In re Steven A. Mundie ( 2011 )

09-90016-am
In re Steven A. Mundie
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL
RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING
A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER") .
A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
At a stated ter.m of the United States Court of Appeals for
the Second Circuit, held at the Daniel Patrick Moynihan United
States Courthouse, 500 Pearl Street, in the City of New York, on
the 20 th day of June, two thousand eleven.
PRESENT:
Jose A. Cabranes,
Robert D. Sack,
Richard C. Wesley,
Circuit Judges.
09-90016-am
In re Steven A. Mundie,
Attorney. ORDER OF
GRIEVANCE PANEL
FOR STEVEN A. MUNDIE: 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 STEVEN A. MUNDIE
is PUBLICLY REPRIMANDED for the misconduct described in the
Committee's report.
I. Summary of Proceedings
By order filed in March 2009, this Court referred Steven A.
Mundie to the Committee for investigation of the matters
described in that order and preparation of a report on whether he
should be subject to disciplinary or other corrective measures.
During the Committee's proceedings, Mundie had the opportunity to
address the matters discussed in the Court's referral order and
to testify under oath at a hearing held in March 2010. Mundie
was represented during the Committee's proceedings by Richard M.
Maltz, Esq. Presiding over the hearing were Committee members
Deirdre M. Daly, Esq., and Terrence M. Connors, Esq., and
Committee chair Mary Jo White, Esq. In October 2010, the
Committee filed with the Court the record of the Committee's
proceedings and its report and recommendations. Thereafter, the
Court provided Mundie with a copy of the Committee's report, and
Mundie responded.
In its report, the Committee concluded that there was clear
and convincing evidence that Mundie had engaged in conduct
warranting the imposition of discipline. Report at 10.
Specifically, the Committee found that: (1) Mundie's brief in Yi
Mei Li v. Mukasey, 06-3422-ag, contained a number of defects and
referenced irrelevant facts and issues as a result of Mundie
having incorporated portions of a brief from a different case
2
without making necessary changes; and (2) Mundie's failure to
comply with this Court's scheduling orders had resulted the
dismissal of thirty-eight cases based on his default. Id. at 4­
9. After finding various aggravating and mitigating factors, id.
at 10, the Committee recommended that Mundie be publicly
reprimanded, and required to attend continuing legal education
("CLE") asses on law office management, and to comply with
certain reporting requirements, id. at 10. In his response to
the Committee's report, Mundie, inter alia, accepted the
Committee's findings, but requested that this Court issue a
private, rather than public, reprimand. Response at 1.
II. Disposition
Upon due consideration of t Committee's report, the
underlying record, and Mundie's submissions, it is hereby ORDERED
that Mundie is PUBLICLY REPRIMANDED the misconduct described
in the Committee's report. We reject Mundie's request for a
ivate reprimand. Although we acknowledge the significant
mitigating factors Mundie referenced in both the Committee's
proceedings and his response to the Committee's report, we find
that the Committee's report accorded those factors t
appropr weight.
It is furt ORDERED that Mundie is DIRECTED to:
(a) complete, within six months of the filing date of
this order, six hours of CLE on law office management,
which must be taken in addition to the regular CLE
requirements applicable to all attorneys onging to
3
New York bar. Mundie must submit information about
proposed CLE courses direct to the Committee's
secretary, who will inform him whether the Committee
agrees that the proposed courses satisfy his
obli ion. Mundie must certify his completion of
required CLE programs by sworn statement filed with
both this panel and the Committee's secretary within
seven days after the end of the six-month od. The
Committee may modify deadlines, ther on motion
or sua sponte.
(b) comply with the reporting requirements described on
page 10 of the Committee's report. As stated in the
Committee's report, if a required by this order
"is not timely filed or reveals deficiencies not
justi by exigent rcumstances, Committee may
recommend the imposition of additional discipline,
including but not limited to su ion from the Second
Circuit, without hearing further testimony." Report at
10.
The text of this panel's March 2009 order and the
Committee's report are appended to, and deemed part of, the
present order r the following disclosure purposes. Mundie must
disclose this order to all courts and bars of which he is
currently a member, and as required by any bar or court rule or
order. Mundie also must, within fourteen days of the filing of
this order, file an affidavit with this Court confirming that he
has complied with preceding disclosure requirement.
Furthermore, the Clerk of Court is directed to release this order
to the public by posting 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 Mundie, this Court's Committee on Admissions and
Grievances, the attorney disciplinary committee the New York
4
State Appellate Division, First Department, and all other courts
and jurisdictions to which this Court distributes disciplinary
decisions ordinary course. 1
FOR THE COURT:
Catherine O'Hagan Wol ,Clerk
By: Michael Za ry
Counsel to Grievance Panel
I Counsel to this panel is authorized to , upon
request, documents from the record of this to other
attorney disc inary authorities. While we st that all
such documents remain confidential to the extent circumstances
allow, we to the discretion of those di inary
authorit s decision of whether specific documents, or
portions of documents, must be made available to person or
the public.
5
APPENDIX 1
Text of March 2009 order
For the reasons that follow, Steven A. Mundie is refe to
this Court's Committee on Admissions and Grievances for
stigation of matters described below and preparation a
report on whether should be subject to disciplinary or other
corrective measures. See Second Circuit Local Rule 46(h). We
express no opinion re as to an appropriate disposition. The
Committee may, of course, in the first instance, determine the
appropriate scope its investigation.
Mundie was re to this panel a s filing of a
brief in Yi Mei v. Mukasey, No. 06-3422 , that (a) contained
re rences to evidence not found in the administrative record;
(b) misstated the ioner's name and , as well as the
issues to be raised in this Court; and (c) contained extens
portions apparent from a brief red by another
attorney concerning a different litigant. Compare Yi Mei Li v.
Mukasey, No. 06-3422 , brief filed by Mundie on Dec. 18, 2006,
with Tian-Yong Chen v. BCIS, No. 00-4136-ag, 2003 WL 24542983,
brief filed by Theodore Cox on July 21, 2003. Regarding the
copying, pages 12 to 18 of Mundie's brief in Yi Mei Li - the bulk
of the argument sect are nearly identical to pages *13 to
*19 of the petitioner's brief in Tian-Yong As a result,
some of the facts found in the Yi Mei Li brief (e.g., that the
tioner is a member an unsanctioned church in China and
that she established own church), and some sources cited in
the brief (e.g., the 1999 Department of State report on China
quoted on pages 15 to 16) are not part of record.
Additionally, point headings 11(8) and (C) the table of
contents of Mundie's brief refer to a claim based on a Chinese
population control policy, although Mundie's ient had waived
that claim at her hearing before the immi on judge and the
brief does not otherwise mention the claim, and heading II re s
to a "Ms. Huang," although that name was corrected in the point
heading in the body of the brief. The apparent copying raises
the issues of whether Mundie engaged in sm, whether he
olated his duties to s client and the Court by presenting
facts and argument that did not bear on the issues in his case,
and whether he charged his client fees for services which he did
not render.1
lWe have not examined briefs for evidence of copying, and
to the discretion of the Committee the decision of whether
such an examination is warranted.
6
review of Mundie's cases in this Court has revealed
that, of the approximately 100 cases for which Mundie is listed as
the attorney of record, at least 39 have been dismiss due to his
failure to comply with this Court's scheduling S.2 See
Second Circuit cases docketed under 02-4450, 03 4411, 03-4739, 03­
40091, 03-40110, 03 40236 (default dismissal later vacated at
counsel's request and stipulation to withdraw 1 ),03 40373, 03­
40433 (later reinstated on motion and remanded to agency), 03­
40580, 03 40709, 03-40809, 03-40820, 03-40926, 03 40956, 03-40983,
03 41006, 03-41213, 04-0573, 04-0893, 04-0903, 04-1168, 04-1765,
04 539,04 3669,04-4728,05-0420 (consol with 05-2809),05­
1037, 05 1050 (consolidated with 05-1094), 05 705, 05 4215, 05­
5378, 05-5953, 05-6188, 06-0021, 06-2849, 07-0697, 08-1838
( with 08-1347), 08-2449, 08-3052. Although Mundie
and was granted extensions of t some of the
preceding faulted cases, the final briefing ines in all of
those cases passed without Mundie requesting an extension of time
(or an tional extension of time), a stay of proceedings, leave
to withdraw as counsel, or leave to ly dismiss the
pet review.
tionally, in 15 other cases, Mundie his briefs, or
st ions to withdraw the cases, only a deadlines for
efs had passed and this Court had is orders to show
cause why cases should not be dismissed ba on his defaults.
See Second Circuit cases docketed under 05- 90, 07 3993, 07-4092,
07-4183, 07-4269, 07-4363, 07-4499, 07-4502, 07-4631, 07-5674
(consolidated with 07-5676), 07-5675, 07 5785, 07-5786, 08-0276,
08-0443. However, even after issuance of the rs to show cause,
Mundie iled to fully comply with the deadl s set forth in a
number of those orders. See Second Circuit cases docketed under
05-6290 (stipulation to withdraw petition fil a r expiration of
t to respond to order), 07-3993 (brief response to order
one day past deadline; motion to Ie granted), 07-4183
f fi within deadline: joint appendix filed late, after
by Court), 07-4363 (same), 07-4499 (joint appendix
within deadline; brief filed one day late), 07-4502
(same), 07-4631 (brief filed within deadline; response to order
1 r), 07-5674 (joint appendix within deadline; brief
and motion to file late received one week later), 07-5675 (same,
but ief received one month after ).
nally, in eight other cases, Mundie led stipulations to
2The number given for defaulted cases, 39, accounts only for lead
cases. Consolidated cases that have not designated as lead
cases are not included in that total.
7
withdraw the cases with prejudice only s briefing deadlines
had passed and, one case, in response to the Government's
request for entry of default. See Second rcuit cases docketed
under 03-4646, 03 40372, 03-41208, 04 2118, 05 355, 07-1896, 08
0724, 08-0916.
Upon due cons ration of the matters scribed above, it is
hereby ORDERED that Steven A. Mundie is re red to this Court's
Committee on Admissions and Grievances investigation and
preparation a report, pursuant to Federal Rule of Appellate
Procedure 46, this Court's Local Rule 46(h}, the Rules of the
Committee on Admissions and Grievances.
[Remainder of text omitted]
FOR THE COURT:
Catherine 0' Wol , Clerk
By: /s
Michael ry
Supervisory Sta Attorney
Counsel to t Grievance Panel
8
APPENDIX 2
October 2010 Report of the Committee
on Admissions and Grievances
nEPORT & RECOMMENDATION
In re Steven A. Mundie, 09-90016-am
1. Introduction
By Order dated March 3, 2009, the United States Court of Appeals for the Second Circuit
("the Court") referred Steven Mundie to this Committee for investigation of his conduct before
the Court and for preparation of a report on whether he should be subject to di.sciplinary or other
corrective measures. At the request of Mr. Mundie and his counsel, the dates for the hearing and
post-hearing responses were adjourned on several occasions.
The following constitutes the Committee's report and recommendation to impose
discipline on Mundie. The Committee recommends that Mundie be publicly reprimanded, that
he be required to complete additional CLE in law office management, and that he be subject to
the reporting requirements set out below. .
II. This Disciplinary Proceeding
The Committee gave Mundie notice of the Court's referral by letter dat~d April 9,2009.
After receiving two extensions of time to respond, Mundie filed a Declaration dated July 10,
2009 in response to the Committee's notice, through his counsel, William Silverman of
Greenberg Taurig LLP and Richard Maltz of Frankfurt, Kurnit, Klein & Selz, PC.
The Court's Referra·1 Order also ordered Mundie to show cause why he should not be
subjec~ tointerim~",~pId. ~ 6. He is also admitted in
Pennsylvania, the Southern and Eastern Districts of New York, and the First, Third, Fourth,
Fifth, Sixth, Seventh, Tenth and Eleventh Circuits. Id. After law school, Mundie spent three
years working at Amnesty International, on death penalty issues. Mundie then worked briefly as
an associate for a solo practitioner, be~ore opening his own firm in 1999. His practice focused
on asylum work, which he describes as an outgrowth of his time at Amnesty. Id. '17. In 2004,
Mundie formed a partnership with Jeffrey Baron, another immigration attorney, and in 2007
another partner, Scott Shelkin, joined the firm to handle matrimonial, real estate and bankruptcy
work. Dec!. ~ 8. Mundie continues to specialize in asylum ma~ters, as well as some general
immigration work. Id.Mundie has never been sanctioned by any court. He has been the subject of two
complaints in the Departmental Disciplinary Committee, First Judicial Department, and an
inquiry by the Executive Office for Immigration Review, all of which were dismissed without
fmdings of misconduct.
I By letter dated A\lgust 2,2010, Mundie sought the Committee's approva.l for hisresumption of his practice before
the Second Circuit, in order to continue the representation of a client he had represented before the immigration
authorities. The Committee informed Mundie that it had no objections.
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Mundie has been involved in pro bono activities, including several years of work with the
New York City Bar's Refugee Assistance Program. In 1998 the City Bar recognized him for
"outstanding service" for this work.
B. The Court's Referral Order
Mundie was referred to this Committee following the Court's review of his brief for the
petitioner in Yi Mei Li v. Mukasey, 06·3422 ("the Li Brief'). The Court's order alleges that
Mundie's brief contained numerous defects, including misstatements of the petitioner's name and
the facts of the case. Moreover, the order observes that an extensive and significant portion of
the Li Briefs legal argument, relating to Yi Mei U's claims of religious persecution, appeared to
have been copied verbatim from a brief filed by another attorney, Theodore Cox, in Tian-Yong
Chen v. BCIS, 00-4 J36 ("the Chen Brief').
Additionally, the Court's records show that Mundie has defaulted on scheduling orders in
numerous cases. The Court's referral order recites 39 cases, between 2002 and 2008, out of the
100 cases for which Mundie is attorney of record, that have been dismissed for failure to comply
with scheduling orders. In another 23 cases, Mundie filed briefs or motions to withdraw only
after the deadlines for his briefs and passed - and often only after the Court had issued orders to
show cause why the cases should not be dismissed.
IV. Legal Standard
Under the Rules of this Committee,
An attorney may be subject to discipline or other corrective
measures for any act or omission that violates the rules of
professional conduct or responsibility of the state or other
jurisdiction where the attorney maintains his or her principal office,
or the rules of professional conduct of any other state or
jurisdiction governing the attorney's conduct. An attorney may
also be subject to discipline or other corrective measures for any
failure to comply with a Federal Rule of Appellate Procedure, a
Local Rule of the Court, an order or other instruction of the Court,
or a rule of professional conduct or responsibility of the Court, or
any other conduct unbecoming a member of the bar.
Rules of the Committee on Admissions and Grievances, Rule 4.
"A court of appeals may discipline an attorney who practices before it for conduct
. unbecoming a member of the bar or for failure to comply with any court rule." Fed. R. App. P.
46(c). "Conduct unbecoming a member of the bar"may include any conduct "contrary to
professiona1 standards that show[s] an unfitness to discharge continuing obligations to clients or
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23246194\11
courts, or conduct inimical to the administration ofjustice!' In re Snyder, 472 U.S. 634, 645
(1985). For "[m]ore specific guidance," we may look to "case law, applicable court rules, and
'the lore ofthe profession,' as embodied in codes of professional conduct." lei. at 646 n.7.
Courts have consistently treated neglect of client matters and, ineffective or incompetent
representation as sanctionable conduct. See. e.g., Gadda v. Ashcroft, 377 F.3d 934, 940 (9th Cir.
2004), Amnesty Am. v. Town ofW. Hartford. 361 F.3d 113, 133 (2d Cir. 2004), Malter of
Rabinowitz. 596 N.Y.S.2d 398, 402 (N.Y. App. Div. 1993), United States v. Song, 902 F.2d 609(7th Cir. 1990), Matter ofKraft, 543 N.Y.S.2d 449 (N.Y. App. Div. 1989), In re Bitheney, 486
F.2d 319 (1 st Cir. 1973). Such conduct is also sanctionable under the applicable professional
rules and standards. The American Bar Association's Standards for Imposing Lawyer Sanctions
call for a range of sanctions from reprimand to disbarment for various forms of "lack of
diligence" and "lack of competence." ABA Standards §§ 4.4,4.5. The Disciplinary Rules of
New York's Lawyer's Code ofProfessiona1 Responsibility require that "[a] lawyer shall not ...
[n]eglect a legal matter entrusted to the lawyer," D.R. 6-101 (A)(3); 22 N.Y.C.R.R. §
1200.30(A)(3) (2008); see also N.Y. Rules ofProrl Conduct R. 1.3 (b) (effective Apr. 1,2009)
(hereinafter "N.Y.R."). In addition, the Code's Ethical Canons require that the lawyer should
represent his or her client "zealously," Canon 7-1, and that he or she Hbe punctual in fulfilling all
professional commitments," Canon 7-38.
"Any finding that an attorney has engaged in misconduct or is otherwise subject to
corrective measures must be supported by clear and convincing evidence." Rules of the
Committee on Admissions and Grievances, Rule 7(h). Once misconduct has been established, in
determining the sanction to be imposed, we should generally consider: (a) the duty violated; (b)
the lawyer's mental state; (c) the actual or potential injury caused by the lawyer'smisconduct;
and (d) the existence of aggravating or mitigating factors. See ABA Standards § 3.0. This
Committee may recommend to the Court's Grievance Panel a range of sanctions, including
disbarment, suspension, public or private reprimand, monetary sanction, removal from pro bono
or Criminal Justice Act panels, referral to other disciplinary bodies, supervision by a special
master, counseling or treatment, or "such other disciplinary or corrective measures as the
circumstances may warrant." Rules of the Committee on Admissions and Grievances, Rule 6.
V. The Committee's Findings
A. The Li BrIef
.
Mundie filed the Li Brief on December 18, 2006. His client sought asylum based on a
claim that she feared persecution for her open practice of Christianity if returned to China.
Mundie's brief contains numerous defects - notably, the table of contents misstates the
. petitioner'S name, the brief confuses gender pronoWls throughout, and the table of contents and a
heading in the body of the brief incorrectly state that the Immigration Judge ruled against Li
(although this error is not repeated in the text ofthe brief). However, the main substantive
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problems with the brief appear in the section addressing the central legal issue in the case ­
whether Li had a well-founded fear of religious persecution if she were to return to China.·
Mundie concedes that the "religious persecution" section of the legal argument in Yi Mei
Li was based on Theodore Cox's briefin Tian-Yong Chen. Decl. ~ 11-14. Mundie testified that
he had had a long and close working relationsHip with Cox - in fact, Mundie had been of counsel
to Cox, and had "tried perhaps dozens of cases for him." Tr. at 22. Mundie testified that he had
been "tinkering" with his own brief, but "it wasn't really coming together with respect to this
particular religious issue." Tr. at 23-24. Knowing that Cox "did a lot of this work," Mundie
approached Cox to ask if he could "share a brief with me that I could then use as a basis for
drafting a briefin a similar matter." Tr. at 24. Mundie also considered it "efficient and cost
effective to use a prior brief as a modeL" Decl. ~ 14. Mundie also used the Chen Briefs
argument regarding religious persecution as a model for a number of his cases in addition to Yi
Mel Li. Tr. at 70.
Mundie testified that he himself drafted the Li Brief's Statement of Facts and other
sections ofthe argument, and the Committee's review of the brief bears that claim out. Decl. ~
11, 14. However, Mundie concedes that he was "careless ... in editing" the religious
persecution section. Decl. ~ 14.
The religious persecution argument in the Li Brief is not an identical copy ofthe relevant
section from the Chen Brief. It is clear that Mundie made some necessary revisions to tailor the
language ofthe Chen Brief to the facts of Yi Mei Li - for instance, where the Chen Briefs refers
to "the Roman Catholic Church," the Li Brief refers to "Christianity," and replaces the Chen
Briefs references to specifically Catholic beliefs. However, Mundie also failed in a number of
respects to tailor the language of the Chen Brief to Yi Me; Li's facts - for instance, the Li Brief
contains references to the founding of a non-government church in China, which were true of
, Tian-Y ong Chen but not of Yi Mei Li.
Most significantly, Mundie failed to fully edit the language of the Chen Brief to address
the most significant distinction between the two cases. To make out a claim for asylum on the
basis of a well-founded fear of future persecutioI:1 on religious grounds, the petitioners were
required to show, inter.alia, that theChinesegovemment (or other potential persecutors) was
aware of the petitioners' beliefs, or could become aware of them. See Matter ofMogharrabi, 19
I. & N. Dec. 439 (BIA 1987). In Tlan- Yong Chen, the petitioner alleged that the Chinese
government was already aware of his Christian beliefs. He alleged that he had practiced his
beliefs openly in China prior to his arrival in the United States, and that he had already been
persecuted for them. By contrast, the petitioner in Yi Mei Li had not converted to Christianity
until after her arrival in the United States: it was therefore impossible to argue that the Chinese
authorities were already aware of her beliefs, and vital to show that they could become aware of
her beliefs if she were returned.
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It is clear that Mundie made some edits to address this issue: notably, he changed a key
section in the Chen Brief, "China is aware that Mr. Chen possesses the prohibited belief," to
"China can easily become aware that Ms. Li possesses the prohibited belief." (emphasis added).
However. the section of the Li Brief that follows this heading is copied almost directly from the
Chen Brief, and has not been tailored to the particular facts of Yi Me; Li. In words taken almost
verbatim from the Chen Brief, the Li Brief states, inaccurately. that "The Chinese government is
unquestionably aware of that Ms. Li actively participates in the prohibited and un sanctioned
church ...l
Despite these defects, the Li Brief does contains multiple references to the petitioner's
intention to practice her religion openly if returned to China, which could support an inference
that the authorities could become aware of her beliefs. See, e.g., Li Brief at 15 ("The petitioner
has established that she is eligible for asylum on the basis of having been converted to
Christianity, a religion she intends to practice openly even ifshe is forced to return to China.");
Li Brief at 16 ("She also testified that, because of these important aspects of her faith, she would
practice her religion openly even if she were forced to return to China.").
Mundie testified that he did not recall the circumstances of the filing ofthe Li Brief. He
had examined his records and his computer files in an attempt to confirm what had happened, but
had been unable to do so. Tr. at 27. He speculated that U[nt would seem to me that maybe I
didn't save a final version, so a version that was not quite ready for printing got printed instead."
Id.At the Committee's request, Mundie submitted copies of every brief he was able to
identifY from his records as having been based in part on the Chen Briers argument regarding
religious persecution. 3 Mundie provided four such briefs: Chao Jin Lin, 06·4094; Cheng Hua
2 In full, the relevant section of the Chen Briefreads:
The second requirement of Mogho"obi has been satisfied. The Chinese
government is unquestionably aware of that Mr. Chen actively participates in the
prohibited and unsanctioned church. In fact he was detained, interrogated and
beaten for his participation. The government sought to arrest him yet again,
which was the reason he fled China. This conclusively establishes the
Government's awareness of Mr. Chen's beliefs.
The relevant section ofthe Li Briefreads:
The second requirement of Mogharrabi has been satisfied. The Chinese
government is unquestionably aware of that Ms. Li actively participates in the
prohibited and unsanctioned church. This conclusively establishes the
Government's awareness of Ms. Li's beliefs.
3 Mundie originally submitted six briefs in his response to the <;ommittee's request. See Mundie's Letter dated
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Zhen, 07-5373; Zheng En Yu, 07-1246; and Wei Xing Lin. 05-2706. The Committee has reviewed
those briefs. In each case, it appears that Mundie properly tailored the Chen Briefs language to
the facts ofthe case - editing it very substantially where necessary. The briefs are generally well­
drafted. Additionally, the Committee has reviewed a sample of Mundie's other briefs, including
his briefs in Yuen Jin, 05-5485; Hotaj, 03·40433; Gao, 07-4269; and NugdaIla, 06-2849. These
briefs also appear generally sound.
The Committee finds Mundie's explanation of the circumstances surrounding the filing of
the LI Brief credible. In light of Mundie's testimony and the evidence of his other briefs, the
Committee finds that Mundie's filing of the defective Li Brief was an inadvertent error, albeit a
careless one. The Committee further finds that it was an isolated incident, and not representative
of Mundie's usual practice.
The Court's Referral Order asks the Committee to consider whether Mundie engaged in
plagiarism. Since it appears that Mundie intended to adapt the Chen Brief to the facts of his case,
the Committee finds that his use of the Chen Briefas an initial model does not amount to
plagiarism.
The Court's Referral Order also asks the Committee to consider whether Mundie charged
his client for services not rendered. The Committee finds that Mundie did not intentionally
charge his client for services not rendered; rather, it appears that he intended to properly revise
the language of the Chen Brief to reflect the facts of her case, though due to a careless filing error
failed to do so. Moreover, Mundie ha~ taken steps to contact his client in an attempt to refund
her fees. Tr. at 73.
At Mundie's hearing, the Committee also noted that the Li Brief did not address another
important issue. The BIA decision under review was based in part on the BIA's finding of an
inconsistency in the petitioner's testimony. The Li Brief does not address that finding. Mundie
testified that he had made a conscious tactical decision not to focus on that issue, but to
concentrate instead on what he argued was the procedural irregularity of the BlA's decision. The
Committee finds Mundie's explanation credible, and cannot second-guess his tactical decision.
Mundie further testified that he had become aware of the defective filing of the Li Brief
after it was filed, but before the Court's decision. Tr. at 29. He explained that he decided not" to
take corrective action - such as attempting to file an amended brief - because the brief presented
the relevant facts. ld. Again, the Committee finds Mundie's testimony on this rssue credible.
. His decision not to seek to correct the brief may be questioned and criticized. As noted above,
March 31,2010. Of these six briefs, one was the MBrief itself. submitted in error. Another was a brief in Baa Fa
Yang. 03-4644. The Baa Fa Yang brief appeared to have been copied almost verbatim from the Chen Brief,
including even the Statement of Facts. On further investigation, Mundie's counsel clarified that that briefwas a
preliminary dl11it, and had never been filed; the brief that was actually filed in that case, by Mundie's partner Jeffrey
Barron, bore no resemblance to the Chen Brief.
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however, despite its clear defects. the Li Brief did contain statements addressing the petitioner's
intention to practice her religion openly ifreturned to China.
Finally. the Committee notes that it is very unlikely that the defects in the Li Brief caused
any prejudice to Mundie's client. in light of the Court's resolution of the matter. Significantly.
the Court found that Li had been unable to show that Christians were subject to a nationwide
pattern of persecution in China - a sufficient ground to deny the petition, and one which was
unaffected by the defects in the Li Brief.
B. Failure to Comply with Scheduling Orders
Of approximately 100 cases for which Mundie was listed as attorney of record filed
between 2002 and 2008, thirty-eight were dismissed for default on scheduling orders.4 The
majority of these defaults took place between 2004 and 2006. One default occurred in 2007, and
three in 200S.
Mundie testified that in the majority of these cases, his default was intentional. The
Committee finds Mundie's testimony on this issue credible. Mundie explained that it was his
usual practice to file petitions for review before he had been able to obtain the administrative
record, in order to ensure that the filing was timely and that his clients obtained a stay of
deportation. Decl.' 19-20, Tr. at 32-34. On obtaining the administrative record, "in many
instances" he discovered that his clients had no colorable claim, Dec!., 19. In such cases, he
believed it was acceptable not to withdraw, but to wait for the petition to be dismissed. Dec!.'~
23-24. He also believed that this strategy was in the best interests of his clients:
I felt that it was always best to kind of stay in the loop. So the idea
of withdrawing as counsel and sort ofleaving the client out there ­
often they move around. If there was any sort of mailing, it
wouldn't reach them. So that didn't seem to be the right thing, It
was better to bein the case and then I would at least be able to
have some handle on it.
Tr, at 36-37.
Mundie testified that he discussed this strategy with'his clients, and obtained their
consent. Tr. at 37, In a number of cases, he continued to act on his clients' behalf after the
defaults, reopening cases before the immigration authorities on the basis of c~anged personal
circumstances. Tr. at 39-40.
Mundie aJso conceded that there was "dysfunction" within his Jaw office and a heavy
case load contributed to the defaults. Tr. at 83-84. In at least one case, Nugdalla v. Gonzales, No.
06-2849-ag, Mundie concedes that his default was an unintentional oversight .. In this case,
4 The Court's Referral Order lists thirty-nille·defaults. In one of these. Lin v. Ashcroft. 03-40580; it app.earsfrom the
Court's records that Mundie filed a timely request for an extension. which was not ruled on.
·S
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Mundie sought to take corrective measures, moving to reinstate the petition. He conceded in his
rnotion for reinstaternent that the default was due to his own oversight. See Motion for
Acceptance of Petitioner's Brief/Joint Appendix and Reinstate the Petition[J for Review,
Nugdalla v. Gonzales, 06-2849-ag (May 8, 2007). Mundie testified that he made that concession
partly in the hope that it might support an argument for ineffective assistance of counsel by a
subsequent attorney. Mundie's motion for reinstatement was denied, but the case was
subsequently reopened on motion to the agency. Tr. at 88. On August II, 20 I 0, the Immigration
Judge granted Nugdulla asylum. See Mundie's Letter to the Committee, dated August 16,2010.
In fifteen additional cases, Mundie filed his briefs, or stipulations to withdraw the cases,
only after the deadlines for his briefs had passed and the Court had issued orders to show cause
why the cases should not be dismissed based on his defaults. In nine of those cases, Mundie
failed to comply with the new deadlines set by the Court's orders to show cause. The great
majority of these failures to comply with scheduling orders occurred in 2008. Mundie concedes
that these failures were due to his inability to manage his large caseload. Decl. '125. Tr. at 43­
44. In addition, in a number of cases between 2004 and 2008 Mundie filed stipulations to
withdraw only after the briefing deadlines had passed; this conduct too appears to reflect
Mundie's difficulty managing his caseload.
C. Practicing in the Second Circuit Prior to Admission
Mundie was adrnitted to the Second Circuit on July 16th , 2004. Prior to his admission, he
filed six petitions - Yang v. INS, 02-4450,:,ag. Djurasevic v. INS, 03-4411 , Alabede v. Ashcroft,
03-4739, Zhen v. Ashcroft, 03-40091, Yang v. Ashcroft. 03-40110, and Gojcaj v. Ashcroft, 03- .
4646. Mundie testified that he believed that the Court's rules pennitted an attorney to tile a
petition, though not to file a brief or appear at oral argument, prior to admission. The Committee
finds Mundie'S testimony credible, and his confusion excusable. See In re Yan Wang. No. 08­
9039-am, 2010 U.S. App. LEXIS 14699 (July 19,2010).
D. Aggravating and Mitigating Factors
There are aggravating factors present here.· While the defects in the filing of Mundie's Li
Brief appear to be an isolated issue, his failures to comply with scheduling orders are a pattern
stretching over a period of many years. See ABA Standards § 9.22(c). Additionally, he is an
experienced practitioner who should have recognized and addressed his problems sooner than he
did. See ABA Standards § 9.22(i). .
There are also mitigating factors. Mundie was cooperative with the Committee's
proceedings. See ABA Standards § 9.32(e). He showed sincere remorse, and an intention to
remedy these problerns in the future. See ABA Standards § 9.32(e), (I). He has reduced his
caseload to what he believes to be a manageable leveJ, and he has instituted a new calendaring
system. Tr. at 50-52. He will have each of his briefs proofread by another person before filing to
avoid a repetition of the defective filing of the Li Brief. Tr. at 59. He has taken steps to contact
9
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Yi Mei Li in an attempt to refund her fees. Tr. at 73. His conduct was not the result of a
dishonest or selfish motive. See ABA Standards § 9.32(b).
Mundie also has a record of pro bono activity, and it appears from the character letters
submitted on his behalf that he is well-regarded in the legal community. See ABA Standards §
9.32(g). He has no record of prior discipline. See ABA Standards § 9.32(a).
VI. Recommendation
Mundie's conduct warrants discipline. The evidence shows a long-running pattern of
failures to comply with scheduling orders; and while Mundie's conduct with respect to the Li
Brief was isolated and inadvertent, his failure to take proper care in that case had the potential to
prejudice his client. The Committee finds, by clear and convincing evidence, violations of Fed.
R. App. P. 46(c), D.R 6-tOl(AX3), and N.Y.R. 1.3(b).
Under all of the circwnstances, the Committee recommends that MUndie be publicly
reprimanded. In addition, he should be required to complete no fewer than six hours of CLE in
law office management, from a CLE provider accredited by the bar ofNew York, in addition to
the required hours ofCLE.
Finally, Mundie should be required, in connection with his practice in any federal court in
the Second Circuit or in any federal administrative agency whose action is subject to the Second
Circuit'S review, to submit to the Committee sworn statements identifYing under oath each and
every instance during each of the four reporting periods described below in which: (1) a
submission is not filed or is filed out of time; or (2) an application is made for pennission to .
make a late filing only after the due date has passed. It is expected that these reports will show .
no such instances absent exigent circumstance, which circumstances should be attested to under
oath in the respective report.
In the event that a report is not timely filed or reveals deficiencies not justified by exigent
circumstance, the Committee may recommend the imposition of additional discipline, including
but not limited to further suspension from the Second Circuit, without hearing further testimony.
The following reporting periods and deadlines shaH be observed. The report for each
reporting period shall be mailed to the Committee Secretary within ten (10) days ofthe end of
that reporting period. The first reporting period shall commence 10 days after the Committee's
. recommendation is mailed to Mundie and shall end six months after the Second Circuit issues its
order of disposition in this matter. Each of the three subsequent reporting periods shall be for a
reporting period commencing at the end ofthe prior reporting and ending six. months later. A
total of four reports shall be prepared and mailed to the Committee Secretary.
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