United States of America, Plaintiff-appellee, v. Paul M. Gerrity, Defendant-appellant.united States of America, Plaintiff-appellee, v. Thomas Ponchik, Defendant-appellant, 804 F.2d 1330 (7th Cir. 1986)

The criminal defense bar has a special responsibility to its clients and to this court. The defendants, often imprisoned while their appeals are pending, depend on their attorneys to prosecute their appeals vigorously; the sixth amendment's guarantee of effective assistance of counsel on direct appeal, Evitts v. Lucey, 469 U.S. 387, 105 S. Ct. 830, 83 L. Ed. 2d 821 (1985), requires no less. And we rely on counsel to present criminal cases to us in a timely fashion because we schedule oral argument in direct criminal appeals expeditiously.

The defense attorneys in these two cases have shirked their obligations. The defendant in United States v. Gerrity, No. 85-2167, is represented by retained counsel, John S. Newberry of Gladstone, Missouri. The appeal was docketed on July 10, 1985, which meant that Newberry's brief was due on or before August 19, 1985. Circuit Rule 4(b). No brief was filed, and on November 20, 1985, we ordered Newberry to explain why the appeal should not be dismissed for lack of prosecution. Newberry responded by asking that the appeal be held in abeyance until Gerrity's motion to proceed in forma pauperis could be decided. We granted Newberry's request, and when we denied the motion we ordered Newberry to file a brief by May 5, 1986. Again not receiving a brief, we twice ordered Newberry to show cause, first to show why the appeal should not be dismissed, and second to show why Newberry should not be disciplined for failing to prosecute this appeal despite his professional obligation to do so. See Circuit Rule 2(b); United States v. Flowers, 789 F.2d 569, 570 (7th Cir. 1986).^*  Newberry did not respond to either order. In fact, in the 16 months this appeal has been pending, Newberry has filed only two documents with us: the motion to hold the case in abeyance and the motion to proceed on appeal in forma pauperis. He has not filed a brief, a motion for extension of time, or an explanation why he has not prosecuted this appeal.

We have had a similar experience with United States v. Ponchik, No. 85-2972. When we appointed Richard Kloak of Elmwood Park, Illinois, to represent Ponchik, we set February 24, 1986, as the briefing deadline. When no brief was filed, we ordered Kloak to show cause why he should not be disciplined. Kloak's written response blamed his delay on two trials he had been involved in, difficulties in obtaining the record and the files of Ponchik's trial attorneys, and Kloak's limited ability to communicate with his client, who was incarcerated in Minnesota. We granted Kloak the extension of time he requested and ordered his brief filed by May 15. Kloak has not filed a brief or another motion for extension of time, and he has not responded to two more rules to show cause issued in July.

In recent months we have been forced to discipline several attorneys who are unable or unwilling to comply with this court's rules and orders. See United States v. Bush, 797 F.2d 536, 537 (7th Cir. 1986) (collecting cases). The misconduct at issue here is more serious: attorneys Newberry and Kloak not only have not filed briefs but also have not filed anything else; for all we know, they have vanished from the face of the earth. Meanwhile their clients sit in jail, presumably believing that their appeals are proceeding. This is intolerable. Accordingly, we discipline Newberry and Kloak as follows: each is suspended indefinitely from practice in this court and fined $500.00, payable by certified check to the United States Treasury within two weeks of the date of this opinion. Newberry and Kloak are not members of this court's bar and so cannot be disbarred, but neither will be allowed to file additional documents or participate in any way in future cases. Copies of this opinion will be sent to the appropriate state disciplinary bodies. In addition, we will appoint substitute counsel for Ponchik. Because Newberry is retained counsel, we cannot do the same for Gerrity. We will, however, send a copy of this opinion to Gerrity and give him 30 days from the date of this opinion to retain new counsel and have that person file an appearance.

We reiterate what we have said in earlier opinions: lawyers for criminal defendants must prosecute their cases actively. Attorneys who ignore clients' cases do so at their own peril; those who disregard our rules can expect to be penalized severely.