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In re Liu

Supreme Court of New York, First Department

July 16, 2013

In the Matter of Fengling Liu, an attorney and counselor-at-law: Departmental Disciplinary Committee for the First Judicial Department, Petitioner, Fengling Liu, Respondent.

Disciplinary proceedings instituted by the Departmental Disciplinary Committee for the First Judicial Department. Respondent, Fengling Liu, was admitted to the Bar of the State of New York at a Term of the Appellate Division of the Supreme Court for the Second Judicial Department on January 12, 2000.

Jorge Dopico, Chief Counsel, Departmental Disciplinary Committee, New York (Jun H. Lee, of counsel), for petitioner.

Respondent pro se.

Richard T. Andrias, Justice Presiding, David Friedman Leland G. DeGrasse Paul G. Feinman Judith J. Gische, Justices.

OPINION

PER CURIAM.

Respondent Fengling Liu was admitted to the practice of law in the State of New York by the Second Judicial Department on January 12, 2000 [1]. At all times relevant to this proceeding, respondent maintained an office for the practice of law within the First Judicial Department.

By order of November 22, 2011, the U.S. Court of Appeals for the Second Circuit publicly reprimanded respondent for misconduct committed before the court in connection with immigration matters. Specifically, respondent was found to have, inter alia, engaged in a pattern of defaults, failed to keep clients apprised of the status of their cases, failed to properly terminate her representation, and failed to supervise a less experienced associate.

By notice of petition dated October 4, 2012, the Departmental Disciplinary Committee seeks an order, pursuant to Judiciary Law § 90(2) and the Rules of the Appellate Division, First Department (22 NYCRR) 603.3, imposing reciprocal discipline on respondent, to wit, a public censure (the equivalent of a federal public reprimand), or, in the alternative, such discipline as this Court deems appropriate under the circumstances. Although served with this motion, respondent has not submitted a response.

By order of February 2, 2009, the Second Circuit referred respondent to its Committee on Admissions and Grievances (CAG) for an investigation and report on whether respondent and "Attorney A, " who was employed by respondent or acting on behalf of respondent's law office, should be subject to disciplinary or other corrective measures. As to Attorney A, the court's referral order noted that she had submitted deficient briefs in three cases, three appeals had been dismissed for failure to timely file a brief, she had filed 13 appeals with the Second Circuit although it was not the correct venue, and Attorney A had apparently drafted petitions for pro se appellants without disclosing her involvement to the court. The federal court's view was that respondent may have been responsible for some or all of the aforementioned conduct by the associate. The court also noted that six appeals filed by respondent had been dismissed for her failure to comply with court ordered briefing schedules, another appeal had been dismissed because she had failed to pay a filing fee after a motion for in forma pauperis status had been denied, she had also filed 13 appeals in the Second Circuit, although it was not the correct venue.

Pursuant to the federal court's direction, on February 25, 2009, respondent submitted an affidavit in response explaining her actions. She stated that the deficient briefs Attorney A had submitted were attributable to inadequate supervision on respondent's part and respondent also took responsibility for the dismissed appeals, including those that the referral order had attributed to Attorney A. Respondent acknowledged further that all 26 appeals had been filed in the Second Circuit although it was not the correct venue, but explained they had been filed there because the Second Circuit was convenient and she had been told by a court clerk she could do this because eventually the improperly filed appeals would be transferred to the proper jurisdictions. Respondent also explained that the pro se petitions mentioned in the referral order (and attributed to Attorney A) were prepared by her office at her direction so as to preserve the appellate rights of those with limited financial resources, some of whom later actually retained respondent to file supporting briefs.

In June 2009, the CAG held a joint hearing at which both respondent and Attorney A appeared pro se and testified. [2] Thereafter, by order of July 29, 2009, the Second Circuit, inter alia, declined to suspend respondent pending completion of proceedings before the CAG. The Second Circuit also issued an additional referral order referring to the CAG yet another case that had been dismissed for failure to file a brief, and directed that respondent take steps to ensure that the correct attorney was listed as counsel of record for the cases identified in the order, as well as all other pending cases before the court in which any attorney affiliated with her office had appeared. After receiving respondent's written response, the CAG determined that a second hearing was unnecessary and ultimately the CAG determined that respondent should not receive additional sanctions for the conduct that was referred by the federal court's second referral order of July 29, 2009.

As to the conduct for which respondent was initially referred for investigation, the CAG issued an undated report in which it found that respondent had committed misconduct. The CAG explained, in pertinent part:

"[t]he evidence demonstrates that in each of the cases that were dismissed on default, [respondent] neglected her duties and failed to prosecute her clients' cases diligently. In several cases, [respondent] erroneously viewed the mere act of filing motions to withdraw as counsel as discharging any and all of her responsibilities as her clients' attorney. When [respondent] knew that the motions to withdraw as counsel were denied, she took not a single step to continue to represent her clients. Assuming that [respondent] did not receive notice that certain motions to withdraw as counsel had been denied, she still did not follow up with the Court to confirm that the motions to withdraw were granted. [Respondent] did not provide any justification for her gross negligence. After filing motions to withdraw as counsel, it does not appear that [respondent] contacted her clients to update them about the status of their cases. [Respondent] did not explain to her clients that the motions to withdraw could be denied, and it seems that [respondent] did not accept the very real possibility that motions to withdraw can be denied. Furthermore, [respondent] did not inform her clients that if the motions to withdraw as counsel were denied, their cases would ultimately be dismissed if no further action was taken.
"In several instances, [respondent] simply failed to file a motion to withdraw as counsel, even though her clients clearly notified her that they wished to discharge her services (yet keep their cases open). While [respondent] did not recall why she failed to file motions to withdraw or follow up with the Court, she claimed that her clients were not prejudiced. Generally, it appears that [respondent] considered her ...

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