In re DeMarco

09-90045-am
In re DeMarco
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2013
(Decided: October 4, 2013)
Docket No. 09-90045-am
______________________________________________________
In re Mario DeMarco,
Attorney.
______________________________________________________
Before:
Cabranes, Sack, and Wesley, Circuit Judges.
_____________________
This Court’s Committee on Admissions and Grievances has recommended
that Mario DeMarco, an attorney admitted to the bar of this Court, be disciplined.
We adopt the Committee’s recommendations and findings of fact, with certain
exceptions, and publicly reprimand DeMarco for his misconduct in this Court.
_____________________
For Mario DeMarco: Mario DeMarco, Esq.,
Port Chester, New York.
PER CURIAM:
Pursuant to this Court’s Local Rule 46.2, it is hereby ORDERED,
ADJUDGED, AND DECREED that Mario DeMarco is PUBLICLY
REPRIMANDED for the misconduct described in the appended report of this
Court’s Committee on Admissions and Grievances (“the Committee”), except as
discussed below.
I. Summary of Proceedings
By order filed in April 2009, this Court referred DeMarco 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, DeMarco had the opportunity
to address the Court’s referral order and to testify under oath at hearings held in
September 2009, April 2010, and June 2011. DeMarco proceeded pro se before the
Committee.
Although a draft Committee report and recommendation was prepared
after the second hearing, a dissenting Committee member requested that
additional evidence be obtained and, as a result, the Committee reopened the
2
proceeding to hear additional testimony from DeMarco and from a new witness.
See Committee Report at 2. After that third hearing, a new draft Committee
report was prepared. However, one Committee member dissented in part from
the Committee report and recommendation in a separate “minority report.” The
minority report caused the Committee to meet in plenary session and, after
discussing the issues raised by the minority report, the full Committee adopted
the majority’s report and recommendation (the “Committee Report”) by a vote of
8 to 1 with one member absent. See Addendum to Report.
In January 2012, the Committee filed with the Court the record of the
Committee’s proceedings, the Committee Report, the minority report, and the
addendum to the Committee Report. Thereafter, the Court provided DeMarco
with a copy of the reports, and DeMarco responded.
In the Committee Report, the Committee concluded that there was clear
and convincing evidence that DeMarco had engaged in misconduct warranting
the imposition of discipline. See Committee Report at 14-15. Specifically, the
Committee found that DeMarco had: (a) in two companion cases (referred to here
as the “Morales cases”), failed to timely file petitions for review and submitted
deficient briefs which did not address an issue that the Court had instructed
3
DeMarco to address,1 (b) failed to timely file this Court’s “Form C/A” in eleven
cases, and (c) failed to timely file a brief in ten cases. Id. at 5-12. After
considering various aggravating and mitigating factors, id. at 13-15, 16, the
Committee recommended that DeMarco be publicly reprimanded and be
required, inter alia, to submit periodic status reports concerning his legal practice,
id. at 15-16.
The minority report concurred with the Committee’s conclusion that
DeMarco had violated various professional obligations, but dissented from
several findings of the Committee and the Committee’s recommendation. The
minority report recommended that DeMarco be suspended for at least two years,
in addition to being publicly reprimanded. Minority Report at 56. The
disagreement with the Committee Report primarily related to the dissenting
member’s conclusions that DeMarco had been directly responsible for the
misconduct at issue, as opposed to merely failing to adequately supervise his
1
The two cases were Morales Veliz v. Mukasey, No. 06-0780, and Morales v.
Mukasey, No. 06-0781. The Court had instructed DeMarco to address whether
enforcement of the thirty-day statutory deadline for filing the petitions for review
would constitute a suspension of the writ of habeas corpus, in violation of the
Suspension Clause of the United States Constitution. The two deficient briefs
were filed in April and May 2007.
4
staff, and had knowingly made false statements to the Committee and this Court
regarding his failure to comply with filing deadlines and other Court orders. Id.
at 2.
In his response to the Committee Report, DeMarco objected to the
Committee’s recommendation of public reprimand. See Response to Report.
However, DeMarco did not address the Committee minority’s recommendation
that DeMarco be suspended, id., although he had been advised by the Court that
“the form and degree of discipline that may be imposed by the Court is not
limited to that recommended by the Committee,” see Order Requiring Response
to Report.
II. Credibility Determinations
We give “particular deference” to the factual findings of the Committee
members who presided over an attorney disciplinary hearing where those
findings are based on demeanor-based credibility determinations, and somewhat
lesser deference to credibility findings based on an analysis of a witness’s
testimony. See In re Payne, 707 F.3d 195, 201-02 (2d Cir. 2013).
In the present case, the Committee majority and minority disagreed over
DeMarco’s credibility, based on both his demeanor and an analysis of the
evidence. While the observations of the minority report are not without force, we
5
see no reason not to accept the credibility assessments reflected in the Committee
Report. The totality of the evidence supports the Committee’s conclusions that
DeMarco’s deficient conduct was negligent rather than deliberate, that he did not
deliberately mislead the Court or Committee, and that some of the deficient
conduct resulted from inadequate supervision of employees rather than his own
direct negligence.
III. Attribution of Fault to Law Firm and Court Employees
A. Defaults Relating to Intra-Office Communications
First, the testimony of DeMarco, his paralegal, and his former associate,
and an affidavit from his former office manager, support a finding that some, but
not all, of the defaults and violations of Court orders were caused by one or more
of DeMarco’s employees who failed to timely pass along mail, to notify DeMarco
of deadlines or other directives, or to timely file documents. We see no reason to
reject this evidence, although we reach somewhat different conclusions than the
Committee. As in any office, DeMarco’s delegation of various tasks to
subordinates carried with it the risk that subordinates might, on occasion, fail to
timely complete a task or pass along important information. Attributing some of
the fault to subordinates did not, in this context, suggest an attempt by DeMarco
to unfairly blame others for his own errors, particularly since DeMarco conceded
6
that he had failed to properly supervise those subordinates.
However, even where employees were responsible for defaults, we
conclude that DeMarco, rather than having only indirect supervisory
responsibility, often shared direct responsibility, for the reasons discussed in the
following subsections B and C.
B. Responsibility for the Morales Briefs
DeMarco’s testimony regarding responsibility for the Morales briefs
changed over the course of the hearings. When asked why he had failed to obey
the Court’s instruction in its March 2007 order to brief the Suspension Clause
issue, his first response was that he “wasn’t the lead attorney on that brief,”
though he also suggested that he may have been at least partially responsible,
remarking that “[w]e just did not do a good job in that case from top to bottom.”
Transcript (“Tr.”) at 39.
Thereafter, DeMarco testified that he believed that he had been aware of
the Court’s March 2007 order before his responding April 2007 brief was filed, id.
at 58, and that he himself had determined that the Suspension Clause issue was
irrelevant, id. at 59-60. This testimony is then followed by various statements in
which DeMarco used both “I” and “we” when referring to the responsible
person(s). Id. at 60-61, 225. Near the end of the hearings, however, DeMarco
7
stepped back from his admission of direct responsibility, stating that he was
“reasonably certain” that he wasn’t the “lead attorney” for the Morales cases, and
that he didn’t “think that[,] having seen [the March 2007 order, he] would have
done nothing.” Id. at 367.
The Committee did not fully accept DeMarco’s suggestions that he was not
directly responsible for the failure in the Morales cases to obey the Court’s
instruction to brief the Suspension Clause issue – the Committee found it “likely
that even if an associate was handling the [Morales cases], DeMarco at some point
reviewed the brief[s] before filing.” Committee Report at 6. However, we see no
need for speculation on this point, and we reject DeMarco’s assertion that he was
not the “lead attorney” for the Morales cases.
Instead, we conclude that DeMarco was fully, and directly, responsible for
the failure to comply with the Court’s instruction in the Morales cases, since he
was the sole counsel of record for the petitioners and, more important, the sole
attorney who signed the deficient briefs. By signing those briefs, with the
knowledge that they were to be filed in this Court, DeMarco was certifying – at
the very least – that the briefs were in compliance with all relevant rules and
orders of the Court, that all facts presented in the briefs were accurate, and that
all contentions had an arguable basis in law and fact. Cf. Fed. R. Civ. P. 11(b)
8
(detailing attorney’s representations to the district court when, inter alia, signing a
document which is to be filed or otherwise presented to the court). Thus,
regardless of who actually wrote the Morales briefs, DeMarco, as the signing
attorney, was responsible for their contents. See In re Girardi, 611 F.3d 1027, 1039
(9th Cir. 2010) (reprimanding attorney who authorized others to sign his name on
appellate briefs, drafted by another attorney, “for his recklessness in determining
whether statements or documents central to an action on which his name appears
are false”); Dube v. Eagle Global Logistics, 314 F.3d 193, 194, 194 n.1 (5th Cir. 2002)
(sanctioning all attorneys who signed noncompliant appellate brief, although
some were not formally associated with the law firm representing appellant),
vacated as moot (5th Cir. Feb. 4, 2003).
Moreover, the contents of the April and May 2007 briefs themselves belie
DeMarco’s suggestion – either in defense or mitigation – that he reasonably relied
on assurances from the attorney who drafted the briefs that they addressed all
necessary issues. His April 2007 brief, which was filed in response to the Court’s
March 2007 order directing him to address the Suspension Clause issue, stated
that “counsel is fully familiar with the circumstances/facts surrounding said
case,” and the March 2007 order itself was attached as an exhibit to the April 2007
brief. At the Committee’s hearing, DeMarco identified his signature on the April
9
2007 brief and agreed that, before signing it, he “took steps to be sure [he was]
fully familiar” with the facts and circumstances relevant to the case. Tr. at 52; see
also id. at 388 (acknowledging signing of briefs).
DeMarco’s May 2007 brief: (a) stated that it was in response to the
government’s motion to dismiss, which primarily discussed DeMarco’s failure to
address the Suspension Clause issue; (b) explicitly acknowledged (with
exceptions that are not now relevant) the accuracy of the procedural history
found on pages 1 through 3 of the government’s motion, where the government
described the March 2007 order and stated that DeMarco’s April 2007 brief
“ma[de] no mention of the Suspension Clause issue on which this Court directed
briefing”; and (c) included DeMarco’s signed affidavit declaring, under penalty
of perjury, that the facts set forth in the May 2007 brief were “true and correct to
the best of [his] knowledge and belief.”
If, as suggested by some of his testimony, DeMarco’s representations in the
April and May 2007 briefs were false – i.e., contrary to those representations, he
was not aware of the Court’s March 2007 order – his representations might have
constituted perjury. If, as suggested by some of his other testimony, those
representations were true, then he knew that he had been ordered to address the
Suspension Clause issue and knowingly failed to do so. Upon review of the
10
record, we take the latter view and conclude that (a) DeMarco knew that, in its
March 2007 order, the Court had directed him to address the Suspension Clause
issue, and (b) as found by the Committee, he failed to address the issue only
because he did not understand its relevance.2 Committee Report at 6.
C. Failure to Monitor Pending Cases
As counsel of record, DeMarco also was directly responsible for ensuring
his cases were proceeding in due course, even if his employees or the Court
failed to inform him of deadlines, Court directives, or other important
information. Although counsel of record need not constantly monitor the Court’s
docket, counsel cannot allow lengthy periods of time to pass without periodic
review. See Mennen Co. v. Gillette Co., 719 F.2d 568, 570 (2d Cir. 1983) (“[I]t is
customarily the duty of trial counsel to monitor the docket and to advise himself
2
A modest amount of research would likely have made clear the relevance
of the issue. For example, although at the time the Court ordered DeMarco to
address whether enforcement of the thirty-day filing deadline in his clients’ cases
would violate the Suspension Clause the issue had not yet been covered by any
published decision of this Court, the Court had previously considered whether
enforcement of the one-year statute of limitations for habeas corpus petitions
challenging criminal convictions constituted a per se violation of the Suspension
Clause. See Lucidore v. New York State Div. of Parole, 209 F.3d 107, 113 (2d Cir.
2000)(rejecting Suspension Clause argument); Rodriguez v. Artuz, 161 F.3d 763,
764 (2d Cir. 1998)(same). Additionally, the issue of whether the thirty-day
deadline violated the Suspension Clause was raised, but not decided in Enwonwu
v. Gonzales, 438 F.3d 22, 32, 34 (1st Cir. 2006), and had been discussed in a number
of other cases and publications.
11
when the court enters an order against which he wishes to protest.”); accord
United States ex rel. McAllan v. City of New York, 248 F.3d 48, 53 (2d Cir. 2001)
(“parties have an obligation to monitor the docket sheet to inform themselves of
the entry of orders they wish to appeal”); Davila-Alvarez v. Escuela de Medicina
Universidad Central del Caribe, 257 F.3d 58, 65 (1st Cir. 2001) (“[A]n attorney has an
ongoing responsibility to inquire into the status of a case.”).
The degree of diligence that is due depends upon the circumstances. For
example, if a briefing schedule requires an attorney’s brief to be filed in one
week, and the attorney moves for an extension of time, an attorney exercising
due diligence would monitor the docket quite frequently, since denial of the
extension motion might leave little time for completing the brief by the original
deadline. See In re OPM Leasing Servs., 769 F.2d 911, 916 (2d Cir. 1985) (affirming
district court’s denial of extension of time to appeal, although parties did not
receive copies of ruling and did not anticipate that judge would rule as quickly as
he did, because “[c]ounsel should not be encouraged to neglect their duty to
monitor the docket on the basis of speculation as to the probable date of
decision”).
On the other hand, a case that is newly filed in this Court might not, at
first, require constant monitoring. But counsel of record for the appellant cannot
12
thereafter allow months to pass before checking the docket, with the excuse that
nothing had been received from the Court. Although the Court has a
responsibility, to both the parties and the general public, to timely process each
case and to notify the parties of all deadlines and other Court directives, the
attorneys have their own due diligence responsibility and cannot rely on perfect
processing by the Court, postal services, or law firm employees. Thus, while
shared blame might be a mitigating factor, see Mennen, 719 F.2d at 570 (stating
that a failure to monitor the docket “is indeed negligent, but where [an] omission
occurs because the party has been misled by action of the court or its officers,
such neglect may be excusable”), counsel of record nonetheless bears primary
responsibility for staying current with the status of his or her cases.
DeMarco attributed his defaults in several cases to non-receipt of Court
orders setting deadlines for the filing of his briefs or other documents. However,
in some of those cases, he allowed significant periods of time to pass without
determining the status of the cases. Under the circumstances, those periods of
neglect were unreasonable, making DeMarco primarily and directly responsible
for the delays and the defaults.
For example, DeMarco testified that, in Thaqi v. Ashcroft, No. 03-40629,
which was commenced in September 2003, he did not receive the April 2004
13
order setting a May 2004 deadline for his brief, and first became aware of his
default in the case through his receipt of the October 2005 order dismissing the
case based on his default. Tr. at 159-60. Thus, DeMarco failed to inquire as to the
status of a case that was, from his perspective, pending over two years without a
briefing schedule. Much the same can be said of DeMarco’s conduct in
Pochon-Chavez v. INS, No. 02-4086, where he allowed a year to pass after filing a
motion for extension of time to file a brief without filing the brief or making any
inquiry, and in De La Vega v. Gonzales, No. 03-40164, where he repeatedly missed
deadlines by periods of months, despite multiple court orders and filings by the
appellee indicating his default.
DeMarco’s failure to properly monitor the dockets of the cases discussed
above constituted a lack of due diligence on his part, whether or not anyone else
also had any such responsibility.
IV. Misrepresentations to Court
DeMarco conceded that, in two documents filed with the Court, he had
incorrectly represented that he had not previously violated any Court orders.
Those representations were incorrect because, by that point, DeMarco had failed
to timely file a number of briefs and other documents as required by this Court’s
rules and orders. Despite this history of defaults, we adopt the Committee’s
14
finding that DeMarco did not deliberately mislead the Court or Committee
concerning his failure to abide by Court rules and orders.
At the time he made the misrepresentations, DeMarco (and an unfortunate
number of other attorneys) considered the Court’s scheduling orders to be
essentially non-mandatory, as not truly orders carrying the imprimatur of the
judges of this Court. As suggested by the Committee, the Court’s overly-
generous practice, at the time, of not immediately defaulting cases in which the
petitioners had failed to abide by scheduling orders caused a number of
attorneys to treat those scheduling orders as something less than mandatory. See
RLI Ins. Co. v. JDJ Marine, Inc., 716 F.3d 41, 42-43 (2d Cir. 2013) (per curiam)
(noting that, “[a]bout ten years ago,” the Court had experienced significant
problems calendaring cases, which was the “result of a culture in which the bar
had come to believe that the [briefing deadlines] set out in Federal Rule of
Appellate Procedure 31(a)(1) were meaningless and that motions for extensions
of time ... would be routinely granted time after time,” despite the fact that orders
granting such motions routinely stated that only extraordinary circumstances
would justify another extension).
DeMarco’s description of his practice, and of his thought process at the
time he submitted that incorrect information to the Court, while awkward, is
15
consistent with the Court’s prior experience with this issue. See Tr. at 379-86, 391-
95, 397. While DeMarco should have known that the information was inaccurate,
we accept the Committee’s finding that he did not deliberately mislead.3
V. Disposition
We conclude, consistent with our prior disciplinary decisions, that
DeMarco’s misconduct was sufficiently egregious to warrant a public
reprimand.4 See In re Payne, 707 F.3d 195, 207-08 (2d Cir. 2013) (describing prior
3
DeMarco’s belief that he had not disobeyed prior orders is also reflected
by his assertion in at least two cases where he had defaulted that his non-receipt
of scheduling “notices” in those cases meant – employing tortured, but
apparently earnestly believed, logic – that the deadlines set by those scheduling
orders had not passed. See Gomez Zuleta v. Ashcroft, No. 03-40944, DeMarco
Letter Dated Aug. 27, 2004 (Record, Tab B, p. 65) (stating that he had “not
received the [April 2004] scheduling notice” and, “[a]ccordingly, a deadline to file
a brief has not passed”); De La Vega v. Gonzales, No. 03-40164, DeMarco Letter
Dated July 29, 2004 (Record, Tab B, p. 41) (containing similar language).
4
We see no reason to address the quality of DeMarco’s briefing in Yacoub
v. Holder, No. 08-3053, which the minority report discussed at length, but which
DeMarco did not have an opportunity to address in the proceedings before the
Committee. Although we have, in a number of prior disciplinary cases,
considered attorney conduct that post-dated the Committee’s proceedings
without first directing the attorney to address whether that conduct warranted
disciplinary action, we see no reason to confront whether it would be appropriate
to consider such conduct here, inasmuch as a finding as to the poor quality of
DeMarco’s briefing in Yacoub would have no impact on the final disposition of
this case.
Nor do we now consider DeMarco’s conduct in Dolphin Direct Equity
Partners v. Interactive Motorsports and Entertainment Corp. (“Dolphin”), No. 09-1359,
16
disciplinary decisions). We agree with the Committee that the mitigating factors
in this case are significant enough to warrant reprimand rather than suspension.
A public reprimand, particularly when it takes the form of a published decision
of this Court that is highly critical of an attorney’s conduct, is far more than a
“slap on the wrist.” Moreover, DeMarco is advised that future misconduct will
likely lead to suspension.
Upon due consideration of the Committee’s reports, the underlying record,
DeMarco’s submissions, and the matters discussed above, it is hereby ORDERED
that DeMarco is PUBLICLY REPRIMANDED for his misconduct in this Court. It
is further ORDERED that DeMarco:
(a) complete, within one year of the date of this decision, at least six
hours of live in-class continuing legal education (“CLE”) instruction
in law office/practice management. The required CLE classes must
be taken in addition to the regular CLE requirements applicable to
all members of the New York bar, and taught by CLE providers
accredited by that bar. DeMarco must submit information about
proposed CLE classes directly to the Committee’s secretary, who
will inform him whether the Committee agrees that the proposed
where the failure to file certain forms caused the dismissal of the appeal.
However, DeMarco is directed to address that default dismissal in his first report
to the Committee required by this decision. DeMarco also should explain: why
he represented on “Form C” in the later Dolphin appeal that the matter had not
“been before this Circuit previously,” see Dolphin, No. 10-1547, Form C, filed Apr.
20, 2010, at 1, and the briefing deficiencies and waiver discussed in the
penultimate paragraph of the decision disposing of that later appeal, see id.,summary order filed Apr. 6, 2011, at 3.
17
classes satisfy his obligation.
(b) certify his completion of the above-described CLE classes by
sworn statement filed with both this panel and the Committee’s
secretary within seven days after the end of the one-year period.
The Committee may modify the CLE requirements and deadlines,
either on motion or sua sponte.
(c) submit, for the next two years beginning with the date of this
decision, biannual status reports to the Committee’s secretary,
providing the information described in section VI(B) of the
Committee’s report and an explanation for any criticism of his
conduct by any court or agency during the period covered by each
report. The first status report must cover the period beginning with
the date of the Committee’s report and ending six months from the
date of this decision. The remaining three reports must comply with
the schedule described in section VI(B) of the Committee’s report.5
(d) disclose this decision, its appendices, and the other Committee
reports to all courts and bars of which he is currently a member, and
as required by any bar or court rule or order. DeMarco also must,
within fourteen days of the filing of this order, file an affidavit with
this Court confirming that he has complied with this disclosure
requirement.
Finally, the Clerk of Court is directed to release this decision to the public
by posting it on this Court’s web site and providing copies to the public in the
same manner as all other published decisions of this Court, and to serve a copy
5
DeMarco’s first report also must comply with the directives found in
note 4, supra. If a report required by this order is not timely filed or reveals
deficiencies not justified by exigent circumstances, or misconduct of any type, the
Committee may recommend the imposition of additional discipline, including
but not limited to suspension or disbarment, without hearing further testimony.
18
on DeMarco, this Court’s Committee on Admissions and Grievances, the
attorney disciplinary committee for the New York State Appellate Division,
Second Department, and all other courts and jurisdictions to which this Court
distributes disciplinary decisions in the ordinary course.6
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 of course leave to the discretion of those disciplinary
authorities the decision of whether specific documents, or portions of documents,
should be made available to any person or the public. All three Committee
reports are available to the public with redactions which, inter alia, delete the
names of several people who were not charged with misconduct and who lacked
an opportunity to respond to assertions concerning them.
19
APPENDIX 1
Text of April 2009 Order
For the reasons that follow, Mario DeMarco is referred to this Court’s
Committee on Admissions and Grievances for investigation of the matters
described below and preparation of a report on whether he should be subject to
disciplinary or other corrective measures. See Second Circuit Local Rule 46(h).
We express no opinion here as to an appropriate disposition. The Committee
may, of course, in the first instance, determine the appropriate scope of its
investigation.
DeMarco was referred to this Panel as a result of his failure, in two cases,
to file timely petitions for review from orders of the Board of Immigration
Appeals, which resulted in the dismissal of those petitions for lack of jurisdiction,
and his inadequate briefing in those cases. See Morales Veliz v. Mukasey, No. 06-
0780-ag and Morales v. Mukasey, No. 06-0781-ag, orders filed June 18, 2008. The
Court’s orders in those cases stated the following:
We are troubled by the conduct of petitioner’s attorney, Mario
DeMarco, in this matter. Despite the notice in a government motion
to dismiss that his brief was inadequate, DeMarco submitted a
second brief that copied the first, essentially reciting boilerplate, and
failed to address the Suspension Clause issue that the Court had
ordered briefed. Moreover, DeMarco has explained to the Court
that the submission of the late notice of appeal for this petition was a
product of a staff member paralegal “miscalculating” the 30-day
appeal filing period. We refer the matter of DeMarco’s conduct in
this case to the Court’s Grievance Panel for its determination as to
whether the matter should be referred to the Court’s Committee on
Admissions and Grievances.
Id., at 1, n.2 (identical language in both orders). See also Shtopaku v. Gonzales, 03-
40637-ag, order filed May 5, 2005 (stating that arguments in brief were not first
raised before agency); Abajlal v. Gonzales, 06-3242-ag, order filed Apr. 25, 2007
(stating that agency’s rationale for denying relief was not addressed in brief);
Marku v. Holder, 08-2735-ag (Court’s limited jurisdiction not discussed in brief).
20
In addition to the two cases noted above, 19 out of the 41 cases in this
Court in which DeMarco is listed as the attorney of record reveal instances of
DeMarco’s difficulty in complying with filing requirements or scheduling orders.
See cases docketed under 02-4086-ag (after withdrawal without prejudice, Court
granted DeMarco’s untimely motion to reinstate, but later granted Government
motion for summary affirmance), 02-4193-ag (case withdrawn without prejudice
after default notice issued), 02-4245-ag (extension motion filed only after default
notice issued), 02-4246-ag (case dismissed for failure to file a brief), 03-40164-ag
(no timely response to first or second order to show cause why case should not
be dismissed for failure to file a brief, later extension motion granted), 03-40629-
ag (case dismissed for failure to file brief and subsequent reinstatement motion
denied for failure to demonstrate manifest injustice), 03-40944-ag (extension
motion filed only after issuance of order to show cause why case should not be
dismissed for failure to file brief), 04-3683-ag (default dismissal based on failure
to file Form C/A), 04-3780-ag (Form C/A filed only after reminded by Court), 04-
4954-ag (same), 04-6339-ag(L) and 04-6368-ag (Con) (same), 05-4658-ag (same),
05-5183-ag (same), 05-6779-ag (same), 07-3055-ag (same), 05-6586-ag (default
dismissal for failure to file a brief), 06-1095-ag (same), 06-3242-ag (default
dismissal vacated after untimely brief received), 07-0707-ag (Form C/A and
agency order filed only after reminded by Court).
[paragraph redacted]
Upon due consideration of the matters described above, it is hereby ORDERED
that Mario DeMarco 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.
[paragraph redacted]
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
By:_ ______/s/_________________
Michael Zachary
Counsel to the Grievance Panel
21
APPENDIX 2
January 2012 Report of the Committee
on Admissions and Grievances
I. Introduction
By Order dated April 30, 2009, the United States Court of Appeals for the
Second Circuit (“the Court”) referred Mario DeMarco to this Committee for
investigation of his conduct before the Court and for preparation of a report on
whether he should be subject to disciplinary or other corrective measures.
The Court's Referral Order raised a number of areas of concern regarding
DeMarco's conduct. First, the Referral Order noted that DeMarco failed to file
timely petitions for review from orders of the Board of Immigration Appeals in
two cases, resulting in dismissals for lack of jurisdiction. Second, the Referral
Order noted that DeMarco filed an inadequate brief in one of those cases. Third,
the Court noted that DeMarco had difficulty complying with filing requirements
or scheduling orders in 19 of the 41 cases he filed in this Court.1
The Committee recommends that DeMarco be publicly reprimanded for
his conduct. As further discussed below, the Committee recommends that
DeMarco be required to complete no fewer than six hours of CLE in law office
management, from a CLE provider accredited by the bar of New York, in
addition to the required hours of CLE, and that he be subject to the reporting
requirements laid out below. The following constitutes the Committee's report
and recommendation.
II. This Disciplinary Proceeding
By letter dated June 8, 2009, and delivered on June 10, 2009, the Committee
notified DeMarco of an investigation and provided him an opportunity to
1
The Referral Order also noted that DeMarco was not admitted to the bar
of this Court, but, in fact, DeMarco became a member of the Court's bar in
October 2005, so this issue was withdrawn. The Committee did not address
whether DeMarco should have applied for admission sooner than he did.
22
respond within thirty days. DeMarco did not respond, so the Committee sent a
second letter dated July 22, 2009, informing him that if he did not respond, the
Committee would proceed without his response. On July 31, 2009, DeMarco filed
a response with the Committee (“Letter Response”). That response included a
reference to an incorrect docket number, so on August 10, 2009, DeMarco was
invited to supplement his response. He did so on August 13, 2009.
A hearing was held on September 18, 2009, conducted by Committee
members Eileen Blackwood, Evan A. Davis, Loretta E. Lynch and Michael Patrick
(the “Hearing”). DeMarco was present without counsel. The hearing was
adjourned without conclusion, so that the Committee could hear from DeMarco's
former paralegal, [“Paralegal”], and his current office manager, [“Manager”].
The Hearing resumed on April 16, 2010, before Committee members Eileen
Blackwood, Evan A. Davis, and Michael Patrick (who attended by telephone),
with testimony by DeMarco and Ms. [Manager]. Although Ms. [Paralegal] had
agreed to appear at the Hearing by telephone, when the Committee called her,
the phone was answered and then promptly disengaged. Subsequent attempts to
contact her over the ensuing hours were unsuccessful. The Hearing was again
adjourned without conclusion, and multiple attempts were made to contact her
over the next weeks. Contact was made more difficult because Ms. [Paralegal]
had, since her termination from DeMarco's employ, moved to Georgia. When it
became clear that Ms. [Paralegal] did not intend to cooperate with the
Committee, the Committee explored the possibility of compelling her testimony
in Georgia. However, Ms. [Manager] had already corroborated some key points
of DeMarco's testimony. Ultimately, for a number of reasons, including
questions about the ultimate necessity of any testimony she might provide, the
Committee decided not to attempt to compel Ms. [Paralegal]'s testimony, and Mr.
DeMarco was notified by a letter dated July 26, 2010, that the Hearing was closed.
He was given until August 23, 2010, to submit any a post-hearing memorandum,
but no memorandum was submitted.
When the hearing panel's draft report and recommendation was circulated,
a new member of the panel disagreed with the recommendation and asked that
the panel obtain additional evidence. After discussion of those concerns, the
Committee decided that the hearing panel should take testimony from a former
associate of Mr. DeMarco's, [Associate-A], and should recall Mr. DeMarco to
23
discuss the issue of alleged misrepresentations in certain court filings. The
Committee agreed with the majority of the panel that further pursuit of Ms.
[Paralegal] was not necessary. The Hearing was then re-opened, and on June 27,
2011, a hearing panel consisting of Evan Davis, Eileen Blackwood, Gerald
Walpin, and Michael Patrick (who was not present at the hearing but had a
colleague attend who had also been present at prior hearings and reviewed the
transcript), took testimony from Mr. [Associate-A] and Mr. DeMarco. At the
conclusion of the testimony, the Hearing was adjourned. Mr. DeMarco was
asked to submit a response to two questions by affidavit, and that affidavit was
received on July 14, 2011.
III. Factual Background
The following facts are taken from court records, DeMarco's written
submissions and testimony at the Hearing.
DeMarco graduated from Thomas M. Cooley Law School and was
admitted to practice law in New York State in July 1993 and in Connecticut in
September 1993. He has been admitted to practice before this Court since 2005
and is also admitted to practice before the U.S. District Courts for the Southern
and Eastern Districts of New York and the District of Connecticut, as well as the
U.S. Courts of Appeals for the Third and Sixth Circuits. Letter Response, at 1.
DeMarco's practice was primarily (95%) immigration law from 1993 to
about 2001. Tr. at 4. From 2002 to 2006, he served as corporation counsel for the
Village of Port Chester, N.Y. Since then, his practice has been split between
immigration, matrimonial, and criminal law. He has had 41 cases in the Second
Circuit, all immigration, but by the time of the Hearing, only had one remaining.
Tr. at 6.
Until early 2010, DeMarco maintained two offices-one on Long Island and
the main office in Port Chester.2 At one point, DeMarco had as many as three
attorneys and four paralegals working for him. By the time of the events under
2
He also maintains office space in Stamford, Connecticut, but it is
unstaffed.
24
consideration here, in 2003, DeMarco employed one other attorney and four
paralegals. At the time of the Hearing in 2009, DeMarco had transferred his Long
Island paralegal/office manager, [Manager], to Port Chester and employed one
part-time attorney and three paralegals, as his office volume had decreased
significantly. Tr. at 19-20. By the April 2010 hearing date, he had closed his Long
Island office. By the June 2011 hearing date, he employed only two paralegals
(one of whom also served as office manager) and one associate attorney.
DeMarco worked primarily out of the Port Chester office, but was at the
Long Island office two to three days a week. [Paralegal] was the paralegal/office
manager in the Port Chester office and was with DeMarco for twelve years until
August 2009, when he terminated her employment. She handled 80% of the
immigration work in office, including opening the mail, scheduling, and
communicating with the Court. Although the Long Island office maintained a
computerized docketing system, the Port Chester office did not use it, relying
instead on a manual system maintained by [Paralegal]. [Paralegal] worked
independently with little supervision from DeMarco. As his divorce and
criminal practice grew, DeMarco concentrated his efforts on those, while his staff
handled the immigration practice. [Associate-A] was an associate attorney in the
Port Chester office from 2002 to April 2004. Tr. at 288. After Mr. [Associate-A],
Mr. DeMarco employed [Associate B] and then [Associate C]. as associates. Tr. at
360-62.
In his 17 years of practice, DeMarco has never been disciplined for
professional misconduct.
IV. The Legal Standard
Under the Rules of the Committee on Admissions and Grievances for the
United States Court of Appeals for the Second Circuit (“Committee Rules”),
An attorney may be subject to discipline or other corrective measures for
any act or omission that violates the rules of professional conduct or
responsibility of the state or other jurisdiction where the attorney
maintains his or her principal office . . . . An attorney also may be subject
to discipline or other corrective measures for any failure to comply with a
25
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 Fed. R. App. 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 DeMarco was a member of the bar of New York State during the
time period at issue, the New York State Code of Professional Responsibility
(“the Code”) also applies. 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.” D.R. 6-101(A)(3); 22 N.Y.C.R.R. § 1200.30(A)(3) (2008); see also N.Y.
Rules of Prof'l Conduct R. 1.3(b) (effective Apr. 1, 2009). 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. Rules of Prof'l
Conduct R. 8.4(h) (effective Apr. 1, 2009).
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 of W. Hartford, 361 F.3d 113,
133 (2d Cir. 2004), Matter of Rabinowitz, 596 N.Y.S.2d 398, 402 (N.Y. App. Div.
1993), United States v. Song, 902 F.2d 609 (7th Cir. 1990), Matter of Kraft, 543
N.Y.S.2d 449 (N.Y. App. Div. 1989), In re Bithoney, 486 F.2d 319 (1st 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,
26
4.5. The Disciplinary Rules of New York's Lawyer's Code of Professional
Responsibility require that “[a] lawyer shall not . . . [n]eglect a legal matter
entrusted to the lawyer,” D.R. 6-101(a)(3); see also N.Y. Rules of Prof'l Conduct R.
1.3(b) (effective Apr. 1, 2009); in addition, the Code's Ethical Canons require that
the lawyer should represent his or her client “zealously,” Canon 7-1, and that he
or she “be punctual in fulfilling all professional commitments,” Canon 7-38.
“Any finding that an attorney has engaged in misconduct or is otherwise
subject to corrective measures must be supported by clear and convincing
evidence.” Committee Rule 7(h). Once misconduct has been established, in
determining the sanction to be imposed, the Committee should generally
consider: (a) the duty violated; (b) the lawyer's mental state; (c) the actual or
potential injury caused by the lawyer's misconduct; and (d) the existence of
aggravating or mitigating factors. See ABA Standards § 3.0. This Committee may
recommend to the Court's Grievance Panel a range of sanctions, including
disbarment, suspension, public or private reprimand, monetary sanction,
removal from pro bono or Criminal Justice Act panels, referral to other
disciplinary bodies, supervision by a special master, counseling or treatment, or
“such other disciplinary or corrective measures as the circumstances may
warrant.” Committee Rule 6.
V. Alleged Misconduct
A. The Morales Cases, 06-0780-ag and 06-0781-ag: Failure to File
Timely Petition and Inadequate Briefing
The Referral Order noted that DeMarco was referred to the Committee for
failure to file timely petitions for review from the BIA and for his inadequate
briefing in two companion cases, involving a father and his son. The Court noted
in a 2008 order (identical in both cases):
We are troubled by the conduct of petitioner's attorney, Mario DeMarco, in
this matter. Despite the notice in a government motion to dismiss that his
brief was inadequate, DeMarco submitted a second brief that copied the
first, essentially reciting boilerplate, and failed to address the Suspension
Clause issue that the Court had ordered briefed. Moreover, DeMarco has
27
explained to the Court that the submission of the late notice of appeal for
this petition was a product of a staff member paralegal “miscalculating”
the 30-day appeal filing period. We refer the matter of DeMarco's conduct
in this case to the Court's Grievance Panel for its determination as to
whether the matter should be referred to the Court's Committee on
Admissions and Grievances.
Morales Veliz v. Mukasey, No. 06-0780-ag, at 1, n.2 (June 18, 2008). DeMarco
submitted to the Court (and this Committee) an affidavit from [Paralegal] stating
that although the petition was due on February 16, 2006, she miscalculated that
date as the mailing (not filing) deadline, so the package was deposited in a
Federal Express depository on February 16, was picked up by Federal Express on
February 17, and delivered to the Court on February 21.3 Letter Response, Ex. 1.
In a Motion to Accept Brief accompanying the affidavit and dated March 30,
2007, DeMarco asserted that the missed deadline caused him “great
embarrassment” and said he “takes full responsibility for the error of his
paralegal.” Id. Despite this statement, DeMarco took no steps at that time to
change his office procedures or provide more supervision to his paralegal. He
did not even adopt in his primary office in Port Chester the more robust
docketing system being used in his Long Island office until after receiving this
Court's referral order more than two years later. He continued with the same
staff and made no changes in his supervision practices at that time. However,
DeMarco's office has apparently not missed an initial petition filing deadline
since that time.
The timeliness of the petition for review became an issue because the
government moved to dismiss the Morales cases for failure to file a brief, more
than a year after the initial petition was filed. DeMarco has no explanation for
his failure to file the initial brief. In denying the government's motion, the Court
noted that petitioner had failed to file the petition within the 30-day period and
then directed the parties to address “whether this Court's application of the
30-day deadline in this case would constitute a suspension of the writ of habeas
3
It appears that February 17 was a Friday and Monday, February 20 a
holiday (President's Day), thus explaining the Federal Express delivery delay
until February 21.
28
corpus, in violation of the Suspension Clause.” Morales and Morales Veliz Order
(March 2, 2007). Despite this clear direction from the Court to address a
constitutional issue, DeMarco made no mention of it in his brief. When asked
why he did not obey the Court's order, DeMarco stated that he “wasn't the lead
attorney on that brief;” his associate (whom he supervised) was. Tr. at 39.
Originally, he suggested this associate was Mr. [Associate-A], and the Committee
therefore decided that [Associate-A] should give evidence about this issue.
However, [Associate-A] was not employed by DeMarco after April 2004 and thus
was not involved in the Morales cases at the appellate level. Tr. at 288. After the
Hearing, DeMarco submitted an affidavit noting that a subsequent employee,
[Associate B], was the associate handling the case. Affidavit of Mario DeMarco,
dated July 15, 2011. [Associate-A] did testify that he always gave DeMarco a draft
to review, Tr. at 299, so it seems likely that even if an associate was handling the
case, DeMarco at some point reviewed the brief before filing.
DeMarco also explained that the suspension clause was not addressed
because he did not believe the suspension clause was involved in the case, which
was a credibility determination in an asylum case. Tr. at 59-60. It appears to the
Committee that DeMarco did not understand the Court's point-that it wanted
him to address the suspension clause in relation to the dismissal of the petition
for untimely filing, not in relation to the underlying issue on appeal. In other
words, the Court requested a brief on the question of whether if it did dismiss the
petition because of his failure to file within the 30-day period, that dismissal
would violate the suspension clause. Even as the Committee took him through
each step of this argument, it was clear DeMarco thought the Court was directing
him to apply the suspension clause to his underlying issue on appeal, not to the
issue of the late filing. In short, he just completely missed the point the Court
was making. Tr. at 60-62. Thus, the issue seems less an intentional disregard of
the Court's order than a misunderstanding of what the Court wanted.
The dissent quotes at length numerous inconsistent explanations given by
DeMarco for why, in the Morales case, his brief did not meet the Court's direction
to address the suspension clause issue. While DeMarco is certainly guilty of
speculating repeatedly (and inconsistently) to the Committee about the reason
for his failures when he clearly does not know or recall why they occurred, the
majority disagrees with the dissent that these speculations are an attempt to
29
blame someone else for his mistakes. Repeatedly, throughout DeMarco's
testimony, he states that even if one of his employees caused the error, he was
responsible for it. Tr. at 9:9-10, 29:11-13; 33:12-16; 367:3-8; 407:10-14; 410-412. His
speculations about how the error occurred are not a denial of responsibility.
B. Failure to Comply with Filing Requirements or Scheduling Orders
Over the first two days of hearings, the Committee explored with DeMarco
19 other cases the Referral Order identified. The cases fell into two
categories-those in which DeMarco failed to file the C/A in a timely manner and
those in which he failed to file the brief in a timely manner. Some of the cases
were dismissed because of his failures; others were not.
1. Failure to File Timely Form C/A
DeMarco admitted that he failed to file the Form C/A in a timely manner in
at least eight or nine cases-that is, not until the Court called or sent his office a
letter indicating that the form was overdue. Tr. at 12. At the Hearing, he
explained that [Paralegal] handled the scheduling and filing for all cases before
this Court. This was corroborated by Ms. [Manager], who also testified that the
Port Chester office had no case management or tickler system, other than Ms.
[Paralegal]'s own manual calendar. Tr. at 242, 245-46. According to DeMarco,
she told him that a court clerk had implied that she could wait until receiving the
court's notice to file the form. Certainly, in most cases the Court contacted his
office to get the Form C/A before any other action was taken, and DeMarco's
office then filed the form. Thus, his office fell into a pattern in which they waited
for the Court's notification that the Form C/A was overdue, rather than
calendaring the Form C/A for filing within ten days after the petition, as required
by the Court's Rules. Tr. at at 83-84. He admitted that even after receiving
several notices from the Court that the Form C/A was overdue, he did not direct
his staff to change its practices, but continued to wait for the Court to notify him
it was overdue. Later, he claimed he did not know his staff was engaging in that
practice until receiving the referral order. Tr. at 201-03. Instead, he said that he
did not give his paralegal any instruction about appeal procedures, Tr. at 202, i.e.,
the Rules of Appellate Procedure. Nor did DeMarco regularly keep up with the
appellate rules himself, and did not know of the electronic briefing rule until the
30
Court called his paralegal in January 2006. Tr. at 205. [Associate-A] confirmed
that he had no familiarity with practice before the Second Circuit. Tr. at 317. It
seems to the Committee that DeMarco turned the responsibility for his Second
Circuit appellate practice over to his staff without providing them proper
guidance or supervision.
In particular, the case of Grrela v. Ashcroft, No. 04-3683, was filed on July 1,
2004, and dismissed on April 12, 2006, for failure to file Form C/A. DeMarco
explained that the client did not wish to pursue this case, so he allowed it to “die
a natural death.” Tr. at 170. In addition to not notifying the Court of his intent
not to pursue the case, DeMarco did not document the client's decision in writing
to the client, but maintained only handwritten file notes of his discussion with
the client. He admitted that this practice was probably not the best. Tr. at 1
72-74.
Over a two and a half year period, the Court had to contact DeMarco's
office in numerous cases to have him file the Form C/A.
Lopez v. Ashcroft, 04-4954-ag Court called DeMarco's office on Sept. 22,
2004
Komani v. Ashcroft, 04-6339-ag, Court called on Dec. 8, 2004
Komani v. Ashcroft, 04-6368-ag Court called on Dec. 9, 2004
Duarte v. Ashcroft, 04-3780-ag Court called on Feb. 11, 2005
Sotero v. Gonzales, 05-4658-ag, Court called on Sept. 12, 2005
Lopez v. Gonzales, 05-5183-ag Court called on Oct. 13, 2005
Muratovic v. Gonzales, 05-6779-ag Court sent notice that C/A overdue on Feb.
14, 2006
Penaranda v. Gonzales, 07-3055-ag Court called after sending notice
Arenas v. Gonzales, 07-0707-ag Court called on Feb. 28, 2007
In most cases, the Form C/A was then filed within a day or two. DeMarco
admitted that his office was essentially using the clerk's office as his tickler
system. Tr. at 189. In another case, Chaves Lopez, No. 05-5183, although the court
left a message for DeMarco to get the Form C/A to the Court by October 14, it
was not filed until the 17th.4 DeMarco claimed he did not personally know
4
October 14 was a Friday, and the 17th a Monday.
31
about this situation and assumed his paralegal handled it without telling him.
Tr. at 201. This seemed credible, as Ms. [Manager] testified that Ms. [Paralegal]
admitted to not keeping DeMarco informed on all matters, when Ms. [Manager]
confronted her, Tr. at 260. Had she testified, Ms. [Paralegal] may have been able
to address whether or not she failed to inform DeMarco of these situations or he
personally ignored them. Yet, the Committee felt that obtaining Ms. [Paralegal]'s
testimony on the issue was not crucial, as in either case, the responsibility for
noncompliance was DeMarco's. DeMarco asserted no personal knowledge of the
calls or issue, although messages were sometimes left with his receptionist and
other times the clerk spoke with Ms. [Paralegal]. The Court's docket sheets show
calls with [Associate-A] and [Paralegal], suggesting that most of the contact was
with staff, not directly with DeMarco. The Committee does not find it critical to
determine whether DeMarco failed to act directly himself or indirectly through
his staff because even if DeMarco was initially unaware of his staff's practice, it is
clear that he did not think there was anything wrong with it until he received the
Court's Referral Order. He has now acknowledged, that his office's practice not
to file the Form C/A until the Court contacted them was “[his] fault and [his]
failure.” Tr. at 85. Since the Court's Referral Order, DeMarco has apparently
been filing the Form C/A as required.
2. Failure to File Timely Briefs
Although in most of the following cases, DeMarco's Letter Response
asserted that he did nothing wrong, at the Hearing, DeMarco admitted that he
failed to file briefs on time in several cases. At the Hearing, DeMarco did not
know the particulars of all the cases, as he said his staff was handling certain
cases and he was not personally involved, but he agreed that he was responsible
for the actions of his staff. He noted that for several years, 2002-06, he was
distracted by his role as corporation counsel for Port Chester, which took
considerably more of his time than he expected. [Associate-A] confirmed that
DeMarco's general attitude was to get work done on time and to do as good a job
as possible. Tr. at 345.
DeMarco asserted that in most of the cases he filed in the Second Circuit,
his office had a practice not to rigidly follow the scheduling order, but either 1) to
wait until the Court contacted them about the brief being due or 2) to file a
32
motion for extension of time, and re-calendar the brief deadline to the new date
he had requested without waiting for the Court to rule on that motion-in other
words, he assumed the motion for extension of time would be granted (and at the
time, it appears the Court generally did allow the requested extensions).
However, even when he requested an extension, DeMarco rarely complied with
the date requested. In other cases, DeMarco said he was reaching a stipulation
with the government and thus did not file the brief, as it did not matter if the case
was dismissed because the parties had reached an agreement. He considered
that process as allowing the case to “die a natural death.” Tr. at 117.
It became clear after extensive questioning by panel members that
DeMarco did not consider that these practices-allowing cases to “die a natural
death,” requesting extensions of time and not filing briefs even though the
requests had not been acted on, and waiting for court reminders to file the Form
C/As-were violating the court's scheduling orders and his obligations as an
officer of the court. Tr. at 133-34. Because the scheduling order was prepared
and sent by court administrative staff, not a judge, DeMarco considered these
orders as less compulsory than an order made by a judge. In fact, the Committee
has heard a similar misapprehension from several other respondents. This
lackadaisical approach to court scheduling orders seems to have arisen from a
misunderstanding concerning the importance of the scheduling order, combined
with practices of the court. As have some of the other respondents this
Committee has met, DeMarco noted that during this time period
communications from the court, such as scheduling orders, occasionally were not
received, even though they were noted on the court's docket sheet. [Associate-A]
confirmed that communications to and from the Court were not always received.
Tr. at 321. Similarly, [Associate-A], as well as other respondents, have confirmed
(and the Court's docket sheets concur) that at this time, the Court generally had
allowed appellants' extensions of time without a formal court decision on a
motion for extension. The attorney would file the motion and not file the brief,
and after some time, the Court would issue a new scheduling order. While these
practices clearly result in a failure to follow court orders, they appear to have
arisen-or at least multiplied-out of misunderstanding and lack of experience with
Second Circuit practice, rather than out of intentional neglect.
For example, in Pouchon-Chavez v. INS, No. 02-4086-ag, the scheduling
33
order set the petitioner's brief as due on September 12, 2002. On May 9, 2003
(almost eight months later), the clerk called DeMarco's office to find out why the
brief was not filed, as there had been no communication with the Court.
[Associate-A] apparently told the clerk that the petitioner was awaiting a ruling
on a motion to extend time to file the brief. Although he does not recall the
specific case, [Associate-A] confirmed that although today he would call the clerk
to inquire about whether filing the motion stayed the due date, at the time, he
had no understanding of his obligation. Tr. at 317-18. Although initially in his
written response, DeMarco asserted that “[t]his matter involved no wrongdoing”
on his part, Letter Response at 2, at the Hearing, he understood that his office had
failed to comply and testified that he “was not in the loop on it…. Nobody spoke
to me on this one.” Tr. at 79. He assumed that his associate was handling the
matter. [Associate-A] asserts that although he does not remember the case, he
would have told DeMarco about his conversation with the court, Tr. at 333, and it
seems likely that he would have. Whether [Associate-A] told him or not,
DeMarco remains responsible for his office's failures, and neither he nor
[Associate-A] could recall why the brief was not filed on time.
The case was later twice withdrawn without prejudice and reinstated, on
each occasion after the time for reinstatement had passed. When asked why the
deadlines were missed, DeMarco testified that “we didn't know what we were
doing. We were relying on the last experience we had where the time would-the
court would allow us to do a stip and then file the brief.” Tr. at 82. In other
words, because the Court had not dismissed his earlier cases when he missed a
brief-filing deadline, he assumed he could ignore the Court's scheduled dates
without consequence to the ultimate ability to submit the brief. In his testimony,
DeMarco admitted that he should have kept the Court informed and accepted
responsibility for his office's failures. Eventually, the case was summarily
affirmed “because Petitioner's challenge to the BIA's decision lacks an arguable
basis in law or fact.” Order of Nov. 23, 2004. DeMarco testified, however, that he
had believed there was a basis for appeal, Tr. at 83. Although his conduct
apparently did not ultimately prejudice the client, as the case was decided on the
merits, the cavalier treatment of deadlines in a case that DeMarco believed had
merit is disturbing.
DeMarco gives similar explanations for his conduct in Benites-Rodriguez v.
34
INS, No. 02-4193-ag. The scheduling order set his brief as due on September 12,
2002, but it was not filed. A default notice was sent on May 9, 2003. When asked
why the brief was not filed, DeMarco responded, “I think we were confident we
would at some point down the road get an extension of that date and do it at a
later date.” Tr. at 92. Notably, no motion for extension of time had been filed.
The case was again withdrawn without prejudice and reinstated twice before the
Court transferred it to the District of Connecticut where it was decided on its
merits, apparently with a successful result for DeMarco's client. Ultimately,
DeMarco's client apparently was not prejudiced, but the risk that his lax attitude
towards deadlines could have prejudiced this client was substantial. Under the
ABA Standards the negligent failure to act with reasonable diligence causing
injury or potential injury to the client warrants a public reprimand. ABA
Standards § 4.43.
In Darji v. Ashcroft, No. 02-4245-ag, a similar pattern shows. The
petitioner's brief was due June 25, 2004, but was not filed. On December 7, 2004,
the Court issued an order notifying DeMarco that he had to file the brief with a
motion to accept it out of time, stipulate to withdraw the petition, or notify his
client of possible dismissal. The order explicitly noted that if the case were
dismissed, the petitioner would be in jeopardy of removal and DeMarco would
be referred to the Court's disciplinary committee.5 Order of Dec. 17, 2004. The
motion to extend time was filed, and a scheduling order set the brief due for
January 20, 2005. The brief was filed, but four days after the deadline, on January
24.6 DeMarco testified that the case was resolved by stipulation in favor of his
client, Tr. at 107, so although there was apparently no prejudice to his client, the
risk of prejudice to a meritorious case was substantial. Again, DeMarco's written
response asserted no wrongdoing, but in testimony, he admitted that his practice
of ignoring the deadlines because he was discussing resolution with the
5
This was actually the fourth such notice issued to DeMarco, although the
third he stated that he received from the Court. The first three were in August
and November 2004 in the Delavega and Zuleta cases discussed below.
6
January 20, 2005, was a Thursday, and January 24 a Monday. Notably, it
appears as though the government also did not file its brief when due and
without any notice to the court either.
35
government was risky and that this disciplinary proceeding has led him to
change his practices. Tr. at 112.
Jimenez v. Ashcroft, No. 02-4246-ag, is an example of another questionable
practice. The petitioner's brief was due on November 28, 2002. No brief was
filed, and a default notice was sent on May 1, 2003, resulting in dismissal of the
case on July 21, 2003. DeMarco testified that after the scheduling conference, he
determined the case was without merit, and the client consented to let the case
lapse. Tr. at 116-17. DeMarco admitted that he improperly did not withdraw or
otherwise notify the Court and that he did not even realize that was the proper
procedure. Tr. at 117-18. Although he claimed not to have known the details of
many of these cases, he did go along with the attitude that if the client was not
harmed, all was well that ended well. Tr. at 122. As a result, it became his
practice not to file withdrawals, but to make the Court dismiss his cases when
time passed with no communication. It was generally his view that Court
deadlines were loose and that because the Court would routinely allow him
extensions and reinstatements after the fact, he did not have to follow the Court's
deadlines. Tr. at 127.
In Delavaga v. Ashcroft, No. 03-40164-ag, the Court's docket shows
petitioner's brief due on June 28, 2004, and a phone call to DeMarco's office on
July 6, 2004 (a week later), inquiring about its status. DeMarco testified that his
office did not inform him of this call, Tr. at 141, and it appears that no one from
his office responded to the court. Given Ms. [Manager]'s testimony that Ms.
[Paralegal] admitted not reporting issues to DeMarco, Tr. at 260, it is quite
possible that Ms. [Paralegal] did not inform him of the court's call. As DeMarco
makes no claim that she acted maliciously in any way, Tr. at 261, however, it
seemed unnecessary to the Committee to resolve the issue, as either way, the
office's failure to respond to the court remained entirely DeMarco's
responsibility. After receiving a letter from the AUSA, on July 29, 2004, DeMarco
wrote the clerk, asserting that he had never received the scheduling order. The
Court then issued a show cause order, stating that failure to respond within 20
days would result in dismissal and referral to the court's disciplinary committee.
Order of August 4, 2004. DeMarco apparently did not respond, and he asserts
that he never saw this order because his paralegal did not show it to him. Tr. at
157-58. A second show cause order was then issued on November 8, 2004.
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Although DeMarco claimed he filed a response to this second order, the court
apparently did not receive it, in the form of a motion to extend time, until
February 15, 2005.
DeMarco had no explanation for why he did not file a response to the first
show cause order; he did, however, note that his office did not always receive
notices from the Court, Tr. at 144, and he opined that was the problem here.
DeMarco also produced evidence that his office had received a scheduling order
from a case in which his office was not involved on at least one occasion. Exhibit
7 to Letter Response. [Associate-A] also confirmed that there were problems
with things get lost on the clerk's side at this time. Tr. at 321. As to the failure to
follow up when his motion to extend time in November 2004 was not acted on,
DeMarco explained that his office routinely re-calendared due dates when a
motion to extend time was filed, without any follow up to be sure that the motion
was granted. Tr. at 146. Further, he admitted that his office would not even
abide by the extension date he requested. His practice was to file the motion and
then wait for the government or the court to get back to him before taking further
action. The office had no system in place to follow up when a motion to extend
time was filed. Tr. at 147-49. Ms. [Manager] confirmed the absence of any
reminder system or electronic database, Tr. at 245-46. At the time, DeMarco did
not believe there was anything wrong with his practice. Tr. at 153-55.
Thaqi v Ashcroft, No. 03-40629-ag, was dismissed pursuant to CAMP for
failure to comply with the scheduling order.7 Order of Oct. 17, 2005. DeMarco
testified that he never received the Court's scheduling order. Tr. at 160. His
motion to reopen the case was denied on March 8, 2006, because the court
determined that no manifest injustice would result. DeMarco testified that he
determined the case had no merit, so he did not pursue it. Tr. at 161-62.
A similar pattern occurred in Zuleta v Ashcroft, No. 03-40944. Petitioner's
brief was due July 9, 2004, but was not filed. DeMarco asserted that he did not
receive the scheduling order. Tr. at 166. The Court issued a show cause order on
August 10, 2004, with the same warnings as the August 4 order in Delavaga
above. DeMarco admitted that he saw the show cause order in this case, although
7
The brief had been due on May 27, 2004.
37
he cannot explain why his paralegal would have given him this order when he
claimed she had not given him the August 4 Delavega show cause order. He
responded to this order by letter dated August 27, 2004 (after the 20 days given
by the Court in its August 10 order), explaining that he had not received the
scheduling notice. The court set a new date of September 27, 2004, for the
petitioner's brief, but the brief was not filed until the following day, September
28.
In Boci v. Gonzalez, No. 05-6586-ag, the Court dismissed the appeal for
failure to comply with the scheduling order. DeMarco claimed that the client had
terminated his services and hired a new attorney. Letter Response at 4.
Although he also claimed no wrongdoing, DeMarco did nothing to notify the
Court, and no new attorney ever entered an appearance. In fact, the case was
dismissed following a letter from the AUSA requesting default for failure to file a
brief.
Similarly in Jajdari v. Gonzales, No. 06-1095, the appeal was dismissed for
failure to comply with the scheduling order. DeMarco asserted that the client
moved to Canada and abandoned the appeal, but he did not notify the Court that
the case was moot. Tr. at 212-14.
Abajlal v Gonzales, No. 06-3242-ag, was dismissed on October 3, 2006,
because the petitioner's brief due September 14 had not been filed. The dismissal
was later vacated. DeMarco did not recall the circumstances of this case,
although he asserted only that the Court noted the dismissal was entered in error
(although the date for filing the brief had passed).
In summary, the Court issued three show cause orders in two cases to
DeMarco in 2004: 1) August 4, 2004, in Delavega, 2) August 10, 2004, in Zuleta,
and 3) November 8, 2004, again in Delavega. A month later, on December 7,
2004, in Darji, which was eventually successfully resolved by stipulation, the
Court noted the possibility that it would refer DeMarco to this Committee for his
conduct if he did not comply with the order instructing DeMarco to respond
within 20 days. The Court then entered the scathing order, discussed above, in
June 2008 in Morales. Despite all these orders, DeMarco testified that he did not
realize there was such a problem with the Second Circuit until he received the
38
referral order from this Committee in June 2009. Tr. at 199-200. (Notably,
DeMarco did not act on the Court's Referral Order when it was first sent in June
2009, but only responded when he received the second letter notifying him the
Committee would proceed without his input.) Although DeMarco testified that
he believed his paralegal may have been opening the mail and not showing him
these orders, DeMarco also testified (and produced documents to prove) that he
saw and responded to two of them (Zuleta and the second Delavega order).
However, whether he saw the other orders and ignored them or whether his
supervision of his staff was so poor that he never saw them, the Committee is
deeply disturbed by DeMarco's attitude towards the Court and its procedures, as
well as his lack of supervision of his staff. It is important to note that despite the
repeated explanations DeMarco gave at Hearing, noting that his paralegal or
another staff member had caused the error or neglected to inform him of a
situation, DeMarco did not use those explanations as an attempt to evade
responsibility.8 He knew, and the Committee has found, that he is responsible
for all of the neglect described above, whether caused by his direct inaction or the
indirect inaction of a person he was supposed to supervise.
3. Alleged Misrepresentation
In responding to the Court in two instances in 2008, DeMarco asserted that
he did not have a pattern of violating court orders, despite his having by then
failed to file Form C/A and timely briefs on numerous occasions. In the first
affidavit, his reference to not missing a filing deadline appears in context to refer
to not missing a deadline for filing a petition for review (as opposed to deadlines
in scheduling orders), It does appear accurate that prior to the Morales case (and
since), DeMarco's office had never missed the deadline for filing a petition for
review. From his testimony, the Committee is convinced that he properly
understands the importance of meeting jurisdictional, or as he called them “pants
8
DeMarco testified at one point, “I don't mean to sit here and say this is all
[Paralegal]'s fault. It's not. She shouldn't have been given that level of not
authority but she shouldn't have been given that level of responsibility.” Tr. at
33. After explaining how his office relied on the Court's repeated practice of
granting extensions after the fact, DeMarco admitted, “I am not blaming the court
staff. It was totally our fault.” Tr. at 96.
39
on fire” deadlines, and that this missed deadline was a mistake and not part of a
pattern.
The reference in the second affidavit to not violating court orders is more
general and seems to have been based on a misunderstanding of the severity and
extent of his office's conduct. As discussed above, because the briefing schedule
is set by a document termed a court order, DeMarco had, in fact, violated court
orders, as well as rules of the court, at the time he made this representation.
However, both the Form C/A and the briefing schedule are administrative
matters, and DeMarco credibly testified that at the time he did not realize that his
office had a pattern of missing these deadlines, nor did he consider the failure to
file documents within the dates listed in the scheduling order as a violation of a
court order. He saw the administrative scheduling deadlines as distinguishable
from a direct order from a judge to take or refrain from taking a particular action,
just as they are distinguishable from a jurisdictional filing deadline that bars an
appeal. It is clear from both DeMarco's testimony and that of many other
respondents to this Committee that many attorneys did not consider the failure
to meet court timelines, or the practice of allowing a case to “die a natural death”
rather than properly dismissing it, as a violation of a court order. Additionally,
Mr. DeMarco's office had fallen into a habit of waiting for the court clerk's office
to contact them if something was missing, and then responding, and did not
understand that practice as violating a court order. While the Committee does
not condone these practices, it recognizes that DeMarco's assertion that he had
never violated a court order was not intentionally untruthful, nor was it intended
to mislead the Court.
VI. Recommendation
A. The Committee Recommends a Public Reprimand
The Committee has not found, on this record, any evidence that DeMarco
intended any harm to his clients. In fact, although DeMarco did not focus on this
argument, a case can be made that delaying an immigration appeal by seeking
extensions, or allowing the case to die a natural death rather than dismissing it,
may actually further, rather than injure the client's interest, particularly if a stay
remains in place while the appeal is pending. However, DeMarco did not
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profess the best interest of his client as his primary motivation, and the record
does show a disturbing pattern of inattention, poor supervision of his staff, and
cavalier attitudes towards court orders and procedures that are inconsistent with
expectations for an attorney of DeMarco's experience.
The record in this matter demonstrates clearly and convincingly that
DeMarco has repeatedly failed to comply with the Court's rules, including the
filing of the Form C/A, and its orders, particularly scheduling orders. While the
Committee has some concern about DeMarco's explanations of his changes in
office practices, as he seems to continue to rely on the skills and knowledge of his
lay staff without providing them any training or adequate supervision to ensure
their compliance with court rules and orders, no further problems have arisen
since the Court's 2009 referral order.9 Since he began to understand the problem,
he has complied with scheduling orders and not missed deadlines, so the
changes to his practice appear to have been functionally effective.
In almost all instances, DeMarco has asserted or speculated that the
reasons for his failures to meet deadlines and court orders were due to the action
or inaction of a paralegal working under his direction, Ms. [Paralegal], to whom
he had admittedly delegated a good deal of responsibility for complying with the
procedural rules of this Court. Nonetheless,”[t]he essence of the legal assistant's
role is that he or she may perform any delegated duty, under the supervision of a
9
While finalizing this Report and Recommendation, the Committee
learned of two additional situations that could have been part of the Court's
referral order. In a summary order in Yacoub v. Holder, No, 08-3053, the Court
criticized DeMarco's brief as essentially being of poor quality. Then, in June 2009
(after the Court's Referral Order was issued, but before DeMarco apparently
received it), the case of Dolphin Direct Equity Partners, LP v. Interactive Motorsports
and Entertainment Corp., No. 09-1359, was dismissed for failure to file forms C&
D. The Dolphin case appears to have been re-filed as No. 10-1547 in 2010, and a
mandate was issued on May 2, 2011. Because DeMarco was not given an
opportunity to respond to these two cases, they are not included in the
Committee's recommendation, but even if included, the Committee believes that
they appear to represent similar problems to the specifics already addressed and
are consistent with the Committee's recommendation.
41
lawyer who is responsible to the client and any tribunal for the assistant's acts.”
NYCLA Eth. Op. 666 (N.Y. Cty. Law. Assn. Comm. Prof. Eth.) (1985) (emphasis
added). Although the Committee was unable to obtain the voluntary testimony
of Ms. [Paralegal] to hear her perspective on the extent of supervision provided,
and decided that subpoenaing her testimony in Georgia was not indicated,
DeMarco himself has admitted that he failed to supervise, and perhaps even gave
improper direction, to his assistant. Regardless of what her testimony would
have been, it is clear that DeMarco's supervision was inadequate. Although the
Committee would have taken Ms. [Paralegal]'s testimony had she been
reasonably available, even without it, the Committee has clear and convincing
evidence of DeMarco's neglect. Both Mr. [Associate-A] and Ms. [Manager]
testified that they received adequate supervision and training, but neither of
them dealt extensively with Second Circuit cases.
The Committee is troubled by DeMarco's explanations that he was not
properly supervising his staff but that his new paralegal is a much more reliable
employee, that he encouraged the attitude of all is well that ends well, and that
he admitted that he did not know what he was doing in the appellate court. See
D.R. 6-101(A)(2) (“A lawyer shall not . . . [h]andle a matter without preparation
adequate in the circumstances”); N.Y. Rules of Prof'l Conduct R. 1.1 (effective
April 1, 2009) (“A lawyer should provide competent representation to a client.
Competent representation requires the legal knowledge, skill, thoroughness and
preparation reasonably necessary for the representation.”); D.R. 1-104(B); 22
N.Y.C.R.R. § 1200.5(B) (“A lawyer with management responsibility in the law
firm or direct supervisory authority over another lawyer shall make reasonable
efforts to ensure that the other lawyer conforms to the disciplinary rules.”); N.Y.
Code D.R. 1-104(C); 22 N.Y.C.R.R. § 1200.5(C) (“A law firm shall adequately
supervise, as appropriate, the work of partners, associates and nonlawyers who
work at the firm.”); see also N.Y. Rules of Prof'l Conduct R. 5.1, 5.3 (effective Apr.
1, 2009).
Mr. [Associate-A]'s testimony confirmed DeMarco's assertions that his
office procedures-for example, the absence of an office tickler system-were
lacking, but that DeMarco generally had an appropriate attitude toward court
deadlines, encouraging his staff to meet them. At the time, he was employed,
Mr. [Associate-A] was a new attorney with no experience in appellate work at the
42
Second Circuit. He believes that he would have discussed any communications
from the Court or missed deadlines with DeMarco, but also insists that no
deadlines were ever missed on cases on which he worked. His assertions
generally support DeMarco's position that no one in the office understood the
communications from the Second Circuit about missing C/A forms and briefs as
anything other than the appropriate court procedure. Thus, it appears, that
DeMarco did not properly train his staff in how to deal with the Second Circuit's
procedures, although they may have received appropriate instruction for
handling other proceedings.
Most importantly, regardless of who in his office performed, or failed to
perform an act, the Committee has found, by clear and convincing evidence, that
DeMarco failed to timely file briefs and properly comply with court orders. Even
while attempting to explain his failures by his reliance on others, at the Hearing,
DeMarco did acknowledge responsibility for these failures.
Given DeMarco's admission of responsibility, the absence of complaints by
any clients, and the fact that the Court appears to have taken steps to ensure that
despite DeMarco's failings, briefs were accepted out of time and some dismissed
cases reinstated, the Committee accepts DeMarco's representation that while
there was potential for harm to his clients, it did not rise to a level that would
warrant more serious discipline. It appears that Mr. DeMarco has taken the
Court's referral seriously and has taken steps to ensure that court orders are met.
On balance, the Committee believes that DeMarco's deficient and sometimes
negligent conduct warrants that he be publicly reprimanded.
B. Conclusion
The Committee recommends that Mario DeMarco be publicly reprimanded
for the conduct set forth above. 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 of New York, in addition to the required hours of CLE.
Finally, DeMarco 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
43
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 permission to make a late
filing only after the due date has passed. It is expected that these reports will
show no such instances absent exigent circumstance, which circumstances should
be attested to under oath in the respective report.
In the event that a report is not timely filed or reveals deficiencies not
justified by exigent circumstance, the Committee may recommend the imposition
of additional discipline, including but not limited to further suspension from the
Second Circuit, without hearing further testimony.
The following reporting periods and deadlines shall be observed. The
report for each reporting period shall be mailed to the Committee Secretary
within ten (10) days of the end of that reporting period. The first reporting
period shall commence 10 days after the Committee's recommendation is mailed
to DeMarco and shall end six months after the Second Circuit issues its order of
disposition in this matter. Each of the three subsequent reporting periods shall
be for a reporting period commencing at the end of the prior reporting and
ending six months later. A total of four reports shall be prepared and mailed to
the Committee Secretary.
The dissent asserts that DeMarco should be subjected to a period of
suspension, but the majority of the Committee disagrees. A public reprimand
with the reporting required above is a serious sanction for a lawyer and is not
just a slap on the wrist. While DeMarco clearly engaged in the improper conduct
for a period of time before this Court that is described above, he has accepted
responsibility, made major corrective changes in his practice, and has had no
repetition of the conduct in the last three years. He has appeared before a panel
of this Committee on three separate occasions and has willingly (and without
rancor) cooperated with the Committee. Additionally, the problems appear to
have arisen out of neglect, not out of any intention to harm others or obtain
undue benefit for himself, such as would justify the more serious sanction of
suspension.
44