Decided on February 28, 2012
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
SUPREME COURT, APPELLATE DIVISIONFirst Judicial Department
Peter Tom, Justice Presiding, Angela M. Mazzarelli Rolando T. Acosta Dianne T. Renwick Helen E. Freedman, Justices.
Disciplinary proceedings instituted by the Departmental Disciplinary Committee for the First Judicial Department. Respondent, Amy L. Nussbaum Gell, who was admitted to the Bar of the State of New York at a Term of the Appellate Division of the Supreme Court for the First Judicial Department on April 16, 1987. Jorge Dopico, Chief Counsel, Departmental Disciplinary Committee, New York (Naomi F. Goldstein, of counsel), for petitioner. Respondent pro se. M--890 (April 29, 2011) IN THE MATTER OF AMY L. NUSSBAUM GELL, AN ATTORNEY
Respondent Amy L. Nussbaum Gell was admitted to the practice of law in the State of New York by the First Judicial Department on April 16, 1987 under the name Amy Lauren Nussbaum. At all relevant times respondent maintained an office for the practice of law within the First Judicial Department.
The Departmental Disciplinary Committee now seeks an order, pursuant to 22 NYCRR 603.3, imposing reciprocal discipline on respondent predicated on an order of the United States Court of Appeals for the Second Circuit publicly reprimanding her, or in the alternative, sanctioning respondent as this Court deems appropriate.
By order filed in August 2007, the Second Circuit referred respondent to its Committee on Admissions and Grievances (CAG) to investigate and report on whether she should be subject to discipline or other corrective measures. The order was based on the dismissal of 28 petitions for review of determinations of the Board of Immigration Appeals, for which respondent was counsel of record. The petitions were dismissed for failure to comply with the court's scheduling orders. The order was also based on the dismissal on default of four other cases in which respondent accepted "primary responsibility," although her name did not appear as the attorney of record.
Following submission of her written response to the court's referral order, four days of hearings were conducted in 2008, at which respondent, then represented by counsel, testified and submitted additional material. Respondent conceded that between December 2005 and August 2007, she defaulted on 28 of 41 petitions for review she filed in the Second Circuit and four petitions filed in the Third Circuit for failing to comply with scheduling orders. However, respondent argued that her conduct did not prejudice any clients and that, indeed, some dismissed appeals were reinstated and other defaults were part of her strategy to gain time to pursue other, more advantageous forms of relief. Respondent further testified that in her experience, the court liberally reopened cases that were dismissed for noncompliance with scheduling orders and it was not until she received the referral order from the CAG that she realized the court was critical of repeated failure to comply with those orders. Although not mentioned in the original referral order, respondent addressed the fact that she had filed at least 19 of the defaulted petitions prior to being admitted in the Second Circuit on March 3, 2006. Respondent admitted that she did not research whether she needed to be admitted for purposes of filing petitions for review, and testified that she relied on information conveyed by an associate in her firm, who had been advised by a court employee that, pursuant to the court rules, an attorney litigating before the court need not be admitted to the bar of the Second Circuit unless she intended to orally argue before the court.
In May 2009, the CAG filed a report finding respondent guilty by clear and convincing evidence of misconduct, and recommending a public reprimand and that she comply with certain reporting requirements. The CAG found that respondent had intentionally failed to comply with scheduling orders, resulting in the dismissal of a significant amount of cases, and that she practiced before the Second Circuit when she was not admitted to the court. Such conduct was found by the CAG to constitute neglect in violation of DR 6-101(A)(3) and was "unbecoming a member of the bar," (Fed. R. App. P. 46[c]), in violation of Rule 38 of the Federal Rules of Appellate Procedure. With respect to the default dismissals, the CAG noted respondent's testimony that she had made a strategic decision to default, believing that it was in the best interests of her clients. The CAG concluded that it appeared that respondent was now "committed to strict compliance with scheduling orders by implementing law office changes."
The CAG found that there were both mitigating and aggravating factors to consider. In aggravation was the vulnerability of respondent's immigrant clients; her pattern of misconduct which was "heightened due to [the] intentional nature of the [default] strategy"; her commission of multiple offenses by filing petitions when she was not admitted to the court and then "systematically violating scheduling orders"; and that she was an experienced practitioner with more than 20 years of experience, who should have recognized and addressed her misconduct. Additionally, respondent had received two prior admonitions issued by the Departmental Disciplinary Committee. In 2004, respondent was personally admonished for missing a hearing, resulting in a deportation order for her client, intentionally failing to move to reopen the hearing, and failing to communicate with her client as to ...