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Commonwealth of Massachusetts

Public Reprimand No. 2005-26



DANIEL L. HONORE

Order (public reprimand) entered by the Board December 2, 2005.

SUMMARY1


The respondent received a public reprimand for disciplinary violations arising out of his representation of a client in an immigration matter.

The client is a citizen of Haiti who entered the United States illegally on May 14, 2001 and was taken into custody in Miami, Florida. After she was released from custody, she moved to Massachusetts. On or about May 21, 2002, she received a notice from the immigration court in Miami that her case was scheduled for hearing on removability on November 22, 2002. In the interim between her arrival in the United States on May 14, 2001, and her receipt of the notice from the immigration court on May 21, 2002, she had not filed a petition for asylum within one year of her arrival as required by statute or otherwise taken any action to apply to become a legal resident.

After receiving the notice from the immigration court in May 2002, the client retained the respondent to represent her. The respondent agreed to file a motion for a change of venue in order to transfer the hearing to Boston. The respondent also intended to file a petition for asylum on behalf of the client and to claim extenuating circumstances in her failure to timely file the petition.

The respondent thereafter failed to file the necessary motion to transfer the hearing to Boston. However, because his secretary had mistakenly docketed the hearing on his calendar as scheduled for Boston instead of Miami, he believed incorrectly that he had filed the motion for a change of venue and that it had been allowed. As a result, he negligently advised the client that the hearing would be in Boston.

On or about November 21, 2002, the respondent reviewed the clientís file in preparation for the hearing the next day and discovered that the motion for a change of venue had never been filed. The respondent spoke with the client late that afternoon and informed her that the hearing was scheduled for Miami.

That same date, November 21, 2002, the respondent prepared a motion for change of venue and sent it by overnight transport to Miami. He telephoned the immigration court in Miami and requested to be allowed to appear by telephone either to obtain a continuance or a change of venue. However, a motion for a continuance in immigration court is required to be filed at least 14 days prior to hearing. The respondentís request was denied. Neither the respondent nor the client appeared at the removal hearing in Miami on November 22, 2002, and the client was ordered deported in absentia.

On or after November 21, 2002, the respondent also filed a petition for asylum on behalf of the client.

In Matter of Lozada, 19 I&N Dec. 637 (1988), the Board of Immigration Appeals determined that a claim of ineffective assistance of counsel is required to be supported by an affidavit from the client detailing the agreement between attorney and client concerning representation, that counsel must be informed of the allegations against him or her and given an opportunity to respond, and that the motion must reflect whether a complaint has been filed with appropriate disciplinary authorities with respect to any violation of counselís ethical or legal responsibilities, and if not, why not.

After the order of removal was entered, the respondent on November 27, 2002, filed a motion to reopen proceedings and stay removal, admitting the clerical error by his office. The respondent did not at this time withdraw or advise the client that she would be better able to comply with the requirements of the Lozada case if she were to retain successor counsel to pursue a claim of ineffective assistance of counsel. The respondent did not advise the client that his representation of her could be materially limited by his personal interest in avoiding the filing of the disciplinary complaint that might be required by Lozada and she did not consent to his continued representation after full disclosure and consultation as to these issues.

On January 30, 2002, the immigration court denied the motion to reopen. The judge noted that filing a motion for change of venue or for a continuance did not excuse the appearance of the client or counsel. The judge also specifically found that, if the client was alleging misconduct on the part of counsel, there had been no compliance with Matter of Lozada.

After the denial of the motion to reopen, the respondent on February 28, 2003, filed a notice of appeal with the Board of Immigration Appeals. The respondent at this time still did not withdraw or advise the client of the risks of his remaining as counsel or of the benefits of retaining successor counsel to make a claim of ineffective assistance in compliance with Matter of Lozada. The respondent did not advise the client that his representation of her could be materially limited by his personal interest in avoiding the filing of the disciplinary complaint that might be required by Lozada and she did not consent to his continued representation after full disclosure and consultation as to these issues.

The appeal to the Board of Immigration Appeals was denied on February 27, 2004. The respondent informed the client of the denial.

On or about July 26, 2004, the client retained successor counsel, who filed a motion to reopen proceedings with the Board of Immigration Appeals based on ineffective assistance of counsel by the respondent. Successor counsel took the necessary steps to comply with Matter of Lozada, including filing a complaint with bar counsel. On October 26, 2004, the Board of Immigration Appeals denied the motion to reopen because it was untimely. The motion was required to have been filed at the latest within 180 days of the November 22, 2002, in absentia removal order.

The respondentís failure to file a motion for change of venue in a timely manner prior to the scheduled November 22, 2002 hearing, his failure to appear for the hearing in Miami on November 22, 2002, his negligent transmittal of incorrect information to the client concerning the venue of the hearing and his failure to timely provide her with the correct information, is conduct in violation of Mass. R. Prof. C. 1.1, 1.2(a), 1.3 and 1.4.

After the entry of the order of removal in absentia and again after the denial of the motion to reopen, the respondentís failure to withdraw or to advise the client of the risks of his remaining as counsel or of the benefits of retaining successor counsel to pursue a timely motion to reopen based on ineffective assistance of counsel by the respondent is conduct in violation of Mass. R. Prof. C. 1.16(a)(1), 1.1, 1.2(a) and 1.7(b).

The respondentís misconduct may not have caused any ultimate harm. The client did not consult the respondent or other counsel until over a year after her arrival in the United States and did not herself apply for asylum within the year required by statute. Absent extenuating circumstances, she therefore may not have been eligible to apply for asylum. She also may not have qualified to apply for legal residency on another basis.

In aggravation, the respondent has two prior admonitions: one from 2000 for unrelated conduct arising from trust account record-keeping violations, AD No. 00-30, 16 Mass. Att'y Disc. R. 494 (2000), and the second from 2004 for lack of diligence on two immigration cases, AD No. 04-29, 20 Mass. Att'y Disc. R. ó(2004). The second admonition was administered after the events in the current case had occurred.

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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