MATTER OF DISCIPLINARY PROCEEDING AGAINST ANSCHELL

• Decision Date: 29 May 2003
• Docket Number: No. 9756.,9756.
• Citation: 69 P.3d 844,149 Wash.2d 484
• Court: Washington Supreme Court
• Parties: In the Matter of the DISCIPLINARY PROCEEDING against Grosvenor ANSCHELL, Attorney at Law.

69 P.3d 844

149 Wash.2d 484

In the Matter of the DISCIPLINARY PROCEEDING against Grosvenor ANSCHELL, Attorney at Law.

No. 9756.

Supreme Court of Washington, En Banc.

Argued March 27, 2003.

Decided May 29, 2003.

Kurt Bulmer, Seattle, WA, for Petitioner.

Preston Gates Ellis, Frederic Tausend, Jason Holtman, Jean McElroy, Douglas Ende, WSBA, Seattle, WA, for Respondent.

MADSEN, J.

Grosvenor Anschell appeals from the Washington State Bar Association (WSBA) Disciplinary Board's (Disciplinary Board) decision unanimously adopting the hearing officer's recommendation that Anschell be disbarred for failing to act with diligence in an immigration matter (the Barakat matter) where he neither engaged in any action at all for his client after an initial appearance nor withdrew from the case. The Disciplinary Board also unanimously affirmed the hearing officer's determination that eight other counts against Anschell, involving two other cases and additional rule violations, were proved. We agree with the Disciplinary Board's recommendation, and order Anschell disbarred from the practice of law.

FACTS

On May 20, 1999, the WSBA filed a formal complaint against Anschell based on three grievances, two involving immigration, and one involving a real estate transaction. Anschell failed to timely answer the complaint, and the WSBA filed a notice of motion for an order of default on July 12, 1999. On August 2, 1999, Anschell filed an answer. The WSBA filed a first amended complaint on February 29, 2000, charging Anschell with 11 counts of misconduct related to the three grievances. On November 30, 2001, after he received special disciplinary counsel's notice of motion for default, Anschell belatedly filed an answer to the amended complaint, admitting many of the factual allegations and some of the claims. On December 11, 2001, Anschell filed a "supplement" to his answer, dated December 10, 2001, raising laches as an "affirmative defense."

On December 11 and 12, 2001, the disciplinary hearing was held before Hearing Officer Thomas J. Greenan. On February 5, 2002, the hearing officer entered findings of fact and conclusions of law, rejected the "laches defense," and recommended that Anschell be disbarred from the practice of law. On July 19, 2002, the Disciplinary Board unanimously approved and adopted the hearing officer's findings, conclusions, and recommendation.

While Anschell challenges each of the legal conclusions that he violated the Rules of Professional Conduct and should be disbarred, he has not challenged any of the hearing officer's findings of fact. The following factual recitation of the three matters giving rise to the counts against him is thus drawn from the findings of fact.

The Bolusan Matter. Helen De Guzman Bolusan is a native and citizen of the Philippines. Eldon C. Doty is a United States citizen who was married to Ms. Bolusan's aunt. In 1987, Doty and Ms. Bolusan's, aunt divorced, but continued to live together as husband and wife. Mr. Doty, Ms. Bolusan's aunt, and Ms. Bolusan agreed to try and obtain lawful permanent residence status for Ms. Bolusan in the United States via a marriage to Doty. (According to Ms. Bolusan's testimony at the hearing, this was so that she could come and act as a housekeeper for Doty and her aunt.) In 1990, Doty obtained an alien fiancee visa for Ms. Bolusan from the Immigration and Naturalization Service (INS). Ms. Bolusan entered the United States on August 16, 1990, and she and Doty were married on August 19, 1990. Ms. Bolusan subsequently obtained lawful permanent resident status.

On or about March 1, 1993, Doty filed a petition for dissolution of the marriage.¹ Doty contacted Anschell for the purpose of a grant of immunity from prosecution for Doty and Ms. Bolusan's aunt in exchange for providing the INS with information about their involvement in obtaining permanent resident status for Ms. Bolusan. "Doty retained Respondent [Anschell] for the purpose of attempting to get Sally De Guzman [Ms. Bolusan's aunt] and him a grant of immunity." Decision Papers at 11 (Finding of fact 5). Anschell prepared a letter to the INS stating, in part: "Please advise if you would extend immunity to my client and his former wife in exchange for full information about this lady [Ms. Bolusan] and her fraudulent status." Decision Papers at 11 (Finding of fact 6). Doty began providing information to the INS about his marriage to Ms. Bolusan. On or about September 29, 1993, the marriage between Doty and Ms. Bolusan was dissolved.

In mid-August 1995, the INS issued a notice of intent to rescind Ms. Bolusan's permanent resident status on the ground she had procured entry into the United States by fraud or misrepresentation in order to enter a sham marriage. This decision was based in large part on the information provided by Doty.

On or about August 24, 1995, Ms. Bolusan hired Anschell (whom a friend recommended) to represent her in the rescission case. Prior to undertaking representation of Ms. Bolusan, Anschell never disclosed his prior representation of Doty, nor did he disclose to Mr. Doty material facts of his representation of Ms. Bolusan or obtain a written consent from Doty permitting this representation.

Anschell did not, after being hired, respond to the INS notice of intent to rescind.

On September 3, 1995, Ms. Bolusan married Pudieno Clemente, a naturalized United States citizen. On or about September 27, 1995, the INS rescinded Ms. Bolusan's permanent resident status and terminated her right to be employed in this country.

One year later, Anschell began preparing documents for Ms. Bolusan and her husband Mr. Clemente, including a Petition for Alien Relative and an Application to Register Permanent Residence or Adjust Status in an attempt to obtain permanent resident status for Ms. Bolusan as Mr. Clemente's wife. In preparing the Application to Register Permanent Residence or Adjust Status, Anschell answered "`No'" to question 10, asking "`[h]ave you, by fraud or willful misrepresentation of a material fact ever sought to procure or procured a visa, other documentation, entry into the U.S. or any other immigration benefits....' "Decision Papers at 12-13 (Finding of Fact 12.) In preparing the Petition for Alien relative for Mr. Clemente's signature, Anschell answered "`No'" to question 16, asking "`[h]as your relative ever been under immigration proceedings?'" Decision Papers at 13 (Finding of Fact 12.) On or about September 30, 1996, Anschell filed these documents. At the time, federal law provided that no petition shall be approved if the alien was previously accorded preference status as the wife of a United States citizen by reason of a marriage determined to have been entered for the purpose of evading the immigration laws. Decision Papers at 13 (Finding of Fact 13) (citing and quoting 8 U.S.C. § 1145(c)). The INS scheduled a permanent residence interview for Ms. Bolusan for May 1, 1997. Because Anschell was late for the scheduled interview, Ms. Bolusan and Mr. Clemente were not interviewed.

In the meantime, on or about March 4, 1997, the INS initiated deportation proceedings against Ms. Bolusan, based in large part on the information provided by Mr. Doty. (Thus, two matters were proceeding—consideration of the permanent residence application, and the deportation proceedings.) The deportation proceeding was scheduled for a master calendar (scheduling) hearing on April 30, 1997. Anschell appeared and entered his appearance on behalf of Ms. Bolusan. The immigration judge set the matter for a contested hearing on February 18, 1998, required any application seeking relief from deportation to be filed by July 30, 1997, and required prehearing statements to be filed at least 10 days before the hearing.

By April 30, 1997, at the latest, prior to the master calendar hearing, Anschell remembered and was aware that Mr. Doty had consulted him and sought legal advice concerning Ms. Bolusan's entry into a sham marriage with Doty, and that he, Anschell, had written, signed, and given the letter to INS to Doty seeking immunity for Doty and Ms. Bolusan's aunt. As noted, Anschell never obtained written consent to continue his representation of Ms. Bolusan. Mr. Doty filed a grievance against Anschell when he learned that Anschell was representing Ms. Bolusan. On November 6, 1997, Anschell assured the WSBA and Doty that he would withdraw from representation of Ms. Bolusan. He did not withdraw. He remained as attorney for Ms. Bolusan until she and her husband discharged him after the February 18, 1998, deportation hearing.

However, Anschell did not file any application seeking relief from deportation on behalf of Ms. Bolusan nor did he file the required prehearing statement. On February 17, 1998, the day before the scheduled hearing, Anschell urged Ms. Bolusan to concede that her marriage had been a sham. He still had not informed Ms. Bolusan that he had previously consulted with Doty.

At the deportation hearing held on February 18, 1998, Anschell represented Ms. Bolusan, and told the INS attorney and the immigration judge that he might have a conflict of interest because of his prior representation of Doty. He did not, however, fully disclose the nature of the prior representation —that it involved the same or a substantially similar subject as his representation of Ms. Bolusan. Anschell also represented that Ms. Bolusan would not be contesting the allegations or cross-examining Doty. After learning this, the attorney and judge indicated they had no objection to Anschell's continued representation of Ms. Bolusan. Anschell requested voluntary deportation for Ms. Bolusan, and the immigration judge ordered a deportation date of February 17, 1999. Anschell waived Ms. Bolusan's right to appeal the decision.

From the findings of fact concerning the Bolusan matter, the hearing officer concluded that counts 1 through 5 were proved by a clear preponderance of the evidence (as noted,...