No.11-BG-942 _____________________ DISTRICT OF COLUMBIA COURT OF APPEALS _____________________ In the Matter of SAMUEL N OMWENGA, ESQ.

Respondent ______________________ On Board on Professional Responsibility Report and Recommendation _______________________ BRIEF OF RESPONDENT _______________________ Samuel N. Omwenga, Esq. Pro Se 13010 Firestone Court Silver Spring, MD 20904 (240) 377-653

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TABLE OF CONTENTS TABLE OF ATHORITIES..iv QUESTIONS PRESENTED.v STATEMENT OF THE CASE.1 SUMMARY OF THE ARGUMENT4 ARGUMENT..4 I. THE BOARDS RECOMMENDATION OF DISBARRMENT AGAINST RESPONDENT IS WHOLY WITHOUT BASIS AND NEITHER IS IT EVEN SUPPORTED BY CLEAR EVIDENCE4 A. The Boards Findings and Conclusions That Respondent Engaged in Intentional Mispappropriation of $550 Is Not Supported By Clear and Convincing Evidence5 B. Respondents Former Client Dawit Shifaw Was Couched to Make Statements and Assertions Which Are Untrue And Not Supported By the Evidence in the Record.11 C. The Ad Hoc Committee Improperly Credited Shifaws Testimony While Ignoring Shifaws Glaring Inconsistencies and Contradictions in the Record Concerning Misappropriation and Other Allegations.23 D. The Board Made A Number of Other Findings That Are Also Not Based on the Record or Facts in This Matter.26 E. Respondent Competently Represented Shifaw33 F. Respondent Did Not Engage in Misconduct During the Pendency of the Dismissed Legal Malpractice Court Proceedings. ..35 II. THE REMAINDER OF THE BOARDS ADVERSE FINDINDINGS ARE EITHER INACCURATE, DISTORTED, OR PARTIALLY CORRECT BUT ITS
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CONCLUSIONS ARE AS A WHOLE NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE IN THE RECORD AND THEREFORE SHOULD BE REJECTED.45 III. FAILURE OF TWO MEMBERS OF THE BOARD TO PARTICIPATE IN THE BOARDS FINAL DECISION DENIED RESPONDENT DUE PROCESS50

CONCLUSION51 TABLE OF AUTHORITIES CASES In re Addams, 579 A.2d 190, at 194 (D.C. 1990).7 Cleaver-Bascombe, infra, note 4, 986 A.2d at 1194.7 In re Micheel, 610 A.2d 231, 234 (D.C. 1992).7 In re Goffe, 641 A.2d 458, 464 (D.C. 1994)7 In re Bach, 966 A.2d 350, 365 (D.C. 2009)7

STATUTES AND REGULATIONS D.C. Bar R. XI 3(c)2

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QUESTIONS PRESENTED 1. Whether the Boards recommendation of disbarment is supported by clear and convincing evidence. 2. Whether the Board erred in its report and recommendation 3. Whether Non-Participation of two members of the Board in the Decision denied Respondent due process

STATEMENT OF THE CASE The Ad Hoc Committee which initially had heard this matter completely eschewed the record and made erroneous conclusions and recommendations to fit their desired outcome. The Board had the responsibility to correct this injustice but failed to do so but instead adopted the Ad Hoc Committees erroneous report and in so doing, the Board has made a recommendation of disbarment based on a finding of intentional misappropriation that is neither supported by clear and convincing evidence nor any evidence at all. The Board cognizant of this fact, has made an alternative recommendation of disbarment based on the misconduct in Shifaw, Gitau, Mwihava and Hailu matters, which is a disproportionate sanction even if one were to assume all the basics complained of by these individuals. Respondent now seeks justice before this Honorable Court upon de novo review of the record, which speaks volumes in favor of reversing the Board and its erroneous findings and conclusions of law. In terms of procedural history, Bar Counsel initiated proceedings against Respondent on April 1, 2009 in five separate matters which Respondent represented the complaining clients years before. Respondent filed his answers as to each of the Specification of Charges by Bar Counsel on May 18, 2009, June 3, 2009 and July 13, 2009, noting the charges against
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him were without merit. The Board consolidated the matters on June 10, 2009 as captioned above. The Hearing Committee conducted hearings on various days in these matters between November 16, 2009 and February 22, 2010 and issued its Report and Recommendation on February 4, 2011. Respondent filed exceptions to the Hearing Committees Report and Recommendation, and on May 2, 2011, filed his brief setting forth the reasons for his exception. Bar Counsel filed its brief on May 26, 2011 and Respondent filed a reply on June 13, 2011. Oral argument was held before the Board on June 23, 2011. Meanwhile, on petition of Bar Counsel, which contained non-existent citations of the law as pointed out in Respondents opposition to the petition, the Court temporarily suspended Respondent from the practice of law on December 2, 2010 pursuant to D.C. Bar R. XI 3(c). The suspension has been in effect since with indescribable harm to Respondents livelihood and reputation. On July 28, members of the Board who heard the case issued a Report and Recommendation in which two board members did not participate.

STANDARD OF REVIEW When considering a Report and Recommendation from the Board on Professional Responsibility, we accept the findings of fact made by the Board unless they are unsupported by substantial evidence in the record, and shall adopt the recommended disposition of the Board unless to do so would foster a tendency toward inconsistent dispositions for comparable conduct or would otherwise be unwarranted. D.C. Bar R. XI, 9 (h)(1); accord Cleaver-Bascombe, infra, note 4, 986 A.2d at 1194. Although the the Board is obliged to accept the hearing committees factual findings, it however, can only do so if those findings are supported by substantial evidence in the record, viewed as a whole. In re CleaverBascombe, at 1194 (internal quotation marks and citation omitted). While the Court defers to the Boards findings of fact, the Court reviews the Boards determinations of disciplinary violations de novo, In re Micheel, 610 A.2d 231, 234 (D.C. 1992), because notwithstanding the deference accorded to the Boards factual findings and its recommendation, [u]ltimately . . . the system of attorney discipline, including the imposition of sanctions, is the responsibility and duty of this court. In re Goffe, 641 A.2d 458, 464 (D.C. 1994).

SUMMARY OF ARGUMENT The Boards recommendation of disbarment against Respondent is wholly without basis being predicated as it is on a finding of intentional misappropriation of client funds which is equally without any support in the record. The Boards alternative recommendation of disbarment based on violations it found is disproportionate and inconsistent with other cases where disbarment has been found appropriate. Respondent believes he was prejudiced by the non-participation of two Board members in this matter. ARGUMENT I. THE BOARDS RECOMMENDATION OF DISBARRMENT AGAINST RESPONDENT IS WHOLY WITHOUT BASIS AS TO ITS PREDICATION ON INTENTIONAL MISAPPROPRIATION AND NEITHER IS IT SUPPORTED BY CLEAR EVIDENCE ON ANY OTHER BASIS. The Board concluded that Bar Counsel proved by clear and convincing evidence that Respondent engaged in intentional misappropriation. In fact, there is no evidence in the record that Respondent misappropriated client funds, let alone that he intentionally did so. When Bar Counsel asked Respondent in the investigation phase of these matters, Respondent provided a complete and honest response which he believed will result in the matter being closed without further action as it should have. He was wrong. For reasons he cannot comprehend, given the fact and truth that he did not misappropriate Shifaws funds, Respondent still finds himself defending this
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baseless allegation even after both the Ad Hoc Committee and the Board itself heard and saw the evidence which clearly shows and supports his firm and unalterable position he did not misappropriate any client funds; never has never will and this case alone is painfully demonstrative to him of the idiom no good deed goes unpunished.1 The Board has now adopted the Ad Hoc Committees unsupported finding as its own but this Court must reject the finding consistent with the truth and record in this matter. A. The Boards Findings and Conclusions That Respondent Engaged in Intentional Mispappropriation of $550 Is Not Supported By Clear and Convincing Evidence. The Board, in Respondents view, has presented the record in this and other matters in such a slanted and skewed manner as to support an outcome it had in mind at the conclusion of the proceedings. Respondent will point clearly demonstrable instances of this within this brief.

The fact is and the record clearly shows Respondent represented Shifaw, essentially pro bono, initially agreeing to charge him only $1000 in a case he or any other attorney would have reasonably charged him triple, if not more, because Respondent wanted to help this older, fellow immigrant he saw was finally realizing his dream of owning his own business. Indeed, the record shows that Respondent saved Shifaw more than $14,000 in the transaction and had kept and accounted more than $46,000 entrusted with him by Shifaw. How then Respondent would come from that compassionate mindset and trustworthiness to misappropriate $550 from the same person? This proposition is entirely illogical and nonsensical but fortunately for Respondent, the record is very clear in its absurdity and falseness the Court should have no difficulty finding as such and rejecting the Boards finding to the contrary.
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It is important to note from the outset that Mr. Shifaw never filed any complaint with Bar Counsel regarding Respondents representation; Bar Counsel, instead, initiated the investigation of this matter on its own and at some point after the many meetings Ms. Kello of Bar Counsels office had with Shifaw, the latter suddenly and for the first time made the claim that he has falsely repeated since that Respondent misappropriated $550 belonging to him, a claim that is nowhere supported in the record but there is plenty of direct and circumstantial evidence clearly establishing the $550 was, in fact, additional legal fees Shifaw agreed to pay Respondent and even asked for a receipt for it. How that can be found to be misappropriation is not only an injustice and turning upside down the principles of rule of law and due process, it is an abuse of prosecution and gross injustice of any process that would affirm the same as the Board did contrary to law and justice. As to what actually transpired in Respondents representation of Shifaw, the facts are as Respondent testified at trial and in his initial response to Bar Counsels initial inquiry as well as his later response to the formal charges found in Bar Counsels Exhibit, Volume 5, Exhibit 73. 2 There cannot but be one objective conclusion in this matter as to the question of whether Respondent misappropriated Shifaws funds, which is

Bar Counsels exhibits are referred to herein as BX. Respondents exhibits are referred to as RX. Tr. Refers to the consecutively paginated transcript of the hearing, FF refers to
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also consistent with the truth and that is, he did not. Indeed, Bar Counsel has not and cannot cite a single case that even comes remotely close where intentional misappropriation, let alone even negligent misappropriation has been found in analogous situation where a client pays an attorney additional legal fees, confirms the same by asking for a receipt for the fee, never complains to anyone about misappropriation but instead is all praise of the attorneys work and suddenly on prompting by Bar Counsel, he now claims misappropriation that never occurred. Not a single case because there is none. The District of Columbia law defines misappropriation as any unauthorized use of clients funds entrusted to him [or her], including not only stealing but also unauthorized temporary use for the lawyers own purpose, whether or not he [or she] derives any personal gain or benefit therefrom. In re Addams, at 194 (en banc), (quoting In re Harrison, 461 A.2d 1034, 1036 (D.C. 1983)) (alteration in original). Where an attorney acted intentionally in misappropriating client funds, the District of Columbia will usually order disbarment. Id. at 196(establishing a per se disbarment rule for intentional misappropriation). While the Addams rule operates presumptively, the presumption may be

Findings of Fact by the Ad Hoc Committee, Resp. Br. refers to Respondents Post-Hearing Brief.
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overcome only by a showing of extraordinary circumstances warranting a departure from the rule. In re Bach, 966 A.2d 350, 365 (D.C. 2009) (Boards opinion, adopted by the court). Intentional misappropriation is such a serious offense because it compromises the integrity at the heart of the client-attorney relationship. Id at 198. For this reason, disbarment is the presumptive sanction for intentional misappropriation. Id.(explaining that, in general, neither the usual mitigating factors, nor subsequent proper bookkeeping practices or client satisfaction can overcome the presumption that disbarment will be the appropriate sanction.) (internal citations omitted). Respondent did not intentionally misappropriate Shifaws $550 under this or any other definition as the Board erroneously concluded. In fact, Respondent has not committed misappropriation of any kind in this or any other matter. As he has repeatedly said and asked in his post hearing submission, if he was of a misappropriating type, why would he misappropriate [$550]3 instead of the $48,050 initially entrusted to him by Shifaw? Neither Bar Counsel nor the Ad Hoc Committee has answered neither can either answer this question honestly without admitting the

In his brief, Respondent refers to the amount $2050 he actually meant to refer to the $550 the Ad Hoc Committee erroneously claims Respondent misappropriated .
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obvious and that is it does not make sense therefore on this basis alone, one can objectively conclude there was no misappropriation here. Resp. Br. p.3. But there is plenty in the record to clearly support this conclusion. For example, in his cross-examination, Shifaw admitted that Respondent informed him as he has consistently stated that he had saved him an additional $2050 after further negotiations. Tr. at 1556. This fact alone raises other questions that neither Bar Counsel nor the Board answered but is equally dispositive and that is, if Respondent were of the misappropriating type, why would he advise Shifaw he had saved him an additional $2050 from the transaction and go on to misappropriate it? Id. Could it not have made more sense for Respondent, if he was the misappropriating type, to simply not let Shifaw know he had saved him the money and simply kept it? Again, neither Bar Counsel nor Board answered any of these questions which are not rhetorical as the Ad Hoc Committee claimed but they are insightful questions that must be asked and answered if this issue is to be examined objectively and without bias. Respondent maintains the only correct and objective answers to these questions support his firm and truthful contention from the very beginning that he never misappropriated Shifaws, or any other clients funds, which is also the only conclusion that can be derived from the record when objectively examined.
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There are other questions that remain unanswered but even try as they did to answer some them, none of the answers put forth stand up to scrutiny. For example, on the question of why Shifaw requested a receipt for for my payment of $1550 to [Respondent] for legal service, RX at B, p56, Tr. at 1563, an amount which obviously includes the $550 Bar Counsel and now the Board allege Respondent misappropriated, Shifaw, long after he had filed his civil complaint without even any hint of allegation of misappropriation, scrambled to testify for the first time about this made up allegation of misappropriation as follows: The money you took is $550, you took $550, you took it. I didnt give you, we had no agreement, you took it. Thats wrong as far as I know. Tr. 1559. This was an obviously made up allegation after the fact and Respondent firmly believes he was coached to so testify. This is because contemporaneously recorded evidence conclusively points the other direction, and that is, Shifaw had nothing but gratitude for Respondent; he had nothing but absolute trust in how Respondent handled his money and he certainly did not at any time claim that Respondent misappropriated or otherwise improperly kept his money as Respondent did no such a thing. Again, this is an allegation Shifaw was couched to make after Bar Counsel on its own filed charges against Respondent related to his representation of
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Shifaw so as to set the stage for a finding of misappropriation which not only being stigmatizing just by its mere allegation but carries with it the presumptive disbarment sanction which is what Bar Counsel is asking for facts and truth notwithstanding. B. Respondents Former Client Dawit Shifaw Was Couched to Make Statements and Assertions Which Are Untrue And Not Supported By the Evidence in the Record. Respondent firmly believes Shifaw was couched to testify as he did in contradiction with facts in his case so as to raise the gravity of the seriousness of the charges against Respondent Bar Counsel wished to pursue against Respondent and what could be more grave than an allegation of misappropriation of client funds? As stated above, this is charge wholly made up by Bar Counsel. Respondent never raised it as an issue anywhere, ever. Indeed, Shifaw never filed any complaint with Bar Counsel regarding Respondents representation. Bar Counsel its own initiated the investigation with Respondent fully cooperated and expected to be closed without further action, given he had done nothing warranting anything otherwise. But that would not be. Respondent then requested a meeting with Assistant Bar Counsel Catherine Kello in the nave belief he would answer all of her questions and provide whatever information she need by way of stipulations to conclude

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this and other investigation but this was of no interest to Ms. Kello; a hearing with the outcome as here was her mission.

It is fully within Bar Counsels authority and power to initiate and pursue disciplinary matters against any attorney; the Ad Hoc Committee had the responsibility and duty to ensure its report and recommendations were accurate and consistent with law and fact. It did not and the Board has now adopted its flawed report and recommendation. Respondent provides amble evidence in this brief that the Board failed in its responsibility therefore its findings and recommendations, especially with respect to disbarment must be rejected totally by the Court. As to Shifaws testimony regarding the claim of misappropriation of funds, there are several reasons why Respondent believes Shifaw was couched to make this unfounded allegation after the fact: First, in the since dismissed malpractice case he filed against Respondent before the filing of formal charges in this matter, see BX at 88, Shifaw never alleged that Respondent took $550 belonging to him against his will as he now claims and neither did he make such an allegation with Bar Counsel at any time before he took the stand to testify. It is important to also note Shifaw never filed a complaint with Bar Counsel about Respondent; Bar Counsel initiated

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this matter on its own in what Respondent believes was in an effort to propup the gravity of the allegations against him4. Second, in his email of January 19, 2005 in which he requested a receipt for $1550 paid for his legal fees, RX at 56, Respondent stated as follows: I have one other thing also. My daughter and her husband are going to buy a Laundromat in MD and asked me to be a partner because they did not have good credit to get a loan by themselves. The owner asked them over hundred thousand but they are still asking him to reduce the price. If they made up their mind to buy it, I may turn to you for help. RX at 56 (emphasis added). Why would Shifaw give Respondent heads-up that he might be in need of Respondents legal service in the purchase of another Laundromat if as he testified Respondent had improperly taken $550 that belonged to him? Once again, neither Bar Counsel nor the Ad Hoc Committee answered any of these questions which are not rhetorical as the Ad Hoc Committee claims

None of these other matters involve an allegation of misappropriation and neither can any be made against Respondent because not perfect as he may be in his professional and private life, that imperfection will never involve questions of his honesty and integrity instilled in him from childhood by his father, a respected member of the Court, businessman and Church elder to the day he died. These are values that cannot be shaken no matter what and thus the reason Respondent has been at times simply vexed by having to continuously defend against this false allegation that he misappropriated a clients money which he will never do. Respondent has helped hundreds of clients on reduced fees or on a pro bono basis as he did in this case because his decision to practice immigration law as opposed to returning to his native home upon completion of his studies for a career there along the path of his late fathers was not driven by making money but a desire to help his fellow immigrants, which he has proudly done. This one
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but they are insightful questions that must be asked and answered if this issue is to be examined objectively and without bias, which Respondent is confident will be done at this stage of review. Respondent maintained the reason Shifaw gave him head-up regarding needing his help in another business transaction is because Shifaw was impressed with the work Respondent was doing for him for it certainly cannot be because he wanted to give him another opportunity to misappropriate his money, if that is what he believed. The truth is, he had no such a thing in his mind because it never happened; all he had was gratitude for Respondents service and thus the desire to further engage him but either on his own or someone couched him to fit his story with the charges Bar Counsel was pursuing against Respondent. Given the warm and cordial relationship Respondent had with Shifaw at the time this alleged misappropriation is alleged to have occurred and given the nature and character of this man, Respondent believes it was the former and not the latter, namely, someone had to have couched him on what was essential to say to prop up this factually baseless claim of intentional misappropriation. Third, in the same email of January 19, 2005, Shifaw says, I wonder why the company did not send me a receipt and the title when I pay

allegation and finding by Bar Counsel and the Ad Hoc Committee which Respondent is specifically confident the Board will determine consistent with fact and truth
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$46,000. Id. However, in his testimony which Respondent maintains he was couched, the following exchange took place during cross-exam: Respondent: Did you ever in the time I represented you have any doubt whatsoever as to whether I was handling your money that you entrusted with me, other than honestly? Shifaw: I had suspicions of course, but when you know you didnt give me anything, you didnt give me a receipt after I paid $48,000. It took 5-6 months to show me that you paid $46,000. I had worried a lot. Maybe you took the money or you misplaced the money, I worried a lot, okay? Tr. 1561. This testimony clearly shows if Shifaw had any suspicions about Respondent, those suspicions clearly must have arisen after January 19, 2005 long after the representation had ended as confirmed by his email of that day but whatever those suspicions were, they were obviously not about misappropriation but about legal ownership of the Laundromat, after the Landlord falsely claimed ownership of the equipment when he had none. The Landlords baseless claim made Shifaw panicked and set in motion this whole sad saga which was escalated and compounded by the incompetent lawyer who incorrectly and wrongly advised Shifaw to pursue a baseless legal malpractice case against Respondent that has since been dismissed 5.

Long after Respondent helped Shifaw to purchase the Laundromat equipment, Shifaws Landlord claimed he owned the equipment pursuant to a provision in the lease Shiferaw assumed from the previous lessor. Shifaw then sought legal counsel from the aforementioned incompetent attorney who advised him this was true, namely, that the Landlord was the legal owner of the equipment according to the lease and that therefore Respondent had committed malpractice in closing the sale with this provision intact. Shifaw then proceeded to file a legal malpractice suit against Respondent on this ground.
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Again, as noted above, Shifaw did not claim any impropriety in handling his money in that dismissed legal malpractice case and neither did he so claim with Bar Counsel until after he testified in this matter. Fourth, The record is replete with examples where Shifaw said whatever he was supposed to say from his couching notwithstanding what question he was being asked on cross. For example, in the following exchange, Shifaw only wanted to say Respondent had done him wrong when he, in fact, did not: Respondent: Your testimony today was that I told you [at] the conclusion of the meeting that Rozario was not the true legal owner of the property, of the equipment [sic]. I was to investigate more, and find out who the true owner was? Thats what you testified earlier today, and this is what I am saying here? Shiferaw: But you didnt finish it, you didnt do it. Finally you exposed me to disaster. You didnt do anything you said you would do. You didnt do anything that you said you would do. You didnt do anything. Tr. at 1538. The talking points Respondent had must have been to make sure he repeatedly said Respondent didnt do anything for him or that

Respondent created a disaster for him and these had to be fit somewhere regardless of the question and true to form Shifaw delivered in the above

The lease provision was, in fact, specifically waived in writing by the same Landlord before Shifaw purchased the equipment therefore the Landlord never had any legal claim whatsoever as to the equipment. RX N at 115. Had the incompetent lawyer so advised
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exchange. Staying on course with this objective would be repeated at different times during Shifaws testimony. For example, confronted with the question why he would send friendly emails at a time he now suddenly claims he was unhappy and upset with Respondent, Shifaw stayed on course: Respondent: You make a statement there [referring to Shifaws email in which he says], I voted for Kerry yesterday. Which Kerry are you referring to? Shifaw: Kerry the presidential candidate at that time. Respondent: And next under it you say, I am mad that he didnt make it? Shifaw: Yeah. Respondent: So you are saying the relationship between you and I in November of 2003, November 3, 2004 was quite amicable and we were in good communication would you not? Shifaw: I dont know what your question is. Where are you going? I dont know, I voted for Kerry, thats right. So whatever you have been doing, it didnt satisfy me. Part of that, was the reason I was mad and sleepless that night. (emphasis added). Tr. at 1572 According to this testimony, Shifaws sleepless night over watching the 2004 Kerry/Bush election returns, suddenly became a sleepless night over being mad and unhappy with Respondent in his couched testimony five

Shifaw, the baseless legal malpractice case would not have been filed and this case
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years later in 2009. He had to stay on course: make Respondent look bad and if you have to say you were mad with him when you were not, so be it. The problem with made up facts like this is they are easy to disprove. The email itself in which Shifaw now offers a made up fact why he was sleepless on November 3, 2004 provides all one needs to contextually believe Shifaw made up this fact about being sleepless because of being mad at Respondent rather than because he was up all night watching election results as he truthfully stated in his email of November 3, 2004: Lawrence called a few minutes after I spoke to you. I did not tell him how far you had gone. He complained that [if] the matter is not pushed fast by my lawyer and it is not done in few days he might find someone else to buy. I told him to be patient with my lawyer to do his job. Thank you for finding out what he did not want to tell us. (emphasis added). I voted for Kerry yesterday. I am mad that he didnt make it. Just like you, I had a sleepless night watching the outcome. RX at 34. This email communication from Shifaw confirms provides 3 facts contrary to what Shifaw testified to under oath: (1) he was fully informed and was pleased with what Respondent was doing for him at the time because he told the purported seller to be patient with Respondent as he was doing his job; something he would not have reasonably been expected
initiated by Bar Counsel following the filing of the former would not be.
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to say were that, in fact, not the case (2) the relationship between Shifaw was friendly and amicable at that time (3) Shifaw spent a sleepless night on November 3, 2005 depressingly watching Kerry going down against Bush and therefore (4) he was not spending a sleepless night on that November 3 night because he was mad or unhappy with Respondent Shifaw was obviously and clearly not spending a sleepless night because he was mad or unhappy with Respondent. There are other glaring inconsistencies, contradictions and things that are just not believable in the record regarding Shifaws: Shifaw testified at Tr. 1527 that he met with Assistant Bar Counsel Catherine Kello 2-3 times before the hearing started and on the day he testified, id., and that during all these times, Ms. Kello did not discuss his testimony; she did not even discuss his dismissed legal malpractice case against Respondent and that all she told him at all these times was he was going to give testimony, thats it. Tr. 1529. This is just not believable no matter how one looks at it. It is Respondents position that Ms. Kello couched Shifaw what to testify, and how to testify to make the totally baseless claim of misappropriation. Shifaw never said anything to anyone, including even himself in his detailed daily dairy he kept at the time this was supposed to have occurred before he met and discussed his testimony with Ms. Kello.

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Shifaw testified on direct examination that he mostly communicated with Respondent by email and that Respondent did not answer the emails most of the time, Tr. at 1467. The record show clearly that save for one 6, Respondent responded to all of Shifaws emails. Shifaw also testified that he had no other number to reach Respondent other than his office number and specifically that Respondent did not give him his cell phone number to call him. Respondent had, in fact, given Shifaw his cell phone number 7, something he was incredibly denying even on cross examination when in an email in the record shows the following communication from Respondent to Shifaw: I gave you my cell phone number so you can reach me directly therefore I am surprised you were calling my office line the other day8. I left for Dallas, TX late Tuesday and just returned this morning. Ill be in court this afternoon at 1pm, which means Ill leave office by noon and not expect to return until Tuesday (Monday is a holiday). Therefore, the onl time I can see you today is before noon, otherwise it would have to be next Tuesday.
6

Even in the one email that appears not to have been responded to by email, there is nothing in the record to show that Respondent did not address the issue raised therein, in fact, the converse is true, namely, he did.
7

Respondent gave Shifaw his cell phone number in addition to his office phone number and email to make sure he was accessible to him at all times. 8 At that time and for more than 2 years, Respondent received in his office an average of 80-100 calls per day. Since he could obviously not take every call, given this volume, his policy was to take those he could and have messages taken and he would normally return those calls within a day or so for the rest during the day, unless they were urgent. All of his deportation clients had Respondents cell phone number to reach him directly and so did a number of selected other clients, including Shifaw.
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RX. at 54. This email was in response to Shifaws email of January 11, 2005 in which he said, I know you are busy. That is the reason I did not want to call your cellphone while you may be in court. Id. (emphasis added). Shifaws testimony about not having Respondents cellphone is not only contradicted in the record, it is a failed effort to paint Respondent as unreachable when he, in fact, was at all relevant times, a failed effort which is consistent with the objective of his couched testimony and that is, fitting his narrative with the intended ultimate end objective of having Respondent appear as somebody other than who he is.9 Yet, despite this glaring contradictions in the record concerning Shifaw, the Board concluded that Mr. Shifaws demeanor was sincere and credible. His testimony was internally coherent, consistent with

contemporaneous documentation, and contextually believable on this basis rejected; is they are often can be contracted with real, direct and incontrovertible facts. Tr. 66 (emphasis added). If Shifaws testimony about his sleepless night on November 3, 2004 in the view of the Board is consistent with contemporaneous documentation and contextually believable, if Shifaws denying in his testimony that Respondent ever gave

A brief background of Respondent is at Tr. 1800 21

him his cellphone when the record clearly shows this not to be true is consistent with contemporaneous documentation and contextually believable, then those words must mean something else to the Board which is not consistent with law as we know it and that alone is more than enough to show that the findings and recommendations are not supported by the record therefore the Court must reject them consistent with due process and the rule of law. Finally but not least, Shifaw testified that he keeps a daily dairy in which he records important daily happenings in his life. Tr. at 1596. This detailed dairy recorded what happens in his daily life such as whether he had a fight with [his] wife or did [he] meet Mr. Omwenga, or meet [his] grandchildren. Id. Yet, detailed as he is in his daily affairs, nowhere did Shifaw indicate in his diary that Respondent had taken $550 from him against his will. He did not and could not have entered such an entry because Respondent did not take $550 from him unwillingly; in fact, the opposite is true by his own conduct, namely, he offered and Respondent accepted the additional $550 in legal fees which he acknowledged in his request for a receipt for $1550, which he knew and had agreed to be deducted from the

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$2050 additional savings Respondent had secured for him. 10, not because Respondent had saved him that much more, but because Shifaw insisted that he accept that as payment in appreciation for the extraordinary saving and services he received. C. The Ad Hoc Committee Improperly Credited Shifaws Testimony While Ignoring Shifaws Glaring Inconsistencies and Contradictions in the Record Concerning Misappropriation and Other Allegations. The Board tried to tackle this glaring fact as to the absence of misappropriation in Shifaws case given the record that clearly shows that Shifaw knew and acknowledged the $550 to be additional legal fees he agreed to pay Respondent which therefore cannot be intentional misappropriation as the Board found or even simple misappropriation no matter how one defines the term. The Board asserts in its Report that Shifaw forcefully denied agreeing to additional legal fees. FF at 66. Forceful or not, Shifaws denial at the hearing does not change the fact that the record clearly shows that he requested a receipt for $1550 for legal services, an amount which undisputedly includes the $550 Bar Counsel and now the Board claim Respondent intentionally

misappropriated. Neither does the forceful denial change the fact clearly supported in the record that Shifaw never claimed at any time before he

10

Respondent did not ask and neither did he accept the additional $550 in legal fees because of his obtaining the substantial savings of $14000 for Shifaw. BX 98 at 2224, Tr.
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came in contact with Bar Counsel that Respondent had improperly taken money that belonged to him and certainly not in the since dismissed legal malpractice lawsuit in which such a claim would have been a featured claim against Respondent in the malpractice claim filed as it was by an incompetent attorney11 notwithstanding. The Board bases its erroneous finding that Respondent intentionally misappropriated $550 on a credibility finding in favor of Shifaw, FF at 66, but credibility is irrelevant and unnecessary where as here the record is very clear as to what one testifying is previously on record as having done or not done. The record shows Shifaw requested for a receipt for $1550 he paid Respondent for legal services. That should be the end of inquiry as to whether this $550 was misappropriated or not but there we are post-hearing still litigating this question which clearly calls but for one conclusion heavily supported by the record and that is Respondent did not intentionally misappropriate Shifaws money as the Board erroneously found. Despite this obvious contradiction and others between what Shifaw contemporaneously communicated to Respondent at the time these events were occurring and what he testified to at trial, the Ad Hoc Committee nonetheless concluded that Mr. Shifaws demeanor was sincere and

at 1585.
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credible.

His

testimony

was

internally

coherent,

consistent

with

contemporaneous documentation and contextually believable. Tr. at 67. How is one requesting a receipt for $550 paid for legal services consistent with the same persons testimony later that the $550 was not, in fact, legal fees but money taken from him against his will? Is one contextually more believable at the time they do what they said they have said or done at the time they do or say it or 4 years later? Respondent believes its the former and not the latter as the Board erroneously concluded. In his testimony, Shifaw testified that the $550 was not his concern; rather, his concern was my suspicion about the legal ownership [of the equipment Respondent helped him purchase.] Tr. at 1561. Of course, why would it have been; he all along knew he had insisted and Respondent had accepted this amount as additional fees as his appreciation for Respondent getting him the extraordinary savings in the purchase, a fact (the extra payment) he acknowledged in the January 19, 2005 email discussed above. Given the tenor of Shiferaws email of January 19, 2005 in which he clearly acknowledges paying Respondent $1550 in legal fees, given in the same email Shiferaw proposes to re-hire Respondent to help him in connection with the purchase of another Laundromat and further given all of

11

The attorney who encouraged Shifaw to file the baseless legal malpractice lawsuit was so incompetent, he offered a disbarred attorney as an expert witness in the baseless
25

his communications in the record immediately following that day solely focused on whether or not Shiferaw legally owned the equipment he purchased as Respondent repeatedly told him, and further given nowhere during that time and for years more did Shifaw complain to anyone, including his own daily diary, that Respondent had misappropriated $550 that belonged to him, it is contextually believable that this is what he knew and still knows to be the case, namely, that the $550 was additional legal fees he agreed to and paid Respondent, his testimony to the contrary at the hearing notwithstanding therefore the Boards finding that the $550 was anything other than legal fees is in error cannot and ought never to be let stand. D. The Board Made A Number of Other Findings That Are Also Not Based on the Record or Facts in This Matter. The Board made a number of other findings that are either factually incorrect, contrary to what is in the record or otherwise not substantially supported in the record. For example, the Board claims that the facts refute Respondents claim Mr. Shifaw had negotiated a tentative price of $50,000 (not $60,000) with Rozario, before he engaged Respondent. FF at 68. (emphasis FFs).

legal malpractice lawsuit!

26

The Boards finding is factually baseless as confirmed by Shifaw himself in the following testimony on cross-examination: Respondent: In the third paragraph, 12 I state upon a thorough investigation, I established that the Laundromat equipment was leased by Mr. Lozarion from a company by the name Premium Capital of Iowa, which was subsequently acquired, and all interest in the equipment transferred to Lee Financial Inc. of Philadelphia, PA. I then contacted Lee Financial and initiated extensive negotiations that ultimately resulted in Lee Financial agreeing to sell the Laundromat equipment to Shifaw, initially for $52,000,13 and [saving]14 to Mr. Shifaw [given]15 the $60,000 purchase price, he initially agreed to pay Mr. Rozario. That is also true, is it not?

Tr. at 1538. Shifaw: Yes, I testified this morning, you said you were discussing, but all the discussions you have said didnt save me. Id. In an email Shifaw sent to Respondent on October 1, 2004, just after Respondent had agreed to help him, Shifaw said as follows: I am taking $50,000 loan and $5000 from my own savings to make the total of $55,000 for the purchase of the Laundromat equipmentPlease tell [the seller] to be patient until the money is ready. RX at 14

12

Referring to what Respondent said in his initial response to Bar Counsel regarding the matter, BX at 100, p. 2230. 13 The initial offer from Leaf Financial was actually $55,000 14 The transcription says reserving which is an error. 15 Another transcription error, says even instead of given.
27

This testimony and communication from Shifaw is significant in two respects: For one, it clearly shows the Board reached conclusions not based on fact, namely, in this case, that Shifaw had negotiated the sale price down to $50,000 before he retained Respondent which is obviously not true, BX at 68; Respondent, in fact, not without great skill and desire to help this grandfatherly fellow immigrant negotiated the price down from $60,000 to the $46,000 final price Leaf Financial agreed to sell the equipment to Shifaw who for his part was initially willing to pay Rozario $60,000. Respondent intervened and initially negotiated with Rozario who agreed to discount the amount to $52,000 before Respondent opened negotiations with Leaf Financial, after determining upon investigation that it was the lawful owner of the equipment, not Rozario. Tr. 1571.16 The Board was therefore wrong in its conclusion that Respondent only saved Shifaw $4000 which in its view was insufficient to motivate Mr. Shifaw to insist on an enhanced legal fee for the purchase of the equipment. Tr. 68. The Board did not state what amount it deemed would have been sufficient to so motivate Shifaw but it could not come up with a number anyway as this is a subjective number only for the individual being motivated, in this case Shifaw. If the amount saved was, for example, $550

16

The negotiations with Leaf Financial started back up at $55,000, which is the amount they had offered to sale the equipment to Rosario, who was at the time just leasing the
28

only, Shifaw could have still within his prerogative and reasonably so insisted to pay Respondent the entire $550 additional saving, given these circumstances. The amount Respondent saved Shifaw was not $550, it was not $4000 the Committee found to be trivial but Respondent saved Shifaw $14,000 and thus the reason Shifaw insisted on paying Respondent the additional $550 as his token of appreciation for this great savings. The second conclusion that can be reached from this particular factually baseless conclusion is that Board was not objective because it significantly trivialized what Respondent did for Shifaw to the point it was unable to see the value and appreciation Shifaw placed in the service leading him to insist that that Respondent accept the additional fee as a token of appreciation. Indeed, the Board confirmed this trivialization by noting,

[t]hough Respondent did get Leaf Financial to reduce the price $400 more [sic] (from $50,000 to $46,000), that result was not as significant as Respondent claims. Tr. 68. The actual amount Respondent saved Shifaw as noted above and clearly supported by the record was $14,000 (from $60,000 to $46,000), which is almost 4 times what the Board erroneously concluded. It was precisely because of this significant saving that Shifaw insisted that Respondent accept the additional $550 as a token of his appreciation for

equipment.
29

Respondents extraordinary work in his case which went beyond what anyone else could have done for Shifaw. Yet, facts notwithstanding, the Board went on to make its own conclusions that Respondent had intentionally misappropriated

Respondents $550. If the Board got this fact wrong as it clearly did here, it also got other facts wrong elsewhere as demonstrated by the record and highlighted here. While crediting Shifaws testimomy which was imprecise,

inconsistent and contradicted with contemporaneous evidence and reaching conclusions not based on fact such as the one that Respondent only saved Shifaw $4000 when he, in fact, saved Shifaw $14,000, the Ad Hoc Committee dismisses and discredits Respondents testimony and evidence which is consistent and supported by contemporaneous evidence including the biggest of all and that is, the $550 the Board claims Respondent misappropriated was, in fact, additional legal fees Shifaw offered and paid. In other words, the facts do not refute Respondents claim as the Board concluded; rather and clearly, the facts refute what the Committee concluded about misappropriation in the Shifaw matter. When the Board was ignoring facts in the record, it pulled others out of nowhere to establish a contradiction as against Respondent which does not exist. For example, the Board said of Respondent:
30

In his initial bar response, Respondent claimed he promptly advised Shifaw that he had saved him a further $2000 in connection with the purchase and sent him a check for that amount. ..He specifically denie[d writing] a check for $1500and denie[d] advising Shifaw that he was keeping the remaining $550 as an additional legal fee These statements were false. (emphasis theirs). BX at 67. The Board makes no distinction between errors and falsehoods; there is actually a difference. Falsehood is stating something one knows to be untrue as truth; an error is unintentionally stating something as fact when its not factual or correct. In drafting his Answer to the complaint from Bar Counsel regarding Shifaw on or about July 13, 2009, Respondent stated that he sent Respondent a check for that amount referring to $2000 when the check was, in fact, for $1500 and he gave Shifaw the check in his office. Was Respondent making a false statement in the Answer about the check amount and whether it was mailed or handed to Shifaw? Respondent had already stated the correct amount of $1500 in a communication to Bar Counsel predating the Answer by several months therefore he could not have been stating as fact something he knew to be false. The Board claims Respondents statement that he denied writing a check for $1500 is also false. This denial is, in fact, true so the Board is once

31

again wrong in its conclusion and here is why: In his Answer, Respondent states as follows: 13. Respondent denies that Shifaw asked him to return the $2050 in excess funds that he had provided to Respondent in connection with the purchase of the Laundromat. 14. Respondent denies that in response to this purported demand, Respondent wrote a check for $1500. (emphasis mine). BX at 2033 13, 14. In other words, Respondent did not deny that he issued a check for $1500 in contradiction with his statement to the contrary in the Answer as the Board erroneously concluded, rather he denied issuing a check in that amount in response to a demand to refund Shifaw $1500 in excess funds which he provided Respondent that Respondent maintained never happened. Instead, Respondent further negotiated down the sale price, saving Shifaw $2050, promptly advised him of the savings and thereafter issued him a check for $1500 without any demand being made by Shifaw. Similarly, Respondents denial about not advising Shifaw that he was keeping the remaining $550 as additional legal fee despite having stated elsewhere that he accepted the money as legal fee, is not false as the Ad Hoc Committee erroneously concluded. Shifaw insisted, and Respondent reluctantly accepted the additional payment of legal fees as a token of appreciation from Shifaw therefore Respondent could not have then advised Shifaw that he was keeping the remaining $550. The former
32

connotes a voluntary, willing act; the latter suggests a cohesive act at best. Shifaw voluntarily and willingly agreed to pay Respondent the additional fee and thus the denial. From this, the Ad Hoc Committee erroneously concludes as follows, [After making the statements cited immediately above] Respondent story changed. Respondent claims Mr. Shifaw was overwhelmed with gratitude because Respondent saved him $14,000. Tr. 68 (citations omitted). Respondents statement of the facts as to Shifaws excitement and offer to pay him additional legal fees has not changed anywhere in the record. Respondents testimony at the hearing, Tr. at 1927 is identical to his statement in his initial response to Bar Counsel several months earlier. RX 100 p.2230. The Ad Hoc Committees conclusion that Respondents story changes is therefore also without factual basis. E. Respondent Competently Represented Shifaw The Board makes a number of findings in connection with substantive issues related to his representing Shifaw in his purchase of the Laundromat equipment. The Court must reject each finding as irrelevant. To begin with, Respondents competency in his handling of Shifaws purchase of the Laundromat equipment has never been questioned and neither was he charged with incompetency as Bar Counsel acknowledged at

33

the hearing: We have not made competence charges based on the underlying transaction. Tr. at Tr. The Ad Hoc Committees findings and conclusions as to this issue are therefore without legal basis. Even if competency in Respondents handling of the purchase were to somehow be an issue, the record is very clear that Respondent more than competently handled the transaction resulting in not only Shifaw purchasing a business of his dream, but saving him $14,000 along the way therefore the Boards findings and conclusions as to this issue will equally be without factual basis. Even more dispositive of this issue, a legal malpractice lawsuit based on the bogus claim of incompetency in the purchase transaction was dismissed by the Superior Court of the District of Columbia (DC Court) on August 26, 2009. BX 106 at 2297. In sum, there is no basis in the record or, in fact, to find that Respondent did not other than competently represent Shifaw in the purchase transaction therefore the Boards findings and conclusions as to this issue must be totally rejected by the Court.

34

F. Respondent Did Not Engage in Misconduct During the Pendency of the Dismissed Legal Malpractice Court Proceedings. Although Respondent conclusions must be drawn from the record as established in a proceeding, there are instances where the record depicts simply the happenstance of something but does not provide a clear picture of why it happened, leaving one to conclude one way, given their inclination or another. The Boards finding that Respondent engaged in misconduct or misrepresentation in connection with the baseless legal malpractice filed against him that has since been dismissed is one such example. Contrary to what the Ad Hoc Committee concluded from the Shifaw civil case, Respondent did not, in fact, misrepresent or engage in any misconduct. Had Respondent done so, the Honorable Judge Johnson J. Ramsey who issued the Show Cause Order and before whom Respondent testified pursuant to the Order, would have wasted not a moment to hold Respondent for misconduct or misrepresentation. He did not and that speaks volumes and is consistent with the facts and truth than anything the Board has said on this issue. Again, there are times where one can read a record an come one way with an honest conclusion when reality and truth lies in the opposite direction and this in Respondents view, is what has happened here. Having made erroneous conclusions on other issues as demonstrated above, the Board found it that much easier to conclude Respondent was engaged in
35

misconduct and misrepresentation in the civil proceeding when he, in fact, did not. Respondent reiterates all representations he made to the DC Court in connection with Shifaw matter, including at his Show Cause hearing before Judge Ramsey Johnson were correct and truthful to the best of his knowledge at the time Respondent made them. It is true as Bar Counsel pointed out during the hearing that Respondent informed the DC Court that he was aware of two sanctions when the record shows there were a total of 5 sanctions. It does not, however, therefore follow that Respondent misrepresented or engaged in misconduct, Respondent simply stated and testified to something that turned out not to be factually correct. This is just the fact, namely, at the time Respondent initially testified at his Show Cause hearing, he in fact truly believed there were only two sanctions issued against him and later on at the same hearing he remembered a third sanction against him17, which he told Judge Ramsey Johnson he was moving to have vacated. Respondent was therefore not engaging in any misconduct or misrepresentation as the following exchange between he and the judge clearly confirms: 18

17

A memory triggered by something Judge Ramsey said about a sanction for failure to appear at a hearing. 18 Respondent reproduces a lengthy excerpt of the testimony to provide complete context to show the truthfulness of his testimony.
36

THE COURT: And then my order setting show cause hearing for todaywas it was a failure to pay sanctions totaling $1175 into the court registry. $250 ordered on October 1st 2007. $500 as ordered on March 10, 2008. And, $1000 as ordered on June 19, 2008 19. Apparently thre were other sanctions in the case. There was an order dated October 13, 2006 and October 1st 2007 when you were required to pay opposing counsel $245 from the first date and $260 from that second date about a year later. Those were to pay paid directly to opposing counsel and of course I would have no way of knowing what happened with that. MR. OMWENGA: I did pay. The sanction to the counsel was actually paid. That one I can confirm because I know for a fact it was paid. What I wasnt sure THE COURT: Well, there were two.

MR. OMWENGA: There was only one, it must be clerical mistake of some kind. I am only aware of one sanction for not providing discovery on time and that was the $245 sanction. THE COURT: There was an order dated October 1st 2007, that was the second time, imposing a $260 sanction. The court in that order noted that [Plaintiffs counsel] acknowledged payment of the first sanction, the $245 sanction, and that was when the judge ordered you to pay the $260 sanction. So, it does appear that you paid the first, but that there were in fact two sanction, not one, and that you havent paid the second one, or have you? MR. OMWENGA: That is a puzzle to me, Your Honor, I unfortunately wanted to get time to go review the docket myself and see exactly what happened. My file does not reflect any of those orders except for two, and that is the first one which I have paid opposing counsel and a second one which I have been of the mistaken belief that there was a motion to reconsider that second one of course because [as I said] in the same motion as well as this one it wasnt my fault [that] we did not file a pre-trial statement.

19

These numbers do not add up.

37

THE COURT: attorney.

That was a sanction to the court or the other

MR. OMWENGA: All sanctions were to the court, well, not all the, [sic] it sounds like there are so many. There are two I am aware of. There is one to the court, one to the opposing counsel. The one to the opposing counsel was paid. The second one, the $500 one, is the one I indicated in my motion I was of the belief that it was also paid, but I subsequently learned that it wasnt paid and I am prepared to pay that one and that was in relation to the same sanction that I paid the opposing counsel for not timely producing some documents. THE COURT: So, how come you havent paid them?

MR. OMWENGA: The second one, the $500 one, I actually, it was a mistake at the same time we paid opposing counsel. I gave instructions to my assistant to issue the checks,20 but I found out they only wrote a check for opposing counsel [but] I did not know that until after your order and was looking into it. THE COURT: Well, there is a total of $1175 that was to be paid into the court registry. It mentions from that group $500 as ordered on March 10th of 2008 and $1000 as ordered on June 19, 2008. 21 MR. OMWENGA: The $500 one is the one I am prepared to pay today, Your Honor. I am just going to pay that because that [sanction] had to do with with the fact that I had not timely submitted some documents that were requested in discovery and that was also in conjunction with, according to my recollection, with the opposing counsel sanction of $245. So, the two should have been a total of $745. The $1000 sanction was actually issued the second to the last, rather the only pretrial date I think that was set in this case and that was because the presiding judge was not happy that we did not file a joint pretrial statement. I indicated actually with the judge, requested [sic] the judge not to impose the sanction because it wasnt my fault, but I believe at the time my speculation [was] that the might have thought that I wasnt taking the case seriously, but I was.
20 21

One to the court for $500, the other to opposing counsel for $245. Again, these numbers do not add up. 38

THE COURT: When do you plan to satisfy these judgments or what is your plan? MR. OMWENGA: $500 today. THE COURT: Your Honor, that is why I am paying the

I heard that.

MR. OMWENGA: Yes, with respect to the $1000, which is the only one I am aware of that is outstanding other than those other two I am moving the court to reconsider because, as I stated in my motion, the reason we did not file a joint pre-trial statement is because I could not find plaintiffs counsel. THE COURT: [reading one of the sanction orders from the issuing judge previously on the case] To date neither plaintiffs counsel nor the defendant pro se has provided proof that the March 10th 2008 sanction has been paid and then the court goes on to say on June 12th 2008 the court received a letter addressed to the court from the plaintiff terminating his relationship with [his] counsel [David E Fox] wherefore it is on this 19th day of June 2008 hereby ordered that former counsel for plaintiff, David E [Fox] esquire and, I have him coming in later, and the defendant pro se shall each pay a sanction of $1000 into the court registry within 30 days. That was on order issued June 19th 2008 and it was for failure to appear at a hearing. MR. OMWENGA: Your Honor, I think that has refreshed my memory a little bit. What must have occurred, that order [of June 19 for $1000] was not served on me. There was a problem with the address, the mailing address, the mailing address at the time. I was not receiving correspondence from the court because they were using my old address. I have never seen that order. I am totally unaware of it. I was hoping to review the docket as I said today or earlier before I came here [but] did not get a chance to do that. Ill address them all of course, Your Honor. (emphasis added).
39

THE COURT: Well, here are the orders. I am going to give you copies of the order that was entered on court docket June 19 th 2008. That is the $1000 order. The order filed October 1st 2007 for $260 to pay the Plaintiffs counsel, an order dated and filed actually March 10th 2008 ordering $500and then lastly an order from Judge Wright dated October 13th pay $225 to Mr. Fuchs [sic]. So, apparently there were two separate. MR. OMWENGA: Your Honor, I just wanted to make note, if I may? I just could not ignore any court order. This has just simply been some kind of misunderstanding, confusion as to what was ordered. I did not have notice of many of these, I would just--THE COURT: Well, I think part of the problem was you had so many it was hard for you to keep track of all of them. MR. OMWENGA: I am not sure that is the case, Your Honor. I am hoping to confirm that it wasnt some type of clerical or some other [error]. BX 105 at 2285-229. The foregoing exchange between Judge Ramsey and Respondent shows clearly that Respondent testified truthfully and there was no misconduct or misrepresentation by Respondent of any kind. As

Respondent told Judge Ramsey, he did not have time to review the court file prior to the hearing as he had recently returned from an overseas trip and was working on a brief due at the US Court of Appeals such that he and had no time for anything else, including going to DC Superior Court to review the file in archives.

40

Had Respondent reviewed the court file prior to the Show Cause hearing before Judge Ramsey, he would have become aware of the other sanctions but nonetheless would have told Judge Ramsey what he said about them and that is, he would file motions to vacate them as he believed and still believes he did not deserve the sanctions for the reasons he stated in his motions, namely, (1) he had no notice of the hearing for which he was sanctioned $1000 and (2) he tried many times to reach the Plaintiffs incompetent attorney but could not reach him to file the required joint pretrial motion so he filed one on his own therefore he should not be sanctioned for something he had no control over (not filing a joint pre-trial statement). Respondent did file the motion but has not had a ruling on it. However, just as Bar Counsel erroneously assumed something more culpable other than mere confusion as to what was actually in the court record regarding sanctions, the Board equally reached an erroneous assumption of motive and intent leading to its erroneous conclusion that Respondent therefore must have been engaged in misconduct and misrepresentation before the court when such would not be possible for him, anyway. As Respondent noted in his Motion to Cancel Show Cause Hearing and To Reconsider and Vacate Or Modify Order Imposing Sanction, 14. Defendant did not ignore a court order in connection with the sanctions; more precisely, Defendant never has and never will
41

deliberately fail to comply with a court order as anyone who knows him both in and outside this profession would readily vouch. 15. Indeed, as Defendant stated in one of his pleadings in this matter, he could not fail to comply with any court order in the matter notwithstanding the fact he knew that this was a wholly meritless suit. 16. Defendant spent valuable time and money defending against the completely baseless complaint filed against him by an individual who was clearly misled by an incompetent member of the bar to not grant his motion to reconsider and vacate the order imposing the $1000 sanction imposed only because of lack of cooperation by the incompetent member of the bar would be truly unjust 22. BX 104 at 2279. This record clearly confirms Respondent did not engage in misconduct or misrepresentation in the Shifaw civil matter and neither did he misappropriate Shifaws $550 therefore the Board should reject the Boards conclusions to the contrary as to each. II. THE REMAINDER OF THE BOARDS ADVERSE FINDINDINGS ARE EITHER INACCURATE, DISTORTED, OR PARTIALLY CORRECT BUT ITS CONCLUSIONS ARE AS A WHOLE NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE IN THE RECORD AND THEREFORE SHOULD BE REJECTED. 23 A. Bar Docket No.: 231-06: Matter of Josephine Gitau. The sole and dispositive issue in Ms. Gitaus case is whether or not Respondent advised her not to go to court as she has consistently lied about
22

A footnote on this notes, Notwithstanding the valuable time and money Defendant spent defending against the [since dismissed] baseless lawsuit, he has had to spend valuable time responding to Bar Counsel investigation based on the same baseless complaint. 23 Respondent no challenges the findings of the Board as to the Hailu matter but does challenge its recommendation as to sanction. 42

it. Two separate tribunals, the Board of Immigration Appeals (BIA) and the US Court of Appeals for the Eighth Circuit both concluded and in their separate rulings that Respondent did not advise Gitau not to go to court as she claimed. In fact, the BIA ruled as such twice (in two succeeding motions to reopen based on that lie). These issue having been examined and ruled on by two competent courts of law, the Board was precluded to revisit the issue and is otherwise bound by these rulings its conclusion to the contrary notwithstanding. The Board attempts to justify its ignoring the three prior uniform rulings on the question of whether Respondent told Gitau not to go to court rendered by two competent jurisdictions, including the US Court of Appeals by noting that they had a better take on the credibility of Gitau and Respondent but credibility is irrelevant when the record is very clear that Gitau lied repeatedly about this bogus claim that Respondent told her not to go to court as scheduled. Gitau did not state in her own affidavit, which admitted on cross that she edited and signed, that Respondent advised her not to go to court. Having erroneously and wrongly concluded that Respondent advised Gitau not to go to court, the Board then goes on to conclude that Respondent did not attend the hearing because he mistakenly believed, as he told her, that it had been canceled. FF at 22. (emphasis added). There is
43

nothing presented in the record to provide the basis for the Board to conclude that Respondent mistakenly believed that the hearing was canceled; Immigration Court or any other court hearings are not canceled out of the blue: there have to be conditions preceding the cancelation that parties are aware of or notified upon such cancelation which in immigration court setting is referred to by all practitioners as rescheduling and Respondent has never used cancelation to refer to postponement or termination of an immigration proceeding. The Board just bought everything Gitau testified to true or not, including this bogus claim that Respondent told her that her removal hearing was canceled which the Board erroneously concludes must have resulted in Respondent being mistaken about the date. That was simply not the case as the record is clear that Respondent was in his office on the day of the hearing awaiting the Judges call as is routine for such out of state cases whose hearings are telephonically conducted. The Board is not allowed to assume or create a fact that does not exist to reach its desired conclusion. The Board unbelievably finds support for its obviously erroneous finding that Respondent mistakenly believed that the hearing was canceled in a question Respondent asked Gitau on cross where the word we appears instead of you which could either be a transcription error or inadvertent use of the word by Respondent but be as it may, in order for the Boards
44

conclusion to be valid as a matter of logic, then it would have to be the case (1) Respondent mistakenly believed that Gitaus hearing was canceled (2) that Respondent communicated this mistaken belief to Gitau (3) Respondent does not appear for the hearing (4) Gitau swears an affidavit in which she says nothing about Respondents mistaken belief but instead swears in the same affidavit that she had her court case mixed with her USCIS case that was, in fact, closed and (5) given all of this, Respondent poses the question to Gitau, I have repeatedly said and you know I did not ask you not to go to court, but is it not the case we did not go to court because I mistakenly believed the case was canceled? This just does not follow in any logical sense; it certainly was not the case factually, that Respondent told Gitau not to go to courtevertherefore the Boards finding on this is both without legal basis, being its precluded to revisit the issue, and factually because Respondent never told Gitau such a thing and the record is very clear about this. B. Matter of Cane Mwihava The sole issue here is whether Respondent was at fault for not filing Mwihavas I-130 petition. Respondent maintains, and the record shows he was not. Mwihava had what in immigration practice Respondent may refer to as a pocket spouse, meaning, someone married in paper but not in fact. These are typically spouses married to foreigners for convenience. In many
45

cases, these marriages do end bestowing immigration benefits but in other cases, they are sniffed out by vigilant USCIS examiners. In pocket spouse cases, the parties never file papers with immigration to accord the foreign spouse status because either the terms of doing so (usually monetary) are not agreed to or the American spouses disappear for any number of reasons, including drug abuse. Mwihava retained Respondent to represent him two different times, first in 2005 and again in 2007. The facts and circumstances surrounding both representations are as stated in Respondents answer, BX 74. Respondent has nothing else to add to the record other than to ask the Board to reject the Ad Hoc Committees finds and conclusions and more especially the following: 1. That Mwihava made numerous inquiries of Respondent regarding the status of the matter [filing of I-130], during which Respondent falsely advised him that he had filed the I-130 and that Mr. Mwihava just had to be patient and wait. FF at 37. Respondent testified and the record shows he never filed an I-130 for Respondent; the first time because the signed I-130 was not returned to him for signing, the second time because he did not want to associate himself with the filing or action on the I-130 because he believed it was based on a sham marriage therefore
46

Respondent could not have possibly be falsely telling Mwihava that he had filed one. 2. The Ad Hoc Committee acknowledges this fact but goes on to note, Despite that fact, when his client asked him whether he had filed the I-130, Respondent answered in the affirmative, which is a lie. FF at 37. Again, this makes no sense; Respondent did not file any I-130 and he, in fact, told Mwihava to file the I-130 himself or with another attorney therefore he could not have been telling Mwihava a lie after the truth. The Ad Hoc Committee simply refuses to accept the truth and that is, Respondent was not to file the second I-130 as he has consistently stated and if Mwihava did not follow through with the filing of the I-130 after Respondent so advised him, then this is nothing to be blamed on Respondent. 3. When Respondent replies to Mwihava via email saying, Your case was filed, and remains pending, so I have done exactly in your case what you have retained me to do, FF at 37, Respondent was referring to the appeal in Mwihavas removal case to the Board of Immigration Appeals which was, in fact, filed and remained pending at that time. The Ad Hoc Committee has mixed the two cases and reached an erroneous and wrong conclusion that I was lying about filing the I-130 when I clearly did no such a
47

thing; Mwihava was probably mistaken that I had when he was supposed to but that it the extent of how far that wentno one was lying even including Mwihava as Respondent sees it in hindsight. 4. The Ad Hoc Committee finds that Respondent did not refund any money to Mr. Mwihava. Id. There was no money to refund Mwihava; any money Mwihava paid Respondent was earned legal fees and Mwihava had a balance left in his case at the time he terminated representation, which would not have included fees for the I-130 filing Respondent did not file and therefore would not have charged him. 5. Although he believed this to be the case, Respondent did not see any issue in continuing to represent Mwihava in his removal proceedings; if Respondent Mwihava proceeded to get his I-130 filed and approved on his own or with another attorney as Respondent suggested, then Respondent would have used the approval in defending Mwihas removal. In other words, it was not Respondents role to ultimately decide whether or not Mwihavas marriage was a sham or not; Respondent just had his comfort level in which he would have himself involved in the filing and pursuit of marriage based petitions, something he progressively reduced in his practice to the point of not taking any
48

of those cases at all. On the other hand, not all of those cases he suspected to be were, in fact sham marriages thus the reason he would have the few clients so affected like Mwihava file the I-130 petitions on their own or with other counsel. 6. The Ad Hoc Committee seems to put some stock on the fact that Mwihavas I-130 petition based on the same marriage was approved. That does not change the fact Respondent had his doubts and neither does it say much about anything else given petitions based on sham marriages are routinely approved by either USCIS Service centers without interview or at local offices if the sham marriage is successfully presented as not one. 7. As for Respondents failure to attend Mwihavas hearing, the record shows Respondent had two matters scheduled for April 23, 2007 but filed motions to continue these matters in which he stated as follows: 2. Counsel was prepared and ready to go forward with the pleading only to discover in the last few days conflict that arose subsequent to counsels last court appearance. 3. More specifically, counsel was away overseas on March 17, 200[7] when he confirmed two business meetings involving two different clients, which will take place in two different countries and the meetings involve third parties also traveling from other countries to attend the meetings. Specifically, counsel will be attending meetings in Johannesburg, South Africa from April 21-24 and in Dubai on April 25-29.
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BX 55 at 1176. The cover letter accompanying the two motions was addressed to the Honorable Judge Dornell. Unfortunately for Mwihava, his motion ended up with Judge Barrett, who denied it but the other motion, based on the same identical facts and information, was granted and that matter continued; the difference: the judges. Judge Barrett, now retired, had a reputation in Baltimore that was testified to at this hearing. Indeed, one of the lawyer witnesses at the hearing described Judge Barrett as quarky and a stickler who was the toughest judge in Baltimore. Tr. 423. These attributes explains why Mwihavas case is here; had Judge Barrett continued Mwihavas case as the other case was, there would not be a Mwihava case to be discussing here. Judge Barrett was wrong in denying Respondents motion to continue and so was the Board in its findings and conclusions about this issue and therefore the Court must reject them. III. THE NON-PARTICIPATION OF TWO MEMBERS OF THE BOARD IN ITS DECISION IN THIS MATTER DENIED RESPONDENT DUE PROCESS The Board notes in its report and recommendation that two members of the Board did not participate in the decision. No reason has been given why but be as it may be, the non-participation of these members in the decision is a fundamental denial of due process owed Respondent.

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CONCLUSION The Boards finding as to intentional misappropriation is not supported by the record therefore its recommendation as to disbarment must be rejected by the Court. The Boards other findings and recommendations are equally not supported by clear evidence in the record and even if the Court were to find any violations, the recommended sanction of disbarment is grossly disproportionate Respondent believes the suspension Respondent would have suffered by the time the Court renders its decision is more than sufficient sanction for any violations the court may find, including in the matter of Hailu, which Respondent no longer challenges the Boards findings but not recommendation of sanction. Respectfully submitted,

_________________________ Samuel N. Omwenga, Esq. 13010 Firestone Court Silver Spring, MD 20904 (240) 377-6536

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing Respondents Brief has been served, via First Class Mail, postage prepaid, upon the Office of Bar Counsel, 515 5th Street, N.W., Building A, Room 117, Washington, DC 20001 this 3rd day of October, 2011. _____________________________ Samuel N. Omwenga, Esq.

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