Filed: Sep. 16, 2010
Latest Update: Feb. 21, 2020
Summary: 08-90062-am In re Robert Adinolfi UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MOST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORD
Summary: 08-90062-am In re Robert Adinolfi UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MOST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDE..
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08-90062-am
In re Robert Adinolfi
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL
RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING
A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MOST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER") .
A PARTY CITING A SUMMARY ORDER MOST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Daniel Patrick Moynihan United
States Courthouse, 500 Pearl Street, in the City of New York, on
the l6~ day of September, two thousand ten.
PRESENT:
Jose A. Cabranes,
Robert D. Sack,
Richard C. Wesley,
Circuit Judges.
08-90062-am
In re Robert Adinolfi,
Attorney. ORDER OF
GRIEVANCE PANEL
FOR ROBERT ADINOLFI: ROBERT ADINOLFI, Esq., New York,
New York.
1 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
2 DECREED that the report of this Court's Committee on Admissions
3 and Grievances ("the Committee") is adopted, and ROBERT ADINOLFI
1 is PUBLICLY REPRIMANDED for the misconduct described in the
2 Committee's report.
3 I. Summary of Proceedings
4 By orders filed in June 2008 and February 2009, this Court
5 referred Adinolfi to the Committee for investigation of the
6 matters described in those orders and preparation of a report on
7 whether he should be subject to disciplinary or other corrective
8 measures. Although the Court declined to suspend Adinol
9 pending these disciplinary proceedings, the Court ordered, as an
10 interim measure, that he refrain from filing any new cases in the
11 Court until the total number of his cases fell below thirty and,
12 thereafter, that he maintain his caseload at thirty or fewer
13 cases.
14 During the Committee's proceedings, Adinolfi had the
15 opportunity to address the matters discussed in the Court's
16 referral order and to testify under oath at a hearing held on
17 September 8, 2008. Adinolfi appeared pro se. Presiding over the
18 hearing were Committee members Mary Jo White, Esq., Loretta E.
19 Lynch, Esq., and the Honorable Howard A. Levine. In August 2009,
20 the Committee filed with the Court the record of the Committee's
21 proceedings and its report and recommendations. Thereafter, the
22 Court provided Adinol with a copy of the Committee's report,
23 and Adinolfi responded.
24 In its report, the Committee concluded that there was clear
2
1 and convincing evidence that Adinolfi had engaged in conduct
2 warranting the imposition of discipline. See Report at 4-5.
3 Specifically, the Committee found "a pattern of neglect of ient
4 matters on Adinolfi's part, or a significant inability to
5 competently handle the volume of his practice, resulting in
6 persistent disregard of [this Court's] scheduling orders." Id.
7 at 5. After noting the presence of various aggravating and
8 mitigating factors,
id. at 4-5, the Committee recommended that
9 Adinolfi be publicly reprimanded, and required to attend
10 continuing legal education ("CLE") classes on law office
11 management, submit periodic reports to the Court, and adhere to
12 various case load restrictions, id. at 5-7. In his response to
13 the Committee's report, Adinolfi consented to the Committee's
14 report and recommendation, requested that the Court adopt it in
15 all respects, and apologized for inaccuracies in prior case
16 status reports submitted to the Court. Response at 1-2.
17 II. Additiona1 Re1evant Conduct
18 A review of this Court's records indicates that, since the
19 date of his referral to the Committee, Adinolfi has missed
20 briefing deadlines in four cases which were not discussed in the
21 Court's prior orders or the Committee's report. Three of those
22 defaults clearly occurred after Adinolfi was put on notice of the
23 Court's concerns discussed in the June 2008 order, with two of
24 those three occurring after the Committee's September 2008
25 hearing. In Hua Li v. Mukasey, 08-2545-ag, Adinolfi permitted
3
1 the December 2008 briefing deadline to pass without filing a
2 brief,l causing this Court to order him to show cause why the
3 appeal should not be dismissed based on his default. See Hua Li,
4 08-2545-ag, order filed Jan. 12, 2009. Adinol timely
5 responded, see id., response filed Jan. 26, 2009, and the case
6 proceeded to full briefing and decision on the merits. In Fang
7 Mei Li v. Mukasey, OB-2930-ag, and Zhen Shui Weng v. Mukasey, 08
8 3145-ag, Adinolfi moved for extensions of time only after the
9 briefing deadlines had passed. See Fang Mei Li, 08-2930-ag,
10 scheduling order filed July 22, 2008 (setting briefing deadline
11 of September 8, 2008), letter filed Sept. 15, 2008 (requesting
12 extension and stating that scheduling order had not been
13 received); Zhen Shui Weng, 08-3145-ag, scheduling order filed
14 July 24, 2008 (setting briefing deadline of October 1, 2008)
15 letter filed Oct. 7, 2008 (requesting extension). In both cases,
16 this Court granted the requested extensions, and the briefs were
17 filed.
18 It is not clear if Adinolfi had received the June 2008 order
19 prior to his default in the fourth case, Qiu v. Mukasey, 08
20 1481-ag, where he failed to file a brief by the June 20, 2008
1 In September 2008, Adinolfi requested a 30-day extension
of time to an unspecified date, see Hua Li, 08-2545-ag, letter
filed Sept. 26, 2008, but was informed that an extension was
unnecessary because the brief was not due until December 10,
2008, see id., scheduling order filed Sept. 10, 2008.
4
1 deadline set in the scheduling order. See Qiu Li, 08-1481-ag,
2 scheduling order filed May 21, 2008, motion for extension filed
3 July 15, 2008. Although the June 2008 order was served on
4 Adinolfi by mail on or about June 3, 2008, Adinolfi informed the
5 Court that he did not receive it until July 9, 2008.
6 In any event, despite Adinolfi's initial difficulty in
7 correcting the conduct at issue in our prior orders, he has not
8 missed any briefing deadlines since December 2008, and it is our
9 hope that he will make further improvements in his case
10 management.
11 III. Conclusions
12 Upon due consideration of the Committee's report, the
13 underlying record, and Adinolfi's submissions, it is hereby
14 ORDERED that Adinolfi is PUBLICLY REPRIMANDED for the misconduct
15 described in the Committee's report and DIRECTED to:
16 (a) complete, within six months of the filing date of
17 this order, six hours of CLE on law office management,
18 which must be taken in addition to, and not in
19 fulfilment of, his regular CLE requirements. Adinolfi
20 must submit information about proposed CLE courses
21 directly to the Committee's secretary, who will inform
22 him whether the Committee agrees that the proposed
23 courses satisfy his obligation. Adinolfi must certify
24 his completion of the required CLE courses by sworn
25 statement filed with both this panel and the
26 Committee's secretary within seven days after the end
27 of the six-month period. The Committee may modify
28 these deadlines, either on motion or sua sponte.
29
30 (b) comply with the reporting requirements and all
31 caseload restrictions described on pages 6 and 7 of the
32 Committee's report. However, we modify the reporting
33 requirements as follows: each report submitted to the
5
1 Committee by Adinolfi must contain, in addition to all
2 other required information, a brief summary of his
3 caseload in this Court which makes clear that he has
4 complied with caseload restrictions (a) through (c)
5 listed on page 6 of the Committee's report. The
6 Committee may modify the deadlines for Adinolfi's
7 reports, either on motion or sua sponte.
8
9 As stated in the Committee's report, if a report required by
10 this order "is not timely filed or reveals deficiencies not
11 justified by exigent circumstances, the Committee may recommend
12 the impos ion of additional discipline, including but not
13 limited to suspension from the Second Circuit, without
14 hearing further testimony.u Report at 6.
15 The text of this panel's June 2008 and February 2009 orders
16 and the Committee's report are appended to, and deemed part of,
17 the present order for the following disclosure purposes.
18 Adinolfi must disclose this order to all courts and bars of which
19 he is currently a member, and as required by any bar or court
20 rule or order. Adinolfi also must, within fourteen days of the
21 filing of this order, file an affidavit with this Court
22 confirming that he has complied with the preceding disclosure
23 requirement. Furthermore, the Clerk of Court is directed to
24 release this order to the public by posting it on this Court's
25 web site and providing copies to members of the public in the
26 same manner as all other unpublished decisions of this Court, and
27 to serve a copy on Adinolfi, this Court's Committee on Admissions
28 and Grievances, the attorney disciplinary committee for the New
6
1 York State Appellate Division, First Department, and all other
2 courts and jurisdictions to which this Court distributes
3 disciplinary decisions in the ordinary course.
4
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk
By: Michael Zachary
Counsel to the Grievance Panel
APPENDIX 1
Text of June 2008 order
For the reasons that follow, Robert Adinolfi is referred to
this Court's Committee on Admissions and Grievances for
investigation of the matters described below and preparation of a
report on whether he should be subject to disciplinary or other
corrective measures. See Second rcuit Local Rule 46(h). We
express no opinion here as to an appropriate disposition. The
Committee may, of course, in the first instance, determine the
appropriate scope of its investigation.
A review of the 103 cases in this Court's docketing system
that list Adinolfi as counsel of record suggests that Adinol
has had serious difficulty complying with orders and rules of the
Court. At least twenty-six of his cases have been dismissed
based on his failure to file a brief by the deadline specified in
an order the Court. See Second Circuit cases docketed under
03 40068; 04-1813; 04-4289; 04-6285; 05-6714; 05-6717; 06-1544;
06-4620; 06-4942; 06-5185; 06-5282; 07-1369; 07-1959; 07-3322;
07-3896 (reinstatement motion pending); 07-3975; 07-4147
(reinstatement motion pending); 07 4526; 07-4946; 07-4947; 07
4949; 07-5374; 07-5445; 07-5571; 08-0200; 08-0220. Prior to the
dismissals, Adinolfi did not request extensions of time to file
his briefs, leave to withdraw as counsel, or leave to voluntarily
dismiss the cases. While some of the defaulted appeals have been
reinstated upon motion, Adinolfi has not moved for the
7
reinstatement of others.
Adinol also frequently requests extensions of time to file
his briefs only after the filing deadlines for those briefs
and/or the deadlines for responding to the Court's orders to show
cause why the appeals should not be dismissed based on his filing
defaults. See cases docketed under 07-3896 (dismissed following
failure to respond to order to show cause; motion to reinstate
pending); 07-4947 (same); 07-3977 (extension motion filed after
deadline for brief and deadline in order to show cause; motion
granted); 07-4146 (same); 07 4336 (same); 07-4948 (same); 07-4336
(same); 07-4707 (extension motion filed after deadline for
brief); 08 0822 (same); see also 07-3975 (dismissed: no request
for reinstatement although defective brief and appendix filed
after dismissal); 07-4147 (dismissed following failure to respond
to order to show cause); 07-4526 (same); 07-4946 (same); 07-5374
(same); 07-5445 (same); 07-5571 (same); 08-0200 (same); 08-0220
(same): 07-3974 (defaulted on briefing schedule, but filed brief
by deadline in order to show cause).
In two cases that were withdrawn without prejudice to
refiling by a specified deadline, Adinolfi filed late
reinstatement motions. See cases docketed under 04-5742; 05
5926. Additionally, there are at least two pending cases where
Adinolfi has not responded to this Court's order to show cause
why the cases should not be dismissed based on the failure to
file a brief, see cases docketed under 07-5150 (response, due by
5/19/08, not received); 08-0225 (response, due by 4/10/08, not
received), and at least two other pending cases where he has not
yet filed a brief although the deadline has passed, see cases
docketed under 08-0741; 08-1002.
We also are informed that, on at least three recent
occasions, Adinolfi did not appear for pre-argument conferences
with this Court's Staff Counselor, prior to the dates of those
conferences, request rescheduling or notify the Court of a
scheduling conflict or other reason he could not attend. He also
did not return Staff Counsel's telephone calls regarding
rescheduling. See cases docketed under 07-3733; 07-3973; 07
3976. In a number of ot~er cases, Adinol 's failure to comply
with this Court's rules has required Court personnel to contact
~im to obtain required documents or the correction of defective
filings. See, e.g., cases docketed under 03-40529 (two requests
for T-1080 form); 03 4944 (requested appearance form and PDF
version of brief); 04-6285 (brief submitted six months after
dismissal; informed of need for reinstatement motion); 06-1907
(three requests for corrected certificate of service; one request
for PDF version of brief); 06-2799 (contacted regarding multiple
defects); 06-4619 (certificate of service); 07-0637 (informed of
need for motion to Ie late brief and anti-virus certificate);
8
07-1718 (requests for PDF version of brief); 07-3974 (same); 07
4613 (same). Even after persistent follow-up, including
telephone calls made by the Chief Deputy Clerk on April 29, 2008,
and the Clerk of the Court on May 2, 2008, Adinolfi has failed to
contact the Court as requested and remedy the defects brought to
his attention.
Following his failure to comply with a br fing schedule in
Yi Mei Ni v. Mukasey, No. 07-4336-ag, this Court warned Adinolfi
that his "dilatory behavior in [that] matter must cease." Id.,
order filed Apr. 4, 2008. Despite that warning, Adinolfi's brief
in that case was received one day after it was due,
id., brief
received May I, 2008, and Adinolfi subsequently has failed to
comply with briefing schedules in other cases, see, e.g., cases
docketed under 08-0200; 08-0225; 08-0741.
Upon due consideration of the matters described above, it is
hereby ORDERED that Robert Adinolfi is referred to this Court's
Committee on Admissions and Grievances for investigation and
preparation of a report, pursuant to Federal Rule of Appellate
Procedure 46, this Court's Local Rule 46(h), and the Rules of the
Committee on Admissions and Grievances.
It is further ORDERED that Robert Adinolfi (a) show cause
within 14 days of the filing of this order, why he should not be
suspended from the bar of this Court, or otherwise sanctioned,
pending the proceedings of the Committee on Admissions and
Grievances, based on the above-described conduct; (b) submit to
this panel, within 14 days of the ling of this order, a
complete list of all pending cases in this Court in which he is
either counsel of record or performing legal services for any
litigant; (c) notify this panel, in writing, of any other cases
in this Court, whether newly filed or reinstated, in which he is
performing any legal services for any litigant, within 14 days of
either the pleading initiating the new case or the motion seeking
reinstatement of a case; and (d) with each submission required by
clauses (b) and (c), attach an affidavit of the litigant for whom
he is performing legal services, attesting to the fact that the
litigant has read a copy of this order and wishes to proceed with
Adinolfi providing legal services.
[paragraph regarding service of order omitted]
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk
By: /s/
--~~--~ -----------------
Michael Zachary
Supervisory Sta Attorney
Counsel to the Grievance Panel
9
APPENDIX 2
Text of February 2009 order
In June 2008, this panel referred Robert Adinolfi to the
Committee on Admissions and Grievances, primarily based on his
history of briefing defaults which caused the dismissal of a
number of appeals. In the same order, Adinolfi was instructed
to:
(a) show cause within 14 days of the filing of th[e]
order, why he should not be suspended from the bar of
this Court, or otherwise sanctioned, pending the
proceedings of the Committee on Admissions and
Grievances, based on the [conduct described in the
order]; (b) submit to this panel, within 14 days of the
filing of th[e] order, a complete list of all pending
cases in this Court in which he is either counsel of
record or performing legal services for any litigant;
(c) notify this panel, in writing, of any other cases
in this Court, whether newly filed or reinstated, in
which he is performing any legal services for any
litigant, within 14 days of either the pleading
initiating the new case or the motion seeking
reinstatement of a case; and (d) with each submission
required by clauses (b) and (c), attach an affidavit of
the litigant for whom he is performing legal services,
attesting to the fact that the litigant has read a copy
of this order and wishes to proceed with Adinolfi
providing legal services.
In response to the June 2008 order, Adinolfi submitted a
list of 34 cases that he asserted were then pending before this
Court, see letter and list dated July 17, 2008 (attached), and a
pleading in which he, inter alia, conceded that \\corrective
measures might be appropriate," but requested that those
corrective measures not include the suspension of his practice
before this Court, see response dated Aug. 11, 2008 (attached).l
A review of the list of 34 cases reveals a number of
duplicate entries. Compare entries 13 and 28, 23 and 26, 24 and
33, and 25 and 29. The st actually only contains 30 separate
cases. There also are several errors in the listed case names
and docket numbers. See entries 6, 10-12, 29-30 (petitioners'
IAlthough the cover letter for the August 2008 response
states that a supplement declaration would be filed, no such
document has been received.
10
names incorrect), entries 17, 30 (wrong case numbers; correct
numbers are 07-3322-ag and 03-40 9-ag). Moreover, one of the
listed cases, entry 12, was not pending as of July 17 that
case had been dismissed in March 2008 for failure to comply with
the scheduling order; Adinol filed a motion to reinstate on
July 22, 2008; and the case was reinstated by order led
September 9, 2008. See Xing Yong Dong v. sler, 07-4946-ag.
The list also appears to have been incomplete. A review of
this Court's docketing system reveals an additional seven cases
that were pending as of July 17, 2008 in which Adinolfi was
listed as an attorney of record. See Li Ying Chen, 08-0741-ag;
Jin Shen Ni, 07 5016-ag (motions to reinstate appeal, filed
5/13/08 and 7/22/08, denied since appeal had not been dismissed);
Jian Wen Li, 07-4613-ag (held in abeyance pending BIA decision,
by order filed 6/18/08); Xin ,07-4146-ag; Chang Yu, 07-3896-ag
(reinstatement granted by order filed 7/2/08); Xi Feng Tung, 04
5742-ag (reinstatement granted by order filed 6/13/08); Meng Mei
Lin, 05 6714-ag (reinstatement granted by order filed 4/8/08;
order denying petition filed 9/10/08).
Additionally, it does not appear that Adinolfi has fully
complied with clauses (c) and (d) of the June 2008 order, quoted
above. For example, although Adinolfi filed four new cases in
August 2008, see cases docketed under 08-3901-ag, 08-3902-ag,
08-4148-ag, 08-4272-ag, and successfully obtained reinstatement
of five others in October 2008, see cases docketed under 05-5926
ag, 06-1544-ag, 07-3975-ag, 07-5150, 07-5571-ag, the notices and
affidavits required by clauses (c) and (d) were not submitted to
this panel until December 2008. See Adinolfi Letter dated Dec.
2, 2008 (attached). The affidavits for the four new cases are
dated at or about the time the cases were filed, suggesting that
Adinolfi intended to comply. Regarding the reinstated cases,
although he stated that he had difficulty locating one ient,
thus explaining his delay providing that client's affidavit
(which was submitted shortly after the date on the affidavit), he
does not expla why three other affidavits are dated several
wee after the dates those appeals were nstated. 2 See
Affidavits 07-5571-ag, 07-5150-ag, 05-5926-ag. Only one
affidavit was submitted prior to December 2008. See Adinolfi
2 Additionally, Adinolfi's December 2008 letter erroneously
identifies some of his cases: the docket number for Chen Shou
Lin, 08-4272-ag, is incorrectly given as "08-4257," the
itioner in Mei Hui Zhu, 05-5926-ag, is incorrectly identified
with the surname "Zhi" instead of "Zhu," and he has apparently
merged the case names and numbers for Wan Qin Lin, 07-5150-ag,
and Qing Long n, 07-3975-ag, resulting a case identi as
"Wan Qin Lin v. Mukasey, 07-3975."
11
Letter dated Aug. 1, 2008, with attached affidavit (attached).
On the other hand, we also note that Adinolfi has not
faulted in any case in this Court since the submission his
July 2008 response to our June 2008 order and has obtained
tatement of a number of defaulted cases. 3
In light of Adinolfi's concession concerning his inadequate
performance in this Court, his efforts to obtain reinstatement of
the cases dismissed as a result of his briefing defaults, the
of new defaults, his representation of petitioners on a pro
bono basis, and the sruption his ion would likely cause
to his client's legal interests, we de ine to suspend him from
icing in this Court pending the termination of the
proceedings before the Court's Committee on Admissions and
Grievances. However, in light of his failure to provide this
Court with an accurate list of his pending cases, and to ly
comply with clauses (c) and (d) of our June 2008 order, which
into question s ability to comply with all rules and
orders applicable to his cases, we direct Adinolfi to in
filing any new cases in this Court until the total number of
his cases in this Court drops below 30, at which po may
le new cases as long as the total number of pending cases does
not exceed 30. Although Adinolfi may seek reinstatement of
faulted cases even if his total number of pending cases
exceeds 30, once a case is reinstated will count as a pending
case for the purposes of the limit on ling new cases described
the preceding sentence.
[paragraph regarding service of order omitt
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk
By:
--~~---~
Zachary
Supervisory Staff Attorney
Counsel to the Grievance Panel
3After the issuance of the June 2008 order, but be the
submission of July 2008 response, default dismissal orders
were filed in more cases. See Li Xin Lin, 08-0225-ag
(dismissed 6/23/08; motion to reinstate 9/6/08; motion denied
10/1/08); Zi2u Jian Chang, 07-5444 (dismissed 7/15/08); Wan Qin
, 07-5150-ag (dismissed 6/23/08; motion to reinstate 9/8/08;
motion granted 10/10/08). Adinol 's intentions regarding Zhu
Jian Chang are unknown.
APPENDIX 3
August 2009 Report of the Committee
on Admissions and Grievances
REPORT & RECOMMENDATION
Re-: In re Robert Adinolfi, # 08-90062-am
I. Introduction
By Order dated June 3, 2008, the United States Court of Appeals for the Second Circuit
referred Robert Adinolfi to this Committee, for investigation of his conduct before the Court and
preparation of a report on whether he should be subject to disciplinary or other corrective
measures. The Court's June 2008 Order raises concerns regarding Adinolfi's potential neglect
of client matters, in particular regarding his numerous defaults on scheduling orders.
The Committee recommends that Adinolfi\ be publicly reprimanded for his conduct, that
he be required to complete six hours of CLE in law office management, that he be required to
submit biannual status reports on the functioning of his practice for the next two years, and that
the conditions of the Court's June 2008 Order and the Court's subsequent Order, dated February
24,2009, be extended for an additional period of at least two years, as set out in detail below.
The following constitutes the Committee's report and recommendation to impose
discipline on Adinolfi.
II. The Court's Orders And This Disciplinary Proceeding
On July 11,2008, the Committee issued an order to show cause regarding Adinolfi's
conduct, and giving him notice of a hearing. Adinolfi submitted a written response on August
19, 2008. The hearing was held on September 8, 2008, conducted by a sub-committee consisting
of Mary Jo White, Loretta E. Lynch, and the Hon. Howard A. Levine. Adinolfi appeared pro se.
By emailsdatedOctoberl0.2008andOctober21.2008.Adinolfi submitted additional
information to the Committee, regarding his caseload and his remedial efforts with respect to
cases dismissed for default.
The Court's June 2008 order, in addition to referring Adinolfi to the Committee, also
ordered Adinolfi to show cause why he should not be immediately suspended pending the
Committee's proceedings. The Court's order further required Adinolfi to submit information to
the Court's Grievance Panel on his pending caseload before the Circuit, within 14 days of the
June 2008 Order, and to notify the Panel in writing of any newly-filed cases within 14 days of
their filing. Finally, the Court's June 2008 Order required Adinolfi to attach, with each of the
above submissions, an affidavit from his client attesting that the client had read a copy of the
June 2008 Order and nevertheless wished to proceed with Adinolfi providing legal services.
A subsequent Order of the Court, issued February 24, 2009, recited further facts regarding
Adinolfi's conduct, based on the Court's own review of its dockets, and on Adinolfi's
representations to the Court in response to the June 2008 Order, see letters dated July 17,2008
and August 11, 2008, attached to the Court's February 2009 Order. The Court determined that
suspension would be inappropriate in light of Adinolfi's concession that his performance before
the Court had been inadequate, his efforts to obtain reinstatement of cases dismissed for default,
the lack of any new defaults, his pro bono representation of petitioners, and the disruption his
suspension would cause to his clients' interests. However, in light of Adinolfi's past
performance and his failures to comply in a timely and thorough manner with the requirements of
the Court's June 2008 Order, the Court imposed an additional condition on Adinolfi's practice,
directing Adinolfi to refrain from filing any new cases in the Second Circuit until the total
number of his cases dropped below 30, and after that point to maintain his caseload at 30 or
fewer cases.
III. Legal Standard
Under the Rules of this Committee,
An attorney may be subject to discipline or other corrective
measures for any act or omission that violates the rules of
professional conduct or responsibility of the state or other
jurisdiction where the attorney maintains his or her principal office,
or the rules of professional conduct of any other state or
jurisdiction governing the attorney's conduct. An attorney may
also be subject to discipline or other corrective measures for any
failure to comply with a Federal Rule of Appellate Procedure, a
Local Rule of the Court, an order or other instruction of the Court,
or a rule of professional conduct or responsibility of the Court, or
any other conduct unbecoming a member of the bar.
Rules of the Committee on Admissions and Grievances, Rule 4.
"A court of appeals may discipline an attorney who practices before it for conduct
unbecoming a member ofthe bar or for failure to comply with any court rule." Fed. R. App. P.
46(c). "Conduct unbecoming a member of the bar" may include any conduct "contrary to
professional standards that show[s] an unfitness to discharge continuing obligations to clients or
2
courts, or conduct inimical to the administration ofjustice." In re Snyder, 472 U.S. 634, 645
(1985), For "[m Jore specific guidance," we may look to "case law, applicable court rules, and
'the lore of the profession,' as embodied in codes of professional conduct." ld. at 646 n.7.
Courts have consistently treated neglect of client matters and ineffective or incompetent
representation as sanctionable conduct. See, e.g, Gadda v. Ashcroft, 377 F.3d 934, 940 (9th Cir.
2004), Amnesty Am. v. Town ofW. Hartford,
361 F.3d 113, 133 (2d Cir. 2004), Matter of
Rabinowitz, 596 N.Y.S.2d 398,402 (N.Y. App. Div. 1993), United States v. Song,
902 F.2d 609
(7th Cir. 1990), Matter ofKraft,
543 N.Y.S.2d 449 (N.Y. App. Div. 1989), In re Bithoney,
486
F.2d 319 (1 st Cir. 1973). Such conduct is also sanctionable under the applicable professional
rules and standards. The American Bar Association's Standards for Imposing Lawyer Sanctions
call for a range of sanctions from reprimand to disbarment for various forms of "lack of
diligence" and "lack of competence." ABA Standards §§ 4.4, 4.5. New York's Code of
Professional Responsibility requires that a lawyer "act with reasonable diligence and promptness
in representing a client," and that he or she "not neglect a legal matter entrusted to the lawyer."
New York's Lawyer's Code of Professional Responsibility D.R. 6-101(A)(3); 22 N.Y.C.R.R. §
1200.30(A)(3) (2008); see also N.Y. Rules of Prof I Conduct R. 1.3(b) (effective Apr. 1,2009).
"Any finding that an attorney has engaged in misconduct or is otherwise subject to
corrective measures must be supported by clear and convincing evidence." Rules of the
Committee on Admissions and Grievances, Rule 7(h). Once misconduct has been established, in
determining the sanction to be imposed, we should generally consider: (a) the duty violated; (b)
the lawyer's mental state; (c) the actual or potential injury caused by the lawyer's misconduct;
and (d) the existence of aggravating or mitigating factors. See ABA Standards § 3.0. This
Committee may recommend to the Court's Grievance Panel a range of sanctions, including
disbarment, suspension, public or private reprimand, monetary sanction, removal from pro bono
or Criminal Justice Act panels, referral to other disciplinary bodies, supervision by a special
master, counseling or treatment, or "such other disciplinary or corrective measures as the
circumstances may warrant." Rules of the Committee on Admissions and Grievances, Rule 6.
IV. The Alleged Misconduct
Adinolfi was admitted to the bar of the State of New York in 2002. He is also a member
of the bars of the First, Second, Third, Fourth, Sixth, Seventh and Eleventh Circuits. He has
never been previously disciplined. Adinolfi's practice, which he shares with his wife, consists
primarily of immigration matters, and in recent years has involved a large number of petitions for
review in the Second Circuit.
The Court's June 2008 Order raised serious concerns about the functioning of Adinolfi's
appellate practice, and his potential neglect of many of his clients' cases. The Order recited that
at least 26 of Adinolfi's 103 cases before the Court had been dismissed as a result of his failure
to timely file a brief. These defaults appear to have taken place between the end of 2006 and
early 2008. Additionally, the Court's order stated that Adinolfi frequently requested extensions
of time to file his briefs only after the filing deadlines for those briefs had passed; that on at least
two occasions, he failed to timely file for reinstatement of cases that had been withdrawn without
3
prejudice to refiling by a specified deadline; and that he had frequently failed to respond to the
Court's orders to show cause why cases should not be dismissed for failure to file briefs, to
appear for pre-argument conferences, and to respond to telephone calls regarding scheduling
from the Court's personnel.
Adinolfi does not contest the facts set out in the Court's referral order, and they are
consistent with the Committee's independent review of the dockets. Adinolfi concedes that his
conduct was wrong, and failed to meet professional standards. The Committee independently
finds that there is clear and convincing evidence that his conduct violated disciplinary rules, court
orders and professional standards, including his duties of diligence and competence, see ABA
Standards for Imposing Lawyer Sanctions §§ 4.4, 4.5, and his duty to act diligently and not to
neglect legal matters entrusted to him, see New York's Lawyer's Code of Professional
Responsibility D.R. 6-101(A)(3); 22 N.Y.C.R.R. § 1200.30(A)(3) (2008); see also N.Y. Rules of
Prof I Conduct R. 1.3(b) (effective Apr. I, 2009), and that his conduct was "unbecoming a
member of the bar," Fed. R. App. P. 46(c), and "inimical to the administration ofjustice," In re
Snyder, 472 U.S. at 645.
Adinolfi concedes also that his conduct warrants some form of sanction. At his hearing
he testified that "1 don't think I should walk away clean here ... 1 do feel terrible," and suggested
that the Committee might recommend "[p]ublic censure, restriction of my ability to practice,
strict requirements as to time limitations, alternative a short suspension." Hearing Transcript at
50. However, Adinolfi asked that the interests of his current clients be taken into account in
deciding whether he should be suspended.
There are both mitigating and aggravating factors here. Adinolfi's conduct is aggravated
by the vulnerability of his immigrant clients, and by the fact that his conduct constituted a pattern
of neglect, involving multiple instances of misconduct, over a period of more than a year. ABA
Standards § 9.22 (c), (d), (h).
Adinolfi's conduct is significantly mitigated by his evident remorse, and by his apparent
lack of a selfish motive. ABA Standards § 9.32 (b), (1). His conduct is also mitigated by his
apparent good-faith Willingness to cooperate with the Committee and with the Court, although
the information provided has sometimes been disorganized, incomplete, and untimely. ABA
Standards § 9.32 (e).
His conduct is also mitigated to a substantial degree by the efforts he has made to
improve his practice. Adinolfi has not defaulted in any case since his July 2008 response to the
Court's June 2008 OrdeL I Moreover, the record, and the Court's findings in its February 2009
Order, show that Adinolfi has made genuine efforts to correct the consequences of his past
conduct, and has successfully obtained reinstatement of a number of defaulted cases.
1 Three cases were dismissed for default between the June Order and Adinolfi's July response; however, in each case
the dismissal related to a missed briefing date prior to the date of the June Order. See Li Xin Lin, 08-0225-ag, Zhu
Jian Chang, 07-5444-ag, and Wan Qin Lin, 07-5150-ag.
4
There remain, however, some indications of ongoing problems with Adinolfi's practice.
It appears that Adinolfi has made efforts to comply with the requirements of the June 2008
Order, and it is the Committee's understanding that there is no evidence that Adinolfi has failed
ultimately to provide any client with the required notice of the proceedings against him.
However, he has repeatedly failed to file his clients' affidavits with the Court in a timely manner.
On at least three occasions, involving reinstated appeals, it appears that Adinolfi did not obtain
the client's affidavit until several weeks after the appeals were reinstated. Finally, Adinolfi has
repeatedly failed to notify the Court's Grievance Panel of the filing of new cases in a timely
manner. The Court found that this behavior, coupled with Adinolfi's "failure to provide this
Court with an accurate list of his pending cases," raised concerns regarding Adinolfi's "ability to
comply with all rules and orders applicable to his cases." February 2009 Order at 3; Based on its
own record and proceedings, while the Committee does not doubt that Adinolfi's efforts to
comply with the Court's orders and to improve his practice are in good faith, the Committee
shares the Court's concerns.
V. Appropriate Sanctions
Adinolfi's conduct clearly warrants discipline. The evidence shows a pattern of neglect
of client matters on Adinolfi's part, or a significant inability to competently handle the volume of
his practice, resulting in persistent disregard of scheduling orders.
Under the circumstances, the Committee does not believe that suspension would serve the
interests ofjustice or of Adinolfi's clients. Instead, the Committee believes that a public
reprimand would be appropriate, to recognize the significance of Adinolfi's past conduct and to
protect potential future clients.
As discussed above, there are clear signs of significant improvement in Adinolfi's
practice in the year following the Court's referral order; there are also reasons to be concerned
that Adinolfi may still have trouble managing his practice. The Committee believes that the
conditions of the Court's June 2008 and February 2009 Orders should be extended for a further
period of at least two years. In addition to the reporting requirements of the June 2008 and
February 2009 Orders, the Committee believes that Adinolfi should be required to provide the
Committee with regular status reports for a period of two years. Finally, to assist in his ongoing
efforts to improve the functioning of his practice, the Committee believes that Adinolfi should be
required to attend a suitable CLE program on law office management.
VI. Recommendation
Adinolfi should be publicly reprimanded for his pattern of failures to comply with
scheduling orders, and his neglect, inadvertent or otherwise, of client matters. A draft form of
reprimand is attached.
The conditions of the June 2008 and February 2009 Orders should be extended (as
modified below) for a further period of two years from the date of any Order of the Court or letter
5
of reprimand adopting the Committee's recommendation. These conditions may be extended for
any additional period that the Court believes appropriate, without a further hearing or other
proceedings.
Specifically, the conditions to be extended are:
a) Adinolfi must notify the Court's Grievance Panel in writing of any case newly
filed or reinstated in the Second Circuit, in which he is performing any legal services for any
litigant, within 14 days of the pleading initiating a new case or the motion seeking reinstatement
of a case; and
b) With each such submission, Adinolfi must attach an affidavit of the litigant for
whom he is performing legal services, attesting to the fact that the litigant has read a copy of the
Court's June 2008 Order (or, ifthe Court issues a letter of public reprimand, a copy of that
letter), and that the litigant wishes to proceed with Adinolfi providing legal services; and
c) Adinolfi must refrain from filing new cases in the Second Circuit until the total
number of his cases drops below 30, at which point he may file new cases only so long as the
total number of pending cases does not exceed 30. Adinolfi may seek reinstatement of defaulted
cases even if his total number of pending cases exceeds 30, but once a case is reinstated it will
count as a pending case for the purposes of the limit on filing new cases.
In addition, Adinolfi should be required to complete no fewer than six hours of CLE in
law office management, from a CLE provider accredited by the bar of New York, in addition to
the required hours of CLE.
Finally, Adinolfi should be required, in connection with his practice in any federal court
in the Second Circuit or in any federal administrative agency whose action is subject to the
Second Circuit's review, to submit to the Committee sworn statements identifying under oath
each and every instance during each of the four reporting periods described below in which (l) a
submission is not filed or is filed out of time; or (2) an application is made for permission to
make a late filing only after the due date has passed. It is expected that these reports will show
no such instances absent exigent circumstances, which circumstances should be attested to under
oath in the respective report.
In the event that a report is not timely filed or reveals deficiencies not justified by exigent
circumstances, the Committee may recommend the imposition of additional discipline, including
but not limited to further suspension from the Second Circuit, without hearing further testimony.
With respect to Adinolfi's reporting obligations to the Committee, the following
reporting periods and deadlines shall be observed. The report for each reporting period shall be
mailed to the Committee Secretary within ten (l0) days of the end of that reporting period. The
first reporting period shall commence 10 days after the Committee's recommendation is mailed to
Adinolfi and shall end six months after the Second Circuit issues its order of disposition in this
matter. Each of the three subsequent reporting periods shall be for a reporting period
6
commencing at the end of the prior reporting and ending six months later. A total of four reports
shall be prepared and mailed to the Committee Secretary.
Respectfully Submitted,
r4 ~ Jo W t.;;;; //-':>e. .
Member of the Committee
August 5, 2009
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