               IN THE SUPREME COURT OF IOWA
                               No. 12–0793

                         Filed September 28, 2012


IOWA SUPREME COURT ATTORNEY
DISCIPLINARY BOARD,

      Complainant,

vs.

TA-YU YANG,

      Respondent.


      On review of the report of the Grievance Commission of the

Supreme Court of Iowa.



      Grievance commission recommends public reprimand of attorney

for ethical violations. ATTORNEY REPRIMANDED.



      Charles L. Harrington and Nicholas Tré Critelli III, Des Moines, for

complainant.


      Ta-Yu Yang, Des Moines, pro se.
                                          2

HECHT, Justice.

       The Iowa Supreme Court Attorney Disciplinary Board alleged an

attorney violated ethical rules by making misrepresentations to the

Board of Immigration Appeals (BIA) and by failing to inform a client that

the attorney’s ineffectiveness could be asserted in support of a motion for

reconsideration of an adverse immigration decision. Upon our review of

the record and our consideration of the findings of fact, conclusions of

law, and recommendation of a division of the Grievance Commission of

the Supreme Court of Iowa, we find the attorney violated ethical rules,

and we publicly reprimand him.

       I. Factual and Procedural Background.

       Ta-Yu Yang was hired in 2001 to represent Donald Baudilio

Escalante-Silva, a Salvadoran national, in deportation proceedings.

Donald had entered the United States without proper documentation.

Yang filed an application with the United States Citizenship and

Immigration Services (USCIS) under the Nicaraguan Adjustment and

Central American Relief Act (NACARA) seeking recognition of Donald as a

legal resident of the United States.          See Nicaraguan Adjustment and

Central American Relief Act, Pub. L. 105-100, Title II, 111 Stat. 2193

(1997). 1

       While his removal proceeding was still pending, Donald returned to

El Salvador in the summer of 2002 and married Vilma. When Donald

and Vilma subsequently reentered the United States without proper




       1Adopted   by Congress in 1997, the statute established a process through which
certain foreign nationals could, under limited circumstances, become legal permanent
residents of the United States.
                                          3

documentation, they were detained.               They were placed in separate

deportation proceedings before the immigration court. 2

         Yang thereafter agreed to represent both Donald and Vilma in their

deportation proceedings. Yang filed, and the immigration court granted,

a motion requesting a change of venue and permission to appear

telephonically for both clients in October 2002.              The separate cases

against Donald and Vilma were consolidated upon Yang’s motion, and

venue was changed from Harlingen, Texas, to Chicago, Illinois. 3

         The   removal   proceedings      against    Donald     and    Vilma    were

administratively closed in December 2006 pending resolution of Donald’s

request for relief under NACARA.              After Donald’s NACARA claim was

denied in early 2009, however, the previously consolidated removal

proceedings against Donald and Vilma were recalendared as separate

cases.     The immigration court scheduled a pretrial conference hearing

known as a “master calendar hearing” (MCH) in Donald’s case for May 5,

2009, in Omaha before Judge James R. Fujimoto. The notice of the MCH

was sent to Donald but was not sent to attorney Yang despite his

previous appearance as Donald’s counsel of record in the same case file.

         Based on his previous request for telephonic appearance granted

by the court in 2002, Yang assumed that he and Donald could appear

telephonically at the MCH and advised Donald accordingly. Donald came

to Yang’s office on May 5, 2009. After waiting for a call from the court

during the morning hours, Yang placed several telephone calls to Judge


       2The  immigration court is established within the Executive Office for
Immigration Review at the United States Department of Justice. See generally 8 C.F.R.
§ 1003.1 (2012).
         3Althoughthe immigration court to which venue was transferred was actually
located in Chicago, the respondents’ deportation proceedings were to be held in Omaha,
Nebraska.
                                        4

Fujimoto’s office. During the last of these telephone inquiries, Yang was

advised by a member of the court’s staff that the matter had been treated

as a “no-show,” or default, because Donald had failed to appear in

Omaha for the hearing and that the court had ordered Donald’s removal

in absentia.

      Yang filed a motion requesting the reopening of the removal

proceeding and rescission of the removal order.            The motion asserted

that Yang “did receive notice for the MCH from the court and assumed

that he [was] still listed as the attorney of record” in the case and that

Donald had relied on Yang’s legal advice that telephonic participation in

the hearing would be allowed. 4 The motion was denied by the court in a

ruling dated September 10, 2009.            The court’s ruling noted that the

notice of the May 5, 2009 MCH had been sent by the court to Donald but

not to Yang.    Citing section 4.15(m) of the Immigration Court Practice

Manual, the ruling further noted that Donald’s telephonic appearance

and Yang’s telephonic appearance as Donald’s counsel at the May 5,

2009 MCH could have been authorized by the court only upon the filing

of a motion in writing explaining the reason(s) for waiver of in-person

attendance at the hearing. As no such motion was filed in advance of the
May 5, 2009 MCH, the motion for reopening and rescission was denied.

Citing Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), the court’s ruling

noted Donald’s claim that his failure to appear was a consequence of his

detrimental    reliance    upon     Yang’s    “incorrect    and    unauthorized




      4The  record includes copies of orders authorizing Donald and his counsel to
appear telephonically for other scheduling hearings scheduled for May 19, 2006, and
December 5, 2006, in the same case file.
                                              5

instructions” would be “more properly advanced through a motion to

reopen asserting ineffective assistance of counsel.” 5

       Yang did not inform Donald of the option of asserting Yang’s

ineffective assistance as the ground for another motion to reopen the

deportation proceeding. Instead, Yang sought review of Judge Fujimoto’s

ruling before the BIA alleging again that he had received notice of the

May 5, 2009 MCH from the immigration court and reasonably believed

he was still recognized as Donald’s counsel. Donald, however, chose a

different course and hired new counsel who lodged an ethical complaint

against Yang and filed a new motion for reconsideration of Judge

Fujimoto’s ruling. 6

       The Board filed a complaint alleging Yang violated rule 32:8.4(c) 7

(engaging in conduct involving misrepresentation) when he made a

misrepresentation of fact to the BIA in his appeal from the immigration

court’s ruling. The Board asserted Yang’s express allegation on appeal

that he had received notice from the court of the May 5, 2009 MCH was

untrue inasmuch as the immigration court had served the notice on

Donald but not Yang.            The Board further alleged Yang violated rule

32:1.7(a)(2) (continuing to represent a client when there is a significant
risk that the representation will be materially affected by a personal

interest of the lawyer) by failing to withdraw as Donald’s counsel after

Judge Fujimoto’s ruling revealed that a motion to reopen asserting

       5In  Lozada, the Board of Immigration Appeals held that a motion to reopen a
deportation proceeding on the ground of ineffective assistance of counsel should state
whether a complaint “has been filed with appropriate disciplinary authorities with
respect to any violation of counsel’s ethical or legal responsibilities, and if not, why not.”
Matter of Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988).
       6The  record indicates the motion to reopen filed by Donald’s new counsel was
granted by the immigration court.
       7Unless   otherwise specified, all citations to the Iowa Court Rules are to the 2012
version, effective February 20, 2012.
                                      6

Yang’s ineffective assistance could be filed. The Board’s complaint also

alleged Yang violated rule 32:1.4(b) (requiring a lawyer to explain a

matter to the extent reasonably necessary to permit the client to make

informed decisions regarding the representation) when he failed to inform

Donald that ineffective assistance was a potential ground for reopening

the removal proceeding and rule 32:1.7(b) (lawyer may represent a client

notwithstanding the existence of a conflict of interest if the affected client

gives informed consent in writing) in continuing to represent Donald in

the appeal from Judge Fujimoto’s ruling without Donald’s informed

consent.

      Yang denied he engaged in intentional misrepresentation.             He

asserted his failure to disclose that the notice was delivered to him by

Donald rather than directly from the court was an unintentional

oversight rather than an act of misrepresentation in violation of rule

32:8.4(c). Yang also denied he violated the other rules cited by the Board

because his representation of Donald was not ineffective under the

circumstances.

      The matter went to hearing before the commission.                   The

commission found Yang violated rule 32:8.4(c) in the appeal of Judge

Fujimoto’s ruling by representing the notice of the MCH was received

from the court.     The commission found the Board failed to prove

violations of the other rules cited in the Board’s complaint but

recommended Yang be publicly reprimanded. This recommendation was

based in part on the commission’s consideration of Yang’s history of one

prior public reprimand for neglecting a client’s appeal and four prior

private admonitions.    It was also based in part on the commission’s

recognition of Yang’s long history of community service, his cooperation

with the Board’s investigation, and his reputation as a knowledgeable
                                     7

immigration lawyer who has assisted countless immigrants with difficult

immigration problems.

      II. Scope of Review.

      Our review of this attorney disciplinary proceeding is de novo.

Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Bernard, 653 N.W.2d

373, 375 (Iowa 2002).        “It is the Board’s burden to prove ethical

violations by a convincing preponderance of the evidence.”             Iowa

Supreme Ct. Att’y Disciplinary Bd. v. Denton, 814 N.W.2d 548, 551 (Iowa

2012).    Although we give respectful consideration to the commission’s

findings and recommendation for sanction, we are not bound by them.

Id.

      III. Discussion.

      Upon our de novo review of the record, we agree with the

commission’s finding that Yang violated rule 32:8.4(c) when he made a

misrepresentation in the appeal from Judge Fujimoto’s ruling. We find

by    a      convincing   preponderance   of   the   evidence   that    the

misrepresentation was knowingly made on appeal as it was made after

Judge Fujimoto’s ruling on the motion to reopen had expressly

emphasized the inaccuracy of Yang’s earlier assertion that he had

received notice of the May 5, 2009 MCH from the court. Although it is

plausible that Yang simply erred in making the inaccurate factual

representation in his motion requesting Judge Fujimoto to reconsider his

ruling, we find Yang’s repetition of the inaccurate factual assertion on

appeal after a court ruling had expressly emphasized its inaccuracy

constituted a misrepresentation made with scienter in violation of rule

32:8.4(c).     See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Netti, 797

N.W.2d 591, 605 (Iowa 2011).
                                           8

       We also find by a convincing preponderance of the evidence that

Yang violated rule 32:1.4(b) when he failed to explain to Donald that he

could file a motion alleging Yang’s ineffective assistance as a ground to

reopen the removal proceeding.             Although Yang asserts he did not

explain this option to Donald because he was confident based on his

considerable professional experience as an immigration lawyer that

Judge Fujimoto’s ruling would be reversed on appeal, we conclude Yang

owed his client an explanation of the alternative course of action because

it was reasonably necessary to permit Donald to make an informed

decision on the matter.

       We further find by a convincing preponderance of the evidence that

Yang violated rule 32:1.7(a)(2) by continuing to represent Donald without

disclosure and informed consent after it became clear that one strategic

option for challenging Judge Fujimoto’s ruling would include a claim of

Yang’s ineffectiveness and possibly a complaint asserting Yang’s violation

of ethical rules.     In continuing the representation of Donald without

disclosure of the apparent conflict of interest, Yang ignored a significant

risk that the representation would be materially limited by Yang’s

personal interest in avoiding a potential ethical complaint. 8

       IV. Sanction.

       When deciding on an appropriate sanction for an attorney’s ethical

violations, we consider the nature of the violations, the need to protect

the public, deterrence of similar misconduct by other lawyers, the


       8We  agree with the commission’s determination that Yang did not commit a
separate sanctionable violation of rule 32:1.7(b) by continuing to represent Donald in
the appeal without Donald’s informed consent. Although Yang could have continued to
represent Donald had he made disclosure of the conflict and obtained Donald’s
informed written consent consistent with the strictures of rule 32:1.7(b), he did not do
so. This failure to pursue the “safe harbor” of informed consent for the continuing
representation does not constitute a separate violation of rule 32:1.7(b).
                                      9

lawyer’s fitness to practice law, and the court’s duty to uphold the

integrity of the legal profession in the eyes of the public. Iowa Supreme

Ct. Att’y Disciplinary Bd. v. Walker, 712 N.W.2d 683, 685 (Iowa 2006).

We also consider any relevant aggravating and mitigating circumstances

evidenced in the record. Id. In its well-written and soundly reasoned

report, the commission noted Yang’s prior disciplinary history as an

aggravating      circumstance   and   recounted     significant   mitigating

circumstances arising from his substantial service to the immigrant

community and his complete cooperation with the Board’s investigation.

In this case, we conclude the commission’s recommendation of a public

reprimand is most appropriate.            Accordingly, we impose a public

reprimand. The costs of this action shall be taxed to Yang as provided in

rule 35.27(1).

      ATTORNEY REPRIMANDED.
