09-90l32-am In re Vialet 

## UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 

## SUMMARY ORDER

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

### At a stated term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 7th 

### day of February, two thousand twelve. 

### PRESENT: Jose A. Cabranes, Robert D. Sack, Richard C. Wesley, 

### Circuit Judges.

09-90132-am In re Theodore Anthony Vialet, Attorney. ORDER OF GRIEVANCE PANEL



### For Theodore Anthony Vialet: Theodore Anthony Vialet, Esq., New Y ork, New Y ork.
1 

### UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 

### 2 DECREED 

### that the report of this Court's Committee on Admissions and 3 Grievances ("the Committee") is adopted, and Theodore Anthony Vialet 4 is PUBLICLY REPRIMANDED for the misconduct described in the 5 Committee's report.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 1. Summary of Proceedings By order filed in February 2010, this Court referred Vialet to the Committee for investigation of the matters described in that order and preparation of a report on whether he should be subject to disciplinary or other corrective measures. During the Committee's proceedings, Vialet had the opportunity to address the matters discussed in the Court's referral order and to testify under oath at
a hearing held in October 2010. Vialet proceeded 

### pro se before the Committee. Presiding over the hearing were Committee members Terrence M. Connors and Kimberly A. Knox, and Committee chair Mary Jo White. In May 2011, the Committee filed with the Court the record of the Committee's proceedings and its report and recommendation. Thereafter, the Court provided Vialet with a copy of the Committee's report, and Vialet responded. In its report, the Committee concluded that there was clear and convincing evidence that Vialet had engaged in misconduct warranting the imposition of discipline. Report at 11. Specifically, the Committee found that Vialet had: (1) failed to comply with the Court's scheduling orders in 31 cases, causing the dismissal of 11 of those cases, and continued to do so even after receiving notice of the Court's referral order, id. at 5-7, 10; (2) improperly filed
a case in this Court, instead of the proper venue, id. at 5, 6; and (3) filed deficient briefs in several cases, in violation of Federal Rule of Appellate Procedure 28, and continued to do so even after

2

### 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 receiving notice of the Court's referral order, id. 

### at 7-8. After considering various aggravating and mitigating factors, id. 

### at 10­ 11, the Committee recommended that Vialet be publicly reprimanded and required to complete certain continuing legal education ("CLEU) classes, id. 

### at 11-12. With regard to mitigation, the Committee noted, in

### ter alia, 

### Vialet's assertion that he had been able to reopen, before the Board of Immigration Appeals, several cases that had been dismissed by this Court. Id. 

### at 6. 

### However, the Committee cited only two examples of cases that had been reopened, Diallo v. DHS, 

### 08-0416-ag, and Diallo 

### v. Holder, 

### 08-4271-ag. Id. 

### In his June 2011 response to the Committee's report, Vialet acknowledged his misconduct and agreed with the Committee's findings and recommendations, with one exception he argued that the Committee's list of cases he had been able to reopen after their dismissal by this Court was incomplete. Aside from "the two mentioned by the Committee, U 

### an apparent reference to the two Diallo


### cases cited on page 6 of the Committee's report, he stated that he al so had been able to reopen Sy 

### v. Holder, 

### No. 09-0779-ag, and unspecified "additional cases u 

### for which he could not locate the docket numbers "at the present time. u II.**~tigation** 

### We construe Vialet's argument that the Committee's list of reopened cases is incomplete as a request that this Court consider mitigating information in addition to that specified by the 3

### 1 Committee. However, we find that the Committee did, in fact, credit 2 Vialet's reopening of cases beyond the two cases cited in the report 3

- despite Vialet's own failure to identify such cases aside from 

### Sy, 4 

### Diallo, and 

### Diallo

- and accorded proper weight to that mitigating 5 information. 6 Vialet has been on notice of the list of defaulted cases since 7 March 2010, when he received a copy of the Court's referral order. S 

### See Vialet letter dated March 10, 2010 (Tab D of Record). However, 9 he never identified more than two or three reopened cases by name. 10 In his May 2010 written response to the Committee's order to show 11 cause why he should not be disciplined, he noted that there had been 12 "some instances n 

### where he had moved to reopen before the agency 13 after dismissal of the case by this Court, but provided only one 14 example, 

### Sy. See Vialet letter dated May 13, 2010 (Tab G of Record) 15 at 

### S. In a September 2010 letter to the Committee, he referred to 16 another case that had been reopened by the agency, 

### Diallo v. 

### Holder, 17 No. OS-4271-ag, 

### see Vialet letter dated Sept. 24, 2010 (Tab I of IS Record) at 1, which was one of the reopened cases subsequently noted 19 in the Committee's report, 

### see Report at 6. During the October 2010 20 hearing, he testified that two unspecified cases definitely had been 21 reopened, another unspecified case may have been reopened, and other 22 unspecified cases had motions to reopen pending. Transcript (Tab J 

### 23 of Record) at 45. One case that was apparently reopened by the 24 agency was later identified as 

### "Jello, n 

### which may have been a

4**L.:.... ~** 1 

### mistranscription of "Diallo." Id. 

### at 46 ("For example, I think I 2 filed on a case was reopened [sic], Jello
... "). At a later point, 3 Vialet stated his belief that "three other cases" had been reopened 4 

### by the Court itself, but did not identify those cases. Id. 

### at 50. 5 Even as late as June 2011, when he filed his response to the 6 Committee's report
- fifteen months after receiving notice of the 7 Court's referral order and of the need to provide mitigating 8 information

- Vialet still failed to provide names of additional 9 reopened cases. 10 We find that, despite the conclusory nature of Vialet's 11 assertions regarding "additional" reopened cases, the Commit tee 12 accepted those assertions. In its report, the Committee noted that 13 Vialet "did not offer specific responses to each of the cases listed 14 in the [Court's] Referral Order but rather chose to address the 15 issue more generally," and then stated the following: 16 Mr. Vialet had some additional observations about certain 17 cases and categories of cases. For example, he noted that 18 in some of the cases that were dismissed by the Court, he 19 was able to reopen the matter before the Board of 20 Immigration Appeals and therefore sought to protect his 21 clients' interests by pursuing alternative relief. See, 

### 22 e.g., Diallo v. DHS, 

### 08-0416-ag; Diallo v. Holder, 08­ 

### 23 4271[-ag]. 24 25 Report at 6. 

### The reference to "some of the cases that were 26 dismissed by the Court," and the citation signal "See, e. g. , " 

### 27 clearly convey the Committee's understanding that Vialet's 28 mitigation argument concerned more than two cases. Moreover, in its 29 later findings concerning mitigating factors, the Committee stated 

### 51 that Vialet had "instituted various corrective measures,u id. at 11, 2 which we read as including both his attempted and successful 3 reopening of cases. 4 Under these circumstances, there was no need for the Committee 5 either to specifically cite to 

### Sy or to identify other reopened 6 cases by name. Vialet himself failed to identify by name any cases 7 other than 

### Sy, Diallo, and Diallo, despite having ample opportunity 8 to do so, and, in any event, the inclusion of additional case names 9 in the Committee's description of mitigating factors would not alter 10 the result. 11 

### III. Disposition 12 Upon due consideration of the Committee's report, the 13 underlying record, and Vialet's submissions, it is hereby ORDERED 14 that Vialet is PUBLICLY REPRIMANDED for the misconduct described in 15 the Committee's report. It is further ORDERED that Vialet: 

### 16 (a) complete, within one year of the filing date of this 

### 17 order, at least six hours of live in-class CLE instruction 

### 18 in appellate-level advocacy and/or appellate brief

### 19 writing, focusing on immigration law to the extent 20 possible, and at least six hours of live in-class CLE 21 instruction in law office/practice management. The 22 required CLE classes must be taken in addition to the 23 regular CLE requirements applicable to all members of the 24 New York bar, and taught by CLE providers accredited by 25 that bar. Vialet must submit information about proposed 26 CLE courses directly to the Committee' s secretary, who 27 will inform him whether the Committee agrees that the 28 proposed courses satisfy his obligation. 29 

### 30 (b) certify his completion of the above-described CLE 31 classes by sworn statement filed with both this panel and 32 the Committee's secretary within seven days after the end 33 of the one-year period. The Committee may modify the CLE
61 requirements and deadlines, either on motion or sua 2 sponte. 3 4 The text of this panel's February 2010 order and the 5 Committee's report are appended to, and deemed part of, the 6 present order for purposes of disclosure of this order by Vialet 7 and the Clerk of Court. The Clerk of Court is directed to release 8 this order to the public by posting it on this Court's web site 9 and providing copies to members of the public in the same manner 10 as all other unpublished decisions of this Court, and to serve a 11 copy on Vialet, this Court's Committee on Admissions and 12 Grievances, the attorney disciplinary committee for the New York 13 State Appellate Division, First Department, and all other courts 14 and jurisdictions to which this Court distributes disciplinary 15 decisions in the ordinary course. 1 16 17 FOR THE COORT: 18 Catherine O'Hagan Wolfe, Clerk 19 20 21 22

# ~.,Q 

# ..**~~** 23 24 By: Michael Zachary 25 Counsel to the Grievance Panel

I Counsel to this panel is authorized to provide, upon request, documents from the record of this proceeding to other attorney disciplinary authorities. While we request that all such documents remain confidential to the extent circumstances allow, we leave to the discretion of those disciplinary authorities the decision of whether specific documents, or portions of documents, should be made available to any person or the pUblic. 7

### 5

10

15

20

25

30

35

40

45

1 APPENDIX 1 

### 2 Text of February 2010 Order 3 

### 4 For the reasons that follow, Theodore Vialet is referred to this Court's Committee on Admissions and Grievances for 6 investigation of the matters described below and preparation of a 7 report on whether he should be subject to disciplinary or other S corrective measures. 

### See Second Circuit Local Rule 46.2. We 9 express no opinion here as to an appropriate disposition. The Committee may, of course, in the first instance, determine the 11 appropriate scope of its investigation. 12 13 Vialet was referred to this panel as a result of his failure 14 to abide by this Court's scheduling orders in numerous cases. A review of the 34 cases Vialet has filed in this Court since 16 January 1, 

### 200S, reveals that, in 31 cases, he has failed to 17 comply with scheduling orders, leading in many cases to dismissal, IS and in other cases to his filing of the opening brief late or only 19 after the issuance of an order to show cause ("OSC") why the petition for review should not be dismissed. 

### See Barry v. DHS, 21 OS-0137-ag (OSC issued, petition dismissed for failure to file 22 brief, petition later reinstated); 

### Baro v. DHS, OS-0171-ag (brief 23 filed only after OSC issued); 

### Bah v. DHS, OS-0216-ag (OSC issued, 24 extension of time granted, second OSC issued, petition dismissed, and reinstatement not sought); 

### Dumaneh v. DHS, OS-0404-ag (form 26 CiA filed late, OSC issued, petition dismissed, reinstatement not 27 sought); 

### Diallo v. 

### DHS, OS-0416-ag (OSC issued, petition 2S subsequently withdrawn); 

### Diallo v. 

### DHS, OS-0556-ag (form CiA filed 29 late, brief filed only after OSC issued); Sy 

### v. 

### DHS, OS-0664-ag (brief filed only after OSC issued); 

### Diallo v. DHS, OS-1156-ag 31 (OSC issued, extension granted, motion to file late brief denied 32 since not accompanied by brief, petition dismissed, reinstatement 33 not sought); 

### Ndiaye v. Mukasey, OS-202S-ag (brief accepted for 34 late filing); 

### Diallo v. 

### Mukasey, OS-2279-ag (brief accepted for late filing); 

### Bah v. 

### Mukasey, OS-230S-ag (OSC issued, petition 36 dismissed, reinstatement not sought); 

### Diallo v. Mukasey, OS-352S37 ag (form CiA filed late, brief accepted for late filing); 

### Diallo 3S 

### v. 

### Mukasey, OS-3556-ag (form CiA filed late, OSC issued, petition 39 dismissed, reinstatement not sought); 

### Diallo v. 

### Mukasey, OS-3747­ ag (form CiA filed late); 

### Sudjita v. 

### Mukasey, OS-4027-ag (brief 41 accepted for late filing); 

### Turay v. 

### Mukasey, OS-4127-ag (OSC 42 issued, petition dismissed, reinstatement not sought); 

### Ba v. 43 Holder, OS-4242-ag (OSC issued, extension granted, no brief filed, 44 petition dismissed, reinstatement not sought); 

### Barry v. Mukasey, OS-4257-ag (motion for extension of time filed ten days after time 46 to file brief expired, Court granted further extension but noted 47 Vialet's "indifference to the scheduling orders of this Court"); S

### 1 Diallo v. Mukasey, 

### 08-4271-ag (form CIA filed late, OSC issued, 2 petition dismissed, reinstatement granted, petition again 3 dismissed for failure to timely file brief after reinstatement); 4 Barry v. Mukasey, 

### 08-431 , 6-ag (form CIA filed late, extension 5 granted after first default on briefing schedule, no response to 6 OSC, petition dismissed after second default, reinstatement not 7 sought); Toar v. Mukasey, 

### 08-4418-ag (brief filed only after OSC 8 issued); Sow v. Mukasey, 

### 08-4609-ag (form CiA filed late, brief 9 filed only after OSC issued); Kane v. Mukasey, 

### 08-4764-ag (OSC 10 issued, petition dismissed, reinstatement not sought); Bah v. 

### 11 Holder, 

### 08-4770-ag (brief accepted for late filing); Jalloh v. 12 Mukasey, 

### 08-4929-ag (brief accepted for late filing); Ba v. 13 Mukasey, 

### 08-5197-ag(L); 08-5206-ag(Con) (brief filed only after 14 OSC issued); Fall v. Mukasey, 

### 08-5399-ag (OSC issued, petition 15 dismissed, petition reinstated, brief accepted for late filing); 16 Kourouma v. Mukasey, 

### 08-5643-ag (brief filed only after OSC 17 issued); and Sy v. Holder, 

### 09-0779-ag (OSC issued, Court provided 18 brief grace period for filing of brief rather than extension 19 because "[c]ounsel's behavior reflects a disrespect for the court 20 in the way he has simply ignored our scheduling orders," no brief 21 filed during grace period, petition dismissed, reinstatement not 22 sought); Tjandra v. Holder, 

### 09-2985-ag (brief filed late). In 23 addition, in Tounkara v. Mukasey, 

### 08-2929-ag, Vialet filed the 24 petition for review in this Court when the proper venue was the 25 Fifth Circuit, requiring this Court to expend resources to 26 trans fer the case. 1 

### 27 28 We are aware that, in a number of these cases, Vialet 29 explained that his late filing was caused by a severe respiratory 30 illness as well as the demands of preparing for oral argument on a 31 difficult issue involving asylum claims based on female genital 32 mutilation. See, e.g., 

### affidavit filed 8/25/2008 in No. 08-1156­ 33 ago In more recent cases, he cited a "tremendous backlog of 34 work." See, e.g., 

### affidavit filed 3/31/2009 in No. 08-4316-ag. 35 Nevertheless, given the duration of Vialet's persistent failure to 36 comply with scheduling orders, the number of cases involved, and 37 the fact that he apparently continued to take on new cases despite 38 backlog concerns, those reasons are subject to doubt. 39 Additionally, it is not clear why, based on his alleged illness 40 and workload, Vialet did not seek

- prior to the defaulted 41 deadlines

- a stay of the relevant cases, further extensions of
iAside from Bahs v. DHS, 

### 07-5301-ag, the Court has not reviewed, for purposes of this order, cases filed before 2008, and the cases and events noted in the text are not intended as a complete overview of all cases and events that may be relevant to these proceedings. 9

### 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 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 

### 44 45 46 47 48 time, or substitution of counsel. In addition to the above-noted issues, panels of this Court also have remarked upon poor briefing by Vialet on several occasions. In Bah v. DHS, 

### 07-5301-ag, the merits panel found that the brief prepared by Via1et "fail[ed] to address with any degree of specificity the findings supporting the agency's adverse credibility determination and
... fail[ed] to provide any supporting citations to any of this Court's decisions, [such that the] brief does not comply with Fed. R. App. P. 28 (a) (9) (A) ." No. 07-5301-ag, order filed 11/7/2008. The panel found this omission "fatal to the portion of [the] petition for review purporting to challenge the agency's adverse credibility finding" and warned Vialet that "future briefing of this quality may result in discipline." Id. 

### In Diallo v. DHS, 

### 08-0556-ag, the merits panel stated that "the brief submitted by ... 

### Vialet[] is cursory at best and comes dangerously close to waiving any challenge to the agency's adverse credibility determination," adding that "[f]urther briefing of this quality may result in discipline." No. 08-0556-ag, order filed 3/31/2009. In Barry v. Mukasey, 

### 08-4257-ag, the merits panel stated that: (1) the brief "fails to cite to any caselaw to support any of [the] arguments challenging the [irrunigration judge]'s adverse credibility determination, suggesting that it fails to comply with
... Fed. R. 

### App. P. 

### 28 (a) (9) (A)"; (2) the brief challenged only one of the seven findings that the irrunigration judge made to support his adverse credibility determination; and (3) it was "troubled by the poor quality of the brief submitted by
... Vialet." No. 08-4257-ag, order filed 4/8/2009. The panel noted that "[t]his is not the first time that Vialet has submitted a brief that we have deemed insufficient" and stated that "Vialet is again warned that future briefing of this quality may result in discipline." Id. 

### Finally, in addition to the cases in which this Court has expressly warned Vialet with respect to deficient briefing, we note that: (1) in Sy v. DHS, 

### 08-0664-ag, the merits panel observed that the brief failed to "address certain of the
... credibility findings" and that, "[a]rguably, these [unchallenged] findings were alone sufficient to support the agency's credibility determination," see 

### order filed 12/31/2008; (2) in Diallo v. Mukasey, 

### 08-3528-ag, a motions panel of this Court granted the Government's motion to surrunarily deny the petition for review because Vialet's brief failed to address the agency's adverse credibility determination, which was in itself a dispositive issue, see 

### order filed 4/15/2009; and (3) in Sow v. Mukasey, 08­ 

### 4609-ag, the merits panel noted that Vialet's brief failed to
101 2 3 4 

### 5 6 7 8 9 10 11 12 13 14 

### 15 16 17 

### 18 19 20 21 22 23 24 challenge five separate bases for the agency's adverse credibility finding, and opined that, "[a]rguably, the[se] [unchallenged] findings ... alone constitute substantial evidence for the agency's credibility determination," see order filed 6/12/2009. Upon due consideration of the matters described above, it is hereby ORDERED that Theodore Vialet is referred to this Court's Committee on Admissions and Grievances for investigation and preparation of a report, pursuant to Federal Rule of Appellate Procedure 46, this Court's Local Rule 46.2, and the Rules of the Committee on Admissions and Grievances. The Committee is authorized to share information, and/or hold joint proceedings, with other disciplinary committees, as long as confidentiality is maintained. [Remainder of order redacted] FOR THE COURT: Catherine O'Hagan Wolfe, Clerk 

### By: /s/

__ _________ Michael Zachary Supervisory Staff Attorney Counsel to the Grievance Panel

11

### APPENDIX 2 May 2011 Report of the Committee on Admissions and Grievances



### REPORT**~** 

### RECOMMENDATION InRe: TheodoreAnthony Vialet,#09-90132-am
I. Introduction 

# l By Orderdated February 25, 

### 2010 ("Referral Order"), the United StatesCourtof Appeals for the Second Circuit (the "Court")referred Theodore Anthony Vialetto this 

# I Committee for investigation ofhis conduct before the Court and for preparationofa report on whether he should be subject to discipline orother corrective measures. Mr. Vialet is asolopractitionerspecializing in immigration law, with aheavy concentrationon asylum and removal cases. He was admitted to practice before the Courton December 30. 2009, 

### after wbat he characterized as two previous attempts to be admitted. The Court's Referral Orderraises two areas ofconcern: (l)

### faHure to abide by the Court's schedulingorders in II of34cases filed betweenJanuary 1,2008,

### and the · date ofthe Referral Order; and (f.) poCllrbriefingin six specificcases. Additionally, while notraised in the Referral Order, the Committee learned that Mr. Vialet was filing briefs and records with the Court and participated in at least one oral argument priorto his, admission to practice before the Court. The Committee concludes thatMr. Vialet has committedmisconduct andihat his misconduct warrants asanction. The Committee recommends that Mr. Vialet be publicly

23432676v1reprimanded and be required to attend Continuing Legal Education ("CLE")courses in addition to the CLE hours required for all attorneys admitted in New York State. The following constitutes the Committee's Report and Recommendation to impose discipline on Mr. Vialet.


### II. The Referral Orderand this Disciplinary Proceeding On March 1,2010,this Commil ttee issued a Notice ofReferral and Proceeding requiring Mr. Vialet to showcause why it should not recommend disciplinary and/or othercorrective action withrespectto**~he** conductalleged in the Court'sReferral Order. The Referral Orderaddressed 34

### separ**te** matters pending before the Court in 2008-2010 in which Mr. Vialet was listed ascounsel ofrecord. Byletter ofMarch 10, 2010, Mr. Vialet timely requested a sixty-day extension ofhis time to respond, and he was granted a forty-five-day extension bythis Committee. On May 13,2010, Mr. Vialet timely submitted a response with exhibits
. Thereafter, Mr. Vialet submitted two supplemental responses, oneon May 21, 20I0, and another on September24, 2010. A hearing was held on October 8, 20I0, before a sub<;ommittee consisting ofTerrenceM. Cormors and Kimberly A. Knox. Mary Jo White**p~icipated** in committeedeliberations viatelephone conference
. Mr
. Vialet appearedprose and testified on his own behalf. At the conclusion ofthe hearing, Mr. Vialet was provided 30 days to submit lettersofreference on his behalf. He submitted one letter from Manuel D
.Gomez, Esq. Mr. Gomez is a colleague ofMr. VialQt's, andhe writes thatMr. Vialetmade court appearances on behalfofMr. Gomez ihBankruptcy and Civil Court. He "valued"Mr. Vialet's work as well as the fact that he treated Mr
. Gomez'sclients well. Mr. Gomez often consulted Mr. Vialet for advice onimmigration law matters. Mr. Gomez also notes that Mr. Vialet works long hours, and he statesthat he admires Mr. Vialet's work as a 11 11 lawyerand highly recommends him
. I


### III. Factual Background The following facts are taken from Courtrecords, Mr
. Vialet's written submissions with documentation, and the testimony presented at the hearing. Mr. ViaJet is a solopractitionerin New York City
. He was admitted to practice law in New York State by the Appellate; Division, Second Department in 1996. In addition to his Second Circuit admissibn noted above, he also is admitted in the United " States District Court for the Eastern and Southern Districts ofNew York. He is 53 years I 

### I 

## , ' old.

2 23432676v1


# -­Mr. Vialet graduated from Fordham University and earned his lawdegree from New York Law School. Mr. Vialet has been a solo practitioner for most ofhis career. At times, he has had one or two non-lawyeremployees assistinghim. His immigrationwork is comprised main'yofasylum applications and largely involves West African immigrants. According to Mr. Vialet's testimony, following a successful appeal involvingthe issue offemale genital mutilation 

### (see Bah v. Mukasey, 529 F
.3d 99 (2d Cir. 2008)) as well as his successes before the Board ofImmigration Appeals, Mr. Vialet'scaseload increased, and he received an influx ofclients seeking his services with respect to appeals. Byhis own admission, hewas overworked and unableto handle his caseload, especially because, as a solo practitioner, he had no assistance. Since the Court issued its Referral Order, hehas limited the number ofSecond Circuit cases he accepts. Mr. Vialet testified that atthe time ofthe hearing, he had five cases pending beforethe Court
. As of February 1,2011, Mr. Vialethad five casespendingbefore the Court, four ofwhich were filed after he received noticeofthe Referral Order.


### IV. Legal Standard Under the Rules ofthe Committeeon Admissions and Grievances for the United States Court ofAppeals for the Second Circuit ("Committee Rules"), An attorney may be subject to discipline or other corrective measures for any act or omission that violates the rules of professional conductorresponsibilityofthe state or other jurisdiction wherethe attorney maintains his orher principal office
.... An attorney also may be subjectto discipline or othercorrective measures for any failure to comply with a Federal Rule ofAppellate Procedure, a Local Rule ofthe Court, an order orother instruction ofthe Court, ora rule ofprofessional conductor responsibility of the Court, orany otherconduct unbecoming a memberof the bar. Committee Rule4; 

### see also Federal Rule ofAppellate Procedure ("F
.R.A
.P.")46(c) ("[a] courtofappeat s may discipline an attorney who practices before it for conduct unbecoming a memberofthe bar or for failure to comply with any courtrule"). t , " "Conductunbecominga member ofthe bar"includes "conduct contrary to . professional standards that shows an unfitness to discharge continuingobligations to clients or the courts, or conduct inimical to the administration of justice. More specific guidance is provided by case law, applicable court rules, and 'the lore ofthe profession,'



### 3
23432676v1 

# II I: \

as embodied in codes ofprofessionalconduct." In reSnyder, 472 U.S. 634, 645, 105 S. Ct 2874, 2881 (1985). Under F.R.A.P. 28(a)(9)(A), an appellant'sbriefmust contain "appellant's contentions and the reasons for them, with citations to the authorities and parts ofthe record on which the appellantrelies." 

# I

Under F.R.A.P. 46 and the Court's fonner Local Rule 46, an attorney mustbe admittedto the Court before practicing before it. BecauseMr. Vialet was a memberofthe bar ofNewYork Stateduring the time period at issue, the New York StateCodeofProfessional Responsibility ("the Code") applies to conductthrough April I, 2009, and the Rules ofProfessional Responsibility ("theRules"), whichtook effectonApril I, 2009, apply to his conducton orafter that date. Three areas are relevant in this matter. First, fonner DR 6-101(A)provides that a lawyer shall not:
• "Handlea legal matterwhich the lawyerknows orshould know that he or she is notcompetentto!handle, without associating with a lawyer who is competent to handle it," DR 6-IOI(A)(l).
• "Neglect a legal matterentrusted to the lawyer," DR 6-IOI(A)(3). In the current Rules, the parallel provisions are Rules 1.1(b) and 1.3(b): "A lawyer shall not handle a legal matterthat the lawyer knows orshould know thatthe lawyer is notcompetent to handle, without associating with a lawyer who is competent to handle it." Rule 

### 1.1(b). "A lawyer shall not neglecta legal matterentrustedto the lawyer." Rule 1.3(b). Second, former DR 7-10I(A) directed that attorneys shall not intentionally: I I I. [f]ail to seek the lawful objectivesofthe client through reasonably available means pennittedby law and the Disciplinary Rules; 2. fail to carryout acontractofemploymententered into with aclient for professional services; 3. prejudice ordamage the clientduring the course oftheprofessional relationship.**~** Similarly, under thecurrent Rules, a lawyer:



### 4 

## II 23432676v1. 1

• "mayexercise professionaljudgmentto waiveor fail to assert a right or position ofthe client, oraccede to reasonablerequests ofopposingcounsel, when doing so does not prejudice the rights ofthe client," Rule 1.2(e);
• "shall not intentionally fail to carryout acontract ofemploymententered into with aclient for professional services, but the lawyer may withdraw as permitted under these Rules," Rule 1.3(c);

• "shall not intentionally fail to seek the objectives ofthe client through reasonably availablemeans pennittedby law and these Rules; orprejudice or damage the client during the courseofthe representation except as pennitted orrequired by these Rules," Rule I.I(c)(I), (2)
. Third, the Code and Rules prohibit conduct that involves misrepresentation, that is prejudicial to the administration of justice, and/orthat "adverselyreflects on the lawyer's fitness as a lawyer." DR 1-102(A)(4), (5), (7); Rule 8.4(b), (c), (d), (h). According to this Committee'srules, "[a]ny finding that an attorney hasengaged in misconduct oris otherwise subject to corrective measures must be supported by clear and convincingevidence
." Committee Rule 7(h). Once misconduct has been established, indetennining the sanctionto be imposed, the Committee should generally consider:

## W the duty violated;

## ® the lawyer's mental state;

## Wthe actual orpotential injury caused by the lawyer'smisconduct; and 

### @ the existenceofaggravating ormitigating factors. 

### See American BarAssociation, Standards for Imposing Lawyer Sanctions ("ABA Standards") III(C)(3.0)
. This Committeemayrecommend to the Court'sGrievance Panel a range ofsanctions, including disbarment, suspension, public orprivatereprimand, monetary sanction,removal from pro bono orCriminal Justice Act panels, referral to otherdisciplinary bodies, supervision by a special master, counselingortreatment, or "such otherdisciplinary orcorrective measures as the circumstances may warrant." CommitteeRule 6.


### V. TheAlleged Misconduct A. Failureto Abide by theCourt'sSchedulingOrders Most ofthe allegations against Mr. Vialet concern his failure to abide by the Court'sscheduling orders in 31 of34 cases filed with the Courtbetween 2008 and the date ofthe Referral Orderin 2010
. In I I ofthose cases, the petitions were dismissed for failure to comply with the Court's schedulingorders, and Mr. Vialet did noC seek reinstatement onhis clients' behalf. In 10 cases, Mr. Vialet filed briefs ortook other
. action only after the Court issued Orders to ShowCause. In one case, Mr. Vialet filed the petition for review in the Second Circuit, but the propervenuewas the Fifth Circuit, and the Court had to expend time and resources to transfer the matter. In theremaining nine



### 5 23432676v1cases cited by the Court, briefs were accepted despite late filing orextensions oftime granted afterthe deadline had passed. In his written submission, Mr
. Vialet attributed his failure to adhere to the schedulingordersto the following reasons: (Dpoorhealth; (2) an urunanageable caseload and no support; and (J) short deadlines imposed by the Court's rules. At the hearing, Mr. Vialet'sexplanation for his alleged deficiencies in complying with schedulingorders focused on his caseload and the fact that he was a solo practitionerwith no help. He did not provide any further details about his health issues, statingonly that although he is "notin great health," he is able to work. Mr. Vialetdid not offerspecific responses to each ofthe cases listed in the Referral Orderbut rather chose to address the issue more generally, as described above. Mr. Vialet had some additional observations aboutcertain cases and categories ofcases. Forexample, he noted that in someofthe cases that were dismissed by the Court, he was able to reopen the matterbeforethe Board ofImmigration Appeals and therefore sought to protect his dients' interests by pursuing alternative relief. See, e.g., Diallo v. DHS, 08­ 04I6-ag; Diallo v. Holder, 08-4271. With respect to the petition that was filed in the wrong Court, Mr. Vialet explained that the client had been living in New York and moved to Dallas, Texas, less than ayearbeforethe petition was filed. Mr. Vialet acknowledged that he should have filed in the FifthCircuit and acknowledged that he simplymade a mistake. With respect to cases in which he filed briefs only after Orders to Show Cause were issued by the Court, Mr. Vialet stated that he "forgotto ask for an extension"and again cited short filing deadlines and his largecaseload. In two ofthese matters, the Courtopenly criticized Mr. Vialet's failure to abide by the schedulingorders. See Barryv. Mukasey, 08-4027 (the Courtnoted Mr. Vialet's "indifferenceto the schedulingorders ofthis Court");Syv. Holder, 09-0779 ("Counsel's behaviorreflects a disrespect for the Court in the way he has simply ignored our scheduling orders."). Mr. Vialet acknowledged that he had insufficient safeguards in place for remembering deadlines and insufficient systems in place to handle a Second Circuit practice. He claimed that becausehe had no support, he was required to do his own typing, printing, and copyingofthe briefs and appendices, which took considerable time. He stated that he has undertaken corrective measures in his office

-- specifically, hiringtwoemployees to assist him, using a computerizeddiary system, and discussing upcoming dates and deadlines with his secretary on a weekly basis. Mr. Vialet added that the Court'simplementation ofelectronic filing has largely alleviated the burdens associated with perfectinghis appeals as he is no longerrequired to print, copy, bind, and file hard copiesofthe briefs and appendices. He also noted that the rules have been amended to provide more time for him to file briefs afterthe record is 

### filed
. Additjonally"it should be noted that on October29,2009, Mr. Vialet wasthe subject ofaclient complaint to the Departmental Disciplinary Committee ofthe First Judicial Department. Accordingto Mr. Vialet, the client filed a complaint after Mr.

6 23432676v1

### Vialet advised him ofhis right to do so following the dismissal ofthe client's appeal for failure to timely file the appeal before the Board ofImmigration Appeals. Mr. Vialet testified at the hearing that he continues to represent the 

### cIient before the Board of Immigration Appeals, where he was successful in reopening his client'scase. Thus, it appears that the client was notprejudiced by the dismissal ofhis appeal. Additionally, on June 18,2010,the Departmental Disciplinary Committeeclosed its case against Mr. Vialet without findings. Mr. Vialet expressed remorse and apologized for his shortcomings with respect to the Court's scheduling orders. He acknowledged that some clients may have been prejudiced by the dismissal oftheirpetitions due to his failure to comply with the scheduling orders. Mr. Vialet explained that he attempts to contact his clients via telephone and then present them with the decisions ofthe Court in person, even when the decision is adverse. He mails decisions when he is unable to reach clients by telephone. In response to the Court's and Committee'sconcern that Mr. Vialet'sconductevidenced disrespect for the Court, Mr. Vialet said that he did not intend any disrespect to the Court. This Committee found Mr. Vialet to be sincere in his respect for the Court and his commitmentto his clients and their interests. This Committee finds that the clearand convincing evidence demonstrates that Mr. Vialet'sconduct in failing to comply with the Court's scheduling orders was prejudicial to the administrationof justice and "adverselyreflects on [his] fitness as a lawyer." DR 1-102(A)(5), (7); Rule 8.4(d). Because Mr. Vialet acknowledged that some ofhis clientsmay have been prejudiced by the dismissal oftheirpetitions as aresult of his failure to meet scheduling deadlines in the cases where he did not seek reinstatement ofthe petitions orpursue alternative remedies, his conduct violated DR 7-101(A) and Rules l.l(c)(l), (2); 1.3(c). Because Mr. Vialet continues to have difficulty complying with the Court's scheduling orders, as discussed below, this conduct warrants apublic reprimand. See, e.g., In re Kuzmin, 

### 2010 WL 3980018 (2d Cir. 20I0) (Courtdismissed 28 of 102petitions for review for failure to comply with schedulingorders); In re Adinolfi,

### 20I 0WL 3623 152 (2d Cir
.20I0) (attorney continued to default on scheduling orders after being put on notice ofthe Court's concerns); In re Gut/fein, 

### 378 Fed. App. 24 (2d Cir. 2010) (Court dismissed 32 of50 petitions for review for failure to comply with scheduling orders). B. PoorBriefing 

### The Referral Order also requested aresponse regarding poorbriefing in six matters. In three ofthese matters, the Courthad publicly criticized Mr. Vialet's briefing and warned that further deficient briefing could result in discipline. See.Bah v . DHS,07­ 

### 5301 ("further briefing ofthis quality may result in discipline"); Diallo v. DHS,08-0556 

### (same admonition); Barryv. Mukasey, 

### 08-4257 ("This is not the first time that Vhllethas submitted abriefthat we have deemed insufficient."
... "Vialet is again warned that future briefing ofthis quality may result in discipline."). In the remaining three matters,

7 23432676v1

## :\



### the Court noted that Mr. Vialet's failure to challenge the credibility detenninations below essentially required denial ofthe petitions. SeeSy

### v. DHS, 

### 08-0664; Diallo 

### v. Mulcasey, 08-3528; Sow 

### v. Mukasey, 08-4609. 

### In his written submission and at the hearing, Mr. Vialet acknowledged that some ofhis briefs were inadequate. He again attributed this to his workload, lack ofassistance, and time pressures to complete briefs. In at least one ofthe cases cited in the Referral Order, Mr. Vialet resubmitted abriefofwhathe believed was betterquality. SeeSow 

### v . Mulcasey,08-4609. 

### Mr. ViaJet also asserted that the poorly written briefs were only a small percentage ofthe total numberofbriefs he submitted to the Court. He also provided examples ofbriefs he has submitted to the Courtto demonstrate his briefwriting ability. In response to questioning about the similarity ofthe legal standard and legal arguments in many ofhis briefs, Mr. Vialetexplained that many ofhis cases concern the same issues, and so, while he recognizes thateach case is unique, he said that there often is no reason to change these sections from briefto brief. The Committee finds that clearand convincing evidence demonstrates that Mr. Vialet's poorbriefing violated F.R.A.P. 28 and has not improved. The Committee obtained copies ofthe briefs thatMr. Vialet filed with the Court in 2010 afterreceiving the Court's referral order, has reviewed them, and finds thathis briefing has notimproved. Mr. Vialethas, for example, applied the wrong standard in his analysis (see, e.g., Diallo 

### v. Holder, 

### 10-1504, in which Mr. Vialet argues the "well-founded fear" standard applicable to asylum claims despite the fact that the Board ofImmigration Appeals found the petitioner'sclaim to be untimely and therefore applied the more stringent "more likely than not" standard), and continuesto come closeto waiving any challenge to the agency's adverse credibility findings despite previous warnings from this Court. Compare Diallo 

### v. Holder, 

### 10-1504 withDiallo 

### v. DHS,

### 08-0556-ag, 318 Fed. Appx. 39, 40-41 (2009) and Bah v. Mukasey, 

### 299 Fed. Appx. 72, 73-74 (2008). This conduct, togetherwith his failure to abide by the Court's scheduling orders, thus warrants apublic reprimand. SeeIn re Zhang, 

### 376 Fed. Appx. 104 (2d Cir. 20I0) (poorbriefingcontinued post-hearing). C. PracticeBefore the Court 

### Priorto 

### Admission 

### Although the issue ofMr. Vialet'spractice before the Courtpriorto his admission was notraised in the Referral Order, this Committee was troubled by that apparent practice. He was admitted to practicebefore the Courton December30, 2009, and yethe submitted briefs to the Court and appeared for at least one oral argumentpriorto thatdate incases in which he was notadmittedprohac vice. ,. 

### Mr. Vialetexplained at the hearing thathe had "been trying for years to get" admitted" priorto his admission in December2009. On at leastone occasion he had trouble with his sponsors - one turned outnot to be admitted before the Court and another



### 8 23432676v1 r ,

I' I

. I

I



### 'I I I

### I'll
J
withdrewhis support. He said that he also had an application returned for failure to pay the correct fee. Mr. Vialet stated at the hearing that he believed his application for admission was pending at the time ofhis oral argument before the Court in April 2008. He also noted that his submissions to the Court priorto his admission indicated that his 

# r application was pending, and he said he had been told that he could file caseswith the '.' Court while his application was pending. Mr. Vialet admitted having been criticized by the Court duringhis April 2008 oral argument becausehe was not admitted, and he acknowledged that his application may not have been actuallypending when some petitionswere filed. Underthe former Second Circuit Local Rule 46(d): "Counsel ofrecord for all I

### " I

, parties must be admitted to practice before this court. Oral argument may be presented onlyby attorneys admitted to practice before this court. Underexceptional circumstances an attorney may be admittedprohac vice." As the Court noted in 

### In re Yan Wang, 2010WL 2812824 (2d Cir. 2010) at *7, however, "duringthe relevant time period, some employees ofthis Courthad interpreted this rule as meaningthat an attorney litigating before this Court need not be admitted to the bar 

## til ofthi.s Courtunlesshe orshe intended to orally argue the case. We also are informed that attorneys inquiring about the Court's admission requirements were so advised. For purposes ofthis proceeding, we need not decide whether we agree with that interpretation ofthe rule. However, we find that a reasonabte attorney could have accepted, and acted upon, a Court employee'sexplicit instruction that admission need not be sought for purposes offiling documents with the Court." Therefore, crediting Mr. Vialet's testimonythat he was told he could file documents while his application was pending, coupled with the rationale of

### In re Yan Wang, the Committee finds that Mr. Vialet's written submissions to the Courtpriorto his admission was not in violation ofthe Court's former rule. While his oral argumentprior to his admission before the Court was in violation ofthe Court'srule, in lightofthe fact 

# ,I that Mr. Vialet wasreprimanded by the Court at the time ofhis oral argument, he has sincebeen admitted and therefore cured this deficiency, and this issue was not raised by the Court in its referral order, the Committee finds that a reprimand is not warranted on this basis. " I 

# 'I j'

9 23432676v1 

# ·U

# I

I '



# 'II

, VI. Aggravating and MitigatingFactors 

### There are both aggravating and mitigating circwnstances here
. 

### See ABA 

# r
Standards 9.22; 9.32. 

### 11 1 A. AggravatingFactors 

# I Apatternoffailing to meet deadlines or failing to apply for an extension before the deadline has passed wouldbe an aggravating circumstance, and an isolated instance
, nl 

### would be amitigating circumstance. 

### See ABA Standard 9.22(c) ("apattern of misconduct"); 9.22(d) ("multiple offenses"). The facts here fall slightlyon the side of I' I 

### aggravation. Mr
. Vialet providedexplanations for some, but not all, ofthe 11 petitions I I 

### that were dismissed for his failure to file briefs. Mr. Vialet also provided only ageneral I 

### explanation for his inability to adhere to the scheduling orders in the remaining cases cited in the Referra' lOrder. He acknowledged that some ofhis clients may have been prejudiced by the dismissal oftheir cases. I 

## III It

### should also be noted that while he is much improved, Mr. Vialet has continued to miss deadlines with the Court. As ofFebruary 1, 2011, he had filed five petitions with the Court after receiving notice ofthe Referral Order. In two ofthose matters, he filed his briefs one day late, and in anotherhe filed form C/Aonly after the Court issued an 

# I, orderdismissing the appeal unless form C/Awas filed. 

### See dockets for

### Dia/lo v. Holder, 10-1080 (briefwas due on September 15, 2010; briefwas filed on September 16, 201O); I I 

## I

• 

### Dia/lo v. Holder, 10-1504 (briefwas due on September 30, 20I0; briefwas filed on I : 

### October 1, 201O); 

### Dia/lo v. Holder, 11-0096 (order issued January25, 2011 dismissing appeal by February 8, 20IJ 

### unless form C/Afiled; form C/Afiled January 25, 20II). I 

### There are not yet briefing schedules in theremaining two matters. I B. MitigatingFactors I I 

# I There also are significant mitigating factors in this matter. Forexample, Mr. 

# I I Iii 

### Vialet'sconduct is significantly mitigated by his evident remorse and by his lackofany selfish motive. 

### See ABA Standards 9.22(b). His conduct also is mitigated by his goodfaith willingness to cooperate with the Committee. See ABA Standards 9.32(e}. Mr. Vialet provides valuable t egal services to an under-served population by focusing predominantly on asylum cases involving West African inunigrants
. Moreover, Mr. Vialet claims to charge lower fees than other attorneys in the field, which may explain his increased caseload, but also makes him more affordable and accessible to his clients. Additionally, according to his testimony, Mr
.Vialet has been very s\lccessful; he testified that in his "regular" practiceoutside the Court he has won approximately 70% of 

# !

# I his cases this year. He also has enjoyed some success in the challengingareaoffemale 

## I genital mutilation, and, as mentioned above, successfully represented two ofthe petitioners in the landmarkcase of

### Bah v. Mukasey,529 FJd 99 (2d Cir. 2008). 

### I 1,1 

## ! IO 23432676v1

### 'II

# III

A Further, Mr. ViaJet has accepted responsibility for the misconduct at issue and has instituted variouscorrective measures. As noted above, Mr. Vialet has worked as a solo practitionerwithout any assistance for most ofthe time ofthe conductat issue. Despite being a solo practitioner, according to the character letter from Mr. Gomez, Mr. Vialet assisted his colleague, Manuel Gomez, Esq., by making court appearances on his behalf, and is highly recommended by Mr. Gomez. The Committee notes that the misconduct described above occurred over a relatively briefperiod oftime, and Mr. Vialet has since made changesto the way his office functions by hiring employees to assist him, utilizingthe Court'selectronic filing system, and implementing a computerizedcalendar system in his office where his secretary diaries important dates and deadlines and discusses them with him on a weekly basis. In addition, Mr. Vialet has decreased his appellatecaseload and takes fewer Second Circuit cases. He testified that at the time ofthe misconductdescribed above, appellate work comprised approximately 20-25% ofhis practice. He has reduced his appellate workload, which now constitutesonly about five percentor less ofhis practice.


### VII. Recommendation The Committee finds, based on clear and convincing evidence, that Mr. Vialet violated F
.R.A.P
.46(c); DR 6-101(A) and Rules l.l(b), 1.3(b); DR7-IOl(A) and Rules l.l(c)(l), (2), 1.2(e), 1.3(c); DR l-102(A)(4), (5), (7) and Rule 8.4(b), (c), (d). Although 

### ;1: Mr. Vialet practicedbefore the Courtwithout being admitted, crediting his testimony, he 

# !Iil believed he could do so becausehis application was pending and he was actively seeking admission. Accordingly, there is not clearand convincingevidence to support imposition 

# i ll ofdiscipline with respect to F.R.A.P. 46 and fonner Local Rule46(d)
. 

# ,i 

# I

II Itis the Committee'sconclusion**~hat** Mr. Vialet was not properly equipped to 

### ; '[I I I handle the influx ofSecond Circuitmatters that came in to his office

-- that is, Mr
.Vialet lacked sufficientpractical skills, supportstaff, and experience to adequately follow the Court'srules and properly protect his clients' interests. It also is this Committee's conclusion, however, that because ofMr.' Vialet'seducational background and his genuinededication to his clients' needs, Mr. Vialet is indeed capable ofcompetently representingpetitioners before the Court. The Committee finds that Mr. ViaJet could benefit from continued, and targeted, legal education regarding handling cases at the appellate level and overall law practice management. Consequently, this Committee recommendsthat the Court require Mr
.Vialet to attend and participate in continuing legal education as part ofany sanction it may order. " In light ofall the factors noted above, the Committee recommends that Mr. Vialet receive apublic reprimand from the Court. This Committee further recommends that within six months ofthe dateofany oiderofthe Court, he be required to complete no fewer than six hours ofcontinuing legal education ("CLEn) in appel/ate level advocacy,



### 1.1 23432676v1focusing on immigration, and no fewer than six hours ofCLE in lawoffice/practice management from CLE providers accredited by the barofNew York, in addition to the CLE hours required for aU attorneys admitted in New York State. This Committee recommends that Mr. Vialet be required to complete these CLEcredit hours through inperson attendance at**s~minars.** Mr. Vialet should exercise duediligence in seeking out courses that will provide infonnation and direction for his substantiverepresentation and practical management in federal appellate matters. He should report and provide documentation ofhis complianceto this Committee's Secretary no later than thirty days after the expiration ofthe time to completethese CLE credit hours
. Respectfully submitted, 

### \?

# --:::> -;J

### ~**~,...** 

# "c; Member ofthe Committee

12 23432676v1