Disciplinary Board of the Supreme Court of the State v. Howe
2014 WL 929474, 2014 ND 44, 843 N.W.2d 325 (2014)
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Rule of Law:
An attorney violates the professional duties of competence, diligence, and communication by engaging in a pattern of failing to meet deadlines, follow procedural rules, submit required evidence, and keep clients informed of critical hearing dates. An attorney's claim that such conduct was part of a 'strategy' of delay is not a defense against charges of professional misconduct.
Facts:
- Elias Angel Camacho-Banda and Margarita Maya-Morales ('the Camachos'), undocumented Mexican nationals, were placed in removal proceedings.
- The Camachos retained attorney Henry H. Howe to represent them in their case before the Immigration Court.
- Howe conceded the Camachos' removability and stated he would seek cancellation of removal, which required showing 'exceptional and extremely unusual hardship' to their U.S. citizen children.
- Howe delayed filing the applications for cancellation of removal for over 18 months, submitting them just days before the scheduled merits hearing.
- Howe failed to complete the required 'biometrics' process, including obtaining the Camachos' fingerprints, before the merits hearing.
- An immigration judge specifically requested documentation regarding one child's learning disability and educational prospects in Mexico, which Howe failed to provide.
- Howe failed to notify the Camachos of a rescheduled merits hearing on January 13, 2009, causing them to miss their court appearance.
- The Camachos paid Howe $4,050 for costs and expenses but never received an accounting of how the money was used.
Procedural Posture:
- A hearing panel of the North Dakota Disciplinary Board investigated a complaint against attorney Henry H. Howe.
- The hearing panel issued a report finding violations and recommending a six-month suspension, payment of costs, and an accounting to his former clients.
- Howe objected to the hearing panel's report and recommendations.
- The case came before the Supreme Court of North Dakota, the state's highest court, for a de novo review of the disciplinary record.
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Issue:
Does an attorney violate the North Dakota Rules of Professional Conduct for competence, diligence, and communication by repeatedly failing to timely file documents, complete required procedural steps, submit evidence as requested by a judge, and inform clients of a rescheduled hearing date in an immigration case?
Opinions:
Majority - Per Curiam
Yes, the attorney's conduct violates the North Dakota Rules of Professional Conduct. An attorney fails to provide competent representation (Rule 1.1) by not preparing thoroughly, repeatedly failing to follow filing requirements, and failing to obtain and submit supplementary information specifically requested by a judge. The court found that Howe's failure to provide evidence about the child's learning disability and special education availability in Mexico, coupled with his procedural errors, constituted incompetence. The court also held that Howe violated the duty of diligence (Rule 1.3) by procrastinating on filing the cancellation of removal application for over a year, failing to complete the biometrics process, and causing his clients to miss a hearing. Finally, Howe violated the duty of communication (Rule 1.4) by failing to inform his clients of the rescheduled hearing date and by failing to provide them with an accounting of the fees they had paid. The court rejected Howe's defense that his actions were a 'strategy' to delay the proceedings, stating that a competent lawyer would not seek delay by risking an immediate removal order through such unpreparedness.
Analysis:
This decision reinforces that a state's disciplinary authority extends to an attorney's conduct in federal proceedings, regardless of whether the federal body has taken action. It firmly rejects the notion that professional negligence can be retroactively framed as a valid legal 'strategy.' The case serves as a clear precedent that fundamental duties—competence, diligence, and communication—cannot be excused by a lawyer's purported tactical goals, especially when the 'tactics' involve procedural failures and neglect that place the client's case in jeopardy. It highlights that attorneys are ultimately responsible for their staff's errors and must ensure their own professional obligations are met.
