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Commonwealth of Massachusetts

NO. BD-2010-019

IN RE: SAMSON MPARAGANDA

S.J.C. Order of Term Suspension entered by Justice Spina on April 2, 2010, with an effective date of May 3, 2010.1

SUMMARY2
(S.J.C. Judgment of Reinstatement entered by Justice Spina on August 4, 2010.)

The respondent engaged in professional misconduct in two immigration cases.

In the first matter, the respondent was retained to represent a client in 2005 who was in removal proceedings because she had overstayed a visa. The client had also filed, through prior counsel, an application to adjust status based upon her marriage to a United States citizen. A Master Calendar Hearing was scheduled for January 30, 2007. In early January of 2007, the respondent intended to file a motion to continue the hearing for six months and advised the client that she did not need to appear at the hearing. The respondent, however, failed to ensure that the motion was filed with the Immigration Court and allowed by the court. The motion was never received by the court. As a result of the respondentís failure to appear at the hearing with the client on January 30, 2007, the Immigration Court issued an in absentia removal order.

When the respondent learned of the in absentia removal order, he failed to file a motion to reopen despite the fact that he told the client he would do so. The respondent also failed to notify the client of the 180-day deadline to file the motion to reopen and failed to respond to the clientís inquiries about the case. In March of 2008, the client was detained for 30 days as a result of the issuance of the in absentia removal order. The client was released when successor counsel filed a motion to rescind in absentia removal order and reopen removal proceedings, which was allowed.

By failing to assure the continuance of the Master Calendar Hearing before advising the client she need not attend and failing to file a motion to reopen, the respondentís conduct violated Mass. R. Prof. C. 1.1, 1.2(a), 1.3, and 8.4(h). By failing to notify the client of the 180-day deadline, to notify the client that he did not file the motion to reopen and to respond to the clientís inquiries about the status of her case, the respondentís conduct violated Mass. R. Prof. C. 1.1, 1.2(a), 1.3, 1.4(a) and (b) and 8.4(h).

In the second matter, in 2004, the respondent represented a client on appeal of the denial of an application for asylum and withholding of removal which had been filed and tried by prior counsel. The respondent and the client had differing understandings as to the work to be performed by the respondent for the legal fees charged. The respondent filed a generic Petition for Review and Request to Stay Removal in the Court of Appeals on November 24 2004, but failed to pay the filing fee or otherwise pursue the appeal. The appeal was dismissed and the respondent failed to inform the client of the dismissal. The client and her husband, who was a beneficiary of her asylum application, were therefore subject to arrest and deportation. The respondent then agreed to represent the husband in an asylum application. The respondent drafted an asylum application on behalf of the husband, but failed to pursue it and the husband was subsequently arrested and deported in 2008. The respondent collected fees of $1,800 from the client and $2,100 from the husband, which were clearly excessive.

The clients retained successor counsel who filed a Motion to Reopen the Removal Proceedings with the Board of Immigration Appeals based upon the respondentís alleged ineffective assistance of counsel. This motion was denied, with the court finding that the clients failed to identify any basis for reopening or any prejudice from the respondentís alleged failures.

By failing to adequately communicate the basis of his fee, the respondentís conduct violated Mass. R. Prof. C. 1.5(b). By failing to pay the filing fee with the Petition for Review, failing to take any other action to prosecute the clientís petition and failing to take any action on the asylum petition of the clientís husband, the respondentís conduct violated Mass. R. Prof. C. 1.1, 1.2(a), 1.3 and 8.4(h). By failing to notify client of the dismissal of the petition for review, the respondentís conduct violated Mass. R. Prof. C. 1.4(a) and (b) and 8.4(c). By charging excessive fees and collecting those fees from the clients, the respondentís conduct violated Mass. R. Prof. C. 1.5(a). By failing to return unearned fees to the clients until after a complaint was filed with the Office of Bar Counsel, the respondent violated Mass. R. Prof. C. 1.16(d).

The respondent has been in practice since 2001. He has no disciplinary history. In mitigation, the respondent made full restitution to the clients in both matters.

On August 28, 2009, bar counsel commenced disciplinary proceedings before the Board of Bar Overseers by filing a petition for discipline. On October 19, 2009, bar counsel and the respondent filed Respondentís Answer to Petition for Discipline and Stipulation of the Parties. On March 8, 2010, the Board of Bar Overseers voted to accept the stipulation of the parties and their joint recommendation to file an Information with the Supreme Judicial Court recommending that the respondent be suspended from the practice of law for three months and that, by July 1, 2010, he attend or agree to attend at least 12 hours of continuing legal education designated by bar counsel on law office management and/or immigration. On April 2, 2010, the Court entered an order suspending the respondent from the practice of law for a period of three months, with reinstatement conditioned upon the continuing education requirements set forth above.


FOOTNOTES:

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

2 Compiled by the Board of Bar Overseers based on the record filed with the Supreme Judicial Court.



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