09-90l32-am 


In r e Via let 


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 The od o re Anthony Vialet, 

Attorney. 	 ORDER OF 

GRIEVANCE PANEL 

For Theodore Anthony Vialet: Theodore Anthony Vialet, Esq., 

New Yo rk, New Yo rk. 

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 des c ribed in the 

5 Committee's report. 
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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. Via let 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 Via let with a copy 

of the Committee's report, and Via let responded. 

In its report, the Committee concluded that there was clear and 

convincing evidence that Via let had engaged in misconduct warranting 

the imposition of discipline. Report at 11. Specifically, the 

Commi ttee found that Via let 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 

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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 Via let be publicly reprimanded 

and required to complete certain continuing legal education ("CLEU) 

classes, id. at 11-12. 

Wi th regard to mi tiga tion, 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 

also had been able to reopen Sy v. Holder, No. 09-077 9-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 

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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 Via let 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 

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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 Commi t 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]. 

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25 Report at 6. The reference to "some of the cases that were 

26 dismissed by the Court," and the cita tion 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 

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1 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 brief19 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 Commi ttee' s secretary, who 

27 will inform him whether the Committee agrees that the 

28 proposed courses satisfy his obligation. 

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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 

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1 requirements and deadlines, either on motion or sua 

2 sponte. 

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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 Via let 

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 

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17 FOR THE COORT: 

18 Catherine O'Hagan Wolfe, Clerk 

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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. 

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1 APPENDIX 1 

2 Text of February 2010 Order 

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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. 

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13 Via let 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"); 

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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 transfer the case. 1 

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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. 

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time, or substitution of counsel. 

In addition to the above-noted issues, panels of this Court 

also have remarked upon poor briefing by Via let 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 

Via let has submitted a brief that we have deemed insufficient" and 

stated that "Via let 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 

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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 Via let 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 

In Re: Theodore Anthony Vialet, #09-90132-am 

I. Introduction l By Order dated February 25, 20 10 ("Referral Order"), the United States Court of 

Appeals for the Second Circuit (the "Court") referred Theodore Anthony Vialet to this I Committee for investigation of his conduct before the Court and for preparation of a 

report on whether he should be subject to discipline or other corrective measures. 

Mr. Vialet is a solo practitioner specializing in immigration law, with a heavy 

concentration on asylum and removal cases. He was admitted to practice before the 

Court on December 30. 2009, after wbat he characterized as two previous attempts to be 

admitted. The Court's Referral Order raises two areas of concern: (l) faHure to abide by 

the Court's scheduling orders in II of34 cases filed between January 1,2008, and the · 

date of the Referral Order; and (f.) poCllr briefing in six specific cases. Additionally, while 

not raised 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 prior to his, 

admission to practice before the Court. 

The Committee concludes that Mr. Vialet has committed misconduct andihat his 

misconduct warrants a sanction. The Committee recommends that Mr. Vialet be publicly 

23432676v1 
reprimanded 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 Order and this Disciplinary Proceeding 

On March 1,2010, this Commilttee issued a Notice of Referral and Proceeding 

requiring Mr. Vialet to show cause why it should not recommend disciplinary and/or 

other corrective action with respect to ~he conduct alleged in the Court's Referral Order. 

The Referral Order addressed 34 separ te matters pending before the Court in 2008-2010 

in which Mr. Vialet was listed as counsel of record. By letter of March 10, 2010, Mr. 

Vialet timely requested a sixty-day extension of his time to respond, and he was granted a 

forty-five-day extension by this Committee. On May 13,2010, Mr. Vialet timely 

submitted a response with exhibits. Thereafter, Mr. Vialet submitted two supplemental 

responses, one on May 21, 20 I 0, and another on September 24, 20 10. A hearing was 

held on October 8, 20 I 0, before a sub<;ommittee consisting ofTerrence M. Cormors and 

Kimberly A. Knox. Mary Jo White p~icipated in committee deliberations via telephone 

conference. Mr. Vialet appeared pro se and testified on his own behalf. 

At the conclusion of the hearing, Mr. Vialet was provided 30 days to submit 

letters of reference on his behalf. He submitted one letter from Manuel D. Gomez, Esq. 

Mr. Gomez is a colleague of Mr. VialQt's, and he writes that Mr. Vialet made court 

appearances on behalf of Mr. Gomez ih Bankruptcy and Civil Court. He "valued" Mr. 

Vialet's work as well as the fact that he treated Mr. Gomez's clients well. Mr. Gomez 

often consulted Mr. Vialet for advice on immigration law matters. Mr. Gomez also notes 

that Mr. Vialet works long hours, and he states that he admires Mr. Vialet's work as a 1111 

lawyer and highly recommends him. I 

III. Factual Background 

The following facts are taken from Court records, Mr. Vialet's written 

submissions with documentation, and the testimony presented at the hearing. 

Mr. ViaJet is a solo practitioner in 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 of New York. He is 53 years I I 

,' old. 

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23432676v1 

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Mr. Vialet graduated from Fordham University and earned his law degree from 

New York Law School. 

Mr. Vialet has been a solo practitioner for most of his career. At times, he has 

had one or two non-lawyer employees assisting him. His immigration work is comprised 

main'y of asylum applications and largely involves West African immigrants. 

According to Mr. Vialet's testimony, following a successful appeal involving the 

issue of female genital mutilation (see Bah v. Mukasey, 529 F.3d 99 (2d Cir. 2008)) as 

well as his successes before the Board of Immigration Appeals, Mr. Vialet's case load 

increased, and he received an influx of clients seeking his services with respect to appeals. 

By his own admission, he was overworked and unable to handle his caseload, especially 

because, as a solo practitioner, he had no assistance. Since the Court issued its Referral 

Order, he has limited the number of Second Circuit cases he accepts. Mr. Vialet testified 

that at the time of the hearing, he had five cases pending before the Court. As of 

February 1,2011, Mr. Vialet had five cases pending before the Court, four of which were 

filed after he received notice of the Referral Order. 

IV. Legal Standard 

Under the Rules of the Committee on Admissions and Grievances for the United 

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

An attorney may be subject to discipline or other corrective 


measures for any act or omission that violates the rules of 


professional conduct or responsibility of the state or other 


jurisdiction where the attorney maintains his or her 


principal office .... An attorney also may be subject to 


discipline or other corrective measures for any failure to 


comply with a Federal Rule of Appellate Procedure, a 


Local Rule of the Court, an order or other instruction of the 


Court, or a rule of professional conduct or responsibility of 


the Court, or any other conduct unbecoming a member of 


the bar. 


Committee Rule 4; see also Federal Rule of Appellate Procedure ("F.R.A.P.") 46(c) ("[a] 


court of appeats may discipline an attorney who practices before it for conduct 


unbecoming a member of the bar or for failure to comply with any court rule"). t , 


" 

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

professional standards that shows an unfitness to discharge continuing obligations to 

clients or the courts, or conduct inimical to the administration ofjustice. More specific 

guidance is provided by case law, applicable court rules, and 'the lore of the profession,' 

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23432676v1 II 

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as embodied in codes of professional conduct." In re Snyder, 472 U.S. 634, 645, 105 S. 

Ct 2874, 2881 (1985). 

Under F.R.A.P. 28(a)(9)(A), an appellant's brief must contain "appellant's 

contentions and the reasons for them, with citations to the authorities and parts of the 

record on which the appellant relies." I 

Under F.R.A.P. 46 and the Court's fonner Local Rule 46, an attorney must be 

admitted to the Court before practicing before it. 

Because Mr. Vialet was a member of the bar of New York State during the time 

period at issue, the New York State Code of Professional Responsibility ("the Code") 

applies to conduct through April I, 2009, and the Rules of Professional Responsibility 

("the Rules"), which took effect on April I, 2009, apply to his conduct on or after that 

date. Three areas are relevant in this matter. First, fonner DR 6-101 (A) provides that a 

lawyer shall not: 

• 	 "Handle a legal matter which the lawyer knows or should know that he or 


she is not competent to! handle, without associating with a lawyer who is 


competent to handle it," DR 6-IOI(A)(l). 


• 	 "Neglect a legal matter entrusted 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 matter that the lawyer 


knows or should know that the lawyer is not competent to 


handle, without associating with a lawyer who is competent 


to handle it." Rule 1.1 (b). 


"A lawyer shall not neglect a legal matter entrusted to the 


lawyer." Rule 1.3(b). 


Second, former DR 7-10 I (A) directed that attorneys shall not intentionally: 	 II 

I. 	 [f]ail to seek the lawful objectives of the client through reasonably 


available means pennitted by law and the Disciplinary Rules; 


2. 	 fail to carry out a contract of employment entered into with a client for 


professional services; 


3. 	 prejudice or damage the client during the course of the professional 


relationship. ~ 

Similarly, under the current Rules, a lawyer: 

4 

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. 1 

• 	 "may exercise professional judgment to waive or fail to assert a right or 

position of the client, or accede to reasonable requests of opposing counsel, 

when doing so does not prejudice the rights of the client," Rule 1.2(e); 

• 	 "shall not intentionally fail to carry out a contract of employment entered 

into with a client 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 of the client through 

reasonably available means pennitted by law and these Rules; or prejudice 

or damage the client during the course of the representation except as 

pennitted or required 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 ofjustice, and/or that "adversely reflects 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's rules, "[a]ny finding that an attorney has engaged 

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

and convincing evidence." Committee Rule 7(h). Once misconduct has been established, 

in detennining the sanction to be imposed, the Committee should generally consider: W 

the duty violated; ® the lawyer's mental state; W the actual or potential injury caused 

by the lawyer's misconduct; and @ the existence of aggravating or mitigating factors. 

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

Standards") III(C)(3.0). This Committee may recommend to the Court's Grievance Panel 

a range of sanctions, including disbarment, suspension, public or private reprimand, 

monetary sanction, removal from pro bono or Criminal Justice Act panels, referral to 

other disciplinary bodies, supervision by a special master, counseling or treatment, or 

"such other disciplinary or corrective measures as the circumstances may warrant." 

Committee Rule 6. 

V. 	 The Alleged Misconduct 

A. 	 Failure to Abide by the Court's Scheduling Orders 

Most of the allegations against Mr. Vialet concern his failure to abide by the 

Court's scheduling orders in 31 of 34 cases filed with the Court between 2008 and the 

date of the Referral Order in 2010. In I I of those cases, the petitions were dismissed for 

failure to comply with the Court's scheduling orders, and Mr. Vialet did noC seek 

reinstatement on his clients' behalf. In 10 cases, Mr. Vialet filed briefs or took other. 

action only after the Court issued Orders to Show Cause. In one case, Mr. Vialet filed the 

petition for review in the Second Circuit, but the proper venue was the Fifth Circuit, and 

the Court had to expend time and resources to transfer the matter. In the remaining nine 

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cases cited by the Court, briefs were accepted despite late filing or extensions of time 

granted after the deadline had passed. 

In his written submission, Mr. Vialet attributed his failure to adhere to the 

scheduling orders to the following reasons: (D poor health; (2) an urunanageable 

caseload and no support; and (J) short deadlines imposed by the Court's rules. At the 

hearing, Mr. Vialet's explanation for his alleged deficiencies in complying with 

scheduling orders focused on his caseload and the fact that he was a solo practitioner with 

no help. He did not provide any further details about his health issues, stating only that 

although he is "not in great health," he is able to work. 

Mr. Vialet did not offer specific responses to each of the cases listed in the 

Referral Order but rather chose to address the issue more generally, as described above. 

Mr. Vialet had some additional observations about certain cases and categories of cases. 

For example, he noted that in some of the cases that were dismissed by the Court, he was 

able to reopen the matter before the Board of Immigration Appeals and therefore sought 

to protect his dients' interests by pursuing alternative relief. See, e.g., Diallo v. DHS, 08­

04 I 6-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 a year before the petition was filed. Mr. Vialet 

acknowledged that he should have filed in the Fifth Circuit and acknowledged that he 

simply made 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 "forgot to ask for an 

extension" and again cited short filing deadlines and his large caseload. 

In two of these matters, the Court openly criticized Mr. Vialet's failure to abide 

by the scheduling orders. See Barry v. Mukasey, 08-4027 (the Court noted Mr. Vialet's 

"indifference to the scheduling orders of this Court"); Sy v. Holder, 09-0779 ("Counsel's 

behavior reflects 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 because he had no support, he was required to do his 

own typing, printing, and copying of the briefs and appendices, which took considerable 

time. He stated that he has undertaken corrective measures in his office -- specifically, 

hiring two employees to assist him, using a computerized diary system, and discussing 

upcoming dates and deadlines with his secretary on a weekly basis. Mr. Vialet added that 

the Court's implementation of electronic filing has largely alleviated the burdens 

associated with perfecting his appeals as he is no longer required to print, copy, bind, and 

file hard copies of the briefs and appendices. He also noted that the rules have been 

amended to provide more time for him to file briefs after the record is filed . 

Additjonally" it should be noted that on October 29,2009, Mr. Vialet was the 

subject ofa client complaint to the Departmental Disciplinary Committee of the First 

Judicial Department. According to Mr. Vialet, the client filed a complaint after Mr. 

6 


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Vialet advised him of his right to do so following the dismissal of the client's appeal for 

failure to timely file the appeal before the Board of Immigration Appeals. Mr. Vialet 

testified at the hearing that he continues to represent the cI ient before the Board of 

Immigration Appeals, where he was successful in reopening his client's case. Thus, it 

appears that the client was not prejudiced by the dismissal of his appeal. Additionally, on 

June 18,2010, the Departmental Disciplinary Committee closed 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 of their petitions due to his failure to comply with the 

scheduling orders. Mr. Via let explained that he attempts to contact his clients via 

telephone and then present them with the decisions of the 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's concern that Mr. Vialet's conduct evidenced 

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 

commitment to his clients and their interests. 

This Committee finds that the clear and convincing evidence demonstrates that 

Mr. Vialet's conduct in failing to comply with the Court's scheduling orders was 

prejudicial to the administration ofjustice and "adversely reflects on [his] fitness as a 

lawyer." DR 1-102(A)(5), (7); Rule 8.4(d). Because Mr. Vialet acknowledged that some 

of his clients may have been prejudiced by the dismissal of their petitions as a result of 

his failure to meet scheduling deadlines in the cases where he did not seek reinstatement 

of the petitions or pursue 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 a public 

reprimand. See, e.g., In re Kuzmin, 20 10 WL 3980018 (2d Cir. 20 I0) (Court dismissed 

28 of 102 petitions for review for failure to comply with scheduling orders); In re 

Adinolfi, 20 I 0 WL 3623 152 (2d Cir. 20 I0) (attorney continued to default on scheduling 

orders after being put on notice of the Court's concerns); In re Gut/fein, 378 Fed. App. 24 

(2d Cir. 2010) (Court dismissed 32 of 50 petitions for review for failure to comply with 

scheduling orders). 

B. Poor Briefing 

The Referral Order also requested a response regarding poor briefing in six 

matters. In three of these matters, the Court had publicly criticized Mr. Vialet's briefing 

and warned that further deficient briefing could result in discipline. See.Bah v. DHS,07­

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

(same admonition); Barry v. Mukasey, 08-4257 ("This is not the first time that Vhllet has 

submitted a brief that we have deemed insufficient." ... "Vialet is again warned that 

future briefing of this 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 of the petitions. See Sy 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 

of his briefs were inadequate. He again attributed this to his workload, lack of assistance, 

and time pressures to complete briefs. In at least one of the cases cited in the Referral 

Order, Mr. Vialet resubmitted a brief of what he believed was better quality. See Sow v. 

Mulcasey,08-4609. Mr. ViaJet also asserted that the poorly written briefs were only a 

small percentage of the total number of briefs he submitted to the Court. He also 

provided examples of briefs he has submitted to the Court to demonstrate his briefwriting ability. In response to questioning about the similarity of the legal standard and 

legal arguments in many of his briefs, Mr. Vialet explained that many of his cases 

concern the same issues, and so, while he recognizes that each case is unique, he said that 

there often is no reason to change these sections from brief to brief. 

The Committee finds that clear and convincing evidence demonstrates that Mr. 

Vialet's poor briefing violated F.R.A.P. 28 and has not improved. The Committee 

obtained copies of the briefs that Mr. Vialet filed with the Court in 2010 after receiving 

the Court's referral order, has reviewed them, and finds that his briefing has not improved. 

Mr. Vialet has, 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 of Immigration Appeals found the 

petitioner's claim to be untimely and therefore applied the more stringent "more likely 

than not" standard), and continues to come close to waiving any challenge to the 

agency's adverse credibility findings despite previous warnings from this Court. 

Compare Diallo v. Holder, 10-1504 with Diallo 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, together with his failure to abide by the Court's scheduling orders, 

thus warrants a public reprimand. See In re Zhang, 376 Fed. Appx. 104 (2d Cir. 20 I0) 

(poor briefing continued post-hearing). 

C. Practice Before the Court Prior to Admission 

Although the issue of Mr. Vialet's practice before the Court prior to his admission 

was not raised in the Referral Order, this Committee was troubled by that apparent 

practice. He was admitted to practice before the Court on December 30, 2009, and yet he 

submitted briefs to the Court and appeared for at least one oral argument prior to that date 

in cases in which he was not admitted pro hac vice. ,. 

Mr. Vialet explained at the hearing that he had "been trying for years to get" 

admitted" prior to his admission in December 2009. On at least one occasion he had 

trouble with his sponsors - one turned out not to be admitted before the Court and another 

8 

23432676v1 

, 

r

I' 

I 

. I 

I 

'I 

I I 
I'll 

J 

withdrew his 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 of his oral argument before the Court in April 2008. 

He also noted that his submissions to the Court prior to his admission indicated that his r 

application was pending, and he said he had been told that he could file cases with the '.' 

Court while his application was pending. Mr. Vialet admitted having been criticized by 

the Court during his April 2008 oral argument because he was not admitted, and he 

acknowledged that his application may not have been actually pending when some 

petitions were filed. 

Under the former Second Circuit Local Rule 46(d): "Counsel of record for all I "I 

, 

parties must be admitted to practice before this court. Oral argument may be presented 

only by attorneys admitted to practice before this court. Under exceptional circumstances 

an attorney may be admitted pro hac vice." 

As the Court noted in In re Yan Wang, 2010 WL 2812824 (2d Cir. 2010) at *7, 

however, 

"during the relevant time period, some employees of this 


Court had interpreted this rule as meaning that an attorney 


litigating before this Court need not be admitted to the bar 
 til of thi.s Court unless he or she intended to orally argue the 


case. We also are informed that attorneys inquiring about 


the Court's admission requirements were so advised. For 


purposes of this proceeding, we need not decide whether 


we agree with that interpretation of the rule. However, we 


find that a reasonabte attorney could have accepted, and 


acted upon, a Court employee's explicit instruction that 


admission need not be sought for purposes of filing 


documents with the Court." 


Therefore, crediting Mr. Vialet's testimony that 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 Court prior to his 

admission was not in violation of the Court's former rule. While his oral argument prior 

to his admission before the Court was in violation of the Court's rule, in light of the fact 

,I

that Mr. Vialet was reprimanded by the Court at the time of his oral argument, he has 

since been 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 

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23432676v1 

·U 
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I ' 

'II 


, 

VI. Aggravating and Mitigating Factors 

There are both aggravating and mitigating circwnstances here. See ABA r 

Standards 9.22; 9.32. 

111 

A. Aggravating Factors 

I A pattern of failing to meet deadlines or failing to apply for an extension before 

the deadline has passed would be an aggravating circumstance, and an isolated instance , nl 

would be a mitigating circumstance. See ABA Standard 9.22(c) ("a pattern of 

misconduct"); 9.22(d) ("multiple offenses"). The facts here fall slightly on the side of I' 

I aggravation. Mr. Vialet provided explanations for some, but not all, of the 11 petitions I 

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

explanation for his inability to adhere to the scheduling orders in the remaining cases 

cited in the Referra'l Order. He acknowledged that some of his clients may have been 

prejudiced by the dismissal of their 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 of February 1, 2011, he had filed five petitions with 

the Court after receiving notice of the Referral Order. In two of those matters, he filed 

his briefs one day late, and in another he filed form C/A only after the Court issued an I, order dismissing the appeal unless form C/A was filed. See dockets for Dia/lo v. Holder, 


10-1080 (brief was due on September 15, 2010; brief was filed on September 16, 201 O); I 

I I• 


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


October 1, 201 O); Dia/lo v. Holder, 11-0096 (order issued January 25, 2011 dismissing 


appeal by February 8, 20 I J unless form C/A filed; form C/A filed January 25, 20 II). 
 I 

There are not yet briefing schedules in the remaining two matters. 

I 

B. Mitigating Factors I 

I I 

There also are significant mitigating factors in this matter. For example, Mr. I

I 

Iii 

Vialet's conduct is significantly mitigated by his evident remorse and by his lack of any 

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 tegal 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" practice outside the Court he has won approximately 70% of !I his cases this year. He also has enjoyed some success in the challenging area of female I genital mutilation, and, as mentioned above, successfully represented two of the 

petitioners in the landmark case of Bah v. Mukasey, 529 FJd 99 (2d Cir. 2008). I 1,1 

! 

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23432676v1 
'II III 

A 

Further, Mr. ViaJet has accepted responsibility for the misconduct at issue and has 

instituted various corrective measures. As noted above, Mr. Via let has worked as a solo 

practitioner without any assistance for most of the time of the conduct at 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 

relati vely brief period of time, and Mr. Vialet has since made changes to the way his 

office functions by hiring employees to assist him, utilizing the Court's electronic filing 

system, and implementing a computerized calendar 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 appellate caseload and takes fewer 

Second Circuit cases. He testified that at the time of the misconduct described above, 

appellate work comprised approximately 20-25% of his practice. He has reduced his 

appellate workload, which now constitutes only about five percent or less of his 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); DR 7-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 practiced before the Court without being admitted, crediting his testimony, he !Iil believed he could do so because his application was pending and he was actively seeking 

admission. Accordingly, there is not clear and convincing evidence to support imposition ill 

of discipline with respect to F.R.A.P. 46 and fonner Local Rule 46(d). ,i I II 

It is the Committee's conclusion ~hat Mr. Vialet was not properly equipped to ; '[ I I I handle the influx of Second Circuit matters that came in to his office -- that is, Mr. Vialet 

lacked sufficient practical skills, support staff, and experience to adequately follow the 

Court's rules and properly protect his clients' interests. It also is this Committee's 

conclusion, however, that because of Mr.' Vialet's educational background and his 

genuine dedication to his clients' needs, Mr. Vialet is indeed capable of competently 

representing petitioners 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 

recommends that the Court require Mr. Vialet to attend and participate in continuing legal 

education as part of any sanction it may order. 

" In light of all the factors noted above, the Committee recommends that Mr. Vialet 

receive a public reprimand from the Court. This Committee further recommends that 

within six months of the date of any oider of the Court, he be required to complete no 

fewer than six hours of continuing legal education ("CLEn) in appel/ate level advocacy, 

1.1 

23432676v1 
focusing on immigration, and no fewer than six hours of CLE in law office/practice 

management from CLE providers accredited by the bar of New 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 CLE credit hours through inperson attendance at s~minars. Mr. Vialet should exercise due diligence in seeking out 

courses that will provide infonnation and direction for his substantive representation and 

practical management in federal appellate matters. He should report and provide 

documentation of his compliance to this Committee's Secretary no later than thirty days 

after the expiration of the time to complete these CLE credit hours. 

Respectfully submitted, 

\? --:::> -;J~ ~,... "c; 

Member of the Committee 

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