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.

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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 publically 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

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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

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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.

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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

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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

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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

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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.

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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

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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

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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

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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

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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.

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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.

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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.

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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.”

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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

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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

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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 before 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.

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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.

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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.

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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

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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.

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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.