In re Andre Sobolevsky

09-90051-am
In re Andre Sobolevsky
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL
RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING
A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”).
A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Daniel Patrick Moynihan United
States Courthouse, 500 Pearl Street, in the City of New York, on
the 8th day of July, two thousand eleven.
PRESENT:
José A. Cabranes,
Robert D. Sack,
Richard C. Wesley,
Circuit Judges.
_______________________________________
09-90051-am
In re Andre Sobolevsky,
Attorney. ORDER OF
GRIEVANCE PANEL
_______________________________________
For Andre Sobolevsky: Andre Sobolevsky, Esq., New
York, New York.
1 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
2 DECREED that the report of this Court’s Committee on Admissions and
3 Grievances (“the Committee”) is adopted, and Andre Sobolevsky is
4 PUBLICLY REPRIMANDED and SUSPENDED from practice before this Court
5 for a period of at least two years, based on the misconduct
1 described in the Committee’s report.
2 I. Summary of Proceedings
3 By order filed in May 2009, this Court referred Sobolevsky to
4 the Committee for investigation of the matters described in that
5 order and preparation of a report on whether he should be subject to
6 disciplinary or other corrective measures. After Sobolevsky
7 responded in writing to the May 2009 order, he waived his right to
8 a hearing before the Committee. In October 2010, the Committee
9 filed with the Court the record of the Committee’s proceedings and
10 its report and recommendations. Thereafter, the Court provided
11 Sobolevsky with a copy of the Committee’s report, and Sobolevsky
12 responded.
13 In its report, the Committee concluded that Sobolevsky had
14 engaged in a pattern of willful neglect of his responsibilities to
15 his clients and the Court, and that there was a strong possibility
16 that his misconduct would continue in the absence of discipline.
17 Report at 9. Specifically, the Committee found that Sobolevsky had:
18 (1) filed in this Court appellate briefs of “shockingly poor
19 quality,” id. at 4; (2) failed to supervise non-lawyer staff, and
20 aided in the unauthorized practice of law, id. at 5; (3) failed to
21 comply with this Court’s scheduling orders and neglected client
22 matters, even after he was on notice of the present proceeding, id.
23 at 6-8; (4) filed petitions for review in this Court despite venue
24 lying in other circuits, id. at 8; and (4) made a number of
25 misstatements in these proceedings, raising serious doubts as to
2
1 whether he has been fully candid and cooperative in this proceeding,
2 id. at 9. After finding significant aggravating and limited
3 mitigating factors, id. at 5-8, the Committee recommended that
4 Sobolevsky be suspended for a period of at least two years, and that
5 the suspension not end unless Sobolevsky demonstrates that he is fit
6 to resume the practice of law, id. at 9.
7 In his response to the Committee’s report, Sobolevsky stated,
8 inter alia, that: (1) his misconduct had occurred at a time when he
9 was experiencing “a surge of immigration petitions” and this Court
10 was changing its processing of immigration appeals; (2) the
11 Committee had “failed to take into account [his] prior good work
12 with the Court”; (3) he had had no intention of misleading the
13 Committee or Court; and (4) no client was actually prejudiced by his
14 misconduct. However, Sobolevsky did not address a number of the
15 Committee’s findings, including those concerning his filing of
16 deficient briefs, his failure to supervise non-lawyer staff, and his
17 aiding in the unauthorized practice of law.
18 II. Discussion
19 We concur with all of the Committee’s findings, but are
20 particularly disturbed by Sobolevsky’s extremely poor briefing in
21 the cases examined by the Committee, his inaccurate statements about
22 those cases in the present proceeding despite being well aware that
23 they were of central importance to the proceeding, his filing of
24 pleadings drafted by non-lawyers, and his failure to respond to
25 important findings in the Committee’s report. Those matters, by
3
1 themselves, would warrant a two year suspension.
2 We reject all of Sobolevsky’s challenges to the Committee’s
3 report, and find that the Committee properly addressed the matters
4 discussed in his response. Regarding the Committee’s alleged
5 failure to take into account his “prior good work,” Sobolevsky does
6 not now identify that prior work, but we assume that he is referring
7 to his statements in his June 2009 response to our May 2009 order
8 that: (a) he had obtained a remand to the agency in Sulaymanov v.
9 USCIS, 04-5208-ag, June 2009 Response at 2; (b) “on at least three
10 occasions [he had] achieved the positive and concrete result of
11 getting the petition granted[,] positively impacting a number of
12 families in their hard[-]sought quest for adjusting status to that
13 of a permanent resident,” although he did not further identify those
14 cases,1 id. at 3; (c) he had “submitted a good brief” in Razzakova
15 v. Bureau of Citizenship & Immigration Services, 03-40641-ag, id.;
16 and (d) his work in Chion Yin Kong v. Holder, 08-5277-ag, “shows a
17 much improved writing, [and] timely and complete submissions,” id.
18 at 4. However, even if we accept Sobolevsky’s characterization of
19 his work in those cases, he does not explain what weight it should
20 have been given by the Committee, or why the Committee should have
21 known that he wished it to be treated as a mitigating factor.
1
For purposes of this order, we liberally construe
Sobolevsky’s June 2009 response in his favor and assume that the
three unnamed cases do not include Sulaymanov, Razzakova, or
Chion Yin Kong – i.e., that he obtained favorable results and/or
wrote good briefs in six different cases.
4
1 Nonetheless, even if we assume that Sobolevsky had properly
2 requested that the Committee treat his “prior good work” as a
3 mitigating factor, we find that the Committee did not err in that
4 regard. Evidence of competent legal representation is relevant to
5 the disciplinary charges against Sobolevsky, and the Committee did
6 note that Sobolevsky had won a remand in Sulaymanov. See Report at
7 7. In any event, Sobolevsky’s ability to competently discharge his
8 obligations in six cases is not a significant mitigating factor when
9 weighed against the misconduct described in the Committee’s report.
10 Whether or not the Committee considered Sobolevsky’s performance in
11 those six cases, the discipline recommended by the Committee remains
12 appropriate.
13 III. Conclusions
14 Upon due consideration of the Committee’s report, the
15 underlying record, and Sobolevsky’s submissions, it is hereby
16 ORDERED that Sobolevsky is PUBLICLY REPRIMANDED and SUSPENDED from
17 practice before this Court for a period of two years, based on the
18 misconduct described in the Committee’s report.
19 It is further ORDERED as follows:
20 (a) The suspension period will terminate only upon a
21 showing by Sobolevsky that he is fit to resume the
22 practice of law. The minimal requirements of that showing
23 are described on page 9 of the Committee’s report. Any
24 request for termination of the suspension must be made by
25 motion filed under this docket number.
26
27 (b) Sobolevsky must disclose this order to all courts and
28 bars of which he is currently a member, and as required by
29 any bar or court rule or order. Sobolevsky also must,
5
1 within fourteen days of the filing of this order, file an
2 affidavit with this Court confirming that he has complied
3 with the requirements set forth in this paragraph.
4 The text of this panel’s May 2009 order and the Committee’s
5 report are appended to, and deemed part of, the present order for
6 purposes of disclosure of this order by Sobolevsky and the Clerk
7 of Court. The Clerk of Court is directed to release this order to
8 the public by posting it on this Court’s web site and providing
9 copies to members of the public in the same manner as all other
10 unpublished decisions of this Court, and to serve a copy on
11 Sobolevsky, this Court’s Committee on Admissions and Grievances,
12 the attorney disciplinary committee for the New York State
13 Appellate Division, First Department, and all other courts and
14 jurisdictions to which this Court distributes disciplinary
15 decisions in the ordinary course.2
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk
18
19
20
21
22
23 By: Michael Zachary
24 Counsel to the Grievance Panel
25
26
2
Counsel to this panel is authorized to provide, upon
request, documents from the record of this proceeding to other
attorney disciplinary authorities. While we request that all
such documents remain confidential to the extent circumstances
allow, we leave to the discretion of those disciplinary
authorities the decision of whether specific documents, or
portions of documents, should be made available to any person or
the public.
6
1 APPENDIX 1
2 Text of May 2009 Order
3
4 For the reasons that follow, Andre Sobolevsky is referred to
5 this Court’s Committee on Admissions and Grievances for
6 investigation of the matters described below and preparation of a
7 report on whether he should be subject to disciplinary or other
8 corrective measures. See Second Circuit Local Rule 46(h). We
9 express no opinion here as to an appropriate disposition. The
10 Committee may, of course, in the first instance, determine the
11 appropriate scope of its investigation.
12
13 Sobolevsky has been referred to this panel on seven separate
14 occasions since October 2008 because of the poor quality of his
15 briefing. See Bao Hua Xiao v. Mukasey, No. 08-1244-ag, order
16 filed Oct. 6, 2008; Li Fang Liu v. Mukasey, No. 08-1310-ag, order
17 filed Oct. 17, 2008; Chun Qu Zhang v. Mukasey, No. 08-0585-ag,
18 order filed Oct. 20, 2008; Qi Lin Zheng v. Mukasey, No. 08-1412-
19 ag, order filed Oct. 28, 2008; Chang Xin Lin v. U.S. Att’y Gen’l,
20 No. 07-5762-ag, order filed Dec. 5, 2008; Zhong Sheng Guo v.
21 Mukasey, No. 08-1234-ag, order filed Dec. 19, 2008; Gui Xing Wang
22 v. Mukasey, No. 08-1701-ag, order filed Jan. 6, 2009. The panels
23 deciding those cases noted the following:
24
25 1. In Bao Hua Xiao, the panel found that Sobolevsky’s
26 brief was “of such poor quality that it waive[d] any
27 challenge to the [Board of Immigration Appeals (“BIA”)]
28 decision under review.” See Bao Hua Xiao, No. 08-1244-
29 ag, order filed Oct. 6, 2008. The panel also noted that,
30 among other things, the brief: referred to the petitioner
31 by the wrong name; repeatedly indicated that the petition
32 for review challenged the BIA’s affirmance of a decision
33 of an immigration judge (“IJ”) when it actually challenged
34 the BIA’s denial of a motion to reopen; referred to the
35 submission of evidence that had never been submitted; and
36 argued that the IJ had failed to consider evidence of
37 widespread torture of members of house churches even
38 though the petitioner had not applied for relief under the
39 Convention Against Torture and had never claimed to be a
40 member of a house church. See id.
41
42 2. In Li Fang Liu, the panel stated that Sobolevsky’s
43 brief -- described as being “of extremely poor quality” --
44 purported to challenge an adverse credibility
45 determination, although no such determination had ever
46 been made by the agency; argued the merits of an asylum
47 claim, although the petitioner had been ordered removed in
48 absentia and the petition arose from the denial of a
7
1 motion to reopen; and contained boilerplate language that
2 was wholly irrelevant to the petitioner’s case. See Li
3 Fang Liu, No. 08-1310-ag, order filed Oct. 17, 2008.
4
5 3. In Chun Qu Zhang, the panel found that Sobolevsky’s
6 brief: challenged the IJ’s adverse credibility
7 determination, although that determination played no part
8 in the BIA decision under review; argued that the IJ had
9 erred in finding that the petitioner had submitted
10 insufficient corroborating evidence, although the IJ never
11 made such a finding, and that the IJ had erred in relying
12 on the petitioner’s airport interview, although the IJ had
13 made no findings regarding an airport interview and the
14 record did not include any evidence of such an interview;
15 and, in sum, waived any challenge to the BIA decision at
16 issue. See Chun Qu Zhang, No. 08-0585-ag, order filed
17 Oct. 20, 2008.
18
19 4. In Qi Lin Zheng, the Court granted the government’s
20 motion for summary affirmance of the BIA’s order and
21 dismissed the petition as lacking an arguable basis in law
22 or fact. See Qin Lin Zheng, No. 08-1412-ag, order filed
23 Oct. 28, 2008. The panel noted that Sobolevsky’s brief
24 was of poor quality and “largely discussed matters that
25 are irrelevant and foreclosed by this Court’s prior
26 decision concerning Petitioner.” Id.
27
28 5. In Chang Xin Lin, the panel found that Sobolevsky’s
29 brief: referred to evidence that was never submitted;
30 referred to arguments that were never made before the
31 agency; contained boilerplate that had nothing to do with
32 the case; and contained passages that were unintelligible.
33 See Chang Xin Lin, No. 07-5762-ag, order filed Dec. 5,
34 2008.
35
36 6. In Zhong Sheng Guo, the panel noted that the petition
37 sought review of the BIA’s affirmance of the IJ’s denial
38 of a motion to reopen while Sobolevsky’s brief purported
39 to challenge the agency’s denial of an application for
40 asylum. See Zhong Sheng Guo, No. 08-1234-ag, order filed
41 Dec. 19, 2008. The panel was especially troubled that
42 Sobolevsky argued that the IJ had erred in finding Guo not
43 credible, since the IJ did not make a credibility finding
44 and, in fact, could not have done so because Guo had been
45 ordered removed in absentia. See id. Because the
46 arguments in the brief bore little if any relation to the
47 agency decision under review, the panel found that Guo had
48 waived all relevant arguments. See id.
49
8
1 7. In Gui Xing Wang, the panel found that Sobolevsky’s
2 brief was of poor quality and failed to challenge the
3 BIA’s dispositive finding, that Wang had failed to
4 exercise due diligence in pursuing his ineffective
5 assistance claim against his prior counsel, thus waiving
6 all relevant arguments. See Gui Xing Wang, No. 08-1701-
7 ag, order filed Jan. 6, 2009.
8
9 In addition to poor briefing, Sobolevsky also has repeatedly
10 failed to comply with scheduling orders and other directives of
11 this Court. In 2003, Sobolevsky filed 14 petitions for review,
12 eight of which were ultimately dismissed for failure to submit the
13 petitioner’s brief by the deadline specified in the scheduling
14 orders. See Volkova v. INS, No. 03-4205-ag, order Mar. 29, 2005;
15 Netsajeva v. INS, No. 03-4412-ag, order filed Sept. 22, 2005
16 (appeal later reinstated by new counsel); Netsajev v. INS, No. 03-
17 4449-ag, order filed May 4, 2006 (same); Shahvorostov v. INS, No.
18 03-4450-ag, order filed May 4, 2006 (same); Pavlyshak v. INS, No.
19 03-4821-ag, order filed April 1, 2005; Otarbayev v. BCIS, No. 03-
20 40202-ag, order filed Jan. 27, 2006; Kourmei v. BCIS, No. 03-
21 40828-ag, order filed Oct. 17, 2005; Gretchanina v. INS, No. 03-
22 41241-ag, order filed Jan. 31, 2006.
23
24 In 2004, Sobolevsky filed seven petitions for review, two of
25 which were dismissed for failure to comply with the Court’s
26 scheduling orders. See Tikhonova v. INS, No. 04-1496-ag, order
27 filed Sept. 30, 2005; Sulaymanov v. USCIS, No. 04-5208-ag, order
28 filed Mar. 9, 2006 (later reinstated). The Court dismissed a
29 third petition for review for lack of jurisdiction because the
30 petition itself was not timely filed. See Ahmetova v. BCIS, No.
31 04-0994-ag, order filed Dec. 8, 2004.
32
33 In 2005, Sobolevsky filed nine petitions for review, seven
34 of which were dismissed for failure to comply with scheduling
35 orders. See Juknevicius v. USCIS, No. 05-2011-ag, order filed
36 Dec. 21, 2005; Skiblitskaia v. USCIS, No. 05-2016-ag, order filed
37 A.K. Marsh. 10, 2006; Zubar v. USCIS, No. 05-3129-ag, order filed May
38 17, 2006; Zubar v. USCIS, No. 05-3133-ag, order filed May 17,
39 2006; Zubar v. USCIS, No. 05-3134-ag, order filed May 17, 2006;
40 Zubar v. USCIS, No. 05-3138-ag, order filed May 17, 2006;
41 Papikyan v. USCIS, No. 05-4775-ag, order filed Jan. 23, 2006. An
42 eighth petition was dismissed for failure to file Form C/A. See
43 Tsiklauri v. USCIS, No. 05-5671-ag, order filed Mar. 31, 2006.
44
45 Sobolevsky filed 34 petitions for review in 2008. In ten of
46 those cases, this Court ordered Sobolevsky to show cause why the
47 petition should not be dismissed for failure to file his brief by
48 the deadline specified in the scheduling order. See Dong Huang
49 v. Mukasey, No. 08-0071-ag, order filed May 23, 2008; Ying Xiu
9
1 Gao v. Mukasey, No. 08-1073-ag, order filed July 31, 2008; Shun
2 Xing Lin v. Mukasey, No. 08-1233-ag, order filed July 15, 2008;
3 Sheng Zhong Guo v. Mukasey, No. 08-1234-ag, order filed July 17,
4 2008; Yi Shu Li v. Mukasey, No. 08-2171-ag, order filed Oct. 24,
5 2008; Wei Jiang v. Mukasey, No. 08-2413-ag, order filed Aug. 18,
6 2008; Jing Jing Ou v. Mukasey, No. 08-2896-ag, order filed Oct.
7 31, 2008; Fang Zian Guan v. Mukasey, No. 08-3156-ag, order filed
8 Nov. 3, 2008; Bao Hua Wang v. Mukasey, No. 08-3808-ag, order
9 filed Dec. 17, 2008; Chun Ke Zhen v. Mukasey, No. 08-6031-ag,
10 order filed Apr. 6, 2009. In seven of the cases in which an
11 order to show cause was issued, Sobolevsky failed to respond to
12 the order, and the petition was dismissed for failure to comply
13 with the scheduling order. See Dong Huang, No. 08-0071-ag, order
14 filed June 9, 2008; Ying Xiu Gao, No. 08-1073-ag, order filed
15 Aug. 22, 2008 ; Yi Shu Li, No. 08-2171-ag, order filed Nov. 14,
16 2008; Wei Jiang, No. 08-2413-ag, order filed Oct. 16, 2008; Jing
17 Jing Ou, No. 08-2896-ag, order filed Dec. 24, 2008; Fang Zian
18 Guan, No. 08-3156-ag, order filed Nov. 20, 2008; Chun Ke Zhen,
19 08-6031-ag, order filed Apr. 27, 2009. Sobolevsky also submitted
20 at least two defective briefs and appendices in 2008. See Chen
21 Shao He v. Mukasey, No. 08-0915-ag, notice filed June 18, 2008
22 (proof of service and special appendix missing; insufficient
23 number of copies; cover and other portions of brief defective;
24 unacceptable font; untimely filing); Yan Qin Chen v. Mukasey, No.
25 08-1702-ag, entry dated June 26, 2008 (incorrect docket number
26 and font; missing virus certification form and PDF versions of
27 brief and appendix); see also Chen Shao He, No. 08-0915-ag, entry
28 dated Feb. 23, 2009 (noting discussion with Sobolevsky about lack
29 of response to February 2, 2009 order, failure to keep address
30 current, and intention to respond that day, which did not occur).
31
32 Finally, Sobolevsky has improperly filed eight petitions for
33 review in this Circuit, although the Board of Immigration Appeals
34 orders challenged by those petitions clearly showed that the
35 immigration proceedings had been completed in other Circuits.
36 See cases docketed under Nos. 08-1074-ag (transferred to First
37 Circuit); 08-1230-ag (same, Third Circuit); 08-1235-ag (same);
38 08-2169-ag (same, Sixth Circuit); 08-5207-ag (same, Fifth
39 Circuit); 08-5385-ag (same, Eleventh Circuit); 08-6025-ag (same,
40 Seventh Circuit); 08-6027-ag (same, Third Circuit); see also
41 Immigration and Naturalization Act § 242(b)(2), 8 U.S.C. §
42 1252(b)(2) (petition for review “shall be filed with the court of
43 appeals for the judicial circuit in which the immigration judge
44 completed the proceedings”).
45
46 Thus far, Sobolevsky has filed only one petition for review
47 in 2009. His brief in that case is due by June 1, 2009. See Yi
48 Ying Pan v. Holder, No. 09-0488-ag.
10
1 Upon due consideration of the matters described above, it is
2 ORDERED that Andre Sobolevsky is referred to this Court’s
3 Committee on Admissions and Grievances for investigation and
4 preparation of a report consistent with Federal Rule of Appellate
5 Procedure 46, this Court’s Local Rule 46(h), and the Rules of the
6 Committee on Admissions and Grievances.
7
8 [remainder of order omitted]
9
10 FOR THE COURT:
11 Catherine O'Hagan Wolfe, Clerk
12
13 By:________/s/_____________
14 Michael Zachary
15 Supervisory Staff Attorney
Counsel to the Grievance Panel
11
APPENDIX 2
October 2010 Report of the Committee
on Admissions and Grievances
REPORT & RECOMMENDATION
Re: In re Andre Sobo)evsky, ## 09-900S1-am
I. Introduction
By Order dated May 26, 2009, the United States Court of Appeals for the Second Circuit
("the Court") referred Andre Sobolevsky to this Committee, for investigation of his conduct
before the Court -- including "poor quality" briefing and frequent defaults on scheduling orders --
and for preparation of a report on whether he should be subject to disciplinary or other corrective
measures.
The following constitutes the Committee's report and recommendation to impose
discipline on Sobolevsky. The Committee recommends that Sobolevsky be suspended from
practice before the Second Circuit for a period of at least two years.
II. This Disciplinary Proceeding
The Court's May 26, 2009 order referring this matter to the Committee also ordered
Sobolevsky to show cause why he should not be suspended pending the Committee's
proceedings, and requested the Committee to make a preliminary recommendation as to whether
such an interim suspension was appropriate. Sobolevsky responded to that order by declaration
dated June 19,2009. On August 21, 2009, the Committee issued a recommendation
"conclud[ing] that no interim suspension is necessary," in light of the fact that Sobolevsky had
no pending cases in t~e Second Circuit. The Committee simultaneously gave Sobolevskynotice
of referral and an. oppprtunity to suppfementhis response.
By letterdateq SeptemberlJ.2009., Sobolt",vsky de.cHned .theopportunity to supplement
1
. his response. On October 12, 2009, the Committee gave Sobolevsky notice of a hearing, to be
held on November 10,2009. By letter dated October 31,2009, Sobolevsky waived his right to a
hearing, and indicated that he intended to "rely on [his] previously submitted responses."
III. Factual Background
The following facts are taken primarily from court records. and also from Sobolevsky's
written submissions. I
Sobolevsky wo,s admitted to the bar ofthe State of New York in 1985. He is also
admitted to the bars of the trhird Circuit an.d the Northern District of New York. He is in good
standing with each bar. It does not appear that he has been subject to any previous discipline.
Sobolevsky is primarily an immigration practitioner. Since 2003, Sobolevsky has
represented numerous asylum petitioners in the Second Circuit. Initially. his practice appears to
have focused on Russian immigrants; since 2008, the majority of his clients have been Chinese.
Between 2003 and 2005, Sobolevsky filed a total of30 petitions for asylum and/or
withholding of removal in the Second Circuit. Seventeen of those petitions were dismissed for
failure to comply withscheduJing orders, and one was dismissed for faHure to timely file the
petition itself. In the following two years, Sobolevsky filed only one petition, which was not _
dismissed for default. In 2008, Sobolevsky filed 34 petitions. In ten ofthose cases, he failed to
comply with scheduling orders, and was ordered to show cause why the petitions should not be
dismissed. In seven of those cases, Sobolevsky failed to respond, and the petition was dismissed.
Sobolevsky filed only one case in the Second Circuit in 2009 -- fi fing Part v. Holder.
09-0488-ag. At the time of the Court's May 26,2009 referral order, that case was still pending,
and Sobolevsky's brief was due June 1. 2009. The case was subsequently dismissed, for
Sobolevsky's faHure to follow the scheduling order. Sobolevsky currently has no cases pending -
in the Second Circuit.
In addition to Sobolevsky's numerous defaults on scheduling orders, the Court's order
cites two additional sources of concern. Fi~st, Sobolevsky's briefing has been the subject of
repeated criticism from the Court. In seven cases in 2008, the Court issued orders criticizing the
quality ofSobolevsky's briefing. See, e.g., Li Fang Llu. 08-1310-ag, order filed Oct. 17,2008,
describing Sobolevsky' s brief as "of extremely poor quality." Second, eight of the petitions filed
by Sobolevsky in the Second Circuit in 2008 were improperly filed in that Circuit, because the
immigration proceediJiJgs below had been conducted in other Circuits.
]. ThcCOmJnittee tiasalst:f:re~i~~e!nllereteYant retordso(thel)eparl;rnenlaiDi~Plin,rycomm;AAer9rt1ieFi~t
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fiqdings or re~dati<¥nll. . . .... .
. < •
IV. LegslStandard
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 ofthe bar or for failure to comply with any court rule." Fed. R. App. P.
46(c). "Conduct unbecoming a member of the bar" may include any conduct "contrary to
professional standards that show[s] an unfitness to discharge continuing obligations to clients or
courts, or conduct inimical to the administration of justice." 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." Id at 646 n.7.
Courts have consistently treated neglect of client matters and ineffective or incompetent
representation as sanctionable conduct. See, e.g., Gadda v. Ashcroft, 377 F.3d 934, 940 (9th Cir.
2004),AmneslyAm. v. TownofW, Hartjord,361 F.3d 113, 133 (2d Cir.2004),Matlerof
Rabinowitz, 596 N.Y.S.2d 398,402 (N,Y. App. Div. 1993). United States v. Song, 902 F.2d 609
(7th Cir. 1990), Maller of Kraft, 543 N.Y.S.2d 449 (N.Y. App. Div. 1989), In re Bi/honey, 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, 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(AX3); 22 N.Y.C.R.R. §
1200.30(A)(3) (2008); see a/so N.Y. Rules of Prof I 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 "be punctual in fulfilling aU
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
3
Committee on Admissions and Grievances, Rule 7(h). Once misconduct has been established, in
determining the sanction to be imposed, we should generally consider: (a) the duty violated; (b)
the lawyer's mental state; (c) the actual or potential injury caused by the lawyer's misconduct;
and (d) the existence of aggravating or mitigating factors. See ABA Standards § 3.0. This
Committee may recommend to. the Court's Grievance Panel a range of sanctions, including
disbarment. suspension, public or private reprimand, monetary sanction, removal from pro bono
or Criminal Justice Act panels, referral to other disciplinary bodies, supervisiId. 2
Sobolevsky correctly acknowledges that this is "not an excuse or [] justification." Id
Sobolevsky was responsible for the actions of non-lawyers acting at his direction, and for his
failure to responsibly supervise them. D.R. 1-104(C), (D). In fact, Sobolevsky's conduct
"constitutes an aggravating rather than mitigating factor." In re Karen Jaffe, 585 F.3d 118 (2d
Cir.2009). Sobolevsky'sexplanation that at least some of the briefs in question were drafted by
non-lawyers, and filed without his review, amounts to "a clear concession that [he] aided the
unauthorized prnctice of law, in violation ofD.R. 3-101(A)" Id. at 123.
The Committee therefore finds that Sobolevsky's defective briefing and failure to
supervise non-lawyer staff constitute sanctionable misconduct, as does Sobolevsky's aiding in
the unauthorized practice oflaw. SoboJevsky's conduct is aggravated by his substantial
experience in the practice of law, and the fact that his conduct amounts to a pattern of neglect,
involving multiple instances of misconduct. ABA Standards § 9.22(a), (c), (d), (i).
The Committee has also considered certain potential mitigating factors. The Committee
finds these factors insufficient to significantly mitigate Sobolevsky's conduct.
First, Sobolevsky claims that his conduct was due to the "border line glaucoma," which
he developed in 2008, and which made it painful for him to read "even a few pages not to
mention record on appeal." June 19,2009 Declaration, at 1. Sobolevsky provides no evidence
of this diagnosis. Assuming, however, that his claim is true, it does little to mitigate his conduct.
While physical disability may be a mitigating factor, see ABA Standards § 9.22(h), it cannot
excuse Sobolevsky's abandonment of his responsibilities. Sobolevsky appears to have taken no
steps, or at least no effective steps, to ensure that his clients were adequately represented despite
his physical limitations, or, if he was in fact physically unable to represent them, to make
alternative arrangements.
Second, Sobolevsky acknowledges his error, states that he feels "regret," and offers "a
thousand apologies." Remorse may be a mitigating factor. See ABA Standards § 9.32(1).
However, due to Sobolevsky's reluctance to appear before the Committee, it is difficult to gauge
the depth or genuineness of So bolevsky's remorse. Moreover, despite his claims of remorse,
Sobolevsky's response gives the Committee little confidence that he apprecia~es the significance
of his conduct.
Sobolevsky states that "the fact pattern and legal issues were nearly identical in all of my
cases." June 19,2009 Declaration, at 1. He explains:
2 It is unclear from Sobolevsky's response whether all of the defective briefs were produced in this manner,
or whether Sobolevsky personally drafted some of them. It makes no significant difference to the Committee's
ftndings of misconduct whether the defects in the briefs were the result of SoboJevs~'s inadequate supervision of
non-lawyer staff, or Sobolevsky's personal negligence.
5
I do not believe that any of the clients were prejudiced as better
written briefs would have failed ... the fact patterns of all my
Chinese cases was the same: more than two US born children after
an order of removal. Both BlA and the Court settled the legal
issues surrounding such faet pattern.
/d at 3. 3
This is simply not true. The seven cases cited in the Court's order as defectively briefed
involve a varlet?' of different legal issues, procedural postures, and factpattems. In fact, of the
seven cases cited by the Court, none are dependent on a fact pattern involving US-born children,
4
and several do not involve the one-child policy at al1. Sobolevsky apparently had at least four of
the cited briefs in his possession when drafting his response, because he was subsequently able to
provide copies of them to the Committee. See Sobolevsky's letter dated September 18,2009.
He does not appear to have read them: His continued inattentiveness to the particular facts of his
clients' cases clearly shows that he still does not understand his responsibilities as a lawyer.
2. De/aults on Scheduling Orders and Neglect o/Client Mailers
Sobolevsky's pattern of defaulting on scheduling otders stretches back to 2003. Between
2003 and 2005, seventeen ofSobolevsky's 30 petitions in the Second Circuit were dismissed for
failure to comply with scheduling orders. III 2008, SQbolevsky failed to comply with scheduling
orders in ten of 34 cases, and seven of those cases were dismissed for his failure to respond to
orders to show cause.
In his response, Sobolevsky attempts to explain the circumstances ofthe 2003-2005
dismissals. In all but three cases, Sobolevsky claims that the petitioners abandoned their cases,
or replaced him as counsel, or that their cases were "meritless." In two cases, Sobolevsky claims
to be unable to recall the circumstances of his default. FinalJy, one of the dismissed cases,
3 Sobolevsky is presumably referring to the contested issue of whether the Chinese authorities subject
returning Chinese nationals to forcible sterilization for violation ofttie one-child policy where a second child has
been born outside China. The BIA has concluded that the weight of the evidence shows that China does not enforce
its policies in that way, see In Fe C- C-, 23 I&N Dec. 899 (BIA. March 23, 2006), and the courts have upheld the
BIA's determination. See, e.g., Wei Guang Wang v. BfA. 437 ·F.3d 270 (2d Cir. 2oo6),Xiu Jin Yu v. Muwey, SI3
F.3d 346 (3d Cir. 2008).
4 Bao Hua Xiao, 01-S726, was a claim based on persecution for political activism; Qi /-in Zhengv. Mukafey,
08-1412 was based on Falun Gong membership; and Chung Qu Zhangv. Mukasey, 08-OS8S, was bucdon '
membership in a Christian home church. In Li Fang Liu v. Mukasey, 08-1310, Sobolcvsky's briefbe(ore, the'Court
relies entirely on an argument regarding persecution Wf Falun Gong membership, although an altemati:w:c !;lrgu~
based on U8-born children was offered before the BIA. The facts ofOuI Xing WDllg v. Mulwsey, 08,·119J, arc ," ,
unclear from Sobolevsky's brief, but from the record below appear to involve past persecution relatiil',tQ ~bi~
children. SimUarl)'.Chan"Xin Lin, OS-S162,involved Chi(la·bomchildren. Finally, altboughSob() ~brietin " ".
Zhong Sheng Guo Y. Muka,Jey, 08-t234, JdVCl1S in ~ing(fot n9c1eQrTeaSon)to tbcforei~ , '... . ,l~ ..:: '
see Petitioner's Brief at 9, [this 'appears to .have no relation to thll issues below, where the petitioner in~~JJ~$Q~'. "
asylum on tbe.baslsof his;wifc's .induccdabortiQllfoUowing the bi:1lioftw'oc;:bndr~n il)-China. ao4'~Jd;.., ". r
moved to reopen on the basis of his, conversiotl to Christianity. " :' l~:;'~,~i" 't-i., ~,':" '::'
, . . . 6';(~:~-'7' ."',:
Sulaymanov, 04-5208, was reinstated after Sobolevsky's default, and Sobolevsky ultimately won
a remand for his client. His response does not address the circumstances of the initial default.
With respect to hb defaults in 2008, Sobolevsky does not appear to be able to provide
specific details. He claims generally that he was overwhelmed by a "surge of clients," that he
had problems receiving his mail, and that many or perhaps all of the clients whose cases were
dismissed' abandoned their cases. As noted above. he also claims to have suffered from "border
line glaucoma." June 19 Declaration at 2-3.
Finally, Sobolevsky argues that "almost all" his clients' cases had the same fact pattern,
involving US-born child~en. which proved to be non-meritorious. and that therefore no client was
prejudiced by his defauI},' The Committee cannot be sure whether this claim is accurate, in
respect of clients whose ases were dismissed for failure to file a brief - it is hard to know what
Sobolevsky might have rgued, had he filed a brief. However, in light of the briefs the
Committee has been abl¢ to review, Sobolevsky's claim is not persuasive, and his ability to
determine whether a c1ie~ts' case was meritorious or not is highly questionable.
I .
I
It is possible, e~en
so, that no client was actually prejudiced. However, to the extent
that Sobolevsky put potdntially meritorious claims at risk of dismissal for default, it is clear that
or
he posed a serious risk such prejudice. Moreover, even in the event that - as he claims - no
potentially meritorious c~aims were affected by his conduct, his persistent failure to comply with
scheduling orders, or to properly withdraw, despite numerous warnings from the Court over
several years, shows a d~sregard for his responsibilities to the Court, See Bennett v. Mukasey~
525 F.3d 222,225 (2d qr. 2008); D.R. 2-110(A)(2); 22 N.Y.C.R.R. § 1200. 1S(A)(2) ("A lawyer
shall not withdraw from employment [without] complying with applicable laws and rules"); see
also N.Y.R. l.l6(e).
Sobolevsky's cOal!duct with respect to Yi Ying Pan v. Holder, 09-0488, is especially
troubling. Sobolevsky'sl brief in that case was still pending at the time of the Court's May 26,
2009 referral order. On ~he day it was due, June 1,2009, Sobolevsky requested an extension of
time to respond. His request was defective in several respects, including that it was by letter
rather than motion, and .hat it used the wrong name for both the petitioner and the AUSA. The
Court instructed him to ~orrect the defective filing by June 12. See Notice of defective filing,
dated 6/2/09. Sobolevs~y failed to do so. Nor did he move to withdraw, despite having
indicated his intention tq file a motion to withdraw in his June 19,2009 response to the
Committee, in telephonei conversations with the Court's staff on July 2, 2009, se~ Internal docket
for 09-0488-ag, and in t~lephone conversations with the Committee's personneJ.5 On July 24,
2009, the Court issued an Order to Show Cause why the case should not be dismissed.
Sobolevsky did not respond, and the case was dismissed on August 13,2009. Sobolevsky's
5 This appears to be consistent with a pattern of non-responsiveness on Sobolevsky's part. See Chen Shoo
He v. Mukase)', 08-0915, internal docket entry dated 2123109, noting that Sobolevsky had indicated his intention to
respond that day to an outsta~ding order to show cause, which he failed to do.
7
. I .
i
persistence in his failure to comply with the COurt"soJ:d~rs.evenduring the penderi~y'oftbis·.
disciplinary proceeding, strongly suggests that such conduct is. likely to continue in the future.
i . .. .
The Committ~e finds that Sobolevsky'sco~c~ was ''unbeco~ing a member of tile bar,"
Fed. R. App. P. 46(c)~ and "inimical to theildrnbii~tion of justice,H In re Snyder, 472\:1.S. at
645, and that he negl~cted client matters in violation ofD.R. 6-101 (A)(3). Again,. the Committee
finds that Sobolevsk}!'s conduct is aggravated by his substantial experience· in the practice. of law,
and by the fact that hls conduct amounts to a pattern of neglect, inv01ving multiple instances of
misconduct, over a ~riod of several years and apparently likely to be ongoing. ABA St8ndards §
9.22(a), (c), (d), (i). The Committee finds no significant mitigating factors.
. I
3. Improper Filingo/Ptlitions in the Second Circuit
Finally, the C(>urt's referral order notes that SobolevskY has improperly filed eight
petitions for review in the Second Circuit, although the immigration proceedings at issue had ben
completed in other qrcuits. In response, Sobolevsky claims that "these clients came to my
office on the eve of the deadline .... giving them less than 24 hours to file the petition for
review" and that he filled in the Second Circuit "for a nominal fee" and ''10 buy the clients the
additional time they needed to find another lawyer in the appropriate jurisdiction.... I do not do
that anymore." June 19,2009 Declaration, at 1.
Sobolevsky's explanation does not appear to be strictly accurate. For example, in Xi
Chen v. Mukasey, 08.;1230, which was improperly fiJed in the Second Circuit despite the fact that
the immigration proceedings had been conducted in Newark, the BIA decision appealed from
was dated February 26, 2008, and the petition was fiJed on March ]4.2008 - well within the 30-
day period required by 12 USC § 12S2(b)(l). Similarly, in Arina v. Mukasey, 08-1074. it appears
that the petitioner's motion to reopen was denied on February 12,2008, and the petition for
review was filed on March 5, 2008.
In light of Sobolevsky's briefing practices, it seems probable that most or all of these
petitions were filed in the wrong Circuit simply because Sobolevsky (or his paralegals) failed to
read the records. Assuming that is the case, it is further evidence of Sobolevsky's neglect of his
clients' cases. In this case, the error that resulted from that neglect may not have prejudiced his
clients, since their cases were simply transferred to the proper jurisdiction. but his conduct
created an unacceptable risk of prejudice.
Sobolevsky' s explanation _. tbat he filed the petitions in the Second Ci~uit for the
convenience of clients who might otherwise have had difficulty timely finding a lawyer in the
proper Circuit - may.be true in part, at least with respect to some of the petitions at isSue.. See,
e.g., Jiang v. Mukasey, in which the BiA's decision was dated April 8,2008 and the petition was
filed May 5,200S.However. even ttSsuming that his explanation is true. the Cotl)lllitteefinds
that1liscon.l:J1J(:t·wasquestioJla\lle~Inc()njl.nwtionwith hisneglect.ofNsbrienng~nsibilities
and his disregard of Sf;:heduling,tbis practice shows a lack ofrespectfol' and tandortoward the
Court. . :..
8
4. Sobplevsky's Credibility and Cooperation with the Committee
As set out above, Sobolevsky's response contains several statements which do not appear
to be consistent with the record, regarding the factual and legal issues presented by his clients'
cases, and regarding the circumstances of the petitions improperly filed in the Second Circuit.
Moreover, during the pendency of this proceeding he told the Committee and the Court that he
intended to move to withdraw in Yi Yang Pin, but did not.
The Committee is unable to find by clear and convincing evidence that Sobolevsky's
inaccurate statements constitute deliberate attempts to mislead the Court or the Committee. It
appears likely that ,sobolevsky's misstatements are largely the product of carelessness. At the
very least, however, these misstatements raise serious doubts as to whether Sobolevsky has been
fully candid and cooperative with these proceedings, and strongly suggest that the misconduct at
issue is likely to continue unless a sufficient sanction is imposed. The Committee's
recommendation t~es these concerns into account.
VI. Recommendation
Sobolevsky's conduct warrants discipline. The evidence clearly shows a pattern of
willful neglect of $obolevsky's responsibilities to his clients and to the Court. It appears likely
that this conduct may continue. The aggravating factors are significant, and mitigation limited.
Under the dircurnstances, the Committee believes that a period of suspension of at least
two years should be imposed. The lifting of that suspension should be conditioned on a showing
(to be made either to the Court, or to the Committee) that Sobolevsky is fit to resume the practice
of law. This showing should include evidence that Sobolevsky has attended suitable CLE
programs in brief-Writing and Jaw office management, and that he has not, during the period of
his suspension from the Second Circuit, been in default on any other tribunal's scheduling orders,
and has not been diticized for the quality of his briefing by any other tribunaL To the extent that
he continues to suffer from glaucoma, he should provide a brief statement of how he intends,
despite his physica~ difficulties, to ensure that his clients are adequately represented.
9 '