Choice Of Law Error Draws Dismissal, Remand

The Wisconsin Supreme Court dismissed improperly charged counts on choice of law grounds but remanded for renewed consideration of other charges that had been sustained

This matter was scheduled for oral argument on November 7, 2022, but was removed from the oral argument calendar because the court determined that the case presented an unresolved choice of law issue. In order to resolve that issue, we asked the parties to advise whether Supreme Court Rule (SCR) 20:8.5(b) required that the counts of misconduct alleged in the complaint filed by the Office of Law Regulation (OLR) that arose out of Attorney Matthew Luening’s representation of clients before an immigration tribunal should have been pleaded under the rules promulgated by the Executive Office of Immigration Review (EOIR), as set forth in 8 C.F.R. § 1003.102, rather than under Wisconsin’s Rules of Professional Conduct. Having considered the parties’ submissions on that issue, we conclude that OLR should have charged the counts of misconduct connected with cases pending before immigration tribunals under EOIR rules. We also conclude that the appropriate remedy for OLR’s decision not to do so is to dismiss those counts of misconduct and to remand the matter to the referee for a recommendation on the appropriate sanction for the remaining counts of misconduct found by the referee.

Respondent had not raised the choice of law issue when charged under the Wisconsin rules but the court granted relief

In resolving the choice of law issue presented in this case, we find the Maryland court’s Tatung decision to be both helpful and persuasive. The Tatung court noted that EOIR implemented “Professional Conduct for Practitioners – Rules and Procedures” in 2000 “to protect the public, preserve the integrity of immigration proceedings and adjudications, and maintain high professional standards among immigration practitioners. 8 C.F.R. § 1003.102.” Tatung, 476 Md. 45, 82, 258 A. 3d 234.

The failure to properly charge EOIR violations led to dismissal

Counts one through seven of OLR’s complaint should have cited EOIR rules, as the Din complaint did. We conclude, as did the Tatung court, that the appropriate remedy for OLR’s decision not to prosecute Attorney Luening’s immigration-based misconduct counts under EOIR rules is to dismiss those counts of the complaint. We note that dismissal of those counts will not end the matter since the referee also found that OLR met its burden of proof on additional misconduct that was not connected with a case pending in a federal immigration tribunal. It is therefore appropriate to remand the matter to the referee so that he may issue a revised recommendation as to the appropriate sanction to be imposed for the remaining counts. We will issue our final decision in the case in due course, following remand.

(Mike Frisch)