In re Gordon, Docket No. 11–90055–am.

• Decision Date: 10 March 2015
• Docket Number: Docket No. 11–90055–am.
• Citation: 780 F.3d 156
• Parties: In re Peter S. GORDON, Attorney.
• Court: U.S. Court of Appeals — Second Circuit

780 F.3d 156

In re Peter S. GORDON, Attorney.

Docket No. 11–90055–am.

United States Court of Appeals, Second Circuit.

March 10, 2015.

Pery D. Krinsky, Krinsky, PLLC, New York, N.Y., for Peter S. Gordon.

Before: CABRANES, SACK, and WESLEY, Circuit Judges.

Opinion

PER CURIAM:

Pursuant to this Court's rules governing attorney discipline, it is hereby ORDERED, ADJUDGED, AND DECREED that the findings and recommendations of this Court's Committee on Admissions and Grievances (the “Committee”) are adopted, except as discussed below, and Peter S. Gordon is PUBLICLY REPRIMANDED, and SUSPENDED from practice before this Court for two months, for engaging in misconduct in this Court.¹

I. Summary of Proceedings

We referred Gordon to the Committee for investigation of his conduct in this Court and for preparation of a report on whether he should be subject to disciplinary or other corrective measures. The referral was based primarily on Gordon's defaults in a number of appeals and his filing of motions that were not authorized by any rule of appellate procedure. During the Committee's proceedings, Gordon had the opportunity to address the matters discussed in our referral order and to testify under oath at a hearing held before Committee members Terrence M. Connors, Kim A. Knox, and the Honorable Howard A. Levine. Gordon was represented at the hearing by Pery Krinsky. Thereafter, the Committee filed with the Court the record of the Committee's proceedings and its report and recommendations, as well as the minority report of Committee member Gerald Walpin. Gordon responded to the Committee's reports.

A. The Committee's Findings and Recommendations

The Committee found clear and convincing evidence that Gordon had engaged in misconduct warranting the imposition of discipline. See Majority Report at 12. Specifically, the Committee found that Gordon had (a) filed a number of nearly identical “summary judgment” motions in at least nine cases in this Court that were not authorized by any rule of appellate procedure; (b) failed comply with an April 2011 order directing him to either withdraw the summary judgment motions or explain their legal basis; (c) failed in seventeen cases to file scheduling notification letters, in violation of the Court's rules; (d) failed in eleven cases to comply with deadlines imposed by the Court, resulting in the dismissal of two cases; and (e) failed to oppose the Government's motion for summary affirmance in at least one case. Id. at 6–9.

The Committee also found that Gordon's explanations for his failure to comply with the April 2011 order were “inconsistent, disingenuous, and lacking in credibility,” and that his lack of candor during the Committee's hearing violated New York Rule of Professional Conduct 3.3(a)(1), which prohibits a lawyer from knowingly making “a false statement of fact ... to a tribunal or fail[ing] to correct a false statement of material fact ... previously made to the tribunal by the lawyer.” See id. at 7–8.

After considering several mitigating and aggravating factors, id. at 9–11, the Committee recommended that Gordon be publicly reprimanded and required to attend continuing legal education (“CLE”) classes in appellate immigration law, id. at 12. In his minority report, Committee member Walpin concurred with the majority in large part, but dissented from several findings bearing on credibility, aggravation, and mitigation, and recommended a suspension of at least nine months. See Minority Report.

B. Gordon's Response to the Committee's Reports

In his response to the Committee's reports, Gordon urged this Court to adopt the majority's recommendation of public reprimand and to reject the views expressed in the minority report. See Response to Report. Among other things, Gordon stated that a reprimand, rather than a suspension, was warranted in light of the mitigating factors present in his case, including his full cooperation with the 18 Committee after he retained ethics counsel. See id. at 7–9.

II. Discussion

We give “particular deference” to the factual findings of the Committee members who presided over an attorney-disciplinary hearing where those findings are based on demeanor-based credibility determinations, and “somewhat lesser deference” to credibility findings based on an analysis of a witness's testimony. See In re Payne, 707 F.3d 195, 201 (2d Cir.2013) (internal quotation marks omitted). The Committee members who preside over a hearing are “in the best position to evaluate a witness's demeanor and tone of voice as well as other mannerisms that bear heavily on one's belief in what the witness says.” Donato v. Plainview–Old Bethpage Cent. Sch. Dist., 96 F.3d 623, 634 (2d Cir.1996) (discussing trial judge's credibility findings).

In general, credibility determinations will not be overruled unless they are clearly erroneous. See, e.g., United States v. Yousef, 327 F.3d 56, 124 (2d Cir.2003) (appeal from criminal conviction); Fujitsu Ltd. v. Fed. Exp. Corp., 247 F.3d 423, 435 (2d Cir.2001) (appeal in civil action). A determination is clearly erroneous when, “although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. Murphy, 703 F.3d 182, 188 (2d Cir.2012) (internal quotation marks and citation omitted). However, “[w]here there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous.” Id. (internal quotation marks and citation omitted).

Upon due consideration of the Committee's majority and minority reports, the underlying record, and Gordon's response, we adopt the findings and recommendations of the Committee majority, except as discussed below.

A. The Default Dismissal in Pugach v. M & T Mortgage Corp., 08–3148

One of the appeals dismissed as a result of Gordon's defaults was Pugach v. M & T Mortgage Corp., 08–3148. In its report, the Committee seemed to conclude that the dismissal of that appeal likely caused little or no prejudice to Gordon's clients when it stated the following:

According to [the Court's order referring Gordon to the Committee], it appears that, in [Pugach ], the client proceeded pro se, which would suggest that the dismissal was not a final disposition of the matter.

Majority Report at 10. This statement requires clarification. First, the Court's referral order stated that, “[a]lthough it appears that one appellant in Pugach proceeded pro se, Gordon was the attorney of record for the other appellants.” Referral Order at 3. The statement from the referral order is supported by the docket, which clearly reflects that one of the Pugach appellants proceeded pro se, and that the other three appellants were represented by Gordon, who never withdrew from that representation. Second, it is not clear why a “client proceed[ing] pro se ” suggests that the dismissal was not a final disposition and, in any event, the appeal clearly ended as to all parties once it was dismissed based on the default.

Additionally, the Committee did not comment on Gordon's reason for permitting Pugach to be dismissed on default, which bears on both the type of misconduct at issue and the type of resulting prejudice. The appeal was dismissed by default on October 21, 2008. The district court record indicates, however, that the parties had stipulated to a settlement as early as October 9, 2008, and that they requested the district court to so-order the settlement on October 28, 2008. See Pugach v. M & T Mortgage Corp., 05–cv–2498, ECF No. 107 & attached notarized acknowledgment form (E.D.N.Y. motion filed Oct. 28, 2008). This timing suggests that the Pugach appellants, including Gordon's clients, permitted the appeal to be dismissed by default as a result of the settlement. It is well established, however, that “counsel may not end the representation of a client without taking affirmative action, or permit the termination of an appeal by allowing its dismissal for lack of prosecution.” Payne, 707 F.3d at 206. Although Gordon's clients in Pugach were not prejudiced by that default, Gordon's defaults in Pugach and in his other appeals caused prejudice of a different type: he wasted the time of opposing counsel, Court employees, and judges; delayed the processing of other litigants' cases; and caused unnecessary expense to the public.

B. Other Defaults

In a number of other cases, Gordon failed to file his briefs or required forms within the deadlines set by the Court, but was granted leave to file those papers out of time. However, as an experienced attorney, Gordon should not have assumed that the extensions of time would be granted. Despite the Court's forbearance in those situations, dismissal of the appeals based on Gordon's defaults was a distinct possibility (particularly where there had been a pattern of defaults) and, therefore, he exposed his clients to potentially serious prejudice. See In re DeMell, 589 F.3d 569, 573 (2d Cir.2009) (“[A] reasonable attorney with thirty years experience ... clearly would know that defaulting on a client's case leaves open the possibility of severe prejudice....”); see also United States v. Raimondi, 760 F.2d 460, 462 (2d Cir.1985) (“The lawyer who assumes this Court will relieve him of an onerous but manageable deadline ... does so at his own peril.”) (Kaufman, J.).

C. Lack of Candor During the Committee's Hearing

Making a false statement of material fact to the Committee obstructs the Committee's work.² In the context of a comparable type of obstruction, an attorney's failure to respond to the Committee's order to show cause why he should not be disciplined, we stated the following:

An attorney's default in disciplinary proceedings is a serious breach of the attorney's professional obligations to the Court and the public. In such a case, the attorney has not only failed to respond to a Court-sanctioned order, but has done so after the Court already has found good cause to question the

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