OPINION OF THE COURT
Respondent Karen Jaffe was admitted to the practice of law in the State of New York by the Fourth Judicial Department on June 24, 1982 under the name Karen Jaffe-Nierenberg. At all times relevant to this proceeding, she has maintained an office for the practice of law within this Department.
The Departmental Disciplinary Committee now seeks an order, pursuant to 22 NYCRR 603.3, imposing reciprocal discipline on respondent, predicated on an order of the United States Court of Appeals for the Second Circuit (585 F.3d 118 ) publicly reprimanding and removing her (disbarring her), or in the alternative sanctioning her as this Court deems appropriate. Respondent seeks dismissal of the petition, or in the alternative a hearing on liability, or at least on sanctions.
This is the second time that respondent has been the subject of reciprocal disciplinary proceedings before this Court. The first proceeding followed the Second Circuit's suspension of respondent in May 2006 for 30 days for having falsely advised the Court, on two occasions, that she was too ill to attend oral arguments, when in fact she was attending hearings in another court. Based on that order, the Board of Immigration Appeals suspended her for 30 days from practice before that court, the Immigration Courts, and the Department of Homeland Security, and this Court publicly censured her (40 A.D.3d 96 ).
During respondent's federal suspension, the Second Circuit, in an effort to assist her in planning to manage her caseload of pending matters, assigned the former chair of the immigration law committee of the New York City Bar Association to help her. Second Circuit staff also met with her. Nevertheless, in what the Second Circuit termed a "remedial order," dated July 13, 2006, the court relieved respondent from all cases before that court in which she had not yet submitted a brief, and limited her to no more than 30 cases at any one time, due to her "chronic failure to meet briefing deadlines, often despite numerous extensions, and her frequent submission of briefs that do not conform to the Rules of Appellate Procedure and that are of minimal competence." That order also directed respondent to provide the names and addresses of clients in cases identified by the court, so that they could be notified respondent was no longer representing them.
By order dated April 2, 2008, the Second Circuit referred respondent to its Committee on Admissions and Grievances (CAG) to investigate and report on whether she should be subject to disciplinary measures. The order was based on: (1) the dismissal of 12 of her appeals for failure to comply with briefing schedules; (2) orders in 14 of her appeals warning that continued failure to comply with the Federal Rules of Appellate Procedure could result in sanctions; (3) her continued submission of deficient briefs in two appeals, despite repeated warnings, and her failure to attempt to file revised briefs; and (4) her failure to timely respond to Court orders pertaining to the previous "remedial order."
After conducting a hearing at which respondent and her counsel appeared, and accepting all of her submissions, the CAG, in a December 2008 report, found her guilty by clear and convincing evidence of misconduct and recommended disbarment if she failed to resign within 60 days.
Respondent conceded that the 12 dismissed appeals identified in the order of referral had been dismissed due to her failure to comply with court briefing schedules, which constituted neglect and conduct prejudicial to the administration of justice. With respect to the quality of her work, the CAG reviewed her submissions in three matters and found them "to be of very poor quality." Specifically:
As an excuse, respondent maintained that law students had written many of the briefs she signed and filed, without reading them.
Aggravating factors identified by the CAG were: "(1) the prior disciplinary offenses; (2) a pattern of misconduct involving noncompliance with the Court's briefing schedules, orders, and defective briefing; (3) the multiple offenses; (4) the vulnerability of [respondent's] immigrant clients, many of whom do not speak English; and (5) [respondent's] substantial experience in the practice of law." Mitigating factors were respondent's remorse and cooperation in the proceedings, as well as "personal problems with her own illness and a family member's illness around the time of the March 22, 2007 order," issued upon her failure to provide all the information requested in the July 2006 "remedial order."
In light of respondent's pattern of neglect, repeated failure to follow court orders, the aggravating and mitigating factors, and her assertion that she no longer wished to practice before the Second Circuit, the CAG recommended that she be given the opportunity to resign from the Second Circuit bar, along with a public reprimand; however, if she failed to withdraw, then the CAG recommended disbarment.
By order dated October 19, 2009, the Second Circuit adopted the factual findings of misconduct and the aggravating and mitigating circumstances, but declined to permit a resignation, and ordered respondent publicly reprimanded and removed (disbarred) (585 F.3d 118 ).
With respect to a brief respondent proffered in support of her argument that her work was not deficient, the court observed: "Fully half of the Statement of the Case is irrelevant since its last three paragraphs are duplicated verbatim from an entirely different case concerning a different petitioner and different facts." (Id.)
The Second Circuit also rejected respondent's argument that she had already been disciplined for the same conduct and therefore new sanctions were precluded by res judicata or double jeopardy. First, the court noted, she had never been disciplined for some of the conduct, such as filing briefs written by law students without reviewing them. Even though respondent had been criticized for deficient performance in orders issued during the course of particular cases, those orders, the court observed, "did not suggest that the criticism (or other adverse action) was a final `sanction' for that misconduct." (Id. at 121.) The court also stated that, "even if an attorney already has received ... a final sanction for each of several instances of misconduct, we may nonetheless impose further discipline if the individual instances of misconduct are found to be part of a sanctionable pattern that has not itself been addressed." (Id.) The court specifically stated that it was not disciplining respondent again for discrete misconduct for which she had already been sanctioned. The court further stated, "even if the previously sanctioned misconduct were ignored entirely, or treated as aberrational, [it] would nonetheless find that [disbarment was] warranted by the remaining misconduct." (Id. at 122.)
Finally, the court:
In a proceeding seeking reciprocal discipline pursuant to 22 NYCRR 603.3 (c), an attorney is precluded from raising any defenses except: (1) a lack of notice or opportunity to be heard constituting a deprivation of due process; (2) an infirmity of the proof presented to the foreign jurisdiction; or (3) that the misconduct for which the attorney was disciplined in the foreign jurisdiction does not constitute misconduct in this state.
Here, respondent, represented by counsel, actively participated in the Second Circuit disciplinary proceedings, and thus there was no deprivation of due process. Both the CAG and the Second Circuit cited to specific New York disciplinary rules, thereby satisfying the third prong of the test. Indeed, respondent concedes the sufficiency of the proof, with the exception of the charge relating to her failure to comply with court directives, which she claims was an unintentional consequence of her involvement in a car accident and her responsibilities in connection with her ailing father. However, she was not found guilty of willfully disobeying a court order, but only neglect, based on her own admission that the matter slipped her mind, and her injuries and father's illness were acknowledged as mitigating circumstances. In any event, that charge was not the most serious one, and respondent's principal argument is that the Second Circuit had previously disciplined her for all of the same misconduct, and she should not be sanctioned twice.
As to this argument, we note that the Second Circuit observed that the issue of respondent's submission of law student briefs without reading them had never been addressed in any prior disciplinary order. Indeed, rather than stating that respondent's disciplinary record of a prior suspension for making false statements to the court was an aggravating factor, the Second Circuit found her guilty of making the false statements, but credited her with a mitigating circumstance for the sanctions previously imposed for those statements. Notwithstanding this, the Second Circuit expressly declared that it was not disciplining respondent "again ... for that discrete misconduct" (585 F3d at 122).
The balance of respondent's misconduct as found in the order at issue, dismissal of 12 appeals for failure to comply with briefing schedules and the filing of at least 16 grossly inadequate briefs, does appear to have been considered in the Second
Insofar as respondent asserts that the Second Circuit punished her because it "was disappointed Judge Keenan could not implicate [her] in any wrongdoing" with respect to the unproven allegation that respondent filed fraudulent briefs, the court specifically stated that her "cooperation and affirmative efforts to expose fraudulent conduct [by the two attorneys who were responsible] were commendable, and are considered mitigating factors" (585 F3d at 122).
As a general rule, this Court accords significant weight to the discipline imposed by the jurisdiction where the charges were originally brought, even if greater or lesser sanctions have been imposed in New York for similar conduct (Matter of Jarblum, 51 A.D.3d 68, 71 ). This Court departs from that principle only with "reluctance" (Matter of Lowell, 14 A.D.3d 41, 48 , lv denied 5 N.Y.3d 708 ), primarily where the sanction in the originating jurisdiction deviates materially from this Court's precedent (Matter of Whitehead, 37 A.D.3d 86 ).
This Court has previously held that, where an attorney has "engaged in a pattern of neglect of client matters and failed to comply with court orders, disbarment is warranted" (Matter of Hatton, 44 A.D.3d 49, 52  [reciprocal disbarment based on Southern District of New York disbarment]). Here, respondent neglected numerous client matters, and failed to even attempt to address her deficiencies, despite warnings and opportunities to do so. At least as late as the most recent Second Circuit disciplinary proceeding, respondent even maintained that her work was competent. She has not evinced any insight into the impropriety, and resultant harm, of submitting law student work product without review, and even tries to invoke that misconduct as a mitigating factor. The pervasiveness of respondent's neglect is compounded by the vulnerability of her immigrant clients. Her prior disciplinary history (of making
Accordingly, the Committee's petition should be granted, respondent's request for a hearing should be denied, and respondent should be disbarred and her name stricken from the roll of attorneys and counselors-at-law in the State of New York.
Respondent disbarred, and her name stricken from the roll of attorneys and counselors-at-law in the State of New York, effective the date hereof.