STATEWIDE
GRIEVANCE COMMITTEE
Miguel Garcia Carillo, Complainant vs. Walter Burrier, Respondent
Grievance
Complaint #02-0129
DECISION
Pursuant to Practice Book §2-35, the
undersigned, duly-appointed reviewing committee of the Statewide Grievance
Committee, conducted a hearing at the Superior Court, 1 Court Street,
Middletown, Connecticut on February 13, 2003.
The hearing addressed the record of the complaint filed on August 6, 2002, and the
probable cause determination filed by the Tolland Judicial District Grievance
Panel on October 25,
2002,
finding that there existed probable cause that the Respondent violated Rules
1.1, 1.3 and 1.4 of the Rules of Professional Conduct.
Notice of the hearing was mailed to the
Complainant and to the Respondent on December
30, 2002. In a letter dated January 8, 2003, the
Respondent requested a continuance of the hearing. By letter dated January
14, 2003, we denied the Respondent’s request. The Complainant did not appear at the
hearing; however, the Complainant did inform this reviewing committee of his
inability to attend the hearing by letter dated January
8, 2003 due to financial considerations. The Respondent,
represented by Attorney Alice K. Berke, appeared at
the hearing and gave testimony.
This reviewing committee finds the
following facts by clear and convincing evidence:
The Complainant is a resident of California. Sometime in the year 2000, the Complainant
and his wife contracted with Cecilia Bellinger of CB Immigration
Services, an immigration consultant (or “notario”),
for preparation of Immigration and Naturalization Service [hereinafter INS]
applications and representation at any hearings on their applications. The Complainant and his wife paid the filing
fee ($110) and Ms. Bellinger’s fee of $5800, which
included attorney’s fees. Additionally,
they gave her all of the documentation in support of their applications.
Ms. Bellinger
thereafter contacted the Respondent and requested that he represent the Complainant
and his wife in their immigration case for cancellation of removal
proceedings. The Respondent agreed to
this representation. To prove their
case, the Complainant and his wife needed to establish that they had been
living in the United States for at least
ten years since the date they entered this country. They were also required to establish that
they had good moral character. Finally,
the Complainant and his wife had to prove that their return to Mexico would result
in an unusual hardship on their minor children who were United States citizens.
The Respondent appeared in court on
behalf of the Complainant and his wife on five occasions; namely, August 21, 2000, August 25, 2000, October 13, 2000, April 10, 2001 and December 6, 2001. The August 21 and 25, 2000 hearings involved
purely procedural matters and did not involve the substance of the case. The Respondent filed the applications on
behalf of the Complainant and his wife at the October
13, 2000 hearing. A merits
hearing was scheduled for May 24, 2001. On April
10, 2001, the Respondent argued for and received a continuance of
the May 24, 2001 hearing date
as he was scheduled to be on trial in an expedited asylum matter. The merits hearing was continued to December 6, 2001. However, the Respondent did not inform the
Complainant and his wife of the continuance; rather, Ms. Bellinger
informed the Complainant and his wife of the continuance. The Complainant attempted to contact the
Respondent prior to the December 6,
2001
hearing, but was unsuccessful.
On December
5, 2001, the day before the merits hearing, Ms. Bellinger
telephoned the Complainant and told him that she needed additional
documentation. The Complainant met Ms. Bellinger at her office with whatever documentation he had
and asked to speak with the Respondent.
Ms. Bellinger told the Complainant that the
Respondent was unavailable.
The Respondent did not contact the
Complainant and his wife before the December
6, 2001 hearing, nor did he prepare them for the hearing or tell them
what documents were needed. On the day
of the hearing, the Respondent asked the Complainant and his wife if they
brought their children to testify as witnesses.
They said no, as they were not instructed to do so. The Honorable Richard D. Walton, Immigration
Judge, denied the Complainants’ request for cancellation of the removal
proceedings and ordered the Complainants removed from the United States. The Respondent filed an appeal on their
behalf that same day.
A review of the transcript from the December 6, 2001 hearing
revealed the following. Judge Walton found that the Complainant and his wife
had lived in the United States for at least
ten years and had good moral character.
The proper documentation regarding hardship, however, was not filed prior
to the hearing. Although the Respondent
was allowed to refer to the documents during the hearing, Judge Walton
expressly indicated more than once that the submission of the documents was
untimely and that the documents were not admitted into evidence. Additionally, Judge Walton took a recess to
allow the Respondent an opportunity to review and organize certain documents
with the Complainant and his wife.
Despite his previous representation to the court that there would be
three or four witnesses, the Respondent failed to present any witnesses other
than the Complainant and his wife. Judge
Walton denied the Respondent’s oral request for a continuance to present an
expert witness regarding a minor child’s speech problem, openly criticizing the
Respondent for not having prepared the case properly. Finally, the Respondent questioned Judge
Walton on the record regarding the proper procedure for motions to reopen and
appeals, and Judge Walton instructed the Respondent that that was a legal
question the Respondent had to answer for himself.
After the December
6, 2001 hearing, the Complainant and his wife hired Attorney Rae Halperin to represent them.
In an undated letter to Attorney Halperin, the
Respondent outlined the work he performed on behalf of the Complainant and his
wife. The Respondent maintained that he
told the Complainant and his wife after the initial hearing what documents were
needed, and that he did not meet with them before the December 6, 2001 hearing
because he was overwhelmed with work.
Moreover, the Respondent acknowledged that he neglected to properly
prepare the Complainant and his wife for the December
6, 2001 hearing, as well as the possibility that his failure in
this regard resulted in the denial of their applications.
This reviewing committee also considered
the following:
The Complainant maintained that he and
his wife only met with the Respondent for approximately five minutes before
their initial hearing and signed an authorization form for the Respondent to
represent them. The Complainant denied
that the Respondent advised him or his wife regarding proper documentation or
expert witnesses. Moreover, the
Complainant denied that the Respondent informed him or his wife of the
continuance of the May 24, 2001 hearing.
In his written response to the grievance
complaints, the Respondent denied that he had any business connection with Ms. Bellinger or CB Immigration Services other than Ms. Bellinger’s referral of the Complainant and his wife to him
for representation. The Respondent
maintained that he telephoned Ms. Bellinger,
confirmed that the Complainant and his wife had retained her services, and was
satisfied that Ms. Bellinger’s office was experienced
in immigration matters and knew what evidence was needed to properly present
the case. The Respondent claimed that,
at the end of April 2001, he informed the Complainant and Ms. Bellinger of the continuance of the May 24, 2001 hearing. The Respondent also claimed that, although
Ms. Bellinger informed him at that time that the documentation
was not in order, she assured him that the proper documentation would be ready
and the Complainant and his wife would present themselves for preparation by
the Respondent in November of 2001. The
Respondent indicated that he does not do the evidentiary legwork in immigration
cases, and maintained that the Complainant and his wife failed to follow his
instructions regarding documentation and preparation. Finally, the Respondent maintained that the
court accepted and considered the documentation presented at the December 6, 2001 hearing.
The Respondent testified that he
“briefly” explained to the Complainant and his wife what documentation was
needed to prove their case and that he instructed them to bring their children
to the hearing to testify as witnesses.
However, the Respondent admitted that he did not go into “great detail”
with the Complainant and his wife during these discussions, nor did he put
anything in writing to confirm these discussions. The Respondent insisted that he gave his
business card to the Complainant and his wife and instructed them to telephone
his office to schedule an interview before the merits hearing. The Respondent stressed that neither the
Complainant nor his wife contacted him; however, he admitted that he did not
contact the Complainant or his wife either.
The Respondent admitted that he did not know until the December 6, 2001 hearing that
one of the Complainant’s minor children had a speech problem. Although the Respondent testified that Ms. Bellinger filed all the necessary documentation, he also
testified that a number of reports regarding the minor children were admitted
into evidence the day of the hearing.
The Respondent maintained that the
Complainant and his wife’s applications were denied because they did not
establish an unusual hardship. He
indicated that this was mainly due to his lack of evidence regarding the
conditions in Mexico. However, the Respondent stressed that he
referred the Complainant and his wife to an expert who specializes in obtaining
such information. In any event, the Respondent admitted that he “was not
totally prepared” for the Complainant and his wife’s case. Additionally, the Respondent testified that
he had a heavy workload and that he only had one other attorney working with
him at the time in question.
The Respondent further testified that notarios generally are paid anywhere from $2000 to $6000
for document preparation and filing in immigration cases. He insisted that he typically is only paid
$100 to $150 for his representation of immigration clients that are referred
from notarios.
However, the Respondent thereafter admitted that sometimes he receives a
portion of the notario’s fee.
This reviewing committee finds the
following violations of the Rules of Professional Conduct by clear and
convincing evidence:
By failing to provide the Complainant and
his wife with competent representation in their immigration case, the
Respondent violated Rule 1.1 of the Rules of Professional Conduct. Rule 1.1 of the Rules of Professional Conduct
provides, in relevant part: “Competent
representation requires the legal knowledge, skill, thoroughness and
preparation reasonably necessary for the representation.” We find that the Respondent was incompetent
in his representation of the Complainant and his wife in their immigration
case.
The Respondent admitted that he only
spoke with the Complainant and his wife “briefly” about what documentation was
required to prove their case and that he did not go into “great detail” in his
discussion with them. Additionally, the
Respondent claimed to have relied on Ms. Bellinger, a
notario, to gather, organize and file the necessary
documentation on behalf of the Complainant and his wife. However, the Respondent did not periodically
contact Ms. Bellinger and/or the Complainant and his
wife to ensure that the gathering of this documentation was being properly
accomplished. Rather, the Respondent
completely abdicated his responsibility to prepare the Complainant and his
wife’s case to Ms. Bellinger. Unbelievably, he claimed that the Complainant
and his wife were derelict in their duty to themselves to gather the proper
documentation, to engage an expert witness and to contact the Respondent to
schedule an interview before the merits hearing. This lack of preparation and thoroughness on
the Respondent’s behalf is clearly evident upon review of the transcript from
the December 6, 2001 hearing, which
dealt with the merits of the Complainant and his wife’s INS applications. The Respondent attempted to submit documents
at the hearing but his request was denied as untimely. Moreover, the Respondent orally requested a
continuance to obtain an expert witness to follow-up on information revealed in
the documents that he attempted to submit that day. However, Judge Walton denied the Respondent’s
request as there was no apparent reason why such work had not been prepared
before the merits hearing. The Respondent was unprepared for the December 6, 2001 hearing, and
this lack of preparation resulted in the denial of the Complainant and his
wife’s INS applications.
Additionally, the Complainant and his
wife’s case involved high stakes – namely, their ability to remain in the United States or face
deportation to Mexico. The Complainant and his wife had minor
children that were United States citizens, and
they had been living in the United States for at least
ten years. Their futures hinged on the
Respondent and his representation of them at the merits hearing. Given that the Complainant and his wife faced
the grave possibility of being deported, it was incumbent upon the Respondent
to thoroughly prepare their case and not abdicate his responsibility to someone
over whom he had no supervisory authority.
The Respondent also violated Rule 1.3 of
the Rules of Professional Conduct by failing to act with reasonable diligence
and promptness in representing the Complainant and his wife in their
immigration case. The Respondent’s first
court appearance on behalf of the Complainant and his wife was in August of
2000. The Respondent thereafter appeared
in court on their behalf to file their INS applications in October of
2000. Although the merits hearing was
initially scheduled for May 24, 2001, the
Respondent sought and received a continuance until December
6, 2001. As such, the Respondent had approximately one year and
four months from his first court appearance until the merits hearing. The Respondent did nothing in that time frame
to advance the Complainant and his wife’s immigration case other than contact
Ms. Bellinger and rely on her to prepare the
necessary documentation. The Respondent
never spoke with the Complainant or his wife during this period, save his
“brief” discussion with them regarding the documentation they would need to
prove their case. He never met with them
prior to the merits hearing to prepare them to testify, to discuss the
possibility of presenting other witnesses or to review the file to determine
whether the documentation was in order.
Moreover, the Respondent failed to do anything upon learning from Ms. Bellinger in April of 2001 that the documentation was not
ready, despite a hearing date scheduled to go forward in one month. The Respondent essentially abandoned the
Complainant and his wife and refused to perform any work to properly prepare
their case for the merits hearing. Such
conduct is unacceptable.
By failing to keep the Complainant and
his wife reasonably informed about the status of their immigration case, the
Respondent violated Rule 1.4(a) of the Rules of Professional Conduct. We do not
find credible the Respondent’s testimony that he telephoned the Complainant and
his wife and informed them of the continuance of the May
24, 2001 hearing. Rather, we
find that the Respondent never contacted the Complainant or his wife, and that
the Complainant tried unsuccessfully to contact the Respondent prior to the December 6, 2001 hearing. We find that the Respondent never initiated
contact with the Complainant or his wife during his representation of them for
approximately one year and four months.
The Respondent never told the Complainant and his wife in reasonable
detail or reminded them what documentation they needed to provide or what
witnesses they needed to bring to the merits hearing. Additionally, he never provided them with
updates regarding the preparation of their case for the merits hearing.
We are sharply critical of the
Respondent’s conduct in this case, and we are deeply troubled by the
Respondent’s failure to acknowledge the seriousness of his misconduct,
especially in light of the fact that the Respondent’s professional disciplinary
history contains three reprimands.
Although the Respondent acknowledged that he was not “totally” prepared
at the December 6, 2001 hearing, he
repeatedly attempted to shift the blame to the Complainant and his wife for not
properly gathering the necessary documentation, for not engaging an expert
witness and for not scheduling an appointment with him before the merits
hearing. However, there was no
recognition on the Respondent’s behalf regarding his duties and obligations to
the Complainant and his wife as their attorney.
Since we find that the Respondent
violated Rules 1.1, 1.3 and 1.4(a) of the Rules of Professional Conduct, and
given the Respondent’s prior professional disciplinary history and the
seriousness of the misconduct involved in this case, we order that the
Respondent be presented to the Superior Court for the imposition of whatever
discipline the Court may deem appropriate.
___________________________________
Attorney Carl Fortuna, Jr.
____________________________________
Attorney Lorraine D. Eckert
____________________________________
Ms. Mary Ellen Smith