06-2480-ag 

Bennett v. Mukasey

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term 2007

Submitted: May 6, 2008 Decided: May 12, 2008

Docket No. 06-2480-ag

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RIZLAND BENNETT,

Petitioner,

 v.

MICHAEL B. MUKASEY, United

States Attorney General,

Respondent.

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Before: NEWMAN, Circuit Judge, in Chambers.

Motion to recall a mandate and reinstate a petition for review of

a decision of the Board of Immigration Appeals that had been dismissed

one year ago for the failure of petitioner’s attorney to comply with

Court’s procedural requirements. Attorney, who had accepted a partial

fee under a retainer agreement, reports that he failed to comply and

did not promptly file a motion to reinstate because he had not

received additional fee payment.

Motion granted, deadline for petitioner’s brief established, and

file transmitted to Court’s Grievance Panel.

Douglas Rosenthal, The Rosenthal Law 

Firm, P.C., New York, N.Y., submitted

papers on behalf of Petitioner.
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 William C. Minick, Office of Immigration

Litigation, U.S. Department of Justice,

Washington, D.C., submitted papers on

behalf of Respondent.

JON O. NEWMAN, Circuit Judge, in Chambers:

This motion to recall a mandate and reinstate a petition for

review of a decision of the Board of Immigration Appeals (“BIA”)

merits this brief chambers opinion to make clear that a lawyer’s

practice of accepting an initial retainer fee and then deliberately

failing to take required action because of non-payment of additional

fees, thereby permitting his client’s petition to be dismissed, is

unacceptable.

On May 26, 2006, Attorney Douglas Rosenthal filed a petition in

this Court for Rizland Bennett to review a BIA decision denying

Bennett’s petition to reopen removal proceedings in order to seek

adjustment of status based on his marriage to a United States citizen.

Before the Immigration Court, the Government had declined to oppose

his motion to reopen at the agency level. On June 6, 2006, a deputy

clerk of this Court reminded Rosenthal by telephone of the Court’s

requirement to file, within ten days of a petition for review, the

standard informational form (Local Form C-A) for agency appeals. See

28 U.S.C.A., Second Circuit Local Rules, App., Part C (Civil Appeals

Management Plan ¶3(a)). Rosenthal stated that he would file the

required form. Upon Rosenthal’s failure to do so, the petition was
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dismissed nearly a year later on April 7, 2007, and a mandate was

issued.

On April 11, 2008, after passage of yet another year, Rosenthal

filed a motion to reinstate the petition, which implicitly included a

request to recall the mandate. Rosenthal alleged that the one-year

delay in seeking reinstatement was due to “a lack of co-operativeness

on the part of the petitioner.” No explanation was given for the

prior nearly one-year delay in complying with Court requirements that

preceded the dismissal.

Treating the motion as a one-judge procedural motion, See Fed. R.

App. P. 27(c); 2d Cir. R. 27(f), I denied it on April 21, 2008,

“without prejudice to a further submission, within ten days,

explaining in detail the alleged ‘lack of cooperativeness’ between

counsel and petitioner, including whether such lack concerned payment

of, or liability for, counsel fees . . . .”

On May 7, 2008 (two days late, see Fed. R. App. P. 26), Rosenthal

filed his response. He reported that in May 2006, he met with Bennett

and that “[t]erms for . . . retention were discussed, and agreed upon

and a modest retainer fee was paid.” “Thereafter,” the response

continued, “as uncomfortable as it is to relate, Petitioner

demonstrated a lack of cooperativeness with counsel by failing to pay

as agreed upon . . ., and a letter sent to Petitioner advising him of

the situation and the need to bring the outstanding balance to date
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went without response.” “In late 2007 or early 2008,” the response

further continued, “Counsel received a call from Petitioner inquiring

as to the status of the case, and was advised accordingly. A further

promise to pay was forthcoming, but full payment on that promise was

not received until March, 2008. The instant motion ensued.”

By his own admission, Rosenthal evidently believes that a

retainer agreement and initial payment for an appeal imposes upon

counsel no obligation to pursue the appeal, that required steps may

await further payment, and that a client’s appeal may be permitted to

be defaulted and dismissed for lack of such further payment. The

Lawyer’s Code of Professional Responsibility, as adopted by the New

York State Bar Association (“NY Code”), makes clear that Rosenthal is

incorrect. It provides: “Full availability of legal counsel requires

both that persons be able to obtain counsel and that lawyers who

undertake representation complete the work involved.” NY Code, EC 2-31

(emphasis added). Moreover, “[a] lawyer shall not . . . [n]eglect a

legal matter entrusted to the lawyer,” id., DR 6-101(A)(3),” and

“shall not intentionally . . . [f]ail to carry out a contract of

employment entered into with a client for professional services [or]

. . . prejudice or damage the client during the course of the

professional relationship,” id., DR 7-101(A)(2), (3).

Although the Code indicates that a lawyer may withdraw if his

client “[d]eliberately disregards an agreement or obligation to the
A lawyer shall not withdraw from employment until the lawyer has 1

taken steps to the extent reasonably practicable to avoid foreseeable

prejudice to the rights of the client, including giving due notice to

the client, allowing time for employment of other counsel, delivering

to the client all papers and property to which the client is entitled,

and complying with applicable laws and rules. NY Code, DR 2-110(A)(2).

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lawyer as to expenses or fees,” id., DR 2-110(C)(1)(f), we have stated

that “[n]on-payment of legal fees, without more, is not usually a

sufficient basis to permit an attorney to withdraw from

representation.” United States v. Parker, 439 F.3d 81, 104 (2d Cir.

2006). In any event, withdrawal requires compliance with several

obligations to the client, and Rosenthal made no attempt to withdraw, 1

much less to comply with withdrawal obligations.

Instead, despite a retainer agreement and acceptance of an

initial fee payment, he neglected his obligations to his client and

permitted his client’s appeal to be defaulted and dismissed. Of

course, a retained lawyer can either pursue contractual remedies to

collect unpaid fees or seek leave to withdraw, but he cannot abandon

his client for lack of a promised payment nor neglect his professional

responsibilities until such payment has been made.

The Government opposes the pending motion to reinstate,
See Rules of the Committee on Admissions and Grievances for the 2

United States Court of Appeals for the Second Circuit 2(a).

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contending, not without justification, that Rosenthal has not made the

showing of “manifest injustice” normally required to warrant recall of

a mandate “to relieve litigants of the consequences of default.” See

Fed. R. App. P. 2 advisory committee’s note; Calloway v. Marvel

Entertainment Group, 854 F.2d 1452, 1475 (2d Cir. 1988). However, at

least in a case where the Government initially declined to oppose the

relief sought at the administrative level, it seems unfair to penalize

the client because of his lawyer’s conduct. Denial of reinstatement

would be an inappropriate sanction for what has occurred.

Accordingly, it is hereby ORDERED that the mandate is recalled,

the petition is reinstated, the Petitioner’s brief shall be filed in

30 days, with no extension to be expected, a scheduling order for the

Respondent’s brief shall be issued upon the filing of the Petitioner’s

brief, and the Clerk shall transmit a copy of the file to the

Grievance Panel of this Court for such action, if any, as it deems 2

appropriate.