Disciplinary Counsel v. Sporn

• Decision Date: 07 March 2017
• Docket Number: AC 38387
• Court: Connecticut Court of Appeals
• Parties: DISCIPLINARY COUNSEL v. Judith B. SPORN

171 Conn.App. 372

157 A.3d 108

DISCIPLINARY COUNSEL

v.Judith B. SPORN

AC 38387

Appellate Court of Connecticut.

Argued October 27, 2016

Officially released March 7, 2017

James F. Sullivan, for the appellant (respondent).

Karyl L. Carrasquilla, chief disciplinary counsel, for the appellee (petitioner).

Lavine, Beach and Keller, Js.^*

KELLER, J.

The respondent, Judith B. Sporn, appeals from the judgment of the trial court suspending her from the practice of law for violating several Rules of Professional Conduct and Practice Book § 2–27. She claims on appeal that the court abused its discretion by: (1) granting the motion in limine of the petitioner, Disciplinary Counsel, seeking to preclude proposed expert testimony on the subject of immigration law; and (2) imposing a two year suspension. We affirm the judgment of the court.

This appeal arises from three grievance actions commenced against the respondent in 2013 and 2014. The following facts underlying these actions, as found by the court, are pertinent to our discussion.

The first grievance action concerned the respondent's representation of Line Christoffersen. Christoffersen, a citizen of Denmark who came to the United States on a J–1 (exchange) visa, retained the respondent in January, 2010, to assist in filing an application to become a United States permanent resident, also known as a green card application. Christoffersen paid the respondent $1365 for this task. The respondent did not provide Christoffersen with a written fee agreement, nor did she place the fee into a separate client trust account.

Christoffersen sought to apply for the green card on the basis of her marriage to a United States citizen. In the months after she retained the respondent, Christoffersen attempted to contact her to inquire about the status of her application. The respondent, however, did not return her calls. In September, 2010, Christoffersen and her husband separated. Because of this, Christoffersen went to the respondent's office that same month to instruct her to stop the application process. As of the time of that meeting, the respondent had yet to begin work on Christoffersen's green card application.

The respondent then suggested that Christoffersen file a petition for lawful resident status as a battered or abused spouse under the Violence Against Women Act, also known as an I–360 petition. See 8 U.S.C. §§ 1101 (a) (51) (A), 1154 (a) (iii) (2012). Once approved, an I–360 petition permits the battered or abused spouse to apply to adjust his or her status to that of permanent resident. See 8 U.S.C. § 1255 (a) (2012). The basis of the I–360 petition in Christoffersen's case was that her husband was cruel and abusive to her. Christoffersen did not pay an additional fee for this task. The respondent did not provide Christoffersen with a written fee agreement relating to this representation.

During the following months, Christoffersen attempted to contact the respondent to inquire about the I–360 petition, but the respondent did not respond. The respondent did not file the I–360 petition until March, 2012. Christoffersen terminated the representation in the summer or at the end of 2012. Christoffersen's I–360 petition was approved in April, 2013. At the time of the trial underlying the present appeal, however, Christoffersen had yet to apply to adjust her status to that of permanent resident. She testified that she did not want to pursue such status because she believed that she did not qualify as an abused spouse and would be deceiving immigration authorities if she did. At the time of the trial, Christoffersen did not have permanent resident status.

The second and third grievance actions commenced against the respondent concerned her representation of Valent Kolami and Adrian Emin, brothers-in-law from Albania who originally entered the United States on visitor's visas around 2000. Kolami and Emin retained the respondent in 2003 to appeal to the Board of Immigration Appeals (BIA) following its denial of their applications for political asylum.¹ Each paid the respondent a $2500 fee. The respondent did not provide either of them with a written fee agreement, nor did she place the fees into a separate client trust account.

The respondent filed appellate briefs before the BIA for Kolami and Emin. The BIA, however, returned the Kolami brief because the respondent certified service to Hartford instead of to New York. In the meantime, the filing deadline for the brief had passed. The respondent therefore moved to late file it. According to the respondent's testimony, she did not receive notice of the disposition of the appeals, nor did she follow up in order to ascertain those dispositions, until 2011. Both Kolami and Emin went to the respondent's office frequently between 2003 and 2011 to inquire about the status of their appeals. Each time the respondent told them that she was still awaiting decisions.

In August, 2011, agents from United States Immigration and Customs Enforcement (ICE) detained Kolami and Emin. The respondent learned that the appeals to the BIA had in fact been dismissed in 2004—Emin's on the merits, and Kolami's because the brief was untimely filed. The respondent filed stays of removal for Kolami and Emin, a task for which each paid the respondent an additional $2500. The respondent did not provide either of them with a written fee agreement. The respondent did not place the fees into a separate client trust account. The stays, and two more that the respondent sought subsequently, were granted. When the fourth set of stays was denied, the respondent told Kolami and Emin that she could no longer represent them and referred them to a colleague. In April, 2012, Kolami and Emin were again detained by ICE. This time, however, Kolami was held in detention for eighteen months, and Emin for sixteen months.

Further, the court found that the respondent did not maintain a registered IOLTA account² until the spring of 2015, despite the fact that she completed a continuing legal education program in ethics in 2012 pursuant to an order arising out of a previous grievance action.

After a three day trial, the court, Heller, J. , for reasons set forth more fully below, concluded that the respondent had violated rules 1.1 (competence), 1.3 (diligence), 1.4 (communication), 1.5 (b) (written fee agreements), and 1.15 (b), (d) and (i) (safekeeping of client property) of the Rules of Professional Conduct, as well as Practice Book § 2–27 (clients' funds). After considering the factors set forth in the American Bar Association's Standards for Imposing Lawyer Sanctions (ABA factors); see Burton v. Mottolese , 267 Conn. 1, 55–56, 835 A.2d 998 (2003), cert. denied, 541 U.S. 1073, 124 S.Ct. 2422, 158 L.Ed.2d 983 (2004) ; the court on September 18, 2015, suspended the respondent from the practice of law for two years. Additional facts will be set forth as necessary.

I

The respondent first claims that the court abused its discretion by granting the petitioner's motion in limine seeking to preclude proposed expert testimony on the subject of immigration law. We disagree.

The following additional evidence is relevant to our disposition of this claim. Prior to trial, the respondent filed a memorandum with the court in which she argued for the admission of expert testimony on the subject of immigration law. The memorandum read in part as follows: "The [respondent] has disclosed Crescenzo Deluca, a skilled and highly regarded immigration attorney. Attorney Deluca will not be asked to opine on any ultimate issues such as whether there was a violation of any Rule of Professional Conduct. Rather, he will be providing assistance to the court regarding matters outside this court's ken, namely, the customs and practices in the highly specialized area of immigration law dealing with petitions filed under the Violence Against Women Act and the likelihood of success of the Kolami and Emin deportation cases. Attorney Deluca has been practicing immigration law for over forty years. The cases involving Kolami and Emin are deportation cases involving Albanians and are predicated on an understanding of the circumstances in Albania. There is no attorney in Connecticut who has handled more cases involving Albanians than Attorney Deluca.

"It is the [counsel for the respondent's] understanding, based on his due diligence, including speaking to one of the former partners of the present trial judge, that although while she was in private practice she was known as a skilled and well respected litigator in corporate and commercial matters, she did not do immigration work.³ As [the respondent] and Attorney Deluca can attest (as well as the [counsel for the respondent] having represented immigration attorneys in the past) this is a highly specialized area of the law. Lay people and most judges do not have the training and experience to know of the custom and practices in various areas of immigration law. ... The court should have some guidance as to the standards for an I–360 Application, what an I–797 Notice of Action⁴ means, what the standards are for various motions to reopen, the standards for appealing decisions on such motions, and the unique procedures that apply to these applications, motions and appeals. A qualified immigration attorney expert will assist with the court in understanding these unique and specialized proceedings." (Citations omitted; footnotes added.) The respondent argued much the same in an oral offer of proof before the court.

The petitioner filed a motion in limine seeking to preclude the expert testimony, arguing that an understanding of substantive immigration law was not necessary to determine whether the respondent had violated the Rules of Professional Conduct. The court granted the petitioner's motion in limine, stating in part: "I think the federal law, federal procedures, procedures in the Department of Homeland Security and how immigration matters are handled, I think are all certainly within the...