In re Nussbaum Gell

94 A.D.3d 116, 940 N.Y.S.2d 34
CourtAppellate Division of the Supreme Court of the State of New York
DecidedFebruary 28, 2012
StatusPublished
Cited by21 cases

This text of 94 A.D.3d 116 (In re Nussbaum Gell) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Nussbaum Gell, 94 A.D.3d 116, 940 N.Y.S.2d 34 (N.Y. Ct. App. 2012).

Opinion

OPINION OF THE COURT

Per Curiam.

Respondent Amy L. Nussbaum Gell was admitted to the practice of law in the State of New York by the First Judicial Department on April 16, 1987 under the name Amy Lauren Nussbaum. At all relevant times respondent maintained an office for the practice of law within the First Judicial 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 publicly reprimanding her, or in the alternative, sanctioning respondent as this Court deems appropriate.

By order filed in August 2007, the Second Circuit referred respondent to its Committee on Admissions and Grievances (CAG) to investigate and report on whether she should be subject to discipline or other corrective measures. The order was based on the dismissal of 28 petitions for review of determinations of the Board of Immigration Appeals, for which respondent was counsel of record. The petitions were dismissed for failure to comply with the court’s scheduling orders. The order was also based on the dismissal on default of four other cases in which respondent accepted “primary responsibility,” although her name did not appear as the attorney of record.

Following submission of her written response to the court’s referral order, four days of hearings were conducted in 2008, at which respondent, then represented by counsel, testified and submitted additional material. Respondent conceded that between December 2005 and August 2007, she defaulted on 28 of 41 petitions for review she filed in the Second Circuit and four petitions filed in the Third Circuit for failing to comply with scheduling orders. However, respondent argued that her conduct did not prejudice any clients and that, indeed, some dismissed appeals were reinstated and other defaults were part of her strategy to gain time to pursue other, more advantageous forms of relief. Respondent further testified that in her experience, the court liberally reopened cases that were dismissed for noncompliance with scheduling orders and it was not until she received the referral order from the CAG that she realized the court was critical of repeated failure to comply with those [118]*118orders. Although not mentioned in the original referral order, respondent addressed the fact that she had filed at least 19 of the defaulted petitions prior to being admitted in the Second Circuit on March 3, 2006. Respondent admitted that she did not research whether she needed to be admitted for purposes of filing petitions for review, and testified that she relied on information conveyed by an associate in her firm, who had been advised by a court employee that, pursuant to the court rules, an attorney litigating before the court need not be admitted to the bar of the Second Circuit unless she intended to orally argue before the court.

In May 2009, the CAG filed a report finding respondent guilty by clear and convincing evidence of misconduct, and recommending a public reprimand and that she comply with certain reporting requirements. The CAG found that respondent had intentionally failed to comply with scheduling orders, resulting in the dismissal of a significant amount of cases, and that she practiced before the Second Circuit when she was not admitted to the court. Such conduct was found by the CAG to constitute neglect in violation of Code of Professional Responsibility DR 6-101 (a) (3) (22 NYCRR 1200.30 [a] [3]) and was “unbecoming a member of the bar” (Fed Rules App Pro rule 46 [c]), in violation of Federal Rules of Appellate Procedure rule 38. With respect to the default dismissals, the CAG noted respondent’s testimony that she had made a strategic decision to default, believing that it was in the best interests of her clients. The CAG concluded that it appeared that respondent was now “committed to strict compliance with scheduling orders by implementing law office changes.”

The CAG found that there were both mitigating and aggravating factors to consider. In aggravation was the vulnerability of respondent’s immigrant clients; her pattern of misconduct which was “heightened due to [the] intentional nature of the [default] strategy”; her commission of multiple offenses by filing petitions when she was not admitted to the court and then “systematically violating scheduling orders”; and that she was an experienced practitioner with more than 20 years of experience, who should have recognized and addressed her misconduct. Additionally, respondent had received two prior admonitions issued by the Departmental Disciplinary Committee. In 2004, respondent was personally admonished for missing a hearing, resulting in a deportation order for her client, intentionally failing to move to reopen the hearing, and failing to communicate [119]*119with her client as to her strategy to delay moving to reopen. In 2006, respondent’s firm was admonished for not filing a brief in the Second Circuit for which respondent accepted responsibility since she had supervisory responsibility for the case.

In support of mitigation, the CAG noted that respondent expressed a genuine commitment to her clients’ best interests, including often working for clients who did not pay their fees and for nonresponsive clients, evidencing the absence of a dishonest or selfish motive; that she testified about certain medical issues that arose during the time of the first admonition; that she was forthcoming and cooperative with the CAG’s investigation; that she expressed credible remorse for her misconduct; that she had taken good faith steps to prevent any recurrences by significantly limiting her caseload and committing to a diligent monitoring of court deadlines; that she appears to be a committed practitioner who provided quality work notwithstanding challenging situations; and that she appears to be well respected in the legal immigration community, as evidenced by her having worked for the Lawyers Committee for Human Rights and her having acted as the chairperson of the Federal Bar Association’s immigration law committee.

While respondent also argued that her conduct did not prejudice any clients and that, indeed, some dismissed appeals were reinstated and other defaults were intended to benefit her clients, the CAG determined that “the level of prejudice to clients does not excuse [respondent’s] disregard of court orders and the resulting burden on the Court and its staff.” Under the circumstances, the CAG recommended that respondent receive a public reprimand and be required to adhere to certain reporting requirements in connection with her practice in any federal court in the Second Circuit, or in any federal administrative agency whose action is subject to the Second Circuit’s review.

The Second Circuit adopted the CAG report, including its recommendation of a public reprimand and certain status report requirements, rejecting respondent’s request for private discipline because of “the magnitude of her misconduct and, to a lesser degree, her continued failure to abide by this Court’s scheduling orders.” The court pointed out that since her referral to the Grievance Committee, respondent had missed briefing deadlines in several cases, including after the hearing before the CAG. The court noted that while respondent had expressed her belief that no defaults had occurred since she was referred to the Grievance Committee, the court acknowledged that her [120]

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Cite This Page — Counsel Stack

Bluebook (online)
94 A.D.3d 116, 940 N.Y.S.2d 34, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-nussbaum-gell-nyappdiv-2012.