Order Entered by the Board on July 12, 1999 Dismissing Petition for Discipline.
Hearing Committee Report
I. STATEMENT OF THE CASE
Bar Counsel filed and served upon respondent John Doe1 a Petition for Discipline dated March 27, 1998. The petition states that it was brought in response to Mr. Doe’s demand under section 2.12 of the Rules of the Board of Bar Overseers, i.e., Mr. Doe had demurred to an admonition by Bar Counsel, and demanded that formal proceedings be instituted against him.
The Board of Bar Overseers (the “Board”) appointed a Hearing Committee (the “Committee”) consisting of Sara Eddy, Darrell Mook, and James B. Re (Chair), which conducted a hearing over the course of three days, December 7, 1988, January 5, 1999, and January 25, 1999.2 Twenty-eight exhibits were admitted in evidence. At the hearing, Mr. Doe was represented by Harrison A. Fitch and Jane Parry; Bar Counsel was represented by Assistant Bar Counsel Terence M. Troyer.3
In summary, the Petition for Discipline alleged that Mr. Doe had violated DR 6-101 (inadequate preparation and neglect) and DR 7-101 (failing to represent a client zealously), both of which have, of course, been superseded by the Massachusetts Rules of Professional Conduct. According to the petition, Mr. Doe’s violations consisted of mishandling an immigration matter before the United States Immigration and Naturalization Service (“INS”) for a Palestinian couple, Kamal Assad and his wife, Manal Assad, thereby frustrating for a time their wish to live together in the United States as lawful residents.
The only witness who testified at the hearing was Mr. Doe. In particular, Mr. Assad and Ms. Assad did not appear, nor did they testify via deposition. According to the petitioner’s counsel, they had moved to Washington, D.C. and declined to appear at the hearing.
Although the Petition for Discipline alleges violation of both DR 6 101 and DR 7 101, it appears that Bar Counsel has waived the latter, claim, since her Requests for Findings and Rulings filed on or about April 6, 1999 urge the Committee to find violations only of DR 6-101(A)(2) and (3).4 In any event, for the reasons that are described in this report, the Committee has determined that Bar Counsel has failed to carry her burden under Board Rule 3.28 of proving by a preponderance of the evidence that Mr. Doe committed the ethical violations of which he is accused, and recommends that the Board of Bar Overseers dismiss the Petition for Discipline.
II. FINDINGS OF FACT
Introduction
As is noted above, the only witness called by Bar Counsel at the hearing was Mr. Doe himself. Neither Mr. Assad nor Ms. Assad testified in person or by deposition, and Bar Counsel offered no expert testimony concerning the alleged “bizarre and inappropriate action” that Mr. Doe took on his clients’ behalf. (Bar Counsel’s Requests for Findings and Rulings, p. 11.) Rather, Bar Counsel asks the Committee to find that she has proved the ethical lapses she alleges by eliciting from Mr. Doe incredible or inconsistent testimony. However, the Committee found Mr. Doe’s demeanor and presentation to be sincere and credible. Moreover, the events which he discussed during his testimony dated back as far as the latter part of 1991, so that perfect recall would have been suspect.
As will be discussed below, the only information offered at the hearing about the adequacy or inadequacy of Mr. Doe’s preparation to handle the Assad matter tended to prove the former, not the latter, and therefore did not establish violation of DR 6-101(A)(2). As for violation of subsection (A)(3) of the Disciplinary Rule, the Hearing Committee does not view its task as deciding whether the legal actions that Mr. Doe took were the perfect actions, or the best possible actions; such a determination is irrelevant to evaluation of the respondent’s ethical rectitude. Rather, in the Hearing Committee’s judgment, its task is simply to determine whether Bar Counsel has proven by a preponderance of the evidence that Mr. Doe handled the Assad matter with indifference to or conscious disregard for his obligation to his clients. The Committee answers that question in the negative.
Findings
1. Mr. Doe was admitted to the Massachusetts bar in June, 1988.5 He was employed—presumably by an associate—with the firm of [large law firm] for an unspecified period of time after being admitted, and left that firm to work in Los Angeles as a “campus minister” for his church during some portion of the period 1989-1990. He then came back to the Boston area at some unspecified point and began working as a lawyer with a firm called “[consultants on international legal matters].” He described his legal work during that period as “a variety of international law, …international immigration law as well as I did different work with real estate, trial work in different areas … a number of immigrations courts … deportation trials, suspension deportation trials.” During that period, Mr. Doe won a political asylum trial for a Nigerian client in March 1992, and handled over a hundred I-130 petitions (the same work that he did for the Assads). He left [consultants on international legal matters] in June 1993 and joined the law firm of [small law firm] in Chelsea, Massachusetts, where he remained for about two years. During that period, his varied legal work included “immigration trial work with political asylum and suspension deportation trials.” Mr. Doe left that firm in June 1995, and began his current employment as a trial lawyer with the Massachusetts Department of [redacted]. Tr. I, 23-25 and II, 3-7.
2. In approximately September 1991, Mr. Assad and Ms. Assad consulted Mr. Doe for the first time. The subject of the consultation was the Assads’ wish to obtain permanent resident status in the United States for Ms. Assad. Tr. I, 30-32. Messrs. Doe and Assad met again on one or more occasions in the period between September 1991 and January 1992, and at some point during that period, Mr. Doe agreed to represent the Assads. They paid the fee that he requested for his services in seeking permanent resident status for Ms. Assad, approximately $800 or $825. Tr. I, 32-34.
3. Mr. Doe advised the Assads to file with the INS a Form I-130 (Tr. I, 56), referred to in other INS documents among the hearing exhibits as a “Visa Petition for Spouse” (see, e.g., Exhibit 1, p. 34, INS Form I-797 “Notice of Action”). Mr. Doe described several times over the course of the hearing the reasons behind his advice. Those reasons are fairly complex; for purposes of this report, their importance lies in the fact that they demonstrate that Mr. Doe’s advise to the Assads was the product of informed thought, reached in good faith by Mr. Doe in an honest attempt to serve his clients’ interests.
4. To summarize briefly Mr. Doe’s stated reasons for his advice: After speaking with the Assads, Mr. Doe was concerned that Ms. Assad would be denied a visa and Mr. Assad would lose the immigrant visa (or “green card”) that he had obtained in approximately July 1991, and be deported and excluded from the United States. The reasons for his concern were that Mr. Doe understood Ms. Assad to be in the United States on an H-4 visa, which was available only to a “beneficiary” of the holder of an H-1 (non-immigrant) visa. Since Mr. Assad’s status had been “adjusted” from H-1 visa holder to immigrant visa holder in July 1991, Mr. Doe believed that Ms. Assad’s H-4 visa, obtained after the change in Mr. Assad’s status, was unlawful. Moreover, the Assads told Mr. Doe that they had been married in Gaza in March 1990, which Mr. Doe understood to mean that they had both been present there, but he also understood that Mr. Assad had told the INS in March 1991 when he applied for a “green card” that he had not left the United States since 1988. Thus, Mr. Doe perceived a danger that attempting any method for getting Ms. Assad a visa other than filing a Form I-130 petition would raise questions that might result in a thorough INS investigation with adverse consequences to the Assads. See, e.g., Tr. I, 30-33, 41-56 and Tr. II, 66. In particular, he was concerned that procedural mechanisms other than an I-130 petition would involve processing by the U.S. Consulate in Tel Aviv, which would have a record of Ms. Assad having been issued an H-4 visa by that Consulate. That would, he feared, raise the question of how she had obtained a derivative non-immigrant visa when the person through whom that visa was derived—Mr. Assad—was an immigrant. Tr.II, 60-64.
5. Mr. Doe began to prepare the Form I-130 of caused it to be prepared, but at some point in January 1992, before the form was complete, Mr. Assad came to Mr. Doe’s office while the latter was absent. Mr. Doe was told by his secretary that Mr. Assad obtained the form from Mr. Doe’s office. As far as Mr. Doe knows, Mr. Assad completed the form, enclosed the requisite filing fee with it, and filed it with INS. Thus, Mr. Doe never had a cancelled check or other document to prove that the form was filed. Tr. I, 32-34, 78-81, and 118-121.
However, Mr. Doe learned in March 1992 by telephoning the INS office in St. Albans, Vermont that they had received the Form I-130 in January 1992, and assigned it a “priority date” for further processing purposes of January 10, 1992. Mr. Assad told Mr. Doe that he, too, had called the INS and been informed that the agency had received the Form I-130. Tr. II, 71-73.6 Moreover, a copy of an INS “Notice of Action” form dated November 11, 1992, reflecting the filing of the Form I-130 for Ms. Assad, the priority date of January 10, 1992, and acknowledgement of receipt of a filing fee or $75.00 is page 34 of Mr. Doe’s sad case file (Exhibit 1 of the hearing exhibits).
Given that Mr. Doe had documentary proof directly from the INS that the Form I-130 had been filed in January 1992, an argument raised at page 9 of Bar Counsel’s Requests for Findings and Rulings is inexplicable. There, Bar Counsel makes much of Mr. Doe’s allegedly “recently contriving” the account of Mr. Assad’s filing the I-130 “to deflect condemnation for failing to keep a copy of the check or money order, the cover letter, and other evidence of filing. Moreover, the Committee credits Mr. Doe’s uncontradicted testimony (at Tr. 1, 124-125) that he orally informed two Assistant Bar Counsel (neither was hearing counsel) that Mr. Assad had filed the I-130 himself.
6. It is undisputed that Mr. Doe expected about a 2½ year waiting period between filing the I-130 petition and the issuance by the U.S. government of a visa in response (petitioner’s request for findings, p. 7, third paragraph, and respondent’s requested ruling no. 14). Nonetheless, contrary to Bar Counsel’s assertions that Mr. Doe did “little or nothing” to assist the Assads between January 1992 and September 1994 (Bar Counsel’s brief, p. 11), he took a number of actions on their behalf. Some of those actions are described in 5 of this report. Mr. Doe described other, later actions in the chronology set forth in his letter to the Office of the Bar Counsel dated August 1, 1994 (Exhibit 2); that chronology was unrebutted in any material respect. In his letter, Mr. Doe described the fact that he wrote to the INS in November 1992 and January 1993 to inquire about the status of the I-130 application (copies of his letters are Exhibit 1, pp. 15 and 16). In addition, in about January 1993, Mr. Doe contacted INS in Vermont and was told that the I-130 petition was approved; Mr. Assad told him that he, too, had been given the same information by INS via telephone (Exhibit 2, 7 and 8). During the summer of 1993, Mr. Assad declined further help by Mr. Doe, and told him that “the matter was being taken care of inside immigration and that everything was fine.” (Exhibit 2, 13.) Consequently, and especially given that Mr. Doe had already had received both oral (Tr. II, 71-73) and written reassurance (Exhibit 1, p. 34) that the I-130 petition resided safely with the INS, the Committee finds that his conduct was not neglectful.
7. The parties agree that in August 1994, the Assads retained new counsel, and that Ms. Assad received her U.S. immigrant visa and returned to the United States in 1995 (petitioner’s proposed finding no. 25 and respondent’s proposed findings no. 44 and 51.) However, Bar Counsel offered little or no explanation of how that result was achieved, and so those facts have no bearing upon the propriety of Ms. Doe’s conduct.
III. CONCLUSIONS OF LAW
1. “In proceedings upon a petition for discipline Bar Counsel shall have the burden of proof by a preponderance of the evidence[.]” Rules of the Board of Bar Overseers, Section 3.28. In the present case, that burden requires that Bar Counsel show that it is more likely than not that Mr. Doe “[h]andled [the Assads’] legal matter without preparation adequate in the circumstances,” and once having undertaken it, was neglectful of it. DR 6-101(A)(2) and (3).
2. As is discussed in detail above, Bar Counsel has offered no evidence whatever that Mr. Doe’s preparation was inadequate; to the contrary, the uncontroverted evidence was that despite his being a relative newcomer to the bar at the time of the events in question, Mr. Doe had a substantial amount of experience in dealing with the specialized areas of law that was involved. Thus, Mr. Doe did not violate DR 6-101(A)(2).
3. As for subsection (A)(3) of the Disciplinary Rule, the Hearing Committee views the ABA Informal Opinion upon which Bar Counsel relies as more supportive of Mr. Doe’s position than Bar Counsel’s. In that opinion (Informal Opinion 1273 dated November 20, 1973), the ABA Committee on Ethics and Professional Responsibility attempted to illustrate and define “neglect” for purposes of DR 6 101(A)(3).
The ABA Committee hypothesized 5 situations: first, it is discovered one year after the client retains a lawyer that the lawyer has taken “little, if any” action on behalf of his client since being retained; second, after preparing his client’s case for litigation, a lawyer fails to file suit within the statutory limitation period; third, a lawyer is guilty of “ordinary negligence” of an unspecified nature with respect to an unspecified “act or omission”; fourth, defense counsel in a case which plaintiff has filed outside the limitation period fails to raise that defense, necessitating trial (the result of which is unstated); and fifth, a two-year member of the bar, with only limited experience defending “minor criminal matters,” accepts the defense of a person charged with a crime for which he could be imprisoned for 20 years, and takes the case to trial (result unstated) without associating himself with experienced counsel.
In response to situations 1, 2, 4, and 5, all of which are, in the judgment of the Hearing Committee, far more serious on their faces than any “act or omission” by Mr. Doe of which Bar Counsel presented evidence, the ABA Committee said that additional facts—not supplied in the opinion—could make the lawyer’s conduct in each situation violative of the prohibition against neglect, or not. As for situation 3, in which the lawyer was guilty of “ordinary negligence,” the ABA Committee offered the brief discussion of neglect which Bar Counsel quotes in her Request for Findings and Rulings:
Neglect involves indifference and a consistent failure to carry out the obligations which the lawyer has assumed to his client or a conscious disregard for the responsibility owed to the client. The concept of ordinary negligence is different. Neglect usually involve more than a single act or omission. Neglect cannot be found if the acts or omissions complained of were inadvertent or the result of an error of judgment made in good faith.
When Mr. Doe’s conduct is measured against that standard, it is quite clear that the evidence offered by Bar Counsel does not demonstrate “neglect.” Clearly, and happily for all whose conduct it governs, the disciplinary rules does not require perfection. Applied in the present case, it requires no more than Mr. Doe provided.
Moreover , even if one accepts for the sake of discussion that the course Mr. Doe pursued to achieve the Assads’ desired end constituted an error of judgment—and in the absence of expert evidence, Bar Counsel clearly did not prove that point—there is absolutely nothing in the evidence from which the Hearing Committee could decide that Mr. Doe’s judgment or actions were infected with bad faith.
IV. RECOMMENDED DISPOSITION
For all the reasons described in this report, the Hearing Committee recommends that the Board of Bar Overseers dismiss the Petition for Discipline.
THE HEARING COMMITTEE
James B. Re
Sara Eddy
Darrell Mook
Dated: May 26, 1999
FOOTNOTES:
1 The respondent’s and complainants’ names, as well as the names of other persons and entities involved in the factual background of this case, have been changed throughout this opinion to preserve confidentiality.
2 The transcript (“Tr.”) of the hearing is cited throughout the remainder of this report by reference to the transcript volume number, followed by the page number.
3 References to “Bar Counsel” in this report are to the petitioner herself, not to the Assistant Bar Counsel who conducted the hearing.
4 DR 6-101. Failing to Act Competently
(A) A lawyer shall not:
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(2) Handle a legal matter without representation adequate in the circumstances.
(3) Neglect a legal matter entrusted to him.
5 Based upon the evidence presented at the hearing, it appears that Mr. Doe has never been the subject of bar discipline other than the present case.
6 Bar Counsel’s Requests for Findings and Rulings (p. 10, second complete paragraph) ignore this testimony, and instead rely upon an incomplete quote of another portion (Tr. I, 83) of Mr. Doe’s testimony.
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