NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted April 3, 2013

Decided April 9, 2013

Before

FRANK H. EASTERBROOK, Chief Judge

WILLIAM J. BAUER, Circuit Judge

DIANE S. SYKES, Circuit Judge

No. D-13-0005

IN THE MATTER OF:

HERBERT L. GOLDBERG,

Respondent.

Disciplinary Matter

Order

On February 27, 2013, this court entered an order directing attorney 

Herbert L. Goldberg to show cause why he should not be disciplined for 

abandoning his client in United States v. Rowe, No. 11-3177, a criminal appeal. 

Goldberg did not respond to this order and was summarily suspended from 

practice pending further action by a motions panel. That step at last produced a 

response, in which Goldberg asserted that he did not “fully see” what the order 

of February 27 required. The order was not a long document; counsel’s failure to 

read and comply is perplexing. And as it turns out even the belated response 

(filed on March 27) does not provide helpful information.

That order stemmed from Goldberg’s failure to file an opening brief in a 

criminal appeal that had been pending for seventeen months. (The notice of 

appeal was filed on September 26, 2011.) The appeal had been marked by 

protracted delay. Soon after the notice was filed, the lawyer then representing 
No. D-13-0005 Page 2

Rowe told the court that he would be replaced by Goldberg. It took Goldberg 

until May 2012 to file the motions (and consent of the client) needed to 

accomplish this simple task. To get those papers filed, the court had to issue an 

order requiring Goldberg to show cause why he should not be disciplined.

Neither Goldberg nor Rowe’s original appellate lawyer placed a timely 

order for the trial transcript. Goldberg then started lodging motions for extension 

of time to file the brief (which already was overdue). The motion filed on 

December 17, 2012, told the court that the transcript had been received at the 

beginning of the month and that “this will be counsels [sic] last request for any 

extension of time.” The court extended the due date until January 25, 2013, which 

was more than enough time from delivery of the transcript to prepare an 

opening brief. This order provided that further extensions would be granted only 

in extraordinary circumstances.

On January 24, 2013, one day before the new due date, Goldberg asked for 

another 30-day extension. Circuit Rule 26 requires such applications to be filed at 

least a week before the brief is due; Goldberg did not offer any explanation for 

his failure to comply with that rule. Nor did the motion make any effort to 

demonstrate an extraordinary circumstance. Finally, the motion did not attempt 

to explain why counsel was going back on the promise he had made in 

December that no further extension would be requested.

The court granted this motion despite all of these problems. In criminal 

cases, counsel’s failure to file a timely brief is hard to cope with. If the appeal is 

dismissed for want of prosecution, the defendant soon will charge his lawyer 

with ineffective assistance, and the remedy for that is a new appeal. The court 

therefore tries to have matters resolved in the initial appeal, using the 

disciplinary mechanism rather than dismissal of the appeal to enforce the rules.

This court's order of January 25, 2013, reset the due date at February 25 

and provided that no further extensions would be granted under any 

circumstances.

On February 25, 2013, attorney Goldberg filed—not a brief, but still 

another motion for extension of time. This motion again failed to comply with 

Circuit Rule 26, failed to note that counsel had twice promised the court that no 

further extension would be sought, and failed to address the statement in the 

order of January 25 that no further extensions would be forthcoming. Like 

Goldberg’s other motions, this was generic: it invoked press of business, not any 

exceptional circumstance. Yet every lawyer has a professional duty to take no 

more work than he can handle in a timely fashion. It is apparent that attorney 

Goldberg has failed in this duty to the court and his client. Goldberg’s delay also 

has caused the resolution of the appeal filed by Rowe’s co-defendant to be 
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unduly deferred. The co-defendant’s brief was filed in June 2012. Rowe’s brief 

should have been filed then too.

Goldberg’s motion of February 25 said that it would be his final request. 

But the court had heard that song before. On February 27 the court entered an 

order denying the motion for extra time; providing that the appeal would be 

dismissed for want of prosecution (leading to an adjudication that Goldberg had 

provided ineffective assistance) unless a brief appeared within 14 days; directing 

that Goldberg be placed on the list of lawyers ineligible for appointment as 

counsel under the Criminal Justice Act and ineligible for more than two 

extensions of time in any future appeal; and directing that he show cause why he 

should not be disciplined. As we have mentioned, Goldberg ignored the showcause order until the first disciplinary step had been taken. He did tender an 

Anders brief on the fourteenth day, but it did not comply with the Federal Rules 

of Appellate Procedure. It was eventually replaced by a compliant brief, but the 

disciplinary matter remains.

Goldberg contends that discipline is unnecessary because he has learned 

his lesson and will not again delay so long in filing. But given the unreliability of 

his past promises—and the fact that his belated response does not even try to 

explain why he tarried so long in filing the brief, and why he had not kept his 

earlier promises—it would be inappropriate to close this proceeding without 

some concrete step.

It seems to us that the minimum discipline is a formal censure for failing 

to perform duties to the client to file documents in a timely manner, and failing 

to perform duties to the court to comply with judicial orders and keep promises 

made to the judiciary. This order represents that censure, which Goldberg must 

send to every court in which he is currently licensed to practice.

Goldberg’s failure to serve his client’s interests also requires him to refund 

to his client any fees he has accepted for his professional services to Rowe. In the 

end, Goldberg did not file an advocate’s brief to assist his client’s cause.

The suspension previously entered will remain in effect until attorney 

Goldberg files an affidavit demonstrating that he has complied with both the 

censure and the restitution components of this order. Goldberg’s right to practice 

in this court then will be restored, though he will remain on the lists of lawyers 

ineligible for CJA appointments and ineligible for more than two extensions 

following availability of the transcript.

If in any future case Goldberg again fails to discharge his duties to his 

clients and the court, he should not expect lenience.