Board Recommendations Rejected; Public Wins

The District of Columbia Court of Appeals suspended an immigration attorney who had engaged in persistent neglect and lied in bar proceedings for two years.

The court rejected the Board on Professional Responsibility’s recommendation for automatic reinstatement

We are not persuaded by the Board’s reasons for declining to recommend a fitness requirement. First, we view Mr. Rodriguez-Quesada’s pattern of inexcusable neglect of his clients’ interests, his dishonesty to a judge and the Hearing Committee, and his lack of remorse as demonstrating “a pattern of misconduct or dishonest behavior that raises serious questions as to [Mr. Rodriguez-Quesada’s] integrity or character.” Second, the Board’s statement that Mr. Rodriguez-Quesada cooperated with Bar Counsel is contradicted by the Board’s conclusions that Mr. Rodriguez-Quesada testified falsely before the Hearing Committee, blamed his clients for his failings, and baselessly accused his clients of committing perjury. Third, we do not share the Board’s conclusion that Mr. Rodriguez-Quesada’s rule violations are at bottom attributable to having taken on too many cases. Mr. Rodriguez-Quesada’s rule violations are too serious and extensive to be viewed as the unavailing efforts of an overburdened attorney acting in good faith to protect his clients’ interests. Finally, although Mr. RodriguezQuesada has no prior disciplinary history and is no longer acting as an immigration attorney, those considerations are outweighed by the concerns created by the scope and gravity of Mr. Rodriguez-Quesada’s rule violations in these matters.

We recognize that we ordinarily owe deference to the Board’s recommendation as to the proper sanction to be imposed. On the issue of the need for a fitness requirement, however, we take a significantly different view from the Board as to the seriousness of Mr. Rodriguez-Quesada’s conduct, and we are convinced that a fitness requirement is warranted.

The court also ordered restitution, rejecting the board’s views

The Board acknowledged that Mr. Rodriguez-Quesada was not entitled to retain the entire fee Mr. Abarca had paid. Nevertheless, the Board declined to order restitution, for three reasons: (1) Mr. Abarca had paid Mr. RodriguezQuesada $4,200 rather than the $5,000 due under the retainer agreement; (2) Mr. Rodriguez-Quesada had made some efforts on Mr. Abarca’s behalf; and (3) Mr. Abarca had unsuccessfully sued Mr. Rodriguez-Quesada in small-claims court in Virginia for return of fees, and Bar Counsel therefore bore “a somewhat greater burden than otherwise might be the case to show [that Mr. Rodriguez-Quesada] was not entitled to retain any portion of the fee.” The first two considerations are potentially relevant to the amount of restitution, but do not support an outright denial of restitution, at least barring a more detailed inquiry into the precise benefit to Mr. Abarca of Mr. Rodriguez-Quesada’s efforts. Moreover, Mr. Rodriguez Quesada made some efforts in the other three matters as well, and the Board nevertheless awarded those clients restitution. As to the unsuccessful action to recover fees in small-claims court, the Board took the view that Bar Counsel was not estopped by the result of that action, and Mr. Rodriguez-Quesada has not argued otherwise in this court. Given that undisputed premise, which we accept for present purposes, it is difficult to understand the basis for imposing an unspecified higher burden on Bar Counsel on the issue of restitution. Moreover, Bar Counsel in any event would not appropriately be required to show that Mr. Rodriguez-Quesada was not entitled to retain “any portion of the fee.” Rather, partial restitution could be warranted as long as Bar Counsel showed that at least some portion of the fee was unearned.

The amount of restitution can be addressed if he seeks reinstatement. (Mike Frisch)