06-9009-am In re Karen Jaffe

1 UNITED STATES COURT OF APPEALS 2 3 FOR THE SECOND CIRCUIT 4 5 August Term, 2009 6 7 8 (Decided: October 19, 2009) 9 10 Docket No. 06-9009-am 11 12 13 14 ______________________________________________________ 15 16 17 18 In re Karen Jaffe, 19 20 Attorney. 21 22 23 ______________________________________________________ 24 25 26 27 Before: Jacobs, Chief Judge, Cabranes, Pooler, Katzmann, 28 Parker, Raggi, Wesley, Hall, Livingston, and Lynch, Circuit 29 Judges. 30 31 32 This Court’s Committee on Attorney Admissions and

33 Grievances (“the Committee”) has recommended that Karen

34 Jaffe, an attorney admitted to the bar of this Court, be

35 publicly reprimanded and permitted to withdraw from this

36 Court’s bar. We adopt the Committee’s findings of fact and

37 its recommendation of public reprimand, but we order Jaffe

38 removed from the bar of this Court. See Second Circuit Rule

39 46.1(h)(4). 1 2 Linda F. Fedrizzi, Esq., New 3 York, N.Y., for Karen Jaffe. 4 5 6

7 PER CURIAM:

8 By order filed April 2, 2008, this Court referred Karen

9 Jaffe to the Court’s Committee on Attorney Admissions and

10 Grievances (“the Committee”) for investigation of the matters

11 described in that order and preparation of a report on

12 whether she should be subject to disciplinary or other

13 corrective measures.

14 During the Committee’s proceedings, Jaffe had the

15 opportunity to address the matters discussed in the Court’s

16 referral order, to testify under oath at a hearing held on

17 July 23, 2008, and to present a post-hearing memorandum.

18 Jaffe was represented in the proceedings by Linda F.

19 Fedrizzi, Esq. Presiding over the hearing were Committee

20 members David B. Fein, Esq., and Evan A. Davis, Esq. On

21 December 12, 2008, the Committee filed with the Court the

22 record of the Committee’s proceedings and its report and

23 recommendations. Thereafter, the Court provided Jaffe with a

24 copy of the Committee’s report. Although Jaffe has not

25 responded to the report, we consider her arguments raised

26 before the Committee to be preserved, and consider them on

2 1 their merits.

2 In its report, the Committee concluded that there was

3 clear and convincing evidence that Jaffe had engaged in

4 conduct “unbecoming a member of the bar,” within the meaning

5 of Federal Rule of Appellate Procedure 46(c), by violating

6 various rules and orders of the Court and various

7 disciplinary rules of the New York Lawyer’s Code of

8 Responsibility. 1 Specifically, the Committee found that Jaffe

9 had: (a) failed to comply with many of the Court’s scheduling

10 orders, which was prejudicial to the administration of

11 justice, in violation of New York Disciplinary Rule (“D.R.”)

12 1-102(A)(5); (b) engaged in dishonesty, in violation of D.R.

13 1-102(A)(4), by presenting false statements to the Court

14 concerning her inability to attend oral argument on two dates

15 (c) filed a number of deficient briefs, in violation of Rule

16 28 of the Federal Rules of Appellate Procedure; (d) aided the

17 unauthorized practice of law, in violation of D.R. 3-101(A),

18 and improperly ratified and filed briefs drafted by

19 unsupervised law students, in violation of D.R. 1-104(D)(1);

1 As of April 1, 2009, the disciplinary rules of the New York Lawyer’s Code of Professional Responsibility were superseded by the New York Rules of Professional Conduct, which were promulgated as joint rules of the Appellate Divisions of the New York Supreme Court. Use of the new rules would not alter any of our conclusions.

3 1 and,(e) engaged in a pattern of neglect of client matters, in

2 violation of D.R. 6-101(A)(3), as evidenced by her chronic

3 late filing of briefs, which resulted in the dismissal of at

4 least twelve cases, her frequent filing of deficient briefs,

5 and her failure to respond to a March 2007 order seeking

6 information about one of her former clients.

7 The Committee also found that there were a number of

8 aggravating and mitigating factors. The following were found

9 to be aggravating factors: (1) Jaffe’s prior disciplinary

10 offenses; (2) her pattern of misconduct involving non-

11 compliance with the Court’s orders and her defective

12 briefing; (3) her multiple offenses; (4) the vulnerability

13 of Jaffe’s immigrant clients, many of whom do not speak

14 English; and (5) the unavailability of any defense premised

15 on inexperience, due to Jaffe’s substantial experience as an

16 attorney. See ABA Standards § 9.22 (a), (c), (d), (g), (h),

17 (i). The following were found to be mitigating factors: (1)

18 Jaffe’s personal problems with her own illness and a family

19 member’s illness around the time she was to respond to the

20 March 2007 order; (2) Jaffe’s cooperative attitude toward the

21 Committee’s proceedings; (3) the prior imposition of

22 sanctions for Jaffe’s false statements to the Court; and (4)

23 Jaffe’s remorse for making those false statements. See ABA

4 1 Standards § 9.32 (e), (k), (l).

2 Based on its factual findings, the Committee recommended

3 that Jaffe be publicly reprimanded for her misconduct, that

4 she be permitted to voluntarily withdraw from the bar of this

5 Court, and, if she failed to voluntarily withdraw by a set

6 deadline, that she be involuntarily removed from the Court’s

7 bar.

8 Upon due consideration of the Committee’s report and the

9 underlying record, we adopt the Committee’s factual findings

10 concerning Jaffe’s misconduct in this Court. We also adopt

11 the Committee’s conclusion that Jaffe’s misconduct

12 constituted such a serious deviation from professional and

13 ethical norms that it warrants both a public reprimand and

14 removal from the bar of this Court. For the reasons

15 discussed below, we adopt in part the Committee’s

16 recommendations concerning the appropriate disciplinary

17 measures. The following discussion is intended to supplement

18 the Committee’s report in several respects, and explain our

19 view of the appropriate disposition.

20 The Relevance of Past Sanctions

21 As a preliminary matter, we address Jaffe’s assertion

22 that at least some of the misconduct at issue in these

23 proceedings has already resulted in discipline, and that

5 1 additional discipline should not be imposed. We agree that,

2 in general, an attorney should not be disciplined multiple

3 times by the same court for the same misconduct, where the

4 first panel issuing a sanction indicated that the sanction

5 constituted final and complete discipline for the misconduct

6 at issue.

7 However, that general principle does not alter the

8 outcome of these proceedings for several reasons. First, it

9 is clear that Jaffe has not been disciplined for all of the

10 serious misconduct at issue. For example, Jaffe has not

11 demonstrated, and the record does not indicate, that she

12 received any discipline for her filing of briefs written by

13 non-lawyers that were not reviewed by Jaffe or any other

14 attorney.

15 Second, even in cases in which Jaffe was explicitly

16 criticized by this Court for her deficient performance, she

17 may be later disciplined by this Court for that performance

18 if the prior orders did not suggest that the criticism (or

19 other adverse action) was a final “sanction” for that

20 misconduct. See, e.g., Xiang Lin v. Ashcroft, No. 04-6426-

21 ag, order filed Aug. 1, 2006; Guang Pin Lin v. Gonzales, No.

22 04-6130-ag, order filed Mar. 8, 2006; Yun Fen Jin v.

23 Gonzales, No. 03-4719-ag, order filed Jan. 27, 2006; see also

6 1 Rong Hua Wang v. Gonzales, No. 06-3240-ag, order filed Mar.

2 5, 2008 (transferring to Grievance Panel the issue of whether

3 Jaffe should be sanctioned for her performance in that

4 appeal). Additionally, since attorney disciplinary

5 proceedings are primarily remedial, the Double Jeopardy

6 Clause of the Fifth Amendment does not apply. See In re

7 Caranchini,

(8 th Cir. 1998) (holding that

8 disbarment did not violate double jeopardy, even though based

9 on same conduct that resulted in prior sanctions under

10 Federal Rule of Civil Procedure 11).

11 Third, even if an attorney already has received from this

12 Court a final sanction for each of several instances of

13 misconduct, we may nonetheless impose further discipline if

14 the individual instances of misconduct are found to be part

15 of a sanctionable pattern that has not itself been addressed.

16 Finally, even where “discipline” is not appropriate, the

17 Court may nonetheless determine, based on an attorney’s prior

18 behavior, that she will be unable to conform her future

19 conduct to expected professional norms, and, as a result,

20 that her ability to practice in this Court should be barred

21 as a corrective measure in order to protect the public, other

22 attorneys and litigants, the Court, and the administration of

23 justice. See Theard v. United States,

, 282

7 1 (1957)(“The power of disbarment is necessary for the

2 protection of the public in order to strip [an attorney] of

3 the implied representation by courts that [an attorney] who

4 is allowed to hold himself out to practice before them is in

5 ‘good standing’ so to do.”); Ex Parte Wall,

, 288

6 (1883) (“The [disbarment] proceeding is not for the purpose

7 of punishment, but for the purpose of preserving the courts

8 of justice from the official ministration of persons unfit to

9 practice in them.”). 2

10 Thus, we conclude that the Committee properly found

11 Jaffe’s prior disciplinary offenses and her pattern of

12 misconduct to be aggravating factors, even if discipline was

13 imposed for some of the prior offenses.

14 We also agree with the Committee’s finding that the prior

15 imposition of sanctions for some of Jaffe’s misconduct

2 See also Butler v. Biocore Medical Technologies, Inc.,

(10 th Cir. 2003) (“[A]ttorney misconduct both implicates the attorney's fitness to function as an officer of the court and triggers the court's responsibility to protect the public from unscrupulous or unqualified practitioners.”); In re Echeles,

(7 th Cir. 1970); In re Sacher,

(2d Cir. 1953) (“The purpose of striking an attorney from the rolls of a court is not to punish him but to protect the court itself and relieve the public of a member of the legal profession, who is unfit to serve as such, in order to maintain the respect due the court by insuring that attorneys, who are 'officers of the court,' are of good professional character.”), reversed on other grounds,

(1954).

8 1 constituted a mitigating factor. However, by treating the

2 prior sanctions as a mitigating factor, we conclude only that

3 Jaffe should not be disciplined again by this Court for that

4 discrete misconduct. The misconduct underlying the prior

5 sanctions remains relevant to the question of whether Jaffe

6 can conform her future behavior to profession norms.

7 Moreover, even if the previously sanctioned misconduct were

8 ignored entirely, or treated as aberrational, we would

9 nonetheless find that public reprimand and removal from this

10 Court’s bar are warranted by the remaining misconduct. 3

11 Jaffe’s Conduct Relating to the Marshall/Muto Matter

12 In her August 2008 post-hearing memorandum, Jaffe asserts

13 that the Court has improperly assumed that she was the author

14 of the three fraudulent briefs bearing the signature of

15 Sharon Marshall, demonstrating the Court’s prejudice against

16 Jaffe. See Aug. 2008 Mem. at 3, 4-5. To the contrary, this

17 Court’s April 2008 referral order explicitly stated that

18 Judge Keenan’s investigation implicated Marshall and Joseph

19 Muto in the fraudulent brief scheme and not Jaffe. See Apr.

20 2008 order at 5. We accepted Judge Keenan’s findings then

3 Although it has little effect on our present determination, we also note that there is no record of Jaffe filing the supplemental response required by our May 2008 order. See 06-9009-am, order filed May 16, 2008 at 2.

9 1 and we accept them now. Furthermore, the Committee’s report

2 also does not characterize Jaffe’s involvement in the

3 Marshall/Muto matter as sanctionable or otherwise

4 inappropriate. Instead, the report states that the cases at

5 issue were referred by Jaffe’s paralegal to Muto and another

6 attorney “without Jaffe’s knowledge.” Report at 3 n.1. We

7 also accept that finding, as well as Jaffe’s related

8 assertions that she cooperated with Judge Keenan’s

9 investigation and helped to expose the fraudulent scheme.

10 See Apr. 2008 Response to Referral Order at ¶¶ 14-19. Her

11 cooperation and affirmative efforts to expose fraudulent

12 conduct were commendable, and are considered mitigating

13 factors.

14 However, Jaffe incorrectly asserts that she “complied in

15 full with the [Court’s] October, 2006 order,” which required

16 her to provide certain information about the Marshall/Muto

17 matter. See id. at ¶ 16. As noted in the April 2008

18 referral order, Jaffe failed to file a timely response to the

19 October 2006 order, even after being granted an extension,

20 and was suspended as a result. See Apr. 2008 order at 4-5.

21 After Jaffe filed a late response, she was reinstated. See

22 id. at 5. Although Jaffe asserted that she did not receive

23 the order that granted the extension, see In re Jaffe, No.

10 1 06-9009-am, Jaffe response filed Dec. 13, 2006, it remained

2 her responsibility to ascertain the status of her extension

3 request, particularly since significant time had passed after

4 both the original due date for a response and the date she

5 had requested an extension.

6 Quality of Jaffe’s Briefs

7 In her August 2008 post-hearing memorandum, Jaffe argues

8 that her briefs were not deficient, because they contained

9 all of the subdivisions required by Rule 28 and preserved all

10 of the petitioners’ rights. See Aug. 2008 Mem. at 3-4. We

11 reject Jaffe’s arguments, and adopt the Committee’s findings

12 concerning Jaffe’s briefs. The numerous panels of this Court

13 that found Jaffe’s briefs inadequate were not merely

14 complaining about a lack of required subdivisions in the

15 briefs. Rather, they found the substance of the briefs to be

16 abysmal – the worst deficiency being Jaffe’s failure, in

17 brief after brief, to properly apply the relevant legal

18 principles to the specific facts of the case.

19 In support of her argument that her briefs complied with

20 Rule 28, Jaffe provided, as an example, her brief in Dian

21 Liang Jiang v. Gonzales, No. 04-0299-ag. See Aug. 2008 Mem.

22 at 3. However, her brief in that case is riddled with

23 errors, lacks necessary citations to the record, and contains

11 1 almost no argument relevant to the immigration judge’s

2 adverse credibility finding or his request for corroboration.

3 See 04-0299-ag, brief filed Nov. 7, 2005. Fully half of the

4 Statement of the Case is irrelevant since its last three

5 paragraphs are duplicated verbatim from an entirely different

6 case concerning a different petitioner and different facts.

7 Compare id. at 5, with Zhong Ye Chang v. Gonzales, No. 04-

8 4288-ag, brief filed Sept. 20, 2005 (Jaffe shown as counsel

9 for petitioner). Although the Dian Liang Jiang case was

10 remanded to the agency, it is difficult to attribute that

11 result to Jaffe’s briefing. See id., order filed June 15,

12 2007.

13 On the other hand, we agree with Jaffe that most of her

14 briefs were filed within a limited period of time, and, thus,

15 she had limited opportunity to correct her errors in future

16 briefs once the deficiencies were brought to her attention in

17 orders of the Court. See Aug. 2008 Mem. at 5-6. However,

18 she did not request leave to file amended briefs after being

19 put on notice, and, after being advised of her briefing

20 deficiencies as early as December 1, 2005, see Xiu Ming Wang

21 v. Gonzales, No. 03-4951-ag, amended order filed Dec. 1,

22 2005, she filed at least three deficient briefs after that

23 date, see Hui Ming Shao v. Ashcroft, No. 04-0941-ag, brief

12 1 received Dec. 15, 2005 and filed Nov. 15, 2006; Zeng Bing Liu

2 v. Gonzales, No. 05-3860-ag, brief received Dec. 28, 2005,

3 order filed Aug. 10, 2006 (describing deficiencies in brief

4 and relieving Jaffe); Zhou Jin Yuan v. Gonzales, Nos. 05-

5 1333-ag (L), 05-1334-ag (Con.), brief received Dec. 29, 2005,

6 order filed Oct. 27, 2006 (same). Furthermore, her related

7 argument that her briefs were not deficient, and her

8 presentation of the Dian Liang Jiang brief as an example of

9 her adequate briefing, renders doubtful the suggestion that

10 she might have improved her briefing in later cases had she

11 been given earlier notice of the deficiencies.

12 To the extent that briefing deficiencies resulted from

13 Jaffe filing the unreviewed briefs of law students, an

14 explanation Jaffe provided to the Committee, Judge Keenan,

15 and this Court, see July 2008 Hearing Transcript at 16, 30-

16 31, 47; Keenan Report at 22-23, that clearly constitutes an

17 aggravating rather than mitigating factor. Indeed Jaffe’s

18 explanation is a clear concession that she aided the

19 unauthorized practice of law, in violation of D.R. 3-101(A),

20 and that she improperly ratified and filed briefs drafted by

21 unsupervised law students, in violation of D.R. 1-104(D).

22 We want to make it clear that the deficiencies of Jaffe's

23 conduct, in the aggregate, bespeak of something far more

13 1 serious than a lack of competence or ability. They exhibit an

2 indifference to the rights and legal well-being of her

3 clients, and to her professional obligations, including the

4 obligation of candor, to this Court.

5 Permitting Voluntary Withdrawal from this Court’s Bar

6 We agree with the Committee that Jaffe’s misconduct in

7 this Court put her vulnerable clients at grave risk, violated

8 numerous important professional obligations, and therefore

9 warrants both public reprimand and removal from the bar of

10 this Court. The procedure recommended by the Committee –

11 permitting Jaffe to voluntarily withdraw – was suggested by

12 the Committee to avoid “automatic” reciprocal discipline by

13 other jurisdictions. We doubt the Committee’s recommendation

14 would produce its intended result. First, if we impose

15 discipline – a public reprimand accompanied by the sort of

16 “voluntary” resignation suggested in the report clearly

17 qualify as discipline – we lack any power to control how other

18 jurisdictions respond to that discipline under their

19 reciprocal disciplinary rules.

20 Moreover, even if we simply permitted Jaffe to resign,

21 without imposing any other sanction, New York and other

22 jurisdictions would still be able to impose reciprocal

23 discipline. The rules of all of New York’s judicial

14 1 departments permit reciprocal discipline to be imposed on a

2 New York attorney who resigns from another jurisdiction’s bar

3 while under investigation for possible professional misconduct

4 in that other jurisdiction. See In re Steinbach,

88, 89-90,

(1st Dep’t 1997) (citing

6 NYCRR § 603.3, ordering disbarment pursuant to resignation

7 from Florida bar); In re Weisser,

, 631

8

, 373-74 (2d Dep’t 1995) (citing 22 NYCRR §

9 691.3(d), imposing censure pursuant to resignation from

10 Florida bar); In re Kriz,

,

,

11 358 (3d Dep’t 2008) (citing 22 NYCRR § 806.19, ordering

12 disbarment pursuant to resignation from Connecticut bar); In

13 re Hoffman,

,

(4th

14 Dep’t 1992) (citing 22 NYCRR § 1022.22, ordering suspension

15 pursuant to resignation from Florida bar). 4

16 Second, even if we were disinclined to inform the New

4 The same rule applies in other jurisdictions, including all of the federal courts located in New York. See U.S. Dist. Cts. for the Southern and Eastern Districts of New York, Local Civil Rule 1.5(b)(3); U.S. Dist. Ct. for the Northern District of New York, Local Rule 83.4(c); U.S. Dist. Ct. for the Western District of New York, Local Rule 83.3(c); In re Goldman,

(D.C. 2006) (“In the District of Columbia, a sister court’s acceptance of an attorney’s resignation pending a disciplinary investigation is a proper predicate for reciprocal discipline.”); In re Skripek,

,

(N.J. 1998) (reprimanding, as a matter of reciprocal discipline, an attorney who had been disbarred in New York after submitting his resignation during an ethics investigation).

15 1 York disciplinary authorities of the action we take in this

2 proceeding, Jaffe herself is obligated to inform those

3 authorities of this order under New York law. See 22 NYCRR

4 603.3(d) (1 st Dep’t); 22 NYCRR 691.3(e) (2d Dep’t); 22 NYCRR

5 806.19(b) (3d Dep’t). Third, the only aspect of reciprocal

6 discipline that is “automatic” is the fact that reciprocal

7 disciplinary proceedings can be automatically initiated upon

8 notice of the imposition of discipline by a sister court.

9 Although there may be a presumption that discipline should be

10 imposed on a reciprocal basis, it is not automatic and is

11 generally rebuttable. See, e.g., 22 NYCRR 603.3(b) (1 st

12 Dep’t); 22 NYCRR 691.3(b) (2d Dep’t); 22 NYCRR 806.19(c) (3d

13 Dep’t); 22 NYCRR 1022.22 (4th Dep’t). In any event, as

14 suggested above, a resignation while under investigation does

15 not sufficiently alter the situation so as to make the

16 reciprocal disciplinary process less “automatic.”

17 Our task here is to determine the appropriate level of

18 sanction for Jaffe’s conduct before this Court. Jaffe failed

19 to comply with a substantial number of this Court’s scheduling

20 orders in a way that was prejudicial to the administration of

21 justice, in violation of New York Disciplinary Rule (“D.R.”)

22 1-102(A)(5). She deliberately lied to this Court in violation

23 of D.R. 1-102(A)(4) concerning her inability to attend oral

16 1 argument on two dates. She filed a number of totally

2 deficient briefs, in violation of Rule 28 of the Federal Rules

3 of Appellate Procedure and engaged in a pattern of neglect of

4 client matters, in violation of D.R. 6-101(A)(3), as evidenced

5 by her chronic late filing of briefs, which resulted in the

6 dismissal of at least twelve cases, and her failure to respond

7 to a March 2007 order seeking information about one of her

8 former clients. She aided the unauthorized practice of law,

9 in violation of D.R. 3-101(A), and improperly ratified and

10 filed briefs drafted by unsupervised law students in violation

11 of D.R. 1-104(D)(1). In our view the appropriate remedy here

12 is the termination of her right to appear as an attorney

13 before our Court. Furthermore, while we acknowledge the

14 Committee's reasons for recommending that the termination be

15 through withdrawal, we believe it would be misleading to

16 suggest in any way that Jaffe's separation from this Court's

17 bar was voluntary.

18 Finally, the Court wishes to convey its appreciation for

19 the Committee’s labors both in this particular matter and in

20 the development of the Court’s new attorney grievance process.

21 Over the past two and a half years, the Committee has tested

22 the Court’s new investigatory and hearing process by handling

23 a substantial number of matters. The Committee’s services

17 1 have been invaluable.

2 Conclusions

3 Upon due consideration, it is hereby ORDERED that, except

4 as noted above, the Committee’s findings and recommendations

5 are adopted by the Court, and Jaffe is PUBLICLY REPRIMANDED

6 and REMOVED FROM THE BAR OF THIS COURT. Although we agree

7 with the Committee that various mitigating factors are

8 present, the totality of Jaffe’s conduct leaves us without

9 assurance that she can conform her future conduct in this

10 Court to all professional and ethical norms.

11 Jaffe must disclose this order in any future disciplinary

12 proceeding or bar application, and if required by any bar or

13 court rule or order. Furthermore, the Clerk of Court is

14 directed to release this order to the public by posting it on

15 this Court’s web site and providing copies to members of the

16 public in the same manner as all other published decisions of

17 this Court. The text of this panel’s April 2008 order

18 referring this matter to the Committee, the text of this

19 panel’s May 2008 order, and the Committee’s report are also to

20 be released to the public, as Appendices to the present order.

21 The Clerk of Court also is directed to serve a copy of

22 this order on Jaffe, this Court’s Committee on Attorney

23 Admissions and Grievances, the attorney disciplinary committee

18 1 for the New York State Appellate Division, First Department,

2 the attorney disciplinary officials for the Executive Office

3 of Immigration Review, and all other courts and jurisdictions

4 to which this Court distributes disciplinary decisions in the

5 ordinary course.

6

7

8

19 1 APPENDIX 1

2 Text of April 2008 order referring Karen Jaffe 3 to this Court’s Committee on Attorney Admissions and Grievances 4

5 For the reasons that follow, Karen Jaffe is referred to this

6 Court’s Committee on Admissions and Grievances for investigation of

7 the matters described below and preparation of a report on whether

8 she should be subject to disciplinary or other corrective measures.

9 See Second Circuit Local Rule 46(h). We express no opinion here as

10 to an appropriate disposition. The Committee may, of course, in

11 the first instance, determine the appropriate scope of its

12 investigation.

13 Jaffe was referred to this panel as a result of her actions in

14 a number of cases before this Court. We note first that many of

15 Jaffe’s cases have been dismissed for failure to comply with

16 briefing schedules. See Xiang Xing Lin v. Ashcroft, No. 03-4966-ag

17 at 5/16/05 Entry; Zu Fu Zhang v. Ashcroft, No. 03-4369-ag at

18 9/21/05 Entry; Xin Lin v. Ashcroft, No. 03-41048-ag at 10/17/05

19 Entry; Gui Bin Pan v. Ashcroft, No. 04-1096-ag at 10/19/05 Entry;

20 Qi Guan Lin v. Ashcroft, No. 04-2469-ag at 10/20/05 Entry; Shiang

21 Qing Lin v. Ashcroft, No. 04-2471-ag at 10/20/05 Entry; Weng Liang

22 v. Ashcroft, No. 04-0790-ag at 10/19/05 Entry; Kuang Xun Wang v.

23 Ashcroft, 04-3473-ag at 12/27/05 Entry; Yan Lin v. Ashcroft, No.

24 04-6427-ag at 1/6/06 Entry; Wei Pin Chen v. Ashcroft, No. 05-0367-

25 ag at 1/9/06 Entry; Hui Li v. Gonzales, No. 05-1090-ag at 1/10/06

26 Entry; Qin Xing Lin v. Ashcroft, No. 03-4513-ag at 9/21/06 Entry.

20 1 Additionally, this Court has, in numerous orders, noted

2 Jaffe’s deficient briefing and warned that her continued failure to

3 comply with the Federal Rules of Appellate Procedure could result

4 in sanctions. See, e.g., Shou Qing Liu v. Gonzales, No. 03-40331-

5 ag,

(2d Cir. Dec. 7, 2005); Xian Gui Chen v.

6 Gonzales, No. 04-1954-ag,

(2d Cir. Dec. 8, 2005);

7 Wan Qin Lin v. Gonzales, No. 04-2175-ag,

(2d Cir.

8 Dec.12, 2005); Jin Qiu Zheng v. Gonzales, No. 03-40530-ag, 163

(2d Cir. Dec. 22, 2005); Ji Wei Ni v. Ashcroft, No.

10 04-6357-ag at 1/3/06 Entry; Chang Zhao Chen v. Gonzales, No. 03-

11 40039-ag, 162 Fed.Appx.39 (2d Cir. Jan. 6, 2006); Xiu Gao v.

12 Gonzales, No. 04-0028-ag,

(2d Cir. Jan. 19, 2006);

13 Ke Jin Chen v. Gonzales, No. 04-2528-ag,

(2d Cir.

14 Jan. 23, 2006); Jin v. Gonzales, No. 03-4719-ag,

(2d Cir. Jan 27, 2006); Mai Chai Zhu v. Gonzales, No. 04-1100-ag,

16

(2d Cir. Jan. 31, 2006); Yin Yan Qu v. Gonzales,

17 No. 04-4290-ag,

(2d Cir. Feb. 15, 2006); see also

18 Jian Qing Lin v. Mukasey, Nos. 05-0696-ag (L) and 05-0717-ag (Con)

19 at 11/15/07 Entry(discussing Jaffe’s “manifest ineffective

20 assistance of counsel” and relieving her from representing

21 petitioner); Guang Pin Lin v. Gonzales, No. 04-6130-ag, 170

(2d Cir. Mar. 8, 2006)(describing brief as

23 “abysmal”); Xiu Ming Wang v. Gonzales, No. 03-4951-ag, 156

(2d Cir. Dec. 1, 2005) (noting briefing deficiencies

25 without warning of possible future sanctions).

21 1 However, despite the repeated warnings from this Court, Jaffe

2 continued to submit deficient briefs, see Zeng Bing Liu v.

3 Gonzales, No. 05-3860-ag, at 12/28/05 Entry (brief received), and

4 8/10/06 Entry,

(order describing deficiencies in

5 brief and relieving Jaffe); Zhou Jin Yuan v. Gonzales, Nos. 05-

6 1333-ag (L), 05-1334-ag (Con.), at 12/29/05 Entry (brief received),

7 and 10/27/06 Entry,

(order describing

8 deficiencies in brief and relieving Jaffe), and there is no

9 indication that she attempted to file revised briefs in any of the

10 appeals that were pending at the time she received the warnings.

11 This Court’s recent order in Jian Qing Lin, Nos. 05-0696-ag

12 (L), 05-0717-ag (Con), may serve as a fair example of the types of

13 deficiencies this Court has found in Jaffe’s briefs. The order in

14 that case stated that Jaffe had demonstrated “manifest ineffective

15 assistance of counsel” throughout the proceedings, and provided six

16 examples of her poor performance.

at 11/15/07 Entry. Aside

17 from those examples, review of the proceedings in that case

18 suggests that Jaffe’s poor performance also seriously affected the

19 merits of her clients’ appeal. Rather than immediately appealing

20 to this Court from the November 2004 Board of Immigration Appeals

21 (“BIA”) final orders of removal, Jaffe instead submitted a letter

22 to the BIA “moving to reopen” the administrative proceedings,

23 thereby waiving her clients’ ability to contest the merits of the

24 November 2004 orders in this Court. However, the brief Jaffe did

25 ultimately submit to this Court focused on the decision of the

22 1 immigration judge (“IJ”) denying the petitioners’ asylum

2 applications, even though the IJ’s decision and the BIA’s final

3 removal orders were not reviewable due to Jaffe’s failure to

4 directly appeal those earlier orders to this Court in a timely

5 fashion. Furthermore, the brief not only failed to identify the

6 alleged plain error in the BIA opinion (as noted in the Court’s

7 order), but also did not contest the BIA’s denial of the motion to

8 reopen, offered no explanation for Jaffe’s failure to appeal the

9 BIA’s final orders of removal, did not raise ineffective assistance

10 of counsel as a ground for this Court to reverse the BIA’s denial

11 of the motion to reopen, and failed to bring to this Court’s

12 attention a material factual error in the BIA’s proceedings

13 relating to the motion to reopen, namely, that the transcript of

14 proceedings before the IJ and the briefing schedule may not have

15 been sent to Jaffe’s proper address – an error the government

16 brought to this Court’s attention.

17 More serious issues also have been brought to our attention.

18 By order filed January 19, 2006, this Court required Jaffe to show

19 cause why she should not be disciplined as the result of a false

20 statement she had made concerning her failure to appear for oral

21 argument on two dates. See Wong Xing Chen v. Gonzales, No. 03-

22 40018-ag at 1/19/06 Entry.1 Specifically, Jaffe had falsely stated

1 The order to show cause was entered in Wong Xing Chen v. Gonzales, No. 03-40018-ag, but was thereafter assigned the separate docket number 06-9009-am. See In re Jaffe, 06-9009-am at 5/1/06 Order (explaining assignment of new docket number).

23 1 to this Court that illness had precluded her from attending the

2 required appearances; however, on those same dates, she had

3 appeared before an IJ just two blocks from this Court’s location.

4

In response to the suspension order, Jaffe admitted that she

5 had made false statements, presented mitigating circumstances

6 (concerning certain medical issues), and provided assurances that

7 such conduct would not occur again. See In re Jaffe, No. 06-9009-

8 am at 5/1/06 Entry. By order filed May 1, 2006, this Court

9 suspended Jaffe from the bar of this Court for thirty days, based

10 on the false statements.2

11 Thereafter, the Court arranged for the former chair of the

12 Immigration Law Committee of the Bar Association of the City of New

13 York to meet with Jaffe to help her gain control of her large

14 caseload of immigration appeals pending in this Court; however,

15 that effort was not successful. See In re Jaffe, No. 06-9009-am at

16 7/13/06 Entry (describing efforts to aid Jaffe). A later effort by

2 In July 2006, as a result of this Court’s May 2006 suspension order, the BIA suspended Jaffe from practice before the BIA, the immigration courts, and the Department of Homeland Security. That 30-day suspension was made retroactive to an existing interim suspension before those courts, issued on June 12, 2006. See In re Jaffe, No. 06-9009-am at 7/13/06 Order; Executive Office for Immigration Review, http://www.usdoj.gov/eoir/press/subject.htm, at the following Professional Conduct Press Releases: 6/23/06 (discussing the BIA’s immediate suspension of Jaffe following the Second Circuit’s 30-day suspension); 7/20/06 (discussing BIA’s final order of discipline against Jaffe, effective June 12, 2006); 7/26/06 (same); and 9/13/06 (discussing her July 27, 2006 reinstatement). Jaffe was also publicly censured by the Appellate Division, First Department, as a result of this behavior. See In re Jaffe,

(1st Dep’t 2007).

24 1 Court staff to ascertain Jaffe’s plan to timely prosecute her cases

2 in this Court was also unsuccessful.

3 The Court then determined that a new remedial order was

4 required, in light of, inter alia, “Jaffe’s chronic failure to met

5 briefing deadlines, often despite numerous extensions, ... her

6 frequent submission of briefs that do not conform to the Rules of

7 Appellate Procedure and that are of minimal competence, ...and her

8 apparent lack of support staff to assist her in handling the more

9 than 100 INS petitions [she then had] pending in this Court.”

10 The new remedial order, inter alia, relieved Jaffe from all cases

11 in which she had not submitted briefs, and prohibited her from

12 serving as counsel before this Court in more than 30 cases at any

13 one time.

As a result, she was relieved as counsel in

14 approximately 75 cases. See In re Jaffe, No. 06-9009-am at 8/15/07

15 Order (“Keenan Report”) at 23. The order also required Jaffe to

16 provide this Court with the names and addresses of all the

17 petitioners on a list of cases provided to her by the Clerk of this

18 Court, to allow the Court to, inter alia, notify the petitioners

19 that Jaffe was no longer representing them. In re Jaffe, No. 06-

20 9009-am at 7/13/06 Entry. In August 2006, Jaffe sent this Court a

21 letter providing some, but not all, of the information requested in

22 the July 2006 order. See Jaffe Letter. However, Jaffe indicated

23 that four of the listed petitioners “were not [her] clients

24 originally,” and, therefore, she had no records or addresses for

25 them.

However, this rather unclear assertion was belied, for

25 1 at least one of those petitioners, by Jaffe’s signature on that

2 petitioner’s petition for review. See Wang v. Gonzales, No. 06-

3 3240-ag at 7/11/06 Entry. Based upon this conflicting information,

4 by order filed March 22, 2007, this Court required Jaffe to provide

5 additional information for that petitioner, within 30 days of the

6 entry of the order. See Wang v. Gonzales, No. 06-3240-ag at

7 3/22/07 Entry. On April 17, 2007, Jaffe requested, by telephone,

8 an extension because she had been “knocked down when trying to hail

9 a cab.”

at 4/17/07 Entry. On April 26, 2007, her attorney,

10 Linda Fedrizzi, requested a 30-day extension to respond to this

11 Court’s May 2007 order.

at 4/26/07 Entry. This Court granted

12 the extension and required Jaffe to respond on or before May 22,

13 2007.

at 5/4/07 Entry. On May 21, 2007, Jaffe again

14 telephoned the Court, stating that she would not be able to meet

15 the deadline because, as noted on this Court’s docket sheet, “dog

16 died, father sick, head/back/neck problems, etc., etc.”

at

17 5/21/07 Entry. However, she never filed either a request for a

18 further extension of time or the required response to the Court’s

19 March 22, 2007 order. By order filed March 5, 2008, a panel of

20 this Court ordered that “the issue of whether Jaffe should be

21 sanctioned for her performance in this appeal” be transferred to

22 the Court’s Grievance Panel.

at 3/5/08 Order.

23 In the meantime, by order filed in October 2006, this Court

24 required Jaffe to submit an affidavit concerning the suspicious

25 filing of briefs in three cases in which she had been relieved as

26 1 counsel pursuant to this Court’s July 2006 sanction order: Tung

2 Feng Xi v. Gonzales, No. 04-5742; Lin Feng v. Gonzales, No. 05-

3 5817; and Wu Deng Wei v. Gonzales, No. 04-1813. The briefs

4 purported to have been written by Sharon Marshall, but Marshall was

5 not a member of the Court’s bar and could not be located through

6 the telephone numbers and address supplied with the briefs. See In

7 re Jaffe, 06-9009-am at 10/4/06 Order. Thereafter, this Court

8 granted Jaffe’s request to extend, until November 27, 2006, her

9 deadline for a response to the October 2006 order, and warned her

10 that “[n]o further extensions [would] be permitted, and failure to

11 respond in a timely manner [would] incur the distinct risk of

12 additional sanctions.” See In re Jaffe, 06-9009-am at 10/23/06

13 Order. Jaffe failed to respond by the extended due date. As a

14 result, by order filed December 7, 2006, this Court suspended Jaffe

15 from the Bar of this Court, but permitted an application for

16 reinstatement upon full compliance with the October 2006 order.

17 See In re Jaffe, 06-9009-am at 12/07/06 Order. On December 13,

18 2006, Jaffe filed affidavits which purported to explain the

19 circumstances concerning the filing of the three briefs. See In re

20 Jaffe, 06-9009-am at 12/13/06 Entries. This Court found that the

21 affidavits “raised substantial questions concerning the propriety

22 of the conduct of persons who are, or might be, or claim to be

23 members of the Bar of this Court,” including Sharon Marshall and

24 Joseph Muto, and appointed the Honorable John F. Keenan, United

25 States District Judge for the Southern District of New York, as

27 1 special master to conduct hearings on the matter. See In re Jaffe,

2 06-9009-am at 12/22/06 Order. The order also conditionally

3 reinstated Jaffe as a member of the bar of this Court, pending

4 receipt of Judge Keenan’s report.

5 In June 2007, Judge Keenan submitted his report. See In re

6 Jaffe, No. 06-9009-am at 8/14/07 Order, attached report of Judge

7 Keenan dated 6/26/07. The findings in the report implicated

8 Marshall and Muto in, inter alia, a scheme to file fraudulent

9 briefs in this Court, but did not implicate Jaffe.

10 Accordingly, in August 2007, this Court issued an order which,

11 inter alia, reinstated Jaffe to the bar of this Court, subject to

12 all of the conditions of this Court’s July 13, 2006 order. See In

13 re Jaffe, 06-9009-am, 8/14/007 Order at 2-3. The order also

14 cautioned Jaffe “that the submission of briefs indicating lack of

15 professional competence will subject her to the distinct risk of

16 further sanctions.”

17 Although we are informed that Jaffe is counsel of record in

18 two currently pending appeals, see Mei Gao v. Gonzales, No. 05-

19 4888-ag; Wang Lu v. Gonzales, No. 04-4959-ag, this Court’s records

20 do not reveal any proceeding in this Court commenced by Jaffe since

21 the entry of the August 2007 order.

22 Upon due consideration of the matters described above, it is

23 ORDERED that Karen Jaffe is referred to this Court’s Committee on

24 Admissions and Grievances for investigation and preparation of a

25 report consistent with Federal Rule of Appellate Procedure 46, this

28 1 Court’s Local Rule 46(h), and the Rules of the Committee on

2 Admissions and Grievances. We request that the Committee expedite

3 its proceedings in this matter.

4 It is further ORDERED that Karen Jaffe (a) show cause, within

5 14 days of the filing of this order, why she should not be

6 suspended from the bar of this Court, or otherwise sanctioned,

7 pending the proceedings of the Committee on Admissions and

8 Grievances, based on any of the above-described conduct following,

9 or otherwise not addressed by, this Court’s prior sanction orders

10 or on an inability to conform to the rules governing practice in

11 this Court; (b) submit to this panel, within 14 days of the filing

12 of this order, a complete list of all pending cases in this Court

13 in which she is either counsel of record or performing any legal

14 services for any litigant; (c) notify this panel, in writing, of

15 any other cases in this Court, whether newly filed or reinstated,

16 in which she is performing any legal services for any litigant,

17 within 14 days of either the pleading initiating the new case or

18 the motion seeking reinstatement of a case; and (d) with each

19 submission required by clauses (b) and (c), attach an affidavit of

20 the litigant for whom she is performing legal services, attesting

21 to the fact that the litigant has read a copy of this order and

22 wishes to proceed with Jaffe providing legal services.

23 The Clerk of Court is directed to serve a copy of this order

24 on both Jaffe, at her address currently on file with this Court,

25 and on the Law Offices of Linda Fedrizzi, P.C., at 25-84 Steinway

29 1 Street, Astoria, New York 11103. If Ms. Fedrizzi is no longer

2 representing Jaffe, she is requested to so inform this Court and to

3 forward this order to Jaffe.

4

5 APPENDIX 2

6 Text of May 2008 order 7

8 By order filed April 2, 2008, this panel referred Karen Jaffe

9 to this Court’s Committee on Admissions and Grievances for

10 investigation and preparation of a report on whether she should be

11 subject to disciplinary or other corrective measures. See Second

12 Circuit Local Rule 46(h). We also directed Jaffe to show cause why

13 she should not be immediately suspended from practice before this

14 Court, or otherwise sanctioned, pending proceedings before the

15 Committee. In her response, Jaffe states, inter alia, that she has

16 only two proceedings currently pending before this Court, both of

17 which are fully briefed, and has no plans to file any new cases in

18 this Court in the near future. We note that one of the cases that

19 was pending at the time the response was filed has since been

20 decided. See Wang Ding Lu v. Mukasey, 04-4959-ag.

21 Upon due consideration, we hereby decline, at this time, to

22 suspend or otherwise sanction Jaffe during the pendency of the

23 Committee’s proceedings. However, notwithstanding Jaffe's stated

24 intention not to appear before this Court in the near future, she

25 is reminded that, pursuant to our April 2, 2008 order, she must

30 1 inform this panel of any future filings in current or subsequently-

2 filed cases and must provide an affidavit from each petitioner in

3 any future case, demonstrating that the petitioner has been

4 informed of the April 2, 2008 order and wishes to continue with

5 Jaffe’s representation. Furthermore, Jaffe is directed to submit

6 to this panel, within fourteen days of this order, a letter

7 providing (a) the docket numbers for the four cases listed in

8 paragraphs 32 and 33 of her April 15, 2008 affidavit which do not

9 have docket numbers following the case names, and (b) correct

10 docket numbers for”Xue Hui Lin, Docket 04-0042" and “Mei Juan Liu,

11 Docket 04-5807," as those numbers appear to belong to other

12 appellants represented by other attorneys.

13

14 APPENDIX 3

15 December 2008 Report of the Committee 16 on Attorney Admissions and Grievances 17

18 [remainder of page intentionally blank; text of Appendix 3

commences on following page]

31 32 33 34 35 36 37 38 39 40 41