ii

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 ARGUMENT……………………………………4

ARGUMENT…………………………………..…………………………4

I. THE BOARD’S RECOMMENDATION OF

DISBARRMENT AGAINST RESPONDENT IS WHOLY

WITHOUT BASIS AND NEITHER IS IT EVEN

SUPPORTED BY CLEAR EVIDENCE…………………4

A. The Board’s Findings and Conclusions That Respondent

Engaged in Intentional Mispappropriation of $550 Is Not

Supported By Clear and Convincing Evidence…………5

B. Respondent’s 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 Shifaw’s

Testimony While Ignoring Shifaw’s 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 Shifaw……………33

F. Respondent Did Not Engage in Misconduct During the

Pendency of the Dismissed Legal Malpractice Court

Proceedings. ………………………………………………..35

II. THE REMAINDER OF THE BOARD’S ADVERSE

FINDINDINGS ARE EITHER INACCURATE,

DISTORTED, OR PARTIALLY CORRECT BUT ITS

iv

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 BOARD’S FINAL DECISION

DENIED RESPONDENT DUE PROCESS………………50

CONCLUSION……………………………………………………………51

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

v

QUESTIONS PRESENTED

1. Whether the Board’s 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

1

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 Committee’s 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

2

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 Committee’s 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 Respondent’s 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 Respondent’s 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.

3

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 committee’s

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 Cleaver-

Bascombe, at 1194 (internal quotation marks and citation omitted).

While the Court defers to the Board’s findings of fact, the Court

reviews the Board’s determinations of disciplinary violations de novo, In re

Micheel, 610 A.2d 231, 234 (D.C. 1992), because notwithstanding the

deference accorded to the Board’s 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).

4

SUMMARY OF ARGUMENT

The Board’s 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 Board’s 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 BOARD’S 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 Shifaw’s funds, Respondent still finds himself defending this

5

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 Committee’s unsupported

finding as its own but this Court must reject the finding consistent with the

truth and record in this matter.

A. The Board’s Findings and Conclusions That Respondent Engaged in

Intentional Mispappropriation of $550 Is Not Supported By Clear and

Convincing Evidence.

The Board, in Respondent’s 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.

1 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 Board’s finding to the contrary.

6

It is important to note from the outset that Mr. Shifaw never filed any

complaint with Bar Counsel regarding Respondent’s 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 Counsel’s 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 Respondent’s representation of

Shifaw, the facts are as Respondent testified at trial and in his initial

response to Bar Counsel’s initial inquiry as well as his later response to the

formal charges found in Bar Counsel’s Exhibit, Volume 5, Exhibit 73.2

There cannot but be one objective conclusion in this matter as to the

question of whether Respondent misappropriated Shifaw’s funds, which is

2 Bar Counsel’s exhibits are referred to herein as “BX.” Respondent’s exhibits are referred to as

“RX.” “Tr.” Refers to the consecutively paginated transcript of the hearing, “FF” refers to

7

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

attorney’s 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 client’s funds entrusted to him [or her], including not

only stealing but also unauthorized temporary use for the lawyer’s 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 Respondent’s Post-Hearing Brief.

8

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)

(Board’s 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” Shifaw’s $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

3 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.

9

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 Shifaw’s,

or any other client’s funds, which is also the only conclusion that can be

derived from the record when objectively examined.

10

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 didn’t

give you, we had no agreement, you took it. That’s 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

11

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. Respondent’s 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

Respondent’s 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 naïve belief he would answer all of her questions and

provide whatever information she need by way of stipulations to conclude

12

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 Counsel’s 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 Shifaw’s 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

13

this matter on its own in what Respondent believes was in an effort to prop-

up 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 Respondent’s 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

4 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 client’s

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 father’s was not driven by making

money but a desire to help his fellow immigrants, which he has proudly done. This one

14

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 Respondent’s 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

15

$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 didn’t

give me anything, you didn’t 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 Landlord’s 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 dismissed5.

5 Long after Respondent helped Shifaw to purchase the Laundromat equipment, Shifaw’s

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.

16

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? That’s what you testified earlier

today, and this is what I am saying here?”

Shiferaw: But you didn’t finish it, you didn’t do it. Finally you

exposed me to disaster. You didn’t do anything you said you would

do. You didn’t do anything that you said you would do. You didn’t do

anything.”

Tr. at 1538.

The talking points Respondent had must have been to make sure he

repeatedly said Respondent “ didn’t 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

17

exchange. Staying on course with this objective would be repeated at

different times during Shifaw’s 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 Shifaw’s

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

didn’t 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 don’t know what your question is. Where are you

going? I don’t know, I voted for Kerry, that’s right. So

whatever you have been doing, it didn’t satisfy me. Part of that,

was the reason I was mad and sleepless that night. (emphasis

added).

Tr. at 1572

According to this testimony, Shifaw’s 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

18

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 didn’t 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.

19

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 Shifaw’s: 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, that’s

it.” Tr. 1529. This is just not believable no matter how one looks at it. It is

Respondent’s 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.

20

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 one6,

Respondent responded to all of Shifaw’s 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 number7,

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.

I’ll be in court this afternoon at 1pm, which means I’ll 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 Respondent’s cell phone number to reach him directly and so

did a number of selected other clients, including Shifaw.

21

RX. at 54.

This email was in response to Shifaw’s 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). Shifaw’s

testimony about not having Respondent’s 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. Shifaw’s 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 Shifaw’s testimony about

his sleepless night on November 3, 2004 in the view of the Board is

“consistent with contemporaneous documentation” and “contextually

believable,” if Shifaw’s denying in his testimony that Respondent ever gave

9 A brief background of Respondent is at Tr. 1800

22

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

23

$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 Shifaw’s Testimony

While Ignoring Shifaw’s 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 Shifaw’s 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, Shifaw’s 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.

24

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” Shifaw’s 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. Shifaw’s demeanor was sincere and

at 1585.

25

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 person’s 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 it’s 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 Shiferaw’s 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

26

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 Board’s 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 Respondent’s

claim Mr. Shifaw had negotiated a tentative price of $50,000 (not $60,000)

with Rozario, before he engaged Respondent.” FF at 68. (emphasis FF’s).

legal malpractice lawsuit!

27

The Board’s 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 didn’t 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

equipment…Please 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.”

28

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

29

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.

30

Respondent’s 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”

Respondent’s $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 Shifaw’s 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 Respondent’s 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 Respondent’s 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:

31

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 $1500…and “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 it’s

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 Respondent’s statement that he denied writing a

check for $1500 is also false. This denial is, in fact, true so the Board is once

32

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, Respondent’s 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

33

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).

Respondent’s statement of the facts as to Shifaw’s excitement and

offer to pay him additional legal fees has not changed anywhere in the

record. Respondent’s 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 Committee’s conclusion that “Respondent’s 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, Respondent’s competency in his handling of Shifaw’s

purchase of the Laundromat equipment has never been questioned and

neither was he charged with incompetency as Bar Counsel acknowledged at

34

the hearing: “We have not made competence charges based on the

underlying transaction.” Tr. at Tr. The Ad Hoc Committee’s findings and

conclusions as to this issue are therefore without legal basis.

Even if competency in Respondent’s 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

Board’s 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 Board’s findings and conclusions as to this issue

must be totally rejected by the Court.

35

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 Board’s 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 Respondent’s 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

36

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.

37

THE COURT: And then my order setting show cause hearing for

today…was 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, 200819

.

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 wasn’t 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 …[Plaintiff’s 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 haven’t

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 wasn’t my

fault [that] we did not file a pre-trial statement.

19

These numbers do not add up.

38

THE COURT: That was a sanction to the court or the other

attorney.

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 wasn’t 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 haven’t 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 wasn’t my fault,

but I believe at the time my speculation [was] that the might have

thought that I wasn’t taking the case seriously, but I was.

… 20

One to the court for $500, the other to opposing counsel for $245. 21 Again, these numbers do not add up.

39

THE COURT: When do you plan to satisfy these judgments or

what is your plan?

MR. OMWENGA: Your Honor, that is why I am paying the

$500 today.

THE COURT: 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 plaintiff’s counsel.

…

THE COURT: …[reading one of the sanction orders from the

issuing judge previously on the case] To date neither plaintiff’s

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. I’ll address them all of

course, Your Honor. (emphasis added).

…

40

THE COURT: Well, here are the orders. I am going to give you

copies of the order that was entered on court docket June 19th

2008.

That is the $1000 order. The order filed October 1st 2007 for $260 to

pay the Plaintiff’s counsel, an order dated and filed actually March

10th

2008 ordering $500…and 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 wasn’t 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.

41

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 Plaintiff’s

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

42

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 unjust22

.

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 Shifaw’s $550 therefore the Board should reject the Board’s

conclusions to the contrary as to each.

II. THE REMAINDER OF THE BOARD’S 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. Gitau’s 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.

43

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

44

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 Judge’s 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 Board’s

45

conclusion to be valid as a matter of logic, then it would have to be the case

(1) Respondent mistakenly believed that Gitau’s 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 Respondent’s 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 court—ever—therefore the Board’s finding on this is both without

legal basis, being it’s 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

Mwihava’s 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

46

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 Respondent’s answer, BX 74.

Respondent has nothing else to add to the record other than to ask the Board

to reject the Ad Hoc Committee’s 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

47

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 Mwihava’s 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

48

thing; Mwihava was probably mistaken that I had when he was

supposed to but that it the extent of how far that went—no 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 Mwiha’s removal. In other words, it was

not Respondent’s role to ultimately decide whether or not

Mwihava’s 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

49

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

Mwihava’s 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 Respondent’s failure to attend Mwihava’s 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 counsel’s 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.

50

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 Mwihava’s case is here; had Judge Barrett continued

Mwihava’s case as the other case was, there would not be a Mwihava case to

be discussing here. Judge Barrett was wrong in denying Respondent’s

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.

51

CONCLUSION

The Board’s finding as to intentional misappropriation is not

supported by the record therefore its recommendation as to disbarment must

be rejected by the Court.

The Board’s 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 Board’s

findings but not recommendation of sanction.

Respectfully submitted,

_________________________

Samuel N. Omwenga, Esq.

13010 Firestone Court

Silver Spring, MD 20904

(240) 377-6536

52

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing Respondent’s

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.