Thirty!

The District of Columbia Board on Professional Responsibility has recommended a suspension of six months with fitness in a case involving multiple acts of misconduct in handling immigration appeals

Disciplinary Counsel charged Respondent with violations of the Rules of Professional Conduct arising from thirty separate cases. Prosecuting in bulk is not the typical approach, and it presents unique challenges for the disciplinary system. Nonetheless, on the whole, the Hearing Committee did an admirable job and, with a few exceptions, we adopt its Report and Recommendation.

We depart from those recommendations in three areas…First, we do not agree with the Hearing Committee’s conclusion that routinely disregarding court orders did not seriously interfere with the administration of justice. Second, we do not agree with the Hearing Committee’s conclusion that a lawyer must set forth all of the reasons why he or she would like more time to file a brief in a consent motion for an extension of time. Third, we do not agree with the Hearing Committee that when a lawyer seeks more time so that he or she can resolve the financial details of a relationship with his or her client, that constitutes a delay for no legitimate purpose. Finally, we do think that on these facts the Respondent should be required to show fitness.

The charges were filed in November 2012. An interim suspension was ordered on February 6, 2013.

The hearing was held in July 2013 and the hearing committee report did not arrive until August 10, 2016.

The attorney has now served an interim suspension of more than four years.

The process, at least in part, is the punishment.

The board described the violations

…after filing the thirty Petitions for Review, Respondent failed to file a brief in twenty-nine of those cases because his clients determined that they could not go forward with the Petition. Even in the one case in which Respondent did file a brief, he failed to file an appendix. Yet Respondent did not dismiss the actions when his clients decided not to go forward; instead, he simply did nothing, and the Fourth Circuit dismissed the petitions for failure to prosecute under Fourth Circuit Rule 45.

As a result, Respondent ignored court filing deadlines in all thirty cases. However, in seventeen of those cases, Respondent filed one or more consent motions for more time. Disciplinary Counsel noted that these requests for more time used the same boilerplate language in each case—that Respondent was a busy solo practitioner and that the case was complicated. Disciplinary Counsel alleges that Respondent filed these motions for different reasons than those given in the consent motions, and that the real reason for filing the extensions was that the persons for whom he filed Petitions had either not yet determined whether to hire Respondent or had already decided not to pursue the Petition.

The board found the conduct was prejudicial to the administration of justice

the Hearing Committee’s application of [precedent in finding no violation]  produces a counterintuitive result: whether a lawyer violates Rule 8.4(d) would seem to depend not on the lawyer’s conduct but, rather, on how efficiently the court before which the lawyer practices is managed. A lawyer who routinely disregards court orders—as Respondent did here—when practicing before a well-run court receives a disciplinary windfall under the Hearing Committee’s reading of Hopkins, which asked only if there was an actual interference with the administration of justice. However, Rule 8.4(d) broadly encompasses conduct that at least potentially impacts the judicial process to a “serious and adverse degree.” Hopkins, 677 A.2d at 61.

But the various motions for extensions were not dishonest

A motion for an extension does not require a confession of the lawyer’s primary reason for the request—for example, prior procrastination. Failing to disclose to the court the primary reason for a request for an extension is not generally misleading or dishonest, nor is it misleading or dishonest in this case. There is no requirement that an attorney “disclose a principal or substantial reason for [his or her] request, wholly apart from the reasons proffered to the court.” H.C. Rpt. at 87. Rules 3.3(a) and 8.4(c) require candor and honesty, not an exhaustive litany of every motivation for filing a motion. Respondent need only truthfully provide one or more of the legitimate reasons the Court would be justified in granting an extension, and not omit material facts in an effort to mislead the court. Rule 8.4(c) requires candor, but not completeness. See Rule 8.4(c) (“It is professional misconduct for a lawyer to . . . [e]ngage in conduct involving dishonesty, fraud, deceit, or misrepresentation.”). Here, the information Respondent did not include was not material. It is hard to imagine, for example, that Respondent’s failure to include his clients’ financial situation would, in any way, have mattered to the Fourth Circuit. This is a far cry from misleading or lying to the Court. We do not agree with the Hearing Committee’s determination in these three cases that Respondent violated Rule 3.3(a) and Rule 8.4(c), because neither Rule requires that a lawyer present every reason, or even the principal reason, for the Court to grant a motion for extension. Disciplinary Counsel therefore did not prove by clear and convincing evidence that the reasons proffered in the motions for extension in either Lazo II, Ali, or Bowen were false or misleading.

Moreover, consent motions, generally, require less explanation of why they are justified. Short consent motions are good for every part of the legal system: judges have to wade through fewer papers; lawyers have less writing to do; and clients do not pay for lawyers to fight about things that are not in dispute.

And the attorney’s motions were not brought solely for delay

Respondent had a purpose in bringing these motions other than delay: to allow Respondent to receive payment. The implicit premise in the argument that supports the Hearing Committee’s conclusion is that delaying a proceeding in order for the lawyer to receive payment is an improper purpose. The Hearing Committee does not offer support for this proposition. We have been able to find none…

Again, the motions Respondent filed were consent motions. The affected third-party agreed to the delay. While it may have been annoying for the Executive Office for Immigration Review to be unable to move the case along, these extensions of time added no more work, no more cost, and no potential for prejudicing that third-party’s interests. The third-party, in short, was minimally affected, if affected at all. Moreover, the reason Respondent sought the delay was not to injure or harass the third-party but, instead, to get paid. This is, of course, less noble than working to advance his client’s cause, but getting paid is an important reality of the private practice of law. In the absence of authority to the contrary, we are reluctant to determine that modest delay that does not meaningfully injure a third-party is an improper purpose such that it would violate Rule 4.4(a).

The board rejected a number of challenges to the process raised by the attorney.

Respondent argues that this matter should be dismissed for several reasons: (1) he has been suspended since February 2013, and has been prejudiced by the Hearing Committee’s delay in preparing its report and recommendation; (2) the Hearing Committee failed to complete its report within 120 days, in violation of D.C. Bar R. XI, § 9(a); (3) under D.C. Bar R. XI, § 3(a)(2), he cannot be suspended for more than three years (and he has already been suspended for more than four years pursuant to D.C. Bar R. XI, § 3(c)); (4) the evidence does not support a finding of misconduct; (5) the Board does not have jurisdiction to discipline him; and (6) he was not served with a copy of the hearing transcript together with the Hearing Committee report and recommendation. We reject these arguments.

Sanction

In thirty cases, Respondent ignored court orders. He did so as a matter of course. He testified that he believed having the Fourth Circuit dismiss an appeal instead of voluntarily dismissing it would help his clients (see, e.g., Tr. 392-96) when that is flatly inconsistent with the text of the rule and the testimony of an expert (see, e.g., Tr. 117-18). And he testified not only that this was his understanding in the past, but that it continued to be his understanding even as these proceedings unfolded, even during oral argument before the Board.

We are impressed by the sheer number of cases—thirty!—where Respondent violated court orders, his response to being corrected about basic issues such as how the rules of the Fourth Circuit function throughout this process, and his intransigence with respect to numerous points about how basic parts of the practice of law work (e.g., it is wrong to have a client sign something while in custody because that would be inherently coercive (Tr. 458)). On this record, with this quantum of continued misconduct and the likelihood of his repeating such conduct, we have little trouble concluding that there is “clear and convincing evidence that casts a serious doubt upon the attorney’s continuing fitness to practice law.” Carter, 887 A.2d at 6.

The case is In re Aroon Padharia and can be accessed at this link. (Mike Frisch)