In re Payne

• Decision Date: 25 January 2013
• Docket Number: No. 10–90019–am.,10–90019–am.
• Citation: 707 F.3d 195
• Parties: In re Douglas PAYNE, Attorney.
• Court: U.S. Court of Appeals — Second Circuit

707 F.3d 195

In re Douglas PAYNE, Attorney.

No. 10–90019–am.

United States Court of Appeals,Second Circuit.

Jan. 25, 2013.

Douglas Payne, Esq., New York, NY, pro se.

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

PER CURIAM:

Pursuant to this Court's Local Rule 46.2, it is hereby ORDERED, ADJUDGED, AND DECREED that Douglas Payne is PUBLICLY REPRIMANDED for the misconduct described in the appended report of this Court's Committee on Admissions and Grievances (“the Committee”), except as discussed below.

I. Summary of Proceedings

By order dated March 11, 2010, this Court referred Payne to the Committee for investigation of the matters described in that order and preparation of a report on whether he should be subject to disciplinary or other corrective measures. During the Committee's proceedings, Payne had the opportunity to address the matters discussed in the Court's referral order and to testify under oath at a hearing, which was presided over by Committee members Mary Jo White and Terrence M. Connors. Payne proceeded pro se before the Committee. Thereafter, the Committee filed with the Court the record of the Committee's proceedings and its report and recommendations, and Payne filed a response to the Committee's report. Those documents are each made public as appendices to this opinion.

In its report, the Committee concluded that there was clear and convincing evidence that Payne had engaged in misconduct warranting the imposition of discipline. See Report at 8. Specifically, the Committee found that Payne had, inter alia: (1) defaulted on scheduling orders in fourteen cases, resulting in their dismissal, although he succeeded in reinstating two of them; (2) filed stipulations to withdraw a number of appeals only after his briefing deadlines had passed; and (3) filed a deficient brief in Shao Qin Zheng v. Holder, 322 Fed.Appx. 6 (2d Cir.2009) (summary order), which resulted in this Court finding certain dispositive arguments waived. See id. at 4–7. After considering various aggravating and mitigating factors, the Committee recommended that Payne be publicly reprimanded and required to attend at least six hours of continuing legal education (“CLE”) classes in appellate immigration law. See id. at 7–8.

In his response to the Committee's report, Payne disagreed with several of the Committee's findings and requested that this Court issue a private, rather than public, reprimand.

II. DiscussionA. Contents of a Response to a Committee Report

Neither the Federal Rules of Appellate Procedure nor this Court's local rules specify the format or contents of an attorney's response to a Committee report recommending that the Court impose disciplinary or other corrective measures against the attorney. Although we presently see no need for a comprehensive rule governing the format or contents of such a response, attorneys must adhere to several basic, commonsense rules.

First, evidence and arguments may not be raised in the response filed in this Court unless they have first been raised before the Committee, except where good cause exists for raising the new evidence or arguments for the first time in the response.¹See In re Warburgh, 644 F.3d 173, 179 (2d Cir.2011) (“Permitting defenses and issues to be raised for the first time after the Committee's report has been filed with the Court would require the Court either to decide issues that were never analyzed by the Committee—the very body charged with performing such an analysis in the first instance—or to remand the matter to the Committee for further proceedings.”). Good cause may exist, for example, when the Committee report itself presents evidence or issues for the first time in the proceedings.²

When a respondent attorney wishes to rely on new evidence in this Court, the attorney must request leave to supplement the record and proffer the new evidence in admissible form. The request to supplement the record can be filed prior to, or with, the attorney's response to the Committee's report. New arguments must be clearly identified in the response to the Committee's report. With regard to both new evidence and new arguments, the attorney must explain, by detailed declaration made under penalty of perjury, why good cause exists for raising the new evidence or arguments for the first time in the response.

Second, all arguments and statements of fact must be supported by proper citations to the record. Cf.Fed. R.App. P. 28(a)(9)(A) (requiring argument in an appellant's brief to contain, inter alia, “appellant's contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies”). Although we do not require an attorney's response to comply with all aspects of Rule 28, the need for citations to the record should be clear to any attorney filing a document with a Court. Citations to the record serve several important functions, including informing the reviewing court that a fact or argument was indeed first raised in the underlying proceeding, and enabling the reviewing court to quickly find the relevant portions of the record.

In the present case, Payne's arguments required review of a record several hundred pages long. While we do not penalize Payne for his lack of citations, since no explicit requirement is found in our rules, or in earlier decisions of the Court, this opinion serves as notice to the bar that proper citations are required in all future filings in disciplinary proceedings and that their absence may result in a finding of waiver or other adverse consequence.

B. Default in Jin Xia Lin v. Ashcroft, No. 04–6180

In Jin Xia Lin v. Ashcroft, Payne failed to file an appellant's brief in accordance with this Court's scheduling order, causing the dismissal of the case based on that default, and then failed to contact the Court until nearly three years later, when he filed a motion for reinstatement, which was denied. See Jin Xia Lin v. Ashcroft, No. 04–6180–ag (2d Cir. Jan. 6, 2006) (order dismissing appeal for failure to comply with scheduling order); id. (2d Cir. Nov. 10, 2008) (motion for reinstatement); id. (2d Cir. Dec. 22, 2008) (order denying reinstatement). Payne explained to the Committee and this Court that he allowed the default dismissal to occur due to inadvertence, his inability to contact his client, and his assessment that the case lacked merit, and that he attempted to reinstate it nearly three years later based on renewed contact with the client and a new assessment of its merits. See Transcript (Tab E of Record) at 9–14; Response to Notice of Referral (Tab C) at 3–4; Response to Committee Report at 1.

The Committee found Payne's “various explanations for failing to contact the Court prior to his motion to reinstate to be lacking in credibility.” Report at 4–5. While Payne now argues that this finding is “flawed,” he does not identify any specific flaw and, instead, essentially repeats the explanation he gave to the Committee. Response to Committee Report at 1. He does not explain why the Committee's credibility determination is not supported by the record, or cite to evidence in the record supporting his argument that the Committee was incorrect.³

We have given “particular deference” to the factual findings of district judges and immigration judges where those findings were based on demeanor-based credibility determinations, and somewhat lesser deference to credibility findings based on an analysis of a witness's testimony. See United States v. Cuevas, 496 F.3d 256, 267 (2d Cir.2007) (“Factual findings based on the testimony and observation of witnesses are entitled to ‘particular deference.’ ”) (quoting United States v. Morrison, 153 F.3d 34, 52 (2d Cir.1998)); United States v. Mendez, 315 F.3d 132, 135 (2d Cir.2002) ( “Where the district court's factual findings are premised upon credibility determinations, we grant particularly strong deference to those findings.”); Jin Chen v. U.S. Dep't of Justice, 426 F.3d 104, 113 (2d Cir.2005) (“We give particular deference to credibility determinations that are based on the adjudicator's observation of the applicant's demeanor, in recognition of the fact that the [immigration judge's] ability to observe the witness's demeanor places her in the best position to evaluate whether apparent problems in the witness's testimony suggest a lack of credibility or, rather, can be attributed to an innocent cause such as difficulty understanding the question.... On the other hand, we grant lesser deference to credibility determinations that are based on analysis of testimony as opposed to demeanor.”).

We find that the Committee members who presided over the hearing in this case, who are experienced attorneys appointed by the judges of this Court, should be accorded the same deference for their credibility determinations. ⁴See In re Dale, 87 A.D.3d 198, 200, 927 N.Y.S.2d 267 (4th Dep't 2011) (“[W]hen the resolution of issues in [an attorney] disciplinary proceeding depends upon the credibility of witnesses, a referee's findings are entitled to great weight.” (internal quotation marks omitted)); In re Cohn, 194 A.D.2d 987, 990, 600 N.Y.S.2d 501 (3d Dep't 1993) (“We are ... loathe to disturb such conclusions [crediting a client's testimony over the attorney's] as the Referee is in the best position to assess credibility.”); In re Somers, 50 A.D.2d 396, 397, 378 N.Y.S.2d 703 (1st Dep't 1976) (“since the prime issue on this charge depends on the credibility of the witnesses, we give great weight to the findings of the Referee, who had the first-hand opportunity to judge them and to evaluate the testimony adduced”).⁵

In the present case, the Committee did not find credible Payne's explanation for not contacting the Court in the nearly three-year period between his default in Jin Xia Lin and the filing of his motion to reinstate. See Report at 4–5. Although Payne challenges that credibility determination, he simply repeats the rejected...