In re Usumanu
| Docket Number | A21-1666 |
| Decision Date | 14 September 2022 |
| Citation | 979 N.W.2d 885 (Mem) |
| Parties | IN RE Petition for DISCIPLINARY ACTION AGAINST Albert Isiaka USUMANU, a Minnesota Attorney, Registration No. 025180X. |
| Court | Minnesota Supreme Court |
The Director of the Office of Lawyers Professional Responsibility filed a petition for disciplinary action alleging that respondent Albert Isiaka Usumanu committed professional misconduct warranting public discipline. Usumanu and the Director have entered into a stipulation for discipline. In it, Usumanu waives his right to answer and his procedural rights under Rule 14, Rules on Lawyers Professional Responsibility (RLPR), and unconditionally admits the allegations of the petition. The parties jointly recommend that the appropriate discipline is a public reprimand followed by 2 years of supervised probation.
We issued an order to show cause, directing the parties to file memoranda addressing why respondent should not be subject to more severe discipline. The parties have filed their responsive memoranda.
Usumanu admitted to committing misconduct in two immigration matters. In the first, removal proceedings were initiated against J.A.S. J.A.S. initially retained Usumanu to address only custody and bond issues. After the immigration court granted J.A.S.’s request for bond and released him from custody, J.A.S. hired Usumanu in November 2019 to represent him in a possible bond appeal and to raise an asylum claim related to the removal proceedings. Usumanu did not file anything with the immigration court to note his appearance in J.A.S.’s removal proceedings. Usumanu admits that he failed to act with diligence, in violation of Minn. R. Prof. Conduct 1.3, by not filing a notice of appearance in the removal proceedings.
The immigration court served J.A.S. personally with a notice of hearing in the removal proceedings, scheduled for February 6, 2020. J.A.S. sent Usumanu a photo of the removal papers in a text message. The day before the hearing, J.A.S. texted Usumanu and asked if he had to go to the hearing the next day. Usumanu texted J.A.S. that there was no hearing and that he did not need to go. Usumanu admits that he acted incompetently and failed to act with diligence, in violation of Minn. R. Prof. Conduct 1.1 and 1.3, by incorrectly informing J.A.S. that there was no hearing without reviewing the notice of removal or investigating whether there was a hearing date.
J.A.S. did not attend the removal hearing; the immigration court ordered him removed. J.A.S. retained a new lawyer. That lawyer successfully moved to reopen the removal proceedings, which remain pending. Usumanu refunded all the fees J.A.S. had paid him.
In the second matter, R.Z.T. retained Usumanu in 2014 to help her obtain a U-Visa before the United States Citizenship and Immigration Services (USCIS). She paid Usumanu $3,850 in cash as advance fees. Usumanu admits that he violated Minn. R. Prof. Conduct 1.15(h), as interpreted by Appendix 1(II)(2), because the receipts he provided R.Z.T. did not say the payments were made in cash and were not countersigned by R.Z.T. Usumanu also did not put any of these advance fees into trust, which he admits violated Minn. R. Prof. Conduct 1.15(a) and 1.15(c)(5).
USCIS denied R.Z.T.’s U-Visa application on May 31, 2019. It later initiated removal proceedings and issued a notice to appear. R.Z.T. consulted with a new attorney about the notice to appear. Usumanu admits that he violated Minn. R. Prof. Conduct 1.16(d), by failing to promptly provide R.Z.T.’s new attorney with a copy of her file after it was requested.
The purpose of attorney discipline is " ‘not to punish the attorney but rather to protect the public, to protect the judicial system, and to deter future misconduct by the disciplined attorney as well as by other attorneys.’ " In re Klotz , 909 N.W.2d 327, 335 (Minn. 2018) (quoting In re Pitera , 827 N.W.2d 207, 210 (Minn. 2013) ). We "consider four factors in determining the appropriate discipline to impose ‘(1) the nature of the misconduct; (2) the cumulative weight of the disciplinary violations; (3) the harm to the public; and (4) the harm to the legal profession.’ " Id. (quoting In re Hansen , 868 N.W.2d 55, 59 (Minn. 2015) ). We "also consider both aggravating and mitigating factors, and look to similar cases when determining the appropriate sanction." Id.
After considering these four factors, the aggravating and mitigating factors that are present, and the discipline imposed in similar cases, we agree with the parties’ stipulation that a public reprimand, followed by 2 years of supervised probation, is the appropriate discipline in this case.
Turning to the nature of the misconduct, Usumanu did not diligently and competently represent a client in an immigration matter, and in a separate matter, he failed to deposit another immigration client's advance fees into trust, give her countersigned receipts for cash payments, and provide her with a copy of her file in a timely manner. We have publicly reprimanded attorneys for this type of misconduct when it involved a small number of immigration clients. In re Robinson , 874 N.W.2d 438, 438–39 (Minn. 2016) (order) (publicly reprimanding an attorney for "failing to competently and diligently represent and communicate with a client in a criminal matter" and "failing to diligently represent and communicate with a client in an immigration matter"); In re Swaray , 867 N.W.2d 925, 925–26 (Minn. 2015) (order) (publicly reprimanding an attorney for commingling personal and client funds in a trust account, creating shortages in his trust account, paying personal expenses out of his trust account, failing to maintain required trust account books and records, and failing to follow orders of an immigration court and communicate with his client); In re Akong , 621 N.W.2d 725, 725–26 (Minn. 2001) (order) (publicly reprimanding an attorney for making false statements to the Board of Immigration Appeals, failing to prepare for or appear at a client's asylum interview, and failing to communicate with a client and return her file).
We acknowledge that Usumanu's misconduct harmed J.A.S., who was threatened with removal because of Usumanu's misconduct.1 See In re Kaszynski , 620 N.W.2d 708, 711 (Minn. 2001) (). We have, however, publicly reprimanded an attorney when their misconduct caused similar harm to a single immigration client. See Swaray , 867 N.W.2d at 925.2 And in nonimmigration cases where a lawyer's neglect of a single client caused that client harm, we have also imposed a public reprimand. See In re Biersdorf , 955 N.W.2d 611, 611 (Minn. 2021) (order) (publicly reprimanding a lawyer for failing to file a lawsuit within 1 year of serving the defendant with the complaint, resulting in a dismissal under applicable rules, and failing to deposit client fees into trust); In re Smith , 867 N.W.2d 924, 924 (Minn. 2015) (order) (publicly reprimanding an attorney for neglecting a client matter, resulting in loss of claim, failing to communicate with that client, and failing to cooperate with the Director); In re Applebaum , 803 N.W.2d 914, 914 (Minn. 2011) (order) (publicly reprimanding an attorney for failing to diligently pursue a client matter, resulting in loss of claim, failing to communicate with that client, failing to maintain and return a client's file, and making a series of misrepresentations to the client); In re Letourneau , 712 N.W.2d 183, 185–86 (Minn. 2006) ().
The dissent contends that a public reprimand will not adequately protect the public because aggravating factors are present. We agree that aggravating factors are present. Usumanu's clients were vulnerable. See Kaszynski , 620 N.W.2d at 712 (). Usumanu also has a significant disciplinary history. He was admonished five times: in 2001, 2002, twice in 2007, and in 2011. We suspended him for 30 days in 2009. In his most recent discipline in 2017, we publicly reprimanded him but did not place him on probation. His prior discipline involved the same type of misconduct he committed in this case. See In re MacDonald , 962 N.W.2d 451, 467 (Minn. 2021) (). But we disagree that these aggravating factors render a public reprimand insufficient to adequately protect the public.
We have publicly reprimanded attorneys who had a similar or more substantial disciplinary history than Usumanu for comparable misconduct.3 See Biersdorf , 955 N.W.2d at 611 (); In re McCormick , 951 N.W.2d 742, 742–43 (Minn. 2020) (order) (publicly reprimanding an attorney for failing to diligently pursue a matter, failing to communicate with that client, failing to place advance fees into trust, and failing to appear for a pretrial conference when the attorney had seven admonitions, a 90-day suspension, a 60-day suspension, and a 30-day suspension).
In addition, several mitigating factors appear to be present in this case. In their responses to the order to show cause, the parties identified three mitigating factors. Usumanu is remorseful. See In re Eskola , 891 N.W.2d 294, 301 (Minn. 2017) (). He was experiencing extreme stress due to a serious medical condition, a mitigating factor the dissent does not acknowledge. See Klotz , 909 N.W.2d at 338–39 (). Finally, Usumanu has provided substantial pro bono...
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