In re Roy R. Kulcsar , 417 F. App'x 15 ( 2011 )

07-9020-am
In re Roy R. Kulcsar
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 I 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 15 th day of February, two thousand eleven.
PRESENT:
Jose A. Cabranes,
Robert D. Sack,
Richard C. Wesley,
Circuit Judges.
07-9020-am
In re Roy R.Kulcsar,
Attorney. ORDER OF
GRIEVANCE PANEL
For Roy R. Kulcsar: Jeffrey C. Hoffman, 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, as supplemented
4 below, and Roy R. Kulcsar is PUBLICLY REPRIMANDED, SUSPENDED from
5 practice before this Court for a period of six months, and
1 thereafter BARRED for an additional one-year period from
2 representing 1 igants in this Court pursuant to the Criminal
3 Justice Act ("CJA"), based on both the misconduct described in the
4 Committee's report and the additional misconduct discussed below.
5 I. Summary of Proceedings
6 By orders filed in May 2007 and March 2008, this Court
7 referred Kulcsar to the Committee for investigation of matters
8 described in those orders and preparation of a report on whether
9 he should be subject to disciplinary or other corrective measures.
10 During the Committee's proceedings, Kulcsar had the opportunity to
11 address the matters discussed in the Court's referral order and to
12 testi under oath at a hearing held in November 2008. Kulcsar
13 was represented during the Committee's proceedings by Jeffrey C.
14 Hoffman, Esq. Presiding over the hearing were Committee members
15 Paul C. Curnin, Esq., Eileen M. Blackwood, Esq., and Terrence M.
16 Connors, Esq. In March 2010, the Committee filed with the Court
17 the record of the Committee's proceedings and its report and
18 recommendations. Thereafter, the Court provided Kulcsar with a
19 copy of the Committee's report, and Kulcsar responded.
20 In its report, the Committee concluded that there was clear
21 and convincing evidence that Kulcsar had engaged conduct
22 warranting the imposition of discipline. See Report at 14-16.
23 Specifically, the Committee found that Kulcsar had: (1) led to
24 comply with this Court's briefing deadlines, resulting in the
2
1 dismissal of five criminal appeals;l (2) failed to respond to this
2 Court's communications on numerous occasions; (3) repeatedly
3 sought extensions of time violation of his duty of diligence,
4 and still filed untimely briefs; and (4) violated this Court's CJA
5 rules requiring counsel to continue his representation until
6 granted ve to withdraw and prohibi ng CJA counsel from
7 delegating tasks to non-employees. Id. at 14-15. After noting
8 various aggravating and mit ing factors, id. at 15-16, the
9 Commi ttee recommended that Kulcsar be publicly reprimanded and
10 directed to provide the Court with a telephone number and mailing
11 address by which he can be readily contacted and to submit
12 periodic reports to the Committee, id. at 16-17.
13 In his response to the Committee's report, Kulcsar accepted
14 the Committee's recommendations, apologized for his misconduct,
15 and stated that he has taken correct measures to ilitate
16 timely communication with Court personnel. Response at 1-2.
On page 14 of the report, the Committee identified United
1
States v. Narvaez (Gamboa), 03-1786-cr, as a sixth case that was
dismissed as a result of Kulcsar's default. See Report at 14.
However, as accurately reflected elsewhere in the report, id. at
2, 9-10, Kulcsar's misconduct in Gamboa did not result in the
dismissal of the appeal. Instead, a Kulcsar defaulted on
numerous Court deadlines and failed to respond to a number of
messages left by Court employees, this Court denied Kulcsar's
untimely Anders motion for failure to give his ient proper
notice of the motion, relieved him as counsel, denied him CJA
fees, and appointed new counsel. See Gamboa, 03-1786-cr, order
filed Aug. 15, 2006. Kulcsar was CJA counsel in at least three
other appeals at issue in this proceeding. See cases docketed
under 03-1751, 01-1344, 96-1514.
3
1 II. Additional Relevant Conduct
2 A. Conduct in this Court
3 During the Committee's proceedings, Kulcsar repeatedly
4 assured the Committee that he had altered his practice to ensure
5 that the conduct at issue would not recur. Letter from Kulcsar to
6 Committee, dated June 30, 2008 (Record at Tab 1, item 9) at 3-4,
7 13; Nov. 18, 2008 transcript (Record at Tab 2) at 135-38; Letter
8 from Kulcsar's counsel to Committee, dated 4, 2009 (Record at
9 Tab 3, item 5) at 1-2. However, review of this Court's docket
10 indicates that, since the date of his referral to the Committee,
11 additional defaults by Kulcsar have resu in the dismissal of
12 two more criminal appeals, which have not been reinstated, and his
13 continued inattention to this Court's deadl s, rules, and
14 communications have delayed other appeals:
15 1. In Uni ted Sta tes v. Rios (Bautista), 08 223-cr (L) ,
16 Kulcsar's client appealed from an order denying his 18 U.S.C. §
17 3582(c) (2) motion seeking correction of his sentence of 240 months
18 imprisonment. See Bautista, 08-2223-cr, notice of appeal and
19 dist. court docket sheet filed Apr. 30, 2008. After this Court
20 granted Kulcsar's late motion for an extension of the briefing
21 deadline, see id., order filed Nov. 14, 2008, he nonetheless
22 fai to file the brief. Over two months later, Kulcsar was
23 ordered to show cause why the appeal should not be dismissed due
24 to his failure to file the brief. See id., order filed Jan. 26,
4
1 2009. Kulcsar did not respond, and the appeal was dismis ed
2 on his default. See id., order filed Feb. 2S, 2009. Kulcsar has
3 not moved for reinstatement.
4 2. In United States v. Ramirez, 09-1S55-cr, Kulcsar's
S appealed from a judgment sentencing him to, inter alia, 70 months
6 imprisonment. See Ramirez, 09-1555-cr, notice of appeal and st.
7 court docket sheet filed Apr. 15, 2009. In July 2009, Kulcsar was
8 granted an extension of time to file a motion to in forma
9 pauperis ("IFPII), see id., order filed July 8, 2009, a r he had
10 informed this Court's motions staff attorney "has the
11 financial affidavit and will send it to the Court ASAP, II id"
12 entry dated June 25, 2009. However, Kulcsar never led the IFP
13 motion or paid the filing fee, causing the appeal to dismissed.
14 See id" order filed Sept. 2, 2009. Kulcsar has not moved for
lS reinstatement.
16 We further note that, in July 2009, Kulcsar's client in
17 Ramirez sent a pro se letter to the Clerk of Court, inquiring as
18 to the status of the appeal and whether llate counsel had been
19 appointed, suggesting that Kulcsar may not have consulted with his
20 client up to that point. See id., pro se r docketed July 24,
21 2009. That letter was forwarded to Kulcsar, ida (entry stating,
22 "pro se letter sent to attorney"), but the docket reflects no
23 further activity until the default smiss over one month later.
24 3. In United States v. Santana, 08 871-cr, Kulcsar's client
5
1 appealed from a judgment sentencing him to, inter alia, 121 months
2 imprisonment. See Santana, 08-3871-cr, notice of appeal and dist.
3 court docket sheet led Aug. 6, 2008. After having had one
4 untimely extension motion granted, see ., order filed Nov. 13,
5 2008, Kulcsar moved another extension of time and to be
6 ieved as counsel, see id., motion fi Jan. 8, 2009. This
7 Court denied the motion to be relieved, without prej udice to
8 renewal upon a showing of compliance with Local Rule 4 (b) and
9 s ce of the motion on his client. Id., order filed Feb. 3,
10 2009. Over the course the following year, the Clerk's
11 contacted, or attempted to contact, Kulcsar at least six times.
12 Id., entries dated Apr. 8, 2009, June 16, 2009 (suggesting two
13 attempts), Aug. 13, 2009, Aug. 31, 2009, . 11, 2010, March 2,
14 2010. On at least three occasions, the Clerk's Office was unable
15 to leave Kulcsar ames because his voice mailbox was 1.
16 Id., entries dated June 16, 2009, Feb. 11, 2010, March 2, 2010.
17 In March 2010, this Court warned Kulcsar that he would be re rred
18 to the Grievance Panel unless he filed his brief. Id.,19 fil March 3, 2010. Kulcsar then moved to be relieved, which was
20 granted. Id., order fi Apr. 14, 2010.
21 4. In United States v. Olaiya, 10-565-cr, Kulcsar's client
22 appealed from a judgment sentencing him to, inter alia, 87 months
23 imprisonment. See Ola ,10-565-cr, notice of appeal and dist.
24 court docket sheet I Feb. 18, 2010. Kulcsar was warned that
6
1 appeal would be dismissed if he failed to either pay
2 ling or move for IFP status by June 4, 2010. See .,
3 May 21, 2010. According to Kulcsar, on June 4, 2010,
4 hand-del red to the Court his client's financial affidavit and
5 motions to proceed IFP, for an extension of time, to be relieved
6 as counsel, and for appointment of CJA counsel, but was not
7 informed until three weeks later that the motions had
8 ected because they had not been filed electronically. See id.,9 motion fi Aug. 19, 2010, at `` 3-5 and exh. A. By order filed
10 June 28, 2010, the appeal was dismissed based on Kulcsar's failure
11 to e r pay the filing fee or file an IFP motion. See id.,12 order filed June 28, 2010. Kulcsar's subsequent motion for
13 re tatement was granted, id., order filed Aug. 25, 2010, as was
14 his motion to be relieved as counsel, id., order filed Dec. 7,
15 2010.
16 Kulcsar did not explain why, prior to the submission of his
17 June 4, 2010 motions in Olaiya, he was not familiar with this
18 Court's 1 rule requiring electronic filing, which had become
19 e ive January I, 2010, see Second Cir. Local Rule 25.1, or why
20 he took risk of waiting until the final day to file those
21 mot
22 It is possible that Kulcsar's conduct in one or more of the
23 preceding four cases resulted from his client's decision not to
24 proceed wi the appeal, or Kulcsar's decision not to proceed as
7
1 counsel to the appellant. However, an appellant's counsel of
2 record who determines either that the appeal will not proceed for
3 any reason, or that counsel will no longer represent the
4 appellant, is required to inform the Court of the situation and
5 seek to either withdraw the appeal or withdraw as counsel.
6 Counsel of record may not end an appeal by allowing its dismissal
7 for k of prosecution or end the representation of a client
8 without taking affirmative action.
9 B. Proceedings Before the Southern District of New York
10 In September 2010, the Committee on evances of the United
11 States Dist ct Court for the Southern· District of New York
12 suspended Kulcsar from practice before that court, on an interim
13 basis, based on his failure to cooperate in a pending
14 investigation of his conduct in that court. See In re Kulcsar, M-
15 2-238 (S. D.N. Y., order dated Sept. 24, 2010). The reasons
16 that investigation are not known to this Court. Thereafter,
17 pursuant to this Court's reciprocal discipline rule, Second Cir.
18 Local Rule 46.2 (c) (2), this Court reciprocally suspended Kulcsar
19 "upon such terms and conditions as set forth inn the Southern
20 strict's interim suspension order. See In re Kulcsar, 07-9020-
21 am, order filed Nov. 16, 2010. Although this Court's reciprocal
22 suspension was not to take effect for 28 days from the filing of
23 this Court's order, to allow Kulcsar time to challenge it, Kulcsar
24 did not move for the order to be stayed, modified or vacated. We
8
1 are informed that, as February 15, 2011, the Southern
2 District's interim suspension order remains in effect.
3 Since we are not aware the Southern District's reasons for
4 investigating Kulcsar, the conduct or allegations underlying that
5 investigation are not now before this Court and are not a basis
6 for the discipline we now impose. However, Kulcsar's failure to
7 cooperate with the Southern Dist ct's disciplinary investigation
8 is relevant to our present decision, since he has not denied that
9 finding in response to this Court's reciprocal discipline order
10 and the finding bears on whether Kulcsar will be able to comply in
11 the future with this Court's rules and orders.
12 III. Conclusions
13 We conclude that the Committee's factual findings, as
14 supplemented by this decision, are fully supported by the record,
15 and we agree that Kulcsar has violated, on numerous occasions, his
16 professional duty of diligence. Al though we acknowledge the
17 Committee's finding that Kulcsar's lack of a disciplinary history
18 constituted a mitigating factor, see Report at 16, that finding is
19 now partly undermined by the Southern District's finding that
20 Kulcsar has failed to cooperate with its disciplinary proceeding,
21 which is of significant concern to us.
22 Addi tionally, we agree with the Committee that Kulcsar's
23 pattern of misconduct, and failure to cure his communications
24 problems even after becoming aware of them, are significant
9
1 aggravating factors. See id. at 15. Unfortunately, the situation
2 is now worse, since, even after becoming aware of the present
3 disciplinary proceedings, Kulcsar has continued to violate this
4 Court's deadlines and orders, and has iled to resolve his long-
5 standing communications issue. See In re Miller, 68 A.D.2d 544,
6 547-48 (1st Dep't 1979) (liThe fact that [the charged attorney]
7 committed the present conversion knowing that he was under a
8 charge of professional misconduct for the previous offense adds to
9 the gravity of the instant infraction. ") . Moreover, his continued
10 misconduct has not merely caused inconvenience to the Court - it
11 has caused several criminal appeals, in which serious liberty
12 interests were at stake, to be dismissed or unduly delayed. Even
13 if we assume that none of Kulcsar's clients were prejudiced by his
14 misconduct, the continuation of the misconduct discussed by the
15 Committee is entirely unacceptable. We therefore conclude that
16 the entirety of Kulcsar's misconduct, including his misconduct in
17 this Court after having became aware of the issues addressed in
18 these proceedings, warrants a sanction more substantial than a
19 public reprimand. See In re Flannery, 186 F.3d 143, 145-49 (2d
20 Cir. 1999).
21 Upon due consideration of the Committee's report, the
22 underlying record, Kulcsar's submissions, and the additional
23 appellate proceedings scribed above, it is hereby ORDERED that
24 Kulcsar is both PUBLICLY REPRIMANDED and SUSPENDED from practice
10
1 before this Court for a period of six months. Additionally, upon
2 expiration of that six-month suspension, Kulcsar is thereafter
3 barred for an additional one-year period from representing
4 1 igants this Court pursuant to the Criminal Justice Act. It
5 is further ORDERED as follows:
6 (a) The six-month suspension period we now impose will
7 (i) commence only upon expiration of the reciprocal
8 suspension period imposed in this Court's November 16,
9 2010 order, and (ii) terminate only upon proof,
10 submitted by Kulcsar to counsel for this panel, that the
11 11 six-month suspension pe od has been served
12 consecutive to the termination of the interim suspension
13 imposed by the Southern District of New York. The
14 additional one-year bar on CJA representation will
15 commence immediately after the six-month suspension has
16 expired. We authorize counsel to this panel to certify
17 Kulcsar's compliance with the requirements of this
18 paragraph, without the need for further order of this
19 panel.
20 (b) The one-year bar on CJA representation in this Court
21 applies regardless of the court making the CJA
22 appointment. If Kulcsar is mistakenly continued as CJA
23 counsel in a future case in this Court during that
24 period, he must promptly notify this Court of the need
25 for substitution.
26
27 (c) Kulcsar must inform this panel of the determination
28 reached by the Southern District of New York in its
29 disciplinary proceedings, within twenty-eight days of
30 the ling of the Southern District's final order.
31
32 (d) Kulcsar must disclose this order to all clients in
33 cases currently pending in this Court and to all courts
34 and bars of which he is currently a member, and as
35 required by any bar or court rule or order. Kulcsar
36 also must, within twenty-one days of the filing of this
37 order, file an affidavit with this Court confirming that
38 he has complied with the requirements set forth in this
39 paragraph.
40
41 (e) Kulcsar must complete, within six months of the
42 filing date of this order, six hours of Continuing
11
1 Legal Education (UCLE") on law office management,
2 which must be taken in addition to, and not in
3 fulfilment of, his regular CLE requirements. Kulcsar
4 must submit information about proposed CLE courses
5 directly to the Committee's secretary, who will inform
6 him whether the Committee agrees that the proposed
7 courses satisfy his obligation. Kulcsar must certify
8 his completion of the required CLE courses by sworn
9 statement filed with both this panel and the
10 Committee's secretary within seven days a er the end
11 of the six-month period. The Committee may modify
12 these deadlines, either on motion or sua sponte.
13
14 (f) Kulcsar must ensure that, during the pendency of
15 any case in which he represents a party in this Court,
16 the Court possesses a current telephone number for him
17 which a person or recording machine will answer, and
18 that his mail is timely brought to his attention.
19
20 (g) Kulcsar must comply with the reporting
21 requirements described on pages 16 and 17 the
22 Committee's report.
23 The text of this panel's May 2007 and March 2008 orders and
24 the Committee's report are appended to, and deemed part , the
25 present order for purposes of disclosure of this order by
26 Kulcsar and the Clerk of Court. The Clerk of Court is directed
27 to ease this order to the public by posting on this
28 Court's web site and providing copies to members of the public
29 in the same manner as all other unpublished decisions of this
30 Court, and to serve a copy on Kulcsar, this Court's Committee on
31 Admissions and Grievances, the attorney disciplinary committees
32 for the New York State Appellate Division, First Department, the
33 United States District Court for the Southern District of New
34 York, and all other courts and jurisdictions to which this Court
12
1 distributes sciplinary decisions in the ordinary course. 2
FOR THE COURT:
Catherine O'Hagan Wol , Clerk
By: Michael Zachary
Counsel to the Grievance Panel
APPENDIX 1
Text of May 2007 order
For the reasons that follow, Roy R. Kulcsar is re to
this Court's Committee on Admissions and Grievances
investigation of his conduct before this Court and preparation
of a report on whether he should be subject to dis inary or
other correct measures. See Second Circuit Local Rule 46(h).
The description of Kulcsar's conduct appearing below is not
intended as a complete overview of all the conduct and
proceedings relevant to the Committee's proceedings. The
Committee is free, in the first instance, to fully investigate
all of Kulcsar's conduct before the Court and reach sown
conclusions on whether that conduct warrants any disciplinary or
other correct measures.
The records s Court suggest that, in a number of
appeals, Kulcsar s led to abide by this Court's rules and
orders, has led to cooperate with this Court's personnel in
the processing of s in which he was an attorney of record,
2 Counsel to this panel is authorized to provide, upon
request, documents from the record of this proceeding to other
attorney disciplinary authorities. While we request that all
such documents rema confidential to the extent circumstances
allow, we leave to discretion of those disciplinary
authorities the sion of whether specific documents, or
portions of documents, must be made available to any person or
the public.
13
and may have failed to protect the interests of his ients.
First, Kulcsar's inaction in four criminal appeals, in
which he was counsel of record for the appellants, caused the
dismissal of those appeals on default grounds. In United States
v. Ramirez, No. 06-5583-cr, Kulcsar led the notice of appeal
but failed to ther file an appellate brief, which was due by
February 7, 2007, or request to be relieved as counsel. On
February 13, 2007, the Court received a pro letter from the
appellant himself, asking for the status of the case and for
appointment of new counsel since, he states, Kulcsar had been
retained only for the district court proceedings. The docket
sheet reflects that the letter was forwarded to Kulcsar. The
next docket sheet entry, on April 23, 2007, notes the entry of
an order dismissing the appeal due to the appellant's failure to
Ie a br f. In a separate letter written at the direction of
Chief Judge Jacobs, also entered on April 23, 2007, Kulcsar was
reminded of his obligation under Second Circuit Local Rule
4(b) (a) to continue representing the appellant until relieved by
the Court, and was directed to file, within 20 days, either a
brief and appendix or a stipulation withdrawing the appeal
signed by his client, himself, and opposing counsel. The letter
also required him to, inter alia, explain his conduct in the
appeal. As of May 23, 2007, Kulcsar has not responded to this
Court's April 23, 2007 letter, though the 20-day deadline
expired on May 14, 2007.
Simi rly, Kulcsar also defaulted on the briefing schedules
in United States v. Vinasco (Montoya), No. 03-1064-cr, United
States v. Cirineo (Lama), Nos. 02-1110-cr (L), 02-1248-cr (Con),
and United States v. Williams, No. 97-1043-cr, resulting in the
dismissal of his clients' appeals. In Vinasco (Montoya) and
Cirineo (Lama), the default dismissals were entered only after
Court employees telephoned Kulcsar about the defaults and the
need to request an extension of time to fi the briefs. There
is no suggestion that Kulcsar responded in any way. In a recent
criminal appeal, United States v. De La Cruz, No. 06-5878-cr,
Kulcsar failed to file a brief by the due date provided in the
scheduling order, February 28, 2007. Although the appeal has
not yet been dismissed on default, the docket sheet reflects
that the case manager attempted, in March, April and May, to
notify Kulcsar about the overdue brief, but those telephone
calls were neither answered by a person nor transferred to an
automated answering system.
Kulcsar's conduct in United States v. Narvaez (Gamboa), No.
03-1786-cr, in which he was the attorney of record for Henry
Gamboa, is also noteworthy. In that appeal, this Court issued a
14
scheduling order in January 2004, but Kulcsar failed to file his
bri by the provided deadline, or by the new deadlines
established in two subsequent orders granting him extensions of
time. In Kulcsar exceeded each of the deadlines without,
prior to each deadline, of ring an explanation or requesting
additional time; instead, after each of those defaults, from May
2004 to January 2005, the Clerk's Office Ie messages for
Kulcsar regarding his overdue br f. See docket entries for
5/19/04, 10/19/04, 1/27/05. In each instance, Kulcsar would
eventually file a motion for an extension of time. The last
order granting an extension noted that Kulcsar had had "more
than enough time to file a brief in this long-pending appeal"
and warned him that "[n]o further extensions will be granted."
Id., Order filed Nov. 3, 2004 (Winter, J.). Kulcsar also iled
to abide by that order; instead, four months after the deadline
established in the November 2004 order, he file a brief and
motion pursuant to Anders v. California, 386 U.S. 738 (1967).
Kulcsar's motion for leave to file the Anders brief and motion
late was granted. Id. at entries for 3/9/05 and 3/29/05.
However, in September 2005, Kulcsar informed the Clerk's
fice that he intended to Ie, within one week, a motion to
withdraw the Anders motion. Id., entry at 9/22/05. In October
and November 2005, the Clerk's Office left messages Kulcsar
inquiring about the ant ipated motion to withdraw the Anders
motion. Id., entries at 10/20/05 and 11/1/05. At one point, we
are informed, the case manager called Kulcsar's office three
times a day for two days in the effort to reach him. Finally,
in May 2006, Kulcsar informed the C rk's Of ce that he wished
to proceed with the Anders motion. Id., entry at 5/16/06.
However, after it was determined that Kulcsar had not complied
with this Court's Anders notice requirements, this Court ordered
Kulcsar to do so. See id., Order filed June 9, 2006. Kulcsar
failed to respond to the Court's order. Additionally, Kulcsar
did not return messages left by Clerk's Office. As a
result, this Court denied Kulcsar's Anders motion, denied CJA
fees for his work on the case and appointed new counsel for the
appellant. See id., Order filed Aug. 15,2006. That order
stated, inter alia, the following:
On June 9, 2006, this Court ordered counsel to file,
by June 23, 2006, an affidavit indicating that he has
complied with this Court's Anders notice requirements.
Counsel has not done so. Additionally, counsel has not
responded to messages ft by this Court's Clerk's
Office. Appellant's appeal, pending since December
2003, has been prolonged due to counsel's repeated
non-compliance with the briefing schedule and the
15
ilure to respond to messages left by the Clerk's
Office.
Given counsel's non-compliance with this Court's prior
order and continuing neglect of this case, it is
ORDERED that the Anders motion is DENIED, Kulcsar is
relieved as counsel, Kulcsar is denied his Criminal
Justice Act fees for work on this case, and Gamboa
shall be appointed new appellate counsel.
(citations omitted).
The docket of this Court also reflects that, in still other
cases, Kulcsar has repeatedly led motions for extensions of
time to file his appellate briefs, often as many as five times
in one case, accompanied by requests for leave to Ie the
extension motions out of time. Nos. 04-2038-cr, 03-1751-cr,
03-1063-cr, 02-1406-cr, 02-1319-cr, 01-1387-cr, 01-1344-cr, 96-
1514-cr, 90-1015-cr. The docket sheets for those cases strongly
suggest that case managers often have difficulty reaching
Kulcsar and, in many instances, the case managers discovered
that Kulcsar's telephone perpetually rings without connecting to
an automated answering system. In one case, a case manager
voiced frustration at the apparent failure of Kulcsar's
receptionist to forward a message to him or transfer the call to
voicemail. United States v. Mena (Francisco), No. 04-0498-
cr, dkt. sht., entry at 5/10/05 (note).
Upon due consideration of the matters described above, it
is ORDERED that Roy R. Kulcsar 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:
Thomas Asreen, Acting Clerk
By: /s/ ____________
Michael Zachary
Supervisory Staff Attorney
16
APPENDIX 2
Text of March 2008 order
By order filed in May 2007, Roy R. Kulcsar was referred to
this Court's Committee on Admissions and Grievances for
investigation of the matters described in that order. Since
that time, additional information regarding Kulcsar has come to
the attention of this panel.
In 2007, Rafael Rodriguez filed suit against Kulscar in the
United States District Court for the Southern District of New
York, alleging that Kulscar had fraudulently induced Rodriguez
to pursue a Federal Rule of Criminal Procedure 35 motion, and
pay Kulcsar a retainer $5,000 for his representation in the
Rule 35 proceedings, by making representations Kulscar knew to
be false concerning Rodriguez's likelihood of success on the
motion. See Rodriguez v. Kulcsar, No. 07-cv-251, 2007 WL
3120906 (S.D.N.Y. Oct. 24, 2007) (decision dismissing action).
The action was dismissed for lack of subject matter
jurisdiction, id. at *3, and Rodriguez did not le a notice of
appeal.
Since the alleged behavior occurred in the course of
district court proceedings, we ask the Committee to determine,
in the first instance, whether the leged behavior relates
any way to the proceedings currently before the Committee or, if
not, whether it should be referred to the disciplinary committee
of the district court or of an appropriate state bar.
Upon due consideration, it is ORDERED that the additional
information described above is referred to this Court's
Committee on Admissions and Grievances for its consideration in
conjunction with the information provided in this panel's May
2007 referral order.
FOR THE COURT:
Catherine O'Hagan Wol ,Clerk
By: /s/ _ _ _ _ _ __
Michael Zachary
Supervisory Staff Attorney
Counsel to the Grievance Panel
17
APPENDIX 3
,
March 2010 Report of the Committee
on Admissions and Grievances
Report & Recommendation
Re: In re Roy R. Kulcsar, 07-9020-am
I. Introduction
By Orders dated May 30, 2007, and March 10, 2008, the United States Court of Appeals
for the Second Circuit (the "Court's Order") referred Roy R. Kulcsar to this Committee, for
investigation of his conduct before the Court and preparation of a report on whether he should be
subject to disciplinary or other corrective measures.
Kulesar is an active federal criminal practitioner. He was referred to this Committee
because the Court's records suggest that Kulesar Has failed to abide by this Court's rules and
orders, has failed to cooperate with this Court's personnel in the processing of appeals in which
he was an attorney of record, and may have failed to protect the interests of his clients.
In particular, the Court noted four criminal appeals that were dismissed for default. First,
in US. v. Ramirez, 06-5583-cr, Kulcsar filed the notice of appeal but did not file the appellate
brief by the due date. The Court then directed Kulcsar either to file tli{!"brief or to file a
stipulation withdrawing the appeal, but Kulesar did not respond to that order. In both US. v.
Vinasco (Montoya), 03-1064-cr, and us. v. Cirineo (Lama), 02-1 1 lO-cr(L), 02-1248-cr (Gon),
Kulesar defaulted on the briefing schedules. Court employees telephoned Kulesar about the
overdue briefs. Kulcsar either could not be reached or did not respond to the phone calls, and
both cases were dismissed. Lastly, in Us. v. Williams, 97-1043-cr, Kulesar also failed tp file the
brief on time, and the case was dismissed.
At the time of the referral, Kulesar had also defaulted on a fifth case: In Us. v. De La
Cruz, 06-5878-cr, the case manager called Kulesar's office in March, April, and May 2007 about
the overdue brief, but there was no answer to those calls. The appeal was dismissed on May 25,
2007.
In a sixth case, the Court expressed concern about repeated missed deadlines. In US. v.
Narvaez (Gamboa), 03-1 786-cr, Kulcsar was granted two extensions oftime, even though he did
not move for additional time until after the deadline had passed and the Clerk's office left him
messages about the brief. The final order on November 3, 2004, stated that no further extensions
would be granted, but Kulcsar still did not file the brief until four months after that final
deadline, along with an Anders motion. Kulcsar then informed the Court that he intended to
withdraw the Anders motion, but despite multiple messages from the clerk's office, he did not do
so. He finally informed the Court in May 2006 that he intended to proceed with the Anders
motion, but he had not complied with the notice requirements. Again, Kulcsar did not respond to
the Court's order. As a result, the Anders motion was denied, Kulcsar was denied his CJA fees,
and new counsel was appointed.
Also, the Court expressed concern about repeated extensions of time to file appellate
briefs, often as many as five times in one case. In addition, the docket sheets reflect repeated
unsuccessful attempts to reach Kulcsar, many times without even being able to reach an
answering machine to leave a message.
Finally, in the March 10,2008, referral, the Court noted that Rafael Rodriguez sued
Kulcsar in the U.S. District Court, claiming Kulcsar had fraudulently induced him to pursue a
Rule 35 motion by making false representations about the likelihood of success. The action was
dismissed for lack of subject matter jurisdiction, but the Court has asked the Committee to
determine if the behavior relates to any of the previous behavior or should be referred to another
disciplinary committee.
The Committee recommends that Kulcsar be publicly reprimanded. In addition, Kulcsar
should be directed to ensure that at all times he represents a party in pending matter before the
Court, the Court is provided with a current telephone number at which a person or recording
machine will answer during any time the Court is open for business and that his mail is timely
brought to his attention. Further, Kulcsar 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 filed out oftime; (2) an extension oftime is requested; (3)
an application is made for permission to make a late filing only after the due date has passed; or
(4) a telephone message from the Court is not returned within three business days. The following
constitutes the Committee's report and recommendation to impose discipline on Kulcsar.
2
II. The Disciplinary Proceeding
On March 21,2008, this Committee issued an Order to Show Cause regarding Kulcsar's
conduct as alleged in the Court's referral order. Kulcsar did not respond, so the Committee sent
a second letter on April 30, giving him until May 13 to respond. On May 21, 2008, Kulcsar
wrote the Committee asking for an additional 60 days to respond, stating that he had just received
the Committee's mail because of a problem with receiving the mail at his office. The Committee
granted him 30 additional days until June 20, 2008, and noted that no further extensions would
be granted. On June 20, 2008, Kulcsar faxed a request for an additional thirty day extension; the
Committee agreed to an additional ten days. On June 30, 2008, Kulcsar called and asked to
submit his response by email after 5:00 pm; this request was granted. The Committee finally
received a written response to the Order to Show Cause by fax on July 2, 2008.
On November 7,2008, Kulcsar's attorney, Jeffrey C. Hoffman, Esq. submitted pre-
hearing documentation to the Committee and additional materials on November 12. A hearing
was held on November 18,2008 by a sub-committee consisting of Paul Cumin, Terry Connors,
and Eileen Blackwood. Patrick Shilling was also present for the sub-committee, and Kulcsar
appeared with his counsel. At the hearing, Kulcsar's counsel indicated he did not wish to file a
post-hearing submission, but on Dec. 17, 2008, Kulcsar called the Committee and requested
permission to file additional materials by January 7, 2009. This request was granted, but when
no materials were received, on February 2,2009, the Committee wrote Attorney Hoffman that no
additional materials would be accepted after February 6. Kulcsar submitted a final statement on
February 5,2009.
III. Factual Background
The following facts are taken from court records, Kulcsar's written submissions, and the
testimony presented at the hearing.
Mr. Kulcsar is an experienced federal criminal defense practitioner. He graduated from
St. John's College Law School and was admitted to practice law in New York State in September
1968. He was admitted to practice before this Court in 1969, the Southern and Eastern Districts
in 1970, and the U.S. Supreme Court in 1971. He began his career as an assistant district
attorney in the New York County District Attorney's Office where he worked for about nine
years before entering private practice.
Mr. Kulcsar reports a caseload of35-40 active cases, with 98% of his clients incarcerated
at either the Metropolitan Correctional Center or the Metropolitan Detention Center. Most of his
clients are Hispanic, so he works with a Spanish-speaking paralegal who also serves as an
interpreter. Kulcsar spends his entire work day either at the correctional or detention centers or
in court. Only after 5:00 pm does he have the opportunity to check phone messages or mail, as
cell phones are not allowed in either federal facility or the court. He served on the CJA panel for
3
many years and has been appointed to handle some fairly high profile cases, including that of
Ramzi Yousef, the World Trade Center bomber, and of Jose Muyet, the leader of the Nasty Boys
accused of drug trafficking.
Mr. Kulcsar has never been disciplined for professional misconduct.
IV. 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,
or the rules of professional conduct of any other state or
jurisdiction governing the attorney's conduct. 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 also 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 of justice. 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).
Because Kulcsar is 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. Two
sections are of particular relevance in this matter. First, the Code states that a lawyer shall not
"[n]eglect a legal matter entrusted to the lawyer." See D.R. 6-1 01 (A)(3); 22 N.Y.C.R.R. §
1200.30(A)(3); see also N.Y. Rilles of Prof I Conduct R. L3(b) (effective Apr. 1,2009)
(hereinafter "N.Y.R."). Second, the Code prohibits conduct that "adversely reflects on the
lawyer's fitness as a lawyer." D.R. 1-102(A)(7); 22 N.Y.C.R.R. § 1200.3(A)(7); see also N.Y.R.
8.4(h).
4
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). This conduct is also sanctionable
under the ABA Standards for Imposing Lawyer Sanctions ("ABA Standards"), which call for a
range of sanctions for various forms of "lack of diligence" and "lack of competence."
Relevant to this matter are rules promulgated by the Court for appointed counsel.
"Counsel appointed under the Act to represent a CJA client in the district court shall continue
such representation on appeal unless or until relieved by order of the Court of Appeals .... If
CJA counsel who acted in the district court wishes to be relieved from representing a CJA client
on appeal, he or she shall file with the Clerk of the Court of Appeals, and serve upon a CJA
client and all other counsel in the case, a motion seeking to be relieved and stating the grounds in
support of the motion. Counsel seeking to be relieved nevertheless shall continue to represent the
CJA client on appeal unless or until relieved by the Court of Appeals (See Local Rule 4(b))."
Amended Plan to Implement the Civil Justice Act of 1964 VIII A & B (as amended Dec. 12,
2007)(hereafier CJA Rules). "CJA counsel shall not delegate any non-ministerial tasks in
connection with representation of a CJA client to any person other than a partner, associate,
paralegal, student or regular employee of the law firm or clinical program of which the Panel
member is a partner, associate or affiliate without the written consent of the CJA client and the
Court." CJA Rules Section IX F.
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 is found to have engaged in
misconduct, this Committee should consider (a) the duty violated, (b) the lawyer's mental state,
Cc) the actual or potential injury caused, and Cd) the existence of aggravating or mitigating
factors. See ABA Standards section 3.0. The Committee then may recommend to the Court's
Grievance Panel a range of sanctions from removal from the bar of the Court, suspension from
practice before the Court, public or private reprimanded, referral to another disciplinary
committee, supervision of a special master, counseling or treatment, or other disciplinary or
corrective measures, including any combination of these actions. Committee Rule 6(a)-(i).
V. The Alleged Misconduct
A. Failure to Abide by Orders and Cooperate with Court Personnel
The Court has noted several cases in which Kulcsar claims not to have received notices
and in which he has failed to respond repeatedly to calls from the Court's staff. Kulcsar
attributes these problems to issues he was having with his office.
5
For about nine years, Kulcsar entered into an arrangement with an attorney named Louis
Venezia to sub-let office space. Ku1csar rented one room for his exclusive use, shared a
conference room, and used Venezia's phone system and receptionist. Kulcsar had no employees
and no answering service or machine at his office location, but he occasionally hired Venezia's
receptionist or secretaries to perform administrative tasks for him. The paralegal who works with
Kulcsar, handles his correspondence and maintains his files. Kulcsar does not maintain one
client file but instead has client documents separated by type: He maintains discovery and
motions, while his paralegal maintains correspondence and other documents she prepares on his
behalf. Venezia's receptionist would take messages from Kulcsar and ensure that he got his
mail; he spoke with her almost every day.
Sometime in late 2005, Venezia's long-time receptionist quit, and things started downhill
for Kulcsar. At the end of 2006, Kulcsar learned from a friend that Venezia was relinquishing
his space. At the time, Ku1csar was in the middle of a multi-defendant RICO trial, US. v.
Perrone, and when he returned to the office after the trial, he discovered that Venezia had already
left, and all of Kulcsar' s things had been moved into an empty room. Relations with Venezia had
deteriorated, and Venezia brought suit to evict Ku1csar. The new tenants refused to give him any
commitment about renewing an arrangement such as he had had with Venezia. He eventually
worked out an arrangement with them to allow him use of the office and to continue receiving his
mail there. For a time, his mail was kept in a location with the mail for about fifteen other
lawyers, but now it is separated out and kept in a location just for him. Also, for some period in
early 2007, Ku1csar was not receiving his phone messages because unbeknownst to him, his
phone was not hooked up to the new office suite phone system and was not answered.
Although Ku1csar represented that the problems with his mail and telephone only
occurred between November 2006 and May 2007, it is notable that he also claims he did not
receive this Committee's Order to Show Cause one year later, in March 2008. In addition,
regardless of the mail problem, in one of the cases at issue here, US v. Ramirez, the record
shows electronic notice to Ku1csar that the index in lieu of record on appeal was being sent to
this Court, yet Kulcsar did not respond to that electronic notice.
(i) U.S.A. v. Ramirez, 06-5583
Kulcsar had represented Ramirez at trial before the district court, where he was
convicted. A notice of appeal was filed on Ramirez's behalf on December 5, 2006. The notice
of appeal identifies Roy Kulcsar as counsel for appellant and is signed by Kulcsar. The Court
issued scheduling order #1 on December 18,2006, but Ku1csar claims he never received it.
Kulcsar did not file the brief when due on February 7, 2007. On February 13,2007, Kulcsar's
client sent the Court a pro se letter and a Motion to Withdrawal [sic] Counsel of Record and for
Appointment of Counsel. In it, he asserts that Kulcsar was not representing him on the appeal
and requests appointed counsel. The Court sent that letter to Ku1csar, but he did not respond and
never filed a brief. On April 23, 2007, the case was dismissed for failure to comply with the
6
scheduling order. Kulcsar asserts he did not receive this communication from the Court either.
He did finally receive a phone message from the staff attorney that there had been a default, and
sometime in May 2007 found the dismissal order. He did not immediately move to reinstate the
appeal.
In October, the client moved pro se to reinstate the appeal. That motion was granted on
January 23,2008, and new counsel was appointed under the CJA. The new counsel filed an
Anders brief to be relieved as counsel, and the government moved to dismiss the appeal or affirm
the conviction. On October 20,2008, the appeal as to imprisonment was dismissed and the
conviction and other portions of the sentence were affirmed. Thus, other than the delay, the
client appears to have suffered no actual injury from Kulesar's default.
Kulesar's Response to Ramirez
Kulcsar testified that he never intended to represent Ramirez on appeal, just to file the
notice of appeal for him pro se to preserve his right in case he obtained other counsel. This is
supported by his client's letters to the Court, which indicate that Kulesar refused to represent
Ramirez on appeal. Kulesar claims that when he attempted to file the appeal pro se, the Court
would not allow him to do so, but required him to file it listing himself as counsel. Kulcsar
testified that he understood that under the Court's rules if the client wanted to appeal, he had to
file it, even if the client had waived his right to appeal in his plea (as he had here).
Kulcsar admits that he did nothing further on the case after filing the appeal. He never
opened a file, started tracking the case, prepared a brief, or took any other action in relation to his
client because he understood that other counsel was to be hired. He was dealing with Ramirez's
family on an ongoing basis, and no one ever raised the issue of the appeal with him again.
At the time (between December 2006 and May 2007), Kulesar claims he did not realize
he was not getting mail from this Court.
(ii) U.S.A. v. Vinasco et aL (Montoya), 03-1064
Montoya was the lead defendant in a narcotics trafficking charge. Represented by
Kulcsar, she pled guilty in the district court, and the plea agreement included a waiver of appeal.
She then sought to appeal because she had not realized that the plea agreement would not allow
the judge to grant her a downward departure from the sentencing guidelines. Montoya sent
several letters to the court, which the district court judge finally recognized as notices of appeal,
pro se, and the case was received by this Court in February 2003. Because Kulcsar was the
attorney of record below, under the Court's rules, he was counsel of record on the appeal, and a
scheduling order was sent to him on February 28,2003. Kulcsar filed a motion to extend time to
file the opening brief on April 22, 2003, the day after the brief was due. This motion was granted
on April 28, 2003, with a caveat that "NO FURTHER EXTENSIONS WILL BE GRANTED
7
ABSENT EXTRAORDINARY CIRCUMSTANCES." The Court's staff called Kulcsar to
inquire what was happening, but he did not respond. On August 25,2003, the appeal was
dismissed for failure to comply with the scheduling order. The appeal was never reinstated.
Kulesar's Response to Montoya
Kulcsar asserts that after filing the appeal, he delivered his file to another attorney to
handle the appeal, but the Court has no record of any other attorney on the matter. Kulcsar
admits that he did receive copies of the Court's order, but he claims he had no involvement with
the appeal. He asserts that he never received a message from the Court's staff and has no
explanation for why that may have happened (the problems with his office staff outlined above
occurred four years later).
(iii) U.S.A. v. Cirineo (Lama), 02-1248 (CON)
Kulcsar represented Lama as trial counsel in a multi-defendant case. Lama was
convicted and appealed. Kulcsar filed a notice of appeal on April 24, 2002. A scheduling order
was issued on May 10, 2002, but no brief was filed. The Court's staff called Kulcsar, but he did
not respond. The appeal was dismissed on Oct. 23, 2002, for failure to comply with the
scheduling order. There is no record that the appeal was reinstated.
Lama's co-defendant Cirineo, 02-1110, changed attorneys, and argued the merits of the
appeal before the Court, and the judgment of the district court was affirmed.
Kulesar's Response to Lama
Kulcsar asserts that he did not pursue the appeal after filing because Lama was
deported, so the case became moot. There is no evidence that he communicated this fact to the
Court. He had no explanation for why he did not respond to communications from the Court's
staff.
(iv) U.S.A. v. Williams, 97-1043
Kulcsar represented Williams at a bail hearing in the district court. Bail was denied, and
he appealed the bail denial in January 1997. Meanwhile, Kulcsar became involved in the Muyet
trial mentioned above and new counsel was appointed for Williams in the district court. A
telephone call from the Court's staff to Kulcsar's office and a written notice requiring him to file
documents from the district court proceeding went unanswered. The bail appeal languished. In
May 1997, new counsel was appointed for Williams, and Kulcsar delivered the file to him.
Williams's case went forward in the district court with new counsel.
8
Williams was tried and convicted in June 1997. On August 19, 1997, the Court
apparently issued a scheduling order on the bail appeal. A follow-up letter was sent from the
Court's staff to Kulcsar dated September 19, 1997, which he asserts he passed on to Williams's
counsel because he was then involved in the Muyet trial. Both the scheduling order and the Court
staffs follow-up letter went unanswered. New counsel did not enter an appearance on the
appeal. No brief was filed, and the appeal was dismissed on October 28, 1997. Kulcsar received
this dismissal and spoke to the Court's staff, asserting the appeal was moot. An Order to Show
Cause was apparently issued by the Court. Kulcsar obtained an extension of time to respond to it
but did not respond on February 2, 1998, and it appears nothing further occurred.
Although Williams was tried and convicted, the Committee has no evidence about
whether the bail appeal would have been successful, had it been properly pursued.
Kulesar's Response to Williams
Kulesar asserts that substitute counsel took over the case (although this did not occur
until four months after the bail appeal had been filed) and that he did not receive a call from the
Court's staff with the notice to file documents. He was busy with the Muyet trial but has no
explanation for why he did not pursue the bail appeal or ensure that substitute counsel was in
place in a timely fashion.
(v) U.S. v. De La Cruz, 06-5878
Kulcsar represented De La Cruz before the district court, where he pled guilty and
waived appeal. On October 17,2006, De La Cruz filed a pro se appeal, and Kulesar claims he
did not receive a copy of that appeal. Kulcsar was the attorney of record below, and thus the
Court automatically cited him as appellate counsel. On January 9, 2007, a scheduling order was
filed and sent to Kulesar. He denies receiving it. When the appellant's brief was not filed by
February 28, as noticed, the Court wrote to Kulesar, and the Court's staff attempted to call him in
March, April, and May. These communications were not answered. The appeal was dismissed
on May 25, 2007. No request for reinstatement has been filed.
Kulesar's Response to De La Cruz
Kulcsar asserts that he did not receive the scheduling order in January 2007, the Court's
letters or phone calls in March, April, and May, or the notice of dismissal of appeal dated May
25,2007. He states that he was not even aware that De La Cruz had appealed.
(vi) U.S. v. Narvaez (Gamboa), 03-1786
Kulcsar represented Gamboa on sentencing, after conviction, before the district court.
On December 24, 2003, he filed a notice of appeal to this Court. The Court subsequently
9
appointed Kulesar CJA counsel for Gamboa. A scheduling order was filed on January 8, 2004. A
motion to withdraw as counsel and extend time was denied by the Court on February 19,2004,
subject to renewal upon submission of a completed financial affidavit. The Court's staff left
Kulesar a message on May 19 about the overdue brief, but he did not respond. On June 4, 2004,
another motion for an extension oftime was filed, although the brief had been due on February
27. On June 15,2004, after re-filing, Kulesar was appointed under the CJA, and the time to file
his brief was extended to October 3. The Court left Kulesar a message on October 19 about the
overdue brief. He did not file the brief, but on October 27 filed another motion to extend time.
On November 3, 2004, the Court extended the time for fourteen days, stating, "Counsel has had
more than enough time to file a brief in this long-pending appeal. No further extensions will be
granted."
Despite this order, Kulesar did not file the brief, even after the Court's staff called him
again on January 27, 2005. Nor did he respond to the call. In fact, the index in lieu of record on
appeal was not filed until March 7, 2005, and an Anders brief, along with a motion for
permission to file out oftime, was finally filed on March 9. The motion to file out of time was
granted, but in September 2005, Kulesar notified the Court's staffhe wished to withdraw the
Anders motion. In October and November, the Court's staffleft him messages inquiring about
the withdrawal, but he did not respond. At one point, the case manager called his office three
times a day for two days. Finally, in May 2006, he told the Court's staff he would proceed with
the Anders motion, but on June 9, 2006, the Court entered an order refusing to decide the case
until Kulcsar furnished his client with a copy of the brief, explained to him the consequences of
the filing, advised him that he could request other counsel, and filed an affidavit affirming that he
had complied with these requirements. The Court's staff left Kulesar messages about the
Court's requirements, but Kulesar did not respond. On August 15,2006, the Court noted,
"Appellant's appeal, pending since December 2003, has been prolonged due to counsel's
repeated non-compliance with the briefing schedule and the failure to respond to messages left by
the Court's staff. Given counsel's non-compliance with this Court's order and continuing
neglect of this case, it is ORDERED that the Anders motion is DENIED .... " Kulesar was
removed as counsel and denied his CJA fees. New counsel was appointed for Gamboa on
September 5, 2006, and an Anders brief was filed on November 16,2006. The case was
summarily affirmed on February 26,2007.
Kulesar's Response to Gamboa
At the request of Gamboa's family, he filed an appeal, even though he believed there
were no grounds for the appeal. He retained another attorney, Steve Legon, to handle the appeal
although Kulesar remained attorney of record. Legon apparently requested numerous extensions,
and when Kulcsar spoke to him, Legon allegedly assured him that the appeal was on track.
Kulesar has worked with Legon many times over the years. Legon subsequently told him the
Court had lost their brief. In reality, Legon apparently failed to file an affidavit documenting the
10
client's knowledge, so the Anders brief was rejected. The affidavit was never filed, so the Court
assigned new counsel and denied Legon's and Kulcsar's request for CJA fees.
Kulcsar admits receiving multiple calls from the Court's staff about the case, but asserts
that he contacted Legon each time. Kulcsar explains that Legon assured him that he, Legon,
would take care of the matter. Kulcsar does admit responsibility for not ensuring that the
communication occurred more clearly. He does not explain why he did not respond to the Court.
B. Filing Multiple Requests for Extensions of Time
In a number of cases over the years, Kulcsar has repeatedly filed motions for extensions
of time to file his appellate briefs, often after the brief was due with a request for leave to file the
extension motion out of time.
In 96-1514, the appeal was filed on August 6, 1996, and Kulcsar filed a motion to
extend time on September 20, and this was granted. On October 23, 1996, he filed a second
motion to extend time, seven days before the brief was due, and this motion was granted. On
November 19, 1996, he filed a third motion to extend time because the case was to be
consolidated with another case. That motion was granted. On December 3, 1996, a fourth
motion to extend time, this one out of time, was filed and granted. A fifth motion was filed on
December 23 and was granted with the condition that no further extensions would be allowed.
The brief was finally filed, one day late.
Kulcsar then began to seek extensions of time to file his reply brief. The first was filed,
out oftime, on March 10, 1997. A second motion was filed on March 24. A third request was
filed on April 7, five days out oftime. A fourth request was filed on April 15. A fifth request
was filed on April 21, again out oftime. A sixth request was filed on April 28, the day the brief
was due, and seventh request, out of time, on May 2. An eighth request was filed on May 8 and a
ninth motion on May 13, out of time All nine requests were granted. The reply brief was finally
filed on May 16, 1997. Oral argument was waived, and the judgment of the district court was
affirmed on July 25, 1997.
In 01-1344 the appeal was filed on July 11,2001. The appellant's brief was due on
September 10, 2001, but requests for extensions of time were requested on September 7, October
25, November 29, January 3 (2002), February 20, and March 29. All were granted. On April 19,
2002, the Court docket notes that a brief was filed out of time (it was due April 8). A motion for
leave to file out of time was filed later on May 1, 2002. It was granted. The judgment of the
district court was affirmed on April 24, 2003.
In 01-1387, the appeal was filed on July 17,2001. Appellant's briefwas due on
September 19. Motions to extend time were then filed on September 26 and October 18. The
11
brief was then filed on November 19, 2001, the day it was due. The judgment of the district
court was affirmed on March 29, 2002.
In 02-1319, the appeal was filed on May 24, 2002. Motions for extension of time were
filed on September 26, November 18, February 18 (2003), March 21 (after Court order stating no
further extensions), and April 14. Kulcsar filed the brief on May 23,2003, even though it was
due April 21. The brief was not accepted until he filed a motion for leave to file out of time,
which was done on May 24, 2003, and the briefwas ultimately accepted.
During this time, it appears that some of Kulcsar's client's co-defendants sought
extensions, but none on the scale that Kulcsar sought-for example, defendants Martinez and
Ramirez each sought one extension. The government also sought three extensions, and then filed
its brief on time. This case was then held, awaiting the Supreme Court decisions in Booker and
Fan/an.
In 02-1406, the appeal was filed on July 11, 2002, and the docket sheet does not show
any requests for extension. The case was held once the U.S. Supreme Court granted certiorari in
Booker and Fan/an, until those decisions were issued.
In 03-1063, which was referenced in the Referral Order, Kulcsar was not the counsel of
record.
In 03-1751, the government filed an appeal, and Kulcsar filed a cross-appeaL He made
motions for extensions to file the brief on June 8, 2004 and August 27, but the brief was not filed
until February 16,2005, two months after the extended deadline.
In 04-2038, Kulcsar filed a motion to extend time on June 18, 2004, and the court
granted it with the condition that no further extensions would be granted. Despite that order,
Kulcsar failed to file the brief on time, but filed another request for extension on October 27,
more than two months after the brief was due. Another extension was filed on December 28, and
the brief was finally filed on January 11,2005. The district court's judgment was affirmed and
the case remanded on April 28, 2005.
Kulcsar's Response
Kulcsar claims requests for extensions out oftime are routinely filed and have always
been granted, and that the filing of requests to file out of time has also been routine in the Court.
He also asserts that in cases with multiple co-defendants extensions are more likely because other
defendants are filing motions as welL However, as noted above, the number of Kulcsar's filings
seems to exceed that by other counsel. Additionally, Kulcsar explains that two of the cases, 04-
2038 and 03-1751, were awaiting U. S. Supreme Court decisions in Booker and Fan/an. Yet,
those cases appear to have multiple requests for extensions even before the Supreme Court
12
accepted certiorari. On two other cases, 96-1514 and 01-1387, Kulcsar claims another attorney
was handling the appeal; however, the docket is clear that Kulcsar was the attorney of record.
C. Client Claim of Fraudulent Inducement: Rodriguez v. Kulcsar
In 2007, Rodriguez filed suit against Kulcsar in the Southern District of New York,
alleging that Kulcsar fraudulently induced him to pursue a Rule 35 motion and pay him $5000.
This action was dismissed for lack of subject matter jurisdiction, and the Committee was asked
to determine if Kulcsar's behavior in that action relates to the current proceedings.
Kulesar's Response
All proceedings in the case occurred before the district court. Rodriguez was convicted
after trial and asked Kulcsar to negotiate a Rule 35 cooperation agreement to reduce his sentence.
Kulcsar tried to no avail. They had already spoken to Rodriguez and not only knew the
information he had to offer, but did not believe he was entirely truthful with them. Kulcsar
testified that he met with the client at least ten times, met and spoke with the AUSA numerous
times, and fully earned his fee of $5000. The matter seems to be a straight fee dispute, with
nothing relevant to the issues of timeliness.
D. Kulesar's General Response to the Charges
Kulcsar readily admits his errors for the most part and expresses remorse. Before this
panel, Kulcsar asserts that his problems began with the conjunction of a very busy practice,
problems with his office setting, and personal problems. [REDACTED SENTENCE] His
practice requires him to be out of the office all day, meeting with clients at correctional facilities
or attending court.
Kulcsar apologizes and expresses remorse for not communicating well and causing the
Court inconvenience. He has taken steps to rectify his office situation. He practices primarily
out of his house, but he uses the same office suite in New York City that he has used for years. A
new office manager there ensures his mail is delivered to him in a timely manner. She calls him
promptly if anything urgent happens. Kulcsar goes to the office every few days. He has also
made sure that the Court, his clients, and other jurisdictions in which he appears have his cell
phone listed, as well as fax and email. His paralegal regularly checks his email and faxes any
important documents home to him.
13
VI. Disciplinary Action is Warranted
A. Duty Violated
The evidence demonstrates, clearly and convincingly, that Kulcsar has engaged in
professional misconduct. This misconduct includes the following:
Kulcsar failed to abide by court deadlines, resulting in dismissals of at least six cases-
Ramirez, Montoya, Lama, Williams, De La Cruz, and Gamboa-- in violation of his duty of
diligence. To make matters worse, Kulcsar failed to respond to communications from the Court
on numerous occasions, as recently as communications from this Committee in spring 2008 in
violation of his duties to the legal system and the profession. In all of the cases above, Court
staff tried to call KuIcsar repeatedly to remind him of his obligations and find out when
documents would be filed, and he totally ignored these communications. In several of these
cases, Kulcsar asserts he did not receive Court orders or letters. Although Kulcsar claims that
most of these problems arose from a change in management of the suite where he maintains an
office, the evidence does not support that contention as the explanation for all of his defaults.
The instances in which Kulcsar claims he did not receive messages of mail range from January
1997 in the Williams case to May 2008, with this Committee's communications, while the office
change of ownership occurred in late 2006-early 2007. It is clear to the Committee that Kulcsar's
communication problem is more than just a brief interlude caused by the changeover in office
management.
In numerous other cases, Kulcsar repeatedly sought extensions of time in violation of his
duty of diligence-as many as nine on one reply brief in 1997, although the quantity of requested
extensions has declined in recent years. More concerning is that even with extensions, many of
Kulcsar's briefs were filed out of time. Kulcsar's claim that these extensions are tied to the
actions of co-defendants does not seem to be supported in the record. I
Additionally, Kulcsar has violated the Court's CJA rules, which provide that counsel
appointed in the district court shall continue until relieved by order of this Court. Appointed
counsel are required to file a motion before the Court of Appeals to be relieved and must
continue representing the client until the motion is granted. Instead, Kulcsar delegated tasks to a
non-employee in violation of the CJA rule that prohibits CJA counsel from delegating tasks to
anyone other than an employee of the firm. In Gamboa, Kulcsar testified that he retained Steve
Legon, who was not an employee of his firm, to handle the matter, and despite receiving multiple
calls from the Court about the matter, Kulcsar failed to ensure that the matter was properly
handled. The situation exemplifies the reason why the Court prohibits delegation to non-
Two of the cases cited by the Court, 02-14-6 and 03-1063, do not establish any basis for
misconduct.
14
employees, as Kulcsar claims Legon promised to respond to the Court's contacts but apparently
did not, and the Court was left with no response to its attempts to contact the assigned attorney.
The Committee does not find that any disciplinary action should be taken with respect to
Rodriguez v. Kulcsar. The matter appears to involve a fee dispute between the client and
attorney, involving matters entirely before the district court. It also does not seem to implicate
the matters of dilatoriness and failure to communicate apparent before this Court.
B. The Lawyer's Mental State
The misconduct appears to be due to negligence rather than any intentional or knowing
conduct. The Committee found no evidence that Kulcsar intentionally intended to ignore the
Court's orders or violate Court rules.
C. The Actual or Potential Injury
Of the cases cited by the Court in its order, six resulted in the appeal being
dismissed because of Kulcsar's inaction. In all of them, the clients suffered potential injury, but
the Committee cannot find by clear and convincing evidence that they suffered actual harm. For
example, in Williams, Kulcsar filed an appeal of a bail denial, but failed to pursue the appeaL
The client was eventually convicted of his crime, and the Committee has no evidence whether or
not the bail appeal would have been successful, had it been zealously pursued. In two of the
remaining cases, Ramirez and Gamboa, the appeals were reinstated, and substitute counsel filed
Anders briefs; in both, the convictions were affirmed. In two others, Montoya and De La Cruz,
the client's appeal was dismissed and never reinstated. In both cases, the client had filed the
appeal pro se, and after the appeal was dismissed, the client apparently did not seek
reinstatement. In addition, in both cases, the client had pled guilty and waived appeal in the plea.
As a result, the Committee is reluctant to conclude there was actual injury. In Lama, the appeal
was dismissed and never reinstated, but Kulcsar testified that the client was deported before the
appeal was dismissed. Again, the Committee cannot conclude on this record that the client
suffered actual harm.
In all of the other cases referred to this Committee, Ku1csar's late filings were accepted
by the Court.
D. Aggravating and Mitigating Factors
The pattern of conduct-- failing to meet deadlines, failing to apply for an extension before
the deadline has passed, failing to respond to the Court's communications, and failing to follow
the CJA rules-is a strong aggravating factor. Kulcsar is an experienced practitioner, and despite
becoming aware of the problems with communications from his office setting over the years, it
15
does not appear that he has made significant changes in his operations to ensure receipt of
messages and communications.
In mitigation, Kulesar has a challenging practice, which requires him to be out of the
office most of the day. His personal life includes significant challenges. He has never been
disciplined in forty years of practice. He appears to be well-respected in the district courts, as he
has been appointed to represent defendants in some high-profile and difficult cases. No evidence
exists that Kulesar engaged in any of the behavior above because of any personal gain or
intention to fail in his duty to his client. Finally, Kulesar sincerely expressed remorse.
VI. Recommendation
The Committee finds, based on clear and convincing evidence, that Kulcsar has violated
his duty of diligence to his clients, as well as his duties to the legal system and the profession, by
neglecting legal matters entrusted to him and failing to respond to the Court, and concludes that
discipline is warranted. Kulesar should be publicly reprimanded for his conduct.
The Committee also recommends that Kulcsar be directed to ensure that at all times he
represents a party in pending matter before the Court, the Court is provided with a current
telephone number at which a person or recording machine will answer during any time the Court
is open for business and that his mail is timely brought to his attention. Further, Kulcsar 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 filed out of
time; (2) an extension of time is requested; (3) an application is made for permission to make a
late filing only after the due date has passed; or (4) a telephone message from the Court is not
returned within three business days. 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 Court staff attempts to contact Kulcsar and no answer or response occurs
within three business days, a report is not timely filed, or a report reveals deficiencies not
justified by exigent circumstance, the Committee may recommend the imposition of additional
discipline, including but not limited to suspension from the Second Circuit, without hearing
further testimony.
The following reporting periods and deadlines shall be observed. The report for each
reporting period shall be mailed to the Committee Secretary within ten (10) days of the end of
that reporting period. The first reporting period shall commence 10 days after the Committee's
recommendation is mailed to Kulcsar and shall end six months after the Second Circuit issues its
order of disposition in this matter. Each of the three subsequent reporting period shall be for a
16
reporting period commencing at the end of the prior reporting and ending six months later. A
total of four reports will be prepared and mailed to the Committee Secretary.
17