Iowa Supreme Court Attorney Disciplinary Board v. Ta-Yu Yang
2012 Iowa Sup. LEXIS 92
| Iowa | 2012Background
- Yang represented Donald Baudilio Escalante-Silva in NACARA-related immigration proceedings; later also represented Donald and Vilma in related deportation matters.
- Donald and Vilma’s proceedings were consolidated after venue was changed; removal proceedings were later reopened administratively then recalendared as separate cases.
- Donald’s May 5, 2009 master calendar hearing notice was sent to Donald, not to Yang, leading Yang to believe he could appear telephonically for Donald.
- The immigration court denied the motion to reopen citing lack of proper notice and the need for a written waiver for telephonic appearance, noting Lozada considerations for ineffective assistance claims.
- Donald alleged ineffective assistance by Yang; Yang sought BIA review arguing notice was received, while Donald retained new counsel who lodged ethics complaints.
- The Grievance Commission found a violation of rule 32:8.4(c) for misrepresentation on appeal, and Yang received a public reprimand based on aggravating and mitigating factors.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Yang misrepresent notice to the BIA? | Yang's appeal asserted notice was received from the court. | Yang claimed it was a benign error not a misrepresentation. | Yes; misrepresentation established. |
| Did Yang fail to inform Donald about ineffective assistance as a reopening ground? | Yang contends no need to explain beyond his belief in reversal likelihood. | Yang argues explaining options was unnecessary due to confidence in appeal outcome. | Yes; violated rule 32:1.4(b). |
| Did Yang continue to represent Donald despite a conflict of interest? | Continuing representation without revealing potential conflicts was improper. | Yang relied on professional experience; conflict disclosure not necessary for ongoing representation. | Yes; violated rule 32:1.7(a)(2). |
| Did Yang's conduct warrant any separate sanction under rule 32:1.7(b)? | Continued representation without consent could violate safe-harbor provisions. | No separate violation; lack of consent was not independently sanctionable here. | No separate violation; no independent 32:1.7(b) sanction. |
Key Cases Cited
- Iowa Supreme Ct. Att’y Disciplinary Bd. v. Netti, 797 N.W.2d 591 (Iowa 2011) (misrepresentation in disciplinary proceedings with scienter standard)
- Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988) (requires disclosure of disciplinary complaints when alleging ineffective assistance)
- Iowa Supreme Ct. Att’y Disciplinary Bd. v. Bernard, 653 N.W.2d 373 (Iowa 2002) (de novo review; Board bears burden to prove violations by a preponderance)
- Iowa Supreme Ct. Att’y Disciplinary Bd. v. Denton, 814 N.W.2d 548 (Iowa 2012) (preponderance standard for ethical violations; deference to board findings)
- Iowa Supreme Ct. Att’y Disciplinary Bd. v. Walker, 712 N.W.2d 683 (Iowa 2006) (factors in determining sanction: aggravating/mitigating circumstances and public integrity)