In re Warburgh

• Decision Date: 22 March 2011
• Docket Number: Docket No. 07–9056–am.
• Citation: 644 F.3d 173
• Parties: In re Paul E. WARBURGH, Attorney.
• Court: U.S. Court of Appeals — Second Circuit

644 F.3d 173

In re Paul E. WARBURGH, Attorney.

Docket No. 07–9056–am.

United States Court of Appeals, Second Circuit.

March 22, 2011.

Paul E. Warburgh, Esq., Huntington, 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 PAUL E. WARBURGH is PUBLICLY REPRIMANDED for the misconduct described in the appended report of this Court's Committee on Admissions and Grievances (“the Committee”), and leave to resign from the bar of this Court is GRANTED.

I. Summary of Proceedings

By order filed in September 2007, this Court referred Warburgh 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. In March 2008, the Committee ordered Warburgh to show cause why the Committee should not recommend to the Court that disciplinary or other corrective action be taken against him (“the show-cause order”). Although Warburgh requested, and received, multiple extensions of time to respond to the Committee's order, he failed to do so. See Report at 2. Moreover, each of his extension requests was made after the relevant deadline had passed, and he failed to respond to a number of other Committee communications. Id. One of those Committee communications explicitly advised Warburgh that the Committee would proceed with the matter even in the absence of a response and that his failure to respond “may constitute an independent basis of professional misconduct subjecting [him] to disciplinary action.” Id., quoting Committee letter dated June 10, 2008.

Due to Warburgh's default, the Committee determined that it would take summary action and proceed without a hearing pursuant to Rule 7(d) of the Committee's Rules. Thereafter, the Committee filed with the Court the record of the Committee's proceedings and its report and recommendations.

In its report, the Committee concluded that there was clear and convincing evidence that Warburgh had engaged in conduct warranting the imposition of discipline. See Report at 7–8. Specifically, the Committee found that Warburgh had failed to comply with this Court's scheduling orders, failed to respond to this Court's inquiries, and failed to communicate with his clients. Id. at 3–5, 7 (discussing United States v. Bazuaye, 05–5389–cr; United States v. Martinez, 05–4825–cr; United States v. Delvi (Cordero), 04–4414–cr; United States v. Vasquez (Julio De La Cruz), 07–0841–cr). The Committee further found that Warburgh's failure to cooperate with the instant investigation constituted both an independent basis for discipline and an aggravating factor. Id. at 7, 8.

After identifying several aggravating factors, the Committee stated that, due to Warburgh's failure to respond to the disciplinary charges, it was unaware of any specific mitigating factors. Id. at 8. The Committee nonetheless took into account certain evidence found in this Court's records relating to Warburgh's medical problems,¹ as well as his asserted intention to retire.² Id. at 8, 9. In light of Warburgh's long career, medical issues, and professed intention to retire, the Committee “stop[ped] short of recommending removal from the bar of this Court.” Id. at 9. Instead, the Committee recommended that Warburgh be privately reprimanded, permitted to withdraw from the bar of this Court, and precluded from readmission. Id. The Committee also recommended, however, that Warburgh be involuntarily disbarred if he declined to withdraw. Id.

In September 2010, Warburgh submitted a 260–word email in response to the Committee's report. Warburgh: (1) stated that he had “no comment on the Bazuaye matter,” but then asserted that there had been a substantial period of time he could not communicate with Bazuaye and that it appeared that Bazuaye had been deported; (2) disputed that he had failed to communicate with his client in the “DeLaCruz matter,” stating that De La Cruz's “calls were answered if [Warburgh] was available,” that “DeLaCruz received copies of all documents or his family had the opportunity to receive them,” and that “everything was timely filed and argued and affirmed”; (3) asserted that the appeal in Cordero was erroneously dismissed; and (4) stated that he had “no comment” concerning Martinez. Sept. 24, 2010 email. In conclusion, Warburgh stated that he is now retired and he “formally withdr[e]w from the Second Circuit Bar.” Id. However, since an attorney who is the subject of a disciplinary proceeding in this Court may resign from the Court's bar only upon obtaining leave of the Court, In re Saghir, 595 F.3d 472, 473–74 (2d Cir.2010), we construe Warburgh's statement as requesting leave to resign.

II. Failure to Respond to Committee's Show–Cause OrderA. Summary Action by the Committee.

We agree with the Committee that an attorney's failure to respond to the Committee's show-cause order will usually permit the Committee to take summary action. See Rule 7(d), Rules of Committee on Admissions and Grievances (2d Cir.) (“In the event the attorney does not respond to the order to show cause, or otherwise waives his or her right to appear at a hearing, or the Committee finds that oral testimony or argument is not required, the Committee may take summary action....”). While there may be circumstances where an attorney's default might not justify summary action— e.g., where the facts underlying the default are themselves disputed, or where other charges of misconduct cannot be resolved through summary action—no such circumstances are evident in the present case.

Additionally, where, as here, the charged attorney has not challenged the Committee's decision to take summary action, any issue relating to the propriety of summary action can be treated as waived, unless a waiver would not be in the interests of justice. For example, a waiver would not relieve the Committee or Court of the obligation to base a finding of misconduct on clear and convincing evidence. See Rule 7(h), Rules of Committee on Admissions and Grievances (2d Cir.). We conclude that the Committee properly took summary action and that, in any event, Warburgh has waived any challenge to that decision.

B. Treating Default as Both Independent Basis for Disciplinary Action and Aggravating Factor.

The Committee also properly treated Warburgh's default as both an independent basis for disciplinary action and an aggravating factor. See American Bar Association, Standards for Imposing Lawyer Sanctions § 9.22(e) (1986, amended 1992); see, e.g., In re Padilla, 67 N.Y.2d 440, 448, 503 N.Y.S.2d 550, 554, 494 N.E.2d 1050 (1986) (finding that attorney's obstructionism in disciplinary proceeding “frustrated the diligent pursuit of serious charges against him, placed into question his fitness to represent others, and itself constituted conduct prejudicial to the administration of justice”).

However, we find that a private reprimand is not an adequate disciplinary measure when the attorney knowingly defaulted and failed to show good cause or excusable neglect for the default. 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 attorney's very competence to continue practicing in this Court. Furthermore, such defaults often seriously handicap the Committee and Court in their efforts to reach a fair determination based on a complete record, and usually result in waste of Committee and Court resources.

Thus, in most cases, when an attorney knowingly defaults in a disciplinary proceeding, and fails to show good cause or excusable neglect for the default, the resulting disciplinary measure, for that misconduct alone, should be no less than a public reprimand. That general rule applies here. Warburgh defaulted a number of times during the Committee's proceedings, never submitted a response to the Committee's show-cause order, failed to make a showing of good cause or excusable neglect for those defaults, compromised the Committee's ability to make a reasoned recommendation based on a full examination of all relevant facts, and wasted the Committee's time and resources. Although the Committee noted that Warburgh's prior medical problems might constitute a mitigating circumstance with regard to the underlying allegations of misconduct, Warburgh has not asserted, and there is no indication, that those medical problems affected his ability to respond to the Committee's show-cause order. In these circumstances, we conclude that a public reprimand is more appropriate than the private reprimand recommended by the Committee.³

C. Waiver of Right to Challenge Committee Report.

We also conclude that an attorney's unexcused failure to respond to the Committee's show-cause order, or other material default during the Committee's proceedings, may constitute a waiver of the attorney's right to thereafter challenge in this Court matters encompassed by the show-cause order or other portions of the Committee's proceedings affected by the default. Cf. In re Amato, 42 A.D.3d 32, 35, 835 N.Y.S.2d 623 (N.Y.A.D. 2d Dep't 2007) (deeming disciplinary charges admitted as a result of default); In re Filippone, 213 A.D.2d 849, 849–50, 623 N.Y.S.2d 933 (N.Y.A.D. 3d Dep't 1995) (same); In re Viscomi, 197 A.D.2d 321, 322, 613 N.Y.S.2d 144 (N.Y. 1st Dep't 1994) (same); In re Burgess, 129 A.D.2d 252, 253, 517 N.Y.S.2d 648 (N.Y.A.D. 4th Dep't 1987) (same).

In Thomas v. Arn, the Supreme Court held that “a court of appeals may adopt a rule conditioning appeal, when taken from a district court judgment that adopts a magistrate's recommendation, upon the filing of objections with the district court identifying those issues on which further...