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Pay-as-You-Go Lawyer Referred to 2nd Circuit's Grievance Panel
Judge faults unpaid attorney who 'neglected' appeal
New York Law Journal
May 13, 2008
A lawyer who refused to act on his client's appeal because the client had not fully paid his fees has been referred by a federal judge to the 2nd Circuit's grievance panel.
Senior Judge Jon O. Newman said it was "unacceptable" that attorney Douglas Rosenthal took an initial retainer fee from an aspiring U.S. citizen and then stopped working because the client did not pay additional fees.
On May 26, 2006, Rosenthal filed a petition in the circuit on behalf of Rizland Bennett seeking review of a Board of Immigration Appeals decision denying Bennett's petition to reopen removal proceedings to seek an adjustment in his status because he had married a U.S. citizen.
The government had not opposed the motion to reopen at the immigration court level.
Rosenthal was told by a deputy clerk of the 2nd U.S. Circuit Court of Appeals on June 6, 2006, that he had 10 days after filing a petition for review to submit a standard informational form for the appeal.
He failed to file the form and the petition was dismissed on April 7, 2007.
More than one year later, on April 11, 2008, Rosenthal filed a motion to reinstate the petition, saying the delay in seeking reinstatement was due to "a lack of cooperativeness on the part of the petitioner."
The motion was a one-judge procedural motion, and Newman denied it on April 21 without prejudice subject to a submission from the lawyer "explaining in detail the alleged 'lack of cooperativeness' between counsel and petitioner, including whether such lack concerned payment of, or liability for, counsel fees." Bennett v. Mukasey, 06-2480-ag.
Rosenthal submitted a response that stated "as uncomfortable as it is to relate, Petitioner demonstrated a lack of cooperativeness with counsel by failing to pay as agree upon."
Rosenthal also said he made the motion to reinstate only after receiving full payment from Bennett in March 2008.
This did not sit well with Newman.
"By his own admission, Rosenthal evidently believes that a retainer agreement and initial payment for an appeal imposes upon counsel no obligation to pursue the appeal, that required steps may await further payment, and that a client's appeal may be permitted to be defaulted and dismissed for lack of further payment," Newman said. "The Lawyer's Code of Professional Responsibility, as adopted by the New York State Bar Association, makes clear that Rosenthal is incorrect."
The code, DR 2-11(C)(1)(f), allows a lawyer to withdraw if a client deliberately "disregards an agreement or obligation to the lawyer as to expenses or fees."
But the circuit made clear in United States v. Parker, 439 F.3d 81 (2006), that nonpayment of "legal fees, without more, is not usually a sufficient basis to permit an attorney to withdraw from representation."
But here, Newman said, "Rosenthal made no attempt to withdraw, much less comply with withdrawal obligations.
"Instead, despite a retainer agreement and acceptance of an initial fee payment, he neglected his obligations to his client and permitted his client's appeal to be defaulted and dismissed," the judge said. "Of course, a retained lawyer can either pursue contractual remedies to collect unpaid fees or seek leave to withdraw, but he cannot abandon his client for lack of a promised payment nor neglect his professional responsibilities until such payment has been made."
The government opposed the motion to reinstate the petition, but Newman said "at least in a case where the government initially declined to oppose the relief sought at the administrative level, it seems unfair to penalize the client because of his lawyer's conduct."
The seven-member Committee on Admissions and Grievances is charged with investigating and filing recommendations on disciplinary matters that are referred to it by the court. Formed under Local Rule 46(h), the committee accepts referrals on any accusation or evidence of misconduct that occurs before the court or violates the rules of professional conduct or responsibility. The committee can investigate affirmative misconduct and negligent conduct. Its recommendations are filed with the circuit, but it also has the discretion to refer matters to local bar associations.
William C. Minnick of the Office of Immigration Litigation represented the government.
Rosenthal, of the Rosenthal Law Firm, declined to comment.
