People v. Ziankovich

• Decision Date: 20 June 2018
• Docket Number: Case Number: 17PDJ037
• Citation: 433 P.3d 640
• Parties: The PEOPLE of the State of Colorado, Complainant, v. Youras ZIANKOVICH, Respondent.
• Court: Colorado Supreme Court

433 P.3d 640

The PEOPLE of the State of Colorado, Complainant,

v. Youras ZIANKOVICH, Respondent.

Case Number: 17PDJ037

Office of Presiding Disciplinary Judge of the Supreme Court of Colorado.

June 20, 2018

Nunc pro tunc to the May 31, 2018.

AMENDED¹ OPINION AND DECISION IMPOSING SANCTIONS UNDER C.R.C.P. 251.19(b)

WILLIAM R. LUCERO PRESIDING DISCIPLINARY JUDGE

Youras Ziankovich ("Respondent"), a lawyer licensed in New York but not in Colorado, practices immigration law in Aurora. Partial summary judgment was entered based on a finding that he violated six Colorado Rules of Professional Conduct by charging excessive and nonrefundable fees, failing to keep unearned fees in trust, failing to promptly refund unearned fees, and misrepresenting to a client the date when he mailed an immigration application. At the disciplinary hearing, there was not clear and convincing evidence that Respondent committed a communication violation. The majority decision in this matter is that Respondent's breach of six ethical rules warrants suspension for one year and one day, with three months to be served and the remainder to be stayed upon successful completion of a two-year period of probation, with the requirement of practice monitoring and trust account monitoring. A dissent as to sanctions advocates for a longer served suspension.

I. PROCEDURAL HISTORY

Bryon M. Large, Office of Attorney Regulation Counsel ("the People"), filed a complaint with Presiding Disciplinary Judge William R. Lucero ("the PDJ") on May 26, 2017, alleging that Respondent violated eight Colorado Rules of Professional Conduct. Respondent did not file an answer as required but instead moved to dismiss the case on June 2, 2017, asserting a lack of disciplinary jurisdiction because he is not licensed in Colorado and his law practice is limited to federal immigration cases.

The PDJ denied Respondent's motion and ordered him to answer the complaint by July 27, 2017. On July 19, 2017, Respondent filed with the Colorado Supreme Court a notice of appeal of the PDJ's ruling under C.R.C.P. 251.27. The PDJ granted Respondent's motion to stay the disciplinary case pending appeal, but the Colorado Supreme Court dismissed Respondent's appeal on August 21, 2017. Ten days later the PDJ lifted the stay on the disciplinary case. The PDJ later denied Respondent's motion for a stay pending resolution of a federal action he filed against the People.

On October 6, 2017, Respondent filed an answer, which the People moved to strike. After directing additional briefing,² the PDJ granted the People's motion and ordered Respondent to file an amended answer. The PDJ set a three-day trial in this matter for April 10-12, 2018.

By order dated December 12, 2017, the PDJ granted the People's motion to compel disclosures and ordered Respondent to produce his initial disclosures within a week. The PDJ advised Respondent that failure to do so might result in sanctions, including a prohibition against introducing certain evidence at the disciplinary hearing. Respondent did not produce initial disclosures as required. Thus, on January 19, 2018, the PDJ granted the People's motion for sanctions and barred Respondent from presenting undisclosed evidence, including documents and witness testimony.

In his amended answer filed on January 9, 2018, Respondent admitted or denied specific allegations in the complaint, stated that he was without sufficient information to admit or deny certain allegations, partially admitted and partially denied certain allegations without specificity, and contended that certain allegations were "not clear" and thus neither admitted nor denied them. The People then moved to deem various allegations admitted under C.R.C.P. 8(d). The PDJ deemed the motion moot after concluding that Respondent's response to the motion had cured his deficient amended answer by specifying which portions of certain paragraphs he admitted and denied and by denying with explanation certain other allegations. In that order, however, the PDJ found that "Respondent's approach to litigating this case has bordered on contumacious and his conduct in this particular matter has clearly stepped over that line." Based on Respondent's failure to heed both the order directing an amended answer and the rules of civil procedure, the PDJ sanctioned him by mandating application of the aggravating factor of bad faith obstruction of a disciplinary proceeding.

Both parties then moved for summary judgment. By order of March 21, 2018, the PDJ denied Respondent's motion on four separate grounds, including that he filed the motion late and that he disregarded the standards for summary judgment established in the PDJ's scheduling order. On April 5, 2018, the PDJ granted in part and denied in part the People's motion for summary judgment and entered judgment in the People's favor on Claims III-VIII. The PDJ also shortened the three-day disciplinary hearing to a two-day hearing, to be limited to the remaining claims in the People's complaint as well as the sanction for the established rule violations and any other violations proved at the hearing.

On April 10 and 11, 2018, a Hearing Board comprising the PDJ, attorney Murray Weiner, and lay member Dianne V. Truwe held a hearing under C.R.C.P. 251.18. Large represented the People, and Respondent appeared pro se. The Hearing Board considered stipulated exhibits S1-S21,³ the People's exhibit 8, and the testimony of Hennadiy Zhakyavichyus, Iuliia Vyshniavska,⁴ expert witness Lisa Green, and Respondent.

At the outset of the hearing, the People withdrew Claim I of their complaint (alleging a violation of Colo. RPC 1.2(a) ) as well as paragraph 128 of their complaint (claiming that Respondent's alleged surreptitious recording of telephone calls violated Colo. RPC 8.4(c) ).⁵ Also at the outset of the hearing, Respondent moved to dismiss the case for lack of jurisdiction, alleging that he did not receive written notice of the hearing under C.R.C.P. 251.18(a). After Respondent confirmed that he had participated in setting the hearing and that he had received the PDJ's scheduling order, the PDJ denied Respondent's motion.

II. FACTS AND RULE VIOLATIONS Findings of Fact Established on Summary Judgment

Respondent was admitted to practice law in New York in 2014. He is not admitted to practice law in Colorado. He maintains an immigration law practice in Aurora called "Rocky Mountains Immigration Lawyers, Inc."

Iuliia Vyshniavska is a citizen of Ukraine. Hennadiy Zhakyavichyus was, at the time he hired Respondent, a lawful permanent resident of the United States. Vyshniavska experienced entry-related difficulties when arriving in Denver in June 2016, and she, along with Zhakyavichyus, sought Respondent's advice. On June 30, 2016, Vyshniavska and Zhakyavichyus consulted with and retained Respondent at his Colorado office. Respondent waived his consultation fee of $150.00 each. The June 30 meeting lasted about two hours.

Vyshniavska told Respondent that she was afraid after her encounter with U.S. Customs and Border Protection at the Denver airport, and she was concerned about remaining in lawful immigration status since her permission to stay in the United States would expire in three weeks. She wished to stay longer but did not want to risk arrest. Respondent understood that the couple was interested in marrying. Under applicable law, Vyshniavska would not be immediately eligible for residency as the spouse of a lawful permanent resident. She would be eligible, however, if she were married to a U.S. citizen.

On June 30, 2016, Respondent and Vyshniavska signed a fee agreement for the preparation of an application for asylum and a work permit for a flat fee of $3,000.00. In addition, Respondent and Zhakyavichyus signed a fee agreement for naturalization-related legal services for a flat fee of $3,000.00, a sum that included the $680.00 application fee. Both fee agreements had a clause providing that in the event of early termination, Respondent would charge attorney's fees at $250.00 per hour "plus case evaluation in the amount of 1,000."

Also on June 30, 2016, the couple paid Respondent $1,000.00 as a deposit under Zhakyavichyus's fee agreement. Respondent placed the deposit in his corporate account. Although Respondent maintained a New York trust account, he did not and still does not have a Colorado trust account.

On August 1, 2016, Zhakyavichyus paid Respondent $5,000.00, completing payment under both fee agreements. Respondent deposited the $5,000.00 into his corporate checking account.

On August 4, Vyshniavska called Respondent's office to inquire about the status of the cases, but Respondent was not in the office. Vyshniavska spoke twice that day with Respondent's assistant, Alena Dzenisavets, who said that the applications had not yet been filed. Becoming upset, Vyshniavska instructed Dzenisavets to cease work on the cases and said that she was firing Respondent on behalf of herself and Zhakyavichyus.

Later that day, Respondent emailed Vyshniavska in response to her earlier call, stating: (1) "in accordance with ethical regulations of the legal profession, my office cannot complete and mailed [sic] out your claim for the asylum until we receive full payment for our work"; (2) "[a]s a general rule, we reserve at least 1 month after signing a contract and full payment made to get all documents ready to be filed"; (3) "The fact that you are out of status is beyond of [sic] our control ..."; and (4) "Your documents are in processing, and as soon as all will be prepared, we will mail it out." That same day, following Vyshniavska's phone call, Respondent instructed his staff to expedite the filing of Zhakyavichyus's case.

Five days later, on August 9, Zhakyavichyus terminated Respondent's legal services. Respondent told Vyshniavska and Zhakyavichyus that he mailed Zhakyavichyus's naturalization application on August 4 to the Phoenix office of U.S. Citizenship and Immigration Services ("USCIS"). USCIS...