Iowa Supreme Court Attorney Disciplinary Bd. v. Said

• Decision Date: 04 September 2015
• Docket Number: No. 15–0641.,15–0641.
• Citation: 869 N.W.2d 185
• Parties: IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. Michael Hocine SAID, Respondent.
• Court: Iowa Supreme Court

869 N.W.2d 185

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant

v.Michael Hocine SAID, Respondent.

No. 15–0641.

Supreme Court of Iowa.

Sept. 4, 2015.

Charles L. Harrington and Teresa Vens, Des Moines, for complainant.

Matthew C. McDermott of Belin Lamson McCormick Zumbach and Flynn, Des Moines, for respondent.

Opinion

CADY, Chief Justice.

The Iowa Supreme Court Attorney Disciplinary Board charged attorney Michael Hocine Said with violating the rules of professional conduct for failing to communicate with his client, making a false statement to the court, and failing to comply with fee and trust account requirements. Following a hearing, the Grievance Commission of the Supreme Court of Iowa found Said violated several rules and recommended a thirty-day suspension. On our review, we find Said violated the Iowa Rules of Professional Conduct and impose a thirty-day suspension.

I. Background Facts and Prior Proceedings.

Michael Said is an Iowa lawyer who is engaged in the practice of law in Des Moines. He graduated from law school in 1989 and received an LL.M. in international studies in 1990. He worked in Washington, D.C., before moving to Iowa with his wife. Said was admitted to practice law in Iowa in 1994. He founded his own law firm in 1999 and currently practices with two other attorneys. His primary areas of practice are immigration law and criminal defense. Said is fifty-five years old. He has received four prior private admonitions.

Said is known to be a zealous, competent advocate who is devoted to his clients. He has a good reputation among other lawyers. Said also provides volunteer legal services to needy Iowans through a variety of entities. He was cooperative with the Board throughout the proceedings, was remorseful for his conduct, and has taken corrective measures to prevent future problems.

The disciplinary action originates from Said's conduct in representing a client in a deportation proceeding. The facts were revealed in a disciplinary hearing before the grievance commission on January 23, 2015, after the Board filed a complaint on September 15, 2014.

The client, Pedro Hernandez, hired Said on June 1, 2006, after the Department of Homeland Security commenced removal proceedings against him. Said and Hernandez entered into a flat-fee contract of $5200 for representation in the deportation case before the Executive Office of Immigration Review. Hernandez paid $2600 on that day and paid the remainder in monthly installments over the following nine months. The written agreement included a provision authorizing Said to withdraw seventy-five percent of the advance fee upon the filing of the “application packet,” with the remainder withdrawn “as worked.”

Said placed the flat-fee advance payments into his trust account and began making periodic withdrawals of various amounts shortly after the initial deposit. He did not notify Hernandez of any of the withdrawals, and he withdrew most of the funds by the end of 2007.

The proceedings against Hernandez were involved and spanned several years, building to a hearing before an immigration judge in January 2012. On October 15, 2012, the immigration court issued an order denying Hernandez's application to cancel the removal. It did, however, grant him the opportunity for voluntary departure in lieu of removal. The order was sent to Said's office while the legal assistant responsible for distributing the mail was on maternity leave and was subsequently misplaced. It was not discovered until November 26, after the thirty-day period for appeal had expired.

Said and another attorney in the office promptly prepared a motion to stay deportation and a notice of appeal. Both documents were filed with the Board of Immigration Appeals (BIA). The attorneys sought relief based on the misplaced order. In particular, the motion to stay deportation explained that Hernandez did not receive timely notice of the order through no fault of his own and that Said was “preparing” a notice of his conduct in missing the appeal deadline for review by the attorney disciplinary board. Said further alleged in the motion that the notice would be sent to the BIA under separate mailing, and he would forward a copy of the notice to the immigration court after filing it with the disciplinary board. Said, however, never self-reported his conduct to the disciplinary board and, in turn, never forwarded any notice to the immigration court. The BIA subsequently denied the relief sought by Said for Hernandez on January 31, 2013.

Said presented evidence at the commission hearing that he promptly told Hernandez about the immigration court order and the missed deadline and that he further obtained the approval of Hernandez to proceed with his case. Hernandez, however, testified Said did not inform him of any of these matters until much later. Hernandez said he was not told of the removal order or the missed appeal deadline until a meeting with Said in March 2013. At that time, Said and Hernandez discussed the problem, and Hernandez decided to obtain new counsel. To support his claim that Said never told him about the removal order and the missed deadline until March 2013, Hernandez testified that he traveled by airplane after December 2012 and would never have done so if Said had told him about the existence of a removal order, due to the immediate risk of apprehension and deportation.

II. Board Complaint.

The Board charged Said with multiple violations of the Iowa Rules of Professional Conduct and related court rules. Count I included the violations relating to Said's communication with Hernandez and the immigration court. Said was charged with violating rules 32:1.4(a)(3) (keep client reasonably informed), 32:1.4(b) (explain matters to extent reasonably necessary for client to make informed decisions), and 32:3.3(a)(1) (candor with tribunal) of the Iowa Rules of Professional Conduct. Count II encompassed violations relating to trust account maintenance and fee payment. The Board charged Said with violating Iowa Rule of Professional Conduct 32:1.15(c) (withdraw fees only as earned) and four Iowa Court Rules under rule 32:1.15(f): rules 45.2(2) (maintain complete records and provide accounting¹ ), 45.10(3) (withdrawal of flat fee), 45.7(3) (withdraw fees as earned), and 45.7(4) (notification and accounting upon withdrawal).

Following the January 2015 disciplinary hearing, the grievance commission found the Board established Said violated all the rules in the complaint by a “convincing preponderance of the evidence.” The commission recommended Said's license be suspended for thirty days. Said asserts his conduct only supports a public reprimand.

III. Scope of Review.

“We review attorney disciplinary matters de novo.” Iowa Supreme Ct. Att'y Disciplinary Bd. v. Eslick, 859 N.W.2d 198, 201 (Iowa 2015). “Attorney misconduct must be proven by a convincing preponderance of the evidence.” Iowa Supreme Ct. Att'y Disciplinary Bd. v. Bartley, 860 N.W.2d 331, 335 (Iowa 2015). “We respectfully consider the commission's findings and recommendations, but are not bound by them.” Iowa Supreme Ct. Att'y Disciplinary Bd. v. Engelmann, 840 N.W.2d 156, 158 (Iowa 2013). Upon a finding of misconduct, we may impose a greater or lesser sanction than recommended by the commission. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Ricklefs, 844 N.W.2d 689, 697 (Iowa 2014).

IV. Violations.

A. Duty to Keep Client Informed. We first consider the charge that Said neglected his client by failing to keep him reasonably informed about the status of his case. Iowa R. Prof'l Conduct 32:1.4(a)(3). The commission found Said neglected his client by failing to notify him of the removal order during and after the appeal period. Said claimed his conduct in missing the appeal deadline was inadvertence, not professional neglect. He also asserted he promptly informed his client about the oversight after the appeal deadline was missed and that he informed him of the steps he had taken to seek an appeal prior to the time that he filed a motion to stay deportation and notice of appeal.

Professional neglect is more than an isolated instance of negligence and “normally involves more than a single act or omission.” Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Kennedy, 684 N.W.2d 256, 260 (Iowa 2004). Thus, “[a]cts or omissions resulting from mere inadvertence or errors of judgment made in good faith do not generally justify attorney discipline.” Iowa Supreme Ct. Att'y Disciplinary Bd. v. Dunahoo, 730 N.W.2d 202, 206 (Iowa 2007). On the other hand, the failure to perform multiple obligations that the lawyer has assumed, either through indifference or a conscious disregard for responsibilities owed to the client, may rise to the level of professional neglect. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Boles, 808 N.W.2d 431, 438 (Iowa 2012).

The missed deadline in this case, by itself, would not support a finding of neglect in violation of rule 32:1.4(b). The conduct by Said, however, in failing to reasonably inform the client about the status of the case following the missed deadline would support a finding of neglect. Thus, the resolution of this issue ultimately depends upon the resolution of the conflicting evidence presented at the commission hearing.

If evidence at a commission hearing is in conflict, we normally defer to the credibility determination made by the commission. Iowa Supreme Ct. Att'y Disciplinary Bd. v. Clarity, 838 N.W.2d 648, 659 (Iowa 2013) ; see also Iowa Supreme Ct. Att'y Disciplinary Bd. v. Weiland, 862 N.W.2d 627, 639 (Iowa 2015). The commission in this case found Said did meet with his client after the missed deadline was discovered, but did not inform him of the matter. The commission rejected Said's contrary evidence and found he delayed in informing his client of the problem for several months. We defer to the findings of the commission and conclude Said violated rule 32:1.4(a)(3) by failing to keep his client reasonably informed...