In re Zamora ( 2024 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 22-BG-0943
IN RE PABLO A. ZAMORA, RESPONDENT.
A Suspended Member of the Bar of
the District of Columbia Court of Appeals
(Bar Registration No. 998467)
On Report and Recommendation
of the Board on Professional Responsibility
(Disciplinary Docket No. 2017-D142)
(Board Docket No. 21-BD-003)
(Submitted November 16, 2023 Decided March 7, 2024)
Robert C. Bonsib, for respondent. 1
Hamilton P. Fox, III, Disciplinary Counsel, with whom Julia L. Porter,
Deputy Disciplinary Counsel, Theodore (Jack) Meltzer, Senior Assistant
Disciplinary Counsel, and Caroll Donayre, Assistant Disciplinary Counsel, were on
the brief, for the Office of Disciplinary Counsel.
Before BECKWITH, DEAHL, and SHANKER,* Associate Judges.
1
Mr. Bonsib filed a motion to withdraw as counsel less than a month before
the scheduled oral argument. The court granted Mr. Bonsib’s motion to withdraw
and ordered that the case be submitted on the record and briefs filed by counsel
without oral argument.
2
BECKWITH, Associate Judge: A hearing committee determined that
Respondent Pablo Zamora violated a number of the Rules of Professional Conduct,
including Rule 1.15(a), misappropriation of client funds, and Rule 1.15(e), failure to
hold unearned advance fees in trust. A majority of the hearing committee concluded
Mr. Zamora had misappropriated client funds negligently rather than recklessly and
recommended a six-month suspension for the negligent misappropriation.2 On
review, the Board on Professional Responsibility agreed with the hearing
committee’s findings except for its conclusion that Mr. Zamora acted negligently.
The Board determined that he acted recklessly and recommended that he be
disbarred. Mr. Zamora urges us to adopt the hearing committee’s conclusions in
full. We agree with the hearing committee’s conclusion that Mr. Zamora acted
negligently and accordingly adopt the committee’s recommended sanction.
* Associate Judge AliKhan was originally assigned to this case. Following
Judge AliKhan’s appointment to the U.S. District Court for the District of Columbia,
effective December 12, 2023, Judge Shanker has been assigned to take her place on
the panel.
2
Mr. Zamora was also issued two additional one-month suspensions pursuant
to his violations of Rule 1.3(a), Lack of Diligence and Zeal, and Rule 1.16(d),
Terminating Representation, ordered to pay restitution in the amount of $750.00 plus
interest, and required to attend a continuing legal education program regarding flat-
fee billing practices.
3
I.
Rule 1.15(a) requires attorneys to hold client property in a separate trust
account; Rule 1.15(e) specifies that “[a]dvances of unearned fees and unincurred
costs” qualify as client property until they are earned, and must be kept in a separate
trust account pursuant to Rule 1.15(a) “unless the client gives informed consent to a
different arrangement.” Flat fees received at the outset of a representation are
considered unearned fees and are subject to the requirements of Rule 1.15(e). In re
Mance, 980 A.2d 1196, 1205 (D.C. 2009).
“Informed consent” as defined by the rules generally requires an attorney to
communicate “adequate information and explanation about the material risks of and
reasonably available alternatives to the proposed course of conduct.” Rule 1.0(e).
To obtain informed consent to a flat-fee arrangement, attorneys must make five
specific disclosures:
(1) ‘the attorney will treat the advance fee as the attorney’s
property upon receipt’; (2) ‘the attorney can keep the fee
only by providing a benefit or providing a service for
which the client has contracted’; (3) ‘the fee agreement
must spell out the terms of the benefit to be conferred upon
the client’; (4) ‘the client must be aware of the attorney’s
obligation to refund any amount of advance funds to the
extent that they are unreasonable or unearned if the
representation is terminated by the client’; and (5) ‘unless
there is agreement otherwise, the attorney must . . . hold
the flat fee in escrow until it is earned by the lawyer’s
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provision of legal services.’
In re Ponds, 279 A.3d 357, 359 (D.C. 2022) (quoting In re Mance, 980 A.2d at 1206-
07).
II.
Mr. Zamora was hired to represent an undocumented man, Jose Ascensio, in
removal proceedings. 3 Mr. Zamora determined that the best way for Mr. Ascensio
to avoid deportation would be to apply for a U-Visa. But partway through his
representation of Mr. Ascensio, Mr. Zamora filed a motion to withdraw as counsel.
He testified that he was frustrated by Mr. Ascensio’s wife, Teka Stiles, using other
attorneys’ advice to second guess his own and concerned by his client’s request that
he continue an upcoming bond hearing in hopes of appearing before a more
favorable judge. Mr. Ascensio and Ms. Stiles agreed to the withdrawal and Ms.
Stiles asked for a detailed bill to account for the flat fees. Mr. Zamora provided her
with a bill, which Ms. Stiles did not initially challenge. She later sought a refund for
both matters and filed for fee arbitration in D.C., but was told that she had not
exhausted all avenues of relief. Ms. Stiles then filed the underlying bar complaint
3
The hearing committee explained its decision to “refer to Mr. Ascensio
Torres as ‘Mr. Ascensio’ and [his wife] Teka Stiles-Ascensio as ‘Ms. Stiles’” as
consistent with how they were referred to during the hearing. We adopt the same
approach.
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against Mr. Zamora.
Because Mr. Zamora contests only the Board’s determination of reckless
misappropriation, we recite only the facts relevant to that determination. Prior to
beginning any work on Mr. Ascensio’s case, Mr. Zamora provided Mr. Ascensio’s
wife, Ms. Stiles, with two fee agreements, one for the U-Visa matter and one for the
removal proceeding. The fee agreements differed in describing the work to be
completed and the fee amount, but both contained a waiver provision stating, “I
hereby WAIVE the requirement that the flat fee, given to Pablo A. Zamora, Esq. for
work to be performed on my behalf, is to be held in trust.” The waiver provision
erroneously referred to “Rule 1.15(d)” as support for this provision because Rule
1.15(d) stated the rule regarding unearned fees until a rule change 2010, when it was
renumbered as Rule 1.15(e). See Order, No. M-235-09 (D.C. Mar. 22, 2010). Each
agreement also clarified the specific benefits to be conferred upon the client pursuant
to the flat-fee agreement, and Mr. Zamora’s obligation to refund any unearned
portion of the flat fee should the client terminate the attorney-client relationship.
Ms. Stiles signed and initialed all the provisions of both fee agreements, including
the waiver provision.
Mr. Zamora testified that he discussed each page of the retainer agreement
6
with prospective clients and explained the flat-fee provision. He specifically told
Ms. Stiles the flat-fee provision “meant that [the fees] would not be placed into a
trust account. And [he] further advised her . . . of her right to an accounting of the
money or return of any unused funds.” Mr. Zamora testified that he did not think
Rule 1.15(e) required him to notify clients of the risks of not using a trust account.
In his view, there were not any material risks that necessitated such an explanation
because he would have refunded any unearned fees. He said he believed that, to
obtain informed consent, he was required to inform clients “in writing” that the flat
fee would not be placed into a trust account and to have them “initial” “if they
agree[d]” to that arrangement. He testified that he could not recall In re Mance,
which sets out the specific requirements for informed consent in the flat-fee context.
Ms. Stiles testified that Mr. Zamora “skimmed through” the agreements without
discussing any of the risks or consequences of not using a trust account for client
fees. The hearing committee deemed both Mr. Zamora and Ms. Stiles not entirely
credible, and concluded that Mr. Zamora did not go through the fee agreements with
Ms. Stiles as thoroughly as he testified to, but that he did review them “somewhat.”
Having made this finding, the hearing committee determined that Mr. Zamora
failed to obtain informed consent from Ms. Stiles, pointing to Mr. Zamora’s own
testimony that he did not explain the material risks of the proposed course of conduct
7
because he did not believe any existed. In that regard, it was the view of the majority
of the hearing committee that Mr. Zamora mistakenly believed that his actions—
putting the waiver language in his agreements, reviewing the agreements with clients
to some degree, and having clients initial and sign each provision of the fee
agreement—were sufficient to obtain informed consent under Rule 1.15(e). The
majority concluded that Mr. Zamora was negligent because he had a “good-faith but
incorrect” understanding of Rule 1.15(e)’s requirements, rather than a “conscious
indifference” to the obligation of informed consent. The dissenting member of the
hearing committee determined that Mr. Zamora acted recklessly because his
misunderstanding of the requirements of informed consent—a “long standing”
concept defined in the Rules of Professional Conduct—was not reasonable.
On review, the Board adopted the hearing committee’s findings of fact and
legal conclusions except for the conclusion that Mr. Zamora’s misappropriation was
negligent. The Board concluded that Mr. Zamora’s testimony and the waiver he
included in his fee agreements demonstrated that he was aware that he needed
informed consent and did not obtain it. Regardless of his awareness of the specific
disclosures required by In re Mance, it was not reasonable to be unaware of the
general requirements of informed consent or the risks posed to clients by not using
a trust account. Because “disbarment [is] . . . the only appropriate sanction” in cases
8
involving reckless misappropriation, the Board recommended that Mr. Zamora be
disbarred. See In re Addams, 579 A.2d 190, 191 (D.C. 1990) (en banc).
III.
Mr. Zamora contests only the Board’s conclusion that he acted recklessly and
its corresponding recommendation that he be disbarred. We accept the Board’s
factual findings if they are supported by substantial evidence in the record. D.C. Bar
R. XI, § 9(h)(1). But we review de novo “ultimate facts,” including whether
Disciplinary Counsel has carried its burden to prove by clear and convincing
evidence that an attorney’s conduct was reckless. See In re Haar, 270 A.3d 286,
294 (D.C. 2022) (quoting In re Micheel, 610 A.2d 231, 234 (D.C. 1992)). We must
adopt the Board’s recommended disposition unless doing so “would foster a
tendency toward inconsistent dispositions for comparable conduct or would
otherwise be unwarranted.” Id. at 299 (quoting D.C. Bar R. XI, § 9(h)(1)).
Reckless misappropriation is marked by the attorney’s “conscious
indifference to the consequences of [their] behavior for the security of the funds.”
In re Anderson, 778 A.2d 330, 339 (D.C. 2001). Conscious indifference may be
demonstrated by showing that an attorney made a “conscious choice of a course of
9
action” with either “knowledge of the danger to others” or “knowledge of facts that
would disclose this danger to any reasonable person.” In re Ponds, 279 A.3d at 362
(quoting In re Gray 224 A.3d 1222, 1232 (D.C. 2020)). Negligent misappropriation,
on the other hand, is marked by a “good-faith but inadequate effort to comply” with
Rule 1.15 or the requirements of In re Mance. Id. at 361. Our cases have emphasized
that an attorney’s good faith attempt to comply will not preclude a finding of
recklessness if the attorney’s errors or mistaken beliefs were objectively
unreasonable. See In re Gray, 224 A.3d at 1232; see also In re Ponds, 279 A.3d at
362.
Disciplinary counsel does not dispute that Mr. Zamora was honestly mistaken,
and argues only that Mr. Zamora’s mistaken understanding of informed consent was
not objectively reasonable. In assessing the contours of which mistakes are
objectively reasonable in the flat-fee context, we are guided by two cases: In re Haar
and In re Ponds.
In Haar, we concluded that Mr. Haar’s failure to comply with Rule 1.15 was
negligent because his ignorance of the rule’s application to flat fees as clarified by
Mance was reasonable. 270 A.3d at 298. In 2012, three years after the Mance
decision, Mr. Haar deposited a large flat fee from a client into an operating account
10
rather than a trust account. Id. at 292. While this client’s case was still pending,
Mr. Haar became aware of Mance, and brought his accounting practices into
compliance with that decision’s requirements, but only prospectively. Id. The
hearing committee found that Mr. Haar acted recklessly with regard to this pending
case because his ignorance as to Mance’s application to pending cases was not
reasonable. Id. at 293. But we found otherwise, in line with the Board: Mr. Haar’s
practice involved low fees and his clients’ cases resolved quickly, leaving him with
“little reason to consider Mance’s application to unearned flat fees.” Id. at 297. We
also noted that Rule 1.15(e)’s application to flat fees is not discernible from the text
of the rule—it would be impossible to glean without knowledge of Mance—and that
the rule “now imposes essentially the opposite restriction to that which it required
when Mr. Haar began his career.” Id. at 298. Ultimately, we concluded that “a
practitioner who operated according to Mr. Haar’s typical fee arrangements could
reasonably fail to perceive” the dangers inherent in holding unearned flat fees in a
personal bank account. Id.
In Ponds, on the other hand, we deemed reckless Mr. Ponds’s failure to
comply with the informed consent requirements of Mance. 279 A.3d at 361. Unlike
Mr. Haar, Mr. Ponds was aware of the Mance decision. Id. at 360. Yet both
Mr. Ponds’s fee agreement and conduct were “fundamentally incompatible” with
11
the requirements of Mance: “[r]ather than making clear that the unearned portion of
a flat fee must be returned, [his] fee agreement indicated precisely the opposite,” and
“[r]ather than complying with the requirement to return unearned advance fees,
Mr. Ponds refused, despite an arbitral award requiring him to comply.” Id. at 361.
Mr. Pond’s knowledge of the requirements of Mance, in conjunction with his
blatantly noncompliant fee agreement and conduct, rendered his claim of a
good-faith mistake “implausible.” Id. at 362. But we declined to “rest . . . on a
conclusion of subjective bad faith,” concluding for many of the same reasons that
Mr. Ponds’s course of action was sufficient to demonstrate “conscious indifference”
to the requirements of Rule 1.15(e) and Mance regardless of whether he was
attempting to comply in good faith. Id. at 362.
Disciplinary Counsel urges us to view Mr. Zamora’s conduct as in line with
that in Ponds rather than Haar. Disciplinary Counsel points out that Mr. Zamora
had reason to know of the risks posed to his clients. While he was not aware of the
specific requirements laid out in Mance, the waiver provision in his fee agreement
demonstrated that he at least knew he needed to obtain informed consent to his
proposed arrangement. According to Disciplinary Counsel, while it may have been
reasonable under the circumstances for Mr. Haar to be ignorant of Mance, it was not
reasonable for Mr. Zamora to be ignorant of the requirements of informed consent
12
generally, namely the obligation to explain the material risks of a proposed course
of conduct.
But Mr. Zamora was not entirely ignorant of the requirements of informed
consent. His failure to explain the material risks of not using a trust account
stemmed from his belief that his proposed course of conduct did not create material
risks because “if there had been a request [for a refund], we would’ve come to a
resolution . . . if fees were due . . . for any work that they disputed they would have
received a refund of those fees.” While this testimony reflects Mr. Zamora’s
disregard for other potential risks—namely that funds not held in a trust can be
“spent, lost or exposed to a lawyer’s creditors”—we do not view his overall
impression of the material risks of his proposed arrangement as unreasonable.
Mr. Zamora’s contention that he knew of his obligation to refund any
unearned fees, and would have done so, is supported by his fee agreement. While
Mr. Ponds’s fee agreement erroneously described the flat fee as nonrefundable, In
re Ponds, 279 A.3d at 359, Mr. Zamora’s fee agreement alerted clients of their right
to a refund of any unearned portion of the fee. And while Mr. Ponds refused to
comply with an arbitration board order directing him to refund his client’s entire fee,
id. at 360, Mr. Zamora never received a refund request from Ms. Stiles prior to the
13
initiation of disciplinary proceedings. It was not unreasonable for Mr. Zamora to
conclude that the additional dangers posed by creditors or his own spending
presented little risk to his clients based on his commitment to refunding them any
unearned fee.
And Mr. Zamora’s fee agreement satisfied many of the requirements laid out
in Mance, despite his lack of familiarity with that case. Of the five specific
disclosures required by Mance, Mr. Zamora’s fee agreement explicitly satisfied at
least two of them: his fee agreement spelled out the terms of the benefit to be
provided to his clients and informed them of the requirement that he refund unearned
fees. His fee agreement also conveyed two additional required disclosures in less
exact terms: (1) that the fee would be held in escrow until earned unless an
alternative agreement was reached, by requiring prospective clients to “WAIVE the
requirement that the flat fee . . . be held in trust”; and (2) that Mr. Zamora could keep
the fee only by providing the service for which the client contracted by noting that
if the attorney does not “fail[] to perform the services contemplated . . . the fixed fee
will be earned in full.” Mr. Zamora’s fee agreements were not “fundamentally
incompatible” with the requirements of informed consent, unlike Mr. Ponds’s. In re
Ponds, 279 A.3d at 361.
14
Ultimately, we conclude that Mr. Zamora’s efforts to obtain informed
consent—though obviously lacking—did not demonstrate “conscious indifference”
to the security of his clients’ funds or the purposes of informed consent. It was not
objectively unreasonable for him to believe that the disclosures in his fee agreement
were sufficient to obtain informed consent, particularly given his erroneous belief
that his willingness to refund unearned fees mitigated any potential risks to his
clients. Though this is a close case, Mr. Zamora’s ignorance of the specific
requirements of informed consent is more akin to Mr. Haar’s ignorance of Rule
1.15(e)’s application to flat fees than to Mr. Ponds’s plainly noncompliant fee
agreement. Mr. Ponds was familiar with Mance, and presumably knew that Mance
required him to refund all unearned fees, and yet his fee agreements stated the
opposite; Mr. Zamora knew that he needed to obtain informed consent to his flat-fee
arrangement under Rule 1.15(e), but made only some of the disclosures necessary to
obtain it. These distinctions reflect the line between “conscious indifference”—
recklessness—and negligence. We therefore agree with the hearing committee that
Mr. Zamora misappropriated funds negligently.
IV.
If we accept the Board’s conclusions, we must adopt the Board’s
recommended disposition unless doing so “would foster a tendency toward
15
inconsistent dispositions for comparable conduct or would otherwise be
unwarranted.” In re Haar, 270 A.3d at 299 (quoting In re Rodriguez-Quesada, 122
A.3d 913, 920 (D.C. 2015)). But here, because the Board based its recommended
punishment upon its finding of recklessness—a finding we reject—we look instead
to the hearing committee’s recommendation. “The purpose of imposing discipline
is to serve the public and professional interests identified and to deter future and
similar conduct rather than to punish the attorney.” In re Rodriguez-Quesada, 122
A.3d at 921 (quoting In re Kanu, 5 A.3d 1, 16 (D.C. 2010)). The hearing
committee’s reasoning adhered to these principles.
After noting that “a six-month suspension without a fitness requirement is the
norm for attorneys who have committed negligent misappropriation,” In re Edwards,
870 A.2d 90, 94 (D.C. 2005), the hearing committee examined the range of
punishments typically levied for violations of Rule 1.3(a) and Rule 1.16(d) and
determined that additional one-month sanctions for each of those violations would
be appropriate. Finally, the hearing committee determined that Mr. Zamora owed
Ms. Stiles and Mr. Ascensio $750 and added restitution in that amount to the baseline
punishment—establishing a baseline punishment of eight months suspension and
$750 restitution.
16
The hearing committee then carefully considered the requisite factors to
determine if a departure from this presumptive sanction was warranted. These
factors include: “(1) the seriousness of the conduct, (2) prejudice to the client,
(3) whether the conduct involved dishonesty, (4) violation of other disciplinary
rules, (5) the attorney’s disciplinary history, (6) whether the attorney has
acknowledged his or her wrongful conduct, and (7) mitigating circumstances.” In
re Martin, 67 A.3d 1032, 1053 (D.C. 2013). In considering these factors, the hearing
committee placed particular emphasis on Mr. Zamora’s lack of any prior disciplinary
history spanning his ten-year career as a federal immigration practitioner with high
case turnover, the generally underserved population his practice serves, and the
difficulties faced by solo practitioners who maintain high volume practices. The
hearing committee ultimately found the mitigating factors (lack of prior disciplinary
history, lack of dishonesty, and the additional mitigating circumstances noted above)
to carry equal weight to the aggravating circumstances (seriousness of misconduct
and prejudice to client), and left the recommended sanction largely unchanged,
merely adding the requirement that Mr. Zamora attend a continuing legal education
program regarding flat-fee billing practices.
Because we agree with the hearing committee’s careful analysis, we suspend
Mr. Zamora for eight months for negligent misappropriation and order him to pay
17
$750 plus interest in restitution and attend a continuing legal education program
regarding flat-fee billing practices.
So ordered.