Wednesday, November 25, 2020

"The Devil Is In The Details"

The Maryland Court of Appeals has ordered an indefinite suspension with no right to reapply for one year

In the practice of law it is often the case, as the saying goes, that the devil is in the details. A lawyer’s failure to attend to mundane aspects of representation can be detrimental to the client and violate the rules of professional conduct. Misleading statements made to deflect attention from a lawyer’s failure to “sweat the details” can exacerbate that violation.

Respondent John T. Riely is a Maryland attorney who, for most of the past 35 years, has primarily practiced  immigration law from an office in Montgomery County. By the account of the many current and former clients and his colleagues in the immigration bar, Mr. Riely has worked tirelessly on behalf of those in need of representation before immigration authorities. Relatively late in his career Mr. Riely came to the attention of Bar Counsel as a result of two client matters to which he paid insufficient attention, and which at least temporarily put those clients at risk of removal from the United States. In the case of one client, he made misleading statements to minimize his responsibility for the deficiency.

In 2016, a Guatemalan couple seeking asylum in the United States was referred to Mr. Riely for assistance. Although the couple did not immediately pay the modest deposit required by the representation agreement and Mr. Riely initially believed that he had not been retained, he later learned that they had made the required payment some weeks after their meeting. Nonetheless, he neglected to appear at their proceedings or to communicate to them that he would not be doing so, which resulted in a missed deadline, with serious potential consequences for the couple. 

The second matter involved a Venezuelan client whom Mr. Riely had previously helped – to her great satisfaction – escape an abusive employment relationship while maintaining legal status in the United States under an employment-based visa. Some years later, in 2017, she and her new employer sought Mr. Riely’s assistance in obtaining an extension of that visa. As a result of confusion caused when Mr. Riely mis-addressed an invoice to the client, Mr. Riely did not act on the timetable for obtaining the extension that he himself had specified. He later made misleading statements to the client and an immigration enforcement agent as to whether he had made a required filing on the client’s behalf by that deadline; in a later misrepresentation to Bar Counsel, he suggested that the client, rather than himself, was the cause of that deficiency. Although he helped rectify the situation by confessing to immigration authorities that he had provided the client with ineffective assistance, he had placed her in jeopardy of removal from the country.

The misconduct was apparently not motivated by a desire to profit at the expense of these clients. And, as a result of the efforts of successor counsel, in the end it does not appear that the clients, in either matter, are worse off for Mr. Riely’s misconduct. But, in  both instances, the clients were seriously inconvenienced and their ability to remain in this country was put at significant risk without an appropriate adjudication of their cases under the immigration law – a risk for which Mr. Riely was largely responsible.

A dissent would impose disbarment.

Footnote 24 devotes extensive discussion to an issue raised at oral argument.

Two Assistant Bar Counsel had the file and had offered the attorney a non-suspensory sanction at an early stage of the investigation.

The hearing judge had been critical of the withdrawal of the offer.

The court declined to delete that comment despite Bar Counsel's urging

It is, of course, necessary for attorneys such as prosecutors and Assistant Bar Counsel to initiate discussions of a potential disposition of a case without unnecessarily constraining the public interest or misleading the opposing side. Such discussions require clarity in what is being proposed – that a proposed disposition is based on an attorney’s own view of what he or she knows of the case at the time of the discussion and, if the proposal awaits approval by “higher-ups,” a clear indication of that qualification. Such clarity is particularly important on the part of those who exercise public authority.

We trust that the experience of having confronted the issue in this case will result in improved communication in the future, both internally and externally, as to Bar Counsel’s .position on a pre-hearing resolution of a disciplinary proceeding.

Two observations: First, the court resolves a matter that was heard in August, 2019 - a system that gets from the hearing to final resolution in 14 months is an efficient disciplinary process. Second, the court cites my old friend Melvin Hirshman in footnote 16. Mel was longtime Maryland Bar Counsel and was universally loved and admired by his colleagues in bar discipline.  (Mike Frisch)

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