Cincinnati Bar Assn. v. Sigalov , 133 Ohio St. 3d 1 ( 2012 )

[Cite as Cincinnati Bar Assn. v. Sigalov, 133 Ohio St. 3d 1, 2012-Ohio-3868.]
CINCINNATI BAR ASSOCIATION v. SIGALOV.
[Cite as Cincinnati Bar Assn. v. Sigalov, 133 Ohio St. 3d 1, 2012-Ohio-3868.]
Attorneys—Misconduct—Multiple violations of Code of Professional
Responsibility and Rules of Professional Conduct—Neglect,
incompetence, misrepresentation, and causing damage to clients—
Disbarment.
(No. 2011-0120—Submitted April 19, 2011—Decided August 28, 2012.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 11-120.
__________________
Per Curiam.
{¶ 1} Respondent, Vlad Sigalov of Cincinnati, Ohio, Attorney
Registration No. 0070625, was admitted to the practice of law in Ohio in 1999.
{¶ 2} Sigalov is a sole practitioner engaged in a practice centering on
personal-injury, immigration, and criminal cases. He accepts approximately
1,000 individual claims per year, and as recently as 2009, earned more than $2.5
million in gross settlement revenues and approximately $800,000 in fees.
{¶ 3} Relator, Cincinnati Bar Association, filed a second amended
complaint1 with the Board of Commissioners on Grievances and Discipline,
setting forth seven counts of misconduct. The seven counts alleged that Sigalov
violated the Rules of Professional Conduct and the Code of Professional
Responsibility in the course of representing five clients in personal-injury matters
and three clients in immigration cases.
1. The first complaint set forth three counts, but as the scope of Sigalov’s misconduct became
clear, amended complaints were filed. The amended complaint set forth five counts. The second
amended complaint, which is at issue here, set forth seven counts.
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{¶ 4} A panel of the board conducted several hearings on the complaint.
The hearings included the testimony of Sigalov, the complainants, and relator’s
expert witness on immigration law, Douglas Weigle.
{¶ 5} Although certain allegations of misconduct were dismissed, the
panel and board found by clear and convincing evidence that Sigalov had
committed numerous disciplinary violations in the course of representing several
clients. Specifically, the panel and board concluded that he had violated
Prof.Cond.R. 1.1 (requiring an attorney to provide competent representation to a
client), 1.2(a) (requiring a lawyer to abide by the client’s decisions concerning the
objectives of the representation and consult with the client as to the means by
which the objectives are pursued), 1.3 (requiring an attorney to act with
reasonable diligence), 1.4(a)(1) (requiring a lawyer to promptly inform a client of
any decision or circumstance with respect to which the client’s consent is
required), 1.5(a) (requiring a lawyer not to make an agreement for, or to collect,
an illegal or clearly excessive fee), 1.5(c)(2) (requiring a lawyer entitled to a
contingency fee to provide a closing statement to the client at the time of or prior
to receipt of that fee), 1.15(b) (prohibiting a lawyer from depositing the lawyer’s
own funds in a client trust account except to obtain a waiver of a bank service
charge), 1.16(a)(3) (requiring a lawyer not to represent a client after the lawyer
has been discharged), and 8.4(c) (requiring a lawyer not to engage in conduct
involving dishonesty, fraud, deceit, or misrepresentation), and DR 1-102(A)(4)
(prohibiting conduct involving dishonesty, fraud, deceit, or misrepresentation), 6-
101(A)(3) (prohibiting neglect of an entrusted legal matter), 7-101(A)(1)
(prohibiting a lawyer from intentionally failing to seek the lawful objectives of his
client), 7-101(A)(2) (prohibiting a lawyer from intentionally failing to carry out a
contract of employment for legal services), and 7-101(A)(3) (prohibiting a lawyer
from damaging or prejudicing a client during representation).
{¶ 6} In light of the number and seriousness of the violations, the panel
and board recommended that Sigalov be disbarred. For the reasons that follow,
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we adopt the board’s findings of fact, conclusions of law, and recommended
sanction.
Misconduct
Count I
{¶ 7} In April 2007, one of respondent’s employees, who was not
licensed to practice law, met with a man who was receiving treatment at a
chiropractic clinic for injuries sustained in a motor-vehicle accident. The client
signed a written contingency-fee agreement stating that Sigalov would represent
the client in a claim for damages sustained as a result of the accident in exchange
for 24 percent of any amount Sigalov recovered. The client claimed that he had
never received a copy of the agreement.
{¶ 8} Sigalov did not personally meet the client at any point during the
representation. He made a settlement demand of $21,500, which the client did not
authorize. The demand included nearly $4,000 for medical expenses, but did not
include a claim for lost wages, even though Sigalov’s records clearly showed that
the client had missed work due to his injuries.
{¶ 9} Sigalov settled the claim for $8,200. He paid himself $2,658, a
figure that represents more than 32 percent of the settlement and $690 more than
the 24 percent to which he was entitled under the fee agreement.
{¶ 10} Sigalov testified that the client had given him oral authorization to
sign the client’s name to the settlement check. But the client denied having
approved the settlement. A schedule of expenses and deductions that Sigalov
claims was approved by the client contains only the initials “OS” on the signature
line, which are not the client’s initials.
{¶ 11} Sigalov issued the client a check for $2,884 after paying himself
and the chiropractic clinic $2,658 each. Sigalov, however, did not pay the
medical expenses that the client had incurred in seeking treatment for his injuries.
As a result, the client was responsible for those bills.
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{¶ 12} The client refused to cash the settlement check. He retained new
counsel, who was able to reopen the settlement and obtain an additional $3,800
from the insurer. New counsel requested that Sigalov return the excess fees
collected from the client. Sigalov testified that he did so, but new counsel never
received that check. The client died before receiving any benefits from the
settlement.
{¶ 13} The panel found by clear and convincing evidence that Sigalov’s
misconduct in Count I violated Prof.Cond.R. 1.2(a), 1.4(a), and 1.5. The panel
noted that it would have also found a violation of Prof.Cond.R. 1.5(a) had Sigalov
been provided with notice in the complaint of that charge.
Count II
{¶ 14} The allegations in the second count arise from Sigalov’s
representation of a client who is a citizen of the Republic of Uzbekistan. The
client wanted to obtain legal status to remain in the United States after she
married an American citizen.
{¶ 15} Because the client’s notice of her change of address was not
received by proper immigration authorities, the client missed a mandatory status
hearing that had been set for December 7, 2006. In May 2007, the client was
arrested and detained, and an order of removal from the United States was issued
based on her failure to appear at the December hearing. The client’s husband
retained Sigalov on May 7, 2007, to obtain her release by filing a motion to
reopen.
{¶ 16} The motion to reopen was vital because it serves as an automatic
stay of the deportation order and ensures that the client was not kept in
confinement and deported. Sigalov accepted a $500 retainer fee and secured the
client’s release by advising the immigration authorities that he represented her.
{¶ 17} On May 9, 2007, Sigalov mailed a document purporting to be a
motion to reopen to the immigration court. The “motion,” however, was fatally
defective. Consisting of only three sentences, the motion failed to include certain
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essential elements, such as an affidavit from the client attesting that she had not
attended the hearing because she had not received notice. As the panel explained:
To call Sigalov’s Motion to Reopen “bare bones” is to give it too
much credit. The motion contained no meaningful statement of
facts, background, or procedural history. The motion contained no
legal analysis or research. It did not discuss the necessary legal
issues in order to obtain the reopening of the case. Further, the
Motion to Reopen did not contain any of the necessary affidavits
or exhibits to support it. Finally, Sigalov’s motion was
procedurally defective for several reasons, including no proof of
service on the adverse party.
{¶ 18} The immigration court refused to accept the motion because it did
not comply with local rules of the court. In fact, the immigration court cited
several rules that were not followed, including the rule requiring service of the
motion on the opposing party, the Department of Homeland Security (“DHS”).
{¶ 19} Sigalov testified before the panel in this case that he knew that the
motion to reopen had to include an explanation for his client’s failure to appear at
the status hearing, evidence such as affidavits, and a legal argument. He also
admitted that he was unsure whether he had ever reviewed his client’s
immigration file, which was available to him. Thus, the panel concluded that
Sigalov had either intentionally ignored the requirements for the motion or had
lied to the panel when he said he knew what the requirements were when he filed
the motion.
{¶ 20} In any event, upon the court’s refusal to accept the motion, Sigalov
did not act appropriately. Despite the need for a timely refiling, he neither
addressed the deficiencies in the motion nor informed the client that the motion
had been rejected. In fact, when questioned by the client several times about the
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motion between May and August 2007, Sigalov falsely informed the client that
the motion had been filed and was pending.
{¶ 21} The client grew increasingly concerned about Sigalov’s candor and
contacted another immigration attorney. That lawyer checked with the
immigration court, learned that no motion was pending, and informed the client of
that information. The client immediately contacted Sigalov, who only then
acknowledged that the motion had been rejected. But he falsely claimed that
another motion had been filed and thereafter misrepresented to the client that he
had checked on the motion at the court and that it was pending. The client
terminated Sigalov’s representation.
{¶ 22} Despite having been informed by his client that she was seeking
and retaining new counsel, Sigalov mailed a second motion to reopen to the
immigration court, which received it on September 6, 2007. The second motion
was almost identical to the rejected motion, including the failure to properly serve
counsel for DHS. The motion was again returned to Sigalov without being filed
by the court.
{¶ 23} About ten days later, the client retained new counsel. New counsel
informed Sigalov in writing that she had been retained and requested a copy of the
complete case file. Sigalov complied with new counsel’s request on September
19, 2007, but nevertheless, a week later, he mailed a third motion to reopen to the
immigration court. Neither the client nor her new attorney was aware of the
filing.
{¶ 24} Unfortunately for the client, even though this motion was as
deficient as the two prior motions to reopen, the court accepted it for filing. In
less than two weeks, the immigration court ruled on the motion. The
memorandum order summarily stated: “Since [the client’s] motion to reopen
contains no evidentiary support beyond her attorney’s assertions, the Court is
precluded from addressing its merits.” Accordingly, the immigration court denied
the client’s motion to reopen.
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{¶ 25} The Code of Federal Regulations states that a party may file only
one motion to reopen. 8 C.F.R. 1003.23(b)(1). Thus, when the client’s new
attorney attempted to file a proper motion to reopen, it was denied. Within days,
the client was detained by immigration officials. Only through the extraordinary
efforts of new counsel was this matter favorably resolved with the release of the
client from detention.
{¶ 26} The panel found by clear and convincing evidence that Sigalov had
violated Prof.Cond.R. 1.1, 1.3, 1.16(a)(3), and 8.4(c).
Count III
{¶ 27} Count III of the complaint requires a more complicated analysis
than the other counts.
{¶ 28} The panel found that Sigalov had violated Prof.Cond.R. 8.4(c) in
two ways: by telling relator and the panel that he had notified the client of the new
hearing when he had not and by telling the client that he had not received notice
of the hearing when in fact he had. Sigalov argues that these findings are fatally
tainted by the panel’s improper granting of relator’s motion to recall him as a
witness after relator had rested its case, which he contends violated his procedural
due process rights. We need not reach the constitutional issue, however, insofar
as it relates to his misconduct toward his client, because even without the
evidence obtained on recall, the record contains clear and convincing evidence of
Sigalov’s dishonesty with his client, which is more than sufficient to support the
panel’s finding on this count. As we shall see, however, the matter is more
complicated as it relates to Sigalov’s misconduct toward the panel.
Sigalov’s Misconduct with the Client
{¶ 29} The third count arises from an immigration matter in which
Sigalov was retained by a client in August 2006. The client, who spoke little
English and communicated with Sigalov in Russian, sought assistance with his
asylum claims in the immigration court in Arlington, Virginia. On August 18,
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2006, Sigalov filed a notice of appearance with the immigration court, and from
that point onward, the court notified only Sigalov of the client’s hearings.
{¶ 30} On March 27, 2007, Sigalov and the client appeared for a master
hearing at the immigration court in Cincinnati, which had video conferencing with
the immigration court in Virginia. Because the video equipment was not
functioning properly, however, the hearing did not take place on that date.
{¶ 31} A new hearing date was set for June 26, 2007, but notice of the
new date was sent to Sigalov only. Although Sigalov testified that his practice
was to notify clients of all court dates by letter, the client in this case never
received a letter from Sigalov with the June 26 date. And although Sigalov
produced a copy of a letter, dated June 12, 2007, that he claims was sent to the
client, relator contends that the letter is a fabrication.
{¶ 32} When Sigalov was recalled as a witness, relator presented evidence
that the letterhead on Sigalov’s copy was in a style that had not been produced by
his printing company until August 13, 2007, two months after the date on the
letter. When Sigalov offered no evidence in response, relator concluded that the
letter was a fabrication designed to cover up Sigalov’s failure to notify the client
of the new hearing date.
{¶ 33} The client’s lack of notice of the hearing date is significant.
Because the client was not informed of the date, he did not appear. Instead,
Sigalov appeared at the hearing alone, did not seek a continuance, informed the
judge that the client was likely at home, and claimed that he had “no excuse” for
his client’s absence. Due to the client’s failure to appear, the immigration court
ordered that the client be detained and removed from the United States. The court
sent notice to Sigalov, stating that the decision was final unless a motion to
reopen was filed.
{¶ 34} The day after the hearing, the client learned that the hearing had
already taken place. When the client called Sigalov, Sigalov told him that he
would file an appeal. Sigalov’s promise to appeal was inappropriate because the
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notice from the court clearly stated that a motion to reopen was the proper
mechanism to avoid detention and deportation. In any event, no timely appeal or
motion to reopen was filed.
{¶ 35} It was not until eight months later that Sigalov filed what he
purported to be an appeal. The substance of the “appeal,” however, was two
sentences stating merely that the client “did not receive notice of the master
hearing[.] He did appear at all other scheduled hearings.” No evidence or legal
argument was included.
{¶ 36} Federal agents from Immigration and Customs Enforcement
(“ICE”) went to the client’s home in January 2008, demanding to see his
documents. The agents then escorted him to an immigration building in
Columbus, fingerprinted and photographed him, gave him an additional 30 days
to file a motion to reopen, and instructed him to return to the ICE office on March
3.
{¶ 37} The client immediately contacted Sigalov, who had him sign some
new papers, which the client believed were for an appeal. Sigalov promised to
appear at the immigration building in Columbus on March 3. When the client
returned to the ICE office on that date, Sigalov did not appear, no motion to
reopen had been filed, and the client was arrested immediately. The client spent
the next five and a half months in detention.
{¶ 38} After being incarcerated, the client retained another lawyer. That
attorney had to secure dismissal of the appeal, which had deprived the
immigration court of jurisdiction, so that a motion to reopen could be filed.
{¶ 39} The panel found by clear and convincing evidence that Sigalov had
violated Prof.Cond.R. 1.1, 1.2(a), 1.3, 1.4(a), and 8.4(c). The panel explained that
the finding of a violation of Prof.Cond.R. 8.4(c) was based on misconduct other
than the fabrication of the June 12 letter, which was not charged as misconduct in
the complaint. The panel did conclude, however, without finding a violation, that
the June 12 letter was a fabrication by Sigalov to conceal his failure to notify the
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client of the new hearing date and relied on that fact in considering aggravation.
The finding that Sigalov had violated Prof.Cond.R. 8.4(c) was based on the fact
that Sigalov had told the client that he had not received notice of the hearing date
when in fact he had and that he had told relator and the panel that he had notified
the client of the hearing when he had not.
Sigalov’s Misconduct with the Panel
and His Due Process Claim
{¶ 40} As noted above, the panel declined to find that Sigalov’s
fabrication of the letter violated Prof.Cond.R. 8.4(c) on the basis that the
complaint had not provided notice of such a violation. But in recommending a
sanction, the panel cited fabrication of evidence as a “significant” aggravating
factor that “greatly exacerbate[s]” Sigalov’s conduct. Sigalov contends that the
panel’s reliance on evidence of fabrication, which was introduced upon reopening
after relator had rested its case, denied him his due process rights. Relator
counters that it was proper to use that evidence to assess Sigalov’s credibility and
to determine the appropriate sanction.
{¶ 41} In considering Sigalov’s claims, we begin with the law.
{¶ 42} In any disbarment proceeding, an attorney accused of misconduct
is “entitled to procedural due process, which includes fair notice of the charge.”
In re Ruffalo, 390 U.S. 544, 550, 88 S. Ct. 1222, 20 L. Ed. 2d 117 (1968), citing In
re Oliver, 333 U.S. 257, 273, 68 S. Ct. 499, 92 L. Ed. 682 (1948). “The charge
must be known before the proceedings commence. They become a trap when,
after they are underway, the charges are amended on the basis of testimony of the
accused. He can then be given no opportunity to expunge the earlier statements
and start afresh.” Ruffalo at 551. The “absence of fair notice as to the reach of the
grievance procedure and the precise nature of the charges deprive[d] [the attorney
facing discipline] of procedural due process.” Id. at 552.
{¶ 43} Sigalov contends that the panel’s consideration of the letter
violated due process because the complaint gave no notice that the letter’s
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authenticity was at issue. We reject this broad proposition insofar as it is directed
toward the portion of Count III that arises from Sigalov’s misconduct with the
client, but we agree with Sigalov to the extent that it is aimed at the allegations
arising from Sigalov’s misconduct before the panel.
{¶ 44} Procedural due process requires only notice of the charges before
the proceedings commence and an opportunity to be heard. It does not require
that an attorney charged with misconduct be given notice, prior to presenting false
evidence, that if he does present such false evidence, additional evidence will be
submitted to the panel to impeach him.
{¶ 45} Moreover, Sigalov was clearly on notice that his failure to inform
the client of the rescheduled hearing date was at issue in this case from the
allegations set forth in the original complaint, which he received in October
2008—more than a year prior to the first hearing in this matter.2 Sigalov is also
specifically charged with violating Prof.Cond.R. 1.4(a) by failing to inform the
client of his June 26, 2007 hearing date. There is no question that Sigalov was on
notice that the failure to inform the client was at issue in this case, and no
procedural due process right is violated by the panel’s pursuit of that claim.
{¶ 46} Sigalov also contends that the panel violated his due process rights
by finding a violation of Prof.Cond.R. 8.4(c) based on his dishonest statement to
the panel and relator. Here, Sigalov’s contention has merit. Additional charges of
misconduct for violating Prof.Cond.R. 8.4(c) cannot be premised on an attorney’s
misleading disciplinary authorities during the investigation or proceedings unless
the complaint makes such an allegation. Disciplinary Counsel v. Simecek, 83
Ohio St. 3d 320, 322, 699 N.E.2d 933 (1998), quoting In re Ruffalo, 390 U.S. at
551, 88 S. Ct. 1222, 20 L. Ed. 2d 117 (disciplinary charges “ ‘must be known
before the proceedings commence’ ”).
2. Paragraph 34 of the original complaint states, “Sigalov did not mail a copy of the notice to [the
client], but did send him a letter notifying him of the hearing date two weeks before the hearing.
[The client] did not receive the letter.”
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{¶ 47} The complaint did not charge Sigalov with dishonest statements to
the panel. Thus, as Sigalov asserts, under Ruffalo and Simecek, the requisite
notice was lacking, and relator cannot bring a new Prof.Cond.R. 8.4(c) charge of
dishonesty.
{¶ 48} But relator asserts that the evidence of dishonesty represented by
the fabricated letter can still be considered for impeachment purposes, in
assessing Sigalov’s credibility, and as a factor in aggravation for purposes of any
sanction imposed. Because even without the evidence of fabrication, the record
amply supports by clear and convincing evidence the panel’s finding that Sigalov
violated Prof.Cond.R. 8.4(c), we need not address the constitutionality of the
panel’s distinction between bringing a new charge against Sigalov and using
Sigalov’s attempts to conceal his misconduct to impeach his credibility. This is
consistent with our mandate that “[c]ourts decide constitutional issues only when
absolutely necessary.” State ex rel. Essig v. Blackwell, 103 Ohio St. 3d 481, 2004-
Ohio-5586, 817 N.E.2d 5, at ¶ 34, quoting State ex rel. DeBrosse v. Cool, 87 Ohio
St.3d 1, 7, 716 N.E.2d 1114 (1999). And because Sigalov’s fabrication of
evidence does not enter into our Prof.Cond.R. 8.4(c) violation analysis, his
constitutional due process claim does not affect our ruling. Instead, our decision
on the third count is premised on Sigalov’s misconduct relating to his client.3
{¶ 49} Sigalov undoubtedly violated his obligations to his client not only
by failing to inform him of an important court date, but also by explicitly, and
repeatedly, lying to him. We find that the record supports the panel’s finding by
3. During the disciplinary hearing, the panel found by clear and convincing evidence that Sigalov
had continually lied to the client by telling him that he had not received notice of a rescheduled
hearing date, when in fact he had. When asked if his client had ever explained to Sigalov why he
did not show up for the hearing, Sigalov admitted that the client “obviously didn’t know about the
hearing.” Furthermore, Sigalov conceded that the client called him “at least once every two
weeks” to find out if a new hearing date had been scheduled. Sigalov admits that the client had
called “quite a few times” after he had received notice that the master hearing had been scheduled
on June 26. Despite his knowledge of the June 26 hearing date, all the client heard from Sigalov
was that “nothing is known yet.”
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clear and convincing evidence that Sigalov violated Prof.Cond.R. 8.4(c) with
respect to Sigalov’s dishonesty towards his client.
Count IV
{¶ 50} The fourth count of the complaint arises from Sigalov’s
representation of a client who had been injured in a motor-vehicle accident.
Relator alleged that although the representation was on a contingency-fee basis,
Sigalov did not provide the required written agreement to that effect. Sigalov
further failed to truthfully update the client about the status of the case, neglected
her case, and made a settlement demand without her permission. Sigalov was
unable to produce a copy of the contingency-fee agreement, but the client did not
testify before the panel. The panel concluded that the relator had failed to
demonstrate by clear and convincing evidence that Sigalov engaged in the
misconduct alleged in the fourth count and recommended that it be dismissed.
We accept that finding and do not consider the allegations set forth in Count IV in
fashioning our sanction.
Count V
{¶ 51} The fifth count alleges that Sigalov committed misconduct in his
representation of clients who had been injured when a taxi struck their motor
vehicle. At the time of the accident, the vehicle carried a grandmother, her two
adult daughters, and her grandchild.
{¶ 52} The grandmother and one of her daughters retained Sigalov in late
2002 on a contingency-fee basis. Sigalov could not produce a copy of the
agreement.
{¶ 53} After two years of minimal activity on the case, Sigalov sent a
demand letter to the taxi’s insurer on September 27, 2004. At that time, the
statute of limitations was about to expire. Approximately two weeks later, the
insurer offered $20,300 to settle the grandmother’s claim and $7,000 to settle her
daughter’s claim. Without discussing the matter with his clients, Sigalov entered
into settlement discussions, and the insurer then raised the settlement amounts to
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$33,000 and $10,000, respectively. Although the record is not perfectly clear, it
appears that the proposed settlement agreements were drafted without the clients’
knowledge and approved without their permission. In any event, the settlement
agreements and checks were sent to Sigalov. When Sigalov called the
grandmother, she unequivocally rejected the settlement and subsequently
informed him, in writing, of her refusal to settle for anything less than six figures.
{¶ 54} Sigalov sued the insurer shortly before the limitations period was
to expire. But he informed the clerk of court that the claims had been settled and
instructed the clerk not to serve the complaint because he did not want to disturb
the alleged “settlement.” Sigalov continued to block any effort to serve the
complaint.
{¶ 55} In 2005, Sigalov dismissed the grandmother’s suit without her
knowledge or permission. He continued for some time to discuss the matter with
the client without telling her that her claims had been extinguished. On June 16,
2008, Sigalov finally informed the client, via letter, that he had missed the statute
of limitations and that she should proceed against his malpractice insurer.
{¶ 56} The panel found by clear and convincing evidence that Sigalov had
violated DR 1-102(A)(4), 6-101(A)(3), 7-101(A)(1), 7-101(A)(2), and 7-
101(A)(3), and Prof.Cond.R. 1.2(a), 1.3, 1.4(a), 1.16(a)(3), and 8.4(c). But the
panel did not find clear and convincing evidence that Sigalov had violated DR 2-
106(A) (prohibiting a lawyer from charging or collecting an illegal or clearly
excessive fee) or Prof.Cond.R. 1.5(c)(1) (requiring a lawyer to put a contingency-
fee agreement in writing) or 1.5(c)(2). The board adopted the panel’s findings.
{¶ 57} We agree that there is clear and convincing evidence of the
misconduct found by the panel and the board, and we adopt their findings.
Count VI
{¶ 58} The sixth count arises from Sigalov’s representation of a client
who had fled the Republic of Georgia to seek asylum in the United States.
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{¶ 59} The client testified that acting in his official capacity in his native
Georgia, he had stopped a robbery in progress. Several of the perpetrators were
former KGB agents, who threatened the client and his family with retaliation if
the client called the police and testified against them. The client nevertheless
testified. After he did so, his son was kidnapped and beaten and tortured for three
days before being released. The client and his family subsequently fled Georgia.
{¶ 60} After arriving in this country in September 2002, the client sought
asylum. Initially, he represented himself.
{¶ 61} Sigalov agreed to represent the client in November 2006. From the
outset, Sigalov’s performance was problematic.
{¶ 62} The client testified that he had paid Sigalov $1,400 as a retainer.
Sigalov contended that the client paid him $1,100, out of which Sigalov paid a
$110 filing fee for the appeal. But Sigalov acknowledged that he could not be
certain of the amounts, because he had no receipts or other documentation.
{¶ 63} At some point, the immigration authorities issued an order of
removal for the client and his family. After Sigalov assumed representation of the
client, the immigration court set the case for an evidentiary hearing in September
2007. Despite the fact that Sigalov had approximately ten months to prepare for
the hearing, he failed to do so.
{¶ 64} Sigalov raised three defenses to the order of removal: asylum,
withholding of removal, and the United Nations Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment. But he did not
perform legal research to prepare for the hearing, did not explain to the client
what documentation would be needed to prevail on his claim, and did not discuss
any theories with the client. In fact, Sigalov met with the client only twice—
including a meeting on the morning of the hearing. On that day, the client
presented Sigalov with documents supporting his claims, but the documents were
written in Georgian and could not be translated in time for the hearing. The only
evidence Sigalov presented at the evidentiary hearing was the client’s
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uncorroborated testimony. Not surprisingly, the immigration court deemed that
testimony insufficient and denied the application for asylum and for withholding
of the removal order.
{¶ 65} In affirming the immigration court’s ruling, the Board of
Immigration Appeals reached a similar conclusion, noting in its opinion that little
had been done to challenge the immigration court’s decision and that the case for
asylum had not been proved. The panel hearing this case reached the same
conclusion, that is, that “Sigalov did little besides collecting a retainer, showing
up for the hearing, and winging it.” Indeed, Sigalov’s appellate brief was a mere
three paragraphs, repeating a few facts and describing the client’s fears, with no
legal analysis whatsoever. When asked about the sufficiency of Sigalov’s appeal,
the relator’s immigration expert responded:
I’m not sure I would dignify calling that a brief. It cites no
law. It doesn’t go into a discussion of the facts. It doesn’t try to
link a nexus between one of the enumerated grounds. I’m not sure,
looking at it again, I don’t think it even has any discussion as to the
one-year requirement. And certainly it doesn’t differentiate
between the various forms of relief of asylum, withholding or [the]
Convention Against Torture.
The expert appropriately summarized Sigalov’s representation: “It is not diligent
for the same reasons I have said. Certainly, the submission of exhibits and
documents for the case were sparse and then the appeal brief was perfunctory
almost to the point of insult.”
{¶ 66} Sigalov’s breathtakingly poor representation was fatal to his
client’s claims. As relator’s expert explained:
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A brief on an asylum case like [this one] would have, of
course, just the summary of the procedural posture, how it got
there; a statement of the issues, which basically in that case were
the one-year filing deadline and then the qualification of the relief;
legal argument as to why, in fact, the immigration judge erred in
not giving enough weight to the credible testimony and holding
that person had a well-founded fear of persecution and that is why
citing Cardoza-Fonseca [Immigration & Naturalization Serv. v.
Cardoza-Fonseca, 480 U.S. 421, 107 S. Ct. 1207, 94 L. Ed. 2d 434
(1987)] and the 10 percent rule would be hammered inasmuch as
possible.
Then, of course, you know, at the conclusion trying to
convince the board—or certainly the staff attorneys who read it
first at the board that you have got something there worthy to look
at.
{¶ 67} The panel found by clear and convincing evidence that Sigalov had
violated Prof.Cond.R. 1.1, 1.3, and 1.5(a). We agree and adopt the panel’s
finding.
Count VII
{¶ 68} The last count arises from Sigalov’s representation of a client who
had been injured in a motor-vehicle accident on November 30, 2007. The client
retained Sigalov on a contingency-fee basis in early December 2007. Nearly a
year later, without discussing it with the client, Sigalov wrote the other driver’s
insurer, asserting that liability was clear and should not be contested. Although
the client was in dire financial need and had told Sigalov that she had lost wages
as a result of the accident, Sigalov did not seek recovery for lost wages and sought
only $6,135.75 in damages for medical bills associated with treatment for injuries
sustained from the accident. When Sigalov informed the client that the insurer
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had offered $5,800 to settle all claims, the client stated that the offer was too low.
When Sigalov informed her that the offer was all she could get, the client
accepted a $4,000 check from Sigalov.
{¶ 69} The check was written on Sigalov’s IOLTA account, as were two
others—one to Sigalov himself and the other to one of the client’s medical
providers. The three checks totaled $5,800—the full amount of the settlement—
but Sigalov had not yet received any settlement proceeds from the insurance
carrier when he issued the checks. Sigalov testified that he keeps personal funds
in his IOLTA account to cover checks he writes before he actually receives
settlement proceeds.
{¶ 70} When Sigalov gave the client her settlement check, he also
presented her with a number of other papers that were stapled together. The client
did not focus on those papers at the time, but later realized that the papers may
have included a schedule of expenses and deductions. The schedule accurately
indicated that the client, one medical provider, and Sigalov had been paid from a
gross settlement amount of $5,800. Although the schedule also included a
signature that was purported to be hers, the client testified that it was a forgery.
She also testified that her signature had been forged on a power of attorney that
was used by Sigalov to settle the case and that her signature was forged on a
document stating that she would be responsible for the outstanding medical bills.
{¶ 71} In addition, the client testified that Sigalov had lied to her when he
stated that a mediation had been canceled due to a death in the mediator’s family.
That statement was not true, as Sigalov admitted.
{¶ 72} The panel did not find clear and convincing evidence that Sigalov
had violated Prof.Cond.R. 8.4(c) by lying about the cancellation of the mediation.
Nor did it find by clear and convincing evidence that he had violated
Prof.Cond.R. 1.15(a) by improperly disbursing funds from the IOLTA to the
client. But it did find by clear and convincing evidence that Sigalov had violated
Prof.Cond.R. 1.15(b) by depositing his own funds into a client trust account. The
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January Term, 2012
panel stated that it would have found a violation of Prof.Cond.R. 8.4(c) for
forging the client’s signature if the complaint had provided notice of any such
charge.
{¶ 73} We now turn to the legal ramifications of Sigalov’s misconduct.
Mitigation
{¶ 74} In considering any sanction, we consider the aggravating and
mitigating factors listed in BCGD Proc.Reg. 10(B). The panel found a single
factor in favor of mitigation: pursuant to BCGD Proc.Reg. 10(B)(2), Sigalov has
no prior disciplinary record. The board adopted that finding, as do we.
{¶ 75} The panel rejected Sigalov’s suggestions of additional mitigating
factors. First, Sigalov contends that he made a full and voluntary disclosure to the
panel and board and had a cooperative attitude toward the proceedings. But as the
panel recognized, despite Sigalov’s superficially cooperative attitude, he gave
false testimony and submitted false evidence in these proceedings. That
misconduct cannot be depicted as full and free disclosure or as cooperative with
the process. To the contrary, the misconduct impeded, rather than assisted, the
panel in reaching a full and fair understanding of the incidents and representation
at issue here. Sigalov’s actions in providing false testimony and evidence are
plainly aggravating rather than mitigating. His assertions to the contrary border
on the preposterous.
{¶ 76} Next, Sigalov asserts that he has suffered the imposition of other
penalties or sanctions outside the disciplinary process because he was sued for
malpractice by one of the clients at issue in this case. The panel found that the
cases cited by Sigalov in an effort to support his contention, Disciplinary Counsel
v. Gittinger, 125 Ohio St. 3d 467, 2010-Ohio-1830, 929 N.E.2d 410, and
Cleveland Metro. Bar Assn. v. Nance, 124 Ohio St. 3d 57, 2009-Ohio-5957, 918
N.E.2d 1000, were not apposite. The board adopted that conclusion, and we
agree.
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{¶ 77} In Gittinger, there were multiple mitigating factors, including
evidence of good character, full cooperation in the disciplinary process, lack of
personal gain, and a one-time violation rather than a pattern of misconduct. Id. at
¶ 41, 47. In Nance, mitigating factors included the imposition of other penalties
or sanctions and the lack of prejudice to the respondent’s clients. Id. at ¶ 13.
Here, Sigalov’s clients were all seriously harmed by his misconduct, and his
misconduct continued over the course of many years. Furthermore, Sigalov
profited through his misconduct by accepting his clients’ fees and doing little to
no work on their cases.
{¶ 78} Moreover, although his clients may obtain restitution through a
malpractice action, the public is still left unprotected. We reject the notion that a
malpractice claim is a punishment or sanction that somehow operates to mitigate
Sigalov’s misconduct.
{¶ 79} Finally, Sigalov states that he intends to cease practicing
immigration law. This professed moratorium is specious. It is proffered only in
the wake of what is at best grossly negligent conduct. We do not believe that the
public will be protected by Sigalov’s promise to stop practicing immigration law.
And the pledge to give up his immigration practice does nothing to address
Sigalov’s repeated misconduct in personal-injury cases, which comprise an even
more substantial portion of his practice.
Aggravation
{¶ 80} Pursuant to BCGD Proc.Reg. 10(B)(1), the panel found six
aggravating factors: (1) a dishonest or selfish motive, (2) a pattern of misconduct,
(3) multiple offenses, (4) the submission of false evidence, false statements, or
other deceptive practices during the disciplinary process, (5) a refusal to
acknowledge the wrongful nature of the misconduct, and (6) the vulnerability of
and resulting harm to victims of the misconduct. The board adopted these
findings, and we agree.
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January Term, 2012
{¶ 81} Much of Sigalov’s misconduct resulted from accepting clients’
fees and then doing little or nothing to earn the fee. Sigalov filed inadequate
briefs, pursued incorrect legal action, and routinely neglected cases. He
repeatedly lied to clients about the progress or status of their cases and conducted
settlement discussions on their cases without their knowledge or consent.
{¶ 82} Furthermore, Sigalov committed multiple offenses over a long
period of time, from a personal-injury case in 2002 to an immigration case in
2007. During that time, he violated multiple rules of professional conduct with a
variety of different clients. One of Sigalov’s clients died before ever seeing the
proceeds that resulted from his case. Almost all of Sigalov’s clients eventually
sought new counsel to help them recover from the array of additional legal
problems they faced due to his significant misconduct.
{¶ 83} During the proceedings before the panel, Sigalov showed no
remorse for his misconduct, maintaining even now that the complaint should be
dismissed with prejudice. Furthermore, Sigalov submitted false evidence to the
panel in an effort to remove the blame from himself and place it on his clients.
{¶ 84} We are also mindful that many of Sigalov’s clients were unusually
vulnerable. Our sister courts have recognized that immigration clients often have
a heightened susceptibility to attorney misconduct due to language barriers and
unfamiliarity with the legal system. See, e.g., People v. Beasley, 241 P.3d 548,
553 (Colo.2010). As further explained by the Tennessee high court in Flowers v.
Bd. of Professional Responsibility, 314 S.W.3d 882, 899 (Tenn.2010), clients in
immigration proceedings often face a variety of special difficulties due not only to
language problems, but also to limited financial means, lengthy work hours, lack
of transportation, and ignorance of the larger culture. “The importance of quality
representation is especially acute to immigrants, a vulnerable population who
come to this country searching for a better life, and who often arrive unfamiliar
with our language and culture, in economic deprivation and in fear.” Aris v.
Mukasey, 517 F.3d 595, 600 (2d Cir.2008).
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{¶ 85} Russian-speaking immigrants sought out Sigalov because he
speaks Russian. Instead of helping them, he took their money and did nothing,
leaving them to deal with the consequences, including arrest and detention.
{¶ 86} Here, Sigalov selfishly took advantage of immigrant clients who
were particularly susceptible to victimization. He repeatedly assured his clients
that he was filing motions on their behalf or otherwise working on their cases
when in fact he was doing nothing. Because Sigalov’s clients were immigrants,
two of whom barely spoke English, their understanding of the legal process was
minimal, and they were forced to rely entirely on Sigalov’s false representations
that he was doing what was necessary for their cases. One of Sigalov’s clients
was almost deported, and another was unnecessarily incarcerated for five and a
half months.
{¶ 87} Sigalov’s other clients were often vulnerable as well. Sigalov
admitted that many of his clients are people of limited financial means. In Count
VII, the client was about to lose her house and desperately needed money.
Sigalov pressured her into settling for an amount that she did not approve and that
did not include compensation for wages lost. Another client died before receiving
one penny of a settlement to which he was lawfully entitled.
{¶ 88} The evidence of mitigation in this case consists only of Sigalov’s
lack of a prior disciplinary record. Given the severity of the multiple offenses at
issue in this case, see BCGD Proc.Reg. 10(B)(1)(d), that mitigation is minimal at
best.
{¶ 89} Conversely, the weight of aggravation is substantial. Not only did
Sigalov act with a dishonest or selfish motive, BCGD Proc.Reg. 10(B)(1)(b), but
he also presented false evidence and false testimony to the panel. BCGD
Proc.Reg. 10(B)(1)(f).
{¶ 90} The egregiousness of Sigalov’s misconduct is plain. But even after
the extent of his derelictions was brought to light, he continued to insist that he
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January Term, 2012
has done little wrong, going so far as to request that the complaint be dismissed
with prejudice.
{¶ 91} Like the panel and board, we are troubled by Sigalov’s failure to
appreciate the gravity of his misconduct. His refusal to acknowledge the harm he
caused his clients is appalling. When an attorney engages in multiple wanton acts
of misconduct for years, lies to multiple clients about their cases, falsifies
documents in a cover-up effort during the disciplinary proceeding, and then
denies the wrongful nature of his misconduct, the aggravating factors greatly
outweigh those in mitigation.
Sanction
{¶ 92} When imposing sanctions for attorney misconduct, we consider
relevant factors, including the ethical duties that the lawyer violated and the
sanctions imposed in similar cases. Stark Cty. Bar Assn. v. Buttacavoli, 96 Ohio
St.3d 424, 2002-Ohio-4743, 775 N.E.2d 818, ¶ 16. In making a final
determination, we also weigh evidence of the aggravating and mitigating factors
listed in BCGD Proc.Reg. 10(B). Disciplinary Counsel v. Broeren, 115 Ohio
St.3d 473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21. Because each disciplinary
case is unique, we are not limited to the factors specified in the rule but may take
into account “all relevant factors” in determining what sanction to impose.
BCGD Proc.Reg. 10(B); Ohio State Bar Assn. v. Peskin, 125 Ohio St. 3d 244,
2010-Ohio-1811, 927 N.E.2d 598, ¶ 11.
{¶ 93} The primary purpose of the disciplinary process in Ohio is to
“protect clients and the public, to ensure the administration of justice, and to
maintain the integrity of the legal profession.” Disciplinary Counsel v. Hunter,
106 Ohio St. 3d 418, 2005-Ohio-5411, 835 N.E.2d 707, ¶ 32. Our goal in
imposing disciplinary sanctions is not to punish the offender but to protect the
public. Disciplinary Counsel v. O’Neill, 103 Ohio St. 3d 204, 2004-Ohio-4704,
815 N.E.2d 286, ¶ 53. Our disciplinary action in this case bears that purpose in
mind.
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{¶ 94} The scope and magnitude of Sigalov’s misconduct, encompassing
fraud, gross neglect, duplicity, incompetence, and the fleecing of clients, are truly
egregious. We have little trouble concluding that nothing less than Sigalov’s
disbarment will protect the public and maintain the integrity of the profession.
{¶ 95} Accordingly, Sigalov is hereby permanently disbarred from the
practice of law in Ohio. Costs are taxed to Sigalov.
Judgment accordingly.
O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
__________________
Gerhardstein & Branch Co., L.P.A., and Jennifer L. Branch; and Graydon,
Head & Ritchey, L.L.P., and John B. Pinney, for relator.
Dinsmore & Shohl, L.L.P., Mark A. Vander Laan, and Mark G. Arnzen
Jr., for respondent.
______________________
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