Monday, March 28, 2011

Recycled Boilerplate Gets Attorney Reciprocally Suspended

An attorney who had been sanctioned by the Second and Ninth Circuits has been suspended for six months as reciprocal discipline by the New York Appellate Division for the Second Judicial Department. The court describes the misconduct found by the federal circuits:

...the Second Circuit referred the respondent to the Committee on Admissions and Grievances (hereinafter the CAG) for an investigation and a report. Since September 2005, the Second Circuit had dismissed at least 24 of the 71 petitions for review for which the respondent was counsel of record, based on his failure to comply with that court's scheduling orders. The order also noted that the respondent had submitted boilerplate motions in connection with these defaults, and where the respondent moved to reinstate the defaulted petitions, he "often relied on the same excuse for failing to comply with the applicable scheduling orders: that he had not received a copy of the scheduling order or had not received a response to his motion for an extension of time." The Second Circuit also expressed concern that the respondent had submitted deficient briefs to the court.

By order dated January 3, 2008, the Second Circuit publicly censured the respondent based on the opinion and order of this Court dated December 26, 2007. However, by order dated April 1, 2008, the Second Circuit vacated the January 3, 2008, order on the basis that its Local Rule 46(f) did not provide for such a disposition. In that same order, the Second Circuit referred to the CAG the issue of whether the respondent should be reciprocally disciplined based on the Ninth Circuit's 2007 order. This Court's decision and order dated December 26, 2007 (see Matter of Roman, 48 AD3d 25) provides further details with respect to the Ninth Circuit's determination. In a separate order dated April 1, 2008, the Second Circuit asked the CAG to consider, in determining appropriate sanctions, the conduct referred in both referral orders.

The attorney attributed the motions to reinstate to his partner and secretary, but:

The CAG reviewed all of the briefs cited in the referral order, and found that the respondent had filed defective briefs in at least 3 cases in 2006 and 2007. In one case, he failed to address the central issues, and in a second case, he recycled boilerplate language from other briefs. In a third case, he failed to address the extensive and detailed concerns raised in an Immigration Judge's decision. The outcome in the latter case suggests that the petitioner in that case may have been significantly prejudiced by this omission.

At the hearing before the CAG, the respondent testified that he had not personally prepared the briefs in question. They were drafted by Mr. Singh or his assistant. The respondent testified that he now personally handles all of the Second Circuit cases for which he is counsel of record. The CAG reviewed a sampling of his briefs in 2008 and found significant improvement. Nonetheless, the CAG found that the respondent was responsible for his failure to properly supervise the work of the attorneys in his office with regard to the preparation and filing of deficient briefs, citing Code of Professional Responsibility DR 1-104(b) and (c) (22 NYCRR 1200.5[b], [c]).

The CAG noted both aggravating factors, e.g., prior disciplinary sanctions by the Ninth Circuit for failure to comply with that court's scheduling orders, a pattern of dilatory conduct, multiplicity of offenses, filing of deficient briefs in multiple cases, and vulnerability of the respondent's clients, as well as mitigating factors, e.g., good faith effort to rectify the consequences of his mistakes, remorse, cooperation with the CAG, and the absence of a dishonest or selfish motive. The CAG noted also that "although [the respondent] may not have intended to neglect his clients, it was [his] decision to greatly increase his caseload without making adequate provision to protect his clients from the risks inherent in an over-stretched practice."

With respect to the imposition of discipline, the CAG found that reciprocal discipline was warranted under Rules of the United States Court of Appeals, Second Circuit, Local Rule 46(f) on the basis of the order of suspension issued by the Ninth Circuit, citing Selling v Radford (243 US 46, 60-61). The CAG also found that the respondent's conduct before the Second Circuit warranted discipline.

(Mike Frisch)

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