Jed S. Rakoff, U.S.D.J. Chair; Douglas F. Eaton, U.S.M.J.; Charles S.
Haight, Jr., U.S.D.J. Gerard E. Lynch, U.S.D.J.; Lawrence M. McKENNA,
U.S.D.J.; Colleen McMAHON, U.S.D.J.; Louis L. Stanton, U.S.D.J.
The opinion of the court was delivered by: Jed S. Rakoff, U.S.D.J., Chair.
BY THE COMMITTEE ON GRIEVANCES
On September 25, 2001, the Court, through its Committee on Grievances,
directed respondent Gino Josh Singer, a member of the bar of this Court,
to show cause why he should not be disciplined for violating Disciplinary
Rules 1-102(A)(5) and 2-106(C)(3) of the New York Code of Professional
Responsibility, as well as Section VIII(E) of the Court's Revised Plan
for Furnishing Representation Pursuant to the Criminal Justice Act,
18 U.S.C. § 3006A (the "CJA Plan"). The Statement of Charges
accompanying the Order alleged that Singer, without Court authorization,
accepted a fee from a client, Wing Fung Chau, whom Singer had been
appointed to represent at public expense pursuant to Singer's membership
on the Criminal Justice Act Panel of Private Attorneys (the "CJA
Section VIII(E) of the CJA Plan provides that "Counsel appointed
pursuant to this Plan shall at no time seek or accept any fee or other
things of value from, or on behalf of, the person represented, for
representing the person to whom he or she was assigned. Nor shall counsel
appointed pursuant to this Plan agree to be privately retained by the
person to whom he or she was assigned or by persons acting on that
person's behalf, without advising and securing the approval of the
Court."*fn* Disciplinary Rule 2-106(C)(3) provides that "A lawyer shall
not enter into an arrangement for, charge or collect . . . [a] fee
proscribed by law or rule of court." Disciplinary Rule 1-102(A)(5)
provides that "A lawyer . . . shall not . . . [e]ngage in conduct that is
prejudicial to the administration of justice."
Singer was appointed to represent Chau at public expense in August 1995
after Chau had represented to the Court that he had total assets of
$1,000. It is undisputed that, over the next four years, Singer, without
any court authorization, received payments from Chau, on account of the
representation, totalling approximately $10,000, mostly in cash. In his
response to the Order to Show Cause, Singer admits the accuracy of the
charges against him see Singer's Answering Affidavit in Response To Order
to Show Cause, sworn to October 17, 2001, but avers by way of mitigation
that shortly after being appointed to represent Chau he reached agreement
to be privately retained by Chau, and that he never submitted a voucher
for CJA payment of his fees. Singer further avers that he never read the
CJA Plan and was unaware of his obligations to seek prior Court approval
of any private retention.
Singer does not dispute, however, that, despite numerous appearances
before the Court, he never in any way indicated that he was appearing
other than as CJA counsel, and, further, that in 1998 he caused the Court
to direct the court reporter to furnish him at CJA expense a transcript
of one of the proceedings involving his representation of Chau.
Furthermore, not all the evidence before the Committee is consistent with
Singer's averments in mitigation. For example, Chau, who would have had
no motive to retain Singer privately if he had been advised that Singer
was obligated to fully and zealously represent him at public expense,
averred that Singer told
him that he (Singer) would do a better job if Chau paid him the $10,000.
There was also evidence (not necessarily known to Singer) that after Chau
asked the Court to help him get his money back from Singer, Chau was
contacted by another attorney who offered to represent Chau in seeking a
reduction of his sentence if Chau would drop his allegations against
This Committee need not, however, resolve any factual disputes nor rely
on any evidence beyond Singer's own admissions, for, on that basis
alone, it is obvious that he acted in patent violation of his duties
under the CJA Plan and of his professional responsibilities. Even if it
be true that Singer never read the CJA Plan, the fiduciary duties evident
in his CJA appointment to represent Chau as an indigent were enough to
warn him that it was wrong to accept private payments from Chau without
consulting the Court.
A lawyer entrusted with the high duty of representing an indigent
person under the CJA Plan may not pervert that trust for his own private
gain. For a CJA attorney to take advantage of his client's vulnerable
position to solicit private retention, or even just to acquiesce in secret
private payments from his client, is antithetical both to the letter of
the Plan and to the fiduciary duties it imposes.
While the Plan contemplates that there may be unusual circumstances in
which private retention of a CJA-appointed lawyer is permissible, the
Plan expressly provides that this can only be done after prior Court
inquiry and approval, for otherwise the opportunities for overreaching
are manifest. Here, where just such dangers were apparent, Singer made no
attempt to apprise the Court of the retention or even apprise himself of
what the CJA Plan required in such circumstances.
Singer, therefore, committed a serious transgression of his
professional responsibilities, extending over a period of four years.
Notwithstanding the seriousness of the violation, we have also taken
into account the many affidavits submitted on Singer's behalf attesting
to the high level of legal services he has rendered on behalf of numerous
clients, many of them indigent, as well as to the high regard in which he
is held by many of the persons with whom he came into contact during the
period he served on the CJA Panel. We have in consequence reduced the
penalty we would have otherwise imposed. Accordingly, pursuant to
S.D.N.Y. Local Civil Rule 1.5(b)(5) and (c)(2), respondent Gino Josh
Singer is hereby suspended from the practice of law in this Court for a
period of one year, effective immediately, provided, however, that
respondent may try to conclusion (including any post-trial matters) any
case in this Court in which he has appeared and is actively engaged on
the date of this Opinion and Order.