STATEWIDE GRIEVANCE COMMITTEE

 

Awal Amadou, Complainant vs. Richard Williams, Respondent

 

 Grievance Complaint #02-0244

 

    DECISION 

 

Pursuant to Practice Book §2-35, the undersigned, duly-appointed reviewing committee of the Statewide Grievance Committee, conducted a hearing at the Superior Court, 95 Washington Street, Hartford, Connecticut on April 3, 2003.  The hearing addressed the record of the complaint filed on September 5, 2002, and the probable cause determination filed by the Stamford/Norwalk Judicial District Grievance Panel on December 19, 2002, finding that there existed probable cause that the Respondent violated Rules 1.1, 1.3, 1.4, 1.5(b), 1.16(b), 3.1, 3.2 and 8.4(3) and (4) of the Rules of Professional Conduct and, Practice Book §2-32(a)(1).

 

This matter was originally scheduled for a hearing on March 6, 2003.  Notice of the hearing was mailed to the Complainant and to the Respondent on February 5, 2003.  The hearing, however, was continued at the request of the Respondent to April 3, 2003.  Notice of the April 3, 2003 hearing was mailed to the Complainant and to the Respondent on February 18, 2003. The Complainant, represented by Attorney Jennifer Rodriquez, appeared at the hearing and testified. The Respondent also appeared at the hearing and testified.  Reviewing committee member Attorney Kathleen Stingle was unavailable for the hearing.  The parties, however, waived the participation of Attorney Stingle and agreed to have the undersigned render this decision.  An exhibit was admitted into evidence.

 

This reviewing committee finds the following facts by clear and convincing evidence:

 

The Complainant retained the Respondent in September of 1998 to represent him in connection with an immigration removal proceeding.  The Respondent did not provide the Complainant with a written retainer agreement.  Between September of 1998 and April of 2002, the Complainant paid the Respondent approximately $1,700 for his services. 

 

The Respondent appeared before the Immigration Court on behalf of the Complainant on September 15, 1998 and October 12, 1998 and both times requested a continuance, which the court granted.  A final hearing date was set for February 8, 2000.  Prior to the February 8, 2000 hearing date, the Complainant provided the Respondent with his tax returns and other information required for the hearing.  The Complainant also requested the Respondent’s assistance in obtaining his expired passport from the Immigration and Naturalization Service (hereinafter “INS”) so that he could get it renewed.  The Respondent never took any action to obtain the Complainant’s passport. 

 

On or about February 4, 2000, the Respondent filed various documents in support of the Complainant’s application for adjustment of status and in the alternative voluntary departure.  The Respondent arrived late to the hearing on February 8, 2000.  At the hearing, the Immigration Judge noted that the documents submitted by the Respondent in support of the Complainant’s application for adjustment of status did not comply with the local rules of the Hartford Immigration Court.  The court noted that the documents were not tabbed or paginated and that the submission did not contain an index or a certificate of service.  Furthermore, the documents were not timely submitted since they were not filed ten days prior to the hearing. Moreover, the court found that the submissions did not contain the required affidavit of support for review of adjustment of status.  The Immigration Judge denied the Complainant’s application for adjustment of status on the basis that the Complainant had not established his statutory eligibility since he had failed to present the court with the basic documentation required in order to reach a determination. 

 

The Respondent also sought, in the alternative, voluntary departure on behalf of the Complainant.  The court denied the Complainant’s request for this relief due to the fact that the Complainant did not have a valid passport.  The court ordered the Complainant deported and removed and advised that the Complainant had until March 9, 2000 to file an appeal. 

 

On February 16, 2000, the Respondent filed an appeal of the Immigration Court’s decision with the Board of Immigration Appeals (hereinafter “BIA”) on behalf of the Complainant.  The Respondent indicated in the appeal papers that he would be filing a brief.  On June 23, 2001, the Respondent filed a motion for extension of time to file his brief.  The Respondent stated the following in support of his motion:

 

[I]n order to prepare a detailed, comprehensive brief in this matter, thoroughly covering the areas of fact and law by the Immigration Judge, counsel seeks a three week extension in which to finish and submit the Opening Brief.

 

On July 14, 2001, the Respondent filed a one page, two paragraph brief, which contained no caselaw in support of his claims.

 

The BIA dismissed the Complainant’s appeal on March 15, 2002.  The Complainant learned about the dismissal of the appeal by contacting the BIA directly and thereafter so advised the Respondent.  The Respondent told the Complainant that he had not received a copy of the decision.  The Complainant asked the Respondent to obtain a copy of the decision.  The Respondent, however, failed to do so. 

 

The Respondent advised the Complainant that he could file a motion to reopen.  The Complainant agreed, and paid the Respondent $110 for the filing fee and $200 towards the Respondent’s $500 fee.  Again, the Respondent failed to provide the Complainant with a written retainer agreement.  The Complainant provided the Respondent with the necessary documents and signed the required forms on April 12, 2002.  The Respondent advised that the motion would be filed within a week.  The Respondent did not file the motion to reopen.

 

The Respondent failed to return the Complainant’s telephone calls regarding the status of the motion to reopen.  The Complainant, thereafter, retained Attorney Michael Boyle in August of 2002.  The Complainant and Attorney Boyle contacted the Respondent numerous times to obtain the Complainant’s file.  The Respondent did not respond to the Complainant or Attorney Boyle. After several weeks, the Respondent sent the Complainant’s file to Attorney Boyle.  The Respondent advised Attorney Boyle that he would refund the Complainant the $1,700 paid to the Respondent.  As of the date of the hearing before this reviewing committee, the Respondent had not refunded the retainer to the Complainant.

 

On or about November 22, 2002, Attorney Boyle and the INS filed a Joint Motion to Reopen and Remand the Complainant’s case.  The BIA granted the motion on January 30, 2003. The matter was pending at the time of the hearing before this reviewing committee.

 

The Respondent did not respond to the grievance complaint.

 

This reviewing committee also considered the following:

 

The Respondent testified that he did not file the motion to reopen because the Complainant had retained Attorney Boyle while the Respondent was still preparing the motion.  The Respondent alleged that he intended to file a joint motion to reopen with the Immigration Service and that there was no time deadline to do so.  The Respondent further testified that he knew that the standard motion to reopen had to be filed within thirty or sixty days after the decision.  The Respondent maintained that he did not respond to the grievance complaint because he had problems that kept him out of the office for extended periods of time.

 

This reviewing committee finds the following violations of the Rules of Professional Conduct and Practice Book by clear and convincing evidence:

 

The Respondent failed to provide the Complainant with competent and diligent representation in connection with the removal proceedings before the Immigration Court.  The record reflects that the Complainant’s application for adjustment of status and request for voluntary departure were denied due to the Respondent’s failure to present the court with the required evidence in the proper form.  Despite the fact that the Respondent had over four months to prepare for the hearing, he failed to provide the Immigration Judge with an affidavit of support, which is necessary in order to review an application for adjustment of status.  Furthermore, the other documents filed by the Respondent in support of the adjustment of status were not timely filed and did not comply with the local rules of the Hartford Immigration Court. With respect to the request for voluntary departure, the Respondent failed to obtain the Complainant’s passport from the INS and have it renewed so that the Complainant would have a valid document to enter another country upon being granted voluntary departure.  We find the Respondent’s failure to file the necessary documents with the Immigration Court and his failure to comply with the court’s local rules constitutes a lack of competence, in violation of Rule 1.1 of the Rules of Professional Conduct and a lack of diligence, in violation of Rule 1.3 of the Rules of Professional Conduct. 

 

The record further reflects that the Respondent did not diligently represent the Complainant in his appeal before the BIA.  The Respondent requested a three week extension to file the appeal brief and thereafter filed a one page, two paragraph brief containing no caselaw.  After filing the brief, the Respondent failed to monitor the case to determine the decision on appeal.  The Complainant had to inform the Respondent of the dismissal of the appeal.  Finally, after agreeing to file the motion to reopen on behalf of the Complainant and accepting a filing fee and retainer fee, the Respondent failed to file the motion.  We do not find credible the Respondent’s statements that he did not file the motion to reopen because the Complainant had retained new counsel.  The record reflects that the BIA’s decision was issued on March 15, 2002 and that Attorney Boyle was not retained by the Complainant until August of 2002.  The filing deadline had long since passed by the time Attorney Boyle was retained.   Furthermore, we do not find credible the Respondent’s statement that he was drafting a joint motion to reopen at the time he was discharged.  Whatever the reason for the Respondent’s failure to file the motion to reopen, the fact remains that the Respondent accepted a filing fee from the Complainant and failed to file any type of motion to reopen during the five months following the issuance of the decision and the Complainant’s retention of Attorney Boyle.  We conclude that the actions of the Respondent in connection with his representation of the Complainant in the appeal before the BIA lacked diligence, in violation of Rule 1.3 of the Rules of Professional Conduct. 

 

We further conclude that the Respondent failed to keep the Complainant reasonably informed regarding the status of his case.  The record reflects that the Respondent failed to advise the Complainant that his appeal before the BIA had been dismissed and failed to obtain a copy of the court’s decision as requested by the Complainant.  The Respondent also failed to return the Complainant’s telephone calls regarding the status of the motion to reopen, prompting the Complainant to retain new counsel.  Furthermore, the Respondent did not promptly comply with the requests of the Complainant and Attorney Boyle that his file be forwarded to Attorney Boyle. We find that the Respondent’s lack of communication with the Complainant constitutes a violation of Rule 1.4(a) of the Rules of Professional Conduct. 

 

This reviewing committee finds that the Respondent’s failure to provide the Complainant with a written retainer agreement for his representation of the Complainant in the removal proceedings before the Immigration Court and the BIA violated Rule 1.5(b) of the Rules of Professional Conduct. 

 

Lastly, we conclude that the Respondent’s failure to file a response to the grievance complaint was without good cause, in violation of Practice Book §2-32(a)(1).

 

This reviewing committee could not conclude that the Respondent improperly withdrew his representation of the Complainant, in violation of Rule 1.16(b) of the Rules of Professional Conduct; that the Respondent filed a frivolous claim, in violation of Rule 3.1 of the Rules of Professional Conduct; that the Respondent failed to expedite litigation, in violation of Rule 3.2 of the Rules of Professional Conduct; that the Respondent engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of Rule 8.4(3) of the Rules of Professional Conduct; or that the Respondent’s conduct was prejudicial to the administration of justice, in violation of Rule 8.4(4) of the Rules of Professional Conduct. 

 

We find the Respondent’s ethical violations of Rules 1.1, 1.3, 1.4(a), and 1.5(b) of the Rules of Professional Conduct and Practice Book §2-32(a)(1) to be serious.  Accordingly, we order that the Respondent be presented to the Superior Court for the imposition of whatever discipline the court may deem appropriate.

 

___________________________________

Attorney Robert Kor

 

                                                           

Dr. Frank Regan