Full opinion text
PER CURIAM: Pursuant to this Court’s Local Rule 46.2, it is hereby ORDERED, ADJUDGED, AND DECREED that Douglas Payne is PUBLICLY REPRIMANDED for the misconduct described in the appended report of this Court’s Committee on Admissions and Grievances (“the Committee”), except as discussed below. I. Summary of Proceedings By order dated March 11, 2010, this Court referred Payne to the Committee for investigation of the matters described in that order and preparation of a report on whether he should be subject to disciplinary or other corrective measures. During the Committee’s proceedings, Payne had the opportunity to address the matters discussed in the Court’s referral order and to testify under oath at a hearing, which was presided over by Committee members Mary Jo White and Terrence M. Connors. Payne proceeded pro se before the Committee. Thereafter, the Committee filed with the Court the record of the Committee’s proceedings and its report and recommendations, and Payne filed a response to the Committee’s report. Those documents are each made public as appendices to this opinion. In its report, the Committee concluded that there was clear and convincing evidence that Payne had engaged in misconduct warranting the imposition of discipline. See Report at 8. Specifically, the Committee found that Payne had, inter alia: (1) defaulted on scheduling orders in fourteen cases, resulting in their dismissal, although he succeeded in reinstating two of them; (2) filed stipulations to withdraw a number of appeals only after his briefing deadlines had passed; and (3) filed a deficient brief in Shao Qin Zheng v. Holder, 322 Fed.Appx. 6 (2d Cir.2009) (summary order), which resulted in this Court finding certain dispositive arguments waived. See id. at 4-7. After considering various aggravating and mitigating factors, the Committee recommended that Payne be publicly reprimanded and required to attend at least six hours of continuing legal education (“CLE”) classes in appellate immigration law. See id. at 7-8. In his response to the Committee’s report, Payne disagreed with several of the Committee’s findings and requested that this Court issue a private, rather than public, reprimand. II. Discussion A. Contents of a Response to a Committee Report Neither the Federal Rules of Appellate Procedure nor this Court’s local rules specify the format or contents of an attorney’s response to a Committee report recommending that the Court impose disciplinary or other corrective measures against the attorney. Although we presently see no need for a comprehensive rule governing the format or contents of such a response, attorneys must adhere to several basic, commonsense rules. First, evidence and arguments may not be raised in the response filed in this Court unless they have first been raised before the Committee, except where good cause exists for raising the new evidence or arguments for the first time in the response. See In re Warburgh, 644 F.3d 173, 179 (2d Cir.2011) (“Permitting defenses and issues to be raised for the first time after the Committee’s report has been filed with the Court would require the Court either to decide issues that were never analyzed by the Committee- — -the very body charged with performing such an analysis in the first instance — or to remand the matter to the Committee for further proceedings.”). Good cause may exist, for example, when the Committee report itself presents evidence or issues for the first time in the proceedings. When a respondent attorney wishes to rely on new evidence in this Court, the attorney must request leave to supplement the record and proffer the new evidence in admissible form. The request to supplement the record can be filed prior to, or with, the attorney’s response to the Committee’s report. New arguments must be clearly identified in the response to the Committee’s report. With regard to both new evidence and new arguments, the attorney must explain, by detailed declaration made under penalty of perjury, why good cause exists for raising the new evidence or arguments for the first, time in the response. Second, all arguments and statements of fact must be supported by proper citations to the record. Cf. Fed. R.App. P. 28(a)(9)(A) (requiring argument in an appellant’s brief to contain, inter alia, “appellant’s contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies”). Although we do not require an attorney’s response to comply with all aspects of Rule 28, the need for citations to the record should be clear to any attorney filing a document with a Court. Citations to the record serve several important functions, including informing the reviewing court that a fact or argument was indeed first raised in the underlying proceeding, and enabling the reviewing court to quickly find the relevant portions of the record. In the present case, Payne’s arguments required review of a record several hundred pages long. While we do not penalize Payne for his lack of citations, since no explicit requirement is found in our rules, or in earlier decisions of the Court, this opinion serves as notice to the bar that proper citations are required in all future filings in disciplinary proceedings and that their absence may result in a finding of waiver or other adverse consequence. B. Default in Jin Xia Lin v. Ashcroft, No. 04-6180 In Jin Xia Lin v. Ashcroft, Payne failed to file an appellant’s brief in accordance with this Court’s scheduling order, causing the dismissal of the case based on that default, and then failed to contact the Court until nearly three years later, when he filed a motion for reinstatement, which was denied. See Jin Xia Lin v. Ashcroft, No. 04-6180-ag (2d Cir. Jan. 6, 2006) (order dismissing appeal for failure to comply with scheduling order); id. (2d Cir. Nov. 10, 2008) (motion for reinstatement); id. (2d Cir. Dec. 22, 2008) (order denying reinstatement). Payne explained to the Committee and this Court that he allowed the default dismissal to occur due to inadvertence, his inability to contact his client, and his assessment that the case lacked merit, and that he attempted to reinstate it nearly three years later based on renewed contact with the client and a new assessment of its merits. See Transcript (Tab E of Record) at 9-14; Response to Notice of Referral (Tab C) at 3-4; Response to Committee Report at 1. The Committee found Payne’s “various explanations for failing to contact the Court prior to his motion to reinstate to be lacking in credibility.” Report at 4-5. While Payne now argues that this finding is “flawed,” he does not identify any specific flaw and, instead, essentially repeats the explanation he gave to the Committee. Response to Committee Report at 1. He does not explain why the Committee’s credibility determination is not supported by the record, or cite to evidence in the record supporting his argument that the Committee was incorrect. We have given “particular deference” to the factual findings of district judges and immigration judges where those findings were based on demeanor-based credibility determinations, and somewhat lesser deference to credibility findings based on an analysis of a witness’s testimony. See United States v. Cuevas, 496 F.3d 256, 267 (2d Cir.2007) (“Factual findings based on the testimony and observation of witnesses are entitled to ‘particular deference.’”) (quoting United States v. Morrison, 153 F.3d 34, 52 (2d Cir.1998)); United States v. Mendez, 315 F.3d 132, 135 (2d Cir.2002) (“Where the district court’s factual findings are premised upon credibility determinations, we grant particularly strong deference to those findings.”); Jin Chen v. U.S. Dep’t of Justice, 426 F.3d 104, 113 (2d Cir.2005) (‘We give particular deference to credibility determinations that are based on the adjudicator’s observation of the applicant’s demeanor, in recognition of the fact that the [immigration judge’s] ability to observe the witness’s demeanor places her in the best position to evaluate whether apparent problems in the witness’s testimony suggest a lack of credibility or, rather, can be attributed to an innocent cause such as difficulty understanding the question.... On the other hand, we grant lesser deference to credibility determinations that are based on analysis of testimony as opposed to demeanor.”). We find that the Committee members who presided over the hearing in this case, who are experienced attorneys appointed by the judges of this Court, should be accorded the same deference for their credibility determinations. See In re Dale, 87 A.D.3d 198, 200, 927 N.Y.S.2d 267 (4th Dep’t 2011) (“[W]hen the resolution of issues in [an attorney] disciplinary proceeding depends upon the credibility of witnesses, a referee’s findings are entitled to great weight.” (internal quotation marks omitted)); In re Cohn, 194 A.D.2d 987, 990, 600 N.Y.S.2d 501 (3d Dep’t 1993) (“We are ... loathe to disturb such conclusions [crediting a client’s testimony over the attorney’s] as the Referee is in the best position to assess credibility.”); In re Somers, 50 A.D.2d 396, 397, 378 N.Y.S.2d 703 (1st Dep’t 1976) (“since the prime issue on this charge depends on the credibility of the witnesses, we give great weight to the findings of the Referee, who had the firsthand opportunity to judge them and to evaluate the testimony adduced”). In the present case, the Committee did not find credible Payne’s explanation for not contacting the Court in the nearly three-year period between his default in Jin Xia Lin and the filing of his motion to reinstate. See Report at 4-5. Although Payne challenges that credibility determination, he simply repeats the rejected explanation without suggesting why it necessarily should have been credited by the Committee. Response to Committee Report at 1. Additionally, the Committee members who presided over the hearing had the ability to observe and evaluate Payne’s voice and demeanor, which was central to the credibility finding. Under these circumstances, we defer to the Committee’s finding. C. Default in Xue-Dong Zhou v. Ashcroft, No. 04-3994 Regarding the default dismissal in Xue-Dong Zhou v. Ashcroft, Payne states the following in his response to the Committee’s report: (a) the petitioner discharged him as counsel in August 2005, prior to the deadline for his brief; (b) as the deadline approached and no new attorney appeared for the petitioner, he contacted the petitioner to see if he wanted Payne to file an extension motion, and the petitioner “specifically authorized” the filing of the motion, which was Payne’s last act for the petitioner; and (c) by implication, the later default dismissal was the responsibility of the petitioner since Payne’s discharge preceded that final default. See Response to Committee Report at 2, 9. However, Payne’s prior statements to the Committee about these circumstances omitted the second point: in his response to the Committee’s notice of referral, he merely indicated that he was not responsible for the default since he had been discharged by his client prior to the due date for the brief. See Response to Notice of Referral at 5. Further, in his hearing testimony, he stated, when asked why he had sought an extension after his discharge, “I guess simply just to give [the petitioner] an opportunity to have another counsel come in.” Transcript at 20. Thus, in contrast to his present position, he never informed the Committee that the petitioner had authorized him to file the motion despite the earlier discharge. Under these circumstances, it is hard to fault the Committee for finding Payne had violated the disciplinary rules by continuing to represent a client after being discharged. See Report at 8. We could treat Payne’s failure to present his current argument to the Committee in the first instance as a waiver of the argument. See Warburgh, 644 F.3d at 179; Second Cir. Local Rule 46.2(b)(3)(D)(ii). However, even if we credit Payne’s belated argument, he still is conceding problematic conduct: At no time did he seek the Court’s approval to withdraw as counsel or advise the Court that he had been discharged as counsel. As a result of his failure to formally withdraw, subsequent Court communications continued to be directed to Payne and not the petitioner, leaving open the questions of whether Payne forwarded those subsequent communications to the petitioner and whether the petitioner was aware that the case later went into default and was dismissed. Even if Payne vigilantly passed along all such communications, the delays inherent in forwarding a former client’s mail puts the former client at risk of not timely receiving notice of important developments in his case. D. Late Stipulations to Withdraw Case Concerning the Committee’s finding that Payne had “filed stipulations under Fed. R.App. P. 42(b) to withdraw [nine] cases with prejudice only after the briefing deadlines had passed,” Report at 6, Payne responds that the Committee’s finding is “generally inaccurate” because the United States Attorney’s Office filed those stipulations after he had signed them, and that he had signed “the majority of these stipulations at or prior to the deadlines,” Response to Committee Report at 2. However, only two of the nine stipulations indicate that Payne had signed them on or prior to the briefing deadlines. See Chun-Jin Lin v. Ashcroft, No. 03-41134 (brief due Jan. 16, 2006; stipulation signed Jan. 13, 2006); Fusong Wang v. Ashcroft, No. 04-2695 (brief due Apr. 8, 2005; stipulation signed Apr. 8, 2005). In any event, an attorney does not satisfy a filing deadline by signing or dating the relevant document prior to the deadline; he satisfies the filing deadline by filing prior to the deadline. See Fed. R.App. P. 25(a)(2) (“filing is not timely unless the clerk receives the papers within the time fixed for filing,” except that a brief or appendix is timely filed if mailed to the clerk “on or before the last day for filing”). Moreover, counsel of record cannot outsource his obligation to comply with this Court’s scheduling orders. The United States Attorney did not violate Payne’s filing deadlines — Payne violated them, since his obligation under this Court’s scheduling orders continued after he sent the stipulations of dismissal to the Government. If there was any reason to believe a stipulation might not be filed prior to the deadline for his brief, Payne’s obligation was to (a) seek an extension of time or stay of proceedings, (b) file his brief, or (c) request guidance from the Court. Simply ignoring the deadline, or assuming another party will fulfill that obligation, is not an option. E. Intentional Prejudice to Clients Payne challenges the Committee’s finding that Payne had intentionally prejudiced or damaged his clients in fourteen cases in which he defaulted on scheduling orders and in nine cases in which he filed stipulations to withdraw the case with prejudice after briefing deadlines had passed, in violation of New York Disciplinary Rule (“D.R.”) 7-101(A)(3). Report at 5-6. Payne argues that this finding is not supported by the record and that his defaults resulted from inadvertence or instructions from clients not to file their briefs. Response at 2. We agree with the Committee that Payne’s failure to file briefs was intentional in those cases where he had lost contact with clients or where clients had instructed him not to file a brief. Additionally, to the extent Payne caused the dismissal of cases by defaulting without his clients’ consent, those clients were prejudiced, even if their cases appeared to lack merit, as they were “deprived] ... of review by a panel of Article III judges” and the resulting “satisfaction, consolation, or sense of finality from knowing that the loss on appeal resulted from the reasoned decision of three judges rather than from their attorney[’s] default.” In re Fengling Liu, 664 F.3d 367, 373 (2d Cir.2011) (per curiam). However, the record does not contain clear and convincing evidence that Payne had intentionally prejudiced or damaged his clients. Instead, we find that Payne neglected legal matters entrusted to him, in violation of D.R. 6-101(A)(3). F. Defective Briefing in Shao Qin Zheng v. Holder, No. 08-1965 In his response to the Committee’s findings that his briefing in Shao Qin Zheng was defective, Payne “diverge[s]” from the explanation he provided to the Committee and now presents to us a somewhat new analysis of that case and his brief. Response to Committee Report at 3. We find Payne’s argument barred for two reasons. First, Payne’s revised argument was not presented to the Committee in the first instance, and Payne has not shown good cause for failing to do so. While we appreciate that the revisions in his argument are based on his “further reading and reflection” on the administrative agency decisions, id., that does not, by itself, constitute good cause for presenting a new argument at this stage of the proceedings. Second, in any event, Payne’s arguments concerning Shao Qin Zheng in the present disciplinary proceeding constitute a direct challenge to this Court’s prior merits decision in that case, which we cannot entertain. Panels of this Court are “bound by the decisions of prior panels until such time as they are overruled either by an en bane panel of our Court or by the Supreme Court.” In re Zarnel, 619 F.3d 156, 168 (2d Cir.2010) (internal quotation marks omitted). Although the pres ent panel, known as the Grievance Panel under this Court’s local rules, is charged with presiding over this Court’s disciplinary proceedings, those rules give this panel no more authority to revisit a prior panel’s decisions than any other three-judge panel of this Court. Thus, as a general matter, when a disciplinary charge is based on a prior decision of another panel of this Court, neither the charged attorney, nor the Committee, nor this panel is free to revisit the issues disposed of in that prior panel decision. While there may be unusual cases where constitutional concerns require the Grievance Panel to revisit, in some manner, a prior panel’s decision, the present case does not present any such concerns. As a result, we reject Payne’s challenge to the Committee’s findings concerning his briefing in Shao Qin Zheng and conclude that those findings are supported by clear and convincing evidence. G. Mitigating and Aggravating Factors We adopt all of the mitigating factors noted by the Committee, and decline to consider additional mitigating factors raised by Payne for the first time in his response to the Committee’s report, since he has not shown good cause for not raising them before the Committee. We also reject his suggestion that the loss of client contact, which left him unable to proceed with a number of cases, should be considered a mitigating factor in the context of his defaults. Response to Committee Report at 5-6. While we recognize the difficulties resulting from a transient clientele, counsel may not end the representation of a client without taking affirmative action, or permit the termination of an appeal by allowing its dismissal for lack of prosecution. Depending on the precise circumstances, the proper course of action would have been to affirmatively seek, prior to any applicable deadline: (a) an extension of time, stay of proceedings, or withdrawal of the case without prejudice to reopening by a specified deadline, if Payne believed that the client might resurface and want to proceed with the case; (b) leave to withdraw as counsel; (c) leave to withdraw the case without prejudice; or (d) guidance from the Court. We acknowledge the evidence of good reputation and character Payne submits in the form of a complimentary internet review of his practice by a former client. However, we are unable to accord it weight as it is unsworn, unverifiable (since the client-reviewer was anonymous), and otherwise 10 lacking any indicia of reliability. Furthermore, we reject Payne’s argument that he should not have been charged with misconduct for defaulting on briefing schedules when the then-existing rules governing the filing of briefs made no mention of disciplinary consequences for untimely filing, and that this lack of notice should be considered a mitigating factor. Response to Committee Report at 6-7. To the contrary, it is an elementary fact and expectation of legal practice that an attorney who fails to abide by a court rule or order may be subject to sanctions or other adverse consequences. See Fed. R.App. P. 46(c) (“A court of appeals may discipline an attorney who practices before it for conduct unbecoming a member of the bar or for failure to comply with any court rule.”); Daval Steel Prods. v. M/V Fakredine, 951 F.2d 1357, 1366 (2d Cir.1991) (“Parties and counsel have no absolute entitlement to be ‘warned’ that they disobey court orders at their peril.”); see also Maness v. Meyers, 419 U.S. 449, 458, 95 S.Ct. 584, 42 L.Ed.2d 574 (1975) (‘We begin with the basic proposition that all orders and judgments of courts must be complied with promptly. If a person to whom a court directs an order believes that order is incorrect the remedy is to appeal, but, absent a stay, he must comply promptly with the order pending appeal. Persons who make private determinations of the law and refuse to obey an order generally risk criminal contempt even if the order is ultimately ruled incorrect.”). We also adopt the Committee’s findings regarding aggravating factors, and reject Payne’s challenges to those findings, except as to the Committee’s finding that “Payne’s defective briefing and pattern of waiving claims he deems are not ‘dispositive’ of a petitioner’s case demonstrates sloppy practice.” Report at 7-8. Regarding this finding, it is not entirely clear to the Court from a review of the Report what defects are being referenced, and what waivers were incorrect, sufficient to give rise to a finding of a “pattern” demonstrating “sloppy practice.” The Committee’s Report directs our attention to the March 11, 2010 referral order, which does discuss two cases in which prior panels of the Court had found that Payne had waived certain claims by not discussing them in his briefs. Referral Order at 3. While we agree with the Committee that one of those briefs, filed in Shao Qin Zheng, was defective for the reasons discussed by the panel that decided that case, see Section 11(F) above, the Committee explicitly found “no misconduct in Payne’s strategic decision not to pursue” a waived claim in the other case. Report at 6-7. Inasmuch as the Committee found a single example of a defective brief, we do not think clear and convincing evidence supports a finding that “Payne’s defective briefing and pattern of waiving claims he deems are not ‘dispositive’ of a petitioner’s case demonstrates sloppy practice” H. Request for Private Reprimand We deny Payne’s request for a private, rather than public, reprimand. While it is true that Payne has reduced his caseload and that his “failures occurred several years ago,” Report at 7, suggesting that there is little likelihood of repetition, we conclude, consistent with our prior disciplinary decisions, that his misconduct was sufficiently egregious to warrant a public reprimand, see, e.g., In re Agola, 484 Fed.Appx. 594, 594-95 (2d Cir.2012) (summary order) (public reprimand issued where attorney had failed to comply with this Court’s scheduling orders and deadlines in twenty-one cases, causing the dismissal of seven cases, and had been criticized by three district court judges and a magistrate judge); In re Spivak, 469 Fed.Appx. 16, 17-18 (2d Cir.2012) (summary order) (public reprimand issued where attorney had failed to comply with this Court’s scheduling orders in ten cases, causing their dismissal); In re Mundie, 453 Fed.Appx. 9, 10-11 (2d Cir.2011) (summary order) (public reprimand issued where attorney had filed a defective brief in one case, and failed to comply with this Court’s scheduling orders in thirty-eight cases, causing their dismissal); In re Einhorn, 428 Fed.Appx. 26, 26-27 (2d Cir.2011) (summary order) (public reprimand issued where attorney had defaulted in multiple criminal appeals and caused four to be dismissed on default, although all four were later reinstated); cf. American Bar Association, Standards for Imposing Lawyer Sanctions § III(A)(1.2) (1986, amended 1992) (recommending that “[u]lti-mate disposition of lawyer discipline ... be public in cases of disbarment, suspension, and reprimand,” and that “[o]nly in cases of minor misconduct, when there is little or no injury to a client, the public, the legal system, or the profession, and when there is little likelihood of repetition by the lawyer, should private discipline be imposed”). III. Disposition Upon due consideration of the Committee’s report, the underlying record, and Payne’s submissions, it is hereby ORDERED that Payne is PUBLICLY REPRIMANDED for the misconduct described in the Committee’s report, except as discussed above, and DIRECTED to comply with the CLE requirement described on page eight of the Committee’s report. Payne must file, within one year of entry of this decision, an affidavit with this Court and the Committee’s secretary demonstrating his compliance with the CLE requirement. Payne must disclose this decision, and its appendices, to all courts and bars of which he is currently a member, and as required by any bar or court rule or order. Payne also must, within fourteen days of the filing of this order, file an affidavit with this Court confirming that he has complied with the preceding disclosure requirement. Furthermore, the Clerk of Court is directed to release this decision, and its appendices, to the public by posting it on this Court’s web site and providing copies to members of the public in the same manner as all other published decisions of this Court, and to serve a copy on Payne, this Court’s Committee on Admissions and Grievances, the attorney disciplinary committee for the New York State Appellate Division, First Department, and all other courts and jurisdictions to which this Court distributes disciplinary decisions in the ordinary course. APPENDIX 1 Text of March 11, 2010 Order For the reasons that follow, Douglas Payne is referred to this Court’s Committee on Admissions and Grievances for investigation of the matters described below and preparation of a report on whether he should be subject to disciplinary or other corrective measures. See Second Circuit Local Rule 46.2. We express no opinion here as to an appropriate disposition. The Committee may, of course, in the first instance, determine the appropriate scope of its investigation. Payne was referred to the Grievance Panel based on his conduct in Jin Xia Lin v. Ashcroft, 04-6180-ag, which was dismissed in January 2006 after Payne failed to file a brief for the petitioner by the October 2005 due date. See Jin Xia Lin, 04-6180-ag, order filed 1/6/06. Nearly three years later, in November 2008, Payne filed a motion for reinstatement of the case, stating that his earlier opinion that the case “was not particularly meritorious” had changed. Id., motion filed 11/10/08. Payne also alleged that he had sought an extension of time to file his brief in 2005. Id. However, this Court has no record of any such request, and Payne did not submit a copy of that earlier request, explain why he had failed to contact the Court in the prior three years to ascertain the status of the request, or claim that he did not receive the January 2006 dismissal order. Payne’s motion for reinstatement was denied. Id., order filed 12/22/08. Further review reveals that, of the 109 additional cases for which Payne is listed as an attorney of record, he has defaulted on this Court’s scheduling orders 14 times. See cases docketed under 03-4323-ag, 03-40020-ag, 04-1021-ag, 04-2070-ag, 04-2413-ag, 04-3040-ag, 04-3968-ag, 04-3994-ag, 04-4218-ag, 04-4871-ag, 04-5375-ag, 04-6039-ag & 05-2686-ag (consolidated), 05-5094-ag, 05-5224-ag. Although Payne requested and was granted extensions of time in most of the defaulted cases, he allowed the final briefing deadlines to pass without requesting additional extensions of time, a stay of proceedings, or leave to voluntarily dismiss the petitions for review. All 14 cases were dismissed, although Payne filed successful motions to reinstate in two of them. In Jun Jian Zheng v. Gonzales, the case was dismissed in May 2006 but reinstated in February 2007. See 03-40020-ag, order filed 2/14/07. In his reinstatement motion, Payne attributed his delay in moving to reinstate to the fact that he “[had] been occupied with many other matters so that [he had] not been in the position to promptly prepare [the] petitioner’s brief.” Id. at 1/5/07 entry. In the other ease, Xiao Yun Lin v. Gonzales, Payne moved to reinstate the case after it was dismissed in February 2006, on the grounds that it should be consolidated with a pending case that had been filed by the petitioner’s husband. See 05-2686-ag at 4/12/06 entry; see also Chen Quin Liu v. Ashcroft, 04-6039-ag, order filed 7/11/06 (consolidating cases). This Court granted the motion; however, Payne failed to explain why he had not moved to consolidate the two cases before allowing the briefing deadline in 05-2686 to pass. Furthermore, although the husband’s case, docketed under 04-6039, was never dismissed for failure to comply with this Court’s scheduling orders, Payne filed his brief in that matter one week after the deadline had passed. See 04-6039-ag at 4/12/06 entry. Similarly, in another case, the Government moved to dismiss Payne’s case after he failed to submit a timely brief. See Jian He Zhang v. Holder, 04-2157-ag at 8/30/05 entry. In that instance, Payne promptly filed his brief following the Government’s motion to dismiss, which this Court accepted. Id. at 9/1/05. The case was later remanded to the BIA on the consent of both parties. Id., order withdrawing appeal filed 12/19/05. Additionally, in nine cases, Payne filed stipulations under Fed. R.App. P. 42(b) to withdraw the cases with prejudice only after the briefing deadlines had passed, and after having received multiple extensions of time. See cases docketed under 03-4018~ag (stipulation filed one month after deadline), 03-41134-ag (stipulation filed two weeks after deadline), 04-1559-ag (stipulation filed one week after deadline), 04-2838-ag (stipulation filed three weeks after deadline), 04-2695-ag (stipulation filed five days after deadline), 04-3501-ag (stipulation filed two weeks after deadline), 04-4092-ag (stipulation filed two months after deadline), 04-5933-ag (stipulation filed one week after deadline), 04-6123-ag (stipulation filed two weeks after deadline). In five other cases, Payne filed identical withdrawal stipulations on the day that his briefs were due. See cases docketed under 02-4888-ag, 03-40631-ag, 03-40633-ag, 03-41093-ag, 05-1023-ag. Moreover, in Yu Chun Chen v. Ashcroft, 02-4931-ag, this Court issued, in March 2006, an order to show cause why the case should not be dismissed based on Payne’s failure to prosecute the case, which had been filed in this Court in December 2002. See 02-4931-ag, order filed 3/29/06. In response, Payne attributed his oversight to the fact that he had never received a scheduling order from this Court after the case was transferred here by the district court. Id., response filed 4/19/06. Although Payne appeared to suggest that the lack of a scheduling order resulted from the failure of the district court to transfer the case file to this Court, he did not explain his own failure to ascertain the status of the case during the three years in which it was pending. Id. After a briefing schedule was issued, Payne ultimately withdrew the appeal with prejudice the day after the petitioner’s brief was due. Id., entry at 10/3/06. Finally, a review of this Court’s orders reveals that, in two cases, Payne failed to sufficiently argue certain dispositive claims, such that they were unreviewable by this Court. See Han Ying Zhu v. Gonzales, 05-5761-ag, order filed 8/10/06 (finding challenge to pretermission of asylum application jurisdictionally barred and that petitioner “ha[d] not meaningfully challenged the [immigration judge’s] denial of her claim for CAT relief in her brief to this Court”); Shao Qin Zheng v. Mukasey, 08-1965-ag, order filed 3/23/09 (finding immigration judge’s adverse credibility finding dispositive of petitioner’s asylum and CAT claims but deeming any challenge to that finding waived because it was not challenged in the opening brief). Upon due consideration of the matters described above, it is hereby ORDERED that Douglas Payne is referred to this Court’s Committee on Admissions and Grievances for investigation and preparation of a report, pursuant to Federal Rule of Appellate Procedure 46, this Court’s Local Rule 46.2, and the Rules of the Committee on Admissions and Grievances, [text redacted] FOR THE COURT: Catherine O’Hagan Wolfe, Clerk By: Michael Zachary Supervisory Staff Attorney Counsel to the Grievance Panel APPENDIX 2 Report of the Committee on Admissions and Grievances I. Introduction By Order dated March 11, 2010, the United States Court of Appeals for the Second Circuit (“the Court”) referred Douglas B. Payne to this Committee for investigation of his conduct before the Court and for preparation of a report on whether he should be subject to disciplinary or other corrective measures. See Order of the Grievance Panel: Request for State and District Court Disciplinary Information, 10-90019-am (“Order”). The Order raised a number of areas of concern regarding Payne’s conduct. First Payne was referred to this Committee to investigate his conduct surrounding his motion to reinstate Jin Xia Lin v. Ashcroft, 04-6180-ag. Second, the Order noted that Payne defaulted on a number of scheduling orders during the period of 2004 to 2006. Third, the Order noted that in nine cases, during the period of 2004 to 2006, Payne filed stipulations to withdraw only alter briefing deadlines bad passed and after having received multiple extensions of time. Fourth, the Order noted that Payne has filed deficient briefs in the Court. The Court observed that Payne’s briers failed to sufficiently argue certain dispositive claims such that they were un-reviewable by the Court. The Committee recommends that Payne be publicly reprimanded for his conduct, and that he be required to complete pre-approved CLE courses in appellate immigration practice. The following constitutes the Committee’s report and recommendation. II. This Disciplinary Proceeding On April 7, 2010, this Committee issued a Notice of Referral and Proceeding to Payne. The Notice ordered, inter alia, Payne to show cause why the Committee should not recommend disciplinary and/or other corrective action in connection with the matters set forth in the Order. On June 29, 2010, Payne filed a Response with the Court in response to the Order. On August 11, 2010, a hearing was held, conducted by Committee members Mary Jo White and Terrence M. Connors (the “Hearing”). Payne appeared pro se and did not have any other witnesses. III. Factual Background The following facts are taken from court records and from Payne’s written submissions and testimony and exhibits at the Hearing. Douglas Payne graduated from University of Michigan Law School in 1975 and got his B.A. from Princeton University in 1969. (Tr. at 26.) He is admitted in the Second Circuit and in seven other circuits and in the Southern District of New York and Eastern District of New York. At the time of his response, he had six immigration cases pending before the Second Circuit. (Response at 1.) He has been a solo practitioner for 24 years. (Tr. at 26.) His practice has focused on immigration law. (Tr. at 26.) Payne’s law office also includes a secretary and has, in the past, included part-time “assistants.” (Tr. at 18.) Since the time of his defaults on scheduling orders, Payne has reduced his caseload, which now consists of approximately thirty cases total. (Tr. at 36.) Although Payne has never been disciplined for professional misconduct, during a time when he was on “inactive” status on the State Bar of Michigan, he was suspended for nine days for nonpayment of dues. Upon learning of the suspension, Payne resigned from the State Bar of Michigan on March 11, 2004. (Response at 1; Tr. at 28-29.) IV.The Committee’s Role and Standard of Review Under the Rules of the Committee on Admissions and Grievances for the United States Court of Appeals for the Second Circuit (“Committee Rules”): An attorney may be subject to discipline or other corrective measures for any act or omission that violates the rules of professional conduct or responsibility of the state or other jurisdiction where the attorney maintains his or her principal office.... An attorney also may be subject to discipline or other corrective measures for any failure to comply with a Federal Rule of Appellate Procedure, a Local Rule of the Court, an order or other instruction of the Court, or a rule of professional conduct or responsibility of the Court, or any other conduct unbecoming a member of the bar. Committee Rule 4; see also Fed. R.App. P. 46(c) (“[A] court of appeals may discipline an attorney who practices before it for conduct unbecoming a member of the bar or for failure to comply with any court rule”). “Conduct unbecoming a member of the bar” includes “conduct contrary to professional standards that shows an unfitness to discharge continuing obligations to clients or the courts, or conduct inimical to the administration of justice. More specific guidance is provided by case law, applicable court rules, and ‘the lore of the profession,’ as embodied in codes of professional conduct.” In re: Snyder, 472 U.S. 634, 645, 105 S.Ct. 2874, 86 L.Ed.2d 504 (1985). The Committee’s “finding that an attorney has engaged in misconduct or is otherwise subject to corrective measures must be supported by clear and convincing evidence.” Committee Rule 7(h). If this burden is met, the Committee will then generally consider (a) the duty violated; (b) the lawyer’s mental state; (c) the actual or potential injury caused by the lawyer’s misconduct; and (d) the existence of aggravating or mitigating factors, in order to determine the sanction, if any, to recommend to the Court. See American Bar Association’s Standards for Imposing Lawyer Sanctions (“ABA Standards”) § 3.0. The Committee may recommend to the Court’s Grievance Panel a range of sanctions, including disbarment, suspension, public or private reprimand, monetary sanction, removal from pro bono or Criminal Justice Act panels, referral to other disciplinary bodies, supervision by a special master, counseling or treatment, or “such other disciplinary or corrective measures as the circumstances may warrant.” Committee Rule 6. V. The Legal Standard for Identifying Misconduct Courts have consistently treated neglect of client matters and ineffective or incompetent representation as sanctionable conduct. See, e.g., Gadda v. Ashcroft, 377 F.3d 934, 940 (9th Cir.2004); Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 133 (2d Cir.2004); In re Dilmaghani, 78 A.D.3d 39, 49, 908 N.Y.S.2d 615 (N.Y.App.Div.2010); Matter of Rabinowitz, 189 A.D.2d 402, 408, 596 N.Y.S.2d 398 (N.Y.App.Div.1993); United States v. Song, 902 F.2d 609 (7th Cir.1990); Matter of Kraft, 148 A.D.2d 149, 543 N.Y.S.2d 449 (N.Y.App.Div.1989); In re Bithoney, 486 F.2d 319 (1st Cir.1973). Such conduct is also sanctionable under the applicable professional rules and standards. Because Payne’s conduct at issue in this matter occurred prior to the adoption of the New York Rules of Professional Conduct in 2009, it is governed by the New York Lawyer’s Code of Professional Responsibility (the “Code”). References to the applicable provisions of the Code will be to the Disciplinary Rules (“D.R.”) and Ethical Considerations (“E.C.”). Citations to the current New York Rules of Professional Conduct (“Rules”) are for reference only to demonstrate the continuity of an attorney’s responsibilities and ethical obligations under both the old and current frameworks. Additionally, the ABA Standards call for a range of sanctions from reprimand to disbarment for various forms of “lack of diligence” and “lack of competence.” ABA Standards §§ 4.4, 4.5. While not binding, the ABA Standards provide additional guidance in this matter. With respect to Payne’s conduct that is the subject of this Report and Recommendation, the applicable provisions of the Code make clear that “[a] lawyer shall not ... [njeglect a legal matter entrusted to the lawyer.” D.R. 6-101(a)(3). Additionally, a lawyer has a duty to represent his or her client “zealously,” D.R. 7-101, E.C. 7-1, and should “be punctual in fulfilling all professional commitments,” E.C. 7-38. The Code also prohibits a lawyer from engaging in conduct that is prejudicial to the administration of justice or adversely reflects on the lawyer’s fitness as a lawyer. See D.R. 1 — 102(A)(5), (7); see also Rules 8.4(d), (h). This Court has also made clear in the context of intentional defaults on scheduling orders, that “an appellant’s counsel of record who determines that the appeal will not proceed for any reason is required to inform the Court of the situation and seek to either withdraw the appeal or withdraw as counsel. Counsel of record may not end the representation of a client without taking affirmative action, or end an appeal by allowing its dismissal for lack of prosecution.” In re Yan, 390 Fed.Appx. 18, 21 (2d Cir.2010). VI. The Alleged Misconduct A. Jin Xia Lin v. Ashcroft, 04-6180-ag Payne was referred to this Committee following the Court’s review of his motion to reinstate Jin Xia Lin v. Ashcroft, 04-6180-ag. Jin Xia Lin was dismissed on default in January 2006. Nearly three years later, on November 10, 2008, Payne filed a motion for reinstatement of the case, stating that his earlier opinion that the case “was not particularly meritorious” had changed. (Hearing, Ex. 3.) In his 2008 motion, Payne explained that he sought an extension of time to file his brief in 2005, but later “overlooked the fact that I had not received an extension of time to file Petitioner’s Brief and the Joint Appendix until after the Mandate had issued.” (Id.) The Court had no record of any extension request by Payne, Payne did not submit a copy of that earlier request, Payne did not explain why he failed to contact the Court in the intervening three years to learn the status of the request, and Payne did not claim that he had not received the January 2006 dismissal order. (Order at 2.) The motion for reinstatement was denied. In his written Response to the Committee, Payne admitted that the charges regarding Jin Xia Lin were “generally accurate.” (Response at 3.) He maintained that he requested an extension of thirty days beyond October 26, 2005 to file petitioner’s brief and attached a copy of his request, which he had subsequently found on his computer (Response, Ex. D; Tr. 12), but noted that the Court had no record of it. (Response, Ex. D.) To explain why he did not contact the Court during the previous three years, Payne claimed that the petition had no merit and he believed it “should have been withdrawn.” He explained that the petitioner moved away “towards the end of 2005,” and Payne lost communication with her and was unable to discuss the need for a stipulation of dismissal. (Response at 4.) According to Payne, the petitioner “eventually” came to his office to discuss the case and explained certain facts about her immigration court hearing that caused Payne to then think that her claim deserved review, and so he sought reinstatement. (Response at 4.) At the hearing before this Committee, Payne testified that he did not initially pursue the petition because he thought the case was weak and should be withdrawn, and then he had difficulty communicating with his client and the case was dropped. (Tr. at 13-14.) Payne did not recall if or when he or a staff member informed the petitioner that her case had been dismissed. (Tr. at 16.) Payne stated that he did not believe a default would result in any consequences to an attorney because it was a matter between the attorney and the client. (Tr. at 14.) Payne’s November 2008 motion did not state that his initial default was intentional. Instead, his motion states that he was waiting for an extension and “overlooked” the fact he did not get one until the appeal was dismissed. (Hearing, Ex. 3, at 2.) The Committee finds Payne’s various explanations for failing to contact the Court prior to his motion to reinstate to be lacking in credibility. Accordingly, the Committee finds that clear and convincing evidence demonstrates that Payne’s conduct in failing to comply with the Court’s scheduling order and his belated motion to reinstate was prejudicial to the administration of justice and “adversely reflects on [his] fitness as a lawyer.” D.R. 1-102(A)(5), (7); see also Rules 8.4(d), (h). B. Defaults and Late Briefs Of the 109 additional cases for which Payne was listed as an attorney of record as of the time of the Order, Payne defaulted on scheduling orders 14 times. (Order at 2.) The majority of these defaults took place several years ago — between 2005 and 2007. In most of the cases, Payne requested and was granted extensions of time only to default later. In two cases, Payne filed successful motions to reinstate the appeals (Jun Jian Zheng v. Gonzales, 03-40020-ag; Xiao Yun Lin v. Gonzales, 05-2686-ag), and in one case he was able to obtain partial relief for petitioner at the BIA. (See Response at 6 & Ex. H.). Payne testified that in the majority of these cases, he intentionally defaulted on the scheduling orders. (Response at 2-3; Tr. 14-25.) Payne claimed that the petitioners in most of these cases did not initially agree that he would write briefs on their behalf. Instead, the petitioners chose to wait until the outcome of the Civil Appeal Management Plan (“CAMP”) pre-argument conferences before deciding if they would authorize Payne to write briefs. Payne stated that if the petitioners decided not to have him write a brief, disappeared, or did not communicate with him about proceeding with the briefing, he did not write the briefs and instead allowed the appeals to be dismissed on default. (Response at 2-3.) Payne also claims he did not receive notification from the Second Circuit that he “was in default in filing any petitioner’s brief and should execute a stipulation with the U.S. Attorney’s Office to withdraw a petition for review.” (Response at 3.) Payne stated that he did not realize he had a duty to file a stipulation of dismissal or withdraw until the Court raised the issue with a colleague in 2004. (See Response at 3 & Exs. A-C; Tr. at 15.) Payne’s defaults, however, continued after 2004. In several of the cases, Payne denied that he defaulted on a briefing schedule. For example, in two cases, Payne stated that he did not default because the petitioner did not want him to proceed with the case. (Response at 5.) In another example, in Zhou v. Ashcroft, 04-3994-ag, Payne denied the allegation that he defaulted on the scheduling order, explaining that the petitioner’s brief was due on September 2, 2005 and the petitioner discharged Payne on August 17, 2005 before the brief was due. (Response at 5 & Ex. F.) On September 1, 2005, however, Payne filed a motion for an extension on behalf of the petitioner even though Payne had been discharged. In support of that motion, Payne declared that he represented the petitioner and asked for an extra thirty days. (See Hearing, Ex. 4.) Payne testified that he filed the motion for an extension after his client dismissed him in order to afford the petitioner a chance to hire new counsel. (Tr. at 20.) After filing the motion for an extension, Payne had no further interactions with the petitioner. (Tr. at 20.) In addition, in nine cases, Payne filed stipulations under Fed. R.App. P. 42(b) to withdraw the cases with prejudice only after the briefing deadlines had passed and after having received multiple extensions of time. Payne generally admitted these allegations, but in several cases claimed the allegations were “inaccurate” because his stipulation was signed before the briefing deadline passed. (Response at 7; Tr. at 34.) Payne admitted that failing to meet deadlines or file briefs on time “could be” neglect or an “oversight” of a client’s interests. (Tr. at 39.) He did not think his clients were prejudiced, even in the cases where he acknowledged that there was neglect. (Tr. at 40.) Payne explained that he would not know if the clients were prejudiced unless there was a positive result for them elsewhere, but that he did not believe there had been any positive results for the petitioners whose cases had defaulted. (Tr. at 40.) This is not an adequate defense to a charge of violating D.R. 7-101(A)(3) (“A lawyer shall not intentionally ... prejudice or damage his client during the course of the professional relationship....”) Payne’s defaulting precluded any opportunity for the Court to determine whether his clients were entitled to such positive results in their appeals. In depriving his clients of the opportunity to have their claims presented to and decided by the Court, we find, in these circumstances, a violation of D.R. 7-101(A)(3). The Committee finds that clear and convincing evidence demonstrates that these failures were prejudicial to the administration of justice and “adversely reflect [ ] on [his] fitness as a lawyer.” D.R. 1-102(A)(5), (7); see also Rules 8.4(d)(h). See also Rules 1.1(c)(1), (2); 1.3(c). The Committee also finds that the conduct occurred several years ago and notes that Payne has not had any defaults since the hearing in this matter. VII. Defective Briefing In Han Ying Zhu v. Gonzales, 05-5761-ag, the Court found that the challenge to pretermission of asylum application was jurisdictionally barred and that the petitioner “ha[d] not meaningfully challenged the [immigration judge’s] denial of her claim for CAT [Convention Against Torture] relief in her brief to this Court.” 192 Fed.Appx. 75 (2d Cir.2006). Payne admitted that he did not meaningfully challenge the denial of the petitioner’s Convention Against Torture (“CAT”) claim. He argued in his response that the waiver of the CAT claim was justified, however, because “there is absolutely no question that the petitioner’s claim for protection under [CAT] was not dispositive of this case.” (Response at 10.) Payne testified that he generally waives CAT claims because the burden of proof on such claims is so high that he does not believe they are worth the Court’s time. (Tr. at 25.) Under the circumstances of this case, the Committee finds no misconduct in Payne’s strategic decision not to pursue the petitioner’s CAT claim. In Shao Qin Zheng v. Mukasey, the Court found the immigration judge’s adverse credibility finding dispositive of the petitioner’s asylum and CAT claims but deemed any challenge to that finding waived because it was not challenged in the opening brief. See 322 Fed.Appx. 6, 7 (2d Cir.2009). Payne responded that it “is an absolute misrepresentation” and that the “Hearing Panel did not read” his brief. (Response at 12.) Payne explained that instead of challenging the adverse credibility finding as it related to past persecution, he challenged it as it related to the fear of future persecution because the “Court had held that reopening could be granted even if the IJ had made a negative credibility determination, if the factual basis for the second claim rested on facts different from the first asylum claim.” (Response at 12, citing Paul v. Gonzales, 444 F.3d 148, 154 (2d Cir.2006)). Payne’s brief did not cite Paul v. Gonzales, case involving a motion to reopen. Payne testified that while he “could have stated it in a more direct and clear fashion,” his argument about the fear of future persecution was based on an argument that the petitioner’s fear of returning to China was supported by background materials and thus that the adverse credibility finding was false. (Tr. at 23.) Payne admitted that the case was not on a motion to reopen. (Tr. at 23.) Payne testified that based on his review of the record, he had no grounds to challenge the adverse credibility finding as to the claim of past persecution. (Tr. at 23.) In his brief, Payne did not explain that he was waiving the adverse credibility finding as to past persecution but was challenging it as to fear of future persecution. Because the brief did not contain “appellant’s contentions and the reasons for them, with citations to the authorities,” as required by Fed. R.App. P. 28, the Committee finds that clear and convincing evidence demonstrates that Payne’s poor briefing in this case violated Fed. R.App. P. 28. VIII. Aggravating and Mitigating Factors Payne presented several mitigating factors. Payne testified that he was ill in the early part of 2006 and that while he could not “specifically state” that his physical condition affected his default in the Jin Xia Lin case, “it may well have.” (Tr. at 9-10.) Payne has attempted to remedy his case management problems by taking on fewer cases, and he no longer accepts engagements for representation of cases without ensuring that the representation includes the client’s agreement that Payne prepare and file a brief. (Tr. at 36; Response at 13.) In addition, after defaulting, Payne successfully obtained positive results in at least three cases, and has no record of prior discipline, ABA Standards § 9.32(a). Significantly, Payne’s failures occurred several years ago, and he has had no defaults since the hearing in this matter. In 2011, as of the date of this Report and Recommendation, Payne had 17 cases in the Court. He had no defaults or other issues in any of these cases and had not been criticized by the Court. There are some aggravating factors as well. While Payne’s failures to comply with scheduling orders occurred several years ago, approximately between 2004 and 2007, they stretched over a period of years. See ABA Standards § 9.22(c), (d). He is an experienced practitioner who should have recognized and addressed his problems sooner man he did. See ABA Standards § 9.22(f). Moreover, the Committee reviewed the briefs cited in the Order and finds them to be generally of poor quality. Payne’s defective briefing and pattern of waiving claims he deems are not “dispositive” of a petitioner’s case demonstrates sloppy practice. While Payne claimed that the defaults did not harm petitioners because the eases were “basically weak,” (Response at 13), it is not possible to say how the Court would have acted had the claims been presented. Payne’s conduct deprived his clients of the opportunity to have their claims heard, which thus prejudiced them. Persistent failure to comply with scheduling orders, or to properly withdraw, also shows a disregard for Payne’s responsibilities to the Court. See Bennett v. Mukasey, 525 F.3d 222, 225 (2d Cir.2008); D.R. 2-110(A)(2) (“[A] lawyer shall not withdraw from employment until the lawyer has taken steps to the extent reasonably practicable to avoid foreseeable prejudice to the rights of the client, including giving due notice to the client, allowing time for employment of other counsel, delivering to the client all papers and property to which the client is entitled, and complying with applicable laws and rules.”); see also Rule 1.16(e). Payne demonstrated a general lack of remorse about violating the Court’s scheduling orders and the alleged defective briefing, see ABA Standards § 9.32(g), although it appears that this misconduct ended prior to the Court’s Referral Order and has not been repeated. Finally, in one case where Payne denied wrongdoing, Payne admitted that he filed a motion for an extension on behalf of a petitioner who had already dismissed him, in violation of the disciplinary rules, see D.R. 2-110(B)(4) (“A lawyer representing a client before a tribunal, ... shall withdraw from employment ... if the lawyer is discharged by his or her client”); see also Rule 1.16(b)(3), although Payne explained that he did so to try to afford his former client time to obtain new counsel. IX. Recommendation The Committee is troubled by Payne’s conduct. The Committee finds, by clear and convincing evidence, violations of Fed. R.App. P. 28, 46(c); D.R. 1-102(A)(6), (7), 7-101(A)(3). The Committee recognizes that the defaults and other misconduct that are the subject of the Committee’s review are relatively dated, occurring largely in the period from 2004 to 2007, and that under ABA Standards § 9.32(j), passage of time can be a mitigating factor. Nevertheless, the Committee finds that Payne’s conduct warrants a strong public reprimand. In fact, were it not for the passage of time and Payne’s evident self-correction of at least certain of his practices that have led to the Committee’s finding of several disciplinary violations, the conduct and Payne’s response to it could have warranted a more severe sanction, including a possible period of suspension. Under all of the circumstances, the Committee recommends that Payne be publicly reprimanded. In addition, he should be required to complete no fewer than six hours of pre-approved CLE in appellate immigration law, from a CLE provider accredited by the bar of New York, in addition to the required hours of CLE. APPENDIX 3 Response of Douglas Payne to Report of the Committee on Admissions and Grievances I. The Alleged Misconduct A. Jin Xia Lin v. Ashcroft, 04-6180-ag The Committee’s finding that my “various explanations for failing to contact the Court prior to his motion to reinstate to be lacking in credibility” is flawed. I certainly failed to file petitioner’s brief on time because of inadvertence. However, at the Civil Appeals Management Program (“CAMP”) conference this Court’s staff attorney had indicated to me that this case was very weak and should be withdrawn. In the weeks prior to the deadline for petitioner’s brief, my staff had sought to communicate with the petitioner so that I could discuss this case with her. However, the Petitioner had moved away from the address we had for her (indeed, out of state to Massachusetts) and had not notified us of her new address or telephone number. Only years later did the petitioner come to my office to discuss this case. I admit that I should have taken some affirmative action to prevent the dismissal of this case and to reinstate it soon after it had been dismissed. Nevertheless, I would characterize the merits of this case as the weakest of any Petition for Review that I have ever filed. B. Defaults and Late Briefs With respect to Zhou v. Ashcroft, 04-3994-ag, although the petitioner discharged me as his counsel on August 17, 2005, as time passed and it was clear that no other attorney had appeared for him, I telephoned the petitioner and asked him if he wanted me to seek an extension of time to file petitioner’s brief. The petitioner agreed to this, and specifically authorized me to file a motion to extend the time to file petitioner’s brief, which I did on September 1, 2005 thus complying with the New York Lawyer’s Code of Professional Responsibility (the “Code”) Disciplinary Rule (“DR”) D.R. 2-110(B)(4), as the client petitioner specifically did not discharge me until after I filed a motion to extend the time to file petitioner’s brief. The allegation that I “filed stipulations under Fed. R.App. 42(b) to withdraw the cases with prejudice only after the briefing deadlines had passed” is generally inaccurate because the Office of the United States Attorney for the Southern District of New York (“USASD