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Commonwealth of Massachusetts

Public Reprimand No. 2007-23



Desmond Patrick Thomas More Fitzgerald

Order (public reprimand) entered by the Board September 24, 2007.

SUMMARY1


The respondent was retained in 1998 to represent a client in connection with his application for political asylum. After hearing, the client was denied asylum by the Immigration Court on August 13, 1998.

The respondent undertook to file an appeal of the decision to the Board of Immigration Appeals (BIA) but failed to ensure that the notice of appeal was received by BIA within 30 days as required. The notice of appeal was docketed by BIA as filed on September 16, 1998, more than 30 days after the Immigration Court decision. On January 21, 1999, the appeal was summarily denied by BIA as untimely.

The respondent timely informed the client that the appeal had been dismissed. However, the respondent did not advise the client that, based on the late filing of the notice of appeal, the client had a potential claim against the respondent for ineffective assistance of counsel or that, to make such a claim, the client would have to comply with Matter of Lozada, 19 I&N Dec. 637 (1988), requiring, among other matters, that the client either file a complaint against the respondent with the appropriate disciplinary authorities or explain to the court why one had not been filed.

The respondent thereafter filed a motion to reconsider the dismissal of the appeal. However, the respondent failed to ensure that the motion was received by BIA within 30 days of the BIA decision as required. The motion was docketed by BIA as received on February 23, 1999. On April 25, 2000, the motion was denied as untimely.

After the motion to reconsider was denied, the respondent informed the client that the motion had been denied. However, the respondent did not advise the client that, based on the late filing of both the notice of appeal and the motion to reconsider, the client had a potential claim against the respondent for ineffective assistance of counsel.

Commencing in 1999 and until 2002, and thus during the pendency of the filing of the notice of appeal and motion to reconsider in the asylum claim, the respondent also represented the client in other types of immigration cases, including a diversity immigrant visa program and an application for labor certification, all attempting, unsuccessfully, to legalize the clientís immigration status.

In 2002, the client was arrested by the (then) Immigration and Naturalization Service under a final order of deportation. In June 2002, the respondent filed a motion to reopen proceedings based on alleged changed circumstances in the clientís homeland.

On and after January 21, 1999 (when BIA denied the appeal), the respondent never advised the client that his continuing representation of the client either in the asylum claim or in additional immigration matters could be materially limited by his personal interest in avoiding the filing of the disciplinary complaint that might be required by Matter of Lozada and the client did not consent to the respondentís continued representation after full disclosure and consultation as to these issues.

The client retained new counsel in July 2002 and attempted unsuccessfully to reopen the immigration proceedings at the BIA, both on the grounds of ineffective assistance of counsel by the respondent and of changed circumstances in his homeland. On appeal to the United States Court of Appeals, the clientís claim that the respondent provided ineffective assistance of counsel was denied by the court on procedural grounds and his claim of changed circumstances in his homeland was denied as unproven. The client has since been deported.

The respondentís failure to file either a timely notice of appeal of the decision by the Immigration Judge or a timely motion to reconsider was conduct in violation of Mass. R. Prof. C. 1.3.

After the summary dismissal of the appeal and again after the denial of the motion to reconsider, the respondentís failure to withdraw as the clientís counsel on the asylum claim and other immigrations matters, or alternatively, his failure to advise the client that the client had a potential claim against him for ineffective assistance of counsel, or of the risks of his remaining as counsel or of the benefits of retaining successor counsel to pursue a motion to reopen based on ineffective assistance of counsel by the respondent, was conduct in violation of Mass. R. Prof. C. 1.16(a)(1), 1.4(b) and 1.1

After the summary dismissal by BIA of the appeal and again after the denial of the motion to reconsider, the respondentís continued representation of the client without disclosure of the potential conflict of interest, and without obtaining the clientís consent after consultation to the continued representation, was conduct in violation of Mass. R. Prof. C. 1.7(b).

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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