In re Bank
| Decision Date | 03 May 2021 |
| Docket Number | 20-90010-am |
| Parties | In re Todd C. Bank, Attorney. |
| Court | U.S. Court of Appeals — 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 TO 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 3rd day of May, two thousand twenty-one.
PRESENT: José A. Cabranes, Richard C. Wesley, Circuit Judges.*
This panel ordered Todd C. Bank to show cause why disciplinary or other corrective measures should not be imposed on him pursuant to Federal Rules of Appellate Procedure 46(b) and (c) and Second Circuit Local Rule 46.2, based on certain conduct described in our order (the "Show-Cause Order"). Bank timely responded to that order. Upon due consideration of the conduct discussed below and Bank'sresponse to the Show-Cause Order (the "Response"), it is hereby ORDERED that Bank is PUBLICLY REPRIMANDED for his misconduct in this Court.
Bank was referred to the Grievance Panel by the panel that presided over Doyle v. Palmer, 19-939, in which Bank represented the appellant, Robert Doyle. During oral argument for that appeal, Bank responded to a judge's questions by twice asking "Are you serious, Judge?" and then commenting, "I see that you read the briefs thoroughly." Later, after being told that he had waived any reply, Bank disrupted the proceeding by failing to be seated, resulting in the panel asking a court security officer ("CSO") to escort him from the courtroom. After Bank was removed from the courtroom by the CSO, he failed to comply with the CSO's instruction to enter an elevator until the CSO escorted him to it.
In a post-argument letter to the Doyle panel, sent several days later, Bank stated, inter alia, that he should have been "more diplomatic" at the oral argument, that he understood the judge's umbrage at his comments, and that he failed to immediately comply with the CSO's request that he leave the courtroom because he had not heard the panel's instruction to that effect. The Court affirmed the district court's decision in Doyle, characterizing the claim brought by Bank as "specious." Doyle v. Palmer, 787 F. App'x 794, 795 (2d Cir. 2019).
In Bank's Response to the Show-Cause Order, he apologized for his conduct at the oral argument, which he conceded was "acrimonious and insulting," he expressed shock, shame, and embarrassment at his behavior, and he accepted responsibility for it. Response at ¶¶ 5-7.
Bank also stated in his Response that he has "never been ordered by any bar, court, or disciplinary authority to address why [he] should not be disciplined, sanctioned, reprimanded, censured, or denied admission or readmission." Response at ¶ 4. However, other courts have imposed sanctions on him in response to motions for that relief filed by opposing parties.
First, the United States District Court for the Eastern District of New York sanctioned Bank for knowingly filing a time-barred complaint. See McCabe v. Lifetime Entm't Servs., LLC, 17-cv-908, 2018 WL 1521860 (E.D.N.Y. Jan. 4, 2018) (), recommendation adopted, 17-cv-908, text order entered 3/26/2018 (E.D.N.Y. 2018), aff'd, 761 F. App'x 38 (2d Cir.), cert. denied, 140 S. Ct. 81 (2019). In his Response, Bank stated that, in filing the McCabe complaint and arguing that it was timely, he "relied in good faith upon a litigant's right to present substantively non-frivolous claims and arguments that are foreclosed by binding precedent in order to preserve them for appellate review." Response at ¶ 9. Bank did not mention that this Court explicitly rejected that argument when he appealed the district court's sanction order. See McCabe, 761 F. App'x at 41-42 (); see also In re Payne, 707 F.3d 195, 205 (2d Cir. 2013) ().
The Federal Circuit also has sanctioned Bank, both for bringing a frivolous appeal and for filing a frivolous motion for sanctions. Bank v. Al Johnson's Swedish Restaurant & Butik, Inc., 795 F. App'x 822, 826-27 (Fed. Cir. 2019). In his Response, Bank stated that his argument before the Federal Circuit was made in good faith, Response ¶¶ 15-18, but did not suggest that he lacked a full opportunity to litigate the frivolousness issue in that court.1
Bank's conduct during the oral argument in Doyle v. Palmer, 19-939, violated New York Rule of Professional Conduct 3.3(f)(2), which prohibits "a lawyer before a tribunal" from "engag[ing] in undignified or discourteous conduct"; it also constituted "conduct unbecoming a member of the bar"within the meaning of Federal Rule of Appellate Procedure 46(c). In his Response, Bank correctly characterized his conduct at the oral argument as "acrimonious and insulting," Response at ¶ 6, and the record does not suggest any justification for his discourtesy. Even if Bank believed that the judge's questions were unreasonable, which the record does not suggest, his obligation as a member of this Court's bar was to respond in a civil manner. In re Snyder, 472 U.S. 634, 647 (1985). "Lawyers, as officers of the court, must always be alert to the rule that zealous advocacy [on] behalf of a client can never excuse contumacious or disrespectful conduct." Van Iderstine Co. v. RGJ Contracting Co., 480 F.2d 454, 459 (2d Cir. 1973); accord N.Y. Rule of Professional Conduct 3.3, Comment 13.
Bank suggested in his post-argument letter to the Doyle panel that his conduct should be viewed in the light of prior poor treatment he has received from judges of this Court, whom he did not identify. Doyle, 19-939, doc. 54 at 4. To the extent Bank intended this as a defense, we reject it. The record does not reflect that the judges presiding over the oral argument did anything that warranted Bank's disrespectful responses or support the suggestion that prior conduct by other judges somehow justified that conduct. There also was no justification for exposing the other people present in the courtroom to that conduct.
We view Bank's failure to be seated upon being told he had waived rebuttal to be a continuation of his discourteous conduct. Bank appears to suggest that he remained standing only to ask that the panel's decision be published. Nonetheless, it was an unwarranted disruption, although it may not have been noteworthy had it not followed his discourteous words during his oral argument.
However, we conclude that Bank did not knowingly disrupt proceedings before the panel by refusing to leave the courtroom. Bank's assertion that he did not hear a directive from the bench requiring him to leave is supported by the oral argument transcript. Regarding Bank's interaction with the CSO outside the courtroom—which Bank characterized as "a brief misunderstanding regarding the process of[his] leaving the courthouse," Response at ¶ 7—we decline to inquire further, or to rely on that interaction, since the alleged conduct would not alter any conclusion we reach in this matter, making any adversarial fact-finding an unnecessary burden on all concerned.
There are at least two significant aggravating factors: Bank has been an attorney since 1997, see In re DeMell, 589 F.3d 569, 573 (2d Cir. 2009) (); ABA Standards for Imposing Lawyer Sanctions ("ABA Standards") § 9.22(i) (1986, amended 1992) (listing "substantial experience in the practice of law" as an aggravating factor), and his discourtesy was public and in the presence of the judge he insulted, see In re Teague, 131 A.D.3d 268, 271 (1st Dep't 2015) (). While Bank's presentation of frivolous claims or arguments in Doyle, McCabe, and Bank could be considered a "pattern of misconduct," ABA Standards § 9.22(c) (), we treat it as a minor aggravating factor since the number of instances is limited and we believe that Bank, from a subjective perspective, did not act in bad faith.
There also are mitigating factors. First, we are not aware of any other discourteous conduct by Bank covered by the Rules of Professional Conduct and he has not previously been disciplined by any bar. However, as noted above, Bank has been sanctioned and criticized by other courts. See ABA Standards §§ 9.22(a), 9.32(a) ().
Second, and more important, in his Response to our Show-Cause Order, Bank accepted responsibility and expressed remorse, shame, and profound sorrow for his conduct at the Doyle oral argument, which he described as an...
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