Filed: May 16, 2011
Latest Update: Feb. 22, 2020
Summary: 08-90123-am In re Jonathan Einhorn 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 OR
Summary: 08-90123-am In re Jonathan Einhorn 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 ORD..
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08-90123-am
In re Jonathan Einhorn
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 ter.m 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 16 th day of May, two thousand eleven.
PRESENT:
Jose A. Cabranes,
Robert D. Sack,
Richard C. Wesley,
Circuit Judges.
..08-90123-am
In re Jonathan Einhorn,
Attorney. ORDER OF
GRIEVANCE PANEL
For Jonathan Einhorn: William F. Dow III, Esq., New
Haven, Connecticut.
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 JONATHAN EINHORN
1 is PUBLICLY REPRIMANDED for the misconduct described in the
2 Committee's report.
3 I. Summary of Proceedings
4 By order filed in October 2008, this Court ordered Einhorn
5 to show cause why he should not be disciplined for defaulting in
6 a number of appeals in this Court and causing four of those
7 defaulted appeals to be dismissed. After finding Einhorn's
8 response to the October 2008 order to be unsatisfactory, this
9 Court referred Einhorn to the Committee for investigation of the
10 matters described in the October 2008 order and preparation of a
11 report on whether he should be subject to disciplinary or other
12 corrective measures.
13 During the Committee's proceedings, Einhorn had the
14 opportunity to address the matters discussed in the Court's
15 referral order and to testify under oath at a hearing held on
16 April 6, 2010. Einhorn was represented during the Committee's
17 proceedings by William F. Dow III, Esq. Presiding over the
18 hearing were Committee members Paul C. Curnin, Esq., James I.
19 Glasser, Esq., and the Honorable Howard A. Levine. In August
20 2010, the Committee filed with the Court the record of the
21 Committee's proceedings and its report and recommendations.
22 Thereafter, the Court provided Einhorn with a copy of the
23 Committee's report, and Einhorn responded.
24 In its report, the Committee concluded that there was clear
2
1 and convincing evidence that Einhorn had engaged in conduct
2 warranting the impos ion of discipline. See Report at 1, 5.
3 Specifically, the Committee found that Einhorn had frequently
4 failed to meet this Court's filing deadlines, resulting in the
5 dismissals of four criminal appeals, all of which were later
6 reinstated. Id. at 4-5. After finding no aggravating factors
7 and various mitigating factors, the Committee recommended that
8 Einhorn be publ ly reprimanded.
Id. at 5-6. In his response to
9 the Committee's report, Einhorn agreed with the Committee's
10 recommendation, apologized for his misconduct, and assured the
11 Court that it would not happen again. Response at 1.
12 II. Conclusions
13 Upon due consideration of the Committee's report, the
14 underlying record, and Einhorn's submissions, it is hereby
15 ORDERED that Einhorn is PUBLICLY REPRIMANDED for his misconduct
16 in this Court. Although that misconduct generally would warrant
17 more severe disciplinary measures, see generally In re Flannery,
18
186 F.3d 143, 145-49 (2d Cir. 1999) (per curiam), we agree with
19 the Committee that the mitigating factors in this matter are
20 sufficient to reduce the disciplinary measure we impose to a
21 public reprimand.
22 The text of this panel's October 2008 and July 2009 orders
23 and the Committee's report are appended to, and deemed part of,
24 the present order for the following disclosure purposes. Einhorn
25 must disclose this order to all courts and bars of which he is
3
1 currently a member, and as required by any bar or court rule or
2 order. Einhorn also must, within fourteen days of the filing of
3 this order, file an affidavit with this Court confirming that he
4 has complied with the preceding disclosure requirement.
5 Furthermore, the Clerk of Court is directed to release this order
6 to the public by posting it on this Court's web site and
7 providing cop s to members of the public in the same manner as
8 all other unpublished decisions of this Court, and to serve a
9 copy on Einhorn, this Court's Committee on Admissions and
10 Grievances, the State of Connecticut's Statewide Grievance
11 Committee, the grievance committee for the United States District
12 Court for the District of Connecticut, and all other courts and
13 jurisdictions to which this Court distributes disciplinary
14 decisions in the ordinary course. 1
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk
By: Michael Zachary
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, must be made available to any person or
the public.
4
APPENDIX 1
Text of October 2008 order
For the reasons that follow, Jonathan Einhorn is ordered to
show cause why disciplinary or other corrective measures should
not be imposed on him, pursuant to Federal Rule of Appellate
Procedure 46(b) and (c) and Second Circuit Local Rule 46.
A review of cases filed in this Court since 2000 suggests
that Einhorn has had serious difficulty complying with orders and
rules of the Court. At least five of his cases have been
dismissed based on his failure to file a brief or other document
by the deadline specified in an order of the Court, although all
five cases were later reinstated pursuant to motions. See Second
Circuit cases docketed under 00-9117-cv (failed to file Forms C
and D); 03-1276-cr (L) (failed to file brief; represented
defendant-appellant Nunley); 04-4330-cr (failed to file brief);
05-1294-cr (L) (same; represented defendant-appellant Cartelli)i
06-4460-cr (same). He also failed to timely fi documents in a
number of other cases, although those defaults did not result in
dismissal. See Second Circuit cases docketed under 02-1538-cr;
03-7265-cv; 04-1152-cri 04-2936-cr; 04-3899-cr; 05-0709-cri 05-
2735-cr i 05-2 969-cv ;"06-0567-cr; 06-1752-cr i -07-3018-cr. In
several of the preceding cases, his defaults occurred despite
receiving warnings that further extensions would not be granted,
or having an extension motion denied and a grace period provided.
See Second Circuit cases docketed under 04-1152-cr; 04-3899-cr;
04-4330-cr; 05-1294-cr; 06-1752-cr. Many of his defaults have
required this Court's personnel to make special efforts to inform
him of his need to cure the default, see Second Circuit cases
docketed under 03-7265-cVi 04-1152-cr; 04-2936-cr; 04-4330-cr;
05-0709-cr; 05-1294-cri 06-0567-cr, and at least two resulted in
orders to show cause why he should not be sanctioned, see United
States v. Frankel, No. 06-1752-cr, order to show cause filed
Sept. 11, 2007, order closing show-cause proceeding, without
imposition of sanction, led Apr. 25, 2008; United States v.
Jones (Nunley), No. 03-1276-cr, order to show cause filed Sept.
11, 2007, order closing show-cause proceeding, without imposition
of sanction, filed Feb. 6, 2008.
Upon due consideration of the matters described above, it is
hereby ORDERED that Jonathan Einhorn show cause, by a detailed
declaration, why disciplinary or other corrective measures should
not be imposed on him, pursuant to Federal Rule of Appellate
Procedure 46(b) and (c) and Second Circuit Local Rule 46. The
declaration must be made under penalty of perjury and filed
5
within twenty-eight days of the filing date of this order.
Furthermore, the declaration must include: (a) a complete list of
all cases in this Court in which Einhorn is, or was, counsel of
record for a party; (b) a complete list of all bars of which he
is a member, including all bar numbers and other bar
identification information, and a statement of whether he is in
good standing with each identified bar; (c) a statement of
whether he has been disbarred, suspended, or otherwise
disciplined by any bar or court and, if so, a copy of each
document imposing such a disciplinary measure must be attached to
the declaration; (d) a statement of whether, aside from any
document listed in response to clause (c), he has ever been
ordered by any court or bar disciplinary authority to show cause
why he should not be disciplined and, if so, a copy of each such
order, and any response to the order, must be attached to the
declaration; and (e) a discussion of whether his clients were
prejudiced in any way by the conduct noted above.
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk
By: /s
Za
---M~i~c~h-a-e-lry
Counsel to the Grievance Panel
APPENDIX 2
Text of July 2009 order
By order filed October 29, 2008, Jonathan Einhorn was
ordered to show cause why disciplinary or other corrective
measures should not be imposed on him, pursuant to Federal Rule
of Appellate Procedure 46(b) and (c) and Second Circuit Local
Rule 46.
The October 2008 order stated that, according to this
Court's records, Einhorn has had serious difficulty complying
with orders and rules of the Court. Specifically, it was noted
that (a) at least five of his cases had been dismissed based on
his failure to file a brief or other document by the deadline
specified in an order of the Court, (b) he had failed to timely
file documents in a number of other cases, although those
defaults did not result in dismissal, (c) in several of the
preceding cases, his defaults occurred despite receiving warnings
that further extensions would not be granted, or having an
extension motion denied and a grace period provided, (d) many of
his defaults required this Court's personnel to make special
efforts to inform him of his need to cure the default, and (e) at
least two defaults resulted in orders to show cause why he should
not be sanctioned. See Oct. 2008 order at 1-2 (citing cases
under each category).
In Einhorn's response to the October 2008 order, he states,
inter alia, that he has never been disciplined by any bar or
court, he is in good standing with all bars of which he is a
member, and none of his clients were prejudiced by the conduct
described in our October 2008 order. See Einhorn declaration at
2, 5-6. He also apologizes for instances where he filed late
briefs and states that he will not do so in the future. Id. at
2, 5. However, he also asserts that the October 2008 order
contains numerous errors and discusses the relevant cases
individually.
Id. at 1-5.
I. Community Te~evision v. Caruso, 00-9117-ov
We agree with Einhorn that the October 2008 order
erroneously attributed to him the default dismissal in Community
Television v. Caruso, 00-9117-cv, when in fact the dismissal
occurred six days before he filed his notice of appearance in the
case. See 00-9117-cv, order filed Sept. 26, 2000, notice filed
Oct. 2, 2000. Thus, the docket suggests that prior counsel may
have been responsible for that default. However, the vast
majority of Einhorn's objections to the October 2008 order are
incorrect.
II. The Default Dismissals
As an initial matter, two points require clarification.
First, a "default H occurs when an attorney or litigant fails to
file a document by the deadline specified in an order or rule of
this Court. There is no requirement that a "default entryH be
made on the docket before the failure to file can be treated as a
default. It is not clear why Einhorn denies the existence of
numerous defaults that are clearly reflected in this Court's
records, but his repeated assertion that no defaults were
"entered H suggests that he may be under the misapprehension that
a default does not exist unless an entry specifically uses the
word "default H to describe his behavior. Second, while the
employees of this Court are expected to help litigants and
attorneys with the processing of their cases, litigants and
attorneys nonetheless are required to keep track of their own
deadlines and should rarely need notification that a brief or
other document is overdue.
Einhorn first states that the October 2008 order
7
"erroneously claimed that five (S) cases were dismissed due to
ilure to file briefs or other documents." Einhorn declaration
at 1. Although Einhorn correctly states that he is not
responsible for the default in Community Television, review of
the relevant dockets demonstrates that he is incorrect as to the
other four cases, which were dismissed based on his failure to
file briefs. See cases docketed under 03~1276-cr (L) i 04-4330-
cri OS-1294-cr (L); 06-4460-cr. Moreover, when discussing those
four cases, his argument that our October 2008 order "erroneously
states that a brief was not filed," id., at 3 (items 7 and 8), 4
(item 14), and "unfair[ly] ... note[s] ... that a brief was never
filed,"
id., at 4 (item lS), materially mischaracterizes the
concern we expressed about those cases. The order clearly, and
accurately, states that those cases were "dismissed based on his
failure to file a brief or other document by the deadline
specified in an order of the Court, although all [four] cases
were later reinstated pursuant to motions." See Oct. 2008 order
at 1. The fact that briefs were eventually filed does not
render our description of those cases inaccurate. By
mischaracterizing the order as stating that no brie were filed,
Einhorn focuses on a straw man without addressing the actual
problem - his defaults in those cases that caused their
dismissal.
His discussion of the four dismissed cases is incomplete or
misleading in other ways. Regarding United States, v. Tate, 06-
4460-cr, nhorn notes the dismissal of the appeal, but fails to
mention the reason for that dismissal - his default - and simply
states that his brief was timely led after the reinstatement of
the case. See Einhorn declaration at 3 (item 7) (case cited as
"04-4660"). Regarding United States v. Artis, 04-4330-cr,
Einhorn never explicitly mentions either the dismissal or the
reason for the dismissal - his default. Although he mentions a
motion for reinstatement and for leave to file late, the
circumstances requiring that motion are not described, aside from
a reference to transcripts that were difficult to obtain. Id. at
3 (item 8). However, while this Court's les concerning Artis
show that an earlier motion for an extension was based on a lack
of transcripts, see Artis, 04-4330-cr, motion filed Dec. 20,
2004, they do not support the suggestion that a difficulty in
obtaining transcripts caused the final default and dismissal.
Einhorn's May 200S motion for an extension of time to file the
Artis brief stated that Einhorn had received the transcripts but
was unable to timely prepare the brief due to his t al schedule.
See
id., motion filed May 16, 200S. In response, the Court
granted a IS-day extension which, since that period commenced on
August 3, 200S, amounted to an extension of over five months from
the prior deadline.
Id., order led Dec. 23, 2004 (noting
deadline of Feb. 28, 200S), order filed Aug. 3, 200S (granting
8
15-day extension). Thereafter, Einhorn defaulted for the second
time, resulting in dismissal. Id., order filed Oct. 27, 2005.
Regard:"ng United States v. Cartelli, 05-1294-cr, Einhorn
acknowledges that the appeal was dismissed based on his failure
to comply with a briefing order, but does not mention his failure
to comply with a number of prior briefing orders. See Einhorn
declaration at 4 (item 14). In July 2005, this Court ordered
Einhorn to file his brief by August 25, 2005, and stated that no
further extension requests would be granted absent extraordinary
circumstances. See 05-1294-cr, order filed July 28, 2005.
However, Einhorn failed to comply, and his motion for an
additional extension was denied, although a seven-day grace
period was granted. See id., motion filed Sept. 6, 2005, order
filed Sept. 15, 2005. E:"nhorn took no action until December 2005
when he again moved for an extension, which was granted until
January 6, 2006. See
id., motion filed Dec. 6, 2005, order led
Dec. 9, 2005. Einhorn again failed to comply, and in February
2006 moved for another extension, which was denied, resulting in
dismissal. See
id., motion led Feb. 22, 2006, orders filed
Mar. 10, and Oct. 27, 2006. After the dismissal, Einhorn filed a
brief and a motion to reinstate the appeal, which was granted.
See
id., motion filed Jan. 19, 2007, order filed Jan. 25, 2007.
Regarding United States v. Jones (Nunley), 03-1276-cr,
Einhorn argues that it is "unfair to simply note in the [order]
that a brief was never filed in this case." Einhorn declaration
at 4 (item 15). However, the order did not say that a brief was
never filed, and the record clearly shows that the case was
dismissed based on Einhorn's failure to file a brief. In fact,
Einhorn defaulted more than once in the appeal. After the
deadline for his brief had already passed, Einhorn moved for an
extension of time, which was granted, and a new briefing order
was issued. See 03-1276-cr, motion filed Apr. 12, 2006, order
filed Apr. 20, 2006. Thereafter, a series of additional
extensions were granted, as a result of new attorneys or
appellants coming into the appeal. Einhorn failed to file a
brief pursuant to any of the new scheduling orders and his appeal
was dismissed, although later reinstated upon the Government's
motion. See id., motion filed June 8, 2007 (noting Einhorn's
failure to comply with "numerous scheduling orders" and resulting
dismissal), order filed Sept. 11, 2007 (reinstating appeal).
Although Einhorn now refers to the "extraordinarily complicated"
proceedings and errors by the Court, see Einhorn declaration at 4
(item 15), he never explicitly addresses his own failure to file
a brief. During the appeal, Einhorn stated that he had
mistakenly thought that he had been relieved by the Court in
August 2005. See 03-1276-cr, motion filed Sept. 20, 2007.
Although this Court declined to sanction him based on that
9
alleged misunderstanding, see id., order filed Feb. 6, 2008, his
explanation seems to con ict with the fact that he had filed a
motion for an extension of time for that same client in April
2006,2
id., motion filed Apr. 12, 2006.
III. Other Defaults
Regarding the remaining cases, Einhorn denies that any
defaults occurred, although he admits that his br fs were late
in a few cases. See Einhorn declaration at 2-5 (items 1, 3-6, 9-
13, 15). As a result of Einhorn's position, each of the cases
has been reviewed, multiple times, and this laborious process has
confirmed that he is simply incorrect as to every case. Not only
did he default on a filing deadline in each case, but, perhaps
worse, now presents a misleading or incomplete description of
several of the relevant cases. See United States v. Yandow, 04-
1152-cr (denies default occurred); Brown v. Area Cooperative, 03-
7265-cv (denies default; states brief was late by few days,
although late by month); United States v. Brewer (Thompson), 04-
2936-cr (denies default occurred); United States v. Torres, 05-
0709-cr (same; states brief was timely without mentioning prior
default); United States v. 32 Medley Lane, 05-2969-cv (states
Forms C & D were one day late, although filed over nine months
after appeal opened); United States v. Reed, 04-3899-cr (states
bri was "delayed" without addressing default issue); United
States v. Al andro, 02-1538-cr (denies default occurred); United
States v. Luna, 07-3018-cr (same); United States v. Ricci li,
05-2735-cr (denies default; states brief was late by three days
without mentioning prior fault); United States v. Riccitelli,
06-0567-cr (states brief was five months late without addressing
default issue): United States v. Frankel, 06-1752-cr (notes
filing of "show cause order" without mention of the default, and
incorrectly states that October 2008 order stated that "a brief
was never filed").
In light of the significant errors in Einhorn's declaration
discussed above, we decline to examine his remaining contentions,
which we leave for the Committee.
2 The Committee the first instance should determine the
extent to which Einhorn's conduct in United States v. Jones
(Nunley), 03-1276-cr, and United States v. Frankel, 06-1752-cr,
should be considered in its proceedings, in light of the panels'
decisions in those cases not to sanction him.
10
IV. Possible Good Cause for Defaults and Mitigating Factors
Einhorn's declaration contains factual assertions which
might support a finding of good cause for some of his defaults.
However, the conclusory nature of most of his case descriptions,
his insistence that no defaults occurred, and the misleading
information he presents as to some cases leaves us unable to
reach a conclusion as to whether he has any valid excuse or
explanation for his conduct, or whether any mitigating ctors
exist. Moreover, while Einhorn's presentation of incomplete or
misleading information may have been inadvertent, it nonetheless
reflects poorly on his ability to abide by, and properly respond
to, this Court's rules and orders. However, we do note that
Einhorn has not defaulted on any appeal in this Court since the
filing of our October 2008 order. See United States v. DeJesus,
08-6096-cr; United States v. Herndon, 09-0311-cr; United States
v. Castillo, 09-0758-cr.
Upon due consideration of the matters described above, it is
ORDERED that Jonathan Einhorn is hereby referred to this
Court's Committee on Admissions and Grievances for investigation
and preparation of a report consistent with Federal Rule of
Appellate Procedure 46, this Court's Local Rule 46(h), and the
Committee's Rules. The Committee is authorized to share
information, and/or hold joint proceedings, with other
disciplinary committees, as long as confidentiality is
maintained.
In conjunction with this referral, the Court is providing
the Committee with a number of documents, including docket sheets
that are labeled as "Non-Public Dockets." The non-public docket
sheets are internal Court documents that differ in various
respects from the docket sheets available to the public. While
the Committee is free to make use of the non-public docket
sheets, and to provide Einhorn with copies to aid in his defense,
we note that the docket sheets, and their contents, are to be
treated as confidential by all persons who require access to
them.
V. Request Addressed to State and District Court Grievance
Committees
It is further ORDERED that copies of this order also be
served on the grievance committee for the United States District
Court for the District of Connecticut and the Statewide Grievance
Committee for the State of Connecticut Judicial Branch, which may
have an interest in, or information relevant to, the present
matter. We request that, to the extent permitted by the relevant
rules and statutes, those grievance committees provide this
11
Court's Comrrlittee on Admissions and Grievances with all such
relevant information, including complaints led against Einhorn,
responses sUbmitted by Einhorn, transcripts of any proceedings,
recommendations concerning dispositions, and dispositive orders.
In sum, we ask for all pertinent information, whether public or
private, and authorize couns to this panel and representatives
of this Court's Committee to make any further arrangements that
may be necessary. We ask that any such information be delivered
directly to this Court's Committee at [address omitted].
Finally, we request that all recipients of the present order
treat it as confidential.
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk
By: /s/~-------------
Michael Zachary
Counsel to the Grievance Panel
12
APPENDIX 3
August 2010 Report of the Committee
on Admissions and Grievances
REPORT & RECOMMENDATION
In re Jonathan Einhorn, No. 08-90123-am
I. Introduction
By Order dated July 7,2009, the United States Court of Appeals for the Second Circuit
(the "Court") referred Jonathan Einhorn to the Committee on Admissions and Grievances (the
"Committee") for investigation and the preparation of a report regarding possible disciplinary or
other corrective measures.! See Second Circuit Local Rule 46(h).
The July 7, 2009 Order raises concerns with respect to numerous cases in which Mr.
Einhorn defaulted. Several of those defaults resulted in dismissals, while many others required
Court personnel to issue repeated warnings of the expiration of previously-extended deadlines.
At least two defaults resulted in orders to show cause as to why Mr. Einhorn should not have
been sanctioned.
Based on the testimony adduced at the hearing and the other documentary evidence, the
Committee recommends that Einhorn be publicly reprimanded for his conduct. The following
constitutes the Committee's report and recommendation to impose discipline on Einhorn.
I On October 29, 2008, the Circuit issued an Order to Show Cause as to "Why Disciplinary or Other Corrective
Measures Should Not Be Imposed." In its Order, the Court expressed concern that Attorney Einhorn had failed to comply
with Court orders and rules. Einhorn's response to the Circuit's Order, dated November 18,2008, denied the specific
allegations of default noted by the Circuit. Thus, the Circuit referred the matter to the Committee for investigation.
!
23257878v1
II. Procedural Background
On August 4,2009, this Committee issued an Order to Show Cause regarding Einhorn's
conduct as alleged in the Court's referral order and giving notice of a hearing. Mr. Einhorn
submitted a written response, dated October 1,2009, and a supplemental response, dated January
19,2010, both of which the Committee has reviewed. At the request of Mr. Einhorn, the
Committee extended the original hearing date to April 6, 2010.
The hearing held on April 6, 2010 was conducted by Committee members the Hon.
Howard Levine, Paul Cumin, and James Glasser. William F. Dow III, Esq. of New Haven,
Connecticut appeared on behalf of Mr. Einhorn. No witnesses were present.
At the close of the hearing, Mr. Dow notified the Committee that he would communicate
his intent with respect to the filing of a post-hearing submission within five business days. No
additional response was filed.
III. Factual Background
The following facts are taken from Court records, the respondents' submissions, and the
testimony of April 6, 2010.
After graduating from University of Connecticut School of Law in 1973, Mr. Einhorn
was admitted to the District Court in the State of Connecticut in 1974. He was admitted to the
Second Circuit Court of Appeals in 1976 and to the United States Supreme Court in 1979. Mr.
Einhorn is a sole practitioner. His practice consists predominantly of criminal work, and he
assumes several cases a year through the CJA referral process. Mr. Einhorn has never been
disciplined by any Court or Committee, is in good standing with all bars of which he is a
member, and has never been the subject of a grievance filed against him in the District Court or
the Court of Appeals.
The subject of the Referral Order and the investigation by this Committee was the
frequency of Einhorn's missed deadlines or "defaults" in cases before the Circuit and his initial
written response to the Court's October 29,2008 Order to Show Cause in which he denied any of
the instances of default raised by the Circuit. He appeared to be under the mistaken belief that a
"default" involved a formal entry made by the Court. To the contrary, as explained in the
Circuit's Referral Order, a default occurs when an attorney fails to file a document by the
deadline specified in an order or rule of the Court, and no formal entry on the docket is required.
During the testimony he provided at the April 6th hearing, Mr. Einhorn admitted his
misunderstanding and apologized to the Committee for denying the instances raised by the
Circuit. He did not contest any of the facts detailed by the Circuit. We found Mr. Einhorn
credible.
IV. Legal Standard
2
23257878v1
The Rules of the Committee on Admissions and Grievances for the United States Court
of Appeals for the Second Circuit provide:
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 unbecoming a member of
the bar.
Committee Rule 4; see also Fed. R. App. R. App. P. 46(c) ("[AJ court of appeals 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."). "Conduct unbecoming a member of the bar" includes "conduct
contrary to professional standards that show an unfitness to discharge continuing obligations to
clients or the courts, or conduct inimical to the administration of justice. More specific guidance
is provided by case law, applicable court rules, and 'the lore of the profession,' as embodied in
codes of professional conduct." In re Snyder, 472 U.S. 634, 645 (1985).
Because Mr. Einhorn was a member of the bar of Connecticut during the time period at
issue, the Connecticut Rules of Professional Conduct (the "Rules") also apply. Two sections are
of particular relevance in this matter. First, the Rules state that a lawyer "shall provide
competent representation to a client. Competent representation requires the legal knowledge,
skill, thoroughness and preparation reasonably necessary for the representation." See CT Rules
of Prof I Conduct R. 1.1. Second, a lawyer "shall act with reasonable diligence and promptness
in representing a client." See CT Rules of Prof I Conduct R. 1.3. 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
of W. 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 of Kraft,
543
N.Y.S.2d 449 (N.Y. App. Div. 1989), In re Bithoney,
486 F.2d 319 (lstCir. 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 fonns of "lack of diligence" and "lack of
competence." ABA Standards §§ 4.4, 4.5.
"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
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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.
V. The Alleged Misconduct
The Court's July 7, 2009 Order raised concerns about the functioning of Einhorn's
practice and his frequent failure to meet deadlines. According to the referral order, at least four2
of Mr. Einhorn's cases were dismissed due to his repeated failure to timely file briefs or other
documents with the Court, sometimes after requesting and being granted extensions of time. The
four cases in which Einhorn"s failure to timely file briefs resulted in dismissal were United
States v. Tate, 06-4460-r; United States v. Artis, 04-4330-cr; United States v. Cartelli,05-1294-
cr; and United States v. Jones (Nunley), 03-1276-cr. In Tate and Cartelli, the dismissals followed
several extensions and subsequent failures by Einhorn to comply with prior briefing orders. In
Nunley, Einhorn mistakenly believed he had been relieved by the Court in August 2005.
However, this explanation does not comport with Einhorn's requests for extensions oftime,
which were granted, in 2006. Each of these cases was later reinstated upon motions, and Einhorn
did eventually file briefs in all four cases.
In addition to the four cases that were dismissed, Einhorn defaulted in 10 additional cases before
the Circuit: United States v. Yandow, 04-1152-cr; Brown v. Area Cooperative, 03-7265-cr;
United States v. Brewer (Thompson), 04-2936-cr; United States v. 32 Medley Lane, 05-2969-cv;
United States v. Torres, 05-0709-cr; United States v. Reed, 04-3899-cr; United States v.
Alejandro, 02-1538-cr; United States v. Luna, 07-3018-cr; United States v. Riccitelli, 05-2735-cr;
and United States v. Frankel, 06-1752-cr. Many of these instances of default followed several
extensions and notifications by Court personnel that he missed filing deadlines. The Order also
raised concern over Einhorn's initial response to the Circuit's Order to Show Cause, in which
Einhorn mistakenly denied any instance of default. Other than his numerous defaults, the Court's
referral order alleged no further misconduct on Einhorn's part, and this Committee is not aware
of any other potential misconduct.
A. The Duty Violated
2 The October 2008 Order attributed a fifth default dismissal to Einhorn in Community Television v. Caruso, 00-
9117-cv. As the Court notes in its Referral Order, this allegation was erroneously attributed to Einhorn, since the
dismissal actually occurred six days before he filed his notice of appearance in the case.
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Einhorn 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. Einhorn 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 CT Rules of Prof I Conduct R. 1.1, 1.3, and that his
conduct was "unbecoming a member of the bar," Fed. R. App. P. 46(c), and "inimical to the
administration of justice," In re Snyder, 472 U.S. at 645.
B. The Lawyer's Mental State
Einhorn admitted full responsibility for his filing errors. He explained that the pattern of
late filings began with what he believed to be an initial acceptance of a late submission by the
Court. Thereafter, Mr. Einhorn habitually filed briefs and other Court documents past the filing
deadline, never intending harm to his clients or disrespect to the Court.
Einhorn also expressed deep remorse for his initial response to the Circuit's Order to
Show Cause, in which he mistakenly denied any instance of his default. See Hearing Transcript
at 6-10. He explained that he never intended to mislead the Court and now fully understands the
nature of his misconduct. He even conceded that his conduct warrants some form of sanction.
At his hearing, Einhorn testified, "I know certainly I deserve some sanction for my conduct. And
I'm an adult and ready to take it, but I would like to continue before the Second Circuit."
Hearing Transcript at 10.
C. Actual or Potential Injury
Einhorn guaranteed that none of his clients suffered any prejudice due to his mistakes and
assured the Committee that he would lighten his caseload so that he could ensure competence
going forward. He explained, "No harm was done to any client. Every brief that was supposed
to be filed was filed. It was filed; some out of time. There were some dates missed." Hearing
Transcript at 4. After a careful review of the record, the Committee concurs with Einhorn's
assurance that his clients suffered no actual injury. In each of the cases where dismissals were
ordered, the appeals were reinstated by motion and briefs were duly filed.
D. Mitigating Factors
There are no aggravating factors here. However, several mitigating factors are present.
Einhorn's conduct is significantly mitigated by his evident remorse, and by his apparent lack ofa
selfish motive. ABA Standards § 9.32 (b), (1). In addition, Einhorn does great service to the
District Court in Connecticut and indigent defendants by assuming a great number of pro bono
matters. In addition, he was appointed a Special Master in the United States District Court in
Connecticut in a number of cases and even received a certificate of appreciation in recognition of
his service as a Settlement Special Master. His conduct is also mitigated to a substantial degree
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by the efforts he has made to improve his practice, which is made up chiefly of criminal cases.
Indeed, Einhorn explained to the Committee that he no longer takes CJA appeal-only cases and
limits his CJA appeals to those he has handled at the trial level. He also explained that he
recently adopted a new three-tier calendaring system in his office, pursuant to which his paralegal
records deadlines in three separate and distinct places with reminders set well in advance of
upcoming deadlines. Due to these genuine efforts to correct his previous errors, Einhorn has not
defaulted in any case since the Court's 2008 Order to Show Cause. Finally, Mr. Einhorn's
conduct is mitigated by his apparent good-faith willingness to cooperate with the Committee and
with the Court. ABA Standards § 9.32 (e).
VII. Recommendation
Upon clear and convincing evidence, the Committee finds that disciplinary action is
warranted in this case based on "conduct unbecoming a member of the bar." Fed. R. App. P.
46(c). Under the circumstances, the Committee recommends that Mr. Einhorn be publicly
reprimanded for his failures as set forth herein.
Respectfully Submitted,
r J S_w~/~
'
Member of the Committee
August 31,2010
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