STATEWIDE GRIEVANCE COMMITTEE

Juan Carlos Alvarado, Guadalupe Alvarado, Complainants vs. Walter Burrier, Respondent

Grievance Complaint #05-0537

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, 1061 Main Street, Bridgeport, Connecticut on December 14,. 2005.  The hearing addressed the record of the complaint filed on June 10, 2005 and the probable cause determination filed by the Windham Judicial District Grievance Panel on September 29, 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 Complainants, to the Respondent and to the Office of the Chief Disciplinary Counsel on November 4, 2005. Pursuant to Practice Book §2-35(d), Assistant Disciplinary Counsel Patricia King pursued the matter before this reviewing committee.  The Complainants did not appear at the hearing.  The Respondent, who did not appear at the hearing, was represented by Attorney Craig Smith.

This reviewing committee finds the following facts by clear and convincing evidence:

The Complainants, Mexican nationals, arrived in the United States on November 11, 1990.  The Complainants were residing illegally in California and Complainant Guadalupe had given birth to their children in the United States.  The Complainants initially retained Jose Quinones, who is currently suspended from practicing law in the immigration court, to represent them.  Sometime during Mr. Quinones’ representation, the Complainants were placed in removal proceedings.  After Mr. Quinones’ suspension, the Complainants contacted the Respondent to assist them.  Although the Respondent was licensed to practice law in Connecticut, his practice consisted of immigration cases in California.

On July 21, 2003, the Respondent appeared at the immigration court before the Honorable Judge Ingrid Hyrcenko to present an Application for Cancellation of Removal and
Adjustment of Status for Certain Nonpermanent Residents on behalf of Complainant Juan Carlos. Complainant Juan Carlos appeared at the hearing but Complainant Guadalupe did not attend the hearing.  Unbeknownst to the Complainants, the Court had consolidated the Complainants’ cases.  As a result, the Court issued an oral decision wherein the court dismissed the application as it pertained to Complainant Guadalupe and ordered her to depart the United States voluntarily.  In addition, the Court suggested that Complainant Guadalupe file a motion to reopen with the immigration court in Los Angeles.  The Court also suggested that Complainant Juan Carlos withdraw his application for cancellation of removal and, instead, file a motion for voluntary departure.  The court then advised the Complainant Juan Carlos and the Respondent that it would be amenable to granting a motion to reopen Complainant Guadalupe’s dismissed application.  This would provide the Complainants time to obtain additional documentation and to secure Complainant Guadalupe’s presence at a hearing.  During the proceedings, the Respondent waived the Complainants’ right to appeal and the court affirmed the waiver in its decision.

The Complainants did not fully comprehend the Court’s order and the Respondent did not explain the Court’s reasoning to them.   Conversely, the Respondent advised the Complainants that they had lost their case and that he would file an appeal on their behalf.  Notwithstanding the Court’s order and the Complainants’ waiver of their appeal rights, the Respondent filed an appeal of the immigration court’s order with the Board of Immigration Appeals (hereinafter referred to as the “BIA”) in Virginia.  The Respondent did not file a motion to reopen as directed by the immigration court.  The BIA dismissed the Complainants’ appeal on June 1, 2004 because they had waived that right at the July 21, 2003 hearing.  By the time the Complainants became aware of the significant error that the Respondent had made the time in which they could file a motion to reopen with the immigration court had expired. 

Thereafter, the Complainants retained Attorney Rosana Kitwai Cheung to represent them.  Attorney Cheung subsequently filed a motion to reopen with the immigration court, explaining that the Respondent’s errors and omissions had resulted in an unjust ruling against the Complainants. 

This reviewing committee also considered the following:

The Respondent was suspended from the practice of law on April 13, 2005 for one year and it was ordered that he must apply to the court for readmission.  The Respondent has been ordered presented to the superior court on seven occasions by the Statewide Grievance Committee or a reviewing committee of the Statewide Grievance Committee.  The Respondent has been reprimanded four times by the Statewide Grievance Committee or a reviewing committee of the Statewide Grievance Committee.  There are four grievance complaints pending against the Respondent where probable cause of misconduct has been found by a grievance panel.  Pursuant to the Rules enacted regarding the Office of the Chief Disciplinary Counsel that became effective on January 1, 2004, there are twelve grievance matters that bypassed a reviewing committee of the Statewide Grievance Committee because the Respondent and the Office of the Chief Disciplinary Counsel agreed that the conduct warrants discipline in excess of that of the Statewide Grievance Committee’s authority (see Practice Book §2-82).  These twelve cases are currently pending before the Superior Court.

This reviewing committee finds the following violations of the Rules of Professional Conduct by clear and convincing evidence:

This reviewing committee concludes that the Respondent engaged in misconduct by failing to adequately explain the Complainants’ legal situation and by failing to advise the Complainants that, contrary to the immigration court’s order, he was filing an appeal and not a motion to reopen, notwithstanding the fact that the court indicated that it would grant the Complainants’ motion, if filed.  The Respondent’s lack of communication prevented the Complainants from ascertaining their immigration situation accurately and rendered them unable to make informed decisions regarding the representation.  The Respondent’s errors and omissions were serious breaches of his ethical duty to the Complainant and were in violation of Rule 1.4(a) of the Rules of Professional Conduct.

This reviewing committee concludes that the Respondent's misconduct warrants discipline.  In deciding the appropriate discipline to impose, this reviewing committee considered the particularly vulnerable position of the Complainants and the potential dire consequences to them as a result of the Respondent's ethical failures. This reviewing committee also considered the Respondent's significant prior grievance. Finding the Respondent committed serious misconduct that is exacerbated by his grievance history, pursuant to Practice Book §2-35, we direct the Office of the Chief Disciplinary Counsel to file a presentment complaint against the Respondent be to the Superior Court.

Because we have ordered the Respondent presented, and a presentment is a de novo proceeding, we further direct the presentment complaint include the following allegations: that the Respondent violated Rule 1.3 of the Rules of Professional Conduct by failing to diligently protect and pursue the Complainants’ interests by failing to file a timely motion to open as suggested by the immigration court; and, that the Respondent violated Rule 1.4(b) of the Rules of Professional Conduct by failing to adequately explain the Complainants’ legal situation and by failing to advise the Complainants that, contrary to the immigration court’s order, he was filing an appeal and not a motion to reopen, notwithstanding the fact that the court indicated  that it would grant the Complainants’ motion if filed; and, that the Respondent violated Rule 1.1 of the Rules of Professional Conduct by filing an appeal on behalf of the Complainants when, in his presence and in the presence of the court, they waived their right to appeal.

DECISION DATE: __2/17/06______

____________________________________

Attorney Noble F. Allen

___________________________________

Attorney Raymond B. Rubens

_________________________________

Mr. William J. Carroll