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In re Gadda

August 26, 2002

IN THE MATTER OF MIGUEL GADDA, A MEMBER OF THE STATE BAR.


The opinion of the court was delivered by: Watai, J.

PUBLIC MATTER - DESIGNATED FOR PUBLICATION

OPINION ON REVIEW

In this original disciplinary proceeding, respondent Miguel Gadda seeks review of the recommendation of a State Bar Court hearing judge that he be disbarred. The hearing judge found that respondent repeatedly failed to perform legal services competently (Rules Prof. Conduct, rule 3-110(A)),*fn1 failed to refund unearned fees promptly upon termination of employment (rule 3-700(D)(2)), failed to adequately communicate with clients (Bus. & Prof. Code, § 6068, subd. (m)),*fn2 failed to return files and papers promptly upon a client's request at the termination of employment (rule 3-700(D)(1)), commingled client funds with his own funds in his client trust account (rule 4-100(A)), and committed acts involving moral turpitude by issuing trust account checks without sufficient funds to cover them (§ 6106).

Our independent review of the record shows that respondent's misconduct extended from 1994 to 1999 and that respondent was previously disciplined for similar misconduct in 1990. We agree with the hearing judge's recommendation that disbarment is warranted under the circumstances for the protection of the public, the courts, and the legal profession.

PROCEDURAL BACKGROUND

On July 25, 2000, the State Bar filed a Notice of Disciplinary Charges (NDC) against respondent. The State Bar filed a second NDC against respondent on August 14, 2000. After respondent filed responses to these NDCs, the cases were consolidated on September 25, 2000.

On March 5, 2001, the parties filed a stipulation of facts.

Trial in this matter commenced on March 13, 2001, and concluded on March 28, 2001.*fn3 The hearing judge filed his decision recommending respondent's disbarment on July 30, 2001. Because the hearing judge recommended disbarment, he properly ordered that respondent be involuntarily enrolled as an inactive member of the State Bar as required by section 6007, subdivision (c)(4), and Rules of Procedure of the State Bar, rule 220(c). The hearing judge's order of involuntary inactive enrollment became effective on August 2, 2001, and respondent has remained ineligible to practice law in this state since that time. Respondent filed a timely request for review on August 27, 2001.*fn4

JURISDICTION OF THE STATE BAR COURT*fn5

Respondent initially challenges this court's jurisdiction to discipline him for his conduct in federal and immigration courts, asserting that attorney conduct standards regarding practice before such courts, as well as discipline for a breach of any such standards, is within the exclusive jurisdiction of the federal government. He argues that this disciplinary proceeding in the State Bar court is an attempt by the State of California to regulate the practice of law in the federal courts or to place restrictions or limitations on persons appearing before the federal courts and agencies within the state. He contends that since he practices only immigration law, the State Bar of California does not have jurisdiction over him.

Respondent was admitted to the practice of law in California on August 4, 1975, and has been a member of the State Bar since that time. We acknowledge that, as the State Bar concedes, neither this court nor the California Supreme Court has jurisdiction to stop respondent from practicing law in federal court. (Ex Parte McCue (1930) 211 Cal. 57, 66.) We also acknowledge that neither this court nor the California Supreme Court may stop respondent from practicing law in or before federal agencies. (Silverman v. State Bar of Texas (5th Cir. 1968) 405 F.2d 410, 413-415.) However, respondent is licensed by the California Supreme Court to practice law in this state. And, based on that license, respondent applied to practice and practices law before the federal courts in this state. In addition, it is without question that respondent is permitted to practice law and represent individuals before the Board of Immigration Appeals (BIA), the immigration courts, and the Immigration and Naturalization Service (INS) only because he is licensed to practice law by the California Supreme Court.*fn6 (8 C.F.R. §§ 1.1(f), 292.1(a)(1); see also 8 C.F.R. § 292.1(e).)

The Supreme Court of California has the inherent power to discipline attorneys licensed to practice in the State of California. (In re Paguirigan (2001) 25 Cal.4th 1, 7; Obrien v. Jones (2000) 23 Cal.4th 40, 48; In re Attorney Discipline System (1998) 19 Cal.4th 582, 592-593; accord, § 6100.) The State Bar Court, as an administrative arm of the Supreme Court, has the statutory authority to conduct disciplinary proceedings and make recommendations of discipline to the Supreme Court. (In re Attorney Discipline System, supra, 19 Cal.4th at pp. 599-600.) The focus of the disciplinary proceeding is the protection of the public, the courts, and the legal profession in California from attorneys who do not adhere to the standards and responsibilities of the legal profession as set forth in the State Bar Act (§ 6000 et seq.) and the Rules of Professional Conduct. (See Rules Proc. of State Bar, tit. IV, Stds. for Atty. Sanctions for Prof. Misconduct (standards), std. 1.3; rule 1-100(A).) In this regard, the California Supreme Court clearly held more than 60 years ago that,"[i]f an attorney admitted to practice in the courts of this state commits acts in reference to federal court litigation which reflect on his integrity and fitness to enjoy the rights and privileges of an attorney in the state courts, proceedings may be taken against him in the state court. [Citations.]" (Geibel v. State Bar (1938) 11 Cal.2d 412, 415, see also rule 1-100(D).) We conclude that this holding should be extended to attorneys practicing before federal agencies such as the BIA, the immigration courts, and the INS. (Accord Stroe v. I.N.S. (7th Cir. 2001) 256 F.3d 498, 501-502, 504 [Seventh Circuit referred attorney to the Illinois Attorney Registration and Disciplinary Commission for misconduct that attorney committed before the BIA expressly because attorney was "a member of the Illinois bar"].) In fact, respondent was disciplined in 1990 by the California Supreme Court for misconduct he previously committed while practicing law before the BIA, the immigration courts, and the INS. (Gadda v. State Bar (1990) 50 Cal.3d 344 (Gadda I).)

Respondent contends that the federal regulations pertaining to discipline of attorneys practicing before the BIA, the immigration courts, and the INS (8 C.F.R. §§ 3.102 et seq., 292.3 et seq.) preempt any state attempts to discipline attorneys practicing before these federal agencies. However, we note that these federal regulations themselves state that the EOIR (of which the BIA and the immigration courts are a part) and the INS may, in addition to or in lieu of initiating disciplinary proceedings against an attorney, notify any appropriate federal or state disciplinary agency of a complaint filed against the attorney. (8 C.F.R. §§3.106(d), 292.3(g).) These regulations also state that, if any final administrative decision is issued imposing sanctions other than a private censure, the EOIR or the INS must notify the disciplinary agency in every jurisdiction where the disciplined attorney is authorized to practice. (Ibid.) Thus, the regulations themselves contemplate that the disciplinary agency of a state in which an attorney is admitted to practice has authority to discipline the attorney for misconduct occurring in immigration courts.

In addition, various federal courts, as well as the BIA, have indicated that the disciplinary agencies of the states in which immigration lawyers are licensed have jurisdiction to discipline these lawyers for misconduct occurring while appearing before the BIA, the immigration courts, the INS, and the federal courts in immigration cases. For example, in Matter of Lozada (BIA 1988) 19 I. & N. Dec. 637, 639, the BIA held that a motion to reopen deportation proceedings on the basis of ineffective assistance of counsel should indicate, among other things, "whether a complaint has been filed with appropriate disciplinary authorities regarding [the alleged inadequate] representation, and if not, why not." In In Re Rivera-Claros (BIA 1996) 21 I. & N. Dec. 599, 603-604, the BIA clarified that one reason for this requirement of filing a complaint with the appropriate state disciplinary authority is to allow the BIA (and the immigration courts) to more easily monitor the conduct of immigration attorneys, since the federal regulations in existence at that time for the disciplining of immigration attorneys were not comprehensive rules governing the practice of immigration law and since the BIA (and the immigration courts) relied on the disciplinary process of the relevant local jurisdiction as the primary means of identifying and correcting misconduct. Moreover, federal courts have held that the BIA acted within its discretion in imposing the Lozada requirements (see, e.g., Saakian v. I.N.S. (1st Cir. 2001) 252 F.3d 21, 26; Lu v. Ashcroft (3d Cir. 2001) 259 F.3d 127, 129, 132-133) and have specifically approved the requirement of filing a complaint with the appropriate local disciplinary agency (e.g., Lu v. Ashcroft, supra, 259 F.3d at pp. 133-135; Stroe v. I.N.S., supra, 256 F.3d at pp. 501-502, 504).

As the foregoing authorities recognize, the ability of the BIA, the immigration courts, the INS, and the federal courts to discipline attorneys who practice only before them does not deprive a state bar of jurisdiction to discipline one of its members for engaging in misconduct while practicing before the BIA, the immigration courts, the INS, and the federal courts. We find respondent's argument in this respect to be specious.*fn7

CULPABILITY

Respondent's Background

Respondent came to the United States as an immigrant, and upon becoming an attorney admitted to practice law in California, he set up an immigration practice. By the year 1996, he had 500 to 600 active cases and was working Mondays through Saturdays. He maintained approximately this case load through the year 2000.

His clients came to the office and were seen on a first come, first served basis. They arrived at 9:00 a.m., as they were told to do, and often did not see respondent until 12:00 noon or later, or did not see him at all. The client appointments lasted approximately 10 to 20 minutes.

The immigration judges (IJs) who testified in the hearing department stated that respondent frequently missed court appearances and frequently seemed unprepared.

Respondent hired other attorneys on a contract basis to make court appearances for him and to file appeals. One such attorney was William R. Gardner.

There were signature stamps for respondent and for attorney Gardner for use by respondent's office staff.

Between the years 1998 and 2000, due to medical problems, respondent started working mostly at home, going to the office to see clients only on Tuesday and Thursday afternoons and some Saturdays.

The Saba Matter

On or about October 4, 1991, the four Saba children, Anita, Perfecto, Samson, and Mariam, applied for political asylum. On May 14, 1993, the INS denied their political asylum applications because they failed to establish either past persecution or fear of future persecution. Sometime before November 2, 1993, the Saba children retained respondent to represent them before the immigration court. Respondent dealt mainly with their father. On November 2, 1993, respondent filed a notice of appearance on their behalf with the immigration court.

On November 3, 1993, the Saba children requested a de novo reconsideration of their applications for political asylum by the immigration court. However, on September 25, 1995, respondent represented them at an immigration court hearing, at which time the Saba children withdrew their asylum applications, and the IJ ordered them to voluntarily depart from the United States by September 6, 1996.

On June 18, 1996, Mrs. Saba became a naturalized citizen. Through error on the part of his office, respondent failed thereafter to take any action to adjust the status of the Saba children based on their mother's citizenship. As of June 18, 1996, the Saba children were all under the age of 21 and were minors for immigration law purposes.

On September 6, 1996, respondent filed a motion to reopen deportation proceedings on behalf of the Saba children to apply for adjustment of status to lawful permanent residents. Respondent also requested an extension of time for the Saba children to depart voluntarily, which request was denied. Although the IJ initially granted the motion to reopen deportation proceedings on October 22, 1996, on December 16, 1996, the IJ vacated the order granting the motion and entered a new order denying the motion.

On January 15, 1997, the last possible day, respondent filed a notice of appeal with the BIA. On January 22, 1997, the BIA rejected the appeal because it was not accompanied by the $110 filing fee. On January 31, 1997, respondent resubmitted the appeal with the required fee, but on January 23, 1998, the BIA again dismissed the appeal as untimely.

On November 25, 1997, Mr. Saba became a naturalized citizen. On April 29, 1998, respondent filed a petition on behalf of the Saba children for a stay of deportation until the conclusion of the school year. At some point during the proceedings regarding this petition, respondent left the Saba children and their parents unrepresented before an INS officer. Upon respondent's advice, the Saba children signed a statement that they would voluntarily depart the United States before the stay expired, and Mr. and Mrs. Saba signed statements that they understood that the Saba children would have to leave the United States at the expiration of the stay and that they would make arrangements for their children's departure. A stay was granted until August 1, 1998, but the Saba children did not depart the United States on or before that time. Respondent told them that he was taking care of everything. Respondent agreed to file an appeal of the BIA decision.

On August 18, 1998, respondent instructed attorney Gardner to file a petition for a writ of habeas corpus and a stay of deportation on behalf of the Saba children in the United States District Court for the Northern District of California.*fn8 Respondent routinely employed Gardner on a contract basis to make master calendar hearing appearances in the immigration courts and to handle Ninth Circuit matters. Respondent only occasionally looked at Gardner's federal court pleadings before they were filed, although Gardner had gained all of his experience in federal court through respondent's office. Respondent did not supervise Gardner because he believed that Gardner did not need any supervision, as he was admitted to practice law in California, the federal district court, and the Ninth Circuit.

On August 24, 1998, the Saba children were ordered to report for deportation on September 21, 1998. On respondent's advice, they did not comply with this order.

Pursuant to respondent's request, at some point Gardner filed a petition for writ of habeas corpus on behalf of the Saba children. On September 24, 1998, the federal district court issued an order to show cause and a stay of deportation to permit a hearing on the writ. On February 8, 1999, the district court issued a decision ordering the deportation order vacated and remanding the matter to the immigration court with instructions to reopen deportation proceedings and to evaluate the children's eligibility for adjustment of status.

The district court remanded the matter upon its sua sponte finding of ineffective assistance of counsel, stating that among the egregious series of errors, going beyond mere procedural defects, "Petitioners [the Saba children] did not file for an adjustment of Petitioners' status within a reasonable time after Mrs. Saba became a naturalized citizen, which was three months before the last day to depart voluntarily. As immediate relatives of a citizen, Petitioners would have been given priority and their application expedited. Instead, the application was filed on the last day to depart, which caused Petitioners to disobey the voluntary departure order, which in turn led to the deportation order." (Saba v. I.N.S. (N.D. Cal. 1999) 52 F. Supp.2d 1117, 1126.) "But for counsels' ineffectiveness, the outcome of the proceedings would probably have been different: Petitioners would have become permanent U.S. residents." (Ibid.)

On October 6, 1999, respondent appeared on behalf of the Saba children at an immigration court hearing. At that time, the IJ refused to allow respondent to represent the Saba children and continued the matter to allow the children to obtain new counsel. Thereafter, the Saba children retained attorney Juliette Topacio Sarmiento.

In June 2000, after submitting supplemental documentation, the adjustment of status hearing was held for Samson and Mariam, the children who were still minors, and their adjustment of status was granted. Attorney Sarmiento testified in the hearing department that, had the application for adjustment of status been filed at the time Mrs. Saba became a naturalized citizen, all the Saba children would have qualified for adjustment of status because they were minors. Instead, the cases of Anita and Perfecto were still in deportation proceedings.

Over the course of respondent's representation, the Saba children paid respondent over $3,000. Although attorney Sarmiento requested that respondent refund this money to the Saba children, respondent had not refunded any fees as of the time of trial in this matter.

The Hearing Judge's Conclusions*fn9

As to this matter, respondent was charged with two counts of violating rule 3-100(A), which provides that an attorney "shall not intentionally, recklessly, or repeatedly fail to perform legal services with competence." Respondent was also charged with one count of violating rule 3-700(D)(2), which provides that a member whose employment has terminated shall promptly refund any unearned fee. The hearing judge determined that the State Bar proved by clear and convincing evidence that respondent willfully committed all of the charged acts of misconduct.

Discussion

Upon our independent review of the record, including the stipulation of facts, we conclude that, as to this matter, respondent is culpable of the two charged counts of recklessly and repeatedly failing to perform legal services with competence in willful violation of rule 3-110(A). We conclude that respondent performed legal services incompetently: (1) by leaving the children alone, unrepresented, in the middle of a hearing before an immigration officer and advising them to sign a voluntary departure form; (2) by failing to advise the Saba children to depart voluntarily on or before September 6, 1996; (3) by failing to move to reopen deportation proceedings until September 6, 1996; (4) by failing to file a petition for review with the Ninth Circuit; (5) by failing to file for adjustment of status for the children within a reasonable time after Mrs. Saba became a naturalized citizen on June 18, 1996, and instead filing for adjustment of status on the children's last day to depart voluntarily, approximately three months later; and (6) by failing to supervise Gardner in filing a petition for writ of habeas corpus.

Respondent contends that the hearing judge should have found that the failure to perform legal services competently in this matter was partly or entirely the fault of Gardner, since the mistakes occurred primarily in federal court. We disagree. The record establishes that respondent repeatedly and recklessly failed to represent the Saba children competently prior to the time Gardner became involved in the matter.*fn10

We also conclude that respondent failed to refund unearned fees promptly upon termination of employment in willful violation of rule 3-700(D)(2). To justify retention of legal fees, respondent was required to perform more than he did (i.e., minimal services that were of no value to the client). (Cf. In the Matter of Harris (Review Dept. 1992) 2 Cal. State Bar Ct. Rptr. 219, 229.) Here, the record fails to support a conclusion that respondent performed services worth over $3,000, the amount the Saba children paid. The only arguably competent actions respondent took in providing legal services to the Saba children were (1) filing a new application for political asylum, (2) obtaining a stay of deportation until August 1, 1998, and (3) filing a petition for a writ of habeas corpus. Respondent testified that he charged about $1,500 to $2,000 for representing clients in political asylum proceedings, which representation would include appearing at all asylum hearings, but in this case, the record indicates he merely filed the application for asylum and subsequently appeared at a hearing and withdrew it. Thus, he could not have earned $1,500 for that representation and must have earned far less, at most $500. Respondent also testified that he charged $250 to $500 or more for proceedings such as motions to reopen, depending upon the number of court appearances required. Because it appears from the record that respondent had to make only one court appearance and one appearance before an immigration officer for the petition for stay of deportation, we determine that respondent earned at most $500 for these proceedings. Finally, respondent testified that he paid attorney Gardner $1,000 to $1,500 to file the petition for a writ of habeas corpus. Gardner, however, testified that respondent gave him only $200 after the writ hearing. Even assuming that Gardner was paid $1,500, respondent and Gardner still only earned at most $2,500 for their legal services, and respondent was entitled to far less if he paid Gardner only $200 for the writ proceedings.

Significantly, respondent's failure to act competently in providing legal services to his clients was, as we have concluded, reckless and repeated, rather than the result of simple negligence. Moreover, although we have estimated the amount which respondent may have earned at most in this matter, we need not determine the precise amount which respondent and Gardner earned in this case, as we have concluded that respondent did not earn the entire amount of attorney fees the Sabas paid to him but failed to refund any of the Sabas' fees as of the time of trial in this matter and thereby violated rule 3-700(D)(2). (In the Matter of Phillips (Review Dept. 2001) 4 Cal. State Bar Ct. Rptr. 315, 324.)

The Garcia Matter

J. Sacramento Garcia, Maria Luisa Garcia, and Noel C. Garcia entered the United States without inspection in 1989. In May 1996, the Garcias met with Charles Stephens, a nonattorney immigration consultant, to obtain legal residency. Stephens advised the Garcias to file for political asylum, and the Garcias did so with Stephens's assistance. After becoming aware of the Garcias' illegal entry from their asylum application, the INS issued an order to show cause on September 6, 1996. On September 6, 1996, the matter was continued to November 12, 1996, to allow the Garcias to retain an attorney.

Stephens referred the Garcias to respondent. The Garcias met respondent immediately before the master calendar hearing on November 12, 1996. Respondent agreed to represent them for $1,000, and they paid him $500 that day.

At the hearing on November 12, 1996, respondent appeared with the Garcias, and the immigration court scheduled an individual hearing for January 22, 1997.*fn11 The Garcias did not understand what was going on and heard the judge and the clerk mention many dates. They thought they heard February 17, 1997, and understood this to be their hearing date. They received no letter or telephone call from respondent as to the next hearing date.

Respondent appeared at the hearing on January 22, 1997, but the Garcias did not, and the IJ ordered their deportation in absentia.

On or about February 6, 1997, the Garcias paid the remaining $500 to respondent.

At some point after the hearing of January 22, 1997, the Garcias received a telephone call from respondent's office telling them that they had missed their hearing date and were ordered deported. They went to see respondent immediately, and respondent told them to go directly to the IJ to explain why they had missed the hearing. They went without respondent, and the IJ told them to see their attorney, who would know what to do.*fn12

On February 10, 1997, respondent filed a motion to reopen with the immigration court on the ground that the Garcias misunderstood the correct hearing date. The IJ denied the motion on February 26, 1997.

On June 11, 1997, respondent filed an appeal with the BIA and moved the court to reopen the matter on the ground that, at the hearing on January 22, 1997, the IJ failed to give the Garcias the proper admonitions regarding a failure to appear. The BIA denied the motion to reopen on January 28, 1999, and dismissed the appeal.

Prior to February 26, 1999, the Garcias terminated respondent's services. Respondent has not returned to the Garcias any of the fees they paid him. On February 26, 1999, attorney Donald Unger filed with the BIA on behalf of the Garcias a motion to reopen and motion to reconsider based on ineffective assistance of counsel. On the same date, he also filed a petition for review of the BIA's decision of January 28, 1999, in the Ninth Circuit. The petition for review has been denied, but the motion before the BIA was pending at the time of trial in this matter.

The Hearing Judge's Conclusions

As to this matter, respondent was charged with one count of violating rule 3-110(A) and one count of violating rule 3-700(D)(2). He was also charged with one count of violating section 6068, subdivision (m), which provides that it is the duty of an attorney "[t]o respond promptly to reasonable status inquiries of clients and to keep clients reasonably informed of significant developments in matters with regard to which the attorney has agreed to provide legal services." Specifically, the NDC charged respondent with violating section 6068, subdivision (m): (1) "[b]y failing to inform the [Garcias] that they had to appear at the January 22, 1997 hearing or they would be deported"; (2) by "failing to inform [the Garcias] that [respondent] provided ineffective assistance of counsel"; and (3) "[b]y failing to respond to the [Garcias'] telephone calls of January 27, 1997, January 30, 1997, February 1, 1997, February 3, 1997[,] and February 4, 1997." The hearing judge determined that the State Bar proved by clear and convincing evidence that respondent willfully violated rule 3-110(A) but concluded that the State Bar had failed to present clear and convincing evidence that respondent had willfully failed to return unearned fees or to respond promptly to the Garcias' reasonable status inquiries. The hearing judge also declined to find that respondent had failed to keep the Garcias reasonably informed of significant developments in their case by failing to advise them of their hearing date because that misconduct was part of the basis of his conclusion that respondent violated rule 3-110(A).

Discussion

Upon our independent review, we conclude that respondent recklessly failed to perform legal services competently in willful violation of rule 3-110(A) in this matter: (1) by failing to give his clients proper notice of the hearing of January 22, 1997; and (2) by failing to prepare his clients for their hearing of January 22, 1997.

Respondent contends that the hearing judge's conclusion of culpability in the Garcia matter was erroneous, since (1) respondent gave the Garcias notice of the hearing, and in any event the Garcias received a written notice of the hearing and received independent verbal notice from the immigration court, through an interpreter; and (2) respondent advised the Garcias to come to his office to prepare for the hearing, but the Garcias failed to appear at the office.

In making the first argument, respondent unconvincingly relies on his own version of the events. Contrary to respondent's argument, the Garcias testified that they did not see the court's written notice until they went to respondent's office after they had missed the hearing and that there was no interpreter at the master hearing to inform them of the date of their next hearing. They testified that since they were not given notice of the next hearing, they had to rely on the date they thought they heard the judge give, which date was February 17, 1997. They said they were in a state of shock when they learned that they had been ordered deported in absentia on January 22, 1997.

In making his second argument, respondent contradicts his trial testimony. At trial, respondent testified that the Garcias came to his office prior to the hearing and that he spent 30 to 45 minutes at a minimum preparing them for their individual hearing. We give great weight to the hearing judge's implied determination that respondent's testimony in this respect was not credible, which determination is supported by the contradiction indicated above.

We also conclude, consistent with the hearing judge's conclusion, that the State Bar failed to present clear and convincing evidence that respondent violated section 6068, subdivision (m), by failing to return the Garcias' telephone calls.*fn13

We agree in part with the hearing judge's conclusion that the charge of failing to keep the Garcias reasonably informed of significant developments in this case is duplicative of the charge of failing to perform legal services competently, since respondent's failure to inform the Garcias of their hearing date of January 22, 1997, is one of the bases of our conclusion of culpability of rule 3-110(A). Because "little, if any, purpose is served by duplicative allegations of misconduct" (Bates v. State Bar (1990) 51 Cal.3d 1056, 1060), we decline to conclude for purposes of discipline that respondent is additionally culpable of violating section 6068, subdivision (m) in this respect.

Moreover, respondent's alleged failure to inform the Garcias that he provided ineffective assistance of counsel formed the basis for both the charge of failing to perform legal services competently and that of failing to keep the Garcias reasonably informed of significant developments in this case. We have concluded, however, that the State Bar failed to prove by clear and convincing evidence that this alleged failure constituted a violation of either charge.

As set forth above, the NDC additionally charges that respondent failed to keep the Garcias reasonably informed of significant developments in their case by failing to notify them that they would be deported if they did not appear at their individual hearing. We note that Mr. Garcia testified in this proceeding that nobody told him what would happen to his family if he did not appear at their individual hearing and that he did not understand what he was supposed to do after the master hearing. However, respondent's failure to inform the Garcias in this respect was not a failure to notify them of a development in their case; rather, respondent failed in this respect to provide legal services competently.*fn14 Upon our review of the record, we conclude that the State Bar failed to establish by clear and convincing evidence a basis for this charge that was independent of the basis for any other charge.

As previously stated, the hearing judge concluded that respondent was not culpable of violating rule 3-700(D)(2), and as we will discuss, along with our discussion of the charge that respondent committed moral turpitude by habitually disregarding clients' interests, we do not consider culpability of this charge in determining the appropriate level of discipline in this case.

In short, we hold that respondent willfully violated rule 3-100(A) as charged but dismiss the charged violations of section 6068, subdivision (m), and of rule 3-700(D)(2) with prejudice.

The Haesbaert Matter

In November 1995, Sergio Haesbaert, who is from Brazil, filed an application for political asylum, which application had been prepared by a nonattorney. On or about March 25, 1996, he employed respondent to represent him and his family on his political asylum application. Respondent charged $1,000 for the representation, to be paid in installments. Haesbaert paid a total of $500 in installments.

Respondent reviewed the political asylum application and found it to be satisfactory. Respondent was informed that a master calendar hearing was scheduled for April 17, 1996.

On April 17, 1996, respondent did not appear. The court scheduled another master calendar hearing for June 12, 1996.

At the hearing on June 12, 1996, attorney Gardner appeared for respondent, and the IJ set the matter for a regular hearing on September 9, 1996.

On or about September 6, 1996, Haesbaert went to respondent's office because he had had no communication with respondent regarding the hearing of September 9, 1996. Haesbaert made an appointment for September 7, 1996. On September 7, 1996, the Saturday before the Monday hearing, Haesbaert met with respondent for about 15 minutes and was assured by respondent that everything was in order.*fn15

On September 9, 1996, respondent appeared with Haesbaert at the hearing. Haesbaert did not know what questions would be asked of him by respondent, the judge, or the attorney representing the government. Moreover, some of the documents in support of the asylum application were excluded from evidence at the hearing because they had not been translated into English and their relevance was unclear. At the end of the hearing, the immigration court found that Haesbaert had failed to establish either past persecution or a well-founded fear of future persecution and denied the asylum application.

Haesbaert discharged respondent soon after this hearing. Haesbaert employed attorney Geri Kahn who, upon review of the file, filed a notice of appeal on October 8, 1996. On August 21, 1998, she filed a motion to remand with the BIA based on ineffective assistance of counsel so that Haesbaert could introduce additional evidence that was not presented at the September 9, 1996, hearing. Kahn attached substantial additional documentation with the motion. Kahn determined that the asylum application was poorly done and that no evidence had been submitted at the hearing regarding the conditions in Brazil. Although Haesbaert had documents regarding the conditions in Brazil, they had not been translated into English and therefore had not been admitted into evidence. From the record of the proceedings on September 9, 1996, Kahn also noted that respondent did not ask questions of Haesbaert to elicit testimony in support of Haesbaert's contention of fear of future persecution.

The BIA granted the motion to remand on October 27, 1998, and remanded the matter back to the immigration court.

On or about December 29, 1999, Haesbaert sent respondent a letter requesting the return of the $500 in fees he had paid. Respondent returned the money on or about March 15, 2000.

The Hearing Judge's Conclusions

As to this matter, respondent was charged with one count of violating rule 3-110(A), one count of violating rule 3-700(D)(2), and one count of failing to respond promptly to Haesbaert's reasonable status inquiries in violation of section 6068, subdivision (m). The hearing judge determined that the State Bar proved by clear and convincing evidence that respondent willfully violated rule 3-110(A) and rule 3-700(D)(2) but concluded that the State Bar had failed to present clear and convincing evidence that respondent had violated section 6068, subdivision (m).

Discussion

We determine, upon our review of the record, that respondent is culpable of willfully violating rule 3-110(A), recklessly and repeatedly failing to perform legal services competently: (1) by failing to present additional evidence, both documentary and testimonial, to support Haesbaert's claim for political asylum; (2) by failing to have Haesbaert's documents translated into English for the asylum hearing; and (3) by failing to prepare Haesbaert adequately for the asylum hearing.

Respondent contends that the hearing judge's finding of culpability in this matter was erroneous for several reasons. He first asserts that the hearing judge's finding that he did not prepare Haesbaert for the asylum hearing was erroneous, since respondent met and prepared with Haesbaert, his wife and daughter several times, and with Haesbaert at least three times, before the asylum hearing.

Although Haesbaert testified in this proceeding that he met with respondent a total of three times, he also testified that he went to respondent's office to make an appointment on September 6, 1996, because he had not spoken with respondent since the master calendar hearing and his individual hearing was scheduled for September 9, 1996. He further testified that he met with respondent for about 15 minutes on September 7, 1996, the Saturday before the Monday hearing, after forcing his way into respondent's office, and respondent assured him that everything was fine. Based on the hearing judge's findings and conclusion of culpability, it is apparent that the hearing judge found Haesbaert's testimony in this respect to be credible, and we must give this credibility determination great weight. (Rules Proc. of State Bar, rule 305(a).) We therefore reject respondent's factual assertion that he prepared Haesbaert for the asylum hearing.

Respondent next contends that he could not have translated Haesbaert's documents himself, as he has no knowledge of the Portuguese language, and he asked Haesbaert several times to gather as much evidence as possible and to have documents translated for the hearing, since no one in respondent's office could do it. However, as the attorney in charge of this matter, respondent bore the ultimate responsibility to have Haesbaert's documents translated so that they might be offered into evidence. Respondent also contends that there was insufficient evidence that he could have presented additional evidence supporting Haesbaert's asylum claim since: (1) the IJ testified in this matter that she could not even determine whether it was an asylum case; (2) although the IJ testified that she supplements respondent's examination of his witnesses with questions of her own, the IJ also testified that she asks questions to supplement the record more than other IJs, and the IJ did not specifically refer to the Haesbaert matter in testifying that respondent did not adequately prepare witnesses; (3) it was impossible to obtain additional witnesses, as Haesbaert told respondent that they were in Brazil and probably could not come to the United States; and (4) the INS normally presents evidence of conditions in a given country. However, we note that Kahn was able to attach additional documentation with the motion to remand, and Kahn credibly testified in these proceedings that respondent failed to ask Haesbaert any questions regarding a fear of future persecution. We therefore reject these contentions and conclude, as noted above, that clear and convincing evidence establishes that respondent could have, but failed to, present additional evidence to support Haesbaert's asylum application.

Respondent also contends that Kahn failed to raise the issue of ineffective assistance of counsel in her notice of appeal and was therefore barred from raising the issue in the BIA on appeal. We note that respondent has pointed to no legal authority to support this contention. In any event, we do not base our determination of professional misconduct in this matter on the BIA's finding of ineffective assistance of counsel. Instead, we have independently concluded, based on the evidence before us, that respondent failed to perform legal services competently.

We agree with the hearing judge's conclusion that there is no clear and convincing evidence in the record to prove that respondent violated section 6068, subdivision (m), by failing to respond promptly to Haesbaert's reasonable status inquiries. Therefore, the hearing judge correctly dismissed this charge with prejudice, and we adopt that dismissal.

We disagree with the hearing judge's conclusion that respondent willfully violated rule 3-700(D)(2). Although respondent ultimately refunded the fee paid by Haesbaert approximately two months after Haesbaert requested the refund, respondent asserts, and we conclude, that there was no clear and convincing evidence that the value of the services he provided was less than the $500 he was paid. Although the asylum application was already filed at the time respondent agreed to represent Haesbaert, Haesbaert admitted at trial in this matter that respondent met with him three times before the asylum hearing. In addition, respondent appeared at the individual asylum hearing and elicited testimony from Haesbaert in support of the asylum application. Although respondent failed to present all of the evidence which he could have presented in support of Haesbaert's claim, in view of the work respondent performed on Haesbaert's behalf, as well as respondent's testimony that he earned the fee that he charged Haesbaert, we conclude that respondent may have believed he had rendered valuable services to Haesbaert and that under these circumstances respondent did not violate rule 3-700(D)(2) by waiting two months to refund the $500. Accordingly, we reverse the hearing judge's culpability conclusion that respondent violated rule 3-700(D)(2) and dismiss that charge with prejudice.

The Flores Matter

In March 1998, Jose Flores and Johana Flores employed respondent to file applications for political asylum for them and to represent them before the INS on their applications. Respondent charged $2,000, to be paid in installments. The Floreses paid $600 when they employed respondent, and respondent filed applications for political asylum with the INS on April 24, 1998.*fn16 On June 1, 1998, the Floreses were interviewed by an INS asylum officer. Thereafter, their applications for political asylum were denied, and they were ordered to appear in the immigration court on July 2, 1998, to show cause why they should not be deported.

On July 2, 1998, at the master calendar hearing, attorney Gardner appeared for respondent. The IJ served Gardner and the INS attorney with a notice of hearing in removal proceedings indicating that an individual hearing was set for September 10, 1999. In August 1999, respondent met with the Floreses and, upon a review of the file, informed them that he would seek to continue the September 10, 1999 hearing to November 11, 1999, because they lacked sufficient evidence to support their claims for asylum. Respondent asked the Floreses for documentation on Mr. Flores's father and his political rank in El Salvador. Respondent also informed the Floreses that, because respondent would seek a continuance, they did not need to attend the hearing on September 10, 1999.

On September 2, 1999, respondent filed a motion to continue the individual hearing to allow the Floreses to obtain additional evidence to support their asylum request. On September 3, 1999, the court sent respondent a letter denying his motion and stating that the hearing remained scheduled for September 10, 1999. The Floreses were not informed that the motion to continue was denied.

The Floreses did not appear at the hearing of September 10, 1999, and the court ordered their removal in absentia. The court served respondent with a copy of that order that same day. Respondent told the IJ (1) that he had spoken to the Floreses two weeks earlier, (2) that they were trying to get documents from El Salvador, and (3) that he had told the Floreses to be at the hearing. The judge reminded respondent that notice to counsel is notice to the clients.

On September 13, 1999, respondent sent the Floreses a letter asking them to contact his office as soon as possible. This letter did not inform the Floreses that they had been ordered removed. On October 7, 1999, respondent sent the Floreses a second letter requesting that they contact his office and attached a copy of the removal order. The attached order indicated that the Floreses were to report to the INS for removal on October 20, 1999.

On October 11, 1999, the Floreses consulted with attorney Mario Bautista. On October 19, 1999, Bautista filed a motion to reopen and rescind the removal order due to exceptional circumstances. This motion was based on respondent's ineffective assistance of counsel. Bautista also reviewed the asylum application and determined that it was insufficient to support a finding of past political persecution or a well-founded fear of future persecution.

On December 17, 1999, the IJ granted the motion to reopen and scheduled a new individual hearing to be held in October 2002. As of the time of trial in the hearing department, the Floreses were eligible to apply for temporary protective status and could obtain employment.

The Hearing Judge's Conclusions

As to this matter, respondent was charged with one count of violating rule 3-110(A), one count of violating rule 3-700(D)(2), and one count of failing to inform the Floreses of significant developments in their case in violation of section 6068, subdivision (m). The hearing judge determined that the State Bar proved by clear and convincing evidence that respondent willfully violated rule 3-110(A) by recklessly and repeatedly failing to competently perform legal services and that respondent violated section 6068, subdivision (m) by failing to notify the Floreses immediately when the motion for continuance was denied. But the hearing judge concluded that the State Bar had failed to present clear and convincing evidence that respondent violated rule 3-700(D)(2).

Discussion

We conclude, upon our independent review, that the State Bar established by clear and convincing evidence that respondent willfully violated rule 3-110(A) because he repeatedly and recklessly failed to perform legal services competently: (1) by failing to file an application with sufficient evidence to support a claim of political asylum; (2) by failing to inform the Floreses that the motion to continue had been denied; and (3) by failing to inform the Floreses that it was mandatory for them to appear at the scheduled hearing of September 10, 1999, instead telling them that they need not attend the hearing.

Respondent contends that the hearing judge made erroneous factual findings and an erroneous culpability conclusion as to this charge, since (1) respondent informed the Floreses that he would try to get a continuance but that they still had to show up in court; (2) respondent informed the Floreses that the motion to continue had been denied; (3) there is no evidence that respondent did not try to contact his clients immediately when they failed to appear at their individual hearing and, in any event, there is no rule or statute requiring an attorney to attempt to contact clients immediately; (4) respondent asked the clients to submit all documentation, affidavits and witnesses from this country (i.e., the United States) and their country of origin to support their asylum claim; and (5) respondent attempted to make the best case possible for the Floreses.

Respondent again relies on his version of the events to support his factual assertions. Respondent testified in these proceedings that he met many times with the Floreses, that they needed time to gather the documents he asked for, and that he told the Floreses that the motion to continue was denied and that they should appear at the hearing. No evidence was presented to corroborate his testimony that he told the Floreses that the motion to continue was denied and that they should appear on September 10, 1999. The Floreses testified that respondent told them he would be requesting a continuance of the individual hearing, so that they did not have to make an appearance at that hearing.

As indicated by our culpability determination, we adopt the hearing judge's express finding, consistent with the Floreses' testimony, that respondent told them that they need not attend the individual hearing because he would get a continuance. It is also clear, and consistent with the Floreses' testimony, that respondent never told them that his motion for a continuance was denied, that their attendance at the individual hearing was mandatory, and that their case must proceed on the merits at that hearing.

We note that respondent filed the Floreses' petition on April 24, 1998, yet it was not until August 1998 that he again reviewed the petition and made the determination that he did not have sufficient evidence to support the petition. Only then did he seek further documentation from the Floreses ...


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