08-9002-am, 07-9064-am

In re Hector M. Roman

1 

### UNITED STATES COURT OF APPEALS 2 3 

### FOR THE SECOND CIRCUIT 4 5 August Term, 2009 6 7 8 (Decided: April 6, 2010) 9 10 Docket Nos. 08-9002-am, 07-9064-am 11 12 13 14 15

______________________________________________________ 16 17 18 In re Hector M. Roman, 19 20 Attorney. 21 22 23

______________________________________________________ 24 25 26 Before: Cabranes, Sack, and Wesley, Circuit Judges. 27 28 This Court’s Committee on Admissions and Grievances (“the 29 Committee”) has recommended that Hector M. Roman, an attorney 30 admitted to the bar of this Court, be disciplined. We adopt the 31 Committee’s findings of fact, publicly reprimand Roman for the 32 misconduct described in the Committee’s report, reciprocally 33 suspend him for a six-month period based on a prior suspension 34 imposed by the United States Court of Appeals for the Ninth 35 Circuit, and suspend him for an additional one-month period based 36 on his misconduct in this Court. 37 38 Hector M. Roman, Esq., New 39 York, N.Y., pro se. 402 1 PER CURIAM : 2 By order filed in November 2007, this panel referred Hector 3 M. Roman to this Court’s Committee on Admissions and Grievances 4 (“the Committee”) for investigation of the matters described in 5 that order and preparation of a report on whether he should be 6 subject to disciplinary or other corrective measures. 7 Supplemental referral orders were filed in April 2008. 8 During the Committee’s proceedings, Roman had the opportunity 9 to address the matters discussed in the Court’s referral order, to 10 testify under oath at a hearing held in December 2008, and to 11 present post-hearing supplementary materials. Roman represented 12 himself during the Committee’s proceedings. Presiding over the 13 hearing were Committee Chair Mary Jo White, Esq., and the 14 Honorable Howard A. Levine. In January 2009, the Committee filed 15 with the Court the record of the Committee’s proceedings and its 16 report and recommendations. Thereafter, the Court provided Roman 17 with a copy of the Committee’s report, and Roman filed a response 18 in April 2009. 19 In its report, the Committee concluded: (a) Roman was subject 20 to reciprocal discipline, pursuant to Second Circuit Local Rule 21 46.1(f), based on the prior imposition of discipline by the United 22 States Court of Appeals for the Ninth Circuit; and (b) as a 23 separate matter, Roman was subject to discipline for his behavior 24 in this Court, based on clear and convincing evidence that he had 25 engaged in conduct “unbecoming a member of the bar” within the3 1 meaning of Federal Rule of Appellate Procedure 46(c). SeeReport 2 at 12-15. After finding various aggravating and mitigating 3 factors, see id. at 7, 9, 11, 12, 14, 15, the Committee 4 recommended that Roman be suspended from practice before this 5 Court for a three-month period, based on both the Ninth Circuit’s 6 suspension and his conduct before this Court, with each basis 7 operating as an independent ground for the recommended suspension, 8 see id. at 15. In response, Roman states that he does not contest 9 the Committee’s recommendation that he be suspended for three 10 months based on the Ninth Circuit suspension, but asks that the 11 suspension not be based on his conduct before this Court. 12 Response at 3-8. 13 Upon due consideration of the Committee’s report, the 14 underlying record, and Roman’s response, we adopt the Committee’s 15 factual findings concerning Roman’s Ninth Circuit suspension and 16 his misconduct in this Court. We also adopt the Committee’s 17 conclusions that Roman’s Ninth Circuit suspension warrants 18 reciprocal suspension by this Court and that his separate 19 misconduct in this Court was sufficiently serious that it warrants 20 independent disciplinary action. However, for the reasons 21 discussed below, we impose disciplinary sanctions that differ 22 somewhat from those recommended by the Committee. 23 Reciprocal Discipline 24 Former Second Circuit Rule 46.1(f) governed this Court’s 25 reciprocal discipline procedures until January 1, 2010, when it4 1 was superseded by current Second Circuit Local Rule 46.2(c). We 2 need not decide which version of the rule governs Roman’s case, 3 since the same result is reached under both versions. Former 4 Local Rule 46.1(f), in pertinent part, provided as follows: 5 (1) In all cases in which an order disbarring an 6 attorney or suspending the attorney from practice ... 7 has been entered in any other court of record, federal 8 or state, ... the clerk shall enter an order for the 9 court ... disbarring the attorney or suspending the 10 attorney from practice in this court upon terms and 11 conditions comparable to those set forth by the other 12 court of record. 13 14 (2) Within [a specified time period], a motion may be 15 filed in this court either by such attorney or the 16 Committee for a modification or revocation of the order 17 of this court. Any such motion shall set forth 18 specifically the facts and principles relied on by 19 applicant as showing cause why a different disposition 20 should be ordered by this court. 21 22 Former Second Circuit Rule 46.1(f)(1)-(2). Current Local Rule 23 46.2(c), in pertinent part, provides as follows: 24 (2) Reciprocal Order. When the court receives a copy of 25 an order entered by an attorney disciplinary authority 26 disbarring or suspending an attorney from practice, the 27 clerk enters an order disbarring or suspending the 28 attorney from practice before this court on comparable 29 terms and conditions. 30 31 (3) Motion to Modify or Vacate. Within [a specified time 32 period], the attorney may move to modify or vacate the 33 order. 34 35 Second Circuit Local Rule 46.2(c)(2)-(3). 36 Although this Court has not yet explicitly ruled on the 37 issue, we now make clear that former Local Rule 46.1(f) and 38 current Local Rule 46.2(c) reflect a rebuttable presumption that 39 the reciprocal discipline imposed by this Court will be identical5 1 – or as close to identical as our rules and the circumstances 2 permit – to the discipline imposed by the prior court or other 3 disciplinary authority. This presumption, although not explicitly 4 referred to as such, has long guided this Court’s reciprocal 5 discipline practice and is consistent with the practice of other 6 circuits. See In re Williams, 398 F.3d 116, 119-20 (1 Cir. st 7 2005) (“Given the limited nature of our inquiry, the norm will be 8 for this court to impose discipline which is substantially similar 9 to that imposed by the state court”; also noting that the court’s 10 disciplinary rule requires imposition of “substantially the same 11 discipline as was imposed by the original court”); In re Kramer, 12 282 F.3d 721, 727 (9 Cir. 2002) (“we inquire only whether the th 13 punishment imposed by another disciplinary authority or court was 14 so ill-fitted to an attorney's adjudicated misconduct that 15 reciprocal disbarment would result in grave injustice”); In re 16 Fallin, 255 F.3d 195, 197 (4 Cir. 2001) (court presumes, th 17 pursuant to explicit language of local rule, that reciprocal 18 discipline will be identical to original discipline); In re Hoare, 19 155 F.3d 937, 940 (8 Cir. 1998) (“Although a state court th 20 disciplinary action is not conclusively binding upon the federal 21 judiciary, federal courts are nevertheless obliged to accord a 22 high level of deference to state court disbarment proceedings. 23 Thus, when a district court learns that a member of its bar has 24 been subject to discipline by another jurisdiction, the identical 25 discipline is typically imposed.”)(citations omitted). See alsoThe Supreme Court’s seminal decision concerning reciprocal 1 discipline, Selling v. Radford, reflects a similar presumption – the Court stated that it would “recognize the condition created by the judgment of the state court” – i.e. , the state court’s finding that the attorney lacked “fair private and professional character, without the possession of which there could be no possible right to continue to be a member of [the Supreme Court’s] Bar” – unless the attorney demonstrated to the contrary. 243 U.S. 46, 50-51 (1917). However, while the Supreme Court suggested that the state disbarment in that case would be followed by Supreme Court disbarment if the attorney did not meet his burden, the Court did not explicitly discuss whether the presumption covered both the finding of poor character and the severity of the discipline. The state court’s finding of misconduct in Selling, if not successfully challenged, may have required Supreme Court disbarment even without a presumption concerning the severity of discipline. 6 1 ABA Model Rules for Lawyer Disciplinary Enforcement, R. 22(D) 2 (2002) (providing that court “shall impose the identical 3 discipline” as the prior jurisdiction, unless certain criteria are 4 satisfied, and that “[t]he burden is on the party seeking 5 different discipline ... to demonstrate that the imposition of the 6 same discipline is not appropriate”); ABA Model Federal Rules of 7 Disciplinary Enforcement, R. II(D) (1978, 1991) (providing for 8 identical discipline unless certain criteria are satisfied). 1 9 Furthermore, the disciplined attorney bears the burden of 10 demonstrating, by clear and convincing evidence, that a different 11 disposition would be appropriate (unless the Committee, or the 12 Court itself, moves for modification or revocation). See In re 13 Friedman, 51 F.3d 20, 22 (2d Cir. 1995) (applying burden of proof 14 in context of appeal from district court’s imposition of 15 reciprocal discipline). An attorney seeking to demonstrate either 16 that reciprocal discipline should not be imposed at all or that7 1 the “terms and conditions” of the reciprocal discipline should not 2 be “comparable” to those imposed by the other attorney 3 disciplinary authority, Second Circuit Rule 46.2(c)(2); Former 4 Second Circuit Rule 46.1(f)(1), must satisfy the standard set 5 forth in Selling v. Radford, 243 U.S. 46 (1917), which requires 6 the attorney to show: 7 1. [t]hat the . . . procedure [used by the prior court] 8 from want of notice or opportunity to be heard, was 9 wanting in due process; 2, that there was such an 10 infirmity of proof as to facts found to have established 11 the want of fair private and professional character as 12 to give rise to a clear conviction on our part that we 13 could not, consistently with our duty, accept as final 14 the conclusion on that subject; or 3, that some other 15 grave reason existed which should convince us that to 16 allow the natural consequences of the judgment to have 17 their effect would conflict with the duty which rests 18 upon us not to disbar [or impose any other disciplinary 19 sanction imposed by the prior court] except upon the 20 conviction that, under the principles of right and 21 justice, we were constrained so to do. 22 23 Selling, 243 U.S. at 51. In sum, the Selling standard bars 24 reciprocal discipline when the Court finds “(1) absence of due 25 process in the [prior disciplinary] procedure, (2) substantial 26 infirmity in the proof of lack of private and professional 27 character, or (3) ‘some other grave reason’ sufficient to indicate 28 that reciprocal disbarment [or other reciprocal discipline] [i]s 29 inconsistent with ‘principles of right and justice.’” In re 30 Tidwell , 295 F.3d 331, 333-34 (2d Cir. 2002)(quoting Selling, 31 supra ). 32 As noted in In re Edelstein , 214 F.3d 127 (2d Cir. 2000), 33 several other courts have supplemented the Selling criteria with a8 1 fourth reason for not imposing reciprocal discipline – namely, 2 that a reciprocal order should not issue if an attorney’s 3 misconduct warrants “substantially different discipline” than that 4 imposed by the court that imposed the original discipline. 5 Edelstein, 214 F.3d at 131-32 (quoting Rule of Disciplinary 6 Enforcement of the Court of Appeals for the First Circuit 7 II(D)(4)). We treat the noted fourth category as subsumed by the 8 “grave reason” category set forth in Selling. See id. at 132 9 (noting the fourth ground for relief considered by some courts but 10 relying on Selling to conclude that no “grave reason” warranted 11 revoking an order of reciprocal discipline); cf. Kramer, 282 F.3d 12 at 727-28 (rejecting argument that original disbarment constituted 13 excessive punishment and concluding that reciprocal disbarment 14 would not result in grave injustice); see also Theard v. United 15 States, 354 U.S. 278, 282 (1957) (finding state court disbarment 16 decision “brings title deeds of high respect ... [b]ut it is not 17 conclusively binding on the federal courts,” and concluding that 18 federal court disbarment in that case was foreclosed by the “grave 19 reason” prong of Selling). 20 Although Selling addressed reciprocal discipline imposed by a 21 federal court based on a state court’s prior disciplinary 22 decision, we have found it equally applicable to a federal court’s 23 imposition of reciprocal discipline based on another federal 24 court’s prior disciplinary decision. See Edelstein , 214 F.3d at 25 131-32. Thus, it applies here.9 1 Since Roman does not contest the process he received in the 2 Ninth Circuit or allege an infirmity of proof, we now consider 3 only whether it has been demonstrated that some “grave reason” 4 prohibits the imposition of a six-month reciprocal suspension. In 5 doing so, we do not determine de novo what sanction the Ninth 6 Circuit should have imposed; instead, we accord great deference to 7 the Ninth Circuit’s determination. See, e.g. , Theard, 354 U.S. at 8 282; Edelstein, 214 F.3d at 132; Williams, 398 F.3d at 119-20; 9 Kramer, 282 F.3d at 727-28; Hoare, 155 F.3d at 940. 10 In the present case, Roman raised several arguments in 11 support of his position that this Court should not impose the same 12 discipline as the Ninth Circuit. The Committee rejected one of 13 his arguments, agreed with three others, and independently found 14 that five additional mitigating factors warranted a suspension of 15 three months, rather than a six-month suspension matching the term 16 imposed by the Ninth Circuit. SeeReport at 13-14. Notably, the 17 Committee found that none of the arguments made by Roman raised a 18 “grave reason” justifying a departure from the practice of 19 imposing reciprocal discipline. See id. at 14. We concur in the 20 Committee’s rejection of Roman’s argument that his purchase of 21 case management software remedied the problems cited by the Ninth 22 Circuit. See id. However, for the following reasons, we do not 23 believe that the remaining factors constitute a grave reason 24 justifying a different suspension term. 25 First, many or most of the cited factors were considered by10 1 the Ninth Circuit when it determined that a six-month suspension 2 was appropriate, and there is no indication that the weight 3 accorded to them by the Ninth Circuit was so inadequate as to 4 present a grave reason justifying departure from that sanction. 5 See In re Roman, 05-80100, Report of Appellate Commissioner, at 6 32-33, 34-35 (9 Cir. Jan. 23, 2007) (discussing mitigating th 7 factors), Order Adopting Report (9 Cir. Mar. 30, 2007). th 8 Second, the fact that the New York State reciprocal order 9 based on the Ninth Circuit’s order only imposed a public censure, 10 not a suspension, is of limited persuasive value. Although the 11 New York State courts generally give deference to the court that 12 imposed the original discipline, they do not apply the Selling 13 “grave reason” standard when determining the appropriate form of 14 reciprocal discipline. See, e.g. , In re Whitehead, 37 A.D.3d 86, 15 88 (1 Dep’t 2006) (“In deciding on the appropriate sanction in st 16 reciprocal discipline matters, it is generally accepted that the 17 state where the misconduct occurred has the greatest interest in 18 the sanction imposed. However, when the sanction in the home 19 state deviates significantly from our precedent, this Court has 20 departed from that general policy of deference.”) (citations 21 omitted); In re Lever, 60 A.D.3d 37, 44 (1st Dep't 2008) 22 (“Although ... this Court in a reciprocal disciplinary proceeding 23 will often defer to the sanction initially imposed by a foreign 24 jurisdiction, our precedents are equally clear that we are not 25 bound by that sanction, and may impose a more severe penalty if11 1 the circumstances warrant.”); In re Marshall , 67 A.D.3d 1122, 1123 2 (3d Dep’t 2009)(“this Court is not required to adhere to the 3 disciplinary sanction imposed by the foreign jurisdiction and may 4 impose a greater or lesser sanction”). In any event, the New York 5 State order contains no facts or reasoning that would justify, 6 under Selling,a sanction different than that imposed by the Ninth 7 Circuit. See In re Roman , 48 A.D.3d 25, 28-29 (2d Dep’t 2007). 8 Third, we do not consider Roman’s misconduct before the Ninth 9 Circuit to have occurred at such a remote time in the past that it 10 renders reciprocal discipline at the current time unjust. Both 11 the Ninth Circuit Appellate Commissioner’s report and Roman’s 12 submissions in the present matter indicate that the Ninth 13 Circuit’s suspension was based on misconduct occurring in and 14 after 2003 and that much of the misconduct involved cases filed in 15 2004, 2005 and 2006. See In re Roman , 05-80100, Report of 16 Appellate Commissioner, at 12-18, 24-29; In re Roman , 07-9064-am 17 (2d Cir.), Roman’s May 2008 Response to Order to Show Cause, at 38 18 ¶ 20 (dating Ninth Circuit “problems” to 2003 through 2006). 19 Because the mitigating factors in this case, considered 20 together, do not amount to a grave reason justifying a suspension 21 different than that imposed by the Ninth Circuit, we impose a six22 month reciprocal suspension. 23 Roman’s Misconduct in this Court 24 We concur with the Committee’s recommendation that a period 25 of suspension also is appropriate for Roman’s misconduct in this12 1 Court. Lesser sanctions, such as a public or private reprimand or 2 censure, would require either less egregious misconduct or greater 3 mitigating factors. See, e.g. , In re Liu, 07-9065-am, 282 Fed. 4 Appx. 7, 7-8 (2d Cir. May 27, 2008) (although conduct at issue 5 “generally would warrant a significantly greater sanction,” public 6 censure was imposed instead, based on mitigating factors and 7 imposition of other, onerous corrective measures); cf. In re 8 Flannery, 186 F.3d 143, 146-49 (2d Cir. 1999) (imposing, on four 9 attorneys, discipline ranging from monetary sanctions and public 10 censure to two-year suspension for causing dismissal of clients’ 11 direct criminal appeals by failing to file briefs and ignoring 12 subsequent orders to show cause why discipline should not be 13 imposed). 14 We acknowledge Roman’s argument that his misconduct in this 15 Court “stemmed from the same set of facts and circumstances which 16 led to the original suspension” in the Ninth Circuit. Response to 17 Committee Report at 3, 5, 7, 8. Although different cases and 18 courts were involved, we understand this argument to mean that the 19 same case management deficiencies led to Roman’s problems in both 20 circuits. We agree, but only in part. As noted by the Committee, 21 several instances of misconduct in this Court post-dated the Ninth 22 Circuit’s November 2005 order to show cause why he should not be 23 disciplined for certain similar misconduct in that court. See 24 Report at 14-15. Moreover, neither the Ninth Circuit’s analysis 25 nor logic suggests that the Ninth Circuit’s sanction was intended13 1 to cover, or should cover, any misconduct other than that 2 discussed in the Ninth Circuit’s order. In fact, it is quite 3 possible that, had the Ninth Circuit been aware of Roman’s 4 additional misconduct in this Court, a longer suspension would 5 have been imposed. Thus, we do not see complete overlap between 6 the conduct addressed by the Ninth Circuit and that addressed in 7 this order. Additionally, the fact that Roman continued to engage 8 in misconduct in this Court after being put on notice by the Ninth 9 Circuit about similar misconduct constitutes a significant 10 aggravating factor. 11 We also are disturbed by Roman’s misrepresentations to this 12 Court when he (a) permitted others to sign his name to pleadings 13 that he failed to review prior to their filing in this Court, and 14 (b) permitted materially inaccurate information to be submitted to 15 the Court in those pleadings. Although Roman stated that he 16 “wasn’t very aware of what was going on,” Hearing Tr. at 27:25, we 17 believe that he either knew of the misrepresentations, or was 18 guilty of reckless disregard, since he knew that the cases existed 19 and knew that they could not proceed to briefing and decision 20 without the input, and signature, of counsel of record. SeeFed. 21 R. App. P. 32(d) (“Every brief, motion, or other paper filed with 22 the court must be signed by the party filing the paper or, if the 23 party is represented, by one of the party’s attorneys.”). Far too 24 many cases were involved, and far too much time passed, for any 25 reasonable attorney to claim that he did not know how his cases14 1 were advancing to final decision. Finally, we also find that the 2 other mitigating factors in this case do not present the type of 3 extraordinary circumstances that might warrant divergence from the 4 sanction called for by Roman’s misconduct. 5 Due to the partial overlap between the misconduct in the two 6 circuits, we do not impose a lengthy term of suspension in 7 addition to that imposed by the Ninth Circuit. However, we find 8 that the lack of complete overlap warrants a consecutive, rather 9 than concurrent, additional suspension. We believe that the 10 additional, consecutive, term of suspension should be one month, 11 for a total suspension term of seven months. 12 Conclusions 13 Upon due consideration, it is hereby ORDERED that, except as 14 noted above, the Committee’s findings and recommendations are 15 adopted by the Court, and Roman is PUBLICLY REPRIMANDED and 16 SUSPENDED from practice before this Court for a period of seven 17 months, based on the misconduct described in the Committee’s 18 report. The suspension period will commence on the date of filing 19 of this order. It is further ORDERED that Roman communicate with 20 his clients in all of his pending cases, as specified in the 21 Committee’s report. SeeReport at 15, Conclusion, ¶ 2. 22 The text of this panel’s November 2007 and April 2008 orders 23 and the Committee’s report are appended to, and deemed part of, 24 the present order for the following disclosure purposes. Roman 25 must disclose this order to all clients in cases currently pendingSeeSecond Circuit Docket Nos. 00-4048; 04-1362 2 (reinstatement motion denied); 04-1928; 04-1993; 04-2564; 04- 2750; 04-3851; 04-4350; 04-4701; 04-4881, 04-5939; 04-6137 (reinstatement motion granted); 04-6590 (extension motion filed one day after due date for brief; reinstatement motion granted); 15 1 in this Court and to all courts and bars of which he is currently 2 a member, and as required by any bar or court rule or order. 3 Furthermore, the Clerk of Court is directed to release this order 4 to the public by posting it on this Court’s web site and providing 5 copies to members of the public in the same manner as all other 6 published decisions of this Court, and to serve a copy on Roman, 7 this Court’s Committee on Admissions and Grievances, the attorney 8 disciplinary committee for the New York State Appellate Division, 9 Second Department, the Executive Office for Immigration Review, 10 the bars and courts listed on page 15 of the Committee’s report, 11 and all other courts and jurisdictions to which this Court 12 distributes disciplinary decisions in the ordinary course. 13 14 APPENDIX 1 15 Text of November 2007 order 16 17 For the reasons that follow, Hector M. Roman is referred to 18 this Court’s Committee on Admissions and Grievances for 19 investigation of the matters described below and preparation of a 20 report on whether he should be subject to disciplinary or other 21 corrective measures. SeeSecond Circuit Local Rule 46(h). We 22 express no opinion here as to an appropriate disposition. The 23 Committee may, of course, in the first instance, determine the 24 appropriate scope of its investigation. 25 26 Since September 2005, this Court has dismissed at least 24 of 27 the 71 petitions for review for which Roman was counsel of record, 28 based on Roman’s failure to comply with this Court’s scheduling 29 orders. Additionally, where Roman has moved to reinstate 205-1000 (reinstatement motion denied); 05-1679; 05-2587; 05-5463

(reinstatement motion denied); 05-6413; 06-0920; 06-3471 (reinstatement motion granted); 06-3681; 06-5157 (reinstatement motion denied); 06-5229; and 06-5264. See also 04-4881 (dismissed for failure to file form C/A). 16 1 petitions, he has often relied on the same excuse for failing to 2 comply with the applicable scheduling orders: that he had not 3 received a copy of the scheduling order or had not received a 4 response to his motion for an extension of time. See, e.g. , 5 Villa-Castano v. Board of Immigration Appeals (“BIA”),04-3851-ag, 6 motion filed Dec. 21, 2005; Nirmal Singh v. BIA, 04-6137-ag, 7 motion filed May 2, 2006; Sarbjit Kaur v. BIA, 04-4881-ag, motion 8 filed Jan. 10, 2007; Mehmi v. Gonzales, 06-3471-ag, motion filed 9 Dec. 26, 2006; Deol v. Gonzales, 06-5157-ag, motion filed Mar. 20, 10 2007. However, as this Court noted in Villa-Castano, Roman either 11 knew, or likely knew, that scheduling orders existed in the above12 cited cases, see Villa-Castano,04-3851-ag, order filed Dec. 28, 13 2005, and, in any event, he never explained in any of his motions 14 for extensions of time or reinstatement why he had failed to 15 ascertain the status of his motions, or the appeals themselves, 16 despite the passage of long periods of time. 17 18 In March 2007, this Court ordered Roman to provide this Court 19 with a list of cases in which he had filed a motion to reinstate 20 on behalf of petitioners after the cases had been dismissed for 21 any reason. See Ranjit Singh v. BIA, 05-5463-ag, order filed Mar. 22 23, 2007. Although Roman did so, he failed to list the cases 23 docketed under: 03-4699; 03-4700; 03-4702; 03-4706; 04-1993; 04- 24 3851; 04-6137; 04-6590; 05-1679; and 06-4582. See Ranjit Singh, 25 05-5463-ag, response filed Apr. 10, 2007. Roman’s response also 26 did not provide any explanation for the listed defaults, although 27 that may have resulted from the fact that the Court’s order did 28 not explicitly request an explanation. See id. , order filed Mar. 29 23, 2007, response filed Apr. 10, 2007. The motion to reinstate 30 Ranjit Singhwas denied. See id. , order filed Aug. 2, 2007. 31 32 In addition to Roman’s history of defaults described above, 33 he also may have submitted deficient briefs to this Court. The 34 Committee is requested to determine whether Roman engaged in 35 sanctionable conduct by: 36 37 (a) presenting vague or conclusory legal analysis on 38 pertinent issues, s ee, e.g. , Ashvinder Kaur v. BIA, 03-4699- 39 ag, brief filed Apr. 18, 2007; Jeet Singh v. BIA, 06-1389-ag, 40 order filed May 3, 2007, at 4 (finding CAT claim waived, 41 based on failure to present meaningful challenge to agency’s17 1 denial); Amerjeet Kaur v. BIA, 06-1491-ag, brief filed July 2 28, 2006; 3 4 (b) raising claims that were not exhausted before the agency, 5 without explaining why the claim should nonetheless be 6 considered, s ee, e.g. , Ashvinder Kaur v. BIA, 03-4699-ag, 7 brief filed Apr. 18, 2007, at 25-26 (discussing CAT claim), 8 order filed Oct. 16, 2007, at 5-6 (dismissing CAT claim as 9 unexhausted); 10 11 (c) presenting irrelevant matters and/or failing to challenge 12 a dispositive agency decision, s ee, e.g. , Harmeet Singh v. 13 Gonzales, 06-4582-ag, order filed Aug. 24, 2007, at 3 14 (finding that underlying denial of asylum application was not 15 properly before Court); Oberoi v. BIA, 05-6413-ag, brief 16 filed Mar. 26, 2007, order filed Aug. 8, 2007, at 3-4 17 (upholding agency decision, and finding it unnecessary to 18 discuss arguments presented in brief, since dispositive 19 decision was not challenged; also noting that arguments 20 relied to some extent on non-record submissions); Mehmi v. 21 Gonzales, 06-3471-ag, order filed Aug. 16, 2007, at 3-4 22 (finding petitioner waived challenge to dispositive agency 23 decision); Gurpal Singh v. BIA, 05-6840-ag, brief filed Nov. 24 13, 2006 (arguing merits of original asylum denial, which was 25 not under appeal, and presenting conclusory argument 26 concerning BIA’s denial of petitioner’s second motion to 27 reopen); Bhag Singh v. BIA, 04-5038-ag, brief filed Nov. 23, 28 2005 (BIA’s summary dismissal not acknowledged or challenged 29 in brief) ; and 30 31 (d) misstating facts or issues, s ee, e.g. , Amerjeet Kaur v. 32 BIA, 06-1491-ag, brief filed July 28, 2006 (incorrectly 33 referring to Kaur as “Mr. Singh” and with male pronouns, and 34 to this Court as the BIA, and stating that “Punjab police” 35 persecuted and will continue to persecute Kaur, despite the 36 fact that Kaur is not from Punjab). See also Jeet Singh, 06- 37 1389-ag, docket note for June 26, 2006 (stating that 38 submitted brief failed to comply with Federal Rule of 39 Appellate Procedure 28). 40 41 Upon due consideration of the matters described above, it is 42 ORDERED that Hector M. Roman is referred to this Court’s Committee 43 on Admissions and Grievances for investigation and preparation of 44 a report, pursuant to Federal Rule of Appellate Procedure 46, this 45 Court’s Local Rule 46(h), and the Rules of the Committee on 46 Admissions and Grievances. 47 48 4918 1 FOR THE COURT: 2 Catherine O’Hagan Wolfe, Clerk 3 4 By:_______/s/_________________ 5 Michael Zachary 6 Supervisory Staff Attorney 7 Counsel to Grievance Panel 8 9 APPENDIX 2 10 Text of April 2008 order docketed under 07-9064-am 11 12 By order entered in November 2007, Hector M. Roman was 13 referred to this Court’s Committee on Admissions and Grievances 14 for investigation of the matters described in that order. Since 15 that time, additional information regarding Roman has come to the 16 attention of this panel. 17 18 In March 2007, the United States Court of Appeals for the 19 Ninth Circuit sanctioned Roman for, inter alia, failing to 20 properly supervise an employee of his law firm, negligently 21 relying on an inadequate case-management and calendaring system, 22 failing to adequately prosecute cases, and violating various court 23 rules and orders. See In re Roman, No. 05-80100 (9 Cir. Mar. th 24 30, 2007). The Ninth Circuit suspended Roman from practicing law 25 in that court for six months and imposed a monetary sanction of 26 $1,000, with reinstatement contingent upon Roman showing, inter 27 alia, that he is in good standing before all courts and bars in 28 which he is admitted, and has completed ten hours of continuing 29 legal education courses. Id. As a result of the Ninth Circuit 30 disciplinary order, the New York Appellate Division, Second 31 Department, imposed reciprocal discipline on Roman, although it 32 limited its disciplinary measures to a public censure. See In re 33 Roman, No. 2007-04450 (2d Dep’t Dec. 26, 2007). Finally, in 34 January 2008, this Court issued an order, pursuant to Second 35 Circuit Local Rule 46(f)(1), publicly censuring Roman based upon 36 the New York Appellate Division’s order. See In re Roman , No. 08- 37 9002-am (2d Cir. Jan. 3, 2008). By separate order of this panel, 38 this Court’s censure order entered under docket number 08-9002-am 39 has been vacated, with the issue of reciprocal discipline under 40 Local Rule 46(f) being referred to the Committee. 41 42 Upon due consideration, it is ORDERED that the additional 43 information described above is referred to this Court’s Committee 44 on Admissions and Grievances for its consideration in conjunction 45 with the information provided in this panel’s November 2007 46 referral order. The Committee should consolidate the two matters 47 docketed under 08-9002-am and 07-9064-am. 4819 1 FOR THE COURT: 2 Catherine O’Hagan Wolfe, Clerk 3 4 By:_________/s/_____________________ 5 Michael Zachary 6 Supervisory Staff Attorney 7 Counsel to Grievance Panel 8 9 APPENDIX 3 10 11 Text of April 2008 order docketed under 08-9002-am 12 13 By order filed on January 3, 2008, this Court, pursuant to 14 Second Circuit Local Rule 46(f), publicly censured Hector M. 15 Roman, based on a prior public censure issued by the New York 16 State Appellate Division, Second Department. However, Local Rule 17 46(f) does not provide for such a disposition. 18 19 Aside from the Appellate Division’s public censure order, we 20 are informed that, in March 2007, the United States Court of 21 Appeals for the Ninth Circuit sanctioned Roman for, inter alia , 22 failing to properly supervise an employee of his law firm, 23 negligently relying on an inadequate case-management and 24 calendaring system, failing to adequately prosecute cases, and 25 violating various court rules and orders. See In re Roman , No. 26 05-80100 (9 Cir. Mar. 30, 2007). The Ninth Circuit suspended th 27 Roman from practicing law in that court for six months and imposed 28 a monetary sanction of $1,000, with reinstatement contingent upon 29 Roman showing, inter alia, that he is in good standing before all 30 courts and bars in which he is admitted, and has completed ten 31 hours of continuing legal education courses. Id. 32 33 Upon due consideration of the matters described above, it is 34 hereby ORDERED that the January 3, 2008 order is vacated. It is 35 further ORDERED that the issue of whether Roman should be 36 disciplined pursuant to Local Rule 46(f), based on the Ninth 37 Circuit’s March 2007 order, is referred to this Court’s Committee 38 on Admissions and Grievances for investigation and preparation of 39 a report, pursuant to Federal Rule of Appellate Procedure 46, this 40 Court’s Local Rules 46(f) and (h), and the Rules of the Committee 41 on Admissions and Grievances. 42 43 FOR THE COURT: 44 Catherine O’Hagan Wolfe, Clerk 45 46 By:________/s/______________________ 47 Michael Zachary 48 Supervisory Staff Attorney 49 Counsel to Grievance Panel