07-9056-am 

In re Paul E. Warburgh 

UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT 

August Term, 2010 

(Decided: March 22, 2011) 

Docket No. 07-9056-am 

In re Paul E. Warburgh, 

Attorney. 

Before: Cabranes, Sack, and Wesley, Circuit Judges. 

1 This Court's Committee on Admissions and Grievances has 

2 recommended that Paul E. Warburgh, an attorney admitted to the 

3 bar of this Court, be disciplined. We adopt the Committee's 

4 findings of fact, publicly reprimand Warburgh for the 

5 misconduct described in the Committee's report, and grant him 

6 leave to resign from this Court's bar. 

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8 FOR Paul E. Warburgh: Paul E. Warburgh, Esq., 

9 Huntington, New York. 
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PER CURIAM: 

Pursuant to this Court's Local Rule 46.2, it is hereby 

ORDERED, ADJUDGED, AND DECREED that PAUL E. WARBURGH is 

PUBLICLY REPRIMANDED for the misconduct described in the 

appended report of this Court's Committee on Admissions and 

Grievances ("the Committee"), and leave to resign from the bar 

of this Court is GRANTED. 

I. Summary of Proceedings 

By order led in September 2007, this Court referred 

Warburgh 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. In March 2008, the Committee ordered Warburgh to 

show cause why the Committee should not recommend to the Court 

that discipl ry or other corrective action be taken against 

him ("the show-cause order"). Although Warburgh requested, and 

received, multiple extensions of time to respond to the 

Committee's order, he failed to do so. See Report at 2. 

Moreover, each of his extension requests was made after the 

relevant deadline had passed, and he failed to respond to a 

number of other Committee communications. Id. One of those 

Committee communications explicitly advised Warburgh that the 

Committee would proceed with the matter even in the absence of 

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a response and that his ilure to respond "may constitute an 

independent basis of professional misconduct subjecting (him] 

to disciplinary action." Id., quoting Committee letter dated 

June 10, 2008. 

Due to Warburgh's default, the Committee determined that 

it would take summary action and proceed without a hearing 

pursuant to Rule 7(d) of the Committee's Rules. Thereafter, 

the Committee filed with the Court the record of the 

Committee's proceedings and its report and recommendations. 

In its report, the Committee concluded that there was 

clear and convincing evidence that Warburgh had engaged in 

conduct warranting the imposition of discipline. See Report at 

7-8. Specifically, the Committee found that Warburgh had 

failed to comply with this Court's scheduling orders, led to 

respond to this Court's inquiries, and fai to communicate 

with his clients. Id. at 3-5, 7 (discussing United States v. 

Bazuaye, 0 5389-cr; United States v. Martinez, 05-4825-cr; 

United States v. Delvi (Cordero), 04-4414-cr; United States v. 

Vasquez (Julio De La Cruz), 07-0841-cr). The Committee further 

found that Warburgh's failure to cooperate with the instant 

investigation constituted both an independent basis for 

discipline and an aggravating factor. at 7, 8. 

After identifying several aggravating factors, the 

Committee stated that, due to Warburgh's lure to respond to 

the disciplinary charges, it was unaware of any specif 

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1 mitigating factors. Id. at 8. The Committee nonetheless took 

2 into account certain evidence found in this Court's records 

3 relating to Warburgh's medical problems,l as well as his 

4 asserted intention to retire. 2 Id. at 8, 9. In light of 

5 Warburgh's long career, medical issues, and professed intention 

6 to retire, the Committee "stop [peq] short of recommending 

7 removal from the bar this Court." Id. at 9. Instead, the 

8 Committee recommended that Warburgh be privately reprimanded, 

9 permitted to withdraw from the bar of this Court, and precluded 

10 from readmission. Id. The Committee also recommended, 

11 however, that Warburgh be involuntarily disbarred if he 

12 declined to withdraw. Id. 

13 In September 2010, Warburgh submitted a 260-word email in 

14 response to the Committee's report. Warburgh: (1) stated that 

15 he had "no comment on the Bazuaye matter," but then asserted 

16 that there had been a substant I period of time he could not 

1 In a June 2006 affirmation in support of a motion for an 

extension of a briefing deadline, Warburgh stated that, since 

February 2006, he had suffered from bilateral pneumonia and had 

also undergone multiple surgeries for malignant melanoma, bas 

cell carcinoma, and squamous cell carcinoma. See Martinez, 05­

4825-cr, motion led June 14, 2006. 

2 Warburgh has requested on at least two occasions to be 

relieved as counsel because he is retiring or retired. See 

United States v. Moran (Grullon), 08-4634-cr, motion filed Oct. 

22, 2008 (stating that Warburgh "is retiring and no longer has an 

of or the support staff to do an appeal"); United States v. 

Yen, 09-2303 cr, motion led Feb. 16, 2010 ("I am now retired 

and this case was one of my last."). 

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communicate with Bazuaye and that it appeared that Bazuaye had 

been deported; (2) disputed that he had led to communicate 

with his client in the "DeLaCruz matter," stating that De La 

Cruz's "calls were answered if [Warburgh] was available," that 

"DeLaCruz received copies of all documents or his family had 

the opportunity to receive them," and that "everything was 

timely filed and argued and affirmed"; (3) asserted that the 

appeal in Cordero was erroneously dismissed; and (4) stated 

that he had "no comment" concerning Martinez. Sept. 24, 2010 

email. In conclusion, Warburgh stated that he is now retired 

and he "formally withdr[e]w from the Second Circuit Bar." Id. 

However, since an attorney who is the subject of a disciplinary 

proceeding in this Court may resign from the Court's bar only 

upon obtaining leave of the Court, In re Saghir, 595 F.3d 472, 

473-74 (2d Cir. 2010), we construe Warburgh's statement as 

requesting leave to resign. 

II. Failure to Respond to Committee's Show-Cause Order 

A. Summary Action by the Committee. 

We agree with the Committee that an attorney's failure to 

respond to the Committee's show-cause order will usually permit 

the Committee to take summary action. See Rule 7(d), Rules of 

Committee on Admissions and Grievances (2d Cir.) (" In the event 

the attorney does not respond to the order to show cause, or 

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1 otherwise waives his or her right to appear at a hearing, or 

2 the Committee finds that oral testimony or argument is not 

3 required, the Committee may take summary action .... "). While 

4 there may be rcumstances where an attorney's default might 

not justify summary action - e.g., where the facts underlying 

6 the default are themselves disputed, or where other charges of 

7 misconduct cannot be resolved through summary action no such 

8 circumstances are evident in the present case. 

9 Additionally, where, as here, the charged attorney has not 

challenged the Committee's decision to take summary action, any 

11 issue relating to the propriety of summary action can be 

12 treated as waived, unless a waiver would not be in the 

13 interests of justice. For example, a waiver would not relieve 

14 the Committee or Court of the obligation to base a finding of 

misconduct on clear and convincing evidence. See Rule 7(h), 

16 Rules of Committee on Admissions and Grievances (2d Cir.). We 

17 conclude that the Committee properly took summary action and 

18 that, in any event, Warburgh has waived any challenge to that 

19 decision. 

B. Treating Default as Both Independent Basis for 

21 Disciplinary Action and Aggravating Factor. 

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23 The Committee also properly treated Warburgh's default as 

24 both an independent basis for disciplinary action and an 

aggravating factor. See American Bar Association, Standards 

26 for Imposing Lawyer Sanctions § 9.22{e) (1986, amended 1992) i 

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see, e.g., In re Padilla, 67 N.Y.2d 440, 448, 503 N.Y.S.2d 550, 

554 (1986) (finding that attorney's obstructionism in 

disciplinary proceeding ~frustrated the diligent pursuit of 

serious charges against him, placed into question his fitness 

to represent others, and itself constituted conduct prejudicial 

to the administration of justice"). 

However, we find that a private reprimand is not an 

adequate disciplinary measure when the attorney knowingly 

defaulted and failed to show good cause or excusable neglect 

for the default. An attorney's default in disciplinary 

proceedings is a serious breach of the attorney's professional 

obligations to the Court and the public. In such a case, the 

attorney has not only failed to respond to a Court-sanctioned 

order, but has done so a er the Court already has found good 

cause to question the attorney's very competence to continue 

practicing in this Court. Furthermore, such defaults often 

seriously handicap the Committee and Court in their efforts to 

reach a fair determination based on a complete record, and 

usually result in waste of Committee and Court resources. 

Thus, in most cases, when an attorney knowingly defaults 

in a disciplinary proceeding, and fails to show good cause or 

excusable neglect for the default, the resulting disciplinary 

measure, for that misconduct alone, should be no less than a 

public reprimand. That general rule applies here. Warburgh 

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1 defaulted a number of times during the Committee's proceedings, 

2 never submitted a response to the Committee's show-cause order, 

3 failed to make a showing of good cause or excusable neglect for 

4 those defaults, compromised the Committee's ability to make a 

5 reasoned recommendation based on a full examination of all 

6 relevant facts, and wasted the Committee's time and resources. 

7 Although the Committee noted that Warburgh's prior medical 

8 problems might constitute a mitigating circumstance with regard 

9 to the underlying allegations of misconduct, Warburgh has not 

10 asserted, and there is no indication, that those medical 

11 problems affected his ability to respond to the Committee's 

12 show-cause order. In these circumstances, we conclude that a 

13 public reprimand is more appropriate than the private reprimand 

14 recommended by the Committee. 3 

15 C. Waiver of Right to Challenge Committee Report. 

16 We also conclude that an attorney's unexcused failure to 

17 respond to the Committee's show-cause order, or other material 

18 default during the Committee's proceedings, may constitute a 

3 Although an attorney's refusal to answer questions or 

produce evidence in a disciplinary proceeding may be protected by 

the Fifth Amendment privilege against self-incrimination, see 

Spevack v. Klein, 385 U.S. 511, 514, 516 (1967) (plurality), id. 

at 520 (Fortas, J., concurring), that privilege does not apply 

here, as it was never invoked by Warburgh, see Minnesota v. 

Murphy, 465 U.S. 420, 427 (1984) ("If. [a party] desires the 

protection of the privilege, he must claim it or he will not be 

considered to have been 'compelled' within the meaning of the 

Amendment."); In re DG Acquisition Corp., 151 F.3d 75, 80 (2d 

Cir. 1998) ("The Fifth Amendment privilege is not f-executing; 

if not invoked it may be. deemed to have been waived." ). 

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waiver of the attorney's right to thereafter challenge in this 

Court matters encompassed by the show-cause order or other 

portions of the Committee's proceedings affected by the 

default. Ct". In re Amato, 42 A.D.3d 32, 35 (N.Y. 2d Dep't 

2007) (deeming disciplinary charges admitted as a result of 

default); In re Filippone, 213 A.D.2d 849, 849-50 (N.Y. 3d 

1 Dep't st 1995) (same) ; In re Viscomi, 197 A.D.2d 321, 322 (N.Y. 

Dep't 1994) (same) ; In re Burgess, 129 A.D.2d 252, 253 (N. Y. 4th 

Dep't 1987) (same) . 

In Thomas v. Arn, the Supreme Court held that "a court of 

appeals may adopt a rule conditioning appeal, when taken from a 

district court judgment that adopts a magistrate's 

recommendation, upon the filing of objections with the district 

court identifying those issues on which further review is 

desired." 474 U.S. 140, 155 (1985). This Court has adopted 

such a rule. See United States v. Male Juvenile, 121 F.3d 34, 

38 (2d Cir. 1997) ("We have adopted the rule that failure to 

object timely to a magistrate judge's report may operate as a 

waiver of any further judicial review of the decision, as long 

as the parties receive clear notice of the consequences of 

their failure to object."). The Supreme Court found that such 

a rule was encompassed by the supervisory power of the courts 

of appeals to promulgate procedural rules governing the 

management of litigation, Thomas, 474 U.S. at 146, and was 

supported by "sound considerations of judicial economy," id. at 

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1 147. 

2 The filing of objections to a magistrate's report enables 

3 the district judge to focus attention on those issues 

4 factual and legal that are at the heart of the parties' 

5 dispute. The [court of appeals's] rule, by precluding 

6 appellate review of any issue not contained in objections, 

7 prevents a litigant from "sandbagging" the district judge 

8 by failing to object and then appealing. Absent such a 

9 rule, any issue before the magistrate would be a proper 

10 subject for appellate review. This would either force the 

11 court of appeals to consider claims that were never 

12 reviewed by the district court, or force the district 

13 court to review every issue in every case, no matter how 

14 thorough the magistrate's analysis and even if both 

15 parties were satisfied with the magistrate's report. 

16 Either result would be an ine icient use of judicial 

17 resources. In short, "[tJhe same rationale that prevents 

18 a party from raising an issue before a circuit court of 

19 appeals that was not raised before the district court 

20 appl shere. 

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22 rd. at 147-48 (quoting United States v. Schronce, 727 F.2d 91, 

23 94 (4 th Cir. 1984)). However, the Supreme Court also emphasized 

24 that, since the waiver rule was nonjurisdictional, the courts 

25 of appeals may excuse defaults in the interests of justice. 

26 rd. at 155. 

27 The considerations noted in Thomas that justify limiting 

28 an appeal to those issues sed in properly filed objections 

29 to a magistrate judge's report also apply to an attorney's 

30 challenge in this Court to a report of the Committee on 

31 Admissions and Grievances. We add the following comments 

32 specific to the utility of a waiver rule when an attorney 

33 defaults before the Committee. 

34 In the present case, Warburgh clearly had an opportunity 

35 to address before the Committee all matters scussed in the 

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Committee's show-cause order and this Court's September 2007 

referral order, luding Bazuaye, De La Cruz and Cordero. 

Permitting him to address those matters the first time at 

this late date, without a showing of good cause or excusable 

neglect for his before the Committee, not only would 

encourage future by attorneys in dis inary 

proceedings but would leave this Court with a seriously 

defective record. 

When an attorney Is to cooperate with the Committee's 

investigation, the Committee may be unable to evaluate all 

available pertinent evidence (including the attorney's own 

testimony and other dence or witnesses whose identity or 

location might be known only to the attorney), or to test the 

attorney's version of events through cross-examination and 

discovery. Addit ly, while testimony may, when necessary, 

be presented remotely by telephone or other electronic means, 

the attorney's i to appear at a hearing also may deprive 

the Committee of the ability to reach conclusions based on the 

attorney's demeanor. Thus, permitting the attorney to 

challenge the all ions underlying the Committee's show-cause 

order only after the Committee has submitted its report would 

constitute a serious sruption and distortion of the 

disciplinary process. The distortion of the process is 

particularly acute when, as here, the attorney asks this Court 

to consider unsworn factual assertions that have not been 

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subject to cross-examination. 

An attorney's default during Committee proceedings also 

wastes the Court's and Committee's limited resources, and 

introduces an unnecessary element of uncertainty into the 

proceedings. The problem is similar to that discussed in 

Thomas. Permitting defenses and issues to be raised for the 

first time after the Committee's report has been filed with the 

Court would require the Court either to decide issues that were 

never analyzed by the Committee - the very body charged with 

performing such an analysis in the rst instance - or to 

remand the matter to the Committee for further proceedings. 

Alternatively, the Committee may feel the need to consider all 

possible defenses and issues despite the default - even those 

the charged attorney has no intention of raising to avoid 

leaving this Court without a recommendation on an issue later 

presented by the attorney. See Thomas, 474 U.S. at 148. As in 

Thomas, "[e]ither result would be an inefficient use of 

judicial resources." Id. 

The Committee's volunteer members have dedicated numerous 

uncompensated hours and other resources to this and every other 

referred case. Yet Warburgh essentially asks this Court to 

ignore the Committee's (and this Court's) efforts up to this 

point and start from scratch based on his conclusory assertions 

in his response to the Committee's report. In the absence of a 

showing of good cause or excusable neglect, or that the 

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interests of justice would be served by excusing the default, 

such a request is unreasonable. 

On the other hand, Warburgh was not warned by this Court 

or the Committee that failure to timely respond to the 

Committee's show-cause order may constitute a waiver of any 

future challenge to any matter encompassed by that order. See 

Thomas, 474 U.S. at 155 (finding waiver rule to be valid 

exercise of supervisory power "at least when it incorporates 

c notice to the litigants and an opportunity to seek an 

extension of time for filing objections"); Male Juvenile, 121 

F.3d at 38. Although the Committee did warn Warburgh that his 

failure to respond "may constitute an independent basis of 

professional misconduct subjecting [him] to disciplinary 

action," Committee letter dated June 10, 2008, that warning was 

not broad enough to put him on notice of the possibility of 

waiver. See Small v. Sec'y, Health & Human Services, 892 F.2d 

15, 16 (2d Cir. 1989) (discussing specificity required of 

warning that failure to object to magistrate judge's report 

will waive appellate review). Thus, we will not apply the 

waiver principle to the present case. However, in future 

disciplinary proceedings, we request that the Committee include 

in its orders requiring a response from the charged attorney 

language to the following e ct: 

Your failure to timely respond to, and comply with, 

25 this order may (a) constitute a waiver of the right 

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1 to challenge, in future Committee and Court 


2 proceeolngs, any matter encompassed by this order, 


3 and (b) result in disciplinary measures, including 


4 suspension or disbarment. See In re Warburgh, 


5 F.3d (2d Cir. 2011). 


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7 However, the Committee may adapt the warning language as 

8 necessary to suit particular circumstances, to ensure that the 

9 charged attorney is on notice of the consequences of default in 

10 Committee proceedings.4 

11 We do not, in any respect, fault the Committee for the 

12 procedures it followed in this case, which were fully 

4 Upon an attorney's default, the Committee also may 

immediately recommend to the Court that the attorney be suspended 

from the bar of this Court, or disciplined in some other manner, 

until such time as the attorney shows excusable neglect or good 

cause for the default, the default has been cured, or the 

disciplinary proceeding is terminated. See Second Cir. Local 

Rule 46.2(b) (3) (F) (iii) ("The Committee ... may apply to the 

Grievance Panel for an order sanctioning a person who fails to 

obey a Committee or Grievance Panel order .... "). See also 

Eleventh Cir., Rule 3A(2) of Rules Governing Attorney Discipline 

(Court's order directing attorney to show cause why he should not 

be disciplined may warn of indefinite suspension if attorney 

fails to file timely response); In re Spiegler, 33 A.D.3d 187, 

190 (N. Y. 1st Dep' t 2006) (imposing interim suspension, under 22 

N.Y. Compo Codes R. & Regs. § 603.4(e) (1) (i), after finding 

attorney's failure to respond to disciplinary committee 

inquiries, appear for deposition, provide subpoenaed documents, 

or respond to motion for immediate suspension "demonstrates a 

wi ful noncompliance with the Committee's investigation that 

threatens the public interest"); In re Kaplan, 49 A.D.3d 107, 111 

(N. Y. 1st Dep' t 2008) ("dilatory tactics in responding to 

Committee requests and failure to appear for two scheduled 

depositions constitutes failure to cooperate with the Committee, 

warranting interim suspension"). Interim disciplinary measures 

may be particularly appropriate where they (a) would protect the 

attorney's clients, the public, or this Court from further 

misconduct, or (b) are necessary to ensure the attorney's 

cooperation in the disciplinary proceeding. 

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appropriate. We had not previously suggested that the waiver 

rule discussed in Thomas v. Arn might be applicable to 

disciplinary proceedings and, thus, the Committee had no reason 

to warn Warburgh of the possibility of waiver. The waiver rule 

that we now institute is intended as an aid to the Committee, 

to decrease the number of defaults by charged attorneys, 

enabling the Committee to focus more of its resources on the 

substantive analysis of the merits of cases rather than chasing 

after uncooperative attorneys. The Committee has been 

indispensable to this Court, and we wish only to ameliorate one 

of the more frustrating aspects of the disciplinary process. 

III. Issues Raised by Response and Additional Relevant Conduct 

Although we do not deem Warburgh's present challenges to 

the Committee's report to be waived as a result of his default 

before the Committee, we nonetheless find them meritless for 

the following reasons. For present purposes, we assume that 

Warburgh's factual assertions are properly before us despite 

the fact that they were not made under penalty of perjury and 

were not subject to cross-examination by the Committee. 

A. Conduct in Martinez. As a preliminary matter, since 

Warburgh's response to the Committee's report only addresses 

his conduct in Bazuaye, De La Cruz and Cordero, we find that he 

has waived any objection to the Committee's findings concerning 

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Martinez, 05-4825-cr. Since those findings are supported by 

the record, we adopt them. 

B. Conduct in Bazuaye. Warburgh's assertions that he had 

been unable to communicate with Bazuaye for a substantial 

period of time, and that Bazuaye appeared to have been 

deported, have little evance to the allegations that were 

made about his conduct in Bazuaye's appeal. According to the 

September 2007 re rral order: (a) Warburgh failed to obey the 

Court's order directing him to fi a motion to withdraw as 

counsel; (b) Warburgh's failure to file a brief caused the 

appeal to be dismissed on default; and (c) the Court was 

informed by Bazuaye that Warburgh had failed to comply with 

Bazuaye's instruction that he withdraw as counsel, and failed 

to accept his telephone calls or return messages. See Sept. 

2007 Order at 1-2. Although Warburgh's assertion that he had 

been unable to communicate with Bazuaye for a period of time 

might be relevant to Bazuaye's complaint about messages not 

being returned, the remaining allegations are far more serious, 

are not addressed by Warburgh, and are amply supported by the 

Court's records for that appeal. 

C. Conduct in De La Cruz. Two of the cases discussed in 

the referral order and Committee report bear the name De La 

Cruz, and Warburgh does not make clear whether he was referring 

to the case docketed under 07-0841-cr or 04-1448-cr. In either 

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event, we reject his assertions that De La Cruz's "calls were 

answered if [Warburgh] was available," that "DeLaCruz received 

copies of all documents or his family had the opportunity to 

receive them," and that "everything was timely filed and argued 

and affirmed." 

To the extent Warburgh was referencing 07-0841-cr, he 

appears to be disputing De La Cruz's allegation that Warburgh 

had refused to communicate with him, and the statements in the 

September 2007 order and the Committee's report that Warburgh 

had failed to file a brief by the deadline set in this Court's 

order, and that his default caused the dismissal of the appeal. 

See Sept. 2007 Order at 1-2; Report at 5. However, Warburgh 

does not address the allegations that he repeatedly threatened 

De La Cruz's mother with withdrawal from the case if she did 

not pay him more money, and that he failed to comply with the 

Court's instruction that he provide the Court with a copy of 

his response to De La Cruz's complaint about his conduct. See 

Sept. 2007 Order at 1-2. 

Contrary to Warburgh's assertion, the docket clearly 

reflects that Warburgh failed to comply with this Court's 

instructions and orders, causing the case to be dismissed on 

default. See De La Cruz, 07-0841-cr, letters docketed Apr. 11, 

2007 and May 8, 2007 (requiring response to Court); order 

docketed Sept. 24, 2007 {requiring Warburgh to show cause why 

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the appeal should not be dismissed based on his default); order 

docketed Dec. 6, 2007 (dismissing appeal based on Warburgh's 

default). Additionally, the assertion that De La Cruz's ~calls 

were answered if [Warburgh] was availableH is virtually 

meaningless since Warburgh did not address the specific 

allegations made by his client and did not explain what was 

done with De La Cruz's calls when Warburgh was not ~available.H 

To the extent Warburgh was referencing 04-1448-cr, his 

comments appear irrelevant since the allegations about that 

case in the referral order concerned the district court 

proceedings, not the appeal. In any event, the Committee found 

insufficient evidence of misconduct in that appeal. See Report 

at 7. 

D. Conduct in Cordero. Warburgh's assertion that the 

appeal in Cordero was erroneously dismissed simply agrees with 

the Committee's conclusion about that dismissal, see Report at 

4, and Warburgh fails to address the Committee's findings that 

he had failed to respond to the Court's inquiries, and that he 

appeared to have made no effort to have the appeal reinstated 

after its improper dismissal, id. at 4, 7. Since the docket 

supports the Committee's findings, we adopt them. 

E. Recent Conduct. According to his own filings in this 

Court, Warburgh has been in the process of retiring for at 

least two years. See United States v. Moran (Grullon), 08­

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4634-cr, motion filed Oct. 22, 2008 (stating that Warburgh "is 

retiring and no longer has an office or the support staff to do 

an appeal"). In at least two cases during that time period, he 

filed appeals and then successfully moved to be relieved based 

on his retirement. Id., order filed Nov. 12, 2008 (granting 

motion to be relieved as counsel); United States v. Yen, 09­

2303-cr, motion filed Feb. 16, 2010 ("I am now retired and this 

case was one of my last."), order filed Mar. 3, 2010 (granting 

motion to be relieved as counsel). 

Warburgh's most recent case in this Court was United 

States v. Medina, 10-3437-cr, an appeal he led on August 25, 

2010. Although Warburgh indicated, in September 2010, that he 

intended to move for appointment new counsel in that case, 

see Medina, 10-3437-cr, Form B led Sept. 22, 2010, and 

presumably to be relieved, he did not do so until he was 

instructed by the Clerk's Office, in late November 2010, to 

file either a status update letter or a scheduling 

notification, id. at Nov. 29, 2010 docket entry (noting 

telephone call). His December 2010 motion to be relieved as 

counsel, based on his retirement, was granted and new counsel 

substituted. Id., motion filed Dec. 10, 2010, order filed Dec. 

14, 2010. We note that the attorney registration web site for 

the New York State Unified Court System does not indicate that 

Warburgh has retired. 

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13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

IV. Voluntary Withdrawal from this Court's Bar 

We will not allow an attorney to "evade [our] disciplinary 

authority through strategic withdrawal after disciplinary 

proceedings have commenced." Saghir, 595 F.3d at 473. Thus, 

"an attorney who is the subject of a disciplinary proceeding in 

this Court may not resign from the Court's bar without first 

obtaining leave of the Court." Id. We have previously 

declined to accept an attorney's resignation where doing so may 

mislead others into believing that the attorney's 

separation from this Court's bar was entirely voluntary. 

See In re Jaffe, 585 F.3d 118, 125 (2d Cir. 2009). 

Warburgh has not explicitly set forth any basis upon which 

we can conclude that allowing his voluntary withdrawal would be 

in the interests of justice. See In re Yan Wang, 08-9039-ag, 

2010 U.S. App. Lexis 14699 (2d Cir. July 19, 2010) (discussing 

several factors supporting decision to grant leave to withdraw 

from Court's bar during the pendency of disciplinary 

proceedings). In fact, several of the factors discussed in Yan 

Wang would justify denial of leave to withdraw in this case. 

However, Warburgh's professed intention to retire from the 

practice of law suggests that his request for withdrawal is not 

made solely for the purpose of evading a disciplinary sanction, 

the misconduct discussed in the Committee's report was not as 

egregious as that involved in Jaffe and Saghir, and the fact 

20 

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6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

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that this opinion will be made public makes it unlikely that 

the public will be misled as to the circumstances of his 

withdrawal. Accordingly, we grant Warburgh leave to withdraw 

from this Court's bar. 

V. Conclusions 

Upon due consideration of Committee's report, the 

underlying record, and Warburgh's submissions, it is hereby 

ORDERED that Warburgh is PUBLICLY REPRIMANDED for the 

misconduct discussed in the Committee's report, and his request 

for leave to withdraw from this Court's bar is GRANTED. 

The text of this panel's September 2007 order and the 

Committee's report are appended to, and deemed part of, the 

present order for the following disclosure purposes. Warburgh 

must disclose this order to all clients in cases currently 

pending in this Court and to all courts and bars which he is 

currently a member, and as required by any bar or court rule or 

order. Warburgh also must, within fourteen days of the filing 

of this order, file an affidavit with this Court confirming 

that he has complied with the preceding disclosure requirement. 

Furthermore, the Clerk of Court is directed to release this 

order to the public by posting it on this Court's web site and 

providing copies to members of the public in the same manner as 

all other published decisions of this Court, and to serve a 

21 

1 copy on Warburgh, this Court's Committee on Admissions and 

2 Grievances, the attorney disciplinary committee for the New 

3 York State Appellate Division, First Department, and all other 

4 courts and jurisdictions to which this Court distributes 

disciplinary decisions in the ordinary course. s 

FOR THE COURT: 

Catherine O'Hagan Wolfe, Clerk 

By: Michael Zachary 

Couns to the Grievance Panel 

APPENDIX 1 

Text of S§Ptember 2007 order 

For the reasons that follow, Paul E. Warburgh is referred 

to this Court's Committee on Admissions and Grievances for 

investigation of the matters described below and preparation of 

a report on whether he should be subject to disciplinary or 

other corrective measures. See Second Circuit Local Rule 46{h) 

[now Local Rule 46.2]. We express no opinion here as to an 

appropriate disposition. The Committee may, course, in the 

first instance, determine the appropriate scope of s 

investigation. 

5 Counsel to this panel is authorized to provide, upon 

request, documents from the record of this proceeding to other 

attorney disciplinary authorit Whi we request that all 

such documents remain confidential, we understand that further 

proceedings by other attorney disciplinary authorities may 

require that some documents be made public in whole or part. We 

leave that determination to the discretion of those disciplinary 

authorities. 

22 
Warburgh was referred to this Grievance Panel as a result 

of the proceedings in United States v. Bazuaye, 0 5389-cr. 

s Court's records in that appeal reflect that, after filing 

the notice of appeal, Warburgh did not file any other document 

despite remaining counsel of record for appellant. In 

November 2005, this Court issued its first scheduling order in 

the appeal, establishing a December 2005 deadline for the 

appellant's brief. See Bazuaye, 0 5389-cr, order filed Nov. 

8, 2005. In December 2005, prior to the deadline for the 

appellant's f, this Court received a copy of a letter from 

the appellant, addressed to Warburgh, reminding Warburgh to 

inform this Court that the appellant had asked Warburgh to 

withdraw. Id., letter led Dec. 20, 2005. In March, June, 

and August 2006, the Clerk's Of called Warburgh to request 

the filing of either a motion to withdraw as counselor a 

motion for an extension of time to file a brief. Id., docket 

entries Mar. 21, 2006, June 7, 2206, and Aug. 21, 2006. In 

November 2006, this Court dismissed Bazuaye's appeal for 

failure to comply with the scheduling order. Id., order filed 

Nov. 3, 2006. 

Shortly thereafter, Bazuaye filed a pro se motion 

reinstatement of his appeal and appointment of counsel. Id., 

motion filed Nov. 17, 2006. Bazuaye stated that, in December 

2005, he had asked Warburgh to withdraw as counsel and that, in 

the year preceding Bazuaye's November 2006 motion, Warburgh had 

"refused to accept [Bazuaye's] calls" or return messages 

by two "Social Services workers" from Bazuaye's place 

incarceration. Id. As a result of Bazuaye's motion, this 

Court reinstated the appeal, orde Warburgh to fi ,within 

30 days, a ITlotion to withdraw as counsel in compliance with 

Second Circuit Local Rule 4(b), and referred "Warburgh's 

apparent dereliction in th[e] case" to the Court's Grievance 

Committee. Id., order led Feb. 15, 2007. The 30-day 

deadline for the motion to withdraw expired on Monday, March 

19, 2007, without Warburgh either filing a motion to withdraw 

or responding to the February 2007 order in any other way. In 

May 2007, this Court sua sponte relieved Warburgh and ordered 

the appointment of new counsel. Id., order filed May 10, 2007. 

We also request that the Committee examine proceedings 

in several other appeals in this Court in which Warburgh was 

counsel of record for the appellants. In United States v. 

Martinez, 0 4825-cr, Warburgh, on behalf of the appellant, 

requested an extension of time to file s brief and was given 

until December 8, 2005 to do so. See Martinez, 05-4825-cr, 

order filed Nov. 4, 2005. More than three months after the 

f was due, Clerk's Office left a mes for Warburgh 

23 
about the overdue brief and, a month later, dismissed the 

appeal for failure to comply with the scheduling order. See 

id., entry dated Mar. 17, 2006 and order filed Apr. 24, 2006. 

In a separate letter written at the direction of then-Chief 

Judge Walker, Warburgh was reminded of his obligation under 

Second Circuit Local Rule 4(b) (a) to continue representing the 

appellant until relieved by the Court, and was directed to 

file, within 20 days, either a brief and appendix or a 

stipulation withdrawing the appeal signed by his client, 

himself, and opposing counsel. Id., letter filed Apr. 24, 

2006. The letter also required him to, inter alia, explain his 

conduct in the appeal and warned that ilure to comply would 

result in sua sponte dismissal of Warburgh as attorney of 

record and issuance of an order to show cause why he should not 

be disciplined. Id. 

The 20-day deadline for a response to the April 2006 

letter expired on May 15, 2006 without the response or any 

other document being filed by the appellant or Warburgh. On 

June 6, 2006, the Court sua sponte reinstated the appeal, 

relieved Warburgh as counsel, and ordered that new counsel be 

appointed. Id., order filed June 6, 2006. Shortly thereafter, 

however, Warburgh responded to the April 2006 letter by 

requesting an extension of time to fi an Anders brief, which 

accompanied the motion. Id., motion and other documents filed 

or received June 14, 2006. In the motion for an extension, 

Warburgh explained that various serious medical problems in 

February, March and possibly April 2006 had rendered him unable 

to work for part of that time-span. Id. However, Warburgh did 

not explain why he was unable to either meet the December 2005 

deadline for ling the appellant's brief or cure his default 

prior to the onset of his illnesses February 2006. Id. 

This Court granted the extension, which implicitly reinstated 

Warburgh as counsel and permitted the Anders papers to be 

filed. Id., order and other documents filed June 20 and 22, 

2006. The Anders motion, and the government's motion for 

summary affirmance, were later granted. Id., orders filed Nov. 

22, 2006. 

In United States v. Vasquez (De La Cruz), 04-1448-cr, 

after this Court remanded the case for possible resentencing, 

Warburgh's client, De La Cruz, requested that this Court 

appoint new counsel for the resentencing, based on Warburgh's 

leged refusal to return his calls or provide him with copies 

of documents relevant to his case, including this Court's 

decisions. See Vasquez (De La Cruz), motion filed July 21, 

2006. Among other things, De La Cruz stated that he had filed 

a complaint with the New York State Bar Association. Id. at 1 

24 

and Exh. 2. 

In United States v. Del (Cordero), 04-4414-cr, this 

Court dismissed the appeal of Angel Cordero, Warburgh's client, 

based on the belief that Warburgh had failed to fi a brief 

even after the Clerk's Office had called Warburgh twice 

regarding his apparent default. See Delvi (Cordero), docket 

entries for Sept. 28, 2006, Dec. 19, 2006, and Jan. 10, 2007. 

However, upon reviewing the Court's file for Delvi (Cordero) 

for .purposes of the present proceeding, references to a filed 

brief were discovered. One of those references was in a letter 

from Cordero to the Court complaining of certain arguments 

Warburgh had made in the appellate brief and of Warburgh's 

failure to send Cordero a copy of the brief despite numerous 

requests it by Cordero. See id., Cordero letter filed May 

1, 2006. Further investigation led to an entry for Cordero's 

brief in the docket sheet for a co-defendant's appeal. See 

United States v. Delvi (Martinez), 03-1138, Jan. 31, 2005 

entry. The filing date of that bri -- if is, in ,the 

correct brief -- was in compliance with the scheduling order 

entered in the appeal docketed under 03-1138. 6 See id., order 

filed Oct. 8, 2004. While it appears that Warburgh may not 

have defaulted on the briefing schedule, and thus dismissal may 

have been inappropriate, there is no indication that Warburgh 

attempted to correct the error, despite being contacted on 

several occasions concerning the allegedly late brief. 

Most recently, in United States v. Vasquez (Julio De La 

Cruz), 07-0841-cr, Warburgh's client filed a pro se notice of 

appeal and informed this Court in two letters that his counsel, 

apparently referring to Warburgh, will not be representing him 

on appeal, refused to communicate with him, and repeatedly 

threatened his mother with withdrawal from the case if she did 

not pay him more money, despite accepting the case with 

knowledge that the mother had paid with her life savings and 

6 The brief filed under 03-1138 is not currently ava able 

to this panel, and thus we express no opinion as to whether it is 

the brief that was thought to be missing in the appeal docketed 

under 04-4414. The apparent confusion over where the brief 

should have been filed may have resulted from 03-1138 being the 

original lead appeal for all of the defendants in Cordero's case, 

and Cordero's appeal being severed from the other cases shortly 

before the filing of brief. See Delvi (Cordero), 04-4414-cr, 

order severing 04-4414 from 03-1138, filed Dec. 8, 2005. The 

Clerk's Office has reopened Cordero's appeal. See id., order 

ed June 13, 2007 (vacating prior dismissal order). 

25 

had no other money. See Vasquez (Julio De La Cruz), 07-0841­

cr, letters filed Apr. 11, 2007 and May 8, 2007. The Clerk's 

Office forwarded the two letters to Warburgh with a cover 

letter which instructed him to supply the Court with a copy of 

his response. See id. Although the scheduling order in the 

case required the appellant's brief to be led by May 16, 

2007, see id" order filed Mar. 28, 2007, Warburgh has yet to 

file a brief, a motion to withdraw as counsel in compliance 

with Second Circuit Local Rule 4(b), or any other document in 

the case. see also id., pro se letter of appellant led July 

20, 2007 (requesting new counsel, and alleging that Warburgh 

had failed to inform him of Court rulings and otherwise 

rendered ineffective assistance). 

Upon due consideration of the matters described above, it 

is ORDERED that Paul E. Warburgh is referred to this Court's 

Committee on Admissions and Grievances for investigation and 

preparation of a report consistent with Federal Rule 

Appellate Procedure 46, this Court's Local Rule 46(h), and the 

Rules of the Committee on Admissions and Grievances. 

FOR THE COURT: 


Catherine O'Hagan Wolfe, Clerk 


BY: __	~~__~/S/~______________ 

Michael Zachary 

Supervisory Staff Attorney 

26 

L 

APPENDIX 2 

April 2009 Report of the Committee 

on Admissions and Grievances 

REPORT & RECOMMENDATION 


In Re: Paul E. Warburgh, #07-9056-am 


Introductiou 

By order dated September 7,2007, the United States Court of Appeals for the Second 

Circuit (the "Court") referred Paul E. Warburgh to this Committee for investigation of his 

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

discipline or other corrective measures. The Committee issued an Order to Show Cause why it 

should not recommend dis9jpline andlor other corrective action against Mr. Warburgh based on 

the allegations in the Court's Order. 

Mr. Warburgh has defaulted. Therefore, the Committee may take summary action. 

Local F.R.A.P. 46(h)(3); Committee Rule 7(d). The following constitutes the Committee's 

Report and Recommendation to impose discipline on Mr. Warburgh. 

II. The Referral Order 

The Court referred Mr. Warburgh to the Committee by order dated September 7, 2007 

(the "Referral Order"). The Referral Order addresses five separate matters pending before. the 

Court in 2005-2007 in which Mr. Warburgh was listed as counsel of record: United States~v. 

Bazuaye, OS-S389-cr; United States v. Martinez, OS-482S-cr; United States v. Vasquez (De 

LaCruz), 04-14448-cr; United States v. Delvi (Cordero), 04-4414-cr; United States v. Delvi 

(Martinez), 03-1138-cr; and United States v. Vasquez (Julio De LaCruz), 07-04841-cr. MjUlyof 

the facts in this Report and Recommendation are taken directly from the Referral Order. 

Each matter involves neglect of files, failure to abide by the Court's rules, andlor failure 

torespond to the Court's inquiries. 
III. This Disciplinary Proceeding 

On March 21,2008, this Committee issued an Order to Show Cause regarding Mr. 

Warburgh's conduct as alleged in the Referral Order. The letter was returned because Mr. 

Warburgh had changed addresses. The Committee located his new office address and sent him a 

new Order to Show Cause on March 27, 2008. Mr. Warburgh's response was due within thirty 

days. 

By letter dated April 29, 2008, after the deadline for response had passed, Mr. Warburgh 

requested an extension of time to respond to the Order to Show Cause. He indicated that he 

would be able to respond by July 2008. By letter of May 1,2008, the Committee extended his 

time to respond until May 12,2008. 

On May 21, 2008, Mr. Warburgh contacted the then Secretary for the Committee, Amin 

Kassam, by telephone and requested an additional extension. Mr. Kassam instructed Mr. 

Warburgh to put his request and the reasons for the request in a letter to the Committee. Mr. 

Warburgh did not do so. 

On June 10,2008, the Committee sent another letter to Mr. Warburgh, instructing him 

that ifhe did not respond by June 24, 2008, the Committee would proceed without the benefit of 

his response. The letter also advised that his failure to respond may constitute an independent 

basis for finding professional misconduct SUbjecting him to disciplinary action. 

In mid-October 2008, Terrence M. Connors, Esq., a member of this Committee, called 

Mr. Warburgh at his last known telephone number. Mr. Connors left a voicemail message but 

Mr. Warburgh did not return the call. This Committee's Secretary, Shanya Dingle, also has left 

two phone messages for Mr. Warburgh that have gone unreturned. 

Despite the mUltiple extensions oftime, multiple communications from this Committee, 

and the passage of over eight months since he was first served with the Order to Show Cause, to 

this date Mr. Warburgh has not submitted a response to the Order to Show Cause. 

IV. Factual Background 

Because Mr. Warburgh has not submitted a response, the following allegations are 

uncontested. 

-2­ 22947144'11 
A. United States v. Bazuaye, 05-5389-cr 

Mr. Warburgh was counsel for defendant-appellant in this matter. On November 8, 2005, 

the Court entered a scheduling order making appellant's brief due on December 28, 2005. On 

December 20, 2005, the Court received a letter written by Mr. Warburgh's client to Mr. 

Warburgh reminding Mr. Warburgh to inform the Court that his client had asked Mr. Warburgh 

to withdraw as counseL 

On March 21, June 7, and August 21,2006, the Clerk's Office called Mr. Warburgh to 

request that he either file a motion to withdraw as counselor file a motion for an extension of 

time to file the brief which was past due. On November 3, 2006, the Court dismissed the appeal 

for failure to comply with the scheduling order. 

On November 17,2006, appellant moved pro se to reinstate his appeal. In his motion, 

appellant stated that he had asked Mr. Warburgh to withdraw as counsel in December 2005 and 

that Mr. Warburgh had refused to accept his calls or return messages left by workers at Mr. 

Bazuaye's place ofincarceration. On February 15,2007, the Court granted the pro se motion and 

ordered that Mr. Warburgh file a motion to withdraw as counsel within thirty days. 

Mr. Warburgh did not move to withdraw. On May 10,2007, the Court relieved Mr. 

Warburgh as counsel and ordered new counsel appointed. According to the docket, appellant's 

new counsel briefed the appeal and the judgment was affirmed. 

B. United States v. Martinez, 05-4825-cr 

Mr. Warburgh was appointed counsel under the Criminal Justice Act on November 4, 

2005. Mr. Warburgh requested and was granted an extension oftime to file appellant's brief. 

The briefwas due on December 8, 2005. 

On March 17.2006, the Clerk's Office left a message for Mr. Warburgh about his 

overdue brief. On April 24, 2006, the appeal was dismissed for failure to comply with the 

scheduling order. The same day, the Court sent a letter to Mr. Warburgh reminding him of his 

obligation under Second Circuit Local Rule 4(b)(a) to continue representing the appellant until 

relieved by the Court and directing Mr. Warburgh to file, within twenty days, either a brief and 

appendix or a stipulation withdrawing the appeal signed by his client, himself, and opposing 

counsel. The letter also required him to explain his conduct and warned that failure to comply 

would result in a sua sponte dismissal of Mr. Warburgh as attorney of record and issuance of an 

order to show cause why he should not be disciplined. Mr. Warburgh did not respond. 

On June 6, 2006, the Court reinstated the appeal, relieved Mr. Warburgh as counsel, and 

ordered that new counsel be appointed. On June 14, 2006, Mr. Warburgh filed an appendix, a 

motion for an extension of time to file a brief, and an Anders brief. In his affirmation in support 

of his motion for an extension, Mr. Warburgh explained that he had been experiencing severe 

medical issues: 

-3­ 22947144v1 
In February of this year, I became ill with bilateral pneumonia and I was not working for 

several weeks and then resumed working part-time. Around the 1 st of March, 2006, I had 

extensive surgery for basal cell carcinoma and as I was recovering from this I was 

diagnosed with malignant melanoma which required immediate surgery. This surgery 

required an incision and 32 sutures. About a month later I had more surgery for 

squamous cell carcinoma and another surgery for basal cell carcinoma. I am now getting 

back to work at the office and have completed an Anders brief in this case. 

Unfortunately, my latest illnesses and surgeries have made it difficult to work. Therefore, 

I respectfully request leave to file the completed brief and appendix in this case at a later 

date. 

Mr. Warburgh's affirmation did not address why he was unable to comply with the 

original deadline of December 8, 2005, or why he did not cure his failure to comply in the two 

months before he alleges that he became ill. The Court granted the extension and ultimately 

granted the Anders motion. 

C. United States v. Vasquez (De LaCruz), 04-1448-cr 

Mr. Warburgh timely filed appellant's brief on May 17,2004. On June 3, 2005, the Court 

remanded the matter to the district court for further proceedings (in the aftermath of United 

States v. Booker). On July 21, 2006, Mr. Warburgh's client requested that the Court appoint new 

counsel, alleging that Mr. Warburgh refused to return his calls or provide him with copies of 

documents. The client also stated that he had filed a complaint with the New York State Bar 

Association. 

D. United States v. Delvi (Cordero), 04-4414-cr 

On January 10,2007, the Court dismissed this appeal based on the belief that Mr. 

Warburgh had failed to file a brief even after the Clerk's Office had called him twice regarding 

the default. According to the Court's records, it is possible that the brief actually was filed and 

the dismissal was in error. Regardless, there is no evidence that Mr. Warburgh made any efforts 

to have the appeal reinstated. 

On June 13,2007, the Court reinstated the appeal. According to the docket, Mr. 

Warburgh subsequently continued to participate in this matter. The judgment was affirmed on 

Apri115,2008. 

-4­ 22947144v1 
E. United States v. Vasquez (Julio De La Cruz), 07-0841-cr 

On March 28, 2007, the Court issued a scheduling order requiring the record on appeal to 

be filed by April 16, 2007, and appellant's brief to be filed by May 16, 2007. On April 11 and 

May 8, 2007, the Court received letters from Mr. Warburgh's client stating that Mr. Warburgh 

refused to communicate with him and repeatedly threatened his mother with withdrawal from the 

matter ifshe did not pay him (even though she reportedly had paid him her life savings). The . 

Clerk's Office forwarded the letters to Mr. Warburgh with a cover letter instructing him to send a 

copy of his response to the Court. 

Mr. Warburgh did not respond to the Court's inquiry, nor did he file a brief. On 

December 6, 2007, the Court dismissed the appeal for failure to comply with the scheduling 

order. 

F. Current Registration Status 

Mr. Warburgh was admitted to practice before the Court on April 11, 1972. According to 

the Clerk's Office, Mr. Warburgh currently has two cases pending before the Court, United 

States v. Geronimo (Panitz), 08-0190-cr, and United States v. Grullon, 08-4634-cr. In the 

former, Mr. Warburgh has indicated that he intends to withdraw the appeal. In the latter, Mr. 

Warburgh has filed a motion to be relieved as counsel due to his alleged retirement. 

Notably, Mr. Warburgh's registration as a member of the New York State Bar is not 

current. He was admitted to the bar of New York State by the Appellate Division, Second 

Department, in 1970. His registration lapsed in February 2008. 

V. 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 of professional 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 ofthe Court, or a rule of professional conduct or responsibility of the 

Court, or any other conduct unbecoming a member of the bar. 

Committee Rule 4; see also F.R.A.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"). 

22947144v1 -5­
"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). 

Because Mr. Warburgh was a member of the bar of New 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." See DR 6-101(A)(3); 22 

N.Y.C.R.R. § 1200.30(A)(3). Second, the Code prohibits conduct that "adversely reflects on the 

lawyer's fitness as a lawyer." DR 1-102(A)(7); 22 N.Y.C.R.R. § 1200.3(A)(7). 

According to this Committee's rules, "[a]ny finding that an attorney has engaged in 

misconduct or is otherwise subject to corrective measures must be supported by clear and 

convincing evidence." Committee Rule 7(h). 

Ifan attorney has been found to have engaged in misconduct, this Committee may 

recommend to the Court's Grievance Panel that the attorney be: 

(a) removed from the bar of the Court, 

(b) if not a member of the bar ofthe Court, precluded from becoming a 

member or from appearing in future cases in the Court, 

(c) suspended from practice before the Court, for either an indefinite or a 

specified period of time, 

(d) publicly or privately reprimanded, 


(e) monetarily sanctioned, 


(0 removed from the Court's pro bono or Criminal Justice Act panels, 


(g) referred to another disciplinary committee, bar association, law 

enforcement agency, or other agency or organization, 

(h) subject to the supervision of a special master, or receive some form of 

counseling or treatment by an appropriately certified person, or 

(i) subject to such other disciplinary or corrective measures as the circumstances may 

warrant, including any combination ofthe preceding possible actions. 

Committee Rule 6(a)-(i). The following factors are considered in recommending discipline: 

(a) the duty violated; 

(b) the lawyer's mental state; 

(c) the potential or actual injury caused by the lawyer's misconduct; and 

(d) the existence of aggravating or mitigating factors. 

American Bar Association, Standards for Imposing Lawyer Sanctions ("ABA Standards") 

(C)(3.0). For misconduct that involves a lack of diligence, disbarment is generally considered 

appropriate when, among other things, "a lawyer knowingly fails to perform services for a client" 

-6­ 22947144v1 
and/or "engages in a pattern ofneglect with respect to client matters" and "causes serious or 

potentially serious injury to a client." Id. 4.41(b), (c). 

VI. 	 The Alleged Misconduct 

In the absence of a response from Mr. Warburgh, it is established by clear and convincing 

evidence that Mr. Warburgh engaged in the following misconduct: 

1. 	 Neglect of legal matters and failure to comply with court rules, 

in violation of F.RA.P. 46(c), 22 N.Y.C.RR. § 1200.30(A)(3), and 

Committee Rule 4; see United States v. Bazuaye, 05-5389-cr 

(failure to abide by the Court's scheduling orders; failure to 

respond to the Court's inquiries; failure to communicate with 

client); United States v. Martinez, 05-4825-cr (failure to abide by 

the Court's scheduling orders); United States v. Vasguez (Julio 

De LaCruz), 07-04841-cr (failure to abide by the Court's 

scheduling orders; failure to respond to the Court's inquiries; 

failure to communicate with client); 

2. 	 Conduct adversely reflecting on Mr. Warburgh's fitness as an 

attorney and unbecoming a member of the bar, in violation of 

F.RA.P. 46(c), 22 N.y'C.RR § 1200.3(A)(7), and Committee 

Rule 4: 

a. 	 see United States v. Bazuaye, 05-5389-cr (failure to abide 

by the Court's scheduling orders; failure to respond to the 

Court's inquiries; failure to communicate with client); 

United States v. Martinez, 05-4825-cr (failure to abide by 

the Court's scheduling orders); United States v. Delvi 

(Cordero), 04-4414-cr (failure to respond to the Court's 

inquiries); United States v. Vasquez (Julio De LaCruz), 

07-04841'cr (failure to abide by the Court's scheduling 

orders; failure to respond to the Court's inquiries; failure 

to communicate with client); and 

b. 	 Mr. Warburgh's failure to cooperate with the Committee's 

investigation. 

This Committee also finds, however, that the evidence is insufficient to find that Mr. 

Warburgh engaged in misconduct in United States v. Vasquez (De LaCruz), 04-14448-cr. There 

is insufficient evidence that Mr. Warburgh committed misconduct while representing the 

appellant before the Court. His client's complaint addresses alleged conduct committed after the 

case was remanded to district court. Additionally, his client has submitted a complaint to the 

New York State Bar Association, which is equipped to handle the complaint in the appropriate 

22947144v1 	 -7­
- -------------

fashion given the nature of when and where the alleged misconduct occurred. 

VII. Aggravating and Mitigating Factors 

In recommending discipline, the Committee has considered several aggravating factors. 

First, Mr. Warburgh has exhibited a pattern of misconduct and has committed multiple offenses. 

Second, Mr. Warburgh has failed to cooperate with the Committee's investigation, which 

constitutes both an independent basis for discipline and an aggravating factor. See ABA 

Standards § 9.22(e); Committee on Grievances of the United States District Court for the Eastern 

District ofNew York v. Feinman, 239 F.3d 498 (2d Cir. 2001) (discipline appropriate where 

attorney failed to cooperate with disciplinary proceeding). Third, Mr. Warburgh has failed to 

maintain timely registration in at least one other jurisdiction in which he is a member ofthe bar, 

the State ofNew York, where he maintains an office. 

Because Mr. Warburgh neither filed a response nor appeared before the Committee, the 

Committee is not aware of any specific mitigating factors that apply to the alleged misconduct. 

As noted above, however, Mr. Warburgh has generally advised that he has suffered from medical 

problems. Earlier this year, Mr. Warburgh mentioned orally to the former Secretary for this 

Committee that he was experiencing medical problems and intends to retire. Additionally, on 

various occasions Mr. Warburgh has advised the Court and the Clerk's Office that he has 

experienced medical problems. Specifically, Mr. Warburgh has advised the Clerk's Office that 

he suffers from pneumonia and bronchitis every winter and that he had melanoma one-and-a-half 

years ago. Mr. Warburgh advised that ifthe melanoma returns, it could be terminal. 

Also, in 2006, Mr. Warburgh submitted an affirmation to the Court indicating that he had 

severe medical problems in February through April 2006 that were interfering with his ability to 

work. Some ofthe allegations at issue, but not all, fall within that time period. 

In connection with the two cases currently pending before the Court, Mr. Warburgh also 

has advised of his retirement. By letter dated November 25,2008, this Committee confirmed 

with Mr. Warburgh that he is retiring due to age and health issues. 

Mr. Warburgh never has specifically detailed for this Committee, however, how and 

when the medical issues may have affected his ability to work, his mental state, and the other 

factors that the Committee is charged to consider. Consequently, the Committee is unable to 

fully evaluate whether Mr. Warburgh's medical problems mitigate the misconduct. Nevertheless, 

as this Committee advised Mr. Warburgh in its November 25, 2008 letter to him, his medical 

issues and pending retirement will be taken into account in reporting and making a 

recommendation to the Court. 

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VIII. Recommendation 

Mr. Warburgh's conduct clearly warrants discipline. He has repeatedly failed to abide by 

the Court's rules, failed to respond to the Court's inquiries, failed to communicate with clients, 

and neglected client matters. Because the Court made multiple attempts to contact Mr. 

Warburgh about the defaults in the above-described cases, it is clear that Mr. Warburgh had 

knowledge of the defaults. Therefore, the Committee finds that he knowingly failed to perform 

services for multiple clients and engaged in a pattern of neglect with respect to client matters 

causing serious or potentially serious injury to those clients. See ABA Standards 4.41(b), (c). 

What is more, Mr. Warburgh failed to cooperate with this Committee's investigation 

despite an extension of time to respond and multiple correspondence from the Committee 

inviting his participation. 

Finally, though Mr. Warburgh has advised that he has battled multiple health issues, the 

nexus between his health problems and the alleged misconduct is unclear. Further, despite 

specific requests from this Committee, Mr. Warburgh has declined to describe those problems in 

writing so that the Committee could assess his request for a second extension and consider his 

health issues as mitigating factors against the charges. 

Nevertheless, in light ofMr. Warburgh's long career, his battles with medical issues late 

in his career, and his intention to retire, this Committee stops short of recommending removal' 

from the bar of this court. See Committee Rule 6(a). Instead, this Committee recommends that 

Mr. Warburgh be permitted to withdraw from the Second Circuit Bar and be precluded from 

admission to the Second Circuit Bar in the future. This Committee recommends that this 

sanction be communicated to Mr. Warburgh by a letter of private reprimand from the Court, 

advising him of the findings and the sanction and offering him the opportunity to withdraw 

within sixty days ofthe date ofthat letter. This Committee further recommends that in the event 

that Mr. Warburgh declines to withdraw, Mr. Warburgh should be sanctioned by being remov~d 

from the bar ofthis Court. 

This sanction will serve to protect the public while acknowledging the presence of at least 

some mitigating factors. Additionally, this sanction takes into consideration the fact that, upon 

information and belief, Mr. Warburgh has not been sanctioned by this Court prior to the matters 

referenced herein. 

Respectfully submitted, 

Member of the Committee 

April 8, 2009 

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