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In re Schwartz

Court of Appeals of The District of Columbia

December 19, 2019

In re Frederic W. Schwartz, Jr., Respondent. A Member of the Bar of the District of Columbia Court of Appeals Bar Registration No. 197137 On Report and Recommendation of the Board on Professional Responsibility Bar Docket No. 2009-D148 Board Docket No. 13-BD-052

          Argued January 22, 2019

          Frederic W. Schwartz, Jr., pro se.

          Jelani C. Lowery, Assistant Disciplinary Counsel, with whom Hamilton P. Fox, III, Disciplinary Counsel, and Hendrik deBoer, Senior Staff Attorney, were on the brief, for the Office of the Disciplinary Counsel.

          Before Blackburne-Rigsby, Chief Judge, McLeese, Associate Judge, and Ruiz, Senior Judge.

          PER CURIAM

         Board on Professional Responsibility (the "Board") recommends that respondent Frederic W. Schwartz, Jr. be informally admonished for violating Rule of Professional Conduct 1.4(a) stemming from his failure to keep his client, Dr. Jun Chen, "reasonably informed about the status of his case" for a year and a half. Mr. Schwartz concedes this violation. Before us is the Office of the Disciplinary Counsel's ("Disciplinary Counsel") challenge to the Board's refusal to increase Mr. Schwartz's sanction from an informal admonition to a more severe sanction of a public censure. We adopt the Board's recommendation of an informal admonition.

         I. Factual and Procedural Background

         In August 2005, Dr. Chen, a Chinese national and post-doctoral student at the University of Pittsburgh, contacted Mr. Schwartz to apply for lawful permanent resident status through an employment-based petition. After speaking with Mr. Schwartz's Mandarin-speaking assistant, June Miyata, Dr. Chen executed a retainer agreement sent to him by Ms. Miyata, with the understanding that Mr. Schwartz was to pursue an employment-based adjustment of Dr. Chen's immigration status through a national interest waiver. Mr. Schwartz admitted that he did not directly communicate with Dr. Chen prior to Dr. Chen executing the retainer agreement and also did not inform Dr. Chen that his case would be behind several other clients' matters. For the next six months, Dr. Chen communicated exclusively with Ms. Miyata and sent her documents that she requested for his case. In April 2006, Dr. Chen met Mr. Schwartz in person for the first and only time at Mr. Schwartz's office to turn over several documents needed for his immigration case. For the rest of that year, Mr. Schwartz did not contact Dr. Chen about the status of his case.

         In January 2007, Ms. Miyata's own work permit was denied and she returned to China. Mr. Schwartz did not hire a replacement and, according to Mr. Schwartz, "there came a time when the system essentially crumbled" which led to Mr. Schwartz neglecting to contact Dr. Chen for three to four months, as he "could not find [Dr. Chen's] file." Despite delays in the case due to deficiencies in the documents Dr. Chen provided, Mr. Schwartz did not contact Dr. Chen to remedy those deficiencies.[1]

         From April 2006 to March 2007, Dr. Chen inquired twice by e-mail requesting an update on his case. Following the first e-mail, Mr. Schwartz briefly replied: "I am working on an emergency deportation case and will reply in several days." In the following five weeks, Dr. Chen sent Mr. Schwartz seven follow-up e-mails expressing his frustration with the lack of any response from Mr. Schwartz or his office. On June 4, 2007, Dr. Chen terminated representation with Mr. Schwartz.

         Dr. Chen ultimately contacted the Office of Disciplinary Counsel because he believed that Mr. Schwartz did not do any work on his behalf in exchange for the $2, 000 that he paid Mr. Schwartz at the time he executed the retainer agreement. Mr. Schwartz admitted that, by the time Dr. Chen terminated representation, he had not completed Dr. Chen's application.

         On June 5, 2013, the Office of Disciplinary Counsel filed its Specification of Charges against Mr. Schwartz, charging him with one count of violating Rule 1.4(a) for failing to adequately communicate with his client. Following a hearing before an Ad Hoc Hearing Committee on January 15 and February 11, 2015, the Hearing Committee issued its Report and Recommendation, finding that Mr. Schwartz had violated Rule 1.4(a), which states that "a lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information," and recommending a sanction of an informal admonition. Disciplinary Counsel filed its exception to the Hearing Committee's Report and Recommendation and requested that the Board impose a greater sanction; instead of an informal admonition, Disciplinary Counsel requested public censure, "given the circumstances of the case" and the "laundry list of aggravating factors," - Mr. Schwartz's failure to return the retainer fee and documents prepared in preparation for Dr. Chen's application - which it did not raise in its initial Specification of Charges. The Board found that Disciplinary Counsel "failed to prove the alleged factors offered in aggravation by clear and convincing evidence" and therefore declined to issue a greater sanction. The Board further found that the Hearing Committee's factual findings and ultimate conclusion that Mr. Schwartz violated Rule 1.4(a), and its determination that an informal admonition was appropriate, were supported by substantial evidence in the record. This appeal followed.

         Disciplinary Counsel's primary concern on appeal is with the Board's determination that there was insufficient evidence of any aggravating factors to warrant imposition of the higher sanction of public censure that it sought.

         II. Legal Standard

         On appeal, "[w]e accept the Board's factual findings if they are supported by substantial evidence." In re Szymkowicz, 195 A.3d 785, 788 (D.C. 2018) (citing D.C. Bar R. XI, § 9(h)(1)). We review the Board's legal conclusion de novo. In re Johnson, 158 A.3d 913, 918 (D.C. 2017). We will accept the Board's recommended sanction, "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). Although we give considerable deference to the Board's recommended sanction, ultimately the "choice of sanction is for the court to decide." In re Artis, 883 A.2d 85, 92 (D.C. 2005). When determining appropriate sanctions, "we review the respondent's violations in light of the nature of the violation, the mitigating and aggravating circumstances, the need to protect the public, the courts, and the legal profession, and the moral fitness of the attorney." In re Austin, 858 A.2d 969, 975 (D.C. 2004) (citation and internal quotations omitted). Some additional factors may include: (1) the seriousness of the conduct, (2) prejudice to the client, (3) whether the conduct involved dishonesty, (4) violation of other disciplinary rules, (5) the attorney's disciplinary history, (6) whether the attorney has acknowledged his or her wrongful conduct, and (7) ...

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