Filed: Feb. 07, 2012
Latest Update: Feb. 22, 2020
Summary: 09-90l32-am In re Vialet In r e Via let 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 MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUM
Summary: 09-90l32-am In re Vialet In r e Via let 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 MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMM..
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09-90l32-am
In re Vialet
In r e Via let
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 MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER") .
A PARTY CITING A SUMMARY ORDER MUST 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 7th day of February, two thousand twelve.
PRESENT:
Jose A. Cabranes,
Robert D. Sack,
Richard C. Wesley,
Circuit Judges.
09-90132-am
In re The od o re Anthony Vialet,
Attorney. ORDER OF
GRIEVANCE PANEL
For Theodore Anthony Vialet: Theodore Anthony Vialet, Esq.,
New Yo rk, New Yo rk.
1 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
2 DECREED that the report of this Court's Committee on Admissions and
3 Grievances ("the Committee") is adopted, and Theodore Anthon y Vialet
4 is PUBLICLY REPRIMANDED for the misconduct des c ribed in the
5 Committee's report.
1 1. Summary of Proceedings
2 By order filed in February 2010, this Court referred Vialet to
3 the Committee for investigation of the matters described in that
4 order and preparation of a report on whether he should be subject to
5 disciplinary or other corrective measures. During the Committee's
6 proceedings, Vialet had the opportunity to address the matters
7 discussed in the Court's referral order and to testify under oath at
8 a hearing held in October 2010. Via let proceeded pro se before the
9 Committee. Presiding over the hearing were Committee members
10 Terrence M. Connors and Kimberly A. Knox, and Committee chair Mary
11 Jo White. In May 2011, the Committee filed with the Court the
12 record of the Committee's proceedings and its report and
13 recommendation. Thereafter, the Court provided Via let with a copy
14 of the Committee's report, and Via let responded.
15 In its report, the Committee concluded that there was clear and
16 convincing evidence that Via let had engaged in misconduct warranting
17 the imposition of discipline. Report at 11. Specifically, the
18 Commi ttee found that Via let had: (1) failed to comply with the
19 Court's scheduling orders in 31 cases, causing the dismissal of 11
20 of those cases, and continued to do so even after receiving notice
21 of the Court's referral order, id. at 5-7, 10; (2) improperly filed
22 a case in this Court, instead of the proper venue,
id. at 5, 6; and
23 (3) filed deficient briefs in several cases, in violation of Federal
24 Rule of Appellate Procedure 28, and continued to do so even after
2
1 receiving notice of the Court's referral order, id. at 7-8. After
2 considering various aggravating and mitigating factors,
id. at 10
3 11, the Committee recommended that Via let be publicly reprimanded
4 and required to complete certain continuing legal education ("CLEU)
5 classes, id. at 11-12.
6 Wi th regard to mi tiga tion, the Committee noted, in ter alia,
7 Vialet's assertion that he had been able to reopen, before the Board
8 of Immigration Appeals, several cases that had been dismissed by
9 this Court.
Id. at 6. However, the Committee cited only two
10 examples of cases that had been reopened, Diallo v. DHS, 08-0416-ag,
11 and Diallo v. Holder, 08-4271-ag.
Id.
12 In his June 2011 response to the Committee's report, Vialet
13 acknowledged his misconduct and agreed with the Committee's findings
14 and recommendations, with one exception he argued that the
15 Committee's list of cases he had been able to reopen after their
16 dismissal by this Court was incomplete. Aside from "the two
17 mentioned by the Committee, U an apparent reference to the two Diallo
18 cases cited on page 6 of the Committee's report, he stated that he
19 al so had been able to reopen Sy v. Holder, No. 09-077 9-ag, and
20 unspecified "additional cases u for which he could not locate the
u
21 docket numbers "at the present time.
22 II. ~tigation
23 We construe Vialet's argument that the Committee's list of
24 reopened cases is incomplete as a request that this Court consider
25 mitigating information in addition to that specified by the
3
1 Committee. However, we find that the Committee did, in fact, credit
2 Vialet's reopening of cases beyond the two cases cited in the report
3 - despite Vialet's own failure to identify such cases aside from Sy,
4 Diallo, and Diallo - and accorded proper weight to that mitigating
5 information.
6 Vialet has been on notice of the list of defaulted cases since
7 March 2010, when he received a copy of the Court's referral order.
S See Vialet letter dated March 10, 2010 (Tab D of Record). However,
9 he never identified more than two or three reopened cases by name.
10 In his May 2010 written response to the Committee's order to show
11 cause why he should not be disciplined, he noted that there had been
12 "some instances n where he had moved to reopen before the agency
13 after dismissal of the case by this Court, but provided only one
14 example, Sy. See Vialet letter dated May 13, 2010 (Tab G of Record)
15 at S. In a September 2010 letter to the Committee, he referred to
16 another case that had been reopened by the agency, Diallo v. Holder,
17 No. OS-4271-ag, see Via let letter dated Sept. 24, 2010 (Tab I of
IS Record) at 1, which was one of the reopened cases subsequently noted
19 in the Committee's report, see Report at 6. During the October 2010
20 hearing, he testified that two unspecified cases definitely had been
21 reopened, another unspecified case may have been reopened, and other
22 unspecified cases had motions to reopen pending. Transcript (Tab J
23 of Record) at 45. One case that was apparently reopened by the
24 agency was later identified as "Jello, n which may have been a
4
L.:....
~
1 mistranscription of "Diallo." Id. at 46 ("For example, I think I
2 filed on a case was reopened [sic], Jello ... "). At a later point,
3 Vialet stated his belief that "three other cases" had been reopened
4 by the Court itself, but did not identify those cases. Id. at 50.
5 Even as late as June 2011, when he filed his response to the
6 Committee's report - fifteen months after receiving notice of the
7 Court's referral order and of the need to provide mitigating
8 information - Vialet still failed to provide names of additional
9 reopened cases.
10 We find that, despite the conclusory nature of Vialet's
11 assertions regarding "additional" reopened cases, the Commi t tee
12 accepted those assertions. In its report, the Committee noted that
13 Vialet "did not offer specific responses to each of the cases listed
14 in the [Court's] Referral Order but rather chose to address the
15 issue more generally," and then stated the following:
16 Mr. Vialet had some additional observations about certain
17 cases and categories of cases. For example, he noted that
18 in some of the cases that were dismissed by the Court, he
19 was able to reopen the matter before the Board of
20 Immigration Appeals and therefore sought to protect his
21 clients' interests by pursuing alternative relief. See,
22 e.g., Diallo v. DHS, 08-0416-ag; Diallo v. Holder, 08
23 4271[-ag].
24
25 Report at 6. The reference to "some of the cases that were
26 dismissed by the Court," and the ci ta tion signal "See, e. g. , "
27 clearly convey the Committee's understanding that Vialet's
28 mitigation argument concerned more than two cases. Moreover, in its
29 later findings concerning mitigating factors, the Committee stated
5
1 that Vialet had "instituted various corrective measures,u id. at 11,
2 which we read as including both his attempted and successful
3 reopening of cases.
4 Under these circumstances, there was no need for the Committee
5 either to specifically cite to Sy or to identify other reopened
6 cases by name. Vialet himself failed to identify by name any cases
7 other than Sy, Diallo, and Diallo, despite having ample opportunity
8 to do so, and, in any event, the inclusion of additional case names
9 in the Committee's description of mitigating factors would not alter
10 the result.
11 III. Disposition
12 Upon due consideration of the Committee's report, the
13 underlying record, and Vialet's submissions, it is hereby ORDERED
14 that Vialet is PUBLICLY REPRIMANDED for the misconduct described in
15 the Committee's report. It is further ORDERED that Vialet:
16 (a) complete, within one year of the filing date of this
17 order, at least six hours of live in-class CLE instruction
18 in appellate-level advocacy and/or appellate brief
19 writing, focusing on immigration law to the extent
20 possible, and at least six hours of live in-class CLE
21 instruction in law office/practice management. The
22 required CLE classes must be taken in addition to the
23 regular CLE requirements applicable to all members of the
24 New York bar, and taught by CLE providers accredited by
25 that bar. Vialet must submit information about proposed
26 CLE courses directly to the Commi ttee' s secretary, who
27 will inform him whether the Committee agrees that the
28 proposed courses satisfy his obligation.
29
30 (b) certify his completion of the above-described CLE
31 classes by sworn statement filed with both this panel and
32 the Committee's secretary within seven days after the end
33 of the one-year period. The Committee may modify the CLE
6
1 requirements and deadlines, either on motion or sua
2 sponte.
3
4 The text of this panel's February 2010 order and the
5 Committee's report are appended to, and deemed part of, the
6 present order for purposes of disclosure of this order by Via let
7 and the Clerk of Court. The Clerk of Court is directed to release
8 this order to the public by posting it on this Court's web site
9 and providing copies to members of the public in the same manner
10 as all other unpublished decisions of this Court, and to serve a
11 copy on Vialet, this Court's Committee on Admissions and
12 Grievances, the attorney disciplinary committee for the New York
13 State Appellate Division, First Department, and all other courts
14 and jurisdictions to which this Court distributes disciplinary
1
15 decisions in the ordinary course.
16
17 FOR THE COORT:
18 Catherine O'Hagan Wolfe, Clerk
.
19
~.,Q ~~
20
21
22
23
24 By: Michael Zachary
25 Counsel to the Grievance Panel
I Counsel to this panel is authorized to provide, upon
request, documents from the record of this proceeding to other
attorney disciplinary authorities. While we request that all
such documents remain confidential to the extent circumstances
allow, we leave to the discretion of those disciplinary
authorities the decision of whether specific documents, or
portions of documents, should be made available to any person or
the pUblic.
7
1 APPENDIX 1
2 Text of February 2010 Order
3
4 For the reasons that follow, Theodore Vialet is referred to
5 this Court's Committee on Admissions and Grievances for
6 investigation of the matters described below and preparation of a
7 report on whether he should be subject to disciplinary or other
S corrective measures. See Second Circuit Local Rule 46.2. We
9 express no opinion here as to an appropriate disposition. The
10 Committee may, of course, in the first instance, determine the
11 appropriate scope of its investigation.
12
13 Via let was referred to this panel as a result of his failure
14 to abide by this Court's scheduling orders in numerous cases. A
15 review of the 34 cases Vialet has filed in this Court since
16 January 1, 200S, reveals that, in 31 cases, he has failed to
17 comply with scheduling orders, leading in many cases to dismissal,
IS and in other cases to his filing of the opening brief late or only
19 after the issuance of an order to show cause ("OSC") why the
20 petition for review should not be dismissed. See Barry v. DHS,
21 OS-0137-ag (OSC issued, petition dismissed for failure to file
22 brief, petition later reinstated); Baro v. DHS, OS-0171-ag (brief
23 filed only after OSC issued); Bah v. DHS, OS-0216-ag (OSC issued,
24 extension of time granted, second OSC issued, petition dismissed,
25 and reinstatement not sought); Dumaneh v. DHS, OS-0404-ag (form
26 CiA filed late, OSC issued, petition dismissed, reinstatement not
27 sought); Diallo v. DHS, OS-0416-ag (OSC issued, petition
2S subsequently withdrawn); Diallo v. DHS, OS-0556-ag (form CiA filed
29 late, brief filed only after OSC issued); Sy v. DHS, OS-0664-ag
30 (brief filed only after OSC issued); Diallo v. DHS, OS-1156-ag
31 (OSC issued, extension granted, motion to file late brief denied
32 since not accompanied by brief, petition dismissed, reinstatement
33 not sought); Ndiaye v. Mukasey, OS-202S-ag (brief accepted for
34 late filing); Diallo v. Mukasey, OS-2279-ag (brief accepted for
35 late filing); Bah v. Mukasey, OS-230S-ag (OSC issued, petition
36 dismissed, reinstatement not sought); Diallo v. Mukasey, OS-352S
37 ag (form CiA filed late, brief accepted for late filing); Diallo
3S v. Mukasey, OS-3556-ag (form CiA filed late, OSC issued, petition
39 dismissed, reinstatement not sought); Diallo v. Mukasey, OS-3747
40 ag (form CiA filed late); Sudjita v. Mukasey, OS-4027-ag (brief
41 accepted for late filing); Turay v. Mukasey, OS-4127-ag (OSC
42 issued, petition dismissed, reinstatement not sought); Ba v.
43 Holder, OS-4242-ag (OSC issued, extension granted, no brief filed,
44 petition dismissed, reinstatement not sought); Barry v. Mukasey,
45 OS-4257-ag (motion for extension of time filed ten days after time
46 to file brief expired, Court granted further extension but noted
47 Vialet's "indifference to the scheduling orders of this Court");
S
1 Diallo v. Mukasey, 08-4271-ag (form CIA filed late, OSC issued,
2 petition dismissed, reinstatement granted, petition again
3 dismissed for failure to timely file brief after reinstatement);
4 Barry v. Mukasey, 08-431 ,6-ag (form CIA filed late, extension
5 granted after first default on briefing schedule, no response to
6 OSC, petition dismissed after second default, reinstatement not
7 sought); Toar v. Mukasey, 08-4418-ag (brief filed only after OSC
8 issued); Sow v. Mukasey, 08-4609-ag (form CiA filed late, brief
9 filed only after OSC issued); Kane v. Mukasey, 08-4764-ag (OSC
10 issued, petition dismissed, reinstatement not sought); Bah v.
11 Holder, 08-4770-ag (brief accepted for late filing); Jalloh v.
12 Mukasey, 08-4929-ag (brief accepted for late filing); Ba v.
13 Mukasey, 08-5197-ag(L); 08-5206-ag(Con) (brief filed only after
14 OSC issued); Fall v. Mukasey, 08-5399-ag (OSC issued, petition
15 dismissed, petition reinstated, brief accepted for late filing);
16 Kourouma v. Mukasey, 08-5643-ag (brief filed only after OSC
17 issued); and Sy v. Holder, 09-0779-ag (OSC issued, Court provided
18 brief grace period for filing of brief rather than extension
19 because "[c]ounsel's behavior reflects a disrespect for the court
20 in the way he has simply ignored our scheduling orders," no brief
21 filed during grace period, petition dismissed, reinstatement not
22 sought); Tjandra v. Holder, 09-2985-ag (brief filed late). In
23 addition, in Tounkara v. Mukasey, 08-2929-ag, Vialet filed the
24 petition for review in this Court when the proper venue was the
25 Fifth Circuit, requiring this Court to expend resources to
26 trans fer the case. 1
27
28 We are aware that, in a number of these cases, Vialet
29 explained that his late filing was caused by a severe respiratory
30 illness as well as the demands of preparing for oral argument on a
31 difficult issue involving asylum claims based on female genital
32 mutilation. See, e.g., affidavit filed 8/25/2008 in No. 08-1156
33 ago In more recent cases, he cited a "tremendous backlog of
34 work." See, e.g., affidavit filed 3/31/2009 in No. 08-4316-ag.
35 Nevertheless, given the duration of Vialet's persistent failure to
36 comply with scheduling orders, the number of cases involved, and
37 the fact that he apparently continued to take on new cases despite
38 backlog concerns, those reasons are subject to doubt.
39 Additionally, it is not clear why, based on his alleged illness
40 and workload, Vialet did not seek - prior to the defaulted
41 deadlines - a stay of the relevant cases, further extensions of
iAside from Bahs v. DHS, 07-5301-ag, the Court has not
reviewed, for purposes of this order, cases filed before 2008,
and the cases and events noted in the text are not intended as a
complete overview of all cases and events that may be relevant to
these proceedings.
9
1 time, or substitution of counsel.
2
3 In addition to the above-noted issues, panels of this Court
4 also have remarked upon poor briefing by Via let on several
5 occasions. In Bah v. DHS, 07-5301-ag, the merits panel found that
6 the brief prepared by Via1et "fail[ed] to address with any degree
7 of specificity the findings supporting the agency's adverse
8 credibility determination and ... fail[ed] to provide any
9 supporting citations to any of this Court's decisions, [such that
10 the] brief does not comply with Fed. R. App. P. 28 (a) (9) (A) ." No.
11 07-5301-ag, order filed 11/7/2008. The panel found this omission
12 "fatal to the portion of [the] petition for review purporting to
13 challenge the agency's adverse credibility finding" and warned
14 Vialet that "future briefing of this quality may result in
15 discipline." Id.
16
17 In Diallo v. DHS, 08-0556-ag, the merits panel stated that
18 "the brief submitted by ... Vialet[] is cursory at best and comes
19 dangerously close to waiving any challenge to the agency's adverse
20 credibility determination," adding that "[f]urther briefing of
21 this quality may result in discipline." No. 08-0556-ag, order
22 filed 3/31/2009. In Barry v. Mukasey, 08-4257-ag, the merits
23 panel stated that: (1) the brief "fails to cite to any caselaw to
24 support any of [the] arguments challenging the [irrunigration
25 judge]'s adverse credibility determination, suggesting that it
26 fails to comply with ... Fed. R. App. P. 28 (a) (9) (A)"; (2) the
27 brief challenged only one of the seven findings that the
28 irrunigration judge made to support his adverse credibility
29 determination; and (3) it was "troubled by the poor quality of the
30 brief submitted by ... Vialet." No. 08-4257-ag, order filed
31 4/8/2009. The panel noted that "[t]his is not the first time that
32 Via let has submitted a brief that we have deemed insufficient" and
33 stated that "Via let is again warned that future briefing of this
34 quality may result in discipline."
Id.
35
36 Finally, in addition to the cases in which this Court has
37 expressly warned Vialet with respect to deficient briefing, we
38 note that: (1) in Sy v. DHS, 08-0664-ag, the merits panel observed
39 that the brief failed to "address certain of the ... credibility
40 findings" and that, "[a]rguably, these [unchallenged] findings
41 were alone sufficient to support the agency's credibility
42 determination," see order filed 12/31/2008; (2) in Diallo v.
43 Mukasey, 08-3528-ag, a motions panel of this Court granted the
44 Government's motion to surrunarily deny the petition for review
45 because Vialet's brief failed to address the agency's adverse
46 credibility determination, which was in itself a dispositive
47 issue, see order filed 4/15/2009; and (3) in Sow v. Mukasey, 08
48 4609-ag, the merits panel noted that Vialet's brief failed to
10
1 challenge five separate bases for the agency's adverse credibility
2 finding, and opined that, "[a]rguably, the[se] [unchallenged]
3 findings ... alone constitute substantial evidence for the
4 agency's credibility determination," see order filed 6/12/2009.
5
6 Upon due consideration of the matters described above, it is
7 hereby ORDERED that Theodore Via let is referred to this Court's
8 Committee on Admissions and Grievances for investigation and
9 preparation of a report, pursuant to Federal Rule of Appellate
10 Procedure 46, this Court's Local Rule 46.2, and the Rules of the
11 Committee on Admissions and Grievances. The Committee is
12 authorized to share information, and/or hold joint proceedings,
13 with other disciplinary committees, as long as confidentiality is
14 maintained.
15
16 [Remainder of order redacted]
17
18 FOR THE COURT:
19 Catherine O'Hagan Wolfe, Clerk
20
21 By: /s/__~_________
22 Michael Zachary
23 Supervisory Staff Attorney
24 Counsel to the Grievance Panel
11
APPENDIX 2
May 2011 Report of the Committee
on Admissions and Grievances
REPORT ~ RECOMMENDATION
In Re: Theodore Anthony Vialet, #09-90132-am
I. Introduction
l By Order dated February 25, 20 10 ("Referral Order"), the United States Court of
Appeals for the Second Circuit (the "Court") referred Theodore Anthony Vialet to this
I Committee for investigation of his conduct before the Court and for preparation of a
report on whether he should be subject to discipline or other corrective measures.
Mr. Vialet is a solo practitioner specializing in immigration law, with a heavy
concentration on asylum and removal cases. He was admitted to practice before the
Court on December 30. 2009, after wbat he characterized as two previous attempts to be
admitted. The Court's Referral Order raises two areas of concern: (l) faHure to abide by
the Court's scheduling orders in II of34 cases filed between January 1,2008, and the ·
date of the Referral Order; and (f.) poCllr briefing in six specific cases. Additionally, while
not raised in the Referral Order, the Committee learned that Mr. Vialet was filing briefs
and records with the Court and participated in at least one oral argument prior to his ,
admission to practice before the Court.
The Committee concludes that Mr. Vialet has committed misconduct andihat his
misconduct warrants a sanction. The Committee recommends that Mr. Vialet be publicly
23432676v1
reprimanded and be required to attend Continuing Legal Education ("CLE") courses in
addition to the CLE hours required for all attorneys admitted in New York State.
The following constitutes the Committee's Report and Recommendation to
impose discipline on Mr. Vialet.
II. The Referral Order and this Disciplinary Proceeding
On March 1,2010, this Commil tee issued a Notice of Referral and Proceeding
t
requiring Mr. Vialet to show cause why it should not recommend disciplinary and/or
other corrective action with respect to ~he conduct alleged in the Court's Referral Order.
The Referral Order addressed 34 separ~te matters pending before the Court in 2008-2010
in which Mr. Vialet was listed as counsel of record. By letter of March 10, 2010, Mr.
Vialet timely requested a sixty-day extension of his time to respond, and he was granted a
forty-five-day extension by this Committee. On May 13,2010, Mr. Vialet timely
submitted a response with exhibits. Thereafter, Mr. Vialet submitted two supplemental
responses, one on May 21, 20 I 0, and another on September 24, 20 10. A hearing was
held on October 8, 20 I 0, before a sub<;ommittee consisting of Terrence M. Cormors and
Kimberly A. Knox. Mary Jo White p~icipated in committee deliberations via telephone
conference. Mr. Vialet appeared pro se and testified on his own behalf.
At the conclusion of the hearing, Mr. Vialet was provided 30 days to submit
letters of reference on his behalf. He submitted one letter from Manuel D. Gomez, Esq.
Mr. Gomez is a colleague of Mr. VialQt's, and he writes that Mr. Vialet made court
appearances on behalf of Mr. Gomez ih Bankruptcy and Civil Court. He "valued" Mr.
Vialet's work as well as the fact that he treated Mr. Gomez's clients well. Mr. Gomez
often consulted Mr. Vialet for advice on immigration law matters. Mr. Gomez also notes
that Mr. Vialet works long hours, and he states that he admires Mr. Vialet's work as a 11
11
lawyer and highly recommends him . I
III. Factual Background
The following facts are taken from Court records, Mr. Vialet's written
submissions with documentation, and the testimony presented at the hearing.
Mr. ViaJet is a solo practitioner in New York City. He was admitted to practice
law in New York State by the Appellate ;Division, Second Department in 1996. In
addition to his Second Circuit admissi bn noted above, he also is admitted in the United
"
States District Court for the Eastern and Southern Districts of New York. He is 53 years
old. , I'
I
2
23432676v1
Mr. Vialet graduated from Fordham University and earned his law degree from
New York Law School.
Mr. Vialet has been a solo practitioner for most of his career. At times, he has
had one or two non-lawyer employees assisting him. His immigration work is comprised
main'y of asylum applications and largely involves West African immigrants.
According to Mr. Vialet's testimony, following a successful appeal involving the
issue of female genital mutilation (see Bah v. Mukasey, 529 F.3d 99 (2d Cir. 2008)) as
well as his successes before the Board of Immigration Appeals, Mr. Vialet's case load
increased, and he received an influx of clients seeking his services with respect to appeals.
By his own admission, he was overworked and unable to handle his caseload, especially
because, as a solo practitioner, he had no assistance. Since the Court issued its Referral
Order, he has limited the number of Second Circuit cases he accepts. Mr. Vialet testified
that at the time of the hearing, he had five cases pending before the Court. As of
February 1,2011, Mr. Vialet had five cases pending before the Court, four of which were
filed after he received notice of the Referral Order.
IV. Legal Standard
Under the Rules of the Committee on Admissions and Grievances for the United
States Court of Appeals for the Second Circuit ("Committee Rules"),
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 .... An attorney also may 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.
Committee Rule 4; see also Federal Rule of Appellate Procedure ("F.R.A .P.") 46(c) ("[a]
court of appeats may discipline an attorney who practices before it for conduct
unbecoming a member of the bar or for failure to comply with any court rule"). t ,
"
"Conduct unbecoming a member of the bar" includes "conduct contrary to .
professional standards that shows an unfitness to discharge continuing obligations to
clients or the courts, or conduct inimical to the administration ofjustice. More specific
guidance is provided by case law, applicable court rules, and 'the lore of the profession,'
3
I
23432676v1
II
:\
as embodied in codes of professional conduct." In re Snyder, 472 U.S. 634, 645, 105 S.
Ct 2874, 2881 (1985).
Under F.R.A.P. 28(a)(9)(A), an appellant's brief must contain "appellant's
contentions and the reasons for them, with citations to the authorities and parts of the
record on which the appellant relies." I
Under F.R.A.P. 46 and the Court's fonner Local Rule 46, an attorney must be
admitted to the Court before practicing before it.
Because Mr. Vialet was a member of the bar of New York State during the time
period at issue, the New York State Code of Professional Responsibility ("the Code")
applies to conduct through April I, 2009, and the Rules of Professional Responsibility
("the Rules"), which took effect on April I, 2009, apply to his conduct on or after that
date. Three areas are relevant in this matter. First, fonner DR 6-101 (A) provides that a
lawyer shall not:
• "Handle a legal matter which the lawyer knows or should know that he or
she is not competent to!handle, without associating with a lawyer who is
competent to handle it," DR 6-IOI(A)(l).
• "Neglect a legal matter entrusted to the lawyer," DR 6-IOI(A)(3).
In the current Rules, the parallel provisions are Rules 1.1 (b) and 1.3(b):
"A lawyer shall not handle a legal matter that the lawyer
knows or should know that the lawyer is not competent to
handle, without associating with a lawyer who is competent
to handle it." Rule 1.1 (b).
"A lawyer shall not neglect a legal matter entrusted to the
lawyer." Rule 1.3(b).
II
Second, former DR 7-10 I (A) directed that attorneys shall not intentionally:
I. [f]ail to seek the lawful objectives of the client through reasonably
available means pennitted by law and the Disciplinary Rules;
2. fail to carry out a contract of employment entered into with a client for
professional services;
3. prejudice or damage the client during the course of the professional
relationship. ~
Similarly, under the current Rules, a lawyer:
4
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• "may exercise professional judgment to waive or fail to assert a right or
position of the client, or accede to reasonable requests of opposing counsel,
when doing so does not prejudice the rights of the client," Rule 1.2(e);
• "shall not intentionally fail to carry out a contract of employment entered
into with a client for professional services, but the lawyer may withdraw
as permitted under these Rules," Rule 1.3(c);
• "shall not intentionally fail to seek the objectives of the client through
reasonably available means pennitted by law and these Rules; or prejudice
or damage the client during the course of the representation except as
pennitted or required by these Rules," Rule I. I (c)(I), (2).
Third, the Code and Rules prohibit conduct that involves misrepresentation, that
is prejudicial to the administration of justice, and/or that "adversely reflects on the
lawyer's fitness as a lawyer." DR 1-102(A)(4), (5), (7); Rule 8.4(b), (c), (d), (h).
According to this Committee's rules, "[a]ny finding that an attorney has engaged
in misconduct or is otherwise subject to corrective measures must be supported by clear
and convincing evidence." Committee Rule 7(h). Once misconduct has been established,
in detennining the sanction to be imposed, the Committee should generally consider: W
the duty violated; ® the lawyer's mental state; W the actual or potential injury caused
by the lawyer's misconduct; and @ the existence of aggravating or mitigating factors.
See American Bar Association, Standards for Imposing Lawyer Sanctions ("ABA
Standards") III(C)(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."
Committee Rule 6.
V. The Alleged Misconduct
A. Failure to Abide by the Court's Scheduling Orders
Most of the allegations against Mr. Vialet concern his failure to abide by the
Court's scheduling orders in 31 of 34 cases filed with the Court between 2008 and the
date of the Referral Order in 2010. In I I of those cases, the petitions were dismissed for
failure to comply with the Court ' s scheduling orders, and Mr. Vialet did noC seek
reinstatement on his clients' behalf. In 10 cases, Mr. Vialet filed briefs or took other.
action only after the Court issued Orders to Show Cause. In one case, Mr. Vialet filed the
petition for review in the Second Circuit, but the proper venue was the Fifth Circuit, and
the Court had to expend time and resources to transfer the matter. In the remaining nine
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cases cited by the Court, briefs were accepted despite late filing or extensions of time
granted after the deadline had passed.
In his written submission, Mr. Vialet attributed his failure to adhere to the
scheduling orders to the following reasons: (D poor health; (2) an urunanageable
caseload and no support; and (J) short deadlines imposed by the Court's rules. At the
hearing, Mr. Vialet's explanation for his alleged deficiencies in complying with
scheduling orders focused on his caseload and the fact that he was a solo practitioner with
no help. He did not provide any further details about his health issues, stating only that
although he is "not in great health," he is able to work.
Mr. Vialet did not offer specific responses to each of the cases listed in the
Referral Order but rather chose to address the issue more generally, as described above.
Mr. Vialet had some additional observations about certain cases and categories of cases.
For example, he noted that in some of the cases that were dismissed by the Court, he was
able to reopen the matter before the Board of Immigration Appeals and therefore sought
to protect his dients' interests by pursuing alternative relief. See, e.g., Diallo v. DHS, 08
04 I 6-ag; Diallo v. Holder, 08-4271. With respect to the petition that was filed in the
wrong Court, Mr. Vialet explained that the client had been living in New York and
moved to Dallas, Texas, less than a year before the petition was filed. Mr. Vialet
acknowledged that he should have filed in the Fifth Circuit and acknowledged that he
simply made a mistake. With respect to cases in which he filed briefs only after Orders
to Show Cause were issued by the Court, Mr. Vialet stated that he "forgot to ask for an
extension" and again cited short filing deadlines and his large caseload.
In two of these matters, the Court openly criticized Mr. Vialet's failure to abide
by the scheduling orders. See Barry v. Mukasey, 08-4027 (the Court noted Mr. Vialet's
"indifference to the scheduling orders of this Court"); Sy v. Holder, 09-0779 ("Counsel's
behavior reflects a disrespect for the Court in the way he has simply ignored our
scheduling orders."). Mr. Vialet acknowledged that he had insufficient safeguards in
place for remembering deadlines and insufficient systems in place to handle a Second
Circuit practice. He claimed that because he had no support, he was required to do his
own typing, printing, and copying of the briefs and appendices, which took considerable
time. He stated that he has undertaken corrective measures in his office -- specifically,
hiring two employees to assist him, using a computerized diary system, and discussing
upcoming dates and deadlines with his secretary on a weekly basis. Mr. Vialet added that
the Court's implementation of electronic filing has largely alleviated the burdens
associated with perfecting his appeals as he is no longer required to print, copy, bind, and
file hard copies of the briefs and appendices. He also noted that the rules have been
amended to provide more time for him to file briefs after the record is filed .
Additjonally" it should be noted that on October 29,2009, Mr. Vialet was the
subject ofa client complaint to the Departmental Disciplinary Committee of the First
Judicial Department. According to Mr. Vialet, the client filed a complaint after Mr.
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Vialet advised him of his right to do so following the dismissal of the client's appeal for
failure to timely file the appeal before the Board of Immigration Appeals. Mr. Vialet
testified at the hearing that he continues to represent the cI ient before the Board of
Immigration Appeals, where he was successful in reopening his client's case. Thus, it
appears that the client was not prejudiced by the dismissal of his appeal. Additionally, on
June 18,2010, the Departmental Disciplinary Committee closed its case against Mr.
Vialet without findings.
Mr. Vialet expressed remorse and apologized for his shortcomings with respect to
the Court's scheduling orders. He acknowledged that some clients may have been
prejudiced by the dismissal of their petitions due to his failure to comply with the
scheduling orders. Mr. Via let explained that he attempts to contact his clients via
telephone and then present them with the decisions of the Court in person, even when the
decision is adverse. He mails decisions when he is unable to reach clients by telephone.
In response to the Court's and Committee's concern that Mr. Vialet's conduct evidenced
disrespect for the Court, Mr. Vialet said that he did not intend any disrespect to the Court.
This Committee found Mr. Vialet to be sincere in his respect for the Court and his
commitment to his clients and their interests.
This Committee finds that the clear and convincing evidence demonstrates that
Mr. Vialet's conduct in failing to comply with the Court's scheduling orders was
prejudicial to the administration of justice and "adversely reflects on [his] fitness as a
lawyer." DR 1-102(A)(5), (7); Rule 8.4(d). Because Mr. Vialet acknowledged that some
of his clients may have been prejudiced by the dismissal of their petitions as a result of
his failure to meet scheduling deadlines in the cases where he did not seek reinstatement
of the petitions or pursue alternative remedies, his conduct violated DR 7-101(A) and
Rules l.l(c)(l), (2); 1.3(c). Because Mr. Vialet continues to have difficulty complying
with the Court's scheduling orders, as discussed below, this conduct warrants a public
reprimand. See, e.g., In re Kuzmin, 20 10 WL 3980018 (2d Cir. 20 I0) (Court dismissed
28 of 102 petitions for review for failure to comply with scheduling orders); In re
Adinolfi, 20 I
0 WL 3623 152 (2d Cir. 20 I0) (attorney continued to default on scheduling
orders after being put on notice of the Court's concerns); In re Gut/fein, 378 Fed. App. 24
(2d Cir. 2010) (Court dismissed 32 of 50 petitions for review for failure to comply with
scheduling orders).
B. Poor Briefing
The Referral Order also requested a response regarding poor briefing in six
matters. In three of these matters, the Court had publicly criticized Mr. Vialet's briefing
and warned that further deficient briefing could result in discipline. See.Bah v. DHS,07
5301 ("further briefing of this quality may result in discipline"); Diallo v. DHS,08-0556
(same admonition); Barry v. Mukasey, 08-4257 ("This is not the first time that Vhllet has
submitted a brief that we have deemed insufficient." ... "Vialet is again warned that
future briefing of this quality may result in discipline. "). In the remaining three matters,
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the Court noted that Mr. Vialet's failure to challenge the credibility detenninations below
essentially required denial of the petitions. See Sy v. DHS, 08-0664; Diallo v. Mulcasey,
08-3528; Sow v. Mukasey, 08-4609.
In his written submission and at the hearing, Mr. Vialet acknowledged that some
of his briefs were inadequate. He again attributed this to his workload, lack of assistance,
and time pressures to complete briefs. In at least one of the cases cited in the Referral
Order, Mr. Vialet resubmitted a brief of what he believed was better quality. See Sow v.
Mulcasey,08-4609. Mr. ViaJet also asserted that the poorly written briefs were only a
small percentage of the total number of briefs he submitted to the Court. He also
provided examples of briefs he has submitted to the Court to demonstrate his brief
writing ability. In response to questioning about the similarity of the legal standard and
legal arguments in many of his briefs, Mr. Vialet explained that many of his cases
concern the same issues, and so, while he recognizes that each case is unique, he said that
there often is no reason to change these sections from brief to brief.
The Committee finds that clear and convincing evidence demonstrates that Mr.
Vialet's poor briefing violated F.R.A.P. 28 and has not improved. The Committee
obtained copies of the briefs that Mr. Vialet filed with the Court in 2010 after receiving I'
the Court's referral order, has reviewed them, and finds that his briefing has not improved. I
.I
Mr. Vialet has, for example, applied the wrong standard in his analysis (see, e.g., Diallo v. I
Holder, 10-1504, in which Mr. Vialet argues the "well-founded fear" standard applicable
to asylum claims despite the fact that the Board of Immigration Appeals found the
petitioner's claim to be untimely and therefore applied the more stringent "more likely
than not" standard), and continues to come close to waiving any challenge to the
agency's adverse credibility findings despite previous warnings from this Court.
Compare Diallo v. Holder, 10-1504 with Diallo v. DHS, 08-0556-ag, 318 Fed. Appx. 39,
40-41 (2009) and Bah v. Mukasey, 299 Fed. Appx. 72, 73-74 (2008).
This conduct, together with his failure to abide by the Court's scheduling orders,
thus warrants a public reprimand. See In re Zhang, 376 Fed. Appx. 104 (2d Cir. 20 I0)
(poor briefing continued post-hearing).
C. Practice Before the Court Prior to Admission
Although the issue of Mr. Vialet's practice before the Court prior to his admission
was not raised in the Referral Order, this Committee was troubled by that apparent
practice. He was admitted to practice before the Court on December 30, 2009, and yet he
submitted briefs to the Court and appeared for at least one oral argument prior to that date
in cases in which he was not admitted pro hac vice. ,.
Mr. Vialet explained at the hearing that he had "been trying for years to get"
admitted" prior to his admission in December 2009. On at least one occasion he had
trouble with his sponsors - one turned out not to be admitted before the Court and another
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withdrew his support. He said that he also had an application returned for failure to pay
the correct fee. Mr. Vialet stated at the hearing that he believed his application for
admission was pending at the time of his oral argument before the Court in April 2008.
He also noted that his submissions to the Court prior to his admission indicated that his
application was pending, and he said he had been told that he could file cases with the
r
'.'
Court while his application was pending. Mr. Vialet admitted having been criticized by
the Court during his April 2008 oral argument because he was not admitted, and he
acknowledged that his application may not have been actually pending when some
petitions were filed.
Under the former Second Circuit Local Rule 46(d): "Counsel of record for all I "I,
parties must be admitted to practice before this court. Oral argument may be presented
only by attorneys admitted to practice before this court. Under exceptional circumstances
an attorney may be admitted pro hac vice."
As the Court noted in In re Yan Wang, 2010 WL 2812824 (2d Cir. 2010) at *7,
however,
"during the relevant time period, some employees of this
Court had interpreted this rule as meaning that an attorney
litigating before this Court need not be admitted to the bar
of thi.s Court unless he or she intended to orally argue the
til
case. We also are informed that attorneys inquiring about
the Court's admission requirements were so advised. For
purposes of this proceeding, we need not decide whether
we agree with that interpretation of the rule. However, we
find that a reasonabte attorney could have accepted, and
acted upon, a Court employee's explicit instruction that
admission need not be sought for purposes of filing
documents with the Court."
Therefore, crediting Mr. Vialet's testimony that he was told he could file
documents while his application was pending, coupled with the rationale of In re Yan
Wang, the Committee finds that Mr. Vialet's written submissions to the Court prior to his
admission was not in violation of the Court's former rule. While his oral argument prior
to his admission before the Court was in violation of the Court's rule, in light of the fact
that Mr. Vialet was reprimanded by the Court at the time of his oral argument, he has
,I·U
I
since been admitted and therefore cured this deficiency, and this issue was not raised by
the Court in its referral order, the Committee finds that a reprimand is not warranted on
this basis. " I
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'II
I
,
VI. Aggravating and Mitigating Factors
There are both aggravating and mitigating circwnstances here. See ABA
Standards 9.22; 9.32.
A. Aggravating Factors
r 11
1
A pattern of failing to meet deadlines or failing to apply for an extension before I
the deadline has passed would be an aggravating circumstance, and an isolated instance , nl
would be a mitigating circumstance. See ABA Standard 9.22(c) ("a pattern of
misconduct"); 9.22(d) ("multiple offenses"). The facts here fall slightly on the side of I'
aggravation. Mr. Vialet provided explanations for some, but not all, of the 11 petitions I
I
that were dismissed for his failure to file briefs. Mr. Vialet also provided only a general I
I
explanation for his inability to adhere to the scheduling orders in the remaining cases
cited in the Referra'l Order. He acknowledged that some of his clients may have been
prejudiced by the dismissal of their cases.
I III
It should also be noted that while he is much improved, Mr. Vialet has continued
to miss deadlines with the Court. As of February 1, 2011, he had filed five petitions with
the Court after receiving notice of the Referral Order. In two of those matters, he filed
his briefs one day late, and in another he filed form C/A only after the Court issued an
order dismissing the appeal unless form C/A was filed. See dockets for Dia/lo v. Holder,
I,
I •
10-1080 (brief was due on September 15, 2010; brief was filed on September 16, 201 O); I I
Dia/lo v. Holder, 10-1504 (brief was due on September 30, 20 I0; brief was filed on I :
October 1, 201 O); Dia/lo v. Holder, 11-0096 (order issued January 25, 2011 dismissing
appeal by February 8, 20 I J unless form C/A filed; form C/A filed January 25, 20 II).
I
There are not yet briefing schedules in the remaining two matters.
I
I
B. Mitigating Factors I I
I
There also are significant mitigating factors in this matter. For example, Mr. I Iii
Vialet's conduct is significantly mitigated by his evident remorse and by his lack of any
selfish motive. See ABA Standards 9.22(b). His conduct also is mitigated by his good
faith willingness to cooperate with the Committee. See ABA Standards 9.32(e}.
Mr. Vialet provides valuable tegal services to an under-served population by
focusing predominantly on asylum cases involving West African inunigrants. Moreover,
Mr. Vialet claims to charge lower fees than other attorneys in the field, which may
explain his increased caseload, but also makes him more affordable and accessible to his
clients. Additionally, according to his testimony, Mr. Vialet has been very s\lccessful; he
testified that in his "regular" practice outside the Court he has won approximately 70% of
his cases this year. He also has enjoyed some success in the challenging area of female
!I
genital mutilation, and, as mentioned above, successfully represented two of the I
petitioners in the landmark case of Bah v. Mukasey, 529 FJd 99 (2d Cir. 2008). I 1,1
!
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'II III
A
Further, Mr. ViaJet has accepted responsibility for the misconduct at issue and has
instituted various corrective measures. As noted above, Mr. Via let has worked as a solo
practitioner without any assistance for most of the time of the conduct at issue. Despite
being a solo practitioner, according to the character letter from Mr. Gomez, Mr. Vialet
assisted his colleague, Manuel Gomez, Esq., by making court appearances on his behalf,
and is highly recommended by Mr. Gomez.
The Committee notes that the misconduct described above occurred over a
relati vely brief period of time, and Mr. Vialet has since made changes to the way his
office functions by hiring employees to assist him, utilizing the Court's electronic filing
system, and implementing a computerized calendar system in his office where his
secretary diaries important dates and deadlines and discusses them with him on a weekly
basis. In addition, Mr. Vialet has decreased his appellate caseload and takes fewer
Second Circuit cases. He testified that at the time of the misconduct described above,
appellate work comprised approximately 20-25% of his practice. He has reduced his
appellate workload, which now constitutes only about five percent or less of his practice.
VII. Recommendation
The Committee finds, based on clear and convincing evidence, that Mr. Vialet
violated F.R.A.P. 46(c); DR 6-101(A) and Rules l.l(b), 1.3(b); DR 7-IOl(A) and Rules
l.l(c)(l), (2), 1.2(e), 1.3(c); DR l-102(A)(4), (5), (7) and Rule 8.4(b), (c), (d). Although ;1:
Mr. Vialet practiced before the Court without being admitted, crediting his testimony, he
believed he could do so because his application was pending and he was actively seeking
!Iil
admission. Accordingly, there is not clear and convincing evidence to support imposition ill
of discipline with respect to F.R.A.P. 46 and fonner Local Rule 46(d).
,i I
II
It is the Committee's conclusion ~hat Mr. Vialet was not properly equipped to ; '[ I
handle the influx of Second Circuit matters that came in to his office -- that is, Mr. Vialet I I
lacked sufficient practical skills, support staff, and experience to adequately follow the
Court's rules and properly protect his clients' interests. It also is this Committee's
conclusion, however, that because of Mr.' Vialet's educational background and his
genuine dedication to his clients' needs, Mr. Vialet is indeed capable of competently
representing petitioners before the Court. The Committee finds that Mr. ViaJet could
benefit from continued, and targeted, legal education regarding handling cases at the
appellate level and overall law practice management. Consequently, this Committee
recommends that the Court require Mr. Vialet to attend and participate in continuing legal
education as part of any sanction it may order.
"
In light of all the factors noted above, the Committee recommends that Mr. Vialet
receive a public reprimand from the Court. This Committee further recommends that
within six months of the date of any oider of the Court, he be required to complete no
fewer than six hours of continuing legal education ("CLEn) in appel/ate level advocacy,
1.1
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focusing on immigration, and no fewer than six hours of CLE in law office/practice
management from CLE providers accredited by the bar of New York, in addition to the
CLE hours required for aU attorneys admitted in New York State. This Committee
recommends that Mr. Vialet be required to complete these CLE credit hours through in
person attendance at s~minars. Mr. Vialet should exercise due diligence in seeking out
courses that will provide infonnation and direction for his substantive representation and
practical management in federal appellate matters. He should report and provide
documentation of his compliance to this Committee's Secretary no later than thirty days
after the expiration of the time to complete these CLE credit hours .
Respectfully submitted,
\? --:::> -;J ~ .~,... "c;
Member of the Committee
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