Public Reprimand of Matthew T. Luening
2017-OLR 3
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The Respondent, Attorney Matthew T. Luening
(“Luening”), age 44, was admitted to the
practice of law in Wisconsin on May 24,
2010, and practices in Milwaukee, Wisconsin.
This reprimand is based on Luening’s conduct
in four separate matters.
In or around August 2011, a client hired
Luening to represent him in removal
proceedings. In a Notice of Hearing in
Removal Proceedings to the client, dated
June 16, 2010, the Immigration Court stated
that the case had been scheduled for a
“MASTER” hearing before the Immigration
Court on September 22, 2011. On September
22, 2011, the client attended the master
hearing with Luening.
At the master hearing, the Immigration Judge
set the client’s individual merits hearing
date for July 2, 2014, and set the due date
for filing an application for relief for
June 18, 2014.
In a Notice of Hearing in Removal
Proceedings to Luening, dated October 21,
2011, the Immigration Court stated that the
case had been scheduled for an “INDIVIDUAL”
hearing before the Immigration Court on July
2, 2014. On July 2, 2014, Luening and the
client appeared at the individual hearing.
Luening had not filed the client’s
application for relief by June 18, 2014, or
at the individual hearing on July 2, 2014.
Luening’s explanation was that he had
mistakenly thought that the individual
hearing on July 2, 2014, was a master
hearing.
Luening stated, “Because of my
mistake and my lack of diligence in ensuring
I had calendared [the client’s] next hearing
type in Immigration Court, I thought that
his July 2014 date was a ‘reset’ master
calendar hearing.”
At the individual hearing, the
Immigration Judge considered Luening’s
explanation to be insufficient, denied a
request for a further continuance, and
ordered the client removed.
In an unfiled copy of an Application
for Cancellation of Removal and Adjustment
of Status for Certain Nonpermanent Residents
(“Form EOIR-42B”), the Part 9 – Signature
section stated, “APPLICATION NOT TO BE
SIGNED BELOW UNTIL APPLICANT APPEARS BEFORE
AN IMMIGRATION JUDGE.”
The client’s signature appeared in
the Part 9 – Signature section, but the
client signed the Form EOIR-42B prior to
appearing before the Immigration Judge.
With respect to the client signing
the Form EOIR-42B without appearing before
an Immigration Judge, Luening stated that he
had the client sign the Form EOIR-42B prior
to the client appearing before the
Immigration Judge, contrary to the
Immigration Court’s rule, in order to file
it with the client’s application for a work
permit.
At the individual hearing on July 2,
2014, while addressing the Immigration
Judge, Luening stated, “I admitted to him
[the client] that I obviously made a huge
mistake in not having filed that with the
Court and having erroneously thought that
this date was not for merits. I explained
to him that he’ll probably have to file a
complaint against me because most likely the
Court will dismiss the case today. And
he’ll have to do that in order to try and
reopen it.”
In an Oral Decision, the Immigration
Judge stated, “The respondent, on July 2,
2014, through counsel, appeared without
having submitted any documents in support of
his request for cancellation of removal or
any and all forms of relief, and indicates
through counsel that there had been a
mistake in calendaring this matter as an
individual calendar case.”
In the Oral Decision, the
Immigration Judge ordered that the client’s
motion to continue was denied, that the
request for non-LPR [non-lawful permanent
resident] cancellation of removal was
dismissed, and that the client was to be
removed and deported from the United States
to Mexico.
With respect to his error, Luening
stated, “I told him [the client] that I
would take full responsibility for my
mistake, help him file a grievance with the
OLR, help him file an appeal with the
Immigration Court based on ineffective
assistance of counsel.” The client accepted
Luening’s assistance with the appeal and
grievance.
In a Board of Immigration Appeals
Decision and Order dated September 29, 2015,
the Board stated, “In any event, based on
the circumstances presented, for the sake of
fundamental fairness, and in the interest of
justice in light of ineffective assistance
of counsel, the respondent’s motion is
granted. Accordingly, the record will be
remanded to the Immigration Judge for
further proceedings to afford the respondent
an opportunity to apply for relief from
removal.”
In the Board of Immigration Appeals Decision
and Order dated September 29, 2015, the
client was listed as pro se on his appeal.
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By failing to file the Form EOIR-42B or any
other form of relief by the June 18, 2014 due
date, resulting in the Immigration Court
dismissing the client’s request for non-LPR
cancellation of removal, and the Court
ordering the removal and deportation of the
client, and by otherwise failing to act in
furtherance of the client’s interests, Luening
violated SCR 20:1.3, which states, “A lawyer
shall act with reasonable diligence and
promptness in representing a client.”
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By having the client sign the Form EOIR-42B
prior to the client appearing before an
Immigration Judge in order to file it with
the client’s application for a work permit,
rather than having the client sign the Form
EOIR-42-B before the Immigration Judge as
required, Luening violated SCR 20:3.4(c),
which states, “A lawyer shall not:…(c)
knowingly disobey an obligation under the
rules of a tribunal, except for an open
refusal based on an assertion that no valid
obligation exists.”
In 1996, a man unlawfully entered the United
States. On January 31, 2005, the man was
found guilty of one count of possession of
cocaine. The court sentenced the man to 30
days in jail.
On July 19, 2013, the man was
arrested for Operating While Under the
Influence of an Intoxicant (“OWI”) (3rd).
On July 25, 2014, the man was found guilty
of OWI (3rd). The court sentenced the man
to 120 days in jail.
The Department of Homeland Security
(“DHS”) learned of the cocaine conviction
when the man was arrested for OWI (3rd).
DHS detained the man in early 2014 and
initiated removal proceedings against him
with the filing of a Notice to Appear with
the Chicago Immigration Court in removal
proceedings.
On or about February 25, 2014, the
man (hereinafter, “the client”) hired
Luening to represent him in the removal
proceedings. On March 18, 2014, Luening
filed, on behalf of the client, a Petition
for a Writ of Habeas Corpus in federal
court.
On April 29, 2014, Luening filed, on
behalf of the client, a Motion to Withdraw
Guilty Plea regarding the client’s cocaine
conviction. On May 13, 2014, the court
denied the Motion to Withdraw Guilty Plea.
On May 20, 2014, Luening filed, on behalf of
the client, a second Motion to Withdraw
Guilty Plea regarding the client’s cocaine
conviction.
In a Decision and Order dated May 27, 2014,
the federal court denied the client’s
Petition for a Writ of Habeas Corpus. On
June 2, 2014, the court denied the second
Motion to Withdraw Guilty Plea. In the
Decision and Order, the court stated, “The
court’s prior decision is fully responsive
to the arguments raised in the defendant’s
second motion, and therefore, the court
denies the defendant’s second motion for the
same reasons set forth in the prior
decision.”
On June 9, 2014, at a hearing in the
removal proceedings before the Immigration
Judge,Luening made a motion for continuance,
which the Immigration Court denied. In an
Oral Decision on June 9, 2014, the
Immigration Judge stated, “On June 9, 2014,
the Court was informed that the respondent’s
motion to withdraw his plea of guilty in
that case had been denied. The Court
inquired of respondent’s counsel as to
whether there is presently any Immigration
relief that the respondent might qualify
for. The Court was informed that there is
not.”
In an Order dated June 9, 2014, the
Immigration Judge ordered that the client be
removed from the United States to Mexico.
Luening did not explain to the client the
several forms of relief from removal the
client could apply for in the removal
proceedings.
The client terminated Luening’s
representation and hired successor counsel
in the immigration proceedings. In an
affidavit dated January 13, 2015, the client
stated, “I don’t know why Attorney Luening
told the judge at my last hearing that there
were no other kinds of relief available in
my case. Based on my conversations with my
new attorney, I know now that I was eligible
to apply for asylum, withholding of removal,
and relief under the Convention against
Torture, and voluntary departure when I was
before the immigration judge.”
Successor counsel filed with the
Board of Immigration Appeals the client’s
appeal brief and motion to remand with his
Form I-589, application for asylum,
withholding of removal, and relief under the
Convention against Torture along with
supporting documentation alleging
ineffective assistance of counsel by
Luening.
In a Decision dated February 27,
2015, the Board of Immigration Appeals
found, “The determination whether the
respondent received ineffective assistance
of counsel, and, if so, whether he was
prejudiced, involves findings of fact.
Therefore, we will remand the record to the
Immigration Judge to address the
respondent’s ineffective assistance of
counsel claim and to decide whether further
proceedings are warranted to allow the
respondent an opportunity to apply for
asylum or other forms of relief from
removal. By remanding the record, we are
not suggesting a desired outcome.”
On May 5, 2015, with the court’s
approval, Luening formally withdrew from
representing the client.
In a Decision dated September 3,
2015, the Immigration Judge found, “that the
respondent was prejudiced by his former
attorney’s ineffective assistance of
counsel. Thus, the Court reopened the
respondent’s case and moved forward on his
applications for relief.”
In an Order dated September 3, 2015,
the Immigration Judge denied the client’s
application for asylum; withholding of
removal; protection under the Convention
Against Torture; and voluntary departure.
The Immigration Judge further ordered that
the client be removed to Mexico on the
charges contained in the Notice to Appear.
The Notice to Appear charged him with
removability for having been convicted of a
controlled-substance offense and for being
present in the United States unlawfully.
On October 2, 2015, successor
counsel, on behalf of the client, filed an
appeal of the Immigration Court’s Decision
and Order dated September 3, 2015. In a
Decision and Order dated March 3, 2016, the
Board of Immigration Appeals discussed each
of the applications the client made to the
Immigration Court, and then dismissed the
appeal.
On March 10, 2016, successor
counsel, on behalf of the client, filed a
Petition for Review in the United States
Court of Appeals for the Seventh Circuit.
The client moved for a stay of
removal and it was denied. The client was
removed to Mexico in early May 2016.
In a Decision dated August 24, 2016,
the United States Court of Appeals for the
Seventh Circuit found, “the Board of
Immigration Appeals later remanded the case
so that the immigration court could address
[the client’s] claim that his lawyer had
provided ineffective assistance by
neglecting to seek relief from removal. On
remand the IJ concluded that [the client]
had been prejudiced by his first lawyer’s
ineffective assistance and permitted him to
apply for relief.”
In the Decision dated August 24, 2016, the
United States Court of Appeals for the
Seventh Circuit dismissed in part and denied
in part the client’s petition for review.
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By failing to prepare and file an application
for asylum; withholding of removal; relief
under the Convention against Torture; and
voluntary departure, resulting in the court
finding that the client was prejudiced by his
ineffective assistance of counsel, and by
otherwise failing to act in furtherance of the
client’s interests, Luening violated SCR
20:1.3, which states, “A lawyer shall act with
reasonable diligence and promptness in
representing a client.”
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By failing to explain to the client the
several forms of relief from removal to the
extent reasonably necessary to permit the
client to make an informed decision in the
removal proceedings, Luening violated SCR
20:1.4(b), which states, “A lawyer shall
explain a matter to the extent reasonably
necessary to permit the client to make
informed decisions regarding the
representation.”
On or about April 11, 2015, a client
hired Luening to represent him in a child
custody and placement matter. Luening
informed the client that he would file a
petition for child custody and then provide
the client with a copy of the petition.
At some point prior to August 4, 2015,
Luening submitted a petition and other
supporting documents to the Clerk of Circuit
Court for filing.
On August 4, 2015, the Clerk of
Circuit Court office returned the documents
to Luening because certain documents were
not notarized and payment for the filing fee
had not been included with the petition.
Luening admitted that he did not notarize
necessary documents prior to submitting them
to the Clerk of Circuit Court for filing and
that he had not included a payment for the
filing fee.
In August 2015, Luening wrongly
informed the client that there was a court
hearing scheduled for August 16, 2015, when
in fact a petition had not yet been properly
filed with the Clerk of Circuit Court.
After Luening mistakenly informed the client
that there was a court hearing scheduled for
August 16, 2015, the client informed him
that August 16, 2015, was on a Sunday.
Thereafter Luening assumed that the court
hearing must be on Friday August 14, 2015,
and then wrongly informed the client that
the court hearing was on August 14, 2015.
Eventually, Luening informed the client that
there was in fact no scheduled court hearing
because the petition had not been filed.
Luening’s earlier representations regarding
a court date occurred because Luening
confused the client’s matter with another
client’s matter.
Luening did not promptly respond to
the client’s text messages and telephone
calls requesting information regarding the
status of the case.
Ultimately, on September 23, 2015,
Luening properly filed a petition;
supporting documents; and a request for a
waiver of fees and costs based on the client
being indigent. On September 23, 2015, a
Circuit Court Commissioner found that the
client was indigent and granted a waiver of
fees and costs in the case.
Luening admitted that his
communication with the client could have
been much better and that he understood the
client’s frustration. At a November 19,
2015 meeting with the client, Luening
refunded the entire $1,500 advanced fee that
he had received from the client and offered
to continue the representation pro bono.
The client decided that he wanted Luening to
continue to represent him in the case.
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By failing to keep the client reasonably and
accurately informed regarding the status of
the case, and by failing to promptly respond
to the client’s text messages and telephone
calls requesting information, Luening
violated SCR 20:1.4(a)(3) and (4), which
state, “A lawyer shall…(3) keep the client
reasonably informed about the status of the
matter; (4) promptly comply with reasonable
requests by the client for information…”
In or around June 2015, a client hired
Luening to represent him in a postconviction
relief matter and an immigration matter.
Luening stated the flat fee for his
representation of the client was $3,600. On
June 30, 2015, the client’s mother, on
behalf of the client, made an advanced fee
cash payment to Luening in the amount of
$1,800, which Luening deposited directly
into his business account. On August 5,
2015, the client’s mother made another
advanced fee cash payment to Luening in the
amount of $1,800, which Luening again
deposited directly into his business
account.
There was no written fee agreement for
Luening’s representation of the client.
Luening did not communicate to the client in
writing the scope of his representation or
the basis or rate of his fee or expenses for
which the client would be responsible.
Luening did not communicate to the client in
writing the purpose and effect of the
advanced fees that were paid to him.
On July 10, 2015, Luening, on behalf
of the client, filed a Motion for
Postconviction Relief requesting that the
court vacate the client’s plea and reopen
the criminal case. On February 19, 1998,
the client had been found guilty of False
Imprisonment, a class E felony, and
sentenced to 18 months in state prison.
On August 3, 2015, Luening filed a
Stay of Deportation or Removal in the
immigration proceedings. On August 27,
2015, the court denied the client’s motion
for postconviction relief.
Luening had requested the 45-day stay of
removal in order to give himself time to
file a motion for postconviction relief and
get a hearing in the criminal case.
According to the DHS website, to date the
client is still in custody at an Immigration
and Customs Enforcement Detention Facility.
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By failing to communicate to the client in
writing the scope of his representation or
the basis or rate of his fee or expenses for
which the client would be responsible; and
by failing to communicate to the client in
writing the purpose and effect of the
advanced fees that were paid to him, Luening
violated SCR 20:1.5(b)(1), which states:
The scope of the representation and
the basis or rate of the fee and expenses
for which the client will be responsible
shall be communicated to the client in
writing, before or within a reasonable time
after commencing the representation, except
when the lawyer will charge a regularly
represented client on the same basis or rate
as in the past. If it is reasonably
foreseeable that the total cost of
representation to the client, including
attorney’s fees, will be $1000 or less, the
communication may be oral or in writing.
Any changes in the basis or rate of the fee
or expenses shall also be communicated in
writing to the client.
and SCR 20:1.5(b)(2), which states:
If the total cost of representation to
the client, including attorney’s fees, is
more than $1000, the purpose and effect of
any retainer or advance fee that is paid to
the lawyer shall be communicated in
writing.
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By depositing the advanced fee payments
directly into his business bank account,
without acting in a manner indicating an
intention to use the alternative fee
placement measures stated in former SCR
20:1.15(b)(4m), in effect prior to July 1,
2016, Luening violated former SCR 20:1.15(b)
(4), in effect prior to July 1, 2016, which
stated, “Except as provided in par. (4m),
unearned fees and advanced payments of fees
shall be held in trust until earned by the
lawyer, and withdrawn pursuant to sub. (g)…”
Luening has no prior discipline.
In accordance with SCR 22.09(3), Attorney
Respondent is hereby publicly reprimanded.
Dated this 28 day of February, 2017.
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