Iowa Supreme Court Attorney Disciplinary Board v. Ta-Yu Yang , 821 N.W.2d 425 ( 2012 )

IN THE SUPREME COURT OF IOWA
No. 12–0793
Filed September 28, 2012
IOWA SUPREME COURT ATTORNEY
DISCIPLINARY BOARD,
Complainant,
vs.
TA-YU YANG,
Respondent.
On review of the report of the Grievance Commission of the
Supreme Court of Iowa.
Grievance commission recommends public reprimand of attorney
for ethical violations. ATTORNEY REPRIMANDED.
Charles L. Harrington and Nicholas Tré Critelli III, Des Moines, for
complainant.
Ta-Yu Yang, Des Moines, pro se.
2
HECHT, Justice.
The Iowa Supreme Court Attorney Disciplinary Board alleged an
attorney violated ethical rules by making misrepresentations to the
Board of Immigration Appeals (BIA) and by failing to inform a client that
the attorney’s ineffectiveness could be asserted in support of a motion for
reconsideration of an adverse immigration decision. Upon our review of
the record and our consideration of the findings of fact, conclusions of
law, and recommendation of a division of the Grievance Commission of
the Supreme Court of Iowa, we find the attorney violated ethical rules,
and we publicly reprimand him.
I. Factual and Procedural Background.
Ta-Yu Yang was hired in 2001 to represent Donald Baudilio
Escalante-Silva, a Salvadoran national, in deportation proceedings.
Donald had entered the United States without proper documentation.
Yang filed an application with the United States Citizenship and
Immigration Services (USCIS) under the Nicaraguan Adjustment and
Central American Relief Act (NACARA) seeking recognition of Donald as a
legal resident of the United States. See Nicaraguan Adjustment and
Central American Relief Act, Pub. L. 105-100, Title II, 111 Stat. 2193
(1997). 1
While his removal proceeding was still pending, Donald returned to
El Salvador in the summer of 2002 and married Vilma. When Donald
and Vilma subsequently reentered the United States without proper
1Adopted by Congress in 1997, the statute established a process through which
certain foreign nationals could, under limited circumstances, become legal permanent
residents of the United States.
3
documentation, they were detained. They were placed in separate
deportation proceedings before the immigration court. 2
Yang thereafter agreed to represent both Donald and Vilma in their
deportation proceedings. Yang filed, and the immigration court granted,
a motion requesting a change of venue and permission to appear
telephonically for both clients in October 2002. The separate cases
against Donald and Vilma were consolidated upon Yang’s motion, and
venue was changed from Harlingen, Texas, to Chicago, Illinois. 3
The removal proceedings against Donald and Vilma were
administratively closed in December 2006 pending resolution of Donald’s
request for relief under NACARA. After Donald’s NACARA claim was
denied in early 2009, however, the previously consolidated removal
proceedings against Donald and Vilma were recalendared as separate
cases. The immigration court scheduled a pretrial conference hearing
known as a “master calendar hearing” (MCH) in Donald’s case for May 5,
2009, in Omaha before Judge James R. Fujimoto. The notice of the MCH
was sent to Donald but was not sent to attorney Yang despite his
previous appearance as Donald’s counsel of record in the same case file.
Based on his previous request for telephonic appearance granted
by the court in 2002, Yang assumed that he and Donald could appear
telephonically at the MCH and advised Donald accordingly. Donald came
to Yang’s office on May 5, 2009. After waiting for a call from the court
during the morning hours, Yang placed several telephone calls to Judge
2The immigration court is established within the Executive Office for
Immigration Review at the United States Department of Justice. See generally 8 C.F.R.
§ 1003.1 (2012).
3Althoughthe immigration court to which venue was transferred was actually
located in Chicago, the respondents’ deportation proceedings were to be held in Omaha,
Nebraska.
4
Fujimoto’s office. During the last of these telephone inquiries, Yang was
advised by a member of the court’s staff that the matter had been treated
as a “no-show,” or default, because Donald had failed to appear in
Omaha for the hearing and that the court had ordered Donald’s removal
in absentia.
Yang filed a motion requesting the reopening of the removal
proceeding and rescission of the removal order. The motion asserted
that Yang “did receive notice for the MCH from the court and assumed
that he [was] still listed as the attorney of record” in the case and that
Donald had relied on Yang’s legal advice that telephonic participation in
the hearing would be allowed. 4 The motion was denied by the court in a
ruling dated September 10, 2009. The court’s ruling noted that the
notice of the May 5, 2009 MCH had been sent by the court to Donald but
not to Yang. Citing section 4.15(m) of the Immigration Court Practice
Manual, the ruling further noted that Donald’s telephonic appearance
and Yang’s telephonic appearance as Donald’s counsel at the May 5,
2009 MCH could have been authorized by the court only upon the filing
of a motion in writing explaining the reason(s) for waiver of in-person
attendance at the hearing. As no such motion was filed in advance of the
May 5, 2009 MCH, the motion for reopening and rescission was denied.
Citing Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), the court’s ruling
noted Donald’s claim that his failure to appear was a consequence of his
detrimental reliance upon Yang’s “incorrect and unauthorized
4The record includes copies of orders authorizing Donald and his counsel to
appear telephonically for other scheduling hearings scheduled for May 19, 2006, and
December 5, 2006, in the same case file.
5
instructions” would be “more properly advanced through a motion to
reopen asserting ineffective assistance of counsel.” 5
Yang did not inform Donald of the option of asserting Yang’s
ineffective assistance as the ground for another motion to reopen the
deportation proceeding. Instead, Yang sought review of Judge Fujimoto’s
ruling before the BIA alleging again that he had received notice of the
May 5, 2009 MCH from the immigration court and reasonably believed
he was still recognized as Donald’s counsel. Donald, however, chose a
different course and hired new counsel who lodged an ethical complaint
against Yang and filed a new motion for reconsideration of Judge
Fujimoto’s ruling. 6
The Board filed a complaint alleging Yang violated rule 32:8.4(c) 7
(engaging in conduct involving misrepresentation) when he made a
misrepresentation of fact to the BIA in his appeal from the immigration
court’s ruling. The Board asserted Yang’s express allegation on appeal
that he had received notice from the court of the May 5, 2009 MCH was
untrue inasmuch as the immigration court had served the notice on
Donald but not Yang. The Board further alleged Yang violated rule
32:1.7(a)(2) (continuing to represent a client when there is a significant
risk that the representation will be materially affected by a personal
interest of the lawyer) by failing to withdraw as Donald’s counsel after
Judge Fujimoto’s ruling revealed that a motion to reopen asserting
5In Lozada, the Board of Immigration Appeals held that a motion to reopen a
deportation proceeding on the ground of ineffective assistance of counsel should state
whether a complaint “has been filed with appropriate disciplinary authorities with
respect to any violation of counsel’s ethical or legal responsibilities, and if not, why not.”
Matter of Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988).
6The record indicates the motion to reopen filed by Donald’s new counsel was
granted by the immigration court.
7Unless otherwise specified, all citations to the Iowa Court Rules are to the 2012
version, effective February 20, 2012.
6
Yang’s ineffective assistance could be filed. The Board’s complaint also
alleged Yang violated rule 32:1.4(b) (requiring a lawyer to explain a
matter to the extent reasonably necessary to permit the client to make
informed decisions regarding the representation) when he failed to inform
Donald that ineffective assistance was a potential ground for reopening
the removal proceeding and rule 32:1.7(b) (lawyer may represent a client
notwithstanding the existence of a conflict of interest if the affected client
gives informed consent in writing) in continuing to represent Donald in
the appeal from Judge Fujimoto’s ruling without Donald’s informed
consent.
Yang denied he engaged in intentional misrepresentation. He
asserted his failure to disclose that the notice was delivered to him by
Donald rather than directly from the court was an unintentional
oversight rather than an act of misrepresentation in violation of rule
32:8.4(c). Yang also denied he violated the other rules cited by the Board
because his representation of Donald was not ineffective under the
circumstances.
The matter went to hearing before the commission. The
commission found Yang violated rule 32:8.4(c) in the appeal of Judge
Fujimoto’s ruling by representing the notice of the MCH was received
from the court. The commission found the Board failed to prove
violations of the other rules cited in the Board’s complaint but
recommended Yang be publicly reprimanded. This recommendation was
based in part on the commission’s consideration of Yang’s history of one
prior public reprimand for neglecting a client’s appeal and four prior
private admonitions. It was also based in part on the commission’s
recognition of Yang’s long history of community service, his cooperation
with the Board’s investigation, and his reputation as a knowledgeable
7
immigration lawyer who has assisted countless immigrants with difficult
immigration problems.
II. Scope of Review.
Our review of this attorney disciplinary proceeding is de novo.
Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Bernard, 653 N.W.2d
373, 375 (Iowa 2002). “It is the Board’s burden to prove ethical
violations by a convincing preponderance of the evidence.” Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Denton, 814 N.W.2d 548, 551 (Iowa
2012). Although we give respectful consideration to the commission’s
findings and recommendation for sanction, we are not bound by them.
Id.
III. Discussion.
Upon our de novo review of the record, we agree with the
commission’s finding that Yang violated rule 32:8.4(c) when he made a
misrepresentation in the appeal from Judge Fujimoto’s ruling. We find
by a convincing preponderance of the evidence that the
misrepresentation was knowingly made on appeal as it was made after
Judge Fujimoto’s ruling on the motion to reopen had expressly
emphasized the inaccuracy of Yang’s earlier assertion that he had
received notice of the May 5, 2009 MCH from the court. Although it is
plausible that Yang simply erred in making the inaccurate factual
representation in his motion requesting Judge Fujimoto to reconsider his
ruling, we find Yang’s repetition of the inaccurate factual assertion on
appeal after a court ruling had expressly emphasized its inaccuracy
constituted a misrepresentation made with scienter in violation of rule
32:8.4(c). See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Netti, 797
N.W.2d 591, 605 (Iowa 2011).
8
We also find by a convincing preponderance of the evidence that
Yang violated rule 32:1.4(b) when he failed to explain to Donald that he
could file a motion alleging Yang’s ineffective assistance as a ground to
reopen the removal proceeding. Although Yang asserts he did not
explain this option to Donald because he was confident based on his
considerable professional experience as an immigration lawyer that
Judge Fujimoto’s ruling would be reversed on appeal, we conclude Yang
owed his client an explanation of the alternative course of action because
it was reasonably necessary to permit Donald to make an informed
decision on the matter.
We further find by a convincing preponderance of the evidence that
Yang violated rule 32:1.7(a)(2) by continuing to represent Donald without
disclosure and informed consent after it became clear that one strategic
option for challenging Judge Fujimoto’s ruling would include a claim of
Yang’s ineffectiveness and possibly a complaint asserting Yang’s violation
of ethical rules. In continuing the representation of Donald without
disclosure of the apparent conflict of interest, Yang ignored a significant
risk that the representation would be materially limited by Yang’s
personal interest in avoiding a potential ethical complaint. 8
IV. Sanction.
When deciding on an appropriate sanction for an attorney’s ethical
violations, we consider the nature of the violations, the need to protect
the public, deterrence of similar misconduct by other lawyers, the
8We agree with the commission’s determination that Yang did not commit a
separate sanctionable violation of rule 32:1.7(b) by continuing to represent Donald in
the appeal without Donald’s informed consent. Although Yang could have continued to
represent Donald had he made disclosure of the conflict and obtained Donald’s
informed written consent consistent with the strictures of rule 32:1.7(b), he did not do
so. This failure to pursue the “safe harbor” of informed consent for the continuing
representation does not constitute a separate violation of rule 32:1.7(b).
9
lawyer’s fitness to practice law, and the court’s duty to uphold the
integrity of the legal profession in the eyes of the public. Iowa Supreme
Ct. Att’y Disciplinary Bd. v. Walker, 712 N.W.2d 683, 685 (Iowa 2006).
We also consider any relevant aggravating and mitigating circumstances
evidenced in the record. Id. In its well-written and soundly reasoned
report, the commission noted Yang’s prior disciplinary history as an
aggravating circumstance and recounted significant mitigating
circumstances arising from his substantial service to the immigrant
community and his complete cooperation with the Board’s investigation.
In this case, we conclude the commission’s recommendation of a public
reprimand is most appropriate. Accordingly, we impose a public
reprimand. The costs of this action shall be taxed to Yang as provided in
rule 35.27(1).
ATTORNEY REPRIMANDED.