Iowa Supreme Court Attorney Disciplinary Bd. v. Akpan
| Decision Date | 20 November 2020 |
| Docket Number | No. 20-0187,20-0187 |
| Citation | 951 N.W.2d 440 |
| Parties | IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. David Ebong AKPAN, Respondent. |
| Court | Iowa Supreme Court |
Tara van Brederode and Wendell J. Harms (argued), for complainant.
David L. Brown (argued) and Tyler R. Smith of Hansen, McClintock & Riley, Des Moines, for respondent.
Mansfield, J., delivered the opinion of the court, in which Christensen, C.J., and McDonald, Oxley, and McDermott, JJ., joined, and in which Appel, J., joined in part. Appel, J., filed an opinion concurring in part and dissenting in part. Waterman, J., took no part in the consideration or decision of the case.
This attorney disciplinary case with interstate dimensions involves an Iowa-licensed attorney who practiced immigration law in Texas. The attorney received payments totaling $4000 from a client on a flat-fee representation. He put those payments directly in his operating account. After the attorney had worked on the case for a while, the client changed her mind and decided not to go forward with the representation. The attorney refused to refund any of the payments or to provide an accounting. The client filed a complaint with the Iowa Supreme Court Attorney Disciplinary Board. The Board charged various violations of the Texas Attorney Disciplinary Rules of Professional Conduct. The matter went to a hearing before a division of the Iowa Supreme Court Grievance Commission. At the hearing, which occurred prior to the COVID-19 pandemic, the client was allowed to testify by video over the attorney's objection. The commission found a number of violations and recommended a suspension.
On our review, we find that the attorney violated the Texas rules when he failed to deposit client payments in his trust account, took those payments as income before they were earned, and failed to provide accountings to his client. We are not persuaded, however, that the attorney violated Texas's prohibition on "unconscionable" fees when he collected $4000 for the work performed, which included many hours spent trying to get information from his client. We also believe the Board failed to show a sufficient basis for the admission of video testimony. As a sanction, we impose a public reprimand.
Attorney David Akpan is originally from Nigeria. He came to the United States in 1990 and became a United States citizen in 1994. In 1998, Akpan received a bachelor's degree in political science from Weber State University in Ogden, Utah. In 2003, Akpan graduated from Thurgood Marshall School of Law at Texas Southern University, located in Houston, Texas.
Akpan was admitted to the Iowa bar in 2010. Until 2017, Akpan practiced immigration law exclusively in Texas. Currently, he is winding down his immigration practice and does contract work in the Houston area for the United States Small Business Administration. Akpan is also admitted to the federal district courts in the Northern, Southern, and Eastern Districts of Texas.
In 2009, Akpan met Rosa Villatoro, who worked in the office of his tax preparer. Seven years later, in 2016, Villatoro hired Akpan for an immigration matter. Villatoro is a United States citizen; however, her husband is not. A native of El Salvador, he was in the United States on temporary protected status (TPS).
As Akpan later explained, When the United States Secretary of Homeland Security determines that a country is no longer unsafe, a person on TPS from that country can be required to return there. Villatoro wanted Akpan to change her husband's immigration status to lawful permanent resident (green card). This involved preparing and filing a package of forms, including an I-130 form and an I-485 form.
Akpan and Villatoro met several times before a written fee agreement was signed. During one of these meetings, Akpan learned of an issue that could have posed an obstacle in the immigration matter. In 2015, Villatoro's husband had been arrested and charged with fraudulent destruction of price tags, a misdemeanor under Texas law. The charge was resolved with a deferred adjudication, and Villatoro's husband was placed on probation. However, the offense was considered a crime of moral turpitude that could potentially prevent Villatoro's husband from obtaining permanent resident status. Akpan spent time reviewing Villatoro's husband's criminal records to determine if the offense met the petty offense exception under immigration law, in which event it would not bar lawful permanent resident status. Eventually, Akpan decided that it did meet the exception.
On February 23, 2016, Akpan and Villatoro entered into a written contract for legal services. The agreement provided that the necessary immigration work would be performed for a flat fee of $4000. An initial payment of $1500 was made at the signing of the contract. The remaining balance was to be paid in monthly installments of $500, beginning April 1. Akpan did not keep time records of the engagement.
Akpan deposited the $1500 into his business account, not into a trust account.1 Akpan maintains that prior to the signing of the contract, he had completed ten hours of legal work, having met with Villatoro at her workplace four times. Thereafter, through September 2016, Akpan received additional $500 checks approximately once a month. Typically, Akpan would receive these payments from Villatoro when he was meeting her at her office about the representation. Akpan deposited each of these checks into his business account; he claims he had earned them at the time of receipt.
Akpan further testified that the market rate for the legal services he was to provide usually ranged from $7000 to $9000. He charged Villatoro less because of their personal relationship.2 The parties’ written agreement allowed Akpan to bill for expenses such as long-distance telephone calls, although he testified he never charged these types of expenses to flat-fee clients.3
Akpan's representation of Villatoro lasted over a year, through late 2017. Over the course of representation, Villatoro was unreliable in providing the necessary documentation and completing forms to support the immigration application for her husband. Akpan emailed Villatoro a list of needed documentation near the outset of the representation, but the vast majority of these items were never provided. Akpan also asked Villatoro to fill out certain forms in handwriting; she did so only in part. Akpan started the process of generating typed versions of the forms, but he could not finish the job.
In total, Akpan estimates that he spent over forty hours working on Villatoro's case. At least thirty-two of those forty hours involved driving back and forth to Villatoro's place of business. Villatoro's office was about an hour's drive away by car.4
At some point during the representation, Villatoro discovered that her husband was having an extramarital affair. Villatoro requested that Akpan cease all work on the immigration application because she was no longer willing to be her husband's required sponsor.
Villatoro attempted to retain Akpan to obtain a divorce from her husband. Knowing that he had a conflict of interest and was not licensed in Texas, Akpan referred Villatoro to other attorneys. When Villatoro specifically asked Akpan to represent her in the divorce, Akpan declined.
At that point, in June 2017, Villatoro requested a full refund of the $4000 she had paid Akpan under the flat-fee immigration services agreement. Akpan refused. A series of communications between the parties followed. At one point, Villatoro texted Akpan and suggested he "[t]ake out the justif[ied] amount for [his] work and the rest refund it." Akpan didn't specifically respond to this request. Akpan told Villatoro their agreement was a flat-fee agreement and he wasn't required to keep hours.
Villatoro eventually filed a complaint with the Texas attorney disciplinary authority. She was told to refile in Iowa because Akpan was licensed in Iowa rather than Texas. Villatoro did so. Villatoro also filed a small claims lawsuit in Texas to recover the $4000. That lawsuit was still pending at the time of the commission hearing in this matter.
During the course of representation, Akpan never provided Villatoro or her husband with an itemization of legal services performed under the flat-fee agreement. Akpan acknowledged that in the past, when a flat-fee representation ended before he had performed all necessary work, he had not kept the entire fee amount. Instead, Akpan and the client would work together to determine the appropriate amount of money to be refunded. This calculation would be based on the amount of work Akpan had performed. Here, Akpan never refunded any of the $4000 to Villatoro.
Akpan provides immigration law services at no or reduced cost to members of the Nigerian immigrant community in the Houston area and to other persons of limited means. Akpan has no prior disciplinary record.
The Board brought a complaint against Akpan alleging violations of Texas Disciplinary Rules of Professional Conduct 1.04(a), (b), and (c) ; 1.14(a), (b), and (c) ; and 1.15(a) and (d). In October 2019, the case proceeded to a two-day hearing in Des Moines. Akpan appeared in person for the hearing. Villatoro did not. Akpan objected to the Board's presentation of Villatoro's testimony by videoconference.
The Board's first witness was Joann Barten, an immigration attorney from Ames. She provided a thorough explanation of the procedure she has used during her career as an immigration lawyer to prepare and submit an I-130 form and an I-485 form. Barten stated that in her practice she uses both flat fees and hourly rates. During the time Akpan was working for Villatoro and her husband, Barten's hourly...
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Iowa Supreme Court Attorney Disciplinary Bd. v. Johnson
...circumstances, Johnson's lack of prior disciplinary history is a mitigating circumstance. See Iowa Sup. Ct. Att'y Disciplinary Bd. v. Akpan , 951 N.W.2d 440, 456–57 (Iowa 2020) (stating a lack of prior discipline is a mitigating circumstance). So are his cooperation with the Board and accep......