Bennett v. Mukasey ( 2008 )

06-2480-ag
Bennett v. Mukasey
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2007
Submitted: May 6, 2008 Decided: May 12, 2008
Docket No. 06-2480-ag
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RIZLAND BENNETT,
Petitioner,
v.
MICHAEL B. MUKASEY, United
States Attorney General,
Respondent.
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Before: NEWMAN, Circuit Judge, in Chambers.
Motion to recall a mandate and reinstate a petition for review of
a decision of the Board of Immigration Appeals that had been dismissed
one year ago for the failure of petitioner’s attorney to comply with
Court’s procedural requirements. Attorney, who had accepted a partial
fee under a retainer agreement, reports that he failed to comply and
did not promptly file a motion to reinstate because he had not
received additional fee payment.
Motion granted, deadline for petitioner’s brief established, and
file transmitted to Court’s Grievance Panel.
Douglas Rosenthal, The Rosenthal Law
Firm, P.C., New York, N.Y., submitted
papers on behalf of Petitioner.
William C. Minick, Office of Immigration
Litigation, U.S. Department of Justice,
Washington, D.C., submitted papers on
behalf of Respondent.
JON O. NEWMAN, Circuit Judge, in Chambers:
This motion to recall a mandate and reinstate a petition for
review of a decision of the Board of Immigration Appeals (“BIA”)
merits this brief chambers opinion to make clear that a lawyer’s
practice of accepting an initial retainer fee and then deliberately
failing to take required action because of non-payment of additional
fees, thereby permitting his client’s petition to be dismissed, is
unacceptable.
On May 26, 2006, Attorney Douglas Rosenthal filed a petition in
this Court for Rizland Bennett to review a BIA decision denying
Bennett’s petition to reopen removal proceedings in order to seek
adjustment of status based on his marriage to a United States citizen.
Before the Immigration Court, the Government had declined to oppose
his motion to reopen at the agency level. On June 6, 2006, a deputy
clerk of this Court reminded Rosenthal by telephone of the Court’s
requirement to file, within ten days of a petition for review, the
standard informational form (Local Form C-A) for agency appeals. See
28 U.S.C.A., Second Circuit Local Rules, App., Part C (Civil Appeals
Management Plan ¶3(a)). Rosenthal stated that he would file the
required form. Upon Rosenthal’s failure to do so, the petition was
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dismissed nearly a year later on April 7, 2007, and a mandate was
issued.
On April 11, 2008, after passage of yet another year, Rosenthal
filed a motion to reinstate the petition, which implicitly included a
request to recall the mandate. Rosenthal alleged that the one-year
delay in seeking reinstatement was due to “a lack of co-operativeness
on the part of the petitioner.” No explanation was given for the
prior nearly one-year delay in complying with Court requirements that
preceded the dismissal.
Treating the motion as a one-judge procedural motion, See Fed. R.
App. P. 27(c); 2d Cir. R. 27(f), I denied it on April 21, 2008,
“without prejudice to a further submission, within ten days,
explaining in detail the alleged ‘lack of cooperativeness’ between
counsel and petitioner, including whether such lack concerned payment
of, or liability for, counsel fees . . . .”
On May 7, 2008 (two days late, see Fed. R. App. P. 26), Rosenthal
filed his response. He reported that in May 2006, he met with Bennett
and that “[t]erms for . . . retention were discussed, and agreed upon
and a modest retainer fee was paid.” “Thereafter,” the response
continued, “as uncomfortable as it is to relate, Petitioner
demonstrated a lack of cooperativeness with counsel by failing to pay
as agreed upon . . ., and a letter sent to Petitioner advising him of
the situation and the need to bring the outstanding balance to date
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went without response.” “In late 2007 or early 2008,” the response
further continued, “Counsel received a call from Petitioner inquiring
as to the status of the case, and was advised accordingly. A further
promise to pay was forthcoming, but full payment on that promise was
not received until March, 2008. The instant motion ensued.”
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 such further payment. The
Lawyer’s Code of Professional Responsibility, as adopted by the New
York State Bar Association (“NY Code”), makes clear that Rosenthal is
incorrect. It provides: “Full availability of legal counsel requires
both that persons be able to obtain counsel and that lawyers who
undertake representation complete the work involved.” NY Code, EC 2-31
(emphasis added). Moreover, “[a] lawyer shall not . . . [n]eglect a
legal matter entrusted to the lawyer,” id., DR 6-101(A)(3),” and
“shall not intentionally . . . [f]ail to carry out a contract of
employment entered into with a client for professional services [or]
. . . prejudice or damage the client during the course of the
professional relationship,” id., DR 7-101(A)(2), (3).
Although the Code indicates that a lawyer may withdraw if his
client “[d]eliberately disregards an agreement or obligation to the
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lawyer as to expenses or fees,” id., DR 2-110(C)(1)(f), we have stated
that “[n]on-payment of legal fees, without more, is not usually a
sufficient basis to permit an attorney to withdraw from
representation.” United States v. Parker, 439 F.3d 81, 104 (2d Cir.
2006). In any event, withdrawal requires compliance with several
obligations to the client,1 and Rosenthal made no attempt to withdraw,
much less to 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. 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 opposes the pending motion to reinstate,
1
A lawyer shall not withdraw from employment until the lawyer has
taken steps to the extent reasonably practicable to avoid foreseeable
prejudice to the rights of the client, including giving due notice to
the client, allowing time for employment of other counsel, delivering
to the client all papers and property to which the client is entitled,
and complying with applicable laws and rules. NY Code, DR 2-110(A)(2).
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contending, not without justification, that Rosenthal has not made the
showing of “manifest injustice” normally required to warrant recall of
a mandate “to relieve litigants of the consequences of default.” See
Fed. R. App. P. 2 advisory committee’s note; Calloway v. Marvel
Entertainment Group, 854 F.2d 1452, 1475 (2d Cir. 1988). However, 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. Denial of reinstatement
would be an inappropriate sanction for what has occurred.
Accordingly, it is hereby ORDERED that the mandate is recalled,
the petition is reinstated, the Petitioner’s brief shall be filed in
30 days, with no extension to be expected, a scheduling order for the
Respondent’s brief shall be issued upon the filing of the Petitioner’s
brief, and the Clerk shall transmit a copy of the file to the
Grievance Panel2 of this Court for such action, if any, as it deems
appropriate.
2
See Rules of the Committee on Admissions and Grievances for the
United States Court of Appeals for the Second Circuit 2(a).
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