In re DeMell, Docket No. 07-9040-am.

• Citation: 589 F.3d 569
• Decision Date: 21 December 2009
• Docket Number: Docket No. 07-9040-am.
• Parties: In re Harry DeMELL, Attorney.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

589 F.3d 569

In re Harry DeMELL, Attorney.

Docket No. 07-9040-am.

United States Court of Appeals, Second Circuit.

December 21, 2009.

Roger B. Adler, Esq., New York, N.Y., for Harry DeMell.

Before: JACOBS, Chief Judge, CABRANES, POOLER, KATZMANN, PARKER, RAGGI, WESLEY, HALL, LIVINGSTON, and LYNCH, Circuit Judges.

PER CURIAM:

In July 2007, this Court ordered Harry DeMell to show cause why he should not be referred to this Court's Committee on Attorney Admissions and Grievances ("the Committee") for investigation of the matters described in that order. In a subsequent order, filed in November 2007, the Court found DeMell's response to the July 2007 order unsatisfactory and referred him to the Committee for investigation and preparation of a report on whether he should be subject to disciplinary or other corrective measures.

During the Committee's proceedings, DeMell had the opportunity to address the matters discussed in the Court's referral order, to testify under oath at a hearing held on June 2, 2008, and to present a post-hearing brief and a subsequent supplementary letter. DeMell was represented in the proceedings by Roger B. Adler, Esq. Presiding over the hearing were Committee members Evan A. Davis, Esq. and Deirdre Daly, Esq. In January 2009, the Committee filed with the Court the record of the Committee's proceedings and its report and recommendations. Thereafter, the Court provided DeMell with a copy of the Committee's report, and DeMell filed a response, which contains a number of objections to the report.

In its report, the Committee concluded that there was clear and convincing evidence that DeMell had engaged in conduct "unbecoming a member of the bar" within the meaning of Federal Rule of Appellate Procedure 46(c). Specifically, the Committee found that DeMell had engaged in "conduct inimical to the administration of justice," In re Snyder, 472 U.S. 634, 645, 105 S.Ct. 2874, 86 L.Ed.2d 504 (1985), and had neglected matters entrusted to him as a lawyer, New York Disciplinary Rule 6-101(A)(3), by (1) failing to timely respond, or timely request an extension of time to respond, to a motion to dismiss, resulting in prejudice; (2) failing to file Form C/A in a case, resulting in its dismissal; and (3) failing to timely submit papers, or timely request an extension of time, in several other cases.¹ See Report at 8.

The Committee also found that there were several aggravating and mitigating factors. The following were found to be aggravating factors: (1) there were multiple instances of misconduct, establishing a pattern, although the Committee found that the facts only fell "slightly on the side of aggravation," id. at 9; (2) DeMell failed to demonstrate complete candor with the Committee, id.; (3) DeMell failed to demonstrate an adequate commitment to corrective action, id. at 9-10; and (4) the victims of his misconduct were vulnerable, id. at 10. The following were found to be mitigating factors: (1) absence of a prior disciplinary record; (2) evidence of good character or reputation; and (3) remorse, except insofar as he argued that he was not at fault regarding one of the defaulted cases. Id. at 10.

Based on its factual findings, the Committee recommended that DeMell be publicly reprimanded for his misconduct, and required to submit to the Committee periodic status reports concerning his federal practice.

Upon due consideration of the Committee's report, the underlying record, and DeMell's objections, we adopt the Committee's factual findings concerning DeMell's misconduct in this Court, except as discussed below. We also adopt the Committee's conclusion that DeMell's misconduct was sufficiently serious that it warrants both a public reprimand and a requirement that he submit the period reports described in the Committee's report. The following discussion is intended to supplement the Committee's report in several respects, and to address DeMell's objections to the report.

DeMell's Responsibility for the Default in Constantine v. Gonzales, 06-4885-ag

DeMell argues in his response to the Committee's report that he is being unfairly "scapegoat[ed]" for the petitioner's failure in Constantine to file an opposition to the government's motion to dismiss. See Response at 2. DeMell claims that, once the petitioner's new attorney informed DeMell that he was being replaced, which occurred in late December 2006, he could take no further action in the case and the new attorney should have remedied the default. Id. at 2, 4; Post-Hearing Letter dated June 24, 2008. However, DeMell's objection ignores the Committee's rationale for finding that DeMell engaged in misconduct in the Constantine case: (a) the government served its motion on November 28 or 29, 2006; (b) under the applicable rule, opposition to the motion was due, at the latest, by December 13, 2006; and (c) it is undisputed that DeMell was the petitioner's counsel until late December 2006, but did not file any opposition papers or present any reason for not doing so. See Report at 8.

DeMell may be correct that the petitioner's new attorney also neglected the case, but that is irrelevant to the Committee's analysis. We are in complete agreement with the following statement from the Committee's report:

a significant contributing cause of the failure to file opposition papers — a failure that DeMell concedes was prejudicial to Constantine, Hearing Tr. 20:10-15 — was DeMell's failure to file a timely response or a timely motion for an enlargement of time. When DeMell passed on the file to [the new attorney] on or about January 10, 2007, he passed it on, either knowingly or negligently, with a substantial procedural default that was brought about due to his own, and no one else's, inaction. Whether [the new attorney] thereafter acted with sufficient diligence to remedy that default ... would not create a mitigating factor in DeMell's favor. A failure of substitute counsel to remedy a problem does not as an ethical matter excuse the misconduct of the lawyer who created the problem in the first instance by failing to file a timely opposition. ... Finally, DeMell as the departing lawyer failed to explicitly call the existing problem to [the new attorney's] attention, thereby contributing to the default.

Report at 8-9. DeMell's failure to address any aspect of the Committee's rationale is mystifying. We can only speculate that he did not understand the Committee's report, he remains unaware of his ethical obligations, or he simply sought to distract attention from his own poor performance by focusing on another attorney's poor performance. In any event, he has not taken responsibility for his lack of action in the case.

Production of Interview Notes

Prior to the Committee's June 2008 hearing in this matter, a Committee representative spoke by telephone to the attorney who had replaced DeMell in the Constantine case and retained notes from that conversation. See Hearing Tr. at 43-47; Report at 2, 9 n. 2. DeMell's request for a copy of those notes was denied on the grounds that the Committee would not be relying on any statements made by the attorney in that conversation, and that any potentially exculpatory information was already available to DeMell. See Report at 2; see also id. at 9 n. 2 (stating that Committee's recommendation is not based on any disputed fact resolved adversely to DeMell). In his response to the Committee's report, DeMell argues that the Committee's refusal to provide him with a copy of the interview notes "was fundamentally unfair and legally erroneous." Response at 2, 4. However, DeMell provides no analysis or citation to authority in support of that argument.

Under the rules governing the Committee's proceedings, an attorney who is the subject of a Committee investigation "has the right to examine all documents in the record, unless a protective order is obtained from the Grievance Panel." Rule 7(c) of the Rules of the Committee on Attorney Admissions and Grievances. Additionally, we assume that due process requires the Committee to make available to the attorney under investigation all evidence that will be used against the attorney and all evidence that is either exculpatory or may lead to exculpatory evidence. In this context, DeMell's argument is construed as an assertion that the notes at issue were part of the record, could have led to exculpatory evidence, and therefore should have been turned over in the absence of a protective order. It is not entirely clear from the report whether the Committee applied the Rule 7(c) and due process standards, but even if it did not, any possible error would have been harmless.

DeMell does not suggest that the new attorney had any conceivable information relating to the relevant time period immediately following the filing of the government's motion to dismiss — i.e., the ten-day time period in which DeMell should have filed a response to that motion. Nor does DeMell suggest that he himself was unable to contact the new attorney directly, or that the Committee's findings or recommendation were affected in any way by his inability to review those notes. Since the Committee's findings relating to the Constantine case are based entirely on DeMell's inaction prior to the involvement of the new attorney, and DeMell has failed to show that the failure to grant access to the notes prejudiced him in any way, we reject DeMell's objection to that aspect of the proceedings.

Vulnerable Clients as Aggravating Factor

As noted above, the Committee found that the vulnerability of DeMell's clients was an aggravating factor. See Report at 10. DeMell objects that this finding lacks a factual basis in the record. See Response at 4.

An attorney who is the subject of disciplinary proceedings must have adequate notice of, and adequate opportunity to address, any aggravating factor at issue. Because the Committee report does not make clear the factual basis for its finding that DeMell's victims...