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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 14-BG-848
IN RE JUAN LORENZO RODRIGUEZ-QUESADA, RESPONDENT.
A Suspended Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 487484)
On Report and Recommendation of the Board on Professional Responsibility (BDN-126-10)
(Argued May 21, 2015 Decided August 13, 2015)
Melvin G. Bergman for respondent.
Jelani C. Lowery, Senior Staff Attorney, with whom Wallace E. Shipp, Jr., Bar Counsel, Jennifer P. Lyman, Senior Assistant Bar Counsel, and Traci M. Tait, Assistant Bar Counsel, were on the brief, for the Office of Bar Counsel.
Before EASTERLY and MCLEESE, Associate Judges, and KING, Senior Judge.
PER CURIAM: The Board on Professional Responsibility concluded that
respondent Juan Lorenzo Rodriguez-Quesada violated numerous Rules of
Professional Conduct during his representation of several clients in immigration
matters. The Board recommends that this court suspend Mr. Rodriguez-Quesada
for two years and, as a condition of reinstatement, require Mr. Rodriguez-Quesada
to pay restitution to all but one of the affected clients. Mr. Rodriguez-Quesada 2
challenges the conclusions of the Board as to many of the rule violations and also
argues that any suspension should be brief. The Office of Bar Counsel defends the
Board’s findings of rule violations and the imposition of a two-year suspension,
but argues that this court should condition reinstatement on a showing of fitness
and payment of restitution to all of the affected clients. We accept the Board’s
findings and conclude that Mr. Rodriquez-Quesada should be suspended for two
years, with reinstatement conditioned on a showing of fitness and payment of
restitution to all of the affected clients.
I.
The Board’s report and recommendation rests on the following factual
conclusions, which the Board largely adopted from the factual findings of the
Hearing Committee.
Mr. Rodriguez-Quesada became a member of the Bar of the Commonwealth
of Puerto Rico in 1975 and of the Bar of the District of Columbia in 2005. From
2003 through 2008, Mr. Rodriguez-Quesada practiced immigration law. During
that period, Mr. Rodriguez-Quesada handled from 400 to 500 immigration cases. 3
The disciplinary proceedings in this case focus on four specific matters, which we
discuss in turn.
A.
In August 2006, Mr. Rodriguez-Quesada agreed to represent Hector Abarca,
an El Salvadoran national, in connection with Mr. Abarca’s effort to renew a work
permit. Specifically, Mr. Rodriguez-Quesada signed a retainer agreement in which
he agreed to file an asylum application, an application for relief under the
Nicaraguan Adjustment and Central American Relief Act (NACARA), and an
application for cancellation of removal. Mr. Rodriguez-Quesada did not explain
the retainer agreement or his case strategy to Mr. Abarca. Mr. Rodriguez-Quesada
did little work on the case between August 2006 and February 2007. At an initial
court hearing in February 2007, Mr. Rodriguez-Quesada told an immigration judge
that Mr. Abarca was seeking cancellation of removal. Mr. Rodriguez-Quesada had
not obtained information necessary to make such a request and never did so,
despite having been told to do so by the immigration judge.
Proceedings in the matter were continued until January 2008. During this
time, Mr. Rodriguez-Quesada had little contact with Mr. Abarca except to obtain 4
payment. When Mr. Abarca or his wife asked about the status of the case, Mr.
Rodriguez-Quesada got angry, was discourteous, and threatened to withdraw if
they questioned what he was doing. In October 2007, Mr. Rodriguez-Quesada
filed an application for temporary protected status, but Mr. Abarca was not eligible
for temporary protected status. Moreover, the application Mr. Rodriguez-Quesada
filed was missing essential information.
In December 2007, the immigration authorities sent Mr. Rodriguez-Quesada
two notices that Mr. Abarca should appear for proceedings in January 2008. Mr.
Rodriguez-Quesada did not send those notices to Mr. Abarca. In January 2008,
Mr. Rodriguez-Quesada filed a NACARA application and an application for
cancellation of removal. Mr. Rodriguez-Quesada failed to have Mr. Abarca sign
those documents. In one of the applications, Mr. Rodriguez-Quesada stated that
Mr. Abarca was a habitual drunkard without adequately exploring the accuracy of
the statement, which could have precluded Mr. Abarca from obtaining relief.
In January 2008, the relationship between Mr. Rodriguez-Quesada and Mr.
Abarca deteriorated, because Mr. Rodriguez-Quesada was insisting on additional
payments, demanding that Mr. Abarca provide information of questionable
relevance, and threatening to withdraw if Mr. Abarca did not comply. Mr. Abarca 5
asked for return of his case file, but Mr. Rodriguez-Quesada refused unless Mr.
Abarca paid the outstanding balance on Mr. Rodriguez-Quesada’s fee. Mr.
Rodriguez-Quesada returned Mr. Abarca’s file only after Mr. Abarca called the
police for assistance.
Mr. Abarca subsequently hired a new lawyer, who explained Mr. Abarca’s
options, obtained necessary information, and filed an additional petition for relief.
Mr. Abarca ultimately obtained relief as result of the NACARA petition. Mr.
Abarca subsequently sued Mr. Rodriguez-Quesada in small-claims court in
Virginia, seeking return of fees, but did not prevail.
B.
In January 2007, Gia Koerner-Goodrich retained Mr. Rodriguez-Quesada to
obtain a certification of United States citizenship for her nephew, who was born
and lived in Italy but whose mother and grandfather were United States citizens.
In the retainer agreement, Ms. Koerner-Goodrich agreed to pay any necessary
filing fees and Mr. Rodriguez-Quesada agreed to prepare and expeditiously file all
necessary forms, keep Ms. Koerner-Goodrich informed, and respond promptly to
her inquiries. Ms. Koerner-Goodrich provided all the necessary information to Mr. 6
Rodriguez-Quesada by March 2007, but Mr. Rodriguez-Quesada delayed three
months before sending the documents to Italy to be signed and then delayed six
more weeks before attempting to file the documents.
The immigration authorities increased the applicable filing fee from $255 to
$460, effective July 30, 2007. Mr. Rodriguez-Quesada mailed the application on
July 29, 2007, but enclosed only $250. The immigration authorities therefore
rejected the application and required resubmission with payment of a $460 filing
fee. Mr. Rodriguez-Quesada did not inform Ms. Koerner-Goodrich of the problem
until nine months later, when Ms. Koerner-Goodrich asked about the status of the
case. Mr. Rodriguez-Quesada agreed to refile the application, but asked Ms.
Koerner-Goodrich to pay the higher filing fee. Ms. Koerner-Goodrich refused to
do so, instead discharging Mr. Rodriguez-Quesada and asking for a return of the
retainer, the filing fee, and her case file. Mr. Rodriguez-Quesada initially did not
respond or return the requested items. After receiving a letter from the Better
Business Bureau, Mr. Rodriguez-Quesada did return the file and the filing fee. Mr.
Rodriguez-Quesada never returned the retainer. Ms. Koerner-Goodrich hired a
new attorney who obtained a citizenship certification but had to duplicate the work
previously done on the case because of the passage of time. 7
C.
In September 2006, Saad Belhmira, a Moroccan national, retained Mr.
Rodriguez-Quesada to help get Mr. Belhmira’s student visa reinstated. In the
retainer agreement, Mr. Belhmira agreed to pay $2,000 and Mr. Rodriguez-
Quesada agreed to keep Mr. Belhmira informed and to respond promptly to
communications. After Mr. Rodriguez-Quesada told Mr. Belhmira that the fee had
increased to $4,000 because of an increased scope of work, Mr. Belhmira agreed to
pay the larger amount.
Mr. Rodriguez-Quesada subsequently told Mr. Belhmira that Mr. Belhmira
had three options to avoid deportation: reinstating his student visa, getting a
sponsor, or marrying a United States citizen. Mr. Rodriguez-Quesada gave Mr.
Belhmira very little guidance about how to find a sponsor or get his student visa
reinstated. Mr. Rodriguez-Quesada did not advise Mr. Belhmira that, because
removal proceedings had begun, there would be a rebuttable presumption that any
marriage to a United States citizen was fraudulent.
On March 9, 2007, Mr. Belhmira married a United States citizen. Although
an immigration hearing was scheduled for March 28, 2007, Mr. Rodriguez- 8
Quesada did not prepare the Belhmiras for the hearing and did not meet with Ms.
Belhmira until the day of the hearing. The hearing was continued until February
2008 to permit Mr. Rodriguez-Quesada to file a marriage petition. The Belhmiras
provided pertinent information to Mr. Rodriguez-Quesada by October 2007 and
signed the necessary forms in December 2007. Because Mr. Rodriguez-Quesada
erroneously thought that he did not have Ms. Belhmira’s birth certificate, he did
not file the marriage petition before the February 2008 hearing. At that hearing,
Mr. Rodriguez-Quesada falsely told the immigration judge that the petition had
been filed. The immigration judge continued the hearing. Mr. Rodriguez-Quesada
filed the petition in April 2008.
After several continuances, the hearing was set for July 2009. Mr.
Rodriguez-Quesada did not communicate with the Belhmiras from February 2008
until November 2008, did not thereafter meet with the Belhmiras before the July
2009 hearing, and failed to respond to Mr. Belhmira’s inquiry about the date of the
hearing. Mr. Rodriguez-Quesada failed to appear for the July 2009 hearing. Mr.
Belhmira, who had learned the date of the hearing from the immigration court,
appeared and explained that he did not know why Mr. Rodriguez-Quesada was not
present and did not know the status of the marriage petition. 9
After trying unsuccessfully to contact Mr. Rodriguez-Quesada, Mr.
Belhmira sent Mr. Rodriguez-Quesada a letter terminating the representation and
requesting the case file. Mr. Rodriguez-Quesada did not respond. Mr. Belhmira
subsequently hired a new lawyer, and the marriage petition eventually was granted.
Mr. Rodriguez-Quesada did not return Mr. Belhmira’s case file until October 2009,
a month after Mr. Belhmira filed a complaint with Bar Counsel.
D.
In August 2006, Mr. Rodriguez-Quesada was retained by Erlin Ramirez, a
Honduran national, and Iris Vargas Ramirez, a United States citizen. Mr. Ramirez
entered the United States unlawfully in 1988 and was deported in absentia in 1997
after he failed to appear at an immigration hearing in California. After moving to
Maryland to avoid deportation, Mr. Ramirez married Ms. Ramirez in 2001. The
Ramirezes paid Mr. Rodriguez-Quesada $2,500 for his services.
It was not clear how Mr. Rodriguez-Quesada hoped to help Mr. Ramirez
avoid deportation. Ms. Ramirez thought that Mr. Rodriguez-Quesada would seek
to reopen the California proceeding, and if that was unsuccessful Mr. Rodriguez-
Quesada would file a marriage petition. On that understanding, Ms. Ramirez 10
signed a marriage petition in September 2006. Without advising his clients, Mr.
Rodriguez-Quesada filed the marriage petition in October 2006. The Ramirezes
were concerned that the filing might lead to Mr. Ramirez’s deportation,
particularly after they received a notice in October 2007 from the immigration
authorities directing them to appear for an interview in November 2007. Mr.
Ramirez did not attend the interview, which was continued. After learning from
another lawyer that Mr. Ramirez would likely have been deported if he had
attended the interview, Mr. Rodriguez-Quesada advised the Ramirezes to sell their
house and hide.
Mr. Rodriguez-Quesada had virtually no contact with the Ramirezes from
November 2007 through July 2008. After receiving a notice from the immigration
authorities to appear for an interview in July 2008, the Ramirezes repeatedly tried
to contact Mr. Rodriguez-Quesada, but he did not return their calls. The
Ramirezes ultimately were able to arrange a meeting with Mr. Rodriguez-Quesada,
at which time the representation was terminated. Mr. Rodriguez-Quesada refused
to return any portion of the fee paid by the Ramirezes. The Ramirezes hired
another lawyer, and Mr. Ramirez apparently obtained permanent resident status. 11
II.
Based on the foregoing factual conclusions, the Board determined by clear
and convincing evidence that Mr. Rodriguez-Quesada violated numerous Rules of
Professional Conduct. Specifically, the Board determined that Mr. Rodriguez-
Quesada violated Rules 1.1 (a) and (b) (lack of competence, skill, and care)
(Abarca, Belhmira, and Ramirez matters); 1.3 (a) and (c) (lack of diligence and
promptness) (all four matters); 1.3 (b)(2) (intentional prejudice to client) (Abarca
matter); 1.4 (a) (failure to keep client reasonably informed) (all four matters);
1.4 (b) (failure to explain matter to client) (Abarca, Belhmira, and Ramirez
matters); 1.16 (d) (failure to return files or unearned fees on termination) (all four
matters); 3.3 (a)(1) (knowingly making false statement to tribunal) (Belhmira
matter); and 8.4 (c) and (d) (dishonesty and serious interference with
administration of justice) (Belhmira matter).
We “shall accept the findings of fact made by the Board unless they are
unsupported by substantial evidence of record . . . .” D.C. Bar R. XI, § 9 (h)(1).
Similarly, the Board must defer to the factual findings of the Hearing Committee if
those findings are supported by substantial evidence. See, e.g., In re Brown, 112
A.3d 913, 917 (D.C. 2015) (per curiam). We owe no deference to the Board’s 12
legal conclusions. In re Yelverton, 105 A.3d 413, 420 (D.C. 2014), petition for
cert. filed, No. 15-5001 (U.S. June 30, 2015). We accept the Board’s conclusion
that Mr. Rodriguez-Quesada violated each of the specified rules.
With respect to the Abarca matter, Mr. Rodriguez-Quesada (1) argues that
he was the one who filed the NACARA petition that ultimately resulted in relief
for Mr. Abarca; (2) notes that there were factual disputes before the Hearing
Committee; and (3) conclusorily asserts that there was inadequate proof that Mr.
Rodriguez-Quesada’s filings were inappropriate. We are not persuaded by these
arguments.
First, although Mr. Rodriguez-Quesada did do one thing that ultimately bore
fruit for his client, that does not constitute a defense to the numerous other serious
deficiencies found by the Board, supported by the record, and not specifically
challenged by Mr. Rodriguez-Quesada. See generally, e.g., In re Shelnutt, 719
A.2d 96, 97 (D.C. 1998) (per curiam) (“Professional disciplinary violations arise
from malfeasance, not the actual harm imposed upon a client. . . . [P]rejudice to a
client is not an element of a charge of neglect, although . . . it may be relevant on 13
the issue of sanctions.”) (brackets and internal quotation marks omitted).
Specifically, the Board found that Mr. Rodriguez-Quesada failed to seek an
extension of Mr. Abarca’s asylum application; never filed for cancellation of
removal despite promising to do so; failed to seek renewal of Mr. Abarca’s work
permit, instead filing an application for a new work permit for which Mr. Abarca
was not qualified; filed an application for temporary protected status even though
Mr. Abarca was not eligible for that status; failed to obtain necessary information
even after being admonished by an immigration judge to do so; omitted necessary
information from a filing; filed a pleading with a damaging description of his client
as a habitual drunkard without adequately investigating the matter; and neglected
Mr. Abarca’s case.
Second, we see no basis to look behind the Hearing Committee’s resolution,
adopted by the Board, of the factual disputes concerning Mr. Rodriguez-Quesada’s
representation of Mr. Abarca. D.C. Bar R. XI, § 9 (h)(1).
Third, notwithstanding Mr. Rodriguez-Quesada’s conclusory statement to
the contrary, the record amply supports the Board’s findings of rule violations in
connection with Mr. Rodriguez-Quesada’s representation of Mr. Abarca. 14
With respect to the Koerner-Goodrich matter, Mr. Rodriguez-Quesada does
not make specific arguments as to how the Board erred, instead simply
summarizing the facts and proceedings before the Hearing Committee and the
Board. Such briefing is generally insufficient to present an issue for this court’s
decision. Cf. In re Kline, 11 A.3d 261, 265 (D.C. 2011) (court in disciplinary
proceeding did not consider argument that was not briefed and was only raised
during oral argument); Bardoff v. United States, 628 A.2d 86, 90 n.8 (D.C. 1993)
(where “[a]ppellants provide[d] no supporting argument in their brief” for assertion
on appeal, court considered argument abandoned on appeal). In any event, the
record supports the Board’s conclusions that Mr. Rodriguez-Quesada failed to act
diligently, to keep his client reasonably informed, and to promptly return files and
fees in the Koerner-Goodrich matter.
With respect to the Belhmira matter, Mr. Rodriguez-Quesada argues that the
record does not adequately support the finding that Mr. Rodriguez-Quesada
knowingly made a false statement to the immigration judge about filing the 15
marriage petition. We disagree. Having both reviewed a transcript and listened to
an audio recording of the proceedings, we see no basis upon which to overturn the
conclusions of the Hearing Committee and the Board that Mr. Rodriguez-Quesada
made an intentionally false statement to the immigration judge. Mr. Rodriguez-
Quesada further points out that successor counsel ultimately filed a marriage
petition that was granted. As we have already noted, however, the absence of
prejudice to the client’s legal rights is not generally a defense in disciplinary
proceedings. In re Shelnutt, 719 A.2d at 97.
With respect to the Ramirez matter, Mr. Rodriguez-Quesada argues that he
made some efforts on the Ramirezes’ behalf, including filing the marriage petition
that was ultimately granted. Here too, the fact that one thing Mr. Rodriguez-
Quesada did ultimately bore fruit for his client is not a defense to the numerous
other serious deficiencies found by the Board, supported by the record, and not
specifically challenged by Mr. Rodriguez-Quesada. In re Shelnutt, 719 A.2d at 97.
Specifically, the record amply supports the Board’s findings that Mr. Rodriguez-
Quesada failed to discuss with the Ramirezes the risks associated with filing a
marriage petition; failed to consult with them before filing the petition; failed to 16
prepare them for the hearing on the petition; and failed to keep them informed
about the case and to respond to their inquiries.
In sum, we accept the Board’s conclusions that Mr. Rodriguez-Quesada
committed numerous rule violations.
III.
We turn now to the issue of sanction. The Board recommended that Mr.
Rodriguez-Quesada be suspended for two years and be required, as a condition of
reinstatement, to make restitution to Ms. Koerner-Goodrich, Mr. Belhmira, and the
Ramirezes. The Board declined, however, to condition reinstatement on a showing
of fitness or payment of restitution to Mr. Abarca.
“Our Rules provide that this Court ‘shall adopt the recommended disposition
of the Board unless to do so would foster a tendency toward inconsistent
dispositions for comparable conduct or would otherwise be unwarranted.’” In re
Vohra, 68 A.3d 766, 771 (D.C. 2013) (quoting D.C. Bar R. XI, § 9 (h)(1)). Thus,
“[a] sanction recommendation from the Board comes to us with a strong
presumption in favor of its imposition.” Id. (internal quotation marks omitted). In 17
general, “if the Board’s recommended sanction falls within a wide range of
acceptable outcomes, it will be adopted and imposed.” Id. (internal quotation
marks omitted). “Ultimately, however, the system of attorney discipline, including
the imposition of sanctions, is the responsibility and duty of this court.” In re
Kanu, 5 A.3d 1, 14 (D.C. 2010) (internal quotation marks omitted). Where this
court takes a significantly different view of the seriousness of an attorney’s
conduct, the court thus has not hesitated to reach its own conclusion as to the
appropriate sanction. See, e.g., In re Goffe, 641 A.2d 458, 464 (D.C. 1994) (per
curiam).
In determining what sanction to impose upon an attorney for violations of
the Rules of Professional Conduct, we consider a number of factors, including, “(1)
the nature and seriousness of the misconduct; (2) prior discipline; (3) prejudice to
the client; (4) the [attorney’s] attitude; (5) circumstances in mitigation and
aggravation; and (6) the mandate to achieve consistency.” In re Vohra, 68 A.3d at
771. We also consider “the moral fitness of the attorney” and “the need to protect
the public, the courts, and the legal profession . . . .” In re Howes, 52 A.3d 1, 15
(D.C. 2012) (internal quotation marks omitted). “The purpose of imposing
discipline is to serve the public and professional interests identified and to deter 18
future and similar conduct rather than to punish the attorney.” In re Kanu, 5 A.3d
at 16 (internal quotation marks omitted).
Mr. Rodriguez-Quesada argues that any suspension should be brief, because
(1) his clients suffered no injury to their legal rights; (2) he no longer is practicing
immigration law; (3) he was overwhelmed by the volume of his immigration
practice; and (4) his conduct may have been neglectful but was not egregious. We
conclude that a two-year suspension is warranted.
Mr. Rodriguez-Quesada committed numerous serious violations of the Rules
of Professional Conduct in four different matters. His conduct reflects a pattern of
lack of competence, lack of diligence, neglect of his clients’ cases, failure to
communicate with his clients, and refusal to return case files and unearned
payments. In one case, he intentionally made a false statement to an immigration
judge and then gave false testimony to the Hearing Committee about having done
so. His rule violations financially injured his clients, who were required to pay
new counsel to handle matters they had already paid Mr. Rodriguez-Quesada to
handle. Moreover, as the Board noted, Mr. Rodriguez-Quesada’s clients “were 19
particularly vulnerable[,] as their ability to remain in the United States and with
their families was hanging on his efforts.” With minor exceptions, Mr. Rodriguez-
Quesada failed to acknowledge his violations and exhibited no remorse.
Although Mr. Rodriguez-Quesada has no prior disciplinary history, we
conclude that his violations of the Rules of Professional Conduct were sufficiently
numerous and serious as to warrant a two-year suspension. See, e.g., In re Mintz,
626 A.2d 926, 927 (D.C. 1993) (per curiam) (“[A] two-year suspension, with
reinstatement conditioned upon a showing of fitness, is within the range of
sanctions that we have previously ordered for similar cases of gross and persistent
negligence of client matters.”) (citing cases; citation and internal quotation marks
omitted).
We also conclude that a fitness requirement is warranted. “[T]o justify
conditioning the reinstatement of a suspended attorney on proof of rehabilitation,
the record in the disciplinary proceeding must contain clear and convincing
evidence that casts a serious doubt upon the attorney's continuing fitness to
practice law.” In re Cater, 887 A.2d 1, 24 (D.C. 2005). Given its scope and
gravity, Mr. Rodriguez-Quesada’s conduct in our view casts serious doubt on Mr.
Rodriguez-Quesada’s fitness to practice law. Imposing a fitness requirement also 20
would be more consistent with prior dispositions involving comparable conduct.
See, e.g., In re Ukwu, 926 A.2d 1106, 1109-20 (D.C. 2007) (imposing two-year
suspension with fitness requirement, based on pervasive neglect of five clients and
dishonesty in connection with one matter); In re Mintz, 626 A.2d at 927 (noting
cases in which court imposed fitness requirement in cases involving “gross and
persistent negligence of client matters”).
We are not persuaded by the Board’s reasons for declining to recommend a
fitness requirement. First, we view Mr. Rodriguez-Quesada’s pattern of
inexcusable neglect of his clients’ interests, his dishonesty to a judge and the
Hearing Committee, and his lack of remorse as demonstrating “a pattern of
misconduct or dishonest behavior that raises serious questions as to [Mr.
Rodriguez-Quesada’s] integrity or character.” Second, the Board’s statement that
Mr. Rodriguez-Quesada cooperated with Bar Counsel is contradicted by the
Board’s conclusions that Mr. Rodriguez-Quesada testified falsely before the
Hearing Committee, blamed his clients for his failings, and baselessly accused his
clients of committing perjury. Third, we do not share the Board’s conclusion that
Mr. Rodriguez-Quesada’s rule violations are at bottom attributable to having taken
on too many cases. Mr. Rodriguez-Quesada’s rule violations are too serious and
extensive to be viewed as the unavailing efforts of an overburdened attorney acting 21
in good faith to protect his clients’ interests. Finally, although Mr. Rodriguez-
Quesada has no prior disciplinary history and is no longer acting as an immigration
attorney, those considerations are outweighed by the concerns created by the scope
and gravity of Mr. Rodriguez-Quesada’s rule violations in these matters.
We recognize that we ordinarily owe deference to the Board’s
recommendation as to the proper sanction to be imposed. On the issue of the need
for a fitness requirement, however, we take a significantly different view from the
Board as to the seriousness of Mr. Rodriguez-Quesada’s conduct, and we are
convinced that a fitness requirement is warranted.
Finally, we agree with Bar Counsel that Mr. Rodriguez-Quesada should be
required, as a condition of reinstatement, to make restitution to Mr. Abarca. The
Board found that Mr. Rodriguez-Quesada in numerous respects either failed to
perform the services he had promised to perform for Mr. Abarca or performed
those services incompetently and in a manner detrimental to Mr. Abarca’s
interests. Moreover, although Mr. Abarca eventually obtained relief as a result of
the NACARA application Mr. Rodriguez-Quesada had filed, Mr. Abarca was
required to hire a new attorney at additional expense after Mr. Rodriguez-
Quesada’s representation was terminated. 22
These findings warrant requiring restitution in Mr. Abarca’s case, just as the
Board required restitution to the clients in the other three matters at issue in this
case. See D.C. Bar R. XI, § 3 (b) (court may order restitution to persons
financially injured by attorney’s conduct); D.C. R. Prof. Conduct 1.16 (d) (in
connection with termination of representation, attorney must refund any advance
payment of fee that has not been earned).
The Board acknowledged that Mr. Rodriguez-Quesada was not entitled to
retain the entire fee Mr. Abarca had paid. Nevertheless, the Board declined to
order restitution, for three reasons: (1) Mr. Abarca had paid Mr. Rodriguez-
Quesada $4,200 rather than the $5,000 due under the retainer agreement; (2) Mr.
Rodriguez-Quesada had made some efforts on Mr. Abarca’s behalf; and (3) Mr.
Abarca had unsuccessfully sued Mr. Rodriguez-Quesada in small-claims court in
Virginia for return of fees, and Bar Counsel therefore bore “a somewhat greater
burden than otherwise might be the case to show [that Mr. Rodriguez-Quesada]
was not entitled to retain any portion of the fee.” The first two considerations are
potentially relevant to the amount of restitution, but do not support an outright
denial of restitution, at least barring a more detailed inquiry into the precise benefit
to Mr. Abarca of Mr. Rodriguez-Quesada’s efforts. Moreover, Mr. Rodriguez- 23
Quesada made some efforts in the other three matters as well, and the Board
nevertheless awarded those clients restitution. As to the unsuccessful action to
recover fees in small-claims court, the Board took the view that Bar Counsel was
not estopped by the result of that action, and Mr. Rodriguez-Quesada has not
argued otherwise in this court. Given that undisputed premise, which we accept
for present purposes, it is difficult to understand the basis for imposing an
unspecified higher burden on Bar Counsel on the issue of restitution. Moreover,
Bar Counsel in any event would not appropriately be required to show that Mr.
Rodriguez-Quesada was not entitled to retain “any portion of the fee.” Rather,
partial restitution could be warranted as long as Bar Counsel showed that at least
some portion of the fee was unearned.
For these reasons, we conclude that Mr. Rodriguez-Quesada should be
required to make appropriate restitution to Mr. Abarca as a condition of
reinstatement. The Board did not determine the precise amount of restitution as to
Mr. Rodriguez-Quesada’s other clients, instead leaving that amount to be
determined in the event that Mr. Rodriguez-Quesada sought reinstatement. See,
e.g., In re Omwenga, 49 A.3d 1235, 1243 (D.C. 2012) (per curiam) (“Where there
is a question about the exact amount of the restitution, the Court will defer
consideration of the restitution issue until the respondent applies for 24
reinstatement.”). We therefore see no need for the Board to determine a precise
amount of restitution at this time.
* * * * *
For the foregoing reasons, Mr. Rodriguez-Quesada is suspended from the
practice of law in the District of Columbia for a period of two years. For purposes
of reinstatement, the suspension shall run from the date on which Mr. Rodriguez-
Quesada files the affidavit required by District of Columbia Bar Rule XI, § 14 (g).
Reinstatement shall be conditioned on a showing of fitness and on payment of
restitution to Mr. Abarca, Ms. Koerner-Goodrich, Mr. Belhmira, and the
Ramirezes.
So ordered.