Disciplinary Counsel v. Nasrallah - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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[Cite as Disciplinary Counsel v. Nasrallah, 94 Ohio St.3d 143, 2002-Ohio-324.]

OFFICE OF DISCIPLINARY COUNSEL ET AL. v. NASRALLAH.
[Cite as Disciplinary Counsel v. Nasrallah (2002), 94 Ohio St.3d 143.]
Attorneys at law -- Misconduct -- Permanent disbarment -- Pattern of taking
client retainers and failing to carry out contracts of employment.
(No. 01-1254 -- Submitted August 28, 2001 -- Decided January 16, 2002.)
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and
Discipline of the Supreme Court, No. 00-34.
__________________

Per Curiam. In 1993, we suspended respondent, Fuad B. Nasrallah of
Dayton, Ohio, Attorney Registration No. 0023893, from the practice of law for
two years for failure to complete employment agreements with eighteen clients
for representation in various immigration matters. We stayed the entire
suspension provided that respondent make restitution to the clients and submit to
probation for a two-year period. Disciplinary Counsel v. Nasrallah (1993), 67
Ohio St.3d 238, 617 N.E.2d 677. Now we are presented with a similar situation
involving the same attorney.

On June 5, 2000, relators, Disciplinary Counsel and Dayton Bar
Association, filed a complaint charging respondent with numerous violations of
the Code of Professional Responsibility. Relators filed an amended complaint on
September 8, 2000. On September 18, 2000, based on the same allegations,
relators filed a motion in this court to suspend respondent from the practice of law
for an interim period on the ground that respondent posed a serious threat of
substantial harm to the public. On October 19, 2000, we granted that motion and
imposed an interim suspension on respondent. Disciplinary Counsel v. Nasrallah
(2000), 90 Ohio St.3d 1225, 737 N.E.2d 965. Previous to that suspension,
respondent was suspended for three weeks from August 1 through August 21,

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2000, under Gov.Bar R. V(5)(A)(1)(b) for failing to pay child support. While
suspended, respondent appeared on behalf of a client before an administrative
agency and met with clients at his office.

Respondent answered relators' complaint, and the matter was referred to a
panel of the Board of Commissioners on Grievances and Discipline ("board").
Based upon stipulations and evidence received at a hearing on December 8, 2000,
the panel found that in November 1994, Merzak Dellali paid respondent $1,000 to
help him with his asylum claim. Respondent repeatedly advised Dellali that his
application for asylum was pending with the Immigration and Naturalization
Service ("INS"). However, in November 1998, after hiring a new attorney,
Dellali discovered that no such application had ever been filed. The panel
concluded that respondent's conduct in this matter violated DR 1-102(A)(4) (a
lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or
misrepresentation), 1-102(A)(5) (a lawyer shall not engage in conduct prejudicial
to the administration of justice), 6-101(A)(3) (a lawyer shall not neglect an
entrusted legal matter), and 7-101(A)(2) (a lawyer shall not fail to carry out a
contract for professional employment).

Similarly, in 1995, another client, Mahmoud Alqara, paid respondent
$1,500 to obtain an extension of time for him to voluntarily depart from the
United States. In May 1997, Alqara discovered that respondent had done no work
on his case, leaving Alqara open to deportation. The panel concluded that with
respect to his failure to represent Alqara, respondent violated DR 1-102(A)(5), 6-
101(A)(3), and 7-101(A)(2).

The panel also found that after Mr. and Ms. Michael Morgan paid
respondent $3,000 in September 1995 to help them establish a business in the
Dayton, Ohio area and obtain an E-2 visa for them, respondent only filed articles
of incorporation for their business. Through the summer of 1998, respondent
assured the Morgans that their visa application was proceeding smoothly. In fact,
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January Term, 2002
the INS had returned the Morgans' application to respondent for more
information to be furnished by June 1996, and when respondent failed to meet the
date, the INS denied the application. With respect to the Morgans, the panel
concluded that respondent violated DR 1-102(A)(4), 1-102(A)(5), 6-101(A)(3),
and 7-101(A)(2).

In addition, the panel found that in October 1997, Farazdak Haidar paid
respondent $5,000 and then another $2,650 for respondent to assist Haidar and his
wife with various applications before the INS. Haidar discovered in December
1998 that respondent had done nothing in his case although on the infrequent
times that Haidar was able to contact respondent, respondent told Haidar that he
was working on the case. Haidar retained new counsel and requested a return of
his fees. Respondent did not comply. The panel concluded that this conduct
violated DR 1-102(A)(5), 6-101(A)(3), 7-101(A)(2), and 9-102(B)(4) (a lawyer
shall promptly deliver to the client funds or property to which the client is
entitled).

The panel also found that in December 1997, Zhong Ma paid respondent
$1,800 and then an additional $1,250 to file an application for employment
certification with the Ohio Bureau of Employment Services ("OBES") and to
obtain permanent residence. Respondent filed the application on behalf of Ma but
failed to respond to OBES's request for more information, with the result that the
agency closed the file on Ma's application. The panel concluded that
respondent's inaction violated DR 1-102(A)(5), 6-101(A)(3), and 7-101(A)(2).

Again, the panel found that in February 1999, ManTech Systems Solutions
Corporation paid respondent $2,600 to handle an immigration matter with OBES
on behalf of one of its employees. ManTech later discovered that, contrary to his
representations, respondent had taken no action in the matter. When requested to
do so in February 2000, respondent did not return the $2,600. The panel
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concluded that this conduct violated DR 1-102(A)(4), 1-102(A)(5), 6-101(A)(3),
7-101(A)(2), and 9-102(B)(4).

On March 1, 1997, respondent received $1,750 and then an additional
$1,250 from Ali El-Sharif to fully process a green card application. In September
1999, El-Sharif discovered that respondent had not properly filed the
documentation that respondent had been retained to file. When El-Sharif
terminated respondent's representation and demanded a return of his retainer,
respondent gave him two checks, each for $1,500. One of the checks was
returned for insufficient funds. Only when El-Sharif sued respondent in small
claims court did respondent return the remaining $1,500. The panel concluded
that respondent's conduct with respect to El-Sharif violated DR 1-102(A)(4), 1-
102(A)(5), 6-101(A)(3), 7-101(A)(2), and 9-102(B)(4).

Alan Jilani retained respondent in August 1999 and paid him $1,500 to
handle a paternity matter. Respondent did not complete his work on the matter
until Jilani filed a grievance with relator Dayton Bar Association. This conduct,
concluded the panel, violated DR 1-102(A)(5), 6-101(A)(3), and 7-101(A)(2).

Prior to September 27, 1999, Subhankar Dhar retained respondent, paying
him a $700 retainer to file certain papers with the INS. Dhar told respondent that
time was important in this matter. Respondent thereafter took no action and failed
to respond to Dhar's telephone calls. As a result, Dhar has been unable to return
to India or to accept job offers due to his uncertain status in the United States.
The panel concluded that respondent's conduct violated DR 1-102(A)(5), 6-
101(A)(3), 7-101(A)(2), and 9-102(B)(4).

On or about June 1, 1999, Guosong Li paid respondent $1,935 for a
retainer and filing fees to file application for adjustment of status for him and his
wife, and he executed the appropriate forms, but thereafter respondent failed to
respond to Li's e-mail and fax inquiries. On January 14, 2000, Li went to
respondent's office to retrieve some of the papers that he had furnished to
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January Term, 2002
respondent. He discovered that no application had been filed on his behalf and
that important documents that he had provided to respondent were not in his file.
Without documentation, Li cannot obtain full-time work and has lost over
$10,000 in wages. This conduct, said the panel, violated DR 1-102(A)(4), 1-
102(A)(5), 6-101(A)(3), and 7-101(A)(2).

Zahi Chihab paid respondent a retainer of $3,600 to process four INS
matters. Before respondent completed his work, Chihab terminated his
representation. Respondent agreed to return a portion of Chihab's legal fees but
to date has not done so. The panel made no conclusions with respect to
respondent's conduct relating to Chihab.

In March 1999, Sanjay Subron and his employer engaged respondent to
process several INS matters. Subron paid respondent $4,615 for attorney and
filing fees. In September 1999, respondent falsely advised Subron that all the
necessary papers had been filed. When the employer discovered that they had not
been filed, it terminated respondent's employment. The panel found that in
failing to represent Subron, respondent had violated DR 1-102(A)(4), 1-
102(A)(5), 6-101(A)(3), and 7-101(A)(2).

Prasanna Ramakrishnan engaged respondent to file an application for alien
employment certification in February 1999 and paid respondent a $3,800 retainer.
A year later, he discovered that the application had not been filed, and respondent
falsely stated that the failure was because Ramakrishnan's employer had not
supplied certain necessary information. After his employment was terminated,
respondent failed to refund the retainer when requested. Respondent's conduct,
concluded the panel, violated DR 1-102(A)(4), 1-102(A)(5), 6-101(A)(3), 7-
101(A)(2), and 9-102(B)(4).

Similarly, in September 1997, respondent took a $3,100 retainer from
Vladislav Alyoshkin and Igor Eremenko, telling them that it would take twelve to
sixteen months to process their green card applications. By February 2000, after
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SUPREME COURT OF OHIO
respondent had failed to return numerous phone calls and was unavailable for
appointments, Alyoshkin and Eremenko became dissatisfied with respondent's
progress in the matter and discovered that respondent had falsely stated that he
had filed the necessary documents. The panel concluded that respondent had
violated DR 1-102(A)(4), 1-102(A)(5), 6-101(A)(3), and 7-101(A)(2).

In April 1998, respondent obtained an extension of stay in the United
States for Kang Log Rim, who paid respondent $2,295 to obtain the extension and
to process an application for a work permit. An extension of stay until October 6,
1998, was obtained. However, although respondent advised Rim that he was
processing the work permit application, he had not submitted an application on
Rim's behalf when the extension of stay expired. Nor did respondent obtain an
extension of stay beyond October 6, 1998. Until March 2000, respondent
repeatedly told Rim that the paperwork had been "filed" but finally admitted that
he had filed nothing to process Rim's work permit. Although requested by Rim,
respondent did not return any part of the fee that Rim had paid. As a result of
respondent's inaction, the status of Rim and his family in the United States is
uncertain. The panel concluded that with respect to this matter, respondent had
violated DR 1-102(A)(4), 1-102(A)(5), 6-101(A)(3), 7-101(A)(2), and 9-
102(B)(4).

In October 1999, Elena Gavrilova paid respondent $500 to obtain an H1B
visa. Respondent failed to obtain the visa before Gavrilova's temporary visa
expired and did not return her retainer despite Gavrilova's repeated requests. This
conduct violated DR 1-102(A)(5), 6-101(A)(3), 7-101(A)(2), and 9-102(B)(4),
according to the panel.

Nadine Renteria gave respondent a down payment of $425 in October
1999 to represent her in a divorce matter. In April 2000, after repeated,
unsuccessful attempts to reach him by telephone, Renteria met with respondent,
who asked for an additional $200 and promised to file the necessary papers within
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January Term, 2002
thirty days. Four weeks later, when nothing had been filed, Renteria requested a
refund of her fees. Respondent has not replied. The panel concluded that
respondent's conduct violated DR 1-102(A)(5), 6-101(A)(3), 7-101(A)(2), and 9-
102(B)(4).

After assisting Nidal Hajj in certain immigration matters in 1996,
respondent advised Hajj that the INS required a bond of him in the amount of
$5,000. Hajj gave respondent a check for $5,000 in December 1996. However,
when Hajj appeared before the INS on his own in January 2000 because
respondent failed to answer his phone calls, Hajj discovered that no bond had
been paid. Hajj's new counsel made repeated and so far unavailing requests to
respondent for a return of the bond money. The panel concluded that by failing to
return Hajj's bond money, respondent had violated DR 9-102(B)(4).

In October 1997, Elias and Adele Bou Mansour paid respondent $3,500 to
appeal a notice of deportation and to seek reclassification of Mr. Bou Mansour's
INS status. Respondent took no action although advising the Bou Mansours
otherwise, and in February 2000, Mr. Bou Mansour received a letter from the INS
ordering him deported. This conduct, concluded the panel, violated DR 1-
102(A)(4), 1-102(A)(5), 6-101(A)(3), and 7-101(A)(2).

Because respondent failed to reply to Disciplinary Counsel's inquiries
about the Hajj and Bou Mansour matters, the panel concluded that he violated
Gov.Bar R. V(4)(G) (no attorney shall neglect or refuse to assist or testify in an
investigation or hearing). In addition, the panel concluded that respondent's
appearances on behalf of clients and his counseling them during his three-week
suspension for failing to pay child support violated DR 1-102(A)(4), 1-102(A)(5),
1-102(A)(6) (a lawyer shall not engage in conduct adversely reflecting on the
lawyer's fitness to practice law), and 3-101(B) (a lawyer shall not practice law in
a jurisdiction where doing so is in violation of the regulations of that jurisdiction).
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SUPREME COURT OF OHIO

The panel received evidence with respect to respondent's depression as a
mitigating factor in assessing his conduct. It also noted that respondent conducted
himself in a highly professional matter at the hearing and showed remorse.

The panel recommended that respondent be indefinitely suspended from
the practice of law in Ohio and in addition (1) that respondent pay full restitution
to his clients and to the Client Security Fund; (2) that respondent comply with his
continuing legal education requirements and specifically include courses that
relate to time management and running a legal practice; (3) that respondent
continue counseling with a psychiatrist or a psychologist for the duration of his
suspension and upon reinstatement for a period of two years; (4) that respondent
authorize his treating psychiatrist or psychologist to provide the Dayton Bar
Association with reports of his treatment at least on a quarterly basis; (5) that
prior to any reinstatement, respondent authorize the treating psychiatrist or
psychologist to provide a report to the Dayton Bar Association regarding
respondent's fitness to practice law; (6) that respondent be monitored by an
attorney designated by the Dayton Bar Association for a period of two years after
his reinstatement; (7) that upon his reinstatement to the practice of law respondent
establish an IOLTA (Interest on Lawyers Trust Account); (8) that upon
reinstatement, respondent maintain professional liability insurance and provide
evidence of that insurance to the Dayton Bar Association; and (9) that respondent
remain current in his child support obligations.

The board adopted the findings and conclusions of the panel, but also
concluded that by failing to return a portion of Zahi Chihab's legal fees,
respondent violated DR 9-102(B)(4). The board adopted the recommendations of
the panel.

We have reviewed the record and adopt the findings and conclusions of
the board but not its recommendation. In 1993, we suspended respondent for
failing to complete contracts with eighteen clients who employed him to proceed
8

January Term, 2002
with various immigration matters. Today, we review his failure to represent
adequately twenty other persons who employed him on immigration matters.

We have said on many occasions that taking client retainers and failing to
carry out contracts of employment is tantamount to theft of the fee from the client.
Disciplinary Counsel v. Sigall (1984), 14 Ohio St.3d 15, 17, 14 OBR 320, 321,
470 N.E.2d 886, 888. We characterized as "outrageous conduct" the "pattern of
taking large sums of money from vulnerable clients and families in immigration
and post-conviction cases and doing little or nothing on their behalf." Cleveland
Bar Assn. v. Nardi (1991), 61 Ohio St.3d 538, 541, 575 N.E.2d 793, 795.

The pattern established by this attorney over ten years ago and continuing
even today is too egregious to allow respondent to practice law again. He has
demonstrated that he is, as truly characterized by the relators in their motion for
interim suspension, "a substantial threat of serious harm to the public."
Respondent is hereby permanently disbarred from the practice of law in Ohio.
Costs are taxed to respondent.
Judgment accordingly.

MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.
__________________

Jonathan E. Coughlan, Disciplinary Counsel, and Stacy Solochek
Beckman, Assistant Disciplinary Counsel, for relator Disciplinary Counsel.

Roger J. Makley and Mark E. Stone, for relator Dayton Bar Association.

Gary C. Schaengold, for respondent.
__________________
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