In re Robert N. Vohra, Respondent. A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 426365)
Argued October 25, 2012.
On Report and Recommendation of the Board on Professional Responsibility (BDN-324-06).
Timothy J. Battle for respondent.
Catherine L. Kello, Assistant Bar Counsel, with whom Wallace E. Shipp, Jr., Bar Counsel, and Jennifer P. Lyman, Senior Assistant Bar Counsel, were on the brief, for the Office of Bar Counsel.
Ray S. Bolze, Chair, was on the brief for the Board on Professional Responsibility.
Before Blackburne-Rigsby and Beckwith, Associate Judges, and Belson, Senior Judge.
This matter comes before us upon the Report and Recommendation of the Board on Professional Responsibility ("Board"). The Board concluded that respondent Robert N. Vohra committed thirteen violations of the Rules of Professional Conduct ("Rules" or "Rule") in a single immigration matter involving the obtaining of visas for a married couple. Respondent's misconduct included sustained neglect of his clients' matters and numerous Rule violations, some involving dishonesty. The Board unanimously recommended that respondent be suspended for three years and be required to demonstrate his fitness to practice law as a condition of his reinstatement. Respondent takes no exception to the Board's Report and Recommendation. Bar Counsel takes exception only to the Board's recommended sanction, arguing that disbarment is the appropriate sanction. We cannot agree. We accept the Board's findings, agree with its conclusion that respondent committed thirteen Rule violations, and adopt its recommended sanction. Accordingly, we order that respondent be suspended for three years and be required to demonstrate his fitness to practice law as a condition of his reinstatement.
The charges of disciplinary rule violations arose from respondent's representation of Mr. Jeho Choi and his spouse, Ms. You Sun Kim, ("the Chois") in a single immigration matter. After conducting its investigation, Bar Counsel charged respondent with fourteen Rule violations. Following a three-day hearing, a Hearing Committee issued a sixty-nine page report in which it concluded there was clear and convincing evidence that respondent committed thirteen of the fourteen charged violations. The Board unanimously adopted the Hearing Committee's findings of fact and agreed with its conclusions of law which, the Board noted, were "well thought out and all-inclusive." Neither respondent nor Bar Counsel takes exception to the factual findings or legal conclusions made by the Board.
This Court "shall accept the findings of fact made by the Board unless they are unsupported by substantial evidence of record, " and reviews de novo the Board's legal conclusions. D.C. Bar R. XI, § 9 (h)(1); In re Pierson, 690 A.2d 941, 946–47 (D.C. 1997). However, where neither respondent nor Bar Counsel takes exception to the Board's findings of fact or conclusions of law, as is the case here, this court's review of those portions of the Board's report is more deferential. See In re Kline, 11 A.3d 261, 263 (D.C. 2011) ("As neither respondent nor Bar Counsel seriously disputes the facts found by the Hearing Committee, and respondent takes no issue with any of the violations determined by the Board, the questions before us relate to the proper sanction."); In re Dubow, 729 A.2d 886, 887 (D.C. 1999) (review of Board's Report and Recommendation deferential where Bar Counsel filed no exception and where respondent initially excepted but later "bypassed the opportunity to identify and brief the issues"). Our review of the record, appropriately deferential, provides us with no reason to question the Board's factual findings or its legal conclusions that respondent violated Rules 1.1 (a) and (b); 1.3 (a), (b)(1), (b)(2), and (c); 1.4 (a) and (b); 3.3 (a)(1); 8.1 (a); and 8.4 (b), (c), and (d). We adopt the Board's Report and Recommendation, incorporate it as an appendix to this opinion, and provide a summary of the Board's factual findings here.
In September 2004, respondent agreed to represent the Chois, who sought to obtain investment visas based on their purchase of a United Parcel Services ("UPS") store. As a precondition to their eligibility to apply for the investment visas while in the United States, the Chois were required to remain in valid immigration status. When they retained respondent, the Chois were lawfully present in the United States based on Mr. Choi's earlier-acquired work visa and a corresponding visa for his spouse. These visas were due to expire on June 1, 2005.
In January 2005, respondent filed the Chois' applications for investment visas using an incorrect form. As a result, these applications were rejected and returned to respondent's office by February 2005. Respondent never advised the Chois that their visa applications had been rejected but, instead, allowed the Chois to continue under the false belief that their original applications were still under review. In the meantime, the Chois' earlier-acquired visas expired on June 1, 2005.
In late November 2005, ten months after the incorrectly-filed visa applications were rejected and over five months after the Chois' earlier-acquired visas had expired, respondent resubmitted the visa applications, this time using the correct form, to the United States Citizenship and Immigration Services ("USCIS"). Respondent chose not to inform his clients of the re-filing, and therefore signed the Chois' names on the applications without their knowledge or authorization. He did so despite the requirement that applicants must personally certify to the correctness of the application under penalty of perjury and despite the absence of any statute or regulation authorizing persons other than applicants to sign the required certifications.
Shortly after re-filing the visa applications, respondent received notice from USCIS that it required additional documentation to complete the visa processing, but he failed to notify the Chois of this USCIS action. Respondent did belatedly ask for some, but not all, of the required documentation, which the Chois immediately provided. On January 13, 2006, USCIS denied the resubmitted visa applications based on, inter alia, lack of documentation establishing the source of the funds used by the Chois to purchase the UPS store. Respondent continued to misrepresent to the Chois that their visa applications were pending.
By June 2006, unbeknownst to them, the Chois had been without valid visas for over a year. Concerned about the status of his visa request and the lack of updates from respondent, Mr. Choi contacted USCIS on his own and learned for the first time that the visa applications had been denied five months earlier. Thereafter, when Mr. Choi confronted respondent with this information, respondent told Mr. Choi that he "had filed a motion to reopen and reconsider upon receiving the denial, and that [he] still expected approval." In fact, respondent had submitted no such motion.
Having lost confidence in respondent – who admitted that in taking on this matter he was in "way over his head" – the Chois hired new immigration counsel. Through successor counsel, the Chois filed new visa applications with supporting documentation explaining the late filing and seeking nunc pro tunc relief. This supporting documentation included a signed affidavit in which respondent admitted that he had originally filed the wrong forms, failed to request appropriate documentation to support the second filing, and made repeated misrepresentations to the Chois regarding the status of their applications. Although respondent refunded his $5, 000 legal fee to the Chois, they paid successor counsel over $9, 000 in attorney's and filing fees for the more involved work required to persuade USCIS to reconsider their visa applications. Fortunately for the Chois, successor counsel's efforts succeeded in obtaining retroactive visa status for them.
We turn now to a discussion of the appropriate sanction. "A sanction recommendation from the Board comes to us with a strong presumption in favor of its imposition." In re Silva, 29 A.3d 924, 926–27 (D.C. 2011) (internal quotation marks and citation omitted). Our Rules provide that this Court "shall adopt the recommended disposition of the Board unless to do so would foster a tendency toward inconsistent dispositions for comparable conduct or would otherwise be unwarranted." D.C. Bar R. XI, § 9 (h)(1).
This Rule endorses the Board's exercise of broad discretion in handing out discipline that is subject only to a general review for abuse in that discretion's exercise. The rule requires that we enforce a general sense of equality in the sanctions handed out, but it otherwise commands that we should respect the Board's sense of equity in these matters unless that exercise of judgment proves to be unreasonable.
Silva, supra, 29 A.3d at 927 (citations omitted). "Thus, [g]enerally speaking, if the Board's recommended sanction falls within a wide range of acceptable outcomes, it will be adopted and imposed." Id. (internal quotation marks and citation omitted).
In arriving at its recommendation, the Board carefully considered respondent's violations in light of all the relevant factors which this court has identified in previous bar discipline cases. See, e.g., In re Hutchinson, 534 A.2d 919, 924 (D.C. 1987) (en banc). These factors included: (1) the nature and seriousness of the misconduct; (2) prior discipline; (3) prejudice to the client; (4) the respondent's attitude; (5) circumstances in mitigation and aggravation; and (6) the mandate to achieve consistency. See Appendix.
As the Board stated in its Report and Recommendation, sanctions for neglect of one or two immigration matters with attendant dishonesty start as low as a thirty-day suspension and range as high as disbarment. See, e.g., In re Cole, 967 A.2d 1264 (D.C. 2009) (thirty-day suspension where respondent neglected his client's asylum application, falsely assured his client that the application had been filed, and falsely explained that the delay was attributable to the court); In re Kanu, 5 A.3d 1 (D.C. 2010) (disbarment where respondent counseled her clients to provide false information on visa applications, failed to tell clients that their application had been denied, evaded their inquiries, and lied to them and Bar Counsel about refunding fees). Here, the Board focused on four cases in which we imposed sanctions ranging from a two-year suspension with a fitness requirement to a three-year suspension with – or in one case without – a fitness requirement for attorney misconduct that was in some instances more serious and in others less serious than respondent's misconduct. See Silva, supra, 29 A.3d 924 (three-year suspension with fitness requirement when attorney falsely notarized signature on easement agreement, falsely stated that he had recorded it, and misrepresented facts to Bar Counsel and Hearing Committee); Kline, supra, 11 A.3d 261 (three-year suspension without fitness requirement where attorney misled client and forged signature, but acted out of weakness, not malice, and without vile or predatory motive); In re Slaughter, 929 A.2d 433 (D.C. 2007) (three-year suspension with fitness requirement where attorney elaborately falsified attorney-client relationship with the state of Arkansas for his personal benefit as attorney); In re Ukwu, 926 A.2d 1106 (D.C. 2007) (two-year suspension with fitness requirement where immigration attorney was neglectful in five immigration matters, dishonest regarding receipt of fee in one, testified falsely to Hearing Committee, misrepresented to Board of Immigration Appeals, and counseled client to submit falsified immigration documents). We conclude that the Board's recommended sanction of a three-year suspension and fitness requirement falls within the acceptable range of outcomes.
Bar Counsel suggests that our refusal to construe respondent's dishonesty as the "flagrant" kind that warrants disbarment would undermine our decisions in In re Kanu, supra, In re Cleaver-Bascombe, 986 A.2d 1191 (D.C. 2010) ("Cleaver-Bascombe II"), and In re Howes, 52 A.3d 1 (D.C. 2012). We cannot agree. Respondent's misconduct was not as serious as that of the respondents in those cases. Unlike Ms. Kanu, respondent was not systematically abetting clients in fraudulently applying for visas to which they clearly were not entitled. Moreover, respondent fully refunded his retainer fee to the Chois, whereas Ms. Kanu withheld funds from her clients and then lied to them about the status of her efforts to repay them. Kanu, supra, 5 A.3d at 15. It follows that respondent's misconduct did not come as "dangerously close to misappropriation" as did the misconduct of Ms. Kanu and, thus, is distinguishable from the kind of "flagrant dishonesty" present in Kanu. Id . at 14, 17 n.4. Similarly, in contrast to the "flagrant dishonesty" of Mr. Howes and Ms. Cleaver-Bascombe, respondent was not systematically misusing public funds, Howes, supra, 52 A.3d at 17–18, or attempting to misappropriate public funds. Cleaver-Bascombe II, supra, 986 A.2d at 1199.
Nor is respondent's misconduct comparable to that of the immigration attorney we disbarred in In re Omwenga, 49 A.3d 1235 (D.C. 2012). Bar Counsel states in its letter to this court, submitted pursuant to D.C. App. R. 28 (k), that our decision in Omwenga "bears directly" on its argument that we should disbar respondent, but we are not persuaded that the sanction of disbarment imposed for the more serious and pervasive misconduct in Omwenga is precedent for imposing disbarment here. Omwenga involved the misconduct of an attorney in one matter involving the purchase of a business and three consolidated immigration matters, and was marked by intentional misappropriation in one matter and "flagrant dishonesty" in all four. 49 A.3d at 1236. Relying on Howes, supra, and Cleaver-Bascombe II, supra, we held that "[e]ven absent evidence of intentional misappropriation, disbarment is warranted in this case based on respondent's other serious and pervasive misconduct alone, particularly his flagrant dishonesty." Omwenga, supra, 49 A.3d at 1238. In determining the appropriate sanction for Mr. Omwenga, we emphasized, inter alia, the egregiousness of Mr. Omwenga's misconduct as well as the absence of mitigating factors and presence of aggravating factors. Id. at 1239. In addition to his repeated dishonesty in dealing with his clients, the courts, Bar Counsel, and the Committee, Mr. Omwenga also refused to take responsibility in any of the four client matters, exhibited no regret or remorse, and possessed a history of prior discipline in three unrelated client matters involving "strikingly similar" misconduct. Id. at 1239 (internal quotation marks and citation omitted).
In contrast, respondent's misconduct is less serious than that of Mr. Omwenga. Most significantly, whereas Mr. Omwenga was culpably indifferent to the interests of his clients and refused to take responsibility for his actions, respondent at a critical time took full responsibility for his failures in his signed affidavit and took part in the Chois' subsequent attempt, through successor counsel, to obtain their visas. While his attitude has fluctuated,  respondent was, at least initially, remorseful for his failures and refunded his $5, 000 legal fee to the Chois. This was not true of Mr. Omwenga. Moreover, respondent's misconduct was not as pervasive as Mr. Omwenga's misconduct, which involved one instance of misappropriation and three immigration matters, as well as a history of similar misconduct in three unrelated matters, while respondent's misconduct took place in a single immigration matter, and only one instance of similar misconduct appears in his prior disciplinary history. In light of these distinctions, we do not equate respondent's dishonesty to the "flagrant" kind exhibited by Mr. Omwenga.
The Board's conclusion that respondent's dishonesty, like that of the respondent in Kline, supra, was not grounded in malice affords further reason for not disbarring respondent.
Based on all the circumstances, we are not persuaded that we should depart from the Board's carefully explained recommendation that respondent should be suspended for three years, with a fitness requirement.
For the reasons set forth above, Robert N. Vohra is suspended from the practice of law in the District of Columbia for three years, effective from the date on which he filed, or files, the affidavit required by D.C. Bar R. XI, § 14 (g), and subject to the requirement that he demonstrate his fitness to resume the practice of law as a condition of his reinstatement.
Bar Docket No. 324-06
DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY
Date: December 14, 2011.
REPORT AND RECOMMENDATION OF THE BOARD ON ...