immigrant visas and permanent residence for Raphael and his family. Allenbaugh never drafted any immigration documents on Raphael's behalf to submit to DHS. Allenbaugh also never drafted applications for labor certification from the Department of Labor. In sum, despite having been paid, Allenbaugh never performed any work for Raphael or his family's immigration to the United States. Furthermore, Allenbaugh failed to send billing statements to Raphael and provided no accounting of how the funds were applied to work on Raphael's case. To date, Allenbaugh has still not refunded the $5,000.
MLRPC 1.15 stated, in relevant part:
"MLRPC 1.15(a) requires an attorney to maintain client funds in a trust account, separate from the attorney's personal and operating funds. . . . A lawyer's failure to maintain his or her trust account separately from his or her personal funds is a violation of MLRPC 1.15(a)."
MLRPC 1.15(c) provided:
"A client has given `informed consent' for payments not to be deposited into a client trust account only if the lawyer communicate[s] the risks associated with a fee arrangement that varies from the standard escrow arrangement."
"A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client." MLRPC 3.2. "An attorney violates [MLRPC 3.2] by delaying to take fundamental litigation steps in pursuit of the client's interest."
Clear and convincing evidence supports the hearing judge's conclusion that Allenbaugh violated MLRPC 3.2 in representing Riley. Rather than expediting litigation to pursue Riley's interests, Allenbaugh failed to file a brief and appendix, which significantly delayed the resolution of Riley's appeal. Furthermore, Allenbaugh's repeated failure to file the brief and joint appendix eventually led the Standing Panel to remove him from the case.
"A lawyer shall not . . . knowingly disobey an obligation under the rules of the tribunal except for open refusal based on an assertion that no valid obligation exists[.]" MLRPC 3.4(c). This Court has held that a lawyer violates MLRPC 3.4(c) when he or she "repeatedly fail[s] to appear in court and to produce documents as directed by court order."
Clear and convincing evidence supports the hearing judge's conclusion that Allenbaugh violated MLRPC 3.4(c) in his representation of Riley. Allenbaugh repeatedly disobeyed the Fourth Circuit's orders to file the brief and appendix in Riley's case.
"[A] lawyer in connection with a disciplinary matter, shall not . . . 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[.]" MLRPC 8.1(b). This Court has repeatedly held that a lawyer who knowingly fails to respond to Bar Counsel violates MLRPC 8.1(b).
Clear and convincing evidence supports the hearing judge's conclusion that Allenbaugh violated MLRPC 8.1(b) in the Raphael matter. Allenbaugh repeatedly failed to respond to Bar Counsel's requests for information regarding his representation of Raphael. Initially, Allenbaugh failed to respond to Raphael's complaint within fifteen days and was granted an extension to respond, but failed to respond by the new deadline as well. Subsequently, Allenbaugh responded to Raphael's complaint, but the response lacked specificity and merely summarized his representation of Raphael.
In a letter dated August 19, 2014, Bar Counsel yet again requested a response to Raphael's complaint. On August 28, 2014, Allenbaugh submitted a response that was nearly identical to the earlier response summarizing his representation of Raphael. On September 12, 2014, Bar Counsel forwarded to Allenbaugh ten questions, including two in which it sought Allenbaugh's trust account records and time sheets relating to his representation of Raphael. Allenbaugh did not respond. As part of the investigation conducted by Bar Counsel, an investigator made two appointments with Allenbaugh in September and October 2015. Significantly, Allenbaugh did not keep either appointment.
"It is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice[.]" MLRPC 8.4(d). "Generally, a lawyer violates MLRPC 8.4(d) where the lawyer's conduct would negatively impact the perception of the legal profession of a reasonable member of the public."
Clear and convincing evidence supports the hearing judge's conclusion that Allenbaugh violated MLRPC 8.4(d) in his representation of Riley. Allenbaugh failed to take any action on Riley's behalf for over six months, which is conduct that would negatively impact the perception of the legal profession of a reasonable member of the public.
Similarly, clear and convincing evidence supports the hearing judge's conclusion that Allenbaugh violated MLRPC 8.4(d) in his representation of Raphael. Allenbaugh charged Raphael $5,000 for legal services
"It is professional misconduct for a lawyer to[] violate . . . the" MLRPC. MLRPC 8.4(a).
Here, clear and convincing evidence supports the hearing judge's conclusion that Allenbaugh violated MLRPC 8.4(a). As discussed above, Allenbaugh violated MLRPC 1.1, 1.3, 1.4(a)(2), 1.5(a), 1.15(a), 1.15(c), 3.2, 3.4(c), 8.1(b), and 8.4(d).
Bar Counsel recommends that we disbar Allenbaugh. Bar Counsel initially recommended that this Court impose reciprocal discipline against Allenbaugh based on his conduct before the Fourth Circuit, in addition to his default and failure respond to Bar Counsel during the pendency of the current proceedings. Considering the circumstances of the reciprocal discipline matter and the Raphael matter in the aggregate, however, Bar Counsel now recommends disbarment. In making this recommendation, Bar Counsel specifically notes that this Court has disbarred lawyers who flagrantly neglected their clients' affairs by failing to respond to requests from clients or to inquiries from Bar Counsel. Apart from his response to this Court's show cause order in the reciprocal discipline matter, Allenbaugh did not make a recommendation with respect to the appropriate sanction.
Bar Counsel is correct that this Court has disbarred lawyers for such violations. In
Similarly, in
In
In
(Brackets, citation, and ellipses omitted). Indeed, when making a determination regarding sanctions, "[w]e look not to the number of rules broken, but to the lawyer's conduct."
Here, in the reciprocal discipline matter, Allenbaugh violated MLRPC 1.1, 1.3, 3.2, 3.4(c), and 8.4(d) by failing to file a brief and appendix on his client's behalf in an appeal.
Allenbaugh's conduct in the Raphael matter, which occurred prior to his conduct in the reciprocal discipline matter, increases the concern regarding the need to protect the public from such conduct in the future. Specifically, Allenbaugh violated MLRPC 1.1, 1.4(a)(2), 1.5(a), 1.15(a), 1.15(c), 8.1(b), and 8.4(d), demonstrating a lack of competence, a failure to communicate with Raphael, the charging of unreasonable fees, a failure to place unearned fees in trust, and a failure to respond to Bar Counsel. In the aggregate, such conduct reveals that Allenbaugh flagrantly neglected Raphael's affairs. Indeed, Allenbaugh violated MLRPC 1.4(a)(2) and 1.5(a) by failing to respond to Raphael and by retaining the $5,000 that Raphael had paid him. Allenbaugh's conduct was injurious to Raphael and his family. If Raphael and his family seek to re-enter the United States, they may be prevented from doing so by DHS because of having overstayed their previous visas. In short, Allenbaugh failed to perform meaningful legal work for Raphael and has endangered Raphael's and his family's ability to immigrate to the United States.
The hearing judge found the following aggravating factors: (1) a pattern of misconduct; (2) multiple offenses; (3) "bad faith obstruction of the attorney disciplinary proceeding by intentionally failing to comply with rules or orders of the Commission";
In addition to the serious misconduct discussed above, upon our independent review, we note the same seven aggravating factors: (1) a pattern of misconduct; (2) multiple violations of the MLRPC; (3) bad faith obstruction of the attorney discipline proceeding; (4) a refusal to acknowledge the misconduct's wrongful nature; (5) the victim's vulnerability; (6) substantial experience in the practice of law; and (7) indifference to making restitution or rectifying the misconduct's consequences.
To begin, there is a pattern of misconduct. In both the reciprocal discipline matter and the Raphael matter, Allenbaugh did not represent his client competently. Both matters involve instances in which Allenbaugh failed to take action on behalf of a client when he was obligated to do so.
Next, Allenbaugh engaged in multiple violations of the MLRPC. In the reciprocal discipline matter, Allenbaugh violated MLRPC 1.1, 1.3, 3.2, 3.4(c), and 8.4(d). In the Raphael matter, Allenbaugh violated MLRPC 1.1, 1.4(a)(2), 1.5(a), 1.15(a), 1.15(c), 8.1(b), and 8.4(d).
Allenbaugh's repeated failure to respond to Bar Counsel constitutes an obstruction of the attorney disciplinary proceeding. Allenbaugh failed to respond to Raphael's complaint when forwarded by Bar Counsel during the investigation in the instant case, failed to attend two scheduled appointments with Bar Counsel's investigator, and failed to respond to discovery requests by Bar Counsel.
Allenbaugh has not acknowledged the wrongful nature of his conduct in the Raphael matter. In his response to this Court's show cause order in the reciprocal discipline matter, Allenbaugh stated that there was no excuse for his behavior and characterized it as "unfortunate and eminently regrettable." Allenbaugh, however, has not acknowledged in any way the wrongful nature of his misconduct in the Raphael matter, nor has he demonstrated any remorse.
Raphael's status as an immigrant rendered him particularly vulnerable to Allenbaugh's misconduct.
Allenbaugh was admitted to the Maryland Bar on December 12, 2000. Thus, he has over fifteen years of experience in the practice of law, and had over a decade of experience at the time of the misconduct in the reciprocal discipline matter and the Raphael matter, constituting substantial experience in the practice of law—an aggravating factor.
Finally, Allenbaugh has not attempted to rectify his wrongdoing. He continues to retain the $5,000 that he charged Raphael and refuses to account for the funds. Additionally, Allenbaugh has continued to be unresponsive to Bar Counsel throughout this attorney discipline proceeding.
The hearing judge found that Allenbaugh provided no evidence of mitigating factors. As this Court observed in
Notably, in the Raphael matter, Allenbaugh failed to file an answer to the Petition for Disciplinary or Remedial Action or to present any mitigating evidence whatsoever with respect to his misconduct. Although a diagnosis of depression and/or anxiety at the time of a lawyer's misconduct may be a mitigating factor, in this case, the hearing judge is correct that Allenbaugh presented no mitigating evidence as to either the reciprocal discipline matter or the Raphael matter. Allenbaugh has not linked the diagnosis of depression and/or anxiety to his misconduct in the reciprocal discipline matter, or attempted to address his misconduct in the Raphael matter. Accordingly, we discern no mitigating factors. Taken together, the flagrancy of Allenbaugh's misconduct in the reciprocal discipline matter and the Raphael matter, along with the multitude of aggravating factors, warrant disbarment.
For the above reasons, on October 7, 2016, we disbarred Allenbaugh and awarded costs against him.
Anders Brief, Black's Law Dictionary (10th ed. 2014).
Although MLRPC 1.0 (Terminology) does not define "disciplinary authority," this Court has applied MLRPC 8.1(b) to failures to respond to a request by Bar Counsel for information, as opposed to failures to respond to a court's show cause order. For example, in
Given that, in the reciprocal discipline matter, the hearing judge's findings of fact indicate that Allenbaugh failed to respond to a show cause order from a three-judge panel, rather than that Allenbaugh failed to respond to Bar Counsel or a similar authority, we shall refrain from finding that clear and convincing evidence supports the hearing judge's conclusion of law that Allenbaugh violated MLRPC 8.1(b) by failing to respond to the Standing Panel's show cause orders. This circumstance does not change the outcome of the case.
