In re: Henry Zhang , 376 F. App'x 104 ( 2010 )

07-9086am
In re: Henry Zhang
07-9086-am
In re Henry Zhang
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1 f 2007 f IS PERMITTED AND IS GOVERNED BY FEDERAL
RULE OF APPELLATE PROCEDURE 32. 1 AND THIS COURT f S LOCAL RULE 32. 1 • 1. WHEN CITING
A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT f A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER") •
A PARTY CITING A SUMMARY ORDER MUST SERVE A COpy OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Daniel Patrick Moynihan United
States Courthouse, 500 Pearl Street, in the City of New York, on
the 10~ day of May, two thousand ten.
PRESENT:
Jose A. Cabranes,
Robert D. Sack,
Richard C. Wesley,
rcu it Judges.
07-9086-am
In re Henry Zhang,
Attorney. ORDER OF
GRIEVANCE PANEL
FOR HENRY ZHANG: Lewis Tesser, Esq., and Anand Patel,
Esq., New York, New York.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the report of this Court's Committee on Admissions
and Grievances is adopted, although modi ed in the manner
described below.
By orders filed in December 2007 and March 2008, this Court
referred Henry Zhang to the Court's Committee on Admissions and
Grievances ("the Committee") for investigation of the matters
described in those orders and preparation of a report on whether
he should be subject to disciplinary or other corrective
measures.
During the Committee's proceedings, Zhang had the
opportunity to address the matters discussed in the Court's
referral order and to testify under oath at a hearing held on
November 19, 2008. Zhang was represented during the Committee's
proceedings by Lewis Tesser, Esq., and Anand Patel, Esq.
Presiding over the hearing were Committee members Mary Jo White,
Esq., Loretta E. Lynch, Esq., and the Honorable Howard A. Levine.
In March 2009, the Committee filed with the Court the record of
the Committee's proceedings and its report and recommendations.
Thereafter, the Court provided Zhang with a copy of the
Committee's report, and Zhang responded.
In its report, the Committee concluded that there was clear
and convincing evidence that Zhang had engaged in conduct
warranting the imposition of discipline. See Report at 10-11.
Specifically, the Committee found that Zhang had failed to comply
with the Court's scheduling orders in a number of cases,
resulting in their dismissal, and had filed deficient briefs in
2
two cases, Ming Fang Lin v. Mukasey, 07-4330-ag, and Bao Chen v.
Mukasey, 07-1145-ag. See id. at 5-7, 8-10. After noting the
presence of various aggravating and mitigating factors, id. at 7,
10, 11, the Committee recommended that Zhang be publicly
reprimanded, required to attend a continuing legal education
("CLE U ) program on law office management, and subject to certain
reporting requirements, id. at 11-12. In his response to the
Committee's report, Zhang expressed his remorse, opined that the
report was fair and the Committee's recommendation both
reasonable and justified, and noted that he had already taken
constructive steps to cure defects in his law practice. See
Response at 1.
Review of this Court's docket confirms that Zhang has not
defaulted in any case in this Court since his hearing before the
Committee. However, the quality of Zhang's briefs remains a
concern. As an initial matter, Zhang's testimony before the
Committee suggests that he may not have fully accepted or
understood the Court's reasons for finding that his briefs in
Ming Fang Lin and Baa Chen were seriously de cient.
In both Ming Fang Lin and Baa Chen, Zhang's clients sought
review of orders of the Board of Immigration Review ("BIA"). In
Ming Fang Lin, the Court found that Zhang had "submitted a brief
of poor quality that, inter alia, did not address the actual
basis for the BlA's decision u and was largely copied and pasted
3
from the motion to reopen Zhang had made to the BIA. Ming Fang
Lin, 07-4330-ag, 279 Fed. Appx. 35, 37 (2d Cir. May 22, 2008).
Similarly, in Baa Chen, the Court found that Zhang had waived
"any challenge to the [agency's] dispositive basis for the denial
of relief," which was the immigration judge's adverse credibility
determination. Baa Chen, 07-1145-ag, 265 Fed. Appx. 26, 27 (2d
Cir. Feb. 20, 2008). Although, in his Baa Chen brief, Zhang
"offered conclusory assertions that [his client's] testimony was
'credible and detailed,' he did not point to any errors in the
[immigration judge's] findings; indeed, he did not even
acknowledge in the argument section of his brief that the
[immigration judge haq] made an adverse credibility
determination." Id.
At the hearing, Zhang said the following about the Court's
criticism in Baa Chen:
the Court [warned that] I did not discuss only one
aspect of the case. I am supposed to discuss every
aspect of the case but I did not discuss that part.
That one really alarmed me for my brief. I think that
one I learned something. In the future I will discuss
every aspect even though the aspect is not relevant or
quite relevant. No matter what, I'm going to discuss
every part of the case.
Hearing Transcript at 104-05. Although Zhang initially stated
that the Court had not criticized him in Ming Fang Lin, id. at
105, his comment was apparently made without having recently
reviewed the order, and the Committee permitted Zhang to
4
supplement the record with a post-hearing submission, id. at 105­
06. His post-hearing submission stated the following about the
briefs in Ming Fang Lin and Baa Chen, and about his intended
remedial measures:
Mr. Zhang's standard practice is to review each and
every brief before filing, including briefs written by
outside counsel on his behalf. In [Ming Fang Lin and
Baa Chen], the briefs were written by an associate whom
Mr. Zhang had come to trust and rely on for preparing
excellent briefs. Because he was preoccupied with
other matters, Mr. Zhang did not review these briefs
for substance as carefully as he should have. Mr.
Zhang has taken measures to ensure that this will not
happen in the future by hiring outside counsel, whose
work he has full confidence in, to help prepare briefs
and committing himself to personally review each and
every br f to ensure that it meets the highest of
standards.
Second Supplemental Submission dated Dec. 8, 2008, at page 5 of
case list.
However, Zhang's remedial measures have not been entirely
successful, since he has filed several deficient briefs after the
date of his post-hearing submission. First, this Court
explicitly criticized his briefing in three cases: Le Shang Pan
v. Holder, 08-6169 ag, in which his brief was filed in April
2009, Nan Chen v. Holder, 09-1504-ag, in which his brief was
filed in July 2009, and Ren Chang Qiu v. Holder, 09-2266-ag, in
which his brief was filed in September 2009. In Le Shang Pan,
the Court found that "there [was] nothing for [the Court] to
review," since Zhang had failed to challenge the only order the
5
Court had jurisdiction to review. Le Shang Pan, 08-6169-ag,
order filed June 20, 2009, at 2-4. The panel further stated that
it was "troubled by the poor quality of Attorney Henry Zhang's
representation in this case" and referred Zhang's conduct in the
case to this panel. Id. at 4, 5. In Nan Chen, the Court found
that Zhang had waived any challenge to "the dispositive findings
underlying the agency's denial of [Nan Chen's] application for
relief, but simply provide[d] several pages of boilerplate law
and state[d] in conclusory fashion that [Nan Chen had]
established a well founded fear of future persecution." Nan
Chen, 09-1504-ag, order filed Jan. 7, 2010, at 3-4. In Ren Chang
Qiu, the Court found that Zhang had failed to challenge two "key
findings" of the immigration judge and that "large portions" of
his brief were "excerpted from an unrelated br f" and, as a
resu , i t contained facts and argument that were irrelevant to
Ren Chang Qiu's case. Ren Chang Qiu, 09 2266-ag, order led
Feb. 8, 2010, at 3 4 and n.1. The panel stated that "[b]riefing
of this sort is unacceptable, and represents a continuation of
the trend of poor quality briefing about which Mr. Zhang has
previously been warned." Id. at 4 n.1. A similar problem was
noted in a fourth case: in Hui Chen v. Holder, 08-4704-ag,
Zhang's brief failed to cite any record evidence supporting his
argument that Hui Chen had a well-founded fear of persecution on
account of his alleged resistance to family planning officials.
6
See Hui Chen v. Holder, 08-4704-ag, brief filed Mar. 25, 2009,
order filed Aug. 12, 2009, at 4.
Second, in Hui Chan and a number of other cases where Zhang
had represented the appellant before both the BlA and this Court,
Zhang raised claims in this Court that had not been raised before
the BlA, without explaining why the unexhausted claims should be
considered; as a result, in all of those cases, the Court
declined to address the unexhausted claims. See Qiu Yue Huang v.
Holder, 08-2060-ag, order filed Aug. 18, 2009, at 5; Gui Lin v.
Holder, 08-4186-ag, order led June 19, 2009, at 3; Hui Chen,
08-4704-ag, order filed Aug. 12, 2009, at 4; Huai Zhong Chen v.
Holder, 08-4864-ag, order filed Apr. 21, 2009, at 3; Zheng Fen Ou
v. Holder, 08-4594-ag, order filed Apr. 15, 2009, at 3-4. The
brief in Qiu Yue Huang was filed prior to the Committee's hearing
but well after Zhang was notified of the Committee's
investigation, while the brie in the other cases all were led
after the Committee's hearing. See Qiu Yue Huang, 08-2060-ag,
brief filed Aug. 20, 2008; Gui Lin, 08-4186-ag, brief filed Jan.
5, 2009; Hui Chen, 08-4704-ag, brief led Mar. 25, 2009; Huai
Zhong Chen, 08-4864-ag, brief filed Dec. 22, 2008; Zheng Fen Ou,
08-4594-ag, brief filed Jan 5, 2009. Although Zhang had not been
asked to address this category error in the present
disciplinary proceedings, we nonetheless se the exhaustion
error since it concerns a fairly elementary rule of immigration
7
law that Zhang should have known, and sing it now serves the
remedial and prophylactic purposes of this proceeding.
Finally, we note that a number of Zhang's briefs include
boilerplate ragraphs concerning the Convention Against Torture
("CAT"), and language in the conclusions stating that he is
ent led to CAT relief, although the iefs contain no arguments
concerning any CAT claims. See Hui Chen, 08-4704-ag, brief filed
Mar. 25, 2009, at 6-7, 14; Hui Zhen Wang-Zhang v. Holder, 09­
1970 ,brief filed Aug. 7, 2009, at 7-8, 12; Kai Xing v.
Holder, 09-1779-ag, brief led Aug. 19, 2009, at 10 11, 16: Bin
Lin v. Holder, 09-0720-ag, brief filed June 23, 2009, at 9-10,
14. In all of those cases, any possible CAT claim was found
waived. See Hui Chen, 08-4704-ag, order filed Aug. 12, 2009, at
3 n.2: Hui Zhen Wang-Zhang, 09-1970-ag, order filed Mar. 10,
2010, at 4 ("Although Wang-Zhang sets forth standard for CAT
ief in her brief before this Court, she does not challenge the
basis of the IJ's denial of CAT reli ... "): Kai Xing, 09-1779­
ag, order filed Jan. 21, 2010, at 5; Bin Lin ,09 0720-ag,
order filed Dec. 1, 2009, at 3.
The instances of misconduct found by t Committee
constituted serious violations of the professional duties of
diligence and competence, justifying both a public reprimand and
possibly a period of suspension. On the other hand, we agree
with Committee that there are signi cant mitigating factors,
8
particularly Zhang's recognition of the need for changes in his
practice, the improvements he has instituted, his remorse and
commendable candor during these proceedings, and the serious and
difficult family issues he faced during the relevant time period.
We adopt in full all of the Committee's ctual findings. If we
had before us nothing more than the misconduct discussed in the
Committee's report, we also would adopt in full all of its
recommendations and not go beyond the disciplinary measures
recommended by the Committee. However, Zhang's continued filing
of ficient briefs leaves us with little confidence that, as
things now stand, he is able to conform to expected professional
norms. To protect the public, the profession, and the Court,
more must be done.
Upon due consideration of the Committee's report, the
underlying record, Zhang's submissions, and the additional
appellate proceedings described above, it is reby ORDERED that
Zhang is PUBLICLY REPRIMANDED for the misconduct described in the
Committee's report and DIRECTED to:
(a) attend, within six months of the filing date of
this order, CLE programs, found suitable by the
Committee, on (i) law office management, (ii) federal
appellate practice, and (iii) appellate brief writing.
Zhang should submit information about proposed CLE
courses directly to the Committee's secretary, who will
inform him of the Committee's views. Zhang must
certify his completion of the required CLE programs by
sworn statement filed with both this panel and
Committee's secretary within seven days after the end
of the six-month period.
9
(b) comply with the reporting requirements listed on
pages 11 and 12 of the Committee's report; and
(c) not file in this Court, for a period of three years
(commencing twenty-eight days from the ling date of
this order), any further briefs, motions or other
papers unless those documents are co-signed by another
member of this Court's bar who has entered an
appearance as co-counsel in the case and meets the
other requirements noted in the margin.! If Zhang is
unable to comply with this directive, he must move,
within twenty-eight days of the entry of this order, to
withdraw as counsel in each of his pending cases.
We realize that the preceding direct s are onerous, and
Zhang may have difficulty complying. However, these measures are
intended to be remedial and prophylactic, not punitive. We
accept the Committee's findings that Zhang was remorseful for his
misconduct and that other mitigating factors existed. Moreover,
we do not conclude that the new, post-hearing, misconduct was
intentional or in disregard the call for change Zhang recei
by way of the Committee's proceedings. But Zhang's good faith
willingness to meet s pro sional obligations has not proved
sufficient, and we hope that the directives imposed in this order
are viewed by Zhang as tools for improvement, rather than
1 Before entering an appearance as co-counsel to Zhang in
any case, proposed co-counsel must certify, in a sworn written
submission to this panel under the present docket number, that he
or she (i) has not been disciplined by this or any other Court or
disciplinary authority in the past five years; (ii) currently is
not the subject of any such disciplinary proceedings; (iii) has
read a copy of this order; and (iv) accepts full responsibility
for all documents filed by Zhang in the case. An attorney unable
to make the certifications described in clauses (i) and (ii) of
the preceding sentence may seek a waiver of those requirements
from this panel by motion filed under this docket number.
10
instruments punishment.
The text this panel's December 2007 and March 2008 orders
and the Committee's report are appended to, and deemed part of,
the present r for the following disclosure purposes. Zhang
must disclose this order to all clients in cases currently
pending in this Court and to all courts and bars of which he is
currently a member, and as required by any bar or court rule or
order. Furthermore, the Clerk of Court is di ed to release
this order to public by posting it on this Court's web s
and providing copies to members of the public the same manner
as all other unpublished dec ions of this Court, and to serve a
copy on Zhang, this Court's Committee on Admissions and
Grievances, attorney disciplinary committee the New York
State Appel Division, First Department, and all other courts
and jurisdictions to which this Court distributes disciplinary
decisions in the ordinary course.
FOR THE COURT:
Cathe O'Hagan Wolfe, Clerk
By: -- .............• --````~ ... ````~------------~---
1 Zachary
Counsel to the Grievance Panel
11
APPENDIX 1
Text of December 2007 order
For the reasons that follow, Henry Zhang, currently of Zhang
& Associates, P.C., is referred to this Court's Committee on
Admissions and Grievances for investigation of the matters
described below and preparation a report on whether should
be subject to disciplinary or other corrective measures.
Second Circuit Local Rule 46(h). 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.
Since March 2002, this Court has dismissed 34 of the 91
petitions for review r which Zhang was counsel of record for
the pet ioners, based on the petitioners' failure to comply with
this Court's scheduling orders. See Second Circuit cases
docketed under 02-4229; 02-4310; 02-4337; 02-4417; 03 4146; 03
40286: 03-40723; 03-40830; 03-40928; 03-41156; 04-0568; 04-1007:
04-2181; 04-2391; 04 2392; 04-2435; 04-3001; 04-3006; 04 3297;
04-4899; 04-5867; 04-5946; 0 0044; 05-0054; 05-0140; 05-0141;
o 0329; 05-0904; 05-1274; 05-5476; 05-55477; 05-6238; 06-3165;
06-5287. This Court's records the cited cases do not
indicate that, prior to the respective deadlines for the filing
of the briefs, Zhang requested an extension of time to comply, a
stay of proceedings, leave to withdraw as counsel, or withdrawal
of the appeal.
Upon due consideration of the matters described above, it is
ORDERED that Henry Zhang is referred to this Court's Committee on
Admissions and Grievances r investigation and preparation of a
report, pursuant to ral Rule of Appellate Procedure 46, this
Court's Local Rule 46(h), and the Rules of the Committee on
Admissions and Grievances.
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk
By: /s
---M~i-c~h-a-e-l ~-~--r-y--------------
Supervisory Staff Attorney
Counsel to the Grievance Panel
12
APPENDIX 2
Text of March 2008 order
By order entered December 2007, Henry Zhang was referred
to this Court's Committee on Admissions and Grievances for
investigation of the matters described in that order. Since that
time, additional information r~garding Zhang has come to the
attention of this panel.
Zhang is counsel of record the itioner in Jie Shu
v. BIA, 04-3296-ag, an immigration-related appeal that has been
layed due to the apparent absence of the record. In January
2008, the Government filed the record and a letter explaining
filing delay. See e Hin Shu v. BIA, 04-3296-ag, letter filed
Jan. 7, 2008. According to the Government and this Court's
records, Zhang filed both that appeal and an appeal for Shu's
wife, Hua Zhen Shu, on the same day in June 2004. See id., entry
June 23, 2004; Hua Zhen Shu v, BIA, 04-3297-ag , entry for
June 23, 2004. However, in the wife's appeal, in the section of
Form C-A that reads "To your knowledge, is there any case now
pending or about to be brought before this court or any other
court or administrative agency which: (a) arises from
substant ly the same case or controversy as this appeal?",
Zhang checked the box for "No." See Jie Hin Shu v. BIA, 04­
3296-ag, attachment to letter filed Jan. 7, 2008 (Form C-A from
Hua Zhen Shu appeal). In the husband's appeal, Zhang left this
part the form blank. See id. (Form C-A from Hin Shu
appeal). Neither form provided any information about the other
spouse's appeal.
In August 2004, the Government fi in wife's appeal a
certified administrat record ("CAR"), which also covered the
husband's appeal (since the administrative proceedings had been
consolidated) . ite being a single CAR that covered
both petitioners, the appeals were never consolidated in this
Court, and the Court's docket sheet for the husband's appeal does
not reflect that the evant CAR was filed in the wife's appeal.
This Court subsequently dismissed the w i ' s appeal based on
Zhang's failure to file a brief.l The Government did not led
the CAR in the husband's case until January 2008, apparently
under the mistaken impression that the CAR filed in the w i ' s
case in August 2004 covered the husband's case, thereby delaying
the issuance of a scheduling order until January 2008, almost
three and a half years after the filing the petition.
This default is noted in the December 2007 referral
order.
13
The documents currently before this panel, by themselves, do
not allow a determination as to whether Zhang knowingly or
intentionally mis the Court and/or Government by failing
to accurately and ly complete Form C-A in each appeal. We ask
the Committee to make such a determination in the first
Upon due consideration, it is ORDERED that the additional
information descr above is referred to this Court's Committee
on Admissions and Grievances for its consideration in conjunction
with the information provided in this panel's December 2007
referral order.
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk
By: __``__ /S/ __~________________
Zachary
Supervisory Staff Attorney
Counsel to the Grievance Panel
14
APPENDIX 3
March 2009 Report of the Committee
on Admissions and Grievances
REPORT & RECOMMENDATION
Re: In re Henry Zhang, # 07-9086-am
1. Introduction
By Order dated December 18, 2007, and by a subsequent Order dated March 10,
2008, the United States Court of Appeals for the Second Circuit ("the Court") referred
Henry Zhang 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.
Zhang is an active immigration practitioner before the Court, and the Court's
Referral Orders raise a number of areas of concern regarding Zhang's conduct, including:
(1) frequent defaults on scheduling orders in his appearances before the Court; and (2)
incorrectly filed f01111s in Jie Hin Shu v. BfA, 04-3295-ag and Hua Zhen Shu v. BfA, 04­
3287-ag, which suggested the possibilIty that Zhang knowingly or intentionally misled
the Court and/or Government by failing to accurately and fully complete Form C-A in
each appeal. Subsequent summary orders ofthe Court also raised concern about (3) the
quality of briefs that Zhang submitted to the Court.
In light of Zhang's conduct before the Court, the Committee recommends that
Zhang be publicly reprimanded for his conduct, and that he be required to complete six
hours of CLE in law office management and to submit biannual reports on the
functioning of his practice for the next two years. The following constitutes the
Committee's report and recommendation to impose discipline on Zhang.
22884715v7
II. This Disciplinary Proceeding
On March 5, 2008, this Committee issued an Order to Show Cause regarding
Zhang's conduct as alleged in the Court's first Referral Order. On March 26, 2008, the
Committee issued an Order to Show Cause regarding Zhang's conduct as alleged in the
Court's second Referral Order.
On April 4, 2008, Zhang sought an extension of thirty days for his response to the
Committee. This extension was granted, and a new deadline of May 5, 2008 was set for
Zhang's response to the Committee's letters. On April 22, 2008, Zhang sought an
additional extension of time to respond to the Committee's Order. The deadline for his
response was extended to May 19,2008. Zhang requested a two-day extension on May
19, 2008. A final deadline for Zhang's response was set for May 21, 2008. Zhang
submitted replies to each of the Committee's Orders on May 21,2008 ("Zhang's First
Response" & "Zhang's Second Response").
A hearing was held on November 19,2008, conducted by a sub-committee
consisting of Mary Jo White, Loretta E. Lynch, and the Hon. Howard A. Levine. In
addition to Zhang and his counsel, one character witness for Zhang was present, Nita
Dobroshi. On December 8, 2008, Zhang submitted an additional post-hearing response
("Zhang's Post-Hearing Response").
III. Factual Background
The following facts are taken from court records and from Zhang's written
submissions and testimony. The Committee found Zhang forthcoming, and his testimony
generally credible.
Zhang attended law school at Peking University in Beijing. He also received a
master's degree from Peking University. He then attended law school in Canada and
graduated from the University of Saskatchewan in Canada. He also graduated from the
McGeorge School of Law, University of the Pacific, in Sacramento, California. Zhang
was admitted to the New York bar in 2001 and was subsequently admitted to the bar of
the Second Circuit on June 26, 2002. He also is admitted to the bars of the First, Third,
Fourth, Sixth, Seventh, Ninth, and Eleventh Circuits, as well as the Eastern District of
New York and the Southern District ofNew York. He is a member in good standing of
each of the above bars and has never been disciplined by any of these courts.
Zhang is the principal of a small firm, Zhang and Associates, P .C., which he
started in 2001 after gaining admission to the New York bar. The firm handles
immigration, commercial transactions, and small criminal matters. According to Zhang,
federal appellate practice is not a significant portion ofhis firm's work.
2
22884715v7
On December 18, 2007, the Court issued an Order referring Zhang to this
Committee based on his failure to comply with the Court's scheduling orders. Between
November 2004 and December 2006, the Court dismissed thirty-four of the ninety-one
petitions for which Zhang was the counsel of record based on Zhang's failure to comply
with scheduling orders.
In a later Referral Order, the Second Circuit also raised a concern regarding
Zhang's improper filing of Form C-A in two petitioners' appeals. The Court asked this
Committee to consider whether Zhang knowingly or intentionally misled the Court
and/or the Government by failing to accurately and fully complete Form C-A in each
appeal.
The quality of briefs submitted by Zhang to the Second Circuit has been criticized
in two summary orders that were issued subsequent to the Court's Referral Orders.
Specifically, in Bao Chen v. Mukasey, 265 F. App'x 26 (2d Cir. Feb. 20,2008), and Ming
Fang Lin v. Mukasey, 279 F. App'x 35 (2d Cif. May 22,2008), the Court criticized
Zhang's failure to address crucial issues regarding each case and his overall deficient
briefing.
Zhang has also been the subject of seven complaints filed with the Departmental
Disciplinary Committee of the N ew York Appellate Division, First Department. Each of
these complaints has related to Zhang's immigration practice. Six of these cases have
been closed without findings of misconduct, while one case remains pending before the
Departmental Disciplinary Committee.
IV. Legal Standard
Under the Rules of this Committee,
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, or the rules of professional conduct of any
other state or jurisdiction governing the attorney's conduct.
An attorney may also 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.
3
22884715v7
Rules of the Committee on Admissions and Grievances, Rule 4.
"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."
Fed. R. App. P. 46(c). "Conduct unbecoming a member ofthe bar" may include any
conduct "contrary to professional standards that show[s] an unfitness to discharge
continuing obligations to clients or courts, or conduct inimical to the administration of
justice." In re Snyder, 472 U.S. 634,645 (1985). For "[m]ore specific guidance," we
may look to "case law, applicable court rules, and 'the lore of the profession,' as
embodied in codes of professional conduct." Id. at 646 n.7.
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 ofW. Hartford, 361 F.3d 113, 133
(2d Cir. 2004), Matter ofRabinowitz, 596 N.Y.S.2d 398, 402 (N.Y. App. Div. 1993),
United States v. Song, 902 F.2d 609 (7th Cir. 1990), Matter ofKraft, 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. The American
Bar Association's Standards for Imposing Lawyer Sanctions ("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. The Disciplinary
Rules of New York's Lawyer's Code of Professional Responsibility require that "[a]
lawyer shall not ... [n]eglect a legal matter entrusted to the lawyer," D.R. 6-101(a)(3);
in addition, the Code's Ethical Canons require that the lawyer should represent his or her
client "zealously," Canon 7-1, and that he or she "be punctual in fulfilling all professional
commitments," Canon 7-38.
"Any finding that an attorney has engaged in misconduct or is otherwise subject
to corrective measures must be supported by clear and convincing evidence." Rules of
the Committee on Admissions and Grievances, Rule 7(h). Once misconduct has been
established, in determining the sanction to be imposed, we should 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.
See ABA Standards § 3.0. This 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." Rules of the Committee on Admissions and Grievances, Rule 6.
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V. The Alleged Misconduct
A. Defaults on Scheduling Orders
The evidence demonstrates that Zhang failed to comply with court scheduling
orders, and failed to prosecute his clients' cases diligently. Between November 2004 and
December 2006, the Court dismissed thirty-four of the ninety-one petitions for which
Zhang was the counsel of record based on Zhang's failure to comply with scheduling
orders. Zhang offers a variety of explanations to explain the dismissed petitions, but
ultimately accepts responsibility for a majority of the defaults. 1
With regard to fifteen of the thirty-four petitions that were dismissed for Zhang's
failure to comply with the Court's scheduling orders, Zhang submits that the client
instructed him to stop working on the petition. See Zhang's First Response at 2; Hearing
Transcript at 73-74. Zhang represents that he did not know that the proper action is to
file a motion to withdraw with the Second Circuit in such instances. Hearing Transcript
at 74.
In another four cases, Zhang claims to have been replaced by other attorneys, who
were responsible for the default. Hearing Transcript at 9, 74. Again, Zhang claims that
he did not know that he should have filed a motion to withdraw in such a situation. Id.
In two cases, In re Min Fen Zhu, 04-1007 and In re Xin Fang Dong, 02-4417, Zhang
could not locate the petitioner after the petition was filed. However, he did not withdraw
from these cases or inform the Court that the petitioners could not be found.
Zhang points to miscommunication as the reason for his defaults in two other
cases. In one case, In re Fang Zheng, 02-4337, Zhang claims that the Assistant U.S.
Attorney assigned to the case had promised to handle the withdrawal of the case.
Zhang's First Response, Ex. 3; Hearing Transcript at 10. In another case, Hua Zhen Shu
v. BIA, 04-3287-ag, a husband and wife's cases were not consolidated due to an
incorrectly completed Form C-A filed with the Court. The wife's case was ultimately
dismissed due to Zhang's failure to file a brief. This case was also the subject of a
separate Referral Order by the Court, discussed below.
Zhang acknowledges that the defaults were due primarily to failure to properly
oversee or track case status in at least nine of these cases. In each of the dismissed cases,
Zhang submits that there was no harm to his clients as a result of his actions. However,
1 It appears that two cases should not have been included in the Court's Referral Order.
One case that was the subject of the Court's first Referral Order, In re Yan Yue Lu,
05-0054, was briefed and dismissed on the merits in December 2006. In another
case, In re Qi Xin Zheng, 03-4146, the Court never entered a scheduling order, and
the record was returned to the lower court on October 14,2005.
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Zhang admits that he failed to properly withdraw, or to stipulate to the dismissal of the
appeal. Accordingly, even if Zhang's clients were not in fact prejudiced by his failure to
file the briefs, Zhang's failure to comply with proper procedures for withdrawal or
dismissal of the appeal violated the Court's scheduling orders and his obligation either to
represent his clients or terminate the representation. Moreover, Zhang's conduct
disrupted the Court's proceedings and burdened the Court's staff with additional work.
See Bennett v. Mukasey, 525 F.3d 222, 225 (2d Cir. 2008); N.Y. Code D.R. 2-110(A)(2)
("A lawyer shall not withdraw from employment [without] complying with applicable
laws and rules.").
In each case where the default was unintentional, Zhang has moved to reinstate.
These motions were denied. Although Zhang contends that it is unlikely that the Second
Circuit would have ruled favorably to those clients whose petitions were dismissed, it is
unclear from the record whether some clients were prejudiced. 2
In offering explanation for several of the defaulted cases, Zhang points to the
failures of other attorneys in his office, but admits ultimate responsibility for his office's
failure to handle client cases in a timely manner. See New York Lawyer's Code of
Professional Responsibility, Disciplinary Rule 6-101(a)(3) ("A lawyer shall not ...
[n]eglect a legal matter entrusted to the lawyer."). It is evident that Zhang failed to
properly supervise the work of the attorneys in his office and of the outside counsel he
hired to assist with the preparation of and filing of briefs. See N.Y. Code D.R. 1-104(B)
("A lawyer with management responsibility in the law firm or direct supervisory
authority over another lawyer shall make reasonable efforts to ensure that the other
lawyer conforms to the disciplinary rules."); N.Y. Code D.R. 1-104(C) ("A law firm shall
adequately supervise, as appropriate, the work ofpartners, associates and nonlawyers
who work at the firm.").
In considering Zhang's relevant state of mind, see ABA Standards § 3.0(b), the
Committee finds Zhang's account of the personal circumstances underlying his defaults
credible. In 2003, Zhang's father suffered a stroke and remained ill from 2003-2005.
Zhang handled the medical arrangements for his father from the United States and on
October 21,2005, Zhang flew to Beijing, China to be with his father. Although he was
scheduled to return to the United States on November 5, 2005, Zhang remained in China
until late November 2005 after his father passed away to oversee funeral arrangements.
Zhang left his associates in charge of client matters while he was away. Due to the nature
2 In six of the defaulted cases, Zhang contends that his clients were not prejudiced
because the petitioner's claim was based on forced sterilization and abortion
practices directed toward the petitioner's spouse. In July 2007, the Second Circuit
no longer recognized such grounds as a basis for asylum, see Lin v. US. Dept. of
Justice, 494 F.3d 296,309-10 (2d Cir. 2007), and accordingly, Zhang asserts that
these petitioners' claims were meritless.
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of his location in China during this period, Zhang was unable to make frequent phone
calls to his office to check on the status of cases. Zhang alleges that three of the briefs on
which he defaulted were due during the period of his trip to China, and two were due
while he was preparing for this trip.
Zhang's neglect was inadvertent, the product of difficult personal circumstances
and inadequate office systems for tracking cases. Since the defaults and this Committee's
proceedings, Zhang has made several steps toward improving his office management. He
has made personnel changes and has improved the organization of his office. He has also
implemented a daily records circular within the office and changed the office's
calendaring system to allow him and staff to better coordinate scheduling and workflow
issues. Hearing Transcript at 58. The Committee has confirmed that since the Court's
December 18, 2007 Referral Order, Zhang has not defaulted on any briefs submitted to
the Court.
Both aggravating and mitigating factors are present. The aggravating factors
considered by the Committee include (1) Zhang's pattern of negligence, involving
multiple instances of misconduct; and (2) the vulnerability of Zhang's immigration
clients. ABA Standards § 9.22 (c), (h). The mitigating factors present include (1)
Zhang's absence of a prior disciplinary record;3 (2) personal problems due to his father's
sickness; (3) a good faith effort to rectify the consequences of his misconduct by filing
motions to reinstate those cases that were dismissed for failure to comply with the
Court's scheduling orders; (4) Zhang's cooperative attitude toward these proceedings; (5)
Zhang's generally good character and reputation in the immigration bar; and (6) remorse.
ABA Standards § 9.32 (a), (c), (d), (e), (g), (1). To some extent, Zhang's misconduct is
mitigated by (7) the absence ofa selfish motive, § 9.32 (b); however, although Zhang
may not have intended to neglect his clients, it was Zhang'S decision to greatly increase
his caseload without making adequate provision to protect his clients from the risks
inherent in an over-stretched practice.
B. Jie Hin Shu v. BIA, 04-3295-ag and Hua Zhen Shu v. BIA, 04-3287-ag
The Court's second Order raised concerns regarding Zhang's filing of Form C-A
in the case of Jie Hin Shu v. BIA, 04-3296-ag. Zhang filed an appeal in that case, and a
separate appeal for Shu's wife, Hua Zhen Shu, on the same day. However, in the wife's
appeal, on Form C-A, in the section ofthe form that reads "To your knowledge, is there
any case now pending or about to be brought before this court or any other court or
administrative agency which: (a) arises from substantially the same case or controversy
as this appeal?", Zhang checked the box for "No." See Jie Hin Shu v. BIA, 04-3296-ag,
3 Six of the seven complaints regarding Zhang that were filed with the Departmental
Disciplinary Committee ofthe New York Appellate Division, First Department, have
been dismissed. One remains pending currently.
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attachment to letter filed Jan. 7, 2008 (Form C-A from Hua Zhen Shu appeal). In the
husband's appeal, Zhang left this part of the form blank. See id. (Form C-A from Jie Hin
Shu appeal). In neither form did Zhang provide information about the other spouse's
appeal. As a result, the cases were never consolidated.
Because the cases were never consolidated in the Second Circuit, the Court's
docket sheet for the husband's appeal did not reflect that the relevant administrative
record covered both petitioners. The Court subsequently dismissed the wife's appeal
based on Zhang's failure to file a brief. The Government did not file the administrative
record in the husband's case until January 2008, under the mistaken impression that the
record filed in the wife's case in August 2004 covered the husband's case.
Zhang responded that his failure to file the Form C-A correctly was a mistake. He
noted that Form C-A asks if the cases are "substantially" the same. He considered the
cases, which were based on the same administrative record, to be "exactly" the same, and
believed they would automatically be treated as one case. See Zhang's Second Response
at 1; Hearing Transcript at 86-87. Zhang also provided evidence that he had filed Form
C-A in a similar manner in another case in which he filed appeals for a husband and wife.
See Zhang's Second Response, Ex. 2.
Although Zhang filed Form C-A incorrectly and caused a substantial delay in Jie
Hin Shu's case, no clear evidence shows that Zhang knowingly or intentionally misled
the Court or the Government by failing to accurately and fully complete Form C-A in
each appeal. Based on Zhang's testimony at the hearing, the Committee finds it unlikely
that Zhang intended to mislead anyone or cause any harm by filing these forms. See
Hearing Transcript at 86-87.
C. Deficient Brief"mg
In two other cases that were not the subject of the Referral Orders, the Court
expressed concern with the poor quality of the briefs filed by Zhang in these matters.
Zhang's briefing was criticized in the summary orders associated with these cases, Bao
Chen v. Gonzales, 07-1145, and Ming Fang Lin v. Mukasey, 07-4330.
In Bao Chen, the Court noted that the petitioner's brief was seriously deficient for
failing to address the adverse credibility determination of the immigration judge. The
Court stated:
A petitioner's attorney must "include his most
cogent arguments in his opening brief, upon pain of
otherwise finding them waived." McCarthy v. SEC, 406
F3d 179, 186 (2d Cir. 2005). Here, Chen failed to address
the U's adverse credibility determination in his brief to this
Court. Although he offered conclusory assertions that his
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testimony was '"credible and detailed," he did not point to
any errors in the IJ's findings; indeed, he did not even
acknowledge in the argument section of his brief that the IJ
made an adverse credibility determination.
***
In light of the waiver of any challenge to the dispositive
basis for the denial of relief, we must note that the
Petitioner's brief is seriously deficient. To '"argue" that an
asylum applicant is eligible for relief without addressing an
adverse credibility determination violates Federal Rule of
Appellate Procedure 28(a)(9), which requires an appellant's
brief to address all issues and explain the reasons for its
contentions. Counsel is warned that future failure to
comply with the Federal Rules of Appellate Procedure may
result in discipline.
Baa Chen v. Mukasey, 265 F. App'x 26, 27 (2d Cir. Feb. 20, 2008).
In Lin, the Court noted that Zhang's brief did not address the actual basis for the
BIA's decision:
Finally, we are troubled by the poor quality of Lin's
brief in this case. Attorney Henry Zhang represented Lin
both before the agency and in this Court. Here, Zhang
submitted a brief of poor quality that, inter alia, did not
address the actual basis for the BIA's decision. Indeed, a
large part of Lin's brief was merely copied and pasted from
Lin's motion to reopen. Accordingly, we refer the matter of
Zhang's conduct in this case to this Court's Grievance
Panel for further consideration.
Ming Fang Lin v. Mukasey, 279 F. App'x 35, 37 (2d Cir. May 22,2008).
Zhang responded that his standard practice is to review each and every brief
before filing, including briefs written by outside counsel on his behalf. In these two
particular matters, Zhang represents that the briefs were written by an associate whom
Zhang had come to trust and rely on for preparing excellent briefs. According to Zhang,
because he was preoccupied with other matters, he did not review these briefs for
substance as carefully as he should have. Zhang's Post-Hearing Response at 5. Zhang
noted that he has taken measures to ensure that this will not happen in the future by hiring
outside counsel, whose work he has full confidence in, to help prepare briefs and
committing himself to personally review each and every brief filed before the Court. Id.
The briefs reviewed by this Committee are seriously deficient, in that they fail to
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address central, patent, and dispositive issues. At the very least, these deficiencies posed
a significant risk of prejudice to Zhang's clients. See Bao Chen, 265 F. App'x at 27 ("In
light of the waiver of any challenge to the dispositive basis for the denial of relief, we
must note that the Petitioner's brief is seriously deficient."); Ming Fang Lin, 279 F. App'x
at 37 ("Zhang submitted a brief of poor quality that, inter alia, did not address the actual
basis for the BIA's decision."). Zhang's failure to devote time and attention to writing
and reviewing clients' briefs that were submitted to the Court evidences further failure on
Zhang's part to carry out his professional responsibilities diligently and competently. See
N.Y. Code D-R 6-101 (3) ("A lawyer shall not ... [n]eglect a legal matter entrusted to the
lawyer.").
Although Zhang points to other attorneys as the authors of the defective briefs, he
admits that he failed to properly supervise the work of the attorneys in his office and of
the outside counsel he hired to assist with the preparation of and filing ofbriefs. See
N.Y. Code D.R. 1-104(B), (C).
There are significant aggravating and mitigating circumstances here. Aggravating
circumstances include (1) a pattern of negligence, involving multiple instances of
misconduct; and (2) the vulnerability of Zhang's immigration clients. ABA Standards §
9.22 (c), (h). The mitigating factors present include (1) Zhang's absence of a prior
disciplinary record; (2) a good faith effort to rectifY the consequences of his misconduct
by filing motions to reinstate those cases that were dismissed for failure to comply with
the Court's scheduling orders; (3) Zhang's cooperative attitude toward these proceedings;
(4) Zhang's generally good character and reputation in the immigration bar; and (5)
remorse. ABA Standards § 9.32 (a), (d), (e), (g), (1). To some extent, Zhang's
misconduct is mitigated by (6) the absence of a selfish motive, § 9.32 (b); but Zhang
should have been cognizant that a larger caseload for his office might result in less time
to devote to each client's case, including briefing and reviewing other associates' briefs.
VI. Recommendation
Based on clear and convincing evidence, the Committee finds that disciplinary
action is warranted in this case based on "conduct unbecoming a member of the bar."
Fed. R. App. P. 46(c). Specifically, Zhang has engaged in "conduct inimical to the
administration ofjustice," In re Snyder, 472 U.S. 634,645 (1985), and neglected matters
entrusted to a lawyer, N.Y. Code D.R. 6-101(A)(3). The evidence in this proceeding
shows that Zhang and members ofhis office neglected client matters, primarily through
failure to file timely briefs, but also on at least two occasions through deficient briefing.
In addition, Zhang repeatedly failed to formally withdraw from or stipulate to the
dismissal of cases which he had in practice abandoned, thus burdening the Court with
extra work, and violating the Court's scheduling orders. However, no evidence supports
any finding of dishonesty or bad faith on Zhang's part; rather, Zhang's misconduct
appears to be the product primarily of personal difficulties and inadequate case
management. The Committee notes that there is no dispute over any fact that serves as a
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basis for disciplinary action.
Aggravating factors are present. Zhang's conduct evidenced a pattern of
negligence and resulted in a likelihood of prejudice to his vulnerable clients. There are
also several mitigating factors for Zhang's conduct. In particular, Zhang clearly
understood and acknowledged the significance ofthe problems raised in the Court's
Referral Orders, and has taken substantial and apparently effective steps to respond to
those problems. He is dedicated to improving his practice and to representing the
interests of his clients. He has not defaulted on any briefs submitted to the Court since
the Court's December 18, 2007 Referral Order. Furthermore, the Committee has found
no clear evidence that Zhang knowingly or intentionally misled the Court when he filed
an incorrectly completed Form C-A.
Under current circumstances, the Committee believes that a public reprimand, to
recognize the severity of Zhang's past misconduct, would be sufficient sanction, together
with measures to ensure Zhang's continued efforts to enhance his ability to manage his
practice and fulfill his responsibilities.
Zhang's practice appears to be functioning effectively at present. However, in
light of Zhang's past difficulties in managing the work of the attorneys in his office and
his caseload, we recommend that he be required to attend a suitable CLE program on law
office management.
In addition, Zhang should be required, in connection with his 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, to submit to the Committee a status report on
the functioning of his practice, which shall include sworn statements identifying under
oath each and every instance during each of the four reporting periods described below in
which (1) a submission is not filed or is filed out of time; or (2) an application is made for
permission to make a late filing only after the due date has passed. During these
reporting periods, Zhang should also submit to the Committee sworn statements noting
(3) any criticism of his briefing or his representation of his clients in any written order of
the Court or any other tribunal. It is expected that these reports will show no such
instances absent exigent circumstance, which circumstances should be attested to under
oath in the respective report.
In the event that a report is not timely filed or reveals deficiencies not justified by
exigent circumstance, the Committee may recommend the imposition of additional
discipline, including but not limited to suspension from the Second Circuit, without
hearing further testimony.
The following reporting periods and deadlines shall be observed. The report for
each reporting period shall be mailed to the Committee Secretary within ten (10) days of
the end of that reporting period. The first reporting period shall commence 10 days after
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the Committee's recommendation is mailed to Zhang and shall end six months after the
Second Circuit issues its order of disposition in this matter. Each of the three subsequent
reporting period shall be for a reporting period commencing at the end of the prior
reporting and ending six months later. A total of four reports will be prepared and mailed
to the Committee Secretary.
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