IN THE SUPREME COURT OF FLORIDA. THE FLORIDA BAR, : CASE NO: SC : LOWER TRIBUNAL: ,017 (02) Complainant-Appellee: FILING DATE: 8/3/2001

Transcription

1 IN THE SUPREME COURT OF FLORIDA THE FLORIDA BAR, : CASE NO: SC : LOWER TRIBUNAL: ,017 (02) Complainant-Appellee: FILING DATE: 8/3/2001 :v. : : JOSE L. DELCASTILLO : SALAMANCA : Respondent-Appellant: : AUGUST 9, 2002 APPELLANT S INITIAL BRIEF José L. DelCastillo, # FL DelCastillo & Associates255 Main Street, Suite 2Hartford, CT

2 PRELIMINARY STATEMENT The Appellant Jose L. DelCastillo de Salamanca will be referred to as the Appellant. The Florida Bar, Appellee, will be referred to as the Bar or the Florida Bar. This Appeal arises from a judgment that resulted from the Referee s Report whereby the Referee recommended that the Appellant be suspended from the practice of law in the State of Florida for 10 days in addition to paying costs and fees for the Florida Bar s Complaint against the Appellant. There will be references made the Report of the Referee, the Florida Bar s Complaint, Request for Admission, the Appellant s Response to the Florida Bar s Complaint, Request for Review, Petition for Review, Memorandum of Law in support of Petition for Review and no transcript references. 2

3 STATEMENT OF THE FACTS The Appellant is an attorney duly licensed to practice law in the states of Florida, Connecticut and New Jersey. In a decision dated July 13, 2000, the State of Connecticut Statewide Grievance Committee found that the Appellant failed to represent his former client, Diego San Martin with due diligence and promptness in deportation proceedings. Accordingly, the Connecticut Statewide Grievance Committee reprimanded the Appellant and ordered him to take a Continuing Legal Education in Professional Ethics. San Martin v. DelCastillo, Complaint No , p. 3 (2000). On August 3, 2001,the Florida Bar filed its complaint against the Appellant alleging the underlying finding of misconduct in the State of Connecticut as well as further allegation that the Appellant failed to obtain information from the Government s immigration records within reasonable time. See ROP Florida Bar Complaint p. 2. 3

4 Along with the Complaint, the Florida Bar submitted a Request for Admission of the underlying events as well as that the holding of the Statewide Grievance Committee be held as conclusive proof of the Appellant s misconduct. See ROP Florida Bar Request for Admission. On August 16, 2001, the Appellant submitted his response to the Bar s Request for Admission. In addition, on August 16, 2001, the Appellant submitted a Motion to extend time to respond to the Bar s Complaint. See ROP Appellant s compliance with Request for Admission and Motion for Extension of Time. A decision was entered on the Motion to Extend time on November See ROP Order Granting Extension of Time to Respond to Complaint and Notice of Hearing. As indicated in the November 13, 2001 Notice of Hearing, the Appellant was scheduled for a hearing on January 14, 2002, which the Appellant failed to appear. On February 4, 2000 the Report of the Referee indicated that the Appellant should be suspended from Practice for 10 days and pay costs and fees. See ROP Report of the Referee, p.3. On March 29, 2002 the Appellant filed a Petition for Review of the Referee s Report to review the punishment imposed in that it is unduly harsh 4

5 and not in compliance with the Florida Bar Standards for imposing lawyer sanctions. SUMMARY OF THE ARGUMENT For the underlying misconduct found in San Martin v. DelCastillo, Complaint No , the Connecticut Statewide Grievance Committee imposed a reprimand against the Appellant and ordered the Appellant to take Continuing Legal Education in Professional Ethics. For the same conduct or misconduct, the State of Florida seeks to impose a suspension from practice for 10 days in addition to paying the costs for litigating these Bar s Complaint. The underlying offense in San Martin v. DelCastillo was the first and only finding of misconduct against the Appellant. In addition, Mr. San Martin did not suffer any harm by the Appellant s conduct. As a matter of fact, Mr. San Martin would have been ordered deported much sooner than September 21, 1999 based on the evidence on the San Martin case. 5

6 In addition, Mr. San Martin filed the Complaint against Attorney DelCastillo as a vehicle to reopen deportation proceedings where he had no basis to remain in the United States. The third attorney to represent Mr. San Martin filed a motion to reopen the deportation proceedings. The motion was granted and Mr. San Martin was ordered deported for the second time because he did not have any relief from deportation. Because the Appellant s conduct was not harmful to Mr. San Martin the 10-day suspension of practice in the State of Florida is unduly harsh and excessive in relation to the alleged misconduct. In addition, the in imposing the punishment against the Appellant the Referee departed from the Florida Bar standards for imposing lawyer sanctions. ARGUMENT 1. THE PUNISHMENT IMPOSED IN THE REFEREE S REPORT IS NOT IN COMPLIANCE WITH THE FLORIDA BAR STANDARDS FOR IMPOSING LAWYER SANCTIONS. Based on the Florida Bar Standards for Imposing Lawyer Sanctions, Rule (k)(1), Rule 4.42 and Rule 6.62, the Referee is required to consider the following questions before recommending or imposing appropriate discipline: 1. Appellant s personal history; 2. duties violated; 6

7 3. the lawyer s mental state; 4. the potential or actual injury caused by the lawyer s misconduct; 5. the existence of aggravating or mitigating circumstances. Pursuant to Rule 3-7.9, the Bar should use the above standards to determine recommended discipline to referees and the court to determine acceptable pleas under Rule In his recommendation for a 10-day suspension from practice, the Referee did not consider all of the above-mentioned questions for consideration. The Referee s Report cited Section 4.42 and Section 6.22 of the Florida Bar Standards for Imposing Lawyer Sanctions. In applying the 5 questions cited in the Florida Bar Standard For Imposing Layer Sanctions the Referee should have reported as follows: 1. The Appellant violated Florida Rules of Professional Conduct Section as a result of the underlying finding of misconduct by the State of Connecticut Statewide Grievance Committee in San Martin v. DelCastillo. 2. The Appellant is of sound mental state. 3. There was no potential or actual injury caused by the lawyer s misconduct. In the Matter of San Martin v. Jose DelCastillo, # (2000), Mr. San Martin did not suffer 7

8 any potential or actual injury. The Grievance Complaint was filed against the Appellant in Mr. San Martin s effort to have a pursue a Motion to Reopen deportation proceedings before the Immigration Court after he was ordered removed from the United States. Mr. San Martin was not ordered removed because of Attorney s conduct or misconduct. Mr. San Martin s former attorney filed his application for adjustment of status late on February 13, 1998 thus making Mr. San Martin ineligible for adjustment of status to permanent resident. The Appellant did not obtain information from the Government s file sooner in order for the court and the Appellant to determine that Mr. San Martin was ineligible for adjustment of status and thus deportable from the United States. Accordingly, Mr. San Martin was ordered removed because he did not have relief from removal at the time of his hearing. 1 Even after the Grievance Complaint was filed, the Immigration Court denied the Mr. San Martin s Motion to Reopen because Mr. San Martin did not have any means to adjust status. (His wife left him and failed to continue the immigrant petition on Mr. San Martin s behalf). Accordingly, the Appellant s failure to appear at Mr. San Martin s hearing 1 Even though the information concerning San Martin s Immigration proceeding is hearsay, the information was obtained by calling and punching in Mr. San Martins Alien Number to receive a recorded status of the case. 8

9 or failure to submit the application before the immigration court did not harm Mr. San Martin. 4. The Appellant s failure to appear at the January 14, 2002 hearing did not cause interference or potential interference with the legal proceeding. The Appellant has not been notified as to what manner his failure to appear resulted in an interference with the legal proceeding against him in the State of Florida. Accordingly, there was not potential or actual injury caused by the lawyer s conduct or misconduct. Accordingly, the Referee erred in is Report on Respondent s failure to respond to Bar inquiries and Florida Bar v. Summers, 728 So.2d 739 (Fla. 1999) is not be applicable to the Respondent s case. 5. The Appellant has substantial experience in the practice of law is a mitigating factor. Apart from failing to appear at the January 14, 2002 hearing, the Appellant responded to the Bar inquiries and provided documents so show his compliance with the Connecticut Grievance Committee order. The Referee should have reported on the issue of whether the failure to appear at the final hearing by itself is an aggravating factor or does it require both failure to appear and failure to respond to inquiries in order to be regarded as 9

10 an aggravating factor. Accordingly, the Appellant is uncertain as to which of the alleged conduct or misconduct is being used to his detriment. 6. The Appellant has no prior disciplinary record and based on hearsay, the Respondent is considered to be of good reputation and character is correct. In his response to the Florida Bar allegations, the Appellant submitted a certificate of Good Standing from the Connecticut Bar Association. A copy of the Certificate of Good Standing is attached as Exhibit A. 2 In support of his good reputation in Connecticut, the Respondent is also been appointed to serve as a member of several different Charter Reform Commissions in the City of Hartford and also with the Hartford Economic Development Commission, a civic organization with the goal of revitalizing the economic viability of the City of Hartford in Connecticut. Copies of the letters of appointment have been attached as Exhibit B. 3 The Respondent has received awards and commendations for his efforts to provide pro bono services to the indigent residents of Hartford. Copies of the awards and 2 The original Certificate of Good Standing was submitted as a part of the Memorandum of Law in Support of the Petition for Review, which was previously submitted to the Supreme Court on April 30, The documents submitted as Exhibit B were previously submitted to the Supreme Court on April 30, 2002 as indicated above. 10

11 commendations are attached as Exhibit C The Respondent also negotiated with the Bar, that upon conceding to the charges in the Complaint, the Bar Counsel would agree to recommend a reciprocal discipline as imposed in the State of Connecticut. It has not been indicated that the Bar recommended a reciprocal discipline as imposed by the State of Connecticut. The State of Connecticut required Attorney DelCastillo to take Continuing Legal Education in Legal Ethics, which has been complied with. Based on the fact that the Referee did not make a proper finding required by the Bar s Standards for imposing lawyer sanctions, the 10-day suspension from practice should be vacated. 2. THE PUNISHMENT OF 10-DAYS SUSPENSION FROM PRACTICE IN THE STATE OF FLORIDA IS UNDULY EXCESSIVE AND HARSH IN RELATION TO THE OFFENSE COMMITTED BY THE RESPONDENT. For the underlying misconduct in the State of Connecticut, the Appellant was reprimanded and ordered to take Continuing Legal Education in Professional Ethics. The Appellant have duly complied with the request. 4 The documents submitted as Exhibit C were previously submitted to the Supreme Court on April 30, 2002 as indicated above. 11

12 The fact that the State of Florida is now penalizing the Appellant for the same conduct from Connecticut, the Appellant is being punished twice for the same case. It is understood that the purpose of the Bar Complaint is to ensure that the conduct of lawyers are held to the standards of the profession, being punished twice for the same act is in itself a severe enough punishment. As indicated in the Connecticut decision, the Appellant failed to appear that Mr. San Martin s hearing, he failed to obtain the information concerning Mr. San Martin s eligibility for adjustment of status and also he failed to submit Mr. San Martin s application on time. As noted in the Connecticut decision, on September 21, 1999, Mr. San Martin waited in Immigration Court until 2:15 p.m. when the Immigration Judge told him to tell the Appellant to submit the application by 4:30 p.m. on that day, knowing that it would be impossible for the Appellant to do so properly. In addition, the Immigration Judge entered a decision on September 22, 1999 disposing of the Appellant s opportunity to apply for adjustment of status. In addition, the Immigration Judge set a new hearing to 12

13 decide on Mr. San Martin s application for voluntary departure. The Immigration Judge indicated that he will entertain a Motion to Reopen if Attorney DelCastillo was reported his conduct to the Statewide Grievance Committee. Because Attorney DelCastillo did not report himself to the Statewide Grievance Committee the Immigration Judge denied the Motion. Accordingly, eventhough the Appellant s conduct did not harm Mr. San Martin, the Immigration Judge refused to offer Mr. San Martin any discretion unless he grieved Mr. DelCastillo. 13

14 Being aggrieved by a client in general is sufficient punishment, in that the information of the grievance goes against the Attorney s professional record. Such conduct affects the Appellant s malpractice insurance rates as well as his general reputation as an attorney. A 10-day suspension from practice in the State of Florida is unduly harsh because it further chastises the Appellant for conduct that for which he has been punished and is continually being punished. If the purpose of the punishment is to ensure that the Attorney uphold the professional standards of practicing attorneys, the 10-day suspension from practice goes beyond punishment and becomes a discouragement from the practice of law. Attorney DelCastillo have represented many clients in the State of Connecticut and some clients in the State of Florida. He has helped many people. He has done extensive pro bono work and has helped many clients. The case of Diego San Martin should not be used as a vehicle to ostracize Attorney DelCastillo from the practice of law. 14

15 The practice of immigration law is very complex. At times an attorney is forced to make a choice between keeping his client legally in the United States for as long as possible as opposed to getting his client deported where there might be a chance to obtain lawful permanent residence immediately or in the future. The case of Diego San Martin runs deeper than what is expressed in the Connecticut Decision. As it appears in the Connecticut Decision, the purpose of the Grievance Compliant was not to benefit Mr. San Martin, who was ordered deported eventually and who would have been ordered deported sooner than September 21, The purpose of the Complaint was to punish Attorney DelCastillo regardless of the fact that his conduct was of no harm to Mr. San Martin. Based on the fact that Attorney DelCastillo s conduct was not harmful to the client, we respectfully request that the Supreme Court accepts the punishment imposed by Connecticut as credit for the Florida Complaint or in the alternative order reciprocal punishment. 15

16 CONCLUSION The Appellant has been and continues to be an attorney of good standing in the State of Connecticut. A punishment of 10-day suspension from practice in Florida is unduly harsh and does not further the States interests in preserving and upholding the standards of the professional conduct. Accordingly, the Appellant respectfully request that the Court accepts the Connecticut punishment in satisfaction of the Florid Bar s Complaint or in the alternative order reciprocal punishment as imposed by the State of Connecticut. Respectfully submitted, By: José L. DelCastillo, Esq. DelCastillo & Associates 255 Main Street, Suite 1S Hartford, CT Juris No.: FL Respondent LIST OF EXHIBITS A. Certificate of Good Standing B. Letters of Appointment C. Awards and Commendations for pro bono services to the indigent residents of Hartford. 16

17 CERTIFICATION We hereby certify that a copy of the foregoing was mailed, postage repaid, this 9th day of August Edward Iturralde Bar Counsel, The Florida Bar 650 Apalachee Parkway Tallahassee, Florida Attorney Number John Anthony Boggs, Staff Counsel The Florida Bar 650 Apalachee Parkway Tallahassee, FL Bar Number and John F. Harkness, Jr. Executive Director The Florida Bar 650 Apalachee Parkway Tallahassee, FL Bar Number By: José L. DelCastillo, Esq. DelCastillo & Associates 255 Main Street, Suite 2 Hartford, CT Juris No.: FL Respondent CERTIFICATE OF TYPE, SIZE, STYLE AND ANTI-VIRUS SCAN The undersigned counsel hereby certifies that the Appellant s Initial Brief is submitted in 12 point proportionately spaced Courier New font and that the computer disk filed with this brief has been scanned and found to be free of viruses by Norton Anti-Virus for Windows By: José L. DelCastillo, Esq. 17