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.
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[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.