On Tape
Bad advice on the collateral immigration consequences of a criminal plea (and post hac denials) drew a proposed partially-stayed suspension from the Massachusetts Board of Bar Overseers
[Client] Santana successfully completed his six months of probation, thereby clearing up his potential criminal exposure on the charges to which he admitted sufficient facts. With the criminal case in the rear-view mirror, he met with an immigration lawyer, because others had suggested to him that the CWOF was not the innocuous affair the respondent had suggested. The immigration lawyer confirmed the adverse consequences of the CWOF, including permanent ineligibility for citizenship and the possibility of immediate removal. With this information, Santana and Mayelin Baez met with the respondent. Unbeknownst to the respondent, Baez recorded the audio of the meeting on her phone. As reflected in the audio recording, the respondent disputed forcefully that the CWOF made Santana deportable, and he impugned the qualifications and knowledge of the immigration lawyer who had given them contrary advice. As the hearing committee found, the respondent expressed total confidence in the advice he had given Santana. (HCR ¶¶. 26-29). In the meeting, he was recorded saying the following: “[L]ifetime deportation? You got a CWOF, under a year? … It was continued without a finding … it’s not a conviction.” (HCR ¶ 26).8 In other words, he continued to labor under the misimpression that a CWOF of less than one year would not have an impact on Santana’s immigration status. The respondent apparently did not know (either at the time of the plea deal or about one year later at the meeting with Santana and Baez) that a conviction for possession of heroin with intent to distribute was an aggravated felony under immigration law, which would render a defendant deportable and ineligible for reentry and citizenship.
In addition (and somewhat to the contrary), the respondent told Santana and Baez that his (the respondent’s) primary objective for the engagement was not avoiding deleterious immigration impacts, but to avoid prison time. In salty language, which we quote verbatim, he laid bare his strategy:
Listen! Stanley, I didn’t give one fucking iota about any immigration issues when I pled the case … I wanted to get this case resolved without jail, with any. I don’t care about that … My whole take on this was to keep you out of jail. That’s my first for anyone I represent. I don’t give a shit about immigration.
The client retained immigration counsel who sought the file and confirmation of the advice
Responding on January 16, 2019 (more than five months after the initial request), the respondent specifically denied that he had provided Santana with incorrect legal advice. He asserted that he had fully explained to his former client the consequences of his plea and denied telling him there would be no immigration consequences from the CWOF. He sent an incomplete copy of Santana’s file. The hearing committee found the respondent’s statements in his January letter were knowingly false. Specifically, they were inconsistent with his conversation with Santana and Baez at their meeting on February 22, 2018. They were also inconsistent with Santana’s testimony about the advice from the respondent at the time of the plea.
Proposed sanction
We recommend that the Supreme Judicial Court suspend the respondent’s law license for one year, with six months plus one day to serve, the balance suspended. We also recommend that the court impose on the respondent the conditions that, prior to reinstatement he take and pass the Multistate Professional Responsibility Examination (which is required for suspensions longer than one year) and attend five hours of continuing legal education classes pre approved by bar counsel.
An information shall be filed in the Country Court recommending the suspension of the respondent’s law license for one year, with six months and one day to serve, the balance suspended on conditions as outlined herein.
(Mike Frisch)