Wednesday, May 5, 2021

Reciprocal Censure

A reciprocal censure has been ordered by the New York Appellate Division for the First Judicial Department for sanctions imposed in federal court

By order entered December 7, 2010, the United States Court of Appeals for the Second Circuit publicly reprimanded respondent for her repeated failure to comply with that court's scheduling orders, causing her to default on 28 of 41 petitions she had submitted for review between 2005 and 2007 and leading to dismissal of some of the appeals. Based upon that order, this Court, on February 28, 2012, imposed reciprocal discipline on respondent in the form of a public censure (Matter of Gell, 94 AD3d 116 [1st Dept 2012]).

Thereafter, in 2017, a grievance panel for the Second Circuit directed respondent to show cause why disciplinary or other corrective measures should not be imposed based on her apparent continued pattern of defaults, specifically in 41 cases that were pending, with one exception, between 2013 and July 2017. Respondent represented in her response to the order to show cause that all future filings would be timely. Nevertheless, in February 2019, the Second Circuit referred respondent to the court's Committee on Admissions and Grievances (CAG) for investigation and report, noting that, notwithstanding her assurances, she or her firm had recently defaulted in their filing of another appeal, resulting in its dismissal, and had been untimely with respect to several other filings.

On October 29, 2019, the CAG conducted a hearing at which respondent and two character witnesses testified. At the conclusion of the hearing, respondent advised the panel that she would be requesting leave to voluntarily withdraw from the Second Circuit bar and that she would voluntarily undertake, at her own expense, a two-year monitoring period by a third party. On April 21, 2020, the CAG issued its report, which concluded that there was clear and convincing evidence that respondent had engaged in a "pattern of misconduct" based primarily on her failure to timely file required documentation in more than 40 proceedings, resulting in six appeals being dismissed. The panel recommended a public reprimand and that respondent be permitted to voluntarily withdraw from the Second Circuit bar.

In its ensuing report, the CAG first noted that the court's 2019 referral order identified a pattern of untimely filings in the 41 cases it cited in its 2017 order to show cause in which respondent is, or was, counsel of record, the 14 additional cases in which she had defaulted since the 2017 order to show cause, as well as six immigration agency proceedings cited in the 2019 referral order where respondent's personal involvement in the administrative proceedings was unclear. The CAG noted that respondent "largely took responsibility for her defaults" and expressed "deep remorse . . . for the case management problems" she described; however, while respondent proffered various explanations, including unresponsive or uncooperative clients, miscalculated deadlines, calendaring mistakes, technology issues and that she had been sick, the CAG found that she had failed to comply with deadlines for filing appeal briefs in 31 cases; and that on over 40 other occasions she had failed to file paperwork in a timely fashion. The court found these failures to comply to constitute violation of New York Rules of Professional Conduct (RPC)(22 NYCRR 1200.0) rules 1.3(b)(neglect of a legal matter), 8.4(d) (conduct prejudicial to the administration of justice) and 8.4(h) (conduct that adversely reflects on the lawyer's fitness as a lawyer)

Here

Respondent does not oppose the imposition of reciprocal discipline but urges that the sanction be no greater than a public censure, pointing to the Second Circuit's having declined to follow the CAG's finding that her conduct was part of a "wider pattern" that included the immigration courts when it made it clear that its reprimand was based solely upon her conduct before the Second Circuit, as well as the mitigating factors upon which that court relied.

The Second Circuit's imposition of a public reprimand is in accord with cases in this Department where attorneys were censured for neglecting client matters, some including immigration matters, and where there was mitigation and a disciplinary history (see e.g. Matter of Salomon, 78 AD3d 115 [1st Dept 2010]; Matter of Weiner, 10 AD3d 92 [1st Dept. 2004]; Matter of Lenoir, 287 AD2d 243 [1st Dept 2001]). Respondent's resignation from the Second Circuit bar and her decision to focus her practice before the immigration courts, confirm that censure is an appropriate sanction, conditioned on respondent's participation in a two-year monitoring program with a third party, which she has already committed to doing.

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2021/05/a-reciprocal-censure-has-been-ordered-by-the-new-york-appellate-division-for-the-first-judicial-department.html

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