In re Yan Wang , 388 F. App'x 24 ( 2010 )

08-9039-am
08-9039-am
In re Yan Wang
In re Yan Wang
08-9039-am
In re Yan Wang
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, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL
RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING
A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, 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 19 th day of July, two thousand ten.
PRESENT:
Jose A. Cabranes,
Robert D. Sack,
Richard C. Wesley,
Circuit Judges.
08-9039-am
In re Yan Wang,
Attorney. ORDER OF
GRIEVANCE PANEL
For Yan Wang: Richard M. Maltz, Esq., New York, New York.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the request of Yan Wang, who is the subject of a
disciplinary proceeding in this Court, for leave to withdraw from
the Court's bar is granted, and this proceeding is terminated.
order filed in April 2008, this Court re Yan Wang
to Court's Committee on Admissions and Grievances ("
Committee") for investigation of the matters described
ration of a report on whether she should
subject to disciplinary or other corrective measures.
During the Committee's proceedings, Wang had the ty
to ss the matters discussed in the Court's re rral
to testi under oath at a hearing held on September 19,
2008. Wang was represented during the Committee's by
Ri M. Maltz, Esq. Presiding over the hearing were Committee
rs Paul C. Curnin, Esq., Terrence M. Connors, Esq.,
Eileen M. Blackwood, Esq. In July 2009, the Committee with
Court the record of the Committee's proceedings and its
recommendations. Thereafter, the Court Wang
with a copy of the Committee's report, and Wang responded.
In its report, the Committee concluded that was
and convincing evidence that Wang had engaged in conduct
warrant the imposition of discipline. See Report at 11-12.
f lly, the Committee found that Wang (a) had i to
comply with Court's scheduling orders in a number of cases,
result r dismissal, {b} had made misrepresentations to
the Court and Committee, and (c) had practiced in this Court
rst ing admitted to its bar. See id. at 2-7, 11.
After not the sence of various aggravating and mitigating
2
factors, id. at 9-11, the Committee recommended that Wang be
suspended from this Court's bar for a six-month riod, and
directed to attend certain Qontinuing legal education ("CLE")
programs and submit periodic reports, id. at 11-12.
In r response to the Committee's report, Wang conceded
she had improper terminated a number of cases by allowing
them to be dismissed on default, fai to adequately supervise
an attorney who prepared briefs for her, and filed briefs in this
Court prior to her admission to the Court's bar. See Response
Affidavit at 2-5, and 2 n.2. However, Wang argues that she did
not intentionally misstate any facts, and that many of the
defaults either were consistent with her clients' goals or
re from her clients' failure to y fees or to keep in
touch with her. See id., at 3-4, 5-6. In conclusion, Wang
expressed her belief that she is not well-suited for I
appel work and asked that she be permitted to resign from the
Court's bar in lieu of the six-month suspension and other
measures recommended by the Committee. See id., at 6-7.
I. Conduct Post-Dating the April 2008 Referral to the Committee
Review of this Court's docket indicates that, since the date
of her referral to the Committee, Wang has de lted in one case
and had her brie criticiz in several other cases.
In Feng Yu You v. Mukasey, 07-5320-ag, Wang and
Government stipulated to suspension the briefing schedule
until the earlier of October 21, 2008, or the issuance of a
3
decision in two r cases. See id., r filed May 19, 2008,
at 2. In December 2008, this Court ordered Wang to show cause
why the proceeding should not be dismiss ,based on her failure
to reactivate the case, and directed Wang to fi either a letter
confirming the withdrawal of the case, a motion to reinstate, or
a new stipulation. See id., order filed Dec. 9, 2008. Wang
failed to respond and the case was dismissed. See id., order
filed Jan. 20, 2009.
In October 2008, this Court cr iciz Wang's briefing in
Joshico v. Muka 07-3437-ag, finding that Wang's brief made
~bald assertions without any evidentiary support,H and that her
argument about one of her claims was ~conta only in a
heading.H Id., filed Oct. 31, 2008, at 3. The Court
therefore conc that Wang's client had waived her claims that
the BIA had abused s discretion by taking administrative notice
of a country report, and that the evidence had submitted
established a pattern or practice of persecution against
Christians in Indonesia. See id. The Court referred Wang to the
Grievance Panel, the brief to be ~se ously deficient.H
Id. at 3 n.2. However, the brief was received by Court on
May 7, 2008, and is not clear whether Wang had, as of that
date, received not of the concerns expressed the Court's
referral order, s the Committee served the rral order on
Wang under cover of a letter dated May 2, 2008. See Committee's
4
May 2, 2008 letter (Committee Case Mat als, tab. 2). On the
other hand, in her June 2008 response to the Committee's May 2,
2008 letter, Wang failed to list Joshico as one of her pending
cases, although it remained pending until October 2008. See
Wang's June 27, 2008 letter vol. I of Wang's submission), at
7.
In two other cases, where the briefs were filed after Wang
was on notice of the re rral order, this Court found that Wang
had waived dispositive issues by failing to raise them in her
br In Yan Zhen Ya v. Hal 08-4368 , an appeal from a
denial of asylum, withholding of removal, and relief under the
Convention Against Torture ("CAT"), the Court found that it "need
not review the merits of the agency's denial of [Ya's]
applications for asylum and withholding of removal because Ya
has abandoned any challenge to the agency's dispos ive nexus
finding," and that Ya had abandoned any challenge to the denial
of CAT relief because her brief mentioned the CAT claim in only a
"single conclusory sentence." Id., order filed Sept. 16, 2009,
at 2-3. In Xiu Ming Wu v. Holder, 08-1802-ag, the Court found
that, although Wang had argued that "the BIA [had] erred
affirming the IJ's finding that [the petitioner's] claim did not
fall within one of the protected grounds [enumerated in 8 U.S.C.
§ 1158 (b) (1) (B) (i)], she fail [ed] to articulate in her br f
under which protected ground her claim falls and why." Id.,5
order filed Mar. 13, 2009, at 3-4. 1
II. Request to Withdraw from This Court's Bar
An attorney who is the subject of a disciplinary proceeding
this Court may resign from the Court's bar upon obtaining
leave of the Court. In re Saghir, 595 F.3d 472, 473-74 (2d Cir.
2010). Although leave to resign during the pendency of
disciplinary proceedings was denied in both Saghir and In re
Jaffe, 585 F.3d 118 (2d Cir. 2009), we find the present case
significantly different.
In both Saghir and Jaffe, resignation from the Court's bar
would have been a means of avoiding involuntary disbarment,
while, in the present case, the Committee has only recommended
that Wang be suspended for six months and subject to certain CLE
and reporting requirements. Thus, Wang proposes a remedial
measure arguably more onerous than she likely faced if these
proceedings continued, which was not the case in Saghir or Jaffe.
Furthermore, the misconduct at issue in Saghir and Jaffe was far
more ous than that at issue in the present case, and Wang has
Although Wang's brief was criticized in Bing
I v.
Mukasey, 07-5466-ag, that brief was filed in February 2008, prior
to receiving notice of this Court's referral order. See id.,brief filed Feb. 19, 2008. In that case, the Court declined to
reach the mer s of the agency's adverse credibility
determination because the petitioner had "failed to challenge
that determination sufficiently in his brief to this Court."
Id., order filed June 20, 2008, at 2-3. The Court noted that the
itioner's br f had addressed only one the three findings
supporting the adverse credibility determination, and denied the
petition on the basis of the unchallenged findings. See id.6
conceded culpability to a far greater degree than Saghir or
Jaffe. Finally, misunderstandings about the nature of Wang's
withdrawal from this Court's bar are unlikely since the present
order will be made public. In light of the preceding factors,
the factual findings presented in the Committee's report, and the
conduct described in section I of this decision, we conclude that
Wang's resignation is in the interests of justice. We there
grant Wang leave to resign.
III. Filing of Briefs Prior to Admission to the Court's Bar
In light of our acceptance of Wang's resignation, there is
no need to reach conclusions as to most of the conduct discussed
in the Committee's report. However, since other disciplinary
authorit s will likely make use of the Committee's report, we
note the following about the Committee's finding that Wang had
violated Rule 46 of the Federal Rules of Appellate Procedure and
Local Rule 46 by practicing before this Court prior to her
admission to the Court's bar. See Report at 11.
Prior to January 1, 2010, this Court's rule concerning
admission to the Court's bar stated the following:
Counsel of record for all parties must be admitted to
practice before this court. Oral argument may be
presented only by attorneys admitted to practice before
this court.
Former Second Cir. Local Rule 46(d). We are informed that,
during the relevant time period, some employees of this Court had
interpreted this rule as meaning that an attorney litigating
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before this Court need not be admitted to the bar of this Court
unless he or she intended to orally argue the case. We also are
informed that attorneys inquiring about the Court's admission
requirements were so advised. For purposes of this proceeding,
we need not decide whether we agree with that interpretation of
the rule. However, we find that a reasonable attorney could have
accepted, and acted upon, a Court employee's explicit instruction
that admission need not be sought for purposes of filing
documents with the Court.
The record before this Court does not make clear whether
Wang received, directly or indirectly, advice from a Court
employee on the need for admission. However, her belief as to
the need for admission was consistent with the advice that other
attorneys had received. Under these rcumstances, we could not,
without further investigation, reach a conclusion on the issue of
whether Wang had engaged in misconduct by failing to be admitted
prior to practicing in this Court. 2
2 The current version of the relevant rule requires that an
attorney filing a petition, motion, brief, or other document in
this Court on behalf of a party be a member of the Court's bar,
have an admission application pending, or be admitted as an
eligible law student or pro hac vice. See Second Cir. Local Rule
46.1(a) ("Except as otherwise provided in these rules, an attorney
who appears on behalf of a party or an amicus curiae in any
capacity must be admitted to practice before this court, or have
pending an application for admission, and must file a Notice of
Appearance in accordance with [Local Rule] 12.3.").
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IV. Conc1usions
Upon due consideration of the Committee's report, the
underlying record, Wang's submissions, and the additional
appellate proceedings described above, it is hereby ORDERED that
Wang's request for leave to resign from the bar of this Court is
GRANTED, and this proceeding is terminated. If Wang seeks
readmission to this Court's bar in the future, she must do so by
motion addressed to this panel, under this docket number.
We do not require Wang to withdraw from any pending case in
this Court in which briefing has been completed. However, Wang
must seek to withdraw if so instructed by a client, and any panel
of this Court deciding a pending case may revisit the issue of
Wang's continued representation upon consideration of the
specific circumstances.
The text of this panel's April 2008 order and the
Committee's report are appended to, and deemed part of, the
present order the following disclosure purposes. Wang must
disclose this order to all clients in cases currently pending in
this Court and to all courts and bars of which she is currently a
member, and as required by any bar or court rule or order. Wang
also must, within fourteen days of the filing of this order, file
an affidavit with this Court confirming that she has complied
with the preceding disclosure requirement. Furthermore, the
Clerk of Court is directed to release this order to the public by
9
posting it on this Court's web site and providing copies to
members of the public in the same manner as all other unpublished
decisions of this Court, and to serve a copy on Wang, this
Court's Committee on Admissions and Grievances, the attorney
disciplinary committee for the New York State Appellate Division,
First Department, and all other courts and jurisdictions to which
this Court distributes disciplinary decisions in the ordinary
course.
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk
By: Michael Zachary
Counsel to the Grievance Panel
APPENDIX 1
Text of April 2008 order
For the reasons that follow, Yan Wang, is referred to this Court's Committee on
Admissions and Grievances for investigation of the matters described below and preparation of a
report on whether she should be subject to disciplinary or other corrective measures. See 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 2003, this Court has dismissed 37 of the 62 petitions for review for which Wang
was the petitioners' counsel of record, based on the petitioners' failure to comply with this
Court's scheduling orders. See Second Circuit cases docketed under 04-0486; 04-1308; 04-3214;
04-3217; 04-3274; 04-3665; 04-3727; 04-3728; 04-3829; 04-4200; 04-4272; 04-4466; 04-5006;
04-5253;04-5255;04-6105; 04-6290;05-0083;05-2120;05-2156;05-2315;05-2322;05-2612;
05-3031; 05-3744; 05-4395; 05-4396; 05-4482; 05-5911; 05-6826; 06-1633; 06-1638; 06-1911;
06-2954; 06-2964; 06-3872; 06-4802. Further, this Court has dismissed an additional petition for
review for which Wang was counsel of record, based on the petitioner's failure to file form CIA
pursuant to this Court's Civil Appeals Management Plan. See Wang v. Gonzales,05-5346-ag. In
10
several of the above-noted cases, Wang filed motions for reinstatement in which she
acknowledged that, after accepting a retainer, she failed to file a timely brief because the
petitioner did not make subsequent payments. See Yang v. Gonzales, 06-1638-ag, motion filed
Apr. 27, 2007 (Wang Aff. ~ 5) ("[T]he petitioner delayed his payment, which usually acted as a
reminder for us to finish the brief. Thus, we suspended the petitioner's brief with the petitioner's
awareness."); Zheng v. Ashcroft, 04-5006-ag, motion filed May 29, 2007 (Wang Aff. ~ 5) (same);
Chen v. Ashcroft, 05-2322-ag, motion filed June 6, 2007 (Wang Aff. ~ 5) (same); Meng v.
Ashcroft, 05-2315-ag, motion filed June 6, 2007 (Wang Aff. ~ 5) ("[H]e was not able to pay for
the brief .... Thus, the petitioner did not proceed with the brief."). However, this Court's
records for the cited cases do not indicate that, prior to the respective deadlines for filing of the
briefs or form CIA, Wang requested an extension of time to comply, leave to withdraw as
counsel, a stay of proceedings, or withdrawal of the appeal.
Further, we note that the facts alleged by Wang in at least three of her affidavits filed in
support of motions to reinstate have been strikingly similar. See He v. Gonzales,05-3744-ag,
motion filed June 6,2007 (Wang Aff. ~ 7) (stating that petitioner's foot had been seriously
injured while working in a restaurant and, due to the cost of medical treatment, petitioner was not
able to pay for her brief); Liu v. Ashcroft, 04-1308-ag, motion filed June 15,2007 (Wang Aff. ~
7) (stating that petitioner's arm had been seriously burned while working in a restaurant and, due
to the cost of medical treatment, petitioner was not able to pay for her brief); Huang v. Ashcroft,
05-0083-ag, motion filed June 15,2007 (Wang Aff. ~ 7) (stating that petitioner's hand and arm
were seriously burned while working in a restaurant and, due to the cost of medical treatment,
petitioner was not financially able to proceed with his case).
Finally, in Yi Mei Fang v. Mukasey, 07-0877-ag, this Court ordered Wang to show cause
why she should not be sanctioned for her failure to observe the requirements of Federal Rule of
Appellate Procedure 28, based on a number of deficiencies in her brief. See Yi Mei Fang, 07­
0877-ag, order entered Nov. 29,2007. In her response, Wang alleged, inter alia, that another
attorney had drafted the brief, and that a "computer bug" may have caused irrelevant matters to
be inserted into the brief. Id., response filed Dec. 7, 2007. However, Wang also stated that she
had read the entire brief and did not observe the errors. Id. Upon review of Wang's response,
the panel presiding over the case transferred Wang to this panel. Id., order filed Jan. 4, 2008.
Upon due consideration of the matters described above, it is ORDERED that Yan Wang
is referred to this Court's Committee on Admissions and Grievances for investigation and
preparation of a report, pursuant to Federal Rule of Appellate Procedure 46, this Court's Local
Rule 46(h), and the Rules of the Committee on Admissions and Grievances.
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk
By: - - - - - : - - - : - ­ /s
Michael Za
Supervisory Staff Attorney
Counsel to the Grievance Panel
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APPENDIX 2
July 2009 Report of the Committee
on Admissions and Grievances
REPORT & RECOMMENDATION
In Re: Van Wang, #07-9039-am
I. Introduction
By order dated April 2, 2008, the United States Court of Appeals for the Second Circuit
(the "Court") referred Van Wang to this Committee for investigation of her conduct before the
Court and for preparation of a report on whether she should be subject to discipline or other
corrective measures.
Ms. Wang is an immigration attorney admitted to practice before the Court on August 30,
2007. The Court's Referral Order raises a num,ber of areas of concern regarding Ms. Wang's
conduct, including (1) thirty-seven instances of failure to comply with the Court's scheduling
orders, resulting in dismissal of her clients' petitions for review; and (2) the veracity of Ms.
Wang's representations to the Court. Additionally, this Committee learned that although Ms.
Wang was admitted to the Court on August 30, 2007, she had been representing petitioners
before the Court without seeking QIQ hac vice admission since at least 2004.
The following constitutes the Committee's Report and Recommendation to impose
discipline on Ms. Wang.
II. The Referral Order and this Disciplinary Proceeding
On May 2,2008, this Committee issued an Order to Show Cause regarding Ms. Wang's
conduct as alleged in the Court's Referral Order. The Referral Order addresses thirty-nine
separate matters pending before the Court in 2004-2007 in which Ms. Wang was listed as
counsel of record. By letter of May 23, 2008, Ms. Wang timely requested a thirty day extension
of her time to respond, which was granted by this Committee. On June 27, 2008, Ms. Wang
timely submitted a response with exhibits. Thereafter, Ms. Wang retained counsel, Richard M.
Maltz, Esq., who supplemented Ms. Wang's response with further documentation. A hearing
was held on September 19,2008, before a subcommittee consisting of Eileen Blackwood,
Terrence M. Connors, and Paul Cumin. Ms. Wang appeared with attorney Maltz who presented
Ms. Wang as the only witness. On September 23,2008, Mr. Maltz wrote to this Committee
advising of the a prior Letter of Admonition by the Executive Office for Immigration Review,
which Ms. Wang had not disclosed during the hearing.
III. Factual Background
The following facts are taken from Court records, Ms. Wang's written submissions with
documentation, and the testimony presented at the hearing.
Ms. Wang practices in the New York City area with the Law Offices of Matthew J. Jeon,
P.C. She has been admitted to practice law by the Third Department since 2002. She is thirty­
six years old and was born in Beijing, China. She has lived in the United States since 1999.
Ms. Wang graduated from Lanzhou University School of Law in 1996 where she states
that she was the top student in her class all four years. She holds a Master's Degree in
Economic Law from Capital Economics and Trade University (1999), and an L.L.M. from
Temple Law School (2000).
Ms. Wang has worked for the Law Offices of Mathew Jeon, P.C., for seven years. The
practice has two offices, one in New Jersey and one in Manhattan; she works in the Manhattan
office which mainly serves Chinese, specifically Fujianese, clients. Her immigration work is
mainly comprised of asylum applications and family-based petitions.
According to Ms. Wang's testimony, before 2003, Ms. Wang had few Second Circuit
files. Because of a change in immigration enforcement practices, however, in 2004 and 2005,
Ms. Wang's office received an influx of clients who required intervention before the Second
Circuit. In approximately 2007, she began to limit the number of Second Circuit cases her office
accepts, and as of the date of the hearing, had seven cases pending before the Court.
IV. The Alleged Misconduct
A. Dismissal of Petitions for Failure to Comply with the Court's Rules
The brunt of the allegations against Ms. Wang stem from the Court's dismissal of thirty­
seven of the sixty-two petitions for review that she filed with the Court. The petitions were
dismissed for failure to comply with the Court's scheduling orders.
At her hearing, Ms. Wang provided three basic explanations for these dismissals: (1) her
clients failed to keep in touch with her office, and her office's attempts to reach them failed; (2)
her clients failed to pay; and (3) she and/or the clients decided that certain matters should not be
pursued. Ms. Wang testified that at the time, she did not know that she should file a motion to
2
withdraw if she did not intend to pursue a matter before the Court. She now understands the
requirement that she do so.
Ms. Wang did not offer specific responses to the dismissals at her hearing but rather
chose to address the issue more generally, as described above. This Committee finds that her
testimony and the documents presented at the hearing do not provide adequate explanations for
her conduct. Her written responses to this Committee regarding this matter are likewise
inadequate; those responses are summarized as follows:
(1) In response to the dismissals ofLiu v. Ashcroft, 04-1308-ag, Wang v.
Ashcroft, 04-6290-ag, Tang v. Gonzales, OS-6826-ag, Gao v. Gonzales, 06-1633-ag
and Yang v. Gonzales, 06-3872-ag, Ms. Wang admits that each case was dismissed
for failure to file a brief but gives no specific reason for the failure. In each of these
cases, she thereafter filed a motion to reinstate, which was granted.
(2) In response to the dismissals ofZheng (Wen Jin) v. Ashcroft, 04-S006-ag,
Huang v. Ashcroft,OS-0083-ag, Meng v. Ashcroft, OS-231S-ag, Chen v. Ashcroft, OS­
2322-ag, He v. Gonzales, OS-3744-ag, Lin v. Gonzales, OS-S911-ag, Yang v.
Gonzales, 06-1 638-ag, and Song v. Gonzales, 06-4802-ag, Ms. Wang admits that
each case was dismissed for failure to file a brief but again gives no specific reason
for the failure. In each of these cases, she thereafter filed a motion to reinstate, which
was denied. Nevertheless, at her hearing, Ms. Wang did not acknowledge that any
client was harmed by any dismissal, including these eight petitioners for whom
reinstatement was denied.
(3) In response to the dismissals ofZeng v. Ashcroft, 04-3214-ag, Chen v.
Ashcroft, 04-3217-ag, Wang v. Ashcroft, 04-3829-ag, Liu-Ziu v. Ashcroft, 04-S2S3­
ag, Lin v. Gonzales, OS-3031-ag, and Guo v. Gonzales, 06-1911-ag, Ms. Wang does
not deny that the petitions were dismissed for failure to follow the Court's scheduling
orders. She claims that the clients failed to keep in touch with her office and that her
office's attempts to reach them failed.
(4) In response to the dismissals of Karangkong v. Ashcroft, 04-3727-ag,
Dandi v. Ashcroft, OS-2120-ag, Chung v. Ashcroft, OS-21S6-ag, Goutama v.
Gonzales, OS-4482-ag, and Lomban v. Gonzales, 06-2964-ag, Ms. Wang does not
deny that the petitions were dismissed for failure to follow the Court's scheduling
orders. As her explanation, she claims that the clients paid one or two often $2S0 or
$300 monthly installments, but then stopped paying.
This Court has specifically rejected such explanations. In Bennett v.
Mukasey, 52S F.3d 222 (2d Cir. 2008), on motion to reinstate a petition for review of
a BIA decision, Judge Jon O. Newman held that "a lawyer's practice of accepting an
initial retainer fee and then deliberately failing to take required action because of non­
payment of additional fees, thereby permitting his client's petition to be dismissed, is
unacceptable." Id., S2S F.3d at 223.
3
(5) In Chen v. Gonzales, 06-2954-ag, Ms. Wang claims that she filed a brief
on December 15, 2006, but that it was returned because no scheduling order had been
issued for briefs. She admits that the case was then dismissed for failure to file a
brief. She filed a motion to reinstate the petition, which was granted.
(6) In Liu v. Ashcroft, 04-3274-ag, Ms. Wang does not deny that the petition
was dismissed for failure to follow the Court's scheduling order. She claims that the
client's wife applied for political asylum, that the client abandoned his petition for
review in order to focus on her application, and that both her client and her client's
wife were thereafter granted asylum.
(7) In Chen v. Ashcroft, 04-3728-ag, Ms. Wang does not deny that the petition
was dismissed for failure to foHow the Court's scheduling order. She claims that she
and the government stipulated to dismiss the petition, but the docket does not reflect
the entry of any such stipulation.
(8) In Burhan v. Gonzales, 05-4395-ag and Mamahit v. Gonzales, 05-4396-ag,
Ms. Wang does not deny that the petition was dismissed for failure to follow the
Court's scheduling order. She claims that the cases, for a husband and wife, were
transferred to the Third Circuit. They were first dismissed by the Second Circuit,
however, and were subsequently dismissed by the Third Circuit for failure to
prosecute.
(9) In Li v. Ashcroft, 04-0486-ag, Ms. Wang admits that her office did
not file a brief and that the case was dismissed for failure to prosecute. She claims
that the matter was instead pursued before the Board of Immigration Appeals
("BIA"). While Ms. Wang testified that she generally would consult with clients
about whether to pursue a matter in the Second Circuit or move to reopen with the
BIA, she offered no proof that she consulted with the client regarding the decision in
this case.
(l0) In Lin v. Ashcroft, 04-3665-ag, Wang v. Ashcroft, 04-4466-ag, and Jiang
v. Ashcroft, 04-5255-ag, Ms. Wang does not deny that the petitions were dismissed
for failure to follow the Court's scheduling orders. She claims that the matters were
pursued before the BIA instead. As in Li v. Ashcroft, 04-0486-ag, Ms. Wang offered
no specific proof that she consulted with her clients in these matters in making the
decision to pursue the matter before the BIA instead of the Court.
(11) In Zheng v. Ashcroft, 04-4200-ag, Ms. Wang does not deny that the
petition was dismissed for failure to follow the Court's scheduling order. She claims
that after she filed an appeal with the Second Circuit, the client advised that she
would like to reopen her case with the BIA.
4
(12) In Zheng v. Ashcroft, 04-4272-ag, Ms. Wang does not deny that the
petition was dismissed for failure to follow the Court's scheduling order. She claims
that the matter was pursued before the BIA instead and that her client is currently
married to a Permanent Resident who intends to apply for her husband when she
becomes a citizen. As with the matters discussed above, Ms. Wang offered no proof
that she discussed not pursuing the Second Circuit matter with her client before it was
dismissed.
(13) In Lian v. Ashcroft, 04-61 05-ag, Ms. Wang does not deny that the
petition was dismissed for failure to follow the Court's scheduling order. She claims
that her office did not file a brief because they concluded that Respondent had a
better chance of relief before the BIA. Ms. Wang provided no proof that this decision
was discussed with the client. Ms. Wang claims that the BIA denied relief and the
client decided not to pursue an appeal in the Second Circuit.
(14) In Zheng v. Gonzales, 05-2612-ag, Ms. Wang admits that the petition
was dismissed for failure to prosecute. She claims that her office instead filed a
Motion to Reopen to the BIA on April 20, 2007 and again on July 21,2007. These
motions were made over a year after the Second Circuit's dismissal on February 8,
2006.
(15) In Wang v. Gonzales, 05-5346-ag, the Court dismissed the petition for
review because the petitioner failed to file form CIA pursuant to this Court's Civil
Appeals Management Plan. Ms. Wang provided no response to this allegation.
Ms. Wang acknowledges that she had insufficient knowledge and insufficient systems in
place for Second Circuit practice. l She claims that in response to the Court's inquiry into these
dismissals, she has undertaken corrective measures. She is using new computer software to track
deadlines. She has improved the letter used for contacting clients and gathers more information
from clients so that they can stay in better communication. She has taken continuing legal
education courses on immigration practice and courses on federal appellate practice. She reads
submissions that were drafted by others more closely. She has decreased the number of cases
that she takes that will require petitions to this Court.
As noted above, Ms. Wang did not acknowledge that any client was harmed by any ofthe
thirty-seven dismissals, even though her motions to reinstate eight of the dismissals were denied.
1 Additionally, this Committee is compelled to note that, among other admissions, Ms. Wang admitted that she did
not request oral argument on her cases in part because: "I am not a good litigator, so that is my weakness."
Transcript 38-39. She went on to explain that, "I would rather to avoid not being laughed by the Court or the
officials or the staff because I know I have a lot to learn .... I don't think I have that kind of ability." Id. Ms.
Wang did state, however, that if a case needed to be argued, she would prepare it to be argued for the Second Circuit
and ask the "of counsel" and/or other counsel doing litigation work for assistance. Also, the vast majority of her
Second Circuit cases are presented on submission because of the Court's Non-Argument Calendar and often for
strategic reasons. Therefore, this Committee is satisfied that despite Ms. Wang's lack of confidence in her oral
advocacy skills, her clients' interests will be protected.
5
Further, Ms. Wang testified that she would not voluntarily advise clients that they could consult
another attorney. She did express remorse and apologized to the Court for her conduct.
B. Veracity of Representations to the Court
The Referral Order also requested a response regarding separate submissions by Ms.
Wang in separate matters that contained similar or identical facts. First, in He v. Gonzales, 05·
3744-ag, Liu v. Ashcroft, 04-1308-ag, and Huang v. Ashcroft, 05·0083-ag, Ms. Wang filed
affidavits in support of motions to reinstate petitions which alleged suspiciously similar facts. In
He v. Gonzales, 05-3744-ag, Ms. Wang stated that petitioner was not able to pay for her brief
because petitioner's foot had been seriously injured while working in a restaurant. In Liu v.
Ashcroft, 04·1308-ag, Ms. Wang stated that petitioner was not able to pay for her brief because
petitioner's arm had been seriously burned while working in a restaurant. In Huang v. Ashcroft,
OS-0083·ag, Ms. Wang stated that petitioner was not able to pay for his brief because petitioner's
hand and arm had been seriously burned while working in a restaurant.
Ms. Wang testified that many of her clients work in small restaurants under poor
conditions and do indeed frequently get injured in these ways. For purposes of this report, this
Committee accepts Ms. Wang's explanation. This Committee is troubled, however, by the fact
that Ms. Wang did not have any personal knowledge or check any of the facts included in her
affidavits before swearing to them.
Second, in Yi Mei Fang v. Mukasey, 07-0877-ag, Ms. Wang filed a brief that failed to
meet the requirements of Federal Rule of Appellate Procedure 28. The Court ordered Ms. Wang
to show cause why she should not be sanctioned for her failure to observe the requirements. In
her response to the Court, Ms. Wang stated that another attorney had drafted the brief. She
acknowledged that she had read it and had not seen the errors. She stated that a "computer bug"
may have caused irrelevant matters to be inserted into the brief.
In this proceeding, Ms. Wang further claims that the attorney who was responsible for
writing the Fang brief was also responsible for a brief in another matter, Zheng v. Gonzales, 06­
5404-ag, which Ms. Wang claims was due at the same time. In her written response, she claims
that the errors were due to "templates" being "mixed up" between the two briefs. At the hearing,
Ms. Wang claimed that there was a "cut and paste" problem. Essentially, she claims that an "of
counsel" attorney wrote the briefs and improperly pasted the facts from one matter (Zheng) into
the papers for another matter (Fang).
Ms. Wang accepts responsibility for the briefs, both of which were in her name. She
claims that she did not read them closely enough and now takes more time to review briefs
before their submission. Specifically, Ms. Wang claims that her former practice was to read
draft briefs on the computer screen without printing them out, a practice which she claimed
inhibited her ability to carefully review the briefs. Ms. Wang testified that she now prints the
drafts and reads them on paper. She claims that this practice assists her in a more careful review.
However true this may be, this Committee finds this excuse to be unavailing.
6
What is more, a review of the docket for Zheng v. Gonzales, 06-5404-ag, and Yi Mei
Fang v. Mukasey, 07-0877-ag, reveals multiple discrepancies in Ms. Wang's explanation. First,
the briefs were not actually due at the same time. In Fang, the brief was due May 14,2007. In
Zheng, however, Ms. Wang requested two extensions to file the brief, which were granted,
ultimately resulting in the brief being due on February 20, 2007, nearly three months before
Fang was due. Despite the two extensions, Ms. Wang missed the February 20,2007 deadline,
filed a motion to accept a late brief on April 13,2007, and finally filed the brief on May 1,2007.
While the motion for acceptance of a late brief was subsequently granted, this Committee is
troubled by Ms. Wang's inability to make any of these deadlines. This Committee is more
troubled by Ms. Wang's inability to provide a cogent response to why the Fang brief was
deficient and by her apparent misrepresentation to this Committee that the Fang and Zheng briefs
were due contemporaneously, when clearly they were not. It is this Committee's opinion that
Ms. Wang's explanation lacks merit and constitutes further misrepresentations to this
Committee.
V. Legal Standard
Under the Rules of the Committee on Admissions and Grievances for the United States
Court of Appeals for the Second Circuit ("Committee Rules"),
An attorney may be subject to discipline or other corrective
measures for any act or omission that violates the rules of
professional conduct or responsibility of the state or other
jurisdiction where the attorney maintains his or her principal office
. . .. An attorney also may be subject to discipline or other
corrective measures for any failure to comply with a Federal Rule
of Appellate Procedure, a Local Rule of the Court, an order or
other instruction of the Court, or a rule of professional conduct or
responsibility of the Court, or any other conduct unbecoming a
member of the bar.
Committee Rule 4; see a/so F.R.A.P. 46( c) ("a court of appeals may discipline an attorney who
practices before it for conduct unbecoming a member of the bar or for failure to comply with any
court rule").
"Conduct unbecoming a member of the bar" includes "conduct contrary to professional
standards that shows an unfitness to discharge continuing obligations to clients or the courts, or
conduct inimical to the administration ofjustice. More specific guidance is provided by case
law, applicable court rules, and 'the lore of the profession,' as embodied in codes of professional
conduct." In re Snyder, 472 U.S. 634, 645, 105 S.Ct 2874, 2881 (1985).
Also, under Federal Rule of Appellate Procedure 46 ("F.R.A.P.") and the Court's Local
Rule 46 ("Local Rule"), an attorney must be admitted to the Court before practicing before it.
7
Finally, because Ms. Wang was a member of the bar of New York State during the time
period at issue, the New York State Code of Professional Responsibility ("the Code") also
applies. Three sections are of particular relevance in this matter. First, D.R. 6-101 provides that
a lawyer shall not:
1. Handle a legal matter which the lawyer knows or should know that he or she is
not competent to handle, without associating with a lawyer who is competent to
handle it;
2. Handle a legal matter without preparation adequate in the circumstances;
3. Neglect a legal matter entrusted to the lawyer.
22 N.Y.C.R.R. § 1200.30; see also N.Y.R. 1.3(b).
Second, D.R. 7-101 directs that attorneys shall not intentionally "[f]ail to seek the lawful
objectives of the client through reasonably available means permitted by law and the
Disciplinary Rules ... " nor "prejudice or damage the client during the course of the professional
relationship." 22 N'y.C.R.R. § 1200.32(A)(1), (3); see also N.Y.R. 1.3(c). Further, the lawyer
must not fail to "carry out a contract of employment entered into with a client for professional
services, but the lawyer may withdraw ...." D.R. 7-101(A)(2); 22 N.Y.C.R.R. § 1200.32(A)(2);
see also N.Y.R. 1.3(c). A lawyer may not withdraw from employment "until the lawyer has
taken steps to the extent reasonably practicable to avoid foreseeable prejudice to the rights of the
client, including giving due notice to the client, allowing time for employment of other counsel,
delivering to the client all papers and properties to which the client is entitled and complying
with applicable laws and rules." D.R. 2-110(A)(2); 22 N'y.C.R.R. § 1200J5(A)(2); see also
N.Y.R. 1.16(e); Bennett, 525 F.3d at 223-24.
Third, the Code prohibits conduct that involves misrepresentation, is prejudicial to the
administration of justice, and/or "adversely reflects on the lawyer's fitness as a lawyer." D.R. 1­
102(A)(4), (5), (7); 22 N.Y.C.R.R. § 1200.3(A) (4), (5), (7); see also N.Y.R. 8.4(b)-(d), (h).
According to this Committee's rules, "[a]ny finding that an attorney has engaged in
misconduct or is otherwise subject to corrective measures must be supported by clear and
convincing evidence." Committee Rule 7(h).
If an attorney has been found to have engaged in misconduct, this Committee may
recommend to the Court's Grievance Panel that the attorney be:
(a) removed from the bar of the Court;
(b) if not a member of the bar of the Court, precluded from becoming a member or from
appearing in future cases in the Court;
8
(c) suspended from practice before the Court, for either an indefinite or a
specified period of time;
(d) publicly or privately reprimanded;
(e) monetarily sanctioned;
(f) removed from the Court's QIQ bono or Criminal Justice Act panels;
(g) referred to another disciplinary committee, bar association, law
enforcement agency, or other agency or organization;
(h) subject to the supervision of a special master, or receive some form of
counseling or treatment by an appropriately certified person; or
(i) subject to such other disciplinary or corrective measures as the
circumstances may warrant, including any combination of the preceding
possible actions.
Committee Rule 6(a)-(i). The following factors are considered in recommending discipline:
(a) the duty violated;
(b) the lawyer's mental state;
(c) the potential or actual injury caused by the lawyer's misconduct; and
(d) the existence of aggravating or mitigating factors.
American Bar Association, Standards for Imposing Lawyer Sanctions ("ABA Standards")
(C)(3.0).
VI. Aggravating and Mitigating Factors
There are significant aggravating factors in this matter. First, the misconduct described
above was repeated by Ms. Wang on mUltiple occasions and over an extensive period oftime.
Second, Ms. Wang has a history of misconduct before other tribunals. In fact, Ms. Wang
has been sanctioned twice by the United States Court of Appeals for the First Circuit. For
example, in Rantung v. Gonzales, First Circuit Docket No. 06-1377, the First Circuit found that
Ms. Wang's arguments were "neither developed nor supported by references to the relevant
law," noting that this "is not the first time we have had occasion to note this attorney's failure to
conform to the procedural and substantive standards ...." Ms. Wang was ordered to show cause
why single or double costs should not be assessed under Federal Rule of Appellate Procedure 38.
9
The First Circuit subsequently imposed a sanction and ordered double costs. Ms. Wang states
that the same "of counsel" attorney prepared that brief, though Ms. Wang signed it. Ms. Wang
acknowledges that she did not properly review the brief and takes responsibility under Federal
Rule 11.
In Panjaintan, the First Circuit noted concern about errors in the papers that showed that
Ms. Wang may have conflated two cases and that the petition was frivolous. The Court notified
Ms. Wang of its intention to impose double costs under Federal Rule of Appellate Procedure 38,
which it did on July 5, 2007, to be paid by Ms. Wang. According to the docket in that matter,
the petitioners forwarded payment and the Court had to return the money orders to them and
advise that the costs were to be paid by Ms. Wang, not by them. Ms. Wang claims that the same
"of counsel" attorney prepared that brief. She acknowledges that she did not properly review it
and accepts responsibility.
In addition to the sanctions imposed by the First Circuit, on June 21,2006, Ms. Wang
received a disciplinary letter of admonition from the Executive Office for Immigration Review
for failing to appear at scheduled hearings.
There also are mitigating factors in this matter. As noted above, Ms. Wang was born in
Beijing, China. Her father committed suicide when she was just four years old, her mother
suffered from depression, and Ms. Wang was a target of schoolmates. Despite these significant
personal obstacles, Ms. Wang obtained a legal education in China and then came to the United
States to obtain an L.L.M. from Temple Law School. For the past seven years working with the
Law Offices of Matthew J. Jeon, P.C., she claims to have worked over sixty hours per week
without absence.
As a practitioner, Ms. Wang has worked with a challenging portfolio of clients.
Approximately two-thirds of Ms. Wang's appellant clients were previously represented by other
offices. They often do not have their files and therefore Ms. Wang must file a petition for review
to protect the client's interests before she has had an opportunity to review the clients' entire file.
Further, Ms. Wang has accepted responsibility for the misconduct at issue and has
instituted various corrective measures. For example, she has made changes to the way the office
functions and is further educating herselfthrough reading and course work. She utilizes a new
calendar tickler system; has updated the office's retainer agreement; and has requested and
documented more thorough information, including more extensive contact information, from
clients. In addition, the "of counsel" attorney who Ms. Wang claims was responsible for some of
the misconduct described herein was replaced, and paralegals are now provided with more
training. Further, Ms. Wang now takes fewer Second Circuit cases and spends more time
reviewing cases. She claims now to spend four hours reviewing a brief and the corresponding
record, instead of her former practice of spending only twenty minutes per brief.
Nevertheless, despite these changes, Ms. Wang has continued to miss deadlines with the
Court. For instance, in the matter of Fang v. Mukasey, 080986, Ms. Wang missed two Court­
imposed deadlines in 2008. What is more, as part of her explanation for those missed deadlines,
10
Ms. Wang stated that she had lost the client file. Further, until she was confronted with
questions at the hearing about these missed deadlines, Ms. Wang represented that no deadlines
had been missed since the allegations in the Referral Order. Consequently, this Committee lacks
confidence both in Ms. Wang's current ability to meet deadlines -- even in light of the corrective
measures that she claims to have taken -- and in her efforts to be fully candid with this
Committee.
VII. Recommendation
The Committee finds, based on clear and convincing evidence, that Ms. Wang has
violated F.R.A.P. 46(c); DR 6-101; 22 N.Y.C.R.R. § 1200.30; DR 7-101(A)(1), (2), (3); 22
N.Y.C.R.R. § 1200.32(A)(1), (2), (3); DR 1-102(A) (4), (5), (7); 22 N.Y.C.R.R.
§ 1200.3(A) (4), (5), (7). Additionally, Ms. Wang violated F.R.A.P. 46 and Local Rule 46 by
practicing before the Court without being admitted.
It is this Committee's conclusion that Ms. Wang was not properly equipped to handle the
influx of Second Circuit matters that her office received. That is, Ms. Wang lacked sufficient
practical skills and knowledge to adequately follow the Court's rules and properly protect her
clients' interests. It is also this Committee's conclusion, however, that because of Ms. Wang's
educational background and her showing of genuine dedication to her clients' needs, Ms. Wang
is not incapable of competently representing petitioners before the Court - rather, she simply
has thus far been ill-equipped to do so. This Committee finds that Ms. Wang could benefit from
continued, and targeted, legal education regarding handling cases at the appellate level and
overall law practice management. Consequently, this Committee recommends that the Court
require Ms. Wang to participate in significant continuing legal education as part of any sanction
it may order.
Additionally, this Committee concludes that though Ms. Wang has taken certain
corrective measures and has expressed remorse that this Committee also finds to be genuine,
discipline is warranted in light of her misconduct and her insufficient and sometimes inconsistent
representations to this Committee.
Consequently, this Committee recommends that Ms. Wang be suspended for a period of
six months. Ms. Wang should be required to promptly provide notice of her suspension to her
current clients for whom she has an action pending in the Court or for whom action in the Court
may be warranted during the suspension period and to all attorneys in matters pending in the
Court for which she is counsel of record. Specifically, within twenty-one days of the
commencement of her suspension, she should be required to: (1) notify each client for whom she
has an action pending in the Court or for whom action in the Court may be warranted during the
suspension period, by registered or certified mail, that she is unable to act as counsel due to
suspension and advise the client to obtain new counsel and (2) in each matter pending in the
Court, notify all counsel for all parties, by registered or certified mail, that she is unable to act as
counsel due to suspension and advise of the name and address of her client in each respective
matter. If any of Ms. Wang's clients in matters pending in the Court fails to obtain new counsel,
Ms. Wang shall move for permission to withdraw as counseL No later than thirty days after the
11
commencement of her suspension, Ms. Wang should be required to file with the Court an
affidavit showing her current mailing address and attesting that she has complied with the order,
including all notice requirements; Ms. Wang should be required to serve, by registered or
certified mail, a copy of the affidavit on the Secretary for this Committee. Ms. Wang should be
required to maintain records of compliance with these notice and reporting requirements and
produce them to the Court or this Committee upon request.
This Committee further recommends that during her suspension, she be required to
complete no fewer than eight hours of continuing legal education ("CLE") in appellate level
advocacy and no fewer than eight hours of CLE in law office/practice management from CLE
providers accredited by the bar of New York, in addition to the CLE hours required for all
attorneys admitted in New York State. Ms. Wang should exercise due diligence in seeking out
courses that will provide information and direction for her substantive representation and
practical management in federal appellate matters. She should report and provide documentation
of her compliance to this Committee's Secretary no later than thirty days before the conclusion
of her suspension.
In addition, she should be required, in connection with her practice in any federal court in
the Second Circuit or in any federal administrative agency whose action is subject to the Second
Circuit's review, to submit to this Committee 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 oftime; or (2) an application is made for permission to
make a late filing only after the due date has passed. It is expected that these reports will show
no such instances absent exigent circumstances, 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
circumstances, the Committee may recommend the imposition of additional discipline,
including, but not limited to, further 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 (l0) days ofthe end of
that reporting period. The first reporting period shall commence 10 days after the Committee's
recommendation is mailed to Ms. Wang and shall end six months after the Second Circuit issues
its order of disposition in this matter. Each of the three subsequent reporting periods shall be for
a period commencing at the end of the prior reporting period and ending six months later. A total
of four reports will be prepared and mailed to the Committee Secretary.
12