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. 7 8 FOR Paul E. Warburgh: Paul 

### E. Warburgh, Esq., 9 Huntington, New York.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 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

21 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 31 

### 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."). 41 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 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

55

10

15

20

25

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. 22 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 

### 61 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 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

71 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." ). 8

### 1 2 3 4 5 6 7 8 9 

### 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 st 

### Dep't 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 9

### 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. 21 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 101 2 3 4 5 6 7 

### 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 11

### 1 2 3 4 5 6 

### 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 121 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 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 131 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). 6 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. 14

### 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 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

151 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 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

16

### 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 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

17

### 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 

### 16 17 18 19 20 21 22 23 24 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

18

### 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 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.

191 

### 2 3 4 5 6 7 8 9 10 11 12 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

201 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 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

211 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. 22Warburgh 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 23about 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 24and 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). 25had 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

26L 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 September7,2007,the United States CourtofAppeals for the Second Circuit (the "Court")referred Paul E. Warburgh to this Committee for investigation ofhis conductbeforethe Court and for preparation ofareport onwhetherhe shouldbe subjectto discipline or other corrective measures. The Committee issued an Order to ShowCause why it should notrecommend dis9jpline 

### andlorother corrective action against Mr. Warburgh based on the allegations inthe Court's Order. Mr. Warburgh has defaulted. Therefore, the Committeemay take summaryaction. Local F.R.A.P. 46(h)(3); Committee Rule 7(d). The following constitutesthe Committee's Report and Recommendationto impose discipline on Mr. Warburgh.

II. TheReferral Order The Courtreferred Mr. Warburghto the Committeeby order dated September7, 2007 (the "Referral Order"). The Referral Orderaddresses five separate matterspendingbefore.the Courtin 2005-2007 in whichMr. Warburgh was listed as counsel ofrecord: 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 Statesv. Vasquez (Julio De LaCruz), 07-04841-cr. MjUlyof the facts inthis Report and Recommendation are takendirectly from the Referral Order. Each matter involves neglect offiles, failure to abidebythe Court'srules, andlorfailure torespondtotheCourt'sinquiries.

### III. This Disciplinary Proceeding OnMarch21,2008,this Committee issued an Orderto Show CauseregardingMr. Warburgh's conduct as alleged in the Referral Order. The letterwas returnedbecauseMr. Warburgh had changed addresses. The Committee locatedhis newoffice address and senthim a new Orderto ShowCause onMarch 27, 2008. Mr. Warburgh'sresponse was due withinthirty days. By letterdated April 29, 2008, afterthe deadline for response hadpassed, Mr. Warburgh requested an extension oftimeto respond to the Orderto ShowCause. He indicatedthathe wouldbe able to respondbyJuly 2008. By letter ofMay 1,2008,the Committee extendedhis time to respond until May 12,2008. OnMay 21, 2008, Mr. Warburgh contactedthe then Secretaryforthe Committee, Amin Kassam, bytelephone and requested an additional extension. Mr. Kassam instructedMr. Warburghto puthis request and the reasons forthe request ina letterto the Committee. Mr. Warburgh did not do so. OnJune 10,2008,the Committee sentanotherletterto Mr. Warburgh, instructinghim that ifhedid notrespondbyJune 24, 2008, the Committee wouldproceedwithoutthe benefitof his response. The letter also advisedthathis failure to respond mayconstitute an independent basis for finding professional misconductSUbjecting himto disciplinary action. Inmid-October 2008, Terrence M. Connors, Esq., a memberofthis Committee, called Mr. Warburgh at his last knowntelephone number. Mr. Connors left a voicemail messagebut Mr. Warburgh did not return the call. This Committee's Secretary, ShanyaDingle, also has left twophonemessages for Mr. Warburghthathave gone unreturned. Despitethe mUltiple extensions oftime, multiple communicationsfrom this Committee, andthe passage ofover eightmonths sincehe was first served withthe Orderto ShowCause, to this date Mr. Warburghhas not submitted aresponse to the Orderto ShowCause.



### IV. Factual Background BecauseMr. Warburghhas not submitted aresponse, the following allegations are uncontested.

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### A. United Statesv. Bazuaye,05-5389-cr Mr. Warburghwas counsel for defendant-appellantinthis matter. OnNovember 8, 2005, the Courtentered a scheduling ordermaking appellant's briefdue onDecember28, 2005. On December 20, 2005,the Courtreceived a letter written by Mr. Warburgh's clientto Mr. Warburghreminding Mr. Warburghto informthe Courtthathis clienthad askedMr. Warburgh to withdrawas counseL OnMarch 21, June 7, andAugust21,2006,the Clerk's Office calledMr. Warburghto requestthathe eitherfile a motionto withdraw as counselorfile a motion for an extensionof time to file the briefwhichwas past due. OnNovember 3, 2006, the Courtdismissedthe appeal for failure to comply withthe scheduling order. OnNovember 17,2006,appellantmovedpro seto reinstate his appeal. Inhismotion, appellant statedthathe had asked Mr. Warburghto withdrawas counsel in December 2005 and that Mr. Warburghhad refusedto accepthis calls orreturn messages leftby workers at Mr. Bazuaye'splace ofincarceration. On February 15,2007,the Court granted the pro se motion and ordered thatMr. Warburgh file a motionto withdraw as counsel withinthirty days. Mr. Warburgh did notmovetowithdraw. OnMay 10,2007,the Courtrelieved Mr. Warburgh as counsel and ordered newcounsel appointed. Accordingtothe docket, appellant's new counsel briefed the appeal and thejudgmentwas affirmed.



### B. United Statesv. Martinez,05-4825-cr Mr. Warburghwas appointed counsel underthe Criminal Justice Act onNovember4, 2005. Mr. Warburghrequested and was granted an extension oftimeto file appellant'sbrief. The briefwasdue onDecember 8, 2005. On March 17.2006,the Clerk's Office left a message for Mr. Warburgh abouthis overduebrief. OnApril 24, 2006, the appeal was dismissed for failure to complywith the scheduling order. The same day, the Court senta letterto Mr. Warburghremindinghimofhis obligationunder Second CircuitLocal Rule4(b)(a) to continue representingthe appellantuntil relieved bythe Courtand directing Mr. Warburghto file, withintwenty days, either abriefand appendix or a stipulation withdrawing the appeal signed by his client, himself, and opposing counsel. The letteralso required him to explainhis conductandwarned that failure to comply would resultin a sua sponte dismissal ofMr. Warburgh as attorney ofrecord and issuance ofan orderto showcause whyhe should notbe disciplined. Mr. Warburgh did notrespond. OnJune 6, 2006, the Courtreinstated the appeal, relieved Mr. Warburgh as counsel, and orderedthatnewcounselbe appointed. OnJune 14, 2006, Mr. Warburgh filed an appendix, a motionfor an extension oftimeto file a brief, and an Andersbrief. In his affirmation in support ofhis motionfor an extension, Mr. Warburghexplainedthathe had been experiencing severe medical issues:

-3­ 22947144v1In Februaryofthis year, Ibecame illwithbilateralpneumoniaand I wasnotworking for several weeks andthenresumed workingpart-time. Aroundthe 1 stofMarch, 2006, Ihad extensive surgery for basal cell carcinomaand as Iwas recovering from this Iwas diagnosed with malignantmelanomawhich required immediate surgery. This surgery required anincision and 32 sutures. About a month laterIhadmore surgery for squamous cell carcinomaand another surgeryfor basal cell carcinoma. Iam now getting backto work atthe office andhave completed anAnders briefinthis case. Unfortunately, my latest illnesses and surgerieshave made it difficultto work. Therefore, Irespectfullyrequestleave to file the completedbriefand appendix inthiscase at a later date. Mr. Warburgh's affirmationdidnotaddress whyhe was unable to comply withthe original deadline ofDecember 8, 2005, or why he did notcurehis failure to complyinthetwo monthsbefore he allegesthathe became ill. The Court grantedthe extensionand ultimately grantedthe Andersmotion.



### C. United Statesv. Vasquez (De LaCruz),04-1448-cr Mr. Warburghtimelyfiled appellant'sbriefonMay 17,2004. OnJune 3, 2005,the Court remanded the matterto the districtcourtfor further proceedings (in the aftermathofUnited States v. Booker). OnJuly 21, 2006, Mr. Warburgh's clientrequestedthatthe Court appointnew counsel, allegingthatMr. Warburghrefusedto returnhis calls orprovidehimwith copies of documents. The clientalso stated thathe hadfiled a complaintwiththe NewYork State Bar Association.



### D. United Statesv. Delvi (Cordero), 04-4414-cr On January 10,2007,the Court dismissedthis appeal based on the beliefthat Mr. Warburghhadfailed to file a briefevenafterthe Clerk's Office hadcalledhimtwice regarding the default. Accordingto the Court'srecords, itis possible thatthebriefactually was filed and the dismissal was in error. Regardless,there is no evidencethatMr. Warburghmade any efforts to have the appeal reinstated. OnJune 13,2007,the Courtreinstatedthe appeal. According to the docket, Mr. Warburgh subsequently continuedto participateinthis matter. Thejudgmentwas affirmed on Apri115,2008.

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### E. United Statesv. Vasquez (JulioDe LaCruz),07-0841-cr OnMarch28, 2007, the Courtissued a scheduling orderrequiringthe record onappeal to be filed byApril 16, 2007, and appellant'sbriefto be filed by May 16, 2007. OnApril 11 and May 8, 2007, the Courtreceived letters from Mr. Warburgh's client statingthat Mr. Warburgh refusedto communicate withhim and repeatedlythreatenedhis motherwithwithdrawal from the matterifshe did notpayhim (eventhough she reportedlyhad paidhimher life savings). The

. Clerk's Office forwarded the lettersto Mr. Warburgh with a coverletter instructinghim to senda copyofhisresponse to the Court. Mr. Warburgh didnotrespondto the Court'sinquiry, nordidhe file abrief. On December6, 2007, the Court dismissed the appealfor failure to complywiththe scheduling order.



### F. CurrentRegistration Status Mr. Warburghwas admitted to practicebeforethe CourtonApril 11, 1972. Accordingto the Clerk's Office, Mr. Warburghcurrentlyhas two cases pendingbefore the Court, United States v. Geronimo (Panitz), 08-0190-cr, andUnited States v. Grullon, 08-4634-cr. Inthe former, Mr. Warburgh has indicated thathe intends towithdrawthe appeal. In the latter, Mr. Warburghhas filed a motionto be relieved as counsel due to his allegedretirement. Notably, Mr. Warburgh'sregistration as amemberofthe NewYork State Baris not current. Hewas admitted tothebar ofNewYork Statebythe Appellate Division, Second Department, in 1970. Hisregistration lapsed in February 2008.



### V. Legal Standard Underthe Rules ofthe Committee onAdmissions and Grievances for the United States CourtofAppeals for the Second Circuit ("CommitteeRules"), An attorneymaybe subjectto discipline or othercorrective measures for any act or omissionthatviolates therules ofprofessionalconductorresponsibility ofthe state or otherjurisdictionwherethe attorneymaintainshis orherprincipal office.

. .. An attorney also maybe subjectto discipline orother corrective measures for any failure to complywith a Federal Rule ofAppellate Procedure, a Local Rule ofthe Court, an order or otherinstruction ofthe Court, or arule ofprofessional conductorresponsibility ofthe Court, oranyotherconductunbecoming a memberofthe bar. CommitteeRule 4; see also F.R.A.P. 46(c) ("acourtofappeals maydiscipline an attorneywho practicesbefore itfor conductunbecoming a member ofthebarorfor failure to complywithany courtrule").

22947144v1 -5­"Conductunbecoming amemberofthe bar" includes "conductcontrarytoprofessional standards that shows an unfitnessto discharge continuing obligations to clients orthe courts, or conductinimical tothe administration of justice. More specific guidance is providedby case law, applicable courtrules, and 'the lore ofthe profession,' as embodied in codes ofprofessional conduct." Inre: Snyder, 472 U.S. 634, 645, 105 S.Ct2874,2881 (1985). Because Mr. Warburgh was a memberofthe barofNewYork State during thetime period atissue, the NewYork State Code ofProfessional Responsibility ("the Code") also applies. Two sections are ofparticularrelevance in this matter. First, the Code states that a lawyer shall not "[n]eglect a legal matter entrustedto the lawyer." See DR6-101(A)(3); 22 N.Y.C.R.R. § 1200.30(A)(3). Second, the Code prohibits conductthat "adverselyreflects onthe lawyer's fitness as a lawyer." DR 1-102(A)(7); 22 N.Y.C.R.R. § 1200.3(A)(7). Accordingto this Committee'srules, "[a]ny finding that an attorney has engaged in misconduct oris otherwise subjectto corrective measures mustbe supported by clearand convincing evidence." Committee Rule 7(h). 

### Ifan attorneyhas beenfound to have engaged inmisconduct, this Committeemay recommend to the Court's Grievance Panel thatthe attorney be: (a) removed from the barofthe Court, (b) ifnota member ofthe baroftheCourt, precludedfrom becominga memberorfrom appearing in future cases inthe Court, (c) suspended from practice before the Court, for either an indefinite ora specified period oftime, (d) publicly orprivatelyreprimanded, (e) monetarily sanctioned, 

### (0 removed from the Court'spro bono or Criminal Justice Actpanels, (g) referred to anotherdisciplinarycommittee, bar association, law enforcement agency, orother agency ororganization, (h) subjectto the supervision ofa special master, orreceive some form of counseling ortreatment by an appropriately certified person, or (i) subjectto such otherdisciplinary or corrective measures as the circumstancesmay warrant, includingany combinationofthe precedingpossible actions. Committee Rule 6(a)-(i). The following factors are considered inrecommending discipline: (a) the duty violated; (b) the lawyer'smental state; (c) the potential oractual injury causedbythe lawyer'smisconduct; and (d) the existence ofaggravating ormitigating factors. American BarAssociation, Standards for Imposing Lawyer Sanctions ("ABA Standards") (C)(3.0). Formisconductthat involves a lack ofdiligence, disbarmentis generallyconsidered appropriate when, among otherthings, "alawyerknowingly fails to perform services for a client"

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### and/or "engages in apattern ofneglect with respect to clientmatters" and "causes serious or potentially serious injuryto aclient." Id. 4.41(b), (c).



### VI. TheAlleged Misconduct In

### the absence ofaresponse from Mr. Warburgh, it is establishedby clearand convincing evidencethatMr. Warburgh engaged inthe following misconduct: 1. 

### Neglectoflegal matters and failure to complywith courtrules, inviolationofF.RA.P. 46(c), 22 N.Y.C.RR

. § 1200.30(A)(3), and Committee Rule 4; see United Statesv. Bazuaye, 05-5389-cr (failure to abidebythe Court's schedulingorders; failure to respond to the Court's inquiries; failure to communicate with client); United Statesv. Martinez, 05-4825-cr (failure to abideby the Court's schedulingorders); United Statesv. Vasguez (Julio De LaCruz), 07-04841-cr (failure to abidebythe Court's schedulingorders; failure to respond to the Court's inquiries; failure to communicatewith client); 2. Conduct adverselyreflectingonMr. Warburgh'sfitness as an attorney and unbecoming a memberofthebar, inviolationof F.RA.P. 46(c), 22 N.y'C.RR § 1200.3(A)(7), and Committee Rule 4:

a. see United Statesv. Bazuaye, 05-5389-cr (failure to abide bythe Court's scheduling orders; failure torespond to the Court's inquiries; failure to communicatewith client); United Statesv. Martinez, 05-4825-cr (failure to abide by the Court's schedulingorders); United Statesv. Delvi (Cordero), 04-4414-cr (failure torespondto the Court's inquiries); United Statesv. Vasquez (Julio De LaCruz), 07-04841'cr (failure to abidebythe Court's scheduling orders; failure to respond to the Court'sinquiries; failure to communicatewith client); and b. Mr. Warburgh's failure to cooperate with the Committee's investigation. This Committee also finds, however, thatthe evidence is insufficientto find thatMr. Warburgh engaged in misconductin United Statesv. Vasquez (De LaCruz), 04-14448-cr. There is insufficient evidencethat Mr. Warburgh committed misconductwhile representing the appellantbeforethe Court. His client's complaint addresses alleged conduct committed afterthe case was remanded to district court. Additionally, his clienthas submitted acomplaintto the New York State BarAssociation, which is equippedto handle the complaintinthe appropriate

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fashion giventhe nature ofwhen and where the alleged misconduct occurred.



### VII. Aggravatingand Mitigating Factors In recommendingdiscipline, the Committeehas considered several aggravating factors. First, Mr. Warburghhas exhibited apatternofmisconduct andhas committed multiple offenses. Second, Mr. Warburgh has failed to cooperate withthe Committee'sinvestigation, which constitutesboth an independentbasisfor discipline and anaggravating factor. SeeABA Standards 

### § 9.22(e); Committee onGrievances ofthe United States DistrictCourtfor the Eastern District ofNewYorkv. Feinman, 239 F.3d 498 (2d Cir. 2001) (discipline appropriate where attorneyfailed to cooperate withdisciplinaryproceeding). Third, Mr. Warburghhas failed to maintain timely registration in at least one otherjurisdictioninwhichhe is a memberofthe bar, the State ofNewYork, where he maintains an office. BecauseMr. Warburghneitherfiled a response nor appearedbefore the Committee, the Committeeis not aware ofany specific mitigating factors that applytothe allegedmisconduct. As noted above, however, Mr. Warburghhas generally advisedthat he has suffered from medical problems. Earlierthis year, Mr. Warburghmentioned orallytothe former Secretary for this Committeethathewas experiencingmedical problems andintendsto retire. Additionally, on various occasionsMr. Warburghhas advised the Courtandthe Clerk's Officethathehas experiencedmedical problems. Specifically, Mr. Warburghhas advisedthe Clerk's Officethat he suffers from pneumoniaandbronchitis everywinter andthathe had melanomaone-and-a-half years ago. Mr. Warburgh advisedthat ifthe melanomareturns, itcouldbeterminal. Also, in2006, Mr. Warburgh submitted an affirmationto the Courtindicatingthathe had severe medical problems in FebruarythroughApril 2006thatwere interfering withhis abilityto work. Some ofthe allegations at issue, butnot all, fall withinthattime period. In connectionwiththetwo cases currentlypendingbeforethe Court, Mr. Warburghalso has advised ofhisretirement. Byletter datedNovember25,2008,this Committee confirmed with Mr. Warburghthathe is retiring due to age and health issues. Mr. Warburgh neverhas specificallydetailedfor this Committee, however, howand whenthe medical issues mayhave affectedhis abilityto work, his mental state, and the other factors thatthe Committee is chargedtoconsider. Consequently, the Committee is unable to fully evaluate whetherMr. Warburgh's medicalproblems mitigatethemisconduct. Nevertheless, asthis Committee advisedMr. Warburgh in itsNovember 25, 2008 letterto him, hismedical issues andpendingretirementwill be takeninto accountinreporting and making a recommendationto the Court.

-8­ 22947144v1VIII. Recommendation Mr. Warburgh's conduct clearlywarrants discipline. He has repeatedlyfailed to abide by the Court'srules, failed to respondto the Court's inquiries, failed to communicate with clients, and neglected clientmatters. Becausethe Court made multiple attempts to contactMr. Warburgh aboutthe defaults in the above-described cases, it is clearthatMr. Warburgh had knowledge ofthe defaults. Therefore, the Committee finds thathe knowingly failed to perform services for multiple clients and engaged in apattern ofneglect withrespectto clientmatters causing serious orpotentially 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 oftime to respond and multiple correspondence from the Committee inviting his participation. Finally, though Mr. Warburghhas advisedthathe has battled multiple health issues, the nexus betweenhis health problems and the alleged misconduct is unclear. Further, despite specificrequests from this Committee, Mr. Warburghhas declined to describe those problems in writing so thatthe Committee could assess his request for a second extension and considerhis health issues as mitigating factors againstthe charges. Nevertheless, in light ofMr. Warburgh's long career, his battles withmedical issues late in his career, and his intentionto retire, this Committee stops short ofrecommending removal' from the bar ofthis court. See CommitteeRule 6(a). Instead, this Committeerecommends that Mr. Warburghbe permittedto withdraw from the Second Circuit Bar and be precluded from admissionto the Second Circuit Bar in the future. This Committeerecommends thatthis sanctionbe communicatedto Mr. Warburghbya letter ofprivatereprimand from the Court, advising him ofthe findings and the sanction and offering him the opportunityto withdraw within sixty days ofthedate ofthatletter. This Committee further recommends that in the event that Mr. Warburgh declines to withdraw, Mr. Warburgh shouldbe sanctionedby being**remov~d** from the bar ofthis Court. This sanction will serveto protectthe public while acknowledging the presence ofat least some mitigating factors. Additionally, this sanctiontakes into considerationthe fact that, upon information and belief, Mr. Warburghhas not been sanctionedby this Courtpriorto the matters referenced herein. Respectfully submitted,

Member ofthe Committee April 8, 2009

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