VIRGINIA:

BEFORE THE VIRGINIA STATE BAR DISCIPLINARY BOARD

IN THE MATTER OF

DENISE ANN MANISCALCO

VSB DOCKET NOS. 01-051-2303

02-051-1868


ORDER OF PUBLIC REPRIMAND AND SUSPENSION


These matters came on October 24, 2003, before a duly convened panel of the Virginia State Bar Disciplinary Board (the "Board"), consisting of Robert L. Freed, Chair, V. Max Beard, Lay Member, Richard J. Colten, Robert Eicher, and David R. Schultz, pursuant to a Subcommittee Certification from the Fifth District Committee Section I. The Virginia State Bar was represented by Senior Assistant Bar Counsel, Noel D. Sengel. Denise Ann Maniscalco, ("Respondent") was present pro se. The proceedings were recorded by Donna T. Chandler, a registered professional reporter of the firm of Chandler & Halasz, P.O. Box 9349, Richmond, Virginia 23227, (804) 730-1222.
The hearing commenced at 9:00 a.m. in Courtroom B of the State Corporation Commission, Tyler Building, 1300 East Main Street, Richmond, Virginia 23219. The Chair polled the members of the Board as to whether any of them had a personal or financial interest or bias in these matters which would preclude any of them from serving fairly and objectively on the panel. Each member, including the Chair, answered in the negative.
Docket Number 02-051-1868 "The Arif Complaint"
The Board first heard matters pertaining to a complaint filed against the Respondent by Nadeem Arif. The hearing proceeded with the admission of a stipulation of facts endorsed by the parties, numerous documents offered by the Bar and Respondent and admitted into evidence, and oral testimony from Nadeem Arif, James R. Dooley, Jr., an investigator for the Virginia State Bar and Denise Ann Maniscalco, the Respondent.
Following argument by the parties, the Board retired to deliberate. The Board found the following facts to have been established by clear and convincing evidence as to the Arif complaint.
At all times relevant to this matter, Denise Ann Maniscalco has been an attorney licensed to practice law in the Commonwealth of Virginia.
The Complainant, Nadeem Arif, hired the Respondent in May of 2000, to file a divorce for him. He paid her $500.00 plus court costs and court reporter fees. The Respondent prepared a Bill of Complaint and gave a copy to Mr. Arif.
The Respondent informed Mr. Arif that she had filed a Bill of Complaint on his behalf in the Circuit Court of Fairfax County, service to be by publication because the defendant was in Pakistan, and his deposition and that of his witness was taken on August 28, 2000, at her office. The Respondent provided the court reporting service transcribing Mr. Arif's deposition with the Chancery Number 167859 for the style of the case. Towards the end of September or the beginning of October 2000, the Respondent presented Mr. Arif with a purported copy of a certified Final Decree of Divorce with the Chancery Number 167689, entered on September 25, 2000, by the Honorable Leslie Alden. The Chancery Number on the purported Arif Final Decree was the Chancery Number assigned by the Court to another divorce action which the Respondent had previously handled, Ampaw v. Ampaw. The purported Arif Final Decree also contained incorrect information. It stated that there were no children born of the Arif marriage when in fact there were children born of the marriage.
In December of 2000, Mr. Arif's wife, who by this date had returned from Pakistan, filed a petition in Juvenile and Domestic Court in Prince William County, for a protective order. The hearing was set for January 8, 2001. Mr. Arif pointed out the mistake in the purported Final Decree to the Respondent in the omission of children of the marriage. The Respondent promised to correct it, refund to Mr. Arif the $500.00 in advanced fees that he had paid her for the divorce, and to represent him for free at the January hearing. Just prior to the case being called on January 8, 2001, the Respondent entered into an agreed protective order without the informed consent of Mr. Arif. The protective order required Mr. Arif to refrain from "further acts of family abuse," and required him to "provide suitable alternative housing" for his wife and children within sixty days. The Respondent failed to provide Mr. Arif with a copy of the order. The Respondent's understanding was that Mrs. Arif was to locate suitable alternative housing for which Mr. Arif was to pay. The Respondent advised Mr. Arif accordingly. Subsequently, after Mrs. Arif did not have suitable alternative housing, Mr. Arif was held in contempt of court for failing to provide Mrs. Arif with suitable alternative housing. The Respondent appealed the contempt order, which was dismissed after Mr. Arif located suitable alternative housing for Mrs. Arif.
5. In August of 2001 the Respondent appeared on Mr. Arif's behalf at a pendent elite child support hearing. Mr. Arif then resided in California. The Respondent advised Mrs. Arif that he did not need to attend. The Respondent agreed to an order requiring Mr. Arif to pay $1000.56 per month without his authorization, at the time he was already paying $869 per month for alternative housing, and the Respondent failed to inform Mr. Arif of the order and to provide a copy to him. Mr. Arif learned about the support order from Mrs. Arif. Shortly thereafter, when Mr. Arif learned from his wife of the support decree and the fact that there was a problem with the Final Decree of Divorce, he fired the Respondent.
6. In August of 2001, Mr. Arif learned from Mrs. Arif that her lawyers had said the divorce decree received from the Respondent was not legitimate. In September of 2001 Mr. Arif hired another lawyer to look into his divorce. This lawyer discovered that the purported Final Decree of Divorce which the Respondent had given Mr. Arif did not exist in the Clerk's Office, and that the chancery number on the purported Final Decree of Divorce matches the chancery number of a different divorce case handled by the Respondent. Thereafter, on September 6, 2001, the Respondent filed a Bill of Complaint for divorce on Mr. Arif's behalf without his knowledge or authorization.
7. During the period from October 2001 to December 2001, the Respondent paid the total sum of $875 directly to Mrs. Farzana Arif, wife of Complainant and, by pacifying Mrs. Arif, thereby concealed from Mr. Arif the correct amount of his support obligations under the previously entered order of August 2001. Two of the three checks written to Mrs. Arif during that time were written on Respondent's trust account, there being no funds on deposit in that account to Mr. Arif's credit for such purpose.
The purported Final Decree of Divorce, a copy of which was given to Mr. Arif by the Respondent, was in fact a fabricated document, wrongfully created by the Respondent, and deliberately intended to deceive Mr. Arif into believing he was divorced when in fact he was not.
This Board notes the Respondent's explanation that, when she took Mr. Arif's divorce depositions, she mistakenly believed the Bill of Complaint had been filed. The Board also notes the Respondent's explanation that the false Final Decree of Divorce resulted from mistake and confusion in cutting and pasting from other decrees of divorce and the assembling of pages. The circumstantial evidence is grossly inconsistent with the Respondent's explanations, and the Board does not find them to be credible.
In consideration of the foregoing, the Board finds by clear and convincing evidence that Respondent has engaged in professional misconduct as follows:
RULE 1.1 Competence

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

RULE 1.3 Diligence

(a) A lawyer shall act with reasonable diligence and promptness in representing a client.

(b) A lawyer shall not intentionally fail to carry out a contract of employment entered into with a client for professional services, but may withdraw as permitted under Rule 1.16.

A lawyer shall not intentionally prejudice or damage a client during the course of the professional relationship, except as required or permitted under Rule 1.6 and Rule 3.3.

RULE 1.4 Communication

(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.

(c) A lawyer shall inform the client of facts pertinent to the matter and of communications from another party that may significantly affect settlement or resolution of the matter.

RULE 8.4 Misconduct

It is professional misconduct for a lawyer to:

(b) commit a criminal or deliberately wrongful act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer;

engage in professional conduct involving dishonesty, fraud, deceit or misrepresentation;

Docket No. 01-051-2303 "The Mustapha Complaint"

After hearing the Arif complaint the Board heard matters pertaining to a complaint filed against the Respondent Jeneba Mustapha. The hearing proceeded with the admission of stipulation of facts endorsed by the parties. Numerous documents offered into evidence by the Bar and Respondent were admitted and oral testimony was received from Bar investigator James R. Dooley, Jr. and Denise Ann Maniscalco, the Respondent.
Following argument by the parties the Board retired to deliberate. The Board found the following facts to have been established by clear and convincing evidence as to the Mustapha complaint:
At all times relevant to this matter Denise Ann Maniscalco has been an attorney licensed to practice law in the Commonwealth of Virginia.
2. In March of 1998, the Complainant, Jeneba Mustapha, was randomly selected in the Diversity Visa Program for fiscal year October 1, 1998 to September 30, 1999 (also known as the Lottery) to get a number to receive permanent resident alien status from the Immigration and Naturalization Service (INS). In October of 1998, Ms. Mustapha hired the Respondent to help her file her I-485 application for permanent resident alien status with INS. There was no written fee agreement.
3. The Respondent claimed that in October of 1998, she filed Ms. Mustapha's application with the INS office in Vermont, but that the application was rejected because it was filed too early, before Ms. Mustapha's lottery number had been reached. Respondent stated that the rejection letter from INS, dated October 22, 1998, applies to Ms. Mustapha's case. However, there is no information on this letter indicating to which applicant it applies. The Respondent does not have a copy of the I- 485 or any proof of mailing.
4. The Respondent also claims that she filed an I-589 application for political asylum on behalf of Ms. Mustapha with the INS office in Texas. The Respondent does not have a dated copy of this application nor any proof of mailing. There has been no response or contact from INS or the Bureau of Citizenship and Immigration Services (Bureau), formerly the INS, regarding this asylum application.
5. Between October of 1998 and early 2001, Ms. Mustapha called the Respondent periodically to find out what was happening with her application. The Respondent informed her that she had filed the application, and that Ms. Mustapha would be called for an interview with INS.
6. By early 2001, Ms. Mustapha was concerned that she still had not heard anything from INS regarding her application or an interview, and she contacted INS. She was told by INS that there was no record of an I-485 application having been filed on her behalf. Ms. Mustapha filed a Bar complaint as a result of receiving this misinformation. Ms. Mustapha called the Respondent and asked for a copy of her file. The Respondent understood this to mean that Ms. Mustapha was hiring new counsel, and took no further action in the matter. Ms. Mustapha did not intend to hire new counsel and in fact did not.
7. INS now confirms that an I-485 was filed on Ms. Mustapha's behalf on September 17, 1999 with an alien number of # A 78-147-732. INS states that the file was active until 2001 when it was placed in retirement status, or in storage, because of a lack of response to a letter. The Bureau failed to mail the letter to the Respondent, counsel of record, and instead mailed it to Ms. Mustapha at an old address. As of October 2, 2003, because of the Bureau's mistake, the matter is being re-calendered and is back on active status. Ms. Mustapha should be called for an interview within six to eight months.
In consideration of the foregoing the Board finds that Respondent has engaged in professional misconduct as follows:
DR 6-101. Competence and Promptness.

(A) A lawyer shall undertake representation only in matters in which:

(1) The lawyer can act with competence and demonstrate the specific legal knowledge, skill, efficiency, and thoroughness in preparation employed in acceptable practice by lawyers undertaking similar matters, or

(B) A lawyer shall attend promptly to matters undertaken for a client until completed or until the lawyer has properly and completely withdrawn from representing the client.

(C) A lawyer shall keep a client reasonably informed about matters in which the lawyer's services are being rendered.

RULE 1.1 Competence

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

RULE 1.3 Diligence

A lawyer shall act with reasonable diligence and promptness in representing a client.

RULE 1.4 Communication

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

Following the Board's announcement of its findings in both the Arif complaint and
the Mustapha complaint, the Board received evidence of mitigation and prior disciplinary matters before determining what, if any, discipline would or should be imposed on the Respondent. The Bar stated that the Respondent had no prior disciplinary record, but argued for revocation of the Respondent's license to practice law.
The Respondent did not offer any witnesses in her behalf, but did testify in her behalf at some length, and sometimes emotionally, but with sincerity. The Respondent spoke of the many hours she had worked pro bono and in CLE programs during the more than nine years of practice. She presented a number of letters of thanks and praise from other lawyers and clients related to her work in the area of immigration law.
The Respondent denied any intent to deceive Mr. Arif but admitted that the copy of the "entered" Final Decree of Divorce she gave him was a mistake made in her office for which she was responsible. The Respondent stated that in some respects her professional life had been out of control because of the unexpected administrative burden of managing her own office combined with her volume of clients and of pro bono work she could not bring herself to decline. The Respondent also stated that during the period of the misconduct violations she was out of the office from time to time because of the illness and later the death of family members.
The Board considers the Respondent's acts and omissions in her representation of Mr. Arif to be serious. Indeed, they strike at the core of the integrity rightfully demanded of lawyers to instill public confidence in the profession and in the administration of justice, and they are an anathema to those of us who strive to comply with our Rules of Professional Conduct. Those acts and omissions, standing alone, would constitute good cause to revoke the Respondent's license to practice law.
The Board does not impose revocation, however, because of the evidence in mitigation of the misconduct. Taken in the context of the number and the content of the Respondent's years of practice and particularly her extensive pro bono contributions, the Respondent's acts and omissions of misconduct are viewed as an aberration in professional behavior.
For the foregoing reasons, the Board is of the unanimous opinion that appropriate sanctions for the misconduct found are a three year suspension of Respondent's license to practice law in the Arif matter and a public reprimand in the Mustapha matter. Accordingly, it is ORDERED that the Respondent's license to practice law in the Commonwealth of Virginia be and hereby is SUSPENDED, effective immediately, for a period of three (3) years for the misconduct found in the Arif matter, and that the Respondent be and hereby is issued a PUBLIC REPRIMAND for the misconduct found in the Mustapha matter.
This Order shall be attached to and is hereby incorporated by reference in the Second Revised Summary Order entered in this matter on October 30, 2003, which shall govern with respect to the effective date of the Respondent's suspension.
It is ORDERED that pursuant to the provisions of Part Six, Section IV, Paragraph 13(M) of the Rules of the Supreme Court of Virginia, as amended, the Respondent shall forthwith give notice by certified mail, return receipt requested, of the suspension of her license to practice law in the Commonwealth of Virginia to all clients for whom she is currently handling matters and to all opposing attorneys and presiding judges in pending litigation. The Respondent shall also make appropriate arrangements for the disposition of matters then in her care in conformity with the wishes of her clients.
It is further ORDERED that an attested copy of this Order shall be mailed by certified mail, return receipt requested, to the Respondent, Denise Ann Maniscalco, at her last know address of record with the Virginia State Bar, 1325 18th Street, NW, Washington, DC 20036, and to Noel D. Sengel, Senior Assistant Bar Counsel, Virginia State Bar, 100 North Pitt Street, Suite 310, Alexandria, Virginia 22314-3133.
The Clerk of the Disciplinary System shall assess costs pursuant to Part Six, Section IV, Paragraph 13.B.8.c. of the Rules of the Virginia Supreme Court.

Enter this Order this 12th day of November, 2003.
VIRGINIA STATE BAR DISCIPLINARY BOARD

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Robert L. Freed, 2nd Vice-Chair