Opinion
M-2-238.
November 30, 2009
OPINION AND ORDER
This matter comes before the Committee on Grievances for the United States District Court for the Southern District of New York (the "Committee") to consider the imposition of discipline against Respondent Uzmah Saghir (the "Respondent"), an attorney admitted to the Bar of this Court. The matter began as a result of allegations made to the Committee by an individual ("Client Roe") who had previously retained Respondent in connection with a motion pursuant to 28 U.S.C. § 2255. On July 8, 2009, the Committee issued an interim order of suspension of the Respondent pending final resolution of formal charges filed against her. For the reasons set forth below, the Committee now issues an order striking the name of Respondent Uzmah Saghir from the roll of attorneys admitted to practice before the bar of this Court.
Procedural Background
On November 1, 2002, Client Roe was charged with various narcotics offenses in this District. Client Roe pled guilty on January 12, 2004, and was sentenced on July 20, 2005, to a term of 14 years' imprisonment, and five years' supervised release. Client Roe is currently serving his sentence at a federal prison outside the State of New York ("Federal Prison X").
In mid-April 2007, Client Roe retained Respondent through family members to represent Roe in connection with making a motion under 28 U.S.C. § 2255. On April 30, 2007, a Notice of Motion, dated April 26, 2007, seeking an Order to Vacate, Set Aside, or Correct the Sentence [of Roe] was filed in this District (the "§ 2255 Motion"), with a return date of May 30, 2007. The § 2255 Motion was drafted by another inmate ("Inmate Doe") at Federal Prison X, and signed by Client Roe. Respondent's name appears in the lower left hand corner of the first page of the document as a recipient of the Motion. At the time, Respondent represented Inmate Doe in connection with a matter pending in another federal district court, and had previously represented him in connection with a matter in this District.
More than six months later, on November 13, 2007, Respondent attempted to electronically file a Notice of Appearance and letter requesting a conference on the § 2255 Motion. The filings were rejected because the matter was a non-ECF case. On November 29, 2007, Respondent manually re-filed the Notice of Appearance. She did not re-file the letter requesting a conference.
No conference was held, nor was there any other activity in connection with the § 2255 Motion until September 17, 2008, when, following communications between Client Roe and the pro se office of this Court, a civil matter was opened and the § 2255 Motion was filed.
On or about October 8, 2008, Client Roe wrote a letter to the district judge assigned to his criminal matter complaining about Respondent's representation of him in connection with the § 2255 Motion. The district judge referred Client Roe's complaint to this Committee.
On December 1, 2008, the Committee issued an Order to Show Cause directing Respondent to show why the Court should not censure, suspend, or strike her name from the roll of attorneys admitted to practice before this Court. On December 19, 2008, Respondent submitted an Affirmation and exhibits in response to the Order to Show Cause (the "Saghir Affirmation").
On January 29, 2009, the Committee appointed Celia Goldwag Barenholtz, Esq. of Cooley Godward Kronish LLP, a member of the panel of attorneys appointed to advise and assist the Committee, to investigate as necessary and prepare such statement of charges as the Committee deemed warranted. Since January 2009, Ms. Barenholtz and Maxine Sleeper, Esq., also of Cooley Godward Kronish LLP (collectively, "Investigating Counsel") have conducted an investigation on behalf of the Committee.
On March 10, 2009, at the request of Investigating Counsel, the Committee issued a Subpoena Duces Tecum to Respondent returnable March 27, 2009 (the "March 10 Subpoena"). On April 16, 2009, Respondent sought an extension of time to respond, and her time was extended to May 8, 2009. On May 11, 2009, Respondent invoked the Fifth Amendment with respect to each of the 17 enumerated document requests. On May 15, 2009, in response to a letter from Investigating Counsel, Respondent advised Investigating Counsel that she would also assert the Fifth Amendment in connection with her deposition.
On June 29, 2009, Investigating Counsel issued a formal statement of charges against Respondent (the "Statement of Charges").
On July 8, 2009, the Committee issued an interim order of suspension of Respondent. See In re Saghir, 632 F. Supp. 2d 328 (S.D.N.Y. 2009). The Committee also issued a supplemental Order to Show Cause, directing Respondent to submit, by July 27, 2009, any additional affidavits or other written submissions in response to the Statement of Charges. On July 24, 2009, Respondent sought a 90-day extension of time to respond to the Statement of Charges, citing her intention to obtain an affidavit from Inmate Doe, and his desire to consult with counsel before providing such an affidavit to her. By Order dated July 29, 2009, Respondent's time was extended to September 10, 2009; the Court noted that no additional extensions would be granted.
On August 11, 2009, Investigating Counsel asked Respondent to produce, no later than August 20, 2009, certain documents and categories of documents that had been requested in the March 10 Subpoena the production of which would not fall within the ambit of the Fifth Amendment privilege either because (a) their existence and location was a foregone conclusion and they could be authenticated by means other than Respondent's production of them, see In re Grand Jury Subpoena Duces Tecum Dated October 29, 1992, 1 F.3d 87, 93 (2d Cir. 1993); or (b) they were required to be maintained pursuant to DR 9-102 of the New York Code of Professional Responsibility (the "Code"). See In re Two Grand Jury Subpoenae Duces Tecum Dated August 21, 1985, 793 F.2d 69, 71-73 (2d Cir. 1986) (the Fifth Amendment privilege does not apply to the production of "required records," i.e., records that must be maintained pursuant to statute or rule). Investigating Counsel further informed Respondent that her failure to produce required records could be deemed not only a violation of a court order, but also an independent violation of the Disciplinary Rules.
The Committee also issued a Subpoena Duces Tecum, dated August 11, 2009, to Saghir Associates, PLLC ("Saghir Associates"), an entity through which Respondent conducts her legal practice, directing it to produce responsive documents on or before August 25, 2009. Upon Respondent's request, Saghir Associates' time to produce responsive documents was extended until September 10, 2009. Saghir Associates did not produce documents on September 10 or on any later date, nor did it provide any explanation for its failure to do so.
On August 20, 2009, Respondent requested an extension of time to produce documents in response to the August 11, 2009 letter. Investigating Counsel granted an extension until August 25, 2009. Respondent produced no documents on August 25, 2009, or on any later date, and offered no explanation for her failure to do so.
Investigating Counsel also sought documents and deposition testimony from Inmate Doe. By Subpoena Duces Tecum and Ad Testificandum dated July 21, 2009, the Committee directed Inmate Doe to produce documents and appear for testimony on August 26, 2009. By letter dated August 6, 2009, Inmate Doe moved the Committee to quash the Subpoena on various grounds. By letter dated August 17, 2009, Inmate Doe also moved the Committee to postpone the appearance for which he had been subpoenaed and for other ancillary relief. By Order dated August 21, 2009, the Committee denied both motions. Inmate Doe did not appear on August 26, stating that he was not feeling well. By letter dated August 27, 2009, Doe informed the Committee that no documents responsive to the subpoena were in his possession, custody, or control.
Investigating Counsel obtained the telephone records and visitor log from the federal prison where Doe was held just prior to his scheduled deposition ("Federal Prison Y"). The records show that Respondent visited Doe at Federal Prison Y five times during the week prior to Doe's scheduled deposition.
In view of Respondent's decision not to make a submission in response to the Statement of Charges, Investigating Counsel determined that Inmate Doe's deposition was not necessary.
On September 9, 2009, the day before her response to the Statement of Charges was due, Respondent submitted a letter to this Committee in which she stated that she had resigned from the bar of the United States Court of Appeals for the Second Circuit and would withdraw from the bar of this Court, effective immediately. Respondent submitted a letter of resignation to the bar of the United State District Court for the Eastern District of New York on the same day. On September 17, 2009, the United States District Court for the Eastern District of New York ordered that Respondent's name be stricken from the roll of attorneys of that Court. The September 17 Order noted that Respondent was the subject of investigation by the Grievance Committee of that Court at the time of her resignation.
Local Rule 1.5(b)(3) of the Southern and Eastern Districts of New York provides, inter alia, that discipline may be imposed where an attorney of this Court resigns from the bar of another federal court while an investigation into allegations of misconduct is pending. Accordingly, even if this Committee had no independent ground for imposing discipline, it could discipline Respondent solely on the basis of her resignation from the bar of the Eastern District.
On September 10, 2009, the day her response to the Statement of Charges was due, Respondent submitted a letter to the Committee requesting an additional extension of time to respond to the Statement of Charges, asserting that Inmate Doe's affidavit was essential to her defense and that he had declined to provide an affidavit in light of the subpoena issued to him in this matter ( see note 2, supra). Respondent further stated that should the Committee decline to grant her an extension, she would invoke her Fifth Amendment privilege with respect to all allegations and charges made against her.
Factual Background
In the Saghir Affirmation, Respondent admits to meeting with members of Client Roe's family in April 2007. She asserts that Client Roe's family provided her with a draft of the § 2255 Motion, advised her that Client Roe wanted to file the motion pro se because he had had bad experiences with lawyers and wanted to be sure that the arguments he wanted to present were in fact in his motion, and requested that she act as Client Roe's legal advisor until a response on the pro se motion was received from the government, at which time she would file a reply and assume the role as lead counsel for Client Roe.The Affirmation asserts that shortly after her initial meeting with Client Roe's family, she forwarded a written retainer agreement to Client Roe, and subsequently received an executed copy of the agreement from Client Roe via mail. Respondent attached to her affirmation a copy of a retainer agreement purportedly executed by Roe dated April 26, 2007 (the "Retainer Agreement").
The Retainer Agreement provides that Respondent would charge a "flat fee" of $15,000, and that "[a]n initial retainer of $5,000 is due immediately and the sum of $10,000 will be due once the reply is filed in this matter." The Agreement further provides: "As per your instructions, you will file your § 2255 motion pro se (which we have seen a copy of) we will only docket our appearance and proceed in the above matter after the government has filed a reply to your pro se motion and act only as your advisors until that point."
The Affirmation asserts that Respondent again met with members of Client Roe's family on April 23, 2007, at which time she received $5,000 as a retainer, with the understanding that the remaining fee would be paid as agreed upon in the retainer agreement. Respondent asserts that during this meeting, she was advised that Client Roe had filed the § 2255 Motion pro se. Respondent claims to have subsequently reviewed the docket and confirmed that the Motion had in fact been filed pro se on April 30, 2007, with a return date in May 2007.
The Affirmation states that it was Respondent's understanding that the § 2255 Motion was written by Inmate Doe at Client Roe's request, and was signed and mailed by Client Roe himself. Thus, Respondent asserts that "[n]either the preparation of that motion, nor its filing was done at my direction or under my supervision." Respondent specifically denies compensating Inmate Doe: "I provided no compensation to [Inmate Doe] for assistance of [Client Roe] with either legal research or the drafting of the motion."
The Affirmation explains that due to a complicated pregnancy beginning in January 2008, Respondent required bed rest and used her office only on a "need to" basis for several months. Respondent claimed that during that time, she spoke with Client Roe's niece and informed her that she was out of the office but was keeping an eye on Client Roe's docket. Respondent asserted that she had a miscarriage in April 2008, and subsequently worked on a part time basis and mostly from home. In July 2008, Respondent's grandmother passed away, and Respondent went to England to be with her family. She avers that she did not return until mid August 2008, and was not in her office from April 2008 to September 2008.
Finally, the Affirmation claims that Respondent wrote a letter to Client Roe on September 3, 2008, informing him that she would be withdrawing as his counsel in this matter (the "September 3, 2008 Letter"). Respondent attached an unsigned copy of the September 3, 2008 Letter as an exhibit to her Affirmation. In that Letter, Respondent writes, "After careful review of the record in this case I have concluded that it will not be in your best interest at this point to pursue the matter any further and for that reason you should withdraw your pro se motion." Respondent offers no explanation of what prompted her to come to this conclusion over 16 months after her retention or why she did not reach this conclusion in April 2007, if, as she contends, she saw a draft of the Motion at that time.
On April 8, 2009, Client Roe was deposed by Investigating Counsel. Client Roe testified that he learned about the services of Respondent through Inmate Doe after Client Roe saw a flyer advertising the legal services of the "Federal Imprisonment Reduction Experts, LLC" or "F.I.R.E." in the Federal Prison X library. Inmate Doe informed Client Roe that the flyer described services that Respondent could provide. Inmate Doe told Client Roe that he worked together with Respondent: Inmate Doe obtained clients and prepared motions, and Respondent executed the motions and did anything that had to be done on the outside. After collecting Client Roe's legal documents, Inmate Doe informed Client Roe that Respondent had analyzed the case and determined that the fee for her services would be $15,000. $5,000 was to be paid upfront, and the remaining $10,000 was to be paid after Client Roe prevailed on his motion and was released from prison. Inmate Doe promised Client Roe that he would be released from prison by November or December 2007.
"Federal Imprisonment Reduction Experts" or "F.I.R.E." is a company that was operated by Respondent's brother, Faizan Saghir. The Affirmation of Faizan Saghir (attached as an exhibit to the Saghir Affirmation) states that he and other family members (but not Respondent) founded F.I.R.E, and operated it as a legal research organization from early 2007 until the beginning of May 2007. Faizan Saghir's Affirmation explains that he created the F.I.R.E flyer and, through searches on the Federal Bureau of Prisons website for common names such as "Jack Smith" or "Jose Gomez," sent it to inmates in prisons throughout the United States. The Affirmation further states that F.I.R.E. received a call from an individual whose brother was an inmate at Federal Prison X, and referred that individual to Respondent, but that Respondent was not associated with F.I.R.E at any time. Notably, in April 2007, both Respondent and F.I.R.E. operated out of the same building at 111 Livingston Street in Brooklyn.
Client Roe testified that members of his family met with Respondent in her office in Brooklyn, paid her $5,000, and received a receipt in return. Client Roe stated that after Respondent was paid the $5,000 fee, Client Roe saw Inmate Doe typing the § 2255 Motion in the prison library. After Doe finished the Motion, Client Roe signed the document and returned it to Doe. Doe later told Client Roe that he had sent the Motion to Respondent.
Client Roe provided a copy of the receipt, and Respondent acknowledges that she issued it.
Client Roe further testified that he has never had any direct contact with Respondent. Any and all communication with her was conducted through Inmate Doe or members of Roe's family. Inmate Doe told Client Roe that Respondent would be visiting Client Roe, but no such visits occurred. Client Roe wrote to Respondent on June 23, 2008, seeking her opinion of his present situation and asking her to respond in writing. Client Roe testified that he received nothing in response from Respondent. Client Roe further testified that his family was unable to reach her by telephone after her retention in April 2007.
Client Roe testified that he never received or signed the Retainer Agreement. Moreover, he noted that the signature on the Retainer Agreement omits one of his middle names. Client Roe asserted that he always signs documents with his full name. Investigating Counsel has reviewed other documents signed by Client Roe, and has seen no other that is signed in the same manner as the Retainer Agreement.
Finally, Client Roe testified that he did not receive the September 3, 2008 Letter.
In an effort to resolve the discrepancies between Respondent's account and Client Roe's, Investigating Counsel served the March 10 Subpoena on Respondent. The March 10 Subpoena requested, among other things, documents concerning Client Roe and Inmate Doe; the Retainer Agreement, including the original Agreement, any envelopes in which it was sent or received, and any documents, such as a cover letter, that accompanied it; documents concerning Respondent's relationship with F.I.R.E.; documents concerning any arrangement with or payments to Inmate Doe or any other inmate at Federal Prison X; Respondent's cellular and office telephone records; financial records concerning payments made by her to Inmate Doe; and documents concerning communications between Respondent and Inmate Doe concerning Client Roe.
A number of documents requested in the March 10 Subpoena, including the Retainer Agreement and Respondent's financial records, are records that an attorney must maintain pursuant to Disciplinary Rule 9-102(D) of the Code ("Required Records"). Under the Code, Required Records include: (1) the records of all deposits in and withdrawals from any bank account which concerns or affects the lawyer's practice of law; (2) copies of all retainer and compensation agreements with clients; and (3) all checkbooks and check stubs, bank statements, prenumbered canceled checks and duplicated deposit slips with respect to any bank account which records the operations of the lawyer's practice of law. DR 9-102(I) specifically directs attorneys to produce Required Records in response to a subpoena issued by a grievance committee. DR 9-102(J) provides that the failure to keep or produce Required Records is an independent violation of the Disciplinary Rules.
As noted above, Respondent did not respond to the March 10 Subpoena other than to invoke her Fifth Amendment Rights.
In addition, Investigating Counsel requested records from Federal Prison X concerning Respondent's visits to and communications with inmates at Federal Prison X. On March 30 and April 6, 2009, Investigating Counsel received documents which show the following:
(1) From April 21, 2007 through September 16, 2008, Inmate Doe received 14 separate payments from Respondent or her brother Faizan Saghir. The payments total $5,450. The individual payments range from $200 to $750 and were made on a nearly monthly basis.
(2) Three of the visits to Inmate Doe occurred between January 2008 and April 2008 — during the time Respondent claims to have required bed rest as much as possible.
On September 27, 2007, Respondent sought leave to visit Inmate Doe on short notice as a result of a brief due in his case the following Monday. An examination of the docket sheet reveals no brief that was scheduled to be filed or that was filed on or about that date.
(3) Federal Prison X maintains a log of incoming correspondence that has been marked by the sender as "Special Mail," a designation which may be used by attorneys and courts, as well as certain other legal and governmental entities, and which is intended to ensure that the correspondence will be opened only in the presence of the inmate. From February 2007 through April 2008, Inmate Doe received "Special Mail" from Respondent on twelve separate occasions.
Investigating Counsel learned of at least one occasion in which Respondent improperly used the Special Mail system to transmit personal mail to Inmate Doe. Federal Prison X intercepted an envelope marked Legal Mail that had been sent to Doe by Respondent but contained a personal letter to Inmate Doe from an inmate at another prison. Based upon a review of Respondent's active cases, Investigating Counsel determined that the inmate writing to Doe was also Respondent's client.
(4) From April 1, 2007 to October 1, 2008, Respondent did not send any "Special Mail" to Client Roe. Respondent is plainly familiar with the Special Mail procedures, as correspondence from her to Inmate Doe is recorded in the log. Had Respondent mailed the Retainer Letter or the September 3, 2008 Letter to Client Roe she would have presumably marked it as Special Mail. The Records of Prison X therefore corroborate Client Roe's assertion that he did not receive the Retainer Letter or the September 3, 2008 Letter from Respondent.
(5) From April 1, 2007 to October 1, 2008, Respondent did not visit Client Roe.
Investigating Counsel also obtained from Federal Prison X a log of recorded and monitored telephone calls between Inmate Doe and Respondent, containing call notes entered by the prison employees monitoring the calls (the "Call Reports"). Investigating Counsel also obtained all extant recordings of monitored calls between Respondent and Inmate Doe. Each recorded call and each call reflected in the Call Reports was placed by Inmate Doe from a prison telephone next to a placard stating that the calls made from that telephone are recorded and may be monitored. The Call Reports show that from April 1, 2007 through February 2009, Inmate Doe and Respondent spoke regularly, often on a daily basis, and at times more than once a day. The call recordings indicate that Inmate Doe asked Respondent to provide him with information concerning cases against other individuals. Based on the admittedly fragmentary information contained in the Call Reports, it appears that Doe asked Respondent for this kind of information on a regular basis, and that some of the individuals mentioned in the calls are both inmates at Federal Prison X and clients of the Respondent. The Call Reports further indicate that on numerous occasions, Doe informed Respondent that certain individuals would be contacting her, that Doe and Respondent discussed specific amounts of money that would be charged to these individuals, and that Doe often determined and communicated — both to Respondent and to the potential clients — the amount to be paid for Respondent's services.
Investigating Counsel learned from Federal Prison X that the Call Reports are created as part of regular prison procedures by prison employees, some of whom have been hired for the specific purpose of monitoring calls and entering notes. The notes contained in the Call Reports are regularly reviewed and relied upon for their accuracy by various departments within the prison as a tool for gathering intelligence, identifying nefarious activity, and ensuring internal security.
During the course of the investigation, Investigating Counsel received letter complaints about Respondent from a number of other inmates at Federal Prison X. On July 13, 2009, Investigating Counsel deposed three of these inmates ("Clients A, B, and C").
Client A testified that he retained Respondent through his family in June 2007 based on a recommendation from Inmate Doe. Client A's family paid Respondent $30,000 to represent Client A in connection with a § 2255 Motion. Shortly after retaining Respondent, Client A filed a pro se § 2255 Motion prepared by Inmate Doe. Client A subsequently filed several pro se submissions, all of which he asserted were prepared by Inmate Doe. Client A asserted that he never had any direct communication with Respondent during the course of the representation, that Respondent did no work on his behalf, and that Respondent failed to appear to represent Client A at a hearing even after she assured Client A's family that she would attend. At some point in the spring of 2009, Respondent met with Client A at Federal Prison X to discuss the return of the retainer. Client A testified that Respondent stated that she would return Client A's retainer and would send Client A a document setting forth certain terms regarding the return of the fee, but she did not do so.
Client B testified that he retained Respondent in July 2007 after being told by Inmate Doe that Respondent could assist him in reducing his sentence or getting released from prison. Inmate Doe informed Client B that Respondent's fee would be $7,000, and that $3,500 must be paid upfront. A Western Union receipt produced by Client B indicates that Client B's wife wired $2,000 to Respondent on July 6, 2007, and wired $1,500 to another individual on July 7, 2007. Client B testified that the July 7 payment was made pursuant to Inmate Doe's instructions. Shortly after paying the retainer fee, Client B submitted a pro se § 2255 Motion, provided to him by Inmate Doe, and subsequently made several pro se submissions in his case, all of which were provided to him by Inmate Doe. Client B testified that neither he nor his wife had any communications with Respondent, despite numerous attempts to contact her.
Client C asserted that he retained Respondent through his family in September 2007 after learning about Respondent from Inmate Doe. Client C testified that he never had any communication with Respondent and that Respondent conducted no work on his behalf. Through discussions with Client C's aunt, Investigating Counsel learned that Respondent told Client C's aunt that the fee would be $3,000 to represent Client C in connection with his appeal, and that Respondent would provide Client C's aunt with a retainer agreement after receiving the payment. Client C's aunt stated that she sent Respondent a cashier's check for $3,000, but never received a retainer agreement and, despite numerous attempts to contact Respondent, had no further communication with Respondent.
The Court's Findings on the Statement of Charges
The Statement of Charges sets forth nine charges of allegations of misconduct constituting violations of various Disciplinary Rules ("DR") of the New York Code of Professional Responsibility (the "Code"). The Committee sustains each of the nine charges and finds that the record developed during the course of the investigation establishes, by clear and convincing evidence, that Respondent violated the Code by virtue of her conduct as described below. See Rule 1.5(b)(5) of the Local Rules of the United States District Courts for the Southern and Eastern Districts of New York.
On April 1, 2009, New York Courts replaced the Code with the New York Rules of Professional Conduct. The Committee reaches its decision applying the rules in effect as of Respondent's conduct, but notes that the disciplinary rules cited herein are fully consistent with the newly-adopted Rules in all respects here relevant.
In reaching its determination, the Court has taken the Respondent's invocation of the Fifth Amendment into account, and drawn an adverse inference from it. An adverse inference may be drawn when an attorney asserts her Fifth Amendment privilege against self-incrimination in a proceeding before a disciplinary committee. See In re Muraskin, 286 A.D.2d 186, 187, 731 N.Y.S.2d 458, 459 (1st Dep't 2001) (an adverse inference "may be drawn from respondent's invocation of the Fifth Amendment privilege against self-incrimination at his deposition before the [Departmental Disciplinary Committee]"); In re Boter, 46 A.D.3d 1, 7, 842 N.Y.S.2d 411, 420 (1st Dep't 2007) (same); In re Wallman, 260 A.D.2d 148, 150, 696 N.Y.S.2d 164, 165 (1st Dep't 1999) (suspending attorney where uncontested evidence before the Departmental Disciplinary Committee included affidavits of his clients and the adverse inference drawn from the respondent's invocation of privilege).
More generally, the Committee finds that discipline is warranted in this matter in light of the facts established during the course of this Committee's investigation, as well as the adverse inferences drawn from Respondent's invocation of her Fifth Amendment privilege and from Respondent's failure to respond to lawful demands by the Committee for documents not subject to privilege. Indeed, the Committee concludes that, even in the absence of the adverse inference, the record establishes, by clear and convincing evidence, that Respondent has engaged in conduct violative of the Code that satisfies each of the charges here at issue.
The Court turns first to Charge One, which alleges that, by neglecting the legal matter entrusted to her, Respondent violated DR 6-101(A)(3), and Charge Two, which alleges that Respondent failed to seek the lawful objectives of her client and failed to carry out a contract of employment to provide legal services, in violation of DR 7-101(A)(1) and DR 7-101(A)(2).
Respondent accepted $5,000 from Client Roe's family, and, with the exception of filing a Notice of Appearance nearly seven months after being retained, did no legal work on his behalf. When her letter requesting a conference was rejected as improperly filed, she did not resubmit it, nor did she do anything thereafter to bring the § 2255 Motion to the Court's attention. Indeed, other than reviewing the § 2255 Motion before it was filed and entering an appearance, Respondent did not claim in her Affirmation to have done anything other than check the docket. Respondent claims to have withdrawn from her representation of Client Roe by letter. Putting aside the question of whether the September 3, 2008 Letter was ever sent, Respondent did not withdraw her Notice of Appearance or seek the permission of the Court to withdraw as counsel. Even if this Committee were to credit Respondent's assertion that she was hired merely to serve as a legal advisor until after the government filed a response to the § 2255 Motion (a claim that is belied by the fact that she entered an appearance prior to the government's response), her conduct reflects complete neglect of her client's matter.
The evidence also indicates that Respondent did not make herself available to Client Roe or his family and ignored attempts by members of his family to communicate with her. Client Roe testified that members of his family tried to contact Respondent throughout the time that she was retained by him, but were unable to contact her. The record further indicates that Client Roe wrote to Respondent on June 23, 2008, but Respondent did not answer his letter.
Respondent asserts in her Affirmation that she spoke to members of Client Roe's family on a number of occasions — including during the time that she was working from home. She further stated that she had not been aware that either Client Roe or any of his friends of family had otherwise been attempting to contact her. The Committee puts no weight on these assertions given the adverse inferences arising from Respondent's refusal to testify, her failure to produce her correspondence and other files pertaining to Client Roe, and her lack of candor in other respects.
Respondent's attempt to justify her unavailability and her failure to act on the client's behalf does not excuse her conduct. Respondent asserted that she was required to be on bed rest as much as possible, was working on a part-time basis, and was out of the country at various times from January 2008 until the middle of August 2008. But during this time, she made trips to Federal Prison X to visit Inmate Doe, wired money to Doe, and communicated with Doe by mail and by telephone. It appears that her condition would not have prevented her from communicating with Client Roe or his family during this time.
By neglecting the matter of her client and by failing to communicate with her client, Respondent violated DR 7-101(A)(1), DR 7-101(A)(2), and DR 6-101(A)(3). See, e.g., In re Blumrosen, 253 A.D.2d 239, 240-41, 687 N.Y.S.2d 357, 359 (1st Dep't 1999) (where respondent agreed to represent clients and accepted retainers from clients, then did little if any work on clients' behalf, and further failed to communicate with clients, conduct constituted violation of, inter alia, DR 6-101(A)(3) and DR 7-101(A)(1)); In re Kudisch, 290 A.D.2d 43, 44, 733 N.Y.S.2d 731, 732 (2d Dep't 2001) (by failing to respond to inquiries from client's family, attorney violated DR 6-101(A)(3)); In re Zacek, 54 A.D.3d 84, 85, 859 N.Y.S.2d 886, 887 (4th Dep't 2008) (attorney who failed to respond to messages from clients and failed to appear for scheduled appointments with clients violated, inter alia, DR 6-101(A)(3)).
The Court turns next to Charge Three, which alleges that, by causing Inmate Doe to solicit clients on her behalf at Federal Prison X, Respondent violated DR 2-103(A); Charge Four, which alleges that by compensating Inmate Doe for recommending employment by a client or having made a recommendation resulting in employment by a client, Respondent violated DR 2-103(D); and Charge Eight, which alleges that Respondent violated DR 3-102 by sharing legal fees with a non-lawyer.
The testimony provided by Client Roe and other inmates at Federal Prison X makes clear that Inmate Doe actively solicited clients on Respondent's behalf and made representations regarding the services that Respondent would provide. Respondent or her brother wired money to Inmate Doe on 14 separate occasions. Based on the record, it appears that Respondent shared legal fees with Doe, a non-lawyer, to compensate Doe in part for his "legal" work and for recommending Respondent's services to other inmates. Respondent has not offered any meaningful alternative explanation. Moreover, in this regard, the Committee draws an adverse inference from Respondent's failure to respond to the Statement of Charges and refusal to produce her financial records. Accordingly, the Committee finds that Respondent violated DR 2-103 and DR 3-102. See In re Lajoy, 279 A.D.2d 695, 719 N.Y.S.2d 719, 720 (3d Dep't 2001) (respondent violated DR 2-103 and 3-102 by acquiescing in an inmate's solicitation of other prisoners on respondent's behalf and sharing legal fees with inmate who helped prepare appellate briefs).
Charge Five alleges that, by charging and accepting excessive fees for her limited services, Respondent violated DR 2-106.
Even crediting Respondent's version of events, she charged Client Roe $5,000 for acting as Roe's "legal advisor," a role which consisted of nothing more than lending her name to a pro se § 2255 Motion and entering a Notice of Appearance. The testimony provided by Clients A, B and C also indicates that Respondent charged substantial fees and did no work on their behalf, directing or allowing Inmate Doe to draft motions to be submitted pro se. By virtue of the foregoing, Respondent charged an excessive fee in violation of DR 2-106.
Charge Six alleges that, by directing or assisting Inmate Doe in preparing motions for her clients, Respondent aided a non-lawyer in the unauthorized practice of law, in violation of DR 3-101(A).
The evidence indicates that Inmate Doe prepared the § 2255 Motion for Client Doe with Respondent's knowledge and consent. Furthermore, she permitted her name to appear on the motion, accepted $5,000 for services to be rendered in connection with it, and entered an appearance on Client Roe's behalf. By virtue of the foregoing, Respondent aided a non-lawyer (Inmate Doe) in the unauthorized practice of law. See In re Abbott, 167 A.D.2d 617, 620-21, 563 N.Y.S.2d 848, 850-51 (3d Dep't 1990) (attorney violated DR 3-101 by allowing a non-lawyer to perform legal work, including research and preparation of motions, on attorney's behalf); In re Lajoy, 279 A.D.2d at 695, 719 N.Y.S.2d at 720.
Charge Seven alleges that by virtue of withdrawing from her representation of Client Roe and failing to ensure that her actions would not prejudice her client, Respondent violated DR 2-110(A)(1) and (A)(2).
In her Affirmation, Respondent asserted that she sent a letter to Client Roe on September 3, 2008, informing him that she would no longer represent him. However, Client Roe denies that he received the September 3, 2008 Letter and the Special Mail log does not reflect it. Wholly apart from the issue of whether Respondent notified Client Roe of her intent to withdraw, she did not seek permission from the Court to withdraw her representation, nor did she withdraw her Notice of Appearance, and there is no evidence that Respondent made any effort to ensure that her actions would not prejudice her client. By virtue of the foregoing, Respondent violated DR 2-110(A)(1) and (2).
Charge Nine alleges that by virtue of her conduct, Respondent violated DR 1-102(A)(3), (A)(4) and (A)(5). DR 1-102(A)(3) prohibits a lawyer from engaging in illegal conduct that adversely reflects on the lawyer's honesty, trustworthiness or fitness as a lawyer. DR 1-102(A)(4) prohibits conduct involving dishonesty, fraud, deceit or misrepresentation. DR 1-102(A)(5) prohibits conduct prejudicial to the administration of justice.
The record before this Committee, further reinforced by the adverse inferences, establishes violations of DR 1-102 by Respondent both with respect to her conduct vis a vis Client Roe and her conduct vis a vis this Committee.
First, with respect to Client Roe, Respondent accepted $5,000 from Client Roe's family with the understanding that she would provide legal services to Client Roe in return. Instead, Respondent instructed or permitted Inmate Doe — a non-lawyer — to draft and file the § 2255 Motion. The Committee does not believe that Client Roe or his family would have paid $5,000 to Respondent to secure the extraordinarily limited legal services described in the purported Retainer Agreement. The Committee finds that Client Roe reasonably believed he was retaining Respondent as his attorney in connection with the § 2255 Motion. See In re Lajoy, 279 A.D.2d at 695, 719 N.Y.S.2d at 720 (an attorney who paid a state inmate to help prepare appellate briefs in cases in which attorney was assigned or retained, shared legal fees with the inmate, and acquiesced in the inmate's solicitation of other prisoners was found to have violated, inter alia, DR 1-102(A)(4) and (5), and was suspended); In re Kudisch, 290 A.D.2d at 44, 733 N.Y.S.2d at 732 (an attorney who accepted retainer fee, conducted no work on client's behalf, and failed to reimburse unearned fee until after client complained to grievance committee violated DR 1-102(A)(4)).
Second, Respondent has been dishonest in her dealings with this Committee. In response to the initial Order to Show Cause, Respondent submitted an eight-page Affirmation pursuant to 28 U.S.C. § 746. The facts established during the investigation indicate that Respondent misled the Committee in at least the following respects:
(a) Respondent averred that the § 2255 Motion was not prepared at her direction or supervision and that she did not compensate Inmate Doe for preparing and filing it. The records received from Federal Prison X indicate that Respondent visited Inmate Doe on numerous occasions, spoke to Inmate Doe on a regular basis, and that Inmate Doe received 14 separate payments from Respondent or her brother totaling $5,450. The Committee finds that at least some of these visits and telephone calls concerned the provision of legal services by Doe to Client Roe, and that at least some of these payments were to compensate Inmate Doe for obtaining Client Roe as a client and drafting and filing the § 2255 Motion for him.
(b) Respondent provided this Committee with a Retainer Agreement bearing what purports to be Client Roe's signature. Respondent claims that that she sent the Retainer Agreement to Client Roe and received an executed copy from him by mail. However, Respondent has refused to testify under oath and has refused to produce the original Retainer Agreement, permitting an adverse inference. A retainer agreement is a record that must be kept pursuant to DR 9-102. Client Roe denies having seen or signed the Agreement, the Retainer Agreement is not signed in the manner Client Roe usually executes documents, and the records produced by Federal Prison X do not reflect that it was sent to Client Roe as "Special Mail." The Committee therefore finds that the Retainer Agreement was created after the fact to justify the limited legal services Respondent provided Client Roe. In re Boter, 46 A.D.3d at 5-7, 842 N.Y.S.2d at 418-420 (disbarring attorney whose conduct included causing employees to forge client's signature and filing falsified retainer agreements with the Office of Court Administration, in violation of, inter alia, DR 1-102(A)(3) and (4)).
(c) Respondent described various conditions and the like that purportedly justify her failure to communicate with Client Roe's family members who tried to reach her during this period. However, during the same period she was allegedly incapacitated, Respondent visited Inmate Doe (which required travel from New York) at least three times and spoke to Doe on a regular basis.
Respondent was given the opportunity to refute Client Roe's complaint, to provide evidence in support of her assertions, and to offer an explanation for the series of payments totaling $5,450 to Inmate Doe, but chose not to do so. In this civil matter, the Committee may infer that truthful answers to questions about her representation of Client Roe and her relationship with Inmate Doe would have been incriminating. In light of the uncontested evidence, and the adverse inference we draw, we are left to credit the evidence indicating that Respondent was not truthful in the Affirmation she submitted to this Court. See In re Abbott, 167 A.D.2d at 621, 563 N.Y.S.2d at 851 (attorney who attempted to mislead or deceive the disciplinary committee violated DR 1-102(A)(4) and (5)).
Third, Respondent has failed to cooperate with this Committee's investigation and has engaged in conduct prejudicial to the administration of justice in violation of DR 1-102(A)(5). Under New York law, an attorney respondent has a duty to cooperate with an investigation into allegations of misconduct. In re Lynch, 115 A.D.2d 70, 71-72, 499 N.Y.S.2d 735, 736 (1st Dep't 1986); In re Boter, 46 A.D.3d at 8, 842 N.Y.S.2d at 420 (respondent's failure to cooperate with committee's investigation resulted in interim suspension); In re Coughlin, 95 A.D.2d 64, 65, 465 N.Y.S.2d 180, 181 (1st Dep't 1983) (finding respondent's failure to cooperate with petitioner a violation of DR 1-102(A)(5)). A similar duty applies in an investigation by this Committee.
During the course of the Committee's investigation, Respondent has exhibited conduct that we deem to have been dilatory by design. This Court issued two subpoenas duces tecum to Respondent: one to Respondent in her individual capacity, and the other to her business entity, Saghir Associates. After being granted extensions of time to respond to each subpoena, Respondent produced no documents. Respondent's failure to provide Investigating Counsel with the requested Retainer Agreement and bank records, required to be maintained under the Code, violates not only DR 1-102 (conduct prejudicial to the administration of justice), but also constitutes an independent violation of DR 9-102(I) (failing to produce documents required to be maintained under DR 9-102 in response to a subpoena issued in a disciplinary investigation). See In re Marcin, 274 A.D.2d 199, 201, 711 N.Y.S.2d 818, 819 (4th Dep't 2000).
Moreover, based on her assertion that she needed time to obtain an affidavit from Inmate Doe, Respondent was granted an extension of time until September 10, 2009 to respond to the Statement of Charges filed against her, and was told that no further extensions would be given. On September 10, 2009, Respondent stated that she could not set forth her defense without an affidavit from Inmate Doe, was not able to obtain such an affidavit in light of the subpoena served on him, and requested an extension of time until after Doe's deposition. Given the close relationship that apparently exists between Respondent and Inmate Doe, the Committee is skeptical of Respondent's claim that she cannot obtain an affidavit from Inmate Doe. Of greater significance, Respondent has failed to offer any reason — and we can think of none — that a statement from Inmate Doe would be essential to her defense.
By virtue of the foregoing, Respondent has engaged in conduct prejudicial to the administration of justice in violation of DR 1-102(A)(5). See In re Deluca, 230 A.D.2d 234, 235, 655 N.Y.S.2d 516, 517 (1st Dep't 1997) (by failing to submit answers to inquiries concerning the complaints filed against him and failing to provide materials pursuant to subpoena, respondent "thwarted the Committee's investigation . . . and engaged in conduct prejudicial to the administration of justice, in violation of DR 1-102(A)(5)"); In re Pikna, 101 A.D.2d 588, 589, 476 N.Y.S.2d 140, 141 (1st Dep't 1984) (suspending respondent who failed to comply with subpoena for records without any justification, asserted his privilege against self incrimination at his deposition, and was deemed to have "willful[ly] and deliberate[ly]" failed to cooperate in violation of 22 NYCRR 603.15(e)).
Accordingly, for the reasons set forth above, the Clerk of the Court is directed to immediately strike Respondent's name from the roll of attorneys admitted to practice before this Court.
SO ORDERED: