On Report and Recommendation of the Board on Professional Responsibility (BDN 444-99 & 066-00).
Before Terry and Reid, Associate Judges,and Belson, Senior Judge.
The opinion of the court was delivered by: Reid, Associate Judge
The Board on Professional Responsibility ("the Board") has recommended that respondent, Donald L. Schlemmer, be reprimanded for violating (1) Rule 1.3 (a) of the Rules of Professional Conduct when he failed to file an appeal, as requested by his client, after the Immigration Court denied the client's requests to withhold deportation and to grant him asylum, and (2) Rule 1.4 (a) when he failed to inform his client that the appeal had not been filed. Mr. Schlemmer contended that the client paid only $320 of the required $625 down payment, and that he had told the client that he would not file the appeal until he received the full amount of the down payment. The client, who used an interpreter to communicate with Mr. Schlemmer, understood that the total fee for the appeal was $630, and that $320 was sufficient to initiate the appeal. Ultimately, the Board recommended a reprimand as a sanction. Mr. Schlemmer took exception and argues that an informal admonition was the appropriate sanction. We accept the Board's recommendation.
This is the second time that Mr. Schlemmer's case is before us. In In re Schlemmer, 840 A.2d 657 (D.C. 2004) (Schlemmer I), we considered whether we should adopt the Board on Professional Responsibility's recommendation that the sanction of public censure be imposed on Mr. Schlemmer for his violation of disciplinary rules 1.3 (a)*fn1 and 1.4 (a).*fn2 We remanded his case to the Board after concluding that "both the Board and this court may consider informal admonition letters [issued by Bar Counsel] that contain sufficient information from which to make a reliable comparison." Id. at 663. We identified three informal admonition cases that the Board should consider, and declared that:
[T]he Board is not bound by Bar Counsel's informal admonition letters in recommending an appropriate sanction. Exercising its own judgment the Board may conclude that in a given case, that sanction is too lenient for conduct that . . . can result in forfeiture of a vital client right. We require only that the Board give reasoned consideration to such admonitions that are brought to its attention, in order to avoid inconsistent dispositions for similar conduct.
On remand and with the benefit of supplemental briefs from Mr. Schlemmer and Bar Counsel, the Board issued an order imposing the sanction of a Board reprimand on respondent. In doing so, the Board reviewed and analyzed the three informal admonition cases discussed in Schlemmer I. In distinguishing In re Uriarte, Bar Docket No. 380-02 (BC May 30, 2003), the Board emphasized that unlike Mr. Schlemmer's actions, Mr. Uriarte communicated with the client after failing to file a brief with the Board of Immigration Appeals ("the BIA"):
In our view, Uriarte involved somewhat less serious misconduct than that here. The [R]espondent's failure to file the brief with the BIA resulted from a breakdown in office procedures. When the respondent became aware of the problem, he consulted with his client. Here, Respondent affirmatively decided not to file an appeal, notwithstanding his knowledge that attempts to advise his client that $320 was insufficient had been unsuccessful. Respondent could have preserved his client's rights by simply noting the appeal -- a clerical step -- and paying the $110 filing fee, acts for which the $320 was clearly sufficient, but was concerned that the BIA might not let him withdraw later.
Order of the Board on Professional Responsibility, Bar Docket Nos. 444-99 & 066-00, June 16, 2004 ("Order"), at 7. Thus, the Board regarded Mr. Uriarte's misconduct as less serious than that of Mr. Schlemmer.
The Board also focused on In re Cohen, Bar Docket No. 042-98 (BC March 4, 2003), a case in which the respondent filed a motion to reopen or reconsider a decision of the Immigration Court denying his client asylum, rather than lodging a notice of appeal. He missed the thirty-day filing requirement for an appeal. In contrast to Mr. Schlemmer's action, Mr. Cohen's misconduct resulted from ignorance. The Board concluded that Mr. Schlemmer's failure to notice an appeal was "more serious" than Mr. Cohen's action because "it was not the product of ignorance or negligence, but rather was deliberate, and would have constituted intentional neglect except for Mr. Schlemmer's mistaken belief that he had adequately communicated his fee requirement to [his client]." Order at 8.
The third informal admonition case addressed by the Board was In re Allen, Bar Docket No. 234-96 (BC May 7, 2001). There, the respondent missed a hearing at the Immigration Court, failed to file a waiver of joint petition requirement after a client's divorce, and did not file a timely notice of appeal. Bar Counsel found that Mr. Allen's failure to file an appeal resulted from "negligence." The Board distinguished In re Allen from Mr. Schlemmer's case:
In contrast with Allen . . ., [Mr. Schlemmer's] decision not to note the appeal was not the result of negligence but was instead deliberate. [He] knew that his client had put up $320; he knew that attempts to reach the client had been unsuccessful; and he decided not to use the $320 to pay the filing fee and ...