Filed January 30, 2009
In re Li Nan Chiang
Commission No. 07 CH 67
Synopsis of Review Board Report and Recommendation
The Administrator charged Respondent-Appellant, Li Nan Chiang, with advancing a claim or defense that he knew was unwarranted under existing law, failing to provide competent representation, making a statement that he knew to be false or with reckless disregard for its truth or falsity concerning the qualifications or integrity of a judge, and engaging in conduct involving fraud, dishonesty, deceit, or misrepresentation, conduct that is prejudicial to the administration of justice and conduct that tends to defeat the administration of justice or bring the courts or legal profession into disrepute. Chiang denied misconduct and some of the facts alleged in the complaint.
The Hearing Board found that Chiang engaged in all of the misconduct charged and recommended that he be suspended for one year, with the last eleven months stayed by probation for one year, subject to conditions.
The case was before the Review Board on Chiang's exceptions, challenging the procedures before the Hearing Board, its findings of misconduct, and its sanction recommendation. The Administrator sought to have the Review Board uphold the Hearing Board's findings of misconduct, but objected to its sanction recommendation.
The Review Board affirmed the Hearing Board's findings of misconduct, but modified its sanction recommendation. The Review Board recommended that Chiang be suspended from the practice of law for five months and until further order of Court (UFO), with the suspension stayed after the first 120 days and Chiang placed on probation for two years, subject to conditions.
BEFORE THE REVIEW BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
LI NAN CHIANG,
Commission No. 07 CH 67
REPORT AND RECOMMENDATION OF THE REVIEW BOARD
The Administrator-Appellee filed a seven-count complaint charging that Respondent-Appellant, Li Nan Chiang (Chiang) advanced a claim or defense that he knew was unwarranted under existing law in violation of Rule 1.2(f)(2) of the Illinois Rules of Professional Conduct (134 Ill. 2d R. 1.2(f)(2)) (Count I), engaged in conduct involving fraud, dishonesty, deceit, or misrepresentation in violation of Rule 8.4(a)(4) (210 Ill. 2d R. 8.4(a)(4)) (Count I), failed to provide competent representation to each of six clients in violation of Rule 1.1(a) (134 Ill. 2d R. 1.1(a)) (Counts II through VII), made a statement that he knew to be false or with reckless disregard for its truth or falsity concerning the qualifications or integrity of a judge in violation of Rule 8.2(a) (134 Ill. 2d R. 8.2(a)) (Count VII), and engaged in conduct that is prejudicial to the administration of justice in violation of Rule 8.4(a)(5) (210 Ill. 2d R. 8.4(a)(5)) and conduct that tends to defeat the administration of justice or bring the courts or legal profession into disrepute in violation of Supreme Court Rule 770 (210 Ill. 2d R. 770) (Counts I through VII). Chiang denied misconduct and some of the facts alleged in the complaint.
The Hearing Board found that Chiang engaged in the misconduct charged and recommended that he be suspended for one year, with the last eleven months stayed by probation for one year, subject to conditions.
The case is before the Review Board on Chiang's exceptions. Chiang challenges certain procedures before the Hearing Board, the findings of misconduct, and the sanction recommendation. The Administrator seeks to have the Review Board uphold the Hearing Board's findings of misconduct, but objects to the recommended sanction. The Administrator contends that probation is not appropriate in this case and seeks a suspension for two years and until further order of the Court (UFO). Alternatively, the Administrator argues that, if the Review Board upholds the Hearing Board's sanction recommendation, a UFO provision be added. The Administrator also argues that the Hearing Board erred, in relation to the probationary condition of a mentor, in recommending a specific named individual as mentor.
Chiang was licensed to practice law in Illinois in 1991. He is a sole practitioner and concentrates his practice in immigration and divorce cases.
All of the charges involve Chiang's representation of persons who applied for asylum after entering the United States from China without proper documentation. In particular, the charges concern pleadings Chiang filed in the United States Court of Appeals for the Seventh Circuit in connection with these clients' appeals. The Administrator's expert witness, attorney Susan Compernolle, testified that, to get asylum, a person has to show a well-founded fear of persecution based on race, religion, nationality, political opinion, or membership in a particular social group. Under the law, forced abortion or forced sterilization constitutes persecution per se. The cases at issue involved allegations of forced abortions or persecution under China's birth control policies.
Count I concerned Chiang's representation of Shi Tu Zheng and his wife, Fang Zheng. Both had filed unsuccessful petitions for asylum. Chiang began representing the Zhengs after Shi Tu Zheng was served with an order to show cause why he should not be deported.
Because of the length of time that Shi Tu had been in the United States, he could seek suspension of deportation. The possibility that Shi Tu might seek suspension of deportation was addressed in the proceedings in which Chiang was representing the Zhengs, which were then pending before Immigration Judge (IJ) James R. Fujimoto. The Seventh Circuit's May 28, 2004 order in Zheng v. Ashcroft, No. 02-3961 reflects that Chiang first told Judge Fujimoto in October 1998 that Shi Tu would seek suspension of deportation, but that Shi Tu did not file an application "despite nine months of repeated reminders by the IJ."
During a status hearing on May 19, 1999, Judge Fujimoto and Chiang explicitly discussed the possibility that Shi Tu might be eligible for suspension of deportation. Judge Fujimoto stated that he would allow Chiang to apply for suspension of deportation, and the case was continued to July 15, 1999.
On July 15, 1999, Chiang reported to Judge Fujimoto that he had not filed a petition for suspension of deportation. Chiang stated that Shi Tu wanted to apply for suspension of deportation, but Shi Tu had been too busy to provide Chiang with the information and documentation necessary to file the petition. Judge Fujimoto stated that he could either deem the suspension application abandoned or allow Chiang additional time to apply. Chiang stated that he wanted to deem the application abandoned.
Subsequently, Judge Fujimoto denied the Zhengs' petitions for asylum. Chiang appealed to the Board of Immigration Appeals (BIA), which affirmed.
Chiang sought review by the Seventh Circuit. In his brief before the Seventh Circuit, Chiang alleged that Shi Tu's due process rights were violated because Judge Fujimoto failed to inform him of his right to seek suspension of deportation. Chiang's brief stated:
"Shi Tu Zheng was apparently eligible for suspension of deportation but he was not informed of his right to seek suspension
benefits and he was not given adequate time to locate documents. Due to Zheng's failure to file suspension application, IJ deemed the suspension application abandoned."
Chiang did not regard these statements as misrepresentations, but rather a "good faith argument."
The Seventh Circuit affirmed the denial of asylum. The Court concluded, inter alia, that the due process issue was frivolous because Chiang had told the IJ to consider the suspension application abandoned.1
Counts II through VII involve the quality of briefs Chiang filed in the Seventh Circuit for clients whose petitions for asylum had been denied by an IJ and affirmed by the BIA. In some, but not all, of these cases, Chiang had also represented the petitioners before the IJ and BIA. The six briefs at issue in these counts were filed between August 2003 and February 2004. The Seventh Circuit denied review in the cases that were the subject of Counts II through VI and granted the government's motion to dismiss in the case that was the subject of Count VII.
Compernolle testified that preparing a brief for the Seventh Circuit required the attorney to write a statement of facts, with citation to supporting pages of the record, state the issue(s) presented for review, provide a jurisdictional statement, identify the applicable standard of review, and write a cogent argument. The argument needed to contain record citations for all facts stated and legal citations to support the arguments made. See Fed. R. App. Pro. R. 28(a). In Compernolle's opinion, while many asylum cases could be won at the Seventh Circuit level, a brief could not win if it did not contain a developed argument with citation to the record and supporting legal authorities. The brief would need to cogently and articulately express what the agency had done wrong. Compernolle testified that the briefs at issue in Counts II through VII did not present such arguments and were not of the quality needed before the Seventh Circuit.
Chiang's representation of Ming Li Tang ("Tang") was the subject of Count II. The substantive portion of Chiang's Seventh Circuit brief for Tang, i.e., the jurisdictional statement, statement of the issues, statement of the case, statement of facts, summary of argument, standard of review, argument, and conclusion, consisted of less than four and a half pages. The argument section of the brief is not well-developed and does not cite to pages of the record to support the factual statements made or to legal authorities to support the arguments made.
Compernolle testified that the issue in Tang's case was one of credibility. In Compernolle's opinion, the brief should have discussed the facts in much greater detail. Compernolle testified that the theory of the case was not clearly stated. In addition, because there were some inconsistencies in Tang's testimony, Compernolle testified that the brief should have included an argument that inconsistent testimony did not always have to lead to an adverse credibility finding, with citation to applicable case law.
Count III concerned Chiang's representation of Yan Lin. The substantive portion of Chiang's Seventh Circuit brief for Lin consisted of five pages. Of this, the argument section comprised only two pages. The argument contained only one citation to authority and one citation to the record. The brief did not address inconsistencies in the evidence, or develop a theory as to why those inconsistencies should not have been conclusive, even though the issues raised involved the agency's weighing of the evidence.
Count IV concerned Chiang's representation of Bi Xian Zheng. The substantive portions of Chiang's Seventh Circuit brief for Zheng consisted of five pages. The issues essentially concerned whether the decision of the IJ and BIA were supported by substantial
evidence and the sufficiency of the reasoning articulated for the IJ's credibility finding. The argument is not well-developed and does not include citation to supporting legal authority.
In denying the petition for review, the Seventh Circuit observed, inter alia, that Chiang's brief did not mention matters that the IJ considered in making the adverse credibility determination. Compernolle noted various deficiencies in Chiang's brief for Zheng, including the fact that the statement of facts did not contain any record citations and the brief did not address a key issue in the case, i.e. the conclusion that Zheng had engaged in marriage fraud. Compernolle identified various potential arguments that were available, but which Chiang did not raise.
Count V involved Chiang's representation of Zhou Weng. The substantive portion of Chiang's brief for Weng consists of six and a half pages. The two and a half page argument section of this brief does not cite any authority to support the arguments made. The arguments are not well-developed.
In denying review, the Seventh Circuit stated that the brief presented a poorly developed challenge to the IJ's credibility finding and did not mention other findings by the IJ that independently warranted denying asylum. Compernolle testified that Chiang's statement of facts in the brief for Weng did not contain citations to the record to support the facts stated. In addition, in her opinion, the argument was not cogent and there did not appear to be a well-developed theory of the case.
Count VI involved Chiang's representation of Jian Hu. The substantive portions of Chiang's Seventh Circuit brief for Hu encompassed seven pages. The argument portion of the brief consists of two pages, without citation to pages of the record to support the factual statements and without citation to supporting legal authority. The argument is poorly developed.
Significantly, the IJ's stated rationale for denying Hu's application for asylum was based in part on the IJ's own personal opinions and information de hors the record. Chiang's argument refers briefly to this fact. However, his brief does not develop an argument that the IJ erred by considering information de hors the record nor cite any authority to support this proposition.
After suspending briefing in the Hu case on its own motion, the Seventh Circuit denied review. The Court observed that Chiang's brief for Hu did little more than restate his version of the facts.
In Compernolle's opinion, a lot more could have been done to attack the IJ's decision in Hu's case. For example, Compernolle testified that IJs cannot legally substitute their personal opinion for evidence in the record. She also noted that, although the IJ had made comments that were legally incorrect, Chiang's brief did not raise arguments based on those statements.
Count VII concerned, in part, Chiang's representation of Bei Jiang in his application for asylum. The remaining allegations of Count VII concern Chiang's conduct before the Seventh Circuit.
The substantive portion of Chiang's brief for Jiang was seven pages long, of which there were only two pages of argument. The argument does not contain citations to supporting legal authority or to the record in support of factual assertions.
After granting the government's motion to dismiss, on April 22, 2004, the Seventh Circuit ordered Chiang to show cause why he should not be sanctioned for filing non-conforming briefs. Chiang filed multiple pleadings in response to the show cause order.
On May 28, 2004, the Seventh Circuit issued another order, directing Chiang to show cause why he should not be disbarred or otherwise sanctioned for his failure to comply
with court rules and for unprofessional conduct in prosecuting appeals before the Seventh Circuit. This order referenced the cases at issue here and stated:
"Our review of these cases has revealed widespread formal and substantive deficiencies in the briefs filed by Chiang on behalf of his clients. The arguments in the briefs are subprofessional and contain few or no citations either to supporting authority or to the record, the jurisdictional statements in the briefs are inaccurate, the briefs contain numerous typographical errors, and the repetition of nearly identical facts from case to case creates a suspicion of fabrication. Chiang's response to our earlier order to show cause raises serious doubts about his ability to represent even his own interests, and his conduct in the six proceedings leads us to question whether he has the competence and dedication required to vindicate his clients' rights."
On June 3, 2004, Chiang filed two documents in response to this order. In one of these documents, Chiang stated: "I am just not convinced that this Circuit shall hold such a higher professional standard and intend to be the professional moral leader in all appellate circuits in the United States."
On June 30, 2004, the Seventh Circuit issued an order disbarring Chiang from practice before it. After reiterating the observations in its prior order relating to the quality of Chiang's briefs, the Court observed:
"Chiang's responses to the order to show cause demonstrate that he cannot adequately defend even his own interests and should not be permitted to continue to proceed in this court on behalf of clients, who are profoundly disserved by such representation. He had demonstrated gross incompetence in prosecuting appeals before this court - incompetence that is underscored by the recent avalanche of motions to withdraw that Chiang has filed. In the past several weeks, Chiang has withdrawn from representation of his clients in five appeals pending before this court and voluntarily dismissed a sixth appeal with the consent of his client. He has acknowledged in these motions the ineptness of his representation of these clients."
On July 7, 2004, Chiang filed an "emergency motion" to vacate the order of disbarment. In this motion, Chiang asked that the Court show cause why it "continuously
repeats the same 5 generalized accusations without providing me exact factual bases." The motion continued with invective against the Court, including allegations that Chiang was being discriminated against based on race. Chiang stated that, as he was from Taiwan, he had no sympathy for or interest in Chinese asylum seekers. In the motion, Chiang also stated to the Court that he had to challenge the "your factual baseless Order because of your laziness."
Chiang filed a second "emergency motion" to vacate on July 8, 2004, complaining that the Court had not cited facts, had used only personal opinion, and that the disbarment order was subprofessional.
On August 3, 2004, the Court denied Chiang's two emergency motions. Thereafter, Chiang filed several pleadings challenging this order. In a petition for rehearing filed on August 25, 2004, Chiang suggested that he was being disciplined because the Court was trying to set itself up as the professional moral leader in all circuits. He went on to complain of racial discrimination, stating: "(a) pure white boy club in the appellate court will not make this Circuit morally strong but morally weak."2
Chiang testified that, when he filed his first case in the Seventh Circuit, he received a handbook. Chiang stated that the handbook misled him into keeping his briefs short and not citing numerous cases. He testified that he had changed the manner in which he writes briefs, preparing long briefs and citing cases. Chiang filed those briefs before the BIA. Since the Seventh Circuit disbarred him, Chiang has not taken any Seventh Circuit cases, and he referred clients in then-pending cases to other attorneys.
Chiang stated that he understood that he had to respect the judges, but felt that they had bullied him and did not respect him. Chiang expressed a "little regret" for his statements about the Seventh Circuit judges. Specifically, he thought that his statement about a
white boy club may have been a mistake and he regretted that one statement. He did not regret any of his other statements or consider them to be mistakes. Chiang testified that he would watch his language in the future, provided the Seventh Circuit judges watched their language.
Initially, Chiang objects to certain procedural and evidentiary matters. Hearing Board procedural and evidentiary decisions are reviewed for abuse of discretion. In re Joyce, 133 Ill. 16, 29, 549 N.E.2d 232, 139 Ill. Dec. 720 (1989). An abuse of discretion occurs where no reasonable person would agree with the position taken by the Hearing Board. In re Wilson, No. 98 CH 69 (March 23, 2001), approved and confirmed, No. M.R. 17518 (Sept. 20, 2001).
Chiang asserts that he was not given proper notice of the charges against him and that, at the hearing, new charges were made that were not included in the complaint. An attorney may be disciplined only for the misconduct charged in the complaint. In re Chandler, 161 Ill. 2d 459, 470, 641 N.E.2d 473, 204 Ill. Dec. 249 (1994). The record, however, does not support Chiang's assertions that new allegations were added against him, and the information considered by the Hearing Board was clearly related to the allegations of the complaint.
Chiang challenges the objectivity of the Hearing Board. He asserts that the Hearing Board assumed facts not in evidence, suggests that the Administrator was afforded more latitude than he was in admitting exhibits, claims irregularities in the preparation of the transcript, and alleges that the Administrator suppressed favorable evidence.
The respondent is entitled to a fair, impartial hearing panel. In re Betts, 109 Ill. 2d 154, 168, 485 N.E.2d 1081, 92 Ill. Dec. 838 (1985). In assessing claims of prejudice, the entire record and the conduct of the hearing panel as a whole should be considered. See generally In re Petrulis, No. 96 CH 546 (Review Board Dec. 9, 1999), approved and confirmed, No. M.R. 16556 (June 30, 2000). Claims of bias cannot be based on disagreement with
indications of the tribunal's perception of the case. See Petrulis, No. 96 CH 546 (Review Board). No prejudice on the part of the hearing panel is apparent from this record; in fact, the Hearing Board's sanction recommendation and favorable comments as to Chiang's intentions indicate a complete lack of prejudice. Similarly, Chiang's objections relating to the admission of evidence, alleged suppression of evidence, and preparation of the transcript are not supported by the record.
Chiang objects to the qualifications and credibility of the expert witness. Weighing witness credibility is within the province of the Hearing Board, as the trier of fact. In re Timpone, 157 Ill. 2d 178, 196, 623 N.E.2d 300, 191 Ill. Dec. 55 (1993); In re Witt, 145 Ill. 2d 380, 390, 583 N.E.2d 526, 164 Ill. Dec. 610 (1991). Further, Chiang cannot now challenge Compernolle's qualifications; at the hearing, Chiang accepted Compernolle as an expert. See Petrulis, No. 96 CH 546 (Review Board) p. 15.
Chiang contends that he is being prosecuted for his political views and his thoughts. The evidence, however, demonstrates that Chiang is being disciplined for conduct, not his thoughts or political views.
Chiang argues that his statements about the Seventh Circuit judges are protected by the First Amendment. Attorneys have First Amendment rights; however, an attorney can be disciplined for knowingly, or with reckless disregard for the truth, making false accusations against judges. In re Kozel, No. 96 CH 50 (Review Board Dec. 30, 1999), petition for leave to file exceptions allowed, sanction modified, No. M.R. 16530 (June 30, 2000); In re Palmisano, No. 92 CH 109 (Review Board Feb. 17, 1994), approved and confirmed, No. M.R. 10116 (May 19, 1994). While attorneys can legitimately criticize a judge or disagree with his or her rulings,
an attorney cannot unjustly impugn the character or integrity of a judge without having any basis for doing so. Kozel, No. 96 CH 50 (Review Board) p. 14.
Chiang objects to the fact that he is being prosecuted for misconduct that occurred in the federal court system. However, the Illinois Supreme Court has inherent authority to discipline attorneys who are admitted to practice before it, even if the misconduct occurred before other tribunals. In re Jafree, 93 Ill. 2d 450, 456, 444 N.E.2d 143, 67 Ill. Dec. 104 (1982).
Chiang complains that he is being selectively prosecuted, as other attorneys have not been disciplined for failing to cite authority to support arguments or filing cases that have been determined to be frivolous. The law does not require identical treatment of attorneys. In re Damisch, 38 Ill. 2d 195, 205, 230 N.E.2d 254 (1967). The Administrator, as the agent of the Supreme Court, has the authority to determine which cases to prosecute. Jafree, 93 Ill. 2d at 456, 444 N.E.2d 143, 67 Ill. Dec. 104; In re Mitan, 75 Ill. 2d 118, 123, 387 N.E.2d 278, 25 Ill. Dec. 662, cert. denied, 444 U.S. 916, 100 S.Ct. 231, 62 L.Ed.2d 171 (1979).
This case involves multiple instances of deficient briefing, not merely an isolated incident. In addition, Chiang made false statements in pleadings, as well as false accusations about the integrity of the judiciary. Under these circumstances, there is no error in the Administrator's decision to bring charges of misconduct against Chiang.
Further, contrary to Chiang's contentions, other attorneys have been charged with misconduct, and disciplined by the Illinois Supreme Court, based on their misconduct before the Seventh Circuit. E.g. In re Washington, No. 89 CH 51 (Review Board Oct. 16, 1991), approved and confirmed, No. M.R. 7971 (Jan. 28, 1992); see In re Howard, 188 Ill. 2d 423, 721 N.E.2d 1126, 242 Ill. Dec. 595 (1999).3 Chiang seems to contend that the discipline imposed against him by the Seventh Circuit was excessive. However, this Board has no power to modify the
discipline imposed by the Seventh Circuit. See generally Supreme Court Rule 753(d) (210 Ill. 2d R. 753(d)).
Chiang challenges the Hearing Board's findings of misconduct. The Hearing Board's factual findings are reviewed deferentially and not reversed unless they are against the manifest weight of the evidence. In re Winthrop, 219 Ill. 2d 526, 542, 848 N.E.2d 961, 302 Ill. Dec. 397 (2006). A factual finding is against the manifest weight of the evidence only if the opposite conclusion is clearly evident. Winthrop, 219 Ill. 2d at 542, 848 N.E.2d 961, 302 Ill. Dec. 397. Questions of an attorney's competence are typically reviewed as mixed questions of law and of fact, under a clearly erroneous standard. See In re Bulger, No. 02 CH 40 (Review Board May 3, 2004), approved and confirmed, No. M.R. 19550 (Sept. 27, 2004); In re Slaughter, No. 97 CH 82 (Review Board Nov. 9, 1999), approved and confirmed, No. M.R. 16460 (March 22, 2000). Issues of law, such as whether the facts constitute the misconduct charged, are reviewed de novo. In re Discipio, 163 Ill. 2d 515, 527, 645 N.E. 2d 906, 206 Ill. Dec. 654 (1994); see In re Owens, 144 Ill. 2d 372, 377, 581 N.E.2d 633, 163 Ill. Dec. 479 (1991).
Issues involving knowledge, intent, and state of mind, which are central to the findings of misconduct in Count I and some of the findings of misconduct in Count VII, are factual issues within the province of the Hearing Board as trier of fact. In re Ingersoll, 186 Ill. 2d 163, 710 N.E.2d 390, 237 Ill. Dec. 760 (1999); Timpone, 157 Ill. 2d at 194-97, 623 N.E.2d 300, 191 Ill. Dec. 55. The Hearing Board's findings that Chiang acted with the requisite knowledge and intent to have committed the misconduct in Count I and to have violated Rule 8.2(a) as alleged in Count VII are not against the manifest weight of the evidence.
The remaining findings of misconduct involve issues of incompetence. Not every error by an attorney constitutes incompetence. In re Mason, 122 Ill. 2d 163, 169-70, 522 N.E.2d
1233, 119 Ill. Dec 374 (1988). The fact that representation is not ideal does not demonstrate a violation of the Rules. In re Bulger, No. 02 CH 40 (Review Board May 3, 2004), approved and confirmed, No. M.R. 19550 (Sept. 27, 2004). Competent representation requires the legal knowledge, skill, thoroughness, and preparation necessary for the representation. Rule 1.1(a); In re Howard, No. 96 CH 531 (Review Board June 4, 1998), approved and confirmed, No. M.R. 15103 (Sept. 28, 1998) (Review Board opinion p. 11). A failure to provide competent representation can be found where the attorney's representation does not meet those standards. See generally In re Grigsby, No. 00 SH 58 (Hearing Board Feb. 15, 2002), affirmed in part, sanction modified, No. 00 SH 58 (Review Board Feb. 3, 2003), petition for leave to file exceptions allowed, sanction modified No. M.R. 18695 (May 22, 2003).4
The evidence in this case was sufficient to support the Hearing Board's finding that, as charged in Counts II through VII, Chiang failed to provide competent representation to his clients. The briefs Chiang filed were in evidence. The briefs contain seriously underdeveloped arguments and were inadequate to constitute even basically reasonable advocacy for Chiang's clients. As noted above, the briefs Chiang filed did not contain citations to legal authorities to support the arguments made or record citations to support the factual statements made. Compernolle's testimony and the observations of the Seventh Circuit in relation to the quality of Chiang's briefs also support the Hearing Board's findings of incompetence.
Given all the circumstances, the Hearing Board's findings of violations of Rule 8.4(a)(5) and Supreme Court Rule 770 as to all counts of the complaint are not against the manifest weight of the evidence.
The primary issue concerns the sanction. The Hearing Board's recommendation as to discipline is advisory. Ingersoll, 186 Ill. 2d at 178, 710 N.E.2d 390, 237 Ill. Dec. 760.
In fashioning the proper sanction in any given case, the Review Board must consider each case, based on its own particular facts and circumstances, while remaining aware that the system seeks to impose sanctions consistent with those imposed in other similar cases. Ingersoll, 186 Ill. 2d at 177-78, 710 N.E.2d 390, 237 Ill. Dec. 760; Timpone, 157 Ill. 2d at 197, 623 N.E.2d 300, 191 Ill. Dec. 55 (1993). In imposing discipline, consideration must be given to the purposes of the disciplinary system. The purpose is not to punish the individual respondent, but rather to protect the public, maintain the integrity of the profession, and protect the administration of justice from reproach. See In re Spak, 188 Ill. 2d 53, 719 N.E.2d 747, 241 Ill. Dec. 618 (1999).
Aggravating and mitigating factors are to be considered. In re Witt, 145 Ill. 2d 380, 398, 583 N.E.2d 526, 164 Ill. Dec. 610 (1991). Mitigating factors can include a lack of prior discipline, cooperation in the disciplinary process, and favorable character evidence. See In re Twohey, 191 Ill. 2d 75, 90, 727 N.E.2d 1028, 245 Ill. Dec. 294 (2000). The extent of the respondent's understanding of his or her misconduct and acceptance of responsibility for it are relevant to the sanction. In re Gorecki, 208 Ill. 2d 350, 367-69, 802 N.E.2d 1194, 280 Ill. Dec. 673 (2003). The respondent's conduct during the disciplinary proceedings is also relevant. In re Samuels, 126 Ill. 2d 509, 531, 535 N.E.2d 808, 129 Ill. Dec. 43 (1989).
The Hearing Board recommended a suspension for one year, with all but one month stayed by probation, subject to conditions. The Administrator objects to this sanction recommendation.
Probation is an optional form of discipline for attorneys who have engaged in misconduct, but whose right to practice law needs to be monitored or limited, rather than suspended or revoked. In re Jordan, 157 Ill. 2d 266, 276, 623 N.E.2d 1372, 191 Ill. Dec. 486
(1993). The goal of Jordan-type probation is to give the respondent an opportunity to correct the deficiencies in his or her practice, while still protecting the public. See e.g., In re Smith, 168 Ill. 2d 269, 659 N.E.2d 896, 213 Ill. Dec. 550 (1995).
Probation can be warranted where the problem appears to be a remediable one. See In re Hogan, 112 Ill. 2d 20, 490 N.E.2d 1280, 96 Ill. Dec. 75 (1986). A disposition that includes probation has been imposed in cases involving incompetence or similar misconduct. E.g., In re Elston, 96 CH 434 (Review Board April 3, 2000), petition for leave to file exceptions denied, No. M.R. 16775 (Nov. 22, 2000); In re Finney, Nos. 96 SH 532, 97 SH 48 (Review Board Aug. 14, 1998), approved and confirmed, No. M.R. 15306 (Feb. 1, 1999); see In re Slaughter, No. 97 CH 82 (Review Board Nov. 9, 1999), approved and confirmed, No. M.R. 16460 (March 22, 2000); In re Howard, No. M.R. 11563 (Sept. 29, 1995).
The Hearing Board's decision to recommend probation was based largely on its view that Chiang was an earnest person with good intentions who attempted to handle matters that were outside his experience. The Hearing Board viewed Chiang's misrepresentations in the Zheng case and accusations against the judiciary as gross lapses in judgment rather than the result of a calculated plan to deceive or injure. The Hearing Board agreed with Compernolle's assessment that Chiang sincerely tried to help his clients and could benefit from seminars or joining a professional organization. Compernolle had also testified that, while there were some things that she would have done differently from Chiang at the administrative level of representation, she did not consider Chiang's conduct before the agency incompetent. In addition, Chiang's familiarity with the language and customs of the Chinese-American community is a factor supporting a recommendation of probation in this case.
Conversely, however, Chiang's misconduct was serious. He demonstrated incompetence in relation to several appeals. His misconduct harmed his clients who, at a minimum, deserved thorough and competent representation. Significantly, Chiang committed additional misconduct. Specifically, he advanced an unwarranted claim and made false statements in a pleading. This is serious misconduct. See generally In re Bulger, No. 02 CH 40 (Review Board May 3, 2004), approved and confirmed, No. M.R. 19550 (Sept. 27, 2004); In re Karbin, No. 98 CH 96 (Review Board May 18, 2001), petition for leave to file exceptions allowed, sanction modified, No. M.R. 17590 (Sept. 20, 2001). Chiang also made false and baseless accusations about the integrity of judges, which is serious misconduct in and of itself. See generally In re Jafree, 93 Ill. 2d 450, 444 N.E.2d 143, 67 Ill. Dec. 104 (1983); In re Palmisano, No. 92 CH 109 (Review Board Feb. 17, 1994), approved and confirmed, No. M.R. 10116 (May 19, 1994).5
There are also aggravating factors present in this case. Chiang does not appear to understand the nature or seriousness of his misconduct. He also has not accepted responsibility for his misconduct. Given these circumstances, there is a serious question as to whether Chiang will conform his future conduct to ethical requirements. See Samuels, 126 Ill. 2d at 531, 535 N.E.2d 808, 129 Ill. Dec. 43 (1989).
Chiang's conduct in the disciplinary proceedings is also aggravating. See Samuels, 126 Ill. 2d at 531, 535 N.E.2d 808, 129 Ill. Dec. 43. For example, Chiang filed a motion to continue the proceedings indefinitely, alleging that the proceedings involved vague matters of unsettled law. Chiang also sought to have the ARDC certify his case as a class action. These motions reflect a fundamental misunderstanding of the nature of the proceedings. Chiang's reports under ARDC Rule 253 (Dis. Com. R. 253) are replete with argument, even
though argument is not the purpose of such reports. See generally ARDC Rule 253 (Dis. Com. R. 253). Chiang filed multiple pleadings with the Hearing Board after the hearing, even though post-trial motions and written closing arguments are generally not to be filed. See ARDC Rule 284 (Dis. Com. R. 284). In addition, without any agreement by the Administrator, Chiang filed a motion before the Review Board for a joint stipulation of facts and recommendation of a reprimand. Chiang's conduct of his own defense in these proceedings indicates a failure to understand applicable procedural rules and the nature of the proceedings. The pleadings Chiang filed in the Seventh Circuit following the rule to show cause likewise cast doubt on his understanding of procedural rules and ability to provide adequate representation to clients.
Continuing a suspension until further order of the Court (UFO) can be warranted where the circumstances as a whole suggest that the respondent is unwilling or unable to conform to ethical standards or where there is serious doubt whether the respondent truly understands the seriousness of his or her misconduct. See In re Houdek, 113 Ill. 2d 323, 326-27, 497 N.E.2d 1169, 100 Ill. Dec. 807 (1986); In re Vickers, No. 00 SH 77 (Review Board Aug. 6, 2002), approved and confirmed, No. M.R. 18384 (Nov. 26, 2002); In re Greanias, No. 01 SH 117 (Hearing Board June 12, 2003), approved and confirmed, No. M.R. 19079 (Jan. 20, 2004).
Under all of the circumstances, a period of probation would serve a useful and legitimate purpose in this case, particularly given the Hearing Board's assessment of Chiang and his overall sincerity. The probationary conditions recommended by the Hearing Board are designed to meet that purpose and are legitimate, with one exception. The Administrator has objected to the Hearing Board's recommendation that a specific named attorney act as Chiang's mentor, rather than simply providing that the mentor be a licensed attorney acceptable to the
Administrator. We agree with the Administrator that the Hearing Board should not attempt to name a specific individual as mentor.
However, given the seriousness of Chiang's misconduct and the aggravating factors present, a harsher sanction than that recommended by the Hearing Board is warranted. This should include a longer period of actual suspension, particularly because Chiang made false statements in pleadings and baseless false accusations against members of the judiciary. Protection of the public also requires a longer period of probation, plus the additional safeguards provided by a UFO if Chiang does not comply with the conditions of probation. A period of suspension, followed by probation, designed to terminate automatically unless Chiang does not comply with the probationary conditions, serves to give Chiang an opportunity to correct the problems in his practice, while protecting the public in case he does not do so. If Chiang fails to comply with the conditions of probation, then the UFO provision would require him to demonstrate his fitness to resume practicing law before he is allowed to do so.
For these reasons, we affirm the Hearing Board's findings of misconduct and recommend that Respondent-Appellant, Li Nan Chiang, be suspended from the practice of law for five months and until further order of the Court (UFO), with the suspension stayed after the first 120 days and respondent placed on probation for two years, subject to the following conditions:
1. Respondent shall comply with the Illinois Rules of Professional Conduct and shall timely cooperate with the Administrator in providing information regarding any investigations relating to his conduct;
2. Respondent shall take at least twenty-five (25) hours of continuing legal education courses in the area of immigration practice and procedure, such classes to be approved by the Administrator;
3. Within the first thirty (30) days of probation, Respondent shall meet with a licensed attorney who concentrates in the area of immigration law and is acceptable to the Administrator, to arrange a mentoring relationship. Thereafter, Respondent shall meet with the mentoring attorney at least once each month. Respondent shall notify the Administrator of the name, address, and telephone number of the mentor and shall cooperate with the mentor in the assessment of Respondent's skill and preparation of client matters;
4. Respondent shall authorize his mentor to disclose to the Administrator, on at least a quarterly basis, information about the nature of Respondent's cooperation with the mentor and Respondent's skill and preparation of client matters. Respondent shall authorize the lawyer mentor to report to the Administrator any lapses in Respondent's skill and preparation of client matters, and the mentor's general appraisal of Respondent's competence in the practice of law;
5. Respondent shall attend meetings scheduled by the Commission probation officer as requested by the Administrator. Respondent shall submit quarterly written reports to the Administrator concerning the status of his practice of law and the nature and extent of his compliance with the conditions of probation;
6. Respondent shall reimburse the Client Protection Program Trust Fund for any Client Protection payments arising from his conduct prior to the termination of the period of suspension/probation;
7. Probation shall be revoked if Respondent is found to have violated any of the terms of probation. The remainder of the period of suspension shall commence from the date of
the determination that any term of probation has been violated and shall continue until further order of the Court; and
8. If Respondent successfully completes the term of his probation, the probation shall terminate without further order of Court.
Date Entered: 30 January 2009
Daniel P. Duffy
1 The Court also found a failure to exhaust administrative remedies as to this issue, which Chiang did not raise before the BIA.
2 The language quoted is representative of comments made in pleadings Chiang filed in the Seventh Circuit disciplinary proceedings. Chiang's pleadings also included other objectionable comments.
3 The respondent in Howard had a lengthy disciplinary history. That history included, but was not limited to, a reprimand due in part to neglecting appeals in the Seventh Circuit. See Howard, 188 Ill. 2d 423, 721 N.E.2d 1126, 242 Ill. Dec. 595. Ultimately, Howard was suspended until further order of the Court. See In re Howard, No. M.R. 18260 (Sept. 19, 2002); In re Howard, No. M.R. 17965 (March 22, 2002).
4 Chiang takes exception to the Hearing Board's reliance on Grigsby. While there are points of distinction between this case and Grigsby, the Hearing Board's consideration of Grigsby was not improper.
5 Chiang's misconduct is far too serious for a reprimand. While the respondent was reprimanded for incompetence in In re Grigsby, No. 00 SH 58 (Hearing Board Feb. 15, 2002), affirmed in part, sanction modified, No. 00 SH 58 (Review Board Feb. 3, 2003), petition for leave to file exceptions allowed, No. M.R. 18695 (May 22, 2003), Grigsby's misconduct was limited to one case, substantial mitigating evidence was presented, Grigsby demonstrated an understanding of his professional obligations, and the Hearing Board found his misconduct was unlikely to recur.