In re Ronald S. Salomon , 402 F. App'x 546 ( 2010 )

08-9043-am
In re Ronald S. Salomon
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 ter;m 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 14th day of October, two thousand ten.
PRESENT:
Jose A. Cabranes,
Robert D. Sack,
Richard C. Wesley,
rcuit Judges.
08-9043-am
In re Ronald S. omon,
Attorney. ORDER OF
GRIEVANCE PANEL
FOR RONALD S. SALOMON: RONALD S. SALOMON, Esq., New York,
New York.
1 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
2 DECREED that the report of this Court's Committee on Admissions
3 and Grievances ("the Committee") is adopted, and RONALD S.
1 SALOMON is PUBLICLY REPRIMANDED and SUSPENDED from practice
2 fore this Court r a period of three months, based on the
3 misconduct described in the Committee's report.
4 I. Summary of Proceedings
5 By order filed in April 2008, this Court referred Salomon
6 to the Committee for investigation of the matters scribed in
7 that order and preparation of a report on whether he should be
8 subject to disciplinary or other correct measures.
9 During the Committee's proceedings, Salomon had the
10 opportunity to address the matters discussed in the Court's
11 referral order and to testify under oath at a hearing held on
12 September 8, 2008. Salomon appeared pro se. Presiding over the
13 hearing were Committee members Mary Jo White, Esq., Loretta E.
14 Lynch, Esq., and the Honorable Howard A. Levine. Thereafter,
15 the Committee filed with the Court the record of the Committee's
16 proceedings and its report and recommendations.
17 In its report, the Committee concluded that there was clear
18 and convincing evidence that Salomon had engaged in conduct
19 warranting the imposition of discipline. See Report at 7. The
20 Committee stated, inter alia, that Salomon had rsisted, over a
21 period of several years and despite explicit warnings from the
22 Court, failing to comply with this Court's scheduling orders
23 and iling to diligently prosecute his clients' cases. Id., at
24 6. The Committee spe fically found that, between 2005 and
2
1 2008, Salomon had defaulted in approximately 125 cases out of a
2 total of 190 cases, id., at 2, 6, that he did not "appear to
3 have taken organized or effective steps to protect the interests
4 of those clients whose cases were dismissed," that numerous
5 clients were put at grave risk of prejudice, and that his
6 misconduct disrupted the Court's proceedings and burdened the
7 Court's staff with additional work, id., at 6.
8 The Committee also noted the presence of significant
9 aggravating factors and limited mitigating factors, finding,
10 inter alia, that Salomon's improved case management was not a
11 significant mitigating factor, given his recent defaults in
12 Elyzabeth v. Keisler, 07-4626-ag, and Diallo v. Mukasey, 08­
13 0199-ag. Id. at 6-7. The Committee recommended that Salomon
14 be: (1) suspended for a period of three months; (2) required to
15 attend continuing legal education ("CLE") classes on law office
16 management; and (3) required to submit periodic reports to the
17 Court. Id. at 1, 7-8.
18 In his response to the Committee's report, Salomon did not
19 dispute the Committee's factual findings, but requested that the
20 Court consider additional mitigating factors and not adopt the
21 Committee's recommendation that he be suspended. Response at 1.
22 As he did during the Committee's proceedings, Salomon emphasized
23 his success in obtaining relief for clients who had been
24 subjected to female genital mutilation, as well as his
25 commendable pro bono efforts on that issue. Id. at 1-2.
3
1 Salomon also addressed, inter alia, the Committee's concerns
2 regarding his recent default in Elyzabeth, asserting that he had
3 "made every effort to file a brief . . after becoming aware
4 that a briefing schedule had been set," and that "[cJhanges have
5 been made to eliminate any office error of this kind in the
6 future." Id. at 3. Finally, expressing concern that a
7 reciprocal suspension at the agency level, based on a suspension
8 by this Court, would have a negative effect on his clients'
9 interests, Salomon requested that he be censured rather than
10 suspended, and/or allowed to voluntarily withdraw from practice
11 before this Court for an indefinite period. Id. at 4; Suppl.
12 Response at 2-3. However, he requested that a voluntary
13 withdrawal, if granted, not be publicly disclosed. Suppl.
14 Response at 2.
15 II. Additiona1 Re1evant Conduct
16 Review of this Court's docket indicates that, since the
17 date of his referral to the Committee, Salomon has continued to
18 disregard this Court's briefing deadlines. In addition to the
19 incidents discussed in the Committee's report, Salomon has:
20 (a) on five occasions, failed to file a brief, causing this
21 Court to order him to show cause why the cases should not
22 be dismissed based on his defaults.l In each of those five
1 See Bzeih v. Mukasey, 08-0603-ag, order filed May 21,
2008; Barry v. Mukasey, 08-3772-ag, order filed Apr. 1, 2009;
Diallo v. Mukasey, 08-4950-ag, order filed Mar. 26, 2009; Fall v.
Mukasey, 08-5417-ag, order filed Apr. 2, 2009; Barry v. Mukasey,
08-5772-ag, order filed Apr. 1, 2009.
4
1 instances, however, Salomon timely responded to the order
2 to show cause and the case proceeded to full briefing and a
3 decision on the merits.
4
5 (b) in twelve cases, requested extensions of the briefing
6 deadlines only after the deadlines had passed,2 and
7
8 (c) in eight cases, filed his briefs after the applicable
9 deadlines had passed. 3
10
11 Many of those defaults occurred not only after Salomon had
12 received notice of the April 2008 referral order, but also after
13 the Committee's September 2008 hearing; three of the defaults
14 occurred after Salomon had submitted his October 2009 response
15 to the Committee's report.
2See Bassel v. Mukasey, 07-5426-ag, motion filed July 28,
2008 (requesting extension six weeks after briefing deadline);
Kakoro v. Mukasey, 08 0278 ag, motion filed May 21, 2008 (three
weeks after briefing deadline); Sacko v. Mukasey, OB-0281-ag,
motion filed May 19, 200B (two weeks); Barry v. Mukasey, OB-0325­
ag, motion filed May 19, 2008 (three weeks); Diallo v. Mukasey,
08-1113-ag, motion filed June 24, 200B (one day); Sarr v. Holder,
OB-1706-ag, motion filed Aug. 15, 200B (eleven days); Sall v.
Mukasey, OB 185B-ag, motion filed July 16, 200B (twelve days);
Barry v. Mukasey, OB-3772-ag, motion filed Feb. 4, 2009 (two
days); Fall v. Mukasey, OB-5417-ag, motion filed Feb. 13, 2009
(ten days); Diallo v. Mukasey, OB-5B06-ag, motion filed Mar. 9,
2009 (thirteen days); Abdourahamane v. Mukasey, OB-5941-ag,
motion filed Mar. 1B, 2009 (nine days); Kujabi v. Holder, 09­
2699-ag, motion filed Dec. 4, 2009 (one month) .
3See Bassel, 07-5426-ag, entry dated Sept. 3, 200B (brief
received two weeks late); Sy v. Mukasey, OB-0210-ag, entry dated
May 9, 200B (two weeks late); Niakhite v. Mukasey, OB-02BO-ag,
entry dated May 2, 200B (two days); Sarr, 08-1706-ag, entry dated
Sept. 2, 2008 (two weeks); Sall, OB-1B5B-ag, entry dated Aug. 6,
200B (two days); Dos-Reis v. Mukasey, 08-4999-ag, entry dated
Feb. 19, 2009 (three weeks); Haidara v. Holder, 09-2956-ag, entry
dated Feb. 16, 2010 (one day); Camara v. Holder, 10 1216-ag,
entry dated Sept. 14, 2010 (three days).
5
1 In addition to his history of defaults, t s Court recently
2 found, Hadira v. Holder, that omon had lIen "short of
3 his responsibilities to his client," where this Court's review
4 of the dispositive issue was foreclosed by Salomon's failure to
5 exhaust the dispositive issue before the Board of Immigration
6 Appeals, causing the denial of his client's claim this Court.
7 See Hadira, 09-2956-ag, order filed July 22, 2010, at 3 and 3
8 n.1.
9 Although significant miti ing factors may st, we find
10 the persistence of Salomon's misconduct throughout the pendency
11 of this disciplinary proceeding to be disturbing. At the very
12 least, his more recent defaults make it difficult to credit his
13 assurances that he has instituted remedial measures to avoid
14 future defaults.
15 III. Conclusions
16 We deny Salomon's request for disciplinary measures less
17 onerous than a suspens We find that a suspension is
18 warranted by the magnitude of Salomon's misconduct, the
19 likelihood that a number of his clients were udiced, and his
20 continued failure to abide by this Court's scheduling orders.
21 Furthermore, permitting Salomon to withdraw from cticing
22 before t s Court, without notice to the public of the
23 circumstances, would not be in the interests of justice. See In
24 re Jaffe, 585 F.3d 118, 125 (2d Cir. 2009) (finding removal from
6
1 this Court's bar to be appropriate sanction, and concluding
2 that "it would be misleading to suggest any way that [
3 attorney's] separation from this Court's bar was voluntary"}.
4 Although, in In re Yan Wang, we permitted an attorney to resign
5 from this Court's bar in lieu of the recommended imposition of a
6 six-month suspension, we found that "misunderstandings about the
7 nature of [the attorney's] withdrawal from this Court's bar
8 [were] unlikely since the order [permitting the resignation
9 was to] be made public." Yan Wang, 08-9039-am, 2010 WL 2812824,
10 at *3 (2d Cir. July 19, 2010). Yan Wang is inapposite for that
11 reason.
12 Additionally, privately granting leave to withdraw from
13 this Court's bar would not avoid the poss lity of reciprocal
14 action by other disc linary authorit s. As noted in Jaffe,
15 "[tlhe rules of all of New York's judicial departments permit
16 reciprocal discipline to be imposed on a New York attorney who
17 resigns from another jurisdiction's bar while under
18 investigation for poss professional misconduct in that other
19 jurisdiction." Jaffe, 585 F.3d at 124 tations omitted).
20 Moreover, "even if we were disinclined to inform the New York
21 disciplinary authorities of the action we take in this
22 proceeding, [Salomon himself would be] obligated to inform those
23 authorit s of this order under New York law." Id. (citations
24 omitted). The same principles are reflected in the rules of the
7
1 Executive Office for Immigration Review. See 8 C.F.R. §
2 1003.102 (e) ("A practitioner who falls within one of the
3 following categories shall be subject to disciplinary sanctions
4 the public interest if he or she: ... (e) Is subject to a
5 final order of disbarment or suspension, or has resigned while a
6 disciplinary investigation or proceeding is pending"); 8 C.F.R.
7 § 1003.103 (c) ("Duty of practitioner to noti EOIR of
8 conviction or discipline. Any practitioner ... who has been
9 disbarred or suspended by, or while a disciplinary investigation
10 or proceeding is pending has resigned from, ... any Federal
11 court, must notify the EOIR disciplinary counsel any such
12 conviction or disciplinary action within 30 days of the issuance
13 of the initial order, even if an appeal of the conviction or
14 discipline is pending.").
15 Upon due consideration of the Committee's report, the
16 underlying record, and Salomon's submissions, it is hereby
17 ORDERED that Salomon is PUBLICLY REPRIMANDED and SUSPENDED from
18 practice before this Court for a period of three months, based
19 on the misconduct described in the Committee's report. It is
20 further ORDERED as follows:
21 (a) The suspension period will commence twenty-eight
22 days from the filing of this order. Salomon may Ie
23 any briefs that currently have filing deadlines
24 falling within the next twenty-eight days, and he may
25 see through to completion any case in this Court in
26 which his brief has been filed by the end of that
27 twenty-eight day period. With respect to all of his
28 other cases in this Court, Salomon must, within
29 twenty-eight days, (i) inform his ients that they
8
1 must obtain new counselor proceed pro se, (ii) turn
2 over all client files and materials to those clients,
3 (iii) cooperate in all other respects with his
4 clients' efforts to prosecute their cases, and (iv)
5 move to withdraw.
6 (b) Salomon must disclose this order to all clients in
7 cases currently pending in this Court and to all
8 courts and bars of which he currently a member, and
9 as required by any bar or court rule or order.
10 Salomon also must, within thirty-five days of the
11 filing of this order, file an affidavit with this
12 Court confirming that he has complied with the
13 requirements set forth in paragraphs (a) and (b).
14
15 (c) Salomon must complete, within six months of the
16 filing date of this order, six hours of CLE on law
17 off management, which must be taken in addition to,
18 and not in fulfilment of, his regular CLE requirements.
19 Salomon must submit information about proposed CLE
20 courses directly to the Committee's secretary, who will
21 inform him whether the Committee agrees that the
22 proposed courses satisfy his obligation. Salomon must
23 certify his completion of the required CLE courses by
24 sworn statement filed with both this panel and the
25 Committee's secretary within seven days after the end of
26 the six-month period. The Committee may modify these
27 deadlines, either on motion or sua sponte.
28
29 (d) Salomon must comply with the reporting requirements
30 described on page 8 of the Committee's report.
31
32 The text of this panel's April 2008 order and the
33 Committee's report are appended to, and deemed part of, the
34 present order for purposes of disclosure of the order by Salomon
35 and the Clerk of Court. The Clerk of Court is directed to
36 release this order to the publ by posting it on this Court's
37 web site and providing copies to members of the public in the
38 same manner as all other unpublished decisions of this Court,
39 and to serve a copy on Salomon, this Court's Committee on
40 Admissions and Grievances, the attorney disciplinary committee
9
1 for the New York State Appellate Division, First Department, and
2
all other courts and jurisdictions to which this Court
3
distributes disciplinary decisions in the ordinary course.
4
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk
~ .Q.N.~ ~r r. ..
I' ~..
*
u '-t""­
By: Michael Zachary
Counsel to the Grievance Panel
APPENDIX 1
Text of April 2008 order
For the reasons that follow, Ronald Salomon is referred to
this Court's Committee on Admissions and Grievances for
investigation of the matters described below and preparation of
a report on whether he should be subject to disciplinary or
other corrective measures. See Second Circuit Local Rule 46(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 2005, this Court has dismissed 125 of the
approximately 190 petitions for review for which Salomon was
counsel of record for the petitioners, based on the petitioners'
failure to comply with this Court's scheduling orders. See
Second Circuit cases docketed under 02-4150, 02-4266, 02-4514,
02-4554, 02-4618, 02-4699, 02-4946, 02-4918, 03-4055, 03-4053,
03-40157, 03-40184, 03-40431, 03-40438, 03-40536, 03-40931, 03­
40997, 03-40971, 03-41179, 03-41245, 04-0066, 04-0579, 04-0656,
04-0657, 04-0659, 04-1299, 04-1302, 04-1866, 04-1916, 04-2326,
04-2327, 04-2331, 04-2334, 04-2336, 04-2587, 04-2953, 04-3066,
04-3093, 04-3094, 04-3095, 04-3341, 04-3345, 04-3681, 04-3715,
04-3912, 04-4055, 04-4178, 04-4323, 04-4738, 04-4739, 04-4799,
04-4902, 04-5107, 04-5279, 04-5344, 04-5470, 04-5532, 04-5535,
04-5796, 04-5797, 04-5926, 04-5945, 04-5947, 04-6138, 04-6203,
04-6345, 04-6549, 04-6550, 05-0101, 05-0103, 05-0657, 05-0851,
10
05-0858, 05-0860, 05-1045, 05-1857, 05-1939, 05-2348, 05-2670,
05-2859, 05-3218, 05-4125, 05-4228, 05-4516, 05-4983, 05-5111,
05-5711, 05-5791, 05-5832, 05-5918, 05-5932, 05-6070, 05-6331,
05-6573, 05-6576, 05-6715, 05-6723, 05-6828, 06-0040, 06-0431,
06-0774, 06-0957, 06-1382, 06-1386, 06-1513, 06-2135, 06-2202,
06-2885, 06-2980, 06-3154, 06-3156, 06-4006, 06-5208, 06-5400,
06-5503, 06-5539, 06-5559, 06-5584, 06-5677, 06-5760, 07-1257,
07-1281, 07-1542, 07-1871, and 07-2876. In a recent case, for
example, this Court granted Salomon's motion to reinstate an
appeal that had been dismissed based on his default, but warned
him that his "cavalier treatment" of the cases must cease, that
the brief had to be filed by January 18, 2008, and that no
further extension requests would be entertained. See Sylla v.
Gonzales, No. 07-1281-ag, order filed Dec. 3, 2007. Salomon
failed to file the brief, resulting in dismissal of the appeal
in February 2008. Id., order filed Feb. 20, 2008. This Court
also has dismissed one additional petition for review for which
Salomon was counsel of record for the petitioner, based on the
petitioner's failure to pay a filing fee. See Second Circuit
case docketed under 06-2531. This Court's records for the cited
cases do not indicate that, prior to the respective deadlines
for filing of the briefs or payment of the filing fee, Salomon
requested an extension of time to comply, a stay of proceedings,
leave to withdraw as counsel, or withdrawal of the appeal.
Moreover, in only four cases has Solomon corresponded with the
Court regarding the appeal after his default. See Second
Circuit cases docketed under 03-41245, 04-2336, 04-3341, and 07­
1281. In three of the cases, Salomon moved to reinstate the
appeals. See Second Circuit cases docketed under 03-41245, 04­
2336, and 04-3341. In those cases, the motions to reinstate
were filed between eight months and almost two years after the
appeals were dismissed.
Upon due consideration of the matters described above, it
is hereby ORDERED that Ronald Salomon 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 Zachary
Supervisory Staff Attorney
Counsel to the Grievance Panel
11
APPENDIX 2
August 2009 Report of the Committee
on Admissions and Grievances
REPORT & RECOMMENDATION
Re: In re Ronald S. Salomon, # 08-9043-am
I. Introd uction
By Order dated April 22, 2008, the United States Court of Appeals for the Second Circuit
("the Court") referred Ronald S. Salomon to this Committee, for investigation of his conduct
before the Court including, as described in the referral order, his frequent defaults on
scheduling orders and preparation of a report on whether he should be subject to disciplinary or
other corrective measures.
The Committee recommends that Salomoh be suspended for a period of three months,
that he be required to complete six hours of CLE in law office management, and that he be
required to submit biannual status 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 Salomon.
II. This Disciplinary Proceeding
On May 5, 2008, this Committee issued an Order to Show Cause regarding Salomon's
conduct as alleged in the Court's referral orders, and giving notice of a hearing. After requesting
an adjournment on June 3, 2008, Salomon submitted a written response on his own behalf on
July 9,2008. A hearing was held on September 8, 2008, conducted by a sub-committee
consisting of Mary Jo White, Loretta E. Lynch, and the Hon. Howard A. Levine. Salomon
appeared pro se, and presented no witnesses. Salomon submitted a post-hearing response on
September 25,2008, and, at the Committee's request, Salomon submitted a further response on
March 22, 2009.
III. Factual Background
The following facts are taken from court records and from Salomon's written submissions
and testimony. Although Salomon proved unable to testify in detail as to his current caseload or
the facts underlying the Court's referral order, the Committee found his testimony generally
credible.
A. Salomon's Conduct Prior to the Court's Referral Order
Salomon was admitted to the bar of the State of New York in 1991. He is a sole
practitioner. His practice consists predominantly of immigration work, mostly asylum cases
involving applicants from West Africa. Between 2005· and 2008, Salomon defaulted in a very
large number of petitions for review. The Court's referral order, and the Committee's
independent review, shows that approximately 125 out of approximately 190 petitions for review
filed by Salomon during that period were dismissed for default. One additional case was
dismissed for failure to pay a filing fee. Salomon does not appear to have moved in any of these
cases, prior to their dismissal, for an extension of time, a stay of proceedings, or leave to
withdraw. Prior to the Court's referral order, Salomon had moved for reinstatement in only four
of these dismissed cases.
Toward the end of this period, Salomon received an express warning from the Court
regarding his defaults. In an order dated December 3, 2007, granting Salomon's motion to
reinstate a dismissed petition, Sylla v. Gonzales, 07-1281, the Court warned Salomon that his
"cavalier treatment" of his cases must cease. Despite this warning, Salomon failed to comply
with the extended briefing schedule in Sylla, and the petition was dismissed. Salomon also
defaulted on other cases following the Court's warning, see Barrie v. Gonzales, 07-2876.
In three of those cases, Salomon moved to reinstate on his own initiative. See Diallo v.
Ashcroft, 03-41425, Sourabie v. Ashcroft, 04-2336, and Diallo v. Ashcroft, 04-3341. The motion
to reinstate in Sourabie was filed in July 2006, and denied in August 2006. The motions to
reinstate the two Diallo cases were filed in June and July 2007, and denied in July and October,
respectively. These motions were filed between nine months (Diallo, 04-2336) and nearly two
years (Diallo, 04-3341, Sourabie) after the appeals were dismissed.
In a fourth case, Sylla v. Gonzales, 07-1281, after Salomon defaulted on the briefing
schedule, the Court issued an order to show cause, dated October 17,2007, following which the
Court granted Salomon's request for reinstatement, but warned him that no further extensions
would be granted. Salomon defaulted on the new briefing schedule, and the appeal was
dismissed in February 2008.
Salomon has been the subject of one prior instance of discipline. On March 7, 2007,
Salomon was admonished by the Disciplinary Committee of the New York Supreme Court
-2­
Appellate Division, First Department, for neglect of three asylum petitions. In one case,
Salomon did not file a Notice of Appeal because his client had failed to pay the balance of
Salomon's fee. In another, Salomon had failed to file the Notice of Appeal because his office's
filing system confused the identities of the complainant and another client. Finally, in the third,
Salomon claimed that he failed to file the Notice of Appeal because he was unable to locate the
client, but he could not produce documentary evidence of attempts to locate the client, who
claimed that he had been in regular contact with Salomon's office. The complaints in these
matters were filed in 2004 and 2005.
In his response to the Court's referral order, Salomon presented evidence of pro bono
activity taken on behalf of the West African community from which many of his clients are
drawn - specifically, the organization of a November 2007 demonstration responding to a
decision of the Board of Immigration Appeals regarding female genital mutilation. In addition,
Salomon submitted numerous letters of thanks from his clients.
B. Salomon's Recent Conduct
At his September 2008 hearing, Salomon testified in mitigation of his past conduct that
he had recently taken on new staff to assist with case management, and had begun to work with
an outside attorney to prepare briefs. The Committee has conducted a review of Salomon's
current caseload. Based on its review, the Committee finds some significant improvement in
Salomon's compliance with scheduling orders,but nevertheless is troubled by indications of
ongoing problems with Salomon's practice.
It appears that Salomon has not had any case dismissed for default in any case since early
2008. However, on at least three occasions within the past year, the Court has been forced to ,
issue an Order to Show Cause why a matter for which Salomon was attorney of record should not
be dismissed for Salomon's failure to comply with a briefing schedule. See Akter v. Mukasey, 08­
0279; Elyzabeth v. Keisler, 07-4626; and Diallo v. Mukasey, 08-0199. Akter was subsequently
dismissed pursuant to stipulation, while in Elyzabeth and Diailo, Salomon was granted
permission to file a late brief.
At the Committee's request, Salomon submitted a letter explaining the circumstances of
these defaults. See Letter dated March 22, 2009. In the case of Akter, Salomon claims that he
had timely prepared a stipUlation of dismissal following an April 2008 CAMP conference, but
the stipulation was not filed with the Court until after the due date for Salomon" s brief passed,
and the Court had issued its August 18, 2008 Order to Show Cause. The Committee finds this
explanation credible, and supported by documents submitted by Salomon, which show that an
copy of the stipulation executed by both parties was faxed in May, 2008.
In the case of Elyzabeth and Diallo, Salomon claims that he "was not in receipt of the
briefing schedules." Letter dated March 22,2009. The Committee finds it exceedingly
improbable that the briefing schedules were not sent to Salomon's office; however, there is no
basis on this record to conclude that Salomon's claim is knowingly false. In light of Salomon's
-3­
past conduct and his hearing testimony, the Committee believes it is highly likely that Salomon
or his office overlooked or mislaid the briefmg schedules. I
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.
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 of the 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 ofjustice." In re Snyder, 472 U.S. 634,645
(1985). For "[mlore 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 of
Rabinowitz, 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 (1 st Cir. 1973). Such conduct is also sanctionable under the applicable professional
rules and standards. The American Bar Association's Standards for Imposing Lawyer Sanctions
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); 22 N.Y.C.R.R. §
1200.30(A)(3) (2008); see also N.Y. Rules of ProfI Conduct R. 1.3(b) (effective Apr. 1,2009)
1 The Committee notes, moreover, that Salomon's responses to the Court's Orders to Show Cause in those cases do
not advance the explanation offered to the Committee, but are the same boilerplate and conclusory motions for
extension of time for which he has been criticized by the Court in the past.
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(hereinafter "N.Y.R."). 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.
V. The Alleged Misconduct
At the hearing, Salomon acknowledged that he was "overwhelmed" by the volume of
immigration cases during the 2005-2006 period. He ascribed this primarily to the Court's
tightening of briefing schedules during that period:
I think: at one point the Courts were overwhelmed with thousands
and thousands of cases being filed and staff counsel were
overwhelmed. And at that point they put everything on the
calendar for briefing schedules. At one point I think: I received
around 20 or 30 briefing schedules for briefs that were due within a
week. ... I spoke with one of the staff counsel, Stanley Bass at that
time, and I said, I don't know how to get this thing done. He said,
Do the best you can .... I actually fell behind on a lot of the
briefing schedules and things were just snowballing.
Transcript of Sept. 8 Hearing ("Tr.") at 1O. Salomon further explained that many of his defaults
were a result of clients disappearing without payment. In such circumstances, he was unable to
proceed with the appeal; Salomon testified that "that is the reality of being [aJ sole practitioner
and taking responsibilities and trying to cover expenses and maintain a practice at the same
time." Tr. at 34. He was unable to describe any consistent method he had used to attempt to
locate missing clients. Similarly, Salomon was unable to describe any consistent process for
contacting clients to inform them of the dismissals of their cases.
Salomon was also unable to explain in detail why he had moved to reinstate in only four
cases. He claimed that he believed that it would be futile to move to reinstate, in light of the
Court's dismissal of his motions in Dial/a, Dial/a, and Saurabie; he was unable, however, to
explain why the Court's grant of reinstatement in Syl/a did not alter his practices. He testified
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that he had not taken any particular efforts to monitor dismissals for default and to move to
reinstate or take alternative steps to protect the rights of clients whose appeals had been
dismissed. However, he regularly moves to reopen his clients' cases (including those cases
dismissed for default) before the BIA, or pursues other relief from the agency, where there have
been changes in the law, changes in country conditions, or changes in the clients' family status.
He testified that he has moved to reopen before the BIA, or filed marriage petitions, in
approximately 57 of the dismissed cases cited in the Court's referral order.
Salomon also testified that his practice was affected by a series of medical problems,
which required him to have surgery and take leave from the office, in 2003, 2005 and 2006.
While the Committee does not question the genuineness of Salomon's medical problems, it finds
that they were at most a minor contributing factor to Salomon's defaults.
The evidence clearly shows that Salomon failed to comply with court scheduling orders,
and failed to act diligently in prosecuting his clients' cases. As set out above, Salomon defaulted
on more than 100 scheduling orders between 2005 and 2008. This conduct was not isolated, but
persisted over several years, and despite explicit warnings from the Court. The Committee finds
that Salomon's conduct was "unbecoming a member of the bar," Fed. R. App. P. 46(c), and
"inimical to the administration ofjustice," In re Snyder, 472 U.S. at 645, and that Salomon
neglected client matters in violation ofD.R. 6-101(A)(3).
Partly due to Salomon's inability to provide details on his cases during this period, it is
impossible to determine whether any client was actually prejudiced. It is clear, however, that
numerous clients were at least put at grave risk of prejudice. Salomon does not appear to have
taken organized or effective steps to protect the interests of those clients whose cases were
dismissed. Finally, even in the unlikely event that no client was in fact prejudiced, Salomon's
failure to comply with proper procedures for withdrawal or dismissal of appeals violated the
Court's scheduling orders and his obligation either to represent his clients or terminate the
representation, and disrupted the Court's proceedings and burdened the Court's staffwith
additional work. See Bennett v. Mukasey, 525 F.3d 222, 225 (2d Cir. 2008); D.R. 2-11 0(A)(2);
22 N.Y.C.R.R. § 1200.l5(A)(2) ("A lawyer shall not withdraw from employment [without]
complying with applicable laws and rules"); see also N. Y.R. 1.16(e).
In considering Salomon's relevant state of mind, see ABA Standards § 3.0(b), the
Committee finds Salomon's account ofthe personal circumstances underlying his defaults
generally credible. Salomon's neglect was inadvertent, the product of an "overwhelming"
caseload and inadequate office systems. However, when a lawyer consciously takes on a high­
volume practice such as Salomon's during this period, the risk of neglect due to overwork and
inadequate coverage is a foreseeable one, and it is the lawyer's responsibility to avoid it. It does
not appear that Salomon took adequate steps to protect his clients from the risks inherent in his
high-volume practice. Additionally, the Committee is troubled by Salomon's failure to respond
to his numerous defaults, or the Court's warning in Sylla, by taking active steps to protect the
interests of clients whose cases had been dismissed.
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There are both aggravating and mitigating factors here. The aggravating factors present
are: (1) Salomon's prior disciplinary record; (2) a pattern of negligence, involving multiple
instances of misconduct, over a period of several years; (3) the vulnerability of Salomon's
immigrant clients; (3) Salomon's substantial experience in the practice of law. ABA Standards §
9.22(a), (c), (d), (h), (i).
Salomon's misconduct is mitigated by his remorse, his pro bono activities, and his
cooperation with the Committee, ABA Standards § 9.32 (e), (g), (1), and to a limited extent by his
medical problems during 2003, 2005 and 2006, § 9.32(c). To some extent, Salomon's
misconduct is mitigated by the absence ofa selfish motive, § 9.32(b); however, as discussed
above, although Salomon may not have intended to neglect his clients, it was Salomon's decision
to greatly increase his caseload without making adequate provision to protect his clients from the
risks inherent in an over-stretched practice.
In light of Salomon's recent failure to abide by the Court's briefing schedules in
Elyzabeth v. Keisler, 07-4626, and Diallo v. Mukasey, 08-0199, the Committee does not believe
that Salomon's past conduct is significantly mitigated by recent improvements in his practice. 2
While there has clearly been an improvement over Salomon's extremely high default rate in
2005-2008, it does not appear that Salomon's problems in managing his practice are entirely
behind him. Though the Court allowed Salomon to file late briefs in Elyzabeth and Diallo, and
so neither client was actually prejudiced, Salomon's conduct posed a substantial risk of prejudice
to both, and suggests an ongoing (though reduced) risk that Salomon may fail to adequately
represent his clients.
Other than his numerous defaults, the Court's referral order alleged no further misconduct
on Salomon's part, and the Committee is not aware of any other potential misconduct.
VI. Appropriate Sanctions
Salomon's conduct warrants discipline. The evidence in this proceeding clearly shows a
pattern of neglect of client matters, primarily through persistent disregard of briefing schedules.
This conduct was particularly severe during the period of2005 to early 2008, but shows signs of
continuing even after the Court's April 2008 Referral Order. The aggravating factors are
significant, and mitigation limited.
Under the circumstances, the Committee believes that a brief period of suspension is
required to reflect the seriousness of Salomon's past misconduct, and to protect the interests of
potential clients. In light of the nature of Salomon's misconduct, and to ensure that his
suspension is an occasion to continue his efforts to improve his management of his practice, the
Committee recommends that Salomon be required to attend suitable a suitable CLE program on
law office management, and that he be required to provide the Committee with ongoing status
2 As noted above, the Committee accepts Salomon's explanation of the missed briefing date in Akter v.
Mukasey. 08-0279. To the extent that Salomon was responsible for any failure to timely file the stipulation with the
Court, the Committee regards that failure as minor.
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reports documenting the functioning of his practice.
VII. Recommendation
Salomon should be suspended for a period of three months. In addition, he should be
required, during the period of his suspension, to complete no fewer than six hours of CLE in law
office management, from a CLE provider accredited by the bar of New York, in addition to the
required hours of CLE. Finally, he 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 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 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 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 (10) days of the end of
that reporting period. The first reporting period shall commence 10 days after the Committee's
recommendation is mailed to Salomon 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 reporting period commencing at the end of the prior reporting and ending six months later. A
total of four reports shall be prepared and mailed to the Committee Secretary.
Respectfully Submitted,
Jl~ ~ '" i.-v t.X, Ihr­
Member of the Committee
August 5,2009
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