07-9048-am In re Vlad Kuzmin

## UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 

## SUMMARY 

## ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER")

. A PARTY CITING A SUMMARY ORDER MUST SERVE A COpy OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 

### At a stated ter.m of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 

### 12TH day of October, two thousand ten. PRESENT: Jose A. Cabranes, Robert D. Sack, Richard C. Wesley, Circuit Judges.



### 07-9048-am In re Vlad Kuzmin, Attorney. ORDER OF GRIEVANCE PANEL

FOR VLAD KUZMIN: HAL R. LIEBERMAN, York. Esq., New York, New

1 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 2 3 4 DECREED that the report of this Court's Committee on Admissions and Grievances ("the Committee") is adopted, and VLAD KUZMIN is PUBLICLY REPRIMANDED for the misconduct described in the

### 1 2 

### 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Committee's report. I. Summary of Proceedings 

### By order filed in July 2007, this Court referred Kuzmin 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. During the Committee's proceedings, Kuzmin had the opportunity to address the matters discussed in the Court's referral order and to testify under oath at a hearing held on November 19, 2008, and February 12, 2009. Kuzmin was represented during the Committee's proceedings by Hal R. Lieberman, Esq. Presiding over the hearing were Committee members Mary Jo White, Esq., Loretta 

### E. Lynch, Esq., and the Honorable Howard A. Levine. In March 2010, the Committee led with the Court the record of the Committee's proceedings and its report and recommendations. Thereafter, the Court provided Kuzmin with a copy of the Committee's report, and Kuzmin responded. In its report, the Committee concluded that there was clear and convincing evidence that Kuzmin had engaged in conduct warranting the imposition of discipline. See 

### Report at 16. Specifically, the Committee found that Kuzmin had: (1) missed this Court's briefing deadlines on multiple occasions; (2) 

### regarding Qun Yang v. McElroy, 

### 98-4391-ag, missed both the initial efing deadline and the deadline for responding to this

21 

### 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Court's subsequent order to show cause why the case should not be di ssed based on his default, failed to notify his client promptly of the case status, and failed to adequately advise immigration authorities of the circumstances of Yang's entry into the United States; (3) used a retainer agreement that did not comport with New York's ethical rules; and (4) repeatedly fail to formally withdraw from, or stipulate to the dismissal of,

cases that he had abandoned. 

### Id., at 1, 16. After noting the presence of various aggravating and mitigating factors, the Committee recommended that Kuzmin be publicly reprimanded and subject to certa reporting requirements. 

### Id. at 16-17. In his response, Kuzmin stated that he had no objections to the factual

or legal determinations in the Committee's report, but requested cIa fication as to the commencement date of the reporting requirements recommended by the Committee. Response at 1. II. Additional Defaults After Issuance of Referral Order A ew of this Court's records indicates that Kuzmin has not missed any briefing deadlines since the March 2010 issuance of Committee's report. However, as the Committee noted, Kuzmin missed briefing deadlines in six cases between the issuance of this Court's July 2007 referral order and the Committee's February 2009 hearing; four of those defaults clearly occurred after he had received notice of the Court's referral order in March 2008. See Report at 7-8; Hearing Transcript at 249-53 (discussing cases docket under 07-3741, 07-4883, 07­ 3

### 1 2 3 4 5 6 

### 7 8 

### 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 5379, 07-5380, 08-1800, and 08-3457); Kuzmin's March 17, 2009 Post-Hearing Submission. In addition to the new defaults noted by the Committee, Kuzmin has missed deadl in three other cases. In Jin Bei Zhao v. Gonzales, 

### 06-3438-ag, Kuzmin permitted the October 2008 briefing deadline to pass without filing a br or requesting an extension, causing this Court to issue an order to show cause why the appeal should not be dismissed bas on his default. See Jin Bei Zhao, 

### 06-3438-ag, order filed Oct. 31, 2008. After timely responding, see id., 

### response Nov. 3, 2008, Kuzmin withdrew the appeal, see id., 

### motion filed Nov. 5, 2008, order granted withdrawal filed Nov. 6, 2008. In Zhao Xiang v. Gonzales, 

### 0 5405 , Kuzmin allowed the October 2008 briefing adline to pass before moving to withdraw the appeal more than two weeks later. See Zhao Xiang, 

### 06-5405-ag, order led Sept. 17, 2008 (setting Oct. 17 briefing deadline), motion to withdraw filed Nov. 3, 2008, order granting withdrawal filed Nov. 18, 2008. In Dian Jiang v. Mukasey, 

### 08-0980-ag, Kuzmin filed a motion

an extension of the fing deadline the day a the deadline had pas See Fei Jiang, 

### 08-0980-ag, order filed Apr. 10, 2008 (setting May 12 briefing deadline), motion fi May 13, 2008. Finally, this Court has received additional information concerning Ku 's performance Heng Lun Chen v. Gonzales, 05­



### 41 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 5199-ag, which was listed in the July 2007 referral order as one of the cases that were dismissed due to Kuzmin's default on a scheduling order. During the proceedings before the Committee, Kuzmin stated that he had decided not to proceed with that appeal in light of the unlikelihood of success and the possibility of alternative relief being available. Kuzmin's May 2008 Response to Committee's Order to Show Cause, at 15, 16; Hearing Transcript at 37-38. However, in July 2009 (after the Committee's hearing

was completed), Heng Lun Chen moved for reinstatement of his appeal, alleging: (a) in September 2005, he retained Kuzmin to file his petition for review, and paid him a total of $6,000 over two years; (b) he diligently checked the status of his case, by visiting Kuzmin's office about twice a year and calling the office over ten times a year, and was consistently told his case

was still pending; and (c) in February 2009, he discovered that his petition had been dismissed in March 2006 based on Kuzmin's failure to file a brief. See Heng Lun Chen, 05-5199-ag, motion and affidavit filed July 21, 2009. Heng Lun Chen asserted that Kuzmin had failed to keep him apprised of the status of his case, or of the dismissal, and, implicitly, that Kuzmin had permitted the case to be dismissed on default without consulting Heng Lun Chen. See _id. Heng Lun Chen's motion for reinstatement was denied. See id., order filed Sept. 9, 2009. We reach no conclusions at this time concerning the

51 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 allegations made by Heng Lun Chen, since Kuzmin has not had an opportunity to address them in this proceeding. However, since the allegations are serious, we direct Kuzmin to address them in his first report to the Committee, as explained below. III. Conclusions Upon due consideration of the Committee's report, the underlying record, and Kuzmin's submissions, it is hereby ORDERED that Kuzmin is PUBLICLY REPRIMANDED for the misconduct described in the Committee's report and DIRECTED to comply with the reporting requirements described on page 17 of the Committee's report. However, we modify the reporting requirements as follows: (a) Kuzmin's first report must be received by the Committee within 30 days of the filing of the present order, (b) it must

cover the time period from March 23, 2010 to the date of the report, and (c) in addition to the content requirements set forth by the Committee, it must address the above-noted allegations made by Heng Lun Chen, the fee arrangement for that case, whether any portion of the fee was retained after the dismissal of the case, and, if any portion was retained, the basis for that retention. The remaining three reports must abide by the requirements set forth in the Committee's report. The Committee may modify the report deadlines, either on motion or sua sponte. Upon receipt of Kuzmin's first report, the Committee should hold

61 such additional proceedings as it sees , and thereafter submit 2 to the Court a supplemental report concerning the Heng Lun Chen 3 allegations. 4 The text this panel's July 2007 order and the Committee's 5 report are appended to, and deemed of, the present order 

### 6 the following disclosure purposes. Kuzmin must disclose this 7 order to all courts and bars of which is currently a 8 and as required by any bar or court rule or order. Kuzmin so 9 must, within days of the filing of this order, an 10 affidavit with s Court confirming he has complied with 11 the preceding disclosure requirement. Furthermore, the C of 12 Court is direct to release this to the public by posting 13 it on this Court's web site and providing copies to members 14 the public in same manner as all other unpublished decisions 

### 15 of this Court, and to serve a copy on Kuzmin, this Court's 16 Committee on Admissions and Grievances, the attorney disciplinary 17 committee for the New York State Appel Division, First 18 Department, and all other courts and j sdictions to which this 19 Court distributes disciplinary decisions in the ordinary course. FOR THE COURT: Cathe O'Hagan Wol rk

By: Michael Zachary Counsel to the Grievance Panel

7

### him sts. APPENDIX 1 Text of Ju1y 2007 order 

### For reasons that follow, Vlad Kuzmin is refe to this Court's Committee on Admissions and Grievances r stigation matters described below and preparation of a rt on should be subject to disciplinary or corrective measures. See Second Circuit Local Rule 46(h). We s no on as to an appropriate disposition. The Committee of course, in the first instance, determine the appropr

of its investigation. ,

s matter was commenced at the request of Qun sciplinary action against Kuzmin, his former on Kuzmin's conduct in Yang's appeal from an of Immigration Appeals ("BIA"). See Qun Yang 

### v. McElroy, 

### 98 4391 Yang primarily alleges that Kuzmin had Yang his petition for review in that appeal had been on s by this Court, and that Kuzmin had re ed to provide a copy of this Court's opinion, de te numerous See id., 

### letter filed Dec. 28, 2006 (noting attorney's failure to provide copy of Court's decision). According to Yang, upon ng this Court's docket sheet, he 1 that, contrary to Kuzmin's statements, his petition had been dismissed in October 2005 due to Kuzmin's failure to le a brief. See id., 

### st for disciplinary action filed

. 5, 2007. We note that the default that resulted in dismissal of 's appeal was the second default by Kuzmin the appeal. original April 2004 due date for's brief passed without a brief being filed, this Court issued an 0 

### to show cause why the appeal should not be dismissed r ilure to and why Yang's counsel should not be to this Court's disciplinary committee. See id., 0 

### r led Aug. 19, 2004. Although Kuzmin responded to the order to show cause by

re tothat Yang's petition for review had me and that the file the brief was inadvertent, see id., 

### response

. 17, 2004, Kuzmin failed to comply with the Court's subsequent scheduling order and the appeal was ssed more than one year after the new due date for the bri See id., 

### ing order filed Oct. 3, 2004, dismissal filed Oct. 28, 2005. Yang obtained new counsel, motion for tatement of his appeal, in which he a detailed account of Kuzmin's alleged misconduct be a both this Court and nistrative agency. See id., 

### motion fil Oct. 27, 2007. 8**--~~--~** 

### However, Yang's new counsel eventually sted withdrawal of Yang's motion r reinstatement, as a re t of the BlA's grant of his motion to the immigration proceedings based on ineffective assistance of counsel. See ., 

### letter filed June 21, 2007. The r requesting withdrawal did not identify the attorney who was found to be ineffect Aside from allegations pertaining to Yang's case, a review of this Court's records indicates that the Court has dismissed an addit 1 28 of the 102 itions for review r which Kuzmin was counsel of record, on the petitioners' failure to comply with this Court's sing orders. See 

### Second Circuit cases docketed under 02 4409(L) (later reinstated); 02-4410(con) (later reinstated); 02-4411(con) ( er reinstated); 02-4470; 03-4045; 03-4301; 03 4350; 03-4483; 03­ 40079; 03-40196; 03-40686; 04-1877(later reinstated); 04-1931; 04-2694; 04 976; 04-3058; 04-3310; 04 3429; 04-4029; 04-6644; 05-0683; 05 1038; 05-3601; 05-3675; 05 3871; 05-5199; 05 5673; 06-2128 (later reinstated).l Upon due consideration of the matters described above, is ORDERED that Vlad Kuzmin is referred to this Court's Committee on Admissions and Grievances for invest ion and preparation of a report, pursuant to Federal Rule of llate Procedure 46, s Court's Local Rule 46(h), and the Rules the Committee on Admissions and Grievances. FOR THE COURT: Catherine O'Hagan Wolfe, Clerk By: ry Staff Attorney

1 

### The reinstatements noted in the list of dismissed appeals were pursuant to motions filed by Kuzmin. Additionally, a of Third Circuit docket sheets avai on-line indicates at least two of four petitions review filed by Kuzmin in the Third Circuit been dismissed failure to comply with scheduling orders. See 

### Third Circuit dockets in 05-3450 and 06­ 1080. 9APPENDIX 2 March 2010 Report of the Committee on Admissions and Grievances

REPORT & RECOMMENDATION Re: In reVlad Kuzmin,**#07-9048~am** I. Introduction 

# • By order dated July 31, 2007 (the "Referral Order"), the United States Court ofAppeals for the Second Circuit ("the Court") referred Vlad Kuzmin to this Committee for investigation of his conductbefore the Court and for preparation ofa report on whether he should be subject to disciplinary orother corrective measures. The Court'sReferral Orderraises two primary concerns. First, Kuzmin was counsel of record in 28 of 102 petitions for reviewthat were dismissed for failure to comply with the Court's scheduling orders. Second, Kuzmin's former client, Qun Yang, alleges that Kuzmin twice failed to file briefs in his asylum appeal, 

### Yang v. McElroy, No. 98-4391-ag, resulting inthe dismissal ofhis case. Accordingto Yang, Kuzmin concealed the default and told Yang that his case had been denied onthe merits. Yang also contends that Kuzmin made false representations to immigration authorities on his behalf. The Committee finds that Kuzmin failed to timely file numerousbriefs without adequate justification, but does not find, by clear and convincing evidence, that Kuzmin committed the misconduct alleged by Yang. However, the Committee does find that Kuzmin failed to adequately advise the immigration authorities ofthe circumstances ofhis client'sentryinto the United States. The Committeerecommends that Kuzmin bepublicly reprimanded for his conduct and required to submitbiannual reports on the functioning ofhis practicefor the next two years. The following constitutesthe Committee's report and recommendation to impose discipline on Kuzmin

.

• 992333V3II. This DisciplinaryProceeding On March 5, 2008, this Committee issued anOrder to ShowCauseregarding Kuzmin's 

# •

conduct as alleged inthe July 31,2007 Referral Order. OnMarch 26, 2008, Kuzmin's counsel sought an extension oftimeto file a response. Kuzmin's response and supporting documentation were received onMay 2,2008. OnNovember 6, 2008, Committee members Mary Jo White and Judge Howard A. Levine conducted an informal interview ofYang, Kuzmin's former client, with the assistance ofa Mandarin interpreter. Yang's current counsel, Jan AllenReiner, was also present. A hearing was held onNovember 19, 2008 before Committee members White, Judge Levine and Loretta E. Lynch. Kuzmin and his counsel, Hal 

### R. Lieberman, were in attendance andpresented Peter Wilson, Esq., as a characterwitness. Yang and Reiner were also present for a part ofthe hearing, and Yang testified withthe assistance ofa Mandarin interpreter. The Committee's Report and Recommendationrelies exclusively on Yang's sworntestimony and does not incorporate any factual or legal assertions made during Yang's informal interviewon November 6, 2008. Thehearing was continued onFebruary 12,2009, in orderto permit Kuzmin's counsel the opportunityto further cross-examine Yang. Kuzmin also presented Charles Christophe, Esq., as an additional character witness. OnMarch 17, 2009, Kuzminprovided the Committeewith a written response to specific questions raised during the hearing. OnMarch 27, 2009, Kuzmin • submitted a comprehensive post-hearing brief. III. Factual Background The following facts are taken from courtrecords, written submissions to the Committee from Kuzmin and Yang and swornhearing testimony. Kuzmin has beenpracticing lawfor a little over a decade, primarily inthe field of immigration. Currently a partner at Kuzmin & Associates, P.C., the firm thathe founded five years ago, Kuzmin's practice consistsprimarily ofimmigration lawcases, as well as related family law and commercial matters. Kuzmin's caseload includes approximately onethousand administrative filings and one hundred active court cases. Kuzmin normally has abouttwenty immigration matters pendinginthe federal appellate courts. Kuzmin graduated from the University ofAkron Law School in 1997, after attending col1{!ge at MoscowLinguisticUniversity and Walsh Universityin Canton, Ohio. Following law school, Kuzmin initiallyworked for a small medical malpractice firm, but in 2001, hejoined Wilson & Associates, a firm specializing in immigration law. Afterthe events ofSeptember 11, 2001, several ofthepartners and associates left Wilson & Associates, and the remaining lawyers

2 22992333v3 

# •

# • reorganized. On June 30, 2002, Wilson & Associates was dissolved and reformed into Wilson, Joshi & Kuzmin LLP. Mr. Kuzmin and his co-partner, SunitJoshi, became responsible for all of the firm's cases. In March 2004, the partnership between Kuzmin and Joshi was dissolved and Mr. Kuzmin opened his own firm, Kuzmin & Associates, P.C.

Kuzmin is a member ofthe NewYork bar and is admitted to practice before the Second Circuit, Third Circuit, Ninth Circuit and Eleventh Circuit, as well as the U.S. District Courts for the Southern and Eastern Districts ofNewYork. Prior to the Committee's investigation, three ofMr. Kuzmin's former clients

- Qun Yang, Xue JiaLin, and Zhi Yong Liu

- had filed complaints against him before the Departmental Disciplinary Committee oftheNew York Supreme Court, Appellate Division, First Department ("DDC"). The DDC investigated these complaints, but decided in each case to take no action. IV. Legal Standard Under the Rules ofthe Committee on Admissions and Grievances for the United States Court ofAppeals for the Second Circuit ("Committee Rules"), 

# • Anattorneymaybe subjectto discipline orothercorrectivemeasures for any act oromissionthatviolatesthe rules ofprofessional conduct or responsibility ofthe state or otherjurisdiction where the attorney maintains his or her principal office.

. .. An attorney also may be subject to discipline or other corrective measures for any failure to comply with a Federal Rule ofAppellate Procedure, aLocal Rule of the Court, an order or other instruction ofthe Court, or a rule of professional conduct or responsibility of the Court, or any other conduct unbecoming a member ofthe bar.

Committee Rule 4; see also Fed. R. App. P. 46( c ) ("[A] court ofappeals may discipline an attorney who practices before it for conduct unbecoming a member ofthe bar or for failure to comply with any court rule."). "Conduct unbecoming a member ofthe bar" includes "conduct contrary to professional standards that shows an unfitness to discharge continuing obligationsto clients or the courts, or conduct inimical to the administration of justice. More specific guidance is provided by case law, applicable courtrules, and 'the lore ofthe profession,' as embodied in codes ofprofessional conduct." In re Snyder, 472 U.S. 634, 645,105 S. Ct. 2874, 2881 (1985). 

# • 3 22992333v3As Kuzmin was a memberofthe bar ofNew York State during the timeperiod at issue, • theNew York State Code ofProfessional Responsibility ("the Code") also applies. Two sections are ofparticular relevance in this matter. First, the Code states that a lawyer shall not "[n]eglect a legal matter entrusted to the lawyer." D.R. 6-101(A)(3); 22 N.Y.C.R.R. § 1200.30(A)(3) 

### (2008); see also N.Y. Rules ofProf'IConduct R. 1.3(b) (effective Apr. 1,2009)(hereinafter "N.Y.R."). Second, the Codeprohibits conductthat "adverselyreflects onthe lawyer's fitness as a lawyer." D.R. 1-102(A)(7); 22 N.Y.C.R.R. § 1200.3(A)(7); 

### see also N.Y.R. 

### 8A(h). Courts have consistentlytreated neglect ofclientmatters and ineffective orincompetent representation as sanctionable conduct. 

### See, e.g., Gadda v. 

### Ashcroft, 377 F.3d 934, 940 (9th Cir. 

### 2004),AmnestyAm. v. 

### Town ofW Hartford, 361 F.3d 113, 133 (2d Cir. 2004),

### Matter of Rabinowitz, 596 N.Y.S.2d 398, 402 (N.Y. App. Div. 1993), 

### UnitedStates v. 

### Song, 902 F.2d 609 (7th Cir. 1990), 

### Matter of Kraft, 543 N.Y.S.2d 449 (N.Y. App. Div. 1989), 

### In re Bithoney, 486 F.2d 319 (lst Cir. 1973). Such conductis also sanctionable under the applicableprofessional rules and standards. The American BarAssociation's Standards for Imposing Lawyer Sanctions call for a range ofsanctions from reprimandto disbarment for various forms of"lackof diligence" and "lackofcompetence." ABA Standards §§ 

### 404, 4.5. The Disciplinary Rules of New York's Lawyer's Code ofProfessional Responsibility require that "[a] lawyer shall not

... [n]eglect a legal matter entrustedto the lawyer," D.R. 6-101 (a)(3); N.Y.C.R.R. § 1200.30(a)(3); 

### see also N.Y.R. 1J(b); in addition, the Code'sEthical Canons require that the lawyer should represent his orherclient "zealously," Canon7-1, and that he or she "bepunctual in fulfilling all professional commitments," Canon 7-38. "Anyfinding that an attorney has engaged inmisconduct or is otherwise subjectto correctivemeasures must be supportedby clear and convincing evidence." Rules ofthe 

# •

Committee on Admissions and Grievances, Rule 7(h). Once misconduct has been established, in determining the sanctionto be imposed, the following factors should generallybe considered: (a) the duty violated; (b) the lawyer's mental state; (c) the actual orpotential injury caused bythe lawyer's misconduct; and (d) the existence ofaggravating ormitigating factors. 

### See ABA Standards 

### § 3.0. This Committeemayrecommend to the Court's Grievance Panel arange of sanctions, including disbarment, suspension, public or private reprimand, monetary sanction, removal from

### pro bono or Criminal Justice Actpanels, referral to otherdisciplinarybodies, supervision by a special master, counseling ortreatment, or "such other disciplinary orcorrective measures as the circumstances may warrant." Committee Rule 6. V. The Alleged Misconduct A. Defaults on SchedulingOrders The evidence demonstrates that in mUltiple instances, Kuzmin failed to comply with court scheduling orders and failed to prosecutehis clients' cases diligently. The Referral Order alleged that 28 of 102 petitions for reviewin which Kuzmin was counsel ofrecord were dismissed for failure to complywith scheduling orders. Kuzmin acknowledged the defaults and explained that 4 22992333v3 

# •

# •

•

• he had failed to submittimely briefs inthese cases for one offour reasons: (1) he had lost contact with the client; (2) the case was actually assigned to his former partner and was not Kuzmin's responsibility (a change that was not reflected onthe docket); (3) he and the clienthad decided not to pursue the case based onthe merits; or (4) he had simply committed an administrative error or oversight. 1. Lost Contact With Client In four cases, 03-4301,03-40196,04-1931 and 04-6644, Kuzmin failed to file briefs because he had lost contact with his clients, who had also failed to pay for his services. According to Kuzmin, these clients simply "disappeared." May 2, 2008 Response, at 15. Kuzmin "now understands thatthe proper procedure inthese circumstances is to move to withdraw as counselormove to extend the time to file a late briefprior to the expiration ofthe deadlines for filing the briefs." Id. at 16.

2. Cases Assignedto Former Partner Three ofthe cases listed in the Referral Order (03-4045,04-4350 and 03-4483) were actually assignedto Kuzmin's former partner, SunitJoshi, uponthe dissolution ofWilson, Joshi & KuzminLLP in March 2004. Though Joshi failed to file notices ofappearance inthese cases, it was Kuzmin's understanding that Joshi had taken full responsibility for them. Tr. 36. Kuzmin had no further contact with those clients after he formed his own firm. Id. Kuzmintold the Committee thathe "nowknows thathe should have moved for leave to withdraw as counsel in those cases where the client had remained with [his] former partner, Mr. Joshi, or at least filed a substitution ofcounsel." May 2, 2008 Response, at 17.

3. Declinedto Pursue Case Based on Merits In twelve cases, Kuzmin declined to pursue an appeal due to a low likelihood ofsuccess orthe availability ofan alternative form ofrelief. Tr. 37. These cases include: 02-4470,03­ 40079,03-40686,04-2694,04-3058,04-3310, 05-1038, 05-3601, 05-3675, 05-3871, 05-5199 and 05-5673. May 2,2008 Response at 11-16. According to Kuzmin, a lowprobability of success was indicated in several cases based on untimeliness, mootness, or a lack ofevidence to showpersecution or other necessary elements ofthe clients' claims. Id. In addition, in at least three instances, Kuzmin's clients were able to obtain asylum by applying for an adjustment of status based on a spouse or other relative. May 2, 2008 Response, at 17; Tr. 37-38. Nevertheless, Kuzmin concedes that, in all ofthesetwelve instances, he should have withdrawn the petitions. May 2, 2008 Response, at 16-17.

4. Administrative Error

5 22992333v3Six cases involved "inadvertent administrative malfunction" thatprevented Kuzmin from • filing briefs in a timely manner. In one case (06-2128), Mr. Kuzmin's support staffconfusedthe petitioner'sbriefdue date with that ofthe government. May 2,2008 Response, at 15. Ultimately, the casewas reinstated andremanded. In another case (04-1877), the client'srecord was maintained inthe file oftheco-petitioner (whom Kuzmin also represented). May 2,2008 Response, at 13; Tr. 39. Withrespect to three cases (04-3429,04-4029, and 05-0683), Kuzmin statedthathe had not received dismissal orders from the Court. May 2, 2008 Response, at 14. However, Kuzrnin did not address whether he had everreceived the briefing schedules in those cases and/or could have discovered the briefing deadlines through othermeans. In a sixth case (04-2976), Kuzmin statedthat he had filed a requestto suspendthebriefing schedule inorderto hold a pre-argumentconference ("CAMP conference"), but never received a response from the Court. May 2,2008 Response, at 14. Whenno date was set for the conference, he didnotfollow up to inquire about the briefing schedule. Kuzmin acknowledged that he shouldhavefiled a motionto stay the briefing schedule. Tr.64-65. In addition, three ofthe cases citedin the Referral Order (02-4409,02-4410,02-4411) were consolidated and withdrawn by stipulationbetween Mr. Kuzmin and the United States Attorney's Office. Tr. 37. Kuzmin and the Assistant U.S. Attorney thenjointly movedto reinstate and remandthe cases to the Board ofImmigration Appeals pursuantto a second stipulation. 

### [d.

5. Kuzmin's Response Since 2006, Kuzmin has increased staffing at his firm, and has implemented a system 

# • whereby he and his officemanagerboth checkthe calendarto keep track ofdue dates. Mar. 27, 2009 Response, at 9; Tr. 43-44; May 2, 2008 Response at 16-17. The new staffincludes a docket manager/ office manager, additional lawyers andparalegals. Mar. 27, 2009 Response, at9. Accordingto Kuzmin, he now has a high confidence level that he will be able to comply with Court scheduling orders. Tr. 44. Kuzmin did not believe that his actions had prejudiced his clients in any way, either because he lost contactwiththem, pursuit ofan appeal wouldnot havebeen successful, the client was able to obtain legal statusthrough othermeans orthe client's case was reinstated. Tr. 40. He acknowledged, however, thathe should nothave defaulted in any ofthese cases andthat he had significantly inconveniencedthe Courtbydoing so. 

### [d. at40-41. 6. Findings The Committee finds that Kuzmin's failure to comply with proper procedures for withdrawal or dismissal ofappeals violated the Court's scheduling orders as well as his obligation either to represent his clients or to terminate the representation. Kuzmin's conduct disrupted the Court'sproceedings and burdenedthe Court's staffwith additionalwork. See

6 22992333v3 

# •

# •

•

• Bennettv. Mukasey, 525 F.3d 222,225 (2d Cir. 2008); D.R. 2-11O(A)(2); 22 N.Y.eR.R. § 1200. 15(A)(2) ("A lawyer shall not withdraw from employment [without] complying with applicable laws and rules"); 

### see also N.Y.R. 1.16(e). In addition, it is apparent that Kuzmin's conduct had the potential to cause significant injury to his clients. Both aggravating and mitigating factors are present. The aggravating factors considered by the Committee include: (1) Kuzmin's pattern ofdilatory conduct and (2) the vulnerability of Kuzmin's immigrant clients. ABA Standards § 9.22(c) & (h). The mitigating factors present are: (1) absence ofa prior disciplinary record; (2) absence ofa dishonest or selfish motive; (3) personal problemsrelating to the dissolution ofKuzmin's firm; (4) a cooperative attitude with respect to the Committee's investigation; and (5) Kuzmin's remorse. ABA Standards § 9.32(a), (b), (c), (e) & 

### (1). B. Recent Untimely Submissions Since the July 31, 2007 referral order, Kuzmin has made untimely filings in six instances. Onfour occasions, he requested an extension oftime from the Court after thebriefing due date had already passed. In two cases, he submitted late briefs. In a post-hearing submission dated March 17,2009, Kuzmin specifically addressed the Committee's concern about these matters and provided supporting documentation indicatingthe corrective efforts that he had undertaken with respect to each case. Kuzmin argued that, ofthe forty to forty-five casesthathe handled before the Second Circuit during this time period, these six cases are isolated instances that do not demonstrate an ongoing pattern ofdilatory conduct. Mar. 17,2009 Response, at 3 .

1. Late Motions for Extensions ofTime According to Kuzmin, inthe matter of

### Zhengv. Mukasey, No. 07-3741-ag, he did not receive the scheduling order from the Court. Immediately upon becoming aware ofthe orderthree days afterthe briefdue date

- Kuzmin filed a motion for an extension oftime. TheCourt granted the motion. In the case of

### Weng v. Mukasey, No. 07-4883-ag, Kuzmin timelyprepared a request for a 30-day-extension oftime, but the letter was never submittedto the Court, due to a clericalerror byhis staff. Upon discovering three days afterthe briefdue date that the request for an extension oftime had notbeenmailed, Kuzmin promptlymoved to modifythebriefing schedule. The motion was granted 

### Zheng v. 

### Mukasey, No. 07-5379-ag, involved two cases that had been consolidated one, a direct appeal from the BIA and the other, a subsequent appeal ofa motion for reconsideration before the BIA. After the consolidation, Kuzmin expected the Courtto issue a new scheduling order for the combined cases. No such order was issued, and Kuzmin missed the briefing date

7 22992333v3that had been set in the direct appeal. Fourmonths later, the Court issued an Orderto Show Cause, and Kuzmin submitted a timely briefinresponse. 

# •

In the case of

### Li 

### v. Mukasey, No. 07-5380-ag, Kuzminmovedto modify the briefing schedule on the date thatpetitioner's briefwas due. The Court granted only a**one~week** extension oftime, but Kuzmin didnotreceive the orderuntil several days afterthe weekhad expired. In fact, he had actually filed the briefone day after the newdue date, without knowledge ofthe Court's order. Nevertheless, uponreceiving the order, Kuzmin filed a motion for leaveto file a late briefafter-the-fact. The Court granted the motion.

2. Late Briefs In the matter of

### Zheng v. 

### Mukasey, No. 08-1800-ag, Kuzminhad timely filed the brief, but it was not accepted by the clerk's officebecausethe cover ofthe briefdid not indicate that the case was a consolidated matter. The clerk's office requested an amended cover, which Kuzmin submitted two weeks later. In the case of

### Zheng v. 

### Mukasey, No. 08-3457-ag, Kuzmin's office had erroneously recorded the briefdue date as November 17,2008, instead ofNovember 7,2008. Kuzmin submitted the briefonNovember 17th, and uponlearning that his filing was late, immediately submitted an after-the-fact motion for leave to file a late brief, whichwas granted.

3. Findings 

# •

Kuzmin'srecent dilatory conduct is ofparticularconcernto the Committee, since it occurred 

### after Kuzmin was made aware that untimely filings were unacceptable to the Court and such filings had resulted in a disciplinary investigation against him. In addition, at least two of the out oftime filings were causedby clerical errors committed by either Kuzmin orhis staff, suggestingthatthe administrative changesputinplace by Kuzmin during 2008 were not entirely effective. Fortunately, none ofthe overdue filings in these six cases resulted in defaults, andthus Kuzmin's clients were not prejudiced. Nevertheless, Kuzmin's actions caused additional needless disruption and burdento the Court. 

### Bennett, 525 F.3d at 225; D.R. 2-110(A)(2); 22 N.Y.C.R.R. § 1200.lS(A)(2);

### see also N.Y.R. 1.16(e). Aggravating factors withrespect to this conductinclude: the Court'spriorreferral order alleginguntimely filings; and a pattern ofmisconduct. ABA Standards § 9.22(a) & (c). Mitigationfactors are: (1) Kuzmin's timely goodfaith efforts to rectifY his untimely submissions byfiling motions to submit late briefs orto modifY the scheduling order; (2) a cooperative attitude towards the Committee's investigation; and (3) Kuzmin's remorse. ABA Standards 

### § 9.32(d), (e) & (1).

8 22992333v3 

# •

# •

•

• C. Kuzmin's 

### Representation ofQun Yang The Referral Order cites both a letter and motion from Kuzmin's former client, Yang, concerning Kuzmin'srepresentation ofhim in the matter ofYang v. McElroy, No. 98-4391-ag. In an April 4, 2007 letter to the Court, Yang sought disciplinary sanctions against Kuzmin, in connection alleging that Kuzmin had defaulted in Yang's case by twice failing to file timely briefs. The letter also contendedthat Kuzrnin had misled Yang to believe that his case had been dismissed onthemerits. In an October27,2006 motion to reinstate his Second Circuit case, Yang also provided a detailed account ofKuzmin's alleged misconductbefore boththe Court and the BIA. The motionto reinstate further alleged that Kuzmin had knowingly filed documents on Yang's behalfwiththe Department ofRomeland Security/ United States Citizenship and Immigration Services (DRS / USCIS) that contained false statements, causing DHS / USCIS to deny Yang's application for an adjustment ofstatus basedupon his marriage to a United States citizen.

1 . Background Yang is a citizen ofChinawho left his countrywithout authorization inMarch 1993, traveling to Singapore and then Koreabefore arriving in the United States two months later. He then applied for asylum in the United States, arguing that his extensive participationinprodemocracy protests in Chinaputhim atrisk ofpersecution ifhe were to return. While Yang's initial asylum application was pending, he also participated in a pro-democracyprotest inthe United States and wrote an article denouncing the Communist Party in Chinathat was published in a Chinese-American newsjoumal onDecember 13, 1993. Yang was initiallyparoled into the United Statesbased on an application for political asylum that he filed at JFK airport. Upon entering the country, he quickly secured the representation ofattorney YimingZhuto pursuehis asylum application. On January 18, 1994, Yang's asylum application was denied onthe merits by an Immigration Judge ("IJ"), who also concludedthat Yang had committed fraud by enteringthe United States using counterfeit documents. Yang appealed that decisionbefore a three-judge panel oftheBoard ofImmigration Appeals ("BIA") and lost, though onejudgedissented in Yang's favor. Yang decided to seek a new attorney, and engagedthe lawfirm Wilson & Associates, who filed a petition for review of the BIA'sdecision with the U.S. Court ofAppeals for the Second Circuit. In a published decision, the Courtheld that [C]uITent country conditions "bearvitally" as to asylum, and becausethe administrative record is silent as to China's contemporary treatment ofpersons with backgrounds similarto Yang's, we agree with the INS that remand is appropriate inthis case. Remand to the BIAwill enable it to address several respects inwhich the presentrecord appears deficient.

... We reserve 9 22992333v3jurisdiction and remand to the BIA for the limited purpose of entertaining andresolving a motionby applicantto consider whether circumstances in China since 1993 have so changed that 

# •

he has a well-founded fear that, giventhe totalityofhis actions, he would be subject to persecution ifdeported to China. 

### Yang v. 

### McElroy, 277 F.3d 158, 163-64 (2d Cir. 2002) (citations omitted). Once Yang's case was remanded to the BIA, the agency mistakenly sent all correspondence to his former attorney, Zhu, and Yang'snewcounsel never received the briefing schedule. Yang's case was dismissed without his or his attorneys' knowledge. As a result, when Yang applied to renewhis work authorization, he was taken into custody by immigration authorities. Kuzminfirst became involved in activelyrepresenting Yang whenhe filed a motion to reinstate Yang's Second Circuit case andto secure Yang'srelease from federal prison. Tr. 14­ 15. (Priorto that stage, Yang's casehad beenhandled by other attorneys at Wilson & Associates and its successor firm, Wilson, Joshi & Kuzmin.) On October 1,2003,the Court granted Yang's' motionto reinstate and to stayhis deportationpendingresolution ofhis appeal. Yang was released from prison onNovember 6, 2003.

2. Defaults Upon the October 2003 reinstatement ofhis appeal before the Court, Yang'sbriefwas due on April 5, 2004. However, Kuzmin failed to file a brief, and onAugust 19,2004,the Court • issued an Orderto Show Cause. According to Kuzmin, he received neitherthe briefing schedule nor the order because at the time, his partnership withJoshi was deteriorating and Joshi had locked Kuzmin out oftheir shared office, denying Kuzmin access to the case files. Tr.59-62, 214-16.On September 16,2004, Kuzminreviewed the Yang case file and contactedthe Assistant U.S. Attorney handling the matter. May 2,2008 Response, at 7. Upon learning from the AUSA that an Orderto ShowCause had been issued, Kuzmin filed a motion for modification ofthe scheduling orderthe following day, arguing that Yang's case was meritorious and requesting fourteen days inwhichto submit a brief. 

### ld The motion was granted and Yang'sbriefwas due on October 18,2004. Kuzmin never filed the brief, and one year later, on October28,2005, Yang's case was dismissed. Kuzmin claims that, after responding to the Orderto Show Cause and successfully obtaining a two-week extension oftime to file the Yang brief, he reviewed the case law and determined that Yang did not have a strong case for asylum. Tr. 15-19. Kuzmintestified that he discussed the merits ofthe case withhis client, andtheyjointlydecided that it would bein Yang'sbest interest to abandonthe Second Circuit appeal and instead pursue an adjustment of immigration status based on Yang's recent marriage. Tr. 15-21,62,221-27. Kuzmin added that

10 22992333v3 

# •

# • Yang's decision was also motivated by his desire to avoidpaying an additional $2500 fee to Kuzmin for drafting and filing the brief. Tr.233-34. Yang's application for an adjustment of status was submittedonMay 5, 2005. Itwas denied on May 23, 2006. During theperiod between the briefdue date and the filing ofYang's adjustment ofstatus petition, Yang risked having his Second Circuit case dismissed and his stay ofremoval lifted, making him vulnerable to detention and/or deportation. When asked whether Kuzmin had informed Yang ofthis risk duringtheir discussion about whether to file the Second Circuit brief, Kuzmin answered "Idon'trecall specificallydiscussingthe stay.

.. but I am sure Mr. Yang was aware ifhe had a stay and you don't file petition, it will be denied." Tr. 228; 

### see also Tr. 230-33. Kuzmin admitted that he did not take steps to preventhis client from being detained or deported between October 18,2004, when Yang's briefwas due, and May 5, 2005, when Yang's adjustment ofstatus application was filed. Tr. 231-33. Duringthehearing, Yang presented a different understanding about his discussions with Kuzmin concerning the filing ofthe Second Circuit brief. Yang could not remember whether he ever had a discussion with Kuzmin about the merits ofhis case. Tr. 157-59. According to Yang, he did agree to apply for an adjustment ofstatus, buthedid not intend to abandon his Second Circuit petition. Tr. 86, 160-61, 199. Yang also denied being told thathe would have to pay an additional fee for the Second Circuit brief. Tr. 160. 

# • Yang testifiedthat he did not learnthat his Second Circuit case had been denied until 2006, when he and a member ofKuzrnin's staff, Mr. Chen, attended animmigration interview related to Yang's adjustment ofstatus application. Tr. 87-88, 107, 109. While attending the interview, Yang inquired about the status ofhis Second Circuit case, and Chen informed him that the case had beenclosed for months. Tr. 107. Yang testified that he became angry with Chen since "during these several months I could have been arrested again." Tr. 108. Yang also noted that, between 2004 and 2006, he had asked staffat Kuzmin's office about the status ofhis Second Circuit appeal many times and was repeatedly toldthat the case was still pending. Tr. 107-09. According to Yang, he first learned that Kuzmin had missed briefing deadlines upon hiring a new attorney to reopen his case. Tr. 196-98. Atthe hearing, Yang's current counsel, Reiner, contended that Kuzmin's claim that Yang's case was weak on the merits was undermined by the Second Circuit'sprevious remand of Yang's case to the BIA for consideration ofchanged country conditions. Tr.201-02. According to Reiner, the Court need not have reachedthe merits ofYang's case- Kuzmincould have simply arguedthat, due to mailing errors, Yang never hadthe opportunityto argue before the BIA that changed country conditions warranted a grant ofasylum. 

### ld. Kuzmin maintains that the state ofthe lawtwo years laterhad changed such that, had he filed a briefon Yang's behalfin October of2004, (1) the Court would not have granted a second remand ofYang's case to the BIA and (2) the Court would have denied Yang's asylum appeal on the merits, as it had done in otherrecent cases involving similarfacts. Tr. 204-06, 223-27. 

# • 11 22992333v3The Committee finds that Kuzmin failed to prosecute Yang's case diligently by missing the April 2004 briefing deadline and related Orderto Show Cause. Although he was in the midst • ofthe turbulent dissolution ofhis law partnership, it is apparent that Kuzmin didnottake adequate steps to ensure thathe responded to client needs and court deadlines in a timely manner, as required by the disciplinary rules and the Court's orders. Itis less clearwhether Kuzmin failed to meetthe second briefing deadline in October 2004 againsthis client's wishes, as alleged. While there are clearreasons why it appears unlikelythat Yang would have knowingly consented to withdrawal ofhis Second Circuit petition, Kuzmin testified credibly that he discussed the matter with Yang and believed that he had Yang's consentto abandon his appeal. Accordingly, the Committee cannot find, by clear and convincing evidence, that Kuzmin defaulted onthe case to his client's detriment and withouthis client's permission. However, at the least, by failing to withdrawthe petition, Kuzminunnecessarily inconvenienced the Court and failed to provide clarity to Yang. There are both aggravating and mitigating factors with respect to this conduct Yang's vulnerability as an immigrant and non-lawyeris an aggravating factor. ABA Standards 

### § 9.22(h). Kuzmin's lack ofa prior disciplinary record, absence ofa dishonest or selfish motive, personal problems concerning the dissolution ofhis firm and his cooperation withthe Committee are mitigating factors. ABA Standards § 9.32(a), (b), (c) & (e).

3. False Statements Yang contends that, in the immigration documents thathe filed on Yang's behalfin 2005 • and 2006, Kuzmin repeatedly made the false assertion that no fraud had been committedby Yang upon his entry to the United States, causing Yang's applications to be denied. According to Yang, he "continuously asserted to Mr. Kuzminthat he did not wishto argue that he did not knowthathe had used fraudulent documents at entry. In addition to putting forth arguments not allowed by law, Mr. Kuzmin was doing so against Petitioner's wishes." 

### Yang, No. 98-4391-ag, Motion for Reinstatement ofPetition for Review, at 12-13 (Oct. 27, 2006). Upon enteringthe United States, Yang admitted to an immigration officer at

### JFK Airport thathe had purchased a green cardbypaying $1500 to a friend in Singapore. 

### Yang, No. 98­ 4391-ag, Certified Administrative Record, at 171. The interviewing officer described the card as "counterfeit." Id. During a January 18, 1994hearing before an Immigration Judge ("IJ"), Yang testifiedthathe had "no idea" whether the green card that he had purchased was authentic and thathe had entered the United States using a passportthat had not been issued bythe Chinese government Id. at 84. In an oral decision, the IJ concludedthat Yanghad entered the country using fraudulent documents. Id. at 38-39. In May 2005, Kuzminprepared an 1-130 Petition for Relative Visa and 1-485 Application for Adjustment ofStatus on behalfofYang. ExhibitA, at7. Yang answered "no"to Question 10 ofthe form, which asked whether he had, "byfraud or willful misrepresentation ofa material 12 22992333v3 

# •

# •

•

• fact, ever soughtto procure, orprocured, a visa, other documentation, entry into the U.S. or any immigration benefit." Id. The Petition and Application were signed by Yang and Kuzmin. In answering Question 9 ofthe same form, Kuzmin acknowledged that an IJhadpreviously ordered Yang "excluded." Id. According to Kuzmin, the answer to Question 9 shouldhave led immigration officials to check the administrative record to learn aboutthe IJ finding. Tr. 68. Thus, "Mr. Yang's answer to QuestionNo. 10 was a way to signal the fact that, notwithstanding the IJ's finding, Mr. Yang honestly did notknow, at the time he obtained them, thatthe documents were not genuine." Mar. 27, 2009 Response, at 17. On March 2,2006, Yang attended an interviewregarding his adjustment ofstatus application. Though Kuzmin did not attendthe interview, Yang was accompanied by a lawyer and a non-lawyer staffmember from Kuzmin's office. Tr. 89. OnMay 23,2006,the U.S. Citizenship and Immigration Service (USCIS) denied Yang's application onthe basis that Yang had falsely claimed at his interviewthat he did not enterthe countrythrough fraudulent means, contraryto evidence in the record that Yang had presented counterfeit documents upon entry. Exhibit B. Though immigrants who are found tohave attempted to enterthe United Statesthrough fraudulent means are generally deemed "inadmissible"under Section 212(a)(6)(C) ofthe Immigration and NationalityAct, in June 2006, arepresentative from Kuzmin & Associates sought a waiver ofthe law onthe ground that Yang "was not aware ofthe nature ofthe documents given to himwhen he was fleeing persecution in China." Exhibit C. In August2006, the USCIS denied Yang's waiver application and motion to reopen, noting that Yang had previously admitted to the immigration officer atJFK airport that he had paid $1,500 for a counterfeitresident alien card. Exhibit D. According to Kuzmin, he had representedto immigration authorities inthe adjustment of status petitionthat Yang had notused fraudulent means to enter the country because Yanghad always maintained the positionthathe did notknow whether the documents were fraudulent. Tr. 26-31,50-59. Although Kuzmin was aware thatan IJ had held otherwise, Kuzmin tookthe stance that Yang continued to dispute the D's finding. Tr. 30-32, 50-59. Kuzmin also argued that, notwithstandingthe written submissions, the denial ofYang's adjustment ofstatus application was ultimately based upon Yang's own representations during the interview, at which Kuzminwas not present. l Tr. 57-58. Kuzmintestified that, in any case, he had advised Yangto answer all questions truthfully at the interview. Tr. 239-240. According to Yang, he had asked Kuzmin to accompany himto the interview, but was told that he would have to decide between Kuzmin or

### Mr. Chen, a memberofKuzmin's staff. Tr. 89. Yang chose to bejoined by Chen, since Chen spoke Mandarin and Yang had interacted withhim frequently inthe past. Tr. 89-90. However, Kuzmin contends that he always recommends that clients have an attorney accompanythemto immigration interviews, but Yang declined to have Kuzminjoinhim because it would be too expensive. 13 22992333v3Yang testified that itwas Kuzmin's staffmember Mr. Chen, not Kuzmin, who had • advised himprior to his March 2006 interviewwith immigration authorities. Tr. 168-170, 191­ 92. Chen allegedly coached Yang to deflect questions about fraudulent entry documents by responding that all ofhis documents had been prepared by a "snakehead" (a member ofan organizationthat helps individuals to immigrate to developed countries oftenby illegal means

- in exchange for payment). Tr. 90. Yang could notrecall exactly whathe told the immigration officer during the interview, and no transcript was recorded. Followingthe interview, the USCIS denied Yang's application and Yang met with Kuzmin in orderto prepare an affidavitin connection with amotion to reconsider. Tr. 168-69, 191-92. Yang testified that, during thatmeeting, Kuzmin instructed him notto state thathe had used fraudulent documents to enterthe country. Tr.170. Yang's motionto reconsider was filed by an associate at Kuzmin's firm and presented the argumentthat, at the time he entered the country, Yang did notknow whether his documents were authentic. Tr. 248-49; Exhibit C, at 2 ("USCIS decision held thatpetitioner statedthat he never used fraud. (USCIS Dec. 2.) This is incorrect. Petitioner stated that he was not aware ofthe nature ofthe documents givento him when he was fleeing persecutionin China.") (citation omitted). Although Kuzmin generally reviews filings prepared by associates, he did not recall whether he had reviewed Yang's motion before it was submitted. Tr. 249. Accordingto Kuzmin, the statements in the motion to reconsider were entirely accurate, based on what Yang had told him. Mar. 27 Response, at 17­ 18. Given Yang'sprior disclosures to various immigration authorities, and the !J'sprior finding that Yang had committed fraud by entering the United States using counterfeit documents, Kuzmin should havetakenprecautions to ensure that any statements made orally or 

# •

in writing to the USCIS on the issue ofYang's entryto the country were accurate, complete and addressed any apparent inconsistencies in the record. Merely checking "no"to Question 10, without including any additional explanation thatthis answer was meant to indicate that Yang was unaware ofwhetherthe documents were genuine ornot

- and without including documentation ofthe relevant circumstances and an application for waiver ofinadmissibility as provided under the Immigration andNationality Act

- clearly disadvantaged his client. However, while Kuzmin's conduct with regard to Question 10 ofthe May 5, 2005 petition and in overseeing the associate and staffmemberwho advised Yang on his interview and motion to reconsider was problematic, we do notbelieve itto be separatelysanctionable as fraudulent conduct. Therelevant disciplinary rule, DR 1-102(A)(4), provides that "[a) lawyernr law firm shall not:

... [e]ngage in conduct involving dishonesty, fraud, deceit or misrepresentation." 

### See also N.Y.R. 8.4(c); DR 1-104(B), (C) & (D) (concerning oversight of associates and staff); N.Y.R. 5.1(b), (c) & (d) (same). While the failure ofKuzmin and his staff Tr. 238. Itappears that Yang was accompanied by another attorney from Kuzmin's office. Tr.89.

14 22992333v3 

# •

# •

•

• to more clearly articulate tothe USCIS the distinctionbetween Yang'sposition concerning his use offraudulent documents andthe findings inthe administrative record constituted a breach of Kuzmin's duty as an attorney, to actwith diligence and competence, the Committee cannot conclude, by clear and convincing evidence, that Kuzmin or his subordinates engaged in dishonesty, fraud, deceit ormisrepresentation.



### D. Non-RefundableFee Retainer The Committee finds thatthe standard retainer agreementutilized by Kuzminuntil recently was in violation ofthe Disciplinary Rules in NewYork. Therefore, Kuzmin's use of such an agreement with his clients constitutes sanctionable misconduct. Kuzmin submittedto the Committee a sample retainer agreement dated March 2006. ExhibitE. In drafting the agreement, Kuzminrelied uponthe retainer agreement used bythe first immigration firm that he had worked for, Wilson & Associates. Tr. 260-61. Paragraph 2 provides, 

### interalia, that: Ifthe Client shall discharge the Attorney, the Client, however, shall still pay the fees in their entirety, as setforth in this Agreement, by reason ofthe fact thatthe Attorney may still haveremaining legal obligations inrespect ofthe Client, eventhoughthe Client discharged the Attorney. Upon discharge, the Attorneymay elect to bill the Client at an hourly fee of$250 for pastretained work and future work required bythe Courts I DHS. It is nowwell-establishedthat non-refundable retainer agreements constitute

### perse violations ofthe DisciplinaryRules ofNewYork's Code ofProfessional Responsibility. DR 2­ 110A (3) ("A lawyer who withdraws from employment shall refund promptly any part ofa fee paid in advance that has not beenearned."); 

### see also DR2-106 (A), (C)(3) (prohibiting charging of"excessive"fees and fees "proscribed by laworrule ofcourt"); N.Y. Rule 1.5(d) ("A lawyer maynot enterinto an arrangementfor, charge orcollect a nonrefundable retainer fee."); N.Y. Rule 1.5(a) ("A lawyer shall not make an agreement for, charge, orcollect an excessive orillegal fee orexpense."); 

### see alsoMatter a/Cooperman, 83 N.Y.2d 465,471 (1994);

### Matter

## 0/PerezOlivo, 820N.Y.S.2d 14, 15, 17-18 (N.Y. App. Div. 2006). At the hearing, Kuzmintestified that, in practice, his retainers were not non-refundable, and said that he had refunded full orpartial fees on multiple occasions. Tr. 258-60, 261-63. Paragraph 3 ofthe retainer agreementprovides that "[i]nthe event fees are not timely paid, all work shall stop in respect ofrepresenting the Client, eventhoughthis mightbeto prejudice ofthe Client's case." This language violates DisciplinaryRule 2-110, which provides that (1) an attorney may not withdrawfrom employmentwithout permission from a tribunal whererequired, and (2) where withdrawal is otherwise permitted orrequired, an attorney may not do sountil he has "taken steps to theextent reasonably practicable to avoid foreseeable prejudice 15 22992333v3to the rights ofthe client." DR 2-llO(A)(1) 

### & (2); 

### see also N.Y. Rule 1.16 (d) ("Ifpermission for withdrawal from employment is required by the rules ofa tribunal, a lawyer shall not withdrawfrom employment in a matterbefore that tribunal without its permission. When orderedto do so by a tribunal, a lawyer shall continue representationnotwithstanding good cause for terminating the representation"); N.Y. Rule 1.16 (e) (identical toDR2-11O[A][l]). •

Kuzmin's counsel statedthathe hadreviewed Kuzmin'sretainer agreement and edited the language in Paragraphs 2 and 3 to make itconsistent with New York ethical rules. Tr. 

### 5-7; Exhibit F. An aggravatingfactor with regard to this conduct is the vulnerability ofKuzmin's immigrant clients. ABA Standards 

### § 9.22(h). There are several mitigating factors: (1) absence ofpriordiscipline, (2) absence ofa dishonest or selfish motive, (3) good faith effortto rectifythe consequence ofhis misconduct, (4) full cooperation withthe Committee, (5) inexperience inthe practice oflaw, as demonstrated inpartbyRoman's reliance onthe AILA sampleretainer, and (6) remorse.

VI. Recommendation Based on clear and convincing evidence, the Committee finds that disciplinary action is warranted in this case based on neglect ofclientmatters and failure to comply with Court scheduling orders and disciplinary rules. Fed. 

### R. App. P. 46(c) ("A court ofappealsmay discipline an attorney who practicesbefore it for conduct unbecoming a member ofthebarorfor failure to complywith any courtrule."). Therecord shows that (1) on multiple occasions, Kuzminmissed Courtdeadlines; (2) Kuzminmissedboththe initial briefing date and orderto showcause response date in Yang's case andfailed to notify his client promptly; and (3) Kuzmin used a retainer agreement that didnot comport withNew York's ethical rules. In addition, Kuzminrepeatedly failed to formally withdraw from or stipulateto the dismissal ofcases which he had inpractice abandoned, thus burdeningthe Court withextrawork, and violating the Court's scheduling orders. •

Kuzmin'spattern ofdilatory conduct and the risk ofprejudice to his unsophisticated immigrantclients bothconstitute aggravating factors. ABA Standards 

### § 9.22(c) & (h). However, Kuzminhas presented several mitigating factors for the Committeeto consider in determining what sanctions are appropriate. Most important, Kuzmin has taken steps to reform his practice andto promptly address recent administrative errors and difficulties. Thoughhe has submitted a few untimelyfilings, he has not defaulted in any cases since the Referral Orderwas issued. 

### See id 

### §9.32(d). Kuzminhas also implemented a newretainer agreement. In addition, Kuzmin's conduct appears tohave been caused largelybypersonal difficulties and a lack ofcase management skills. 

### See id § 9.32( c) & (f). Kuzmin and his counsel have been extremely cooperative with the Committee's investigation by, among other 16 22992333v3 

# •

# •

•

• things, responding to multiple documentrequests. See id. § 9.32(e). Based upon the statements ofthe character witnesses, it appears that Kuzmin has a positive reputation in the immigration lawbar and engages in significantpro bono work. See id. 

### § 9.32(g). In addition, Kuzmin has never beenpreviously sanctioned, and there is no indicationthathis conduct was motivated by a dishonest or selfish motive. See id. § 9.32 (a) & (b). Kuzmin is also remorseful about his conduct. See id. § 9.32(1). Based upon Kuzmin's misconduct with regard to neglect ofclient matters and failure to comply with Court orders, the Committee finds that a public reprimand is warranted. In addition, Kuzmin shouldbe required, inconnection with his practice in anyfederal court inthe Second Circuit or in any federal administrative agency whose action is subject to the Second Circuit's review, to submit to the Committee a status report on the functioning ofhis practice, which shall include sworn statements identifying under oath each and every instance during each ofthe four reporting periods described belowin which (l) a submission is not filed or is filed out oftime; or (2) an application is made for permissionto make a late filing only after the due date has passed. During these reporting periods, Kuzrnin should also submitto the Committee sworn statements noting (3) any criticism ofhis representation ofhis clients in any written order ofthe Court or any other tribunal. It is expectedthatthese reports will show no such instances absent exigent circumstance, which circumstances should be attested to under oath inthe respective report

. Inthe eventthat a report is nottimely filed orreveals deficiencies notjustifiedby exigent circumstance, the Committee may recommend the imposition ofadditional discipline, including butnot limited to suspension from the Second Circuit, without hearing further testimony. The following reporting periods and deadlines shall be observed. The report for each reporting period shall be mailedto the Committee Secretary within ten (10) days ofthe end of thatreporting period. The first reportingperiod shall commence 10 days afterthe Committee's recommendation is mailed to Kuzmin and shall end six months after the Second Circuit issues its order ofdisposition inthis matter. Eachofthe three subsequentreporting period shall be for a reporting period commencing at the end ofthe prior reporting and ending six months later. A total offour reports will be prepared and mailed to the Committee Secretary.

17 22992333v3