What We Had Here Was A Failure To Communicate

The District of Columbia Court of Appeals rejected Disciplinary Counsel’s call to increase the sanction in a matter where the Board of Professional Responsibility had imposed an informal admonition.

Rather, the court adopted the recommended sanction.

The matter involved a client complaint filed in 2009 that led to the filing of charges in 2013. 

A hearing committee had  imposed an informal admonition in 2017. 

Disciplinary Counsel appealed and sought a public censure before the board. 

The most significant aspect of the matter is a footnote dealing with a possible remand (this was already a “much ado” situation).

The court declined an invitation to consider uncharged other rule violations as an aggravating factor. 

The violation (which the attorney had conceded) involved his failure to keep a client “reasonably informed” about the status of the case for over a year.

In August 2005, Dr. Chen, a Chinese national and post-doctoral student at the University of Pittsburgh, contacted Mr. Schwartz to apply for lawful permanent resident status through an employment-based petition. After speaking with Mr. Schwartz’s Mandarin-speaking assistant, June Miyata, Dr. Chen executed a retainer agreement sent to him by Ms. Miyata, with the understanding that Mr. Schwartz was to pursue an employment-based adjustment of Dr. Chen’s immigration status through a national interest waiver. Mr. Schwartz admitted that he did not directly communicate with Dr. Chen prior to Dr. Chen executing the retainer agreement and also did not inform Dr. Chen that his case would be behind several other clients’ matters. For the next six months, Dr. Chen communicated exclusively with Ms. Miyata and sent her documents that she requested for his case. In April 2006, Dr. Chen met Mr. Schwartz in person for the first and only  time at Mr. Schwartz’s office to turn over several documents needed for his immigration case.

For the rest of that year, Mr. Schwartz did not contact Dr. Chen about the status of his case. In January 2007, Ms. Miyata’s own work permit was denied and she returned to China. Mr. Schwartz did not hire a replacement and, according to Mr. Schwartz, “there came a time when the system essentially crumbled” which led to Mr. Schwartz neglecting to contact Dr. Chen for three to four months, as he “could not find [Dr. Chen’s] file.” Despite delays in the case due to deficiencies in the documents Dr. Chen provided, Mr. Schwartz did not contact Dr. Chen to remedy those deficiencies

From April 2006 to March 2007, Dr. Chen inquired twice by e-mail requesting an update on his case. Following the first e-mail, Mr. Schwartz briefly replied: “I am working on an emergency deportation case and will reply in several days.” In the following five weeks, Dr. Chen sent Mr. Schwartz seven follow-up e-mails expressing his frustration with the lack of any response from Mr. Schwartz or his office. On June 4, 2007, Dr. Chen terminated representation with Mr. Schwartz.

The complaint quickly followed.

Disciplinary Counsel filed charges that were heard by a hearing committee and appealed the committee’s informal admonition.

The Board found that Disciplinary Counsel “failed to prove the alleged factors offered in aggravation by clear and convincing evidence” and therefore declined to issue a greater sanction.

The court found no basis to overturn the board

On appeal, Disciplinary Counsel maintains that Mr. Schwartz’s failure to return the $2,000 fee paid to him by Dr. Chen constituted prejudice. However, Disciplinary Counsel did not attempt to establish before the Hearing Committee that Mr. Schwarz’s failure to provide a refund was improper.

The key footnote

We acknowledge without deciding Disciplinary Counsel’s argument that we should remand to the Board for fuller development of the record and resolution of the due process issue. In its order, the Board discussed, but found it unnecessary to decide, that adopting Disciplinary Counsel’s argument that the Board increase Mr. Schwartz’s sanction based on “aggravating factors” may violate Mr. Schwartz’s right to due process. This alleged due process violation was based on Disciplinary Counsel’s decision not to charge Mr. Schwartz with, and present evidence of the additional rule violations – Rule 1.16(d) (failure to surrender “papers and property to which the client is entitled”) and Rule 1.5 (charging an unreasonable fee) – before the Hearing Committee, that it later sought to use against Mr. Schwartz to support a harsher sanction before the Board. This change in course may have deprived Mr. Schwartz of the opportunity to defend himself against those allegations. In fact, before the Hearing Committee,  Disciplinary Counsel was asked whether it intended “to offer [evidence] in support of aggravation” and Disciplinary Counsel stated: “Counsel will indicate we have no evidence in aggravation.” “Because disciplinary proceedings are quasicriminal, attorneys subject to discipline are entitled to due process of the law.” In re Fay, 111 A.3d 1025, 1031 (D.C. 2015) (internal quotation marks omitted). Due process requirements are satisfied upon “adequate notice of the charges and a meaningful opportunity to be heard.” Id. However, because we do not find that Disciplinary Counsel bore its burden of producing evidence in aggravation to warrant a harsher sanction, we do not reach the due process issue.

Very few informal admonitions reach the court of appeals.

The most notable one involved a revolving door violation by a former Legal Advisor to the Department of State.

The decision is linked here.

Counsel before the court in that case

 Samuel Dash, with whom David B. Isbell, Washington, DC, Robert J. Sisk, New York City and M. Kathleen O’Connor, Washington, DC, were on the brief, for respondent. Leonard H. Becker, Bar Counsel, with whom Michael S. Frisch, Senior Assistant Bar Counsel, was on the brief, for Bar Counsel. Edwin D. Williamson, filed a brief as amicus curiae on behalf of respondent.

Some fond memories there.

David Isbell (one of the finest lawyers I ever saw in action) tried the case. He was Jimmy Stewart in real life.

Sam was my mentor and friend who argued the appeal. He played an instrumental role in my appointment as Ethics Counsel at Georgetown Law.

Len taught me more about excellence that any other lawyer I have worked for.

I carried Len’s briefcase.

The per curiam decision  here was issued by Chief Judge Blackburn-Rigsby, Associate Judge McLeese, and Senior Judge Ruiz. (Mike Frisch)