Summary
determining an attorney received due process when a specific and factually-supported 17-page petition was filed, and the attorney filed an answer
Summary of this case from In re Petition for Disciplinary Action IgbanugoOpinion
A21-0339
07-13-2022
IN RE Petition for DISCIPLINARY ACTION AGAINST Jason Alexander NIELSON, a Minnesota Attorney, Registration No. 0395101
Susan M. Humiston, Director, Timothy M. Burke, Sr. Assistant Director, Office of Lawyers Professional Responsibility, Saint Paul, Minnesota, for petitioner. Jason A. Nielson, Minneapolis, Minnesota, pro se.
Susan M. Humiston, Director, Timothy M. Burke, Sr. Assistant Director, Office of Lawyers Professional Responsibility, Saint Paul, Minnesota, for petitioner.
Jason A. Nielson, Minneapolis, Minnesota, pro se.
OPINION
PER CURIAM. The Director of the Office of Lawyers Professional Responsibility filed a petition for disciplinary action against respondent Jason Alexander Nielson, alleging various acts of professional misconduct. We appointed a referee. After conducting an evidentiary hearing, the referee found that in two client matters, Nielson failed to properly explain the legal issues so that the client could make informed decisions, and that in one matter, he failed to inform the client about the status of her case. The referee further found that in one of these matters, Nielson provided false and misleading information to the client, and in the other matter—working through a paralegal—he also provided false and misleading information to the client. The referee found three aggravating factors and no mitigating factors. Based on these findings and conclusions of professional misconduct, the referee recommended that Nielson be publicly reprimanded, precluded from taking new clients for 45 days, and placed on probation for 1 year.
Nielson challenges the referee's findings and conclusions, argues that the proceedings violated his due process rights, and contends that the recommended discipline is too severe. The Director, in turn, contends that the recommended discipline is too light and asks us to suspend Nielson. We conclude that the referee's findings and conclusions that Nielson committed misconduct are not clearly erroneous and that Nielson's due process rights were not violated. But we also conclude that, considering the facts and circumstances of this case, the referee's recommended discipline is not sufficient to protect the public, protect the legal profession, and deter future misconduct. Instead, the appropriate discipline for Nielson's misconduct is a 30-day suspension, followed by 1 year of probation.
FACTS
Nielson was admitted to practice law in Minnesota in 2013, after having been admitted to practice law in New York in 2005. He is currently a partner at Igbanugo Partners Int'l Law Firm, PLLC ("IP Firm"), having joined the firm as an associate in 2012. His practice has focused almost exclusively on immigration law. The misconduct here arises from two client matters between 2013 and 2015. We address the facts of these matters in turn.
M.D. Matter
M.D. is from Mexico and came to the United States in 1987 as an undocumented immigrant without legal status. Her primary language is Spanish. M.D. has four U.S. citizen daughters; her oldest is A.I.M.
In September 2013, M.D. consulted with H.I., founding partner of the IP Firm, about retaining the firm to adjust her status to become a lawful permanent resident. Nielson was not present for the initial consultation. The meeting resulted in a fee agreement for $9,500. The fee agreement stated that the purposes of the representation were a "Form I-130, Petition for Alien Relative" and "Form I-601A Waiver." This agreement was signed by H.I. on behalf of the IP Firm. A month later, another agreement adjusted the fee to $8,000 based on financial hardship. Nielson was present for the consultation that resulted in the second agreement. What federal immigration law requires is not in dispute. An I-130 Petition for Alien Relative Form is the first step for a foreign national in obtaining legal status in the United States through a Permanent Resident Card (Green Card). A U.S. citizen or lawful permanent resident (petitioner) uses the form to establish a qualifying family relationship with a relative (foreign national). If U.S. Citizenship and Immigration Services (USCIS) approves an I-130 petition, the immigration authorities recognize the relationship, but it does not change the status of the foreign national.
To maintain visa availability when the National Visa Center receives an approved I-130 petition, the Immigration and Nationality Act (INA) § 203(g) has a 1-year contact requirement, providing that the beneficiary and/or counsel must communicate intent to be lawfully admitted to the U.S. with the National Visa Center yearly. Failure to communicate within 1 year after the I-130 petition is approved means risk of termination of the petition and the beneficiary would lose its benefits, such as a priority date. A beneficiary notified of possible termination may state the preference to continue pursuing the immigrant visa application with the understanding that the beneficiary must resubmit all required fees and documents to continue with immigrant visa processing. The full breadth of requirements are discussed and can be found at the following websites: U.S. Citizenship and Immigration Services, https://www.uscis.gov/i-130 (last visited July 6, 2022) [opinion attachment]; The U.S. Department of State, Bureau of Consular Affairs, https://travel.state.gov/content/travel/en/us-visas/immigrate/national-visacenter/nvc-contact-information.html (last visited July 6, 2022) [opinion attachment]; Foreign Affairs Manual, 9 FAM 504.13-2(B), available at https://fam.state.gov/fam/09FAM/09FAM050413.html (last visited July 6, 2022) [opinion attachment]. The parties do not contend that the requirements are materially different between the time of the dispute and the present time.
An I-601A Application for Provisional Unlawful Presence Waiver is the second step for a foreign national applying for a Green Card who is currently present in the U.S. without status. Immigrant visa applicants who are relatives of U.S. citizens or lawful permanent residents may use the I-601A application to request a provisional waiver of the unlawful presence grounds of inadmissibility under the Immigration and Nationality Act (INA), before departing the United States to appear at a U.S. Embassy or Consulate for an immigrant visa interview, which is the third and final step in applying for a Green Card. Section 212(a)(9)(B) of the INA establishes that foreign nationals who are unlawfully present in the U.S. for more than 180 days or 1 year are inadmissible to be admitted to the U.S. as a permanent resident for 3 years and 10 years respectively. Thus, if a foreign national has been in the U.S. for more than at least 180 days and wishes to obtain permanent residency without waiting the requisite amount of time, they must get a waiver through the I-601A application. The I-601A application asks for a waiver on the basis that it will create substantial hardship to a qualifying relative. This qualifying relative must be a U.S. citizen or lawful permanent resident who is a parent or a spouse of the foreign national. A child may not be a qualifying relative. During Nielson's representation of M.D., she did not have a qualifying relative for the I-601A application.
The requirements for an I-601A waiver are discussed and can be found at U.S. Citizenship and Immigration Services, https://www.uscis.gov/i-601a (last visited July 6, 2022) [opinion attachment], https://www.uscis.gov/family/family-of-uscitizens/provisional-unlawful-presence-waivers (last visited July 6, 2022) [opinion attachment].
The 2013 regulations extended the Provisional Unlawful Presence Waiver to allow parents of U.S. citizens to apply, but the waiver application still requires a qualifying relative to meet the extreme hardship requirement under statutory law. INA § 212(a)(9)(B)(v). Thus, under the I-601A regulation, the petitioner must have a qualifying relative to meet the statutorily prescribed extreme hardship requirement, of which only a U.S. citizen or permanent resident spouse or parent qualifies.
Nielson filed the I-130 petition with USCIS in December 2013, establishing that M.D. was an immediate relative of her U.S. citizen daughter, A.I.M. USCIS approved the I-130 on April 30, 2014.
Following that approval, Nielson's paralegal e-mailed M.D.’s daughter on June 5, 2014, telling her that the next step in the process was to submit a I-601A application. The paralegal noted that the I-601A application would
establish the extreme hardships that a U.S. citizen qualifying relative [which could be either a spouse or children under the age of 21 who are not married-in this case your younger siblings Daisy and Crystal ] will go through if your mom is not allowed to remain in the United States.
The statement was incorrect; at the time of the e-mail and presently, a child was not and is not a qualifying relative for the I-601A waiver.
Nielson was copied on the e-mail. He knew the statement that a child could be a qualifying relative was wrong, but he did not immediately contact the client and correct the misstatement. Nielson also admitted he was aware of the e-mail, testifying that the error in the e-mail was discussed at a firm meeting.
On September 2, 2014, M.D. met with Nielson and provided the requested information in support of the I-601A waiver. Nielson and H.I. met with M.D. and A.I.M. on December 23, 2014. In this meeting, M.D. and A.I.M. learned that M.D. could not gain legal status through A.I.M. or any of her other daughters. M.D.’s fee payments were temporarily suspended.
On June 16, 2015, the National Visa Center issued an invoice, in reference to M.D.’s I-130 petition having gone 1 year without action. Nielson sent an e-mail to the National Visa Center on July 2, 2015, advising that M.D. wished to continue with the petition. The National Visa Center responded on July 9, 2015, acknowledging Nielson's e-mail and stating that because more than a year had passed without contact, forms and fees must be resubmitted, including a Form G-28 if an attorney was retained on the case. At some point M.D. retained the services of another law firm, and the IP Firm forwarded her file.
O.C. Matter
The facts surrounding O.C.’s matter largely mirror M.D.’s matter. O.C. was born in Mexico and entered the United States as an undocumented immigrant without legal status. Her primary language is Spanish, and her English proficiency is that of a second-grade level. She has five children; her daughter M.A. is a U.S. citizen and had familiarity with the IP Firm because it had obtained legal status for her husband. Using other counsel, O.C. had previously investigated gaining permanent resident status without success.
O.C. entered into a fee agreement with the IP Firm on August 27, 2013, for $2,500, with the stated purpose of filing a "Form I-130 Relative Petition." This agreement was again signed by H.I. on behalf of the IP Firm. Nielson was not present at the initial meeting. Nielson filed a Form I-130 on behalf of O.C. with USCIS on November 12, 2013, and the form was approved on May 22, 2014.
On June 3, 2014, O.C. and M.A. met with Nielson, H.I., and a non-attorney staff member. The meeting covered "looking into I-601A & consular processing" and that "Father may be" eligible for status based on a different reason. At the meeting a second contract for legal services was signed for an additional $6,500, calling for "Consular Processing" and "I-601A."
"Consular processing" is irrelevant to this disciplinary proceeding.
The next day, June 4, 2014, Nielson sent an e-mail to M.A., O.C.’s daughter, stating, "In the 601A process you are the qualifying relative and your mother is the applicant." (Emphasis added.) Attached to the e-mail was a PDF of the I-601A application for M.A. to fill out, "as much as you can." Nielson told M.A. that she needed to prepare an affidavit "as to why it would be an extreme hardship to not have your mother in the U.S." As in the M.D. matter, the statement that M.A. was the qualifying relative was a clear misstatement of law, as only spouses and parents could be qualifying relatives.
On June 24, 2014, Nielson and a staff person met with O.C. and M.A. to review the I-601A application with them and work on filling in any missing information. Nielson and/or the staff person explained "how the process is anticipated to work." O.C. told Nielson that her 14-year-old daughter suffered from severe depression. O.C. was told to obtain medical documents and a letter from the daughter's therapist.
At a February 19, 2015 meeting with Nielson, H.I., and a staff member, O.C. was told she did not have a qualifying relative for purposes of proceeding with an I-601A application and that the IP Firm would help her to proceed under Deferred Action for Parents of Americans, "DAPA," when it became available.
DAPA was an executive action by then-President Barack Obama to attempt to expand the I-601A regulation that was ultimately not implemented.
On May 7, 2015, O.C. sent a letter to the IP Firm stating that she had obtained new legal counsel and was requesting a refund of fees paid. The IP Firm's file was sent to her new attorneys.
Disciplinary Proceedings
At a 5-day evidentiary hearing, the referee admitted into evidence numerous exhibits from both the Director and Nielson, and the referee heard testimony from several witnesses, including the former clients, H.I., Nielson, and several expert witnesses in immigration law. Both M.D. and O.C. testified that they understood from meetings and information provided by H.I. and Nielson that they could obtain permanent residency through their respective daughters. Nielson testified that he assumed he performed an independent review of whether M.D. qualified for the provisional waiver process and that when his paralegal sent that e-mail, he knew that a child could not be a qualifying relative. Nielson also independently reviewed O.C.’s eligibility for the provisional waiver process and knew that O.C. did not have a qualifying relative and thus was not eligible for the I-601A waiver.
Nielson admitted that the e-mail he sent to O.C.’s daughter was an incorrect statement of the law, but noted the error was the result of cut and paste drafting of the e-mail. Nevertheless, Nielson represented that he gathered the information in both matters in anticipation of a change in law for the I-601A waiver, and in any event, the information gathered was necessary for all forms of relief contemplated for the clients. He further testified that the information on the I-601A application and in the requested affidavit could potentially still be useful and that it was helpful to have the information in the clients’ case files. The referee noted that he was unable to make a definitive finding that Nielson affirmatively told M.D. or her daughter A.I.M. that one of M.D.’s daughters could be a qualifying relative but found that both M.D. and A.I.M. believed this to be the case and understood that was the plan for seeking M.D.’s change of status. The referee went on to find that the actions and communications of the IP Firm supported M.D.’s belief. The referee also found that Nielson explicitly provided false and misleading information to O.C. when he told her that she had a qualifying relative, and that there was no evidence that anyone at the IP Firm contacted O.C. and/or her daughter to inform them of the incorrectness of the statement around the time it was made. The referee found that both clients were initially happy when they thought the IP Firm would be able to help them gain legal status through their children, but that they experienced significant sadness and depression, having felt "cheated" and "betrayed" when they later learned that they would not be able to do so. The referee found that the IP Firm's fees presented significant hardship to both clients and that Nielson never apologized.
The referee concluded that Nielson committed some but not all the misconduct alleged in the petition as to both matters. In the M.D. matter, the referee concluded that Nielson failed to notify M.D. that her I-130 petition would have to be resubmitted and fees paid, violating Minn. R. Prof. Conduct 1.4(a)(3) ; failed to explain the matter to M.D. so she could make an informed decision regarding the representation, violating Minn. R. Prof. Conduct 1.4(b) ; failed to make efforts to ensure a non-lawyer employee's conduct was compatible with professional obligations, violating Minn. R. Prof. Conduct 5.3(b) ; and provided false and misleading information, through non-lawyer staff, violating Minn. R. Prof. Conduct 8.4(c). As to the O.C. matter, the referee concluded that Nielson violated Minn. R. Prof. Conduct 1.4(b) for the same reasons, and that he provided false and misleading information to the client, in violation of Minn. R. Prof. Conduct 8.4(c).
A lawyer must "keep the client reasonably informed about the status of the matter." Minn. R. Prof. Conduct 1.4(a)(3).
"A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation." Minn. R. Prof. Conduct 1.4(b).
"[A] lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer." Minn. R. Prof. Conduct 5.3(b).
"It is professional misconduct for a lawyer to ... engage in conduct involving dishonesty, fraud, deceit, or misrepresentation." Minn. R. Prof. Conduct 8.4(c).
The referee found that the vulnerability of the clients, Nielson's substantial experience in the practice of law and immigration law, and Nielson's lack of remorse were aggravating factors, and that no mitigating factors existed. Based on these findings and conclusions, the referee recommended that we publicly reprimand Nielson, prohibit him from taking on new clients for 45 days, and place him on probation for 1 year.
Nielson challenges many of the referee's findings and conclusions and argues that the disciplinary proceedings violated his due process rights. Both Nielson and the Director challenge the recommended discipline. Nielson contends that no public discipline is warranted. The Director asks us to suspend Nielson. ANALYSIS
I.
Nielson timely ordered a transcript and as a result, the referee's findings of fact and conclusions are not binding. Rule 14(e), Rules on Lawyers Professional Responsibility (RLPR). We nevertheless extend "great deference" to these findings and conclusions. In re MacDonald , 906 N.W.2d 238, 243–44 (Minn. 2018) (citation omitted) (internal quotation marks omitted). We review the referee's findings of fact and application of the Minnesota Rules of Professional Conduct to the facts of the case for clear error. In re Aitken , 787 N.W.2d 152, 158 (Minn. 2010). "A referee's findings are clearly erroneous when they leave us with the definite and firm conviction that a mistake has been made." In re Bonner , 896 N.W.2d 98, 105 (Minn. 2017) (citation omitted) (internal quotation marks omitted).
The referee made four main findings: 1) in both matters, the clients thought their immigration status could be adjusted because their children were qualified relatives, and Nielson did not adequately explain that existing immigration law did not permit the designation of children as qualified relatives; 2) the firm paralegal made a false statement to M.D., and Nielson failed to correct it; 3) Nielson made a false statement to O.C. and failed to correct it; and 4) Nielson failed to communicate to M.D. the status of her case in relation to the I-130 petition being monitored with the National Visa Center. Nielson makes various challenges to these findings. Taking these findings in turn, we conclude that the referee's findings are not clearly erroneous.
A.
The referee determined that Nielson violated Minn. R. Prof. Conduct 1.4(b) by failing to explain the case to the clients so they could make an informed decision. Nielson contends that this finding is clearly erroneous because he was not present at the initial client consultations and both clients knew that multiple avenues were being pursued. Specifically, he argues that he explored several other options for the clients while pursuing the I-601A waiver, and that part of pursuing that relief was based on an anticipated change in the law. However, the referee made these findings based on testimony from both clients that they believed they could adjust their status based on the status of their children as qualified relatives. Nielson argues that the client testimony was not credible, but we defer to the referee's findings when the findings "rest on disputed testimony or in part on credibility, demeanor, and sincerity." In re Voss , 830 N.W.2d 867, 874 (Minn. 2013) (citation omitted) (internal quotation marks omitted).
Nielson also asserts that he was a new attorney at the time of the consultations for both clients and had no authority over such consultations or the financial decisions of the IP Firm. But no language in Minn. R. Prof. Conduct 1.4(b) limits this duty to communicate to an attorney who attends the initial consultation with the client or has certain authority within a law firm.
In addition to the clients’ testimony, other evidence supports the clients’ claims that they believed they could adjust their status based on their children being qualified relatives, and that Nielson failed to adequately explain that the law would not allow them to do this. The statements of Nielson and the paralegal that the children could be qualifying relatives support the clients’ beliefs because it is reasonable to conclude that the clients believed what they were told. The retainers and other agreements the clients signed did not state that the clients could not obtain I-601A waivers based on current law. Further, Nielson's own witness, H.I., testified that communications to the clients regarding the I-601A waiver did not specifically state that the strategy in pursing the waiver was in anticipation of changes to the definition of qualifying relatives that would include children for purposes of the hardship waiver. Nielson and a paralegal at the firm expressly told the clients their children could be a qualifying relative, and Nielson prepared and had the clients fill out forms stating that the clients’ children were qualifying relatives. In light of this evidence, the referee's findings are not clearly erroneous.
B.
The referee determined that Nielson failed to ensure that his paralegal's conduct was compatible with Nielson's professional obligations, in violation of Minn. R. Prof. Conduct 5.3(b), when the paralegal made a false statement that M.D.’s daughter was the qualifying relative and Nielson failed to correct the statement. Nielson asserts that the referee clearly erred because Nielson and H.I. both testified that the matter was addressed with the paralegal, including the correct procedures, and that the importance of clarity in correspondence with clients was discussed and strongly emphasized at an IP Firm meeting.
The record supports the referee's finding. The paralegal's June 2014 e-mail clearly made an incorrect statement of law about who may be a qualifying relative. Nielson was copied on the e-mail, admitted he was aware of the e-mail, and knew it was an incorrect statement, but he failed to immediately contact the client and correct the misstatement. Outside of Nielson's assurances that the correct procedures were clarified at an IP Firm meeting, no other evidence in the record supports an inference that the statement was corrected. Critically, the IP Firm's "casenotes," where many other firm meetings and communications are recorded, do not reference the firm meeting or any communication to M.D. correcting the error until the December 2014 meeting during which M.D. was told her children were not qualifying relatives. As noted, we defer to the referee's credibility determinations, and here, the referee did not find Nielson's statements credible. See Voss 830 N.W.2d at 874. The referee's finding that Nielson's conduct violated Minn. R. Prof. Conduct 5.3(b) is not clearly erroneous.
C.
The referee found that Nielson violated Minn. R. Prof. Conduct 8.4(c) when he, personally and through staff, provided false and misleading information to his clients. Nielson counters that this finding is clearly erroneous because the clients did not claim that he was dishonest, and they were aware of multiple avenues for relief. But the record is clear that Nielson and his paralegal made the false and misleading statements to the clients that their respective daughters were qualifying relatives for the I-601A waiver. These statements were clearly false and misleading because at the time of the e-mails and presently, a child was not and is not a qualifying relative for the I-601A waiver.
Nielson suggests that he did not violate Rule 8.4(c) because the referee clearly erred by finding that the e-mails from Nielson and his paralegal contained a misstatement of law. According to Nielson, the e-mails did not contain a misstatement of law and simply identified who needed to provide certain documents. But the language of the e-mails does not support this claim; both e-mails contain a false statement that the clients’ children can be a qualifying relative. Neither the paralegal nor Nielson corrected the false statements around the time the e-mails were sent. Consequently, Nielson violated his duty to refrain from "engag[ing] in conduct involving dishonesty, fraud, deceit, or misrepresentation," whether the misrepresentation was of law or fact. Minn. R. Prof. Conduct 8.4(c).
Nielson also takes pains to highlight that the referee did not find that his conduct was intentionally dishonest. Nielson asserts that we should accept the referee's findings that there was no dishonesty or intent to deceive. The referee made no such findings, however. Instead, the referee found that Nielson personally, or through his paralegal, made false and misleading statements to his clients, and that Nielson knew these statements were false when the statements were made. These findings are sufficient to support a Rule 8.4(c) violation. Moreover, we have upheld a Rule 8.4(c) violation when the referee found that the lawyer "made false statements with knowledge of their falsity." In re Czarnik , 759 N.W.2d 217, 223 (Minn. 2009). The referee did not clearly err by finding that Nielson violated Rule 8.4(c).
D.
The referee found that Nielson failed to notify M.D. that her I-130 petition would have to be resubmitted and fees paid, in violation of Minn. R. Prof. Conduct 1.4(a)(3). Nielson first claims that his representation of M.D. ended in May 2015 and thus he was not obligated to follow up on her I-130 petition. However, the record reveals that in July 2015, Nielson communicated with the National Visa Center regarding M.D. wishing to continue her I-130 petition. The referee pointed to this e-mail in his findings, determining that Nielson still represented M.D., and that because of inaction, the National Visa Center concluded that the forms and fees must be resubmitted, and this information was not communicated to M.D.
Nielson next contends that since M.D., through Nielson, never submitted any forms or fees to the National Visa Center, no forms or fees needed to be resubmitted, and the National Visa Center's e-mail was instead an automatic e-mail with boilerplate language. But Nielson's claim that the forms were never submitted to the National Visa Center is of no consequence. As Nielson acknowledges, after an I-130 petition is submitted to and approved by USCIS, the case is then transferred to the Department of State's National Visa Center for pre-processing. Further, the National Visa Center's e-mail plainly says that forms and fees in M.D.’s case would need to be resubmitted, in direct tension with Nielson's argument that this "boilerplate language" had no relevance to M.D.’s case. At the very least, Nielson was required to provide this information from the National Visa Center to his client.
As to Nielson's claim that the referee misunderstood the law as to the I-130 petition and the authority of the National Visa Center, the referee's conclusions and findings of fact neither mention nor rely on this law. Rather, the referee determined that at the time of the National Visa Center's notice, Nielson was still representing M.D., yet he failed to inform M.D. that her I-130 petition would have to be resubmitted. Because there is ample evidence in the record to support the referee's findings and conclusions, they are not clearly erroneous.
II.
We next consider Nielson's argument that he did not receive a fair disciplinary hearing. When we exercise "disciplinary jurisdiction, the action ... is neither criminal nor civil; rather, it is an inquiry ... to determine if sanctions should be imposed." In re Garcia , 792 N.W.2d 434, 441 (Minn. 2010). Although "disciplinary proceedings are not encumbered by technical rules and formal requirements, this court observes due process in exercising disciplinary jurisdiction." In re Gherity , 673 N.W.2d 474, 478 (Minn. 2004). The disciplinary charges must "be sufficiently clear and specific and the attorney must be afforded an opportunity to anticipate, prepare and present a defense" at the disciplinary hearing. Id.
Nielson's due process claim largely focuses on the events leading up to the referee hearing, specifically, the steps the Director took to file the instant petition. Nielson criticizes the Lawyers Professional Responsibility Board (LPRB) panel, claiming that the panel did not carefully consider the documents submitted by the Director, together totaling nearly 1,000 pages of documents. As support, Nielson notes that the panel found probable cause and authorized the petition for disciplinary action less than 3 days after its hearing. Nielson also asserts that the petition lacked specificity and clarity, that the clients’ subsequent counsel was prevented from testifying based on the Director's trial strategy, and that Nielson was denied a hearing prior to the referee's hearing. Finally, Nielson contends that he was prejudiced by the Director's delay in filing this petition because the events in question occurred in 2013–14 and the witnesses were unable to recall many specifics related to the representation.
In the case of charges of unprofessional conduct, the panel shall, "if it finds probable cause to believe that public discipline is warranted, instruct the Director to file in this Court a petition for disciplinary action." Rule 9(j)(1)(ii), RLPR.
Nielson was afforded due process. The disciplinary charges against Nielson were thorough and specific: Nielson was served with a 17-page petition that identified the specific rules of professional conduct that Nielson was alleged to have violated and provided factual details to support those allegations. Nielson filed an answer. The passage of time between when Nielson committed the misconduct and when this petition was filed did not prejudice Nielson, as Nielson was still able to and did prepare an extensive defense.
In disciplinary proceedings, a referee is charged with "hear[ing] and report[ing] the evidence submitted for or against the petition for disciplinary action" and with making "findings of fact, conclusions, and recommendations" regarding the disposition of the case. Rule 14(a), (e), RLPR. That is what the referee did here. Nielson had the benefit of an evidentiary hearing before a neutral fact-finder. At this multi-day hearing, he presented witnesses on his own behalf, cross-examined witnesses testifying against him, and admitted exhibits into evidence. See In re Moulton , 945 N.W.2d 401, 406 (Minn. 2020) (finding that respondent received a fair hearing based on a day-long hearing where he presented an extensive defense, offered several exhibits that were admitted into the record, testified on his own behalf, and called several witnesses).
In sum, the disciplinary charges against Nielson were "sufficiently clear and specific" and Nielson was "afforded an opportunity to anticipate, prepare and present a defense" at the disciplinary hearing. Gherity , 673 N.W.2d at 478. Nielson has not established that his due process rights were violated.
III.
We finally consider the appropriate discipline for Nielson's misconduct. The parties disagree regarding the appropriate discipline in this matter. Nielson contends that the referee's recommended discipline is too severe because the referee found no misconduct that involved dishonesty, frivolous claims, or false statements to a tribunal, and he did not engage in any deliberate deceit that violates the administration of justice or his duty to be truthful or that harms the public or legal profession. The Director argues that suspension is the appropriate discipline because Nielson's conduct is serious, the cumulative weight is substantial, and that multiple aggravating factors but no mitigating factors exist. The Director notes that our court generally suspends lawyers who make misrepresentations, coupled with other misconduct, as is the case here.
Although we give "great weight" to the referee's recommendation, In re Butler , 960 N.W.2d 540, 552 (Minn. 2021) (citation omitted) (internal quotation marks omitted), we retain the "ultimate responsibility for determining appropriate discipline," In re Montez , 812 N.W.2d 58, 66 (Minn. 2012). The purpose of disciplinary sanctions is to protect the public and judicial system and to deter future misconduct by attorneys—not to punish the attorney. In re Vaught , 693 N.W.2d 886, 890 (Minn. 2005). Attorney discipline cases are evaluated individually. In re Houge , 764 N.W.2d 328, 337 (Minn. 2009).
We consider four factors when imposing discipline: (1) the nature of the misconduct; (2) the cumulative weight of the disciplinary violation; (3) the harm to the public; and (4) the harm to the legal profession. Butler , 960 N.W.2d at 552. We also consider aggravating and mitigating factors. Id. We will consult similar cases and attempt to impose consistent discipline, but the proper discipline is ultimately determined "based on the unique facts and circumstances of each case." In re Rebeau , 787 N.W.2d 168, 174 (Minn. 2010).
A.
We first consider the nature of Nielson's misconduct. Nielson's misconduct involves failing to reasonably communicate with clients, failing to supervise a non-lawyer employee, and knowingly providing false and misleading information to clients. Making misrepresentations and false statements "is significant misconduct." In re Nwaneri , 896 N.W.2d 518, 525 (Minn. 2017). We have explained that "making misrepresentations demonstrates a lack of honesty and integrity, and warrants severe discipline." In re Lundeen , 811 N.W.2d 602, 608 (Minn. 2012) ; see also Montez , 812 N.W.2d at 68 (finding that attorney's dishonesty in making false statements to client and successor counsel, among others, was "serious misconduct"); In re Dedefo , 752 N.W.2d 523, 532 (Minn. 2008) ("We take dishonesty by lawyers seriously and have repeatedly held that a lack of truthfulness or candor warrants severe discipline."). We have also recognized that the failure to communicate with clients can be serious misconduct. See In re Getty , 452 N.W.2d 694, 699 (Minn. 1990).
B.
We next consider the cumulative weight of Nielson's disciplinary violations. We treat an "isolated incident" differently from a pattern of misconduct "occurring over a substantial amount of time." In re Eskola , 891 N.W.2d 294, 300 (Minn. 2017) (citation omitted) (internal quotation marks omitted). Nielson's misconduct took place over several months with two clients. Although more than a brief lapse in judgment, see In re Stoneburner , 882 N.W.2d 200, 206 (Minn. 2016), his conduct across two matters does not form an extended pattern warranting more severe discipline. C.
Next, we consider the harm that Nielson's misconduct caused to the public and to the legal profession. In assessing harm to the public, we consider how many and to what extent clients were harmed. In re Coleman , 793 N.W.2d 296, 308 (Minn. 2011). Here, Nielson's conduct resulted in significant harm to M.D., O.C., and their families. The clients and their families relied on representations made by Nielson and the IP Firm that they each had qualifying relatives to apply for the I-601A waiver to change their legal status in the U.S., and they experienced significant sadness, anger, and depression upon learning that they did not qualify. The clients also experienced financial harm, having paid substantial amounts of money for the representation. O.C. testified to having to borrow money from family members to cover the cost. Similarly, M.D. relied on relatives and at times used food shelves. Moreover, a lawyer's misconduct involving misrepresentations harms the legal profession. In re Klotz , 909 N.W.2d 327, 337 (Minn. 2018) (stating that a lawyer's "false statements harmed the profession by undermining the public's faith in the legal profession"). Consequently, harm to Nielson's clients and the legal profession favors more significant discipline.
D.
To determine the appropriate discipline, we also must examine any aggravating and mitigating factors. In re Quinn , 946 N.W.2d 583, 592 (Minn. 2020). The referee found three aggravating factors: the vulnerability of the clients, Nielson's substantial experience in the practice of law in general and immigration law in particular, and his lack of remorse. The referee also determined that no mitigating factors existed.
As the referee found, Nielson's clients were particularly vulnerable as foreign nationals living in the U.S. without legal status and with very little English proficiency. See In re Kaszynski , 620 N.W.2d 708, 712 (Minn. 2001) (recognizing vulnerability of immigration clients as an aggravating factor); In re Udeani , 945 N.W.2d 389, 398–99 (Minn. 2020) (same). Nielson's extensive experience in the law, and in immigration law in particular, is also an aggravating factor. In re Tigue , 900 N.W.2d 424, 432 (Minn. 2017) ("Committing misconduct despite ... substantial experience is an aggravating factor.").
In other cases, we have also considered the attorney's lack of remorse and failure to appreciate the severity of the misconduct to be an aggravating factor. In re Winter , 770 N.W.2d 463, 468 (Minn. 2009). The referee found that Nielson failed to acknowledge his wrongdoing, "not even the obvious and basically uncontested evidence regarding the improper legal information given to [M.D.] and [O.C.]." Indeed, in his brief to our court, Nielson stated that he "recognizes and regrets" that the e-mails containing the misrepresentations were sent, but went on to suggest that the e-mails, "when viewed solely on [their] face and out of context[,] may seem like it could have confused the clients ... to an outside observer." Such a sentiment highlights Nielson's lack of accountability and appreciation for the seriousness of his misconduct.
Concerning mitigating factors, Nielson identifies his lack of disciplinary history as a mitigating factor. We have repeatedly held, however, that "an attorney's lack of prior disciplinary history is not a mitigating factor, but instead constitutes the absence of an aggravating factor." In re Fairbairn , 802 N.W.2d 734, 746 (Minn. 2011). Nielson also insists that his pro-bono work is a mitigating factor. While "extensive pro bono or civic work" might constitute mitigation, In re Wylde , 454 N.W.2d 423, 426 n.5 (Minn. 1990), Nielson has not demonstrated particularly extensive pro bono work. The referee did not clearly err by finding no mitigating factors.
E.
Finally, we consider similar cases when deciding what discipline is warranted, Tigue , 900 N.W.2d at 433, although we will ultimately decide the appropriate discipline on a case-by-case basis, In re Walsh , 872 N.W.2d 741, 749 (Minn. 2015) ("We tailor the sanction to the specific facts of each case...."). We have suspended lawyers whose misconduct included making misrepresentations. See In re Wentzell , 656 N.W.2d 402, 408–09 (Minn. 2003) (imposing a 6-month suspension for misconduct including, in part, making false and misleading statements); In re Jambor , 694 N.W.2d 72, 72 (Minn. 2005) (lengthening a suspension based on making a false statement to a tribunal); In re Strunk , 744 N.W.2d 397, 397–98 (Minn. 2008) (imposing a 90-day suspension for neglecting client matters, making misrepresentations to client and Director about neglect, and other misconduct). But the level of discipline imposed for making false statements varies depending on the facts of the case. See In re Roggeman , 779 N.W.2d 520, 528–29 (Minn. 2010) (publicly reprimanding an attorney for neglecting a matter, failing to communicate with that client, and making misrepresentations to the client to cover up the errors); In re Shaughnessy , 467 N.W.2d 620, 621–22 (Minn. 1991) (imposing a 30-day suspension where an attorney failed to communicate with clients and made misrepresentations regarding the status of their cases).
We believe that a suspension is appropriate based on the facts and circumstances of this case. Nielson's misconduct caused substantial harm to his clients. See In re Ganley , 549 N.W.2d 368, 370 (Minn. 1996) ("Suspension is warranted when the lawyer knowingly engages in conduct that violates a duty to the profession and causes injury to the client, the public, or the legal system."). In addition, significant aggravating factors are present and there are no mitigating factors. We therefore conclude that the appropriate discipline is a suspension for 30 days.
Accordingly, we order that:
1. Respondent Jason A. Nielson is suspended from the practice of law for a minimum of 30 days, effective 14 days from the date of this opinion.
2. Respondent shall comply with Rule 26, RLPR (requiring notice of suspension to clients, opposing counsel, and tribunals).
3. Respondent shall pay $900 in costs pursuant to Rule 24, RLPR.
4. Respondent shall be eligible for reinstatement to the practice of law following the expiration of the suspension period provided that, not less than 15 days before the end of the suspension period, respondent files with the Clerk of the Appellate Courts and serves upon the Director an affidavit establishing that he is current in continuing legal education requirements, has complied with Rules 24 and 26, RLPR, and has complied with any other conditions for reinstatement imposed by the court.
5. Within 1 year of the date of this opinion, respondent shall file with the Clerk of the Appellate Courts and serve upon the Director proof of successful completion of the written examination required for admission to the practice of law by the State Board of Law Examiners on the subject of professional responsibility. See Rule 4.A.(5), Rules for Admission to the Bar (requiring evidence that an applicant has successfully completed the Multistate Professional Responsibility Examination). Failure to do so shall result in automatic suspension, as provided in Rule 18(e)(3), RLPR.
6. Upon reinstatement to the practice of law, respondent shall be placed on probation for a period of 1 year, subject to the following terms and conditions:
a. Respondent shall cooperate fully with the Director's Office in its efforts to monitor compliance with this probation. Respondent shall promptly respond to the Director's correspondence by its due date. Respondent shall provide to the Director a current mailing address and shall immediately notify the Director of any change of address. Respondent shall cooperate with the Director's investigation of any allegations of unprofessional conduct that may come to the Director's attention. Upon the Director's request, respondent shall provide authorization for release of information and documentation to verify compliance with the terms of this probation.
b. Respondent shall abide by the Minnesota Rules of Professional Conduct.
c. Respondent shall be supervised by a licensed Minnesota attorney, appointed by the Director to monitor compliance with the terms of this probation. Within 2 weeks of the date of the order reinstating respondent to the practice of law, respondent shall provide to the Director the names of four attorneys who have agreed to be nominated as respondent's supervisor. If, after diligent effort, respondent is unable to locate a supervisor acceptable to the Director, the Director will seek to appoint a supervisor. Until a supervisor has signed a consent to supervise, the respondent shall, on the first day of each month, provide the Director with an inventory of active client files described in paragraph d. below. Respondent shall make active client files available to the Director on request.
d. Respondent shall cooperate fully with the supervisor in his/her efforts to monitor compliance with this probation. Respondent shall contact the supervisor and schedule a minimum of one in-person meeting per calendar quarter. Respondent shall submit to the supervisor an inventory of all active client files by the first day of each month during the probation. With respect to each active file, the inventory shall disclose the client name, type of representation, date opened, most recent activity, next anticipated action, and next court appearance date. Respondent's supervisor shall file written reports with the Director at least quarterly, or at such more frequent intervals as may reasonably be requested by the Director.
e. Respondent shall initiate and maintain office procedures for supervision of non-lawyer staff to ensure that their conduct is compatible with his professional obligations.
f. Within 30 days of the date of the order reinstating respondent to the practice of law, respondent shall provide to the Director and to the probation supervisor, if any, a written plan outlining office procedures designed to ensure that respondent is in compliance with the probation requirements. Respondent shall provide progress reports as requested.
Suspended.
Attachment