In re Hector M. Roman, No. 08-9002 (2d Cir. 2010)

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08-9002-am, 07-9064-am In re Hector M. Roman 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2009 (Decided: April 6, 2010) Docket Nos. 08-9002-am, 07-9064-am ______________________________________________________ In re Hector M. Roman, Attorney. ______________________________________________________ Before: Cabranes, Sack, and Wesley, Circuit Judges. This Court s Committee on Admissions and Grievances ( the 29 Committee ) has recommended that Hector M. Roman, an attorney 30 admitted to the bar of this Court, be disciplined. 31 Committee s findings of fact, publicly reprimand Roman for the 32 misconduct described in the Committee s report, reciprocally 33 suspend him for a six-month period based on a prior suspension 34 imposed by the United States Court of Appeals for the Ninth 35 Circuit, and suspend him for an additional one-month period based 36 on his misconduct in this Court. 37 38 39 40 We adopt the Hector M. Roman, Esq., New York, N.Y., pro se. 1 2 PER CURIAM: By order filed in November 2007, this panel referred Hector 3 M. Roman to this Court s Committee on Admissions and Grievances 4 ( the Committee ) for investigation of the matters described in 5 that order and preparation of a report on whether he should be 6 subject to disciplinary or other corrective measures. 7 Supplemental referral orders were filed in April 2008. 8 During the Committee s proceedings, Roman had the opportunity 9 to address the matters discussed in the Court s referral order, to 10 testify under oath at a hearing held in December 2008, and to 11 present post-hearing supplementary materials. 12 himself during the Committee s proceedings. 13 hearing were Committee Chair Mary Jo White, Esq., and the 14 Honorable Howard A. Levine. 15 with the Court the record of the Committee s proceedings and its 16 report and recommendations. 17 with a copy of the Committee s report, and Roman filed a response 18 in April 2009. 19 Roman represented Presiding over the In January 2009, the Committee filed Thereafter, the Court provided Roman In its report, the Committee concluded: (a) Roman was subject 20 to reciprocal discipline, pursuant to Second Circuit Local Rule 21 46.1(f), based on the prior imposition of discipline by the United 22 States Court of Appeals for the Ninth Circuit; and (b) as a 23 separate matter, Roman was subject to discipline for his behavior 24 in this Court, based on clear and convincing evidence that he had 25 engaged in conduct unbecoming a member of the bar within the 2 1 meaning of Federal Rule of Appellate Procedure 46(c). See Report 2 at 12-15. 3 factors, see id. at 7, 9, 11, 12, 14, 15, the Committee 4 recommended that Roman be suspended from practice before this 5 Court for a three-month period, based on both the Ninth Circuit s 6 suspension and his conduct before this Court, with each basis 7 operating as an independent ground for the recommended suspension, 8 see id. at 15. 9 the Committee s recommendation that he be suspended for three After finding various aggravating and mitigating In response, Roman states that he does not contest 10 months based on the Ninth Circuit suspension, but asks that the 11 suspension not be based on his conduct before this Court. 12 Response at 3-8. 13 Upon due consideration of the Committee s report, the 14 underlying record, and Roman s response, we adopt the Committee s 15 factual findings concerning Roman s Ninth Circuit suspension and 16 his misconduct in this Court. 17 conclusions that Roman s Ninth Circuit suspension warrants 18 reciprocal suspension by this Court and that his separate 19 misconduct in this Court was sufficiently serious that it warrants 20 independent disciplinary action. 21 discussed below, we impose disciplinary sanctions that differ 22 somewhat from those recommended by the Committee. We also adopt the Committee s However, for the reasons 23 Reciprocal Discipline 24 Former Second Circuit Rule 46.1(f) governed this Court s 25 reciprocal discipline procedures until January 1, 2010, when it 3 1 was superseded by current Second Circuit Local Rule 46.2(c). 2 need not decide which version of the rule governs Roman s case, 3 since the same result is reached under both versions. 4 Local Rule 46.1(f), in pertinent part, provided as follows: 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 (1) In all cases in which an order disbarring an attorney or suspending the attorney from practice ... has been entered in any other court of record, federal or state, ... the clerk shall enter an order for the court ... disbarring the attorney or suspending the attorney from practice in this court upon terms and conditions comparable to those set forth by the other court of record. Former Second Circuit Rule 46.1(f)(1)-(2). 23 46.2(c), in pertinent part, provides as follows: 24 25 26 27 28 29 30 31 32 33 34 35 36 We Former (2) Within [a specified time period], a motion may be filed in this court either by such attorney or the Committee for a modification or revocation of the order of this court. Any such motion shall set forth specifically the facts and principles relied on by applicant as showing cause why a different disposition should be ordered by this court. Current Local Rule (2) Reciprocal Order. When the court receives a copy of an order entered by an attorney disciplinary authority disbarring or suspending an attorney from practice, the clerk enters an order disbarring or suspending the attorney from practice before this court on comparable terms and conditions. (3) Motion to Modify or Vacate. Within [a specified time period], the attorney may move to modify or vacate the order. Second Circuit Local Rule 46.2(c)(2)-(3). Although this Court has not yet explicitly ruled on the 37 issue, we now make clear that former Local Rule 46.1(f) and 38 current Local Rule 46.2(c) reflect a rebuttable presumption that 39 the reciprocal discipline imposed by this Court will be identical 4 1 or as close to identical as our rules and the circumstances 2 permit to the discipline imposed by the prior court or other 3 disciplinary authority. 4 referred to as such, has long guided this Court s reciprocal 5 discipline practice and is consistent with the practice of other 6 circuits. 7 2005) ( Given the limited nature of our inquiry, the norm will be 8 for this court to impose discipline which is substantially similar 9 to that imposed by the state court ; also noting that the court s 10 disciplinary rule requires imposition of substantially the same 11 discipline as was imposed by the original court ); In re Kramer, 12 282 F.3d 721, 727 (9th Cir. 2002) ( we inquire only whether the 13 punishment imposed by another disciplinary authority or court was 14 so ill-fitted to an attorney's adjudicated misconduct that 15 reciprocal disbarment would result in grave injustice ); In re 16 Fallin, 255 F.3d 195, 197 (4th Cir. 2001) (court presumes, 17 pursuant to explicit language of local rule, that reciprocal 18 discipline will be identical to original discipline); In re Hoare, 19 155 F.3d 937, 940 (8th Cir. 1998) ( Although a state court 20 disciplinary action is not conclusively binding upon the federal 21 judiciary, federal courts are nevertheless obliged to accord a 22 high level of deference to state court disbarment proceedings. 23 Thus, when a district court learns that a member of its bar has 24 been subject to discipline by another jurisdiction, the identical 25 discipline is typically imposed. )(citations omitted). This presumption, although not explicitly See In re Williams, 398 F.3d 116, 119-20 (1st Cir. 5 See also 1 ABA Model Rules for Lawyer Disciplinary Enforcement, R. 22(D) 2 (2002) (providing that court shall impose the identical 3 discipline as the prior jurisdiction, unless certain criteria are 4 satisfied, and that [t]he burden is on the party seeking 5 different discipline ... to demonstrate that the imposition of the 6 same discipline is not appropriate ); ABA Model Federal Rules of 7 Disciplinary Enforcement, R. II(D) (1978, 1991) (providing for 8 identical discipline unless certain criteria are satisfied).1 9 Furthermore, the disciplined attorney bears the burden of 10 demonstrating, by clear and convincing evidence, that a different 11 disposition would be appropriate (unless the Committee, or the 12 Court itself, moves for modification or revocation). 13 Friedman, 51 F.3d 20, 22 (2d Cir. 1995) (applying burden of proof 14 in context of appeal from district court s imposition of 15 reciprocal discipline). 16 that reciprocal discipline should not be imposed at all or that See In re An attorney seeking to demonstrate either 1 The Supreme Court s seminal decision concerning reciprocal discipline, Selling v. Radford, reflects a similar presumption the Court stated that it would recognize the condition created by the judgment of the state court i.e., the state court s finding that the attorney lacked fair private and professional character, without the possession of which there could be no possible right to continue to be a member of [the Supreme Court s] Bar unless the attorney demonstrated to the contrary. 243 U.S. 46, 50-51 (1917). However, while the Supreme Court suggested that the state disbarment in that case would be followed by Supreme Court disbarment if the attorney did not meet his burden, the Court did not explicitly discuss whether the presumption covered both the finding of poor character and the severity of the discipline. The state court s finding of misconduct in Selling, if not successfully challenged, may have required Supreme Court disbarment even without a presumption concerning the severity of discipline. 6 1 the terms and conditions of the reciprocal discipline should not 2 be comparable to those imposed by the other attorney 3 disciplinary authority, Second Circuit Rule 46.2(c)(2); Former 4 Second Circuit Rule 46.1(f)(1), must satisfy the standard set 5 forth in Selling v. Radford, 243 U.S. 46 (1917), which requires 6 the attorney to show: 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 1. [t]hat the . . . procedure [used by the prior court] from want of notice or opportunity to be heard, was wanting in due process; 2, that there was such an infirmity of proof as to facts found to have established the want of fair private and professional character as to give rise to a clear conviction on our part that we could not, consistently with our duty, accept as final the conclusion on that subject; or 3, that some other grave reason existed which should convince us that to allow the natural consequences of the judgment to have their effect would conflict with the duty which rests upon us not to disbar [or impose any other disciplinary sanction imposed by the prior court] except upon the conviction that, under the principles of right and justice, we were constrained so to do. Selling, 243 U.S. at 51. 24 reciprocal discipline when the Court finds (1) absence of due 25 process in the [prior disciplinary] procedure, (2) substantial 26 infirmity in the proof of lack of private and professional 27 character, or (3) some other grave reason sufficient to indicate 28 that reciprocal disbarment [or other reciprocal discipline] [i]s 29 inconsistent with principles of right and justice. 30 Tidwell, 295 F.3d 331, 333-34 (2d Cir. 2002)(quoting Selling, 31 supra). In sum, the Selling standard bars In re 32 As noted in In re Edelstein, 214 F.3d 127 (2d Cir. 2000), 33 several other courts have supplemented the Selling criteria with a 7 1 fourth reason for not imposing reciprocal discipline namely, 2 that a reciprocal order should not issue if an attorney s 3 misconduct warrants substantially different discipline than that 4 imposed by the court that imposed the original discipline. 5 Edelstein, 214 F.3d at 131-32 (quoting Rule of Disciplinary 6 Enforcement of the Court of Appeals for the First Circuit 7 II(D)(4)). 8 grave reason category set forth in Selling. 9 (noting the fourth ground for relief considered by some courts but We treat the noted fourth category as subsumed by the See id. at 132 10 relying on Selling to conclude that no grave reason warranted 11 revoking an order of reciprocal discipline); cf. Kramer, 282 F.3d 12 at 727-28 (rejecting argument that original disbarment constituted 13 excessive punishment and concluding that reciprocal disbarment 14 would not result in grave injustice); see also Theard v. United 15 States, 354 U.S. 278, 282 (1957) (finding state court disbarment 16 decision brings title deeds of high respect ... [b]ut it is not 17 conclusively binding on the federal courts, and concluding that 18 federal court disbarment in that case was foreclosed by the grave 19 reason prong of Selling). 20 Although Selling addressed reciprocal discipline imposed by a 21 federal court based on a state court s prior disciplinary 22 decision, we have found it equally applicable to a federal court s 23 imposition of reciprocal discipline based on another federal 24 court s prior disciplinary decision. 25 131-32. Thus, it applies here. 8 See Edelstein, 214 F.3d at 1 Since Roman does not contest the process he received in the 2 Ninth Circuit or allege an infirmity of proof, we now consider 3 only whether it has been demonstrated that some grave reason 4 prohibits the imposition of a six-month reciprocal suspension. 5 doing so, we do not determine de novo what sanction the Ninth 6 Circuit should have imposed; instead, we accord great deference to 7 the Ninth Circuit s determination. 8 282; Edelstein, 214 F.3d at 132; Williams, 398 F.3d at 119-20; 9 Kramer, 282 F.3d at 727-28; Hoare, 155 F.3d at 940. 10 In See, e.g., Theard, 354 U.S. at In the present case, Roman raised several arguments in 11 support of his position that this Court should not impose the same 12 discipline as the Ninth Circuit. 13 his arguments, agreed with three others, and independently found 14 that five additional mitigating factors warranted a suspension of 15 three months, rather than a six-month suspension matching the term 16 imposed by the Ninth Circuit. 17 Committee found that none of the arguments made by Roman raised a 18 grave reason justifying a departure from the practice of 19 imposing reciprocal discipline. 20 Committee s rejection of Roman s argument that his purchase of 21 case management software remedied the problems cited by the Ninth 22 Circuit. 23 believe that the remaining factors constitute a grave reason 24 justifying a different suspension term. 25 See id. The Committee rejected one of See Report at 13-14. See id. at 14. Notably, the We concur in the However, for the following reasons, we do not First, many or most of the cited factors were considered by 9 1 the Ninth Circuit when it determined that a six-month suspension 2 was appropriate, and there is no indication that the weight 3 accorded to them by the Ninth Circuit was so inadequate as to 4 present a grave reason justifying departure from that sanction. 5 See In re Roman, 05-80100, Report of Appellate Commissioner, at 6 32-33, 34-35 (9th Cir. Jan. 23, 2007) (discussing mitigating 7 factors), Order Adopting Report (9th Cir. Mar. 30, 2007). 8 9 Second, the fact that the New York State reciprocal order based on the Ninth Circuit s order only imposed a public censure, 10 not a suspension, is of limited persuasive value. Although the 11 New York State courts generally give deference to the court that 12 imposed the original discipline, they do not apply the Selling 13 grave reason standard when determining the appropriate form of 14 reciprocal discipline. 15 88 (1st Dep t 2006) ( In deciding on the appropriate sanction in 16 reciprocal discipline matters, it is generally accepted that the 17 state where the misconduct occurred has the greatest interest in 18 the sanction imposed. 19 state deviates significantly from our precedent, this Court has 20 departed from that general policy of deference. ) (citations 21 omitted); In re Lever, 60 A.D.3d 37, 44 (1st Dep't 2008) 22 ( Although ... this Court in a reciprocal disciplinary proceeding 23 will often defer to the sanction initially imposed by a foreign 24 jurisdiction, our precedents are equally clear that we are not 25 bound by that sanction, and may impose a more severe penalty if See, e.g., In re Whitehead, 37 A.D.3d 86, However, when the sanction in the home 10 1 the circumstances warrant. ); In re Marshall, 67 A.D.3d 1122, 1123 2 (3d Dep t 2009)( this Court is not required to adhere to the 3 disciplinary sanction imposed by the foreign jurisdiction and may 4 impose a greater or lesser sanction ). 5 State order contains no facts or reasoning that would justify, 6 under Selling, a sanction different than that imposed by the Ninth 7 Circuit. In any event, the New York See In re Roman, 48 A.D.3d 25, 28-29 (2d Dep t 2007). 8 Third, we do not consider Roman s misconduct before the Ninth 9 Circuit to have occurred at such a remote time in the past that it 10 renders reciprocal discipline at the current time unjust. 11 the Ninth Circuit Appellate Commissioner s report and Roman s 12 submissions in the present matter indicate that the Ninth 13 Circuit s suspension was based on misconduct occurring in and 14 after 2003 and that much of the misconduct involved cases filed in 15 2004, 2005 and 2006. 16 Appellate Commissioner, at 12-18, 24-29; In re Roman, 07-9064-am 17 (2d Cir.), Roman s May 2008 Response to Order to Show Cause, at 38 18 ¶ 20 (dating Ninth Circuit problems to 2003 through 2006). 19 Because the mitigating factors in this case, considered 20 together, do not amount to a grave reason justifying a suspension 21 different than that imposed by the Ninth Circuit, we impose a six- 22 month reciprocal suspension. 23 Both See In re Roman, 05-80100, Report of Roman s Misconduct in this Court 24 We concur with the Committee s recommendation that a period 25 of suspension also is appropriate for Roman s misconduct in this 11 1 Court. 2 censure, would require either less egregious misconduct or greater 3 mitigating factors. 4 Appx. 7, 7-8 (2d Cir. May 27, 2008) (although conduct at issue 5 generally would warrant a significantly greater sanction, public 6 censure was imposed instead, based on mitigating factors and 7 imposition of other, onerous corrective measures); cf. In re 8 Flannery, 186 F.3d 143, 146-49 (2d Cir. 1999) (imposing, on four 9 attorneys, discipline ranging from monetary sanctions and public 10 censure to two-year suspension for causing dismissal of clients 11 direct criminal appeals by failing to file briefs and ignoring 12 subsequent orders to show cause why discipline should not be 13 imposed). 14 Lesser sanctions, such as a public or private reprimand or See, e.g., In re Liu, 07-9065-am, 282 Fed. We acknowledge Roman s argument that his misconduct in this 15 Court stemmed from the same set of facts and circumstances which 16 led to the original suspension in the Ninth Circuit. 17 Committee Report at 3, 5, 7, 8. 18 courts were involved, we understand this argument to mean that the 19 same case management deficiencies led to Roman s problems in both 20 circuits. 21 several instances of misconduct in this Court post-dated the Ninth 22 Circuit s November 2005 order to show cause why he should not be 23 disciplined for certain similar misconduct in that court. 24 Report at 14-15. 25 nor logic suggests that the Ninth Circuit s sanction was intended Response to Although different cases and We agree, but only in part. As noted by the Committee, See Moreover, neither the Ninth Circuit s analysis 12 1 to cover, or should cover, any misconduct other than that 2 discussed in the Ninth Circuit s order. 3 possible that, had the Ninth Circuit been aware of Roman s 4 additional misconduct in this Court, a longer suspension would 5 have been imposed. 6 the conduct addressed by the Ninth Circuit and that addressed in 7 this order. 8 in misconduct in this Court after being put on notice by the Ninth 9 Circuit about similar misconduct constitutes a significant 10 In fact, it is quite Thus, we do not see complete overlap between Additionally, the fact that Roman continued to engage aggravating factor. 11 We also are disturbed by Roman s misrepresentations to this 12 Court when he (a) permitted others to sign his name to pleadings 13 that he failed to review prior to their filing in this Court, and 14 (b) permitted materially inaccurate information to be submitted to 15 the Court in those pleadings. 16 wasn t very aware of what was going on, Hearing Tr. at 27:25, we 17 believe that he either knew of the misrepresentations, or was 18 guilty of reckless disregard, since he knew that the cases existed 19 and knew that they could not proceed to briefing and decision 20 without the input, and signature, of counsel of record. 21 R. App. P. 32(d) ( Every brief, motion, or other paper filed with 22 the court must be signed by the party filing the paper or, if the 23 party is represented, by one of the party s attorneys. ). 24 many cases were involved, and far too much time passed, for any 25 reasonable attorney to claim that he did not know how his cases Although Roman stated that he 13 See Fed. Far too 1 were advancing to final decision. 2 other mitigating factors in this case do not present the type of 3 extraordinary circumstances that might warrant divergence from the 4 sanction called for by Roman s misconduct. 5 Finally, we also find that the Due to the partial overlap between the misconduct in the two 6 circuits, we do not impose a lengthy term of suspension in 7 addition to that imposed by the Ninth Circuit. 8 that the lack of complete overlap warrants a consecutive, rather 9 than concurrent, additional suspension. However, we find We believe that the 10 additional, consecutive, term of suspension should be one month, 11 for a total suspension term of seven months. Conclusions 12 13 Upon due consideration, it is hereby ORDERED that, except as 14 noted above, the Committee s findings and recommendations are 15 adopted by the Court, and Roman is PUBLICLY REPRIMANDED and 16 SUSPENDED from practice before this Court for a period of seven 17 months, based on the misconduct described in the Committee s 18 report. 19 of this order. 20 his clients in all of his pending cases, as specified in the 21 Committee s report. 22 The suspension period will commence on the date of filing It is further ORDERED that Roman communicate with See Report at 15, Conclusion, ¶ 2. The text of this panel s November 2007 and April 2008 orders 23 and the Committee s report are appended to, and deemed part of, 24 the present order for the following disclosure purposes. 25 must disclose this order to all clients in cases currently pending 14 Roman 1 in this Court and to all courts and bars of which he is currently 2 a member, and as required by any bar or court rule or order. 3 Furthermore, the Clerk of Court is directed to release this order 4 to the public by posting it on this Court s web site and providing 5 copies to members of the public in the same manner as all other 6 published decisions of this Court, and to serve a copy on Roman, 7 this Court s Committee on Admissions and Grievances, the attorney 8 disciplinary committee for the New York State Appellate Division, 9 Second Department, the Executive Office for Immigration Review, 10 the bars and courts listed on page 15 of the Committee s report, 11 and all other courts and jurisdictions to which this Court 12 distributes disciplinary decisions in the ordinary course. 13 14 APPENDIX 1 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 Text of November 2007 order For the reasons that follow, Hector M. Roman is referred to this Court s Committee on Admissions and Grievances for investigation of the matters described below and preparation of a report on whether he should be subject to disciplinary or other corrective measures. See Second Circuit Local Rule 46(h). We express no opinion here as to an appropriate disposition. The Committee may, of course, in the first instance, determine the appropriate scope of its investigation. Since September 2005, this Court has dismissed at least 24 of the 71 petitions for review for which Roman was counsel of record, based on Roman s failure to comply with this Court s scheduling orders.2 Additionally, where Roman has moved to reinstate 2 See Second Circuit Docket Nos. 00-4048; 04-1362 (reinstatement motion denied); 04-1928; 04-1993; 04-2564; 042750; 04-3851; 04-4350; 04-4701; 04-4881, 04-5939; 04-6137 (reinstatement motion granted); 04-6590 (extension motion filed one day after due date for brief; reinstatement motion granted); 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 petitions, he has often relied on the same excuse for failing to comply with the applicable scheduling orders: that he had not received a copy of the scheduling order or had not received a response to his motion for an extension of time. See, e.g., Villa-Castano v. Board of Immigration Appeals ( BIA ), 04-3851-ag, motion filed Dec. 21, 2005; Nirmal Singh v. BIA, 04-6137-ag, motion filed May 2, 2006; Sarbjit Kaur v. BIA, 04-4881-ag, motion filed Jan. 10, 2007; Mehmi v. Gonzales, 06-3471-ag, motion filed Dec. 26, 2006; Deol v. Gonzales, 06-5157-ag, motion filed Mar. 20, 2007. However, as this Court noted in Villa-Castano, Roman either knew, or likely knew, that scheduling orders existed in the abovecited cases, see Villa-Castano, 04-3851-ag, order filed Dec. 28, 2005, and, in any event, he never explained in any of his motions for extensions of time or reinstatement why he had failed to ascertain the status of his motions, or the appeals themselves, despite the passage of long periods of time. In March 2007, this Court ordered Roman to provide this Court with a list of cases in which he had filed a motion to reinstate on behalf of petitioners after the cases had been dismissed for any reason. See Ranjit Singh v. BIA, 05-5463-ag, order filed Mar. 23, 2007. Although Roman did so, he failed to list the cases docketed under: 03-4699; 03-4700; 03-4702; 03-4706; 04-1993; 043851; 04-6137; 04-6590; 05-1679; and 06-4582. See Ranjit Singh, 05-5463-ag, response filed Apr. 10, 2007. Roman s response also did not provide any explanation for the listed defaults, although that may have resulted from the fact that the Court s order did not explicitly request an explanation. See id., order filed Mar. 23, 2007, response filed Apr. 10, 2007. The motion to reinstate Ranjit Singh was denied. See id., order filed Aug. 2, 2007. In addition to Roman s history of defaults described above, he also may have submitted deficient briefs to this Court. The Committee is requested to determine whether Roman engaged in sanctionable conduct by: (a) presenting vague or conclusory legal analysis on pertinent issues, see, e.g., Ashvinder Kaur v. BIA, 03-4699ag, brief filed Apr. 18, 2007; Jeet Singh v. BIA, 06-1389-ag, order filed May 3, 2007, at 4 (finding CAT claim waived, based on failure to present meaningful challenge to agency s 05-1000 (reinstatement motion denied); 05-1679; 05-2587; 05-5463 (reinstatement motion denied); 05-6413; 06-0920; 06-3471 (reinstatement motion granted); 06-3681; 06-5157 (reinstatement motion denied); 06-5229; and 06-5264. See also 04-4881 (dismissed for failure to file form C/A). 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 denial); Amerjeet Kaur v. BIA, 06-1491-ag, brief filed July 28, 2006; (b) raising claims that were not exhausted before the agency, without explaining why the claim should nonetheless be considered, see, e.g., Ashvinder Kaur v. BIA, 03-4699-ag, brief filed Apr. 18, 2007, at 25-26 (discussing CAT claim), order filed Oct. 16, 2007, at 5-6 (dismissing CAT claim as unexhausted); (c) presenting irrelevant matters and/or failing to challenge a dispositive agency decision, see, e.g., Harmeet Singh v. Gonzales, 06-4582-ag, order filed Aug. 24, 2007, at 3 (finding that underlying denial of asylum application was not properly before Court); Oberoi v. BIA, 05-6413-ag, brief filed Mar. 26, 2007, order filed Aug. 8, 2007, at 3-4 (upholding agency decision, and finding it unnecessary to discuss arguments presented in brief, since dispositive decision was not challenged; also noting that arguments relied to some extent on non-record submissions); Mehmi v. Gonzales, 06-3471-ag, order filed Aug. 16, 2007, at 3-4 (finding petitioner waived challenge to dispositive agency decision); Gurpal Singh v. BIA, 05-6840-ag, brief filed Nov. 13, 2006 (arguing merits of original asylum denial, which was not under appeal, and presenting conclusory argument concerning BIA s denial of petitioner s second motion to reopen); Bhag Singh v. BIA, 04-5038-ag, brief filed Nov. 23, 2005 (BIA s summary dismissal not acknowledged or challenged in brief); and (d) misstating facts or issues, see, e.g., Amerjeet Kaur v. BIA, 06-1491-ag, brief filed July 28, 2006 (incorrectly referring to Kaur as Mr. Singh and with male pronouns, and to this Court as the BIA, and stating that Punjab police persecuted and will continue to persecute Kaur, despite the fact that Kaur is not from Punjab). See also Jeet Singh, 061389-ag, docket note for June 26, 2006 (stating that submitted brief failed to comply with Federal Rule of Appellate Procedure 28). Upon due consideration of the matters described above, it is ORDERED that Hector M. Roman is referred to this Court s Committee on Admissions and Grievances for investigation and preparation of a report, pursuant to Federal Rule of Appellate Procedure 46, this Court s Local Rule 46(h), and the Rules of the Committee on Admissions and Grievances. 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 FOR THE COURT: Catherine O Hagan Wolfe, Clerk By:_______/s/_________________ Michael Zachary Supervisory Staff Attorney Counsel to Grievance Panel APPENDIX 2 Text of April 2008 order docketed under 07-9064-am By order entered in November 2007, Hector M. Roman was referred to this Court s Committee on Admissions and Grievances for investigation of the matters described in that order. Since that time, additional information regarding Roman has come to the attention of this panel. In March 2007, the United States Court of Appeals for the Ninth Circuit sanctioned Roman for, inter alia, failing to properly supervise an employee of his law firm, negligently relying on an inadequate case-management and calendaring system, failing to adequately prosecute cases, and violating various court rules and orders. See In re Roman, No. 05-80100 (9th Cir. Mar. 30, 2007). The Ninth Circuit suspended Roman from practicing law in that court for six months and imposed a monetary sanction of $1,000, with reinstatement contingent upon Roman showing, inter alia, that he is in good standing before all courts and bars in which he is admitted, and has completed ten hours of continuing legal education courses. Id. As a result of the Ninth Circuit disciplinary order, the New York Appellate Division, Second Department, imposed reciprocal discipline on Roman, although it limited its disciplinary measures to a public censure. See In re Roman, No. 2007-04450 (2d Dep t Dec. 26, 2007). Finally, in January 2008, this Court issued an order, pursuant to Second Circuit Local Rule 46(f)(1), publicly censuring Roman based upon the New York Appellate Division s order. See In re Roman, No. 089002-am (2d Cir. Jan. 3, 2008). By separate order of this panel, this Court s censure order entered under docket number 08-9002-am has been vacated, with the issue of reciprocal discipline under Local Rule 46(f) being referred to the Committee. Upon due consideration, it is ORDERED that the additional information described above is referred to this Court s Committee on Admissions and Grievances for its consideration in conjunction with the information provided in this panel s November 2007 referral order. The Committee should consolidate the two matters docketed under 08-9002-am and 07-9064-am. 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 FOR THE COURT: Catherine O Hagan Wolfe, Clerk By:_________/s/_____________________ Michael Zachary Supervisory Staff Attorney Counsel to Grievance Panel APPENDIX 3 Text of April 2008 order docketed under 08-9002-am By order filed on January 3, 2008, this Court, pursuant to Second Circuit Local Rule 46(f), publicly censured Hector M. Roman, based on a prior public censure issued by the New York State Appellate Division, Second Department. However, Local Rule 46(f) does not provide for such a disposition. Aside from the Appellate Division s public censure order, we are informed that, in March 2007, the United States Court of Appeals for the Ninth Circuit sanctioned Roman for, inter alia, failing to properly supervise an employee of his law firm, negligently relying on an inadequate case-management and calendaring system, failing to adequately prosecute cases, and violating various court rules and orders. See In re Roman, No. 05-80100 (9th Cir. Mar. 30, 2007). The Ninth Circuit suspended Roman from practicing law in that court for six months and imposed a monetary sanction of $1,000, with reinstatement contingent upon Roman showing, inter alia, that he is in good standing before all courts and bars in which he is admitted, and has completed ten hours of continuing legal education courses. Id. Upon due consideration of the matters described above, it is hereby ORDERED that the January 3, 2008 order is vacated. It is further ORDERED that the issue of whether Roman should be disciplined pursuant to Local Rule 46(f), based on the Ninth Circuit s March 2007 order, is referred to this Court s Committee on Admissions and Grievances for investigation and preparation of a report, pursuant to Federal Rule of Appellate Procedure 46, this Court s Local Rules 46(f) and (h), and the Rules of the Committee on Admissions and Grievances. FOR THE COURT: Catherine O Hagan Wolfe, Clerk By:________/s/______________________ Michael Zachary Supervisory Staff Attorney Counsel to Grievance Panel 19

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