In re James A. Kilduff

11-90006-am
In re James A. Kilduff

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 16th day of February, two thousand eleven.

Present:
José A. Cabranes,
Robert D. Sack,
Richard C. Wesley,
Circuit Judges.
______________________________________________________

In re James A. Kilduff,
11-90006-am
Attorney.
ORDER OF
GRIEVANCE PANEL

______________________________________________________

For the reasons that follow, James A. Kilduff is SUSPENDED

from the bar of this Court pending final disposition of this

matter. Furthermore, Kilduff is ordered to show cause why other

disciplinary or other corrective measures should not be imposed

on him pursuant to Federal Rules of Appellate Procedure 46(b) and
(c) and Second Circuit Local Rule 46.2.

Kilduff was referred to this panel as a result of the

proceedings in United States v. Kalidal, 10-200-cr, in which he

represented Mohamed Kalidal. The appeal was from a district

court criminal judgment sentencing Kalidal to, inter alia, four

months’ imprisonment and one year of supervised release. In

February 2010, the Government moved to dismiss Kalidal’s appeal

based on his waiver of appellate rights. See Kalidal, 10-200-cr,

motion filed Feb. 4, 2010. Thereafter, this Court ordered

Kilduff to respond to the Government’s motion, in compliance with

the requirements of United States v. Gomez-Perez, 215 F.3d 315

(2d Cir. 2000), no later than the deadline Kilduff proposed for

his appellate brief. Id., order filed Feb. 5, 2010; see Second

Cir. Local Rule 31.2(a) (governing the setting of briefing

schedules). However, Kilduff failed to either propose a deadline

for his brief or file a response to the Government’s motion. He

also failed to file this Court’s Form B, pursuant to Second

Circuit Local Rule 12.2(a).

In June 2010, the Clerk’s Office informed Kilduff, through

email, that he needed to either respond to the motion to dismiss

or move to be relieved as counsel. Additionally, on July 28,

2010, this Court entered an order stating that, because Form B

had been due by February 3, 2010, the appeal was in default and

would be dismissed if Kilduff did not file the form by August 11,

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2010. Id., order filed July 28, 2010. The docket does not

reflect that Kilduff took any action in response to the June

email or July order. In late October 2010, the Clerk’s Office

left a telephone message reminding Kilduff of the need to file

both Form B and a response to the Government’s motion to dismiss.

Several days later, Kilduff informed the Clerk’s Office that a

response would be filed.

On November 2, 2010, Kilduff filed a two-page affirmation in

response to the Government’s motion to dismiss. Id., response

filed Nov. 2, 2010. In December 2010, this Court entered an

order deferring decision on the motion to dismiss, finding

Kilduff’s perfunctory response deficient under Gomez-Perez. Id.,

order filed Dec. 20, 2010. The Court gave Kilduff twenty-one

days to (a) file a response to the motion to dismiss that

complied with Gomez-Perez or move for voluntary dismissal of the

appeal; and (b) show cause why disciplinary or other corrective

measures should not be imposed on him. Id. The Court also

warned that further unnecessary delay in responding to the

Government’s motion, or any other failure to comply with the

order, could result in the imposition of sanctions. Id. On

January 10, 2011 (the twenty-first day after the filing of the

December 2010 order), Kilduff filed both Form B and an Anders

brief. See id., brief and Form B filed Jan. 10, 2011. However,

since the Anders brief was defective in several respects, Kilduff

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was ordered to cure the defects no later than January 18, 2011.

Id., defective document notice filed Jan. 11, 2011. He failed to

do so. He also did not respond to the portion of this Court’s

December 2010 order directing him to show cause why he should not

be disciplined. In February 2011, this Court struck the

defective Anders brief, relieved Kilduff as counsel for Kalidal,

appointed new counsel, and referred Kilduff to this panel for

disciplinary proceedings. See id., orders filed Feb. 1, 2011.

As noted in the December 2010 order, Kilduff also had failed

to respond to the Government’s motion to dismiss United States v.

Elarabi, 06-4891-cr.1 In that appeal from a criminal judgment

imposing, inter alia, fours years of probation and over $130,000

in restitution, Kilduff was counsel for the appellant, Mohammed

Elarabi. Although the notice of appeal was filed pro se, there

is nothing on the district court’s docket sheet indicating that

Kilduff was relieved as counsel for Elarabi, and this Court

continued Kilduff as counsel of record pursuant to this Court’s

local rule. See Elarabi, 06-4891-cr, scheduling order filed Oct.

26, 2006.

In November 2006, the Government moved to dismiss the appeal

as untimely. See id., motion filed Nov. 15, 2006. Kilduff did

not respond, although the Government’s motion indicates that it

1
The records of both this Court and the district court indicate
that Kilduff had been retained by both Kalidal and Elarabi.

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was served on him. See id. at 19. In December 2006, this Court

granted the Government’s motion to dismiss, but directed the

district court to construe the notice of appeal as a motion to

extend the time to file the notice of appeal. See id., order

filed Dec. 26, 2006. Unfortunately, the district court did not

comply with this Court’s December 2006 order, and there is no

indication that Kilduff took any action to ensure compliance.

Instead, when the situation recently came to this Court’s

attention, the district court was contacted by this Court and the

district court granted Elarabi’s extension motion.

Kilduff’s multiple defaults, particularly his failure to

respond to the December 2010 order to show cause why he should

not be disciplined, lead us to believe that his continued

practice in this Court may be a detriment to his clients, the

public, and this Court. Furthermore, a failure to respond to

such an order to show cause can, by itself, be construed as an

admission that the misconduct described in the December 2010

order occurred and that discipline is warranted. Under these

circumstances, an interim suspension may be warranted until such

time as the defaulting attorney shows excusable neglect or good

cause for the failure to respond to the order to show cause, and

cures the default. See, e.g., In re Spiegler, 33 A.D.3d 187, 190

(1st Dep't 2006) (imposing interim suspension, under 22 N.Y.

Comp. Codes R. & Regs. § 603.4(e)(1)(i), after finding attorney's

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failure to respond to disciplinary committee inquiries, appear

for deposition, provide subpoenaed documents, or respond to

motion for immediate suspension "demonstrates a willful

noncompliance with the Committee's investigation that threatens

the public interest"); In re Kaplan, 49 A.D.3d 107, 111 (1st

Dep't 2008) ("dilatory tactics in responding to Committee

requests and failure to appear for two scheduled depositions

constitutes failure to cooperate with the Committee, warranting

interim suspension"). Interim disciplinary measures may be

particularly appropriate where they (a) would protect the

attorney's clients, the public, or this Court from further

misconduct, or (b) are necessary to ensure the attorney's

cooperation in the disciplinary proceeding.

Upon due consideration of the matters described above, it is

hereby ORDERED that Kilduff is SUSPENDED from the bar of this

Court pending final disposition of this matter. Regarding that

final disposition, it is further ORDERED that Kilduff show cause,

in a detailed declaration, why he should not be removed from the

bar of this Court, or subject to other disciplinary or corrective

measures, based on the conduct described above. The declaration

must be made under penalty of perjury and filed within twenty-one

days of the filing date of this order. Furthermore, the

declaration must include:

(a) a complete list of all cases in this Court in which
he is, or was, counsel of record or performing legal

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 services for any litigant (which is to be updated with
any additional cases in which he begins providing legal
services after the filing of the initial list required
by this clause);

(b) a complete list of all cases currently pending in
the federal district and bankruptcy courts of this
circuit in which he is counsel of record or performing
legal services for any litigant (which is to be updated
with any additional cases in which he begins providing
legal services after the filing of the initial list
required by this clause);

(c) a complete list of all bars of which he is a
member, including all bar numbers and other bar
identification information, and a statement of whether
he is in good standing with each identified bar;

(d) a statement of whether he has been disbarred,
suspended, reprimanded, or otherwise disciplined by any
bar or court and, if so, a copy of each document
imposing such a disciplinary measure must be attached
to the declaration;

(e) a statement of whether, aside from any document
listed in response to clause (d), he has ever been
ordered by any court or bar disciplinary authority to
show cause why he should not be disciplined and, if so,
a copy of each such order, and any response to each
such order, must be attached to the declaration; and

(f) an explanation for all of the conduct discussed in
this order and the December 2010 and February 2011
orders in United States v. Kalidal, including a
discussion of whether his clients were prejudiced in
any way by that conduct.

If Kilduff is represented by counsel at any stage of these

proceedings, counsel must file a notice of appearance, under this

docket number.

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 The Clerk of Court is directed to serve a copy of this order

on Kilduff, return receipt requested, at the following address

from the attorney directory web site of the New York State

Unified Court System:

James Andrew Kilduff, Esq.
Lazzaro Law Firm, P.C.
360 Court Street, Suite 3
Brooklyn, New York 11231-4353

The Clerk of Court is further directed to release this order

to the public by posting it on this Court's web site and

providing copies to members of the public in the same manner as

all other unpublished decisions of this Court, and to serve a

copy on this Court's Committee on Admissions and Grievances, the

attorney disciplinary committees for the New York State Appellate

Division, Second Department, the United States District Courts

for the Eastern and Southern Districts of New York, and all other

courts and jurisdictions to which this Court distributes

disciplinary decisions in the ordinary course.

FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk

By: Michael Zachary
Counsel to the Grievance Panel

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