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failing to communicate with clients but stated he had "no comment" on two of the five cases and said he had "formally" withdrawn from the Second Circuit bar.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.