Bad Advice
A justice of the Massachusetts Supreme Judicial Court has accepted a recommendation for a one-year suspension with six-months and a day served for an attorney’s incorrect legal advice to a client and failure to cooperate with successor counsel in the same matter
In 2001, Stanley Santana was arrested on several charges and neglected to appear for a court date, resulting in a warrant issuing. In 2013 he hired the respondent to clear that warrant, as well as another warrant issued in connection with a driver’s license matter. The respondent successfully moved to remove the defaults and obtained a dismissal of some of the pending charges; what remained was a charge of possession with intent to distribute heroin and the driver’s license matter.
Santana was a permanent resident who hoped to become a citizen, and informed the respondent that preserving a path to citizenship was his primary goal in resolving the pending maters. The respondent recommended that Santana accept a six-month continuance without a finding (CWOF), advising him that a CWOF for less than one year would have no immigration-related consequences. Following that advice, on March 22, 2017, Santana admitted to sufficient facts as to one count of possession of heroin with intent to distribute, and the case was continued without a finding for six months.
Contrary to the respondent’s advice, Santana’s CWOF could indeed have serious immigration consequences.
A second opinion
A subsequent conversation with an immigration attorney alerted Santana to the fact that the respondent had given him incorrect advice. When Santana then confronted the respondent about this, the respondent essentially doubled down, insisting (incorrectly) that Santana’s six-month CWOF would not count as a conviction under Federal law.
Successor counsel
On August 18, 2018 Santana retained successor counsel, Attorney Murat Erkan, for the purpose of seeking postconviction relief from the CWOF. Attorney Erkan sent the respondent a letter that day requesting Santana’s file, and when the respondent did not reply, he sent follow-up letters on August 27 and December 27; the latter included a request for an affidavit regarding the CWOF.
Finally replying on January 16, 2019, the respondent denied ever advising Santana that there would be no immigration consequences from the CWOF, a statement the committee found to be knowingly false in light of the evidence to the contrary. The respondent sent successor counsel only an incomplete case file and no affidavit, and never responded to several further requests for the items. Nevertheless, in April 2019 Attorney Erkan successfully moved to vacate Santana’s admission to sufficient facts, with the government ultimately agreeing to imposition of only pretrial probation — a resolution that would not count as a conviction for Federal immigration purposes.
Finally, Santana was contacted by a “friend and representative” of Respondent
On July 30, 2019, approximately two weeks before the hearing on the motion to vacate, Familia sent several text messages to Santana, including one claiming that the respondent had asked Familia to contact Santana. Those texts were followed by a phone call, where Familia attempted to get Santana to admit that he was satisfied with the respondent’s representation.
Familia reached out again to Santana in April of 2020, during the pendency of this disciplinary case. As a result, Santana met with Familia, at Familia’s office. At that meeting Familia told Santana that the respondent would prepare an affidavit for Santana’s signature, and warned Santana that the respondent could sue him.
Sanction
In sum, after applying the Kane framework, considering the additional misconduct, weighing the factors in aggravation, and examining the most similar cases, I conclude that the board’s recommended sanction is indeed appropriate. A suspension of one year, with six months and one day to serve, is not markedly disparate from similar cases. Further, given the respondent’s deficiencies in understanding his ethical obligations, it is also appropriate that his reinstatement be conditioned on his taking and passing the Multistate Professional Responsibility Examination and attending five hours of continuing legal education classes pre-approved by bar counsel.
(Mike Frisch)