In Re Spraker

FOR THE RESPONDENT           FOR THE INDIANA SUPREME COURT

                                       DISCIPLINARY COMMISSION

Gary M. Spraker, pro se                      Donald R.  Lundberg,  Executive
Secretary
                                        Seth Pruden, Staff Attorney
                                  115 West Washington Street, Suite 1165
                                             Indianapolis, IN 46204





      IN THE

      SUPREME COURT OF INDIANA
______________________________________________________________

IN THE MATTER OF               )
                                    )  Case No. 98S00-0006-DI-379
GARY M. SPRAKER                )
__________________________________________________________________

      DISCIPLINARY ACTION
__________________________________________________________________

                               March 19, 2001


Per Curiam

      This attorney discipline case  arises  from  the  respondent’s  faulty
representation of 50 individuals in  immigration  cases.   In  those  cases,
Respondent Gary M. Spraker either  neglected  his  clients’  legal  affairs,
provided bad legal advice to them, lied to the client or others, or  engaged
in some combination of such misconduct.  Today we  approve  a  Statement  of
Circumstances and Conditional Agreement for  Discipline,  submitted  by  the
Disciplinary Commission and the respondent,  calling  for  the  respondent’s
suspension from the practice  of  law  for  at  least  two  years  for  that
misconduct.
      The respondent is subject to the jurisdiction of this Court by  virtue
of his 1980 admission to practice  law  in  Indiana.   His  Indiana  license
empowers him to engage in a  multi-jurisdictional  practice  in  immigration
law.  Thus, while the respondent’s office is in a different  state  and  the
clients he harmed reside in that state, we are  apparently  the  only  place
where action  against  his  license  can  be  taken.   Our  hearing  officer
reported that persuading these clients to come to Indiana for a hearing  was
proving difficult,  in  light  of  their  special  sensitivity  to  crossing
borders.   Accordingly,  we  authorized  the  hearing  officer  to   conduct
hearings in Illinois in the event that an evidentiary hearing  should  prove
necessary.  This was practical in light of our proximity to the site of  the
events.  It is not always so.   See, e.g., Matter of Tracy, 676  N.E.2d  738
(Ind.  1997)  (attorney  licensed  in  Indiana  but  practicing  before  the
Immigration and Naturalization Service in the state of California).
      The verified complaint  charges  the  respondent  with  50  counts  of
misconduct, each involving a separate case or client of the respondent.   We
find that in counts  1  through  20,  the  respondent  agreed  to  represent
clients in immigration matters.  In each  of  those  cases,  the  respondent
violated our Rules of Professional Conduct for Attorneys at Law,  by,  among
other things, failing to take appropriate action  or  otherwise  failing  to
provide competent representation; failing to  advise  the  client  properly;
lying to or misleading clients, third parties, or  the  Commission;  failing
to  attend  hearings;  failing  to  communicate  with  clients   adequately;
retaining unearned fees; charging unreasonable  fees;  engaging  in  conduct
prejudicial to  the  administration  of  justice;  failing  to  file  timely
appeals, and filing frivolous claims.  His  misconduct  led  to  unnecessary
delay, the deportment of some of his clients, and the loss of employment  or
income by others.  Through this misconduct,  the  respondent  violated  Ind.
Professional Conduct Rules 1.1, 1.2,  1.3,  1.4,  1.5,  1.16(d),  2.1,  3.1,
3.4(c), 8.1(a), and 8.4(c) and (d).[1]
          In counts 21 through 49, clients hired the  respondent  to  assist
them in obtaining permanent residency in the United States.  The  respondent
charged each client $500.  In each case, he  submitted  to  the  Immigration
and Naturalization Service (INS) an application for permanent residency  but
failed to mark the appropriate box or reference on the INS form showing  the
grounds  for  relief  asserted.   In  some  cases  he  did  provide  written
notations,  such  as  “replenishment  of  farm  worker”  or  “suspension  of
deportation,” but  these  were  not  valid  grounds  for  relief.   The  INS
initially determined that the applications were  without  merit  and  issued
notices of intent to deny relief.  That action prompted a hearing before  an
immigration judge at which the client was to “show  cause”  why  the  client
should not be deported.  In each case, the respondent knew  or  should  have
known that the client was ineligible for permanent residency based upon  the
applications  he  prepared.   The  respondent  filed   the   non-meritorious
applications as a means  of  obtaining  employment  authorizations  for  his
clients, without regard to the merits of the  case.   In  fact,  he  ignored
legitimate grounds for obtaining permanent residency status for some of  his
clients, including one client whose child was born  in  the  United  States.
We find that the respondent, by filing frivolous applications for  permanent
residency,  violated  Prof.Cond.R.  3.1.    His   actions   prejudiced   the
administration of justice, in violation of Prof.Cond.R. 8.4(d).
      As to Count 50, we find that the respondent represented an  Australian
client seeking permanent residency  in  the  United  States.   The  client’s
father was a permanent resident.  The respondent  submitted  an  application
for permanent  residency  for  the  client  as  the  “unmarried  son”  of  a
permanent resident.  While the matter was pending, the client  married  and,
therefore, no  longer  qualified  as  an  “unmarried  son”  of  a  permanent
resident.  At that point, the client should have left the United States  and
applied for a new visa  to  allow  him  to  reenter  the  country  on  other
grounds.  The client did not leave, and the respondent failed  to  submit  a
new application.  The respondent falsely claimed to the Commission  that  he
had submitted the new application and that the INS had approved it.  By  the
misstatement, the respondent violated Prof.Cond.R. 8.1(a) and 8.4(c).
      The agreed sanction is a two-year suspension from the practice of  law
without automatic reinstatement thereafter.  As  a  mitigating  factor,  the
respondent and the Commission agree that the respondent experienced  a  very
large influx of cases between 1995 and 1997 due to a change  in  immigration
law.  He was unable to properly manage the case  volume  which  he  accepted
during the period.
      A  substantial  pattern  of  client  neglect  generally   warrants   a
significant period of suspension.  See, e.g., Matter of Warren,  708  N.E.2d
873 (Ind. 1999) (suspension for not less than one year  for  six  counts  of
neglecting  immigration   matters,   aggravating   circumstance   of   prior
discipline).   Here  the  respondent’s  conduct  went  substantially  beyond
neglect.  While the respondent here has never before been  disciplined,  his
misconduct tainted the representation of  some  50  clients,  many  of  whom
faced imminent legal consequences attaching to their entitlement to stay  in
this country.  Given the seriousness  of  the  misconduct,  we  approve  the
agreed sanction only because it is the product of an agreement.
      It is, therefore, ordered that the respondent is hereby suspended from
the practice of law in Indiana for not fewer than two (2)  years,  effective
April 23, 2001.  At the conclusion of that period, he may be  reinstated  to
the practice of law in Indiana upon  his  successful  petition  pursuant  to
Ind.Admission and Discipline Rule 23(4).
      The Clerk of this Court is directed to provide notice of this order in
accordance with Admis.Disc.R. 23(3)(d) and  to  provide  the  Clerk  of  the
United States Court of Appeals for the Seventh Circuit, the  Clerk  of  each
of the United States District Courts in this state, and the  Clerk  of  each
of the United States Bankruptcy Courts in this state  with  the  last  known
address of the respondent as reflected in the records of the Clerk.
      Costs of this proceeding are assessed against the respondent.

-----------------------
[1] Prof.Cond.R. 1.1 requires attorneys to provide “competent
representation” to clients.

Prof.Cond.R. 1.2 provides in relevant part:

     a) A lawyer shall abide by a client’s decisions concerning the
        objectives
      of representation, subject to paragraphs (c), (d) and (e), and shall
      consult
      with the client as to the means by which they are to be pursued.  A
      lawyer
      shall abide by a client’s decision whether to accept an offer of
      settlement
      of a matter. . . .


      (d) A lawyer shall not counsel a client to engage or assist a client,
      in conduct
      that the lawyer knows is criminal or fraudulent, but a lawyer may
      discuss the
      legal consequences of any proposed course of conduct with a client and
      may
      counsel or assist a client to make a good faith effort to determine
      the validity,
      scope, meaning or application of the law.


      (e) When a lawyer knows that a client expects assistance not permitted
      by the
      Rules of Professional Conduct or other law, the lawyer shall consult
      with the
      client regarding the relevant limitations on the lawyer’s conduct.

Prof.Cond.R. 1.3 requires an attorney to act with reasonable diligence and
promptness in representing clients.

Prof.Cond.R. 1.4 provides:

     a) A lawyer shall keep a client reasonably informed about the status
        of a matter
      and promptly comply with reasonable requests for information.


     b) A lawyer shall explain a matter to the extent reasonably necessary
        to permit
      the client to make informed decisions regarding the representation.

Prof.Cond.R. 1.5 requires that a lawyer’s fee be reasonable.

Prof.Cond.R. 1.16(d)  provides in relevant part:

      Upon termination of representation, a lawyer shall take steps to the
extent
      reasonably practicable to protect a client’s interests, such as
giving reasonable
      notice to the client, allowing time for employment of other counsel,
surrendering
      papers and property to which the client is entitled and refunding any
advance
      payment of fee that has not been earned. . . .

Prof.Cond.R. 2.1 requires that a lawyer, in representing a client,
“exercise independent professional judgment and render candid advice.”

Prof.Cond.R. 3.1 provides:

      A lawyer shall not bring or defend a proceeding, or assert or
controvert an issue
      therein, unless there is a basis for doing so that is not frivolous,
which includes
      a good faith argument for an extension, modification or reversal of
existing law.
      A lawyer for the defendant in a criminal proceeding, or the
respondent in a
      proceeding that could result in incarceration, may nevertheless so
defend the
      proceeding as to require that every element of the case be
established.

Prof.Cond.R. 3.4(c) prohibits an attorney from knowingly disobeying “an
obligation under the rules of a tribunal except for an open refusal based
on an assertion that no valid obligation exists.”

Prof.Cond.R. 8.1(a) prohibits attorneys from knowingly making a false
statement of material fact in connection with a disciplinary matter.

Prof.Cond.R. 8.4 provides in relevant part:

      It is professional misconduct for a lawyer to: . . .

     c) engage in conduct involving dishonesty, fraud, deceit or
        misrepresentation;

      (d) engage in conduct that is prejudicial to the administration of
      justice.

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