Disciplinary Counsel v. Jose Delcastillo (2010)

MEMORANDUM OF DECISION

On December 10, 1992, the respondent Jose Delcastillo was admitted to the bar of the state of Connecticut, having graduated that same year from the University of Connecticut law school.   After a brief stint as a staff attorney with Immigration & Citizenship Assistance, helping indigent aliens, he opened his own practice, Delcastillo & Associates, LLC in Hartford, Connecticut in 1993, handling various matters, including immigration cases.   On September 11, 2008, he plead guilty before the U.S. District Court to one count of violating U.S.C. §§ 2 and 1546(a).   The essence of the offense was that the respondent knowingly prepared false Applications for Alien employment to the Department of Labor, the first step required for an alien seeking lawful permanent residency in the United States.¹  Delcastillo was sentenced to 1 year and 1 day incarceration, the minimum provided under the sentencing guidelines.

On November 20, 2008, the respondent was placed on interim suspension from the practice of law in Connecticut.²  Delcastillo served the incarceration portion of his sentence and is now at liberty and on probation until August 2011.   On October 20, 2009, after a hearing in open court, and at the request of both the petitioner and the respondent, Delcastillo's suspension was modified by this court to allow him to advise indigent persons on a pro bono basis, under the aegis of several community organizations.

He rendered those pro bono legal services for more than six months before applying, on April 28, 2010, for the cessation of his state suspension.   Subsequent to that motion, the court held a hearing on May 10, 2010 at which it was informed that there were two other pending grievance complaints as to which probable cause had been found and that the petitioner and the respondent had a proposed resolution for all three matters.   The court ordered that the petition be amended within 10 days to reflect those additional matters, that the complainants and their counsel be furnished with the amended presentment, be told of the disposition proposed by the petitioner and the respondent and be notified of the new hearing date of June 4, 2010.

The hearing of June 4, 2010 on the motion to readmit was converted on that date to a hearing on the final disposition of the petition, by agreement of the parties.   The hearing did not conclude that day and continued on June 23, 2010 and August 18, 2010.   The court allowed each party an opportunity to file a proposed order after the hearing concluded and the parties filed a joint proposed order in this case on August 30, 2010.

At the hearing the court heard, by way of public comment,³ and/or testimony from a significant number of lay individuals,⁴ including the following:  Mr. Lopez, Mr. Oporto, Ms. Oporto, Ms. Alboroz, Ms. Rosado, and Ms. Castellanos.   The court also heard from the following members of the bar, in person or by letter:  Attorneys D. Penn, J. Tapper, K. Hoffman, J. Rodriguez, A. Collins, R. Nair, J. Starkowski, J. Sullivan and the respondent.   Thirteen exhibits, of varying length, were admitted.

With the exception of Attorneys Sullivan and Starkowski, all of the attorneys practice in the field of immigration law and are members of the Connecticut chapter of the American Immigration Lawyers Association.   Excepting Attorneys Nair, Starkowski and Sullivan, they oppose the reinstatement of respondent to the Connecticut bar.   That opposition is founded primarily in respondent's past actions before federal agencies and federal courts.   This court does not control the admission of the respondent before federal courts, which have their own bar.   Nor does it control the readmission of the respondent before the immigration courts of the Department of Justice or the Board of Immigration Appeals.   Such readmission is controlled by federal authorities.⁵

The burden of proof in this proceeding is upon the petitioner and the standard of proof is clear and convincing evidence.   In its amended presentment, dated May 17, 2010, the petitioner sets forth three counts.   The First Count is a presentment for conviction of a felony, pursuant to P.B. § 2-41.   The Second Count sets forth the grievance complaint of Cesar Zuniga and a finding of probable cause by the Hartford Judicial District Grievance Panel of a violation of Rule 1.16(d).  The Third Count sets forth the grievance complaint of Esdras Lopez and a finding of probable cause of violations of Rules 1.1, 1.3, 3.1 and 3.3(a).   In his answer, dated June 23, 2010, the respondent has admitted all of the relevant allegations of the amended presentment.   The court finds that the petitioner has met its burden as to all three counts of the amended presentment.

The parties are in agreement as to the discipline that the court should impose.   They recommend that the respondent, who has been under interim suspension since November of 2008, be suspended nunc pro tunc until the present time upon the first count of the presentment and reprimanded upon both the second and third counts of the presentment.   They further recommend that the respondent be required to complete both an in person legal ethics course and in person personal injury course within nine months, obtain malpractice insurance, obtain a mentor for two years and not be admitted to practice before any immigration trial court for two years.   They seek his immediate readmittance to the Connecticut bar.

The court is aware of the experience, expertise and professionalism that the Office of Chief Disciplinary counsel brings to this matter.   However, the court has a duty to reach its own conclusions and decision as to the appropriate discipline to be imposed in each case.  Statewide Grievance Committee v. Presnick, 215 Conn. 162, 167 (1990).   When “a court disciplines an attorney, it does so not to mete out punishment to an offender but [so] that the administration of justice may be safeguarded and the courts and the public protected from the misconduct or unfitness of those who are licensed to perform the important functions of the legal profession.”  (Citations omitted.)   Massameno v. Statewide Grievance Committee, 234 Conn. 539, 554 (1995).

The question the court must address is what discipline should be imposed, under all the circumstances here.⁶  The respondent's federal conviction is a serious matter, implicating his honesty and integrity and merits a significant suspension from the practice of law.   The question is how long a suspension?

Our state supreme court has countenanced the use of the American Bar Association's Standards for Imposing Lawyer Sanctions by the trial court in several cases.   See Burton v. Mottolese, 267 Conn. 1 (2003);  Statewide Grievance Committee v. Spirer, 247 Conn. 762 (1999) and Statewide Grievance Committee v. Shluger, 230 Conn. 668 (1994).

“In sanctioning the plaintiff, the trial court was guided by the American Bar Association's Standards for Imposing Lawyer Sanctions (Standards).   The Standards provide that, after a finding of misconduct, a court should consider:  (1) the nature of the duty violated;  (2) the attorney's mental state;  (3) the potential or actual injury stemming from the attorney's misconduct;  and (4) the existence of aggravating or mitigating factors.   A.B.A., Standards for Imposing Lawyer Sanctions (1986) standard 3.0” Burton v. Mottolese, supra, 267 Conn. 55.

The court has considered all of the evidence admitted at the hearing, the nature of the violation itself, the sentence imposed by the federal court, the intentional nature of the respondent's conduct, the potential injury to his clients and to the administration of the immigration process and the existence of aggravating factors (including, inter alia, the multiple occasions of the unlawful conduct, respondent's prior reprimands, and his years of experience as a lawyer before the conduct in question) and the existence of mitigating factors (including, inter alia, his remorse for his conduct, his long history of pro bono representation and community work and his pro bono work during his period of modified suspension).

The court also notes that it has consistently been the respondent's actions in immigration cases, not state civil or criminal litigation, that has brought him onto the radar of the attorney disciplinary process.   As previously noted, those immigration cases fall under the purview of other jurisdictions.   While this court is convinced that the respondent and the public would be better served by his abstaining, voluntary or otherwise, from handling immigration cases at any time in the future, there is an obvious legal question as to whether this state court can restrict his practice before federal agencies.   For that reason, the court will not bar him indefinitely from his immigration practice but will accept his voluntary agreement to refrain from being readmitted to any immigration trial court for a period of two years from his reinstatement to the Connecticut bar.   This court also directs the Office of Chief Disciplinary Counsel to furnish a copy of this decision to his counterpart in the U.S. Department of Justice, attorney Jennifer Barnes, and to draw her attention to this portion of this opinion.

Weighing the facts of this case and the criteria set forth above, the court believes that some further suspension beyond the more than two years suspension to date is warranted and that the respondent should then be readmitted with conditions upon his reinstatement.⁷  Accordingly, the court orders as follows:

As to the Second Count of the presentment, a reprimand shall issue.   As to the Third Count of the presentment, a reprimand shall issue.   As to the First Count of the presentment, the respondent is suspended, nunc pro tunc from November, 20, 2008 until August 20, 2011.   Respondent shall be reinstated to the practice of law in the state of Connecticut on August 21, 2011 and must complete both a three-hour continuing legal education course in Legal Ethics and a three-hour legal education course in personal injury litigation, online and materials only courses not included, before resuming the practice of law.   Respondent must also obtain professional malpractice insurance with a minimum coverage of $500,000 before undertaking the representation of any client.   Respondent must obtain a mentor with experience in the same areas of practice as respondent will practice within before resuming the practice of law.   Respondent must talk with his mentor weekly, meet with him/her monthly and that mentor must make quarterly reports in writing for two years to the Office of Chief Disciplinary Counsel.   The mentor must be acceptable to the petitioner, except if the respondent and petitioner cannot agree on a mentor, respondent may make an appropriate motion for his/her approval to the court.   The respondent will not seek to be admitted to practice law before any immigration court or agency any earlier than August 20, 2013.

James T. Graham

Superior Court Judge

FOOTNOTES

FN1. In the Stipulation of Offense Conduct presented to the federal court, the respondent admitted to preparing fraudulent applications for four individuals..  FN1. In the Stipulation of Offense Conduct presented to the federal court, the respondent admitted to preparing fraudulent applications for four individuals.

FN2. He had been suspended by the U.S. Board of Immigration Appeals on June 24, 2008, prior to his conviction..  FN2. He had been suspended by the U.S. Board of Immigration Appeals on June 24, 2008, prior to his conviction.

FN3. Members of the public and attorneys were placed under oath and subject to cross-examination when they addressed specific incidents involving the respondent..  FN3. Members of the public and attorneys were placed under oath and subject to cross-examination when they addressed specific incidents involving the respondent.

FN4. Upon motion, the testimony of Ms. Alboroz, Ms. Rosado and Ms. Castellanos was stricken..  FN4. Upon motion, the testimony of Ms. Alboroz, Ms. Rosado and Ms. Castellanos was stricken.

FN5. It is noteworthy that the federal immigration law counterpart of the Connecticut Office of Disciplinary Counsel has taken no position in this proceeding, although she is aware of it and has spoken to the Connecticut Disciplinary Counsel about it..  FN5. It is noteworthy that the federal immigration law counterpart of the Connecticut Office of Disciplinary Counsel has taken no position in this proceeding, although she is aware of it and has spoken to the Connecticut Disciplinary Counsel about it.

FN6. “The sole issue to be determined in the presentment proceeding shall be the extent of the final discipline to be imposed ․” P.B. § 2-41(e)..  FN6. “The sole issue to be determined in the presentment proceeding shall be the extent of the final discipline to be imposed ․” P.B. § 2-41(e).

FN7. Pursuant to P.B. § 2-53(d), no further reinstatement application will be required..  FN7. Pursuant to P.B. § 2-53(d), no further reinstatement application will be required.

Graham, James T., J.