301 Ga. 227 FINAL COPY
S17Y0422. IN THE MATTER OF THOMAS E. STEWART.
PER CURIAM.
This disciplinary matter is before the Court on the Report and
Recommendation of the Review Panel of the State Bar, recommending that
Thomas E. Stewart (State Bar No. 681875), who has been a member of the Bar
since 1995, receive a Review Panel reprimand for two violations of the Rules
of Professional Conduct arising out of his representation of a family of Mexican
citizens in their immigration cases. The special master, Patrick E. Longan,
recommended a public reprimand, the Bar sought disbarment or suspension, and
Stewart sought a Review Panel reprimand. Ultimately, we find that a public
reprimand is an appropriate level of discipline for Stewart’s conduct.
The State Bar filed its formal complaint in September 2014, alleging
violations of Rules 1.2, 1.3, 1.4, 5.3, and 5.5 (a) of the Georgia Rules of
Professional Conduct found in Bar Rule 4-102 (d). The maximum sanction for
a violation of Rules 1.2, 1.3, 5.3, and 5.5 is disbarment. The maximum sanction for a violation of Rule 1.4 is a public reprimand. Following a lengthy
evidentiary hearing, the special master entered a detailed report and
recommendation on May 13, 2016, setting forth the following findings of fact:
A family of Mexican citizens entered the United States legally but chose to
remain illegally. In 2008, the father asked Stewart’s non-lawyer assistant for
help in hiring an attorney to represent the family in connection with their
immigration cases. That same year, the son married a United States citizen, and
the non-lawyer assistant helped the son and his wife prepare the documentation
necessary to start the process for the son to obtain legal status. The assistant also
signed Stewart’s name to the necessary papers without Stewart’s knowledge or
permission and did not immediately tell Stewart he had done so. In January
2009, Stewart was hired by and met with the family. During that meeting, he did
not ask the daughter whether she had been a victim of a crime when, in fact, she
had been and would have been eligible to apply for a “U Visa,” which, if
approved, would have entitled her to remain in the United States for a certain
amount of time. And while Stewart discussed the possibility of the daughter
filing a “cancellation of removal” form known as “42B,” the special master
ultimately found that Stewart never planned to file a 42B for the daughter (even
2 though he withdrew her asylum request) and erroneously filed one for the father,
who was not eligible for such relief. The special master also found that between
the January 2009 meeting and March 2013, when the daughter collected her file
from Stewart and hired new counsel, Stewart did not communicate directly with
her or the family and that all communication went through Stewart’s non-lawyer
assistant.
In March 2011, the father died, and Stewart did not contact the family to
discuss the effect that the father’s death had on their immigration cases and did
not inform the Immigration Court of the father’s death. In June 2011,
Immigration and Customs Enforcement announced a policy of prosecutorial
discretion under which certain immigration cases would be treated as “low
priority” and “administratively closed” as a matter of prosecutorial discretion.
The special master found that the mother and daughter informed Stewart’s non-
lawyer assistant that they were not interested in taking advantage of that policy
of prosecutorial discretion because it would not convey legal status and that
Stewart took no effort to communicate further with them about it. Then, in June
2012, President Obama announced the policy of Deferred Action for Childhood
Arrivals (“DACA”), a program for which the son and daughter were excellent
3 candidates. The special master found that although Stewart did not personally
inform the son and daughter about DACA, his non-lawyer assistant informed the
daughter about it and also told her what documents she would need to collect for
DACA; however, the non-lawyer assistant failed to inform her that without the
documentation to apply for DACA, she would have no means of avoiding an
order of deportation at her February 2013 hearing in Immigration Court. At the
February 2013 hearing, the daughter had no alternative but to accept an order
of voluntary departure from the United States. The daughter subsequently hired
new counsel to try and reopen her immigration case and to apply for DACA.
The rest of the family also fired Stewart.
With regard to Stewart’s efforts to ensure his non-lawyer assistant’s
conduct was compatible with Stewart’s professional responsibilities, Stewart
testified that he gave his assistant checklists of what the assistant was allowed
to do and met with him regularly about Stewart’s cases. As to Stewart’s
supervision of his non-lawyer assistant, the special master found that the
evidence was mixed since Stewart testified at the hearing that he tried his best
to monitor his assistant’s work but in his deposition testified that he never
monitored his assistant’s work.
4 The special master found that Stewart violated his duties of consultation
and communication under Rules 1.2 and 1.4, but did not violate Rule 1.3
because he did not “wilfully abandon” or “wilfully disregard” a legal matter
entrusted to him or fail to act with a reasonable degree of promptness in these
clients’ immigration matters. The special master also concluded that the State
Bar failed to show by clear and convincing evidence a violation of Rules 5.3 or
5.5 (a) in Stewart’s dealings with his non-lawyer assistant, particularly where
the record showed that Stewart instructed his non-lawyer assistant not to
practice law, that the non-lawyer assistant helped the son apply for legal status
without Stewart’s knowledge or permission, that Stewart severely reprimanded
his assistant for this conduct, and that the non-lawyer assistant had not done
anything similar since then. The special master further found that although
Stewart directed his non-lawyer assistant to help the client family with the
completion of their yearly work permits, there was insufficient evidence to
establish that what the assistant did constituted the practice of law or that
Stewart helped his assistant in rendering these services. The special master noted
that the State Bar did not cite any authority that the non-lawyer assistant’s
essentially ministerial acts (taking passport pictures, helping the family complete
5 forms, collecting the necessary fees, and filing documents with the appropriate
authority) constituted the practice of law in Georgia. Thus, the special master
concluded that the State Bar failed to show that Stewart violated Rule 5.5 (a).
After considering the ABA Standards for Imposing Lawyer Sanctions, see
In the Matter of Finley, 268 Ga. 251, 255 (488 SE2d 74) (1997), the special
master found that Stewart acted merely with negligence, and that although the
evidence did not support the conclusion that Stewart engaged in a pattern of
neglect in his failures to consult and communicate sufficiently with these clients,
it nevertheless showed that he caused injury because his failures to consult and
communicate with the daughter left her with no choice at the February 2013
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301 Ga. 227 FINAL COPY
S17Y0422. IN THE MATTER OF THOMAS E. STEWART.
PER CURIAM.
This disciplinary matter is before the Court on the Report and
Recommendation of the Review Panel of the State Bar, recommending that
Thomas E. Stewart (State Bar No. 681875), who has been a member of the Bar
since 1995, receive a Review Panel reprimand for two violations of the Rules
of Professional Conduct arising out of his representation of a family of Mexican
citizens in their immigration cases. The special master, Patrick E. Longan,
recommended a public reprimand, the Bar sought disbarment or suspension, and
Stewart sought a Review Panel reprimand. Ultimately, we find that a public
reprimand is an appropriate level of discipline for Stewart’s conduct.
The State Bar filed its formal complaint in September 2014, alleging
violations of Rules 1.2, 1.3, 1.4, 5.3, and 5.5 (a) of the Georgia Rules of
Professional Conduct found in Bar Rule 4-102 (d). The maximum sanction for
a violation of Rules 1.2, 1.3, 5.3, and 5.5 is disbarment. The maximum sanction for a violation of Rule 1.4 is a public reprimand. Following a lengthy
evidentiary hearing, the special master entered a detailed report and
recommendation on May 13, 2016, setting forth the following findings of fact:
A family of Mexican citizens entered the United States legally but chose to
remain illegally. In 2008, the father asked Stewart’s non-lawyer assistant for
help in hiring an attorney to represent the family in connection with their
immigration cases. That same year, the son married a United States citizen, and
the non-lawyer assistant helped the son and his wife prepare the documentation
necessary to start the process for the son to obtain legal status. The assistant also
signed Stewart’s name to the necessary papers without Stewart’s knowledge or
permission and did not immediately tell Stewart he had done so. In January
2009, Stewart was hired by and met with the family. During that meeting, he did
not ask the daughter whether she had been a victim of a crime when, in fact, she
had been and would have been eligible to apply for a “U Visa,” which, if
approved, would have entitled her to remain in the United States for a certain
amount of time. And while Stewart discussed the possibility of the daughter
filing a “cancellation of removal” form known as “42B,” the special master
ultimately found that Stewart never planned to file a 42B for the daughter (even
2 though he withdrew her asylum request) and erroneously filed one for the father,
who was not eligible for such relief. The special master also found that between
the January 2009 meeting and March 2013, when the daughter collected her file
from Stewart and hired new counsel, Stewart did not communicate directly with
her or the family and that all communication went through Stewart’s non-lawyer
assistant.
In March 2011, the father died, and Stewart did not contact the family to
discuss the effect that the father’s death had on their immigration cases and did
not inform the Immigration Court of the father’s death. In June 2011,
Immigration and Customs Enforcement announced a policy of prosecutorial
discretion under which certain immigration cases would be treated as “low
priority” and “administratively closed” as a matter of prosecutorial discretion.
The special master found that the mother and daughter informed Stewart’s non-
lawyer assistant that they were not interested in taking advantage of that policy
of prosecutorial discretion because it would not convey legal status and that
Stewart took no effort to communicate further with them about it. Then, in June
2012, President Obama announced the policy of Deferred Action for Childhood
Arrivals (“DACA”), a program for which the son and daughter were excellent
3 candidates. The special master found that although Stewart did not personally
inform the son and daughter about DACA, his non-lawyer assistant informed the
daughter about it and also told her what documents she would need to collect for
DACA; however, the non-lawyer assistant failed to inform her that without the
documentation to apply for DACA, she would have no means of avoiding an
order of deportation at her February 2013 hearing in Immigration Court. At the
February 2013 hearing, the daughter had no alternative but to accept an order
of voluntary departure from the United States. The daughter subsequently hired
new counsel to try and reopen her immigration case and to apply for DACA.
The rest of the family also fired Stewart.
With regard to Stewart’s efforts to ensure his non-lawyer assistant’s
conduct was compatible with Stewart’s professional responsibilities, Stewart
testified that he gave his assistant checklists of what the assistant was allowed
to do and met with him regularly about Stewart’s cases. As to Stewart’s
supervision of his non-lawyer assistant, the special master found that the
evidence was mixed since Stewart testified at the hearing that he tried his best
to monitor his assistant’s work but in his deposition testified that he never
monitored his assistant’s work.
4 The special master found that Stewart violated his duties of consultation
and communication under Rules 1.2 and 1.4, but did not violate Rule 1.3
because he did not “wilfully abandon” or “wilfully disregard” a legal matter
entrusted to him or fail to act with a reasonable degree of promptness in these
clients’ immigration matters. The special master also concluded that the State
Bar failed to show by clear and convincing evidence a violation of Rules 5.3 or
5.5 (a) in Stewart’s dealings with his non-lawyer assistant, particularly where
the record showed that Stewart instructed his non-lawyer assistant not to
practice law, that the non-lawyer assistant helped the son apply for legal status
without Stewart’s knowledge or permission, that Stewart severely reprimanded
his assistant for this conduct, and that the non-lawyer assistant had not done
anything similar since then. The special master further found that although
Stewart directed his non-lawyer assistant to help the client family with the
completion of their yearly work permits, there was insufficient evidence to
establish that what the assistant did constituted the practice of law or that
Stewart helped his assistant in rendering these services. The special master noted
that the State Bar did not cite any authority that the non-lawyer assistant’s
essentially ministerial acts (taking passport pictures, helping the family complete
5 forms, collecting the necessary fees, and filing documents with the appropriate
authority) constituted the practice of law in Georgia. Thus, the special master
concluded that the State Bar failed to show that Stewart violated Rule 5.5 (a).
After considering the ABA Standards for Imposing Lawyer Sanctions, see
In the Matter of Finley, 268 Ga. 251, 255 (488 SE2d 74) (1997), the special
master found that Stewart acted merely with negligence, and that although the
evidence did not support the conclusion that Stewart engaged in a pattern of
neglect in his failures to consult and communicate sufficiently with these clients,
it nevertheless showed that he caused injury because his failures to consult and
communicate with the daughter left her with no choice at the February 2013
hearing but to accept an order of voluntary departure and because the daughter
had to hire new counsel in an attempt to protect her interests. In aggravation of
discipline, the special master pointed to the vulnerability of the clients and
Stewart’s substantial experience in the practice of law. In mitigation, the special
master noted Stewart’s lack of a dishonest or selfish motive, the negligent nature
of Stewart’s violations of Rules 1.2 and 1.4, Stewart’s remorse, and the fact that
Stewart engaged in interim rehabilitation when he stopped taking immigration
6 cases and ended the employment of his non-lawyer assistant.1 Thus, the special
master concluded that a reprimand was appropriate under ABA Standard 4.43
(reprimand “is generally appropriate when a lawyer is negligent and does not act
with reasonable diligence in representing a client, and causes injury or potential
injury to a client”) and that the reprimand should be public given the
aggravating factors.
The Bar filed exceptions to the report and recommendation of the special
master, seeking disbarment or suspension and a finding that Stewart also
violated Rules 1.3, 5.3, and 5.5. Stewart then filed a response to the Bar’s
exceptions, requesting that the Review Panel adopt the special master’s report
and recommendation. In the end, the Review Panel essentially accepted the vast
majority of the special master’s findings and conclusions, but unlike the special
master, it recommended that Stewart receive a Review Panel reprimand rather
1 The special master acknowledged that Stewart has a prior disciplinary record. Stewart received a Formal Letter of Admonition in 2002 for violating Rule 1.15 (I) by depositing settlement funds into his operating account, although there was no allegation that he misappropriated those funds. Later that year, he was suspended for eighteen months for his violation of Rule 8.4 (a) (3) in connection with his misdemeanor conviction involving a crime of moral turpitude (solicitation of sodomy with a potential domestic relations client). Then, in 2013, he received a Formal Letter of Admonition for a violation of Rule 5.5 for signing a pleading for a colleague in a case in Nevada.
7 than a public reprimand for his violations.
We find no error in the determinations of the special master and the
Review Panel that the Bar failed to prove by clear and convincing evidence that
Stewart violated Rules 1.3, 5.3, and 5.5. We likewise find no error in their
determinations that Stewart violated his duties of consultation and
communication under Rules 1.2 and 1.4, that his conduct caused the daughter
actual injury, and that his conduct was the result of negligence. Moreover, given
the specific facts of this case, including the mitigating and aggravating factors,
we find that a public reprimand is an appropriate level of discipline for Stewart’s
violations. See In the Matter of Moncus, 296 Ga. 154 (765 SE2d 358) (2014)
(public reprimand for violation of Rule 1.4 where attorney had prior disciplinary
history); In the Matter of Farris, 291 Ga. 98 (727 SE2d 503) (2012) (public
reprimand, plus attendance at Law Practice Management Program, for violations
of Rule 1.3 and 1.4). Accordingly, we hereby order that Thomas E. Stewart
receive a public reprimand in accordance with Bar Rules 4-102 (b) (3) and
4-220 (c).
Public reprimand. All the Justices concur, except Melton, P. J., who
concurs in judgment only.
8 Decided May 15, 2017.
Public reprimand.
Paula J. Frederick, General Counsel State Bar, Rebecca A. Hall, Assistant
General Counsel State Bar, for State Bar of Georgia.
Wilson, Morton & Downs, James E. Spence, Jr., for Stewart.