A Choice Not An Echo

The District of Columbia Board on Professional Responsibility recommends a one-year suspension with fitness of an attorney admitted in 1970 for misconduct in an immigration matter.

There had been a charging error on the choice of law

The Specification of Charges only alleged violations of the D.C. Rules, and the Hearing Committee did not consider whether the conduct connected to matters pending before non-D.C. tribunals required application of that tribunal’s rules of conduct. Here, Respondent’s conduct concerned matters pending before the BIA, the U.S. District Court for the District of Maryland, and the U.S. Court of Appeals for the Fourth Circuit. On March 20, 2024, the Board ordered that the parties address the appropriate choice of law, as provided by D.C. Rule 8.5(b)(1), in their briefing to the Board because the alleged misconduct occurred in connection with matters pending before tribunals not located in the District of Columbia.

The error was harmless

We adopt the Committee’s findings of the other Rule violations, but only after concluding that Respondent is not prejudiced by the application of the D.C. Rules instead of rules that apply to conduct at issue here that occurred before other tribunals, specifically the Board of Immigration Appeals (BIA), the U.S. District Court for the District of Maryland, and the U.S. Court of Appeals for the Fourth Circuit under D.C. Rule 8.5(b)(1).

The issue was not waived

In regard to Disciplinary Counsel’s claim of waiver, it cites no authority from the Court of Appeals to support the argument that the Board should decline to consider an issue because neither party has raised the issue. Pursuant to D.C. Bar R. XI, § 9(b) and Board Rule 13.7, “the Board cannot merely rubber-stamp the Hearing Committee’s report when no exceptions are filed,” but “must decide the matter on the basis of the Hearing Committee record.”

Disciplinary Counsel prevailed on a “dishonesty” allegation not found by the hearing committee

Based on the Committee’s own credibility findings, see, e.g., FF 58-60, we agree with Disciplinary Counsel that Respondent engaged in dishonesty by not disclosing that the BIA appeal had been summarily dismissed due to his own incompetence in filing an improper Notice of Appearance and his own lack of diligence in not filing a brief after two extension requests. By not disclosing the reasons for the dismissal, Respondent misled Mr. Andoh by falsely suggesting that the dismissal was due to the BIA being a difficult court and that Mr. Andoh was more likely to prevail in the U.S. District Court. The dishonesty continued as he asked for additional fees and encouraged Mr. Andoh to pursue fruitless actions and appeals in the U.S. District Court and the Fourth Circuit under the Administrative Procedure Act, all with Mr. Andoh not being told the reason why the BIA dismissed the appeal in the first place. Mr. Andoh did not know Respondent had not filed the brief or the reasons for the BIA dismissal until he was advised by the AYUDA attorneys.

When addressing the D.C. Rule 8.4(c) charge, the Committee should have considered the fact that Respondent had a responsibility to disclose the reason for the BIA dismissal to his client. Even if he had an erroneous good faith belief (resulting from his own incompetence) that his client could prevail in the U.S. District Court, it does not erase the fact that he misled his client by not disclosing the reason for the BIA’s dismissal.

Sanction

we recommend a fitness requirement upon any application for reinstatement. We have a real skepticism—given the seriousness of the misconduct, the prior discipline history, the lack of remorse or acknowledgment of any wrongdoing, and his conduct in these disciplinary proceedings—that Respondent will be able to conform his practice to the standards of our Rules of Professional Conduct…

We recommend that Respondent’s license to practice law be suspended for one year, with a fitness requirement upon any application for reinstatement.

(Mike Frisch)