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In re Tustaniwsky 

### U N IT E D S T A T E S C O U RTO FA P P E A L S

F O R T H E S E C O N D C IR C U IT August Term, 2013 (Decided: July 9, 2014) Docket No. 10-90003- am

______________________________________________________ In re Oleh R. Tustaniwsky,

Attorney .

______________________________________________________ Before : Cabr anes, S ack, and Wesley, Circuit Judges

.

_____________________ This Court’s Committee on Admissi ons and Grievances has re commended that Oleh R. Tustani wsky, an attorney admitted to the bar of this Court, be discipl ined for his misconduct in thi s Cour t. We adopt the Committ ee’s findings of fact and recommendations, with certain exceptions, publicly reprimand Tustaniwsky, and suspend him from practice befor e this Court for one year .

_____________________ For Oleh R. Tustaniwsky: Oleh R. Tustaniwsky, Esq

. New York, N ew YorkPER CURIAM: 1 Pursuant to this Court’s Local Rul e 46.2, it is hereby ORDERED, 2 ADJUDGED, AND DECREED that the findings and recommendations of this 3 Court’s C ommi ttee on Admissions and Grievances (“the C ommi ttee”) are 4 adopted, exce pt as discussed be low, and Oleh Tustaniw sky is PUBLICLY 5 REPRI MANDED , and SUSPEND ED from pr actice before this Court for one year, 6 for engaging in misconduct in this Court. 7 I. Summary of Proceedings 8 We re ferr ed Tustaniwsky to the Commi ttee for investigation of his conduct 9 in this Court and prep aration of a repor t on whether he should be s ubject to 10 discipl inary or other corre ctive measures. D uring the Committ ee’s pr oceedings, 11 Tustaniwsky had the opportunity to address the matters discusse d in our refe rral 12 order and to testify under oath at hearings he ld before C ommi ttee members 13 Eil een M. Blackwood, Evan A. Davis, Michael D. Patrick, and Gerald Walpin. 14 Thereaf ter, the C ommi ttee filed wi th the Court the r ecord of the Commit tee’s 15 procee dings and its report and r ecommendations, as well as the concurring 16 repor t of Commi ttee member Walpin. Tustaniwsky responded to the

21 Commit tee’s r eports. 2 A. The Committee’s Findings and Recommendations 3 The Committ ee found clear and convincing evidence that Tustaniwsky had 4 engaged in misconduct warranting the imposition of discipl ine. Specificall y, the 5 Commit tee found that Tustaniwsky had: (1) defaulted on scheduling orders in 6 twenty-two cases, with ten of those def aults resulting in orders requiring himto 7 show cause why the cases s hould not be dismi ssed b ased on his de faults; (2) fi led 8 substantively defici ent briefs in five cases; (3) knowingly fil ed meritless 9 pleadings; and (4) prejudiced at least two cli ents whose cases we re dismissed as a 10 result of his defaults, and expos ed other clients to potenti al prejudice through his 11 pattern of defaulting on scheduling orders

. See Commit tee Repor t at 5-9; 12 Concur ring Report at 1. 13 The Committ ee also found se veral aggravating factors: a lack of remorse , 14 no more than a grudging acknowledgment of wrongdoing, a hostile and 15 disdainfulatti tude toward the Committee, a patternof misconduct, and a l ack of 16 candor ab out his failure to re spond to cer tain Court order s. SeeCommit tee 17 Report at 9-10, 11 and 11 n.10. It found one miti gating factor: some of 18 Tustaniwsky’s mi sconduct res ulted from instructions he r eceived from his

31 employers. See id. at 10. The Commit tee re commended that Tustaniw sky be 2 suspende d from practice befor e this Court for one year , and that, as a condition of 3 readmission, he be required to complete at l east six hours of continuing l egal 4 education (“CLE”) in appellate im mig ration law and four hours of C LE in 5 profes sional ethics. Id. at 12. 1 6 B. Tustaniwsky’s Response 7 In his respons e to the Committee’s repor t, Tustaniw sky, inter alia , 8 acknowledged his “mistakes and transgre ssions in failing to comply wi th Court9 order ed deadlines,” stated that he had e ndeavore d to only presen t viable i ssues 10 to this Court and to repr esen t his cli ents to the be st of his abili ty, and conceded 11 that he had “used poor judgment” in filing untim ely petiti ons for r eview in two 12 cases. SeeResponse at 2-3. He asse rted, howeve r, that the clients in those two 13 cases we re not pr ejudiced because it was only after the de adli ne had pas sed that

The concurr ing Commi ttee member agr eed with the Committ ee 1 majority’s misconduct findings and its recommendation that Tu staniwsky be suspende d for one year, b ut recommended that the Cour t find addi tional aggravating factors and reject the one miti gating factor found by the majority. The concurr ing Commi ttee member’s additional finding that Tustani wsky demonstrated a lack of candor in a pleading was accepted b y the Committ ee majority, seeCommittee Repor t at 11 n.10, and is adopted by the Cour t. The other additional aggravating factors found b y the concurr ing Commi ttee member, and the disputed mitig ating factor, are discussed infra

. 41 he was aske d to fil e the late petitions, and he descr ibed the measure s he has taken 2 to preven t future misconduct. See id. at 3. Tustaniw sky did not explici tly 3 challenge the Committ ee’s r ecommended suspe nsion, but asked this Cour t to 4 “[c]onsider its discipline in the contex t of allthe cases in which he has 5 repr esen ted a client before this Co urt and take into account the measures he has 6 taken not to repe at the mistak es and tran sgres sions in questi on.” Id. at 4. 7 II. Discussion 8 We give “particular defere nce” to the factual findings of the C ommi ttee 9 members who pr esided over an attorney disciplinary he aring where those 10 findings are base d on demeanor -based c redibility determinations, and somewhat 11 lesser defer ence to cr edibili ty findings base d on an analysis of a witness’s 12 testimony. See In re Payne, 707 F.3d 195, 201-02 (2d Cir. 2013). Upon due 13 consideration of the C ommi ttee’s majority and concurring repor ts, the under lying 14 recor d, and Tustaniwsky’s respon se, we adopt the f indings and 15 recommendations that were agr eed upon b y the majority and concurring 16 Commit tee members . We lim it our discussion to the major points of 17 disagreement among the C ommi ttee members an d to the deficient briefing issue. 18 A. Possible Misrepresentation to Court and Committee 51 The concurr ing Commi ttee member r ecommended that the Cour t find that 2 Tustaniwsky knowingly mi srep rese nted his reas on for r equesting an extension of 3 tim e in Chen v. Mukasey, 08-0516, while the Commi ttee majority found 4 Tustaniwsky’s proffere d reaso n to be plausible and likel y not pretex tual. We 5 conclude that the total ity of the evidence supports the Commit tee majority’s 6 findings on this point

. 7 Tustaniwsky’s request for an ex tension in Chen was base d on his asser ted 8 inabil ity t o obtain a complete transcript of an imm igration court proceeding. In 9 concluding that Tustaniwsky’s asserted b asis for the e xtension re quest was not 10 credible, the concur ring Committee member ar gued that a dil igent, proactive 11 attorney would have pursued var ious remedies to obtain the missing portions of 12 that transcript and, in any event, would have deter mined that the trans cript was 13 not neces sary for the issues he wished to pres ent in this Court. However , in their 14 discussion of Tustaniwsky’s conduct in many other case s in this Court, the 15 majority and concurr ing Commi ttee members made clear that Tustani wsky often 16 was not dili gent or pr oactive, leading us to conclude that, in Chen , it i s just as 17 li kely that Tu staniwsky did beli eve, bas ed on a supe rficialreview of the cas e, that 18 the incomplete transcript provided a legiti mate basis for an ex tension of time.

61 Under the circumstances, we accep t the Commit tee majority’s finding that there 2 was insufficient evidence that Tustani wsky had made an intentional 3 misrepres entation to the Court and Co mmi ttee. 4 B. Defaults Resulting from Client’s Failure to Pay Attorney’s Fees 5 We agree with the concurring Committ ee member that Tustani wsky 6 improperly permitted cases to be de faulted based on the clients’ failure to pay 7 attorney’s fee s. In situati ons wher e an attorney doe s not wish to procee d with a 8 case due to non- payment of fees or any other issue with a client, the attorney 9 may, inter alia, request leave to withdraw from the case, or request a stay of 10 procee dings pending res oluti on of the issue. See, e.g., ABA, Model Rules of 11 Professional Conduct, Rules 1.16(b)(5), (c), (d) (2013) (pe rmitting a lawy er to 12 withdraw from repre sentation if “the cli ent fails substantial ly to ful fillan 13 obligati on to the lawyer re garding the lawyer’s se rvices,” pr ovided the lawyer 14 compli es with the tribunal’s rules and “take[s] ste ps to the ex tent reaso nably 15 practicable to protect [the] client’s interests”). 16 But “deliber ately fail ing to take requi red action becaus e of non-payment of 17 [legal] fees, there by per mitting [the] cli ent’s petition to be dismi ssed[, or put into 18 default], i s unacceptable.” Bennett v. Mukasey, 525 F.3d 222, 223 (2d Cir. 2008)

71 (Newman, J.); accord In re Meenan , 117 A.D.3d 42, --- N.Y.S .2d ---- (2 Dep’t 2014) nd 2 (holding that attorney violated discipl inary rule by stopping work on client’s case 3 due to nonpayment of legal fees without seeking the tribunal’s leave to withdraw 4 from the re pres entation). This rule appli es eve n if the attorney does n ot use the 5 possibili ty of dismi ssal, default, or other pr ejudice to the cli ent’s case as leverage 6 to obtain payment. 7 However, Tustaniwsky’s cul pabili ty for this mi sconduct is somewhat 8 mitigated, to the extent he e ngaged in the misconduct only because instructed to 9 do so by his employer. See In re Hemlock , 52 A.D.2d 248, 250-51, 383 N.Y.S .2d 600, 10 602 (1 Dep’t 1976) (finding, in mi tigation, that ju nior partner only acted as an st 11 “amanuensis” under the direction of a senior par tner “who s et firm poli cy, 12 established fee s, and directed the other attorne ys in their work”). But any such 13 mitigati on is mi nimalin the prese nt case, eve n if Tustani wsky reas onably 14 believed that he would be fired if he failed to comply w ith his empl oyer’s 15 instructions. SeeNew York Rule of Profes sional Conduct 5.2(a) (“A lawyer is 16 bound by thes e Rules notwithstanding t hat the lawyer acted at the direction of 17 another pe rson”; r ule effective as of April 1, 2009)); New York C ode of 18 Profess ional Responsibil ity, Disci plinary Rul e 1-104(E) (es sentiall y identicalrule;

81 in effect prior to April 1, 2009). There is no indication that Tustaniwsky, for 2 example, discussed the e thics issue with hi s employer, re sisted his employer’s 3 instructions in any way, att empted to mi tigate the effe ct of those instructions, 4 sought advice from anyone, or repor ted the matter to the Court or any bar 5 authority. 2 6 C. Briefing Deficiencies 7 Tustaniwsky’s testim ony and his res ponse to the C ommi ttee’s re ports 8 strongly suggest that he stilldoes not fully understand why the C ourt and 9 Commit tee found his br iefs in five cases to be s ubstantively defici ent. The two 10 most serious deficiencies were (a) his failu re to raise dispos iti ve issues in this 11 Court, re sulting in the Court finding those issues waived and the ap peals

The American Bar Ass ociati on’s Standards for Imposing Lawyer Sanctions 2 does not addr ess whe ther be ing instructed by an employer to engage in improper be havior mightconstitute a m iti gating factor. However, it does state that “agreeing to [a] client’s demand for ... improper be havior or re sult” should not be cons idered a miti gating or aggravating factor. ABA, Standards for Imposing Lawyer Sanctions § 9.4(b) (1986, amended 1992). Wh il e the two scen arios are simi lar, we do not adopt a categorical rule barring an employer’s instructions from being treated as a mitigating factor. On the o ther hand , for purpo ses of the pres ent case, we need n ot decide what type or degr ee of e mployer press ure or coercion might entitle an attorney to more than minim al mi tigation. Cf. Peters v. Comm. on Grievances for U.S. Dist. Court for S. Dist. Of New York , 748 F.3d 456, 463 (2d Cir. 2014) (noting aggravating factor of instructing a ju nior associate to engage in misconduct and then attempting to shift blam e to him). 91 meritless, and (b) his raising of issues in this Court that had not bee n raised first 2 befor e the administrati ve agency, r esulting in the Cour t finding those issues 3 barr ed, base d on that failure to ex haust admini strative remedies. 4 Tustaniwsky’s explanation was sim ple: an exhaus ted issue would not be 5 raised in this Court if it was not vi able, and an unex hausted issue would be raised 6 in this Court if i t was viable despite being unexhauste d. SeeResponse at 1. 7 However, Tustaniwsky di d not explain in his appell ate briefs whyhe was not 8 raising the issues that, on their face, app eare d dispositi ve of the appe als, or why 9 the Cour t had the authority to consider the unex hausted issues he did presen t. 10 His apparen t belief was that the Court itself should have known the answe rs to 11 these questions, without the need for h is briefs to mention either the questions or 12 the answer s. For ex ample, in his hearing testimony, Tustaniwsky stat ed that the 13 Court sho uld have itself seen that an exce ption to the exhaustion requirement 14 applied wi thout his having t o “use the magic words.” Transc ript (Exh. B) at 509. 15 In the case then un der discussion, Tustaniwsky’s brief did not mention that the 16 issue befor e the C ourt was unexh austed or that any ex ception to the exhaustion 17 requirement might apply, let al one pr esen t a reasone d argument that the issue 18 should not be bar red on that bas is. See Xing Jian Jiang v. Mukasey, No. 08-3275,

101 brief filed March 12, 2009. 2 Tustaniwsky’s positi on has be en rejected by this Court multi ple tim es. He 3 esse ntial ly believes that the Court itself should “‘scour the re cord, re searc h any 4 legal theory that comes to mind, and serve gener all y as an advocate for 5 appellant.’” Sioson v. Knights of Columbus , 303 F.3d 458, 460 (2d Cir. 2002) 6 (quoting Ernst Haas Studio, Inc. v. Palm Press, Inc. , 164 F.3d 110, 112 (2d Cir. 1999)). 7 But, as we held in Sioson , that is not the Court’s role, par ticul arly in a counseled 8 appeal. Id. Feder al Rul e of Appellate Procedure 28(a) required Tustaniwsky to 9 pres ent each of the “appellant’s contentions and the re asons for them, with 10 citati ons to the authorities and parts of the recor d on which the appellant relies.” 11 Fed. R. App. P. 28(a)(8)(A). The subs tantialrisk he ranby not clearly and 12 explicitly pres enting each re levant argument, with appropr iate cit ations, should 13 have be en known to him at the ti me he filed those br iefs, since this Court has 14 repe atedly made cl ear that “‘[i]ssues n ot sufficientl y argued in the br iefs are 15 considere d waived and normally w il l not be addres sed on app eal.’” Yueqing 16 Zhang v. Gonzales , 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir. 2005) (quoting Norton v. 17 Sam's Club , 145 F.3d 114, 117 (2d Cir. 1998)). While the Cour t may have had 18 authority to address some or allof Tustaniwsky’s waiv ed arguments, in orde r to

111 avoid mani fest injustice, see LNC Invs., Inc. v. Nat'l Westminster Bank , 308 F.3d 169, 2 176 n. 8 (2d Cir. 2002), no r easonab le attorney would rely on that mere possibility. 3 Tustaniwsky’s failure to prop erly set forth h is arguments for why the C ourt 4 should grant relief was not a mere inconve nience to the C ourt. It was a serious 5 disservice to his clients, whose claims for relief were n ot even cons idered by the 6 Court due to Tustaniwsky’s failu re to pr operly pre sent them. In a simi lar context, 7 where a client’s clai ms for re li ef wer e not consider ed due to a default dismi ssal, 8 this Court held that 9 the dismissal of a case on default wi thout the cli ent’s conse nt, even if 10 the case app ears to lack merit, causes pr ejudice by depriving the 11 client of review by a panel of Article II I judges. Litigants who face 12 deportation, incarcer ation, or simpl y a financialloss if they lose on 13 appeal are likely to derive at l east some satisfaction, consolation, or 14 sense of finali ty from knowing that the loss on appe al resulted from 15 the reas oned decision of thre e judges rathe r than from their 16 attorneys’ default. 17 In re Fengling Liu , 664 F.3d 367, 373 (2d Cir. 2011). In the pre sent pr oceeding, 18 Tustaniwsky hi mself has asser ted that the issues he r aised, or thought he had 19 raised, in his appellate briefs wer e viable, making clear that his clients were 20 prejudiced when thos e issues wer e neve r re ached by the Court. 3

Tustaniwsky’s speculati on that some of his defaults may have been 3 caused by C lerk’s Office er ror – i.e. , that the Clerk’s Off ice may have mai led certain order s to an incorre ct address – was treated as anaggravating factor in 121 III. Imposition of Suspension and Other Corrective Measures 2 Des pite disagreements on se veral points, the Committ ee’s majority and 3 concurring member s all agreed that Tustaniwsky’s mi sconduct in this Court 4 warranted a o ne year suspens ion from this Court’s bar. We agree. A o ne-year 5 suspens ion is warranted by the aggr avating factors in thi s case, par ticul arly 6 Tustaniwsky’s lack of remorse, his grudging and only partial acknowl edgment of 7 wrongdoing, and his hostile and disdainfulatti tude toward the Committ ee. It is 8 theref ore ORD ERED that Tustaniwsky i s publicly reprimanded and suspende d 9 from practice befor e this Court for one year . It i s further ORDERED as follows: 10 (a) The suspe nsion period willcommence twenty-eight days from 11 the date of this decision. Tustaniwsky m ay fil e any br iefs that 12 curre ntly have fil ing deadlines falling wi thin the next twenty-eight 13 days, and may see thr ough to completi on any case in this Cour t in 14 which his brief has b een filed by the e nd of that twenty-eight day 15 period. Howeve r, any pane l presiding over a case in which 16 Tustaniwsky i s rep rese nting a party is free to re consider his 17 continued repr esen tati on. 18 19 (b) With respe ct to allof his other pe nding cases in this Court, 20 Tustaniwsky m ust, within twenty-eight days: (i) inform hi s clients 21 that, due to his suspension, they must obtain new counsel or pr oceed 22 pro se, (ii) turn over allclient fi les and materials to those cli ents, to the 23 extent r equired by applicable l aws and rules, (iii) cooperate in all

the concurr ing Commi ttee repo rt. SeeConcur ring Report at 11. We decline to reach an y conclusion on this point , as the re cord is not sufficiently developed regar ding Tustani wsky’s basis for his asser tion. 131 other r espe cts with his cl ients’ efforts to pr osecute their cas es, and 2 (iv) move to wi thdraw in each case and, if appropriate, move for an 3 extens ion of tim e to enable ne w counsel, or the client, to prepar e for, 4 and prose cute, the appeal. 5 6 The Clerk ofCourt is directed to re lease this decision to the public by 7 posting iton this Court’s web site and providing copies to the public in the same 8 manner as all other published decisions of this Cour t, and to serve a copy on 9 Tustaniwsky, thi s Cour t’s Commit tee on Admissions and Grievances, the 10 attorney disciplinary commit tee for the New York S tate Appellate Divi sion, First 11 Depar tment, and allother cour ts and jurisdicti ons to which this Court distributes 12 discipl inary decisions in the ordinary cours e. 4

The Committ ee’s r eports ar e to be available to the public. Addi tional ly, 4 counsel to this panel is authorized to provide, upon request, all other doc uments from the re cord of this proce eding to other attorney disciplinary authoriti es. While we request that those other doc uments remain confidentialto the extent circumstances allow, we of course leave to the discre tion of those discipl inary authoriti es the de cision of whether spe cific docum ents, or p ortions of documents, should be made available to any person or the public. A supplemental order issued this date discusses Tustaniwsky’s CLE requirements and re admission to t his Court’s b ar after h is suspension pe riod. 14