Attorney's Flagrant Disregard for Clients Gets Reprimand

Circuit Reprimands Immigration Attorney for Ignoring Cases
The New York Law Journal by Mark Hamblett  -  April 25, 2012

An immigration lawyer has been publicly reprimanded by a federal appeals court for misconduct because his failure to meet briefing deadlines and other scheduling requirements forced the dismissal of 10 cases.  The U.S. Court of Appeals for the Second Circuit yesterday adopted a grievance committee report that said Lawrence Spivak had dropped the ball in 10 cases and blamed his clients in nine of them. In some of the cases he offered the unacceptable defense that the appeals were unlikely to succeed.  Spivak, a solo practitioner in Jackson Heights and Jamaica, Queens, also took referrals from clients for $500 but never met with them, the court said in In re Lawrence Spivak, 10-90006-am.  But Spivak also persuaded the circuit's Committee on Admissions and Grievances that he should only be reprimanded because of mitigating factors, including that a suspension would devastate his practice.  The Second Circuit adopted that report and issued the reprimand by summary order yesterday.  "I reviewed the order and I intend to comply with all the requirements of the order and take all the corrective steps the Second Circuit is requiring me to take," Spivak said in an interview.

A graduate of Hofstra University School of Law who has been in practice since 1987, Spivak appeared on Nov. 10, 2010, before the committee composed of Eileen Blackwood of Kohn Rath Blackwood &   Danon in Hinesburg, Vt.; Evan Davis of Cleary Gottlieb Steen & Hamilton; Gerald Walpin, formerly of counsel at Katten Muchin Rosenman; and Michael Patrick of Fragomen, Del Rey, Bernsen & Loewy.  The committee report states that Spivak's practice in 2007 was 60 percent immigration, with the remainder real estate and general civil litigation. By the time of the 2010 hearing, his practice had shifted to 90 percent real estate and 10 percent immigration.  Spivak specialized in family-based petitions, especially filings to the U.S. Consulate in Bangladesh, removal defense and federal appeals.  He told the committee he lost 10 Russian clients in 2007, a blow to his practice that also consumed time because of his need to transfer files. He also told the committee that family problems, including the health of his wife, put increasing pressure on his time. But he admitted that a "procrastination problem" contributed to him missing several deadlines on appeals, even after securing extensions.  "There is no doubt that the record shows a disturbing pattern of inattention to deadlines, negligence and cavalier attitudes towards the Court's orders and procedures that are wholly inconsistent with the expectations attached to an attorney practicing before this, or any Court," the committee wrote.  The committee weighed mitigating factors, including the most "compelling" factor of family problems, as well as the fact that Spivak did not gain personally from his failure to meet the scheduling orders, he had made efforts to wind down his Second Circuit practice, and he was implementing a new calendar system in his office and had hired a part-time assistant.  The committee also took note of the impact a more severe sanction could have had on Spivak, as it quoted a supplemental response he filed in December 2010.  Spivak, the committee said, "also makes clear that even a short-term suspension 'would have devastating, long-term effects upon my practice and my personal life,' as he would likely lose the majority of his clients and would not have the financial wherewithal to sustain his household while attempting to re-build his law practice."

The most serious aggravating factor for the committee was Spivak's "flagrant disregard for his clients, or, more frankly, the fact that he does not view many of the subjects of the appeals as 'clients' because they were referred to him."  Also aggravating was the fact that many of Spivak's clients were facing deportation and he was well aware of their "vulnerability." He also had prior disciplinary troubles, including three other complaints filed against him in New York state.  In recommending the sanction, the committee said it "was greatly influenced by both his candor and the difficulty in his family life and sympathetic to his plight [TEXT REDACTED]. Mr. Spivak's inability to practice law would leave him destitute, unable to support his spouse and their son and daughter."  In their summary order, Second Circuit Judges Jose Cabranes, Robert Sack and Richard Wesley agreed with the committee that a likelihood of failure on some of the appeals is no excuse.  "We also agree with the Committee's admonition to Spivak that prejudice to a client is not 'limited to those cases in which a certainty or even probability of success is found,' and its finding that prejudice resulted 'when, due to Mr. Spivak's conduct, his client (without the client's written consent or approval) was deprived of the full opportunity to have the Court consider the merits of his appeal,'" the Second Circuit said.  The panel also agreed that the "mitigating factors in this case are significant enough to warrant reprimand rather than suspension."  The court said Spivak must disclose its order and the committee's report to "all courts and bars of which he is currently a member."  Michael Zachary is counsel to the grievance panel.  Mark Hamblett can be contacted at mhamblett@alm.com.