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In re FitzGerald


October 22, 2009


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

On Report and Recommendation of the Board on Professional Responsibility

(BDN 376-07)

Argued September 21, 2009

Before REID and THOMPSON, Associate Judges,and KING, Senior Judge.

Respondent Desmond P. FitzGerald has been a member of the District of Columbia Bar, with inactive status, since January 8, 1999. On September 24, 2007, the Board of Bar Overseers of the Supreme Judicial Court of Massachusetts ("Massachusetts Board") issued an Order of Public Reprimand to respondent for violating Rules 1.1 (competence), 1.3 (diligence), 1.4 (communication), 1.7 (b) (personal conflict of interest), and 1.16 (a)(1) (failure to withdraw representation) of the Massachusetts Rules of Professional Conduct.*fn1 The Massachusetts Board notified Bar Counsel in this jurisdiction of respondent's disciplinary violations, and Bar Counsel filed a certified copy of the Order of Public Reprimand with this court on December 13, 2007. We issued an interim order on January 7, 2008, directing the Board on Professional Responsibility (the "Board") to advise the court as to whether (1) identical, greater or lesser discipline should be imposed as reciprocal discipline, or (2) the Board elected to proceed de novo. The Board issued its report on July 24, 2008, recommending that the court impose a 30-day suspension as "substantially different reciprocal discipline."

I. The Governing Rule

If the Massachusetts discipline had been a suspensory sanction or disbarrment, we would proceed immediately to our analysis of whether to accept the Board's recommendation, employing the "rebuttable presumption that the sanction imposed by this court in a reciprocal discipline case will be identical to that imposed by the original disciplining court." In re Beattie, 956 A.2d 84, 85 (D.C. 2008) (citing In re Zilberberg, 612 A.2d 832, 834 (D.C. 1992)). However, effective August 1, 2008, this court amended D.C. Bar R. XI, § 11 (c) so that, in pertinent part, it now reads as follows:

Standards for reciprocal discipline. Reciprocal discipline may be imposed whenever an attorney has been disbarred, suspended, or placed on probation by another disciplining court. It shall not be imposed for sanctions by a disciplining court such as public censure or reprimand that do not include suspension or probation. For sanctions by another disciplining court that do not include suspension or probation, the Court shall order publication of the fact of that discipline by appropriate means in this jurisdiction.

D.C. Bar R. XI, § 11 (c) (italics added). Thus, amended Rule XI, § 11 (c) establishes a change in our procedure for handling certain cases that we previously treated as reciprocal-discipline cases. If the amended rule applies in the instant case, it dictates that we impose no reciprocal discipline, but that we instead order Bar Counsel to publish the fact of the Massachusetts Order of Public Reprimand.

We did not state in the amended rule whether it would apply to cases already pending before us as of August 1, 2008 (which was the posture of this case once the Board filed with us its July 24, 2008 Report and Recommendation).*fn2 Ordinarily, when there is a change in a statute or rule that effects a change in procedure, the amended law may be applied to all cases that are pending on the effective date of the change.*fn3 See DeGroot v. DeGroot, 939 A.2d 664, 670 n.5 (D.C. 2008) (citing Duvall v. United States, 676 A.2d 448, 450 (D.C. 1996) ("laws which provide for changes in procedure may properly be applied to conduct which predated their enactment")).*fn4

That principle permits us to follow the amended rule in this case. As Bar Counsel points out, however, we did not follow this course in our recent opinion in In re Amberly, 974 A.2d 270 (D.C. 2009). The opinion in that case notes that, on June 13, 2008, after the Virginia State Bar Disciplinary Board had imposed the sanction of an admonition (with terms requiring that Mr. Amberly complete six hours of continuing legal education within a year), the Board recommended to this court that we impose the substantially different discipline of a 30-day suspension. Explaining that we "perceive[d] no unfairness in applying to [Mr. Amberly] the rules governing reciprocal discipline that were in effect both at the time of his misconduct and when the Virginia Board issued its ruling," id. at 273 n.2, we applied the pre-August 1, 2008 rule, and we went on to accept the Board's recommendation. Because of this precedent, because we similarly perceive no unfairness in applying the previous rules here, and because Bar Counsel informs us that there are few if any other pending matters that straddle the August 1, 2008, effective date of the new rule and that will present a similar issue about which rule to apply, we have determined to resolve this case under the pre-August 1, 2008 rule. At the same time, as we proceed to our analysis of whether to impose identical or different reciprocal discipline, we deem it appropriate to treat the result that would have ensued under application of the new rule -- publication of the Massachusetts order of public reprimand -- as a factor that weighs at least somewhat in favor of identical reciprocal discipline (a public reprimand) and weighs against imposition of a (more severe) suspensory sanction.

II. Background and the Massachusetts Discipline

In 1998, respondent began representing a client who sought political asylum in the United States. After an immigration judge denied the client's application on August 13, 1998, respondent filed a notice of appeal*fn5 "but failed to ensure that the notice of appeal was received by BIA within 30 days as required."*fn6 Although respondent promptly notified the client that the appeal had been dismissed, he did not inform the client of a possible claim of ineffective assistance of counsel as a result of the untimely filed notice of appeal. After the BIA dismissed the appeal on January 21, 1999, respondent filed a motion three days late to reconsider the dismissal, but "failed to ensure that the motion was received by BIA within 30 days of the BIA decisions as required."*fn7 The BIA denied the motion as untimely. Again, respondent informed the client that the motion had been denied, but he failed to inform the client that he may have an additional claim of ineffective assistance of counsel as a result of the untimely filed motion for reconsideration.

Respondent continued to represent the client, pursuing alternative paths to legalize the client's immigration status, including a diversity immigrant visa program and an application for labor certification, but these efforts were not successful. In 2002, the client was arrested under a final deportation order. In June 2002, respondent filed a motion to reopen the asylum proceedings on the basis of alleged changed circumstances in the client's homeland.

The client retained new counsel in July 2002. Successor counsel pursued reopening of the proceedings on the basis of both ineffective assistance of counsel and changed circumstances in the client's homeland. Both the BIA and the United States Court of Appeals for the First Circuit rejected those arguments, and the client ultimately was deported.*fn8

In the disciplinary proceedings that followed in Massachusetts, respondent and Massachusetts Bar Counsel signed a stipulation in which they agreed to waive an evidentiary hearing and to recommend a public reprimand based on respondent's admission that his conduct violated the Massachusetts Rules of Professional Conduct.*fn9 The Massachusetts Board accepted the stipulation and found that (1) respondent's failure to file timely his client's notice of appeal and motion to reconsider was conduct in violation of Mass. R. Prof. C. 1.3; (2) respondent's "failure to withdraw as the client's counsel on the asylum claim and other immigration matters" or "to advise the client that the client had a potential claim against him for ineffective assistance of counsel, or of the risks of his remaining as counsel or of the benefits of retaining successor counsel to pursue a motion to reopen based on ineffective assistance of counsel" was conduct in violation of Mass.

R. Prof. C. 1.1, 1.4 (b), and 1.16 (a)(1); and (3) respondent's continued representation after the BIA's dismissal and denial of respondent's motion to reconsider without disclosure of the potential conflict of interest, and without obtaining consent after consultation to the continued representation, constituted conduct in violation of Mass. R. Prof. C. 1.7 (b).*fn10 As to the potential conflict of interest, the Massachusetts Board cited in particular respondent's failure to advise the client that his continued representation of the client after the notice of appeal and motion to reconsider were rejected as untimely "could be materially limited by [respondent's] personal interest in avoiding the filing of a disciplinary complaint" such as generally is required to re-open an immigration proceeding on the basis of a claim of ineffective assistance of counsel.*fn11

III. Analysis

The presumption in favor of identical reciprocal discipline, "is rebutted only if [a party] demonstrates, or the face of the record reveals, by clear and convincing evidence the existence of one of the conditions enumerated in D.C. Bar R. XI, § 11 (c). Beattie, 956 A.2d at 85-86 (citation omitted).*fn12 Both the Board and Bar Counsel rely on the fourth exception, which provides that "[t]he misconduct established warrants substantially different discipline in the District of Columbia[.]"*fn13 D.C. Bar R. XI, § 11 (c)(4).

In deciding whether to impose non-identical reciprocal discipline, we undertake a two-step inquiry. In re Jacoby, 945 A.2d 1193, 1199 (D.C. 2008). "'First, we determine if the misconduct in question would not have resulted in the same punishment here as it did in the disciplining jurisdiction . . . .'" In re DeMaio, 893 A.2d 583, 587 (D.C. 2006) (quoting In re Garner, 576 A.2d 1356, 1357 (D.C. 1990)). If we conclude that "'the discipline imposed in this jurisdiction would be different from that of the disciplining court, we must then determine whether the difference is substantial.'" Id.

In its Report and Recommendation, the Board found the conduct for which Massachusetts disciplined respondent also constituted violations of D.C. Bar R. 1.3 (a) (diligence); 1.4 (b) (failure to communicate); 1.7 (b) (personal conflict of interest); and 1.16 (failure to withdraw representation). The Board found that the "wide range" of discipline this jurisdiction has imposed for such violations in the context of immigration practice runs from informal admonition to suspension with a fitness requirement. The Board cited In re Uriarte, Bar Docket No. 380-02 (May 30, 2003) (informal admonition where attorney failed to file appellate brief as a result of a breakdown in office procedures (resulting in dismissal of client's appeal), failed to respond to an Immigration and Naturalization Service ("INS") pleading, and failure to explain adequately to the client the options for reopening proceedings);*fn14 In re Cohen, Bar Docket No. 042-98 (Mar. 4, 2003) (informal admonition after attorney filed a motion to reconsider (which did not stay the deportation order) instead of a notice of appeal and failed to inform client that she would be deported if she did not file a notice of appeal within 30 days); In re Allen,Bar Docket No. 234-96 (May 7, 2001) (informal admonition after attorney failed to attend an immigration-court hearing, failed to file a timely waiver, and failed to file a timely notice of appeal); Schlemmer II, 870 A.2d at 76-77 (approving Board reprimand of attorney who intentionally failed to file notice of appeal in immigration case as a result of a miscommunication regarding his fee schedule); In re Cole, 967 A.2d 1264 (D.C. 2009) (accepting the Board's uncontested recommendation of a 30-day suspension where the attorney was retained to file a new asylum application, failed to file the application but falsely told the client that he had done so, did not tell the client about the deportation order that issued when the application was not received, did not move to reopen the proceedings, and did not file an appeal on the client's behalf); In re Owusu, 886 A.2d 536, 538 (D.C. 2005) (uncontested 60-day suspension with fitness requirement where attorney filed application for adjustment to immigration status in the wrong place, resulting in its rejection, failed to appear at an interview, and abandoned client); In re Perez, 828 A.2d 206, 206-07 (D.C. 2003) (per curiam) (uncontested 60-day suspension with fitness requirement for "protracted neglect and intentional conduct that resulted in prejudice and damage to a vulnerable client"); In re Ryan, 670 A.2d 375, 377-78 (D.C. 1996) (uncontested four-month suspension with fitness requirement where attorney neglected matters for five separate immigration clients, refused to return client files, missed filing deadlines, failed to attend deportation hearing, and failed to file appeal); and In re Ukwu, 926 A.2d 1106, 1120, 1131-33 (D.C. 2007) (two-year suspension with fitness requirement where attorney, who had previously been disciplined, failed to represent clients competently or diligently in multiple immigration matters, failed to file appellate brief, resulting in summary dismissal of the appeal, withdrew from representation without advising the client, and justified withdrawal by intentionally misrepresenting to the BIA that the client had not paid her fees).

Although concluding that respondent's "neglect was not pervasive and did not evidence abandonment of his client" and that respondent was "forthright to a degree" (in that he informed the client that his appeal had been dismissed and the motion to reconsider had been denied), the Board determined that respondent's violations would have warranted a "sanction significantly more severe than a reprimand" had the case arisen as an original-discipline matter. The Board distinguished this case from disciplinary matters involving neglect in immigration matters that have led to admonition on the ground that "Respondent's neglect and related violations resulted in serious prejudice to the client -- his deportation."

For much the same reason, the Office of Bar Counsel initially urged the Board to recommend a 60-day suspension, but has since changed its position and is now in agreement with the Board that a 30-day suspension is appropriate.*fn15 Bar Counsel argues that even if the court is unable to conclude from the record that respondent's violations led to the client's deportation, the record contains evidence that respondent's actions resulted in "serious prejudice to the client" -- namely, that the client was unable to have his appeal "adjudicated on the merits" and did not have "the information he needed to make informed decisions concerning the representation" by respondent.

Respondent points out that the Massachusetts Board made no finding that the client was prejudiced, and he argues that the record evidence is insufficient for this court to conclude that respondent's client suffered prejudice as a result of respondent's misconduct.*fn16

We agree with respondent. The stipulation accepted by the Massachusetts Board contains no statement that respondent's actions resulted in what our Board termed "serious prejudice" to the client. Quite the contrary, the stipulation recites that "even assuming no ultimate harm to the client," respondent's conduct in "twice filing pleadings too late for timely receipt" by the BIA warranted at least an admonition. Moreover, considering the First Circuit's opinion in Betouche,*fn17

we cannot conclude that the record clearly and convincingly establishes that respondent's conduct resulted in serious prejudice to the client.*fn18 In rejecting the client's challenge to BIA's rejection of the petition to reopen the asylum proceeding because of changed circumstances in his homeland, the First Circuit found that the client's assertions and the information he proffered about persistent problems in his homeland "severely undermine[d]" the client's position by suggesting that the "same conditions [had] been continuing" in the client's homeland since 1998. Betouche, 357 F.3d at 152 (italics omitted). The court also observed that "[a]s of the present appeal, Betouche has yet to make any attempt whatsoever to demonstrate any grounds for reversing the 1998 denial of his asylum application on its merits[,]" making it doubtful that the client could have met his burden to "establish at least a reasonable probability of prejudice resulting from [respondent's] failure to bring a timely appeal from the final deportation order." Id. at 151 n.8.*fn19 In addition, the First Circuit opinion discloses that the BIA's denial of the client's ineffective-assistance-of-counsel claim, which was presented by his successor counsel, was denied not because of when it was filed, but because it was not accompanied by an affidavit describing in detail the agreement between the client and respondent and by evidence that the client had informed respondent about the ineffective-assistance allegations and afforded respondent an opportunity to respond (prerequisites for stating a claim of ineffective assistance in immigration matters). Betouche, 357 F.3d at 149-51 (citing Lozada, 19 I. & N. Dec. at 639). Thus, the First Circuit opinion strongly suggests that the failure of the ineffective-assistance-of-counsel claim must be laid at the feet of successor counsel, not at the feet of respondent. In light of all the foregoing, the record does not support the Board's finding of "serious prejudice" to the client from respondent's misconduct.

In addition, having considered the previous cases on which the Board relied in determining the range of discipline, we conclude that the conduct in issue here is most similar to the conduct involved in Allen, in which the discipline was a non-suspensory sanction (an informal admonition) 15 that is similar to the public reprimand issued by Massachusetts.*fn20 In Allen, the attorney missed an Immigration Court hearing (because of inadequate procedures), and thereafter failed to file a timely appeal from denial of a motion to reopen the hearing, unreasonably delayed filing a petition that would have allowed the client to continue to pursue residency even after she was divorced from the original petitioner (her U.S.-citizen husband), failed to inform the client that a timely appeal had not been noted (thereby failing to give the client the information she needed to make an informed decision about whether to raise a claim of ineffectiveness of counsel as a basis to have the court reconsider the order of deportation), and failed to communicate with the client once she had been incarcerated pursuant to the deportation order.*fn21 Bar Counsel issued an informal-admonition letter after determining that the attorney had violated Rules that respondent here also violated: Rule 1.3

(a), because due diligence required that the attorney file a prompt waiver application; Rule 1.4 (a), because the attorney did not keep the client reasonably informed when she failed to file the appeal and when she failed to maintain adequate contact during the client's incarceration; and Rule 1.4

(b), because the attorney did not inform the client that she had a claim of ineffective assistance of counsel that the client could have presented. Although the Allen letter of admonition did not cite Rule 1.7 (b) (conflict of interest) or 1.16 (failure to withdraw representation), it appears to us that the facts that underlie the letter of admonition would also have supported a finding that Attorney Allen violated those rules as well.

IV. Conclusion

"[I]n a reciprocal proceeding, when a greater sanction is sought in the District of Columbia, the record must affirmatively show that a greater sanction is warranted . . . ." Zilberberg, 612 A.2d at 835. The record here does not show clearly and convincingly that respondent's conduct resulted in substantial prejudice to the client, the ground cited by the Board for its recommendation of discipline substantially different from (and more severe than) the Massachusetts Order of Public Reprimand. In addition, we conclude that if this matter had come to us an original matter, approval of a Board reprimand or other non-suspensory sanction would not have "foster[ed] a tendency toward inconsistent dispositions." D.C. Bar R. XI, § 9 (h)(1). As the presumption in favor of identical reciprocal discipline has not been rebutted, we conclude that identical reciprocal discipline is warranted. Accordingly, we instruct the Board to sanction respondent with a Board reprimand.

So ordered.

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