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
January 22, 2019
Frederic W. Schwartz, Jr., pro se.
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
Blackburne-Rigsby, Chief Judge, McLeese, Associate Judge, and
Ruiz, Senior Judge.
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.
Factual and Procedural Background
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
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.
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.
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
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.
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.
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