Iowa Supreme Court Attorney Disciplinary Board v. Michael Hocine Said
2015 Iowa Sup. LEXIS 86
Iowa2015Background
- Michael H. Said, an Iowa immigration/criminal defense attorney, represented Pedro Hernandez in removal proceedings under a $5,200 flat‑fee agreement; Hernandez paid in installments beginning in 2006–2007.
- Said deposited the advance into his trust account but made repeated withdrawals that were not tied to clear milestones or contemporaneous records; most funds withdrawn by end of 2007.
- An adverse immigration order issued October 15, 2012, granting voluntary departure; the order was misfiled in Said’s office and not discovered until November 26, after the 30‑day appeal deadline.
- Said filed a motion to stay deportation and a notice of appeal asserting he was “preparing” a notice to the Attorney Disciplinary Board and would forward it to the BIA, but he never filed such a notice or forwarded it.
- The Grievance Commission found Said violated multiple Iowa Rules of Professional Conduct (communication, explanation, candor to tribunal, trust‑account/fee rules) and recommended a 30‑day license suspension; the Supreme Court imposed a 30‑day suspension.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Duty to keep client informed (Iowa R. Prof’l Conduct 32:1.4(a)(3)) | Board: Said failed to timely inform Hernandez of the removal order and missed appeal deadline. | Said: Missed deadline was inadvertent; he promptly informed client after discovery. | Court: Commission credibility findings deferred to; Said violated 32:1.4(a)(3). |
| Duty to explain matters so client can decide (32:1.4(b)) | Board: Said did not explain ineffective‑assistance/appeal options promptly so client could make informed decisions. | Said: Met with client and obtained authorization to proceed. | Court: Said violated 32:1.4(b) by failing to explain the issue at the December meeting. |
| Candor to tribunal (32:3.3(a)) — false statement | Board: Motion to BIA falsely stated Said was preparing and would file an ethics notice and forward it. | Said: Statement reflected intent; he intended to prepare and later forgot, so lacked knowledge of falsity. | Court: Evidence shows no notice was being prepared; Said had actual knowledge the statement was false — violated 32:3.3(a). |
| Trust account / withdrawal of advance fees (32:1.15(c) and court rules) | Board: Said withdrew flat‑fee advance payments before they were earned and failed to provide required notice/accounting. | Said: Flat‑fee agreement authorized periodic withdrawals; recordkeeping gaps explain apparent discrepancies. | Court: Flat‑fee terms did not apply to these removal proceedings; withdrawals were not tied to earned work and recordkeeping was inadequate — violations of 32:1.15(c) and related court rules. |
Key Cases Cited
- Iowa Supreme Ct. Att’y Disciplinary Bd. v. Eslick, 859 N.W.2d 198 (standard of de novo review in disciplinary matters)
- Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Kennedy, 684 N.W.2d 256 (professional neglect involves more than an isolated error)
- Iowa Supreme Ct. Att’y Disciplinary Bd. v. Boles, 808 N.W.2d 431 (multiyear accounting failures support suspension)
- Iowa Supreme Ct. Att’y Disciplinary Bd. v. Dolezal, 796 N.W.2d 910 (trust‑account/accounting violations can warrant suspension)
- Iowa Supreme Ct. Att’y Disciplinary Bd. v. Parrish, 801 N.W.2d 580 (failure to refund unearned fees plus deficient accounting supports greater suspension)