Saturday, June 29, 2013
The Louisiana Supreme Court has denied admission to an applicant based on three cited factors: the fact that previous law firm employers would not rehire her, numerous traffic citations and extensive involvement in civil litigation.
The court majority found that the applicant had engaged in a "pattern of dishonest and untrustworthy behavior" not mitigated by her medical issues.
A dissent would conditionally admit the applicant, noting that she had graduated from Tulane University at age 19 and suffers from ADHD.
The dissent viewed the incidents in her past as "youthful indiscretions" that took place a decade ago. (Mike Frisch)
Friday, June 28, 2013
The Illinois Administrator has filed a complaint alleging ethical violations in a series of incidents that led to criminal charges.
On November 29, 2011, Respondent consumed some beer and at least 6 alcoholic beverages at Salerno's restaurant and McNally's Pub before proceeding to the Filling Station Pub and Grill, hereinafter the "Pub," located in St. Charles, Illinois.
Respondent, with Jason Nord and Matthew Dickens, ordered and received alcoholic beverages at the Pub. After received his alcoholic beverage, Respondent sat at the bar and vomited into the glass containing the beverage. Respondent left his seat at the bar and after removing his outer clothing, returned to his seat at the bar.
As Respondent was about to leave the Pub, Mr. Nord had a physical fight with the bartender, Brett Willing. Respondent intervened in the fight by punching Mr. Willing about the body and placing him in a chokehold. Respondent, Mr. Nord and Mr. Willing continued fighting for a short time until Respondent extricated himself. Shortly thereafter, Mr. Nord and Mr. Willing stopped fighting and separated. As Mr. Willing was lying on the floor of the Pub, Respondent approached Mr. Willing and kicked twice at the bartender's head and chest area. Mr. Willing sustained injury to his head and body.
Respondent and Mr. Nord left the Pub and went to the nearby Magoo's Bar, in St. Charles, Illinois. Police arrived, entered Magoo's bar and arrested Mr. Nord for the aggravated battery of Mr. Willing but were unable to locate Respondent as he had fled via the back door.
This incident resulted in a battery conviction.
A second incident invovled DUI and possession of cannabis paraphenalia. He pleaded guilty to those charges.
On May 21, 2006 Respondent was at the Park Chalet restaurant, hereinafter "Chalet", located in San Francisco, California. Respondent began shouting at a band which played music at the location. When Chalet employees asked Respondent to stop shouting at the band and leave the premise, Respondent began using profanity and threatened the employees.
Respondent refused to leave the Chalet grounds. Curtis Hefley, a bartender at Chalet, escorted Respondent from the Chalet premise. Respondent threatened to have Mr. Hefley killed and when Mr. Hefley turned to walk away, Respondent tackled Mr. Hefley to the ground. Mr. Hefley sustained injuries to his forehead, head and ribs. Respondent placed Mr. Hefley in a headlock and began punching Mr. Hefley.
Chalet employees, including DeeAnn Chesebro, pulled Respondent from Mr. Hefley. Respondent continued fighting and struck Ms. Chesebro in the head with his fist. The employees were able to separate Respondent and Mr. Hefley. Respondent fled the Chalet premise. Mr. Hefley was in fear of Respondent's threat.
San Francisco police officers arrived at the Chalet but were unable to locate Respondent. The officers left the Chalet grounds but returned shortly thereafter as Respondent returned to the premise. The officers found Respondent who smelled of alcohol and had an unsteady gait. Respondent resisted as Officers attempted to arrest and handcuff Respondent.
Respondent was arrested and placed into a police vehicle for transport. During the transport, Respondent continued to yell and threaten the officers saying "You two Asian female cops are gonna get it, you fucked with the wrong person!"
Upon arrival at the police station, Respondent began cursing and refused to exit the patrol vehicle. As the officer attempted to remove Respondent from the vehicle, Respondent charged the officer. Respondent fell to the ground and began kicking at the officer. Officers eventually escorted Respondent to the police station holding cell.
The criminal complaints in the San Francisco matter were later withdrawn.(Mike Frisch)
And today's award for chutzpah goes to Hearing Committee No. Three of the District of Columbia Board on Professional Responsibility.
That august tribunal was entrusted with the matter of In re Rohde, Bar Docket No. 347-05. The case involves a conviction for a hit-and-run in Virginia. The attorney raised alcoholism as a possible mitigating factor under the In re Kersey doctrine.
The hearings were held on December 11-12, 2007 and January 15, 2008. Briefing was completed shortly thereafter.
Then. nothing...for over five years.
No adjudication of the misconduct allegations, attorney free to practice law.
Well, yesterday Hearing Committee No. Three sprang into action.
They issued an order directing the parties to submit fresh evidence on his alcoholism and recovery because the evidence before it was too "stale."
Note: I represented Bar Counsel in mitigation phase of the Kersey case. It took less time to resolve the alcoholism as mitigation issue when it was a question of first impression.
Our prior coverage is linked here. (Mike Frisch)
An attorney who drafted a will that appointed co-personal representatives engaged in misconduct in connection with the estate administration.
As a result, he was reprimanded by the North Dakota Supreme Court.
In 1999, McIntee prepared a will for Eleanor Striha. Following her 2004 death, McIntee met with the co-personal representatives of the estate to open the will and begin the probate process. The co-personal representatives were siblings, and both were beneficiaries and devisees under their mother's will, along with two other siblings. Having prepared the will, McIntee was aware the distribution of the farmland to the children included severe limitations on the use and enjoyment of the land they inherited. McIntee did not discuss any problems or issues that may arise in situations when two co-personal representatives are appointed. He did not advise Ritterman that, as personal representative of her mother's estate, she could hire her own attorney, and no written fee agreement between McIntee and Ritterman was executed employing McIntee to act as her attorney in administering her duties as co-personal representative of her mother's estate.
He proceeded to represent one of the personal representatives in litigation:
The Hearing Panel determined McIntee should have been aware of the possibility that his clients, the co-personal representatives, would have different perspectives on the handling of the estate, and should have known his representation of Ritterman might be adversely affected by his responsibilities to Michael Striha. At the time McIntee assumed representation of Michael Striha and Ritterman, he was required to have obtained the consent of Ritterman to the common representation after consulting with her, which he did not do. Additionally, after becoming aware of Ritterman's unhappiness, McIntee did not advise Ritterman, as co-personal representative, that she could hire her own attorney, or did he advise her of the advantages and risks involved in the common representation. Instead of threatening her with a will provision he knew might be unenforceable, and advising her he did not represent her individually, McIntee should have withdrawn from his representation of Ritterman as co-personal representative, or obtained her consent to his continued representation.
And did not see the problem:
The Hearing Panel found that McIntee represented both Michael Striha and Ritterman as co-personal representatives of the estate of their mother. Additionally, the Panel rejected McIntee's assertion that his representation of Ritterman as personal representative does not preclude him from later bringing an action against her personally in a substantially related matter, stating that his assertion "paints too fine a line -- the general public will not understand the distinction, and most people will feel betrayed just as Ritterman does in this case."
Thursday, June 27, 2013
It's a day of discipline for former prosecutors.
The Illinois Review Board has recommended disbarment on facts summarized in the board's synopsis:
The Administrator charged Respondent with misconduct arising out his conduct in two matters Respondent handled while he was an Assistant State's Attorney in Carroll County. In the first count, the Administrator alleged that Respondent overreached his position of trust as a prosecutor when he began a personal relationship with a defendant, K.I., in a case he prosecuted. Respondent engaged in a discussion with K.I. while she was in jail. After K.I. was sentenced and released from custody, Respondent had another conversation of a personal nature. Respondent took K.I. out to dinner, and while in the car, touched her leg and kissed her. Respondent later sent K.I. four text messages. In the second count, Respondent, in his capacity as an Assistant States Attorney, charged A.F. with child pornography for taking pictures of J.C., who was 14 years old when the pictures were taken. During the course of the prosecution of the case, Respondent developed a personal relationship with J.C. and her family. As a result of that relationship, Respondent was removed from the case, but he continued the relationship with J.C. and her family. On February 22, 2010, when J.C. was 17 years old, she was at Respondent's apartment, and he kissed her and touched her breast.
Respondent failed to appear at his disciplinary hearing. The Hearing Board filed a Report and Recommendation concluding that Respondent engaged in overreaching his position of trust and authority as a prosecutor in both matters. The Hearing Board concluded that Respondent engaged in conduct prejudicial to the administration of justice in violation of Rule 8.4(a)(5) of the 1990 Rules of Professional Conduct or 8.4(d) of the 2010 Rules because his conduct undermined the authority of the State's Attorney's Office and the criminal justice system. The Hearing Board also concluded that with respect to the second matter, Respondent engaged in criminal conduct in violation of Rule 8.4(b). The Hearing Board recommended that Respondent be disbarred.
Respondent filed exceptions to the Hearing Board's Report and Recommendation.
Upon review, the Review Board noted that Respondent's brief failed to comply with the Rules and failed to provide a comprehensible basis for the review of the Hearing Board's conclusions. The Review Board reviewed the record and found no reason to disturb the Hearing Board's findings or recommendation. The Review Board recommended that Respondent be disbarred.
"The Dark, Unseen, Ugly, Shocking Nightmare Vision Of A Prosecutor Who Loves Victory More Than He Loves Justice"
We have a second instance (following a recent Florida decision) of discipline imposed on a state prosecutor for misconduct in a death penalty trial, here in a case arising from a drive-by shooting.
The Oklahoma Supreme Court suspended the prosecutor for 180 days.
The court's majority opinion on sanction:
This Court is the sole arbiter of bar discipline. We are free to attribute as much weight to the trial panel's recommendations as we see fit. Under the facts presented, appropriate discipline falls somewhere between a private reprimand and a year suspension. Most recently, private reprimands have involved: failure to respond to grievances, failure to account for client funds and communicate with clients, selling marital property and concealing it, pleading nolo contendere with pointing a firearm, entering a plea to child abuse by injury. Cases of prior public censure have fallen into categories such as sexual contact or inappropriate sexual advances, dismissals of client's cases, or failing to do anything on a client's behalf or other types of client's case mismanagement.
We must recognize that the respondent was acting under the direction, supervision, and policies of the then elected District Attorney. Responsibility for the respondent's conduct and trial tactics falls partially to the District Attorney as the chief administrator of the office. Although he exercised his rights to object and disagree to the charges, the respondent has also been fully cooperative with the Bar Association in this lengthy and tedious process.
Hindsight is 20-20. Instances of prosecutorial misconduct from previous decades, such as withholding evidence, were often met with nothing more than a reprimand or a short suspension. Some scholars writing during that time theorized that discipline was imposed so rarely and so lightly that it was not effective in deterring misconduct. Reprehensible though Miller's conduct may have been, and even if such misconduct is punished more harsly [sic] when it occurs now, Miller's actions took place decades ago and it would be unfair to hold him to a harsher standard than he would have been subjected to when his actions took place. Make no mistake, if this conduct were to happen today, the punishment would have been much more severe. This is not to say that the Court condones his conduct, merely that we are not inclined to apply the harsher standards of today to conduct that occurred at a time when it was punished lightly, if at all.
There is a dissent from Justice Taylor:
Whether it was "decades ago" or today, no attorney should ever commit the "reprehensible" conduct in death penalty (or any other) litigation as detailed in the Majority Opinion and Trial Panel Report. The actions of the Respondent take us into the dark, unseen, ugly, shocking nightmare vision of a prosecutor who loves victory more than he loves justice. I agree with the recommendation of the Oklahoma Bar Association that the Respondent should be disbarred.
The San Francisco Chronicle had this report. (Mike Frisch)
Pennsylvania is one jurisdiction that treats practice while on administrative suspension as a serious disciplinary offense.
Neglecting the cases undertaken while suspended makes a bad situation worse.
Ignoring the inevitable ensuing bar case is a sure recipe for disbarment, as an attorney has learned.
From the report of the Disciplinary Board to the Pennsylvania Supreme Court:
Respondent's conduct deserves disbarment. He engaged in a course of deceptive conduct with respect to his clients, prospective clients, and Petitioner. He defied a Supreme Court Order by continuing his legal practice in exactly the same way as before his administrative suspension. He never removed his name from signage and letterhead, thus leading unsuspecting clients to believe he was eligible to practice law. Respondent gained new clients and accepted retainers all the while knowing he was not permitted to do so. He then allowed the clients to languish, but still felt free to keep the unearned fees, thereby misappropriating the funds. Respondent showed no acceptance of responsibility or remorse. His actions embody the antithesis of what the public expects and deserves from an ethical lawyer.
An attorney who had engaged in misappropriation, abandoned his practice and "engages in illegal activity including the purchase, possession and use of controlled dangerous substances and continues to deny the serious nature of his drug abuse" was disbarred by the Maryland Court of Appeals.
The matter was initially brought to the bar's attention by his landlord when his clients could not find him.
He was referred to a bar-sponsored program by judges when he failed to appear in court but did not follow through on the referral.
He also failed to follow treatment conditions imposed in criminal matters against him.
Finally, he failed to appear for jury duty. (Mike Frisch)
The District of Columbia Court of Appeals imposed a suspension of three years with reinstatement conditioned on proof of fitness in a case involving misconduct in the representation of a husband and wife in immigration matters.
The court followed the recommendation of the Board on Professional Responsibility, concluding that the suspension was within the range of sanctions for comparable cases and rejecting Bar Counsel's call for disbarment.
The court found that the dishonest conduct was not of a sufficiently "flagrant" kind to warrant the greater sanction.
Rather, the attorney
...took full responsibility for his failures in a signed affidavit and took part in the [clients'] subsequent attempts, through successor counsel, to obtain their visas. While his attitude has fluctuated, [he] was, at least initially, remorseful for his failures and refunded his $5,000 legal fee to the [clients].
Disclosure: I prosecuted an earlier bar disciplinary case against the attorney. (Mike Frisch)
Wednesday, June 26, 2013
In a proceeding arising from the pawning of a stolen pistol, the Oklahoma Supreme Court explained its procedures for imposing discipline in the wake of a criminal conviction.
The attorney had falsely certified that he owned the weapon. He then falsely identified himself to avoid arrest.
He is now on deferred sentencing with a possibility of having the charges dismissed.
The court had previously suspended the attorney and concluded:
[The attorney] had been licensed to practice law a little over two years when he falsely declared ownership of the pistol at a pawn shop. He submitted no information to this Court to explain his intentional dishonest conduct at the pawn shop or his subsequent intentional misrepresentation of his identity to avoid arrest on a warrant. He offered no evidence or argument to show mitigating circumstances for our consideration. Even so, we find the certified copies of the informations, pleas of guilty, and orders of deferred felony sentencing...are sufficient for this Court to impose final discipline pursuant to Rules 7.1 through 7.4 of the RGDP.
[His] guilty pleas to felonies involving intentional dishonesty for personal gain facially demonstrate his unfitness to practice law. Under these circumstances, an appropriate final discipline is suspension from the practice of law for the duration of the deferred sentencing. If [he] successfully completes the terms of the deferred sentencing and on Feburary 5, 2018, the criminal charges are dismissed with prejudice, [he] may seek reinstatement of his license to practice law...
Tuesday, June 25, 2013
An announcement from the Georgetown Law web page:
Georgetown Law's Georgetown Journal of Legal Ethics has been honored by the New York State Bar Association's committee on professional ethics with its Sanford D. Levy Award. The award is given to "recognize those who have contributed to understanding and advancement in the field of professional ethics."
"The Georgetown Journal of Legal Ethics has published many of the most thought-provoking and influential articles in the field," said Steve Krantz, co-chair of the committee and an attorney with the New York State Department of Taxation and Finance. "The committee congratulates the Journal and looks forward to its continuing and vigorous explorations of topics in legal ethics."
Previous recipients of the award include Georgetown Law Professors Tanina Rostain and David Luban, as well as Judge Judith S. Kaye, the longest-serving chief judge of the New York Court of Appeals in the state's history.
The Georgetown Journal of Legal Ethics, which was founded by the late Georgetown Law Professor Fr. Robert Drinan, S.J., aspires to serve as the main forum for the discussion and development of the most compelling and pertinent issues currently affecting both the bench and the bar.
Congratulations and thanks to the superb journal staff for this recognition.
Somewhere Father Drinan is smiling! (Mike Frisch)
The New York Appellate Division for the First Judicial Department has disbarred an attorney for misappropriation, rejecting a referee recommendation for a lesser sanction.
The court described the purported mitigation
Respondent attributes his misconduct to the federal prosecution of a wide-spread insurance fraud involving a number of medical clinics, several of which were his clients, which culminated in the seizure by the Federal Bureau of Investigation (FBI) of funds maintained in one of respondent's escrow account and held on behalf of those clients. According to respondent, the targeted funds had already been disbursed prior to the seizure. Thus, respondent argues, no venal intent has been established and, as such, the intentional conversion charge should have been dismissed. Respondent further takes issue with the two aggravating circumstances found by the Hearing Panel, arguing that it put misplaced emphasis on "these post-hearing, uncharged and mischaracterized afterthoughts." Finally, respondent contends that the Panel gave "short shrift" to the four cases cited by counsel in support of censure or a short suspension.
...respondent failed to establish that the seizure of escrow funds by the FBI constituted "extremely unusual mitigating evidence" that bore the requisite causal relationship to his misconduct. Respondent conceded that all of his conversions could not be attributed to the seizure; nor did the circumstances prevent respondent from taking appropriate action in response, particularly, informing his clients that their funds had been seized.
From the web page of the Tennessee Supreme Court:
The Tennessee Supreme Court ruled today that Williamson County attorney Walter Ray Culp, III is not entitled to reinstatement of his law license, which was suspended in 2006 after he pleaded guilty to the crime of attempted extortion in federal court.
The Supreme Court suspended Mr. Culp from practicing law for five years based on his extortion conviction, which arose out of Mr. Culp’s attempt to broker the testimony of a witness in a civil trial for a multimillion-dollar fee. Any attorney suspended for one year or more is required to petition the Supreme Court for reinstatement to the practice of law. Mr. Culp filed such a petition in January 2011.
A hearing panel of the Tennessee Board of Professional Responsibility ruled that Mr. Culp’s law license should not be reinstated. Mr. Culp appealed to the Chancery Court for Williamson County, which affirmed the hearing panel’s decision. On further review, the Supreme Court affirmed the decision of the trial court, ruling that Mr. Culp failed to show by clear and convincing evidence that he possessed the moral qualifications, competency and learning in law, and that his reinstatement would not be detrimental to the integrity of the legal profession or the administration of justice.
The Court noted that attorneys who have been suspended or disbarred may petition for reinstatement, but Mr. Culp’s attempt to extort millions of dollars for the testimony of a witness was “threatening to the very core of a legal system based on probity and honor.” Based on the egregious nature of the conduct and Mr. Culp’s lack of credibility, the Court ruled that Mr. Culp should not be readmitted to the practice of law in Tennessee.
The court quoted an earlier opinion: "The practice of law is a distinct privilege - the more serious the abuse of that privilege, the more onerous the burden of atonement."
The court's opinion is linked here. (Mike Frisch)
Monday, June 24, 2013
The New Mexico Supreme Court declined to suspend an attorney who had
failed in her commitment to civility and respect toward others, eroding public confidence in the legal system and weakening the effectiveness of the litigation on many levels.
There were three sets of incidents at issue in the disciplinary case.
In a domestic violence case, the attorney called another lawyer a "dumb bitch," called the domestic violence commissioner a "freak" and the proceedings a "freak show." In letters, she called opposing counsel "eternal lying scum," and accused the opposing party of "lying through his frigging teeth.'
In a contentious domestic relations matter, the attorney called the judge a drunk and the opposing party "goofy," a "dimwit," a dingbat," and a "duffus." (editors note: Is that doofus?)
The third incident involved accusations of an impermissible relationship betwen the judge and opposing counsel.
The court indicated that it would have suspended the attorney but for its conclusion that the conduct was a product of untreated bipolar condition that is now being addressed.
While the ultimate outcome in this case did nor result in Respondent's suspension from the practice of law, all members of the bar should take note that our call for civility in all aspects of the practice of law must be taken seriously. Because legal disputes can be emotionally charged, it is up to every member of the bench and bar to behave in a manner that exemplifies the best of our profession. At a minimum, it is the ethical responsibility of every attorney to maintain a civil demeanor that helps resolve disputes, rather than escalate them.
The court had delayed imposition of a 90 day suspension to consider the impact of the bipolar disorder on sanction. (Mike Frisch)
The Maryland Court of Appeals has determined that disbarment is the appropriate sanction for an attorney who had misappropriated client funds in the form of advanced fees and abandoned his practice.
The attorney was the subject of two complaints.
One involved a client who retained him in a breach of contract action against an entity the client claimed to have hired to patent a "golf ball finder" device; the other to defend a suit brought by the Secutities & Exchange Commission.
The attorney's name is Frank Costanzo. (Mike Frisch)
Sunday, June 23, 2013
The Illinois Administrator has filed ethics charges against a former Sidley Austin LLP partner:
1. Between 2007 and 2012, Respondent was a partner at Sidley Austin LLP, based in the firm’s Chicago office. During that time, he was the head partner in charge of the Chicago office’s real estate practice group, and was a global coordinator of the firm’s real estate practice group. In addition to the responsibilities listed above, after October of 2008, Respondent served as a member of the firm’s executive committee. Respondent was responsible for, among other things, billing matters affecting real estate transactions involving a major financial institution, one of the firm’s largest clients. One account relating to that client ("the unallocated account") contained funds that had been paid by the client as fees, but against which additional charges could be made for various matters, including post-closing fees. In the absence of such charges, funds in the unallocated account belonged to the law firm.
2. Between 2007 and 2012, Respondent submitted more than 800 requests that the firm reimburse him from the unallocated account for cab rides that he knew he had not taken. In support of the false requests, Respondent fabricated false taxi receipts, in amounts averaging approximately $80 each, and the firm paid Respondent approximately $69,000 based on the false submissions.
3. During the same period, Respondent also submitted, or caused to be submitted, fabricated cab receipts totaling at least $567 that were charged to other firm clients.
4. Also during the same period, Respondent submitted requests that he be reimbursed from the unallocated account for purported entertainment expenses, including restaurant gift cards (totaling at least $13,000), tickets to sporting events (totaling at least $35,000) and meals at various locations, including his country club, on Mother’s Day, Father’s Day, Thanksgiving and other dates (totaling at least $2,000), that had not been incurred for legitimate firm purposes.
5. By causing funds to be paid to himself from the unallocated account, Respondent reduced the amount of money in that account that would otherwise have been paid to the firm and, eventually, distributed to Respondent and Respondent’s partners.
Friday, June 21, 2013
An attorney who resided in Maryland but misled her law school about her place of residence in order to pay in-state tuition has been suspended indefinitely with the right to reapply after 30 days by the Maryland Court of Appeals.
The attorney saved over $11,000 in tuition payments as a result.
The court further found that the attorney had failed to disclose the conduct in her Maryland bar application.
The attorney gave West Virginia College of Law an in-state post office box address while attending the school. In fact, she lived 18 miles from West Virginia in Oakland, Maryland.
The conduct took place in 1994 and only came to light when her ex-husband blew the whistle on her.
The court found the passage of time and her sterling record as an ethical attorney to be highy significant mitigating factors. She was remorseful and had offered to repay the difference to the law school, an offer the Dean declined.
The ex-husband was indefinitely suspended in 2006 for, among other things, forging her name to a legal document. (Mike Frisch)
A prosecutor who engaged in extensive ex parte contacts with the judge presiding over a death penalty trial has been suspended or two years by the Florida Supreme Court.
The prosecutor's office agreed to a new trial of the criminal case as a result.
The prosecutor and the (now former) judge had more than 900 cell phone conversations and 400 text messages over a five-month period. While the communications were of a personal nature, they took place while the judge was deciding motions and sentence and were not disclosed to defense counsel.
The court rejected as insufficient the one-year suspension proposed by a referee.
The Sun-Sentinel opines that this decision does "not bode well" for the judge, who also is subject to a proposed suspension of one year.
Additional information about the charges against the prosecutor and the judge from the Sun-Sentinel is linked here. (Mike Frisch)
A women from Ecuador who entered the United States illegally after an earlier removal has a viable claim for malpractice against the attorneys retained to assist her, according to a recent opinion of the New York Appellate Division for the First Judicial Department.
The court reversed the lower court's dismissal:
We disagree with the motion court's conclusion that due to intervening events, defendant law firm and Bretz's malpractice was not a "but for" cause of plaintiff's removal from the United States. Plaintiff was unambiguously ineligible for relief under prevailing case law when defendants submitted her application to immigration authorities. Once her application was submitted and denied and the removal order reinstated, any efforts by Kahn, whom plaintiff had retained to represent her after terminating defendants' services, were too late to remedy the situation. By that point, the only intervening event sufficient to break the causal chain would have been a change in the relevant immigration law. The passage of four years between plaintiff's consultation with defendants and her removal did not disrupt the chain of causation.
When defendants submitted plaintiff's application, the government had already publicly announced that it would not grant relief to those in her position in light of the BIA's decision in Matter of Torres-Garcia (see e.g. CIS Interoffice Memo dated Mar. 31, 2006, p. 2, attached to the complaint and available at http://www.uscis.gov/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2006/perezgonz033106.pdf, stating that in light of Torres-Garcia, "in any case where an alien is inadmissible under section 212(a)(9)(C)(i) of the INA and 10 years have not elapsed since the date of the alien's last departure from the United States, USCIS should deny any Form I-212 requesting consent to reapply for admission"). However, instead of advising plaintiff concerning the clear implications of the BIA's ruling in Torres-Garcia — to which the Ninth Circuit owed deference under Chevron USA — defendants assured plaintiff "she would not be deported much less detained" if she applied.
Given plaintiff's allegations that she had no chance of obtaining immigration relief and that defendants failed to thoroughly discuss the possibility, if not certainty, of reinstatement of the order of deportation and removal upon submission of the application, plaintiff has sufficiently alleged that defendants followed an unreasonable course of action in pursuing the application. Moreover, she has sufficiently alleged proximate cause, because the submission of the application alerted authorities to her status, which led to the issuance of the reinstatement order and ultimately to her removal. Plaintiff's unlawful status alone did not trigger her removal, since she had resided in the United States, albeit unlawfully, for more than six years; she was removed only after defendants affirmatively alerted immigration authorities to her presence. The record does not indicate on this motion pursuant to CPLR 3211 that plaintiff would have otherwise come to the attention of the immigration authorities. Without discovery on the issue, it cannot yet be said, as defendants assert, that plaintiff would have been deported regardless of defendants' malpractice. Indeed, had plaintiff waited four more years she would have been eligible to apply for reinstatement under INA § 212(a)(9)(C)(ii), which provides that an alien in plaintiff's position can apply for admission if more than ten years have passed from the date of the alien's last departure from the United States.(citations omitted)
The client's malpractice claim against her appellate counsel was dismissed.
The client had married a U.S. citizen who also is an attorney. The court here affirmed the lower court's conclusion that the husband-attorney was disqualified under the witness-advocate rule. (Mike Frisch)
An attorney who relied on his paralegal to handle a client's divorce was suspended for nine months by the Colorado Presiding Disciplinary Judge.
The last six-months was suspended in favor of probation for two years.
The case was dismissed and the paralegal provided a forged divorce decree to the client.
The client then took another spouse, in the mistaken belief that the prior marriage was over. (Mike Frisch)