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Commonwealth of Massachusetts

NO. BD-2007-035

IN RE: MICHAEL M. OZULUMBA

S.J.C. Order of Term Suspension entered by Justice Ireland on June 4, 2007, with an effective date of July 5, 2007.1

BOARD MEMORANDUM


The respondent, Michael M. Ozulumba, has appealed from the report of a hearing committee that recommended a two-year suspension for misconduct involving neglect, misrepresentations to a court, and advancing funds to a client. He asks that we impose a public reprimand. Bar counsel urges us to adopt the committee’s report and recommendation. Oral argument was held before the full board on January 9, 2007. For the reasons set out below, we adopt the hearing committee’s report and proposed disposition.

Factual Background

We adopt and incorporate by reference the hearing committee’s findings of fact, which we summarize briefly below.

Count One. The respondent represented a client on a petition for asylum filed with the Immigration and Naturalization Services. In what he characterized as a customary delaying maneuver, the respondent deliberately failed to appear for the INS master calendar (pretrial) hearing. He then chose to travel to Nigeria instead of appearing for the client’s individual hearing. He did file a request to continue the hearing, but it was untimely and contained, in any event, a deliberately false representation that a “serious family emergency” required “a trip outside the country in the next few days.” In fact, he had purchased his plane tickets well in advance of the hearing. He did not advise his client of this request or of his intention not to attend the hearing, and the client, on the subsequent advice of the respondent’s secretary, did not attend either. As a result, the Immigration Court issued a deportation order.

When the respondent learned of the deportation order upon his return, he prepared a motion to reopen the proceedings and a supporting affidavit in which the client, at his direction, represented (1) that the respondent had traveled out of the country “for serious family reasons,” (2) that he had advised the client to appear without him, and (3) that the client had failed to appear because he was struck by chest pain on the morning of the hearing, was overcome by panic, and had locked his keys in his car. The respondent knew these allegations were false, and he fashioned the affidavit to deflect attention from his own failure to obtain a timely continuance.

The motion to reopen was denied anyway. While the respondent’s subsequent appeal was pending, the client married an American citizen. He and his spouse completed and provided the respondent with the necessary paperwork for an application to change his status to that of alien relative, but the respondent neglected to file it. Meanwhile, the pending appeal was dismissed, and INS issued a final order of deportation. After conferring with other counsel, the client confronted the respondent and learned that the paperwork for the status change had not been filed. The respondent then filed, again untimely, a motion to stay the client’s deportation. In support of the motion, the respondent filed an affidavit in which he had his client repeat some of the false representations previously given for his failure to appear for the hearing.

The motion was denied as untimely. The client was arrested and detained. He later obtained new counsel, who succeeded in adjusting his status and securing permanent residency.

The respondent violated Mass. R. Prof. C. 1.32 in failing to appear for his client’s hearing and to file timely motions to reopen. In making misrepresentations to the court in his motion papers and in the appeal brief, the respondent violated Mass. R. Prof. C. 3.3(a)(1)3 as well as 8.4(c) and (d).4 By causing his client to participate in the filing of false affidavits, the respondent violated 3.4(b)5 as well as 8.4(c) and (d).6

Count Two. The respondent undertook to represent a client whose petition for asylum had already been denied, who was the subject of a deportation proceeding, and whose master calendar hearing had been scheduled. After getting the hearing continued, the respondent received notice for the rescheduled hearing but failed to take reasonable steps to locate the client before the hearing and to ascertain his objectives with regard to the proceeding. The client did not appear at the hearing. The respondent’s efforts to obtain another continuance failed, and the court issued an order of deportation. A subsequent pro se motion to reconsider, based on ineffective assistance of counsel and lack of notice, failed. A warrant issued for the client’s removal.

The respondent’s failure to appear for the client’s hearing violated Canon Seven, DR 7-101(A)7 and DR 7-106(C)(5).8

Count Three. The respondent skipped the master calendar hearing for another client in a deportation hearing, but he did appear for his individual hearing. The client did not. The judge ordered him deported in absentia. When the client later told the respondent that he had been ill and had gone to the hospital, the respondent advised him to obtain the hospital records and to return with a money order for the filing fee for a motion to reopen. The client returned with a money order but no medical records. Although motions to reopen must be filed within six months after issuance of a deportation order, the respondent himself took no steps to obtain the medical records and made only sporadic efforts to contact the client over the next eighteen months.

When the client finally obtained the medical records, the respondent then filed a motion to reopen in which he represented that the client had been in poor health before and after the hearing, and that he had been unable to file his motion earlier because the client’s poor condition had “worsened which required extensive medical attention.” To support the motion, the respondent drafted an affidavit in which the client swore that he “was severely ill and admitted at the Massachusetts General Hospital” on the day of the hearing, and that “following my discharge, I developed further medical complications that restricted my efforts to seek a Motion to reopen my case within six months . . . .” The representations made about the client’s health in both the motion and the affidavit are not supported by his medical records, which were attached to the motion papers. The hearing committee determined that the respondent’s representations in the affidavit and motion were knowingly and intentionally false. The court denied the motion on the ground because it was untimely and because the respondent had failed to show that his client’s failure to appear was due to exceptional circumstances beyond his control.

Despite receiving another money order to pay the filing fee for an appeal from the court’s order, the respondent filed no appeal. Successor counsel was not able to resuscitate the petition.

The respondent’s mishandling of the immigration matter violated Mass. R. Prof. C. 1.3,9 and his misrepresentations to the court violated Mass. R. Prof. C. 3.3(a)(1)10 and 8.4(c) and (h).11

Count Four. The respondent represented a client who had fled his country and was seeking asylum in the United States. The respondent had the client to fill out and sign an application for a taxpayer identification number, collected $300 from him, and told him he should expect a long wait. The respondent did not explain how this application would advance the client’s interest in seeking asylum. Thereafter, the respondent did not return the client’s telephone calls over the next four months and did not file the TIN form until some five months after their initial meeting. More than two years after the initial consultation with the respondent, the client filed a petition for asylum with the assistance of a new lawyer. The petition was eventually recommended for approval.

The respondent’s conduct violated Mass. R. Prof. C. 1.1,12 1.2(a),13 1.3,14 and 1.4.15

Count Five. In another deportation proceeding, both the respondent and his client failed to appear for an individual hearing. The respondent, who was present elsewhere in the court that day, filed a request for continuance, though he filed it with the clerk instead of in the courtroom where the hearing was scheduled to take place. The court entered a deportation order. The respondent’s subsequent motion to reopen was denied, as was an appeal from the denial.

The respondent’s conduct violated Mass. R. Prof. C. 1.2(a)16 and 3.4(b).17

Count Six. The respondent represented an alien on a claim for asylum after the client had been arrested and placed in removal proceedings. The request for asylum was denied. The client agreed to pay the respondent $500 to file a notice of appeal and an additional $1,500 to brief it. Upon receiving the first $500, the respondent filed the notice of appeal. When the client did not pay the remaining $1,500, the respondent did not prepare a brief, seek a further extension of time, or withdraw from the representation. As a consequence, the appeal was dismissed. The client was deported.

The respondent’s conduct violated Mass. R. Prof. C. 1.1,18 1.2(a),19 1.3,20 and 1.16(c) and (d).21

Count Seven. On numerous occasions the respondent advanced funds, drawn on his operating account, to clients prior to the receipt of settlement funds to be recovered on cases in which he represented them. The advances violated Mass. R. Prof. C. 1.8(e).22

Findings in Mitigation and Aggravation. In mitigation, the committee found that the respondent had no prior discipline, had engaged in community activities both here and in Nigeria, and had cooperated with bar counsel during the disciplinary proceedings.23 The committee rightly noted that the Court has viewed these factors as “typical” mitigating circumstances that generally do not warrant a departure from an otherwise appropriate sanction. See Matter of Alter, 389 Mass. 153, 157, 3 Mass. Att’y Disc. R. 7-8 (1983). The committee rejected the respondent’s contention that the sanction should be reduced for delay because it found none and because delay may not be weighed in mitigation absent a showing of prejudice, which the respondent had not made. See, e.g., Matter of Gross, 435 Mass. 445, 450, 17 Mass. Att’y Disc. R. 271, 277-278 (2001).

In aggravation, the committee found that the respondent had not been candid in his testimony before them and had exhibited no remorse for his habitual willingness to ignore the rules of procedure in the Immigration Court. The committee also noted that his multiple violations evinced a pattern of misconduct that must be taken into account in choosing the appropriate sanction. See Matter of Saab, 406 Mass. 315, 326-327, 6 Mass. Att’y Disc. R. 278, 289-290 (1989).

The Respondent’s Appeal

Acting pro se, the respondent originally filed a brief in which he challenged a number of the factual findings as against the weight of the evidence. Before his appeal was argued, however, he requested the Board’s assistance in obtaining counsel to represent him on a pro bono basis. This the Board did, and new counsel filed a supplemental brief in which the respondent abandoned his factual objections and confined his appeal to the sanction to be imposed. He asks that the matter be concluded by public reprimand.

In proposing a suspension, the committee took notice that a one-year suspension is the presumptive sanction for making a misrepresentation to a court. See, e.g., Matter of McCarthy, 416 Mass. 423, 431, 9 Mass. Att’y Disc. R. 225, 231 (1993); Matter of Neitlich, 413 Mass. 416, 423-424, 8 Mass. Att’y Disc. R. 167, 176 (1992). Here the respondent made more than one such representation – and to more than one court. Coupling that presumptive sanction with the Board’s position that suspension is appropriate for multiple instances of neglect resulting in actual or potential serious harm to clients, see Matter of Kane, 13 Mass. Att’y Disc. R. 312, 327-328 (1997), the committee was of the view that the appropriate sanction, over all, is a two-year suspension. We agree.

The respondent would distinguish McCarthy and Neitlich on the ground that his misrepresentations went to procedural matters, not to the substantive merits of the underlying immigration matters, and that a lesser sanction is accordingly justified. See Matter of Long, 16 Mass. Att’y Disc. R. 250, 257 (2000) (3-month suspension for misrepresenting unavailability on suggested hearing date); Matter of Dolan, 10 Mass. Att’y Disc. R. 59, 63 (1994) (public reprimand for misrepresenting settlement authority in effort to save client from unreasonable position). Bar counsel rejoins that the respondents’ misrepresentations were not about non-central matters like settlement authority or scheduling conflicts but instead went directly to the merits of the underlying cases because they were used to influence decisions affecting the life or death of the cases concerned.

Bar counsel’s argument seems to us a little too categorical, for it would make any misrepresentation, no matter how inherently trivial, “substantive” so long as it might affect the outcome of the underlying case. In this regard, her analysis suffers from the same shortcomings as a mechanical application of the “outcome-determinative” test used to decide whether state or federal rules of procedure should be applied in the federal courts. The conceptual formulas eventually must give way to the underlying considerations that properly drive the ultimate decision. See Hanna v. Plumer, 380 U.S. 460, 467-469 (1965). We believe the distinction should not turn on whether the subject matter of a representation is outcome determinative or is “procedural” instead of “substantive.” In Long, for example, the Court asked whether the misrepresentation was about a “material matter in dispute.” 16 Mass. Att’y Disc. R.at 257. Distinguishing between the Neitlich/McCarthy and Long/Dolan lines of cases is an exercise in articulating how to decide what kind of misrepresentations are so tangential as to warrant a departure from the presumptive, one-year suspension. Where, as here, the choice is difficult, it should involve a judgment as to the lawyer’s culpability in making the misrepresentations.

The respondent’s misrepresentations were deliberate and calculated. In none of the cases that departed from the presumptive sanction did the lawyer involve his client, as here, in the risky business of swearing false affidavits. In one instance, in fact, the respondent appended medical documents that on their face belied the statements he had instructed his client swear to. Further, his actions were not driven by a “pure” motive to represent a client zealously; on the contrary, his lies were occasioned by his own neglect and were motivated in large part by an effort to hide his misconduct.

In such circumstances, we see no reason to depart from the presumptive sanction set out in Neitlich and McCarthy. We also agree that the respondent’s pattern of neglect – even aside from the fluid alacrity with which he was willing to resort to lies to conceal it – would alone warrant suspension under the principles enunciated in Matter of Kane, supra, and under the standards recommended by the American Bar Association. See ABA Standards for Imposing Lawyer Discipline ¶ 4.42(b). Add in his casual habit of advancing funds to his clients, which would itself warrant private discipline, AD 02-28, 18 Mass. Att’y Disc. R. 683 (2002), and it becomes clear that any sanction short of suspension would not be adequate.

Finally, any doubt we might have harbored in this regard vanishes when we consider that the respondent’s pattern of neglect appears to be an extension of the manner in which he deliberately conducts his immigration practice. He has admitted that he deliberately disregards court rules, orders, and procedures if he perceives that they might advance his clients’ interests. Such an attitude is consonant with the neglect he has visited on clients in the six INS matters described in the hearing committee’s report. Given all these circumstances, we believe that the committee was right to recommend a two-year suspension.

Conclusion

For all of the foregoing reasons, we adopt and incorporate by reference the hearing committee’s report and recommendation to file an Information with the Supreme Judicial Court recommending that the respondent, Michael M. Ozulumba, be suspended from the practice of law for two years.


FOOTNOTES:

1 The complete Order of the Court is available by contacting the Clerk of the Supreme Judicial Court for Suffolk County.

2 RULE 1.3 DILIGENCE

A lawyer shall act with reasonable diligence and promptness in representing a client. The lawyer should represent a client zealously within the bounds of the law.

3 RULE 3.3 CANDOR TOWARD THE TRIBUNAL

  1. A lawyer shall not knowingly:
    1. make a false statement of material fact or law to a tribunal.

4 RULE 8.4 MISCONDUCT

It is professional misconduct for a lawyer to:

  1. engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
  2. engage in conduct that is prejudicial to the administration of justice.
5 RULE 3.4 FAIRNESS TO OPPOSING PARTY AND COUNSEL

A lawyer shall not:

  1. falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law.
6 See n. 3, supra.

7 DR 7-101Representing a Client Zealously.

  1. A lawyer shall not intentionally:
    1. Fail to seek the lawful objectives of his client through reasonably available means permitted by law and the Disciplinary Rules, except as provided by DR 7 l0l(B). A lawyer does not violate this Disciplinary Rule, however, by acceding to reasonable requests of opposing counsel which do not prejudice the rights of his client, by being punctual in fulfilling all professional commitments, by avoiding offensive tactics, or by treating with courtesy and consideration all persons involved in the legal process.
    2. Fail to carry out a contract of employment entered into with a client for professional services, but he may withdraw as permitted under DR 2 110, DR 5 102 and DR 5 105.
    3. Prejudice or damage his client during the course of the professional relationship, except as required under DR 7 102(B).
8 DR 7-106 Trial Conduct.
  1. In appearing in his professional capacity before a tribunal, a lawyer shall not:
    1. Fail to comply with known local customs of courtesy or practice of the bar or a particular tribunal without giving to opposing counsel timely notice of his intent not to comply.
9 See n. 1, supra.

10 See n. 2, supra.

11 RULE 8.4 MISCONDUCT

It is professional misconduct for a lawyer to:

  1. engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
  1. engage in any other conduct that adversely reflects on his or her fitness to practice law.
12 RULE 1.1 COMPETENCE

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.

13 RULE 1.2 SCOPE OF REPRESENTATION

  1. A lawyer shall seek the lawful objectives of his or her client through reasonably available means permitted by law and these rules. A lawyer does not violate this rule, however, by acceding to reasonable requests of opposing counsel which do not prejudice the rights of his or her client, by being punctual in fulfilling all professional commitments, by avoiding offensive tactics, or by treating with courtesy and consideration all persons involved in the legal process. A lawyer shall abide by a client's decision whether to accept an offer of settlement of a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial, and whether the client will testify.
14 See n. 1, supra.

15 RULE 1.4 COMMUNICATION

  1. A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.
  2. A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
16 See n. 12, supra.

17 RULE 3.4 FAIRNESS TO OPPOSING PARTY AND COUNSEL

A lawyer shall not:

  1. falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law;
18 See n. 11, supra.

19 See n. 12, supra.

20 See n. 1, supra.

21 RULE 1.16 DECLINING OR TERMINATING REPRESENTATION

  1. If permission for withdrawal from employment is required by the rules of a tribunal, a lawyer shall not withdraw from employment in a proceeding before that tribunal without its permission.
  2. Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled, and refunding any advance payment of fee that has not been earned.
22 RULE 1.8 CONFLICT OF INTEREST: PROHIBITED TRANSACTIONS
  1. A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that:
    1. a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and
    2. a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client.
23 We note an apparent inconsistency between the committee’s finding (in mitigation) that the respondent cooperated with the disciplinary process and its later finding (in aggravation) that he was not candid in his testimony. Because the disposition we recommend would be the same even if there had been no finding of cooperation, we let the inconsistency pass.



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