Monday, June 15, 2009

More Reciprocal Discipline News

An interesting day for reciprocal discipline fans. The National Organization of Bar Counsel has posted a recent decision summary:

A lawyer may be subject to reciprocal discipline in a jurisdiction where that lawyer is not licensed.

Carl M. Weideman, III, who was licensed to practice law in Michigan in 1992, submitted a letter to the United States Court of Appeals for the Second Circuit stating that Michigan had suspended his law license for thirty days. The immigration practitioner represented that he could not appear before the federal tribunal over that period and requested that the Second Circuit adjourn a matter that he had pending before it. The Second Circuit usually initiates reciprocal disciplinary action following notification of an attorney’s suspension by a state bar or the bar of another court. However, after a preliminary investigation, the Second Circuit decided to refer the matter to its Committee on Admissions and Grievances.

The Second Circuit’s initial review revealed that Weideman had been admonished in Michigan on five prior occasions between 2000 and 2005 for incompetence, lack of diligence in attending to legal matters, and failing to communicate with a client. Several admonishments involved immigration matters. Also, Weideman was the subject of a suspension order that was being appealed at the time that he sent his letter to the Second Circuit. The Second Circuit then had an opportunity to review the report of the Michigan hearing panel that led to the thirty day suspension, Grievance Administrator v. Weideman , Case No. 06-117-GA, Michigan ADB (Michigan March 30, 2007). The hearing panel noted that, during the course of proceedings. Weideman had testified that he had improved his office procedures and practices that led to his previous admonitions in immigration matters, but opined that his testimony was “very vague and unpersuasive” and that the changes that he made were inadequate.

The Second Circuit reviewed Weidman’s license status in the Second Circuit. Court records revealed that one “Carl M. Weideman” had been admitted to the Second Circuit bar in 1998, but the listing did not include “III” after the surname. It should be noted, however, that there is a history of lawyers named Carl M. Weideman who have been licensed to practice in Michigan. See e.g. ,  http://en.wikipedia.org/wiki/Carl_M._Weideman.  Curiously, in an appearance that Weideman III filed before the Second Circuit, he left blank the space for his date of admission to that court’s bar and instead stated that he had been admitted to another unspecified “Federal/State Bar” in 1997. The Committee on Admissions and Grievances was asked to determine Weideman’s actual standing with the Court, perform a more thorough and complete investigation and submit a report with its recommendations for discipline, if any. 

Weideman asserted in his initial letter to the Court that he had one appearance of record in a case pending before it. In its preliminary investigation, the Court discovered that he actually had two. He failed to mention a case that had been pending without significant activity since its filing in 2005, Zeft v. Ashcroft , 05-0191-ag. In 2005, Weideman indicated to the Second Circuit that he was considering transferring the case to the Eleventh Circuit, but the docket sheet did not indicate that a transfer request had been filed. A scheduling order was filed in that matter by the Second Circuit in 2007. The Second Circuit also found that it had been critical of Weideman in other immigration cases. For example, in Urita v. Gonzalez , 02-4553-ag, the Second Circuit ruled that his client waived two of major arguments by failing to comply with a federal rule of appellate procedure. In particular, the Second Circuit held that Weideman’s arguments were not supported by substantial evidence, were deficient because he merely recited the substantial evidence standard, and merely made conclusions about evidence without citing the record or connecting the law to the facts. The Court also noted that it had also recently dismissed Gashaj v. Gonzalez , 07-0438-ag, in which Weideman failed to file a certain necessary document. The Court said it was unclear whether the default constituted misconduct, but Weideman did not request a time extension to comply with the requirements, move to withdraw from the case, or respond to the Court’s notification that the omission needed to be cured. In other appeals where defaults occurred, Weideman’s motions for leave to file late briefs consisted of boilerplate verbiage and factual assertions lacking a clear connection to the relief requested.   

While the Committee on Admissions and Grievances was investigating, Weideman was suspended in Michigan for four years for serious misconduct involving funds entrusted to him as an executor of an estate and misrepresentations regarding the availability of those funds. Grievance Administrator v. Weideman , Case No. 05-79-GA, Michigan ADB (Michigan September 28, 2007). Weideman loaned estate monies to himself without court approval and with no notice to interested parties in violation of the California Probate Code. He told no one except his father, who was his law partner and was also named Carl M. Weideman, about the loan. The loan did not rise to the level of theft or misappropriation in the eyes of the hearing panel. The panel did not find that Weideman had commingled and misappropriated estate funds, but did say that he violated his fiduciary duty to the estate and its beneficiaries. The ADB reluctantly deferred to the panel’s uncontested findings. The ADB noted that such serious misconduct typically received sanctions ranging from suspension requiring reinstatement proceedings to disbarment. The ADB warned that a secret loan arrangement by a lawyer makes “the likelihood of actual embezzlement…so great” that such conduct should in the future generally be regarded as tantamount to knowing conversion.

The Committee on Admissions and Grievances eventually concluded that Weideman had never been admitted to appear in the Second Circuit. Therefore, Weideman had repeatedly made appearances that violated a local rule requiring counsel of record to be admitted before the Court. Interestingly, Weideman never addressed any of the evidence considered by the Committee. He failed to respond to any of the communications from the Committee and did not participate in the Committee’s proceedings. The Committee considered Weideman’s failure to cooperate to be an aggravating factor and constitute an independent basis for discipline.

The Committee findings raised an issue as to whether or not the Second Circuit had the authority to take disciplinary action when he was not licensed in that jurisdiction. The Committee determined that they could proceed without a hearing, and recommend that the Second Circuit take action against Weideman. The Committee cited Fed. R. App. P. 46(c), which provides that a court of appeals can discipline any attorney who appears before it. Therefore, Weideman was subject to the Court’s discipline despite the fact that he was not a member of the bar of the Court.

The Committee opined that federal courts perform only a “limited review” before imposing reciprocal discipline, citing an old decision, Selling v. Radford , 243 U.S. 46, 50-51 (1917). If Weideman were a member of the Court’s bar, the Michigan suspension would have triggered a reciprocal suspension, the Committee believed, pointing to In re Selling , 295 F. 3d 331 (2d. Cir. 2002). The Committee advised the Court to give the Michigan suspension reciprocal effect, notwithstanding the fact that Weideman was not admitted to the Court’s bar and to further discipline him, in light of his Michigan misconduct and suspension, his repeated improper appearances before the Court in violation of Local Rule 46(d), his failure to cooperate with the committee’s investigation and several aggravating factors. The committee recommended that Weideman should not be permitted to seek admission to the Court’s bar until two years after the completion of his Michigan suspension, nor be permitted to practice before the Court under any circumstances until he successfully sought admission to the Court’s bar.

After receipt of the Committee’s report, the Court became aware of still further discipline imposed on Weideman in Michigan. Grievance Administrator v. Weideman , Case No. 07-162-GA, Michigan ADB (Michigan June 16, 2008). Weideman’s license was revoked and he was ordered to pay restitution in the aggregate of $6700 to three clients. The hearing panel held that, among other things, Weideman’s neglect of an immigration appeal in the Sixth Circuit Court of Appeals. The panel said that Weideman appeared to be preying on vulnerable clients and demonstrated a pattern of neglect in client immigration matters. Because the clients had run out of status, they became fugitives without their knowledge, subject to the possibilities of arrest, detention and deportation. Two of the clients experienced those consequences.

The Second Circuit, taking the revocation into account, held that, although the nature of the discipline imposed by Michigan had changed, no additional proceedings were required. The Second Circuit accepted the committee’s recommendation that Weideman should not be permitted to apply for admission to the Court’s bar until two years after he is in good standing in Michigan. The Court also instructed Weideman that he must disclose its order in any future attorney disciplinary proceeding or bar application, or if required by any bar rule or court order. The Clerk of the Court was directed to release the order on the Court’s website and to make copies of the order available to the public in the same manner as all other unpublished decisions of the Court.

The case is In re Weideman , 07-9035-am (2d. Cir. May 4, 2009).

In D.C., the court mposed reciproal discipline based on Maryland orders imposing sanctions against lawyers who were not admitted in Maryland. (Mike Frisch)

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Comments

That will teach him not to disclose. Query if it were even true that Michigan's action prevented him from appearing before the Second Circuit? I don't think so.

Presuming that the attorney is not a member of its bar, query also whether the Second Circuit does actually have the subject matter jurisdiction to order that "he must disclose its order in any future attorney disciplinary proceeding or bar application, or if required by any bar rule or court order"?

Stephen

Posted by: FixedWing | Jun 15, 2009 10:04:36 AM

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