UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2009
April 6, 2010
IN RE HECTOR M. ROMAN, ATTORNEY.
SYLLABUS BY THE COURT
This Court's Committee on Admissions and Grievances ("the Committee") has recommended that Hector M. Roman, an attorney admitted to the bar of this Court, be disciplined. We adopt the Committee's findings of fact, publicly reprimand Roman for the misconduct described in the Committee's report, reciprocally suspend him for a six-month period based on a prior suspension imposed by the United States Court of Appeals for the Ninth Circuit, and suspend him for an additional one-month period based on his misconduct in this Court.
Before: Cabranes, Sack, and Wesley, Circuit Judges.
By order filed in November 2007, this panel referred Hector M. Roman to this Court's Committee on Admissions and Grievances ("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. Supplemental referral orders were filed in April 2008. During the Committee's proceedings, Roman had the opportunity to address the matters discussed in the Court's referral order, to testify under oath at a hearing held in December 2008, and to present post-hearing supplementary materials. Roman represented himself during the Committee's proceedings. Presiding over the hearing were Committee Chair Mary Jo White, Esq., and the Honorable Howard A. Levine. In January 2009, the Committee filed with the Court the record of the Committee's proceedings and its report and recommendations. Thereafter, the Court provided Roman with a copy of the Committee's report, and Roman filed a response in April 2009.
In its report, the Committee concluded: (a) Roman was subject to reciprocal discipline, pursuant to Second Circuit Local Rule 46.1(f), based on the prior imposition of discipline by the United States Court of Appeals for the Ninth Circuit; and (b) as a separate matter, Roman was subject to discipline for his behavior in this Court, based on clear and convincing evidence that he had engaged in conduct "unbecoming a member of the bar" within the meaning of Federal Rule of Appellate Procedure 46(c). See Report at 12-15. After finding various aggravating and mitigating factors, see id. at 7, 9, 11, 12, 14, 15, the Committee recommended that Roman be suspended from practice before this Court for a three-month period, based on both the Ninth Circuit's suspension and his conduct before this Court, with each basis operating as an independent ground for the recommended suspension, see id. at 15. In response, Roman states that he does not contest the Committee's recommendation that he be suspended for three months based on the Ninth Circuit suspension, but asks that the suspension not be based on his conduct before this Court. Response at 3-8.
Upon due consideration of the Committee's report, the underlying record, and Roman's response, we adopt the Committee's factual findings concerning Roman's Ninth Circuit suspension and his misconduct in this Court. We also adopt the Committee's conclusions that Roman's Ninth Circuit suspension warrants reciprocal suspension by this Court and that his separate misconduct in this Court was sufficiently serious that it warrants independent disciplinary action. However, for the reasons discussed below, we impose disciplinary sanctions that differ somewhat from those recommended by the Committee.
Former Second Circuit Rule 46.1(f) governed this Court's reciprocal discipline procedures until January 1, 2010, when it was superseded by current Second Circuit Local Rule 46.2(c). We need not decide which version of the rule governs Roman's case, since the same result is reached under both versions. Former Local Rule 46.1(f), in pertinent part, provided as follows:
(1) In all cases in which an order disbarring an attorney or suspending the attorney from practice ... has been entered in any other court of record, federal or state, ... the clerk shall enter an order for the court ... disbarring the attorney or suspending the attorney from practice in this court upon terms and conditions comparable to those set forth by the other court of record.
(2) Within [a specified time period], a motion may be filed in this court either by such attorney or the Committee for a modification or revocation of the order of this court. Any such motion shall set forth specifically the facts and principles relied on by applicant as showing cause why a different disposition should be ordered by this court.
Former Second Circuit Rule 46.1(f)(1)-(2). Current Local Rule 46.2(c), in pertinent part, provides as follows: (2) Reciprocal Order. When the court receives a copy of an order entered by an attorney disciplinary authority disbarring or suspending an attorney from practice, the clerk enters an order disbarring or suspending the attorney from practice before this court on comparable terms and conditions.
(3) Motion to Modify or Vacate. Within [a specified time period], the attorney may move to modify or vacate the order.
Second Circuit Local Rule 46.2(c)(2)-(3). Although this Court has not yet explicitly ruled on the issue, we now make clear that former Local Rule 46.1(f) and current Local Rule 46.2(c) reflect a rebuttable presumption that the reciprocal discipline imposed by this Court will be identical - or as close to identical as our rules and the circumstances permit - to the discipline imposed by the prior court or other disciplinary authority. This presumption, although not explicitly referred to as such, has long guided this Court's reciprocal discipline practice and is consistent with the practice of other circuits. See In re Williams, 398 F.3d 116, 119-20 (1st Cir. 2005) ("Given the limited nature of our inquiry, the norm will be for this court to impose discipline which is substantially similar to that imposed by the state court"; also noting that the court's disciplinary rule requires imposition of "substantially the same discipline as was imposed by the original court"); In re Kramer, 282 F.3d 721, 727 (9th Cir. 2002) ("we inquire only whether the punishment imposed by another disciplinary authority or court was so ill-fitted to an attorney's adjudicated misconduct that reciprocal disbarrment would result in grave injustice"); In re Fallin, 255 F.3d 195, 197 (4th Cir. 2001) (court presumes, pursuant to explicit language of local rule, that reciprocal discipline will be identical to original discipline); In re Hoare, 155 F.3d 937, 940 (8th Cir. 1998) ("Although a state court disciplinary action is not conclusively binding upon the federal judiciary, federal courts are nevertheless obliged to accord a high level of deference to state court disbarrment proceedings. Thus, when a district court learns that a member of its bar has been subject to discipline by another jurisdiction, the identical discipline is typically imposed.")(citations omitted). See also The Supreme Court's seminal decision concerning reciprocal 1 discipline, Selling v. Radford, reflects a similar presumption - the Court stated that it would "recognize the condition created by the judgment of the state court" - i.e., the state court's finding that the attorney lacked "fair private and professional character, without the possession of which there could be no possible right to continue to be a member of [the Supreme Court's] Bar" - unless the attorney demonstrated to the contrary. 243 U.S. 46, 50-51 (1917). However, while the Supreme Court suggested that the state disbarrment in that case would be followed by Supreme Court disbarrment if the attorney did not meet his burden, the Court did not explicitly discuss whether the presumption covered both the finding of poor character and the severity of the discipline. The state court's finding of misconduct in Selling, if not successfully challenged, may have required Supreme Court disbarrment even without a presumption concerning the severity of discipline.
ABA Model Rules for Lawyer Disciplinary Enforcement, R. 22(D) (2002) (providing that court "shall impose the identical discipline" as the prior jurisdiction, unless certain criteria are satisfied, and that "[t]he burden is on the party seeking different discipline ... to demonstrate that the imposition of the same discipline is not appropriate"); ABA Model Federal Rules of Disciplinary Enforcement, R. II(D) (1978, 1991) (providing for identical discipline unless certain criteria are satisfied).1 Furthermore, the disciplined attorney bears the burden of demonstrating, by clear and convincing evidence, that a different disposition would be appropriate (unless the Committee, or the Court itself, moves for modification or revocation). See In re Friedman, 51 F.3d 20, 22 (2d Cir. 1995) (applying burden of proof in context of appeal from district court's imposition of reciprocal discipline). An attorney seeking to demonstrate either that reciprocal discipline should not be imposed at all or that the "terms and conditions" of the reciprocal discipline should not be "comparable" to those imposed by the other attorney disciplinary authority, Second Circuit Rule 46.2(c)(2); Former Second Circuit Rule 46.1(f)(1), must satisfy the standard set forth in Selling v. Radford, 243 U.S. 46 (1917), which requires the attorney to show:
1. [t]hat the . . . procedure [used by the prior court] from want of notice or opportunity to be heard, was wanting in due process; 2, that there was such an infirmity of proof as to facts found to have established the want of fair private and professional character as to give rise to a clear conviction on our part that we could not, consistently with our duty, accept as final the conclusion on that subject; or 3, that some other grave reason existed which should convince us that to allow the natural consequences of the judgment to have their effect would conflict with the duty which rests upon us not to disbar [or impose any other disciplinary sanction imposed by the prior court] except upon the conviction that, under the principles of right and justice, we were constrained so to do.
Selling, 243 U.S. at 51. In sum, the Selling standard bars reciprocal discipline when the Court finds "(1) absence of due process in the [prior disciplinary] procedure, (2) substantial infirmity in the proof of lack of private and professional character, or (3) `some other grave reason' sufficient to indicate that reciprocal disbarrment [or other reciprocal discipline] [i]s inconsistent with `principles of right and justice.'" In re Tidwell, 295 F.3d 331, 333-34 (2d Cir. 2002)(quoting Selling, supra).
As noted in In re Edelstein, 214 F.3d 127 (2d Cir. 2000), several other courts have supplemented the Selling criteria with a fourth reason for not imposing reciprocal discipline - namely, that a reciprocal order should not issue if an attorney's misconduct warrants "substantially different discipline" than that imposed by the court that imposed the original discipline. Edelstein, 214 F.3d at 131-32 (quoting Rule of Disciplinary Enforcement of the Court of Appeals for the First Circuit II(D)(4)). We treat the noted fourth category as subsumed by the "grave reason" category set forth in Selling. See id. at 132 (noting the fourth ground for relief considered by some courts but relying on Selling to conclude that no "grave reason" warranted revoking an order of reciprocal discipline); cf. Kramer, 282 F.3d at 727-28 (rejecting argument that original disbarrment constituted excessive punishment and concluding that reciprocal disbarrment would not result in grave injustice); see also Theard v. United States, 354 U.S. 278, 282 (1957) (finding state court disbarrment decision "brings title deeds of high respect ... [b]ut it is not conclusively binding on the federal courts," and concluding that federal court disbarrment in that case was foreclosed by the "grave reason" prong of Selling).
Although Selling addressed reciprocal discipline imposed by a federal court based on a state court's prior disciplinary decision, we have found it equally applicable to a federal court's imposition of reciprocal discipline based on another federal court's prior disciplinary decision. See Edelstein, 214 F.3d at 131-32. Thus, it applies here.
Since Roman does not contest the process he received in the Ninth Circuit or allege an infirmity of proof, we now consider only whether it has been demonstrated that some "grave reason" prohibits the imposition of a six-month reciprocal suspension. In doing so, we do not determine de novo what sanction the Ninth Circuit should have imposed; instead, we accord great deference to the Ninth Circuit's determination. See, e.g., Theard, 354 U.S. at 282; Edelstein, 214 F.3d at 132; Williams, 398 F.3d at 119-20; Kramer, 282 F.3d at 727-28; Hoare, 155 F.3d at 940. In the present case, Roman raised several arguments in support of his position that this Court should not impose the same discipline as the Ninth Circuit. The Committee rejected one of his arguments, agreed with three others, and independently found that five additional mitigating factors warranted a suspension of three months, rather than a six-month suspension matching the term imposed by the Ninth Circuit. See Report at 13-14. Notably, the Committee found that none of the arguments made by Roman raised a "grave reason" justifying a departure from the practice of imposing reciprocal discipline. See id. at 14. We concur in the Committee's rejection of Roman's argument that his purchase of case management software remedied the problems cited by the Ninth Circuit. See id. However, for the following reasons, we do not believe that the remaining factors constitute a grave reason justifying a different suspension term.
First, many or most of the cited factors were considered by the Ninth Circuit when it determined that a six-month suspension was appropriate, and there is no indication that the weight accorded to them by the Ninth Circuit was so inadequate as to present a grave reason justifying departure from that sanction. See In re Roman, 05-80100, Report of Appellate Commissioner, at 32-33, 34-35 (9th Cir. Jan. 23, 2007) (discussing mitigating factors), Order Adopting Report (9th Cir. Mar. 30, 2007). Second, the fact that the New York State reciprocal order based on the Ninth Circuit's order only imposed a public censure, not a suspension, is of limited persuasive value. Although the New York State courts generally give deference to the court that imposed the original discipline, they do not apply the Selling "grave reason" standard when determining the appropriate form of reciprocal discipline. See, e.g., In re Whitehead, 37 A.D.3d 86, 88 (1st Dep't 2006) ("In deciding on the appropriate sanction in reciprocal discipline matters, it is generally accepted that the state where the misconduct occurred has the greatest interest in the sanction imposed. However, when the sanction in the home state deviates significantly from our precedent, this Court has departed from that general policy of deference.") (citations omitted); In re Lever, 60 A.D.3d 37, 44 (1st Dep't 2008) ("Although ... this Court in a reciprocal disciplinary proceeding will often defer to the sanction initially imposed by a foreign jurisdiction, our precedents are equally clear that we are not bound by that sanction, and may impose a more severe penalty if the circumstances warrant."); In re Marshall, 67 A.D.3d 1122, 1123 (3d Dep't 2009)("this Court is not required to adhere to the disciplinary sanction imposed by the foreign jurisdiction and may impose a greater or lesser sanction"). In any event, the New York State order contains no facts or reasoning that would justify, under Selling, a sanction different than that imposed by the Ninth Circuit. See In re Roman, 48 A.D.3d 25, 28-29 (2d Dep't 2007). Third, we do not consider Roman's misconduct before the Ninth Circuit to have occurred at such a remote time in the past that it renders reciprocal discipline at the current time unjust. Both the Ninth Circuit Appellate Commissioner's report and Roman's submissions in the present matter indicate that the Ninth Circuit's suspension was based on misconduct occurring in and after 2003 and that much of the misconduct involved cases filed in 2004, 2005 and 2006. See In re Roman, 05-80100, Report of Appellate Commissioner, at 12-18, 24-29; In re Roman, 07-9064-am (2d Cir.), Roman's May 2008 Response to Order to Show Cause, at 38 ¶ 20 (dating Ninth Circuit "problems" to 2003 through 2006). Because the mitigating factors in this case, considered together, do not amount to a grave reason justifying a suspension different than that imposed by the Ninth Circuit, we impose a six- month reciprocal suspension.
Roman's Misconduct in this Court
We concur with the Committee's recommendation that a period of suspension also is appropriate for Roman's misconduct in this Court. Lesser sanctions, such as a public or private reprimand or censure, would require either less egregious misconduct or greater mitigating factors. See, e.g., In re Liu, 07-9065-am, 282 Fed. Appx. 7, 7-8 (2d Cir. May 27, 2008) (although conduct at issue "generally would warrant a significantly greater sanction," public censure was imposed instead, based on mitigating factors and imposition of other, onerous corrective measures); cf. In re Flannery, 186 F.3d 143, 146-49 (2d Cir. 1999) (imposing, on four attorneys, discipline ranging from monetary sanctions and public censure to two-year suspension for causing dismissal of clients' direct criminal appeals by failing to file briefs and ignoring subsequent orders to show cause why discipline should not be imposed).
We acknowledge Roman's argument that his misconduct in this Court "stemmed from the same set of facts and circumstances which led to the original suspension" in the Ninth Circuit. Response to Committee Report at 3, 5, 7, 8. Although different cases and courts were involved, we understand this argument to mean that the same case management deficiencies led to Roman's problems in both circuits. We agree, but only in part. As noted by the Committee, several instances of misconduct in this Court post-dated the Ninth Circuit's November 2005 order to show cause why he should not be disciplined for certain similar misconduct in that court. See Report at 14-15. Moreover, neither the Ninth Circuit's analysis nor logic suggests that the Ninth Circuit's sanction was intended to cover, or should cover, any misconduct other than that discussed in the Ninth Circuit's order. In fact, it is quite possible that, had the Ninth Circuit been aware of Roman's additional misconduct in this Court, a longer suspension would have been imposed. Thus, we do not see complete overlap between the conduct addressed by the Ninth Circuit and that addressed in this order. Additionally, the fact that Roman continued to engage in misconduct in this Court after being put on notice by the Ninth Circuit about similar misconduct constitutes a significant aggravating factor.
We also are disturbed by Roman's misrepresentations to this Court when he (a) permitted others to sign his name to pleadings that he failed to review prior to their filing in this Court, and (b) permitted materially inaccurate information to be submitted to the Court in those pleadings. Although Roman stated that he "wasn't very aware of what was going on," Hearing Tr. at 27:25, we believe that he either knew of the misrepresentations, or was guilty of reckless disregard, since he knew that the cases existed and knew that they could not proceed to briefing and decision without the input, and signature, of counsel of record. See Fed. R. App. P. 32(d) ("Every brief, motion, or other paper filed with the court must be signed by the party filing the paper or, if the party is represented, by one of the party's attorneys."). Far too many cases were involved, and far too much time passed, for any reasonable attorney to claim that he did not know how his cases were advancing to final decision. Finally, we also find that the other mitigating factors in this case do not present the type of extraordinary circumstances that might warrant divergence from the sanction called for by Roman's misconduct.
Due to the partial overlap between the misconduct in the two circuits, we do not impose a lengthy term of suspension in addition to that imposed by the Ninth Circuit. However, we find that the lack of complete overlap warrants a consecutive, rather than concurrent, additional suspension. We believe that the additional, consecutive, term of suspension should be one month, for a total suspension term of seven months.
Upon due consideration, it is hereby ORDERED that, except as noted above, the Committee's findings and recommendations are adopted by the Court, and Roman is PUBLICLY REPRIMANDED and SUSPENDED from practice before this Court for a period of seven months, based on the misconduct described in the Committee's report. The suspension period will commence on the date of filing of this order. It is further ORDERED that Roman communicate with his clients in all of his pending cases, as specified in the Committee's report. See Report at 15, Conclusion, ¶ 2.
The text of this panel's November 2007 and April 2008 orders and the Committee's report are appended to, and deemed part of, the present order for the following disclosure purposes. Roman must disclose this order to all clients in cases currently pending reinstatement motion denied); 04-1928; 04-1993; 04-2564; 04- 750; 04-3851; 04-4350; 04-4701; 04-4881, 04-5939; 04-6137 reinstatement motion granted); 04-6590 (extension motion filed ne day after due date for brief; reinstatement motion granted); in this Court and to all courts and bars of which he is currently a member, and as required by any bar or court rule or order. Furthermore, the Clerk of Court is 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 published decisions of this Court, and to serve a copy on Roman, this Court's Committee on Admissions and Grievances, the attorney disciplinary committee for the New York State Appellate Division, Second Department, the Executive Office for Immigration Review, the bars and courts listed on page 15 of the Committee's report, and all other courts and jurisdictions to which this Court distributes disciplinary decisions in the ordinary course.
Text of November 2007 order
For the reasons that follow, Hector M. Roman 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 at least 24 of the 71 petitions for review for which Roman was counsel of record, based on Roman's failure to comply with this Court's scheduling orders.2 Additionally, where Roman has moved to reinstate (reinstatement motion denied); 05-6413; 06-0920; 06-3471 (reinstatement motion granted); 06-3681; 06-5157 (reinstatement motion denied); 06-5229; and 06-5264. See also 04-4881 (dismissed for failure to file form C/A).
petitions, he has often relied on the same excuse for failing to comply with the applicable scheduling orders: that he had not received a copy of the scheduling order or had not received a response to his motion for an extension of time. See, e.g., Villa-Castano v. Board of Immigration Appeals ("BIA"), 04-3851-ag, motion filed Dec. 21, 2005; Nirmal Singh v. BIA, 04-6137-ag, motion filed May 2, 2006; Sarbjit Kaur v. BIA, 04-4881-ag, motion filed Jan. 10, 2007; Mehmi v. Gonzales, 06-3471-ag, motion filed Dec. 26, 2006; Deol v. Gonzales, 06-5157-ag, motion filed Mar. 20, 2007. However, as this Court noted in Villa-Castano, Roman either knew, or likely knew, that scheduling orders existed in the above- cited cases, see Villa-Castano, 04-3851-ag, order filed Dec. 28, 2005, and, in any event, he never explained in any of his motions for extensions of time or reinstatement why he had failed to ascertain the status of his motions, or the appeals themselves, despite the passage of long periods of time.
In March 2007, this Court ordered Roman to provide this Court with a list of cases in which he had filed a motion to reinstate on behalf of petitioners after the cases had been dismissed for any reason. See Ranjit Singh v. BIA, 05-5463-ag, order filed Mar. 23, 2007. Although Roman did so, he failed to list the cases docketed under: 03-4699; 03-4700; 03-4702; 03-4706; 04-1993; 04- 3851; 04-6137; 04-6590; 05-1679; and 06-4582. See Ranjit Singh, 05-5463-ag, response filed Apr. 10, 2007. Roman's response also did not provide any explanation for the listed defaults, although that may have resulted from the fact that the Court's order did not explicitly request an explanation. See id., order filed Mar. 23, 2007, response filed Apr. 10, 2007. The motion to reinstate Ranjit Singh was denied. See id., order filed Aug. 2, 2007.
In addition to Roman's history of defaults described above, he also may have submitted deficient briefs to this Court. The Committee is requested to determine whether Roman engaged in sanctionable conduct by:
(a) presenting vague or conclusory legal analysis on pertinent issues, see, e.g., Ashvinder Kaur v. BIA, 03-4699- ag, brief filed Apr. 18, 2007; Jeet Singh v. BIA, 06-1389-ag, order filed May 3, 2007, at 4 (finding CAT claim waived, based on failure to present meaningful challenge to agency's denial); Amerjeet Kaur v. BIA, 06-1491-ag, brief filed July 28, 2006;
(b) raising claims that were not exhausted before the agency, without explaining why the claim should nonetheless be considered, see, e.g., Ashvinder Kaur v. BIA, 03-4699-ag, brief filed Apr. 18, 2007, at 25-26 (discussing CAT claim), order filed Oct. 16, 2007, at 5-6 (dismissing CAT claim as unexhausted);
(c) presenting irrelevant matters and/or failing to challenge a dispositive agency decision, see, e.g., Harmeet Singh v. Gonzales, 06-4582-ag, order filed Aug. 24, 2007, at 3 (finding that underlying denial of asylum application was not properly before Court); Oberoi v. BIA, 05-6413-ag, brief filed Mar. 26, 2007, order filed Aug. 8, 2007, at 3-4 (upholding agency decision, and finding it unnecessary to discuss arguments presented in brief, since dispositive decision was not challenged; also noting that arguments relied to some extent on non-record submissions); Mehmi v. Gonzales, 06-3471-ag, order filed Aug. 16, 2007, at 3-4 (finding petitioner waived challenge to dispositive agency decision); Gurpal Singh v. BIA, 05-6840-ag, brief filed Nov. 13, 2006 (arguing merits of original asylum denial, which was not under appeal, and presenting conclusory argument concerning BIA's denial of petitioner's second motion to reopen); Bhag Singh v. BIA, 04-5038-ag, brief filed Nov. 23, 2005 (BIA's summary dismissal not acknowledged or challenged in brief); and
(d) misstating facts or issues, see, e.g., Amerjeet Kaur v. BIA, 06-1491-ag, brief filed July 28, 2006 (incorrectly referring to Kaur as "Mr. Singh" and with male pronouns, and to this Court as the BIA, and stating that "Punjab police" persecuted and will continue to persecute Kaur, despite the fact that Kaur is not from Punjab). See also Jeet Singh, 06- 1389-ag, docket note for June 26, 2006 (stating that submitted brief failed to comply with Federal Rule of Appellate Procedure 28).
Upon due consideration of the matters described above, it is ORDERED that Hector M. Roman 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.
Text of April 2008 order docketed under 07-9064-am
By order entered in November 2007, Hector M. Roman 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 Roman has come to the attention of this panel.
In March 2007, the United States Court of Appeals for the Ninth Circuit sanctioned Roman for, inter alia, failing to properly supervise an employee of his law firm, negligently relying on an inadequate case-management and calendaring system, failing to adequately prosecute cases, and violating various court rules and orders. See In re Roman, No. 05-80100 (9th Cir. Mar. 30, 2007). The Ninth Circuit suspended Roman from practicing law in that court for six months and imposed a monetary sanction of $1,000, with reinstatement contingent upon Roman showing, inter alia, that he is in good standing before all courts and bars in which he is admitted, and has completed ten hours of continuing legal education courses. Id. As a result of the Ninth Circuit disciplinary order, the New York Appellate Division, Second Department, imposed reciprocal discipline on Roman, although it limited its disciplinary measures to a public censure. See In re Roman, No. 2007-04450 (2d Dep't Dec. 26, 2007). Finally, in January 2008, this Court issued an order, pursuant to Second Circuit Local Rule 46(f)(1), publicly censuring Roman based upon the New York Appellate Division's order. See In re Roman, No. 08- 9002-am (2d Cir. Jan. 3, 2008). By separate order of this panel, this Court's censure order entered under docket number 08-9002-am has been vacated, with the issue of reciprocal discipline under Local Rule 46(f) being referred to the Committee.
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 November 2007 referral order. The Committee should consolidate the two matters docketed under 08-9002-am and 07-9064-am.
Text of April 2008 order docketed under 08-9002-am
By order filed on January 3, 2008, this Court, pursuant to Second Circuit Local Rule 46(f), publicly censured Hector M. Roman, based on a prior public censure issued by the New York State Appellate Division, Second Department. However, Local Rule 46(f) does not provide for such a disposition.
Aside from the Appellate Division's public censure order, we are informed that, in March 2007, the United States Court of Appeals for the Ninth Circuit sanctioned Roman for, inter alia, failing to properly supervise an employee of his law firm, negligently relying on an inadequate case-management and calendaring system, failing to adequately prosecute cases, and violating various court rules and orders. See In re Roman, No. 05-80100 (9th Cir. Mar. 30, 2007). The Ninth Circuit suspended Roman from practicing law in that court for six months and imposed a monetary sanction of $1,000, with reinstatement contingent upon Roman showing, inter alia, that he is in good standing before all courts and bars in which he is admitted, and has completed ten hours of continuing legal education courses. Id.
Upon due consideration of the matters described above, it is hereby ORDERED that the January 3, 2008 order is vacated. It is further ORDERED that the issue of whether Roman should be disciplined pursuant to Local Rule 46(f), based on the Ninth Circuit's March 2007 order, 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 Rules 46(f) and (h), and the Rules of the Committee on Admissions and Grievances.
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