In re Jaffe, Docket No. 06-9009-am.

• Decision Date: 19 October 2009
• Docket Number: Docket No. 06-9009-am.
• Parties: In re Karen JAFFE, Attorney.
• Court: U.S. Court of Appeals — Second Circuit

585 F.3d 118

In re Karen JAFFE, Attorney.

Docket No. 06-9009-am.

United States Court of Appeals, Second Circuit.

October 19, 2009.

Linda F. Fedrizzi, Esq., New York, N.Y., for Karen Jaffe.

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

PER CURIAM:

By order filed April 2, 2008, this Court referred Karen Jaffe to the Court's Committee on Attorney Admissions and Grievances ("the Committee") for investigation of the matters described in that order and preparation of a report on whether she should be subject to disciplinary or other corrective measures.

During the Committee's proceedings, Jaffe had the opportunity to address the matters discussed in the Court's referral order, to testify under oath at a hearing held on July 23, 2008, and to present a post-hearing memorandum. Jaffe was represented in the proceedings by Linda F. Fedrizzi, Esq. Presiding over the hearing were Committee members David B. Fein, Esq., and Evan A. Davis, Esq. On December 12, 2008, the Committee filed with the Court the record of the Committee's proceedings and its report and recommendations. Thereafter, the Court provided Jaffe with a copy of the Committee's report. Although Jaffe has not responded to the report, we consider her arguments raised before the Committee to be preserved, and consider them on their merits.

In its report, the Committee concluded that there was clear and convincing evidence that Jaffe had engaged in conduct "unbecoming a member of the bar," within the meaning of Federal Rule of Appellate Procedure 46(c), by violating various rules and orders of the Court and various disciplinary rules of the New York Lawyer's Code of Responsibility.¹ Specifically, the Committee found that Jaffe had: (a) failed to comply with many of the Court's scheduling orders, which was prejudicial to the administration of justice, in violation of New York Disciplinary Rule ("D.R.") 1-102(A)(5); (b) engaged in dishonesty, in violation of D.R. 1-102(A)(4), by presenting false statements to the Court concerning her inability to attend oral argument on two dates; (c) filed a number of deficient briefs, in violation of Rule 28 of the Federal Rules of Appellate Procedure; (d) aided the unauthorized practice of law, in violation of D.R. 3-101(A), and improperly ratified and filed briefs drafted by unsupervised law students, in violation of D.R. 1-104(D)(1); and, (e) engaged in a pattern of neglect of client matters, in violation of D.R. 6-101(A)(3), as evidenced by her chronic late filing of briefs, which resulted in the dismissal of at least twelve cases, her frequent filing of deficient briefs, and her failure to respond to a March 2007 order seeking information about one of her former clients.

The Committee also found that there were a number of aggravating and mitigating factors. The following were found to be aggravating factors: (1) Jaffe's prior disciplinary offenses; (2) her pattern of misconduct involving noncompliance with the Court's orders and her defective briefing; (3) her multiple offenses; (4) the vulnerability of Jaffe's immigrant clients, many of whom do not speak English; and (5) the unavailability of any defense premised on inexperience, due to Jaffe's substantial experience as an attorney. See American Bar Association, Standards for Imposing Lawyer Sanctions (1986, amended 1992) ("ABA Standards") § 9.22(a), (c), (d), (g), (h), (i). The following were found to be mitigating factors: (1) Jaffe's personal problems with her own illness and a family member's illness around the time she was to respond to the March 2007 order; (2) Jaffe's cooperative attitude toward the Committee's proceedings; (3) the prior imposition of sanctions for Jaffe's false statements to the Court; and (4) Jaffe's remorse for making those false statements. See ABA Standards § 9.32(e), (k),(l).

Based on its factual findings, the Committee recommended that Jaffe be publicly reprimanded for her misconduct, that she be permitted to voluntarily withdraw from the bar of this Court, and, if she failed to voluntarily withdraw by a set deadline, that she be involuntarily removed from the Court's bar.

Upon due consideration of the Committee's report and the underlying record, we adopt the Committee's factual findings concerning Jaffe's misconduct in this Court. We also adopt the Committee's conclusion that Jaffe's misconduct constituted such a serious deviation from professional and ethical norms that it warrants both a public reprimand and removal from the bar of this Court. For the reasons discussed below, we adopt in part the Committee's recommendations concerning the appropriate disciplinary measures. The following discussion is intended to supplement the Committee's report in several respects, and explain our view of the appropriate disposition.

The Relevance of Past Sanctions

As a preliminary matter, we address Jaffe's assertion that at least some of the misconduct at issue in these proceedings has already resulted in discipline, and that additional discipline should not be imposed. We agree that, in general, an attorney should not be disciplined multiple times by the same court for the same misconduct, where the first panel issuing a sanction indicated that the sanction constituted final and complete discipline for the misconduct at issue.

However, that general principle does not alter the outcome of these proceedings for several reasons. First, it is clear that Jaffe has not been disciplined for all of the serious misconduct at issue. For example, Jaffe has not demonstrated, and the record does not indicate, that she received any discipline for her filing of briefs written by non-lawyers that were not reviewed by Jaffe or any other attorney.

Second, even in cases in which Jaffe was explicitly criticized by this Court for her deficient performance, she may be later disciplined by this Court for that performance if the prior orders did not suggest that the criticism (or other adverse action) was a final "sanction" for that misconduct. See, e.g., Xiang Lin v. Ashcroft, No. 04-6426-ag, order filed Aug. 1, 2006; Guang Pin Lin v. Gonzales, No. 04-6130-ag, order filed Mar. 8, 2006; Yun Fen Jin v. Gonzales, No. 03-4719-ag, order filed Jan. 27, 2006; see also Rong Hua Wang v. Gonzales, No. 06-3240-ag, order filed Mar. 5, 2008 (transferring to Grievance Panel the issue of whether Jaffe should be sanctioned for her performance in that appeal). Additionally, since attorney disciplinary proceedings are primarily remedial, the Double Jeopardy Clause of the Fifth Amendment does not apply. See In re Caranchini, 160 F.3d 420, 423-24 (8th Cir.1998) (holding that disbarment did not violate double jeopardy, even though based on same conduct that resulted in prior sanctions under Federal Rule of Civil Procedure 11).

Third, even if an attorney already has received from this Court a final sanction for each of several instances of misconduct, we may nonetheless impose further discipline if the individual instances of misconduct are found to be part of a sanctionable pattern that has not itself been addressed. Finally, even where "discipline" is not appropriate, the Court may nonetheless determine, based on an attorney's prior behavior, that she will be unable to conform her future conduct to expected professional norms, and, as a result, that her ability to practice in this Court should be barred as a corrective measure in order to protect the public, other attorneys and litigants, the Court, and the administration of justice. See Theard v. United States, 354 U.S. 278, 282, 77 S.Ct. 1274, 1 L.Ed.2d 1342 (1957)("The power of disbarment is necessary for the protection of the public in order to strip [an attorney] of the implied representation by courts that [an attorney] who is allowed to hold himself out to practice before them is in `good standing' so to do."); Ex Parte Wall, 107 U.S. 265, 288, 2 S.Ct. 569, 27 L.Ed. 552 (1883) ("The [disbarment] proceeding is not for the purpose of punishment, but for the purpose of preserving the courts of justice from the official ministration of persons unfit to practice in them.").²

Thus, we conclude that the Committee properly found Jaffe's prior disciplinary offenses and her pattern of misconduct to be aggravating factors, even if discipline was imposed for some of the prior offenses.

We also agree with the Committee's finding that the prior imposition of sanctions for some of Jaffe's misconduct constituted a mitigating factor. However, by treating the prior sanctions as a mitigating factor, we conclude only that Jaffe should not be disciplined again by this Court for that discrete misconduct. The misconduct underlying the prior sanctions remains relevant to the question of whether Jaffe can conform her future behavior to professional norms. Moreover, even if the previously sanctioned misconduct were ignored entirely, or treated as aberrational, we would nonetheless find that public reprimand and removal from this Court's bar are warranted by the remaining misconduct.³

Jaffe's Conduct Relating to the Marshall/Muto Matter

In her August 2008 post-hearing memorandum, Jaffe asserts that the Court has improperly assumed that she was the author of the three fraudulent briefs bearing the signature of Sharon Marshall, demonstrating the Court's prejudice against Jaffe. See Aug. 2008 Mem. at 3, 4-5. To the contrary, this Court's April 2008 referral order explicitly stated that Judge Keenan's investigation implicated Marshall and Joseph Muto in the fraudulent brief scheme and not Jaffe. See Apr. 2008 order at 5. We accepted Judge Keenan's findings then and we accept them now. Furthermore, the Committee's report also does not characterize Jaffe's involvement in the Marshall/Muto matter as sanctionable or otherwise inappropriate. Instead, the report states that the cases at issue were referred by Jaffe's paralegal to Muto and another attorney "without Jaffe's...