In re Cole

• Decision Date: 26 March 2009
• Docket Number: No. 07-BG-1388.,07-BG-1388.
• Citation: 967 A.2d 1264
• Parties: In re Patrick J. COLE, Respondent. A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 358025).
• Court: D.C. Court of Appeals

967 A.2d 1264

In re Patrick J. COLE, Respondent A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 358025).

No. 07-BG-1388.

District of Columbia Court of Appeals.

Argued March 11, 2009.

Decided March 26, 2009.

Barry E. Cohen, Washington, for respondent.

Joseph N. Bowman, Assistant Bar Counsel, with whom Wallace E. Shipp, Jr., Bar Counsel, and Judith Hetherton, Senior Assistant Bar Counsel were on the brief, for the Office of Bar Counsel.

Before REID, FISHER and BLACKBURNE-RIGSBY, Associate Judges.

REID, Associate Judge:

The Board on Professional Responsibility ("the Board") recommends that respondent, Patrick J. Cole, be suspended from the practice of law for a period of thirty days for his violation of the Rules of Professional Conduct pertaining to competent and diligent representation, communication with a client, and interference with the administration of justice. We accept the Board's recommended sanction because it "falls within the range of acceptable outcomes, [and hence], comes to us with a strong presumption in favor of its imposition." In re Steele, 868 A.2d 146, 153 (D.C.2005) (citation omitted).

FACTUAL SUMMARY

The facts of this case are undisputed. Francis Tarzol Dogba, a citizen of Liberia, West Africa who had been given Temporary Protected Status by the Immigration and Naturalization Service after his arrival in the United States in late January 2001, retained Mr. Cole on March 11, 2002, in connection with his effort to seek asylum.¹ During an October 16, 2002 hearing before the United States Immigration Court in Baltimore, Maryland, at which Mr. Dogba appeared with Mr. Cole as his counsel, the judge ruled that Mr. Dogba's pro se application for asylum was defective, and ordered him to file a new application by December 16, 2002.

Although Mr. Dogba had paid Mr. Cole at least $900.00 as a retainer, and had asked him to prepare a proper asylum application, Mr. Cole neither filed a timely new application, nor made a request for an extension of time to file the application, despite Mr. Dogba's repeated calls to Mr. Cole, inquiring about the status of his application. Eventually, Mr. Cole informed Mr. Dogba, incorrectly, that the new application had been filed. When the Immigration Court did not receive a proper asylum application from Mr. Dogba, it issued and mailed to Mr. Cole an order on January 6, 2003, allowing Mr. Dogba thirty days in which to depart the country voluntarily, and an alternate order removing him to Liberia in the event he did not depart voluntarily. When Mr. Dogba again inquired about the status of his application, Mr. Cole lied, telling him that his case was delayed because the judge did not receive the application, and failing to tell him about the voluntary departure and removal orders. Mr. Cole did not move to reopen Mr. Dogba's asylum proceeding, nor did he appeal the deportation order. Upon learning that Mr. Cole never filed a new asylum application, Mr. Dogba terminated Mr. Cole's representation, and retained new counsel.²

As a result of Mr. Dogba's August 9, 2005 complaint against Mr. Cole, Bar Counsel initiated disciplinary proceedings and filed nine formal charges against him in December 2006.³ During a hearing on February 20, 2007 before Hearing Committee Number Nine, Bar Counsel presented exhibits, including the case file in Mr. Dogba's immigration matter, Mr. Cole's June 2, 2004 letter to Mr. Dogba's new counsel, indicating his intent to apologize personally to Mr. Dogba for "the ineffectiveness of [his] representation of Mr. Dogba [which] is without defense,"⁴ and the October 2006 factual stipulations signed by Bar Counsel and Mr. Cole. Mr. Cole testified, detailing his background, his solo practice, the increase in his solo workload when he took over the practice of a suspended attorney in 2002, his failures in his representation of Mr. Dogba, and his untruthfulness with Mr. Dogba. Mr. Cole presented as character witnesses, Jay Antoinette Lowe who was represented by Mr. Cole in 1987, and Julio Hernandez, who retained Mr. Cole to represent him in an immigration matter. Ms. Lowe, who later became an immigration attorney and who sought advice from Mr. Cole about her practice, described Mr. Cole as "incredibly competent" in his representation of her. She also stated that he is "well regarded" by immigration lawyers in Baltimore where she practiced. Mr. Cole represented Mr. Hernandez for six years in a labor certification immigration matter, with a successful outcome for both Mr. Hernandez and his wife. Mr. Hernandez has referred Mr. Cole to four or five persons as someone "always willing to help" and "to get everything [done] in a timely manner."

The Hearing Committee found violations of all of the charged rules except Rule 8.4(d),⁵ but because of Mr. Cole's "level of contrition combined with the lack of evidence that his situation was anything other than an isolated incident," the Committee recommended only a thirty-day suspension and a "one-year period of probation supervised by a practice monitor." The Board generally agreed with the Hearing Committee as to Mr. Cole's serious rule violations, but disagreed with the Committee's finding that Mr. Cole did not violate Rule 8.4(d). The Board found persuasive Bar Counsel's argument that Mr. Cole's misconduct significantly tainted the administration process for two reasons. First, Mr. Dogba "`permanently lost the opportunity to obtain permanent residence in the United States based on the facts alleged in the political asylum.'" Second, Mr. Cole's misconduct "led to an unnecessary expenditure of time and resources by the Immigration Court as Mr. Dogba's new counsel took belated steps to try to rectify the situation left by [Mr. Cole]." These steps required successor counsel to file a new motion, immigration prosecutors to file papers in opposition, the Immigration Court to prepare a Memorandum of Decision and Order denying the motion, all parties to prepare appellate documents for filing, and the Board of Immigration Appeals to draft an opinion. As to the sanction, the Board agreed with the Hearing Committee that Mr. Cole's misconduct was serious, but primarily because he had no prior misconduct, displayed a high level of contrition, "sought to mitigate the consequences of his action,"⁶ and presented two favorable character witnesses, the Board deemed the appropriate sanction to be a thirty-day suspension.⁷

Neither Mr. Cole nor Bar Counsel filed exceptions to the Board's Report and Recommendation. However, a motions panel of this court decided to order the parties to file briefs on the appropriateness of the recommended sanction in light of the seriousness of Mr. Cole's misconduct.

ANALYSIS

In response to this court's order concerning the appropriateness of the recommended sanction, Mr. Cole argues that we should give "deference" to the Board's recommended sanction because "it reflects a careful and thorough evaluation of the factors which should be considered in imposing discipline, and is not inconsistent with discipline imposed in similar cases." Bar Counsel acknowledges that it did not take exception to the Board's recommended sanction, explaining that Bar Counsel "did not believe [the recommended sanction] to be so out of line with sanctions [this c]ourt has imposed in comparable cases as to warrant full briefing and argument before the [c]ourt." Nevertheless, Bar Counsel believes that its original recommendation to the Hearing Committee of a sixty-day suspension, "with thirty days stayed in favor of one year of probation supervised by a practice monitor [ ] is more consistent with precedent and the facts of this case."

Since the fundamental facts of this matter are undisputed, we focus only on the appropriate sanction. The court decides the sanction to be imposed. See In re Temple, 629 A.2d 1203, 1207 (D.C. 1993). "So long as the Board's sanction recommendation falls within the wide range of acceptable outcomes, it comes to us with a strong presumption in favor of its imposition...." In re Bingham, 881 A.2d 619, 623 (D.C.2005) (per curiam); see also In re Steele, supra, 868 A.2d at 153. Our disciplinary rules mandate that we "adopt the recommended disposition of the Board unless to do so would foster a tendency toward inconsistent dispositions for comparable conduct or would otherwise be unwarranted." D.C. Bar R. XI, § 9(g)(1). Our sanctions have been based upon a number of factors, including:

(1) the seriousness of the conduct at issue; (2) the prejudice, if any, to the client which resulted from the conduct; (3) whether the conduct involved dishonesty and/or misrepresentation; (4) the presence or absence of violations of other provisions of the disciplinary rules[;] (5) whether the attorney had a previous disciplinary history; (6) whether or not the attorney acknowledged his or her wrongful conduct; and (7) circumstances in mitigation of the misconduct.

In re Thyden, 877 A.2d 129, 144 (D.C. 2005) (citations omitted). We have also focused on "the moral fitness of the attorney, and the need to protect the legal profession, the courts, and the public." In re Bingham, supra, 881 A.2d at 623 (citations and internal quotation marks omitted). We have explained that "[o]ur purpose in conducting disciplinary proceedings and imposing sanctions is not to punish the attorney; rather, it is to offer the desired protection by assuring the continued or restored fitness of an attorney to practice law." In re Steele, 630 A.2d 196, 200 (D.C.1993) (citing In re Kennedy, 542 A.2d 1225, 1228 (D.C. 1988)).

Obviously, Mr. Cole's misconduct was serious. Neglect of a client matter, failure to communicate with a client, dissembling or lying to a client, and causing parties and judicial tribunals to engage in unnecessary work because of one's failures all constitute abhorrent actions. In this case, as the Board found, Mr. Cole's misconduct, including his dishonesty, prejudiced Mr....