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In re Schlemmer

January 08, 2004


On Report and Recommendation of the Board of Professional Responsibility

Before Terry, Glickman, And Washington, Associate Judges.

The opinion of the court was delivered by: Washington, Associate Judge

Argued October 30, 2003

We review a Report and Recommendation by the Board on Professional Responsibility (the "Board") that Respondent Donald L. Schlemmer ("Respondent") be publicly censured for violating disciplinary rules 1.3 (a) and 1.4 (a). Although Respondent does not challenge the Board's findings of fact, he has noted an exception to the Board's recommended sanction, arguing that an informal admonition is more appropriate than public censure given the circumstances in this case. Because the Board's recommended sanction appears to be inconsistent with sanctions that have been imposed in comparable cases, we remand this case to the Board for further consideration in light of this opinion.

I. Procedural Background

After receiving complaints filed on behalf of two clients whom Respondent had represented in immigration matters, Bar Counsel initiated formal disciplinary proceedings against Respondent on September 18, 2000. On September 26, 2001, an Ad Hoc Hearing Committee ("Committee") concluded that Respondent had violated Rules 1.1 (a), 1.3 (a) and 1.4 (a) in his representation of one client, but that he had not violated any rules regarding the other client. The Hearing Committee Report then recommended that Respondent receive an informal admonition as a sanction. Neither Bar Counsel nor Respondent noted exceptions to Board regarding the Hearing Committee Report.

Upon review of the Hearing Committee Report, the Board adopted the Committee's findings of fact. Although the Board agreed with the Committee that Respondent violated Rules 1.3 (a) and 1.4 (a), the Board did not find a violation of Rule 1.1 (a). Despite the fact that the Board found fewer rule violations than were found by the Committee, the Board recommended that Respondent receive a public censure, a more stringent sanction than the proposed informal admonition recommended by the Hearing Committee. Respondent then noted an exception to the Board's recommended sanction.

II. The Board Findings *fn1

Respondent has been a member of the District of Columbia Bar since July 15, 1988. A sole practitioner in the field of immigration law, Respondent estimates that he has handled "probably thousands" of immigration cases, many of which have been asylum cases like the two involved in this disciplinary matter. Because Respondent's clients typically do not speak English, Respondent often employs independent translators. When representing Spanish-speaking clients, Respondent commonly utilizes the services of Immigration Consultants, a translation service and "independent paralegal company" operated by Julio S. Gagnon ("Mr. Gagnon"). In this case, both complainants were Spanish-speaking individuals who retained Respondent's services because Immigration Consultants referred them to him. *fn2

Fidel Iraheta ("Mr. Iraheta") was a forty-year-old construction worker from El Salvador who could neither read nor understand much English. In 1993, Mr. Iraheta retained Immigration Consultants to prepare a request for asylum and secure a work permit for him. When Mr. Iraheta's asylum case was finally scheduled for a hearing before the Immigration Court in October 1998, Immigration Consultants recommended Respondent as a lawyer who could represent him in those proceedings. Respondent agreed to represent Mr. Iraheta at the preliminary hearing in October 1998 and again at a hearing on the merits in August 1999. At the August 1999 hearing, the immigration judge denied Iraheta's request for withholding of deportation and denied his request for asylum. The judge did, however, grant his request for voluntary departure.

Following the hearing, Respondent met with Mr. Iraheta and translators, Julio Cesar Santiago Gonzalez and Mr. Gagnon, in the offices of Immigration Consultants to discuss the possibility of an appeal. According to Respondent's testimony, when Iraheta indicated that he wanted to appeal, Respondent explained that the appeal would cost $1500 plus a $110 filing fee, of which $750 and the filing fee wereto be paid up-front. Respondent testified that after further negotiations, the parties agreed that Mr. Iraheta would pay the $110 filing fee along with $625 as an up-front partial payment for the appeal. In Respondent's view, he had made it clear to Mr. Iraheta that he was not going to file the appeal unless he "ma[de] that deposit and br[ought] the filing fee."

Mr. Iraheta presented a different version of the agreement that was made that afternoon. According to Mr. Iraheta, he and Respondent "also agreed on what it [would] cost me to submit the appeal, which was $630. That day I paid $325 and agreed that I'd pay the rest on another date, and we did not set a date. They were not rushing me to set a date for payment either." Mr. Iraheta further testified that neither Respondent nor the two translators present ever told him that Respondent would not file the appeal.

Mr. Gagnon was the only translator present during the fee negotiations. According to the Hearing Committee Report, Mr. Gagnon's testimony "appear[ed] to support Iraheta's belief that the total amount of the fee demanded by Respondent was $630." Mr. Gagnon's testimony also suggested that Respondent had agreed to take part of that $630 fee at some later date. *fn3

After considering the testimony of Respondent, Mr. Iraheta, and both interpreters, the Committee concluded that "[t]he terms upon which Respondent testified he conditioned his filing an appeal on Iraheta's behalf were not communicated to Iraheta with sufficient clarity." Indeed, rather than paying the full amount Respondent required, Mr. Iraheta brought a $320 payment to the Immigration Consultants office on August 27, 1999, thirteen days before the appeal deadline. The receptionist gave him a receipt stating that the payment was for "Apelacias," or "Appeal" in Spanish. Mr. Iraheta did not pay any more money for his appeal, and ...

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