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ARDC Brings A Negligence Case – And Loses

Sometimes, for reasons that are obscure, the ARDC takes a set of facts that appear to prove negligence and makes a disciplinary complaint out of them. In the case of Barbara Ann Susman, the ARDC charged an immigration lawyer with: (a) failing to act with reasonable diligence, failing to promptly inform the client of an adverse decision, failing to keep the client reasonably informed, making a false statement to the ARDC, conduct involving dishonesty, failing to respond to the ARDC’s demands for information and engaging in conduct prejudicial to the administration of justice.

The facts demonstrated that Susman was hired by David Yonan to file an appeal in an immigration matter. On September 1, 2010, the Immigration Service denied his petition for permanent residence based on his status as an alien of extraordinary ability. Yonan had until October 4, 2010, to appeal. Yonan met with Susman but did not promptly pay the retainer she requested. On Saturday, October 2, 2010, Yonan made a deposit of the amount of the filing fee. Susman then took the appeal to Federal Express and believed that Federal Express would deliver the appellate papers by Monday, October 4. Some months later, the USCIS rejected the appeal on the ground that the notice of appeal was not received until October 5, 2010. Yonan declined to appeal that decision. Later, he retained another lawyer and moved to reopen his appeal.

The Panel ruled that the ARDC failed to prove a lack of diligence because Yonan did not pay the filing fee until the last minute. The Panel noted that the evidence showed that Susman acted with diligence:

Although the Administrator questioned what time Respondent tendered her shipment to FedEx, we have no evidence from FedEx interpreting the times indicated on the receipt and thus have no basis to conclude that Respondent failed to submit the documents in time to be shipped on October 2, 2010. Having no evidence to the contrary, we find credible Respondent’s testimony that she received an assurance from a FedEx employee that the Notice of Appeal would be delivered on October 4, 2010.

Thus, we find Respondent reasonably believed the Notice of Appeal would arrive at USCIS on the date it was due. Obviously, she had no control over the document’s delivery once she submitted it to FedEx. In our view, Respondent acted appropriately under the circumstances and, in fact, went out of her way to try to preserve Yonan’s right to appeal. Moreover, even if the late filing was attributable to Respondent, which we do not believe it was, an isolated oversight “is simply not sufficiently culpable to warrant discipline.” In re Mason, 122 Ill. 2d 163, 170, 522 N.E.2d 1233 (1988). Accordingly, we find the Administrator did not establish a violation of Rule 1.3 by clear and convincing evidence.

Comment: the unfortunate late delivery of the Notice of Appeal was a matter of negligence, not a matter of professional misconduct. Indeed, I doubt the lawyer acted negligently in any way. She had a right to insist that the client pay the filing fee before she proceeded. Because he paid the fee at the last second and on a Saturday, he placed his lawyer in an impossible situation. In sum, I agree with the Panel that this was not a disciplinary case and should not have been prosecuted.

The Panel also rejected a charge that Susman made a false statement to the ARDC. In her response to the ARDC Susman stated that “we timely filed this Notice of Appeal on October 2, 2010, and the shipper UPS confirmed that it was timely shipped and in transit on October 2, 2010.” The ARDC charged her with making a false statement. ¬†The Panel rejected that claim on the ground that, while Susman’s statement may have been mistaken, she wanted to insist that the Notice of Appeal was timely shipped.

The Panel also rejected charges that Susman ignored two letters and a subpoena from the ARDC.

The case is captioned In re Barbara Ann Susman, 2014 PR 00094.

In sum, this is another case where the ARDC brought a negligence claim against an attorney, but describes the claim as one for professional misconduct. The Panel, in my view, correctly rejected the negligence claim and the false statement to the ARDC claim.

Edward X. Clinton, Jr.