The New York Law Journal by Mark Hamblett - March 24, 2011
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failing to communicate with clients but stated he had "no comment" on two of the five cases and said he had "formally" withdrawn from the Second Circuit bar.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."