STATEWIDE GRIEVANCE COMMITTEE

 

Tsaghik Mkrtchyan, Complainant vs. Walter Burrier, Respondent

 

Grievance Complaint #04-0517

 

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, One Court Street, Middletown, Connecticut on October 14, 2004.  The hearing addressed the record of the complaint filed on June 4, 2004, and the probable cause determination filed by the Ansonia/Milford Judicial District Grievance Panel on August 10, 2004, finding that there existed probable cause that the Respondent violated Rule 5.3(2) of the Rules of Professional Conduct.

 

Notice of the hearing was mailed to the Complainant, to the Respondent and to the Office of the Chief Disciplinary Counsel on August 30, 2004.  Pursuant to Practice Book §2-35(d), Chief Disciplinary Counsel Mark Dubois pursued the matter before this reviewing committee.  The Complainant did not appear at the hearing.  The Respondent appeared at the hearing and testified. Reviewing committee member George Sawyer was unavailable for the hearing.  Chief Disciplinary Counsel and the Respondent, however, waived the participation of Mr. Sawyer and agreed to have the undersigned render this decision.

 

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

 

On February 2, 2000, the Complainant signed an “IMMIGRATION CONTRACT FOR SERVICES” (hereinafter “contract”) for preparation of an asylum application and a petition for alien relative.  The contract stated that it was between Ron Martinez, the Supervising Attorney and the Complainant.  The contract provided for a flat fee of $1,500 to be paid to the Supervising Attorney.  The space providing for the name of the Supervising Attorney was left blank.  Ron Martinez signed the contract above the signature line identifying himself as “Ron Martinez, J.D.” The signature line for the Supervising Attorney was not signed.

 

By letter dated February 5, 2000, Mr. Martinez forwarded the petition for alien relative to the Immigration and Naturalization Service for filing.  Thereafter, on or about September 26, 2000, Mr. Martinez filed a supplementary brief with the Office of Immigration Judges in connection with the Complainant’s asylum application.  The Complainant’s asylum application was denied and Mr. Martinez, thereafter, contacted the Complainant in January of 2001 for additional fees to appeal the decision to the Board of Immigration Appeals (hereinafter “BIA”).

 

In August of 2001, Mr. Martinez prepared a brief on behalf of the Complainant in connection with her appeal before the BIA.  The brief, however, was not signed by Mr. Martinez. Rather, the brief was signed by the Complainant and filed by the Complainant as a pro se party.  On November 13, 2002, the Complainant’s appeal was dismissed.

 

During the course of his representation of the Complainant, Mr. Martinez provided the Complainant with a business card which included the following information:

 

                        Law Office of Walter Burrier and Associates

                        Ron Martinez, J.D.

                        Law Graduate

                        Former INS Asylum Officer

                        Labor Certification Specialist

                        619 S. Olive St.

                        Suite 203

                        Los Angeles, CA  90014

                        Offc. (213) 489-7329

                        Fax (213) 489-7229

 

This reviewing committee also considered the following:

 

The Complainant maintained that Mr. Martinez presented himself as an attorney licensed to practice immigration law.  The Complainant further maintained that she believed that Mr. Martinez worked for the Respondent and that the Respondent was acting as the “Supervising Attorney.” 

 

In her complaint, the Complainant maintained that Mr. Martinez prepared legal briefs on behalf of the Complainant in connection with her appeal to the BIA.  The Complainant further maintained that Mr. Martinez provided her with incorrect legal advice.  The Complainant claimed that Mr. Martinez failed to explain the BIA’s decision dismissing the appeal, failed to advise her of the thirty day time period to file a petition for review with the Ninth Circuit Court of Appeals, and failed to properly advise her regarding her eligibility for adjustment of status.  The Complainant contended that the Respondent assisted Mr. Martinez in the unauthorized practice of law.

 

Mr. Martinez submitted a letter to the grievance panel regarding the complaint and acknowledged that he worked as a paralegal on the Complainant’s immigration case.  He denied, however, that he ever advised the Complainant that he was an attorney.  Mr. Martinez maintained that neither he nor the Respondent prepared the Complainant’s asylum application.  Mr. Martinez contended that he only prepared the Complainant for the asylum hearing and filed the petition for alien relative.  With respect to the appeal to the BIA, Mr. Martinez maintained that he helped the Complainant prepare the brief, but that the brief was signed by the Complainant in a pro se capacity. 

 

In his answer to the grievance complaint, the Respondent stated that Mr. Martinez was a paralegal with a desk in his office during the time that the Complainant was represented by Mr. Martinez.  The Respondent maintained that he was not the Complainant’s attorney of record but knew the lawyer who was supervising Mr. Martinez.  The Respondent contended that the only time he met the Complainant was when she contacted him in connection with an appeal to the BIA. The Respondent maintained that the Complainant could not afford his fees so he advised her to write her own appeal or have a non-attorney prepare the brief.

 

In his testimony before this reviewing committee, the Respondent stated that Mr. Martinez worked for an immigration consultant and that he shared office space with the Respondent.  The Respondent maintained that he employed Mr. Martinez as an independent contractor.  The Respondent testified that he consented to Mr. Martinez’s use of business cards which represented him to be associated with the Respondent’s office. 

 

This reviewing committee concludes by clear and convincing evidence that the Respondent violated Rule 5.3(2) of the Rules of Professional Conduct.  Rule 5.3(2) states that a lawyer having direct supervisory authority over a non-lawyer shall make reasonable efforts to ensure that the non-lawyer’s conduct is compatible with the lawyer’s professional obligations.  The record reflects that the Respondent allowed Mr. Martinez to share space in his office and use a business card identifying himself as being associated with the Respondent’s office.  Accordingly, the Respondent had a responsibility to adequately supervise Mr. Martinez’s conduct and work product to ensure compliance with the Rules of Professional Conduct.  The record clearly reflects that the Respondent had no knowledge of Mr. Martinez’s activities in connection with his representation of the Complainant and her immigration matter.  Moreover, the Respondent failed to undertake any efforts to review or supervise Mr. Martinez’s actions to ensure that his conduct complied with the Rules of Professional Conduct.  Accordingly, this reviewing committee concludes that the Respondent’s failure to adequately supervise Mr. Martinez constitutes a violation of Rule 5.3(2) of the Rules of Professional Conduct. 

 

This reviewing committee concludes that a reprimand is appropriate for the Respondent’s violation of Rule 5.3(2) of the Rules of Professional Conduct.  However, the Respondent has been disciplined by a reviewing committee of the Statewide Grievance Committee at least three times within the five-year period preceding the date of the filing of this grievance complaint on June 4, 2004.  During this five-year period (June 4, 1999 - June 4, 2004), the Respondent has been disciplined in the following cases: 

 

(1)        Grievance Complaint #97-1012, Sprouls v. Burrier, reprimand issued on October 6, 2000;

(2)        Grievance Complaint #99-0337, Ramorino v. Burrier, reprimand issued on October 6, 2000;

(3)        Grievance Complaint #99-0737, Reyes v. Burrier, reprimand issued on August 3,                      2001;

 

(4)        Grievance Complaint #02-0037, Keshishyan v. Burrier, presentment ordered on December 12, 2003;

(5)        Grievance Complaint #02-0116, Baghumyan v. Burrier, presentment ordered on January 16, 2004;

(6)        Grievance Complaint #02-0129, Carillo v. Burrier, presentment ordered on January 16, 2004;

(7)        Grievance Complaint #02-0589, Ramorino v. Burrier, presentment ordered on May 7, 2004.

 

As such, pursuant to Practice Book §2-47(d)(1), we direct Disciplinary Counsel to file a presentment against the Respondent in the Superior Court.

 

                                                                        DECISION DATE:      1/6/06

 

____________________________________

Attorney Carl Fortuna, Jr.

 

___________________________________

Attorney Tracie Molinaro