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Commonwealth of Massachusetts

Public Reprimand No. 2004-15



DAVID RANDALL HARSCH

Order (public reprimand) entered by the Board August 2, 2004.

SUMMARY1


The respondent was publicly reprimanded for misconduct arising out of his representation of three clients in immigration matters.

In September of 1998, a Brazilian national who had entered the country illegally filed a petition for political asylum, with the assistance of a translator from Brazil. In 1999, the INS had denied the asylum petition and issued an order of removal. The translator introduced the Brazilian national to the respondent. The respondent filed an appearance and, on February 8, 2000, represented the client at a master calendar hearing in Immigration Court. On that date, the client was given written notice that his individual hearing on the merits of the asylum petition was scheduled for March 2, 2000.

On February 16, 2000, without the respondentís knowledge, the translator assisted the client in filing a pro se motion to change venue, alleging that the client had relocated to Washington state. Also, in February of 2000, the translator informed the respondent that the client was discharging the respondent, stating as a reason that the client could no longer pay the respondent. On February 17, 2000, the respondent moved to withdraw as the clientís counsel based upon the respondentís conversation with the translator.

On February 25, 2000, the Immigration Court denied the respondentís motion to withdraw, as well as the clientís pro se motion to change venue. Despite receiving notice that the Immigration Court had denied his motion to withdraw, the respondent did not appear at the clientís individual hearing on March 2, 2000. The client also did not appear at the hearing and the court ordered that the client be removed in absentia.

The respondentís failure to appear at the clientís hearing constituted neglect in violation of Mass. R. Prof. C. 1.3, failure to protect the clientís interest upon termination of representation in violation of Mass. R. Prof. C.1.16 (d), and withdrawal from employment without the permission of the tribunal in violation of Mass. R. Prof. C.1.16 (c).

In the second case, the client, also a Brazilian national, entered the United States illegally in September of 1998. Thereafter, the client filed an asylum petition. INS issued the client a work permit while it processed the asylum petition. INS denied the asylum petition and the Immigration Court scheduled a master calendar hearing for March 4, 1999.

On March 4, 1999, the client appeared in Immigration Court and requested a continuance in order to hire an attorney. The same translator introduced the client to the respondent, who appeared with her at a second master calendar hearing on June 30, 1999. On August 26, 1999, the respondent appeared with the client at a third master calendar hearing. At that hearing, the client was given written notice that her individual hearing was scheduled for January 25, 2000.

On January 10, 2000, without the respondentís knowledge, the translator assisted this client in filing a pro se motion to change venue, alleging that the client had relocated to Texas. The Immigration Court denied that motion. Also in January of 2000, the translator informed the respondent that the client had relocated to Texas and that she was discharging the respondent.

On January 24, 2000, the respondent moved to withdraw as the clientís counsel based upon the respondentís conversation with the translator. On that same date, the Immigration Court denied the respondentís motion to withdraw. Because the hearing was scheduled for January 25, 2000, the Immigration Court communicated its denial of the respondentís motion to withdraw in a telephone message, which the respondent did not receive prior to the hearing. The respondent was aware, however, that he had not received notice that his motion to withdraw was allowed. The respondent did not appear at the second clientís individual hearing on January 25, 2000. The client also did not appear at the hearing and the court ordered that the client be removed in absentia.

The respondentís failure to appear at the second clientís hearing on January 25, 2000, constituted neglect in violation of Mass. R. Prof. C. 1.3, failure to protect the clientís interest upon termination of representation in violation of Mass. R. Prof. C.1.16 (d), and withdrawal from employment without the permission of the tribunal in violation of Mass. R. Prof. C.1.16 (c).

In the third case, the respondent represented another Brazilian national. The client had filed a petition for political asylum in October of 1998, again with the assistance of the same translator. INS issued the client a work permit while it processed the asylum petition.

In 1999, the INS denied the clientís asylum petition and issued an order of removal. The translator then introduced the third client to the respondent. In September of 1999, the respondent represented the client at a master calendar hearing in Immigration Court. On that date, the client was given written notice that his individual hearing in the Immigration Court was scheduled for February 1, 2000.

On January 19, 2000, without the respondentís knowledge, the translator assisted the third client in filing a pro se motion to change venue to Florida, alleging that the client had relocated to Florida. On January 24, 2000, the Immigration Court denied the clientís pro se motion to change venue and sent a copy of the order to the respondent. Also in January of 2000, the translator informed the respondent that the client was discharging the respondent. The respondent did not file a motion to withdraw as the clientís counsel. The respondent did not appear at the clientís individual hearing on February 1, 2000. The client also did not appear at the hearing, and the court ordered that the client be removed in absentia.

The respondentís failure to appear at the clientís hearing constituted neglect in violation of Mass. R. Prof. C. 1.3, failure to protect the clientís interest upon termination of representation in violation of Mass. R. Prof. C.1.16 (d), and withdrawal from employment without the permission of the tribunal in violation of Mass. R. Prof. C.1.16 (c).

This matter came before the Board on a stipulation of facts and disciplinary violations and a joint recommendation for discipline by public reprimand. The Board accepted the partiesí recommendation and imposed a public reprimand.

1 Compiled by the Board of Bar Overseers based on the record of proceedings before the Board.



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