Filed July 15, 2011
BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
SAMIR ZIA CHOWHAN,
Commission No. 09 CH 53
REPORT AND RECOMMENDATION OF THE HEARING BOARD
The hearing in this matter was held on April 20, 2011, at the Chicago offices of the Attorney Registration and Disciplinary Commission ("ARDC"), before a hearing panel consisting of Terrence M. Burns, Chair, Stephan D. Blandin and Albert C. Baldermann. Athena T. Taite appeared as Counsel for the Administrator. Respondent, Samir Zia Chowhan, did not appear and was not represented by counsel.
PLEADINGS AND PRE-HEARING PROCEEDINGS
On July 20, 2009, the Administrator filed a two-count Complaint alleging Respondent engaged in neglect and misrepresentation in two client matters. On July 22, 2000, Respondent waived personal service and on July 23, 2009, he was served with a copy of the Complaint, Notice of Complaint, Order and Rules of the Supreme Court of Illinois via Federal Express.
Respondent participated at a telephonic pre-hearing conference conducted on September 9, 2009. At that time, the Chair entered an order directing Respondent to file an answer to the Administrator's Complaint and a report pursuant to Commission Rule 253 on or before October 14, 2009.
At a telephonic pre-hearing conference conducted on October 20, 2009, the Administrator was granted leave to file a First Amended Complaint, which added an additional count alleging Respondent engaged in conduct prejudicial to the administration of justice and made misrepresentations in the course of a disciplinary investigation. Although Respondent did not participate at this pre-hearing conference, he was given until November 10, 2009, to file an answer to the First Amended Complaint and a report pursuant to Commission Rule 253.
At a telephonic pre-hearing conference held on December 8, 2009, the Chair granted the Administrator's Motion to Deem the Allegations of the First Amended Complaint Admitted Pursuant to Commission Rule 236, thereby limiting the evidence presented at the hearing to matters in aggravation and mitigation. Respondent participated in that pre-hearing conference.
Respondent participated in telephonic pre-hearing conferences held on June 22, 2010, and July 21, 2010, but failed to participate at telephonic pre-hearing conferences held on March 31, 2010, September 29, 2010, November 9, 2010, January 13, 2011 and February 22, 2011.
The Administrator presented the testimony of Kalman Resnick and Nand Bajaj. Administrator's Exhibits 1 through 9 were admitted into evidence. (Tr. 38-39). The evidence and admitted allegations established the following facts.
In April 2003, Motorola and Omid Oliaei, an Iranian researcher, agreed Omid would emigrate to the United States of America to work for Motorola. Omid required approval from the United States Citizenship and Immigration Services ("USCIS") to work legally for Motorola in the United States. Motorola retained the law firm of Gessler Hughes Socol Piers Resnick & Dym, Ltd. ("the Gessler firm") to file its petition and related applications for Omid to obtain a
visa to work for Motorola in the United States. Respondent, as an associate attorney at the Gessler firm, accepted responsibility for filing Motorola's petition and the related applications.
In April 2003, Omid entered the United States to work for Motorola on an L-1B visa, which allows a person with specialized knowledge to work in the United States. On April 22, 2003, Respondent filed various petitions or applications with USCIS regarding Motorola and Omid, including Omid's application to adjust his L-1B status to permanent resident.
On May 10, 2004, Shirin Chegeni, Omid's spouse, entered the United States on an L-2 visa, which allows the spouse of an L-1 worker to enter the United States. Respondent accepted responsibility for filing an application with USCIS to adjust Shirin's status from L-2 to permanent resident. In July 2004, Respondent prepared or caused someone to prepare a check from the Gessler firm for filing fees, so he could file Shirin's application for adjustment of status. However, at no time before April 2005 did Respondent file Shirin's application.
In July 2004, Omid contacted Respondent about the status of Shirin's application. On at least one occasion, Respondent told Omid he had filed Shirin's application, which was a false statement.
On July 16, 2004, USCIS granted Omid's application to adjust his status to permanent resident. (Tr. 18-19). Pursuant to the Immigration and Nationality Act, after Omid became a permanent resident, Shirin was no longer the spouse of an L-1 worker. As a result, Respondent had to file Shirin's application for adjustment of status based on her status as the spouse of a permanent resident by December 16, 2004, or within 180 days of Omid's adjustment of status. However, as of December 16, 2004, Respondent had not filed an application for adjustment based on Shirin's status as the spouse of a permanent resident.
On April 6, 2005, Kalman Resnick, a partner at the Gessler firm, sent an e-mail to Respondent about Shirin's status. Respondent received the e-mail shortly thereafter. In response to Mr. Resnick's e-mail, Respondent filed an application with USCIS for adjustment of Shirin's status. Respondent sent the check he had prepared in July 2004 for filing fees with the application. On April 13, 2005, USCIS returned the application to Respondent, because Respondent had paid the filing fees with a stale check. The Gessler firm then removed Respondent from having responsibility for Shirin's application.
Prior to February 2008, Nand Bajaj retained Respondent to file a petition for his nephew Amit Bajaj to obtain a visa via the United States Citizenship and Immigration Services' Premium Processing Service, which provides faster processing of certain petitions and applications filed with USCIS. Respondent requested $320 for filing fees, $1,000 for Premium Processing fees and $1,250 for attorney fees. On February 12, 2008, Nand paid the fees that Respondent had requested. However, at no time before February 2009, when Respondent's representation was terminated, did Respondent file a petition for Amit's visa.
On at least two occasions, between February 12 and April 16, 2008, Nand attempted to contact Respondent by telephone or e-mail and asked Respondent to contact him about the status of Amit's visa. On April 16, 2008, Respondent sent an e-mail to Nand in which Respondent stated:
I should be hearing something early next week. Unfortunately, I will be out of town next week. As soon as I receive any type of notice, I will contact you. Additionally, Amit does not have to do anything at this time. Once the approval notice comes via regular mail, I will mail to Amit, the original approval notice along with instructions for applying for the visa in India (one must set up the appointment once the approval notice is received). I will take care of instructing him and sending him the required documents. I will touch base with you as soon as I receive something.
(Adm. Ex. 4 at 6). Respondent sent an additional e-mail to Nand in April 2008 in which Respondent stated:
While I was gone I received a call from Immigration. I spoke to them this past week, they wanted a clarification of a couple of things in the application. I should hear from them anytime regarding a decision. I will keep you posted.
(Adm. Ex. 4 at 8). Respondent's statements in the e-mails he sent to Nand in April 2008 were false because Respondent had not filed a petition for Amit's visa.
Between April and August 2008, on at least four occasions, Nand or Nand's wife attempted to contact Respondent by telephone, e-mail or in person and asked Respondent to contact Nand about the status of Amit's visa. On August 6, 2008, Respondent sent an e-mail to Nand, explaining he had been in and out of town due to his mother's illness. Respondent also stated he assumed the petition for Amit's visa was still being processed and on August 18, 2008, he would forward a copy of the petition to Nand. (Adm. Ex. 4 at 12-13). Respondent's statement that he assumed the petition was still being processed was false because he had not filed a petition for Amit's visa.
On September 17, 2008, after not receiving a copy of the petition from Respondent, Nand contacted Respondent by e-mail, stating he would contact the ARDC, if Respondent did not contact him. On September 22, 2008, Respondent sent an e-mail to Nand in which Respondent stated:
… I think I've figured out what has happened. It seems like the application was not put into premium processing and is in the regular processing line which takes about 6-9 months. I am fairly certain this has happened because I went through my records and discovered that the $1000 check for the premium processing was not cashed. It seems that in their mailroom, the premium processing part of the application somehow was mishandled.
Today I have resent the premium processing form with check to immigration to have the case converted from regular processing to premium. This should give us a response within 2 weeks at the latest ….
(Adm. Ex. 4 at 17-18). Respondent's statements that the application had not been put into premium processing and he resent the premium processing form to have the case converted from regular to premium processing were false, because he had not filed a petition for Amit's visa.
On at least three occasions, between September 22, 2008 and February 2009, Nand attempted to contact Respondent by telephone and e-mail and asked Respondent to contact him about Amit's visa. Respondent did not respond to Nand's attempts to contact him.
On February 2, 2009, Vandana Kamboj, a California attorney and Nand's niece, sent a letter to Respondent at Nand's direction. The letter advised Respondent that Nand wanted a full refund of the fees he paid to Respondent. (Adm. Ex. 5). Respondent received the letter shortly thereafter. On February 9, 2009, Nand filed with the ARDC a request for an investigation of Respondent. (Adm. Ex. 3). Shortly thereafter, Respondent received notice from the ARDC of Nand's request for an investigation. On April 1, 2009, Respondent refunded the $2,570 Nand had paid to him. (Adm. Ex. 6).
In May 2009, Respondent was a sole practitioner, who shared office space with several other attorneys. On May 28, 2009, Respondent logged onto the Internet at his law office at 134 N. LaSalle, Suite 1800, Chicago, Illinois through AT&T Internet Services, the Internet provider of the attorney, who had an office in the same suite and building and from whom Respondent was then renting an office. At approximately 1:25 p.m. Respondent accessed the website, "Craigslist.org," ("Craigslist") and posted an ad in the "Adult Gigs" section of the classified advertisements of Craigslist.
The title of the post was "Loop lawyers hiring secretary/legal assistant." The post read as follows:
Loop law firm looking to hire am [sic] energetic woman for their open secretary/legal assistant position. Duties will include general secretarial work, some paralegal work and additional duties for two lawyers in the firm. No experience required, training will be provided. Generous annual salary and benefits will be provided, including medical, dental, life, disability, 401(k) etc. If interested, please send current resume and a few pictures along with a description of your physical features, including measurements. We look forward to meeting you.
It's NOT ok to contact this poster with services or other commercial interests
Compensation: Annual salary negotiable
The Craigslist post by Respondent provided that replies were to be made to firstname.lastname@example.org. (Adm. Ex. 7 at 9). Subsequently, replies to the ad were forwarded via Craigslist to Respondent's office e-mail address.
On May 28, 2009, at 10:26 p.m., Debbi Dickinson sent Respondent an e-mail response to Respondent's posting. Ms. Dickinson's response included her employment history, a photo, her height, clothing size and her measurements. (Adm. Ex. 7 at 10-12). Although Dickinson found Respondent's request for a description of her physical features unusual, she believed Respondent was seeking an attractive secretary.
Respondent received and read Ms. Dickinson's e-mail. On May 29, 2009, at 9:23 a.m., Respondent responded by e-mail to Dickinson's e-mail. Respondent's response read as follows:
Thank you for your interest in the job. I just wanted to give you some more info about the job and see if you are still interested in interviewing.
Our law firm is a boutique firm, concentrating solely in immigration law. The name of the law firm is Chowhan Law, P.C. You can see the website at www.chowhanlaw.com. You would be working with the two partners of the firm. Your duties will include the general secretarial work and legal work. The legal work will include filling out visa applications, etc. As mentioned in the posting, you will have an annual salary which will depend on your experience and other
factors, the range will be from $50,000 to $75,000. In addition, we provide several benefits such as medical, dental, retirement, life, disability.
As this is posted in the "adult gigs" section, in addition to the legal work, you would be required to have sexual interaction with me and my partner, sometimes together sometimes separate. This part of the job would require sexy dressing and flirtatious interaction with me and my partner, as well as sexual interaction. You will have to be comfortable doing this with us.
If you think you're comfortable so far, please let me know and we can proceed with the process.
The next step is to set up an interview. When are you available to interview? I am free to interview today. Please let me know what your availability is.
Lastly, we've actually hired a couple of girls in the past for this position. But they have not been able to handle the sexual aspect of the job later. We have to be sure you're comfortable with that aspect, because I don't want you to do anything that you're not comfortable with. So since that time, we've decided that as part of the interview process you'll be required to perform for us sexually (i didn't do this before with the other girls i hired, now i think i have to because they couldn't handle it). Because that aspect is an integral part of the job, I think it's necessary to see if you can do that, because it'll predict future behavior of you being able to handle it when you have the job.
If you're still okay with everything, let me know what you're availability is and we can figure out a time for you to come in and interview. Let me know. Thanks for your interest.
(Adm. Ex. 7 at 12-14). Ms. Dickinson was frightened by Respondent's response and did not reply to Respondent's e-mail.
On June 1, 2009, Ms. Dickinson sent a request for investigation to the Administrator of the ARDC, attaching a copy of Respondent's Craigslist post, her e-mail reply and Respondent's e-mail response. (Adm. Ex. 7). On June 16, 2009, Counsel for the Administrator mailed a letter to Respondent attaching the request for investigation from Ms. Dickinson and requesting Respondent respond in writing within 14 days. Respondent received the request shortly thereafter.
On July 22, 2009, Respondent sent a response via facsimile to Counsel for the Administrator in which Respondent stated:
… It appears that somebody with malice [sic] intentions has used my business information to post the advertisement on Craigslist. I did not post the advertisement for a legal secretary ….
(Adm. Ex. 8). Respondent's statement that he did not post the advertisement on Craigslist was false. On September 22, 2009, Respondent appeared for a sworn statement at the Chicago office of the ARDC. At that time, Respondent acknowledged he posted the May 28, 2009 Craigslist advertisement and sent the May 29, 2009 e-mail to Ms. Dickinson. (Adm. Ex. 9 at 18-26).
Evidence Offered in Aggravation
Kalman Resnick is a partner and shareholder at Hughes, Socol, Piers, Resnick and Dym, Ltd. (Tr. 13). Mr. Resnick has been directing his firm's immigration practice since 1990 and was Respondent's principal supervisor while Respondent was an associate with the firm. (Tr. 13-14).
Mr. Resnick testified that Respondent's neglect of Shirin Chegeni's immigration matter put her at risk of being removed from the United States. In addition, she could have been barred from returning for 3 to 10 years. (Tr. 20-22). Upon being advised of Respondent's actions, Mr. Resnick's firm fully disclosed the facts to Shirin, continued to represent her for no charge and advised the ARDC of Respondent's misrepresentations. (Tr. 22-23; Adm. Exs. 1, 2). The firm also paid the costs and fees incurred when Omid sought counsel from another attorney. The firm remedied Respondent's neglect by sending Shirin and Omid to the United States Consulate in Abu Dhabi in order to obtain the proper immigrant visa. (Tr. 22-24). Mr. Resnick's estimated his firm paid approximately $7,500 to rectify Respondent's mishandling of Shirin's matter. (Tr. 24).
FINDINGS OF FACT AND CONCLUSIONS OF LAW
In attorney disciplinary proceedings, the Administrator must prove the alleged misconduct by clear and convincing evidence. Supreme Court Rule 753(c)(6); In re Cutright, 2009 IL 107236. Clear and convincing evidence is a standard of proof which, while less than the criminal standard of proof beyond a reasonable doubt, is greater than the civil standard of preponderance of the evidence. "Clear and convincing evidence has been defined as evidence producing a firm belief or conviction as to the truth of the proposition." Cleary and Graham, Handbook of Illinois Evidence, sec. 301.6 (8th ed. 2004).
The allegations of the Complaint were deemed admitted due to Respondent's failure to file an answer or other responsive pleading. The Administrator's witnesses and exhibits provide further proof to support the admitted allegations of the Complaint. Therefore, we find Respondent:
failed to act with reasonable diligence and promptness in representing a client in violation of Rule 1.3 of the Illinois Rules of Professional Conduct ("Rules") (Counts I and II);
made a false statement of material fact in connection with a lawyer disciplinary matter in violation of Rule 8.1(a)(1) of the Rules (Count III);
engaged in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(a)(4) of the Rules (Counts I, II and III);
engaged in conduct that is prejudicial to the administration of justice in violation of Rule 8.4(a)(5) of the Rules (Count I); and
engaged in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute in violation of Supreme Court Rule 770 (Counts I, II and III).
The purpose of the disciplinary system is to protect the public, maintain the integrity of the legal system, and safeguard the administration of justice. In re Gorecki, 2003 IL 96299. See
also, In re Howard, 1999 IL 86982. The goal is not to punish the attorney, but to determine whether the attorney should be permitted to practice in the profession. In re Smith, 1995 IL 78479. In determining the proper sanction, we consider the proven misconduct along with any aggravating and mitigating factors. In re Witt, 1991 IL 71176.
In aggravation, Respondent failed to appear at his disciplinary hearing. Respondent's lack of participation in this matter indicates both a lack of concern for his professional fate and disrespect for the disciplinary process. See In re Brody, 1976 IL 48343. In further aggravation, Respondent's neglect of Shirin's immigration matter put her at risk of being deported from the United States and caused Respondent's law firm to incur significant costs to remedy Respondent's neglect of Shirin's matter.
We are mindful Respondent has no prior discipline. Generally, a lack of prior discipline is a mitigating factor. However, in this case it is insufficient to outweigh the serious nature of Respondent's neglect of two client matters, his lack of candor with his clients and the ARDC and his engagement in conduct, which reflects poorly on the legal profession. Additionally, Respondent forfeited his opportunity to present any evidence of mitigating circumstances by his failure to appear at the hearing.
Having considered the aggravating and mitigating factors, we now must determine an appropriate sanction for Respondent's misconduct. The Administrator recommends Respondent be suspended for one year and until further order of the Court. We agree. The following cases support our recommendation that a one year suspension and until further order of the Court is warranted, when an attorney engages in neglect of client matters, makes misrepresentations to his clients and the ARDC, attempts to use his position of authority in an employment matter in an inappropriate manner and fails to participate in his disciplinary case.
The Illinois Supreme Court stated in In re Houdek, 1986 IL 62754, the lack of any evidence that an attorney is willing or able to meet professional standards of conduct in the future, warrants a suspension until further order of the Court. In this case Respondent failed to meaningfully participate in the disciplinary process. He did not file an answer or responsive pleading to the Administrator's First Amended Complaint and failed to appear at his disciplinary hearing. There was no evidence presented at the hearing to show Respondent understands and is able to meet his professional obligations.
The attorney in In re Samuels, 1989 IL 65944 was suspended for one year for neglecting four client matters over a six year period. Similar to Respondent, the attorney in Samuels caused harm to each of the four clients whose cases he neglected. In this case, Respondent's neglect of Shirin's matter put her at risk of being deported from the United States. Although Respondent neglected fewer client matters than the attorney in Samuels, Respondent also made misrepresentations to his clients about his handling of their matters in an attempt to conceal his neglect of their cases.
The attorney in In re Bonner, 93 CH 442, M.R. 10536 (Nov. 30, 1994) was suspended for one year and until further order of the Court for neglecting three client matters, engaging in dishonest conduct and failing to meaningfully participate in the disciplinary process. The attorney in In re Gershon, 06 CH 14, M.R. 21295 (Jan. 12, 2007) was suspended for one year and until further order of the Court for his neglect of one client matter and his failure to cooperate with the ARDC. The attorney in Gershon also had a prior disciplinary matter in which he neglected two client matters and made misrepresentations to one of those clients. Respondent's misconduct in this case is comparable to the misconduct of the attorneys in both Bonner and Gershon.
We also note the attorney in In re Clark, 97 CH 111, M.R. 17713 (Nov. 29, 2001) was suspended for two years and until further order of the Court for his misconduct arising out of three separate instances in which he tied women with rope and did not immediately release them. The women were applicants and support staff in law firms, which employed the attorney. Respondent's placement of an ad in the "Adult Gigs" section of Craigslist for a legal secretary and his subsequent response to Ms. Dickson is not as serious as the attorney's misconduct in Clark. However, similar to the attorney in Clark, Respondent used his position of authority in an employment context in an inappropriate manner, which reflects poorly on the legal profession.
Accordingly, having considered the misconduct that occurred, the aggravating factors and the case law, we recommend Respondent be suspended for one year and until further order of the Court
Date Entered: July 15, 2011
|Terrence M. Burns, Chair, with Stephan D. Blandin and Albert C. Baldermann, concurring.|