Iowa Supreme Court Attorney Disciplinary Bd. v. Said

• Decision Date: 08 January 2021
• Docket Number: No. 20-0797,20-0797
• Citation: 953 N.W.2d 126
• Parties: IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. Michael H. SAID, Respondent.
• Court: Iowa Supreme Court

953 N.W.2d 126

IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant,

v.Michael H. SAID, Respondent.

No. 20-0797

Supreme Court of Iowa.

Submitted September 17, 2020

Filed January 8, 2021

Tara van Brederode and Crystal W. Rink, Des Moines, for complainant.

Leon Spies of Spies & Pavelich, Iowa City, for respondent.

Appel, J., delivered the opinion of the court, in which all participating justices joined. McDermott, J., took no part in the consideration or the decision of the case.

APPEL, Justice.

The Iowa Supreme Court Attorney Disciplinary Board (Board) filed a complaint against attorney Michael Said alleging twenty-six violations of the Iowa Rules of Professional Conduct arising out of representation of four clients in immigration matters. After a hearing, the Iowa Supreme Court Grievance Commission (commission) found that Said violated a number of disciplinary rules that require an attorney keep his client adequately informed about the representation. The commission further found that Said revealed client information without the client's consent. The commission held that the remainder of the charges were not supported by a convincing preponderance of the evidence. As a result, the commission recommended that we publicly reprimand Said.

Based on our de novo review of the record, we suspend the license of Said for thirty days.

I. Factual and Procedural Background.

A. Introduction. Michael Said is an Iowa attorney admitted to the bar in 1994. His practice focuses on immigration law. Said formed his own law firm in 1999. He has engaged in pro bono representation over the years, and in 2006, he received an award for pro bono work from the Polk County Volunteer Lawyers Project.

Said has a disciplinary history. In 2015, we imposed a thirty-day suspension on Said. Iowa Sup. Ct. Att'y Disciplinary Bd. v. Said , 869 N.W.2d 185, 195 (Iowa 2015). We concluded that Said violated our disciplinary rules related to keeping his client reasonably informed by failing to advise a client of the existence of a removal order and that the time to appeal had passed because the attorney had missed a deadline. Id. at 190–91 ; see also Iowa R. Prof'l Conduct 32:1.4(a)(3), (b). We also found that Said made a false statement to a tribunal and violated rules relating to fees and trust accounts. Said , 869 N.W.2d at 191–93 (finding violations of Iowa Rules of Professional Conduct 32:3.3(a)(1), 32:1.15(c), and 32:1.15(f)).

Said also received a public reprimand on June 25, 2015. The Board found that Said withdrew a flat fee from his trust account before it had been fully earned in violation of Iowa Rule of Professional Conduct 32:1.5(c). The Board also found language in a fee agreement utilized by Said that provided for a flat fee if the matter was "uncontested" and additional fees if it became contested was misleading in the context of immigration and postconviction-relief cases. These cases, the Board reasoned, are almost universally contested. The Board concluded that no further discipline was required because Said had received a private admonition and the fee agreement in question predated that prior admonition.

In addition, Said has received five private admonitions over the years from the Board. He was admonished on September 18, 2003, for failure to provide his clients with itemized billings; on June 22, 2007, for engaging in dual representation of a husband and wife in an immigration matter after conflicts of interest arose; on January 10, 2011, for advising and assisting immigration clients in filing frivolous waiver applications; on June 29, 2011, for lack of diligence in protecting a client's interest where Said failed to inform a client that the client's physical presence was necessary at a telephonic hearing and for conduct prejudicial to the administration of justice; and on December 23, 2013, for charging an unreasonable fee and using a misleading fee agreement.

The allegations in this proceeding arise from Said's representation of four immigration law clients. All have been unlawfully present in the United States for over ten years. Mauricio Ramirez Fernandez and Guillermo Hernandez Ruiz were subject to removal proceedings but hired Said to represent them in cancellation of removal proceedings.

Irma Luna Carrillo and Susan Alba Araniega were also unlawfully present in the United States for over ten years. They hired Said to assist in the preparation of what is known as a U visa application. A U visa application is available to unlawfully present persons who assist law enforcement in the prosecution of certain crimes.

This matter involves a broad array of attorney disciplinary issues in an immigration law setting. Based on our de novo review of the record, we find the following facts in connection with Said's representation.

B. Mauricio Ramirez Fernandez.

1. Factual background. Originally from Mexico City, Mexico, Ramirez Fernandez has resided in the United States for twenty-two years without lawful status. He was married to Luna Carrillo, another client of Said, who also filed a complaint with the Board regarding Said's representation of her.

In January 2011, immigration officers arrested Ramirez Fernandez at his place of work as unlawfully residing in the United States. The United States Department of Homeland Security (DHS) thereafter brought removal proceedings against him.

Ramirez Fernandez hired Said to seek cancellation of removal. On February 23, he signed a fee agreement with Said. The fee agreement provided that the "[c]lient shall pay a fee of $6000.00 if uncontested." If the matter became contested, the fee agreement provided that Ramirez Fernandez was required to pay Said $250 per hour for additional work. Pursuant to the fee agreement, Said filed documents with immigration authorities, on Ramirez Fernandez's behalf, seeking cancellation of removal.

In the summer of 2011, Ramirez Fernandez advised Said that he desired to obtain a driver's license but had titled a vehicle in the past using a false Social Security number. Said encouraged him to go to the Iowa Department of Transportation (DOT) to apply for a driver's license. For an additional fee of $500, Said agreed to accompany him to the DOT.

Prior to the meeting at the DOT, Said informed Donald Sharr, an investigator for the DOT, that he had a client who used a false Social Security number to register his car and house trailer. Said provided Sharr with the false Social Security number used by Ramirez Fernandez in the past and asked Sharr, "Let me know what you want to do" in regard to bringing Ramirez Fernandez to the DOT to be interviewed.

Said and Ramirez Fernandez appeared at the DOT. At the meeting, Ramirez Fernandez signed a "Voluntary Statement" that stated, "I used a made up Social Security number to register a car in Polk County Iowa on 10/27/08." Sharr issued Ramirez Fernandez a citation charging him with fraudulent practice in the third degree in violation of Iowa Code section 714.11(3) (2011).

The state filed a preliminary complaint against Ramirez Fernandez in Polk County District Court. Ramirez Fernandez hired Said to represent him in the criminal matter. The fee agreement provided for a payment of a flat fee if the matter was "uncontested." If the matter became contested, the fee agreement provided that Said would be compensated for additional work at a rate of $250 per hour.

The preliminary complaint listed Michael Said as a witness. Said filed an appearance in the matter on July 28. A subsequent trial information filed on August 24 charged Ramirez Fernandez with fraudulent applications in the third degree and listed Said as a witness. An amended trial information later changed the charge to fraudulent practice in the fourth degree, a serious misdemeanor under Iowa law. Iowa Code § 714.12. The state's amended trial information also listed Said as a witness.

In response to the charge of fraudulent practice in the fourth degree, Ramirez Fernandez, acting on the advice of Said, agreed on October 7 to plead guilty. He signed a guilty plea and sentencing order stating, "I went and registered a car using a SS# which was not mine."

At a hearing on the plea agreement, an interpreter translated the district court's colloquy into Spanish for Ramirez Fernandez. Among other things, the district court admonished Ramirez Fernandez that "if you are not a citizen of this country there could be negative immigration consequences as a result of your plea of guilt." When asked if he understood whether there could be negative immigration consequences and whether Mr. Said had explained that to him, Ramirez Fernandez responded "yes."

Pursuant to the plea agreement, the district court sentenced Ramirez Fernandez to 180 days in jail but suspended the jail time. In addition, the district court placed Ramirez Fernandez on probation for one year, required him to provide fifty hours of community service, and required him to enroll in a Latino Orientation Program.

2. Immigration proceedings after conviction. On August 25, 2015, an immigration judge granted the government's motion to pretermit cancellation proceedings. A motion to pretermit cancellation of removal in immigration law is the equivalent of a motion for summary judgment against the party seeking cancellation. The immigration judge found that although Ramirez Fernandez was convicted under a divisible statute with multiple avenues to support a conviction, the factual basis in his guilty plea was the declaration of Ramirez Fernandez that "I went and registered a car using a SS# which was not mine." As a result, his conviction involved fraud. Fraud, according to the immigration judge, was a crime involving moral turpitude, and as a result, Ramirez Fernandez was disqualified from seeking cancellation of removal.

In addition, the immigration judge found that fraudulent practice in the fourth degree was not a "petty offense," which removed his offense from meeting the petty offense exception to crimes involving moral turpitude. The...