Disciplinary Counsel v. Karp

• Decision Date: 27 December 2018
• Docket Number: No. 2018-0254,2018-0254
• Citation: 156 Ohio St.3d 218,124 N.E.3d 819,2018 Ohio 5212
• Parties: DISCIPLINARY COUNSEL v. KARP.
• Court: Ohio Supreme Court

156 Ohio St.3d 218

124 N.E.3d 819

2018 Ohio 5212

DISCIPLINARY COUNSEL

v.KARP.

No. 2018-0254

Supreme Court of Ohio.

Submitted May 8, 2018

Decided December 27, 2018

Scott J. Drexel, Disciplinary Counsel, and Karen H. Osmond, Assistant Disciplinary Counsel, for relator.

McGinty, Hilow & Spellacy Co., L.P.A., and Mary L. Cibella, Cleveland, for respondent.

Per Curiam.

{¶ 1} Respondent, Harlan Daniel Karp, of Cleveland, Ohio, Attorney Registration No. 0042411, was admitted to the practice of law in Ohio in 1989.

{¶ 2} In a May 4, 2017 certified complaint, relator, disciplinary counsel, alleged that Karp violated ten professional-conduct rules by neglecting a client's immigration matter, failing to reasonably communicate with that client, and failing to maintain client funds separate from his own property. The parties submitted stipulations of fact, misconduct, and aggravating and mitigating factors and recommended that Karp be suspended from the practice of law for two years, with the entire suspension stayed on two conditions.

{¶ 3} Based on the parties' stipulations of fact and misconduct, the hearing testimony, and stipulated exhibits, a panel of the Board of Professional Conduct found that Karp committed eight of the ten alleged violations. After considering the relevant aggravating and mitigating factors and the sanction imposed for comparable misconduct, the panel rejected the parties' stipulated sanction and instead recommended that Karp be suspended from the practice of law for two years, with 18 months stayed on conditions. The board adopted the panel's report and recommendation.

{¶ 4} Karp objects to the board's recommended sanction and argues that the mitigating factors present in this case warrant the imposition of a two-year suspension, with the entire suspension stayed on conditions. For the reasons that follow, we agree with the board's findings of fact and misconduct, overrule Karp's objection, and suspend Karp from the practice of law for two years, with 18 months stayed on the conditions that he (1) enter into a contract with the Ohio Lawyers Assistance Program ("OLAP"), comply with all treatment recommendations of OLAP and his treating healthcare professionals, and provide relator with quarterly reports demonstrating that compliance and (2) commit no further misconduct.

Misconduct

Count One: The Veronika Gadzheva Matter

{¶ 5} The parties stipulated and the board found that in 2015, a New Jersey dance studio filed an I-129 Petition for Non-Immigrant Worker seeking an O-1B visa¹ on behalf of Veronika Gadzheva, a Bulgarian ballroom dancer. The United States Citizen and Immigration Services ("USCIS") granted the petition, and Gadzheva entered the United States on May 11, 2015, with an O-1B visa that expired on February 27, 2018. Soon thereafter, Gadzheva obtained an offer of employment from Patricia West, the owner of a dance studio in California.

{¶ 6} On July 22, 2015, Gadzheva e-mailed Karp about transferring her O-1B visa to West's studio. Karp accepted the case and informed Gadzheva that his fee would be $750 plus a $325 filing fee. Karp told Gadzheva that she could move to California and begin working at West's studio once a new I-129 petition had been filed. Karp also explained that because the petition had to be filed by West and that West would need to sign some forms, the filing "could take a week." By July 31, 2015, Gadzheva had e-mailed Karp approximately 500 pages of documents regarding her existing visa and wired $325 to his client trust account for the filing fee. On August 17, 2015, Karp e-mailed West and requested that she answer a few details pertaining to her studio and her anticipated employment relationship with Gadzheva. In this e-mail, Karp stated that he would e-mail West the completed I-129 for her signature before filing it. West responded on August 24, 2015.

{¶ 7} On September 10, 2015, Gadzheva e-mailed Karp asking whether he had filed the I-129. Karp falsely responded, "Yes. Sent." Several weeks later, Gadzheva wired $750 as payment in full for her legal fees. In early October, Gadzheva informed Karp that she was leaving for California and that she had hoped the petition would be approved soon. Although Karp had not yet filed the petition, he falsely stated, "It [confirmation of approval] should arrive this week. I will email it to you." On October 20, 2015, Gadzheva's former employer requested that the I-129 petition that it had filed on her behalf be revoked. Karp was unaware of that request and the subsequent revocation of the petition until several months later.

{¶ 8} In early November, after receiving an e-mail from Gadzheva inquiring into the status of the petition, Karp responded, "Still pending. Give it another week or two." In the meantime, Karp continued to lead Gadzheva into believing that he had filed the I-129 petition by answering her questions about what she could and could not do while she was waiting for approval. On December 3, 2015, Gadzheva e-mailed Karp and asked whether she could take a trip back to Europe "when the papers still aren't ready is this gonna be a problem for my status." Karp replied, "No. Your visa (on your passport) is still good."

{¶ 9} From December 2015 to April 2016, Gadzheva and West made numerous requests for proof that the petition had been filed. But Karp consistently misrepresented the status of the case by telling them that the petition had been filed and that it should be approved shortly. Once, he instructed West not to contact USCIS directly, claiming that such contact would cause further delay. And when Gadzheva inquired about restarting the entire process, Karp told her to be patient.

{¶ 10} On April 14, 2016, West demanded that Karp provide the receipt number for Gadzheva's petition. Karp filed the petition with USCIS the next day—more than seven months after he first claimed that he had done so—along with a notice of his representation. Karp had signed West's name in two places on the petition and once on the notice of representation. One of the signatures on the petition was under a disclaimer that stated, "I certify under penalty of perjury, that I have reviewed this petition and that all of the information contained in the petition * * * is complete, true, and correct." Although Karp has stipulated that West never gave him authority to sign her name or implied that he had the authority to do so, he nonetheless believed that he had the authority to sign West's name because she and Gadzheva consistently requested proof of a filed I-129, which could not be filed without West's signature.

{¶ 11} On April 25, 2016, Karp e-mailed West the receipt number for Gadzheva's petition. The next day, Karp and West received an I-797E form (Notice of Action) from USCIS. The I-797E form is commonly referred to as a request for additional evidence ("RFE"). The RFE not only asked for additional information regarding Gadzheva's classification status, but also informed Karp that at the request of Gadzheva's former employer, her original petition had been revoked. Without conferring with West or Gadzheva, Karp responded to the notice and indicated that while he sought classification for Gadzheva's extraordinary ability in the arts (an O-1B classification), he had no objection to a classification for her extraordinary ability in athletics (an O-1A classification).

{¶ 12} On May 2, 2016, in response to a request from West, Karp e-mailed her a complete copy of his file. After providing West the file, Karp believed that his representation had ended—even though there is no evidence that either Gadzheva or West communicated such an intention or that Karp ever informed USCIS that he no longer represented Gadzheva. After Karp failed to respond to a second RFE from USCIS, the petition that he had filed on behalf of Gadzheva was deemed abandoned, and denied.

{¶ 13} Gadzheva retained new counsel, and on July 11, 2016, a new I-129 petition was filed on her behalf. USCIS granted her a new O-1B visa. However, because Gadzheva's original I-129 petition had been revoked, her immigration status was not valid when she filed the July 11, 2016 petition. Therefore, Gadzheva has to leave the United States in order to activate her new O-1B status. But Gadzheva is afraid to leave the country because the revocation of her original petition may have caused her to begin accruing days of "unlawful presence" in the United States, which could result in her being banned from the United States for three-to-ten years. Accordingly, the board found that Karp's neglect and ongoing misrepresentations to his client could have extremely serious consequences for her.

{¶ 14} Gadzheva filed a grievance against Karp in July 2016. In response to relator's first letter of inquiry, Karp enclosed an unsigned copy of the I-129 petition that he claimed to have filed on behalf of Gadzheva. Karp also falsely stated that West had authorized him to file the I-129 petition. Subsequently, because a signature from West was necessary in order to file the petition, relator sent Karp a letter requesting additional information. Specifically, relator asked whether Karp had signed West's name on the form, and if so, whether he had indicated that he signed it with authority or whether he made it appear as if West had signed the form. Karp responded, "I signed Ms. West's name on the form and noted I had authority. I had received information to fill out the form from her (attached). A copy of the signed version is attached. Exhibit C." Although Karp claimed that Exhibit C was a copy of the petition that he had filed with USCIS, it was not. Exhibit C indicated that he had signed West's name "per authority," but the petition that was filed with USCIS did not have the "per authority" notation—it just had West's purported signature.

{¶ 15} The board found that Karp's conduct violated Prof.Cond.R. 1.3 (requiring a lawyer to act with reasonable diligence in representing a client), 1.4(a)(1) (requiring a lawyer to inform...