“A competent attorney recognizes the limits of his or her expertise and does not put the client at risk in venturing beyond it.” Attorney Grievance Comm’n v. Yi (Misc. Docket AG No. 21, Sept. Term 2019) (Aug. 21, 2020), Slip Op. at 25. Young attorney John Xander Yi quickly learned that a violation of this fundamental principle, at least when coupled with the mismanagement of a trust account and lack of candor with Bar Counsel, can result in a legal career shorter in length than the time it took to complete law school. The Court of Appeals rejected the third-year lawyer’s “rookie mistake” defense and ordered Yi’s disbarment for a trifecta of ethical misdeeds committed in connection with a single case. Id. at 36.
Yi graduated law school in 2013, and shortly thereafter started a firm that focused on immigration matters. While 90% of his practice involved immigration law, Yi also represented a handful of clients in district court criminal matters. He had never represented anyone in the circuit court. Id. at 5.
In July 2016, Yi was retained by Sirlis Portillo de Espinoza, a Spanish-speaking immigrant indicted in the circuit court on drug charges after she was caught picking up a package of cocaine. Portillo de Espinoza signed a retainer agreement written in English, but orally explained to her in Spanish by Yi’s office assistant. The agreement required payment of a flat fee of $8,000, $3,000 of which was to be refunded if the client entered a guilty plea more than two weeks before trial. Yi was not present when the agreement was explained to his client, and never discussed it with her. Id. at 6.
Portillo de Espinoza told Yi that she picked up the cocaine under duress after being threatened by a drug dealer. During discovery, the State provided text messages from Portillo de Espinoza’s telephone which could be read both to corroborate and to undercut the duress defense. Yi concluded that his client’s only option was to accept the State’s offer that in exchange for a guilty plea, it would recommend that no jail time be served. Portillo de Espinoza followed her attorney’s advice and entered the plea more than two weeks before trial. Id. at 10-12. Yi did not refund $3,000 of the retainer as required by the agreement, but did subsequently withdraw all but $1,000 of the retainer from his trust account. Id. at 22-23.
Yi also did very little to earn his fee. He recommended that Portillo de Espinoza plead guilty without reviewing discovery provided by the State; without making any discovery requests of his own; without filing any motions; without investigating whether the search of his client’s telephone was lawful; without calculating the sentencing guidelines and advising his client of the potential sentencing range; without placing the terms of the plea offer on the record; without following up on offers of help from his client’s mental health care provider; and without advising his client of the potential immigration consequences of the plea. Id. at 25.
After the plea was entered, but before sentencing, Portillo de Espinoza terminated Yi and retained the Public Defender to represent her. When advised of Yi’s omissions by the new attorney, the trial judge allowed Portillo de Espinoza to withdraw her plea. Id. at 17. Portillo de Espinoza was subsequently tried before a jury and acquitted on all counts. She and her therapist then complained separately to Bar Counsel about Yi’s handling of the case. Id.
Yi’s responses to Bar Counsel inquiries were vague and sometimes misleading. He never fully explained why he recommended that his client accept the plea offer, and when asked why he neglected to refund the $3,000, he falsely claimed that he tried to contact Portillo de Espinoza, but she never responded. Id. at 18-19. Yi also told Bar Counsel that there was still $1,500 of his client’s money in his trust account when, in fact, there was only $1,000 left, and he failed to respond to requests for documentation regarding these funds. Id. at 20-21. The records, once obtained, were “indecipherable.” Id. at 23.
Yi was charged with a dozen violations of the Maryland Attorneys’ Rules of Professional Conduct. Bar Counsel alleged violations of the general rule that any violation of a disciplinary rule or any conduct prejudicial to the administration of justice constitutes misconduct (Rules 8.4(a) and (d)), as well specific violations based upon three distinct patterns of misconduct:
(1) Failing to meet basic professional standards regarding competent (Rule 1.1), diligent (Rule 1.3), and fully informed client representation (Rules 1.2(a), 1.4(a) and (b)). Citing omissions that led to the withdrawal of the guilty plea, the Court of Appeals agreed that an attorney violates these rules and “does not provide competent and diligent representation if the attorney does not properly examine discovery materials or adequately prepare a client and communicate viable options to that client… [,] if the attorney mishandles client trust account funds and fails to maintain adequate records of the account…[,]” or “fail[s] to discuss the potential immigration consequences of the guilty plea, fail[s] to assess the potential sentence by consulting the sentencing guidelines, fail[s] to follow up on the investigation of his client’s mental health, [and] fail[s] to place the terms of the plea offer on the record ….” Id. at 24-26 (citations omitted).
(2) Mishandling client funds by charging an unreasonable fee (Rule 1.5(a)), failing to communicate the basis for the fee (Rule 1.5(b)), and failing to refund an unearned portion of a fee (Rule 1.16(d)). The Court found that the $8,000 fee initially requested by Yi was reasonable, but that “[a] fee that is reasonable at the outset of a representation can become unreasonable if the lawyer fails to earn it.” Id. at 29. In this case, Rule 1.5(a) was violated because “the $5,000 in fees that were ultimately owed under the terms of the retainer agreement became unreasonable when Mr. Yi failed to perform any legal services of value for Ms. Portillo de Espinoza.” Id. Yi’s failure to ensure that the terms of the fee agreement were adequately communicated to his client ran afoul of Rule 1.5(b), as Yi was not even present when his employee went over it with her. The Court was also troubled by the fact that Yi never explained why he “did not take the simple step of providing a retainer agreement form in both Spanish and English.” Id. at 7, n. 4; 29. By failing to refund $3,000, as required by the agreement, and withdrawing most of those funds from his trust account, Yi was also found to have misappropriated client property in violation of Rules 1.5 and 1.16(d).
(3) Dishonesty by making false or misleading statements to Bar Counsel (Rule 8.1), and engaging in other acts of deceit (Rule 8.4(c)). Finally, Yi was found to have knowingly misrepresented material facts in response to Bar Counsel’s inquiry when he falsely said that his failure to return the unearned portion of the retainer was due to Portillo de Espinoza’s lack of cooperation, and that he held $1,500 in his trust account when he only retained $1,000. The underlying acts, in turn, constituted misappropriation of client funds and a clear act of dishonesty in violation of Rule 8.4(c). Id. at 31.
The Court set the stage for the appropriate sanction in the opening line of its opinion: “The regulation of attorneys through the attorney disciplinary process is not so much a matter of crime and punishment as one of consumer protection.” Id. at 1. The Court weighed several aggravating factors (putting his client on the road to conviction and deportation despite having a viable defense; mishandling of client funds; and misrepresentations to Bar Counsel) against the mitigating circumstances (inexperience; no prior disciplinary actions; corrective measures to improve office procedures; and an otherwise good reputation), and concluded that disbarring Yi was the only way that it could fulfill its duty to protect the public. Id. at 1; 34-35.
In reaching this conclusion, the Court observed that “[m]isappropriation of funds by an attorney is an act infected with deceit and dishonesty and ordinarily will result in disbarment in the absence of compelling extenuating circumstances justifying a lesser sanction.” Id. at 34, quoting Attorney Grievance Comm’n v. Zimmerman, 428 Md. 119, 144 (2012). Yi’s inexperience, the Court determined, was not such a circumstance. Id. at 36. By stressing Yi’s dishonesty in ordering disbarment, the Court left open the possibility of a lesser sanction, perhaps with remedial or supervisory measures to protect the public, in situations where a young lawyer is found to have simply gotten in over his or her head. The Court made clear, however, that it expects all attorneys to recognize and honor their professional limitations.