OPINION AND ORDER
JED S. RAKOFF, District Judge, for the Committee on Grievances:
This matter comes before the Committee on Grievances for the United States
It should be noted at the outset that on June 2, 2009, the United States Court of Appeals for the Second Circuit issued an order temporarily suspending Respondent from the Bar of that Court pending completion of proceedings of the Court's Committee on Admissions and Grievances. Pursuant to Local Rule 1.5(b)(2), the Committee would ordinarily impose an interim suspension of Respondent on that basis alone. However, in light of the facts thus far established by this Committee's pending investigation, there are additional and independent reasons for imposing an interim suspension here, as set forth below.
On November 1, 2002, Client Roe was charged with various narcotics offenses in this District. Client Roe pled guilty on January 12, 2004, and was sentenced on July 20, 2005, to a term of 14 years' imprisonment, and five years' supervised release. Client Roe is currently serving his sentence at a federal prison outside of this District ("Federal Prison X").
In mid-April 2007, Client Roe retained Respondent through family members in connection with a motion to be made pursuant to 28 U.S.C. § 2255. On April 30, 2007, a Notice of Motion dated April 26, 2007, made pursuant to 28 U.S.C. § 2255, for an Order to Vacate, Set Aside, or Correct the Sentence was filed and a return date of May 30, 2007 was set (the " § 2255 Motion"). The § 2255 Motion was signed by Client Roe, but Respondent's name appears in the lower left hand corner of the first page of the document as a recipient of the Motion.
More than six months later, on November 13, 2007, Respondent attempted to electronically file a Notice of Appearance and letter dated "July 3, 2007" requesting a conference on the § 2255 Motion.
No conference was held, nor was there any other activity in connection with the § 2255 Motion until September 17, 2008 when, following communications between Client Roe and the pro se office of this Court, a civil matter was opened and the § 2255 Motion was filed.
On or about October 8, 2008, Client Roe wrote a letter to the district judge assigned to his criminal matter complaining about Respondent's representation of him in connection with the § 2255 Motion. The district judge referred Client Roe's
On January 29, 2009, the Committee appointed Celia Goldwag Barenholtz, Esq. of Cooley Godward Kronish LLP ("Investigating Counsel"), a member of the panel of attorneys appointed to advise and assist the Committee on Grievances, to investigate as necessary and prepare such statement of charges as the Committee deems warranted.
Client Roe was deposed by Investigating Counsel on April 8, 2009. Client Roe asserted that he learned about the services of Respondent through another inmate ("Inmate Doe") at Federal Prison X after Client Roe saw a flyer advertising the legal services of the "Federal Imprisonment Reduction Experts, LLC" or "F.I.R.E." in the prison library. Inmate Doe informed Client Roe that the flyer described services that Respondent could provide. Inmate Doe told Client Roe that he worked together with Respondent: Inmate Doe obtained clients and prepared motions, and Respondent executed the motions and did anything that had to be done on the outside. After collecting Client Roe's legal documents, Inmate Doe informed Client Roe that Respondent had analyzed the case and determined that the fee for her services would be $15,000. $5,000 was to be paid upfront, and the remaining $10,000 was to be paid after the Client prevailed on his motion and was released from prison. Inmate Doe promised Client Roe that he would be released from prison by November or December 2007.
Client Roe testified that members of his family met with Respondent in her office in Brooklyn, paid her $5,000, and received a receipt in return. Client Roe stated that after Respondent was paid the $5,000 fee, Client Roe saw Doe typing the § 2255 Motion in the prison library. After Doe finished the Motion, Client Roe signed the document and returned it to Doe. Doe later told Client Roe that he had sent the Motion to Respondent.
Client Roe further testified that he has never had any direct contact with Respondent. Any and all communication with her was conducted through Inmate Doe or members of his family. Inmate Doe told Client Roe that Respondent would be visiting Client Roe, but no such visits occurred. Client Roe wrote to Respondent on June 23, 2008, seeking her opinion of his present situation and asking her to respond in writing. Client Roe testified that he received nothing in response from Respondent. Client Roe further testified that his family was unable to reach her by phone after her retention in April 2007.
Client Roe testified that he never signed or received a retainer agreement from Respondent.
In an initial response to the Order to Show Cause, submitted on December 18, 2008, Respondent generally denied any misconduct on her part. See Saghir Affirmation. She averred that she had two meetings with members of the Client Roe's family. During the initial meeting, the family members informed her that they had been referred to her by "Federal Imprisonment Reduction Experts."
In the Saghir Affirmation, Respondent further claimed that shortly after her initial meeting with Client Roe's family, she forwarded a written retainer agreement to Client Roe, and subsequently received an executed copy of the agreement from Client Roe via mail. Respondent attached to her affirmation an executed copy of a retainer agreement dated April 26, 2007 (the "Retainer Agreement"). The Retainer Agreement provides that Respondent would charge a "flat fee" of $15,000, and that "[a]n initial retainer of $5,000 is due immediately and the sum of $10,000 will be due once the reply is filed in this matter." The Agreement further provides: "As per your instructions, you will file your § 2255 motion pro se (which we have seen a copy of) we will only docket our appearance and proceed in the above matter after the government has filed a reply to your pro se motion and act only as your advisors until that point."
Respondent further asserted that she again met with members of Client Roe's family on April 23, 2007, at which time she received $5,000 as a retainer, with the understanding that the remaining fee would be paid as agreed upon in the retainer agreement. Respondent provided a receipt for $5,000 to Client Roe's family. Respondent asserted that during this meeting, she was advised that Client Roe had filed the § 2255 Motion pro se. Respondent claimed to have subsequently reviewed the docket and confirmed that the Motion had in fact been filed pro se on April 30, 2007, with a return date in May 2007.
Respondent stated that it was her understanding that the § 2255 Motion was written by Inmate Doe at Client Roe's request, and was signed and mailed by Client Roe himself. Respondent asserted that "[n]either the preparation of that motion, nor its filing was done at my direction
Respondent explained that due to a complicated pregnancy beginning in January 2008, she required bed rest and used her office only on a "need to" basis for several months. Respondent claimed that during that time, she spoke with Client Roe's niece and informed her that she was out of the office but was keeping an eye on Client Roe's docket. Respondent asserted that she had a miscarriage in April 2008, and subsequently worked on a part time basis and mostly from home. Respondent further noted that in July 2008, Respondent's grandmother passed away. Respondent went to England to be with her family, and did not return until mid August 2008. Respondent stated that she had not been in her office from April 2008 to September 2008.
Respondent claimed that she had written a letter to Client Roe on September 3, 2008, informing him that she would be withdrawing as his counsel in this matter (the "September 3, 2008 Letter"). Respondent attached an unsigned copy of the September 3, 2008 Letter as an exhibit to her Affirmation. In that Letter, Respondent writes, "After careful review of the record in this case I have concluded that it will not be in your best interest at this point to pursue the matter any further and for that reason you should withdraw your pro se motion." Respondent offers no explanation of what prompted her to come to this conclusion over 16 months after her retention or why she did not reach this conclusion in April 2007, if, as she contends, she saw a draft of the Motion at that time.
Finally, Respondent averred that in or around September 2008, she returned $4,720 of the $5,000 received from Client Roe's family to Client Roe. Respondent variously claimed that she kept $280 for her review of the § 2255 Motion and for filing the Notice of Appearance.
After reviewing these competing allegations, Investigating Counsel, pursuant to authority granted by this Committee, sent a letter to the Warden of Federal Prison X, requesting records concerning Respondent's visits to and communications with inmates at Federal Prison X. On March 30 and April 6, 2009, Investigating Counsel received documents which show the following:
(1) From April 21, 2007 through September 16, 2008, Inmate Doe received 14 separate payments from either Respondent or her brother Faizan Saghir. The payments total $5,450. The individual payments range from $200 to $750 and were made on a nearly monthly basis.
(2) From February 2007 through August 2008, Respondent arranged to visit or visited Inmate Doe on 14 occasions. Three of the visits to Inmate Doe occurred between January 2008 and April 2008— during the time Respondent claims to have required bed rest as much as possible.
(3) From February 2007 through April 2008, Inmate Doe received "Special Mail" from Respondent on twelve separate occasions.
(4) From April 1, 2007 to October 1, 2008, Respondent neither visited nor sent "Special Mail" to Client Roe.
An adverse inference may be drawn when an attorney asserts her Fifth Amendment privilege against self-incrimination in a proceeding before a disciplinary committee. See In re Muraskin, 286 A.D.2d 186, 187, 731 N.Y.S.2d 458 (1st Dep't 2001) (An adverse inference "may be drawn from respondent's invocation of the Fifth Amendment privilege against self-incrimination at his deposition before the [Departmental Disciplinary Committee]"); In re Boter, 46 A.D.3d 1, 7, 842 N.Y.S.2d 411, 420 (1st Dep't 2007) (same); In re Wallman, 260 A.D.2d 148, 150, 696 N.Y.S.2d 164, 165 (1st Dep't 1999) (suspending attorney where uncontested evidence before the Departmental Disciplinary Committee included affidavits of his clients and the adverse inference drawn from the respondent's invocation of privilege).
The facts thus far established, coupled with the adverse inference drawn from Respondent's invocation of her Fifth Amendment privilege, establish a clear basis for interim disciplinary action. The preliminary remedy of an interim suspension is available in such instances to protect the public from future disciplinary violations of the respondent during the pendency of proceedings before this Committee. See In re Peters, 543 F.Supp.2d 326 (S.D.N.Y.2008). In light of the serious nature of the allegations against Respondent, the danger that others will be similarly harmed (a concern that is highlighted by Investigating Counsel's receipt of complaints from other inmates at Federal Prison X since the Order to Show Cause was issued), the Committee's inability to entertain an alternative innocent explanation for Respondent's conduct given her refusal to provide documents or testimony to Investigating Counsel, and the fact that Respondent's misconduct is aimed at particularly vulnerable clients in the form of inmates who are not sophisticated about the legal system, and who may maintain unrealistic hopes about post-conviction relief, the Committee concludes that an interim suspension of Respondent from the practice of law before this Court pending the final outcome of the Investigation is warranted. See, e.g., Peters, 543 F.Supp.2d at 329; In re Balcacer, 293 A.D.2d 107,
The New York Code of Professional Responsibility (the "Code")
Respondent accepted $5,000 from Client Roe's family, and, with the exception of filing a Notice of Appearance nearly seven months after being retained, did no legal work on his behalf. When her letter requesting a conference was rejected as improperly filed, she did not resubmit it, nor did she do anything thereafter to bring the § 2255 Motion to the Court's attention. Indeed, other than reviewing the § 2255 Motion before it was filed and entering an appearance, Respondent does not claim to have done anything other than check the docket.
The evidence also indicates that Respondent did not make herself available to Client Roe or his family, and ignored attempts by members of his family to communicate with her. Client Roe testified that members of his family tried to contact Respondent throughout the time that she was retained by him, but were unable to contact her. The record further indicates that Client Roe wrote to Respondent on June 23, 2008, but Respondent did not answer this letter.
Respondent's attempt to justify her unavailability and her failure to act on his behalf do not excuse her conduct. Respondent asserted that she was required to be on bed rest as much as possible, was working on a part-time basis, and was out of the country at various times from January
By neglecting the matter of her client and by failing to communicate with her client, Respondent violated DR 7-101(A)(1), DR 7-101(A)(2), and DR 6-101(A)(3). See, e.g., In re Blumrosen, 253 A.D.2d 239, 687 N.Y.S.2d 357 (1st Dep't 1999) (where respondent agreed to represent clients and accepted retainers from clients, then did little if any work on clients' behalf, and further failed to communicate with clients, conduct constituted violation of, inter alia, DR 6-101(A)(3) and DR 7-101(A)(1)); In re Kudisch, 290 A.D.2d 43, 44, 733 N.Y.S.2d 731 (2d Dep't 2001) (by failing to respond to inquiries from client's family, attorney violated DR 6-101(A)(3)); In re Zacek, 54 A.D.3d 84, 85, 859 N.Y.S.2d 886, 887 (attorney who failed to respond to messages from clients and failed to appear for scheduled appointments with clients violated, inter alia, DR 6-101(A)(3)).
DR 1-102(A)(3) prohibits a lawyer from engaging in illegal conduct that adversely reflects on the lawyer's honesty, trustworthiness or fitness as a lawyer. DR 1-102(A)(4) prohibits conduct involving dishonesty, fraud, deceit or misrepresentation. DR 1-102(A)(5) prohibits conduct prejudicial to the administration of justice. The record before this Committee, coupled with the adverse inference drawn as a result of Respondent's invocation of the Fifth Amendment, establishes violations of DR 1-102 by Respondent both with respect to her conduct vis a vis Client Roe and her conduct vis a vis this Committee.
First, with respect to Client Roe, Respondent accepted $5,000 from Client Roe's family with the understanding that she would provide legal services to Client Roe in return. Instead, Respondent instructed or permitted Inmate Doe—a nonlawyer—to draft and file the § 2255 Motion. The Committee does not believe that
Second, Respondent has been dishonest in her dealings with this Committee. In response to the Order to Show Cause, Respondent submitted an eight page Affirmation pursuant to 28 U.S.C. § 746. The record developed to date, coupled with the adverse inference the Committee draws based on Respondent's invocation of her Fifth Amendment privilege against self-incrimination, indicates that Respondent misled the Committee in at least the following respects:
(1) Respondent averred that the § 2255 Motion was not prepared at her direction or supervision and that she did not compensate Inmate Doe for preparing and filing it. The records received from Federal Prison X indicate that Respondent visited Inmate Doe on numerous occasions and that Inmate Doe received 14 separate payments from Respondent or her brother totaling $5,450. The Committee finds that at least some of these visits concerned the provision of legal services by Doe to Client Roe and other inmates, and that at least some of these payments were to compensate Inmate Doe for obtaining Client Roe as a client and drafting and filing the § 2255 Motion for him.
(2) Respondent provided this Committee with a Retainer Agreement bearing what purports to be Client Roe's signature. Respondent claims that that she sent the Retainer Agreement to Client Roe and received an executed copy from him by mail. Client Roe denies having seen or signed the Agreement, and the records produced by Federal Prison X do not reflect that it was sent to Client Roe as "Special Mail."
(3) Respondent described various conditions and the like that purportedly justify her failure to communicate with Client Roe's family members who tried to reach her during this period. However, during the same period she was allegedly incapacitated, Respondent visited Inmate Doe (which required travel from New York) at least three times.
Accordingly, for the reasons set forth above, Respondent is hereby suspended from practicing in the Southern District of New York pending the outcome of the Investigation and until further order of this Court.
Federal Prison X maintains a log of incoming correspondence that has been marked by the sender as "Special Mail," a designation which may be used by attorneys and courts, as well as certain other legal and governmental entities, and which is intended to ensure that the correspondence will be opened only in the presence of the inmate. The records produced by Federal Prison X to Investigating Counsel reflect no incoming Special Mail to Client Roe from Respondent. We note that Respondent is familiar with the Special Mail procedures, as correspondence from her to Inmate Doe is recorded in the log.