Interim Decision #2516
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Interim Decision #2516
MATTER OF KODEN
In Disbarment Proceedings Under 8 CFR 292.3
A-18919327
Decided by Board August 16, 1976 and August 30, 1974
Decided by Deputy Attorney General July 22, 1976
(1) The term "accredited representative" as defined in 8 CFR 292.1(a)(4) includes any
person who has been accredited as a representative of a recognized organization as
defined in 8 CFR 292.2(a), whether he is an attorney or not. The determinative question
is not whether the individual is an attorney, but is whether the individual is accredited
by the Board as the organization's representative.
(2) There is no constitutional impediment to the Service disciplining an attorney who
practices before it. Section 103 of the Immigration and Nationality Act (8 Il_S.C. 1103)
provides ample statutory authority to promulgate regulations implementing section 292
of the Act so as to provide appropriate regulations for institution of disciplinary
proceedings against members of the agency's bar for unethical conduct. An administrative body may regulate, supervise, and discipline those who practice before it in the
same manner as may a court.
(3) Where the charges allege the willful commission of acts respondent should have known
were wrong, and where those charges were properly brought against respondent,
section 558(c) of the Administrative Procedure Act (5 U.S.C. 558(e)) does not shield
respondent from responsibility for any of the alleged acts of misconduct regardless of
whether he had actual knowledge that the acts were proscribed by 8 CFR 292.3(a).
(4) Any acts of misconduct in disbarment proceedings brought under 8 CFR 292.3 must be
established by evidence that is clear, convincing and unequivocal before discipline may
be imposed.
(5) Depending on its probative value, circumstantial evidence alone may be sufficient to
prove a charge in disbarment cases.
(6) Hearsay evidence is admissible in a disciplinary proceeding. Its admissibility is not so
much predicated on administrative expertise as on the ability of an administrative
tribunal properly to discern the probative force of all the evidence before it. It is proper
for an administrative adjudicator to admit any relevant evidence, and then accord
appropriate weight to that evidence after the record has been made.
(7) Where respondent was afforded ample opportunity to cross examine witnesses against
him, the evidence was fully disclosed, and he was not denied a reasonable opportunity to
defend on the charges levied in the complaint, denial of certain discovery motions, while
perhaps unconvenient to respondent, was not prejudicial to him.
(8) The allegation that respondent wilfully misled and deceived an alien by purporting to
represent her for a $550 fee when in fact he did not do so, in violation of 8 CFR
292.3(a)(4), is substantiated by clear, convincing and unequivocal evidence and discipline may be imposed upon respondent for that violation.
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(9) Where the alleged "runner" Angulo, was unavailable at the time of the hearing, it was
proper for the Board to draw inferences from the testimony of Witness Perez concerning her dealings with Angulo and conclude that a relationship of an unethical nature
existed between Angulo and Respondent. The Perez testimony was not hearsay (see
Rule 801(e) of the Federal Rules of Evidence) inasmuch as Angulo's assertion is not
offered to prove the truth of the matter asserted but was offered for the inference to be
drawn from the fact that the offer to engage in the client referral scheme was made at
all. Under the circumstances the charge that respondent violated 8 CFR 292.8(a)(5) by
employing a "runner" to solicit clients was properly sustained; and discipline may be
imposed upon respondent for that violation.
(10) Order entered suspending respondent from practicing before the Service and Board
for a period of one year based on six months suspension for each offense.
(CHARGES: 8 CFR 292.3(a)(1), (3), (4), (5), and (6)
ON BEHALF OF RESPONDENT:
Donald M. Leibsker, Esquire
Edward N. Morris, Esquire
Heidelberger, Leibsker and
Gallagher
29 South LaSalle Street
Chicago, Illinois 60607
ON BEHALF OF SERVICE:
Irving A. Appleman
Appellate Trial Attorney
BEFORE THE BOARD
(August 16, 1976)
In our decision dated August 30, 1974, we ordered the suspension of
the respondent from the practice of law before the Immigration and
Naturalization Service and before us for a period of one year. We
further, ordered that the record be certified to the Attorney General for
final disposition, and stayed the suspension order pending such disposition. On November 22, 1974, we denied the respondent's petition for
reconsideration of our decision of August 30, 1974. On the same' date,
the record wee transmitted for review to the Attorney General pursuant
to 8 CFR 292.3(b).
On July 22, 1976, the Deputy Attorney General 1 ordered the suspension of the respondent as an attorney before the Service and this Board
for the period. of one year from the date of our service on him of the
Deputy Attorney General's decision (a copy of that decision was mailed
to respondent's counsel on July 29, 1976). The Deputy Attorney General
further ordered that the proceeding be remanded to us for further
consideration consistent with his opinion of the charge that respondent
violated 8 CFR 292.3(a)(1).
The Deputy Attorney General affirmed our findings that the respon1
The Attorney General disqualified himself in this matter. The Deputy Attorney
General has acted in this dace pursuant to the provisions of 28 Section 508(a). See
also 28 CFR 0.16(b).
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dent, in violation of 8 CFR 292.3(a)(4), willfully misled and deceived an
alien by purporting to represent her for a fee whereas in fact he did not
do so; and that the respondent, in violation of 8 CFR 292.3(a)(5), unethically solicited practice by entering into a client referral arrangement
with one Mr. Angulo, and thereby placing Mr. Angulo in a position
which encouraged him to solicit clients for tbe respondent for monetary
compensation in furtherance of that arrangement.
With respect . to the charge that respondent violated 8 CFR
292.3(a)(1),2 we concluded that the term "accredited representative" did
not extend to an individual who qualifies as an "attorney" within the
meaning of 8 CFR 14(f). Accordingly, we held that the respondent, who
qualifies as an "attorney", was not properly charged with a breach of
ethics by the first allegation in the complaint. By his decision of July 22,
1976, the Deputy Attorney General interpreted the term "accredited
representative" to include any person who has been "accredited" as a
representative of a recognized organization whether he is an attorney or
not. The Deputy Attorney General pointed out that as to the charge that
the respondent violated 8 CFR 292.3(a)(1), the crucial, question is not
whether the respondent was an attorney, but whether he was "accredited" by this Board as his organization's representative. We note, as did
the Deputy Attorney General, that the record of this case does not
indicate whether the respondent has been accredited. Further, we
recently conducted an examination of our records and are unable to find
that the respondent was accredited by us.
In accordance with the decision of the Deputy Attorney General .(a
copy is attached hereto), we shall suspend the respondent from practice
before the Service and this Board for the period of one year, effective
from the date of this order. Further, we shall remand the record to the
Regional Commissioner for appropriate proceedings to ascertain
whether the respondent was in fact accredited as a representative of a
recognized organization under Part 292 of the Code of Federal Regulations.
* ORDER: The respondent is suspended from practice before the
Immigration and Naturalization Service and the Board of Immigration
Appeals for the period of one year, effective from the date of this order.
Fuither order: The record is remanded for further proceedings in
accordance with the above opinion.
2 Section 292.3(a)(1) provides in pertinent part that the Board, with the approval of the
Attorney General, may suspend or bar from further practice an accredited representative
of a recognized organization who charges or receives either directly or indirectly any fee
or compensation for services rendered to any person, except that an accredited representative of such an organization may be regularly compensated by the organization of which
he is an accredited representative.
* Board Member Irving A. Appleman abstained from consideration of this case
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BEFORE THE DEPUTY ATTORNEY GENERAL
(July 22, 1976)
This matter is before me-for review pursuant to section 292.3(b) of
Title 8 of the Code of Federal Regulations relating to the suspension or
disbarment of attorneys and representative of accredited organizations
from practice before the Immigration and Naturalization Service and
the Board of Immigration Appeals.* Respondent is an attorney and was
employed by the Travelers Aid Society of Metropolitan Chicago incorporating the Immigrants' Service League (hereafter referred to as the
League). He was employed by the League to advise and represent its
clients in connection with their immigration prpblems.
The Service commenced a prOceeding under 8 CFR § 292.3(a) seeking
the disbarment of respondent on a number of the grounds specified
therein. After an evidentiary hearing before a representative of the
appropriate regional commissioner of the Service, the commissioner
forwarded de record to the Board, as required by the regulations, with
the recommendation that respondent should be disbarred. The Board,
by majority vote, sustained two of the changes and rejected the others;
it ordered respondent's suspension from practice for a period of one
year. Under the regulations, a suspension or disbarment order must be
referred to the Attorney General for final determination.
Respondent, who was represented by counsel, raised a number of
objections, some relating to the Board's constitutional and statutory
authority to conduct the proceedings, others of a procedural nature, and
still others cf an evidentiary nature. The Board, in a comprehensive
opinion, rejected the constitutional, statutory, and procedural objections, and I conclude that it acted correctly.
It is appropriate at the outset to consider one charge rejected by the
Board. l This charge alleged violation by the respondent of § 292.3(a)(1),
which authorizes the suspension or disbarment in the public interest of
an attorney -who charges or receives grossly excessive fees and of an
"accredited representative" who "charges or receives either directly or
indirectly any fee or compensation for service, rendered to any person",
except that - such a representative may be regularly compensated by his
organization. The Board reasoned that respondent as an attorney was
not an "accredited representative" within the meaning of the regulation.
* The Attorney General has disqualified himself in the matter. It is therefore before me
pursuant to 28 § 508(a). See also 28 CFR § 0.15(b).
The provisions of 8 CFR § 292.3(b) are ambiguous as to whether charges resolved by
the Board in favor of an attorney are automatically subject to review by the Attorney
General when a case is forwarded for his consideration as the result of an order of
suspension by tle Board based on other charges advanced in the same proceeding. The
issue discussed below, however, is of sufficient importance to the administration of the
immigration laws that I am considering this aspect of the case pursuant to my authority
under S CFR § 3.1(h)(1)(i).
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It regarded the purpose of the regulation solely as a means of preventing non-lawyers from entering the private practice of law. One member
of the Board dissented, stating that "what would be improper conduct
for a `representative' if he is a layman [does not) . . . become proper
conduct because he is also a lawyer." (Board Member 1Vlaniatis, dissenting, at 3.)
The term "accredited representative" is defined in 8 CFR §
292.1(a)(4), as amended, 40 F.R. 23271, May 29, 1975, as follows:
A person representing an organizaton described in § 292.2 of this chapter who has been
accredited by the Board.
The process for accreditation of representatives is set out in 8 CFR
§ 292.2(d), as amended. Nothing in either Becton cited above indicates
that an attorney may not be "an accredited representative," or that if
accredited, he would not be subject to the restrictions found in 8 CFR
§ 292.3(a)(1). Although these regulations were amended after the
Board's decision in this case, the previous regulations defined "representative" as "a person representing a religious, charitable, social service, or similar organization established in the United States and recognized as such by the Board," 8 CPR § 1.1(j) (1975), and § 9.02.1(c) (1975)
provided that a person could be represented by "an accredited representative of an organization described in section 1.1(j) of this chapter."
Again accreditation procedures were provided in § 292.2(b) (1975). Thus
under both the previous and present regulations, an "accredited representative" is "a person" who has been "accredited" by the Board. There
is nothing in either set of regulations which would prevent the accreditation of attorneys or remove attorneys once accredited from the prohibitions contained in 8 CFR § 292.3(a)(1). 2
The Board has cited no authority, either judicial or otherwise, to
support its interpretation that an attorney cannot be an "accredited
representative" as the term is used in the regulations, and I am aware of
none. I conclude, moreover, that the Board's interpretation is not a
reasonable one. I am not persuaded that the regulation was designed
solely to prevent layman from practicing immigration law. I doubt that
this is of direct concern to those charged with the administration of the
immigration laws, but rather is a matter to be brought to the attention
of the appropriate bar association for remedial action. See, for example,
7 Am. Jur. 2d § 89. On the other hand, there exists a strong policy
ground for a broader construction of the regulation. To permit a lawyer
associated with an organization recognized by the Board to engage in
the private practice of immigration law is Susceptible of serious abuse.
Aliens who apply to the organization for assistance often do so because
they cannot afford a lawyer and do not know where else to turn. To the
2
This section was not modified by the 1975 amendments.
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extent outside practice by organization lawyers is allowed, such a
lawyer is in a position to take advantage of his organization status in
order to obtain business for himself that he could not otherwise secure.
What should be a free or nominal rate service can be transformed into a
full cost service. This record presents a vivid picture of the pbtential for
confusion an& oppression inherent in such an arrangement. On the other
hand, to prohibit all attorneys providing services to recognized organizations from engaging in outside practice would have the effect of
precluding an organization from obtaining outside legal advice unless it
was prepared to pay a till time salary. The regulations appear to me to
balance these interests as follows: An attorney employed by a recognized organization need not be "accredited" in order to represent its
clients. Such an attorney would then not be subject to the restrictions
on "accredited representatives" appearing in § 292.3(a)(1). However, in
order to avoid the potential for abuse of their status by lawyers closely
associated with the organization, such as its full-time staff, an organization may choose, if the lawyer agrees, to seek his accreditation and
thereby bring him within the restrictions upon outside practice provided
by the regulations. Thus, in my view, the crucial question with respect
to this charge is not whether respondent was an attorney, but whether
he was "accredited" by the Board as his organization's representative. I
cannot however, determine on this record whether respondent had been
-
accredited or not. This aspect of the proceeding is therefore remanded to
the Board fox proceedings consistent with this opinion.
II
The two charges sustained by the Board were, first, that in violation
of § 292.3(a)(4) fo the regulations respondent willfully misled and deceived an alien by purporting to represent her for a fee whereas in fact
he did not do so, and, second, that in violation of § 292.3(a)(5) he
employed a "runner", one Mr. Angulo, to solicit clients. The first charge
is amply sustained by the record, and, accordingly I affirm the Board's
order directed to that charge.
As to the second charge, the only issue worthy of discussion concerns
the testimony of one Bertha Perez. She testified that Angulo had offered
to pay her $50 for every alien she would refer to respondent. Angulo
himself was not available as a witness. The Board concluded that the
inferences that could properly be drawn from the Perez testimony,
together with other evidence, established the charge. Concerning this
testimony the Board stated that while it was "not highly probative of
whether she would in fact have been paid . . ., the mere fact that an
offer of this nature was made to the witness strongly indicates that Mr.
Angelo desired to induce the witness to refer aliens to the respondent"
(BLA. Op. 25).
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It might be argued that the Perez testimony was inadmissible as
hearsay. But, as the Board correctly noted (BIA Op. 8), it is not bound
by the hearsay rule. Moreover, the testimony was not hearsay, as that
term is generally understood, inasmuch as Angulo's assertion was not
offered to prove the truth of the matter asserted. See Rule 801(c),
Federal Rules of Evidence, 28 U.S.C. (Sapp. IV), Appendix. The question was not whether Angulo would in fact have paid Perez for refereing
clients to respondent, but whether a relationship of an unethical character existed between respondent and Angulo. 3 The evidentiary value of
the statement arose not from reliance upon Angulo's truthfulness, but
from an inference derived from the fact that an offer of this nature was
made at all. Since there is no indication of an intent to communicate the
proposition at issue, the danger of the declarant's insincerity in this
regard, a primary factor in hearsay exclusion, is substantially reduced.
See McCormick on Evidence (Cleary Ed. 1972) § 246 et. seq. It was
thus, in my view, proper for the Board to consider such inferences as
might arise from Perez' account of her dealings with Angulo. Accepting
the propriety of such inferences, and having reviewed the other evidence relevant to this charge, I affirm the Board's finding.
Ordered that respondent be and he hereby is suspended from practise
before the Immigration and Naturalization Service and the Board of
Immigration Appeals for the period of one year from the date of service
on him by the Board of this decision, and the proceeding is remanded to
the Board for further consideration consistent with this opinion of the
charge that respondent violated 8 CFR § 292.3(a)(1).
BEFORE THE BOARD
(August 30, 1974)
This case is before us pursuant to the provisions of 8 CFR 292.3(b).
The respondent is an attorney who was admitted to the bar of the State
of Missouri in 1966. In August of 1968, after having moved to Illinois, he
commenced employment with a charitable organization located in
Chicago. His new employer was the TRAVELERS AID SOCIETY OF
METROPOLITAN CHICAGO Incorporating IMMIGRANTS' SERVICE LEAGUE (hereinafter referred to as the League). 1 The respondent's principal tasks while employed at the League involved advising
and representing League clients in connection with their immigration
3 Any inference that the offer was made to enhance Angulo's proper relationship with
respondent as an interpreter is undermined by the fact that the offer to Perez was not
limited to aliens in need of an interpreter's service.
The IMMIGRANTS' SERVICE LEAGUE has been a recognized agency within the
Purview of 8 CFR 1(1) since 1958. Shortly before the respondent began working for the
League, the TRAVELERS AID SOCIETY and the IMMIGRANTS' SERVICR
LEAGUE merged.
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problems. In January of 1971 the respondent resigned from his position
at the League after it became known to his superiors that he was also
representing aliens in a private capacity.
This disbarment proceeding was commenced on July 6, 1971, when
the respondent was personally served both with a complaint, entitled
Notice of Proposed Disbarment Proceedings, specifying the conduct
which the Immigration and Naturalization Service alleged as grounds
for discipline, and with a Notice to Show Cause why a motion seeking
his disbarment should not be made to the Board of Immigration Appeals. The respondent answered the complaint by denying all the allegations of misconduct except one, which he neither admitted nor denied.
The respondent also requested a hearing on the charges. On February
29, 1972, the Regional-Commissioner for the Northwest Region of the
Immigration and Naturalization Service forwarded notice to the respondent's counsel that the hearing was set for April 5, 1972, and that a
presiding officer had been appointed to sit at the hearing. The hearing
actually was commenced on April 19, 1972, after the Service had been
granted a continuance, and was concluded on May 2, 1972. The Regional
Commissioner has forwarded the entire record to us, together with his
recommendation that the respondent be disbarred.
The respondent has challenged the propriety of these proceedings on
several grounds. He initially contests the constitutional power of an
administrative agency of the government to conduct disciplinary proceedings against an attorney. In support of this argument the respondent cites cases which stand for the proposition that the power to
discipline an attorney is judicial in nature. However, an administrative
body's regulation and supervision of those individuals who practice
before it are not functionally different from the regulation and supervision of persons practicing before a court. Moreover, the Service seeks
only to preient the respondent from representing individuals before it
and before this Board. The Service does not contend that the Attorney
General or his delegates have any authority, in these proceedings, to
limit the respondent's general practice of law. We perceive no constitutional impediment to these proceedings. See Goldsmith v. United States
'Board of Taw Appeals, 270 U.S. 117 (1926).
The respondent also maintains that there is an absence of statutory
authority for this disbarment action. It is his position that any enabling
legislation must contain a specific authorization relating to disciplinary
actions if an administrative body is validly to regulate the members of
its bar. This contention, however, does not find support in the case law.
See Goldsmith v. United States Board of Tax Appeals, supra; Herman
v. Dulles, 205 F.2d 715 (D.C. Cir. 1953); Schwebel v. Orrick, 153 F.
Supp_ 701 (D. D. C_ 1957), affirmed on other grounds, 251 F.2d 919 (D.C.
Cir. 1958), cert. denied, 356 U.S. 927 (1958). Consequently, the Attor746
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ney General's power under section 103(a) of the Immigration and Nationality Act to "establish such regulations . . . as he deems necessary
for carrying out his authority under the provisions of this Act" is an
adequate basis upon which to predicate the regulations which govern
this disciplinary action. ,
Moreover, it is unnecessary for us to rely solely on this implied power
to regulate members of the immigration bar, since Congress has enacted
'more. specific legislation in this regard. Section 292 of the Act grants to
an individual in exclusion or deportation proceedings the right to be
represented by any counsel of his choosing, "authorized to practice in
such proceedings . . . ." The power to admit an individual to the bar of
an administrative tribunal also includes the power to discipline that
individual for unethical conduct. Cf. In re Rhodes, 370 F.2d 411 (0.4.. 8,
1967), cert. denied, 386 U.S. 999 (1967). There is no lack of congressional authorization with respect to these proceedings.
The respondent further asserts that if the Act does permit
nary proceedings, these particular proceedings represent an unwarranted attempt to regulate activities which are of no direct concern to
the Service. The respondent relies on Mindel v. United States Civil
Service Commission, 312 F. Supp. 485 (N.D. Cal. 1970), to support his
contention that the Service possesses no authority to institute disbarment proceedings against an attorney for conduct not occurring before
the Service. Mindel is inapposite here. That case involved the discharge
from employment of a postal clerk for his cohabitation with a woman not
his wife. The court ruled that the discharge was improper, primarily
because this private conduct, about which the parties had been discreet,
in no way related to the individual's fitness as a postal clerk. The
charges against the respondent, however, relate to the manner in which
he conducted his professional practice, and consequently they have a
direct bearing on his fitness as an attorney. The fact that the allegations
against the respondent do not involve conduct directly before the Service does not prevent the Service from maintaining this action. In re
Carroll, 416 F2d 585 (C.A. 10, 1969), cert. denied, 396 U.S. 1011
(1970); see In re Quimby, 359 F.2d 257 (D.C. Cir. 1966).
The respondent's final challenge to the institution of these proceedings is based on 5 U.S.C. §558(c) (1970). This provision of the Administrative Procedure Act specifies that an administrative body may not,
except in the case of willful conduct, institute proceedings to suspend or
withdraw a license unless the affected party has first been given written
notice of the alleged misconduct and has been giyen an opportunity to
comply with all lawful requirements. The respondent relies heavily
upon the deciiion in Schwabe/ v. Orrick, 153 F. Supp. 701 (RD. C. 1957),
affirmed on other grounds, 251 P2d 919 (D.C. Cir. 1958), cert. denied,
356 U.S, 927 (1958). His position is supported to the extent that the
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district court in Schwebel determined that an attorney's right to practice
before an administrative agency was a license within the meaning of this
provision. However, the Schwebel court also held that notice and an
opportunity to correct the misconduct were not a prerequisite to those
disciplinary proceedings, because the allegations against the. attorney in
that ease were for willful acts. With respect to the respondent, we are of
the opinion that the charges which were properly brought against him
also involved willful conduct, and that 5 U.S.C. §558(c) does not shield
him from responsibility for any of the alleged acts he may have committed, regardless of whether or not he had actual knowledge that the
conduct was :proscribed by 8 CFR 292.3(a). 2 The charges properly levied
against the respondent allege conduct which he should have known was
wrong. Cf. Dlugash v. Securities and Exchange Commission, 373 F.2d
107 (C.A. 2, 1967).
The respondent has also raised several questions concerning procedural matters in administrative disciplinary proceedings. He argues
that the Service, having brought the action, has the burden of proof, and
that the standard which should govern the sufficiency of that proof
should be clear and convincing evidence. We agree with these contentions. Although disbarment cases have often been described as sui
generis and even likened to inquisitorial proceedings, e.g., In re
E cheles, 430 P.2d 347 (C.A. 7, 1970); In re Shyers ,
Ind 292
N.E.2d 804 (1973), both parties have appropriately treated this case as
an adversary proceeding, and we perceive no difficulties in assigning the
burden of persuasion to the Service. In addition, we have concluded that
any allegations of misconduct in disbarment proceedings under 8 CFR
Part 292 must be established by evidence that is clear, convincing and
unequivocal before discipline may be imposed. Our adoption of this
standard, which is quite favorable to the respondent, is consistent with
the approach taken in many jurisdictions. See, e.g., In re Ryder, 263 F.
Supp. 360 (E.D. Va. 196'7); affirmed, 381 F.2d 713 (C.A. 4, 1967); In re
Gladstone, 28F. Supp. 858 (S.D. N.Y. 1939); In re Brown, 101 Ariz. 178,
416 P.2d 975 (1966); Roam° v. State Bar of California, 58 Cal. 2d 495,
374 P.2d 803, 24 Cal. Rptr. 835 "(1962); In re Simpson, 47 Ill. 2d 562, 268
N.E.2d 20 (1971). In addition, the clear, convincing and unequivocal test
is one that is familiar to both the Service officers who are charged with
developing ti: e record in these cases, and to this Board. Finally, we are
of the opinion that more than a mere preponderance of the evidence
should be required to deprive an attorney of his right to practice his
profession, even if that depriiation extends only to one area of the law.
We have been unable to find any case directly following the holding of Schwabe/ with
respect to the application of 5 U.S.C. §558(c) to an attorney. However, our disposition of
the respondent's contention makes it unnecessary for us to determine the proper scope of
this statute.
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Although we agree with the respondent's position regarding the burden of proof in these proceedings, we cannot endorse his contentions
with respect to matters of evidence. Throughout the course of the
hearing below the respondent objected to the introduction of hearsay
evidence. He contended then and contends now that its use in a disbarment case is inappropriate. It is the respondent's position that hearsay
evidence is generally admissible in administrative proceedings because
agency officials enjoy an expertise in their given field, and accordingly
are able to make proper use of this type of evidence. He argues that
since disbarment matters. are outside the scope of Service and Board
expertise, the rationale behind the 'relaxation of the rules of evidence
does not apply to these proceedings and consequently only legally competent evidence may be admitted or employed in arriving at a disposition of his case. The respondent relies extensively upon Kivitz v. Securities and Exchange Commission, 475 F.2d 956 (D.C. Cir. 1973), in
asserting this position. Kivitz also involved disciplinary proceedings
instituted against an'attorney by an administrative agency. The agency
had employed hearsay evidence quite extensively in determining to
discipline the attorney. The court indicated that the hearsay evidence
never should have been admitted, and declared that the legally competent evidence against the attorney did not warrant discipline. It is our
opinion, however, that Kivitz should not be given a broad reading.
We agree that agency expertise has some bearing on the relaxation of
the hearsay rule in administrative proceedings. However, administrative expertise, instead of being the fundamental basis for ignoring the
traditional rules of evidence, serves primarily as a basis upon which an
administrator may independently evaluate complex or expert evidence
submitted by a party. It also serves as a basis for juding evidence which
has proven reliable or unreliable in the past. The admission of hearsay
and other "legally incompetent" evidence is predicated not so much on
administrative expertise as on the ability of an administrative tribunal
properly to discern the 'probative force of all the evidence before it.
Much evidence that Would be excluded at a jury trial possesses substantial probative value. Its inadmissibility stems from the fear that a
jury would be unable either to ignore any prejudicial aspects of the
evidence or to evaluate the probative import of the evidence. However,
when the trier of fact is not subject to these shortcomings of a jury, the
rationale behind the traditional exclusionary rules of evidence is absent.
Consequently, it is proper for an administrative adjudicator to admit
any relevant evidence, and then accord appropriate weight to that
evidence after the entire record has been made. See 2 IC Davis,
AdminiStrative Law Treatise, §§14.01—.04 (1958; Supp. 1970). Accordingly, we disagree with the respondent's position regarding the admission and use of hearsay evidence in this matter. We can perceive no
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valid basis for excluding probative evidence from consideration in this
case. See Roil v. United States, 456 F.2d 777 (Ct. Cl. 1972); In re
Wilson, 76. Ariz. 49, 258 P.2d 433 (1953).
The respondent has also challenged the manner in which these proceedings have been handled, asserting that he was denied a fair hearing
below. Disbarment proceedings have been described as quasi-criminal
in nature, with any resulting discipline constituting punishment of the
attorney. In re Buffalo, 390 U.S. 544 (1968). Accordingly, the accused
attorney is entitled to due process, which includes fair notice of the
charges against him and an adequate opportunity to defend. The respondent evidently maintains that the denials of his motions for discovery and for a continuance were an abuse of discretion, because they
effectively denied , him adequate notice and an opportunity to defend.
Prior to the commencement of the hearing the respondent sought to
take the depositions of a number of the individuals who were named or
listed in the complaint, and who might be called by the Service to testify
during the hearing. During the opening stages of the hearing the respondent renewed this motion, requesting subpoenas to examine certain
possible witnesses. In addition, he sought various other forms of discovery, including a list of all the Service's witnesses. He maintains that
the witness list was necessary for proper preparation of the defense,
because the Service had earlier indicated that it intended to call persons
not named in the complaint to testify regarding charges not alleged in
the complain;.
Any discipline imposed upon the respondent must be predicated solely upon prop„ that he engaged in the unethical conduct alleged in the
complaint. 1r. re Ruffalo, supra. The allegations in the complaint are
Phrased in terms of the various subdivisions of 8 CFR 292.3(a), and set
forth the esse ntial nature of the misconduct which is deemed to warrant
discipline. 3 The notice given the respondent of the charges against him
comports with requirements of due process of law. The hearing in this
matter covered a period of approximately two weeks. The respondent,
through his counsel, was afforded ample opportunity to cross -examine
the available witnesses against him. The evidence against him was fully
disclosed, and he was not denied a reasonable opportunity to defend on
the charges levied in the complaint. Although the respondent may have
been inconvenienced by the denial of discovery, and particularly by the
lack of prior knowledge regarding which witnesses the Service intended
to produce, we can discern no prejudicial error. in the denial of these
requests.' a. Morgan Precision Parts v. N.L.R.B., 444 F.2d 1210
The pertinent subdivisions of 8 CFR 292.3(a) are reproduced in the Appendix.
In view of ou:- conclusion that the respondent was not deprived of a fair hearing by the
denial of his requests lbr discovery, we need not explore the question of whether the
presiding officer possessed the authority to compel those measures of discovery which
4
750
Interim Decision #2516
(C.A. 5, 1971); Electrome,c Design and Develop. Co. v. N.L.R.B., 409
F.2d 631 (C.A. 9, 1969); N.L.R.B. v. Interboro Contractors, Inc., 432
F.2d 854 (C.A. 2, 1970), cert. denied, 402 U.S. 915 (1971).
Prior to the taking of testimony at the hearing, the respondent requested a continuance. He maintains that the presiding officer's refusal
to grant the motion for a continuance resulted in a denial at a fair
hearing. He asserts that a continuance was made necess ry by the.
refusal to permit discovery, because without a list of Service witnesses,
the respondent needed time to investigate persons who might be called
by the Service to testify.s We fail to see any prejudice to the respondent
in this regard. If the respondent was surprised by the testimony of any
previously unspecified witness, or. if he believed that he had not had an
adequate opportunity to cross-examine or to investigate any individual,
then his proper course of action was to recall the witness after he had
become aware of any pertinent material, or to seek an adjournment in
order further to prepare his defense. Cf. N.L.R.B. v. Interboro Contractors, Inc., 432 F.2d 854 (C.A. 2, 1970), cert. denied, 402 U.S. 915
(1971); Quattrone v. Nicolls, 210 F.2d 513 (C.A. 1, 1954), cert. denied,
347 U.S. 976 (1954). The denial of the respondent's motion for a continuance at the commencement of the hearing has not rendered these
proceedings unfair.
There are six numbered allegations of misconduct contained in the
complaint (Exh. 2). The first ground for discipline is predicated upon the
respondent's alleged violation of 8 CFR 292.3(a)(1). The pertinent portion of this regulation provides for the suspension or disbarment of an
attorney or representative:
. . . who, being an accredited representative of an organization recognized under
§1.1.(j) of this chapter, charges or receives either directly or indirectly any fee or
compensation for services rendered to any person, except that an accredited representative of such an organization may be regularly compensated by the organization of
which he is an accredited representative . . . .
The Service maintains that this prohibition against private practice by
accredited representatives applies to the respondent because he was a
regularly compensated employee of a recognized organization. We disagree. The respondent is an attorney; he is not an "accredited representative" within the meaning of this regulation.
•Although section 292 of the Act clearly establishes a right to counsel
in certain proceedings under the Act, it also limits the extent of that
were sought. See Miner v. Atlass, 363 U.S. 641 (1960); United States v. Minkel-, 350 U.S.
179 (1956); Federal Maritime Commission v. Anglo-Catutdian Shipping Co., 335 F.2d
255 (C.A. 9, 1964). See also Coughlan v. United States, 236 F.2d 927 (C.A. 9, 1956).
The respondent has not informed no of the method by which he would have ascertained
the identity of these probable witnesses.
751
Interim 'Decision #2516
right by providing that any representation shall be at no expense to the
Government. On the assumption that some representation for indigents
is generally preferable to no representation, the regulations permit
various classes of responsible individuals to appear on behalf of others
before both the Service and the Board: See 8 CFR 292.1. A recognized
organization of the character described in 8 CFR 1.1(j) may certify
United States citizens of good moral character as its accredited representatives, and these accredited representatives may then appear on
behalf of others at the administrative level. See 8 CFR 292.2(b). However, it is our conclusion that the portion of 8 CFR 292.3(a)(1) upon
which the Service has based its first allegation was intended only to
apply to nonattorneys. The rationale behind permitting responsible
persons who are not lawyers to practiceimmigration law at the administrative level applies only where representation would not otherwise be
available to the person concerned. This subdivision of the regulation was
intended further to circumscribe the limited permission to represent
others which is granted to an accredited representative. We view this
regulation merely as a means of preventing a nonattorney from entering
the private practice of law.
The Service has argued for a broad interpretation of this provisions
however, we can discern nothing inherently unethical in permitting an
attorney to represent indigents in behalf of a charitable organization
while at the same time allowing that attorney to engage in private
practice. Certainly abuses can occur, yet an absolute proscription of this
activity appears unwarranted. We hold that the term "accredited representative" ss used in 8 CFR 292.3(a)(1) does not extend to an individual
who qualifies as an "attorney" within the meaning of 8 CFR 1.1(f).
Accordingly, the respondent, who qualifies as an "attorney," was not
properly charged with a breach of ethics by the first allegation in the
complaint.
The second numbered allegation in the complaint charges the respondent with a violation of 8 CFR 292.3(a)(3). The respondent is basically
charged with having willfully misled Service employees as to material
and relevant facts by the filing of a Form G-28, "Notice of Entry of
Appearance as Attorney or Representative," in the case of an alien who
had not requested representation by the respondent. The alien allegedly
involved in this incident did not testify at the hearing, and the respondent's uncontradicted testimony indicates that the alien did initially
desire the service of the 'respondent (Tr. pp. 512-16).
The Regional Commissioner, in his Recommendation in Disbarment
Proceedings, contends that this allegation is also supported by testimony and evidence that the respondent entered appearances on behalf
of various aliens as a representative of the League, when in fact these
aliens were the respondent's private clients. The appellate trial attor752
Interim Decision #2516
ney, however, concedes that the proof in this regard is less than satisfactory. We agree with the appellate trial attorney that the record fails
to establish the materiality of these misrepresentations (Transcript of
oral argument, pp. 26-27). Moreover, we have serious doubts concerning the propriety of the addition of this factual contention after the
conclusion of the hearing below. Compare In re Buffalo, 390 U.S. 544
(1968); and Committee on Professional Ethics & Grim. v. Johnson, 447
F.2d 169 (C.A. 3, 1971), with Jaffee & Co. v. Securities and Exchange
Commission, 446 F.2d 387 (C.A. 2, 1971). The record does not establish
that the respondent committed the violation charged in the second
allegation.
In its third allegation against the respondent, the Service asserts that
the respondent willfully deceived and misled clients by giving them his
business cards and by claiming that the cards would permit the clients
to remain in the United States until 'an "expiration date," which was
shown on the cards. The respondent admits that he gave his private
clients the business cards as alleged by the Service (Tr. pp. 523-25). 6
Howevr,thidncaespotldhicensat
cards permitted them to remain in the United States is far from clear,
convincing and unequivocal.
The Service did not develop this point to any significant extent during
the hearing. The testimony of Bertha Perez, a United States citizen who
accompanied several of her- alien friends during their meetings with the
respondent, indicates that the respondent promised to keep certain
alien clients in the United States for ono year (Tr. p. 116). However, the
testimony of Bertha Perez tends to indicate that the respondent did not
assert that the business cards entitled the aliens to remain in the United
States (Tr. pp. 126-27). We have reviewed the record with respect to
the Regional Commissioner's Recommendation on this charge, but we
have not found the testimony which he Cites in his Recommendation to
be sufficient proof of the wrong specified in the complaint.?
6 Examples of these cards are contained in Exhibit 10, Group Exhibit 29, Exhibit 33,
Exhibit 44, and Group Exhibit 49. On the reverse side of the cards appeared the following:
in the acquisition of a
Daniel M. Koden, Attorney, is representing Mr
resident visa. If any problem , should arise concerning the immigration status of this
person, please call this office.
Telephone:
[number]
Expiration date
7 To a certain extent the exoneration of the respondent on this allegation is based an a
technicality as the charge relates to the proof. However, as we read the third chargein the
complaint, the Service is alleging activity akin to the issuance of false immigration
documents. We can see a significant distinction between a charge of this nature and that
which was proven. The evidence convinces us that the respondent made improper promises to aliens with respect to his ability to prevent their deportation. He did not, however,
claim that his issuance of a document could accomplish that feat. The likely difference
between that which was alleged and that which was demonstrated, vis-a-vis both the
753
Interim Decision #2516
At oral argument the appellate trial attorney for the Service contended that there is other evidence to support a charge under 8 CFR
292.3(a)(4) (Transcript of oral argument, pp. 27-28). It is evidently the
position of the Service that the respondent should be disciplined for the
manner in which he handled the case of Raymonde Amir Riffe. Miss
Amir, who was known as Mrs. Riffe prior to her divorce, testified that
she went to lie offices of the League in or about May of 1970, upon the
recommendation of a friend. She did not know that the respondent was
employed at the League, but she was referred to him after she explained her case to someone in the League offices. She further stated
that the respondent asked for and received $75 from her, $25 of which
was allegedly for a filing fee, and $50 of which was paid because the
respondent told her that they charged at the League (Tr. pp. 380-81).
Miss Amir also indicated that she paid this amount to the respondent by
check and received a receipt which she recalled as having been issued in
the name of the League and signed by the respondent (Tr. pp. 381-83). 8
The respondent, however, testified that he thought Miss Amir came
to him as a private client because she was not introduced to him by
League personnel, and because she did not have with her a League
Introduction sheet, called a "face sheet" (Tr. pp. 434-35). In rebuttal,
Mrs. Du Val contradicted the respondent's assertions regarding the
capacity in which Raymonde Amir Riffe saw the respondent. Mrs. Du
Val testified that League records indicate that the respondent opened a
League file on Miss Amir, who was then Mrs. Riffe, in April of 1970 (Tr.
pp. 598-601; Exh. 52). 9 The League record in this matter (Exh. 52) also
indicates that the respondent handled Miss Aniir as a League client
until he ceased employment at the League.
The evidence against the respondent in connection with the case of
Raymonde Amir Riffe is troubling. The Service evidently introduced it
as proof that the respondent committed the "misconduct" alleged in the
first numbered allegation, which we have held inapplicable in this matter. The appellate trial attorney offers this evidence as proof that the
expectations of its clients and the respondent's defense against this charge, bears heavily
on our approaci. to this allegation.
8 It should bs noted that the cancelled check for the $75 payment was not introduced
into evidence, although checks indicating subsequent payments by the witness to the
.respondent were introduced (Ex. 41; Tr. pp. 386 87). In addition, the witness' recollection
-
regarding receiving a League receipt is not entirely consistent with the testimony of lone
Du Val, the respondent's immediate superior at the League. Mrs. Du Val testified that she
reviewed the carbon copies of all League receipts issued during the respondent's employment at the League (Tr. p. 188) and that she found no receipts issued by the respondent or
the respondents secretary to any of the aliens listed In allegation number one of the
complaint (Tr. pp. 191-94). Raymonde Amir Riffe is listed in this charge under the name
Raymonde
These League records were evidently kept in the ordinary course of busincos (Tr. pp.
603-04; 609-10).
754
Interim Decision #2516
respondent willfully deceived a client, and maintains that the respondent may be disciplined on that basis. Although the testimony of Miss
Arnir would be more persuasive if buttressed by the cancelled check
which she contends was presented to the respondent in May of 1970,
there is nevertheless substantial evidence in the record ttat the respo -ident deceived both Miss Amir and the League byreguiring the payment
of a nominal fee for legal services which was then not deposited with the
League. 1° We need not, however, decide whether this evidence would
support a specific allegation of misconduct in this respect.The complaint
does not provide the respondent with adequate notice that his alleged
willful deception both of Miss Amir and of the League constitutes a
ground for discipline. Jaffe & Co. v. Securities and Exchange Commission,, 446 F.2d 387 (C.A. 2, 1971). Moreover, the complaint cannot be
amended at this stage in the proceedings without affording the respondent a full opportunity to defend. Coughlan v. United States, 236 F.2d
927 (C.A. 9, 1956); In re Farris, 229 Ore. 209, 367 P.2d 387 (1961). See
also In re Ruffalo, 390 U.S. 544 (1968).
The fourth numbered allegation against the respondent is also predicated upon 8 CFR 292.3(a)(4) and charges that he willfully misled anci
deceived bertha Tulia Torres by purporting to represent her for a $550
fee and by: (a) falsely advising her that she could remain in the United
States on the basis of an "extension" card; (b) falsely advising her that
she could accept employment; and (c) failing to represent her in any
manner. The charge that the respondent deceived Miss Torres by informing her that the respondent's business card permitted her to remain
in the United States appears to be a reiteration of the charge levied in
the third numbered allegation, which we found not to be sustained by
the evidence in the record. However, the other two contentions regarding the deception of Miss Torres raise new issues.
The evidence, however, is less than clear, convincing and unequivocal
with respect to the charge that the respondent falsely advised Miss
Torres that she could accept employment. Miss Torres testified that this
information was conveyed to her by the respondent through an interpreter, named Mr. Angulo (Tr. pp. 37-39, 52). The only other direct
evidence that the respondent falsely informed aliens that they were
permitted to work came from Stella Swider, a United States citizen who
acted as an interpreter between the respondent and an alien client of his
(Tr. pp. 247, 249). However, in neither instance was the precise nature
of the respondent's assertions concerning an alien's eligibility to work
completely brought out. The respondent, on the other hand, testified
" The respondent, of course, maintains that Miss Amir was always a private client;
however, he acknowledged that he has no *sent record of her as a private client, and
that he may have charged her a small fee when their relationship was first established in
the spring of 1970 (Tr. pp. 434-35; 488-92).
755
Interim Decision #2516
that -he mace no such blanket statement to his clients, but instead
simply explained each client's legal position and permitted the client to
determine an appropriate course of action regarding employment (Tr.
pp. 530-31). The Service was unable to rebut this aspect of the respondent's testimony. Moreover, the evidence which was presented to substantiate the charge is consistent with the respondent's explanation- of
his conduct, especially when considered in view of language translation
difficulties. The evidence regarding whether the respondent misled Miss Torres
by accepting a $550 fee, purporting to represent her, and not in fact
representing her, is more substantial. The testimony of several witnesses indicates that the respondent made false promises and claims
regarding the performance of services for Miss Torres.
Miss Torres testified that she was brought to see the respondent in
September of 1970 by a Mr. Angulo, who spoke Spanish and acted as
interpreter during the witness' -initial meeting with the respondent. At
this meeting the respondent told Miss Torres that he would promptly
solve her immigration problems (Tr. p. 39). The witness' brother, Dr.
Jose Vicente Torres, paid the respondent a total of $550 for services to
be rendered on behalf of Miss Torres. Miss Torres became concerned
about the- manner in which she was being represented, and she finally
sought retuin of the money paid the respondent after her fears were
heightened by n newspaper article which "exposed" some of the respondent's alleged practices (Tr. pp. 63-64). When asked to return the $550
fee, the respondent attempted to assure Miss Torres that she need not
worry, and he asserted that he needed new information regarding her
case (Tr. p. 49). Shortly thereafter the witness filed a criminal complaint
against the respondent..The fee which Dr. Torres had paid in connection
with his sister's case was then refunded by the respondent (Tr. pp.
44-49).
The respondent's testimony conflicts in certain material respects with
that of Miss Torres (Tr. pp. 409-14). The respondent stated that Miss
Torres required labor certification if she was to obtain lawful permanent
resident status, and that he stressed to her the importance of a job offer.
The respondent indicated that Miss Torres was unable to secure an
appropriate job offer; however, he asserted that the continued to insist
that her efforts in this regard be maintained. He testified that he
retained a "continued interest in the ease" (Tr. p. 414). In his testimony
with respect to another alien, the respondent also stated that he never
made a guarantee to solve prohleins for his clients (Tr. p. 428). Yet he
evidently did endeavor to indicate to worried aliens, and in particular to
Miss Torres, an approximate date on or about which the aliens could
reasonably expect -some results in their cases (Tr. pp. 525, 411).
The respcndent's assertion that he never made false promises or
756
Interim Decision #2516
claims to aliens is directly contradicted by the testimony of both Bertha
Perez and Dr. Jose Vicente Torres. Bertha Perez, who was not a client
of the respondent's, testified that the respondent told her to assure the
aliens for whom she was translating that he would provide the alien
clients with their "residence"- within six months (Tr. p. 116). Such a
representation could obviously not be properly made (see Tr. pp. 12022).
Dr. Torres testified that he went to see the respondent twice in.1970
in .order to ascertain the extent of services being performed for his
sister. In each instance the respondent assured him that Miss Torres
had nothing to worry about, and on one occasion the respondent claimed
to have filed an application with the Service in behalf of Miss Torres but
explained that these matters take 'quite some time for processing (Tr.
pp. 84-86). Dr. Torres further stated that he visited the respondent on
the day that the derogatory newspaper article concerning the respondent appeared. On this occasion the respondent also maintained that he
was proceeding with work on the Torres case and that everything was
"going to be fine" (Tr. pp. 92-93). Dr. Torres was not satisfied with this
explanation and he proceeded to inquire of the Service whether the
respondent had in fact filed an application in behalf of Miss Torres_ He
then discovered that the Service had no file relating to his sister.
Administrative notice was taken' by the presiding officer that 'the abseuce of a Service file for lass Torres indicated that the respOndent had
not submitted the application to the Service as he had claimed (Tr. pp.
93, 106-09). The respondent did not attempt directly to refute the
testimony of Dr. Torres, or to challenge the presiding officer's statement regarding Service procedure in handling applications bearing on
an alien's eligibility for lawful permanent resident status (Tr. pp. 400569). .
The testimony of Officer Samuel Sardiga also bears significantly on
this allegation against the respondent. Officer Sardiga testified that he
was an investigator for the Service and that he personally served the
complaint on the respondent (fr.. pp. 252-58). The complaint was served
on the respondent while he was in an interview booth evidently located
in the offices of the Service in Chicago: The respondent took ten or
fifteen minutes to read the complaint and then commented to Officer
Sardiga on the charges (Tr. pp. 259-60). When asked to recall what the
respondent's statement was, Officer Sardiga replied: "To the best of my
knowledge, he indicated that although the charges were true he did not
believe we had any good cause for -disbarment because he had returned
the money to the people involved." (Tr. p_ 254.) The respondent has not
challenged the accuracy of this testimony, nor has he attempted to
explain it in any manner.
Officer Sardiga was not examined as to whether he understood the
757
Interim Decision #2516
respondent's admission to •be limited to any particular charge, or
charges, in the complaint. Nevertheless, we note that the complaint
covers several types of alleged misconduct having no clear relationship
to those instances in which the respondent refunded monies to former
clients. Consequently, we do not find that the respondent's adinission
constitutes arcing evidence in support of every charge in the complaint.
Nevertheless, we find Officer Sardiga's testimony regarding this admisSion to be :persuasive evidence that the respondent engaged in the
unethical conduct charged in the fourth numbered allegation in the
complaint.
On the basis of the summarized testimony we find: (1) that the respondent accepted $550 from Dr. Jose Vicente Torres as a fee for
providing legal services to Bertha Tulia Torres; (2) that the respondent
promised to obtain lawful permanent resident status for Miss Torres
promptly, a:though he knew that fulfillment of that promise was quite
unlikely; (3) that when questioned by Dr. Torres about this matter the
respondent :maintained that Miss Torres had nothing about which to be
concerned that he had performed services on her behalf, both of which
representations he knew to be false; and (4) that shortly after the
respondent received adverse publicity he further attempted to mislead
both Miss Torres and Dr. Torres regarding the status of the Torres
case. To the extent that the fourth numbered allegation in the complaint
charges the respondent with having misled Miss Torres by asserting
that he was representing her when in fact he is not, it is supported by
evidence that is clear, convincing and unequivocal."
The allegations numbered five and six in the complaint charge the
respondent with a violation of 8 CFR 292.3(a)(5). 12 The fifth allegation in
the complaint charges the respondent with unethically soliciting practice by employing a "runner," Mr. Angulo, (a) to distribute certain of the
respondent's business cards which stated on their reverse side that the
respondent was representing a given alien whose name could then be
inserted on the card," and (b) to offer "to pay Bertha Perez the sum of
$50.00 for each alien she could refer to him." The complaint's sixth
charge alleges that the respondent solicited practice in an unethical
manner by employing his runner, Mr. Angulo, to distribute Spanish
u In arriving at these findings, we have substani ;Any discounted the respondent's
version of his relationship with Miss Torres. He is not a credible witness.
12 Both the Regional Commissioner in his Recommendation, and the Service at the
hearing (Tr. p. 18), maintained that the respondent is also charged with a violation of 8
CFR 292.3(a)(6). However, we do not read the complaint as providing the respondent with
notice that he i3 charged under this subdivision of the regulation. None of the allegations
in the complaint parallel the language of this provision. Moreover, the Regional Commissioner in his Recommendation has failed to direct our attention to, nor have we uncovered,
any evidence that would support such a charge.
23 A descriptnn of these cards is contained in footnote 6.
758
Interim Decision #2516
language advertising cards which contained statements designed to
induce aliens with immigration problems to seek assistance from Mr.
Angulo. 11 We shall discuss these allegations in combination because
there are numerous items ot evidence which relate to both charges.
We have found no significant evidence in the record in support of the
charge that Mr. Angulo distributed the respondent's business cards, nor
has the Regional Commissioner cited any such evidence to us. Mr.
Angulo appears to have been known to only a few of the aliens who
testified at the hearing. He referred Miss Torres to the respondent, yet
Miss Torres testifed that it was the respondent who presented her with
the business card in question (Tr. p. 36). The testimony of Bertha Perez'
is similar in this respect. Although the aliens for whom she acted as
translator were contacted by Mr. Angulo, it was the respondent who
gave his business cards to these individuals (Tr. pp. 117; 126). Since the
record fails to establish that Mr. Angulo participated in a distribution of
the respondent's business cards, it is evident that the charge that the
respondent unethically solicited clients in this manner has not been
proven.
The record, however, does establish that Mr. Angulo, or Dr. Angelo
as he was also known, offered to pay Bertha Perez for clients she would
refer to the respondent, and that Mr. Angulo distributed the Spanish
language advertising cards (Tr. pp. 117-19, 124, 127-29). 15 The issue of
whether these allegations of misconduct hive been proven then becomes
one of whether the record establishes that Mr. Angulo engaged in his
efforts of solicitation as an agent or "runner" for the respondent. The
regulations do not define the term "runner." However, as used in this
context the word generally describes one whO seeks out persons with
legal difficulties and then directs them to an attorney in consideration
for a fee or a percentage of the recovery. In re Mitgang, 385 Ill. 311,
331, 52 N.E .2d 807, 816 (1944). •
"An English translation of the Spanish language cards appears in the sixth allegation
of the complaint and in Exhibit 46. The translation reads as follows:
IMMIGRATION
Are you working with a tourist visa? Do you have a residency? Do you have papers? Do
you want to resolve your situation and legalize your stay in the U.S.?
In a few hours we guarantee tranquility and we give you identification so you can work
without problems while we make your arrangements.
Make an appointment at [telephone number] After 5:30 P.M., Saturday and Sunday
after 10:00 A.M.
ASK FOR DOCTOR 'ANGELO
There is substantial testimony in the record that Mr. Angulo also went by the name Dr.
Angelo.
15 The respondent does not challenge the proof on these matters; however, - he does
contend that there is insufficient evidence to link him to these activities of Mr. Angulu
(respondent's brief, p. 22).
759
Interim Decision #2516
Mr. Angulo was unavailable at the hearing, and there was no direct
testimonial evidence that the respondent employed Mr. Angulo in this
proscribed capacity. 16 Consequently, the evidence against the respondent in this regard consits of circumstantial evidence and the logical
inferences to be drawn from that evidence. ,We perceive no problems
with respect to the nature of the evidence presented by the Service.
Depending on its probative value, circumstantial evidence along may be
sufficient to prove a charge in disbarment cases. See Millsberg v..State
Bar of California,.6 Cal. 3d 65, 490 P.2d 543, 98 Cal. Rptr. 223 (1971);
Medoff v. State Bar of California, 71 Cal. 2d 535, 455 P.2d 800, 78 Cal.
Rptr. 696 (1969).
There are several significant items of evidence against the respondent
in regard to the issue of whether he employed Mr. Angulo as a "runner."
Initially there is the testimony of Bertha Perez to the effect that Mr.
Angulo offered to pay the witness $50 for every alien she would refer to
the respondent (Tr. pp. 117, 119, 124). As indicated, Mr. Angulo was not
available to testify or to be cross-examined. Furthermore, Bertha Perez
never acted upon this offer as such, and therefore was never in a
position to request payment in accordance with the terms ot the offer.
Accordingly, -the testimony of Bertha Perez as to the statement made by
Mr. Angulo is not highly probative of whether she would in fact have
been paid; however, the mere fact that an offer of this nature was made
to the witness strongly indicates that Mr. Angulo desired to induce the
witness to refer aliens to the respondent. It is most questionable
whether Mr. Angulo would have cast his remarks to Bertha Perez in
this manner had he merely wished to be of assistance to the respondent
in the latter's attempt to build a private law practice. Bertha Perez also
testified that Mr. Angulo had given her the Spanish language cards and
represented.that he worked for the respondent (Tr. pp. 119, 124, 128).
The respondent's testimony conflicts with the inferences, both strong
and weak, which may be drawn from the testimony of Bertha Perez.
The respondent admitted that he knew Mr. Angulo, that Mr. Angulo
had referred several cases to him, and that they had had some form of
ongoing relatonship between September of 1970 and February of 1971
(Tr. pp. 436437). However, the respondent maintained that he had no
arrangement to compensate Mr. Angulo for the referral of clients (Tr..p.
519), and that he did not authorize Mr. Angulo to distribute the Spanish
language advertising cards (Tr. pp. 438-39). The respondent asserted
that he did not even know of the existence of the Spanish language cards
until February of 1971, and that shortly thereafter his relationship with
Mr. Angulo terminated (Tr. pp. 439, 564-69, 533-35). The respondent
Mr. Angulo evidently disappeared and could not be located by either the Service or the
respondent. (See transcript of oral argument, p. 53).
760
Interim Decision #2516
did acknowledge that he had paid Mr. Angulo for translating on several
occasions, but further maintained that the translation fees were relatively modest (Tr. p. 520)..
The Service called several witnesses to rebut the respondent's assertion in this regard. The testimony of Martin Cabrera indicates that the
respOndent was willing to attempt to enter into paid referral arrangements. Martin Cabrera was a League' employee at the time of the
hearing below and at the time the respondent was leaving the League to
begin a completely private practice. .Mr. Cabrera testified that he
worked at a League filed office and had occasion to call the League's
legal offices for advice*. He stated that the respondent, at about the time
of the latter's departure from the League, offered to remunerate the
witness in the amount of 25% of the fee collected:from any alien whom
the witness would refer to the respondent (Ti. pp. 590-93). Although
this testimony does not establish that the respondent entered into a.
similar agreement with Mr. Angulo, it does indicate that the respondent
was more than merely amenable to a paid referral system.
The respondent was also contradicted regarding his assertion that he
had first encountered evidence of Mr. Angulo's distribution of the
Spanish language cards in February of 1971. Robert J. Rafferty, Jr. was
an attorney' and a co-worker with•the respondent for a short-period of
time at the League. Mr. Rafferty, who was still employed by the
League at the time of the hearing, claimed to read and speak Spanish
fluently. He testified that in the latter part of 1970 a League client
presented him with one of the Spanish 'language cards. The client
explained that the card was obtained from. a Dr. Angelo, whose general
description matched that of the-Mr. Angulo known by the witness to be
an acquaintance . of the respondent's;. The witness asserted that he
presented the respondent with this.information and asked the respondent whether Mr. Angulo was responsible for distributing the - cards.
According to Mr. Rafferty, the respondent replied that he had-'no
connection with this Dr. Angelo, and that he was' certain that Mi.
Angulo and Dr. Angelo were not the same person (Tr: pp: 615-19). The
testimony of Mr. Rafferty bears heavily upon the credibility of the
respondent, especially as the respondent's testimony relates to his association with Mr. Angulo (see Tr. p. 569),..-*c.
The respondent sought to have the testimony 'of Mr. Rafferty
excluded from consideration in this case: Duringthe . early stages of the
hearing the respondent. requested the exclusion 'of -Witnesses from the
hearing room. This motion was granted; however, Mr. Rafferty sat
through a substantial portion of the hearing: When the Service called
Mr. Rafferty as a rebuttal witness the respondent objected on the
ground of the earlier exclusion order. Although it would have been
preferable for Mr. Rafferty not to have heard the testimony of the other
761
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Interim Decision #2516
witnesses, we find no error in the decision to permit Mr. Rafferty to
testify.
The rationale behind excluding potential witnesses at a hearing is "to
prevent the „thaping of testimony by witnesses•to match that given by
other witnesses.” United States v. Strauss, 473 F.2d 1262, 1263 (C.A. 3,
1973), quoting from United States v. Cozzetti, 441 F.2d 344 (C.A. 9,
1971). The testimony of Mr. Rafferty was not corroborative of the
testimony of any prior witness, but rather was primarily intended as a
means of impeaching the respondent. The decision to permit this testimony was proper. United States v. Strauss, supra; United States v.
Ruacho-Acuna, 440 F.2d 1199 '(C:A. 5, 1971); De Rosier v. United
States, 407 F.2d 959 (C.A. 8, 1969).
To the extent that their statements conflict with those made by the
respondent, the respondent's credibility was further attacked by the
testimony of both Ione Du Val and Betty Gordon, his superiors-at the
League. Both of these individuals asserted that on two occasions during
the latter portion. of his stay at the League the respondent was questioned as to whether he was engaging in private practice*. They reported
that in each instance the respondent denied having an independent law
practice (Tr. pp. 139 -40, 176- 78). At the hearing the respondent admitted that he had had a private practice while at the Leave (Tr. pp.
477-78); however, he denied that he had been questioned by his
superiors at the League regarding that practice until December of 1970
(Tr. pp. 419-23, 549-50). Although both Ione Du Val and Betty Gordon
indicated that they were no longer on the best of terms with the •
respondent, they nevertheless retained a favorable impression as to the ,
' quality of the work which the respondent performed for them at the
League (Tr. pp_ 167, 196). The record indicates that they were attempting to be honest in their account of their meetings with the respondent.
The respondent's credibility at this hearing. and his candor as to his
practice of law were also, called into question by the testimony of Maria
Mikulicz, one of the respondent's clients, and by the testimony of Stella
Swider, who acted as an interpreter between the rnspondent and Maria
Mikulicz. These two individuals maintained that the respondent refused
to issue receipts for substantial cash payments made in connection with
the respondent's representation of •Mrs. Mikulicz (Tr. pp. 220-21, 24248). The respondent denied ever refusing to issue a receipt; however, he
did acknowledge that on occasion he may have accepted cash without
making out a receipt (Tr. pp. 481-83). The respondent testified that he
kept a private receipt book while working at the League. He did not,
however, produce a copy of any receipt issued to either Maria Mikulicz
or Stella Swiler.
As has been indicated throughout the course of this opinion, the
respondent's testimony conflicts with that of numerous othet witnesses
762
•
Interim Decision #2516
in material respects. He is not a credible witness. Our disbelief of the
respondent, coupled with the other evidence against him and the almost
inescapable inferences to be drawn from that evidence, convinces us
that the respondent and Mr. Angulo entered into a compensated client,
referral arrangement. We are also persuaded that Mr. Angulo must be
considered to have been operating as the respondent's "runner" in
offering to pay Bertha Perez $50 for every alien she would refer to the
respondent and in distributing the Spanish language advertising cards.
There is little evidence to indicate that the respondent directly authorized this specific activity; however, the solicitation engaged in by
Mr. Anoxic) was a direct consequence of the opportunity for monetary
remuneration which his arrangement with the respondent afforded. The
respondent, by entering into an arrangement proscribed by 8 CFR
292.3(a)(5), placed Mr. Angelo in a position which encouraged Mr.
Angulo to solicit clients. Accordingly, the respondent must be charged
with responsibility for those actions of Mr. Angelo which were taken in
furtherance of the arrangement. See In re Mitgang, 385 III. 311, 52
N.E.2d 807 (1944); Belli v. State Bar of California, 10 Cal. 3d 824, 519
P.2d 575, 112 Cal. Rptr. 527 (1974). We find the proof as to these
allegations to be clear, convincing and unequivocal.
The Service has contended that the respondent engaged in other
forms of misconduct as well. While the proof as to these matters is far
from satisfactory, of greater significance is the simple fact that the
Service failed to give the respondent notice as to these charges. Consequently, the respondent may be disciplined only for his deception of
Miss Torres as set forth in a portion of the fourth numbered allegation,
and for the conduct of Mr. Angulo shown to have been in furtherance of
the referral agreement.
The Service also introduced several items of evidence which we have
not employed in making our findings of fact. With respect to the charges
involving Mr. Angulo's conduct as a "runner," the Service has em-
phasized as proof certain testimony given by Samuel Sardiga, a Service
officer. Officer Sardiga stated that he once asked the respondent for a
list of the respondent's "runners," which the respondent provided (Tr.
pp. 254-55). The respondent denied that the term "runner" was used by
Officer Sardiga during the conversation in question (Tr. pp. 425-26). In
any event, the list of alleged "runners" does not include Mr. Angulo;
consequently, the testimony of Officer Sardiga is only of inferential
weight in determining whether Mr. Angulo was a "runner" for the
respondent. The Service, however, failed to call any of these alleged
"runners" as witnessei,. or otherwise to prove that they acted as "runners" for the respondent. We have given credence to the statements of
Officer Sardiga; nevertheless, we remain unconvinced that the conversation in question involved more than a mere misunderstanding of terms
763
Interim Decision #2516
between the respondent and Officer Sardiga. Since we believe that this
evidence has no probative force with respect to the charges specified in
the complaint, we need not confront the respondent's contention that
this evidence was procured in violation of the constitutional principles
set forth in Miranda v. Arizona., 384 U.S. 436 (1966), and Massiah, v.
United States, 377 U.S. 201 (1964). (Respondent's brief, pp. 23-24.)
The Service did offer some proof that one of the persons named in thelist of runners (Exh. 28) had acted in this proscribed capacity for the
respondent.. One witness called by the Service, a Mr. Jesus Pacheco;
testified that in March of 1972 he listened to a Spanish language radio
advertisement which was directed toward aliens with immigration difficulties. He called the telephone number mentioned in the advertisement and discussed his problem with a Mr. Lozano. Mr. Lozano then
referred the witness, who needed representation at a deportation hearing, to the respondent (Tr. pp. 356-63). Mr. Lozano evidently was not
qualified to represent persons in deportation proceedings.• The respondent denied authorizing, or knowing of, the radio announcement. The
respondent also asserted that Mr. Lozano sometimes handled minor
immigration matters himself, and thus may have been soliciting in his
own behalf (Tr. pp. 537-88).
The Service did not question the witness who heard the radio advertisement as to either the scope of the services offered by Mr. Lozano or
the precise wording of the announcement. 17 The Service did not call Mr.
Lozano as a witness, or show that Mr. Lozano was not advertising for
his own business. In addition, the fact that the witness required the
assistance of a person qualified to represent others at a deportation
hearing is consistent with the respondent's version of this incident; it
would explain why the witness was referred to the respondent if Mr.
Lozano was in fact seeking his own clients. Finally, the separation in
time between the events related by Jesus Pacheco and the events
described in the complaint, a pefiod of approximately one year, further
weakens this evidence as it inferentially bears on the respondent's
association with Mr. Angulo.
The final item of proof which we have concluded lacks probative force,
and concerning which there was much discussion by the parties, relates
primarily to the respondent's credibility. 18 During the hearing, the
respondent testified that he had never advertised his immigration prae;
17 The Service did begin questioning the witness regarding the nature of the advertisement; however, on the basis of the responses in the record, it is doubtful whether the
witness could have adequately described the announcement, The witness did indicate that
the radio advertisement discussed procurement of immigrant visas. This is not inconsistent with the respondent's explanation of his relationship with Mr. Lozano. , u There is no specific charge in the complaint relating to this alleged conduct. Consequently, its ri ►cipal bearing in this case relates to the respondent's veracity.
764
Interim Decision #2516
tice (Tr. pp. 480, 537-38). In rebuttal, the Service introduced a copy of a
newspaper "reply" or "advertisement," ostensibly paid for by the respondent. (See Group Exh. 5L) The Service did not affirmatively demonstrate that the respondent had purchased the newspaper space. However, in the absence of contradictory ,evidence, we believe that there is
sufficient basis upon Which to connect the respondent with this "article."
Cf. U.S. ex rel. Vajtauer v. Commissioner of Iminigration, 273 U.S.
103 (1927). The "article" nevertheless can arguably be interpreted as a
reply to the earlier Chicago Sun-Times expose, and not necessarily as an
advertisement for business. We do not mean to imply that the "article"
was an entirely proper exercise of the, respondent's first amendment
rights, because much of its language appears designed to attract clients.
See Belli v. State of California, 10 Cal. 3d 824, 519 P.2d 575, 112_ Cal.
Rptr. 527 (1974). However, the respondent cannot be disciplined on the
basis of the newspaper "article," because git was not specifically charged
as an act of unprofessional solicitation of practice. Moreover, the respondent, conceivably viewing the '.`article" as a "reply" to accusations, may
not have been attempting to deceive. when he testified that he never
advertised his law practice. Giving hirrithe benefit of the dpubt, we have
not considered this. proof in judging the ease.
We are of the opinion that the respondent should be,snspended from
practice before the Service and this Board for a period of one year.
Although the respondent's deception, pf Miss Torres cannot be condoned, the record does reflect that he was under stress at the tine of his
departure from the League and during the weeks following the publication in a Chicago newspaper of an artieleAllegedly."exposing" the nature
of his practice. It was (hiring these periOds,oftime that some, but not
all, of the deception occurred. Furthermore; the respondent did refinid
the entire amount of the fee to the larotheeof Miss Torres. We believe
that a six month suspension is warranted for this unethical conduct.
Since the record does not establish 'that the respondent actually authorized the activities of Mr. Angulo which we have found to have been
undertaken in furtheranCe a paid referral agreement, a minor reprimand of the respondent is all that we believe warranted. We shall
also impose a six month suspension for the violations of the regulations
proven under the fifth and sixth numbered allegations. Although there
are several mitigating factors in the respondent's case, the proven
violations are sufficiently serious to require that the two six month
periods of suspension run consecutively,
ORDER: The respondent is suspended from the practice of law
before the Immigration and Naturalization Service and before the
Board of Immigration Appeals for a period of one year.
Further order:The record is certified to the Attorney General for final
disposition, and the foregoing order is stayed pending such disposition.
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Interim Decision #2516
, APPENDIX
8 CFR Part 292 § 292.3 Suspension or disbarment.
(a) Grounds. The Board, with the approval of the Attorney General,
may suspend or bar from further Practice an attorney or repreSentative
if it shall find that it is in the public interest to do so: The suspension or
disbarment of an attorney or representative who is within one or more
of the following categories shall be deemed to be in the public interest,
for the purpose of this part, but the enumeration of the purpose of this
part, but the enumeration of the following categories does not establish
the exclusive grounds for suspension or disbarment in the public interest:
(1)Who charges or receives, either directly or indirectly, any fee or
compensation for services which may be deemed to be grossly excessive
in relation to the services performed, or who, being an accredited
representative of an organization recognized under § 1.1(j) of this chapter, charges or recieves either`' directly or indirectly any fee or compensation for services rendered to any person, except that an accredited
representative of such an organization may be regularly compensated
by the organization of which he is an accredited representative;
.
***
(2) Who willfully misleads, . misinforms, or deceives an officer or employee of the Department of Justice concerning any material and relevant fact in connecton with a case;
(4)Who willfully deceikres, misleads, or threatens any party to a case,
concerning any matter relating to the case;
(5)Who solicits practice in any unethical or unprofessional manner,
including, but not limited to,; " the use of runners, or advertising his
availability tc handle immigration, naturalization, or nationality matters:
(6)Who represents, as an associate, any person who, known to him,
solicits practice in any unethical or unprofessional manner, including,
but not limited to, the use of runners, or advertising his availability to
handle immigration, naturalization, or nationality matters . . . .
Louis P. Maniatis, Member, Dissenting:
I regret thEt I cannot join with the majority opinion. I dissent in part
and concur in part.
The majority holds that the respondent acted as an attorney and, as
such, was not an accredited representative within the meaning of the
regulations. It further holds that 8 CFR 292_2(a)(1) applies only to
non-attorneys. I have searched the opinion to discover the basis for this
766
Interim Decision #2516
reason to support such a holding (pages 10, 11, 12 and 16 of the opinion).
Respondent claims that ambiguity exists as to whether or not an
attorney can be considered a "representative," and he arrives at the
conclusion that the effect of the regulation is that an attorney is not to be
considered a "representative" (page 3 of respondent's brief). I find no
such ambiguity because in the first place, taken in its plain everyday
meaning, the word "representative" can include any person acting in a
representative capacity, including attorneys.
Secondly, the language of the regulation is dear. If the intent was to
rule out attorneys from the scope of the first enumerated misconduct,
the drafters of the regulation would have so stated. The majority opinion in my judgment, by an overly simplistic and literal reading of the
regulation reaches the conclusion that an attorney cannot be considered
a "representative." Literal interpretation of words is not always a safe
guide to their meaning, particularly when such an interpretation defeats
the manifest purpose of the regulation as a whole. This was clearly
pointed out by Judge Learned Hand in. the majority opinion in Peter
Pan Fabrics, Inc. v. Martin Weiner Carporation,274 F.2d 487 (C. A. 2,
1960).
We cannot brush away the fact that the regulation specifically states
that "an attorney or representative who is within one or more of the
following categories," shall be disbarred or suspended when it is deemed
"in the public interest to do so," 8 CFR 292.3(a). It will be noted that the
regulation covers both an attorney and representative, if found violating
any of the enumerated categories including section 292.3(a)(1). How
then, can we arbitrarily rule that an attorney is not included in the
category cited by the Service as having violated 8 CFR 292.3(a)(1)?
Lastly, the majority interpretation defeats the clear intent of the
regulation. In absolving the respondent from the first allegation of the
complaint, the majority opinion states that there is nothing inherently
unethical in permitting an attorney to represent indigents for a fee.
Such a statement bypasses the facts established at the hearing.
Without going into the detailed opinion of the majority, it must be
emphasized that the respondent had entered into a contractual relationship with the charitable organization and had agreed to act as its
representative for a stated salary. He was not his own free agent to do
as he pleased, but was acting in a representative capacity before the
Service.
If we follow the majority rule than it would mean that any organization authorized to appear before the Service must of necessity not
employ attorneys as their representatives. That qualified non-attorney
representation for indigents is generally preferable to no representation
is accepted, but it by no means follows that the regulation intended to
bar a charitable organization from its attorney as its representative.
767
Interim Decision #2516
Otherwise it would seem that an indigent, being assisted by a recognized charitable organization, may fall by the way side, since the representative appearing in his behalf cannot be a competent and qualified
attorney, knowledgeable in immigration matters, a .state of affairs that
both the organization and the Immigration and Naturalization Service
would undoubtedly prefer and which has been acceptable in the past. All
the regulation says is that the accredited "representative," whether an
attorney or qualified layman, shall not charge the alien a fee,, but shall
be recompensed solely by the organization, if at all. I do not see it as a
defense that -what would be improper conduct for a representative" if he
is a layman, suddenly becomes proper conduct because he is also a
lawyer.
In this context the regulation embraces the attorney's conduct as a
"representative." True that so far as the regulation is concerned there is
no reason why an attorney—"representative" cannot have his own practice on the side (however dangerous that may be). But what is required
is that when acting as a "representative" there shall be a clear delineation as to his capacity to charge a fee. The evidence clearly establishes
that Koden was guilty of the grossest lacity and misconduct, in disregarding this delineation.
In my view, the Service has amply established by the requisite
evidence and proof, even under the higher clear and convincing standard of proof adopted by the majority, that tht respondent is in clear
violation of the first allegation of the complaint.
I reluctantly concur in the one-year suspension imposed by the majority opinion. I consider respondent to have been guilty of gross misconduct, and of violating the standard of ethics so necessary to upholding
the public interest.
'768
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