Stay (Just A Little Bit Longer)

The District of Columbia Court of Appeals agreed with the Board on Professional Responsibility that an attorney’s absence from the disciplinary hearing did not preclude the imposition of a stayed suspension

[Office of Disciplinary Counsel]  filed an exception to the Hearing Committee’s Report and Recommendation, arguing solely that Mr. Villarreal was not eligible for a stay because he did not participate in the hearing before the Hearing Committee and had not shown remorse. Mr. Villarreal responded that his absence from the hearing— which he notified ODC of beforehand because he did not want to represent himself and could not afford an attorney—was already considered as an aggravating factor that increased his sanction from an informal admonition to a stayed suspension.

The Board adopted the Hearing Committee’s findings of fact and agreed with the Hearing Committee’s conclusions regarding the Rule violations. On the issue of sanction, the Board agreed with the Hearing Committee and recommended that Mr. Villarreal receive a thirty-day suspension, stayed in favor of one year of unsupervised probation with conditions. In reaching this recommendation, the Board agreed with the Hearing Committee that Mr. Villarreal’s conduct was less serious than other cases where respondents received thirty-day suspensions with no stay. The Board further agreed that this case could be distinguished from similar cases where respondents received non-suspensory sanctions because Mr. Villarreal’s “failure to appear at the hearing marks an unwillingness to acknowledge error or demonstrate remorse.” The Board concluded that Mr. Villarreal’s “clean disciplinary slate” and responsiveness to ODC’s inquiry letter and requests for documents were mitigating factors that warranted a sanction between the two extremes, which is why the Board agreed that a stay should be imposed.

The court

We conclude that a stayed thirty-day suspension is an appropriate sanction in this case. Mr. Villarreal’s misconduct was serious and prejudiced his client. On the other side of the ledger, Mr. Villarreal’s conduct did not involve dishonesty, and Mr. Villareal has no prior disciplinary history. See, e.g., In re Martin, 67 A.3d 1032, 1055 (D.C. 2013) (noting lack of disciplinary history as mitigating factor). Further, although Mr. Villarreal did not appear at the disciplinary hearing, the Board reasonably took into account that Mr. Villareal otherwise cooperated with ODC’s investigation and provided a reason for his absence.

Based on the totality of the circumstances, we cannot say there is a reason to depart from the “strong presumption in favor of” the Board’s recommended sanction. Id. at 1053 (internal quotation marks omitted). Further, the sanction recommended by the Board is appropriate when compared with other cases involving similar conduct. Mr. Villarreal’s actions were more serious than similar cases in which we imposed a non-suspensory sanction.

The misconduct involved the client’s desire to reopen an immigration matter

The Hearing Committee concluded that ODC had proven violations of D.C. R. Pro. Conduct 1.1(a) and 1.1(b) because Mr. Villarreal did not ask Ms. Hernandez for sufficient documentation to support the motion to reopen and should have inquired what documentation was needed to support the motion if he was unaware. The Hearing Committee also concluded that ODC had proven a violation of D.C. R. Pro. Conduct 1.3(a) because Mr. Villarreal failed to gather the necessary documents to support the motion despite having ample time to do so. The Hearing Committee concluded, however, that ODC had not proven a violation of D.C. R. Pro. Conduct 1.3(c) because there was not clear and convincing evidence that Mr. Villarreal acted with unreasonable delay.

(Mike Frisch)