Tuesday, February 28, 2012

Public Not Private

The New York Appellate Division for the First Judicial Department rejected a plea for private discipline and imposed a public censure as reciprocal discipline based on a sanction imposed by the United States Court of Appeals for the Second Circuit.

The misconduct involved the mishandling of appeals in a number of immigration matters:

Respondent conceded that between December 2005 and August 2007, she defaulted on 28 of 41 petitions for review she filed in the Second Circuit and four petitions filed in the Third Circuit for failing to comply with scheduling orders. However, respondent argued that her conduct did not prejudice any clients and that, indeed, some dismissed appeals were reinstated and other defaults were part of her strategy to gain time to pursue other, more advantageous forms of relief. Respondent further testified that in her experience, the court liberally reopened cases that were dismissed for noncompliance with scheduling orders and it was not until she received the referral order from the CAG that she realized the court was critical of repeated failure to comply with those orders. Although not mentioned in the original referral order, respondent addressed the fact that she had filed at least 19 of the defaulted petitions prior to being admitted in the Second Circuit on March 3, 2006. Respondent admitted that she did not research whether she needed to be admitted for purposes of filing petitions for review, and testified that she relied on information conveyed by an associate in her firm, who had been advised by a court employee that, pursuant to the court rules, an attorney litigating before the court need not be admitted to the bar of the Second Circuit unless she intended to orally argue before the court.

 There was mitigation:

In support of mitigation, the [Second Circuit"s Committee on Admissions and Grievances] noted that respondent expressed a genuine commitment to her clients' best interests, including often working for clients who did not pay their fees and for non-responsive clients, evidencing the absence of a dishonest or selfish motive; that she testified about certain medical issues that arose during the time of the first admonition; that she was forthcoming and cooperative with the CAG's investigation; that she expressed credible remorse for her misconduct; that she had taken good faith steps to prevent any recurrences by significantly limiting her caseload and committing to a diligent monitoring of court deadlines; that she appears to be a committed practitioner who provided quality work notwithstanding challenging situations; and that she appears to be well respected in the legal immigration community, as evidenced by her having worked for the Lawyers Community for Human Rights and her having acted as the chairperson of the Federal Bar Association's immigration law committee.

The court the mitigation insufficient to warrant non-public discipline. (Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2012/02/the-new-york-appellate-division-for-the-first-judicial-department-rejected-a-plea-for-private-discipline-and-imposed-a-public.html

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