In re Amy Gell ( 2010 )

07-9054-am
In re Amy Gell
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL
RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING
A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”).
A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Daniel Patrick Moynihan United
States Courthouse, 500 Pearl Street, in the City of New York, on
the 7th day of December, two thousand ten.
PRESENT:
José A. Cabranes,
Robert D. Sack,
Richard C. Wesley,
Circuit Judges.
_______________________________________
07-9054-am
In re Amy Gell, also known as
Amy Nussbaum,
Attorney. ORDER OF
GRIEVANCE PANEL
_______________________________________
FOR AMY GELL: Richard M. Maltz, Esq., New York, New York.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the report of this Court’s Committee on Admissions and
Grievances (“the Committee”) is adopted, and AMY GELL, also known
as AMY NUSSBAUM, is PUBLICLY REPRIMANDED for the misconduct
described in the Committee’s report.
By order filed in August 2007, this Court referred Amy Gell to
the Committee for investigation of the matters described in that
order and preparation of a report on whether she should be subject
to disciplinary or other corrective measures. During the
Committee’s proceedings, Gell had the opportunity to address the
matters discussed in the Court’s referral order and to testify
under oath at a hearing held in October, November, and December
2008. Gell was represented during the Committee’s proceedings by
Richard M. Maltz, Esq. Presiding over the hearing were Committee
members Deirdre M. Daly, Esq., Evan A. Davis, Esq., and David B.
Fein, Esq. In May 2009, the Committee filed with the Court the
record of the Committee’s proceedings and its report and
recommendations. Thereafter, the Court provided Gell with a copy
of the Committee’s report, and Gell responded.
In its report, the Committee concluded that there was clear
and convincing evidence that Gell had engaged in conduct warranting
the imposition of discipline. Report at 1, 12. Specifically, the
Committee found that Gell had intentionally failed to comply with
the Court’s scheduling orders, resulting in the dismissal of a
substantial number of cases, and had practiced in this Court prior
to her admission to the Court’s bar. Id. at 12. Regarding the
default dismissals, the Committee noted Gell’s testimony that she
had made a strategic decision to default in the belief that it was
2
in the best interest of her clients:
Having lost contact with many of these clients, she could
not get their consent to withdraw the appeal. Moreover,
her experience was that if the case went into default,
there remained an opportunity to pursue alternative
relief at a later date either in immigration court or the
Second Circuit, whereas if they withdrew the appeal, that
opportunity would most likely be lost. ... [Gell] also
testified that withdrawing as counsel was not a viable
option as it would require disclosure of the client’s
address and thus risk an arrest. Although there was no
testimony regarding individual defaulted cases, [Gell]
stated that she is confident that the petitioners were
helped rather than prejudiced by the defaults.
Id. at 8.
The Committee found that various aggravating factors existed:
(1) Gell had engaged in a pattern of misconduct, which was
considered more serious since it was intentional; (2) she had
committed multiple offenses by filing petitions when she was not
admitted to the Court and then systematically violating scheduling
orders; (3) she is an experienced practitioner, having practiced
for over twenty years, who should have recognized and addressed her
misconduct; and (4) her immigrant clients were vulnerable victims.
Report at 12, citing American Bar Association, Standards for
Imposing Lawyer Sanctions (“ABA Standards”) § 9.22(c), (d), (h),
(i) (1986, amended 1992).
The Committee also found that Gell’s two prior admonitions,
imposed by the New York State Appellate Division, First Department,
constituted an aggravating factor. Report at 12-13, citing ABA
Standards § 9.22(a). In 2004, she was personally admonished for
3
missing a hearing that resulted in a deportation order for her
client, intentionally failing to move to reopen the hearing, and
failing to communicate with her client regarding her strategic
decision to delay moving to reopen. Id. at 11, 13. In 2006, her
firm was admonished for failing to file a brief in a case in this
Court, for which Gell accepted responsibility as she had
supervisory responsibility for the case. Id. at 11-12, 12-13.
The Committee also found several mitigating factors: (1) Gell
conveyed a genuine commitment to her clients’ best interests,
including frequently working for non-responsive clients and clients
who did not pay their fees, evidencing the absence of a dishonest
or selfish motive; (2) she testified about certain medical issues
that arose during the time of the first admonishment; (3) she was
generally forthcoming and cooperative with the Committee’s
investigation; (4) she expressed credible remorse for her
misconduct; (5) she has taken good faith steps to prevent any
recurrences by significantly limiting her caseload and committing
to a diligent monitoring of Court deadlines; (6) she appears to be
a committed practitioner who did quality work for many clients
despite challenging situations; and (7) she appears to be well
regarded in the legal immigration community, as she worked for the
Lawyers Community for Human Rights and has acted as the chairperson
of the Federal Bar Association’s immigration law committee. Report
at 13, citing ABA Standards § 9.32(b), (c), (d), (e), (g), (l).
4
The Committee also considered Gell’s argument that her conduct
did not prejudice any clients, as some of the dismissed cases were
reinstated, and other defaults were part of her strategy to create
time to pursue more advantageous forms of relief. Id. However,
the Committee found that, without reviewing the merits of each
case, it could not conclude that none of the clients whose
petitions were dismissed on default had suffered any prejudice.
Id. The Committee also found that a lack of prejudice to clients
would not excuse Gell’s disregard of court orders, and the
resulting burden on the Court and its staff. Id. The Committee
recommended that Gell be publicly reprimanded and subject to
certain reporting requirements. Id. at 13-14.
In her response to the Committee’s report, Gell requested that
a private, rather than public, reprimand be issued, that the
reprimand language suggested by the Committee be modified, and that
aspects of the recommended reporting requirements be clarified.
I. Practicing Prior to Admission to Court’s Bar
This Court’s docket reflects that Gell began filing documents
in this Court at least as early as March 2005. See Singh v.
Gonzales, 05-1054-ag, acknowledgment letter filed Mar. 29, 2005;
Singh v. Gonzales, 05-1606-ag, acknowledgment letter filed Apr. 14,
2005; Mostafa v. Gonzales, 05-2211-ag, acknowledgment letter filed
May 25, 2005, motion filed July 11, 2005; Afzal v. Gonzales, 05-
3336-ag, petition for review filed June 23, 2005; Amin v. Gonzales,
5
05-2751-ag, motion filed July 29, 2005. Her initial application to
join the bar of this Court was thereafter filed in August or
September of 2005 (although the application later had to be
resubmitted, due to the absence of a sponsorship letter). Dec. 3,
2008 Transcript at 230-31. At a later date – probably in early
2006 – Gell was informed by an associate in her firm (“the Gell
associate”) that a Court employee had told her that an attorney did
not need to be admitted to file a petition or brief, but only if
the attorney intended to orally argue the case.1 Dec. 3, 2008
Transcript at 219-22 (Gell associate’s testimony concerning
conversation with Court employee); Oct. 23, 2008 Transcript at 100
(Gell testimony); Dec. 11, 2008 Transcript at 5-6 (same).2
1
The Court employee’s advice may have been limited to
Gell’s ability to sign briefs after her admission application was
submitted, but before her actual admission. Nov. 3, 2008
Transcript at 66-67, 69 (Gell’s testimony); Dec. 3, 2008
Transcript at 230 (Gell associate’s testimony). In light of
other evidence discussed in the text, we assume the advice was
not limited in that fashion (an assumption that favors Gell).
2
The Gell associate first testified that her conversation
with the Court employee likely had occurred in 2004 or 2005, Dec.
3, 2008 Transcript at 220-21, but later recalled that it had
occurred in 2006, id. at 224, 227. Gell testified that she
thought that the conversation had occurred in 2006, although she
left open the possibility that it had occurred in 2005. Dec. 11,
2008 Transcript at 5-6. Early 2006 appears likely as (a) the
Gell associate testified that her inquiry had been motivated by
the scheduling of oral argument in Paul v. Ashcroft, 03-4807-ag,
(b) the scheduling notice for that argument was mailed on
February 1, 2006, see Paul, 03-4807-ag, notice filed Feb. 1,
2006, and (c) a February 27, 2006 letter notifying the Clerk that
Gell would appear for oral argument in that case stated that Gell
had submitted an application for admission to the Court’s bar but
had not yet received a decision on that application, see id.,
6
Finally, as of the October 23, 2008 hearing, an attorney who often
worked for Gell was still under the belief that an attorney need
not be admitted to this Court’s bar in order to file a petition for
review. Oct. 23, 2008 Transcript at 55.
Prior to January 1, 2010, this Court’s rule concerning
admission to the Court’s bar stated the following:
Counsel of record for all parties must be admitted to
practice before this court. Oral argument may be
presented only by attorneys admitted to practice before
this court.
Former Second Cir. Local Rule 46(d). We are informed that, during
the time period relevant to the present proceeding, some employees
of this Court had interpreted this rule to mean that an attorney
litigating before this Court need not be admitted to the bar of
this Court unless he or she intended to orally argue the case.
This interpretation is consistent with both the Gell associate’s
testimony about receiving such advice from a Court employee in 2006
and an affidavit prepared by a legal assistant to Gell’s counsel,
asserting that a Court employee had informed the legal assistant in
October 2008 “that an attorney d[id] not have to be admitted to the
Second Circuit to sign a brief but the attorney must be admitted
for oral argument.” Record, vol. 6, exh. M.
We agree with the Committee that, prior to filing any document
in this Court, Gell should have read this Court’s local rule
letter filed Feb. 28, 2006. However, we need not determine the
precise date for purposes of this decision.
7
governing practice before this Court, Former Local Rule 46(d), and
that she violated that rule by filing documents without first being
admitted to this Court’s bar or having an application pending.
However, there are several mitigating factors. First, although
Gell should not have relied exclusively on the advice of other
attorneys, the existence of that advice offers at least partial
mitigation. This is particularly true as to the advice the Gell
associate obtained from a Court employee. Although some may argue
that the proffered advice was not the best interpretation of the
rule, we find that a reasonable attorney could have accepted, and
acted upon, such advice from the Court. However, that mitigating
factor does not apply to the time period preceding the Gell
associate’s conversation with the Court employee. Second, no
evidence was adduced suggesting that Gell had intentionally
violated this Court’s admission rule or that any client or the
public was prejudiced by Gell’s failure to seek admission. Third,
while the Court was prejudiced by having its admission rules
circumvented, and not receiving the applicable admission fee in
2005, the Court’s operations were not otherwise affected and Gell
later became a member of the Court’s bar. Thus, while we agree
that Gell erred in not seeking admission prior to filing documents
in this Court, we conclude that her error did not constitute
8
substantial misconduct.3
II. Defaults
A. Defaults Between March 2008 and November 3, 2008
At the November 3, 2008 session of the Committee’s hearing,
Gell expressed her belief that no defaults had occurred in her
cases after she received the Committee’s March 2008 order putting
her on notice of the present proceeding. Nov. 3, 2008 Transcript
3
The current attorney admission rule states that an
attorney appearing in this Court “on behalf of a party or an
amicus curiae in any capacity must be admitted to practice before
this court, ... have pending an application for admission, [or be
admitted pro hac vice,] and must file a Notice of Appearance in
accordance with LR 12.3.” Second Cir. Local Rule 46.1(a); see
Local Rule 12.3(a) (“Within 14 days after receiving a docketing
notice from the circuit clerk assigning a docket number ..., all
parties must file the Acknowledgment and Notice of Appearance
Form. Counsel of record listed on the form must be admitted in
this court, or have pending an application for admission under LR
46.1(a) or (d).”); Local Rule 12.3(b)(“An attorney, other than
the initial counsel of record, who appears in a case in any
capacity on behalf of a party or an amicus curiae must file the
Notice of Appearance Form for Substitute, Additional, or Amicus
Counsel at the time the attorney enters the case.”). An attorney
“appears” in this Court when, for example, he or she files, or
permits the filing of, a petition, motion, brief, or other
request for relief bearing the attorney’s signature. See Fed. R.
App. P. 32(d) (“Every brief, motion, or other paper filed with
the court must be signed by the party filing the paper or, if the
party is represented, by one of the party’s attorneys.”); see,
e.g., Chums, Ltd. v. Always in Mind, Inc., 110 F.3d 67, 1997 WL
133267 at *2 (9th Cir. 1997) (unpublished decision) (“Generally,
an attorney may appear on behalf of a party by either filing a
formal notice of appearance or filing pleadings on behalf of that
party.”); In re Jacobson, 402 B.R. 359, 364 (Bankr. W.D. Wash.
2009)(stating that local rule permits attorney to enter
appearance by signing any pleading or other document described in
Fed. R. Civ. P. 5(a) or by filing notice of appearance); In re
Stauffer, 378 B.R. 333, 336 n.2 (Bankr. D. Utah 2006)(describing
similar local rule).
9
at 123. She also stated that, after the receipt of that order, all
of her briefs were timely filed, with the exception of one brief
that was filed approximately ten days late. Id.; accord Dec. 11,
2008 Transcript at 21 (Gell testimony that she is “taking far fewer
Second Circuit cases now,” “completely supervising them and doing
the work,” “watching everything that happens in those cases,” and
“complying with every court order”). While review of the Court’s
docket indicates that none of Gell’s cases have been dismissed on
default after March 2008, it also reveals that defaults did, in
fact, occur after that date. Specifically, contrary to her
November 3, 2008 testimony, Gell defaulted between March 2008 and
the date of that testimony, or continued a prior default into that
period, in the following five cases.
1. In Singh v. Keisler, 07-4975-ag, Gell’s brief was due by
April 2, 2008. See Singh, 07-4975-ag, order filed Mar. 3, 2008.
On April 23, 2008, the Clerk’s Office issued an order to show cause
why the case should not be dismissed based on Gell’s failure to
file a brief, with a response required by May 7, 2008. See id.,order filed Apr. 23, 2008. On April 24, 2008, the brief was served
and filed. See id., brief filed Apr. 24, 2008 (cert. of service,
noting Apr. 24, 2008 mailing).
2. In Benabdi v. Mukasey, 07-5138-ag, Gell’s brief was due by
February 19, 2008. See Benabdi, 07-5138-ag, order filed Jan. 14,
2008. On March 26, 2008, the Clerk’s Office issued an order to
10
show cause why the case should not be dismissed based on Gell’s
failure to file her brief, with a response required by April 14,
2008. See id., order filed Mar. 26, 2008. Gell did not submit the
brief until April 22, 2008, see id., brief filed Apr. 22, 2008
(cert. of service, noting Apr. 21, 2008 service on Court); however,
the submission was deemed defective because Gell’s motion to file
late was not properly supported, see id., second “notice of
defective filing” filed Apr. 23, 2008. The corrected motion was
filed on May 2, 2008, and the motion to file the late brief was
granted. See id., motion filed May 2, 2008, order filed May 9,
2008.
3. In Mirza v. Mukasey, 07-5298-ag, Gell’s brief was due by
February 25, 2008. See Mirza, 07-5298-ag, order filed Jan. 24,
2008. On March 24, 2008, the Court ordered Gell to show cause why
the case should not be dismissed based on her failure to file a
brief. See id., order filed Mar. 24, 2008. On that same day, Gell
requested that she given until April 1, 2008 to file the brief; she
was given until April 8, 2008. See id., motion and response filed
Mar. 26, 2008, order filed Apr. 1, 2008. However, Gell submitted
her brief and joint appendix one day late, on April 9, 2008, see
id., entry for Apr. 9, 2008, brief filed May 2, 2008 (cert. of
service, noting Apr. 9, 2008 service on Court), and the docket
indicates that the submission was defective because no special
appendix had been received, id., case manager notations at Apr. 10
11
and 17, 2008. The special appendix was not received until May 2,
2008, at which time the brief and appendices were filed. See id.,brief and appendices filed May 2, 2008.
4. In Azam v. Mukasey, 08-0344-ag, Gell’s brief was due by
April 21, 2008. See Azam, 08-0344-ag, order filed Mar. 20, 2008.
One day after that deadline, Gell requested an extension of time.
See id., motion filed Apr. 22, 2008 (cert. of service, noting Apr.
22, 2008 service on Court). The request was granted and her brief
was then due by May 21, 2008. See id., order filed Apr. 22, 2008.
Although the brief was received by the Clerk’s Office on May 21,
2008, Gell was informed that a special appendix was required. See
id., entries for May 21 and 22, 2008. The special appendix was
filed on May 22, 2008, at which time the brief and appendices were
filed. See id., entries for May 22, 2008.
5. In Kaur v. Mukasey, 08-3079-ag, Gell was ordered to show
cause why the case should not be dismissed based on Gell’s failure
to timely file Form C/A, with a response required by August 11,
2008. See Kaur, 08-3079-ag, order filed July 25, 2008. On August
11, 2008, Gell moved to withdraw the petition for review, which was
granted. See id., motion filed Aug. 11, 2008, order filed Aug. 12,
2008.
B. Defaults Occurring After November 3, 2008
Defaults also occurred after the November 3, 2008 session of
the Committee’s hearing in the following five cases.
12
1. In Tazu v. Holder, 09-2520-ag, after receiving two
extensions, Gell’s brief was due by December 23, 2009. See Tazu,
09-2520-ag, order filed Dec 17, 2009. However, Gell’s brief was
not submitted to the Court until January 6, 2010. See id., entry
for Jan. 6, 2010, brief filed Jan. 13, 2010 (cert. of service,
noting Jan. 6, 2010 service on Court).
2. In Asif v. Holder, 08-4870-ag, after receiving two
extensions, Gell’s brief was due by April 25, 2009. See Asif, 08-
4870-ag, order filed Apr. 1, 2009. However, she failed to comply
and, on May 7, 2009, she was ordered to show cause why the case
should not be dismissed based on her default, with a response
required by May 21, 2009. See id., order filed May 7, 2009. On
May 22, 2009, her brief was filed. See id., brief filed May 22,
2009. Although the certificate of service for the brief indicates
that the Court was personally served on May 21, 2009, see id., at
cert. of service, the docket shows receipt on May 22, 2009.
3. In Amekoudji v. Holder, 08-5078-ag, Gell was ordered to
show cause why the case should not be dismissed based on her
failure to timely file Form C/A, with a response required by
December 5, 2008. See Amekoudji, 08-5078-ag, order filed Nov. 13,
2008. Gell timely responded and filed the form, and her brief was
then due by March 23, 2009. See id., entries for Dec. 5, 2008. On
April 7, 2009, Gell was ordered to show cause why the case should
not be dismissed based on her failure to file her brief, with a
13
response required by April 21, 2009. See id., order filed Apr. 7,
2009. She responded on April 21, 2009, but was notified that she
had failed to file a necessary form. See id., entry for Apr. 27,
2009. On May 1, 2009, the Court again requested the missing form.
See id., entry for May 1, 2009. On May 5, 2009, Gell moved to have
the Court accept her late-filed brief and appendix. See id.,entries for May 5 and 7, 2009. The Court granted her motion and
the brief and appendices were filed as of May 12, 2009. See id.,entries for May 12, 2009. Three weeks later, however, Gell moved
to file an amended brief, due to “numerous typographical errors,
page cites errors, case page reference cites and other mistakes in
the [original] brief that resulted from an earlier version ...
being ... used as the final version.” Id., motion filed June 3,
2009. The Court granted the motion and the amended brief was
filed. See id., order and amended brief filed on June 5, 2009.
4. In Azad v. Holder, 09-2066-ag, Gell’s brief was due by
September 7, 2009. See Azad, 09-2066-ag, order filed July 7, 2009.
It was not submitted until September 8, 2009. See id., entries for
Sept. 8, 2009, brief filed Sept. 8, 2009 (cert. of service, noting
Sept. 8, 2008 service).
5. In Sarker v. Mukasey, 08-5190-ag, Gell was required to
file form C/A by November 3, 2008, but did not do so until November
6, 2008. See Sarker, 08-5190-ag, entries for Oct. 27 and Nov. 6,
2008. After receiving an extension of time, Gell’s brief was then
14
due by March 2, 2009. See id., order filed Feb. 4, 2009. However,
the brief was not submitted until March 5, 2009. See entries for
Mar. 5, 2009, brief filed Mar. 5, 2009 (cert. of service, noting
Mar. 4, 2009 service on Court).
Gell’s November 3 and December 11, 2008 testimony before the
Committee suggests a possible misunderstanding of what constitutes
a default and, therefore, a possible misunderstanding of her
obligations. The defaults for which Gell was responsible are
clearly reflected in this Court’s records. A “default” occurs when
an attorney or litigant fails to file a required document by the
deadline specified in an order or rule of this Court. An attorney
who cannot comply with such deadlines must seek – prior to the
deadline – an extension of time, a stay of proceedings, withdrawal
as counsel, withdrawal of the case, or guidance from the Court.
Requesting such relief after the deadline has passed is justified
only under unusual circumstances. The fact that, in a particular
case, dismissal did not result from a default, or the Court
permitted the filing of a document after the deadline, does not
mean that a default did not occur. While none of Gell’s cases have
been dismissed on default since March 2008, it is our hope that she
will make further improvements by reducing or eliminating the
number of defaults.4
4
Gell also has continued to default in the Third Circuit.
From October 2008 through September 2010, the Third Circuit has
dismissed four petitions for review due to Gell’s failure to file
15
III. Aggravating Factors
A. Prior Admonition
We agree with Gell that, since one of the First Department
admonitions concerned a default that was covered by this Court’s
August 2007 referral order, it should not be treated as both
misconduct directly redressable in this proceeding and an
independent aggravating factor. However, we disagree with her
arguments concerning other aggravating factors.
B. Pattern of Misconduct
While Gell may have been unaware that her default strategy was
improper, it nonetheless qualified as a pattern of misconduct.
Each default presented Gell with a new opportunity to assess the
reasonableness of her conduct, as evidence accumulated that her
default strategy, at the very least, imposed additional burdens on
briefs or required forms. See Sukhdev Singh v. Attorney General,
08-3380, dismissal order filed Nov. 06, 2008 (brief due by Oct.
22, 2008); Finda Chokpelleh v. Attorney General, 08-4284,
dismissal order filed Dec. 16, 2008(forms due by Nov. 28, 2008);
Harjeet Singh v. Attorney General, 09-2162, dismissal order filed
March 23, 2010 (brief due by Nov. 30, 2009); Shahzeb Mirza v.
Attorney General, 10-2892, dismissal order filed Sept. 22, 2010
(brief due by Sept. 7, 2010). These more recent defaults are in
addition to the earlier Third Circuit defaults that were noted in
the August 2007 referral order. Aug. 2007 order at 2 n.1. An
attorney’s performance in another circuit may be relevant to the
issue of whether the attorney will, in the future, be able to
comply with this Court’s rules and orders, even if we have no
intention of disciplining the attorney for his or her conduct in
that other circuit. In the present case, since Gell’s
performance in this Court has clearly improved, and since the
circumstances surrounding the recent Third Circuit defaults
currently are not known to us, we accord them no weight for
purposes of the present order.
16
the Court. However, we do agree that Gell’s sincerely-held belief
that her defaults were not improper suggests that less weight be
accorded to the fact that a pattern existed.
C. Client Vulnerability
Gell also argues that client vulnerability is not relevant to
the present case, since her default strategy actually helped her
clients and did not involve attorney overreaching,
misrepresentation, or fraud against the clients. However, the
vulnerability finding in this case was not linked to client
prejudice or attorney malfeasance. Additionally, there is no
dispute that many or all of the clients at issue were in this
country illegally and subject to imminent arrest and/or
deportation, that many had a limited ability to speak, read or
understand English, and that some were very transient, had medical
or psychological problems, or, as noted by Gell, did not “fully
comprehend the effects of their actions.” Letter dated May 12,
2008 from Gell to Committee, at 4, 6, 8; Oct. 23, 2008 Transcript
at 127, 165; Nov. 3, 2008 Transcript at 14, 20, 21, 27, 33, 37-39,
44; Dec. 3, 2008 Transcript at 203-04.
In short, the ability of Gell’s clients to understand and
oversee Gell’s legal work, and otherwise protect their own
interests, was significantly inferior to that of the ordinary
17
person.5 Thus, we agree with the Committee’s vulnerability
finding. On the other hand, we agree that there is no evidence
that Gell intentionally took advantage of, or that prejudice
clearly resulted from, the demonstrated vulnerability. For that
reason, this factor is accorded less weight.
IV. Disposition
Upon due consideration of the Committee’s report, the
underlying record, Gell’s submissions, and the additional appellate
proceedings described above, it is hereby ORDERED that Gell is
PUBLICLY REPRIMANDED for the misconduct described in the
5
See Flowers v. Board of Prof’l Responsibility, 314 S.W.3d
882, 899 (Tenn. 2010) (finding clients in deportation proceedings
were vulnerable under ABA Standard § 9.22(h), based on
difficulties writing and speaking English, the need to move often
and work long hours with changing schedules, limited financial
resources, lack of transportation or understanding of the broader
culture, and their need for assistance with a particularly
weighty matter); People v. Varallo, 61 P.3d 38, 42 (Colo. 2002)
(explaining that, for purposes of § 9.22(h), the attorney’s
“clients were exceptionally vulnerable, depending on [the
attorney] to protect their abilities to reside in the United
States”); see also Aris v. Mukasey, 517 F.3d 595, 600 (2d Cir.
2008) (“The importance of quality representation is especially
acute to immigrants, a vulnerable population who come to this
country searching for a better life, and who often arrive
unfamiliar with our language and culture, in economic deprivation
and in fear.”); United States v. Mendoza, 262 F.3d 957, 960-61
(9th Cir. 2001) (affirming district court’s finding that victims
were vulnerable, for purposes of United States Sentencing
Guidelines § 3A1.1, since “(1) they were in the United States
illegally, which made [the defendant] confident they would not
check on him or report him, (2) they were unfamiliar with United
States immigration law, (3) they were not well educated, (4) they
could not speak or read English, and (5) [the defendant] held
himself out as sophisticated and knowledgeable in INS
procedures”).
18
Committee’s report. We reject Gell’s request for a private
reprimand, based on the magnitude of her misconduct and, to a
lesser degree, her continued failure to abide by this Court’s
scheduling orders.
It is further ORDERED that Gell submit a status report, every
six months for the next two years, concerning her practice in all
federal courts in this circuit and all federal administrative
agencies whose action is subject to this Court’s review. The
reports must be made under penalties of perjury and submitted to
the Committee’s secretary within fourteen days after the end of
each six-month reporting period, the first reporting period to
commence with the filing date of this order. Each report must
describe each instance during the preceding six-month reporting
period in which (1) a submission required by a rule or order is not
filed or filed out of time; (2) an application is made, after a due
date has passed, for permission to make a late filing; or (3) a
case is dismissed due to her failure to comply with a rule or
order. We decline to modify these requirements in the manner
suggested by Gell, and note that each report must be filed even if
no defaults occur within the relevant reporting period.
Gell must disclose this order to all clients in cases
currently pending in this Court and to all courts and bars of which
she is currently a member, and as required by any bar or court rule
or order. Gell also must, within fourteen days of the filing of
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this order, file an affidavit with this Court confirming that she
has complied with the preceding disclosure requirement.
Furthermore, the Clerk of Court is directed to release this order
to the public by posting it on this Court’s web site and providing
copies to members of the public in the same manner as all other
unpublished decisions of this Court, and to serve a copy on Gell,
this Court’s Committee on Admissions and Grievances, the attorney
disciplinary committee for the New York State Appellate Division,
First Department, and all other courts and jurisdictions to which
this Court distributes disciplinary decisions in the ordinary
course.6
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
By: Michael Zachary
Counsel to the Grievance Panel
6
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 remain confidential to the extent circumstances
allow, we leave to the discretion of those disciplinary
authorities the decision of whether specific documents, or
portions of documents, must be made available to any person or
the public.
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