Disciplinary Bd. of the Supreme Court of State v. Howe (In re Application for Disciplinary Action Against Henry H. Howe)

843 N.W.2d 325

2014 ND 44

In the Matter of the Application for DISCIPLINARY ACTION AGAINST Henry H. HOWE, a Member of the Bar of the State of North Dakota.Disciplinary Board of the Supreme Court of the State of North Dakota, Petitioner

v.Henry H. Howe, Respondent.

No. 20130299.

Supreme Court of North Dakota.

March 11, 2014.

Brent J. Edison, Bismarck, ND, for petitioner.

Henry H. Howe, self-represented, Grand Forks, ND, respondent.

PER CURIAM.

[¶ 1] Attorney Henry H. Howe objected to a report of a hearing panel of the Disciplinary Board recommending that he be suspended from the practice of law for six months, that he pay costs and expenses of the proceedings and that he provide an accounting to his former clients of all costs and expenses incurred during the course of Howe's representation. We conclude clear and convincing evidence establishes Howe violated N.D.R. Prof. Conduct 1.1, competence; 1.3, diligence; and 1.4, communication. We order that Howe be suspended from the practice of law for six months and one day, that he pay $8,871.34 in costs of the disciplinary proceedings and that he provide his former clients an accounting of the costs and expenses associated with his representation.

I

[¶ 2] Howe was admitted to practice law in North Dakota on July 27, 1973 and practices in Grand Forks as a member of the law firm Howe & Seaworth. Howe's disciplinary record includes suspensions ordered by this Court for 90 days in 1977 and 120 days in 2001, private reprimands from inquiry committees in 1988 and 1991 and admonitions from inquiry committees in 1995, 1998, 2001 and 2012. Howe is suspended by order of this Court for an unrelated matter, Supreme Court number 2014 ND 17, 842 N.W.2d 646.

[¶ 3] This proceeding arises from Howe's representation of Elias Angel Camacho–Banda and Margarita Maya–Morales (collectively “Camachos”). The Camachos, undocumented Mexican nationals, have lived in the United States for over twenty years. The Camachos have four United States citizen children and one Mexican citizen child. Subsequent to a February 2007 traffic incident, authorities discovered the Camacho adults and one child did not have legal immigration status. The Camachos were placed in removal proceedings before the Executive Office for Immigration Review, Immigration Court, in Bloomington, Minnesota. The Camachos retained Howe to represent them in the removal proceedings.

[¶ 4] During the immigration court's May 16, 2007 master calendar hearing, Howe conceded the Camachos were removable for staying in the United States past the time permitted and stated he would file their applications for cancellation of removal and adjustment of status. To prevail in canceling removal, the Camachos needed to establish removal would result in “exceptional and extremely unusual hardship to the alien's ... child, who is a citizen of the United States” under 8 U.S.C. § 1229b(b)(1)(D). The immigration judge informed Howe he needed significant documentation of hardship, including documentation of one child's alleged learning disability. On May 16, 2007, Howe received an information sheet for gathering “biometrics,” which explained the process for collecting fingerprints and personal information as required at immigration proceedings before final status decisions are made. Howe did not file the applications for cancellation of removal until November 21, 2008.

[¶ 5] A merits hearing was held on December 1, 2008. Howe had not completed the biometrics process, including failing to obtain the Camachos' fingerprints. When asked why he did not complete the biometrics process, Howe blamed a calendaring error by his paralegal. Howe did not provide the hardship documentation requested by the judge, instead supplying only the children's school records. Further, the Camachos were the only witnesses called. The immigration judge chastised Howe for being unprepared, but allowed him thirty days to augment the Camachos' application for cancellation of removal. In addition to the clarification Howe already received on May 16, 2007 regarding supplemental materials the judge sought, the judge directed Howe to augment the file concerning the Camachos' son's learning disability, including letters from teachers and doctors and information regarding the special educational prospects in Mexico for a child with a learning disability.

[¶ 6] The merits hearing was rescheduled for January 13, 2009. The Camachos were not present at the hearing because Howe failed to notify them of the rescheduled hearing. Howe blamed a change in office personnel. Howe later gave conflicting testimony to the hearing panel that he spoke to the Camachos about the date change, but that a miscommunication occurred because the Camachos' daughter who usually translated was not present. The judge agreed to reschedule the merits hearing from January 13, 2009 to October 21, 2009, warning Howe that if the Camachosagain failed to appear, he would issue a removal order in their absence. The judge admonished Howe for failing to comply with formatting requirements for his filings.

[¶ 7] Before the rescheduled merits hearing, Howe resubmitted duplicate documents, including country conditions and school records. Howe's submission was rejected for failing to comply with filing requirements. Howe attempted to fix the issues by resending his submission. The court noted that all the documents still were improperly submitted, but that it would nonetheless accept them. On April 23, 2010, Howe submitted additional articles about violence in Mexico, offered to demonstrate hardship. The Camachos' merits hearing was rescheduled to April 8, 2011. Howe obtained letters from the Camacho children's teachers, including a letter from the special education teacher and case manager for the child with the learning disability. Howe argues that while he possessed the letters, in his opinion the letters would not have helped meet the exceptional and extremely unusual hardship standard and possibly could have made things worse.

[¶ 8] On April 8, 2011, Howe and the Camachos appeared at the rescheduled merits hearing, but because an interpreter was not available, the judge reserved the case for written submissions and closing arguments to be submitted within two weeks. Howe did not provide additional materials or submit written closing arguments. On November 15, 2011, the judge ordered the Camachos deported to Mexico. Howe was discharged, and the Camachos retained new counsel.

II

[¶ 9] This Court decides disciplinary proceedings by making de novo review of the record compiled by the disciplinary board's hearing panel. See Disciplinary Board v. Dyer, 2012 ND 118, ¶ 8, 817 N.W.2d 351. This Court's procedure for reviewing disciplinary proceedings is:

“Disciplinary counsel must prove each alleged violation by clear and convincing evidence, which means the trier of fact must be reasonably satisfied with the facts the evidence tends to prove and thus be led to a firm belief or conviction. We give the Disciplinary Board's findings, conclusions, and recommendations due weight, but we do not act as a mere rubber stamp. We consider each disciplinary matter on its own facts to decide which sanction, if any, is appropriate.”

Disciplinary Board v. Hoffman, 2013 ND 137, ¶ 5, 834 N.W.2d 636 (quoting Disciplinary Board v. Hann, 2012 ND 160, ¶ 14, 819 N.W.2d 498).

III

[¶ 10] Howe argues that because the Disciplinary Office of the Federal Immigration Court did not take disciplinary measures, this Court should defer to their nonaction and refrain from imposing disciplinary measures in North Dakota. Rule 8.5(a), N.D.R. Prof. Conduct, provides:

“A lawyer admitted to practice in this jurisdiction is subject to disciplinary action in this jurisdiction even though the conduct of the lawyer giving rise to the discipline may have occurred outside of this jurisdiction and even when that conduct may subject or has subjected the lawyer to discipline by another jurisdiction.”

This Court exercised jurisdiction over disciplinary matters arising from federal immigration proceedings involving North Dakota lawyers in the past. Disciplinary Board v. Karlsen, 2008 ND 235, 778 N.W.2d 522;Disciplinary Board v. Vela, 2005 ND 119, 699 N.W.2d 839;Disciplinary Board v. Vela, 2008 ND 42, 746 N.W.2d 1. Howe is a licensed North Dakota attorney. Under clear language in Rule 8.5(a), N.D.R. Prof. Conduct, and our judicial decisions, he is subject to discipline in this jurisdiction despite that the matter arose from a federal immigration proceeding and that disciplinary action was not taken by the federal immigration court. This Court has jurisdiction over this disciplinary case.

IV

[¶ 11] Howe argues the hearing panel improperly accepted the immigration judge's comments as proof Howe failed to properly represent the Camachos. We decide disciplinary proceedings on a de novo review of the record and make our own determinations whether ethical violations have occurred. Hann, 2012 ND 160, ¶ 14, 819 N.W.2d 498.

A

[¶ 12] Rule 1.1, N.D.R. Prof. Conduct, provides that “[a] lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” The knowledge and skill required in a particular case include consideration of the complexity of the matter and the lawyer's relevant training and experience. N.D.R. Prof. Conduct 1.1 cmt. 1. The comments also recognize that a lawyer may not need special training or experience to handle problems unfamiliar to the lawyer if the lawyer engages in adequate study. Id. at cmt. 2. Competence in a particular matter requires the “use of methods and procedures meeting the standards of competent practitioners” in a particular area, recognizing that some matters require more extensive treatment than others. N.D.R. Prof. Conduct 1.1 cmt. 6.

[¶ 13] To meet their burden for cancellation of removal, the Camachos were...