In Re Karen Jaffe ( 2009 )

06-9009-am
In re Karen Jaffe
1 UNITED STATES COURT OF APPEALS
2
3 FOR THE SECOND CIRCUIT
4
5 August Term, 2009
6
7
8 (Decided: October 19, 2009)
9
10 Docket No. 06-9009-am
11
12
13
14 ______________________________________________________
15
16
17
18 In re Karen Jaffe,
19
20 Attorney.
21
22
23 ______________________________________________________
24
25
26
27 Before: Jacobs, Chief Judge, Cabranes, Pooler, Katzmann,
28 Parker, Raggi, Wesley, Hall, Livingston, and Lynch, Circuit
29 Judges.
30
31
32 This Court’s Committee on Attorney Admissions and
33 Grievances (“the Committee”) has recommended that Karen
34 Jaffe, an attorney admitted to the bar of this Court, be
35 publicly reprimanded and permitted to withdraw from this
36 Court’s bar. We adopt the Committee’s findings of fact and
37 its recommendation of public reprimand, but we order Jaffe
38 removed from the bar of this Court. See Second Circuit Rule
39 46.1(h)(4).
1
2 Linda F. Fedrizzi, Esq., New
3 York, N.Y., for Karen Jaffe.
4
5
6
7 PER CURIAM:
8 By order filed April 2, 2008, this Court referred Karen
9 Jaffe to the Court’s Committee on Attorney Admissions and
10 Grievances (“the Committee”) for investigation of the matters
11 described in that order and preparation of a report on
12 whether she should be subject to disciplinary or other
13 corrective measures.
14 During the Committee’s proceedings, Jaffe had the
15 opportunity to address the matters discussed in the Court’s
16 referral order, to testify under oath at a hearing held on
17 July 23, 2008, and to present a post-hearing memorandum.
18 Jaffe was represented in the proceedings by Linda F.
19 Fedrizzi, Esq. Presiding over the hearing were Committee
20 members David B. Fein, Esq., and Evan A. Davis, Esq. On
21 December 12, 2008, the Committee filed with the Court the
22 record of the Committee’s proceedings and its report and
23 recommendations. Thereafter, the Court provided Jaffe with a
24 copy of the Committee’s report. Although Jaffe has not
25 responded to the report, we consider her arguments raised
26 before the Committee to be preserved, and consider them on
2
1 their merits.
2 In its report, the Committee concluded that there was
3 clear and convincing evidence that Jaffe had engaged in
4 conduct “unbecoming a member of the bar,” within the meaning
5 of Federal Rule of Appellate Procedure 46(c), by violating
6 various rules and orders of the Court and various
7 disciplinary rules of the New York Lawyer’s Code of
8 Responsibility. 1 Specifically, the Committee found that Jaffe
9 had: (a) failed to comply with many of the Court’s scheduling
10 orders, which was prejudicial to the administration of
11 justice, in violation of New York Disciplinary Rule (“D.R.”)
12 1-102(A)(5); (b) engaged in dishonesty, in violation of D.R.
13 1-102(A)(4), by presenting false statements to the Court
14 concerning her inability to attend oral argument on two dates
15 (c) filed a number of deficient briefs, in violation of Rule
16 28 of the Federal Rules of Appellate Procedure; (d) aided the
17 unauthorized practice of law, in violation of D.R. 3-101(A),
18 and improperly ratified and filed briefs drafted by
19 unsupervised law students, in violation of D.R. 1-104(D)(1);
1
As of April 1, 2009, the disciplinary rules of the New
York Lawyer’s Code of Professional Responsibility were superseded
by the New York Rules of Professional Conduct, which were
promulgated as joint rules of the Appellate Divisions of the New
York Supreme Court. Use of the new rules would not alter any of
our conclusions.
3
1 and,(e) engaged in a pattern of neglect of client matters, in
2 violation of D.R. 6-101(A)(3), as evidenced by her chronic
3 late filing of briefs, which resulted in the dismissal of at
4 least twelve cases, her frequent filing of deficient briefs,
5 and her failure to respond to a March 2007 order seeking
6 information about one of her former clients.
7 The Committee also found that there were a number of
8 aggravating and mitigating factors. The following were found
9 to be aggravating factors: (1) Jaffe’s prior disciplinary
10 offenses; (2) her pattern of misconduct involving non-
11 compliance with the Court’s orders and her defective
12 briefing; (3) her multiple offenses; (4) the vulnerability
13 of Jaffe’s immigrant clients, many of whom do not speak
14 English; and (5) the unavailability of any defense premised
15 on inexperience, due to Jaffe’s substantial experience as an
16 attorney. See ABA Standards § 9.22 (a), (c), (d), (g), (h),
17 (i). The following were found to be mitigating factors: (1)
18 Jaffe’s personal problems with her own illness and a family
19 member’s illness around the time she was to respond to the
20 March 2007 order; (2) Jaffe’s cooperative attitude toward the
21 Committee’s proceedings; (3) the prior imposition of
22 sanctions for Jaffe’s false statements to the Court; and (4)
23 Jaffe’s remorse for making those false statements. See ABA
4
1 Standards § 9.32 (e), (k), (l).
2 Based on its factual findings, the Committee recommended
3 that Jaffe be publicly reprimanded for her misconduct, that
4 she be permitted to voluntarily withdraw from the bar of this
5 Court, and, if she failed to voluntarily withdraw by a set
6 deadline, that she be involuntarily removed from the Court’s
7 bar.
8 Upon due consideration of the Committee’s report and the
9 underlying record, we adopt the Committee’s factual findings
10 concerning Jaffe’s misconduct in this Court. We also adopt
11 the Committee’s conclusion that Jaffe’s misconduct
12 constituted such a serious deviation from professional and
13 ethical norms that it warrants both a public reprimand and
14 removal from the bar of this Court. For the reasons
15 discussed below, we adopt in part the Committee’s
16 recommendations concerning the appropriate disciplinary
17 measures. The following discussion is intended to supplement
18 the Committee’s report in several respects, and explain our
19 view of the appropriate disposition.
20 The Relevance of Past Sanctions
21 As a preliminary matter, we address Jaffe’s assertion
22 that at least some of the misconduct at issue in these
23 proceedings has already resulted in discipline, and that
5
1 additional discipline should not be imposed. We agree that,
2 in general, an attorney should not be disciplined multiple
3 times by the same court for the same misconduct, where the
4 first panel issuing a sanction indicated that the sanction
5 constituted final and complete discipline for the misconduct
6 at issue.
7 However, that general principle does not alter the
8 outcome of these proceedings for several reasons. First, it
9 is clear that Jaffe has not been disciplined for all of the
10 serious misconduct at issue. For example, Jaffe has not
11 demonstrated, and the record does not indicate, that she
12 received any discipline for her filing of briefs written by
13 non-lawyers that were not reviewed by Jaffe or any other
14 attorney.
15 Second, even in cases in which Jaffe was explicitly
16 criticized by this Court for her deficient performance, she
17 may be later disciplined by this Court for that performance
18 if the prior orders did not suggest that the criticism (or
19 other adverse action) was a final “sanction” for that
20 misconduct. See, e.g., Xiang Lin v. Ashcroft, No. 04-6426-
21 ag, order filed Aug. 1, 2006; Guang Pin Lin v. Gonzales, No.
22 04-6130-ag, order filed Mar. 8, 2006; Yun Fen Jin v.
23 Gonzales, No. 03-4719-ag, order filed Jan. 27, 2006; see also
6
1 Rong Hua Wang v. Gonzales, No. 06-3240-ag, order filed Mar.
2 5, 2008 (transferring to Grievance Panel the issue of whether
3 Jaffe should be sanctioned for her performance in that
4 appeal). Additionally, since attorney disciplinary
5 proceedings are primarily remedial, the Double Jeopardy
6 Clause of the Fifth Amendment does not apply. See In re
7 Caranchini, 160 F.3d 420, 423-24 (8 th Cir. 1998) (holding that
8 disbarment did not violate double jeopardy, even though based
9 on same conduct that resulted in prior sanctions under
10 Federal Rule of Civil Procedure 11).
11 Third, even if an attorney already has received from this
12 Court a final sanction for each of several instances of
13 misconduct, we may nonetheless impose further discipline if
14 the individual instances of misconduct are found to be part
15 of a sanctionable pattern that has not itself been addressed.
16 Finally, even where “discipline” is not appropriate, the
17 Court may nonetheless determine, based on an attorney’s prior
18 behavior, that she will be unable to conform her future
19 conduct to expected professional norms, and, as a result,
20 that her ability to practice in this Court should be barred
21 as a corrective measure in order to protect the public, other
22 attorneys and litigants, the Court, and the administration of
23 justice. See Theard v. United States, 354 U.S. 278, 282
7
1 (1957)(“The power of disbarment is necessary for the
2 protection of the public in order to strip [an attorney] of
3 the implied representation by courts that [an attorney] who
4 is allowed to hold himself out to practice before them is in
5 ‘good standing’ so to do.”); Ex Parte Wall, 107 U.S. 265, 288
6 (1883) (“The [disbarment] proceeding is not for the purpose
7 of punishment, but for the purpose of preserving the courts
8 of justice from the official ministration of persons unfit to
9 practice in them.”). 2
10 Thus, we conclude that the Committee properly found
11 Jaffe’s prior disciplinary offenses and her pattern of
12 misconduct to be aggravating factors, even if discipline was
13 imposed for some of the prior offenses.
14 We also agree with the Committee’s finding that the prior
15 imposition of sanctions for some of Jaffe’s misconduct
2
See also Butler v. Biocore Medical Technologies, Inc.,
348 F.3d 1163, 1172-73 (10 th Cir. 2003) (“[A]ttorney
misconduct both implicates the attorney's fitness to
function as an officer of the court and triggers the court's
responsibility to protect the public from unscrupulous or
unqualified practitioners.”); In re Echeles, 430 F.2d 347,
349 (7 th Cir. 1970); In re Sacher, 206 F.2d 358, 360 (2d
Cir. 1953) (“The purpose of striking an attorney from the
rolls of a court is not to punish him but to protect the
court itself and relieve the public of a member of the legal
profession, who is unfit to serve as such, in order to
maintain the respect due the court by insuring that
attorneys, who are 'officers of the court,' are of good
professional character.”), reversed on other grounds, 347
U.S. 388 (1954).
8
1 constituted a mitigating factor. However, by treating the
2 prior sanctions as a mitigating factor, we conclude only that
3 Jaffe should not be disciplined again by this Court for that
4 discrete misconduct. The misconduct underlying the prior
5 sanctions remains relevant to the question of whether Jaffe
6 can conform her future behavior to profession norms.
7 Moreover, even if the previously sanctioned misconduct were
8 ignored entirely, or treated as aberrational, we would
9 nonetheless find that public reprimand and removal from this
10 Court’s bar are warranted by the remaining misconduct. 3
11 Jaffe’s Conduct Relating to the Marshall/Muto Matter
12 In her August 2008 post-hearing memorandum, Jaffe asserts
13 that the Court has improperly assumed that she was the author
14 of the three fraudulent briefs bearing the signature of
15 Sharon Marshall, demonstrating the Court’s prejudice against
16 Jaffe. See Aug. 2008 Mem. at 3, 4-5. To the contrary, this
17 Court’s April 2008 referral order explicitly stated that
18 Judge Keenan’s investigation implicated Marshall and Joseph
19 Muto in the fraudulent brief scheme and not Jaffe. See Apr.
20 2008 order at 5. We accepted Judge Keenan’s findings then
3
Although it has little effect on our present
determination, we also note that there is no record of Jaffe
filing the supplemental response required by our May 2008 order.
See 06-9009-am, order filed May 16, 2008 at 2.
9
1 and we accept them now. Furthermore, the Committee’s report
2 also does not characterize Jaffe’s involvement in the
3 Marshall/Muto matter as sanctionable or otherwise
4 inappropriate. Instead, the report states that the cases at
5 issue were referred by Jaffe’s paralegal to Muto and another
6 attorney “without Jaffe’s knowledge.” Report at 3 n.1. We
7 also accept that finding, as well as Jaffe’s related
8 assertions that she cooperated with Judge Keenan’s
9 investigation and helped to expose the fraudulent scheme.
10 See Apr. 2008 Response to Referral Order at ¶¶ 14-19. Her
11 cooperation and affirmative efforts to expose fraudulent
12 conduct were commendable, and are considered mitigating
13 factors.
14 However, Jaffe incorrectly asserts that she “complied in
15 full with the [Court’s] October, 2006 order,” which required
16 her to provide certain information about the Marshall/Muto
17 matter. See id. at ¶ 16. As noted in the April 2008
18 referral order, Jaffe failed to file a timely response to the
19 October 2006 order, even after being granted an extension,
20 and was suspended as a result. See Apr. 2008 order at 4-5.
21 After Jaffe filed a late response, she was reinstated. See
22 id. at 5. Although Jaffe asserted that she did not receive
23 the order that granted the extension, see In re Jaffe, No.
10
1 06-9009-am, Jaffe response filed Dec. 13, 2006, it remained
2 her responsibility to ascertain the status of her extension
3 request, particularly since significant time had passed after
4 both the original due date for a response and the date she
5 had requested an extension.
6 Quality of Jaffe’s Briefs
7 In her August 2008 post-hearing memorandum, Jaffe argues
8 that her briefs were not deficient, because they contained
9 all of the subdivisions required by Rule 28 and preserved all
10 of the petitioners’ rights. See Aug. 2008 Mem. at 3-4. We
11 reject Jaffe’s arguments, and adopt the Committee’s findings
12 concerning Jaffe’s briefs. The numerous panels of this Court
13 that found Jaffe’s briefs inadequate were not merely
14 complaining about a lack of required subdivisions in the
15 briefs. Rather, they found the substance of the briefs to be
16 abysmal – the worst deficiency being Jaffe’s failure, in
17 brief after brief, to properly apply the relevant legal
18 principles to the specific facts of the case.
19 In support of her argument that her briefs complied with
20 Rule 28, Jaffe provided, as an example, her brief in Dian
21 Liang Jiang v. Gonzales, No. 04-0299-ag. See Aug. 2008 Mem.
22 at 3. However, her brief in that case is riddled with
23 errors, lacks necessary citations to the record, and contains
11
1 almost no argument relevant to the immigration judge’s
2 adverse credibility finding or his request for corroboration.
3 See 04-0299-ag, brief filed Nov. 7, 2005. Fully half of the
4 Statement of the Case is irrelevant since its last three
5 paragraphs are duplicated verbatim from an entirely different
6 case concerning a different petitioner and different facts.
7 Compare id. at 5, with Zhong Ye Chang v. Gonzales, No. 04-
8 4288-ag, brief filed Sept. 20, 2005 (Jaffe shown as counsel
9 for petitioner). Although the Dian Liang Jiang case was
10 remanded to the agency, it is difficult to attribute that
11 result to Jaffe’s briefing. See id., order filed June 15,
12 2007.
13 On the other hand, we agree with Jaffe that most of her
14 briefs were filed within a limited period of time, and, thus,
15 she had limited opportunity to correct her errors in future
16 briefs once the deficiencies were brought to her attention in
17 orders of the Court. See Aug. 2008 Mem. at 5-6. However,
18 she did not request leave to file amended briefs after being
19 put on notice, and, after being advised of her briefing
20 deficiencies as early as December 1, 2005, see Xiu Ming Wang
21 v. Gonzales, No. 03-4951-ag, amended order filed Dec. 1,
22 2005, she filed at least three deficient briefs after that
23 date, see Hui Ming Shao v. Ashcroft, No. 04-0941-ag, brief
12
1 received Dec. 15, 2005 and filed Nov. 15, 2006; Zeng Bing Liu
2 v. Gonzales, No. 05-3860-ag, brief received Dec. 28, 2005,
3 order filed Aug. 10, 2006 (describing deficiencies in brief
4 and relieving Jaffe); Zhou Jin Yuan v. Gonzales, Nos. 05-
5 1333-ag (L), 05-1334-ag (Con.), brief received Dec. 29, 2005,
6 order filed Oct. 27, 2006 (same). Furthermore, her related
7 argument that her briefs were not deficient, and her
8 presentation of the Dian Liang Jiang brief as an example of
9 her adequate briefing, renders doubtful the suggestion that
10 she might have improved her briefing in later cases had she
11 been given earlier notice of the deficiencies.
12 To the extent that briefing deficiencies resulted from
13 Jaffe filing the unreviewed briefs of law students, an
14 explanation Jaffe provided to the Committee, Judge Keenan,
15 and this Court, see July 2008 Hearing Transcript at 16, 30-
16 31, 47; Keenan Report at 22-23, that clearly constitutes an
17 aggravating rather than mitigating factor. Indeed Jaffe’s
18 explanation is a clear concession that she aided the
19 unauthorized practice of law, in violation of D.R. 3-101(A),
20 and that she improperly ratified and filed briefs drafted by
21 unsupervised law students, in violation of D.R. 1-104(D).
22 We want to make it clear that the deficiencies of Jaffe's
23 conduct, in the aggregate, bespeak of something far more
13
1 serious than a lack of competence or ability. They exhibit an
2 indifference to the rights and legal well-being of her
3 clients, and to her professional obligations, including the
4 obligation of candor, to this Court.
5 Permitting Voluntary Withdrawal from this Court’s Bar
6 We agree with the Committee that Jaffe’s misconduct in
7 this Court put her vulnerable clients at grave risk, violated
8 numerous important professional obligations, and therefore
9 warrants both public reprimand and removal from the bar of
10 this Court. The procedure recommended by the Committee –
11 permitting Jaffe to voluntarily withdraw – was suggested by
12 the Committee to avoid “automatic” reciprocal discipline by
13 other jurisdictions. We doubt the Committee’s recommendation
14 would produce its intended result. First, if we impose
15 discipline – a public reprimand accompanied by the sort of
16 “voluntary” resignation suggested in the report clearly
17 qualify as discipline – we lack any power to control how other
18 jurisdictions respond to that discipline under their
19 reciprocal disciplinary rules.
20 Moreover, even if we simply permitted Jaffe to resign,
21 without imposing any other sanction, New York and other
22 jurisdictions would still be able to impose reciprocal
23 discipline. The rules of all of New York’s judicial
14
1 departments permit reciprocal discipline to be imposed on a
2 New York attorney who resigns from another jurisdiction’s bar
3 while under investigation for possible professional misconduct
4 in that other jurisdiction. See In re Steinbach, 228 A.D.2d
5 88, 89-90, 651 N.Y.S.2d 523, 524-25 (1st Dep’t 1997) (citing
6 NYCRR § 603.3, ordering disbarment pursuant to resignation
7 from Florida bar); In re Weisser, 214 A.D.2d 33, 34, 631
8 N.Y.S.2d 373, 373-74 (2d Dep’t 1995) (citing 22 NYCRR §
9 691.3(d), imposing censure pursuant to resignation from
10 Florida bar); In re Kriz, 56 A.D.3d 1116, 867 N.Y.S.2d 357,
11 358 (3d Dep’t 2008) (citing 22 NYCRR § 806.19, ordering
12 disbarment pursuant to resignation from Connecticut bar); In
13 re Hoffman, 180 A.D.2d 75, 76, 583 N.Y.S.2d 106, 107 (4th
14 Dep’t 1992) (citing 22 NYCRR § 1022.22, ordering suspension
15 pursuant to resignation from Florida bar). 4
16 Second, even if we were disinclined to inform the New
4
The same rule applies in other jurisdictions, including
all of the federal courts located in New York. See U.S. Dist.
Cts. for the Southern and Eastern Districts of New York, Local
Civil Rule 1.5(b)(3); U.S. Dist. Ct. for the Northern District of
New York, Local Rule 83.4(c); U.S. Dist. Ct. for the Western
District of New York, Local Rule 83.3(c); In re Goldman, 910 A.2d
291, 292 (D.C. 2006) (“In the District of Columbia, a sister
court’s acceptance of an attorney’s resignation pending a
disciplinary investigation is a proper predicate for reciprocal
discipline.”); In re Skripek, 156 N.J. 399, 719 A.2d 159, 160
(N.J. 1998) (reprimanding, as a matter of reciprocal discipline,
an attorney who had been disbarred in New York after submitting
his resignation during an ethics investigation).
15
1 York disciplinary authorities of the action we take in this
2 proceeding, Jaffe herself is obligated to inform those
3 authorities of this order under New York law. See 22 NYCRR
4 603.3(d) (1 st Dep’t); 22 NYCRR 691.3(e) (2d Dep’t); 22 NYCRR
5 806.19(b) (3d Dep’t). Third, the only aspect of reciprocal
6 discipline that is “automatic” is the fact that reciprocal
7 disciplinary proceedings can be automatically initiated upon
8 notice of the imposition of discipline by a sister court.
9 Although there may be a presumption that discipline should be
10 imposed on a reciprocal basis, it is not automatic and is
11 generally rebuttable. See, e.g., 22 NYCRR 603.3(b) (1 st
12 Dep’t); 22 NYCRR 691.3(b) (2d Dep’t); 22 NYCRR 806.19(c) (3d
13 Dep’t); 22 NYCRR 1022.22 (4th Dep’t). In any event, as
14 suggested above, a resignation while under investigation does
15 not sufficiently alter the situation so as to make the
16 reciprocal disciplinary process less “automatic.”
17 Our task here is to determine the appropriate level of
18 sanction for Jaffe’s conduct before this Court. Jaffe failed
19 to comply with a substantial number of this Court’s scheduling
20 orders in a way that was prejudicial to the administration of
21 justice, in violation of New York Disciplinary Rule (“D.R.”)
22 1-102(A)(5). She deliberately lied to this Court in violation
23 of D.R. 1-102(A)(4) concerning her inability to attend oral
16
1 argument on two dates. She filed a number of totally
2 deficient briefs, in violation of Rule 28 of the Federal Rules
3 of Appellate Procedure and engaged in a pattern of neglect of
4 client matters, in violation of D.R. 6-101(A)(3), as evidenced
5 by her chronic late filing of briefs, which resulted in the
6 dismissal of at least twelve cases, and her failure to respond
7 to a March 2007 order seeking information about one of her
8 former clients. She aided the unauthorized practice of law,
9 in violation of D.R. 3-101(A), and improperly ratified and
10 filed briefs drafted by unsupervised law students in violation
11 of D.R. 1-104(D)(1). In our view the appropriate remedy here
12 is the termination of her right to appear as an attorney
13 before our Court. Furthermore, while we acknowledge the
14 Committee's reasons for recommending that the termination be
15 through withdrawal, we believe it would be misleading to
16 suggest in any way that Jaffe's separation from this Court's
17 bar was voluntary.
18 Finally, the Court wishes to convey its appreciation for
19 the Committee’s labors both in this particular matter and in
20 the development of the Court’s new attorney grievance process.
21 Over the past two and a half years, the Committee has tested
22 the Court’s new investigatory and hearing process by handling
23 a substantial number of matters. The Committee’s services
17
1 have been invaluable.
2 Conclusions
3 Upon due consideration, it is hereby ORDERED that, except
4 as noted above, the Committee’s findings and recommendations
5 are adopted by the Court, and Jaffe is PUBLICLY REPRIMANDED
6 and REMOVED FROM THE BAR OF THIS COURT. Although we agree
7 with the Committee that various mitigating factors are
8 present, the totality of Jaffe’s conduct leaves us without
9 assurance that she can conform her future conduct in this
10 Court to all professional and ethical norms.
11 Jaffe must disclose this order in any future disciplinary
12 proceeding or bar application, and if required by any bar or
13 court rule or order. Furthermore, the Clerk of Court is
14 directed to release this order to the public by posting it on
15 this Court’s web site and providing copies to members of the
16 public in the same manner as all other published decisions of
17 this Court. The text of this panel’s April 2008 order
18 referring this matter to the Committee, the text of this
19 panel’s May 2008 order, and the Committee’s report are also to
20 be released to the public, as Appendices to the present order.
21 The Clerk of Court also is directed to serve a copy of
22 this order on Jaffe, this Court’s Committee on Attorney
23 Admissions and Grievances, the attorney disciplinary committee
18
1 for the New York State Appellate Division, First Department,
2 the attorney disciplinary officials for the Executive Office
3 of Immigration Review, and all other courts and jurisdictions
4 to which this Court distributes disciplinary decisions in the
5 ordinary course.
6
7
8
19
1 APPENDIX 1
2 Text of April 2008 order referring Karen Jaffe
3 to this Court’s Committee on Attorney Admissions and Grievances
4
5 For the reasons that follow, Karen Jaffe is referred to this
6 Court’s Committee on Admissions and Grievances for investigation of
7 the matters described below and preparation of a report on whether
8 she should be subject to disciplinary or other corrective measures.
9 See Second Circuit Local Rule 46(h). We express no opinion here as
10 to an appropriate disposition. The Committee may, of course, in
11 the first instance, determine the appropriate scope of its
12 investigation.
13 Jaffe was referred to this panel as a result of her actions in
14 a number of cases before this Court. We note first that many of
15 Jaffe’s cases have been dismissed for failure to comply with
16 briefing schedules. See Xiang Xing Lin v. Ashcroft, No. 03-4966-ag
17 at 5/16/05 Entry; Zu Fu Zhang v. Ashcroft, No. 03-4369-ag at
18 9/21/05 Entry; Xin Lin v. Ashcroft, No. 03-41048-ag at 10/17/05
19 Entry; Gui Bin Pan v. Ashcroft, No. 04-1096-ag at 10/19/05 Entry;
20 Qi Guan Lin v. Ashcroft, No. 04-2469-ag at 10/20/05 Entry; Shiang
21 Qing Lin v. Ashcroft, No. 04-2471-ag at 10/20/05 Entry; Weng Liang
22 v. Ashcroft, No. 04-0790-ag at 10/19/05 Entry; Kuang Xun Wang v.
23 Ashcroft, 04-3473-ag at 12/27/05 Entry; Yan Lin v. Ashcroft, No.
24 04-6427-ag at 1/6/06 Entry; Wei Pin Chen v. Ashcroft, No. 05-0367-
25 ag at 1/9/06 Entry; Hui Li v. Gonzales, No. 05-1090-ag at 1/10/06
26 Entry; Qin Xing Lin v. Ashcroft, No. 03-4513-ag at 9/21/06 Entry.
20
1 Additionally, this Court has, in numerous orders, noted
2 Jaffe’s deficient briefing and warned that her continued failure to
3 comply with the Federal Rules of Appellate Procedure could result
4 in sanctions. See, e.g., Shou Qing Liu v. Gonzales, No. 03-40331-
5 ag, 157 Fed.Appx. 403 (2d Cir. Dec. 7, 2005); Xian Gui Chen v.
6 Gonzales, No. 04-1954-ag, 157 Fed.Appx. 430 (2d Cir. Dec. 8, 2005);
7 Wan Qin Lin v. Gonzales, No. 04-2175-ag, 158 Fed.Appx. 324 (2d Cir.
8 Dec.12, 2005); Jin Qiu Zheng v. Gonzales, No. 03-40530-ag, 163
9 Fed.Appx. 10 (2d Cir. Dec. 22, 2005); Ji Wei Ni v. Ashcroft, No.
10 04-6357-ag at 1/3/06 Entry; Chang Zhao Chen v. Gonzales, No. 03-
11 40039-ag, 162 Fed.Appx.39 (2d Cir. Jan. 6, 2006); Xiu Gao v.
12 Gonzales, No. 04-0028-ag, 163 Fed.Appx. 45 (2d Cir. Jan. 19, 2006);
13 Ke Jin Chen v. Gonzales, No. 04-2528-ag, 163 Fed.Appx. 82 (2d Cir.
14 Jan. 23, 2006); Jin v. Gonzales, No. 03-4719-ag, 165 Fed.Appx. 3615 (2d Cir. Jan 27, 2006); Mai Chai Zhu v. Gonzales, No. 04-1100-ag,
16 164 Fed.Appx. 162 (2d Cir. Jan. 31, 2006); Yin Yan Qu v. Gonzales,
17 No. 04-4290-ag, 167 Fed.Appx. 283 (2d Cir. Feb. 15, 2006); see also
18 Jian Qing Lin v. Mukasey, Nos. 05-0696-ag (L) and 05-0717-ag (Con)
19 at 11/15/07 Entry(discussing Jaffe’s “manifest ineffective
20 assistance of counsel” and relieving her from representing
21 petitioner); Guang Pin Lin v. Gonzales, No. 04-6130-ag, 170
22 Fed.Appx. 189 (2d Cir. Mar. 8, 2006)(describing brief as
23 “abysmal”); Xiu Ming Wang v. Gonzales, No. 03-4951-ag, 156
24 Fed.Appx. 395 (2d Cir. Dec. 1, 2005) (noting briefing deficiencies
25 without warning of possible future sanctions).
21
1 However, despite the repeated warnings from this Court, Jaffe
2 continued to submit deficient briefs, see Zeng Bing Liu v.
3 Gonzales, No. 05-3860-ag, at 12/28/05 Entry (brief received), and
4 8/10/06 Entry, 193 Fed.Appx. 51 (order describing deficiencies in
5 brief and relieving Jaffe); Zhou Jin Yuan v. Gonzales, Nos. 05-
6 1333-ag (L), 05-1334-ag (Con.), at 12/29/05 Entry (brief received),
7 and 10/27/06 Entry, 202 Fed.Appx. 506 (order describing
8 deficiencies in brief and relieving Jaffe), and there is no
9 indication that she attempted to file revised briefs in any of the
10 appeals that were pending at the time she received the warnings.
11 This Court’s recent order in Jian Qing Lin, Nos. 05-0696-ag
12 (L), 05-0717-ag (Con), may serve as a fair example of the types of
13 deficiencies this Court has found in Jaffe’s briefs. The order in
14 that case stated that Jaffe had demonstrated “manifest ineffective
15 assistance of counsel” throughout the proceedings, and provided six
16 examples of her poor performance. Id., at 11/15/07 Entry. Aside
17 from those examples, review of the proceedings in that case
18 suggests that Jaffe’s poor performance also seriously affected the
19 merits of her clients’ appeal. Rather than immediately appealing
20 to this Court from the November 2004 Board of Immigration Appeals
21 (“BIA”) final orders of removal, Jaffe instead submitted a letter
22 to the BIA “moving to reopen” the administrative proceedings,
23 thereby waiving her clients’ ability to contest the merits of the
24 November 2004 orders in this Court. However, the brief Jaffe did
25 ultimately submit to this Court focused on the decision of the
22
1 immigration judge (“IJ”) denying the petitioners’ asylum
2 applications, even though the IJ’s decision and the BIA’s final
3 removal orders were not reviewable due to Jaffe’s failure to
4 directly appeal those earlier orders to this Court in a timely
5 fashion. Furthermore, the brief not only failed to identify the
6 alleged plain error in the BIA opinion (as noted in the Court’s
7 order), but also did not contest the BIA’s denial of the motion to
8 reopen, offered no explanation for Jaffe’s failure to appeal the
9 BIA’s final orders of removal, did not raise ineffective assistance
10 of counsel as a ground for this Court to reverse the BIA’s denial
11 of the motion to reopen, and failed to bring to this Court’s
12 attention a material factual error in the BIA’s proceedings
13 relating to the motion to reopen, namely, that the transcript of
14 proceedings before the IJ and the briefing schedule may not have
15 been sent to Jaffe’s proper address – an error the government
16 brought to this Court’s attention.
17 More serious issues also have been brought to our attention.
18 By order filed January 19, 2006, this Court required Jaffe to show
19 cause why she should not be disciplined as the result of a false
20 statement she had made concerning her failure to appear for oral
21 argument on two dates. See Wong Xing Chen v. Gonzales, No. 03-
22 40018-ag at 1/19/06 Entry.1 Specifically, Jaffe had falsely stated
1
The order to show cause was entered in Wong Xing Chen v.
Gonzales, No. 03-40018-ag, but was thereafter assigned the
separate docket number 06-9009-am. See In re Jaffe, 06-9009-am
at 5/1/06 Order (explaining assignment of new docket number).
23
1 to this Court that illness had precluded her from attending the
2 required appearances; however, on those same dates, she had
3 appeared before an IJ just two blocks from this Court’s location.
4 Id. In response to the suspension order, Jaffe admitted that she
5 had made false statements, presented mitigating circumstances
6 (concerning certain medical issues), and provided assurances that
7 such conduct would not occur again. See In re Jaffe, No. 06-9009-
8 am at 5/1/06 Entry. By order filed May 1, 2006, this Court
9 suspended Jaffe from the bar of this Court for thirty days, based
10 on the false statements.2 Id.11 Thereafter, the Court arranged for the former chair of the
12 Immigration Law Committee of the Bar Association of the City of New
13 York to meet with Jaffe to help her gain control of her large
14 caseload of immigration appeals pending in this Court; however,
15 that effort was not successful. See In re Jaffe, No. 06-9009-am at
16 7/13/06 Entry (describing efforts to aid Jaffe). A later effort by
2
In July 2006, as a result of this Court’s May 2006
suspension order, the BIA suspended Jaffe from practice before
the BIA, the immigration courts, and the Department of Homeland
Security. That 30-day suspension was made retroactive to an
existing interim suspension before those courts, issued on June
12, 2006. See In re Jaffe, No. 06-9009-am at 7/13/06 Order;
Executive Office for Immigration Review,
http://www.usdoj.gov/eoir/press/subject.htm, at the following
Professional Conduct Press Releases: 6/23/06 (discussing the
BIA’s immediate suspension of Jaffe following the Second
Circuit’s 30-day suspension); 7/20/06 (discussing BIA’s final
order of discipline against Jaffe, effective June 12, 2006);
7/26/06 (same); and 9/13/06 (discussing her July 27, 2006
reinstatement). Jaffe was also publicly censured by the
Appellate Division, First Department, as a result of this
behavior. See In re Jaffe, 832 N.Y.S.2d 177, 178 (1st Dep’t
2007).
24
1 Court staff to ascertain Jaffe’s plan to timely prosecute her cases
2 in this Court was also unsuccessful. Id.3 The Court then determined that a new remedial order was
4 required, in light of, inter alia, “Jaffe’s chronic failure to met
5 briefing deadlines, often despite numerous extensions, ... her
6 frequent submission of briefs that do not conform to the Rules of
7 Appellate Procedure and that are of minimal competence, ...and her
8 apparent lack of support staff to assist her in handling the more
9 than 100 INS petitions [she then had] pending in this Court.” Id.10 The new remedial order, inter alia, relieved Jaffe from all cases
11 in which she had not submitted briefs, and prohibited her from
12 serving as counsel before this Court in more than 30 cases at any
13 one time. Id. As a result, she was relieved as counsel in
14 approximately 75 cases. See In re Jaffe, No. 06-9009-am at 8/15/07
15 Order (“Keenan Report”) at 23. The order also required Jaffe to
16 provide this Court with the names and addresses of all the
17 petitioners on a list of cases provided to her by the Clerk of this
18 Court, to allow the Court to, inter alia, notify the petitioners
19 that Jaffe was no longer representing them. In re Jaffe, No. 06-
20 9009-am at 7/13/06 Entry. In August 2006, Jaffe sent this Court a
21 letter providing some, but not all, of the information requested in
22 the July 2006 order. See Jaffe Letter. However, Jaffe indicated
23 that four of the listed petitioners “were not [her] clients
24 originally,” and, therefore, she had no records or addresses for
25 them. Id. However, this rather unclear assertion was belied, for
25
1 at least one of those petitioners, by Jaffe’s signature on that
2 petitioner’s petition for review. See Wang v. Gonzales, No. 06-
3 3240-ag at 7/11/06 Entry. Based upon this conflicting information,
4 by order filed March 22, 2007, this Court required Jaffe to provide
5 additional information for that petitioner, within 30 days of the
6 entry of the order. See Wang v. Gonzales, No. 06-3240-ag at
7 3/22/07 Entry. On April 17, 2007, Jaffe requested, by telephone,
8 an extension because she had been “knocked down when trying to hail
9 a cab.” Id. at 4/17/07 Entry. On April 26, 2007, her attorney,
10 Linda Fedrizzi, requested a 30-day extension to respond to this
11 Court’s May 2007 order. Id. at 4/26/07 Entry. This Court granted
12 the extension and required Jaffe to respond on or before May 22,
13 2007. Id. at 5/4/07 Entry. On May 21, 2007, Jaffe again
14 telephoned the Court, stating that she would not be able to meet
15 the deadline because, as noted on this Court’s docket sheet, “dog
16 died, father sick, head/back/neck problems, etc., etc.” Id. at
17 5/21/07 Entry. However, she never filed either a request for a
18 further extension of time or the required response to the Court’s
19 March 22, 2007 order. By order filed March 5, 2008, a panel of
20 this Court ordered that “the issue of whether Jaffe should be
21 sanctioned for her performance in this appeal” be transferred to
22 the Court’s Grievance Panel. Id. at 3/5/08 Order.
23 In the meantime, by order filed in October 2006, this Court
24 required Jaffe to submit an affidavit concerning the suspicious
25 filing of briefs in three cases in which she had been relieved as
26
1 counsel pursuant to this Court’s July 2006 sanction order: Tung
2 Feng Xi v. Gonzales, No. 04-5742; Lin Feng v. Gonzales, No. 05-
3 5817; and Wu Deng Wei v. Gonzales, No. 04-1813. The briefs
4 purported to have been written by Sharon Marshall, but Marshall was
5 not a member of the Court’s bar and could not be located through
6 the telephone numbers and address supplied with the briefs. See In
7 re Jaffe, 06-9009-am at 10/4/06 Order. Thereafter, this Court
8 granted Jaffe’s request to extend, until November 27, 2006, her
9 deadline for a response to the October 2006 order, and warned her
10 that “[n]o further extensions [would] be permitted, and failure to
11 respond in a timely manner [would] incur the distinct risk of
12 additional sanctions.” See In re Jaffe, 06-9009-am at 10/23/06
13 Order. Jaffe failed to respond by the extended due date. As a
14 result, by order filed December 7, 2006, this Court suspended Jaffe
15 from the Bar of this Court, but permitted an application for
16 reinstatement upon full compliance with the October 2006 order.
17 See In re Jaffe, 06-9009-am at 12/07/06 Order. On December 13,
18 2006, Jaffe filed affidavits which purported to explain the
19 circumstances concerning the filing of the three briefs. See In re
20 Jaffe, 06-9009-am at 12/13/06 Entries. This Court found that the
21 affidavits “raised substantial questions concerning the propriety
22 of the conduct of persons who are, or might be, or claim to be
23 members of the Bar of this Court,” including Sharon Marshall and
24 Joseph Muto, and appointed the Honorable John F. Keenan, United
25 States District Judge for the Southern District of New York, as
27
1 special master to conduct hearings on the matter. See In re Jaffe,
2 06-9009-am at 12/22/06 Order. The order also conditionally
3 reinstated Jaffe as a member of the bar of this Court, pending
4 receipt of Judge Keenan’s report. Id.5 In June 2007, Judge Keenan submitted his report. See In re
6 Jaffe, No. 06-9009-am at 8/14/07 Order, attached report of Judge
7 Keenan dated 6/26/07. The findings in the report implicated
8 Marshall and Muto in, inter alia, a scheme to file fraudulent
9 briefs in this Court, but did not implicate Jaffe. Id.10 Accordingly, in August 2007, this Court issued an order which,
11 inter alia, reinstated Jaffe to the bar of this Court, subject to
12 all of the conditions of this Court’s July 13, 2006 order. See In
13 re Jaffe, 06-9009-am, 8/14/007 Order at 2-3. The order also
14 cautioned Jaffe “that the submission of briefs indicating lack of
15 professional competence will subject her to the distinct risk of
16 further sanctions.” Id.17 Although we are informed that Jaffe is counsel of record in
18 two currently pending appeals, see Mei Gao v. Gonzales, No. 05-
19 4888-ag; Wang Lu v. Gonzales, No. 04-4959-ag, this Court’s records
20 do not reveal any proceeding in this Court commenced by Jaffe since
21 the entry of the August 2007 order.
22 Upon due consideration of the matters described above, it is
23 ORDERED that Karen Jaffe is referred to this Court’s Committee on
24 Admissions and Grievances for investigation and preparation of a
25 report consistent with Federal Rule of Appellate Procedure 46, this
28
1 Court’s Local Rule 46(h), and the Rules of the Committee on
2 Admissions and Grievances. We request that the Committee expedite
3 its proceedings in this matter.
4 It is further ORDERED that Karen Jaffe (a) show cause, within
5 14 days of the filing of this order, why she should not be
6 suspended from the bar of this Court, or otherwise sanctioned,
7 pending the proceedings of the Committee on Admissions and
8 Grievances, based on any of the above-described conduct following,
9 or otherwise not addressed by, this Court’s prior sanction orders
10 or on an inability to conform to the rules governing practice in
11 this Court; (b) submit to this panel, within 14 days of the filing
12 of this order, a complete list of all pending cases in this Court
13 in which she is either counsel of record or performing any legal
14 services for any litigant; (c) notify this panel, in writing, of
15 any other cases in this Court, whether newly filed or reinstated,
16 in which she is performing any legal services for any litigant,
17 within 14 days of either the pleading initiating the new case or
18 the motion seeking reinstatement of a case; and (d) with each
19 submission required by clauses (b) and (c), attach an affidavit of
20 the litigant for whom she is performing legal services, attesting
21 to the fact that the litigant has read a copy of this order and
22 wishes to proceed with Jaffe providing legal services.
23 The Clerk of Court is directed to serve a copy of this order
24 on both Jaffe, at her address currently on file with this Court,
25 and on the Law Offices of Linda Fedrizzi, P.C., at 25-84 Steinway
29
1 Street, Astoria, New York 11103. If Ms. Fedrizzi is no longer
2 representing Jaffe, she is requested to so inform this Court and to
3 forward this order to Jaffe.
4
5 APPENDIX 2
6 Text of May 2008 order
7
8 By order filed April 2, 2008, this panel referred Karen Jaffe
9 to this Court’s Committee on Admissions and Grievances for
10 investigation and preparation of a report on whether she should be
11 subject to disciplinary or other corrective measures. See Second
12 Circuit Local Rule 46(h). We also directed Jaffe to show cause why
13 she should not be immediately suspended from practice before this
14 Court, or otherwise sanctioned, pending proceedings before the
15 Committee. In her response, Jaffe states, inter alia, that she has
16 only two proceedings currently pending before this Court, both of
17 which are fully briefed, and has no plans to file any new cases in
18 this Court in the near future. We note that one of the cases that
19 was pending at the time the response was filed has since been
20 decided. See Wang Ding Lu v. Mukasey, 04-4959-ag.
21 Upon due consideration, we hereby decline, at this time, to
22 suspend or otherwise sanction Jaffe during the pendency of the
23 Committee’s proceedings. However, notwithstanding Jaffe's stated
24 intention not to appear before this Court in the near future, she
25 is reminded that, pursuant to our April 2, 2008 order, she must
30
1 inform this panel of any future filings in current or subsequently-
2 filed cases and must provide an affidavit from each petitioner in
3 any future case, demonstrating that the petitioner has been
4 informed of the April 2, 2008 order and wishes to continue with
5 Jaffe’s representation. Furthermore, Jaffe is directed to submit
6 to this panel, within fourteen days of this order, a letter
7 providing (a) the docket numbers for the four cases listed in
8 paragraphs 32 and 33 of her April 15, 2008 affidavit which do not
9 have docket numbers following the case names, and (b) correct
10 docket numbers for”Xue Hui Lin, Docket 04-0042" and “Mei Juan Liu,
11 Docket 04-5807," as those numbers appear to belong to other
12 appellants represented by other attorneys.
13
14 APPENDIX 3
15 December 2008 Report of the Committee
16 on Attorney Admissions and Grievances
17
18 [remainder of page intentionally blank; text of Appendix 3
commences on following page]
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