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In re DeMarco

United States Court of Appeals, Second Circuit

October 4, 2013

In re Mario DeMARCO, Attorney.

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[Copyrighted Material Omitted]

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Mario DeMarco, Esq., Port Chester, NY, pro se.

Before: CABRANES, SACK, and WESLEY, Circuit Judges.


Pursuant to this Court's Local Rule 46.2, it is hereby ORDERED, ADJUDGED, AND DECREED that Mario DeMarco is PUBLICLY REPRIMANDED for the misconduct described in the appended report of this Court's Committee on Admissions and Grievances (" the Committee" ), except as discussed below.

I. Summary of Proceedings

By order filed in April 2009, this Court referred DeMarco 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, DeMarco had the opportunity to address the Court's referral order and to testify under oath at hearings held in September 2009, April 2010, and June 2011. DeMarco proceeded pro se before the Committee.

Although a draft Committee report and recommendation was prepared after the second hearing, a dissenting Committee member requested that additional evidence be obtained and, as a result, the Committee reopened the proceeding to hear additional testimony from DeMarco and from a new witness. See Committee Report at 2. After that third hearing, a new draft Committee report was prepared. However, one Committee member dissented in part from the Committee report and recommendation in a separate " minority report." The minority report caused the Committee to meet in plenary session and, after discussing the issues raised by the minority report, the full Committee adopted the majority's report and recommendation (the " Committee Report" ) by a vote of 8 to 1 with one member absent. See Addendum to Report.

In January 2012, the Committee filed with the Court the record of the Committee's proceedings, the Committee Report, the minority report, and the addendum to the Committee Report. Thereafter, the Court provided DeMarco with a copy of the reports, and DeMarco responded.

In the Committee Report, the Committee concluded that there was clear and convincing evidence that DeMarco had engaged in misconduct warranting the imposition of discipline. See Committee Report at 14-15. Specifically, the Committee found that DeMarco had: (a) in two companion cases (referred to here as the " Morales cases" ), failed to timely file petitions for review and submitted deficient briefs which did not address an issue that the Court had instructed

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DeMarco to address, [1] (b) failed to timely file this Court's " Form C/A" in eleven cases, and (c) failed to timely file a brief in ten cases. Id. at 5-12. After considering various aggravating and mitigating factors, id. at 13-15, 16, the Committee recommended that DeMarco be publicly reprimanded and be required, inter alia, to submit periodic status reports concerning his legal practice, id. at 15-16.

The minority report concurred with the Committee's conclusion that DeMarco had violated various professional obligations, but dissented from several findings of the Committee and the Committee's recommendation. The minority report recommended that DeMarco be suspended for at least two years, in addition to being publicly reprimanded. Minority Report at 56. The disagreement with the Committee Report primarily related to the dissenting member's conclusions that DeMarco had been directly responsible for the misconduct at issue, as opposed to merely failing to adequately supervise his staff, and had knowingly made false statements to the Committee and this Court regarding his failure to comply with filing deadlines and other Court orders. Id. at 2.

In his response to the Committee Report, DeMarco objected to the Committee's recommendation of public reprimand. See Response to Report. However, DeMarco did not address the Committee minority's recommendation that DeMarco be suspended, id., although he had been advised by the Court that " the form and degree of discipline that may be imposed by the Court is not limited to that recommended by the Committee," see Order Requiring Response to Report.

II. Credibility Determinations

We give " particular deference" to the factual findings of the Committee members who presided over an attorney disciplinary hearing where those findings are based on demeanor-based credibility determinations, and somewhat lesser deference to credibility findings based on an analysis of a witness's testimony. See In re Payne, 707 F.3d 195, 201-02 (2d Cir.2013).

In the present case, the Committee majority and minority disagreed over DeMarco's credibility, based on both his demeanor and an analysis of the evidence. While the observations of the minority report are not without force, we see no reason not to accept the credibility assessments reflected in the Committee Report. The totality of the evidence supports the Committee's conclusions that DeMarco's deficient conduct was negligent rather than deliberate, that he did not deliberately mislead the Court or Committee, and that some of the deficient conduct resulted from inadequate supervision of employees rather than his own direct negligence.

III. Attribution of Fault to Law Firm and Court Employees

A. Defaults Relating to Intra-Office Communications

First, the testimony of DeMarco, his paralegal, and his former associate, and an affidavit from his former office manager, support a finding that some, but not all, of the defaults and violations of Court orders were caused by one or more of DeMarco's employees who failed to timely pass along mail, to notify DeMarco of deadlines or

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other directives, or to timely file documents. We see no reason to reject this evidence, although we reach somewhat different conclusions than the Committee. As in any office, DeMarco's delegation of various tasks to subordinates carried with it the risk that subordinates might, on occasion, fail to timely complete a task or pass along important information. Attributing some of the fault to subordinates did not, in this context, suggest an attempt by DeMarco to unfairly blame others for his own errors, particularly since DeMarco conceded that he had failed to properly supervise those subordinates.

However, even where employees were responsible for defaults, we conclude that DeMarco, rather than having only indirect supervisory responsibility, often shared direct responsibility, for the reasons discussed in the following subsections B and C.

B. Responsibility for the Morales Briefs

DeMarco's testimony regarding responsibility for the Morales briefs changed over the course of the hearings. When asked why he had failed to obey the Court's instruction in its March 2007 order to brief the Suspension Clause issue, his first response was that he " wasn't the lead attorney on that brief," though he also suggested that he may have been at least partially responsible, remarking that " [w]e just did not do a good job in that case from top to bottom." Transcript (" Tr." ) at 39.

Thereafter, DeMarco testified that he believed that he had been aware of the Court's March 2007 order before his responding April 2007 brief was filed, id. at 58, and that he himself had determined that the Suspension Clause issue was irrelevant, id. at 59-60. This testimony is then followed by various statements in which DeMarco used both " I" and " we" when referring to the responsible person(s). Id. at 60-61, 225. Near the end of the hearings, however, DeMarco stepped back from his admission of direct responsibility, stating that he was " reasonably certain" that he wasn't the " lead attorney" for the Morales cases, and that he didn't " think that [,] having seen [the March 2007 order, he] would have done nothing." Id. at 367.

The Committee did not fully accept DeMarco's suggestions that he was not directly responsible for the failure in the Morales cases to obey the Court's instruction to brief the Suspension Clause issue— the Committee found it " likely that even if an associate was handling the [ Morales cases], DeMarco at some point reviewed the brief[s] before filing." Committee Report at 6. However, we see no need for speculation on this point, and we reject DeMarco's assertion that he was not the " lead attorney" for the Morales cases.

Instead, we conclude that DeMarco was fully, and directly, responsible for the failure to comply with the Court's instruction in the Morales cases, since he was the sole counsel of record for the petitioners and, more important, the sole attorney who signed the deficient briefs. By signing those briefs, with the knowledge that they were to be filed in this Court, DeMarco was certifying— at the very least— that the briefs were in compliance with all relevant rules and orders of the Court, that all facts presented in the briefs were accurate, and that all contentions had an arguable basis in law and fact. Cf. Fed.R.Civ.P. 11(b) (detailing attorney's representations to the district court when, inter alia, signing a document which is to be filed or otherwise presented to the court). Thus, regardless of who actually wrote the Morales briefs, DeMarco, as the signing attorney, was responsible for their contents. See In re Girardi, 611 F.3d 1027, 1039 (9th Cir.2010) (reprimanding attorney who authorized

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others to sign his name on appellate briefs, drafted by another attorney, " for his recklessness in determining whether statements or documents central to an action on which his name appears are false" ); Dube v. Eagle Global Logistics, 314 F.3d 193, 194, 194 n. 1 (5th Cir.2002) (sanctioning all attorneys who signed noncompliant appellate brief, although some were not formally associated with the law firm representing appellant), vacated as moot (5th Cir. Feb. 4, 2003).

Moreover, the contents of the April and May 2007 briefs themselves belie DeMarco's suggestion— either in defense or mitigation— that he reasonably relied on assurances from the attorney who drafted the briefs that they addressed all necessary issues. His April 2007 brief, which was filed in response to the Court's March 2007 order directing him to address the Suspension Clause issue, stated that " counsel is fully familiar with the circumstances/facts surrounding said case," and the March 2007 order itself was attached as an exhibit to the April 2007 brief. At the Committee's hearing, DeMarco identified his signature on the April 2007 brief and agreed that, before signing it, he " took steps to be sure [he was] fully familiar" with the facts and circumstances relevant to the case. Tr. at 52; see also id. at 388 (acknowledging signing of briefs).

DeMarco's May 2007 brief: (a) stated that it was in response to the government's motion to dismiss, which primarily discussed DeMarco's failure to address the Suspension Clause issue; (b) explicitly acknowledged (with exceptions that are not now relevant) the accuracy of the procedural history found on pages 1 through 3 of the government's motion, where the government described the March 2007 order and stated that DeMarco's April 2007 brief " ma[de] no mention of the Suspension Clause issue on which this Court directed briefing" ; and (c) included DeMarco's signed affidavit declaring, under penalty of perjury, that the facts set forth in the May 2007 brief were " true and correct to the best of [his] knowledge and belief."

If, as suggested by some of his testimony, DeMarco's representations in the April and May 2007 briefs were false— i.e., contrary to those representations, he was not aware of the Court's March 2007 order— his representations might have constituted perjury. If, as suggested by some of his other testimony, those representations were true, then he knew that he had been ordered to address the Suspension Clause issue and knowingly failed to do so. Upon review of the record, we take the latter view and conclude that (a) DeMarco knew that, in its March 2007 order, the Court had directed him to address the Suspension Clause issue, and (b) as found by the Committee, he failed to address the issue only because he did not understand its relevance.[2] Committee Report at 6.

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C. Failure to Monitor Pending Cases

As counsel of record, DeMarco also was directly responsible for ensuring his cases were proceeding in due course, even if his employees or the Court failed to inform him of deadlines, Court directives, or other important information. Although counsel of record need not constantly monitor the Court's docket, counsel cannot allow lengthy periods of time to pass without periodic review. See Mennen Co. v. Gillette Co., 719 F.2d 568, 570 (2d Cir.1983) (" [I]t is customarily the duty of trial counsel to monitor the docket and to advise himself when the court enters an order against which he wishes to protest." ); accord United States ex rel. McAllan v. City of New York, 248 F.3d 48, 53 (2d Cir.2001) (" parties have an obligation to monitor the docket sheet to inform themselves of the entry of orders they wish to appeal" ); Davila-Alvarez v. Escuela de Medicina Universidad Central del Caribe, 257 F.3d 58, 65 (1st Cir.2001) (" [A]n attorney has an ongoing responsibility to inquire into the status of a case." ).

The degree of diligence that is due depends upon the circumstances. For example, if a briefing schedule requires an attorney's brief to be filed in one week, and the attorney moves for an extension of time, an attorney exercising due diligence would monitor the docket quite frequently, since denial of the extension motion might leave little time for completing the brief by the original deadline. See In re OPM Leasing Servs., 769 F.2d 911, 916 (2d Cir.1985) (affirming district court's denial of extension of time to appeal, although parties did not receive copies of ruling and did not anticipate that judge would rule as quickly as he did, because " [c]ounsel should not be encouraged to neglect their duty to monitor the docket on the basis of speculation as to the probable date of decision" ).

On the other hand, a case that is newly filed in this Court might not, at first, require constant monitoring. But counsel of record for the appellant cannot thereafter allow months to pass before checking the docket, with the excuse that nothing had been received from the Court. Although the Court has a responsibility, to both the parties and the general public, to timely process each case and to notify the parties of all deadlines and other Court directives, the attorneys have their own due diligence responsibility and cannot rely on perfect processing by the Court, postal services, or law firm employees. Thus, while shared blame might be a mitigating factor, see Mennen, 719 F.2d at 570 (stating that a failure to monitor the docket " is indeed negligent, but where [an] omission occurs because the party has been misled by action of the court or its officers, such neglect may be excusable" ), counsel of record nonetheless bears primary responsibility for staying current with the status of his or her cases.

DeMarco attributed his defaults in several cases to non-receipt of Court orders setting deadlines for the filing of his briefs or other documents. However, in some of those cases, he allowed significant periods of time to pass without determining the status of the cases. Under the circumstances, those periods of neglect were unreasonable, making DeMarco primarily and directly responsible for the delays and the defaults.

For example, DeMarco testified that, in Thaqi v. Ashcroft, No. 03-40629, which was commenced in September 2003, he did not receive the April 2004 order setting a May 2004 deadline for his brief, and first became aware of his default in the case through his receipt of the October 2005 order dismissing the case based on his default. Tr. at 159-60. Thus, DeMarco failed to inquire as to the status of a case

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that was, from his perspective, pending over two years without a briefing schedule. Much the same can be said of DeMarco's conduct in Pochon-Chavez v. INS, No. 02-4086, where he allowed a year to pass after filing a motion for extension of time to file a brief without filing the brief or making any inquiry, and in De La Vega v. Gonzales, No. 03-40164, where he repeatedly missed deadlines by periods of months, despite multiple court orders and filings by the appellee indicating his default.

DeMarco's failure to properly monitor the dockets of the cases discussed above constituted a lack of due diligence on his part, whether or not anyone else also had any such responsibility.

IV. Misrepresentations to Court

DeMarco conceded that, in two documents filed with the Court, he had incorrectly represented that he had not previously violated any Court orders. Those representations were incorrect because, by that point, DeMarco had failed to timely file a number of briefs and other documents as required by this Court's rules and orders. Despite this history of defaults, we adopt the Committee's finding that DeMarco did not deliberately mislead the Court or Committee concerning his failure to abide by Court rules and orders.

At the time he made the misrepresentations, DeMarco (and an unfortunate number of other attorneys) considered the Court's scheduling orders to be essentially non-mandatory, as not truly orders carrying the imprimatur of the judges of this Court. As suggested by the Committee, the Court's overly-generous practice, at the time, of not immediately defaulting cases in which the petitioners had failed to abide by scheduling orders caused a number of attorneys to treat those scheduling orders as something less than mandatory. See RLI Ins. Co. v. JDJ Marine, Inc., 716 F.3d 41, 42-43 (2d Cir.2013) (per curiam) (noting that, " [a]bout ten years ago," the Court had experienced significant problems calendaring cases, which was the " result of a culture in which the bar had come to believe that the [briefing deadlines] set out in Federal Rule of Appellate Procedure 31(a)(1) were meaningless and that motions for extensions of time ... would be routinely granted time after time," despite the fact that orders granting such motions routinely stated that only extraordinary circumstances would justify another extension).

DeMarco's description of his practice, and of his thought process at the time he submitted that incorrect information to the Court, while awkward, is consistent with the Court's prior experience with this issue. See Tr. at 379-86, 391-95, 397. While DeMarco should have known that the information was inaccurate, we accept the Committee's finding that he did not deliberately mislead.[3]

V. Disposition

We conclude, consistent with our prior disciplinary decisions, that DeMarco's misconduct was sufficiently egregious to warrant a public reprimand [4]

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See In re Payne, 707 F.3d 195, 207-08 (2d Cir.2013) (describing prior disciplinary decisions). We agree with the Committee that the mitigating factors in this case are significant enough to warrant reprimand rather than suspension. A public reprimand, particularly when it takes the form of a published decision of this Court that is highly critical of an attorney's conduct, is far more than a " slap on the wrist." Moreover, DeMarco is advised that future misconduct will likely lead to suspension.

Upon due consideration of the Committee's reports, the underlying record, DeMarco's submissions, and the matters discussed above, it is hereby ORDERED that DeMarco is PUBLICLY REPRIMANDED for his ...

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