LOUISIANA ATTORNEY DISCIPLINARY BOARD IN RE: JOSE W. VEGA RECOMMENDATION TO THE LOUISIANA SUPREME COURT INTRODUCTION

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1 LOUISIANA ATTORNEY DISCIPLINARY BOARD IN RE: JOSE W. VEGA NUMBER: 16-DB DB-093 2/8/2018 RECOMMENDATION TO THE LOUISIANA SUPREME COURT INTRODUCTION This attorney discipline matter arises out of formal charges filed by the Office of Disciplinary Counsel ( ODC ) against Jose W. Vega ( Respondent ), bar roll number The ODC alleged that Respondent violated the following Rules of Professional Conduct ( Rule(s) ): 1.3 (diligence), 1.4(a)(3) (communication), 8.1(c) (bar admission and disciplinary matters failure to cooperate with ODC), 8.4(a) (misconduct), and 8.4(d) (conduct prejudicial to the administration of justice). 2 Respondent allowed the formal charges to become and remain deemed admitted pursuant to Louisiana Supreme Court Rule XIX, 11(E)(3). 3 The hearing committee assigned to 1 Respondent is currently ineligible to practice in Louisiana. He was disbarred in In re Vega, 2016-B-0816 (La. 9/6/16), 198 So.3d Additionally, he has been ineligible to practice law in Louisiana since 2012 for failing to pay bar dues and the disciplinary assessment, failing to fulfill mandatory continuing legal education requirements, and failing to file a trust account disclosure statement. Id. Respondent was admitted to practice in Louisiana on September 10, See the attached Appendix for the text of the Rules. 3 This rule states: The respondent shall file a written answer with the Board and serve a copy on disciplinary counsel within twenty (20) days after service of the formal charges, unless the time is extended by the chair of the hearing committee. In the event, Respondent fails to answer within the prescribed time, or the time as extended, the factual allegations contained within the formal charges shall be deemed admitted and proven by clear and convincing evidence. Disciplinary Counsel shall file a motion with the chair of the hearing committee to which the matter is assigned requesting that the factual allegations be deemed proven with proof of service of the formal charges upon the respondent. The order signed by the hearing committee chair shall be served upon respondent as provided by Section 13C. Within twenty (20) days of the mailing of the order of the hearing committee chair deeming the factual allegations contained in the formal charges proven, the respondent may move the hearing committee chair to recall the order thus issued upon demonstration of good cause why imposition of the order would be improper or would result in a miscarriage of justice. Page 1 of 14

2 this matter concluded that Respondent violated the Rules as charged and recommended that he be suspended for one year and one day, to run concurrent with his ongoing disbarment, with Respondent ordered to pay all costs associated with this proceeding. For the following reasons, the Board adopts the committee s factual findings and legal conclusions. As a sanction, the Board recommends Respondent be permanently disbarred. PRIOR DISCIPLINE Respondent was admitted to practice law in Louisiana on September 10, He was subsequently admitted to practice law in Texas on May 9, 2002, and in New York on October 29, Respondent has a significant history of discipline during his legal career. 4 In 2001, Respondent consented to discipline in the form of a public reprimand for violations of Rule 1.3 (lack of diligence) and Rule 1.16 (improper termination of representation) of the Louisiana Rules of Professional Conduct in connection with his representation of clients in two immigration proceedings in Louisiana between 1995 and In re Vega, 01-DB-024, Ruling of the Disciplinary Board (Vega I). In 2013, the Louisiana Supreme Court imposed reciprocal discipline in the form of a public reprimand on Respondent based on public reprimands he received in two separate proceedings in Texas for conduct which occurred between 2007 and The basis for the disciplinary charges in Texas involved Respondent s representation of a client in a habeas corpus matter in which Respondent failed to respond to inquiries by the client and failed to withdraw and continued to file pleadings after being terminated by the client and representation of another client in an 4 The Board may take judicial notice of Respondent s prior disciplinary record determined from the records maintained by the Board and the Board records show that Respondent has been disciplined in the past. The Louisiana Attorney Disciplinary Board is the permanent statewide agency which administers the lawyers disciplinary system and, as such, the agency which maintains records of all such discipline. We are therefore able to take judicial notice of Respondent s prior disciplinary record. In re White, 96-DB-002, Recommendation of the Louisiana Attorney Disciplinary Board, p. 14. Page 2 of 14

3 immigration matter in which he failed to maintain communication with his client, failed to respond to the client s requests for information, and failed to respond to the client s request that he refund unearned fees. In re Vega, 13-B-1456 (La. 2013), 124 So.3d 456 (Vega II). 5 Respondent provided no response to the Supreme Court s order giving Respondent thirty days to demonstrate why imposition of identical discipline in this state would be unwarranted. Id. at p In 2016, the Louisiana Supreme Court imposed reciprocal discipline in the form of disbarment on Respondent after he resigned in lieu of discipline from the practice of law in Texas after being charged with multiple rule violations stemming from numerous immigration matters, including violations of rules governing the refund of unearned fees, client communication, cooperation with disciplinary investigations, supervision of non-attorney assistants, and neglect of client matters. In re Vega, 2016-B-0816 (La. 9/6/16), 198 So.3d 1176 (Vega III). 6 In Vega III, Respondent again failed to file any response to the Supreme Court s order giving him thirty days to demonstrate why the imposition of identical discipline in this state would be unwarranted. Id. at p Additionally, Respondent has been ineligible to practice law in Louisiana since 2012 for failing to pay bar dues and the disciplinary assessment, failing to fulfill mandatory continuing legal education requirements, and failing to file a trust account disclosure statement. PROCEDURAL HISTORY ODC filed formal charges in the instant matter on December 12, The charges state, in pertinent part: 5 Respondent was also censured in New York for the same conduct made the basis of the 2013 reciprocal proceeding in Louisiana. See In re Vega, 106 A.D.3d 1188 (2013). 6 Respondent was also disbarred in a reciprocal disciplinary proceeding in New York. In its decision, the New York court noted the respondent failed to notify this Court of his Texas resignation or his subsequent disbarment by the Supreme Court in Louisiana and the Board of Immigration Appeals. In re Vega, 147 A.D.3d 1196, 172 (2017). Respondent was apparently also subsequently disbarred by the U.S. Supreme Court. See In re Disbarment of Vega, 138 S.Ct. 47 (Mem), 198 L.Ed.2d 773, and In re Discipline of Vega, 137 S.Ct (Mem), 197 L.Ed.2d 745 (2017). Page 3 of 14

4 The Office of Disciplinary Counsel ("ODC") received a complaint from Terisita De Jesus Montejano on April 8, Complainant alleges she hired Respondent to represent her in an immigration court removal matter on September 20, According to Complainant, she paid him $3, for representation. Complainant alleges Respondent appeared with her in immigration court in Dallas, TX, on August 24, 2014, at which time he instructed her to file a Motion for Change of Venue in proper person. She did so and said motion was denied as not timely filed. The immigration judge set the removal matter for a new hearing date of November 24, 2014, and required Respondent and Complainant to both appear at the upcoming hearing. Complainant alleges Respondent appeared, but he was unprepared and she was ordered deported. Respondent appealed the ruling arguing it was an abuse of discretion, but did not prevail on the appeal. Complainant states she has been ordered immediately deportable, but has hired a new attorney to assist her with her immigration status. A copy of Complainant's complaint was sent to Respondent via certified mail, return receipt requested on April 12, Said complaint was sent to Respondent's then current office address: 400 Louisiana St., Ste. 1115, Houston, TX, 77002, as Respondent had advised undersigned disciplinary counsel that his office had moved from Ste. 500 to Ste (Respondent's primary address as registered with the Louisiana State Bar Association at that time was 400 Louisiana St., Ste. 500, Houston, TX, ) On May 5, 2016, said complaint was returned to the ODC by the USPS with the notations "Return to Sender" and "Unable to Forward." Thereafter, the ODC sent a copy of the complaint to Respondent's then current LSBA secondary registered address: 7 Riverway, Unit 1708, Houston, TX, On May 9, 2016, said complaint was returned to the ODC by the USPS with the notations "Return to Sender" and "Unable to Forward." The undersigned contacted Respondent via telephone who indicated he had moved his office. Respondent provided the new address and further indicated he would be updating his contact information with the Louisiana State Bar Association. On May 18, 2016, the ODC sent the complaint to Respondent's new registered primary address: 6065 Hillcroft Ave., Ste. 405, Houston, TX, On June 12, 2016, said complaint was returned to the ODC by the USPS with the notations "Return to Sender" and "Unclaimed." Eventually, the undersigned was again able to contact Respondent via cell phone who indicated he would be in he would be in [sic] Louisiana and would personally pick up the copy of the instant complaint on June 28, 2016, but Respondent failed to appear at the ODC to retrieve this complaint. Thereafter, the undersigned spoke with Respondent via telephone on August 31, 2016, at which time Respondent indicated he would personally pick up the instant complaint on September 9, 2016, but Respondent again failed to appear at the ODC to retrieve this complaint. Respondent's actions in this matter constitute failure to act with reasonable diligence and promptness in representing a client, in violation of Rule 1.3; failure to keep the client reasonably informed, in violation of Rule 1.4(a)(3); failing to cooperate with the Office of Disciplinary Counsel during a disciplinary investigation, in violation of Rule 8.1(c); violating or attempting to violate the Rules Page 4 of 14

5 of Professional Conduct, in violation of Rule 8.4(a); and, engaging in conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(d) of the Rules of Professional Conduct. By letters dated December 13, 2016, the formal charges were mailed via USPS certified mail to Respondent s primary and secondary registration addresses. Both mailings were returned marked, Return to Sender, Unclaimed, Unable to Forward. Louisiana Supreme Court Rule XIX, 8(C) and 11(E)(2), provide that proof of attempted service pursuant to Section 13(A) shall constitute adequate notice of the proceedings. 7 Respondent failed to file an answer to the charges. Accordingly, on May 9, 2017, ODC filed a motion to deem the factual allegations admitted pursuant to Louisiana Supreme Court Rule XIX, 11(E)(3). By order signed May 12, 2017, the factual allegations contained in the formal charges were deemed admitted. On July 11, 2017, ODC filed its submission on sanction, in which ODC argued that Respondent should be suspended. The ODC filed three exhibits (ODC-1 through ODC-3) with its submission which included the complaint, the notices of complaint sent to Respondent, and envelopes showing same documents were returned to the ODC. Hearing Committee No. 62 ( the committee ) issued its report on August 9, The committee concluded that Respondent violated the Rules as charged. In recommending a sanction, the committee found that Respondent violated duties owed the client and the ODC and that his conduct and behavior had caused actual harm to his client and to the legal profession. The committee recognized the following aggravating factors: prior disciplinary offenses; bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or 7 Rule XIX, 13(A), provides that service of the petition in any disciplinary proceeding shall be made by... mailing the petition by registered or certified mail to the primary address shown in the registration statement filed by respondent pursuant to Section 8C or other last known address. 8 The committee was comprised of Mark J. Mansfield (Chair), Kenneth P. Mathews (Lawyer Member), and Verlean W. Randolph (Public Member). Page 5 of 14

6 orders of the disciplinary agency; vulnerability of the victim; and substantial experience in the practice. The committee recognized no mitigating factors. The committee recommended that Respondent be suspended for one year and one day, with the suspension to run concurrent with Respondent s ongoing disbarment, and that Respondent be ordered to pay all costs associated with this proceeding. ODC filed a notice of no objection to the committee s report on October 4, ODC filed its brief on November 6, The report of the committee and all notices regarding argument before the Board were mailed to Respondent at his primary and secondary registration addresses and were returned as undeliverable. Respondent has filed nothing for the Board s consideration. 9 Oral argument of this matter was held on December 5, 2017, before Board Panel C. 10 Deputy Disciplinary Counsel Tammy Pruet Northrup appeared on behalf of ODC. Respondent did not appear. ANALYSIS OF THE RECORD BEFORE THE BOARD I. Standard of Review The powers and duties of the Disciplinary Board are defined in 2 of Louisiana Supreme Court Rule XIX. Rule XIX, 2(G)(2)(a) states that the Board is to perform appellate review functions, consisting of review of the findings of fact, conclusions of law, and recommendations of hearing committees with respect to formal charges and petitions for reinstatement, and prepare and forward to the court its own findings, if any, and recommendations. Inasmuch as the 9 It is noted that the allegations of the Formal Charges, which have been deemed admitted, state that Respondent was advised by telephone of the initial complaint and informed the ODC on two occasions that he would pick up a copy of the complaint from the ODC, but he never did so. 10 Board Panel C was comprised of Walter D. White (Chair), Danna Elizabeth Schwab (Lawyer Member), and Sheila Elizabeth O Leary (Public Member). Page 6 of 14

7 Board is serving in an appellate capacity, the standard of review applied to findings of fact is that of manifest error. Arceneaux v. Domingue, 365 So. 2d 1330 (La. 1978); Rosell v. ESCO, 549 So. 2d 840 (La. 1989). The Board conducts a de novo review of the hearing committee s application of the Rules of Professional Conduct. In re Hill, 90-DB-004, Recommendation of the Louisiana Attorney Disciplinary Board (1/22/92). A. The Manifest Error Inquiry The factual allegations in the formal charges have been deemed admitted and proven pursuant to Louisiana Supreme Court Rule XIX, 11(E)(3). The factual findings of the committee are supported by the factual allegations asserted in the formal charges and by the evidence submitted in support of the allegations. See In re Donnan, (La. 1/10/03), 838 So.2d 715. B. De Novo Review The committee correctly applied the Rules of Professional Conduct. The legal conclusions of the committee are supported by the factual allegations asserted in the formal charges and by the evidence in support of the allegations. II. The Appropriate Sanction A. Rule XIX, 10(C) Factors Louisiana Supreme Court Rule XIX, 10(C) states that when imposing a sanction after a finding of lawyer misconduct, the Court or Board shall consider the following factors: 1. whether the lawyer has violated a duty owed to a client, to the public, to the legal system, or to the profession; 2. whether the lawyer acted intentionally, knowingly, or negligently; 3. the amount of actual or potential injury caused by the lawyer s misconduct; and 4. the existence of any aggravating or mitigating factors. Page 7 of 14

8 The Court also considers the ABA Standards for Imposing Lawyer Sanctions in determining the baseline sanction. In re Quaid, (La. 11/30/94); 646 So.2d 343, 350. Here, Respondent knowingly and intentionally violated duties to his clients, the legal system, and the profession. Respondent acted knowingly and intentionally in failing to communicate with his client and failing to diligently represent her. In August 2014, Respondent sent his client to present a motion and appear alone before the immigration judge. At that time, the client was advised that the motion was submitted untimely and the motion was denied. Respondent subsequently appeared at the November 24, 2014 removal hearing completely unprepared and presented no evidence to defend his client. At the hearing, the immigration judge ordered Respondent s client be removed from the United States to Mexico. Respondent s conduct caused actual, serious harm to his client who was ordered removed from this country. Additionally, Respondent s failure to appear for one hearing and appearing unprepared for a second hearing reflects Respondent s disregard for the legal system and profession. Further, Respondent s knowingly evading notice of the complaint and failing to cooperate with the disciplinary investigation caused damage by forcing the unnecessary expenditure of the limited resources of the disciplinary agency to pursue formal charges. Aggravating factors include prior disciplinary offenses, a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, vulnerability of the victim, and substantial experience in the practice. There are no mitigating factors supported by the record. Page 8 of 14

9 B. The ABA Standards and Case Law Relying on Standard 4.42 of the ABA Standards for Imposing Lawyers Sanctions, the committee concluded suspension is the baseline sanction for Respondent s misconduct. 11 The Board disagrees. As discussed above, Respondent s misconduct caused actual, serious harm to his client who was ordered removed from this country. Accordingly, under Standard 4.41, disbarment is the appropriate sanction. Standard 4.41 provides: 4.41 Disbarment is generally appropriate when: (a) a lawyer knowingly fails to perform services for a client and causes serious or potentially serious injury to a client,... In recommending a sanction of suspension, the committee also referenced several decisions cited by the ODC in which a suspension of one year and one day was imposed where the respondents conduct included neglect of legal matters, failure to communicate with clients, and failure to cooperate with the ODC. As previously discussed, in the instant matter, Respondent s knowing misconduct caused serious injury to a very vulnerable client which suggests a baseline sanction of disbarment. Further, while the respondents in the cases cited by the committee had been subject to prior discipline in the form of admonitions and/or reprimands, none of the respondents had been previously disbarred. The question to be decided here is whether Respondent should be permanently disbarred. In resolving this question, an LSBA v. Chatelain analysis should first be applied. 12 In Chatelain, the Court determined that it is generally inappropriate to impose additional discipline upon an attorney for misconduct that occurred concurrently with the violations which resulted in prior 11 Standard 4.42 provides that Suspension is generally appropriate when: (a) a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client, LSBA v. Chatelain, 573 So.2d 470 (1991). The ODC did not address Chatelain, nor did the committee. Page 9 of 14

10 disciplinary proceedings. Rather, the overall discipline to be imposed should be determined as if both proceedings were before the Court simultaneously. The substantive misconduct relating to the numerous (approximately 45) client matters which formed the basis of Vega III occurred between 2006 and Most of the underlying matters in Vega III were immigration cases and significant percentages of the disciplinary proceedings involved lack of diligence and/or failure to communicate with the client and failure to timely respond to the Texas disciplinary grievances filed against Respondent. In the present matter, Respondent s misconduct as it relates to the handling of the client s matter occurred between 2012 and Therefore, the misconduct giving rise to Vega III and most of the misconduct in the current matter occurred during the same time frame and involved the same type of misconduct. However, Respondent s additional misconduct in the instant matter of failing to cooperate with the ODC in its investigation continued through See In re Boudreau, (La. 12/3/03), 860 So.2d 1119 (additional sanction imposed for continued failure to cooperate with discovery investigation). Taken as a whole, there is no doubt that the baseline sanction for all the misconduct occurring between 2006 and 2015 and the additional failure to cooperate with the ODC in 2016 is disbarment. The sole remaining issue presented is whether Respondent s conduct, taken as a whole, is so egregious that he should be permanently prohibited from reapplying for admission to the practice of law. The Board finds that it is and recommends that Respondent be permanently disbarred. It is important to recognize that Vega III was a reciprocal disciplinary proceeding. In a reciprocal proceeding, when presented with the disciplinary action taken by another jurisdiction, 13 The client matters giving rise to the Vega III proceeding are outlined in the Louisiana Supreme Court s decision in that case. See In re Vega, 2016-B-0816 (La. 9/6/16), 198 So.3d Page 10 of 14

11 in this case Texas, the Louisiana Supreme Court must impose the identical discipline unless there was a lack of due process or clear infirmity of proof in the first proceeding, the imposition of the same discipline would result in grave injustice or be offensive to public policy, or the misconduct established warrants substantially different discipline. Louisiana Supreme Court Rule XIX, 21(D). Finding no such extraordinary circumstances to be present, the Court in Vega III imposed reciprocal discipline in the form a disbarment, the Louisiana discipline determined to be the most equivalent to the effect of Respondent s resignation in lieu of discipline in Texas. The instant matter is not a reciprocal proceeding. It is an original disciplinary proceeding initiated by a complaint filed with the Louisiana ODC. The constraints of Rule XIX, 21(D), limiting the nature of the sanction which may be imposed do not apply. In this proceeding filed after Respondent s resignation from the Texas Bar, the totality of all of Respondent s misconduct should be independently reviewed and considered in determining the appropriate sanction to be imposed under Louisiana standards. Respondent s history of discipline for lack of diligence dates as far back as 1995, only two years after he was admitted to practice law in Louisiana. See Vega I. More significant, between the years 2006 and 2015, Respondent engaged in misconduct in connection with almost fifty client matters, which misconduct includes violations of rules governing diligence, communication with clients, cooperation with disciplinary investigations and/or refund of unearned fees. See Vega II and III and the current matter. Further, Respondent has engaged in additional, subsequent misconduct in his failing to cooperate in the disciplinary investigation in the current matter. Respondent s repeated and additional behavior in failing to cooperate with disciplinary investigations and to respond to rules and orders in disciplinary proceedings and Respondent s failure since 2012 to pay bar dues and the disciplinary assessment, to fulfill mandatory continuing Page 11 of 14

12 legal education requirements, and to file a trust account disclosure statement evidence a pervasive disregard for his responsibilities and duties owed to the profession. The Board recognizes that Respondent s misconduct does not fit squarely within the Guidelines For Conduct Which Might Warrant Permanent Disbarment enumerated in Appendix E to La. Supreme Court Rule XIX. However, the Supreme Court has made it clear that the Guidelines are illustrative and are not intended to bind the decision-making process. La. Supreme Court Rule XIX, Appendix E; In re Richard, (La. 10/3/14), 148 So.3d 923, 926; In re Bark, (La. 10/21/11), 72 So.3d 853, 860. Considering Respondent s numerous acts of misconduct made the basis of Vega III (for which disbarment was imposed) as well as Respondent s additional substantive misconduct resulting in serious harm to a vulnerable client and additional knowing failure to cooperate with the disciplinary investigation made the basis of the current proceeding, permanent disbarment is warranted. While Respondent s misconduct may not definitively fit any of the specific permanent disbarment guidelines, his consistent pattern of misconduct, including his continuing failure to address the obligations he owes as a professional, demonstrates a clear lack of moral fitness. We can conceive of no circumstances under which Respondent should be allowed to be readmitted to the practice of law. Therefore, in order to protect the public and maintain the high standards of the legal profession in this state, the Board recommends Respondent be permanently disbarred. CONCLUSION Considering the foregoing, the Board adopts the committee s factual findings and legal conclusions, but disagrees with the committee s recommended sanction of suspension for one year and one day. The Board recommends that Respondent be permanently disbarred. It further recommends that he be assessed with the costs and expenses of this matter. Page 12 of 14

13 RECOMMENDATION The Board recommends that Jose vv. Vega be permanently disbarred from the practice of law. It further recommends that he be assessed with the costs and expenses of these proceedings in accordance with Louisiana Supreme Court Rule XIX, *I 0.1 (A). LOUISIANA ATTORNEY DISCIPLINARY BOARD Linda G. Bizzarro Pamela W. Carter Anderson 0. Dotson Ill Sheila E. 0' Leary Danna E. Schwab Evans C. Spiceland,.Jr. Melissa L. Theriot Charles H. Williamson, Jr. Page 13 of 14

14 APPENDIX Rule 1.3. Diligence A lawyer shall act with reasonable diligence and promptness in representing a client. Rule 1.4. Communication (a) A lawyer shall: (1) promptly inform the client of any decision or circumstance with respect to which the client s informed consent, as defined in Rule 1.0(e), is required by these Rules; (2) reasonably consult with the client about the means by which the client s objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests for information; and (5) consult with the client about any relevant limitation on the lawyer s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law. Rule 8.1. Bar Admission and Disciplinary Matters... a lawyer... in connection with a disciplinary matter, shall not:... (c) Fail to cooperate with the Office of Disciplinary Counsel in its investigation of any matter before it except for an openly expressed claim of a constitutional privilege. Rule 8.4. Misconduct It is professional misconduct for a lawyer to: (a) Violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; (b) (c) (d) Engage in conduct that is prejudicial to the administration of justice; Page 14 of 14