Disciplinary Board of the Supreme Court of the State v. Howe
2014 ND 44
| N.D. | 2014Background
- Henry H. Howe, admitted 1973, represented Elias Camacho‑Banda and Margarita Maya‑Morales (undocumented residents) in immigration removal/cancellation proceedings; clients have U.S. citizen children including one child with a learning disability.
- Immigration judge (May 16, 2007) instructed Howe to file applications for cancellation of removal and to supplement the record with significant hardship documentation (teacher/doctor letters and information on special‑education availability in Mexico); Howe delayed filing until November 21, 2008.
- At the December 1, 2008 merits hearing Howe failed to complete biometrics (no fingerprints), was unprepared, and was given 30 days to augment the record; filing errors and noncompliance with submission requirements followed.
- Howe failed to notify clients of a rescheduled January 13, 2009 hearing (they missed it), later missed further deadlines and did not submit written closing arguments; the judge ultimately ordered deportation on November 15, 2011 and the clients retained new counsel.
- Disciplinary Board charged Howe with violating N.D.R. Prof. Conduct Rules 1.1 (competence), 1.3 (diligence), and 1.4 (communication); hearing panel recommended a six‑month suspension, costs, and client accounting.
- The Supreme Court found clear and convincing evidence of violations, suspended Howe for six months and one day (effective 30 days after opinion), ordered $8,871.34 in costs, and required an accounting to the clients.
Issues
| Issue | Disciplinary Board's Argument | Howe's Argument | Held |
|---|---|---|---|
| Jurisdiction to discipline for conduct in federal immigration court | North Dakota may discipline a licensed ND lawyer for out‑of‑state or federal conduct under Rule 8.5(a) | Federal immigration court’s inaction should preclude ND discipline | Court: ND has jurisdiction; federal nonaction does not bar state discipline |
| Competence (Rule 1.1) | Howe failed to prepare, file timely applications, and to gather requested hardship evidence | Howe claimed strategic reasons for withholding some evidence and asserted a three‑part strategy | Court: Clear and convincing evidence of incompetence; violation of Rule 1.1 |
| Diligence (Rule 1.3) | Howe missed biometrics, delayed filing, and failed to act promptly causing prejudice risk | Howe blamed calendaring/paralegal and office changes | Court: Violated Rule 1.3; lawyer responsible for staff and missed deadlines |
| Communication (Rule 1.4) | Howe failed to inform clients of rescheduled hearing and did not provide accounting of fees/costs | Howe said miscommunication/translation issues and pro bono status influenced communications | Court: Violated Rule 1.4; clients were not reasonably kept informed and received no accounting |
Key Cases Cited
- Disciplinary Board v. Dyer, 2012 ND 118, 817 N.W.2d 351 (de novo review of disciplinary record)
- Disciplinary Board v. Hann, 2012 ND 160, 819 N.W.2d 498 (review standard and weight to board findings)
- Disciplinary Board v. Hoffman, 2013 ND 137, 834 N.W.2d 636 (burden of proof in disciplinary proceedings)
- Disciplinary Board v. Karlsen, 2008 ND 235, 778 N.W.2d 522 (state discipline for conduct arising in federal immigration proceedings)
- Disciplinary Board v. Vela, 2005 ND 119, 699 N.W.2d 839 (state regulation of out‑of‑state/federal conduct)
- Disciplinary Board v. Vela, 2008 ND 42, 746 N.W.2d 1 (related treatment of immigration‑related disciplinary issues)