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 

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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 
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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 

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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

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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

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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 

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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 

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1 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 

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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 to 

that 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. 

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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. 

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APPENDIX 2 

March 2010 Report of the Committee 

on Admissions and Grievances 

REPORT & RECOMMENDATION 

Re: In re Vlad Kuzmin, #07-9048~am 

I. Introduction 

• 

By order dated July 31, 2007 (the "Referral Order"), the United States Court of Appeals 

for the Second Circuit ("the Court") referred Vlad Kuzmin to this Committee for investigation of 

his conduct before the Court and for preparation of a report on whether he should be subject to 

disciplinary or other corrective measures. 

The Court's Referral Order raises two primary concerns. First, Kuzmin was counsel of 

record in 28 of 102 petitions for review that 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 in the 

dismissal of his case. According to Yang, Kuzmin concealed the default and told Yang that his 

case had been denied on the merits. Yang also contends that Kuzmin made false representations 

to immigration authorities on his behalf. 

The Committee finds that Kuzmin failed to timely file numerous briefs 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 of the circumstances of his client's entry into the 

United States. The Committee recommends that Kuzmin be publicly reprimanded for his 

conduct and required to submit biannual reports on the functioning ofhis practice for the next 

two years. The following constitutes the Committee's report and recommendation to impose 

discipline on Kuzmin . 

• 992333V3 
II. 	 This Disciplinary Proceeding 

conduct 

On 

as 

March 

alleged 

5, 

in 

2008, 

the July 

this 

31,2007 

Committee 

Referral 

issued 

Order. 

an Order 

On 

to 

March 

Show 

26, 

Cause 

2008, 

regarding 

Kuzmin's 

Kuzmin's 

counsel 

•

sought an extension oftime to file a response. Kuzmin's response and supporting documentation 

were received on May 2,2008. 

On November 6, 2008, Committee members Mary Jo White and Judge Howard A. Levine 

conducted an informal interview of Yang, Kuzmin's former client, with the assistance of a 

Mandarin interpreter. Yang's current counsel, Jan Allen Reiner, was also present. 

A hearing was held on November 19, 2008 before Committee members White, Judge 

Levine and Loretta E. Lynch. Kuzmin and his counsel, Hal R. Lieberman, were in attendance 

and presented Peter Wilson, Esq., as a character witness. Yang and Reiner were also present for 

a part ofthe hearing, and Yang testified with the assistance of a Mandarin interpreter. The 

Committee's Report and Recommendation relies exclusively on Yang's sworn testimony and 

does not incorporate any factual or legal assertions made during Yang's informal interview on 

November 6, 2008. 

The hearing was continued on February 12,2009, in order to permit Kuzmin's counsel 

the opportunity to further cross-examine Yang. Kuzmin also presented Charles Christophe, Esq., 

as an additional character witness. On March 17, 2009, Kuzmin provided the Committee with a 

written response to specific questions raised during the hearing. On March 27, 2009, Kuzmin • 

submitted a comprehensive post-hearing brief. 

III. 	 Factual Background 

The following facts are taken from court records, written submissions to the Committee 

from Kuzmin and Yang and sworn hearing testimony. 

Kuzmin has been practicing law for a little over a decade, primarily in the field of 

immigration. Currently a partner at Kuzmin & Associates, P.C., the firm that he founded five 

years ago, Kuzmin's practice consists primarily of immigration law cases, as well as related 

family law and commercial matters. Kuzmin's caseload includes approximately one thousand 

administrative filings and one hundred active court cases. Kuzmin normally has about twenty 

immigration matters pending in the federal appellate courts. 

Kuzmin graduated from the University of Akron Law School in 1997, after attending 

col1{!ge at Moscow Linguistic University and Walsh University in Canton, Ohio. Following law 

school, Kuzmin initially worked for a small medical malpractice firm, but in 2001, he joined 

Wilson & Associates, a firm specializing in immigration law. After the events of September 11, 

2001, several ofthe partners and associates left Wilson & Associates, and the remaining lawyers 

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• reorganized. On June 30, 2002, Wilson & Associates was dissolved and reformed into Wilson, 

Joshi & Kuzmin LLP. Mr. Kuzmin and his co-partner, Sunit Joshi, 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 of the New York 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 of New York. 

Prior to the Committee's investigation, three ofMr. Kuzmin's former clients - Qun 

Yang, Xue Jia Lin, and Zhi Y ong Liu - had filed complaints against him before the Departmental 

Disciplinary Committee of the New 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 of the Committee on Admissions and Grievances for the United States 

Court of Appeals for the Second Circuit ("Committee Rules"), 

• An attorney may be subject to discipline or other corrective measures 

for any act or omission that violates the rules ofprofessional conduct 

or responsibility of the state or other jurisdiction 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 of Appellate Procedure, a Local Rule of 

the Court, an order or other instruction of the 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 of appeals may discipline an 

attorney who practices before it for conduct unbecoming a member of the bar or for failure to 

comply with any court rule."). 

"Conduct unbecoming a member of the bar" includes "conduct contrary to professional 

standards that shows an unfitness to discharge continuing obligations to clients or the courts, or 

conduct inimical to the administration ofjustice. More specific guidance is provided by case 

law, applicable court rules, and 'the lore of the profession,' as embodied in codes of professional 

conduct." In re Snyder, 472 U.S. 634, 645,105 S. Ct. 2874, 2881 (1985). 

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22992333v3 
As Kuzmin was a member ofthe bar ofNew York State during the time period at issue, • 

the New York State Code of Professional Responsibility ("the Code") also applies. Two sections 

are of particular 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' I Conduct R. 1.3(b) (effective Apr. 1,2009) (hereinafter 

"N.Y.R."). Second, the Code prohibits conduct that "adversely reflects on the 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 consistently treated neglect of client matters and ineffective or incompetent 

representation as sanctionable conduct. See, e.g., Gadda v. Ashcroft, 377 F.3d 934, 940 (9th Cir. 

2004), Amnesty Am. 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), United States v. Song, 902 F.2d 609 

(7th Cir. 1990), Matter ofKraft, 543 N.Y.S.2d 449 (N.Y. App. Div. 1989), In re Bithoney, 486 

F.2d 319 (lst Cir. 1973). Such conduct is also sanctionable under the applicable professional 

rules and standards. The American Bar Association's Standards for Imposing Lawyer Sanctions 

call for a range ofsanctions from reprimand to disbarment for various forms of "lack of 

diligence" and "lack of competence." 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 entrusted to 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's Ethical Canons require that the lawyer should 

represent his or her client "zealously," Canon 7-1, and that he or she "be punctual in fulfilling all 

professional commitments," Canon 7-38. 

"Any finding that an attorney has engaged in misconduct or is otherwise subject to 

corrective 

Committee 

measures 

on Admissions 

must be 

and 

supported 

Grievances, 

by clear 

Rule 

and 

7(h). 

convincing 

Once misconduct 

evidence." 

has 

Rules 

been 

of

established, 

the 

in 

•

determining the sanction to be imposed, the following factors should generally be considered: (a) 

the duty violated; (b) the lawyer's mental state; (c) the actual or potential injury caused by the 

lawyer's misconduct; and (d) the existence of aggravating or mitigating factors. See ABA 

Standards § 3.0. This Committee may recommend to the Court's Grievance Panel a range of 

sanctions, including disbarment, suspension, public or private reprimand, monetary sanction, 

removal from pro bono or Criminal Justice Act panels, referral to other disciplinary bodies, 

supervision by a special master, counseling or treatment, or "such other disciplinary or corrective 

measures as the circumstances may warrant." Committee Rule 6. 

V. The Alleged Misconduct 

A. Defaults on Scheduling Orders 

The evidence demonstrates that in mUltiple instances, Kuzmin failed to comply with court 

scheduling orders and failed to prosecute his clients' cases diligently. The Referral Order alleged 

that 28 of 102 petitions for review in which Kuzmin was counsel of record were dismissed for 

failure to comply with scheduling orders. Kuzmin acknowledged the defaults and explained that 

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22992333v3 • 
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he had failed to submit timely briefs in these cases for one of four 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 on the docket); (3) he and the client had decided 

not to pursue the case based on the 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 that the proper procedure in these circumstances is to move to 

withdraw as counselor move to extend the time to file a late brief prior to the expiration of the 

deadlines for filing the briefs." Id. at 16. 

2. Cases Assigned to Former Partner 

Three ofthe cases listed in the Referral Order (03-4045,04-4350 and 03-4483) were 

actually assigned to Kuzmin's former partner, SunitJoshi, upon the dissolution of Wilson, Joshi 

& Kuzmin LLP in March 2004. Though Joshi failed to file notices of appearance in these 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. Kuzmin told the 

Committee that he "now knows that he 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 of counsel." May 2, 2008 Response, at 17. 

3. Declined to Pursue Case Based on Merits 

In twelve cases, Kuzmin declined to pursue an appeal due to a low likelihood of success 

or the availability of an 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 low probability of 

success was indicated in several cases based on untimeliness, mootness, or a lack of evidence to 

show persecution or other necessary elements of the 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 ofthese twelve instances, he should have withdrawn 

the petitions. May 2, 2008 Response, at 16-17. 

4. Administrative Error 

5 

22992333v3 
Six cases involved "inadvertent administrative malfunction" that prevented Kuzmin from • 

filing briefs in a timely manner. In one case (06-2128), Mr. Kuzmin's support staff confused the 

petitioner's brief due date with that of the government. May 2,2008 Response, at 15. 

Ultimately, the case was reinstated and remanded. In another case (04-1877), the client's record 

was maintained in the file ofthe co-petitioner (whom Kuzmin also represented). May 2,2008 

Response, at 13; Tr. 39. With respect to three cases (04-3429,04-4029, and 05-0683), Kuzmin 

stated that he had not received dismissal orders from the Court. May 2, 2008 Response, at 14. 

However, Kuzrnin did not address whether he had ever received the briefing schedules in those 

cases and/or could have discovered the briefing deadlines through other means. In a sixth case 

(04-2976), Kuzmin stated that he had filed a request to suspend the briefing schedule in order to 

hold a pre-argument conference ("CAMP conference"), but never received a response from the 

Court. May 2,2008 Response, at 14. When no date was set for the conference, he did not follow 

up to inquire about the briefing schedule. Kuzmin acknowledged that he should have filed a 

motion to stay the briefing schedule. Tr.64-65. 

In addition, three ofthe cases cited in the Referral Order (02-4409,02-4410,02-4411) 

were consolidated and withdrawn by stipulation between Mr. Kuzmin and the United States 

Attorney's Office. Tr. 37. Kuzmin and the Assistant U.S. Attorney then jointly moved to 

reinstate and remand the cases to the Board of Immigration Appeals pursuant to a second 

stipulation. [d. 

5. Kuzmin's Response 

whereby 

Since 

he and 

2006, 

his office 

Kuzmin 

manager 

has increased 

both check 

staffing 

the calendar 

at his firm, 

to keep 

and has 

track 

implemented 

of due dates. 

a system 

Mar. 27, 

•

2009 Response, at 9; Tr. 43-44; May 2, 2008 Response at 16-17. The new staff includes a docket 

manager / office manager, additional lawyers and paralegals. Mar. 27, 2009 Response, at 9. 

According to 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 contact with them, pursuit of an appeal would not have been successful, the client 

was able to obtain legal status through other means or the client's case was reinstated. Tr. 40. 

He acknowledged, however, that he should not have defaulted in any ofthese cases and that he 

had significantly inconvenienced the Court by doing so. [d. at 40-41. 

6. Findings 

The Committee finds that Kuzmin's failure to comply with proper procedures for 

withdrawal or dismissal of appeals 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's proceedings and burdened the Court's staffwith additional work. See 

6 

22992333v3 • 
• 


• 


• 


Bennett v. 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 of dilatory conduct and (2) the vulnerability of 

Kuzmin's immigrant clients. ABA Standards § 9.22(c) & (h). The mitigating factors present 

are: (1) absence of a prior disciplinary record; (2) absence of a dishonest or selfish motive; (3) 

personal problems relating 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. 

On four occasions, he requested an extension of time from the Court after the briefing 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 indicating the corrective efforts that he had undertaken 

with respect to each case. Kuzmin argued that, of the forty to forty-five cases that he handled 

before the Second Circuit during this time period, these six cases are isolated instances that do 

not demonstrate an ongoing pattern of dilatory conduct. Mar. 17,2009 Response, at 3 . 

1. Late Motions for Extensions ofTime 

According to Kuzmin, in the matter of Zheng v. Mukasey, No. 07-3741-ag, he did not 

receive the scheduling order from the Court. Immediately upon becoming aware of the orderthree days after the brief due date - Kuzmin filed a motion for an extension oftime. The Court 

granted the motion. 

In the case of Weng v. Mukasey, No. 07-4883-ag, Kuzmin timely prepared a request for a 

30-day-extension oftime, but the letter was never submitted to the Court, due to a clerical error 

by his staff. Upon discovering three days after the brief due date that the request for an extension 

oftime had not been mailed, Kuzmin promptly moved to modify the briefing 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 of a motion for reconsideration 

before the BIA. After the consolidation, Kuzmin expected the Court to issue a new scheduling 

order for the combined cases. No such order was issued, and Kuzmin missed the briefing date 

7 

22992333v3 
that had been set in the direct appeal. Four months later, the Court issued an Order to Show 

Cause, and Kuzmin submitted a timely brief in response. 

In the case ofLi v. Mukasey, No. 07-5380-ag, Kuzmin moved to modify the briefing 

•

schedule on the date that petitioner's brief was due. The Court granted only a one~week 

extension oftime, but Kuzmin did not receive the order until several days after the week had 

expired. In fact, he had actually filed the brief one day after the new due date, without 

knowledge ofthe Court's order. Nevertheless, upon receiving the order, Kuzmin filed a motion 

for leave to file a late brief after-the-fact. The Court granted the motion. 

2. Late Briefs 

In the matter ofZheng v. Mukasey, No. 08-1800-ag, Kuzmin had timely filed the brief, 

but it was not accepted by the clerk's office because the cover ofthe brief did 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 ofZheng v. Mukasey, No. 08-3457-ag, Kuzmin's office had erroneously 

recorded the brief due date as November 17,2008, instead ofNovember 7,2008. Kuzmin 

submitted the brief on November 17th, and upon learning that his filing was late, immediately 

submitted an after-the-fact motion for leave to file a late brief, which was granted. 

3. Findings 

Kuzmin's recent dilatory conduct is of particular concern to 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 of time filings were caused by clerical errors committed by either Kuzmin or his staff, 

suggesting that the administrative changes put in place by Kuzmin during 2008 were not entirely 

effective. Fortunately, none of the overdue filings in these six cases resulted in defaults, and thus 

Kuzmin's clients were not prejudiced. Nevertheless, Kuzmin's actions caused additional 

needless disruption and burden to 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 with respect to this conduct include: the Court's prior referral order 

alleging untimely filings; and a pattern of misconduct. ABA Standards § 9.22(a) & (c). 

Mitigation factors are: (1) Kuzmin's timely good faith efforts to rectifY his untimely submissions 

by filing motions to submit late briefs or to 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 

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• 


• 


• 


C. Kuzmin's Representation ofQun Yang 

The Referral Order cites both a letter and motion from Kuzmin's former client, Yang, 

concerning Kuzmin's representation of him in the matter of Yang 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 contended that Kuzrnin had misled Yang to believe that his case had been 

dismissed on the merits. In an October 27,2006 motion to reinstate his Second Circuit case, 

Yang also provided a detailed account of Kuzmin's alleged misconduct before both the Court 

and the BIA. The motion to reinstate further alleged that Kuzmin had knowingly filed 

documents on Yang's behalf with the 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 of status based upon his marriage to 

a United States citizen. 

1 . Background 

Yang is a citizen of China who left his country without authorization in March 1993, 

traveling to Singapore and then Korea before arriving in the United States two months later. He 

then applied for asylum in the United States, arguing that his extensive participation in prodemocracy protests in China put him at risk of persecution ifhe were to return. While Yang's 

initial asylum application was pending, he also participated in a pro-democracy protest in the 

United States and wrote an article denouncing the Communist Party in China that was published 

in a Chinese-American newsjoumal on December 13, 1993. 

Yang was initially paroled into the United States based on an application for political 

asylum that he filed at JFK airport. Upon entering the country, he quickly secured the 

representation of attorney Yiming Zhu to pursue his asylum application. On January 18, 1994, 

Yang's asylum application was denied on the merits by an Immigration Judge ("IJ"), who also 

concluded that Yang had committed fraud by entering the United States using counterfeit 

documents. Yang appealed that decision before a three-judge panel of the Board of Immigration 

Appeals ("BIA") and lost, though one judge dissented in Yang's favor. Yang decided to seek a 

new attorney, and engaged the law firm Wilson & Associates, who filed a petition for review of 

the BIA's decision with the U.S. Court of Appeals for the Second Circuit. In a published 

decision, the Court held that 

[C]uITent country conditions "bear vitally" as to asylum, and 

because the administrative record is silent as to China's 

contemporary treatment of persons with backgrounds similar to 

Yang's, we agree with the INS that remand is appropriate in this 

case. Remand to the BIA will enable it to address several respects 

in which the present record appears deficient. ... We reserve 

9 

22992333v3 
jurisdiction and remand to the BIA for the limited purpose of 

entertaining and resolving a motion by applicant to consider 

he 

whether 

has a 

circumstances 

well-founded fear 

in China 

that, given 

since 

the 

1993 

totality 

have so 

of

changed 

his actions, 

that 

he 

•

would be subject to persecution if deported 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's new counsel never received the briefing 

schedule. Yang's case was dismissed without his or his attorneys' knowledge. As a result, when 

Yang applied to renew his work authorization, he was taken into custody by immigration 

authorities. Kuzmin first became involved in actively representing Yang when he filed a motion 

to reinstate Yang's Second Circuit case and to secure Yang's release from federal prison. Tr. 14­

15. (Prior to that stage, Yang's case had been handled by other attorneys at Wilson & Associates 

and its successor firm, Wilson, Joshi & Kuzmin.) On October 1,2003, the Court granted 

Yang's' motion to reinstate and to stay his deportation pending resolution of his appeal. Yang 

was released from prison on November 6, 2003. 

2. Defaults 

Upon the October 2003 reinstatement of his appeal before the Court, Yang's brief was 

due on April 5, 2004. However, Kuzmin failed to file a brief, and on August 19,2004, the Court • 

issued an Order to Show Cause. According to Kuzmin, he received neither the briefing schedule 

nor the order because at the time, his partnership with Joshi 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, Kuzmin reviewed the Yang case file and contacted the Assistant 

U.S. Attorney handling the matter. May 2,2008 Response, at 7. Upon learning from the AUSA 

that an Order to Show Cause had been issued, Kuzmin filed a motion for modification of the 

scheduling order the following day, arguing that Yang's case was meritorious and requesting 

fourteen days in which to submit a brief. ld The motion was granted and Yang's brief was due 

on October 18,2004. Kuzmin never filed the brief, and one year later, on October 28,2005, 

Yang's case was dismissed. 

Kuzmin claims that, after responding to the Order to 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. Kuzmin testified that he 

discussed the merits ofthe case with his client, and they jointly decided that it would be in 

Yang's best interest to abandon the 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 avoid paying an additional $2500 fee to 

Kuzmin for drafting and filing the brief. Tr.233-34. Yang's application for an adjustment of 

status was submitted on May 5, 2005. It was denied on May 23, 2006. 

During the period between the brief due date and the filing of Yang's adjustment of status 

petition, Yang risked having his Second Circuit case dismissed and his stay of removal lifted, 

making him vulnerable to detention and/or deportation. When asked whether Kuzmin had 

informed Yang ofthis risk during their discussion about whether to file the Second Circuit brief, 

Kuzmin answered "I don't recall specifically discussing the 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 prevent his client from being detained or deported 

between October 18,2004, when Yang's brief was due, and May 5, 2005, when Yang's 

adjustment of status application was filed. Tr. 231-33. 

During the hearing, 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 of his case. Tr. 157-59. According to Yang, 

he did agree to apply for an adjustment ofstatus, but he did not intend to abandon his Second 

Circuit petition. Tr. 86, 160-61, 199. Yang also denied being told that he would have to pay an 

additional fee for the Second Circuit brief. Tr. 160. 

• 

Yang testified that he did not learn that his Second Circuit case had been denied until 

2006, when he and a member of Kuzrnin's staff, Mr. Chen, attended an immigration interview 

related to Yang's adjustment of status application. Tr. 87-88, 107, 109. While attending the 

interview, Yang inquired about the status of his Second Circuit case, and Chen informed him that 

the case had been closed 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 staff at Kuzmin's office about the status of his 

Second Circuit appeal many times and was repeatedly told that 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. 

At the 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's previous remand of 

Yang's case to the BIA for consideration of changed country conditions. Tr.201-02. According 

to Reiner, the Court need not have reached the merits of Yang's case - Kuzmin could have 

simply argued that, due to mailing errors, Yang never had the opportunity to argue before the 

BIA that changed country conditions warranted a grant of asylum. ld. Kuzmin maintains that 

the state ofthe law two years later had changed such that, had he filed a brief on Yang's behalf in 

October of2004, (1) the Court would not have granted a second remand of Yang's case to the 

BIA and (2) the Court would have denied Yang's asylum appeal on the merits, as it had done in 

other recent cases involving similar facts. Tr. 204-06, 223-27. 

• 11 

22992333v3 
The Committee finds that Kuzmin failed to prosecute Yang's case diligently by missing 

the April 2004 briefing deadline and related Order to Show Cause. Although he was in the midst • 

of the turbulent dissolution of his law partnership, it is apparent that Kuzmin did not take 

adequate steps to ensure that he responded to client needs and court deadlines in a timely manner, 

as required by the disciplinary rules and the Court's orders. It is less clear whether Kuzmin 

failed to meet the second briefing deadline in October 2004 against his client's wishes, as 

alleged. While there are clear reasons why it appears unlikely that 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 consent to abandon his appeal. 

Accordingly, the Committee cannot find, by clear and convincing evidence, that Kuzmin 

defaulted on the case to his client's detriment and without his client's permission. However, at 

the least, by failing to withdraw the petition, Kuzmin unnecessarily 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-lawyer is an aggravating factor. ABA Standards § 

9.22(h). Kuzmin's lack of a prior disciplinary record, absence of a dishonest or selfish motive, 

personal problems concerning the dissolution of his firm and his cooperation with the Committee 

are mitigating factors. ABA Standards § 9.32(a), (b), (c) & (e). 

3. False Statements 

Yang contends that, in the immigration documents that he filed on Yang's behalf in 2005 • 

and 2006, Kuzmin repeatedly made the false assertion that no fraud had been committed by Yang 

upon his entry to the United States, causing Yang's applications to be denied. According to 

Yang, he "continuously asserted to Mr. Kuzmin that he did not wish to argue that he did not 

know that he 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 of Petition for Review, at 12-13 (Oct. 27, 2006). 

Upon entering the United States, Yang admitted to an immigration officer at JFK Airport 

that he had purchased a green card by paying $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, 1994 hearing before an Immigration Judge ("IJ"), Yang 

testified that he had "no idea" whether the green card that he had purchased was authentic and 

that he had entered the United States using a passport that had not been issued by the Chinese 

government Id. at 84. In an oral decision, the IJ concluded that Yang had entered the country 

using fraudulent documents. Id. at 38-39. 

In May 2005, Kuzmin prepared an 1-130 Petition for Relative Visa and 1-485 Application 

for Adjustment of Status on behalf of Yang. Exhibit A, at 7. Yang answered "no" to Question 

10 ofthe form, which asked whether he had, "by fraud or willful misrepresentation of a material 

12 

22992333v3 • 
• 


• 


• 


fact, ever sought to procure, or procured, 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 IJ had previously ordered 

Yang "excluded." Id. According to Kuzmin, the answer to Question 9 should have led 

immigration officials to check the administrative record to learn about the IJ finding. Tr. 68. 

Thus, "Mr. Yang's answer to Question No. 10 was a way to signal the fact that, notwithstanding 

the IJ's finding, Mr. Yang honestly did not know, at the time he obtained them, that the 

documents were not genuine." Mar. 27, 2009 Response, at 17. 

On March 2,2006, Yang attended an interview regarding his adjustment of status 

application. Though Kuzmin did not attend the interview, Yang was accompanied by a lawyer 

and a non-lawyer staff member from Kuzmin's office. Tr. 89. On May 23,2006, the U.S. 

Citizenship and Immigration Service (USCIS) denied Yang's application on the basis that Yang 

had falsely claimed at his interview that he did not enter the country through fraudulent means, 

contrary to evidence in the record that Yang had presented counterfeit documents upon entry. 

Exhibit B. 

Though immigrants who are found to have attempted to enter the United States through 

fraudulent means are generally deemed "inadmissible" under Section 212(a)(6)(C) ofthe 

Immigration and Nationality Act, in June 2006, a representative from Kuzmin & Associates 

sought a waiver of the law on the ground that Yang "was not aware of the nature of the 

documents given to him when he was fleeing persecution in China." Exhibit C. In August 2006, 

the USCIS denied Yang's waiver application and motion to reopen, noting that Yang had 

previously admitted to the immigration officer at JFK airport that he had paid $1,500 for a 

counterfeit resident alien card. Exhibit D. 

According to Kuzmin, he had represented to immigration authorities in the adjustment of 

status petition that Yang had not used fraudulent means to enter the country because Yang had 

always maintained the position that he did not know whether the documents were fraudulent. Tr. 

26-31,50-59. Although Kuzmin was aware that an IJ had held otherwise, Kuzmin took the 

stance that Yang continued to dispute the D's finding. Tr. 30-32, 50-59. Kuzmin also argued 

that, notwithstanding the written submissions, the denial of Yang's adjustment of status 

application was ultimately based upon Yang's own representations during the interview, at which 

Kuzmin was not present.l Tr. 57-58. Kuzmin testified that, in any case, he had advised Yang to 

answer all questions truthfully at the interview. Tr. 239-240. 

According to Yang, he had asked Kuzmin to accompany him to the interview, but was told 

that he would have to decide between Kuzmin or Mr. Chen, a member of Kuzmin's staff. 

Tr. 89. Yang chose to be joined by Chen, since Chen spoke Mandarin and Yang had 

interacted with him frequently in the past. Tr. 89-90. However, Kuzmin contends that he 

always recommends that clients have an attorney accompany them to immigration 

interviews, but Yang declined to have Kuzminjoin him because it would be too expensive. 

13 

22992333v3 
Yang testified that it was Kuzmin's staff member Mr. Chen, not Kuzmin, who had • 

advised him prior to his March 2006 interview with immigration authorities. Tr. 168-170, 191­

92. Chen allegedly coached Yang to deflect questions about fraudulent entry documents by 

responding that all of his documents had been prepared by a "snakehead" (a member of an 

organization that helps individuals to immigrate to developed countries often by illegal means 

- in exchange for payment). Tr. 90. Yang could not recall exactly what he told the immigration 

officer during the interview, and no transcript was recorded. 

Following the interview, the USCIS denied Yang's application and Yang met with 

Kuzmin in order to prepare an affidavit in connection with a motion to reconsider. Tr. 168-69, 

191-92. Yang testified that, during that meeting, Kuzmin instructed him not to state that he had 

used fraudulent documents to enter the country. Tr.170. Yang's motion to reconsider was filed 

by an associate at Kuzmin's firm and presented the argument that, at the time he entered the 

country, Yang did not know whether his documents were authentic. Tr. 248-49; Exhibit C, at 2 

("USCIS decision held that petitioner stated that he never used fraud. (USCIS Dec. 2.) This is 

incorrect. Petitioner stated that he was not aware of the nature of the documents given to him 

when he was fleeing persecution in 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. According to 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's prior disclosures to various immigration authorities, and the !J's prior 

finding that Yang had committed fraud by entering the United States using counterfeit 

documents, 

in writing to 

Kuzmin 

the USCIS 

should 

on the 

have 

issue 

taken 

of 

precautions 

Yang's entry 

to 

to 

ensure 

the country 

that any 

were 

statements 

accurate, 

made 

complete 

orally 

and 

or 

•

addressed any apparent inconsistencies in the record. Merely checking "no" to Question 10, 

without including any additional explanation that this answer was meant to indicate that Yang 

was unaware of whether the documents were genuine or not - and without including 

documentation of the relevant circumstances and an application for waiver of inadmissibility as 

provided under the Immigration and Nationality 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 staff member who advised Yang on his interview and 

motion to reconsider was problematic, we do not believe it to be separately sanctionable as 

fraudulent conduct. The relevant 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 of Kuzmin and his staff 

Tr. 238. It appears that Yang was accompanied by another attorney from Kuzmin's office. 


Tr.89. 


14 

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• 


• 


• 


to more clearly articulate to the USCIS the distinction between Yang's position concerning his 

use of fraudulent documents and the findings in the administrative record constituted a breach of 

Kuzmin's duty as an attorney, to act with diligence and competence, the Committee cannot 

conclude, by clear and convincing evidence, that Kuzmin or his subordinates engaged in 

dishonesty, fraud, deceit or misrepresentation. 

D. Non-Refundable Fee Retainer 

The Committee finds that the standard retainer agreement utilized by Kuzmin until 

recently was in violation of the Disciplinary Rules in New York. Therefore, Kuzmin's use of 

such an agreement with his clients constitutes sanctionable misconduct. Kuzmin submitted to 

the Committee a sample retainer agreement dated March 2006. Exhibit E. In drafting the 

agreement, Kuzmin relied upon the retainer agreement used by the first immigration firm that he 

had worked for, Wilson & Associates. Tr. 260-61. Paragraph 2 provides, inter alia, that: 

Ifthe Client shall discharge the Attorney, the Client, however, shall 

still pay the fees in their entirety, as set forth in this Agreement, by 

reason of the fact that the Attorney may still have remaining legal 

obligations in respect of the Client, even though the Client 

discharged the Attorney. Upon discharge, the Attorney may elect 

to bill the Client at an hourly fee of $250 for past retained work 

and future work required by the Courts I DHS. 

It is now well-established that non-refundable retainer agreements constitute per se 

violations of the Disciplinary Rules ofNew York's Code of Professional Responsibility. DR 2­

110A (3) ("A lawyer who withdraws from employment shall refund promptly any part of a fee 

paid in advance that has not been earned."); see also DR 2-106 (A), (C)(3) (prohibiting charging 

of "excessive" fees and fees "proscribed by law or rule of court"); N.Y. Rule 1.5(d) ("A lawyer 

may not enter into an arrangement for, charge or collect a nonrefundable retainer fee."); N.Y. 

Rule 1.5(a) ("A lawyer shall not make an agreement for, charge, or collect an excessive or illegal 

fee or expense."); see also Matter a/Cooperman, 83 N.Y.2d 465,471 (1994); Matter 0/PerezOlivo, 820 N.Y.S.2d 14, 15, 17-18 (N.Y. App. Div. 2006). 

At the hearing, Kuzmin testified that, in practice, his retainers were not non-refundable, 

and said that he had refunded full or partial fees on multiple occasions. Tr. 258-60, 261-63. 

Paragraph 3 ofthe retainer agreement provides that "[i]n the event fees are not timely 

paid, all work shall stop in respect of representing the Client, even though this might be to 

prejudice of the Client's case." This language violates Disciplinary Rule 2-110, which provides 

that (1) an attorney may not withdraw from employment without permission from a tribunal 

where required, and (2) where withdrawal is otherwise permitted or required, an attorney may not 

do so until he has "taken steps to the extent reasonably practicable to avoid foreseeable prejudice 

15 

22992333v3 
to the rights ofthe client." DR 2-llO(A)(1) & (2); see also N.Y. Rule 1.16 (d) ("If permission 

for withdrawal from employment is required by the rules of a tribunal, a lawyer shall not 

withdraw from employment in a matter before that tribunal without its permission. When 

ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause 

for terminating the representation"); N.Y. Rule 1.16 (e) (identical to DR 2-11 O[A][l]). 

• 

Kuzmin's counsel stated that he had reviewed Kuzmin's retainer agreement and edited 

the language in Paragraphs 2 and 3 to make it consistent with New York ethical rules. Tr. 5-7; 

Exhibit F. 

An aggravating factor with regard to this conduct is the vulnerability ofKuzmin's 

immigrant clients. ABA Standards § 9.22(h). There are several mitigating factors: (1) absence 

ofprior discipline, (2) absence of a dishonest or selfish motive, (3) good faith effort to rectify the 

consequence of his misconduct, (4) full cooperation with the Committee, (5) inexperience in the 

practice of law, as demonstrated in part by Roman's reliance on the AILA sample retainer, 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 of client matters and failure to comply with Court 

scheduling orders and disciplinary rules. Fed. R. App. P. 46(c) ("A court of appeals may 

discipline an attorney who practices before it for conduct unbecoming a member ofthe bar or for 

failure to comply with any court rule."). The record shows that (1) on multiple occasions, 

Kuzmin missed Court deadlines; (2) Kuzmin missed both the initial briefing date and order to 

show cause response date in Yang's case and failed to notify his client promptly; and (3) Kuzmin 

used a retainer agreement that did not comport with New York's ethical rules. In addition, 

Kuzmin repeatedly failed to formally withdraw from or stipulate to the dismissal of cases which 

he had in practice abandoned, thus burdening the Court with extra work, and violating the 

Court's scheduling orders. 

• 

Kuzmin's pattern of dilatory conduct and the risk of prejudice to his unsophisticated 

immigrant clients both constitute aggravating factors. ABA Standards § 9.22(c) & (h). 

However, Kuzmin has presented several mitigating factors for the Committee to consider in 

determining what sanctions are appropriate. Most important, Kuzmin has taken steps to reform 

his practice and to promptly address recent administrative errors and difficulties. Though he has 

submitted a few untimely filings, he has not defaulted in any cases since the Referral Order was 

issued. See id § 9.32(d). Kuzmin has also implemented a new retainer agreement. 

In addition, Kuzmin's conduct appears to have been caused largely by personal 

difficulties and a lack of case 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 

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• 


• 


• 


things, responding to multiple document requests. See id. § 9.32(e). Based upon the statements 

ofthe character witnesses, it appears that Kuzmin has a positive reputation in the immigration 

law bar and engages in significant pro bono work. See id. § 9.32(g). In addition, Kuzmin has 

never been previously sanctioned, and there is no indication that his 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 of client matters and failure to 

comply with Court orders, the Committee finds that a public reprimand is warranted. 

In addition, Kuzmin should be required, in connection with his practice in any federal 

court in the 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 of his 

practice, which shall include sworn statements identifying under oath each and every instance 

during each of the four reporting periods described below in which (l) a submission is not filed 

or is filed out of time; or (2) an application is made for permission to make a late filing only after 

the due date has passed. During these reporting periods, Kuzrnin should also submit to the 

Committee sworn statements noting (3) any criticism of his representation of his clients in any 

written order ofthe Court or any other tribunal. It is expected that these reports will show no 

such instances absent exigent circumstance, which circumstances should be attested to under 

oath in the respective report . 

In the event that a report is not timely filed or reveals deficiencies not justified by exigent 

circumstance, the Committee may recommend the imposition of additional discipline, including 

but not 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 mailed to the Committee Secretary within ten (10) days of the end of 

that reporting period. The first reporting period shall commence 10 days after the Committee's 

recommendation is mailed to Kuzmin and shall end six months after the Second Circuit issues its 

order of disposition in this matter. Each ofthe three subsequent reporting period shall be for a 

reporting period commencing at the end ofthe prior reporting and ending six months later. A 

total of four reports will be prepared and mailed to the Committee Secretary. 

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