Gadda v. State Bar

• Decision Date: 15 March 1990
• Docket Number: No. S010803,S010803
• Citation: 787 P.2d 95,50 Cal.3d 344,267 Cal.Rptr. 114
• Court: California Supreme Court
• Parties: , 787 P.2d 95 Miguel GADDA, Petitioner, v. The STATE BAR OF CALIFORNIA, Respondent.

Page 114

267 Cal.Rptr. 114

50 Cal.3d 344, 787 P.2d 95

Miguel GADDA, Petitioner, v. The STATE BAR OF CALIFORNIA, Respondent.

No. S010803.

Supreme Court of California,

In Bank.

March 15, 1990.

Edward Levinson, Oakland, for petitioner.

Diane C. Yu, Truitt A. Richey, Jr., and Richard J. Zanassi, Office of Gen. Counsel, State Bar of Cal., San Francisco, for respondent.

BY THE COURT ^*:

We review the recommendation of the Review Department of the State Bar Court that petitioner Miguel Gadda be suspended from the practice of law for two years, that his suspension be stayed, and that he be placed on probation for three years. Among other specified conditions, this recommended probation includes actual suspension for at least six months, and extends until petitioner furnishes satisfactory evidence of restitution. Petitioner challenges several of the State Bar's findings of fact and conclusions of law and maintains the recommended discipline is disproportionate to the offenses committed. After reviewing the record, we conclude the State Bar's findings and proposed sanctions are justified and adopt its recommendation.

I. FACTS

Petitioner was admitted to the California Bar in August 1975 and has no prior record of State Bar discipline. Since his admission, approximately 90 percent of his practice has involved immigration law. According to petitioner, at the time of these proceedings his office employed nine attorneys as "independent contractors" who divided all fees equally with him in return for his providing office space and support staff. The present proceedings stem from four separate matters described below.

A. The Cabrera Matter

Oscar Cabrera retained petitioner in June 1983 to obtain "green cards" (i.e., permanent resident alien identification) for his wife and children, who wished to enter the United States from El Salvador. According to petitioner, he attempted to contact the Immigration and Naturalization Service (INS), but received no response. He then had an acquaintance at the INS check its computer, which supposedly disclosed Cabrera's wife had been granted permanent residence status. Petitioner assumed a green card must have been issued, but had somehow been lost in the mail; however, he never checked the accuracy of this assumption by filing an appropriate form with the INS.

Cabrera testified he attempted to reach petitioner by telephone several times in June and July, but petitioner never returned his calls. Sometime in August, Cabrera went to petitioner's office to learn what progress had been made. According to Cabrera, petitioner instructed him at that meeting to inform the United States consulate in El Salvador that his family had lost their green cards. When Cabrera responded that his family had never received green cards, petitioner assured him that it was proper to say that they had, because the INS computer showed the Cabreras as having permanent resident status.

Cabrera testified his wife relied on this advice and lied as instructed. When the consul later discovered the misrepresentation, he threatened Cabrera's family with disciplinary action. Only after Congresswoman Burton intervened on Cabrera's behalf by contacting the INS and the consulate were the Cabreras allowed to fill out new immigration applications. Mrs. Cabrera and the children were permitted to return to the United States in May 1984, approximately 11 months after petitioner had been hired. During the course of petitioner's representation the Cabreras incurred $525 in legal fees and expenses.

B. The Martinez Matters

Elias Martinez retained petitioner in two unrelated matters. In September 1980, Martinez requested petitioner file a "fifth preference" visa application with the INS. ¹ According to Martinez, when he returned later that same month to check the status of the application, petitioner told him everything was "fine." Petitioner, however, did not actually file the application until May 5, 1981, approximately seven months later.

Martinez engaged petitioner a second time after Martinez's wife and three children arrived from Nicaragua and were threatened with deportation by the INS. Initially petitioner told the Martinezes they had no available defense. After Mr. Martinez confronted petitioner with the opinion of another attorney who believed Mrs. Martinez could successfully challenge the deportation order, petitioner agreed to accept the case. On May 12, 1981, petitioner advised the Martinezes that he would file an application for political asylum on their behalf; Mr. Martinez filled out the application that same day in petitioner's office. Petitioner never filed the application.

An exclusion hearing was set for August 24, 1981. Approximately five minutes before this hearing, petitioner saw Walter Pineda leaving the building in which the hearing was to take place. Pineda worked in petitioner's office as an "independent contractor," having been admitted to the bar less than four months previously. Petitioner introduced Pineda to the Martinezes. According to Pineda, petitioner then asked him to do petitioner a "favor" and represent the Martinezes at the hearing. Pineda protested. He reminded petitioner that he had never conducted an exclusion hearing, and was not familiar with the case file. Explaining that the hearing was only a summary master calendar proceeding, petitioner assured Pineda he need only remember the acronym "ASS": request "Asylum, Sixty days' continuance, and assignment of a Spanish interpreter."

Pineda represented the Martinezes as told. The "summary master calendar," however, turned out to be a complete three-hour hearing on the merits. At the end of the hearing the immigration judge granted the Martinezes 30 days to file an application for political asylum and criticized counsel for not having done so earlier. Pineda returned to the office, delivered the Martinez file to petitioner and advised him of the proceeding and the need to file an application for asylum within 30 days. Again petitioner did not file the application.

In January 1982, the immigration judge found Mrs. Martinez had waived her right to asylum and ordered her and her children deported. Petitioner appealed that decision to the Board of Immigration Appeals, but the board upheld the immigration judge's decision, noting that no application for asylum had been made. Without explaining that he had neglected to file the asylum application, petitioner simply informed the Martinezes that the petition had been denied. (Indeed, Mr. Martinez testified he received this information only after he initiated contact with petitioner.) Assuring the Martinezes that everything was nevertheless in "working order," petitioner promised to file a motion to reopen the case.

However, everything was not in "working order." On October 5, 1983, Mrs. Martinez received a deportation notice, ordering her to report to the Office of the Immigration Judge on October 20, 1983. Petitioner received a copy of the order, but made no effort to contact the Martinezes. When Mr. Martinez went to petitioner's office, petitioner stated he would assist in halting the deportation for an additional $4,000. Mr. Martinez then wrote a check for $1,000, bringing the total legal fees paid to $1,850. Petitioner thereafter agreed to appear at the immigration judge's office on the date scheduled for Mrs. Martinez's deportation to help explain the circumstances, but he failed to appear.

Mrs. Martinez was forced into hiding to avoid deportation. Later the Martinezes hired Attorney (now Immigration Judge) Dana Marks Keener, who successfully petitioned to reopen the case.

C. The Amnesty Law Letter

In July 1984, petitioner mailed between 500 and 800 letters to past and present clients declaring that Congress had passed the Simpson-Mazzoli Amnesty Act. ² The purpose of this letter was to advertise petitioner's availability to provide legal advice regarding the new law. Believing other attorneys had sent similar letters, petitioner felt the correspondence necessary to maintain his immigration law clientele. Petitioner based his letter on a San Francisco Examiner newspaper headline, without conducting his own research to verify that Congress had indeed passed the bill. In fact the bill did not pass until November 6, 1984. When petitioner realized his error, he attempted to call some of his more active clients. According to petitioner, approximately 10 people inquired about the advertisement by telephone and 4 people visited his office.

II. THE STATE BAR RECOMMENDATION

The Review Department of the State Bar Court unanimously adopted (11-0) virtually all the hearing panel's findings of fact and conclusions of law. As to the Cabrera matter, both panels determined petitioner caused an intentional misrepresentation to be made to the American consul in El Salvador, thereby violating his oath to faithfully discharge his duties as an attorney (Bus. & Prof.Code, § 6067) ³ as well as his obligation not to mislead or act inconsistently with the truth (§ 6068, subd. (d)). The hearing panel also found petitioner violated section 6068, subdivision (m), by failing to respond to reasonable status inquiries by Cabrera, but the review department failed to adopt that finding.

In the Martinez matters both the review department and the hearing panel agreed: (1) Pineda was petitioner's employee, and therefore petitioner violated sections 6067 and 6103 and former rule 6-101(2) by not taking responsibility for Pineda's supervision; (2) the unreasonable delay in filing Martinez's fifth-preference application violated former rule 6-101(2); ⁴ (3) assigning Pineda to a case he was unqualified to handle violated former rule 6-101(2); (4) the failure to file the petition for asylum violated former rule 6-101(2); and (5) falsely telling the Martinezes that the unfiled petition for asylum had been denied violated his oath of office (§ 6067) and his duty as an attorney (§§ 6068, 6103).

Finally, the...