07-9085-am
In re Jorge Guttlein
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 20~ day of May, two thousand ten.
PRESENT:
Jose A. Cabranes,
Robert D. Sack,
Richard C. Wesley,
rcui t Judges.
07 90BS-am
In re Jorge Guttl
Attorney. ORDER OF
GRIEVANCE PANEL
FOR JORGE GUTTLEIN: Richard M. Maltz, ., New York, New
York.
1 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
2 DECREED that the of this Court's Committee on Admissions
3 and Grievances ("the Committee") is adopted, and Jorge Guttlein
1 is PUBLICLY REPRIMANDED for the misconduct des in the
2 Committee's report.
3 By 0 rs filed in December 2007 and March 2008, this Court
4 referred Guttlein to the Committee for investigation of the
5 matters cribed in those orders and preparat of a report on
6 whether should be subject to disciplinary or corrective
7 measures.
8 During Committee's proceedings, Guttlein had
9 opportunity to address the matters discussed in the Court's
10 re 1 and to testify under oath at a held on
11 September 19, 2008. Guttlein was represented during the
12 Committee's proceedings by Richard M. Maltz, Esq. Presiding over
13 the hearing were Committee members Paul Curnin, Esq., Terrence M.
14 Connors, ., and Eileen M. Blackwood, Esq. In May 2009, the
15 Committee 1 with the Court the record of the Committee's
16 proceedings and s report and recommendations. Therea , the
17 Court provided Guttlein with a copy of the Committee's report,
18 and Gutt in responded.
19 In s report, the Committee concluded that there was
20 and convincing evidence that Guttlein had engaged in conduct
21 warranting imposition of discipline. See Report at 1, 10.
22 After noting sence of various aggravating and mit
23 factors, id. at 10, the Committee recommended that be
24 publicly reprimanded and subject to certain reporting
2
1 requirements, id. at 11-12. In his response, Guttlein does not
2 take issue with any of the Committee's factual findings, but
3 requests that a private, rather than publ ,reprimand be imposed
4 and that certain of the recommended reporting requirements be
5 modified. See Response at 1-5.
6 Guttlein's referral to the Committee was based on his
7 history of defaulting on deadlines set by this Court and his
8 deficient briefing in one case. Guttlein's compliance with this
9 Court's deadlines has improved. A review of this Court's records
10 indicates that, since September 1, 2008, Guttlein has had 13 open
11 cases in this Court and has complied with the applicable
12 deadlines in most them. As far as can be determined, his
13 recent defaults are limited to the following three cases.
14 In Ai Muntasr v. Mukasey, 08-0995-ag, Guttlein submitted his
15 brief three days after the July 2009 deadline set in this Court's
16 scheduling order.l See Muntasr, 08-0995-ag, order filed June
17 3, 2009 (setting deadline of July 3, 2009 for brief); entry
18 noting receipt of brief on July 6, 2009; brief led Aug. 6, 2009
19 at 31 (a idavit of service for brief, noting delivery to Court
I The July 2009 default in Ai Muntasr was preceded by a June
2008 default. See Ai Muntasr, 08-0995-ag, order filed May 15,
2008 (setting June 2008 deadline for brief); government motion
led Aug. 22, 2008 (requesting dismissal based on petitioner's
failure to file brief); response to motion led Sept. 3, 2008,
affirmation at ~~ 3-8, 10 (noting law office's mishandling of
scheduling order). However, since the June 2008 default preceded
the Committee's ring and was discussed by Guttlein in his
post-hearing submission to the Committee, we do not consider it
our review Guttlein's recent story.
3
1 by hand on July 6, 2009). In Hasan v. Holder, 08-4756-ag,
2 Guttlein failed to timely fi Form CIA, causing this Court to
3 issue an order to show cause why the appeal should not be
4 dismissed based on his default. See Hasan, 08-4756-ag, order
5 filed Oct. 16, 2008. After Guttlein timely responded to the
6 order and submitted the missing form, the case proceeded. See
7 id., responses led Oct. 21 and 23, 2008. In Rahman v. Mukasey,
8 08-1484-ag, Guttlein successfully moved to fi his reply brief
9 out of time, stating that the former associate who had drafted
10 the opening brief had failed to discuss a relevant precedent and,
11 after that associate's departure from the firm, the case was not
12 reassigned to another associate. See Rahman, 08 1484-ag, motion
13 filed Sept. 24, 2008, at 1-2.
14 Additionally, the quality of Guttlein's briefing was called
15 into question in one recent case. In Mej -Carrasco v. U.S.
16 Department of Jus ce, 08-4136-ag, the Court found that Guttlein
17 had waived any challenge to the immigration judge's adverse
18 credibility determination, which stood as a valid basis for the
19 agency's denial of reI f. See Mejia-Carrasco, 08-4136-ag, brief
20 led Feb. 3, 2009; order filed Aug. 31, 2009, at 2-3. The Court
21 noted that Guttlein's
22 only mention of the IJ's credibility determination
23 his somewhat baffling assertion that the IJ's
24 credibility determination was not suf ciently
25 explained because the IJ's oral decision was not
26 initially included in the record. He does not assert
27 that the absence of the oral decision from the record
4
1 prevented him from challenging the IJ's credibility
2 determination or that he lacks a copy of that decision.
3 Moreover, once the government provided an amended
4 certified administrative record that included the IJ's
5 decision, [Guttlein] made no effort to submit a revised
6 brief addressing the IJ's explicit adverse credibility
7 determination.
8 Id. at 3 (footnote omitted). It is our hope that Guttlein will
9 make further improvements in the above-noted areas.
10 Upon due consideration of the Committee's report, the
11 underlying record, and Guttlein's submissions, it is hereby
12 ORDERED that Guttlein is PUBLICLY REPRIMANDED for the misconduct
13 described in the Committee's report and DIRECTED to comply with
14 the reporting requirements described on pages 11 and 12 of the
15 Committee's report.
16 We deny Guttlein's request to impose a private reprimand.
17 Guttlein's misconduct included the ling of a petition for
18 review in this Court without a good faith basis for believing any
19 nonfrivolous issue might be raised, see Report at 7, 10, failing
20 to address the dispositive issue in that same case, see id., at
21 7-8, and failing to comply with numerous scheduling orders, which
22 caused both the dismissal of many cases based on his defaults,
23 and significant inconvenience to the judges and staff of this
24 Court, see id., at 8-10. Additionally, whi no concrete
25 prejudice to his clients or others has been shown, his pattern of
26 misconduct created a significant risk of prejudice. Although
27 Guttlein stated that most of the defaulted cases were not pursued
5
1 due to the clients' abandonment of their cases or the clients'
2 agreement to discontinue, Guttlein unsuccessfully requested
3 reinstatement of several of the dismissed cases. See cases
4 docketed under 03-4394, 05-1515, 05-3398, 06-4989, 06-5791. This
5 suggests that he and/or his clients believed that those cases
6 were worth pursuing and that, at the very least, the clients may
7 have been prejudiced by the forfeiture of their right to review
8 of their cases by Article III judges. See, e.g., Saldarriaga v.
9 U.S. Department of Justice, 05-3398-ag, motion to reinstate filed
10 June 28, 2006, affirmation at ! 9 ("the instant case raises
11 important issues and should be considered on its merits") .
12 Although we acknowledge the mitigating factors found by the
13 Committee, we find that Guttlein's misconduct warrants at least a
14 public reprimand.
15 We also decline to modify the reporting requirements to
16 relieve Guttlein the need to report on his practice before
17 federal administrative agencies. In the present case, we view
18 Guttlein's ability to properly handle his administrative agency
19 caseload as relevant to his ability to meet his professional
20 obligations to this Court. As a practical matter, an attorney
21 who cannot meet his professional obligations in other venues
22 bears watching in this Court. As an ethical matter, the Court
23 may legitimately question whether such an attorney should
24 continue to possess this Court's imprimatur obtained through
6
-- ._-------
1 membership in its bar. See Theard v. United States, 354 U.S.
2 278, 282 (1957) ("The power of disbarment is necessary for
3 the protection of the public in order to strip [an attorney]
4 of the implied representation by courts that [an attorney]
5 who is allowed to hold himself out to practice before them
6 is in 'good standing' so to do."); In re Jaffe, 585 F.3d 118,
7 121 (2d Cir. 2009) ("even where 'discipline' is not appropriate,
8 the Court may nonetheless determine, based on an attorney's prior
9 behavior, that she will be unable to conform her future conduct
10 to expected professional norms, and, as a result, that her
11 ability to practice in this Court should be barred as a
12 corrective measure in order to protect the public, other
13 attorneys and litigants, the Court, and the administration of
14 justice"). In any event, as exemplified by Porras v. INS, 06
15 3067-ag, where Guttlein's conduct before both the Board of
16 Immigration Appeals and this Court was at issue, we see a close
17 relationship between Guttlein's performance before that agency
18 and his performance here.
19 Finally, we direct Guttlein to file the periodic reports
20 described in the Committee's report even if he has no defaults to
21 report.
22 The text of this panel's December 2007 and March 2008 orders
23 and the Committee's report are appended to, and deemed part of,
24 the present order for the following disclosure purposes.
7
1 Guttlein must disclose this order to all courts and bars of which
2 he is currently a member, and as required by any bar or court
3 rule or order. Furthermore, the Clerk of Court is directed to
4 release this order to the public by posting it on this Court's
5 web site and providing copies to members of the public in the
6 same manner as all other unpublished decisions of this Court, and
7 to serve a copy on Guttlein, this Court's Committee on Admissions
8 and Grievances, the attorney disciplinary committee for the New
9 York State Appellate Division, First Department, and all other
10 courts and jurisdictions to which this Court distributes
11 disciplinary decisions in the ordinary course.
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk
By: Michael Zachary
Counsel to the Grievance Panel
APPENDIX 1
Text of December 2007 order
For the reasons that follow, Jorge Guttlein is referred to
this Court's Committee on Admissions and Grievances for
investigation of the matters described below and preparation of a
report on whether he should be subject to disciplinary or other
corrective measures. See Second Circuit Local Rule 46(h). We
express no opinion here as to an appropriate disposition. The
Committee may, of course, in the first instance, determine the
appropriate scope of its investigation.
Since September 2005, this Court has dismissed 32 of the 50
8
petitions for review for which Guttlein was counsel of record for
the petitioners, based on the petitioners' failure to comply with
this Court's scheduling orders. See Second Circuit cases
docketed under 03-4107; 03-4394; 03-40429; 03-40942; 04-0913; 04
4127; 04-4829; 04-4957: 04-5128: 04-5726; 04-5861; 05-0245; 05
0978; 05-1243; 05-1515; 05-2072; 05-2467; 05-3519; 05-3398; 05
5218; 05-5280; 05-5791; 05-6073; 05-6307; 05-6642; 05-6718; 06
0990; 06-2001; 06-3363; 06-4989; 06-5791; 07-0464. This Court
also has dismissed three additional petitions for review for
which Guttlein was counsel of record for the petitioners, based
on the petitioners' failure to 1e form C/A pursuant to this
Court's Civil Appeals Management Plan. See Second Circuit cases
docketed under 05-4957; 06-1247; 06-2109. This Court's records
for the cited cases do not indicate that, prior to the respective
deadlines for filing of the briefs or forms, Guttlein requested
an extension of time to comply, a stay of proceedings, leave to
withdraw as counsel, or withdrawal of the appeal.
Upon due consideration of the matters described above, it is
ORDERED that Jorge Guttlein 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(h), and the Rules of the Committee on
Admissions and Grievances.
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk
By: /s
Michael Z
Counsel to the Grievance Panel
APPENDIX 2
Text of March 2008 order
By order entered in December 2007, Jorge Guttlein was
referred to this Court's Committee on Admissions and Grievances
for investigation of the matters described in that order. Since
that time, additional information regarding Guttlein has come to
the attention of this panel.
First, in an order filed on January 23, 2008, in Porras v.
INS, 06-3067-ag, the Court stated the following:
We are troubled by the poor quality of Porras's
brief in this case. Attorney Jorge Guttlein
represented Porras both before the agency and in this
9
-- -- --------
Court. Here, Guttlein submitted a brief of poor
quality that, inter alia, did not address the actual
basis for the BlA's decision. Additionally,
Guttlein's failure to exhaust Porras's application for
asylum, withholding of removal, and CAT relief
deprived Porras of the opportunity to meaningfully
challenge the lJ's denial of this relief.
Accordingly, we transfer the matter of Guttlein's
conduct in this case to this Court's Grievance Panel
for its determination of whether the matter should be
referred to the Court's Committee on Admissions and
Grievances.
Porras v. INS, 06-3067-ag, order filed Jan. 23, 2008, at 4.
Second, in an order filed on February 13, 2008, in Vargas
Gonzalez v. United States Department of Justice, 05-3562-ag, the
Court granted the motion for reinstatement filed by Guttlein
despite the untimeliness of the request. The order states the
following on the subject of Guttlein's untimeliness:
[T]he records of this Court indicate that the tardiness
of the appellant's counsel, Jorge Guttlein, in the
present appeal was not an isolated incident, as he has
failed to meet deadlines in a number of other cases in
which he is counsel of record. The issue of whether
that history of delay constitutes sanctionable
misconduct is transferred to this Court's Grievance
Panel for such action as it deems advisable under the
circumstances.
Vargas-Gonzalez v. United States Department of Justice, 05-3562
ag, order filed Feb. 13, 2008, at 1-2. Neither Porras nor
Vargas-Gonzalez was mentioned in the December 2007 referral
order.
Upon due consideration, it is ORDERED that the additional
information described above is referred to this Court's Committee
on Admissions and Grievances for its consideration in conjunction
with the information provided in this panel's December 2007
referral order.
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk
By:
--~~-~----~-------------------
Michael Zachary
Counsel to the Grievance Panel
10
APPENDIX 3
May 2009 Report of the Committee
on Admissions and Grievances
REPORT & RECOMMENDATION
Re: In re Jorge Guttlein, # 07-9085-am
I. Introduction
By orders dated December 18, 2007 and March 10, 2008, the United States Court of
Appeals for the Second Circuit (the "Court") referred Jorge Guttlein to this Committee for
investigation of his conduct before the Court and for preparation of a report on whether he
should be subject to disciplinary or other corrective measures.
Guttlein primarily practices immigration and criminal law (and the intersection of the
two). The Court's two referral orders raise two principal areas of concern. First, the Court has
dismissed several petitions for review for which Guttlein was counsel of record for failure to
comply with scheduling orders. Second, the Court recently criticized Guttlein's brief, which
failed to address the basis for the Board of Immigration Appeals (the "BIA") ruling from which
his client was appealing.
The Committee concludes that Guttlein has committed misconduct and that his
misconduct warrants a sanction. The Committee recommends that Guttlein be publicly
reprimanded. In addition, Guttlein should be required, in connection with his practice in any
federal court in the Second Circuit or in any federal administrative agency whose action is
subject to the Second Circuit's review, to submit to the Committee sworn statements identifying
under oath each and every instance during each of the four reporting periods described below in
which (1) a submission is not filed or filed out of time; or (2) an application is made for
permission to make a late filing only after the due date has passed. The following constitutes the
Committee's report and recommendation to impose discipline on Guttlein.
II. The Referral Orders
The Court initially referred Guttlein to the Committee by order dated December 18, 2007
("Referral Order I"). Referral Order I noted that between September 2005 and the date of
Referral Order I, the Court had dismissed 32 of 50 petitions for review for which Guttlein was
counsel of record for the petitioners. These dismissals were the result of the petitioners' failure
1
to comply with the Court's scheduling orders.! According to Referral Order I, the Court also had
dismissed three additional petitions for review for which Guttlein was counsel of record, based
on the petitioners' failure to file form C/A pursuant to the Court's Civil Appeals Management
Plan. 2
In a subsequent order dated March 10, 2008 ("Referral Order II," and together with
Referral Order I, the "Referral Orders"), the Court again referred Guttlein to the Committee.
According to Referral Order II, in an order filed on January 23, 2008 in Porras v. INS, 06-3067,
the Court stated:
We are troubled by the poor quality of Porras's brief in this case.
Attorney Jorge Guttlein represented Porras both before the agency
and in this Court. Here, Guttlein submitted a brief of poor quality
that, inter alia, did not address the actual basis for the BIA' s
decision. Additionally, Guttlein's failure to exhaust Porras's
application for asylum, withholding of removal, and CAT relief
deprived Porras of the opportunity to meaningfully challenge the
!J's denial of this relief. Accordingly, we transfer the matter of
Guttlein's conduct in this case to this Court's Grievance Panel for
its determination of whether the matter should be referred to the
Court's Committee on Admissions and Grievances.
Referral Order II also noted that in Vargas-Gonzalez v. United States Department of
Justice, 05-3562, the Court granted a motion for reinstatement filed by Guttlein on behalf of his
client despite the untimeliness of the request. The February 13,2008 order states:
[T]he records of this Court indicate that the tardiness of the
appellant's counsel, Jorge Guttlein, in the present appeal was not
an isolated incident, as he has failed to meet deadlines in a number
of other cases in which he is counsel of record. The issue of
whether that history of delay constitutes sanctionable misconduct
is transferred to this Court's Grievance Panel for such action as it
deems advisable under the circumstances.
According to Referral Order I, the 32 cases that had been dismissed were docketed under
03-4107; 03-4394; 03-40429; 03-40942; 04-0913; 04-4127; 04-4829; 04-4957; 04-5128;
04-5726; 04-5861; 05-0245; 05-0978; 05-1243; 05-1515; 05-2072; 05-2467; 05-3519;
05-3398; 05-5218; 05-5280; 05-5791; 05-6073; 05-6307; 05-6642; 05-6718; 06-0990;
06-2001; 06-3363; 06-4989; 06-5791; and 07-0464.
2
Those three cases were docketed under 05-4957; 06-1247; and 06-2109.
2
III. This Disciplinary Proceeding
On March 17,2008, the Committee issued an Order to Show Cause regarding Guttlein's
conduct as set forth in Referral Orders. A copy of the Referral Orders and the Committee's rules
were attached to the Order to Show Cause. On May 12, 2008, Guttlein submitted a declaration
in response to the Order to Show Cause.
A hearing in this matter was held on September 18, 2008 before a sub-committee
consisting of Eileen M. Blackwood, Terrence M. Connors, and Paul C. Cumin. Guttlein was
represented at the hearing by Richard Maltz.
Mr. Maltz requested and received permission to submit additional information and
character evidence after the hearing on Guttlein's behalf. The Committee also asked Guttlein to
submit additional information about his prior disciplinary history and any currently pending
cases after the hearing.
After the hearing, Guttlein submitted the information requested by the Committee as well
as several character letters from both federal and state judges and other lawyers. A brief
summary of a few of the character letters, which are generally representative, follows.
The Honorable Denny Chin, a United States District Court Judge for the Southern
District of New York, who has known Guttlein since they served together as Assistant United
States Attorneys, believes that Guttlein "is a capable, responsible attorney of high moral
character and integrity" who represents his clients "diligently and capably." Judge Chin is
confident that any misconduct in which Guttlein has engaged is "uncharacteristic of the type of
lawyer he actually is and has been over the years."
The Honorable Edward J. McLaughlin, a New York Supreme Court Justice before whom
Guttlein has appeared often, wrote that Guttlein "is an effective advocate who is much sought
after for his legal skills, his familiarity with federal and state criminal and immigration law and
his ability to converse with clients in their native Spanish language." Justice McLaughlin is
"confident that [Guttlein's prior] troubles will not interfere with his ability to comply with the
Circuit's rules in the future."
The Honorable James A. Yates, a New York Supreme Court Justice, wrote that Guttlein
has appeared before him on various matters for 16 years. Justice Yates noted Guttlein's "very
active practice; perhaps too active a practice," and indicated that there have been several
instances in which Guttlein has requested adjournments "frequently to [Justice Yates'] dismay."
Nevertheless, Justice Yates indicated that Guttlein's reasons for requesting adjournments have
been because of legitimate competing obligations, not "simple neglect." When Guttlein has
appeared before Justice Yates, he was "prepared to discuss the case and [had] a current
knowledge of his client's legal position" and "was a zealous and professional advocate,
knowledgeable in the law and concerned for his client's welfare." Justice Yates wrote:
3
In sum, while I do believe that Mr. Guttlein may have over
committed himself in cases to a point which calls into question his
ability to realistically appraise the time available or necessary to
handle all his obligations, I don't believe that it was for lack of
competence or caring, he is not a neglectful or callous person, in
my opinion, he just has too many "balls in the air." I hope the
Committee can address this problem without depriving the defense
bar of a skilled and zealous advocate.
Thomas E. Moseley, an immigration lawyer, has known Guttlein since he supervised
Guttlein as the Chief of the Immigration Unit in the United States Attorney's Office for the
Southern District of New York. Moseley is "firmly convinced" that Guttlein "is a highly capable
attorney and a practitioner of both utmost integrity and good moral character" and "is committed
to providing effective representation to his clients."
Telesforo Del Valle, Jr., a criminal defense lawyer, has known Guttlein for over thirty
years and has "witness[ed] Mr. Guttlein's legal work on numerous occasions." According to Del
Valle, Guttlein is "a hard working and zealous advocate, with a firm command of the applicable
law, and with a sincere and honest concern for the welfare of his clients." Del Valle believes that
the conduct which is the subject of the Referral Orders is "truly uncharacteristic.,,3
IV. Factual Background
Guttlein has been admitted to practice law in New York since 1980, and he started his
career in the Antitrust Division of the Department of Justice. In 1982, he began working as an
Assistant United States Attorney in the Southern District of New York, where he remained until
1987. In 1985 and 1986, Guttlein was a special assistant for the immigration service. During his
time as an Assistant United States Attorney, Guttlein received Justice Department achievement
awards as well as commendations from the immigration service.
Guttlein left the Government and opened his own firm, Aranda & Guttlein, with Andres
Aranda in 1987. Initially, 10-15% of the firm's practice was immigration cases. In 2000, that
percentage began increasing and at the present time, 50-60% of his cases are immigration
matters. Guttlein believes his firm is one of the few in New York City that do both criminal and
immigration work and he currently focuses much of his practice on immigration proceedings
after a criminal conviction.
3
Guttlein also submitted character letters from the Honorable William A Wetzel, a New
York Supreme Court Justice; the Honorable Lawrence M. McKenna, a United States
District Court Judge for the Southern District of New York; Verena C. Powell, a private
practitioner; and Theodore S. Green, a private practitioner.
4
Guttlein estimated that he currently has close to 1,000 pending cases. Many of those
cases are inactive because, for example, he is waiting for a ruling from an administrative agency
or a court.
Guttlein's only prior discipline is a private letter of admonition he received in 1988 for
failing to timely file a complaint. Guttlein has been the subject of additional disciplinary
complaints that have been dismissed.
According to Mr. Maltz, Guttlein's prior finn, Aranda & Guttlein, has also been the
subject of disciplinary complaints. In particular, Guttlein's fonner partner, Andres Aranda, was
suspended by New York State disciplinary authorities for conduct that did not implicate Guttlein.
In light of the confidentiality requirements of New York Judiciary Law § 90(10), as well as Mr.
Maltz's confidentiality obligations to Aranda,S Mr. Maltz and Guttlein were hesitant to disclose
to the Committee details of prior disciplinary complaints against Aranda & Guttlein because
such complaints would could also implicate Aranda. In light of these concerns, the Committee
accepted Mr. Maltz's representation that in the years in which he has been representing Guttlein
and his fonner finn, Mr. Maltz knows of no discipline that has been issued to Mr. Guttlein
individually or as a member of his fonner finn.6
V. Legal Standard
Under the Rules of this Committee,
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, or the rules of professional conduct of any other state or
jurisdiction governing the attorney's conduct. An attorney may
also be subject to discipline or other corrective measures for any
failure to comply with a Federal Rule of Appellate Procedure, a
4
New York Judiciary Law § 90( 10) states, in relevant part: "Any statute or rule to the
contrary notwithstanding, all papers, records and documents upon the application or
examination of any person for admission as an attorney and counsellor at law and upon
any complaint, inquiry, investigation or proceeding relating to the conduct or discipline
of an attorney or attorneys, shall be sealed and be deemed private and confidential."
S
Mr. Maltz represented Mr. Aranda.
6
Mr. Maltz worked at the Departmental Disciplinary Committee for the New York
Appellate Division First Department from 1989 through 2000 as a staff attorney, Deputy
Chief Counsel, and First Deputy Chief Counsel, and the Committee has no reason to
question his representation.
5
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.
Rules of the Committee on Admissions and Grievances, Rule 4.
"A court of appeals 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." Fed. R. App. P.
46(c). "Conduct unbecoming a member of the bar" may include any conduct "contrary to
professional standards that show[s] an unfitness to discharge continuing obligations to clients or
courts, or conduct inimical to the administration ofjustice." In re Snyder, 472 U.S. 634,645
(1985). For "[m]ore specific guidance," the Committee and the Court may look to "case law,
applicable court rules, and 'the lore of the profession,' as embodied in codes of professional
conduct." Id at 646 n.7.
Courts have consistently treated neglect of client matters and ineffective or incompetent
representation as sanctionable conduct. See, e.g., Gadda v. Ashcroft, 377 F.3d 934,940 (9th Cir.
2004); Amnesty Am. v. Town ofW, Hartford, 361 F.3d 113, 133 (2d Cir. 2004); In re Rabinowitz,
596 N.Y.S.2d 398, 402 (App. Div. 1993); United States v. Song, 902 F.2d 609 (7th Cir. 1990); In
re Kraft, 543 N.Y.S.2d 449 (App. Div. 1989); In re Bithoney, 486 F.2d 319 (1st Cir. 1973). Such
conduct is also sanctionable under the applicable professional rules and standards. The
American Bar Association's Standards for Imposing Lawyer Sanctions ("ABA Standards") call
for a range of sanctions from reprimand to disbarment for various forms of "lack of diligence"
and "lack of competence." ABA Standards §§ 4.4, 4.5. The Disciplinary Rules of New York's
Lawyer's Code of Professional Responsibility require that "[a] lawyer shall not ... [n]eglect a
legal matter entrusted to the lawyer." D.R. 6-101 (a)(3). In addition, the Code's Ethical Canons
require that the lawyer should represent his or her client "zealously," Canon 7-1, and that he or
she "be punctual in fulfilling all professional commitments," Canon 7-38.
"Any finding that an attorney has engaged in misconduct or is otherwise subject to
corrective measures must be supported by clear and convincing evidence." Rules of the
Committee on Admissions and Grievances, Rule 7(h). Once misconduct has been established, in
determining the sanction to be imposed, the Committee should consider: (a) the duty violated;
(b) the lawyer's mental state; (c) the actual or potential injury caused by the lawyer's
misconduct; and (d) the existence of aggravating or mitigating factors. ABA Standards § 3.0.
The 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." Rules of the Committee on Admissions and Grievances, Rule 6.
6
VI. The Alleged Misconduct
A. Briefing in Porras
Guttlein represented the petitioner, Yulieht Redon Porras, in Porras v. INS, 06-3067. The
BIA had denied Porras's appeal because Guttlein failed to file a brief on her behalf. In the brief
tiled with the Court in support of Porras's petition for review, however, Guttlein failed to address
the default before the BIA and instead argued the merits of Porras's request for asylum.
According to Guttlein, he began representing Porras more than ten years ago, when she
was arrested for attempting to purchase a green card. After immigration proceedings began,
Guttlein pursued multiple avenues of potential relief to keep Porras in the country. One of those
avenues - but not the primary avenue - was asylum.
Guttlein testified that Porras panicked at her asylum hearing and was unable to testify
effectively. The immigration judge denied her request for asylum. Guttlein appealed that
determination to the BIA at Porras's insistence. Guttlein explained that he considered the appeal
to the BIA to be a "protective notice of appeal" because he hoped that one of the more promising
avenues of potential relief he was pursuing would be successful while the appeal was pending.
He did not file a brief with the BIA because he "thought it would be difficult to make any type of
cogent argument." He could not simply withdraw the BIA appeal because Porras would, at that
point, be potentially subject to immediate deportation.
After the BIA denied Porras's appeal for failure to file a brief, Guttlein claims he did not
want to file a petition for review but Porras's family pressed him to do so, "even though they
were informed that the appeal was extremely weak." Despite claiming that he did not file a brief
with the BIA because he had nothing to argue, he filed a brief with the Court. He testified that
doing so was "a massive error" because he "really had no argument in the Second Circuit," and
he admitted that the brief was frivolous. He also testified that Porras and her family knew
throughout the proceedings that there was "no basis" for her asylum appeal and that its main
purpose was to buy time to pursue alternative forms of relief.
Guttlein explained that he "improperly allowed the family of the client to influence [his]
decision to continue to prosecute their case." He "do[es] not disagree that [his] brief did not
properly address an important issue," and he "understand[s] that [he] should have not filed an
appeal with the BIA or submitted a proper brief, regardless of whether the case was weak." He
"further understand[s] that if an appeal has no merit [he] should not file an appeal regardless if a
client insists." He claims that if a similar situation happens again, he would decline to pursue the
appeal.
With respect to Guttlein's failure to address in the brief he filed with the court the reason
for the BIA decision under review - his failure to file a brief in support of the appeal- Guttlein
testified that the associate he assigned to draft the brief "obviously didn't address the key issue of
what arguments can [he] raise when he didn't raise anything in front of the BIA." Guttlein
admitted that he failed to "carefully review" the brief before it was filed. He attributes that
7
failure to the personal problems he was going through at the time, which are discussed below.
That associate no longer works for Guttlein.
B. Untimely Motion to Reinstate in Vargas-Gonzalez
In Vargas-Gonzalez v. United States Department ojJustice, 05-3562, the case referenced
in Referral Order II, Guttlein filed an untimely motion for reinstatement of his client's petition
for review. According to Guttlein, at the time of the filing of the petition for review in Vargas
Gonzalez, another case, Blake v. Carbone, was sub judice before the Court and would determine
the outcome in Vargas-Gonzalez. Therefore, Guttlein entered into a stipulation with the
Government by which his client's petition for review would be dismissed without prejudice
pending a decision in Blake. The stipulation required Guttlein to notify the Clerk of Court that
his client wished to reinstate the petition for review within 60 days after the Court's decision in
Blake.
The Court issued an opinion in Blake on June 1,2007. Blake v. Carbone, 489 F.3d 88
(2d Cir. 2007). Guttlein did not move to reinstate the petition for review in Vargas-Gonzalez
until November 8, 2007. The Court denied the motion because Guttlein filed it more than 60
days after the Blake decision. Guttlein filed a motion for reconsideration, which the Court
granted. At the same time he was moving to reinstate the petition for review, Guttlein filed a
motion with the BIA to re-argue the case based on the decision in Blake, which was granted.
Ultimately, the petition for review was dismissed by stipulation in light of the BIA's decision to
grant the motion to re-argue.
Guttlein claims that he failed to timely move for reinstatement because he "did not
become immediately aware of the Blake decision." Other than reading the Law Journal each
day, Guttlein was unable to recall any steps he took to monitor Blake.
C. Failure to Comply with Scheduling Orders
Guttlein has failed to comply with the scheduling order in numerous cases since
September 2005. Referral Order I lists 32 petitions for review that were dismissed because
Guttlein failed to comply with the scheduling orders and three additional cases in which the
petitions were dismissed for failure to file form CIA. Guttlein does not dispute that he defaulted
in these cases. 7 Instead, he offers several reasons for his failure to perfect these appeals.
Guttlein claims that the "most common reason" he failed to proceed with these cases was
that his "clients were not interested in proceeding and lost touch with [his] office." He notes that
it "is not uncommon in [his] type of practice, and the type of aliens [he] represents, for the clients
to abandon their cases." A large percentage of his clients are aliens accused of criminal conduct
with whom it is frequently difficult to stay in contact.
7
Guttlein correctly notes that one of the cases appears to have been included mistakenly.
He was not the attorney of record in the case docketed under 05-5791.
8
Guttlein also claims that he did not proceed with some of the cases because they lacked
merit. For example, several of the cases involved appeals of denials of discretionary relief,
which were filed before the REAL ID Act of 2005 limited reviewed of discretionary denials by
Courts of Appeal. See 8 U.S.c. § 1252(a)(2)(B)(ii). Guttlein indicated that in such cases, his
client agreed not to proceed with the petition for review.
Guttlein further claims a number of non-case specific issues affected his ability to comply
with the scheduling orders. He notes that systemic changes in the handling of immigration
appeals led to a rapid increase in his case load of Second Circuit petitions for review and his
"office was not properly equipped to handle this new volume of cases." Guttlein was unable to
hire sufficient staff to assist with this increase in Second Circuit cases because his law firm was
not producing enough income. "This resulted in the short cut of abandoning cases instead of
making a proper application and, in some instances, the late filing of briefs."
Additionally, Aranda, Guttlein's partner, was suspended from the practice of law in 2006,
and Guttlein had to deal with Aranda's case load, both by handling some matters himself and by
paying other lawyers to handle other matters.
Guttlein also faced a number of personal issues at this time. He went through an
"acrimonious separation and divorce" beginning sometime in 2004. In October 2004, Guttlein's
mother died after a long illness. In 2005 or 2006, Guttlein filed for bankruptcy, in part because
of his divorce and in part because of financial problems with his law practice. Guttlein testified
that his divorce and bankruptcy were not resolved until late spring or early summer 2007.
According to Guttlein, each time a petition for review was dismissed because of failure to
comply with the scheduling order, he notified his clients. None of his clients in those cases filed
a complaint with any disciplinary authority. He continues to represent more than half of those
petitioners.
Guttlein believes, and the Committee has no evidence to the contrary, that none of his
clients were prejudiced in these cases. He noted that many of their cases involved discretionary
decisions by the BIA which, after the REAL ID Act, are not reviewable by Circuit Courts. He
continues to pursue other forms of relief for many of these clients, and none has raised claims of
ineffective assistance against him.
Even after the issues noted above were resolved, however, it appears that Guttlein has
had some more recent issues with respect to scheduling orders. In Alejo v. US. Department of
Justice, 07-2074, Guttlein timely sought an extension of the deadline to file the petitioner's brief.
The Court granted the request and indicated that no further extensions would be granted.
Nonetheless, on October 23,2007, three days before his brief was due, Guttlein sought an
additional extension. lbe Court denied the request but granted a brief grace period to file the
brief. Guttlein filed his brief within that grace period. Guttlein indicated to the Committee that
the same associate who was responsible for the brief in Porras, and who is no longer in
Guttlein's employ, was responsible for the brief in Alejo.
9
In Segura v. u.s. Department ofJustice, 08-1485, the initial scheduling order required
Guttlein to file the petitioner's brief on June 9, 2008, which Guttlein did not do. Guttlein
indicated that the scheduling order was premature because the Court had not yet issued a pre
argument notice. It appears that Guttlein is correct. A subsequent order of the Court vacating
the initial scheduling order indicated that it was "entered in error." Nonetheless, the Committee
finds it somewhat troubling that Guttlein simply ignored the scheduling order instead of
confirming with the Court that it was entered prematurely.
VIII. Recommendation
The Committee finds that there is clear and convincing evidence that Guttlein committed
misconduct by (1) submitting a brief in Porras that he knew to be meritless; (2) failing to
adequately monitor the status of Blake; and (3) failing to comply with scheduling orders in
numerous cases. This conduct is "unbecoming a member of the bar," Fed. R. App. P. 46(c), in
violation of Rule 38 of the Federal Rules of Appellate Procedure, and in violation ofD.R. 6
10 I (A)(3). This misconduct warrants sanction.
There are two aggravating factors. First, Guttlein has engaged in a pattern of misconduct.
See ABA Standards § 9.22(c) (pattern of misconduct can be aggravating factor). For an
approximately three to four year period, Guttlein repeatedly failed to comply with the Court's
scheduling orders. Second, Guttlein is an experienced practitioner who, even by his own
account, should have recognized and addressed his problems sooner than he did. See ABA
Standards § 9.22(i) (substantial experience in the practice of law can be aggravating factor).8
There are also significant mitigating factors. Guttlein's misconduct was not the result of
a dishonest or selfish motive. See ABA Standards § 9 .33(b ) (absence of a dishonest or selfish
motive can be a mitigating factor). In fact, the misconduct in Porras appears to be the result of
Guttlein's misguided attempt to delay his client's deportation while he was pursuing other forms
of relief. Additionally, Guttlein was generally forthcoming and cooperative with the
Committee's investigation. See ABA Standards § 9.33(e) (cooperative attitude toward
disciplinary proceedings can be a mitigating factor). Moreover, as evidenced by the impressive
array of character letters he submitted, GuttIein appears to have a good reputation and a strong
character. See ABA Standards § 9.33(g) (character or reputation can be a mitigating factor).
Finally, Guttlein generally accepted responsibility for his misconduct, and the Committee found
Guttlein's expressions of remorse to be credible. See ABA Standards § 9.33(1) (remorse can be a
mitigating factor).
8
While Guttlein has a prior disciplinary offense for related conduct (missing a deadline),
the Committee does not consider it to be an aggravating factor because that misconduct
occurred twenty years ago. Cf ABA Standards § 9.33(m) (remoteness of prior offenses
can be a mitigating factor)
10
In light of these factors, the Committee recommends that Guttlein receive a public
reprimand from the Court. (A draft form of reprimand is attached.) In making this
recommendation, the Committee was influenced by several factors.
First, it appears that the majority of Guttlein' s misconduct occurred within a three to four
year period in which Guttlein was experiencing several serious professional and personal issues.
Nonetheless, the Committee also recognizes that some of the misconduct appears to have
occurred after many of the clouds had passed.
Second, it is not clear that Guttlein's misconduct prejudiced his clients. While filing a
frivolous appeal with the BIA and then with the Court in the Porras matter was improper, it
appears to have been part of a strategy to buy time to pursue other forms of relief - to the client's
potential advantage, not disadvantage. In Vargas-Gonzalez, Guttlein's client was able to re-open
his case before the BIA without any prejudice resulting from Guttlein's failure to monitor the
Blake case. Several of the numerous petitions for review that were dismissed as result of
Guttlein's failure to comply with the scheduling order appear to have been meritless after
passage ofthe REAL ID Act. At the same time, without reviewing the merits of each case, the
Committee cannot conclude that none of the clients whose petitions were dismissed as a result of
Guttlein's failure to comply with the scheduling orders suffered any prejudice. Moreover, the
level of prejudice to clients does not excuse Guttlein's disregard of court orders and the resulting
burden on the Court and its staff.
Third, Guttlein has taken several steps in order to prevent the same misconduct from
occurring again. He has worked with Mr. Maltz to improve his case management. Guttlein
testified that he now has a computer system that helps him keep track of his cases and upcoming
deadlines. All of his cases and their upcoming dates are on the system. Guttlein has also hired
staff to assist him. He now has three associates and three full-time paralegals. One ofthose
associates focuses primarily on immigration appeals. Guttlein meets with his staff every
morning to go over the case calendars and what has to be done. Once a week, he and his staff
meet to discuss the new cases in which he has been retained that week and to discuss what needs
to be done within the next month.
Finally, Guttlein now appears to have in place a better support system to assist him
should problems like those he previously faced arise again. Thomas E. Moseley, an experienced
immigration practitioner, has agreed to serve as someone Guttlein can tum to for advice and
mentoring, as has Telesforo Del Valle, Jr. Additionally, Guttlein testified that he now has
achieved stability in his personal life.
The Committee also notes that Guttlein has had some issues in more recent cases, such as
in the Alejo matter discussed above. Therefore, the Committee recommends that Guttlein be
required, in connection with his practice in any federal court in the Second Circuit or in any
federal administrative agency whose action is subject to the Second Circuit's review, to submit
to the Committee sworn statements identifying under oath each and every instance during each
of the four reporting periods described below in which (1) a submission is not filed or filed out of
time; or (2) an application is made for permission to make a late filing only after the due date has
11
passed. It is expected that these reports will show no such instances absent exigent
circumstance, which circumstances should be attested to under oath in the respective report.
In the event that a report is not timely filed or reveals deficiencies not justified by exigent
circumstance, the Committee may recommend the imposition of additional discipline, including
but not limited to suspension from the Second Circuit, without hearing further testimony.
The following reporting periods and deadlines shall be observed. The report for each
reporting period shall be mailed to the Committee Secretary within ten (10) days of the end of
that reporting period. The first reporting period shall commence 10 days after the Committee's
recommendation is mailed to Guttlein and shall end six months after the Second Circuit issues its
order of disposition in this matter. Each of the three subsequent reporting period shall be for a
reporting period commencing at the end of the prior reporting and ending six months later. A
total of four reports will be prepared and mailed to the Committee Secretary.
12