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Thursday, March 24, 2011

More 2nd Circuit Make-Believe Ethics Oversight

New Circuit Disciplinary Rule Targets Uncooperative Attorneys
The New York Law Journal by Mark Hamblett - March 24, 2011

In re Paul E. Warburgh, 07-9056-am

Attorneys charged before a Second Circuit grievance committee who fail to respond to or comply with show cause orders can be deemed to have waived objections on appeal, the U.S. Court of Appeals for the Second Circuit has ruled. Announcing a new rule for attorney discipline, the circuit said the possibility of waiver was intended to reduce defaults by charged attorneys and enable the Second Circuit's Committee on Attorney Grievance and Discipline "to focus more of its resources on the substantive analysis" of cases "rather than chasing after uncooperative attorneys." The new rule was announced in the case of Huntington attorney Paul E. Warburgh, although the circuit said it would not apply to him because he had not received enough warning to put him on notice as to the possibility of a waiver. The circuit's 11-member grievance and disciplinary committee, composed of volunteer members of the private bar, is charged with investigating complaints of misconduct. It makes its recommendations on sanctions to the circuit's three-judge grievance panel. The committee found in 2008 that Mr. Warburgh warranted discipline because he had failed in five cases to comply with scheduling orders on appeals before the circuit, failed to respond to the circuit's inquiries or failed to communicate with his clients. The committee, chaired by Mary Jo White of Debevoise & Plimpton, a former Southern District U.S. attorney, proceeded against Mr. Warburgh without a hearing after he did not respond to a March 2008 show-cause order on why he should not be disciplined and then failed to respond to committee communications despite a number of extensions. The committee found no mitigating factors excusing Mr. Warburgh, although it took into account his medical problems, including multiple surgeries for cancer in 2006 and his stated intention to retire from the practice of law. The committee called for his private reprimand and said he should be allowed to withdraw from the bar. It also called for involuntary disbarment if he declined to withdraw. Mr. Warburgh answered the committee's report with an e-mail in September 2010. He disputed some of the allegations about failing to communicate with clients but stated he had "no comment" on two of the five cases and said he had "formally" withdrawn from the Second Circuit bar. In In re Paul E. Warburgh, 07-9056-am, a per curiam opinion issued Tuesday, Judges Jose A. Cabranes, Robert D. Sack and Richard C. Wesley, who make up the circuit's grievance panel, said the committee was well within its rights to take summary action once Mr. Warburgh had repeatedly refused to respond to the show cause order. But it found that a "private reprimand is not an adequate disciplinary measure when the attorney knowingly defaulted and failed to show good cause or excusable neglect for the default."

"An attorney's default in disciplinary proceedings is a serious breach of the attorney's professional obligations to the Court and the public," the circuit said. "In such a case, the attorney has not only failed to respond to a Court-sanctioned order, but has done so after the Court already has found good cause to question the attorney's very competence to continue practicing in this Court." But the circuit went further and found that the unexcused failure to respond to a show cause order and other defaults "may constitute a waiver" of his or her right to challenge the committee's findings before a three-judge panel of the circuit. The circuit cited the rule announced by the U.S. Supreme Court in Thomas v. Arn, 474 U.S. 140 (1985), where the failure of a litigant to object to a magistrate judge's findings before the district court was deemed a waiver when the objections were later raised before an appeals court—an approach derided by the Supreme Court as the "sandbagging" of the district court. The same considerations that drove the Thomas Court, the circuit said in Mr. Warburgh's case, support a waiver where an attorney defaults before a disciplinary committee and tried to contest the same issues before the circuit. "Permitting him to address those matters for the first time at this late date, without a showing of good cause or excusable neglect for his default before the committee, not only would encourage future defaults by attorneys with disciplinary proceedings but would leave the court with a seriously defective record," the circuit said. The circuit said Mr. Warburgh was essentially asking the court to start from scratch and ignore the efforts of the committee, which is composed of volunteer members who "have dedicated uncompensated hours and other resources to this and every other referred case." Having outlined the new waiver rule, however, the court declined to apply it to Mr. Warburgh for lack of notice. But in future cases, the court said, the committee should include notice to a charged attorney that the failure to timely respond or comply with a show cause order may constitute a waiver. As for Mr. Warburgh, he was allowed to withdraw from the Second Circuit bar, but the circuit ordered him to disclose its order to every client and every court he appears before as well as every bar association of which he is a member. He has 14 days to file an affidavit confirming his compliance. Mark Hamblett can be contacted at mhamblett@alm.com.

16 comments:

Ring Master said...

The 2nd Circus ethics committee has fallen apart over the years. Bad Judges are ALWAYS protected, and worse lawyers are protected if they are insiders. It's become another DDC- a total joke.

A Pox On Them All said...

What a bunch of phony hypocrites claiming to police the bar and handing out punishments such as, he is supposed to tell clients he's unethical. The old, "evil succeeds when good men do nothing," has been modified in the 2nd to "evil succeeds in the 2nd because the evil doers face only the judgement of the other devils on the ethics committee."

Anonymous said...

Nothing is mentioned in this article about how Clients were harmed. Its also not clear how the complaints arose.

Scheduling matters while important can be manipulated by the "system" tremendously.

And the standards for "not communicating" with a client probably remain with great disparities where the "player" law firms can go 30-60 days or more without speaking to a client and merely having some secretary communicate with the client while smaller practices and solos are held to higher standard where not returning a call personally in a day or two is deemed an offense.

This article provides very little detail on these topics.

Was this attorney targeted by the system and then have his Case Schedules and Clients manipulated by the "system"? Direct Clear examples of this action within OCA at State level within 3rd Dept occuring and ignored and / or approved by Third Dept are available.

And how about Mary Jo White, former US Attorney, explaining for the Record:

1. Why DA Jeanine Pirro was not pursued during the Indictments of her husband for tax charges when the DA had signed many years of the returns at issue?

2. Why No Discipline was pursued against the DA?

3. Why Discipline against Al after all the convictions was not pursued or enforced to any significant degree?

4. Why now deceased former State Senatore Guy Velella quoted in the Village Voice article "Tale of the Tapes" would suggest to Pedro Espada years ago that problems with US Attorney Mary Jo White's Office should be directed to Al D'Amato to take care of?

How about that attorney mentioned on this blog before who operated perhaps in Westchester Federal Courts but was never admitted to the Federal Bar and yet had no consequences for like a decade or more?

Kris Sergentakis said...

This is just nonsense..corruption in the Second Circuit is out of control. We need a task force to investigate all of them.

Anonymous said...

Looks like the Filter is acting up again eh Administrator?

Where is the Comment posted at 1:16 PM today?

Why are these comments being deleted?

There is nothing in the Comments that is out of ordinary from any other comments routinely posted at this blog.

If "Integrity" is in fact something this blog is about "in fact", then response from the Blog Administrator with specifics is required.

krh of hvr

Anonymous said...

I have posted 3x and 2 have been deleted.
Integrity in the courts is one of your blog titles...how does one believe that you are working towards that goal?

Anonymous said...

this comment was clealy posted and accepted by the blog and therefore was cleared by whatever the "filter" is so let's see what happens now?

note that the comment shows the time this system posted -


March 24, 2011 1:11 PM
Anonymous said...
Nothing is mentioned in this article about how Clients were harmed. Its also not clear how the complaints arose.

Scheduling matters while important can be manipulated by the "system" tremendously.

And the standards for "not communicating" with a client probably remain with great disparities where the "player" law firms can go 30-60 days or more without speaking to a client and merely having some secretary communicate with the client while smaller practices and solos are held to higher standard where not returning a call personally in a day or two is deemed an offense.

This article provides very little detail on these topics.

Was this attorney targeted by the system and then have his Case Schedules and Clients manipulated by the "system"? Direct Clear examples of this action within OCA at State level within 3rd Dept occuring and ignored and / or approved by Third Dept are available.

And how about Mary Jo White, former US Attorney, explaining for the Record:

1. Why DA Jeanine Pirro was not pursued during the Indictments of her husband for tax charges when the DA had signed many years of the returns at issue?

2. Why No Discipline was pursued against the DA?

3. Why Discipline against Al after all the convictions was not pursued or enforced to any significant degree?

4. Why now deceased former State Senatore Guy Velella quoted in the Village Voice article "Tale of the Tapes" would suggest to Pedro Espada years ago that problems with US Attorney Mary Jo White's Office should be directed to Al D'Amato to take care of?

How about that attorney mentioned on this blog before who operated perhaps in Westchester Federal Courts but was never admitted to the Federal Bar and yet had no consequences for like a decade or more?
March 24, 2011 1:16 PM

Anonymous said...

March 24, 2011 1:11 PM
Anonymous said...
Nothing is mentioned in this article about how Clients were harmed. Its also not clear how the complaints arose.

Scheduling matters while important can be manipulated by the "system" tremendously.

And the standards for "not communicating" with a client probably remain with great disparities where the "player" law firms can go 30-60 days or more without speaking to a client and merely having some secretary communicate with the client while smaller practices and solos are held to higher standard where not returning a call personally in a day or two is deemed an offense.

This article provides very little detail on these topics.

Was this attorney targeted by the system and then have his Case Schedules and Clients manipulated by the "system"? Direct Clear examples of this action within OCA at State level within 3rd Dept occuring and ignored and / or approved by Third Dept are available.

And how about Mary Jo White, former US Attorney, explaining for the Record:

1. Why DA Jeanine Pirro was not pursued during the Indictments of her husband for tax charges when the DA had signed many years of the returns at issue?

2. Why No Discipline was pursued against the DA?

3. Why Discipline against Al after all the convictions was not pursued or enforced to any significant degree?

4. Why now deceased former State Senatore Guy Velella quoted in the Village Voice article "Tale of the Tapes" would suggest to Pedro Espada years ago that problems with US Attorney Mary Jo White's Office should be directed to Al D'Amato to take care of?

How about that attorney mentioned on this blog before who operated perhaps in Westchester Federal Courts but was never admitted to the Federal Bar and yet had no consequences for like a decade or more?
March 24, 2011 1:16 PM

Anonymous said...

Here come the Judge Richard C. Wesley the go to fixer guy. This guy is very dirty and the feds know it!

Anonymous said...

Thank You for clearing the filter and reposting the Comments.

Here is part of the exchange over a decade ago between then Senator Velella, very tight with Gov Pataki, and Pedro Espada according to the Village voice that is. Gives a view of the system from top down:

Pedro Espada Jr.: Se├▒or Velella.

Guy Velella: How you holding up? I thought you would've been indicted by now.

Espada: Why do you say that?

Velella: Roberto [Ramirez] and I talk about you a lot. He says either the feds or Johnson . . . [inaudible] . . . Maybe both.

Espada: That's why I'm here.

Velella: I can't help you with Johnson. Roberto and I have a deal. . . . [inaudible] I don't interfere. . . . [inaudible] It's a nonaggression pact. Meet with Ramirez.

Espada: I've met with him . . . [inaudible] . . . but how come they don't mess with you?

Velella: I'm the last of the . . . [inaudible] Johnson's had complaints . . . [inaudible] . . . the school board stuff, but he never got on my case. . . . [inaudible] With Johnson you've got to go through Ramirez.

Espada: Ramirez has juice?

Velella: He doesn't want trouble from you [inaudible]. With me, I'm friends with [auto dealer and Democratic Party big] Dick Gidron and even Freddy [Ferrer]. I'm a county leader. It all helps with Johnson.

Espada: Well, Ramirez wants me to announce my retirement and [inaudible] Johnson will then go away. But the feds [inaudible].

Velella: [inaudible] The Southern District is Senator D'Amato. Mary Jo [inaudible]. [Manhattan district attorney Robert] Morgenthau is another story. He made my life hell here. . . . [inaudible] My office. They wanted this and that. . . . [inaudible] My phone records and my father's.

Espada: The feds have been reviewing us. . . . [inaudible] It's been two years.

Velella: It never goes away. . . . [inaudible] Out of Albany district they wanted to indict me.

Espada: Yeah. I heard about that.

Velella: Some woman they said I did legislation for. . . . [inaudible] But the most they did after . . . [inaudible] . . . years was give me a letter. . . .

Espada: With us, they're reviewing medical records and . . . [inaudible] . . . boxes and boxes.

Velella: . . . [inaudible] . . . They've got billing and medical record mistakes, but nothing on you. . . . I don't have a relationship. . . . [inaudible] D'Amato can help. I'll have to speak to him personally.

http://www.villagevoice.com/2000-10-17/news/bronx-tales-of-the-tape/

Anonymous said...

Espada: D'Amato is aware?

Velella: Yeah, I'll see him soon. I'm going to . . . [inaudible] . . . with your Republican friends tonight.

Espada: Give them my regards.

Velella: Listen, with the Bronx stuff, meet with Ramirez. He and Freddy can deal with Johnson . . . [inaudible] . . . especially Freddy, he can.

Espada: I'll call you.

Velella: [inaudible] . . . next week . . . [inaudible] . . . OK.


http://www.villagevoice.com/2000-10-17/news/bronx-tales-of-the-tape/2/

Anonymous said...

This is why it's known as the 2nd Circus! These alleged Judges are a bunch of clowns! The bad part is that these clowns don't make you happy, they make everyone sad. They're the only ones happy since they get the cash.

Anonymous said...

see everything you say on the phone may be bugged, that is how you find your real friends, give some bait, they may have been lying for a long time......watch a worm squirm!

Anonymous said...

see everything you say on the phone may be bugged, that is how you find your real friends, give some bait, they may have been lying for a long time......watch a worm squirm!

Anonymous said...

Do you think blood transfusion would take all the corruption from their sorry carcasses? One can hope? But in the end I don't think so having observed the patterns and practices of their criminal ways.

Anonymous said...

they should rename the second circuit "The Money Store"

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See Video of Senator John L. Sampson's 1st Hearing on Court 'Ethics' Corruption

The first hearing, held in Albany on June 8, 2009 hearing is on two videos:


               Video of 1st Hearing on Court 'Ethics' Corruption
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