Iowa Supreme Court Attorney Disciplinary Board v. Michael H. Said

IN THE SUPREME COURT OF IOWA
No. 20–0797
Submitted September 17, 2020—Filed January 8, 2021
IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,
Complainant,
vs.
MICHAEL H. SAID,
Respondent.
On review of the report of the Iowa Supreme Court Grievance
Commission.
The Iowa Supreme Court Attorney Disciplinary Board charged an
attorney with multiple violations of the Iowa Rules of Professional Conduct,
including violations related to competence, diligence, promptness, client
disclosures and communication, conflict of interest, and charging
unreasonable fees, the grievance commission recommended public
reprimand. LICENSE SUSPENDED.
Appel, J., delivered the opinion of the court, in which all
participating justices joined. McDermott, J., took no part in the
consideration or the decision of the case.
Tara van Brederode and Crystal W. Rink, Des Moines, for
complainant.
Leon Spies of Spies & Pavelich, Iowa City, for respondent.
2
APPEL, Justice.
The Iowa Supreme Court Attorney Disciplinary Board (Board) filed a
complaint against attorney Michael Said alleging twenty-six violations of
the Iowa Rules of Professional Conduct arising out of representation of
four clients in immigration matters. After a hearing, the Iowa Supreme
Court Grievance Commission (commission) found that Said violated a
number of disciplinary rules that require an attorney keep his client
adequately informed about the representation. The commission further
found that Said revealed client information without the client’s consent.
The commission held that the remainder of the charges were not supported
by a convincing preponderance of the evidence. As a result, the
commission recommended that we publicly reprimand Said.
Based on our de novo review of the record, we suspend the license
of Said for thirty days.
I. Factual and Procedural Background.
A. Introduction. Michael Said is an Iowa attorney admitted to the
bar in 1994. His practice focuses on immigration law. Said formed his
own law firm in 1999. He has engaged in pro bono representation over the
years, and in 2006, he received an award for pro bono work from the Polk
County Volunteer Lawyers Project.
Said has a disciplinary history. In 2015, we imposed a thirty-day
suspension on Said. Iowa Sup. Ct. Att’y Disciplinary Bd. v. Said, 869
N.W.2d 185, 195 (Iowa 2015). We concluded that Said violated our
disciplinary rules related to keeping his client reasonably informed by
failing to advise a client of the existence of a removal order and that the
time to appeal had passed because the attorney had missed a deadline.
Id. at 190–91; see also Iowa R. Prof’l Conduct 32:1.4(a)(3), (b). We also
found that Said made a false statement to a tribunal and violated rules
3
relating to fees and trust accounts. Said, 869 N.W.2d at 191–93 (finding
violations of Iowa Rules of Professional Conduct 32:3.3(a)(1), 32:1.15(c),
and 32:1.15(f)).
Said also received a public reprimand on June 25, 2015. The Board
found that Said withdrew a flat fee from his trust account before it had
been fully earned in violation of Iowa Rule of Professional Conduct
32:1.5(c). The Board also found language in a fee agreement utilized by
Said that provided for a flat fee if the matter was “uncontested” and
additional fees if it became contested was misleading in the context of
immigration and postconviction-relief cases. These cases, the Board
reasoned, are almost universally contested. The Board concluded that no
further discipline was required because Said had received a private
admonition and the fee agreement in question predated that prior
admonition.
In addition, Said has received five private admonitions over the years
from the Board. He was admonished on September 18, 2003, for failure
to provide his clients with itemized billings; on June 22, 2007, for engaging
in dual representation of a husband and wife in an immigration matter
after conflicts of interest arose; on January 10, 2011, for advising and
assisting immigration clients in filing frivolous waiver applications; on
June 29, 2011, for lack of diligence in protecting a client’s interest where
Said failed to inform a client that the client’s physical presence was
necessary at a telephonic hearing and for conduct prejudicial to the
administration of justice; and on December 23, 2013, for charging an
unreasonable fee and using a misleading fee agreement.
The allegations in this proceeding arise from Said’s representation
of four immigration law clients. All have been unlawfully present in the
United States for over ten years. Mauricio Ramirez Fernandez and
4
Guillermo Hernandez Ruiz were subject to removal proceedings but hired
Said to represent them in cancellation of removal proceedings.
Irma Luna Carrillo and Susan Alba Araniega were also unlawfully
present in the United States for over ten years. They hired Said to assist
in the preparation of what is known as a U visa application. A U visa
application is available to unlawfully present persons who assist law
enforcement in the prosecution of certain crimes.
This matter involves a broad array of attorney disciplinary issues in
an immigration law setting. Based on our de novo review of the record, we
find the following facts in connection with Said’s representation.
B. Mauricio Ramirez Fernandez.
1. Factual background. Originally from Mexico City, Mexico,
Ramirez Fernandez has resided in the United States for twenty-two years
without lawful status. He was married to Luna Carrillo, another client of
Said, who also filed a complaint with the Board regarding Said’s
representation of her.
In January 2011, immigration officers arrested Ramirez Fernandez
at his place of work as unlawfully residing in the United States. The United
States Department of Homeland Security (DHS) thereafter brought
removal proceedings against him.
Ramirez Fernandez hired Said to seek cancellation of removal. On
February 23, he signed a fee agreement with Said. The fee agreement
provided that the “[c]lient shall pay a fee of $6000.00 if uncontested.” If
the matter became contested, the fee agreement provided that Ramirez
Fernandez was required to pay Said $250 per hour for additional work.
Pursuant to the fee agreement, Said filed documents with immigration
authorities, on Ramirez Fernandez’s behalf, seeking cancellation of
removal.
5
In the summer of 2011, Ramirez Fernandez advised Said that he
desired to obtain a driver’s license but had titled a vehicle in the past using
a false Social Security number. Said encouraged him to go to the Iowa
Department of Transportation (DOT) to apply for a driver’s license. For an
additional fee of $500, Said agreed to accompany him to the DOT.
Prior to the meeting at the DOT, Said informed Donald Sharr, an
investigator for the DOT, that he had a client who used a false Social
Security number to register his car and house trailer. Said provided Sharr
with the false Social Security number used by Ramirez Fernandez in the
past and asked Sharr, “Let me know what you want to do” in regard to
bringing Ramirez Fernandez to the DOT to be interviewed.
Said and Ramirez Fernandez appeared at the DOT. At the meeting,
Ramirez Fernandez signed a “Voluntary Statement” that stated, “I used a
made up Social Security number to register a car in Polk County Iowa on
10/27/08.” Sharr issued Ramirez Fernandez a citation charging him with
fraudulent practice in the third degree in violation of Iowa Code section
714.11(3) (2011).
The state filed a preliminary complaint against Ramirez Fernandez
in Polk County District Court. Ramirez Fernandez hired Said to represent
him in the criminal matter. The fee agreement provided for a payment of
a flat fee if the matter was “uncontested.” If the matter became contested,
the fee agreement provided that Said would be compensated for additional
work at a rate of $250 per hour.
The preliminary complaint listed Michael Said as a witness. Said
filed an appearance in the matter on July 28. A subsequent trial
information filed on August 24 charged Ramirez Fernandez with
fraudulent applications in the third degree and listed Said as a witness.
An amended trial information later changed the charge to fraudulent
6
practice in the fourth degree, a serious misdemeanor under Iowa law. Iowa
Code § 714.12. The state’s amended trial information also listed Said as
a witness.
In response to the charge of fraudulent practice in the fourth degree,
Ramirez Fernandez, acting on the advice of Said, agreed on October 7 to
plead guilty. He signed a guilty plea and sentencing order stating, “I went
and registered a car using a SS# which was not mine.”
At a hearing on the plea agreement, an interpreter translated the
district court’s colloquy into Spanish for Ramirez Fernandez. Among other
things, the district court admonished Ramirez Fernandez that “if you are
not a citizen of this country there could be negative immigration
consequences as a result of your plea of guilt.” When asked if he
understood whether there could be negative immigration consequences
and whether Mr. Said had explained that to him, Ramirez Fernandez
responded “yes.”
Pursuant to the plea agreement, the district court sentenced
Ramirez Fernandez to 180 days in jail but suspended the jail time. In
addition, the district court placed Ramirez Fernandez on probation for one
year, required him to provide fifty hours of community service, and
required him to enroll in a Latino Orientation Program.
2. Immigration proceedings after conviction. On August 25, 2015,
an immigration judge granted the government’s motion to pretermit
cancellation proceedings. A motion to pretermit cancellation of removal in
immigration law is the equivalent of a motion for summary judgment
against the party seeking cancellation. The immigration judge found that
although Ramirez Fernandez was convicted under a divisible statute with
multiple avenues to support a conviction, the factual basis in his guilty
plea was the declaration of Ramirez Fernandez that “I went and registered
7
a car using a SS# which was not mine.” As a result, his conviction involved
fraud. Fraud, according to the immigration judge, was a crime involving
moral turpitude, and as a result, Ramirez Fernandez was disqualified from
seeking cancellation of removal.
In addition, the immigration judge found that fraudulent practice in
the fourth degree was not a “petty offense,” which removed his offense from
meeting the petty offense exception to crimes involving moral turpitude.
The immigration judge noted that the maximum penalty for the offense
was “one year or less” rather than the “less than one year” required for a
petty offense. Because of these rulings, the immigration judge concluded
that Ramirez Fernandez was, as a matter of law on the undisputed facts,
not entitled to cancellation of removal.
3. Application for postconviction relief. On October 10, 2014, new
counsel for Ramirez Fernandez filed an application for postconviction relief
in connection with his guilty plea to fraudulent practice in the fourth
degree. In his postconviction-relief action, Ramirez Fernandez alleged that
he received ineffective assistance of counsel because: (1) Said failed to
warn him prior to seeking a driver’s license from the DOT that if he sought
a license, the DOT could uncover his false use of a Social Security number
just prior to the expiration of the statute of limitations for the offense, (2)
Said failed to warn him before accepting the plea that his criminal
conviction and sentence would render him deportable or ineligible for
immigration relief in his pending removal action, (3) Said failed to provide
an interpreter when Ramirez Fernandez signed the plea agreement,
(4) Said failed to disclose or secure a waiver for a conflict of interests that
arose when the state listed Said as a prosecution witness in the criminal
proceeding, and (5) Said failed to file a motion to suppress evidence
8
received by the DOT from information that was supplied by Said in
violation of attorney–client privilege.
On January 4, 2017, the district court ruled that Said provided
ineffective assistance of counsel at the plea-bargaining stage of the
criminal proceeding. According to the district court, Said was fully aware
of the negative consequences of the plea bargain, namely, that DHS would
regard a conviction of fraudulent practice in the fourth degree as
conviction of a crime involving moral turpitude and result in a denial of
Ramirez Fernandez’s application for cancellation of removal. Yet, the
district court found that Ramirez Fernandez failed to show prejudice. As
a result, the district court denied the application for postconviction relief.
On appeal, the court of appeals reversed and remanded the case to
the district court. Fernandez v. State, No. 17–0132, 2018 WL 3471591,
*11 (Iowa Ct. App. July 8, 2018). The court of appeals found that Said had
a concurrent conflict of interest as he was named as a witness by the state
in the proceeding. Id. at *7–9. Because of his failure to advise Ramirez
Fernandez of the conflict and its potential consequences, the court of
appeals ruled that his criminal conviction of fraudulent practice in the
fourth degree should be reversed. Id. at *11. In addition, the court of
appeals found that Said failed in an essential duty when he failed to
adequately advise Ramirez Fernandez of the negative consequences of his
plea on his immigration status. Id. at *9–11.
On the issue of prejudice, the court of appeals concluded that if
Ramirez Fernandez had been properly advised, he could have “rationally
decided to hold the State to its burden of proof” since he had nothing to
lose by doing so. Id. at *11. As a result, the court of appeals reversed the
conclusion of the district court that Ramirez Fernandez had failed to show
prejudice. Id.
9
After obtaining relief from his original conviction, Ramirez
Fernandez was able to enter into a new plea agreement with the state. On
November 28, 2018, he entered a plea of guilty to fraudulent practice in
the fifth degree, which was accepted by the district court on December 4.
The reduction of the offense from fraudulent practice in the fourth degree
to fraudulent practice in the fifth degree had significant consequence for
Ramirez Fernandez, as the latter crime is a petty offense under
immigration law. As a result, Ramirez Fernandez’s application for
cancellation was no longer subject to dismissal because of a conviction of
a crime involving moral turpitude.
4. Allegations by the Board. The Board brought seven charges
against Said in connection with his representation of Ramirez Fernandez.
The Board alleged: (1) Said failed to provide competent representation
under Iowa Rule of Professional Conduct 32:1.1; (2) Said failed to obtain
informed consent from his client under Iowa Rule of Professional Conduct
32:1.4(a)(1); (3) Said failed to reasonably consult with his client about the
means by which the client’s objectives are to be accomplished under Iowa
Rule of Professional Conduct 32:1.4(a)(2); (4) Said failed to consult with
his client about any relevant limitations on the lawyer’s conduct under
Iowa Rule of Professional Conduct 32:1.4(a)(5); (5) Said charged an
unreasonable fee under Iowa Rule of Professional Conduct 32:1.5(a);
(6) Said revealed information relating to the representation of a client
without the client’s consent under Iowa Rule of Professional Conduct
32:1.6(a); and (7) Said represented a client with an impermissible
concurrent conflict of interest under Iowa Rule of Professional Conduct
32:1.7(a)(2).
5. Testimony at the disciplinary hearing. The commission heard
testimony from a number of witnesses, including Ramirez Fernandez and
10
Said. In addition, the commission heard testimony from two expert
witnesses with experience in immigration law.
The Board presented the testimony of Drake law professor Suzan
Pritchett. In addition to teaching immigration law at Drake, Pritchett
directed a legal clinic during her previous employment at the University of
Wyoming that was specifically dedicated to immigration and international
human rights.
According to Pritchett, Ramirez Fernandez met the basic criteria for
cancellation of removal. In her view, however, pleading guilty to fraudulent
practice in the fourth degree was problematic. According to Pritchett,
courts have found that fraudulent practice type crimes are “a categorical
match” for a crime involving moral turpitude. If an applicant for
cancellation of removal is convicted of a crime involving moral turpitude,
the applicant is not eligible for cancellation of removal. According to
Pritchett, escaping the adverse consequence of pleading guilty to the crime
of fraudulent practice in the fourth degree would impose on him a “very,
very difficult, if not impossible burden.”
Pritchett also testified regarding the need for admonitions to the
client. According to Pritchett, a general admonition about risks in
immigration law was not sufficient. Pritchett testified that her admonition
would state that
it would be very dangerous to affirmatively present yourself to
law enforcement and put yourself at risk of receiving a
criminal conviction which, . . . if it doesn’t statutorily
disqualify you for cancellation of removal, it certainly can be
considered negatively as a matter of discretion.
Said offered the testimony of immigration lawyer Peter Williamson.
Williamson practiced immigration law in Texas and across the country for
11
fifty years. He was a past president of the American Immigration Lawyers
Association and had handled more than fifty cancellation of removal cases.
According to Williamson, the use of a false Social Security number
to register a vehicle was a problem no matter how it was treated by Said.
In colloquial terms, Williamson stated that Ramirez Fernandez had
“baggage” and that Said tried to “clean him up” prior to any removal
hearing. With respect to disqualification from cancellation of removal for
committing a crime involving moral turpitude, Williamson testified that the
law is always changing in immigration. As for any admonition, Williamson
believed that the client had essentially put himself in his lawyer’s hands
and that any detailed admonition was not required.
6. Findings and recommendation of the commission. The
commission concluded that Said was attempting to help Ramirez
Fernandez in light of his past unlawful decisions. It did not explore the
contours of immigration law. Instead, the commission found that Said did
not adequately communicate the potential risks of his strategy with
Ramirez Fernandez, namely, that he could be charged with a crime and
that such charges could adversely affect his immigration status. Instead,
the commission found that Said exercised his own judgment that the
“coming clean” strategy was the best route available for his client without
allowing the client to make an informed decision.
As a result, the commission found that Said failed to obtain informed
consent in violation of Iowa Rule of Professional Conduct 32:1:4(a).
Although there may be some ambiguity, the commission also appears to
have found a violation of the related provision in Iowa Rule of Professional
Conduct 32:1.4(b), which requires an attorney to communicate with a
client to the extent necessary to allow the client to make informed
decisions. Further, the commission found that by giving information to
12
investigator Sharr without the consent of Ramirez Fernandez, Said
revealed information about a client in violation of Iowa Rule of Professional
Conduct 32:1:6(a). The commission, however, generally declared without
specific findings that all other charges brought by the Board were not
supported by a clear preponderance of the evidence.
C. Irma Luna Carrillo.
1. Factual background. Luna Carrillo lived in the United States
illegally for over two decades. She was referred to Said by her husband,
Ramirez Fernandez. Luna Carrillo told Said that she found stolen jewelry
in a rental home in which she lived with her family. A criminal prosecution
was commenced against the offender. According to Luna Carrillo, she then
received several mysterious phone calls that she regarded as threatening.
Under the circumstances, Said advised Luna Carrillo that she would be
eligible for a U visa.
Luna Carrillo hired Said to attempt to obtain the U visa. She signed
a fee contract with Said on November 25, 2013. Under the fee agreement,
Luna Carrillo agreed to “pay a fee of $8,000, if uncontested.” If the matter
became contested, she agreed to pay Said at the rate of $250 per hour “for
all additional work” performed on the matter. Ultimately, she paid Said a
total of $7000 pursuant to the fee agreement. Among other things, Said
advised Luna Carrillo to obtain counseling to help provide a factual basis
for a claim of emotional harm necessary to support a U visa application.
An itemized statement on the file prepared by Said’s office shows
that work was done on the file each month during the period from
December 2013 to June 2014, mostly by Said but also by two other lawyers
in the office. The amount of work reflected in the itemized statement
totaled $2655. Luna Carrillo became dissatisfied with progress on the
matter, however, and requested a refund of a retainer she had paid. After
13
she fired Said, Luna Carrillo received a refund of $4345. This figure
represented the total amount she had paid to Said minus the progress
billings indicated on Said’s itemized statement developed over the course
of the representation.
2. Allegations of the Board. The Board filed four charges in
connection with Said’s representation of Luna Carrillo. Specifically, the
Board alleged: (1) Said failed to provide competent legal advice under Iowa
Rule of Professional Conduct 32:1.1; (2) Said charged an unreasonable fee
under Iowa Rule of Professional Conduct 32:1.5(a); (3) Said failed to
properly deliver to client funds the client is entitled to receive under Iowa
Rule of Professional Conduct 32:1.15(d); and (4) Said failed to keep
separate property in which two or more persons claimed an interest under
Iowa Rule of Professional Conduct 32:1.15(e). The Board, however,
voluntarily dismissed the last two allegations.
3. Testimony at the disciplinary hearing. At the disciplinary hearing,
Said and Luna Carrillo basically told their side of the story. Said defended
his work, while Luna Carrillo claimed that another attorney had advised
her that she did not qualify for a U visa and, as a result, she would be
wasting her money. In addition, the commission heard the testimony of
two expert witnesses.
The Board offered the testimony of Pritchett. Pritchett canvassed
the requirements of the U visa program. According to Pritchett, the receipt
of mysterious phone calls was not enough to establish a qualifying crime.
Pritchett conceded that Luna Carrillo might be eligible if she had been the
victim of witness tampering, but even so, she would still have to show
substantial emotional harm necessary to qualify for a U visa. Further,
according to Pritchett, under the facts as she understood them, it would
be very hard to come up with the necessary law enforcement certification.
14
Said offered testimony from his expert Williamson. Williamson
testified that attempted crimes would be sufficient to trigger potential
U visa protection. He viewed the phone calls as an attempt to intimidate
Luna Carrillo. Williamson did not view the application as frivolous, but he
characterized it as “very clever.”
4. Findings and conclusions of the commission. The commission
held that the Board failed to prove the allegations by a convincing
preponderance of the evidence. The commission reasoned that the
strategy of seeking to obtain a U visa most likely had a very slim chance of
success. Yet, according to the commission, it may have had some
secondary benefits, such as buying Luna Carrillo more time to remain in
the United States notwithstanding her unlawful status.
On the fee issue, the commission recognized that another attorney
had advised Luna Carrillo differently on her eligibility for a U visa. The
commission did not find the contrary advice sufficient to support a finding
that the fee charged by Said was unreasonable in this case.
D. Guillermo Hernandez Ruiz.
1. Factual background. Hernandez Ruiz lived in the United States
without lawful immigration status since 1999. Police arrested Hernandez
Ruiz while he was paying a parking ticket. On November 3, 2010, DHS
initiated removal proceedings against him. Hernandez Ruiz hired Said to
represent him in the immigration matter. On February 28, 2011, Said
filed an application for cancellation of removal on behalf of Hernandez
Ruiz.
In early March 2012, Said and Hernandez Ruiz discussed how he
might obtain a driver’s license. In the discussion, Hernandez Ruiz did not
disclose that he had used a false Social Security number to register a
vehicle in the past.
15
Hernandez Ruiz appeared at a DOT office on March 6,
unaccompanied by Said. DOT staff informed him that his name was linked
to two Social Security numbers. Hernandez Ruiz told the DOT that he had
used a false Social Security number. The DOT staff declined to issue him
a driver’s license at that time.
Hernandez Ruiz then consulted with Said about his situation. After
the consultation, Said sent an e-mail to investigator Sharr indicating that
Hernandez Ruiz had visited DOT and “believes that he registered a car in
2011 using a SS number not belonging to him.” Said asked Sharr to
“check and if need be give me some dates so that we may come in?” Said,
Hernandez Ruiz, translator Melissa Waalk, and Sharr met on March 9,
2012. At the meeting, Hernandez Ruiz signed a “Voluntary Statement”
stating, “I registered 5 cars using an invalid Social Security . . . between
2009 & 2010.” Sharr issued him a citation for fraudulent practice in the
third degree as a result of his registering a vehicle using a false Social
Security number. Said charged Hernandez Ruiz a flat fee of $500 to
accompany him to the DOT meeting.
On April 25, the state filed a trial information in Polk County District
Court charging Hernandez Ruiz with fraudulent practice in the third
degree. The state’s witness list included Said and translator Waalk. At
first, a public defender was appointed to represent Hernandez Ruiz. But
on May 31, Hernandez Ruiz signed a fee contract with Said to represent
him in the criminal matter. Under the fee contract, Hernandez Ruiz agreed
to pay $2000 “for a dismissal or plea of the charges.” If the matter was
contested and went to trial, Hernandez Ruiz agreed to pay Said an
additional retainer. On June 1, the public defender withdrew and Said
made his appearance, met with his client, arrived at a plea bargain with
the prosecutor, and filed a guilty plea and order with the district court.
16
Hernandez Ruiz pleaded guilty to fraudulent practice in the fourth degree.
In the guilty plea and order, Hernandez Ruiz stated, “I used a Social
Security Card that I bought to register a car.” Like Ramirez Fernandez,
the district court sentenced Hernandez Ruiz to 180 days in the Polk
County Jail with the jail time suspended. The district court further placed
him on probation for one year, required him to perform fifty hours of
community service, and required him to attend a Latino Orientation
Program.
2. Impact of guilty plea on immigration proceedings. DHS
commenced removal proceedings against Hernandez Ruiz on November 3,
2010. On February 28, 2011, Said filed on behalf of Hernandez Ruiz an
application for cancellation of removal. On September 6, 2013, DHS filed
a motion to pretermit Hernandez Ruiz’s application for cancellation,
asserting that he had been convicted of a crime involving moral turpitude
when he pleaded guilty to fraudulent practice in the fourth degree and was
therefore ineligible for cancellation of removal. Hernandez Ruiz did not
respond to the government’s motion.
An immigration judge granted the motion to pretermit. The
immigration judge canvassed caselaw, concluding that while the Iowa
fraudulent practice statute was divisible and thus could require
examination to determine which section supported the conviction,
Hernandez Ruiz had admitted, “I used a social security number that I
bought to register a car.” According to the immigration judge, such
conduct amounted to a crime involving moral turpitude. As in the case
involving Ramirez Fernandez, the immigration judge also rejected the petty
offense exception, noting that the relevant penalty for fraudulent practice
in the fourth degree carried a sentence of “one year or less,” which was not
“less than one year.”
17
Upon receiving the immigration ruling, Hernandez Ruiz met with
Moses Mangae, a lawyer in Said’s office. At the meeting, Hernandez Ruiz
indicated that he feared returning to Mexico because he would be subject
to extortion and physical harm from gangs. They decided to request
permission to file for relief under an asylum theory. On January 17, 2014,
the immigration judge denied the government’s motion to deem the
application for relief abandoned.
3. Application for postconviction relief. On May 29, 2015, Hernandez
Ruiz filed an application for postconviction relief seeking to overturn the
conviction arising from his guilty plea. Hernandez Ruiz claimed that at
the time he pled guilty, Said failed to warn him that the conviction and
sentence as proposed would render him deportable or ineligible for
immigration relief in his pending proceedings.
The district court denied Hernandez Ruiz’s petition for
postconviction relief. The district court first addressed whether Said
adequately advised Hernandez Ruiz prior to pleading guilty. Citing Padilla
v. Kentucky, 559 U.S. 356, 369, 139 S. Ct. 1473, 1483 (2010), the district
court stated that when the law is unclear about the potential risks of a
criminal conviction, counsel can satisfy his duty to his client by warning
that “pending criminal charges may carry a risk of adverse immigration
consequences.”
The district court emphasized that the question of whether a
particular state charge amounted to a crime involving moral turpitude,
thereby risking disqualification law of seeking cancellation of removal, was
“a notoriously murky area.” According to the district court, Said complied
with his duty under Padilla by telling Hernandez Ruiz prior to pleading
guilty that the charge could result in his deportation. In addition, the
district court noted that Hernandez Ruiz signed a plea bargain and
18
sentencing order acknowledging his view of the statement that informed
him that a criminal conviction “may result in deportation or other adverse
immigration consequences.”
The district court then turned to what it characterized as the
tougher question, namely, whether Said violated his duty to provide
effective assistance when he failed to advise Hernandez Ruiz prior to going
to the DOT of the option to simply avoid driving. The district court found
that Said did not advise Hernandez Ruiz that if he sought a driver’s license
from the DOT, he risked being charged with a crime that could adversely
impact his immigration status. The district court observed that Hernandez
Ruiz had testified that prior to consulting with Said regarding obtaining a
driving license, he was getting rides to work.
The district court found that Said breached his duty to Hernandez
Ruiz by failing to inform him that he did not need to obtain a driver’s
license and that he could be charged with a crime if he pursued the driver’s
license matter that would adversely affect his immigration status. The
district court further found that Hernandez Ruiz was prejudiced by the
failure of counsel to properly advise him prior to seeking a driver’s license
from the DOT.
The district court next considered whether Said was ineffective when
he failed to inform Hernandez Ruiz that he was listed as a witness in the
prosecution’s trial information. While Said should have advised
Hernandez Ruiz about the potential conflict and the information necessary
to obtain informed consent, the district court concluded that Said probably
would not have been called as a witness in the matter. The district court
reasoned that that Hernandez Ruiz received the best plea agreement to the
pending charge that the state was providing at the time. The district court
noted that there was no evidence that another, nonconflicted lawyer could
19
receive a better offer. As a result, the district court found no prejudice
arising from the potential conflict.
Nonetheless, because Said provided ineffective assistance prior to
Hernandez Ruiz attempting to receive his driver’s license, the district court
granted the motion for postconviction relief.
The state appealed. We retained the case. See Ruiz v. State, 912
N.W.2d 435 (Iowa 2018). We held that the district court erred in
determining that the right to counsel attached when Hernandez Ruiz
consulted Said prior to seeking a driver’s license from the DOT. Id. at 439–
41. At that time, no investigation regarding his false use of a Social
Security number was pending. Id. Because the right to counsel did not
attach at that time under either the Sixth Amendment or the Iowa
Constitution, we reversed the trial court’s order granting Hernandez Ruiz
postconviction relief. Id. at 443.
4. Allegations by the Board. The Board brought eight charges
against Said in connection with his representation of Hernandez Ruiz. The
Board alleged: (1) Said failed to provide competent representation under
Iowa Rule of Professional Conduct 32:1.1; (2) Said failed to promptly
inform the client of any decision or circumstance to which the client’s
informed consent was required under Iowa Rule of Professional Conduct
32:1.4(a)(1); (3) Said failed to reasonably consult with his client about the
means by which the client’s objectives are to be accomplished under Iowa
Rule of Professional Conduct 32:1.4(a)(2); (4) Said failed to consult with
the client about a relevant limitation on the lawyers conduct under Iowa
Rule of Professional Conduct 32:1.4(5); (5) Said failed to explain a matter
to the extent reasonably necessary to permit the client to make informed
decisions under Iowa Rule of Professional Conduct 42:1.4(b); (6) Said
revealed information about a client without informed consent under Iowa
20
Rule of Professional Conduct 32:1.6(a); and (7) Said represented a client
with an impermissible concurrent conflict of interest under Iowa Rule of
Professional Conduct 32:1.7(a)(2).
5. Testimony before the commission. Both Hernandez Ruiz and Said
testified before the commission. The parties offered the same expert
testimony in support of their position on Hernandez Ruiz as was offered in
support of Ramirez Fernandez.
6. Findings and conclusions of the commission. The commission
found that the Board failed to prove any of the allegations by a convincing
preponderance of the evidence.
The commission contrasted the case of Hernandez Ruiz with that of
Ramirez Fernandez. According to the commission, Hernandez Ruiz did
not tell Said that he had previously used a false Social Security number
when he consulted with Said prior to going to the DOT to attempt to get a
driver’s license. The commission further found that the Board did not
prove that Said did not fully advise Hernandez Ruiz of the potential impact
on his immigration status of his voluntary statement to the DOT when
Hernandez Ruiz and Said made the second visit to the DOT.
E. Representation of Susan Alba Araniega.
1. Factual background. Although listed by the Board as a witness,
Susan Alba Araniega did not appear at the disciplinary hearing. The
record shows, however, that Alba Araniega consulted Said in February
2015 regarding the possibility of applying for a U visa in light of her
experience of domestic abuse. Alba Araniega retained Said to represent
her on March 14. On May 1, Said obtained the signature of a district court
judge on the law enforcement certification Form I-918 Supplement B. In
support of her claim and at Said’s request, Alba Araniega prepared a
handwritten thirty-six-page Spanish summary of her case in August.
21
Said was suspended from practice from September 4 to October 4.
During the period of suspension, Mangae wrote a letter, dated October 2,
to Alba Araniega that requested eight categories of additional documents.
According to the itemized billing statement, attorneys and others in Said’s
office sent her a questionnaire, requested documents, and otherwise
worked on her file in October and November. Because the application for
the U visa had not been filed within six months of the law enforcement
certification, however, another new certification was required to support
the application.
Dissatisfied with progress, Alba Araniega obtained other counsel.
Lawyers in Said’s law office sent her files to the new counsel in a
reasonable period of time. Other counsel was able to secure a new law
enforcement certification for Alba Araniega and complete the application.
The fee agreement signed by Alba Araniega and Said provided that
the client would pay a fee of $4000 for the representation. The fee
agreement did not contain the misleading language used in Said’s prior fee
agreements. After his discharge, Said refunded to Alba Araniega $1177.33
in unearned fees.
2. Allegations of the Board. The Board alleged six violations of our
disciplinary rules in connection with Said’s representation of Alba
Araniega. The Board alleged: (1) Said failed to provide competent
representation under Iowa Rule of Professional Conduct 32:1.1; (2) Said
failed to act with reasonable diligence and promptness under Iowa Rule of
Professional Conduct 32:1.3(b); (3) Said failed to reasonably consult with
his client about the means by which the client’s objectives are to be
accomplished under Iowa Rule of Professional Conduct 32:1.4(a)(2);
(4) Said failed to explain a matter to the extent reasonably necessary to
allow the client to make informed decisions under Iowa Rule of
22
Professional Conduct 32:1.4(b); (5) Said charged an unreasonable fee
under Iowa Rule of Professional Conduct 32:1.5(a); and (6) Said failed to
promptly deliver to the client funds to which the client is entitled under
Iowa Rule of Professional Conduct 32:1.15(d). The Board voluntarily
dismissed the consultation claim and the failure to make an informed
decision claim.
3. Testimony before the commission. Said testified before the
commission. He generally asserted that he and his staff were appropriately
preparing the file and that delays were as much a fault of the client as his
office. Alba Araniega did not testify in the proceedings.
The Board offered testimony from Pritchett on the Alba Araniega
matter. According to Pritchett, a law enforcement certification was a
central component of a U visa application. She testified that there might
be all kinds of intervening circumstances that would prevent a potential
U visa applicant from obtaining a new certificate after a previous certificate
expires. She believed Said should have filed a U visa application prior to
the expiration of the law enforcement certificate even if it was incomplete.
According to Pritchett, a party could supplement a U visa application at a
later date.
Williamson testified on behalf of Said. He noted that the instruction
on the U visa form declares that “if you submit an incomplete case, we . . .
have the power to deny it because it’s incomplete.” In contrast to Pritchett,
Williamson testified that the chance of getting a file supplemented in the
immigration bureaucracy was “zero percent.”
4. Findings and conclusions of the commission. The commission
found that the Board failed to prove the charges by a convincing
preponderance of the evidence. The commission noted that there was
nothing improper about having other attorneys in the same law office work
23
on a file. The commission further noted that successor counsel was able
to secure a new law enforcement certification for Susan Alba Araniega and
proceed with the case. As a result, nothing Said did resulted in prejudice
to the client.
F. Recommendation of Commission. In considering its sanctions
recommendation, the commission found aggravating factors. The
commission found Said’s prior discipline an aggravating factor. See Said,
869 N.W.2d 185. The commission also cited Said for having a glib attitude
toward his former clients and this proceeding.
On the other hand, the commission also found mitigating factors.
The commission noted that Said’s career involved representing
undocumented immigrants at high legal risk. Further, Said had changed
his law office management practice to avoid the circumstances that gave
rise to some of the disputed facts in the case. Said had improved his
documenting advice to immigrants to improve transparency and avoid
later claims of miscommunication or confusion.
In conclusion, the commission noted the difficulty of representing
undocumented immigrants. The commission observed,
Not all lawyers have the same tolerance for helping those living
in the shadows and not all lawyers have the gumption to bring
legally risky cases or make novel arguments. . . . Clients often
benefit from (and often willingly pay for) those risks.
The commission recognized that immigration lawyers may take risks
that do not ultimately succeed. But, according to the commission, the
representation of these clients is “an art, not a science, and the risks are
ever present.” Further, the commission noted that immigration law
attorneys “push the envelope in their cases and sometimes push to change
the law—sometimes that works and sometimes it does not.” The
commission emphasized the need to balance “enforcement of the
24
[disciplinary rules] with not creating standards that will have a chilling
effect on the likelihood that lawyers will take on the risks of helping
individuals living in the shadows.” Nonetheless, the commission found
that Said did not properly advise his clients to permit them to make
informed choices about his risky strategies and revealed confidential
information without client consent. As a result, the commission
recommended that this court sanction Said by issuing a public reprimand.
II. Standard of Review.
We review factual findings of the commission de novo. Iowa Ct. R.
36.22(4); Iowa Sup. Ct. Att’y Disciplinary Bd. v. Van Ginkel, 809 N.W.2d
96, 101 (Iowa 2012). We give respectful consideration to commission
findings, especially when considering credibility of witnesses, but are not
bound by them. Van Ginkel, 809 N.W.2d at 101. The burden is on the
Board to prove the charges by a convincing preponderance of the evidence.
Id. at 102. A convincing preponderance of the evidence burden is higher
than the burden in most civil cases but lower than a criminal prosecution
and less stringent than the clear and convincing evidence standard used
in some civil cases. Id.; Iowa Sup. Ct. Bd. of Pro. Ethics & Conduct v.
Ronwin, 557 N.W.2d 515, 517 (Iowa 1996) (per curiam).
III. Discussion of Legal Principles.
A. Overview of Relevant Immigration Law.
1. Introduction. Before we consider whether Said violated the
panoply of disciplinary rules as alleged by the Board, we explore the
relevant immigration law framework of the four matters before us. The
matters involving Ramirez Fernandez and Hernandez Ruiz involve the
impact of Said’s representation on removal proceedings and Said’s clients’
applications for cancellation of removal proceedings. The matters
involving Luna Carrillo and Alba Araniega involve applications for a U visa,
25
which if granted, permit undocumented persons to remain in the United
States as a result of cooperation with law enforcement in certain matters.
A working knowledge of these areas of immigration law provides the
context for evaluating many of the Board’s alleged violations of disciplinary
rules in this case.
2. Removal and cancellation. Under immigration law,
undocumented persons physically present in the United States are subject
to removal. 8 U.S.C. § 1182(a)(6)(A)(i). A person subject to a removal,
however, may apply for cancellation of removal. Id. § 1229b(b)(1). Said
represented both Ramirez Fernandez and Hernandez Ruiz in connection
with removal proceedings and filed applications for cancellation of removal
on behalf of both clients.
Cancellation of removal is designed to permit undocumented
persons to remain in the United States where removal would cause
extreme hardship. Id. § 1129b(b)(1)(D). In order to qualify for cancellation
of removal the applicant must prove (1) presence in the United States for
at least ten years, (2) continuous residence in the United States for the
duration, (3) good moral character, and (4) extreme hardship on family
members. Id. § 1229b(b)(1).
With respect to the third element, a person who commits a “crime
involving moral turpitude” cannot show good character and is not eligible
for cancellation. Id. § 1182(a)(2)(A)(i)(I). The term “crime involving moral
turpitude” is not defined in the statutes and its ambiguous character has
been noted by commentators and in the caselaw. See, e.g., Partyka v. Att’y
Gen., 417 F.3d 408, 409 (3d Cir. 2005) (characterizing moral turpitude
cases as an “amorphous morass”); Quilodran-Brau v. Holland, 232 F.2d
183, 184 (3d Cir. 1956) (“The border line of ‘moral turpitude’ is not an easy
one to locate.”); In re Tran, 21 I. & N. Dec. 291, 292 (B.I.A. 1996) (noting
26
moral turpitude was a “nebulous concept”); Mary Hoper, Deportation for a
Sin: Why Moral Turpitude is Void for Vagueness, 90 Neb. L. Rev. 647, 678–
79 (2012). In any case, conviction of a crime involving moral turpitude
where the potential penalty exceeds one year or the actual sentence
exceeds six months renders the undocumented person “inadmissible,” but
there is an exception for certain petty offenses under 8 U.S.C.
§ 1182(a)(2)(A)(ii)(II).
On the advice of Said, Ramirez Fernandez and Hernandez Ruiz
pleaded guilty to the crime of fraudulent practice in the fourth degree
under Iowa Code section 714.12 as a result of their use of a false Social
Security number to register vehicles with the DOT. The question arises
whether this crime amounts to a “crime involving moral turpitude.” If so,
Ramirez Fernandez and Hernandez Ruiz, by pleading guilty, would no
longer be eligible for cancellation of removal.
The caselaw regarding whether conviction of a crime arising from
the use of a false Social Security number by an undocumented person is
a crime involving moral turpitude is mixed. In Beltrane-Tirado v. INS, the
United States Court of Appeals for the Ninth Circuit concluded that the
use of a false Social Security number did not amount to a crime involving
moral turpitude under immigration law. 213 F.3d 1179, 1184 (9th Cir.
2000). There is some support for that position in the Second Circuit and
more recently in the Seventh Circuit. See Ahmed v. Holder, 324 F. App’x
82, 84 (2d Cir. 2009) ([“A] person who secures employment on the basis of
a false social security number has the intent to deceive the employer and
violates § 408(a)(7)(B), but has not necessarily acted with the intent to
defraud the employer or the government. For this reason, Ahmed's case
is distinguishable from the many cases holding crimes of fraud to be
crimes involving moral turpitude.”); Arias v. Lynch, 834 F.3d 823, 826–29
27
(7th Cir. 2016) (“A rule that all crimes that involve any element of deception
categorically involve moral turpitude would produce results at odds with
the accepted definition of moral turpitude as conduct that is ‘inherently
base, vile, or depraved.’ ”).
The majority of caselaw, however, points in a different direction. For
instance, in Hyder v. Keisler, the Fifth Circuit held that use of a false Social
Security number amounted to a crime involving moral turpitude. 506 F.3d
388, 391–92 (5th Cir. 2007). The same result occurred in the Sixth, Tenth,
and Eleventh Circuits. See Moreno-Silva v. U.S. Att’y Gen., 481 F. App’x
611, 613 (11th Cir. 2012) (per curiam); Rodriguez-Heredia v. Holder, 639
F.3d 1264, 1268–69 (10th Cir. 2011); Serrato-Soto v. Holder, 570 F.3d 686,
690–92 (6th Cir. 2009).
In Guardado-Garcia v. Holder, the Eighth Circuit considered a case
where an immigrant pled guilty to misuse of a Social Security number in
violation of 42 U.S.C. § 408(a)(7)(B). 615 F.3d 900, 901 (8th Cir. 2010).
Guardado-Garcia used a Social Security number not assigned to him to
obtain an employee identification badge at Lambert-St. Louis International
Airport. Id. at 901. The identification badge gave Guarrdado-Garcia
access to secure areas at the airport. Id. The Board of Immigration
Appeals approved a finding that Guardado-Garcia was inadmissible,
noting that “in view of the potential security threats to the United States,”
it is “definitely in the interest of this country to make sure these numbers
are appropriately assigned.” Id. The board thus agreed that the “crime
involv[ed] moral turpitude because it involved ‘both an intent to deceive
and an impairment of government function.’ ” Id.The Guadardado-Garcia court affirmed the Board’s determination.
The court cited with approval language from a prior opinion, Lateef v.
Department of Homeland Security, where the court stated that “[c]rimes
28
involving the intent to deceive or defraud are generally considered to
involve moral turpitude.” Id. at 902 (quoting Lateef v. Dep’t of Homeland
Sec., 592 F.3d 926, 929 (8th Cir. 2010)). In Lateef, the court expressly
rejected the Ninth Circuit’s approach in Beltran-Tirado. Lateef, 592 F.3d
at 930–31.
In addition to disagreement regarding substance, there has been
controversy regarding the proper method of resolving whether a conviction
is a crime involving moral turpitude. The United States Attorney General
at one point promulgated guidance, but that authority was subsequently
rescinded after it was not followed by several circuits.
The United States Supreme Court entered the fray in Mathis v.
United States. ___ U.S. ___, 136 S. Ct. 2243 (2016). In Mathis, the
Supreme Court considered what crime amounted to a predicate violent
offense under the Armed Career Criminal Act, 18 U.S.C. § 924(a). Mathis,
___ U.S. at ___, 136 S. Ct. at 2248–50. The Supreme Court held that when
a statute provided multiple avenues to convict a defendant of a crime, a
court should use a “modified categorical approach” to determine which
alternative applied to the defendant. Id. at ___, 136 S. Ct. at 2249. In
applying such an approach, the court would look at a limited set of
documents to make the determination. Id. at ___, 136 S. Ct. at 2249. After
Mathis, the question arose whether the modified categorical approach
should be used in immigration cases to determine whether a defendant
was convicted of a crime involving moral turpitude.
Recently, the Eighth Circuit decided Pereida v. Barr. 916 F.3d 1128(8th Cir. 2019). In Pereida, an unlawfully present immigrant attempted to
use a fraudulent Social Security card to obtain employment, a crime under
state law. Id. at 1130; see also Neb. Rev. Stat. Ann. § 28-201(1)(b) (West,
Westlaw current through 2d Reg. Sess. 106th Legis. (2020)). The Pereida
29
court characterized the determinative issue as whether the immigrant’s
conviction qualified as a crime involving moral turpitude, making him
ineligible for cancellation of removal. 916 F. 3d at 1130.
In Pereida, an immigration judge had determined that the Nebraska
statute was divisible and that some of the crimes did not require intent to
defraud. Id. at 1130–31. Upon examination of underlying court
documents, however, the immigration judge concluded that no
determination could be made as to which section of the Nebraska statute
supported Pereida’s conviction. Id. at 1131. Under the circumstances,
the immigration judge held it was Pereida’s burden to show that his crime
did not involve fraudulent intent, and because he had failed to do so, he
was statutorily ineligible for cancellation of removal. Id.
Citing Mathis, the Eighth Circuit affirmed. Id. at 1132–33 (citing
Mathis, ___ U.S. at ___, 136 S. Ct. at 2249). The Eighth Circuit applied the
modified categorical approach outlined in Mathis. Id. at 1132 (citing
Mathis, ___ U.S. at ___, 136 S. Ct. at 2249). It agreed that the statute was
divisible, but based on the limited relevant class of documents, the court
could not determine precisely which crime supported Pereida’s conviction.
Id. at 1132–33. At that point, the Eighth Circuit emphasized, the burden
shifted to Pereida to establish his entitlement to relief. Id. at 1133.
Because the Eighth Circuit could not determine which crime supported
Pereida’s conviction, it declined to consider the substantive question of
whether any particular crime under the statute was not a crime involving
moral turpitude under the approach of Beltran-Tirado or Arias v. Lynch.
Id.
The United States Supreme Court granted certiorari. Pereida v.
Barr, ___ U.S. ___, 140 S. Ct. 680 (2019) (mem). The matter is currently
30
pending. The grant of certiorari, at a minimum, suggests the uncertainty
of the law in this area.
3. Contours of the U visa program. Congress passed the Victims of
Trafficking and Violence Protection Act of 2000 to protect victims of certain
crimes, regardless of immigration status. Pub. L. No. 106–386, 114 Stat.
1464 (2000) (codified as amended in scattered sections of the U.S.C.
(2000)). Among other things, the legislation provided protection for certain
immigrants unlawfully present in the country when they cooperate with
law enforcement in the prosecution of crime, now known as a U visa.
Battered Immigrant Women Protection Act of 2000, Pub. L. No. 106–386,
§ 1513, 114 Stat. 1518, 1534–35 (2000) (codified at 8 USCA
§ 1101(a)(15)(U) (2000)). A person unlawfully in the United States who
receives a U visa may remain in the United States notwithstanding the
immigrant’s otherwise unlawful status for a period of four years, with
eligibility after three years to apply for permanent residency on
humanitarian grounds. See 8 U.S.C. §§ 1184(p)(6); 1255(m)(l) (2018).
In order to qualify for a U visa, the immigrant must first show
“substantial physical or mental abuse as a result of having been a victim
of criminal activity described” in the statute. Id. § 1101(a)(15)(U)(i)(I). The
statute provides a lengthy list of qualifying crimes, which include a
number of sexual offenses such as rape, incest, sexual assault, abusive
sexual contact, sexual exploitation, and female genital mutilation and also
some nonsexual crimes such as domestic violence, murder, manslaughter,
kidnapping, blackmail, extortion, witness tampering, and obstruction of
justice, as well as an attempt, conspiracy, or solicitation to commit any of
the listed crimes. Id. § 1101(a)(15)(U)(iii).
In addition, the immigrant victim must show that the immigrant
victim possessed information regarding the criminal activity and that
31
immigrant victim must have been “helpful, is being helpful, or is likely to
be helpful,” in the investigation or prosecution of the criminal case. Id. §
1101(a)(15)(U)(i)(III). In order to establish helpfulness, the applicants for a
U visa must obtain a certification from a judge, law enforcement officer, or
prosecutor stating that they have helped or are helpful with an
investigation of one of the listed qualifying crimes. Id. § 1184(p)(1).
Finally, the immigrant victim must show that the criminal activity “violated
the laws of the United States or occurred in the United States . . . or the
territories and possessions of the United States.” Id.
§ 1101(a)(15)(U)(i)(IV).
The United States Customs and Immigration Service has provided
guidance to potential applicants in the U Visa Law Enforcement Resource
Guide. U.S. Dep’t of Homeland Sec., U Visa Law Enforcement Certification
Resource Guide (2012), https://niwaplibrary.wcl.american.edu/wp-
content/uploads/2015/IMM-Gov-DHSUVisaCertificationGuide.pdf
[https://perma.cc/J3WA-PQYV]. The guide provides a general outline of
the requirements to obtain the U visa. See generally id. Among other
things, the guide notes that immediate family members of U visa recipients
may also be eligible to live and work in the United States. Id. at 5. The
guide also provides that “given the complexity of U visa petitions,
petitioners often work with a legal representative or victim advocate.” Id.
at 2.
In order to obtain a U visa, the applicant must file with immigration
authorities an I-918 Petition for U Nonimmigrant Status and an I-918
Supplement B Form.1 Id. The I-918 Petition is an eleven-page form with
multiple fill-in boxes, check-the-box questions, and an opportunity to
1Both forms are available at https://www.uscis.gov/I-918.
32
provide additional information. U.S. Dep’t of Homeland Sec., Petition for
U Nonimmigrant Status (Apr. 24, 2019). The I-918 Supplement B is the
form for the certification by law enforcement. Id. The five-page form asks
for, among other things, a description of the criminal activity being
investigated or prosecuted and the involvement of the applicant. Id. at 2–
4. Copies of relevant reports and findings are to be attached to the form.
Id. at 2. The I-918 Supplement B requires certification that the immigrant
victim possessed information about the identified criminal activity and
that the information has been, is being, or is likely to be helpful in the
investigation or prosecution of the criminal activity detailed in the report.
Id. at 4. The U Visa Resource Guide, after describing the I-918
Supplement B form, states that “[w]ithout a completed U visa certification,
the victim will not be eligible for a U visa.” U.S. Dep’t of Homeland Sec., U
Visa Law Enforcement Certification Resource Guide at 3.
4. Ineffective assistance of counsel. In Padilla v. Kentucky, the
United States Supreme Court considered whether a lawyer with an
immigration client provided effective representation when, in the context
of a plea bargain, the lawyer failed to advise the client of the immigration
consequences of the plea. Padilla, 559 U.S. at 359, 130 S. Ct. at 1477–
78. This court analyzed the responsibilities of a lawyer in an immigration
context in Diaz v. State. 896 N.W.2d 723 (Iowa 2017). In Diaz, we found
counsel ineffective for failure to advise a client about the immigration
consequences of a guilty plea. Id. at 734. Among other things, we
declared, “Whether or not deportation consequences are certain or
possible under a criminal charge, the specific statutory consequences need
to be explained with reasonable clarity so a full and measured decision to
plead guilty can be made.” Id. at 732.
33
B. Overview of Disciplinary Rules.
1. Introduction. Having established the immigration law framework
in which these four matters arise, we now explore the general framework
of the disciplinary rules the Board alleges were violated by Said.
2. Competence. Rule 32:1.1 requires that an attorney act with
competence in the course of representation. Iowa R. Prof’l Conduct 32:1.1.
Lack of competence may be shown where an attorney lacks “the legal
knowledge, skill, thoroughness, and preparation reasonably necessary for
the representation” or upon a showing that the attorney failed “to make a
competent analysis of the factual and legal elements of a client’s legal
problem.” Iowa Sup. Ct. Att’y Disciplinary Bd. v. Barnhill, 847 N.W.2d 466,
484–85 (Iowa 2014) (quoting Iowa Sup. Ct. Att’y Disciplinary Bd. v. Wright,
840 N.W.2d 295, 300 (Iowa 2013)). An act of malpractice, however, does
not necessarily show incompetence, but may show merely a mistake that
falls below the standard of care expected of a practicing attorney. Iowa
Sup. Ct. Att’y Disciplinary Bd. v. Wintroub, 745 N.W.2d 469, 475 (Iowa
2008). Similarly, even in more egregious cases where neglect has been
shown by repeated deficiencies, we have stated that “mere neglect of client
matters does not establish a lack of competence.” Iowa Sup. Ct. Att’y
Disciplinary Bd. v. Baldwin, 857 N.W.2d 195, 205 (Iowa 2014) (quoting
Iowa Sup. Ct. Att'y Disciplinary Bd. v. Conroy, 845 N.W.2d 59, 64 (Iowa
2014)).
For example, in Iowa Supreme Court Attorney Disciplinary Board v.
Baldwin, we found that repeated failures to comply with our rules of
procedure and our court ordered deadline did not arise to incompetence.
Id. at 205–06. But while failure to follow rules and meet deadlines may in
some cases be neglect, persistent and profound failure may move from
neglect to incompetence. In Iowa Supreme Court Attorney Disciplinary
34
Board v. Conroy, the attorney was found incompetent when he admitted
that he had no experience with appeals, did not reach out to an
experienced attorney, did not read the appellate rules, did not understand
that appeals are time sensitive, and was unsure how to proceed with
appeals. 845 N.W.2d at 64. Similarly, an attorney was found not to have
provided competent representation where he admitted multiple times at a
hearing that he “lacked the experience” to handle a toxic tort case and that
he served no written interrogatories or requests for production of
documents, failed to secure an expert, and took no depositions. Iowa Sup.
Ct. Att’y Disciplinary Bd. v. Beauvais, 948 N.W.2d 505, 512–13 (Iowa
2020).
In sum, the disciplinary rules collectively establish a spectrum of
conduct. At the one end is a mere mistake or error of judgment that does
not amount to a violation of disciplinary rules, in the middle is professional
neglect arising from repeated problems, and at the far end is persistent
and profound professional incompetence. Each category, of course,
shades into the other. It is our responsibility in this case to determine
where Said’s conduct falls on the spectrum under all the facts and
circumstances in his representation of the four immigration clients.
3. Reasonable diligence and promptness. Iowa Rule of Professional
Conduct 32:1.3 requires an attorney to handle client matters with
reasonable diligence and promptness. A single missed deadline does not
establish a violation of the rule. See, e.g., Iowa Sup. Ct. Att’y Disciplinary
Bd. v. Morse, 887 N.W.2d 131, 141 (Iowa 2016); Iowa Sup. Ct. Att’y
Disciplinary Bd. v. Hedgecoth, 862 N.W.2d 354, 361 (Iowa 2015). But the
mere fact that an attorney has a busy practice does not excuse violations.
An attorney must manage caseloads so that they may handle cases
35
competently and with reasonable promptness and diligence. Akron Bar
Ass’n v. DeLoach, 34 N.E.3d 88, 91 (Ohio 2015) (per curiam).
4. Attorney client disclosures and communications. The Iowa Rules
of Professional Conduct contain three provisions related to attorney client
disclosures and communications. Iowa Rule of Professional Conduct
32:1.4(a)(2) requires an attorney to reasonably consult with the client to
achieve the client’s objectives. Rule 32:1.4(b) requires an attorney to
communicate with a client to the extent necessary to allow the client to
make informed decisions. Rule 32:1.4(a)(5) provides it is an ethical
violation to fail to consult with a client regarding relevant limitations on
the lawyer’s conduct.
Under our cases, an attorney must provide a client with sufficient
guidance to permit the client to make an informed decision. See, e.g., Iowa
Sup. Ct. Att’y Disciplinary Bd. v. Turner, 918 N.W.2d 130, 146 (Iowa 2018)
(holding that an attorney must provide the client with sufficient guidance
to make an informed decision on which bankruptcy to file). Similarly, we
have held that an attorney must keep a client sufficiently informed so that
the client may participate in the development of their case. Iowa Sup. Ct.
Att’y Disciplinary Bd. v. Noel, 933 N.W.2d 190, 200–01 (Iowa 2019). We
have applied these principles in several immigration law cases. See, e.g.,
Said, 869 N.W.2d at 195 (determining that failure to advise client of
dismissal and missed deadline constituted ethics violations); Iowa Sup. Ct.
Att’y Disciplinary Bd. v. Mendez, 855 N.W.2d 156, 170 (Iowa 2014)
(determining that a failure to advise of missed deadline constituted an
ethics violation); Iowa Sup. Ct. Att’y Disciplinary Bd. v. Yang, 821 N.W.2d
425, 430 (Iowa 2012) (determining that the failure to explain to client
grounds for reopening proceeding constituted an ethics violation).
36
In addition, an attorney is expected to periodically communicate
with clients about the status of representation. For instance, an attorney
who failed to communicate with a client for four months was found to
violate rule 32:1.4(a)(3). Iowa Sup. Ct. Att’y Disciplinary Bd. v. Weiland,
885 N.W.2d 198, 209 (Iowa 2016); see also Iowa Sup. Ct. Att’y Disciplinary
Bd. v. Barry, 908 N.W.2d 217, 224 (Iowa 2018) (determining that the
failure, over a one-year period of time, to inform client of status of divorce
petition constituted an ethics violation); Iowa Sup. Ct. Att’y Disciplinary
Bd. v. Dolezal, 796 N.W.2d 910, 917 (Iowa 2011) (determining that the
failure to communicate over a period of two years despite client efforts to
contact the attorney constituted an ethics violation).
5. Conflict of interest. Rule 32:1.7(a) provides that an attorney may
not represent a client when the attorney has a concurrent conflict of
interest. Ordinarily, an attorney, of course, cannot simultaneously
represent a client and be a witness against the client in a proceeding. See
Iowa R. of Prof’l Conduct 32:3.7. In one case, we approved the action of
the district court removing an attorney from a case before trial where the
attorney would likely have been called as a witness. State v. Vanover, 559
N.W.2d 618, 629–31(Iowa 1997). Generally speaking, however, an
attorney is only considered a necessary witness in a proceeding and
therefore subject to disqualification as the advocate in the same
proceeding if (1) the testimony is material to the issues being litigated, (2)
the evidence is unobtainable elsewhere, and (3) the testimony is or may be
prejudicial to the client. See United States v. Melton, 948 F. Supp. 2d 998,
1006–08 (N.D. Iowa 2013).
The court of appeals already addressed the implications of Said
being listed as a witness in the criminal proceedings involving Ramirez
Fernandez. Fernandez, 2018 WL 3471591 at *8–9. According to the court
37
of appeals, Said had a current conflict of interest because he might have
had an interest in resolving the matter before the potential conflict ripened.
Id. Further, according to the court of appeals, Said may have not
considered potential defense tactics, including seeking to suppress
statements made to the DOT investigator based on breach of attorney
client privilege. Id. at *9.
6. Unreasonable attorney fees. Under Iowa Rule of Professional
Conduct 32:1.5(a), an attorney may not charge or collect an “unreasonable
fee.” The rule provides a multifactored test to determine reasonableness,
including,
(1) the time and labor required, the novelty and
difficulty of the questions involved, and the skill requisite to
perform the legal service properly;
(2) the likelihood, if apparent to the client, that the
acceptance of the particular employment will preclude other
employment by the lawyer;
(3) the fee customarily charged in the locality for
similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the
circumstances;
(6) the nature and length of the professional
relationship with the client;
(7) the experience, reputation, and ability of the lawyer
or lawyers performing the services; and
(8) whether the fee is fixed or contingent.
Id.
There are other disciplinary rules that may implicate the payments
of fees; for example, those related to safekeeping of client property for fee
payments made before they are earned. Iowa R. of Prof’l Conduct 32:1.15.
In this case, however, the Board only alleged a violation of the fee as
38
unreasonable under rule 32:1.5(a). We thus have no occasion to consider
other potential violations related to fees, particularly those that might be
associated with “flat fees.” Iowa Sup. Ct. Bd. of Pro. Ethics & Conduct v.
Frerichs, 671 N.W.2d 470, 475–76 (Iowa 2003).
IV. Application of Disciplinary Rules to the Four Complainants.
A. Issues Arising from Said’s Representation of Ramirez
Fernandez.
1. Competence. The first disciplinary charge brought by the Board
is that Said incompetently represented Ramirez Fernandez. Iowa R. Prof’l
Conduct 32:1.1. First, the Board maintains that Said demonstrated
incompetence when he encouraged Ramirez Fernandez to self-report his
use of a false Social Security number to register automobiles as part of an
effort to obtain a driver’s license from the DOT. Second, the Board
maintained that Said was incompetent when he advised Ramirez
Fernandez to plead guilty to fraudulent practice in the fourth degree.
According to the Board, Said knew that Ramirez Fernandez, by self-
reporting his use of a false Social Security number to register vehicles,
would have no defense to a charge of fraudulent practice in the third
degree under Iowa Code section 714.11. Further, the Board argued that
based on his experience, Said knew that Ramirez Fernandez would be cited
by the DOT for fraudulent practice in the third degree, that the best plea
bargain he could obtain from the Polk County Attorney’s Office was for
fraudulent practice in the fourth degree, that the crime of fraudulent
practice in the fourth degree was certainly a crime involving moral
turpitude under prevailing immigration law, and that pleading guilty to a
crime involving moral turpitude would prevent him from pursuing his
application for cancelation of removal. As a result, the Board claimed that
39
Said’s course of action virtually ensured that his cancellation of removal
effort would fail with little upside to Ramirez Fernandez.
Said countered that his client was in a difficult position and that he
was trying to do his best to extricate him. Ramirez Fernandez was
unlawfully in the United States and had committed a crime when he used
a false Social Security number to register vehicles. By stepping forward
on the false use of Social Security numbers, Said argued that his client
could obtain a valid driver’s license, which would prevent him from being
arrested for driving without a license. Such an arrest, according to Said,
could lead to revocation of his prior release by immigration authorities.
Said recognized that pleading guilty to fraudulent practice in the
fourth degree could be considered a crime involving moral turpitude. Said
claimed, however, that he would contest such a finding, including
launching an appeal in the Supreme Court of the United States.
By obtaining a driver’s license, Said asserted that Ramirez
Fernandez avoided the prospect of being charged with driving without a
license while operating a motor vehicle. The upside, however, was limited.
In the past, when Ramirez Fernandez was found to be driving without a
license, he was simply issued a citation.
Exactly what amounts to a crime involving moral turpitude has been
subject to considerable debate in the caselaw. The experts battled it out
on that question. In our view, we tend to side with Pritchett’s view that
recent immigration cases involving fraud, including those coming out of
the Omaha immigration court and the Eighth Circuit, show little prospect
of avoiding a classification as a crime involving moral turpitude.
But it cannot be said that the prospect is zero. The United States
Supreme Court in recent years has decided cases somewhat favorable
toward the legal position advocated by illegal immigrants. See, e.g.,
40
Mathis, ___ U.S. ___, 136 S. Ct. at 2254 (discussing the proper use of the
modified categorical approach and stating that “it is not to be repurposed
as a technique for discovering whether a defendant's prior conviction, even
though for a too-broad crime, rested on facts (or otherwise said, involved
means) that also could have satisfied the elements of a generic offense.”);
Descamps v. United States, 570 U.S. 254, 270–71, 133 S. Ct. 2276, 2289
(2013) (discussing divisibility of a criminal statute in determining whether
past conviction is for a violent felony). A zealous attorney could argue in
good faith that the cases declaring all crimes involving fraud amount to a
crime involving moral turpitude are simply wrong.
The fact that Said did not seem to understand how long the odds
are on the moral turpitude question raises a question of whether he
engaged in competent analysis of the factual or legal elements of the
matter. Iowa Sup. Ct. Att’y Disciplinary Bd. v. Thomas, 794 N.W.2d 290,
293 (Iowa 2011). Further, it must be observed that time was on the side
of Ramirez Fernandez. The DOT official responsible for enforcement
believed that the statute of limitations related to the fraudulent use of a
Social Security number to title a vehicle was three years. All Ramirez
Fernandez needed to do was wait until the time had expired and then apply
for a driver’s license. Said, however, did not tell Ramirez Fernandez of the
option of not driving until he was in the clear.
But the prospects of prevailing on such an argument before an
immigration judge would be quite low in light of prior rulings, precedents
of the Board of Immigration Appeals, and decisions of the Eighth Circuit.
In order to succeed, there would have to be some significant development,
such as an intervening favorable United States Supreme Court precedent
that restructured the analysis of what amounts to a crime involving moral
41
turpitude, or perhaps a change in the Executive Branch leading to a
different approach to prosecutorial discretion.
The commission declined to make a finding that the decision to
proceed with a driver’s license application after disclosing false use of a
Social Security number violated our rule regarding incompetence. But it
does not seem a very sound approach. The upside appears minimal, while
the downside is weighty. It may amount to an act of malpractice. But
given the record developed in this case, it may be more accurately
characterized as questionable judgment rather than incompetence. We
therefore agree with the commission that the Board failed to show that
Said was incompetent by a preponderance of the evidence under Iowa Rule
of Professional Conduct 32:1.1.
2. Informed consent/reasonable consultation. The Board argued
that Said failed to adequately disclose and communicate to Ramirez
Fernandez the risks of his recommended course of action, and as a result,
Said violated our disciplinary rules relating to informed consent and
reasonable consultation. Iowa R. of Prof’l Conduct 32:1.4(a)(1)–(2). First,
the Board alleged that before Ramirez Fernandez decided to seek a driver’s
license and disclose his prior use of a false Social Security number, Said
should have explained the weighty immigration risks and explored the
possibility of Ramirez Fernandez delaying seeking a driver’s license until
the statute of limitations expired on any potential fraudulent practice
charge. Second, the Board reasoned that during the plea bargaining stage
of the fraudulent practice proceeding, Said should have explained to
Ramirez Fernandez the likely negative impact of the plea deal on the
cancellation of removal.
We agree with the commission that Said did not adequately inform
Ramirez Fernandez about the risks of his decision to seek a driver’s license
42
and Said’s plan to disclose his false use of a Social Security number.
Ramirez Fernandez was entitled to have a full understanding that while
there was an upside to obtaining a driver’s license, namely, he could drive
legally without fear or arrest for unlicensed driving, there was a clear and
palpable downside that his application for cancellation of removal could
be irreparably or materially damaged by a criminal prosecution related to
the false use of a Social Security number. Diaz, 896 N.W.2d at 732.
He further failed to provide adequate disclosures prior to Ramirez
Fernandez pleading guilty. In this case, it may not be a complete certainty
that pleading guilty to fraudulent practice in the fourth degree would
foreclose pursuing cancellation of removal, but it would obviously and
indisputably have been a very substantial problem for Ramirez Fernandez
in his immigration proceedings. He was entitled to know that before
making important decisions.
We therefore agree with the commission that the Board established
by a convincing preponderance of the evidence that Said violated Iowa
Rules of Professional Conduct 32:1.4(a)(1) and 32:1.4(a)(2) in his
representation of Ramirez Fernandez.
3. Unauthorized disclosure of client information. The Board charged
that Said provided client information to the DOT without the consent of
Ramirez Fernandez in violation of Iowa Rule of Professional Conduct
32:1.6(a). Based on our de novo review of the record, Said did not obtain
his client’s consent before he communicated with DOT investigator Sharr
about the use of false Social Security numbers to title vehicles. We
therefore agree with the commission that the Board established by a
convincing preponderance of the evidence that Said violated Iowa Rule of
Professional Conduct 32:1.6(a) in his representation of Ramirez
Fernandez.
43
4. Concurrent conflict. The Board alleges that Said violated our
rules regarding concurrent conflict by representing Ramirez Fernandez in
connection with the fraudulent practice charge when Said was listed as a
witness. Iowa R. of Prof’l Conduct 32:1.7(a)(2). The Board maintains that
Said could not represent Ramirez Fernandez in a criminal matter when he
was going to be called as a witness in the same proceeding. Said argues
that although he was listed as a witness, there was not a realistic prospect
that he would actually be called as he was not a necessary witness to an
undisputed fact. The commission rejected the Board’s argument.
There is authority for the proposition that an attorney cannot
represent a client in a proceeding where the attorney will be called as a
witness. Vanover, 559 N.W.2d at 629–31. However, Said was not a
necessary witness in the criminal proceeding. The state had all the
evidence it needed through the admissions of Ramirez Fernandez, the
testimony of its investigator, and its own records to show that Ramirez
Fernandez had used a false Social Security number in the past to title
vehicles. As a result, there was no realistic prospect that Said would be
called as a witness against his client. See Melton, 948 F. Supp.2d at 1006–
08.
But that is not the end of the issue. Even if there is no present basis
for disqualification, the question remains whether Said should have
disclosed to Ramirez Fernandez the potential conflict and its impact on his
current reputation. See Fernandez, 2018 WL 3471591 at *8-9 (noting that
the lawyer faced a conflict with the client when listed as a witness and did
not seek waiver); see also Iowa Sup. Ct. Att’y Disciplinary Bd. v. Qualley,
828 N.W.2d 282, 289–91 (Iowa 2013) (finding violation of Iowa Rule of
Professional Conduct 32:1.4(a) where attorney did not advise client of
conflict of interest).
44
We conclude that Said should have disclosed to his client that he
was listed as a witness in the criminal proceeding and sought a waiver of
the potential conflict. It may be that the client would have voluntarily
signed the waiver as inconsequential. But Said was required to provide
the client with sufficient information to allow the client to be sufficiently
informed to decide whether to waive the potential conflict or seek new
counsel.
5. Unreasonable attorney fees. In this case, Said utilized a fee
contract that charged a flat fee of $6000 for services in the Ramirez
Fernandez immigration case but called for additional fees on an hourly
basis should the matter become contested.
On December 23, 2013, Said was admonished for using a fee
contract with similar language. The letter of admonition noted that it is
hardly plausible that a matter involving deportation would be uncontested
and, as a result, the fee agreement was misleading in suggesting the
possibility that the flat fee would cover all services. The letter of
admonition further noted that the agreement “in effect allowed you to take
a minimum, earned-upon-receipt retainer fee before performing significant
work on the case, and then to take an hourly fee for work actually
performed.” The Board gave Said the benefit of the doubt that he did not
intend to mislead the complainant or seek unreasonable fees. As a result,
the Board concluded that an admonition would be sufficient for Said’s
charging of an unreasonable fee in violation of Iowa Rule of Professional
Conduct 32:1.5(a) and his failure to explain the basis of the fee at the
outset of representation in violation of Iowa Rule of Professional Conduct
32:1.5(b). The letter further admonished Said to “immediately desist from
using fee agreements which are misleading to the client and which provide
45
you the ability to claim an earned-upon-receipt retainer fee without yet
having performed substantial work.”
Later, on June 25, 2015, Said was admonished in connection with
premature collection of a flat fee. The Board noted that while Said again
used a misleading form, the form was utilized prior to the December 23,
2013 admonition and further action was not warranted. The
correspondence made it clear, however, that the Board disapproved of the
fee agreement language Said used in flat-fee immigration cases.
Like the fee agreement involved in the June 25, 2015 letter, the fee
arrangement here was entered into by the parties prior to the
December 23, 2013 admonition. We do not believe that the addition of
another objectionable form fee contract would have led to a different result
in the prior disciplinary proceedings and we impose no additional sanction
in this case.
With respect to representation in his criminal matter, Said charged
a flat fee of $2000. The representation continued over a period of months.
Under the totality of facts and circumstances, we agree with the
commission that the Board failed to show, by a convincing preponderance
of the evidence, that Said’s flat fee of $2000 to represent Ramirez
Fernandez was unreasonable in violation of Iowa Rule of Professional
Conduct 32:1.5.
B. Issues Arising from Said’s Representation of Hernandez
Ruiz.
1. Competence. The competence issues related to Said’s
representation of Hernandez Ruiz are identical to those alleged in
connection with Said’s representation of Ramirez Fernandez. Having
found no violation of Iowa Rule of Professional Conduct 32:1.1 in Said’s
representation of Ramirez Fernandez, we also find no violation here.
46
2. Informed consent and inadequate disclosure. As with Ramirez
Fernandez, we also find that that Said failed to adequately disclose and
communicate with his client regarding the immigration consequences of
pleading guilty to fraudulent practice in the fourth degree. It is true, of
course, the case is differentiated from Ramirez Fernandez because in that
case, Said knew, in advance, that Ramirez Fernandez had used a false
Social Security number to register vehicles in the past. In the Hernandez
Ruiz matter, Said did not know that his client had used a false Social
Security number when he traveled to the DOT to seek a driver’s license.
The commission found this key difference dispositive when it found that
Said did not violate the ethical rules regarding informed consent and
inadequate disclosure in his representation of Hernandez Ruiz.
But even though Said was not aware of the use of false Social
Security numbers by Hernandez Ruiz when he first went to the DOT, the
ethical obligations of Said toward his client did not stop at that point.
Once the DOT was alerted to the situation, Hernandez Ruiz was still
entitled to be fully informed by his lawyer of the consequences of any
subsequent plea agreement and the possible choice of making the state
prove its case in the criminal proceeding.
While Hernandez Ruiz may have been generally informed by Said
and the court that his guilty plea could have negative immigration
consequences, Said had more specific knowledge than reflected in this
general admonition. Said knew that Hernandez Ruiz had a pending
cancellation application and that by pleading guilty to fraudulent practice
in the fourth degree, the immigration judge would almost certainly find
that it was a crime involving moral turpitude and that Hernandez Ruiz
could not seek cancellation of removal. Like Ramirez Fernandez,
Hernandez Ruiz was entitled to know that before he pled guilty.
47
We therefore conclude that the Board proved by a convincing
preponderance of the evidence that Said violated Iowa Rules of
Professional Conduct 32:1.4(a)(1) and 32:1.4(a)(2) in his representation of
Hernandez Ruiz.
3. Revealing information without informed consent. The Board
charged that, as in the case of Ramirez Fernandez, Said revealed
information to the DOT without his client’s informed consent. The record
shows, however, that Hernandez Ruiz first revealed information about his
use of a false Social Security number to title a vehicle to the DOT staff
without any involvement of Said. Any further disclosures by Said were
simply consistent with his client’s previous disclosure. Under these
narrow circumstances, we do not find that the Board established by a
convincing preponderance of the evidence that Said violated Iowa Rule of
Professional Conduct 32:1.6(a) in his representation of Hernandez Ruiz.
4. Concurrent conflict. The Board’s claim of concurrent conflict with
respect to Hernandez Ruiz is parallel to its charge against Said based on
his representation of Ramirez Fernandez. As in the Ramirez Fernandez
matter, we find Said violated Iowa Rule of Professional Conduct
32:1.7(a)(2) by not disclosing the potential conflict to his client and Iowa
Rule of Professional Conduct 32:1.7(b)(4) for not obtaining informed
consent to any potential conflict.
5. Unreasonable attorney fees. The Board claims that the flat fee of
$2000 charged by Said to represent Hernandez Ruiz in the criminal
proceeding was unreasonable under Iowa Rule of Professional Conduct
32:1.5(a). We note that the commission concluded that Said’s fees were
not unreasonable. It is true, as it turned out, that the work performed by
Said under the fee agreement was done over no more than a two-day
period. At the time of contract execution, however, Said was at risk that
48
the plea negotiations could have been more complicated and extended over
a longer period of time. It is in the nature of flat-fee agreements that
sometimes a lawyer receives a premium for work performed; while on other
occasions, the work is far less profitable. Like the commission, we decline
to find the flat-fee agreement unreasonable under all the circumstances in
this case.
C. Issues Arising From Said’s Representation of Irma Luna
Carrillo.
1. Competence. The Board charged that Said was incompetent for
undertaking representation of Luna Carrillo in connection with her
application of a U visa when she had no chance of success under Iowa
Rule of Professional Conduct 32:1.1. According to the Board, this was
frivolous and, as a result, the fee charged for a frivolous matter is
unreasonable and in violation of our disciplinary rules.
But the expert testimony was contradictory on this point. To some
extent, the issue reveals an attorney’s risk tolerance or willingness to tug
and pull at the edges of the law. In immigration law, asserting long odds
claims may be all that a client has. We are inclined to agree with expert
Williamson on this one, namely, that Said’s approach was “clever” in a
positive sense and might have a chance if properly developed.
The client, of course, ordinarily should be reasonably advised by
counsel about the fact that such an application would be a long shot. The
Board makes no claim, however, that Said breached a disciplinary rule by
failing to provide sufficient information to allow Luna Carrillo to make an
informed decision about whether to proceed with the U visa application.
2. Unreasonable attorney fees. The Board alleged that Said charged
Luna Carrillo an unreasonable fee under Iowa Rule of Professional
Conduct 32:1.5(a). Whether the fee was excessive turns on the question
49
of whether pursuit of a U visa application was frivolous. In our view, given
the proverbial battle of experts, we are not prepared to say the application
was frivolous. Once again, however, while Said’s communications with his
client may have been less than optimum, we are not prepared to label his
efforts as frivolous.
D. Issues Arising from Said’s Representation of Susan Alba
Araniega.
1. Incompetent representation and reasonable diligence and
promptness. The Board charged that Said performed incompetently in
connection with the preparation of a U visa application for Alba Araniega
under Iowa Rule of Professional Conduct 32:1.1. The Board also suggested
that because the preparation of the U visa was taking months, Said acted
without reasonable diligence or promptness in violation of Iowa Rule of
Professional Conduct 32:1.3(b).
Based on our review of the record, we find the Board failed to prove
by a convincing preponderance of the evidence either of the charges. While
it is true that the application may have taken longer than anticipated to
prepare, the file was generally active during the time frame of the
representation. Some of the delay was clearly due to the client, who did
not provide Said with her statement until many months into the
representation. While the matter was complicated by Said’s suspension,
other lawyers in the office worked the file in his absence. While the six-
month time frame for a law enforcement certificate expired, the experts
were divided on whether the best course of action was to file an incomplete
application or to get a new certification and file a complete application.
It is true, of course, that because of the delay, the law enforcement
certification expired. But the certification was signed by a local judge, and
Said had every reason to think a new certificate could be obtained. Given
50
the conflicting expert testimony on the best course of action, we do not
think the Board has demonstrated that Said was incompetent in not filing
an incomplete form with immigration authorities.
In the background, there may be a question of whether Said has
taken on too many clients to handle properly. His disciplinary history
suggests he may be prone to shortcuts. But in this particular case, on the
record presented, we do not think the Board has carried its burden of
showing a violation of our disciplinary rule related to promptness and
diligence by a convincing preponderance of the evidence.
2. Unreasonable attorney fees. The Board alleged that in connection
with his representation of Alba Araniega, Said charged an unreasonable
fee and failed to deliver the clients funds to which the client is entitled.
But Said produced an itemized statement showing work on the file that
was not challenged at the hearing. Based on our review of the record, we,
like the commission, conclude that the Board failed to establish by a
convincing preponderance of the evidence that Said charged Alba Araniega
an unreasonable fee.
V. Appropriate Sanction.
We now consider the appropriate sanction in this case. As can be
seen above, we have found that Said violated several of our disciplinary
rules in connection with the representation of Ramirez Fernandez and
Hernandez Ruiz. Although we have declined to find Said incompetent, the
record reveals that he did not involve his clients appropriately in critical
decisions that had the potential to profoundly affect their future. The
record reflects that in these cases, Said did not take the time to properly
provide his clients with the understanding necessary to permit them to
determine the most appropriate course of conduct to protect their
interests.
51
As indicated by the commission, the main mitigating factor here is
the fact that Said represents an underserved population facing the most
difficult legal problems. This kind of representation is not for every lawyer.
It certainly takes grit, stamina, and a tolerance of battle in the face of very
long odds. In Said’s prior disciplinary matter, we recognized his service to
a vulnerable population as a mitigation factor. Said, 896 N.W.2d at 194.
We today also recognize Said’s service as a mitigating factor.
Said also testified that he has taken internal steps to prevent further
disciplinary problems. In particular, he seeks written consents from
clients related to certain proposed courses of action. It is not entirely clear
whether such written consents are designed to paper the file or improve
Said’s communications with clients. We give him the benefit of the doubt,
however, and regard his internal changes in his manner of practice as a
mitigating factor in this case. Iowa Sup. Ct. Att’y Disciplinary Bd. v. Nelson,
838 N.W.2d 528, 543 (Iowa 2013).
But the practice of law requires that an attorney have sufficient
patience and awareness to ensure necessary and desirable client
participation in the attorney’s representation. In that regard, the main
aggravating feature in this case is Said’s disciplinary record. In 2015, Said
was suspended for a number of violations, including his failure to keep
client’s informed about their case and failing to explain matters to a client
in violation of Iowa Rule of Professional Conduct 32:1.4(a)(3) and
subsection (b). Here we are again with similar issues. And, he has
received six private admonitions from the Board on a wide range of issues
including failure to provide itemized billings, conflicts of interest, filing
frivolous applications, lack of diligence, charging an unreasonable fee, and
using a misleading term in fee contracts. Such private admonitions are
52
not discipline, but they put Said on notice of his tendency to have
unsatisfactory relationships with clients.
Plainly, Said’s prior disciplinary record is an aggravating factor.
Iowa Sup. Ct. Att’y Disciplinary Bd. v. Hier, 937 N.W.2d 309, 317 (Iowa
2020); Iowa Sup. Ct. Att’y Disciplinary Bd. v. Parrish, 925 N.W.2d 163, 181
(Iowa 2019). Another aggravating factor is Said’s substantial experience
as an attorney. Parrish, 925 N.W. 2d at 181. In addition, we cannot
overlook what the commission characterized as his “glib” attitude toward
his former clients and the disciplinary proceedings. Our review of the
record suggests that Said is irritated by the oversight of the practice of law
imposed by our disciplinary rules.
Said makes client decisions on his own, too quickly, and without
adequate client involvement. This behavior needs to stop. Based on the
totality of circumstances, we conclude a suspension of thirty days is
required to once again emphasize to Said that what the client thinks
matters.
VI. Conclusion.
For the above reasons, we suspend the license of Said to practice
law for thirty days. The suspension applies to all facets of the practice of
law. Iowa Ct. R. 34.23(3). Said must comply with the notification
requirements of Iowa Court Rule 34.24, and costs are taxed against him
pursuant to Iowa Court Rule 36.24(1). Unless the Board objects, Said’s
license will be automatically reinstated on the day after the thirty-day
suspension period expires if all costs have been paid. Iowa Ct. R. 34.23(2).
LICENSE SUSPENDED.
All justices concur except McDermott, J., who takes no part.