In Re Hochbaum

12-90089-am
In re Hochbaum

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

SUMMARY ORDER
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BY COUNSEL.

At a stated term of the United States Court of Appeals for the
Second Circuit, held at the Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the 23rd day
of May, two thousand sixteen.

PRESENT:
José A. Cabranes,
Robert D. Sack,
Richard C. Wesley,
Circuit Judges.
_____________________________________

In re Charles S. Hochbaum, 12-90089-am

Attorney. ORDER OF
GRIEVANCE PANEL

_____________________________________

1 This Court’s Committee on Admissions and Grievances (the

2 “Committee”) has recommended that Charles S. Hochbaum be disciplined
 1 for his misconduct in this Court. Upon due consideration, it is

2 hereby ORDERED, ADJUDGED, AND DECREED that Charles S. Hochbaum be and

3 hereby is PUBLICLY REPRIMANDED for engaging in conduct unbecoming a

4 member of the bar.

5 Hochbaum was admitted to the New York State bar in 1977, and to

6 this Court’s bar in 1996.

7 I. Summary of Proceedings

8 We referred Hochbaum to the Committee for investigation of his

9 conduct in this Court and in three district court cases in this

10 Circuit, and for preparation of a report on whether he should be

11 subject to disciplinary or other corrective measures. During the

12 Committee’s proceedings, Hochbaum had the opportunity to address the

13 matters discussed in our referral order and to testify under oath at

14 a hearing held before Committee members Eileen M. Blackwood, Evan A.

15 Davis, and James I. Glasser. Thereafter, the Committee filed with

16 the Court the record of the Committee’s proceedings and its report

17 and recommendations, as well as the minority reports of Committee

18 members Gerald Walpin and the Honorable Howard A. Levine.

19 A. The Committee’s Findings and Recommendations

20 The Committee found clear and convincing evidence that Hochbaum

21 had engaged in misconduct warranting the imposition of discipline.

22 See Majority Report at 15-16. Specifically, the Committee found,

2
 1 inter alia, that Hochbaum had (a) failed to timely file required

2 documents or respond to directions from the Court in twelve appeals,

3 resulting in dismissal of four of the appeals (although two were later

4 reinstated); and (b) demonstrated a lack of full candor in two district

5 court cases and in the Committee’s proceedings.1 Id. at 5-11, 15 n.6.

6 Nearly all of Hochbaum’s defaults in the twelve appeals are

7 identified in Court orders and notices entered on the docket; in some

8 instances, defaults are reflected in non-public docket entries

9 describing telephone or email communications with Hochbaum. See

10 Second Circuit dockets for 12-1644, 11-5116, 11-2837, 11-2120,

11 11-1552, 10-4761, 09-3334, 08-0977, 07-5333, 06-5674, 06-3869,

12 05-2856. The Committee’s findings concerning Hochbaum’s lack of full

13 candor are largely based on the analysis found in two district court

14 decisions concerning Hochbaum’s testimony in two cases, Aboulissan

15 v. United States, No. 03-CV-6214 (CBA), 2008 WL 413781, at *4-*5

16 (E.D.N.Y. Feb. 13, 2008), and United States v. Rosario, 237 F. Supp.

1
This Court’s records indicate that, in ten of the twelve appeals,
Hochbaum was appointed to represent the appellants by the United
States District Courts for the Eastern and Southern Districts of New
York under the Criminal Justice Act (“CJA”). His CJA appointments
in those cases continued in this Court pursuant to this Court’s Local
Rule 4.1(a). In one of the remaining appeals, docketed under 08-0977,
Hochbaum’s motion for CJA appointment was granted by this Court; in
the final appeal, docketed under 11-5116, he was privately retained
by the appellant. He is not a member of this Court’s CJA Panel.

3
 1 2d 242, 246, 253 (E.D.N.Y. 2002). Additionally, regarding

2 Aboulissan, the Committee stated that Hochbaum had presented it with

3 an account of the relevant facts that was “not fully consistent” with

4 the sworn statements he had presented to the district court. See

5 Majority Report at 10. The Committee further concluded that it

6 observed “a lack of propensity to full candor . . . in Mr. Hochbaum’s

7 dealings with it.” Id. at 11; see also id. at 15 n.6.

8 After considering several mitigating and aggravating factors,

9 id. at 13-15, the Committee recommended that Hochbaum be privately

10 reprimanded and required to attend continuing legal education (“CLE”)

11 classes in appellate practice, and to submit periodic status reports

12 to the Court, id. at 15-16. Among the aggravating factors was

13 Hochbaum’s failure to timely respond to Committee requests for

14 documents and other information. Id. at 14. The Committee’s

15 decision to recommend a private, rather than public, reprimand was

16 largely based on its finding that a medical condition “was a

17 significant contributing cause of Mr. Hochbaum’s lack of diligence

18 and neglect” and that proper treatment of that condition should enable

19 him to meet his professional obligations going forward. Id. at 15.

20 In their minority reports, Committee members Levine and Walpin

21 dissented from several findings bearing on Hochbaum’s credibility,

4
 1 the severity of the misconduct, and aggravating and mitigating

2 factors, and recommended a public reprimand. See Minority Reports.

3 B. The Court’s September 2015 Order

4 By order filed in September 2015, Hochbaum was directed to

5 respond to the Committee’s reports by October 13, 2015. He also was

6 instructed as follows:

7 A response is required even if you do not intend to object
8 to any aspect of the reports. Any requests for extension
9 of the time to respond must be made by motion in compliance
10 with the Federal Rules of Appellate Procedure and this
11 Court’s Local Rules.
12
13 Order filed Sept. 22, 2015, at 1.

14 In January 2016, the Court informed Hochbaum by telephone and

15 email that it had not yet received his response to the Committee’s

16 reports; a copy of our September 2015 order was attached to the Court’s

17 email message. In the telephone conversation, Hochbaum stated that

18 he did not know that he was required to respond if he was in agreement

19 with the Committee’s recommendation, and that he would respond

20 shortly. On March 16, 2016, the Court again inquired about the

21 response, and Hochbaum stated that it would be sent the next day.

22 Another inquiry was made on April 6, 2016; Hochbaum stated that he

23 had been hospitalized and would file his response that night. After

24 yet another inquiry on April 14, 2016, Hochbaum complied with the

25 Court’s request that the response be filed by noon the next day.

5
 1 C. Hochbaum’s Response to the Committee’s Reports

2 In his response to the Committee’s reports, Hochbaum stated,

3 inter alia, that the Committee majority’s recommendation that the

4 Court impose a private reprimand “adequately addressed the

5 significant mistakes [he had] made” and properly accounted for his

6 medical condition “as a causative factor in [his] many missteps.”

7 Response at 1. He also stated that he had not previously responded

8 to the Committee’s reports because they “did not request any response

9 and [he] agreed with the conclusion set forth in the [Committee

10 majority’s] Report and Recommendation.” Id.

11 Hochbaum did not address, or even mention, the September 2015

12 order, which explicitly required a response to the Committee’s reports

13 even if he did not intend to object to any aspect. He also never

14 requested an extension of time to respond. However, he did accept

15 responsibility for his delay, and stated that he has been out of work

16 “for considerable stretches of time this year” due to significant

17 family medical and legal issues, which exacerbated his own medical

18 condition. Id. at 2. He did not mention having been hospitalized.

19 Finally, he stated his belief that he is now “performing adequately

20 and timely on behalf of [his] clients,” although he has “not been so

21 successful when the actions [he] take[s] or fail[s] to take impact

22 on [him] alone.” Id.

6
 1 II. Discussion

2 “We give ‘particular deference’ to the factual findings of the

3 Committee members who presided over an attorney-disciplinary hearing

4 where those findings are based on demeanor-based credibility

5 determinations, and ‘somewhat lesser deference’ to credibility

6 findings based on an analysis of a witness’s testimony.” In re

7 Gordon, 780 F.3d 156, 158 (2d Cir. 2015) (citing In re Payne, 707 F.3d

8 195, 201 (2d Cir. 2013)). “The Committee members who preside over

9 a hearing are ‘in the best position to evaluate a witness’s demeanor

10 and tone of voice as well as other mannerisms that bear heavily on

11 one’s belief in what the witness says.’” Id. (quoting Donato v.

12 Plainview-Old Bethpage Cent. Sch. Dist., 96 F.3d 623, 634 (2d Cir.

13 1996)). In general, the credibility determinations of the presiding

14 Committee members will not be overruled unless they are clearly

15 erroneous. Id. “Where there are two permissible views of the

16 evidence, the factfinder’s choice between them cannot be clearly

17 erroneous.” United States v. Murphy, 703 F.3d 182, 188 (2d Cir.

18 2012).

19 We accept the Committee majority’s credibility determinations,

20 as they are not clearly erroneous. We also accept the Committee

21 majority’s other factual findings. However, for the following

22 reasons, we do not agree that a private reprimand is appropriate.

7
 1 The Committee majority properly treated Hochbaum’s medical

2 condition as a substantial mitigating factor. However, we conclude

3 that two substantial aggravating factors warrant a public reprimand.

4 First, Hochbaum’s lack of full candor and his failure to properly

5 respond to various Committee requests for documents and other

6 information constitute serious breaches of his professional

7 obligations to the Court and the public. We have previously stated

8 that “the duty of candor is so basic, and so important to proceedings

9 before the Court and Committee, that the possibility of suspension

10 should be considered in every case involving violation of that duty.”

11 Gordon, 780 F.3d at 161. In his response to the Committee’s reports,

12 Hochbaum did not address the Committee’s statements regarding his lack

13 of candor and failure to properly respond to various Committee

14 requests.

15 Second, his failure to timely comply with our September 2015

16 order, which explicitly directed him to respond to the Committee’s

17 report by a set deadline, is another substantial aggravating factor.

18 In the context of an attorney who had failed to respond to the

19 Committee’s order to show cause why he should not be disciplined, we

20 stated the following:

21 An attorney’s default in disciplinary proceedings is a
22 serious breach of the attorney’s professional obligations
23 to the Court and the public. In such a case, the attorney
24 has not only failed to respond to a Court-sanctioned order,
8
 1 but has done so after the Court already has found good cause
2 to question the attorney’s very competence to continue
3 practicing in this Court. Furthermore, such defaults
4 often seriously handicap the Committee and Court in their
5 efforts to reach a fair determination based on a complete
6 record, and usually result in waste of Committee and Court
7 resources.
8
9 Thus, in most cases, when an attorney knowingly defaults
10 in a disciplinary proceeding, and fails to show good cause
11 or excusable neglect for the default, the resulting
12 disciplinary measure, for that misconduct alone, should be
13 no less than a public reprimand.
14
15 In re Warburgh, 644 F.3d 173, 176-77 (2d Cir. 2011).

16 Hochbaum’s failure to timely respond to the Committee’s reports

17 (and to our September 2015 order) has not seriously handicapped the

18 Court in reaching a decision based on a complete record, because his

19 response was eventually received. However, he has delayed this

20 proceeding, wasted Court resources that were expended to obtain

21 compliance with an order of the Court, delayed the processing of other

22 litigants’ cases, and caused unnecessary expense to the public. More

23 important, Hochbaum’s failure to timely respond to the September 2015

24 order is little different than the pattern of defaults underlying this

25 entire disciplinary proceeding, giving us little assurance that he

26 will now conform his conduct to expected professional norms.

27 The Committee concluded that Hochbaum’s medical condition was

28 a significant contributing cause of the defaults underlying this

29 proceeding, but there is no evidence in the record that it was a
9
 1 contributing cause of his lack of candor, his failure to properly

2 respond to Committee requests, or his failure to timely comply with

3 our September 2015 order. Additionally, we give little weight to

4 Hochbaum’s suggestion, in his response to the Committee’s reports,

5 that family medical and legal issues, which exacerbated his own

6 medical condition, prevented him from timely complying with our

7 September 2015 order. Hochbaum’s assertions in his response are

8 conclusory, lack any evidentiary support, do not address the entire

9 period of delay from September 2015 to the present (since he only

10 references issues demanding his attention “for considerable stretches

11 of time this year”), and do not suggest that he lacked the ability

12 to file a simple motion for an extension of time.

13 We recently stated in a non-precedential order that “[a]n

14 attorney’s culpability for misconduct may be mitigated if, during the

15 relevant time period, the attorney was overwhelmed by the illnesses

16 or other dire circumstances of close family and friends, or by grief,

17 depression, shock, or other forms of mental trauma.” In re

18 Villanueva, 633 F. App’x 1, 5 (2d Cir. Dec. 1, 2015). However, we

19 also noted the importance of corroboration:

20 Due to the difficulty of assessing the impact of mental
21 trauma on an attorney’s professional obligations,
22 attorneys are encouraged to provide as much detail as
23 possible when raising that issue. Corroborating evidence,
24 including sworn statements from medical or mental health

10
 1 professionals and others with personal knowledge of the
2 impact, would be helpful. However, the need for
3 corroborating evidence will differ from case to case.

4 Id. at 6 n.4. During the Committee’s proceedings, Hochbaum’s

5 assertions about his medical condition were corroborated by detailed

6 testimony and a sworn statement of a medical professional; by

7 contrast, his assertions in his response to the Committee’s reports

8 are conclusory and deficient in the other respects noted above.2

9 Attorney disciplinary proceedings are intended to protect the

10 public and the administration of justice from attorneys who fail to

11 satisfy their professional obligations to clients, the public, and

12 the legal system. Because of the public’s strong interest in

13 disciplinary proceedings, disciplinary dispositions should be public

14 unless the misconduct was minor or there are significant mitigating
3
15 circumstances. Although Hochbaum’s medical condition is a

2
Even if Hochbaum’s medical condition was a significant contributing
cause of his failure to timely comply with our September 2015 order,
that would seriously undermine his assurances that his condition is
now being properly treated and will no longer interfere with his
professional obligations.
3
See ABA, STANDARDS FOR IMPOSING LAWYER SANCTIONS § III(A)(1.2) (1986,
amended 1992) (stating that the “disposition of lawyer discipline
should be public in cases of disbarment, suspension, and reprimand,”
and that private discipline is appropriate “[o]nly in cases of minor
misconduct, when there is little or no injury to a client, the public,
the legal system, or the profession, and when there is little
likelihood of repetition by the lawyer”).
11
 1 significant mitigating circumstance, it is outweighed by the

2 significant aggravating factors discussed above.

3 On the other hand, while the discipline we impose on Hochbaum

4 is to be made public, we do not go as far as to impose a suspension.

5 As noted above, we will consider a suspension whenever the duty of

6 candor is violated, see Gordon, 780 F.3d at 161, but, here, the

7 violation of that duty was not extensive and the mitigating

8 circumstances are substantial.

9 Upon due consideration of the Committee’s majority and minority

10 reports, the underlying record, and Hochbaum’s response to the

11 reports, we adopt the findings and recommendations of the Committee

12 majority, except as discussed above, and publicly reprimand Hochbaum.

13 The misconduct found by the Committee warrants at least a public

14 reprimand. Although Hochbaum’s medical condition, by itself, is a

15 strong enough mitigating factor to justify a private reprimand in the

16 absence of aggravating factors, the aggravating factors discussed

17 above require that the reprimand be public.

18 III. Notice to Public and Other Courts

19 The Clerk of Court is directed to release this decision to the

20 public by posting it on this Court’s web site and providing copies

21 to the public in the same manner as all other unpublished decisions

22 of this Court. Copies are to be served on: Hochbaum; the attorney

12
1 disciplinary committee for the New York State Appellate Division,

2 Second Department; the United States District Courts for the Eastern

3 and Southern Districts of New York (specifically, the judges chairing

4 their attorney disciplinary and CJA committees); the judge chairing

5 this Court’s CJA committee; and all other courts and jurisdictions

6 to which this Court distributes disciplinary decisions in the ordinary

7 course.4

FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk

4
Because the Committee’s reports and other documents in the record
disclose medical and other personal information, the reports and
remainder of the record will remain confidential. However, counsel
to this panel is authorized to provide, upon request, all documents
from the record of this proceeding to other attorney disciplinary
authorities. While we request that those documents remain
confidential to the extent circumstances allow, we of course 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.

A supplemental order issued the same day as this order discusses,
inter alia, Hochbaum’s disclosure and CLE requirements.

13