Court Reprimands Delinquent Attorney

by Mike Mintz on May 14, 2012 · 0 comments

in Ethics,martindale.com,Professional Development

Attorney, Lawrence Spivak, was recently reprimanded by the Second Circuit for defaulting or otherwise failing to comply with the court’s scheduling orders in ten cases, causing the dismissal of all ten cases.  The Second Circuit adopted the recommendations of the Grievance Committee that Spivak be publicly reprimanded and required to submit to periodic status reports.  If such a status report is not filed in a timely manner or is defective, the Committee may impose additional disciplinary measures including suspension from the Second Circuit without a further hearing.

Factual Background

Lawrence Spivak graduated from Hofstra Law School twenty-five years ago, and he is a member of the New York and New Jersey bars.  He spent his early years as a labor lawyer before switching to real estate law, among other areas.  He opened his own practice over ten years ago.  As of five years ago, his practice was primarily immigration law, with some real estate and civil litigation on the side.  His immigration cases consisted mainly of  family-based petitions and federal appeals. He was the sole attorney in his office.  He was handling about twenty cases before the Second Circuit in 2007.  He maintained a Microsoft Word calendar for his federal appeal deadlines and a separate calendar for appointments.  In 2007, ten of his clients transferred their cases to a different attorney.  He claims that his preoccupation with transferring these clients’ files prevented him from meeting his other professional obligations. To transfer the files, he claims he had to retrieve the files from storage, review them and produce photocopies before sending them to the new attorney of record.  He also claims that family problems prevented him from meeting his professional obligations, including deadlines. He claimed that he had to return to his residence mid-day on a regular basis to deal with these family problems.  In 2008, he stopped accepting referrals for appeals because he recognized that he could not handle that type of work anymore.  From 2009 to the hearing in 2010, he only handled five federal appeals.  As of the date of the hearing, Spivak’s practice was overwhelmingly real estate and only a little immigration law. He now has two law offices. He is the sole attorney in one of the offices. In the second office, there is a part-time assistant with a special needs child who helps Spivak handle matters for his Bangladeshi clients. This assistant does not work a full week at Spivak’s office, and Spivak pays her as an independent contractor. He recently changed his office procedures and maintains a paper calendar and an electronic calendar on Google.com. At the time of the hearing, only two cases remained before the Second Circuit. One of these cases was in default but not dismissed by the Court.

Spivak admitted that three disciplinary complaints were filed against him in New York. Two of the complaints were dropped and one complaint resulted in a letter of private admonition from the First Department Disciplinary Committee.  In actuality there were five complaints filed against Spivak in the First Department, although the two Spivak did not mention were both dismissed. As for the matter resulting in a formal admonition, important correspondence had been sent to the client by the U.S. Citizenship and Immigration Services (USCIS) in January 2006 and October 2010.  The notices were returned to USCIS as undeliverable. Spivak maintained that the client discharged him as her attorney in 2008. Nonetheless, he also claimed that he actually received the October 2010 notice and that he had learned that the client had also received the notice at her home. He further maintained that he learned that the client was granted permanent residence in February 2011. He also claimed that he sought to contact the client to get a copy of her permanent resident card to present to the Grievance Committee, but that the client had moved and could not be located. The Committee could not verify the veracity of these statements.

The Legal Standard

Under the Rules of the Committee on Admissions and Grievances for the United States Court of Appeals for the Second Circuit (“Committee Rules”):

An attorney may be subject to discipline or other corrective measures for any act or omission that violates the rules of professional conduct or responsibility of the state or other jurisdiction where the attorney maintains his or her principal office….An attorney also may be subject to discipline or other corrective measures for any failure to comply with a Federal Rule of Appellate Procedure, a Local Rule of the Court, an order or other instruction of the Court, or a rule of professional conduct or responsibility of the Court, or any other conduct unbecoming a member of the bar. Committee Rule 4; see also Fed. R. App. P. 46(c) (“[A] court of appeals may discipline an attorney who practices before it for conduct unbecoming a member of the bar or for failure to comply with any court rule.”).

“Conduct unbecoming a member of the bar” includes “conduct contrary to professional standards that shows an unfitness to discharge continuing obligations to clients or the courts, or conduct inimical to the administration of justice. More specific guidance is provided by case law, applicable court rules, and ‘the lore of the profession,’ as embodied in codes of professional conduct.” In re: Snyder, 472 U.S. 634, 645, 105 S. Ct. 2874, 2881 (1985).

Because Spivak was a member of the New York bar during the relevant time period, the New York State Code of Professional Responsibility (“the Code”) also applies. There are two relevant Code sections. First, a lawyer shall not “[n]eglect a legal matter entrusted to the lawyer.” D.R. 6-101(A)(3); 22 N.Y.C.R.R. §1200.30(A)(3) (2008); see also N.Y. Rules of Prof’l Conduct R. 1.3(b) (effective Apr 1, 2009). Second, the Code prohibits conduct that “adversely reflects on the lawyer’s fitness as a lawyer.” D.R. 1-102(A)(7); 22 N.Y.C.R.R. §1200.3(A)(7); see also N.Y. Rules of Prof’l Conduct R. 8.4(h) (effective Apr. 1, 2009).

Courts have considered neglect of client matters and ineffective or incompetent representation sanctionable conduct. See, e.g., Gadda v. Ashcroft, 377 F.3d 934, 940 (9th Cir. 2004), Amnesty Am v. Town of W. Hartford, 361 F.3d 113, 133 (2d Cir. 2004), Matter of Rabinowitz, 596 N.Y.S.2d 398, 402 (N.Y. App. Div. 1993), United States v. Song, 902 F.2d 609 (7th Cir. 1990). Matter of Kraft, 543 N.Y.S.2d 449 (N.Y.App. Div. 1989), In re Bithoney, 486 F.2d 319 (1st Cir. 1973). Such conduct is also sanctionable under the applicable professional rules and standards. The American Bar Association’s Standards for Imposing Lawyer Sanctions call for a range of sanctions from reprimand to disbarment for various forms of “lack of diligence” and “lack of competence.” ABA Standards §§4.4, 4.5. The Disciplinary Rules of New York’s Lawyer’s Code of Professional Responsibility require that “[a] lawyer shall not…[n]eglect a legal matter entrusted to the lawyer,” D.R. 6-101(a)(3); see also N.Y. Rules of Prof’l Conduct R. 1.3(b) (effective Apr. 1, 2009); in addition, the Code’s Ethical Canons require that the lawyer should represent his or her client “zealously,” Canon 7-1, and that he or she “be punctual in fulfilling all professional commitments,” Canon 7-38.

“Any finding that an attorney has engaged in misconduct or is otherwise subject to corrective measures must be supported by clear and convincing evidence.” Committee Rule 7(h). Once misconduct has been established, in determining the sanction to be imposed, the Committee should generally consider: (a) the duty violated; (b) the lawyer’s mental state; (c) the actual or potential injury caused by the lawyer’s misconduct; and (d) the existence of aggravating or mitigating factors. See ABA Standards §3.0. This Committee may recommend to the Court’s Grievance Panel a range of sanctions, including disbarment, suspension, public or private reprimand, monetary sanction, removal from pro bono or Criminal Justice Act panels, referral to other disciplinary bodies, supervision by a special master, counseling or treatment, or “such other disciplinary or corrective measures as the circumstances may warrant.” Committee Rule 6.

The court had already noted that Spivak routinely defaulted or otherwise failed to comply with the court’s scheduling orders.  The court referenced ten matters in which Spivak was counsel. In all ten cases, Spivak’s conduct was the same–all ten matters were dismissed based on Spivak’s failure to comply with the court’s scheduling orders.  As for Spivak’s attitude to his situation during the hearing? The Committee found him to be without any remorse.

There was ample evidence showing that Spivak engaged in professional misconduct by violating the duty owed to his clients in failing to comply with the court’s scheduling orders, even though the court bent over backwards by granting Spivak’s requests for extensions.   Even after the court dismissed the subject cases for Spivak’s failure to comply with scheduling orders, Spivak never bothered to move to have the cases reinstated, even though such leave was granted by the court in some instances.  In some cases, Spivak did not even inform the clients when their appeals were dismissed for his failure to file a brief.  Spivak felt that since he received these clients through a referral, he did not owe them any duty. Yet, on the other hand, he never informed the referring attorneys of the dismissal of the clients’ appeals either.  Also, Spivak did not always refund the clients’ fees after their appeals were dismissed due to his negligence.  Although Spivak acknowledged that he had a problem with complying with scheduled deadlines, he refused to acknowledge the damage he caused to his clients. Instead, he tried to justify it by claiming that it was really the clients’ fault their appeals were dismissed, citing such excuses as a client’s inability to pay printing costs or the fact that he could not locate them.

Actual or Potential Injury

Whether Spivak’s clients’ appeals would have been successful is hard to determine.  Spivak only admitted that with respect to one of his clients did the client suffer adverse consequences because of Spivak’s negligence, noting that the client had a decent claim.  The standard of actual injury to clients, however, is whether, because of Spivak’s conduct the client was deprived of the full opportunity to have the court consider the merits of his appeal. Measured by that standard, every dismissal caused by Spivak’s acts and omissions for failure to comply with the court’s scheduling orders resulted in prejudice to his clients.  The court found most troubling Spivak’s refusal to profess to the Committee that his main concern was the best interests of his clients and he never acknowledged that the clients he obtained from referrals were even his clients.

As for mitigating factors, the court did note that the demands of the Spivak’s family life took a serious toll on his law practice.  Also, even a short-term suspension would be seriously detrimental to his practice and personal life.  He also revealed that neither he nor his wife is covered by medical insurance.  In fact, he has not been able to make ends meet for a long period of time.  The court also took as a mitigating factor the fact that Spivak did not benefit personally from his failure to meet the court’s scheduling orders.  Just the opposite is true.  He suffered financially from his many delinquencies because his failure to file motions to reinstate the cases forced him to forego additional legal fees that he could have collected had he gone through with the appeal. The court also found it encouraging that he is closing down his practice in the Second Circuit and not taking on anymore appeals.  Also, he has implemented new systems in his office to avoid missing deadlines including a calendar system and a part-time assistant.

The most disconcerting aspect of Spivak’s behavior, on the other hand, is his refusal to acknowledge that the clients he received on referral were indeed his clients.  Another aggravating factor was the nature of his clientele-his clients were often immigrants facing deportation from the U.S. which made his failure to represent them effectively– thereby failing to obtain leave to have them stay in the U.S.– most egregious.  Also troubling were his prior disciplinary problems before the First Department of New York, which the court opined, might indicate a pattern of misbehavior.

Recommendation

The Committee indicated that it was deeply troubled by Spivak’s actions, and it expressed reservations about the new measures he took to prevent future abuses.  However, the Committee did not think that Spivak intended to cause his clients any harm.  In light of his forthright admission of responsibility and the absence of additional complaints by his client and his having taken steps to close down his practice in the Second Circuit, the Committee concluded not to recommend his suspension.  Instead, the Committee recommended a public reprimand and close monitoring of his cases in the future.  The Second Circuit agreed with the Committee’s conclusions and recommendations and issued an order accordingly.

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