STATEWIDE GRIEVANCE COMMITTEE
Phanor Pena, Complainant vs. William Fernandez, Respondent
Grievance Complaint #05-0077
Pursuant to Practice Book §2-35(c), the undersigned, duly-appointed reviewing committee of the Statewide Grievance Committee, conducted a hearing at the Superior Court, 1061 Main Street, Bridgeport Connecticut on October 12, 2005. The hearing addressed the record of the complaint filed on January 24, 2005, and the probable cause determination filed by the Danbury Judicial District Grievance Panel on April 1, 2005, finding that there existed probable cause that the Respondent violated Rule 8.5 of the Rules of Professional Conduct and Practice Book §2-32(a)(1). The hearing also addressed the additional determination of probable cause issued by a reviewing committee of the Statewide Grievance Committee on July 25, 2005, finding that there existed probable cause that the Respondent violated Rule 1.4(a) of the Rules of Professional Conduct.
Notice of the hearing was mailed to the Complainant, to the Respondent and to the Office of the Chief Disciplinary Counsel on September 1, 2005. The Complainant and the Respondent appeared and testified at the hearing. Pursuant to Practice Book §2-35(d), Assistant Disciplinary Counsel Patricia A. King and Legal Intern John F. Campbell pursued the matter before this reviewing committee.
This reviewing committee finds the following facts by clear and convincing evidence:
In or around December of 2003, the Complainant retained the Respondent to represent him in an immigration matter. At the time of the retention, the Complainant, a citizen of Colombia, was subject to a deportation order. That order had been appealed unsuccessfully through the Second Circuit Court of Appeals. A final motion to reopen the deportation file had been denied just before the Complainant retained the Respondent.
The Respondent’s primary focus is on immigration matters and his office is in the State of New York, although his only state court admission is Connecticut. Although the Complainant had exhausted all of his appeals and all deadlines for any further review had passed by the time of the retention, the Respondent agreed to file a motion to reopen for $1500 plus costs. The Complainant paid all or most of this fee although he was never given a fee agreement by the Respondent. On or around March 11, 2004, the Respondent prepared a Motion to Reopen and Stay Deportation. The Respondent provided a copy of the motion to the Complainant but never filed the motion with the immigration court largely because the motion had no chance of being successful. The Respondent never informed the Complainant that the motion had not been filed and never explained to him that the motion would not be filed because it would not be granted. As the Complainant is confined to a wheelchair due to being assaulted repeatedly in Colombia, the Respondent hoped to involve a local politician to assist the Complainant on humanitarian grounds. However, the Respondent did little or nothing to follow through on this idea.
Beginning in 2004, the Complainant encountered difficulty in communicating with the Respondent. Telephone calls were not returned by the Respondent and he missed an appointment with the Complainant and his sister. Thereafter, apart from fee invoices, the Respondent provided no written communication to the Complainant.
The Complainant filed this complaint on January 24, 2005. The Respondent did not answer the grievance complaint. The Respondent attributed his failure to answer as a mistake.
We conclude by clear and convincing evidence that the Respondent engaged in ethical misconduct. We note that although the Respondent’s misconduct occurred in immigration court and he practices in New York, Rule 8.5 of the Rules of Professional Conduct subjects him to the disciplinary authority of Connecticut. We conclude that the Respondent’s communications with his client, both about the status of the motion to reopen and the Complainant’s options, were wholly inadequate. We are especially concerned that the only written communications provided to the Complainant about his case were fee bills and a copy of a motion that was not filed. We conclude that the Respondent’s failure to communicate violated Rule 1.4(a) of the Rules of Professional Conduct. We also conclude by clear and convincing evidence that the Respondent failed to answer the grievance complaint without good cause, in violation of Practice Book §2-32(a)(1).
The Respondent is reprimanded for violating Rule 1.4(a) of the Rules of Professional Conduct and Practice Book §2-32(a)(1). We also order the Respondent to attend in-person and at his expense, six hours of continuing legal education in Professional Responsibility within six months of the date of this decision. The Respondent is further ordered to provide written confirmation of his compliance with this condition to the Statewide Grievance Committee within thirty days of any continuing legal education course attended and completed by him in fulfillment of this order.
DECISION DATE: 12/2/05
Attorney Raymond B. Rubens
Attorney Noble F. Allen
Mr. William J. Carroll