Filed: Jun. 06, 2012
Latest Update: Feb. 12, 2020
Summary: - - - - 10-90061-am In re: Agola l O-9 006 1-am In re Ago la 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 (WIT
Summary: - - - - 10-90061-am In re: Agola l O-9 006 1-am In re Ago la 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..
More
-- --- -- -----
10-90061-am
In re: Agola l O-9 006 1-am
In re Ago la
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 6 th day of June, two thousand twelve.
PRESENT:
Jose A. Cabranes,
Robert D. Sack,
Richard C. Wesley,
Circuit Judges.
lO-90061-am
In re Christina A. Agola,
Attorney. ORDER OF
GRIEVANCE PANEL
For Christina A. Agola: Christina A. Agola, Esq.,
Brighton, New York.
1 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
2 DECREED that the recommendations of this Court's Committee on
3 Admissions and Grievances ("the Committee") are adopted, and
4 Christina A. Agola is PUBLICLY REPRIMANDED for the misconduct
5 described in the Committee's report.
1 I. Summary of Proceedings
2 By order filed in July 2010, this Court referred Agola to the
3 Committee for investigation of the matters described in that order
4 and preparation of a report on whether she should be subject to
5 disciplinary or other corrective measures. During the Committee's
6 proceedings, Agola 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 January 2011.1 Presiding over the hearing were
9 Committee members James I. Glasser, Paul C. Curnin, and the
10 Honorable Howard A. Levine. In December 2011, the Committee tiled
11 with the Court the record of the Committee's proceedings and its
12 report and recommendations. Thereafter, the Court provided Agola
13 with a copy of the Committee's report, and Agola responded.
14 In its report, the Committee concluded that there was clear and
15 convincing evidence that Agola had engaged in misconduct warranting
16 the imposition of discipline. Report at 11. Specifically, the
17 Committee found that Agola had failed to comply with this Court's
18 scheduling orders and deadlines in twenty-one cases, causing the
19 dismissal of seven cases based on her default, and that her conduct
20 in district court had been criticized by three district court judges
I Agola was represented by counsel in these proceedings
until September 2011, at which time she commenced representing
herself pro se.
2
1 and a magistrate judge. 2 Id. at 7-9. After considering various
2 aggravating and mitigating factors,
id. at 9-11, the Committee
3 recommended that Agola be publicly reprimanded and directed to
4 comply with certain reporting and continuing legal education ("CLE")
5 requirements, id. at 11-13 . In her response to the Committee's
6 report, Agola waived any objection to the report, and submitted a
7 status report as recommended by the Committee.
8 II. Disposition
9 Upon due consideration of the Committee's report, the
10 underlying record, and Agola's submissions, it is hereby ORDERED
11 that Agola is PUBLICLY REPRIMANDED for the misconduct described in
12 the Committee's report, and directed to comply with the reporting
13 and CLE requirements described on pages 12 and 13 of the report.)
14 In the event that any of Agola's periodic reports are not timely
15 filed or reveal deficiencies not justified by exigent circumstances,
2 As noted in this Court's July 2010 referral order, we are
not imposing additional discipline on Agola for the district
court conduct considered by the Committee. However, Agola's
district court conduct, in conjunction with her conduct in this
Court, is relevant to whether she is able to meet her future
professional obligations to this Court. See In re Jaffe, 585
F.3d 118, 121 (2d Cir. 2009) (" [E]ven where 'discipline' is not
appropriate, the Court may nonetheless determine, based on an
attorney's prior behavior, that she will be unable to conform her
future conduct to expected professional norms, and, as a result,
that her ability to practice in this Court should be barred[, or
another sanction or warning imposed,] as a corrective measure in
order to protect the public, other attorneys and litigants, the
Court, and the administration of justice.").
3 The commencement date for the first report is modified
the period covered by that report is to begin November 1, 2011,
just prior to the filing of the Committee's report in this Court.
3
1 or Agola fails to complete the required CLE hours, the Committee may
2 recommend the imposition of additional discipline, including but not
3 limi ted to suspension from this Court, without hearing further
4 testimony.
5 In reaching this decision, we rely heavily on the mitigating
6 factors noted by the Committee. Among other things, Agola herself
7 brought potentially negative information to the Committee's
8 attention, provided a detailed response to each issue, successfully
9 demonstrated that little or no prejudice resulted from the default
10 dismissals, and made significant changes in her practice in order to
11 avoid similar issues arising in the future. Additionally, the
12 affidavits and testimony of her clients were helpful in
13 understanding the context of the conduct at issue and in gauging her
14 value to the profession and ability to comply with professional
15 norms in the future.
16 The text of this panel's July 2010 order and the Committee's
17 report are appended to the present order for purposes of
18 disclosure of the order by Agola and the Clerk of Court. The
19 Clerk of Court is directed to release this order to the public by
20 posting it on this Court's web site and providing copies to
21 members of the public in the same manner as all other unpublished
22 decisions of this Court, and to serve a copy on Agola, this
23 Court's Committee on Admissions and Grievances, the attorney
24 disciplinary committee for the New York State Appellate Division,
4
1 Fourth Department, and all other courts and jurisdictions to which
2 this Court distributes disciplinary decisions in the ordinary
3 course. 4
4
5 FOR THE COURT:
6 Catherine O'Hagan Wolfe, Clerk
7
8
9
10
11
12 By: Michael Zachary
13 Counsel to the Grievance Panel
14
15
16
17
18
19
20
21
22
23
24
25
26
27
Counsel to this panel is authorized t o provide, upon
4
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 .
5
1 APPENDIX 1
2 Text of July 2010 Referra~ Order
3
4 For the reasons that follow, Christina A. Agola is referred
5 to this Court's Committee on Admissions and Grievances for
6 investigation of the matters described below and preparation of a
7 report on whether she should be subject to disciplinary or other
8 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 A review of the 40 cases in this Court in which Agola is
14 listed as an attorney of record reveals that, in 21 of her cases,
15 Agola defaulted by failing to file a brief or other required
16 documents by the deadline set in this Court's rules or orders; of
17 those 21 defaulted cases, seven were dismissed as a result of
18 Agola's default. See cases docketed under 10-1285-cv (failure to
19 file Forms C and D and notice of appearance form; defaults cured
20 after notification); 10-0756-cv (failure to file Forms C and D,
21 default cured after notification; contacted multiple times about
22 failure to file index to the record); 09-5253-cv (failure to file
23 Forms C and D, default cured after notification; later failure to
24 file scheduling notification letter); 09-4283-cv (failure to file
25 Forms C and D, and later failure to file brief; defaults cured
26 after notification); 09-4170-cv (failure to file Forms C and D,
27 default cured after notification); 09-3484-cv (same); 09-2317-cv
28 (same); 09-1299-cv (dismissed based on failure to file Forms C and
29 D; later reinstated); 09-0818-cv (failure to file Forms C and D,
30 default cured after notification; failure to file brief, appeal
31 withdrawn after notification); 09-0503-cv (failure to file Forms C
32 and D, default cured after notification; appeal later dismissed
33 based on failure to file brief); 09-0235-cv (failure to file Forms
34 C and D, default cured after notification); 09-0026-cv (failure
35 to file brief, default cured after notification) i 08-4799-cv
36 (appeal dismissed based on failure to file Forms C and D;
37 dismissed a second time based on failure to file brief); 08-2363
38 cv (appeal dismissed based on failure to file Forms C and D;
39 motion to reinstate denied); 08-2361-cv (failure to file Forms C
40 and D, default cured after notification); 08-1870-cv (L) (same);
41 07-4970-cv (L) (same); 05-4049-cv (appeal dismissed based on
42 failure to file brief, after four extensions were granted); 03
43 7826-cv (appeal dismissed based on failure to file Forms C and D;
44 appeal later reinstated and withdrawn by stipulation of the
45 parties); 03-7911-cv (failure to file brief, appeal withdrawn
46 after notification); 03-6090-cv (appeal dismissed based on
47 failure to file brief) .
6
1 In addition, Agola's conduct has been criticized by at least
2 two judges sitting in the Western District of New York. In
3 S~llivan v. New York State Department of Corrections, Judge
4 Slragusa stated that he was taking the extraordinary step of
5 identifying Agola in the background section of his decision
6 dismissing Agola's complaint and denying her motion to amend the
7 complaint because her "many errors ... necessitate [d) a frame of
8 reference." 2009 WL 3189869, *3, n.11 (W.D.N.Y. 2009). Judge
9 Siragusa found, inter alia, that Agola had failed to: (1) "proffer
10 any explanation" for delaying her motion "almost two years after
11 the scheduling deadline had passed"; (2) raise any causes of
12 action over which the court had subject matter jurisdiction; or
13 (3) "supply any facts in support of [her Family Medical Leave Act
14 and 42 U.S.C. § 1981 claims]."
Id. at *5-7. The court then
15 stated the following in a footnote, citing three other cases where
16 Agola's pleadings had been deficient:
17
18 Ms. Agola, in the preliminary introduction of her
19 proposed amended complaint, references a violation of
20 the Family Medical Leave Act of 1993 (29 U.S.C. § 2601).
21 However, subsequent to the introduction, she does not
22 raise any cause of action under the Act for the Court to
23 address. Additionally, Ms. Agola makes a 42 U.S.C. §
24 1981 claim but fails to supply any facts in support of
25 that claim. This, in the Court's experience, is typical
26 of Ms. Agola's "copy and paste" document preparation
27 method, on which the Court has previously commented.
28 See White v. Eastman Kodak Co., No. 06-CV-6493-CJS, 2009
29 U.S. Dist. LEXIS 45335, 2-3, n. 1 (W.D.N.Y. May 29,
30 2009); Guarino v. St. John Fisher College, No. 06-Cv
31 6251-CJS,
2008 U.S. Dist. LEXIS 25157,
2008 WL 850333
32 (W.D.N.Y. Mar. 28, 2008), vacated on reconsideration by
33 Guarino v. St. John Fisher College, [553] F.Supp.2d 252,
34 n. 2, 233 Ed. Law Rep. 705 (W.D.N.Y. Apr. 16, 2008)
35 ("The obvious objective of Local Rule 56.1 is to
36 facilitate the Court's resolution of summary judgment
37 applications. However, Plaintiff's blatant disregard of
38 the 'short and concise' requirement of Local Rule 56.1
39 and her submission, instead, of 338 pages in response to
40 Defendant's 12-page statement of facts, has had the
41 opposite effect and subverted the Rule's purpose."); see
42 also D'Eredita v. ITT Industries, No. 07-CV-6185-CJS,
43 2009 U.S. Dist. Lexis 36496, *2, 73 Fed. R. Serv.3d
44 (Callaghan) 557 (W.D.N.Y. Apr. 29, 2009) (confusing
45 complaint clarified by memorandum of law in opposition
46 to summary judgment) .
47
48 Id. at *7, n. 18. In a fifth case, Judge Siragusa sanctioned
7
1 Agola's law office $5,000 for pursuing a claim "that was clearly
2 not warranted by the facts of th[e] case, or by existing law or a
3 nonfrivolous argument for the extension, modification, or reversal
4 of existing law or the establishment of new law." Geiger v. Town
5 of Greece, 2008 WL 728471, *5 (W.D.N.Y. Mar. 18, 2008). In a
6 sixth case, Judge Siragusa denied Agola's motion to amend because
7 she had failed to demonstrate good cause for filing the motion
8 eight months after the deadline to amend pleadings had passed.
9 See Glover v. Jones,
2006 WL 3207506, *4 (W.D.N.Y. 2006). See
10 also O'Reilly v. Marina Dodge, Inc.,
2010 WL 2553458, *9 (W.D.N.Y.
11 June 22, 2010) (Siragusa, J.) (evidence precluded as sanction for
12 failure to disclose earlier) i Schratz v. Potter,
2008 WL 5340992,
13 *9 (W.D.N.Y. Dec. 19, 2008) (Siragusa, J.) (same).
14
15 Judge Larimer has criticized Agola's conduct in at least two
16 cases. In his May 2010 decision dismissing a complaint she had
17 filed, he noted her mysterious reference to Title VII, the Equal
18 Pay Act, and the Fair Labor Standards Act, none of which had any
19 relevance to the case. See Sullivan v. Chappius,
2010 WL 181~647,
20 *1 (W.D.N.Y. 2010). Referring to Judge Siragusa's opinion in
21 Sullivan v. New York State Department of Corrections, Judge
22 Larimer reasoned that such references were "probably ...
23 attributable to what Judge Siragusa [had] aptly described as 'Ms.
24 Agola's 'copy and paste document preparation method,' which
25 apparently involves lifting and reusing parts of pleadings and
26 other papers from unrelated cases, without bothering to check to
27 make sure that they are accurate and relevant to the case at bar."
28
Id., at *4, n. 4 (citing
2009 WL 3189869, at *7, n.18).
29
30 In the second case, Judge Larimer dismissed the plaintiffs'
31 complaint filed by Agola, for failure to sufficiently plead their
32 claims, and denied Agola's motion to amend the complaint, finding
33 that the proposed amendment was frivolous and brought in bad
34 faith. See Johnson v. University of Rochester Medical Center, 686
35 F. Supp. 2d 259, 270-71 (W.D.N.Y. 2010) (noting that the publication
36 of an allegedly defamatory document "had been procured and
37 orchestrated entirely by [Agola] ," a fact that was "glaringly
38 omitted" from the proposed amended complaint). Agola was later
39 sanctioned $8,399 for that conduct. See Johnson v. University of
40 Rochester Medical Center,
715 F. Supp. 2d 427, 430-31 (W.D.N.Y. June
41 3, 2010) ("Given the bad faith inherent in counsel's attempt to
42 place facts in a pleading which she knew firsthand to be
43 misleading at best and utterly untrue at worst, and counsel's
44 inexplicable refusal to withdraw the frivolous claims for nearly a
45 year, even after their baselessness had been precisely identified
46 and briefed by defendants, I find that an award of monetary
47 sanctions is appropriate in this case."). See also Barkley v.
48 Pennyan School Dist., 2009 WL 2762272, *1 n.1 (W.D.N.Y. Aug. 25,
8
1 2009) (Telesca, J.) (criticizing response to summary judgment
2 motion) .
3
4 We do not intend to impose additional discipline on Agola for
5 the district court conduct described above. We assume that the
6 sanctions and criticism Agola received for that conduct fully
7 addressed all of the district court's concerns, and that each
8 sanction or criticism constituted the final sanction in each
9 instance. However, that conduct, in conjunction with her conduct
10 in this Court, remains relevant to whether Agola is able to meet
11 her future professional obligations to this Court. "[E]ven where
12 'discipline' is not appropriate, the Court may nonetheless
13 determine, based on an attorney's prior behavior, that she will be
14 unable to conform her future conduct to expected professional
15 norms, and, as a result, that her ability to practice in this
16 Court should be barred[, or another sanction or warning imposed,]
17 as a corrective measure in order to protect the public, other
18 attorneys and litigants, the Court, and the administration of
19 justice." In re Jaffe, 585 F.3d 118, 121 (2d Cir. 2009).
20
21 Upon due consideration of the matters described above, it is
22 hereby ORDERED that Christina Agola is referred to this Court's
23 Committee on Admissions and Grievances for investigation and
24 preparation of a report, pursuant to Federal Rule of Appellate
25 Procedure 46, this Court's Local Rule 46.2, and the Rules of the
26 Committee on Admissions and Grievances. The Committee is
27 authorized to share information, and/or hold joint proceedings,
28 with other disciplinary committees, as long as confidentiality is
29 maintained.
30
31 [text redacted]
32
33 FOR THE COURT:
34 Catherine O'Hagan Wolfe, Clerk
35
36 [seal]
37
38 By: Michael Zachary
39 Counsel to the Grievance Panel
9
1
APPENDIX 2
2
3
Report of the Committee
4
on Admissions and Grievances
REPORT & RECOMMENDATION
Re: In re Christina A. Agola, # IO-90061-am
J. Introduction
By Order dated July 8, 2010, the United States Court of Appeals for the Second Circuit
("the Court") referred Christina A. Agola to this Committee for investigation and for preparation
of a report and recommendation addressing whether Attorney Agola should be subject to
discipline, or other corrective measures, for conduct cited in the Court's Referral Order. S~e
Referral Order.
The Court's Referral Order directed the Committee to consider Attorney Agola' s failure
to comply with scheduling orders of the Court in 21 of 40 cases in which she appeared as counsel
of record, and the resulting dismissal of seven of those cases because of defaults. In addition, the
Court identified cases from the Western District of New York where Judges of that court were
openly critical of Attorney Ago]a's methods and practice oflaw in particularly identified cases:
The Referral Order observed that Attorney Agola's conduct in the District Courts, "in
conjunction with her conduct in this Court" is "relevant to whether Agola is able to meet her
future professional obligations to this Court." See Referral Order at 4 (citing In re Jaffe, 585
F.3d 118, 121 (2d Cir. 2009)).
Pursuant to the Court's Referral Order, a hearing was held before a panel of the
Committee on January 27, 2011. Based on testimony adduced at that hearing, the testimony of a
character witness, affidavits of character witnesses, documentary evidence, including records of
the Court, as well as submissions by Attorney Agola and her counsel, the Committee finds that
J
Attorney Agola's conduct warrants discipline and recommends a public reprimand, that she be
required to attend Continuing legal Education ("ClE") courses over-and-above the ClE hours
required for all attorneys admitted in New York State, and that she be subject to reporting
requirements as outlined below.
The followin g constitutes the Committee's report and recommendation in support of the
recommended sanction.
II. The Disciplinary Proceeding
The Committee provided Attorney Agola with notice and a copy of the Second Circuit's
Referral Order by letter dated August 9, 2010. Attorney Agola was notified of her right to a
hearing, her right to representation by counsel, and was directed to respond to the allegations of
the Referral Order within 30 days. Attorneys William Savino and David Wilck of Rivkin Radler
llP , entered appearances on behalf of AttorneO Agola and requested a brief extension of time to
y
respond to the all egations. The request for an extension of time was granted and, on October 4,
2010, counsel submitted a Statement in Response to the Notice of Referral (" Response"). The
Response was supplemented by submission dated January 17,2011 ("Supp. Response").
A hearing was originally scheduled for November 29,2010 but was continued at the
request of counsel for Attorney Agola. The adj ourned date was set for January 27, 2011, and on
that date a hearing was conducted by Committee members Judge Howard A. levine, Paul C.
Cumin, and James 1. Glasser. Attorney Agola was represented by Attorneys Savino and Wilck.
Attorney Agola testified on her own behalf, presented the testimony of one character witness,
and both Attorney Agola and her counsel had an opportunity to address the allegations of the
Court ' s Referral Order.
Following the hearing, Attorney Agola was provided a copy of the transcript and was
given an opportunity to submit a post-hearing brief. On March 7, 2011, Attorney Agola
submitted a post-hearing brief. That brief included, inter alia, character and professional
references from Messrs. Casciani, Green, and Elardo.
The Committee's factual findings are based on the foregoing, as well as submissions
made by the Clerk of the Court of the Western District of New York on behalfofDistrict Judges
Michael TeJesca, David larimer and Charles J. Siragusa; the Sworn Declaration of Magistrate
Judge Jonathan W. Feldman; and a letter submitted by Monroe County Court Supreme Court
Judge John DeMarco.
III. Factual Background
A. Attorney Christina Agola's Legal Education and Practice of Law
Attorney Agola graduated from the University of Buffalo Law School in 1992 and was
admitted to the Bar of the State of New York in 1994. Attorney Agola is admitted to practice in
the United States District Courts for the Western District of New York and Northern District of
2
I New York, the United States Court of Appeals for the Second Circuit, and the United States
Supreme Court.
I Attorney Agola started her law practice immediately after her admission to the Bar and,
during the early years, a substantial portion of her practice was devoted to pro bono matters.
I Transcript of Jan. 27, 20 I J Hearing ("Tr. ") at 20. Her practice has evolved and grown over the
years; now her practice is predominantly devoted to the representation of persons alleging civi I
rights violations and employment discrimination. Attorney Agola testified that her practice
grew, particularly between 2008 and 2010, and that "perhaps [her] practice got away from [her]."
I Tr. at 23. In recognition of the shortcomings of her practice, Attorney Agola has changed the
staffing of her office by relieving certain employees of their duties and by hiring additional
lawyers and other staff. Response 4-5 .
I
Attorney Agola reported that there have been nine grievances filed against her with the
New York State Attorney Grievance Committee and one with the Monroe County Bar
I Association . Attorney Agola reported that she has never been disciplined or sanctioned in any
matter. The Committee' s own investigation confirmed that, to date, Attorney Agola has not been
di sciplined or sanctioned. I
I B. The Referral Order
I
The Court referred Attorney Agola to the Committee because, as the Court observed,
" [a) review of the 40 cases in this Court in which Agola is listed as an attorney of record reveals
that, in 21 of her cases, Agola defaulted by failing to file a brief or other required documents by
the deadline set in this Court's rules or orders; of those 21 defaulted cases, seven were dismissed
I
as a result of Agola's defaull." Referral Order at 2.2 The Court also noted that "Agola 's conduct
has been criticized by at least two Judges sitting in the Western District of New York ." Referral
Order at 2. The Court directed the Committee to consider Attorney Agola's conduct in the
I District Courts because it is "relevant to whether Agola is able to meet her future professional
obligations to this Court." See Referral Order at 4 .
I c. Information Obtained from the District Courts
Pursuant to the Referral Order, the Committee received information through the Clerk of
Court from three Judges of the United States District Courts for the Western District of New .
York and a Magistrate Judge from the Northern District of New York. The information received
recounts shortcomings of Attorney Agola's practice of law before those courts.
I The Committee' s investi gation identified six additional complaints filed against Attorney Agola that were not
disclosed by Agola. Five of the additional complaints were filed in 2002 or earlier and were destroyed pursuant to
New York State record retention regulations . The sixth complaint, also destroyed pursuant to state regulations, was
closed as not stating a complaint. The Committee was able to detennine that Attorney Agola was not disciplined or
sanctioned in connection with any of these additional six matters. The Committee has determined not to consider
that these additional grievances were not disclosed by Attorney Agola because records pertaining to these matters
had been destroyed and because they did not result in discip line.
2 Attorney Agola and her coun sel represented to the Committee that at the time of the Referral Order she was
actually counsel of record in 52 cases, not 40 cases.
3
More particularly, United States District Court Judge Charles J SI'rag . d I
. . . usa cIte severa
cases m whIch Attorney Agola was counsel of record as illustrative of what h . d
, . e vlewe as
Attorne~ Agola s deficIent performance. For example, in Sullivan v. New York St t 0 't f
· d"
C orrec t IOns, J ud ge S Iragusa Ismlssed a complaint filed by Attorney Agola and d a. ed ep 0.
, eme a motIon
to am~nd. The C?urt/ound that Attorney Agola failed to: "( I) 'proffer any explanation' for
delaymg her mOhon almost two years after the scheduling deadline had passed" (2) .
· . , raIse any
causes 0 f actIOn over whIch the court had subject matter jurisdiction; or (3) 'supply any facts in
support?f [her Family M~dical Leave Act and 42 'V.S.c. § 1981 claims]. '" Similarly, in
Emmerlmg v. Town of RIchmond, Judge Siragusa found that Attorney Agola (1) failed to cite
the correct standard for a motion to dismiss; (2) failed to provide a short and plain statement
under FRCP 8; and (3) implausibly argued that a repeated reference to an incorrect date was a
typograp.hical en:0r. In Kleehammer v. Monroe County, Judge Siragusa found that Attorney
Agola faded to cIte the correct standard for a motion to dismiss and reminded Attorney Agola of
the requirements of Rule II and questioned her "good faith basis for pleading the retaliation
claim." In two other cases, Judge Siragusa precluded evidence as a sanction for Attorney
Agola's failure to disclose evidence in a timely manner. Referral Order at 3. Perhaps most
disturbing,in Rojas v. Diocese of Rochester, Judge Siragusa found that Attorney Agola
submitted "sham evidence" in the hope of defeating summary judgment.
The Committee also received a letter from Judge David Larimer through the Clerk of
Court. Judge Larimer described eight cases in which he felt Attorney Agola's practice was
deficient. Judge Larimer found that, "Ms. Agola on more than one occasion demonstrated a
disregard for her obligations under Rule 1 I, with respect to both factual allegations and legal
claims and theories that she has made before this Court." The court underscored what it termed
Attorney Agola's "cavalier attitude" in alleging factual matters. Judge Larimer was also critical
of Attorney Agola's "cut and paste" pleadings and motion practice, which resulted in statements
in pleadings that were obviously not applicable to the case at issue. Judge Larimer specifically
noted that he had brought his various observations about Attorney Agola's deficiencies to her
attention in the past but the same deficiencies persisted.
The Clerk of Court also forwarded a decision and order by Judge Michael Telesca in Rice
v. Wayne County, 09 Civ. 6391 (July 26, 2010). In that case the court dismissed the complaint
without prejudice for failure to adequately allege a cause of action under the Family and Medical
Leave Act and the New York Human Rights Law. When Attorney Agola filed an amended
complaint it suffered from the same deficiencies as the original complaint. Judge Telesca made
note of both "substantive and non-substantive errors" in the complaint When Attorney Agola
filed a motion pursuant to Rule 60(b), the court cautioned that "plaintiffs counsel is advised that
in the future, such frivolous arguments may be subject to sanctions." The court stated: "I
emphasize that the frivolous and legally unsubstantiated reasons upon which piaintiffs attorney
Agola bases her motion for reconsideration exemplifies both a fundamental misunderstanding of
the law and gross professional ineptitUde in the representation of her client."
Although not part of the referral from the Court, Magistrate Judge Feldman of the
Western District of New York was subpoenaed by Attorney Agola: and was asked to provide his
opinion as to Attorney Agola's fitness and character as an attorney. In response, Magistrate
4
Judge Feldman submitted a sworn declaration in which he stated that Attorney Agola was a
frequent advocate in his court, predominantly in federal civil rights and employment
discrimination matters. Judge Feldman noted that at the time his declaration was made, Attorney
Agola was counsel of record in 141 pending cases in the Western District of New York ; he was
the assigned MagistrateJudge in 57 of those cases. Judge Feldman stated that he has had many
opportunities to observe Attorney Agola and had more than an ample basis to form an opinion as
to her character and fitness to practice law. Judge Feldman stated that he is aware of the
opinions of his judicial colleagues concerning Attorney Agola' s deficiencies in her practice of
law in particular cases. Judge Feldman observed that "I agree with their views and all too often
have experienced the same deficiencies and carelessness in cases before me in which Ms. Agola
is an attorney for a party." Judge Feldman, however, attributed Attorney Agola's deficiencies to
the "business model she has chosen for her law practice." He observed that she accepts far too
many cases and as a consequence does not give clients the attention that is needed to effectively
prosecute their c'1aims. Judge Feldman noted that "by litigating so many cases at once, Ms.
Agola subjects herself to complying with scheduling orders in which it is unHkely, if not
impossible for her to meet deadlines, do adequate legal research, wri·te organized and coherent
briefs, and do the critical thinking which is essential to effective lawyering. Unfortunately,
despite ample opportunity, Ms. Agola is unwilling to change the way she decides to take cases."
Judge Feldman was of the view, however, that Attorney Ago'la has the lega l ability and
professional ethics to be a valuable member of the legal community. His view was based on
specific experiences where AttorneyAgola was forced to concentrate on a particular case owing
to requirements imposed on her by the court. Judge Feldman atso has had the opportunity to
observe Attorney Agola on trial. He opined that her trial skills were better than many lawyers
and, in his view, she had the ability to improve and be counted among the more highly skilled
trial lawyers. Moreover, based on his many opportunities to observe Attorney Agola together
with her clients, Judge Feldman thought that her clients respect her and trust her judgment.
Judge Feldman attributed many of Attorney Agola's problems to her case intake policies and was
of the view that " she will not be an effective lawyer unless and until she reduces her caseload."
The Referral Order made clear that the Second Circuit does "not intend to impose
additional sanctions on Agola for the district court conduct," but "that conduct, in conjunction
with her conduct in [the Second Circuit], remains relevant to whether Agola is able to meet her
future professional obligatio\i1s to [the Second Circuit)." The Committee has considered the
information received from the District Court Judges and Magistrate Judges for that purpose and
to assist the Committee's determination of the appropriate discipline and sanction.
IV. The Committee's Role and Standard of Review
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
responsibil ity of the state or other jurisdiction where the attorney
5
n:ai~ta~ns his or her principal office .... An attorney may also be subject to
disciplIne or other corrective measures for any failure to comply with a
Federal Rule of Appellate Procedure, a Local Rule of the Court an order
or other. i~s.truction of the Court, or a rule of professional cond~ct or
responsIbIlity of the COUl1, or any other conduct unbecoming a member of
the bar."
Committee Rule 4; see also Fed. R. App. P. 46(c) ("[A] 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 shows 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).
The Committee's "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) . If this burden is met, the Committee will then 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, in order to determine the
sanction, ifany, to recommend to the Court. See American Bar Association's Standards for
Tmposing Lawyer Sanctions ("ABA Standards") § 3.0. The Committee may recommend to the
Court's Grievance Panel a range of sanctions, including disbarment, suspension, public or
private reprimand, monetary sanction, removal from Q!:Q 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 Legal Standard for Identifying Misconduct
Courts have consistently treated neglect of client matters and ineffective or incompetent
representation as sanctionable conduct. See, ~ Gadda v. Ashcroft, 377 FJd 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); In re of Kraft, 543 N. Y.S.2d 449 (N. Y. App. Div. J989); In re Bithoney, 486
F .2d 319 (1 st Cir. 1973).
Such conduct is also sanctionable under the applicable professional rules and standards.
Because Agola's conduct at issue in this matter occurred both prior to and after the New York
Rules of Professional Conduct went into effect on April 1,2009 (the "Rules"), it is governed
both by the Rules and the New York Lawyer's Code of Professional Responsibility (the "Code").
There is a continuity of an attorney's responsibilities and ethical obligations under both the old
6
I
I
I and current frameworks and references are made to both the Rules and the Code. 3 Additionally,
the ABA Standards call for a range of sanctions from reprimand to disbannent for various fonns
I of "lack of diligence" and "lack of competence." ABA Standards §§ 4.4, 4.5. While not
binding, the ABA Standards provide additional guidance in this matter.
With respect to Attorney Agola's conduct that is subject to this Report and
I Recommendation, several provisions of the Code and Rules are applicable. The Code and the
Rules state that a lawyer shall not "[n]eglect a legal matter entrusted to the lawyer." D.R.6
101(A)(3); 22 N.y .e.R.R. § 1200.30(A)(3) (2008); Rules 1.3(b). The Code and the Rules also
I prohibit conduct that "adversely reflects on the lawyer's fitness as a lawyer." D.R. I-I 02( a)(7);
22 N.y.e.R.R. § 1200.3(A)(7); Rules 8.4(h). Additionally, a lawyer has a duty to represent his
or her client "zealously," D.R. 7-10 I, E.e. 7-1, and should "be punctual in fulfilling all
I professional commitments," E.C. 7-38. See Rule 1.3(a) ("A lawyer shall act with reasonable
diligence and promptness in representing a client."). This Court has also made clear in the
context of intentional defaults on scheduling orders, that "an appellant's counsel of record who
I determines that the appeal will not proceed for any reason is required to infonn the Court of the
situation and seek to either withdraw the appeal or withdraw as counsel. Counsel of record may
not end the representation of a client without taking affinnative action, or end an appeal by
I allowing its dismissal for lack of prosecution." In re Yan, 390 F. App'x. 18,21 (2d Cir. 2010).
VI. The Committee's Findings
I A. Failure to Comply with Scheduling Orders
As described in the Referral Order, Attorney Agola defaulted in 21 of 40 cases in the
I Court of Appeals. In seven of those 21 cases, the default resulted in dismissaL According to
Attorney Agola's written submission and testimony at the hearing, five of the seven dismissed
cases "were ultimately discontinued by the client." Response at 5-6, Tr. 45-46. Of the two
I remaining dismissed cases one was reinstated and ultimately decided on the merits. Response at
6; Tr. at 46. In the final case, the Court denied Attorney Agola's motion to reinstate, but
Attorney AgoJa has represented to the Committee that she was able to preserve certain of her
I client's claims in a companion case. Response at 6; Tr. 45-48.
In 14 of the 21 cases, Attorney Agola failed to comply with schedules and deadlines
I established by the Court; none of the 14 were dismissed as a consequence of these procedural
defaults. Response at 7. In six of these case, Attorney Agola cured all defects and the Second
Circuit issued a decision on the merits; in three of the cases, Attorney Agola cured all defects and
I the appeals remain pending; in five of the cases, Attorney Agola's clients decided not to proceed
with their appeals and formal stipulations of dismissal were filed. Response at 7.
Attorney Agola's response stated that she was in fact counsel of record in 52 cases in the
I Second Circuit at the time the Referral Order issued (the Referral Order identified 40).4 Attorney
3 References to the applicable provisions of the Code will be to the Disciplinary Ruks ("D.R.") and Ethical
I Considerations ("E.C.").
4 At the time of the hearing. Agola had been counsel of record in 60 total cases in the Second Circuit.
7
I
I
Agola's response and testimony at the hearing outlined her compliance with scheduling orders in
the 31 cases not directly addressed in the Referral Order. To her credit, Attorney Agola brought
to the Committee's attention two additional cases that were dismissed by the Second Circuit in
1999 and 2002 due to her non-compliance with scheduling orders. Response at 8. Attorney
Ago1a represented that in both those matters, her clients infonned her that they did not wish to
pursue their appellate remedies. Response at 8.
Attorney Agola offered two explanations for her failures to comply with scheduling
orders. First, she stated that her failures to comply with scheduling orders "were unintentional
and were the result of flaws in her >law office management which have since been corrected."
Response at 6. Attorney Agola testified that she now "gets it" and has taken steps "to avoid
lapses in her practice management." Tr. at 60; Response at 6. She also testified that she was not
aware that the late filing of Fonns C and D could result in discipline, and if she had been aware
of the possible consequence she "would have never let it happen." Tr. at 19.
Second, Attorney Agola was apparently not aware of her obligation to move to dismiss
an appeal and withdraw from a case when a client made a decision not to pursue appellate rights.
Attorney Agola testified that, going forward, when a client chose not to pursue an appeal, she
would move to dismiss the case. Tr. 51-52.
In her submission to the Committee, together with supporting documents, Attorney
Agola represented that the seven cases that were dismissed owing to her procedural defaults did
not result in prejudice to any of her clients. Response 5-9. Under·oath, Attorney Agola also
credibly testified to the same effect.
Attorney Agola represented to the Committee that she has implemented a new
calendaring system and has hired and trained staff to ensure compliance with Court rules and
deadlines. Attorney Agola asked the Committee to consider that she has been in compliance
with all deadlines and filing requirements of the Court since the date of the Referral Order. Tr.
54
During the hearing the Committee was concerned that Attorney Agola was placing blame
for her failure to comply with scheduling orders on her office staff. See,~, Tr. 20-22. But,
ultimately, the Committee was satisfied that Attorney Agola recognizes that responsibility for
compliance with Court Orders in cases where she is the counsel of record is ultimately hers, and
hers alone. See,~, Tr. 54.
B. Conduct in the District Courts
Attorney Agola acknowledged the criticism of the District Court Judges, although she did
not always agree with the criticism. She referred to the criticism as "pointed and harsh" and as
not fairly characterizing her and her practice. Tr. 29-30. At another point in the hearing
Attorney Agola expressed anger and frustration at the criticism leveled against her by the judges
before whom she regularly practices and referred to the criticism as "not...constructive." Tr. 36.
The Committee was troubled by Attorney Agola's reaction, response and refutation of the serial
8
criticism from the courts before which she regularly practices. However, Attorney Agola
ultimately professed to accept the criticism and viewed it, together with the Court's Referral
Order, as a " wake-up" call.
With respect to specific criticisms, Attorney Agola took issue with certain of Judge
Siragusa's observations. Supp. Resp. at 8-10. She acknowledged, however, that certain briefs
were not properly cite checked and that "she must take greater care to ensure that her briefs are
properly cite-checked to ensure that her citations represent the current state of the law." Supp.
Resp. at 9. She also accepted the criticism that "her drafting of pleadings could be improved,"
and testified that she has since taken a series of five writing courses, and made significant
changes to her staff and her practices to improve her submissions to the courts in which she
practices. Tr. 35.
Second, in response to Judge Larimer's criticism that certain allegations were "based on
nothing but rank speculation," Attorney Agola disagreed, and stated that she had "a genuine
belief that the allegations were sufficiently supported by evidence." Supp. Response at 5. She
also stated that "it is not her practice to advance claims which are frivolous or sanctionable." In
response to Judge Larimer's criticisms regarding draftsmanship of papers, Attorney Agola said
that when she has identified errors in her papers, she has brought them to the court's attention.
Supp. Resp . at 7. She has also taken a number of steps to improve her practice management and
recognizes that greater time, care and effort must be spent on editing documents. Supp.
Response at 7. As mentioned she has already completed Continuing Legal Education Courses to
improve her writing skills. Supp. Resp. at 7.
Third, Attorney Agola responded to Judge Telesca's decision and order by stating that
s he believed that her Rule 60(b) motion was necessary in order to ensure that her client's claims
related back to the original complaint. Supp. Response at 4.
C. Mitigating and Aggravating Factors
1. Mitigating Factors
There are several mitigating factors. First, Attorney Agola was cooperative with the
Committee's proceedings and brought conduct to the Committee's attention that was not
described in the Court's Referral Order. See ABA Standards § 9.32(e). Attorney Agola ,
informed the Committee that her failures to comply with scheduling orders resulted in dismissals
beyond those identified in the Referral Order. Response at 7-9.
Second, several individuals submitted character references on her behalf. See ABA
Standards § 9.32(g). For example, a reference letter from the Managing Attorney/CEO of the
Erie County Bar Association Volunteer Lawyer's Project, Inc., described that from r995 through
1999 Attorney Agola volunteered on a pro bono basis for the Project, during which time she
handled 459 cases and volunteered over nearly 2000 hours. See Supp. Resp., Exh . B. In
addition, one of Attorney Agola's former clients, a doctor, traveled from upstate New York to
New York City in the middle of a severe blizzard to testify before the Committee for Attorney
9
Agola and to describe how Attorney Agola doggedly and successfully represented him in an
employment-related matter. Also, Judge John L. DeMarco (Monroe County Court) submitted a
positive reference letter on Attorney Agola's behalf.
As noted, Magistrate Judge Jonathan W. Feldman (W.D.N.Y.) also submitted a
declaration as to Attorney Agola's practice at Attorney Agola's request. While acknowledging
that he agreed with the criticisms of the District Court Judges from the Western District of New
York who submitted infonnation to the Committee, Judge Feldman also stated that "Agola has
the legal ability and professional ethics to be a valuable member of our legal community."
Third, Attorney Agola took steps to improve her practice and her practice management
prior to the Committee's hearing. See ABA Standards § 9.32(d). She told the Committee that
since the Court's Referral Order, she has paid more attention to proofreading as an important
part of the advocacy process. Tr. 28. She has also taken a number ofCLE courses on brief
writing. Tr. 35. Also, after the hearing in this matter, Attorney Agola consulted with members
of Rivkin Radler's appellate practice group concerning methods to improve her appellate
practice. Among other things, she has formulated a new calendaring system to keep track of all
filings and case dates. Attorney Agola has also hired a new assistant and two new attorneys to
improve her practice. Tr. 20.
Fourth, her record of complying with scheduling orders has improved. Supp. Response at
2. See ABA Standards § 9.32(e). Since the Referral Order, Attorney Agola has a strong record
of complying with scheduling orders. Tr. at 19-20.
Finally, Attorney Agola expressed remorse. Tr. 86. She also stated that she was
ultimately responsible for the actions of her staff. Tr. 54.
2. Aggravating Factors
There are two aggravating factors - a pattern of misconduct and multiple offenses. See
ABA Standards § 9.22(c), (d) . As described in the Referral Order, Attorney Agola failed to
comply with scheduling orders in more than one-third of her matters in the Second Circuit.
Attorney Agola's multiple failures to comply with scheduling orders in the Second
Circuit is consistent with her multiple and repeated deficiencies in the District Courts. The
judges in the Western District of New York, as described above, criticized Attorney Agol<;l's
conduct on numerous instances. For example, one District Court Judge found that Attorney
Agola's submitted "sham evidence" in one case in the hope of defeating summary judgment, and
another District Court Judge remarked of her "cavalier attitude" in alleging factual matters. In
addition, Judge Feldman, whose character reference was solicited by Attorney Agola, agreed
with the views of the District Court Judges and stated that he "has all too often experienced the
same deficiencies and carelessness in cases before me." Judge Feldman attributed Attorney
Agola's deficiencies to taking too many cases and not being able to properly pay attention to
each of them.
10
I
I
It did not appear that the pointed and public criticisms by the District Court Judges had a
salutary impact on Attorney Agola, which troubles thi s Committee. Indeed, the Committee was
I
struck by Attorney Agola's at times overly-defensive and unapologetic posture during the
hearing. Attorney Agola's difficulty in expressing genuine remorse coupled with her difficulty
in accepting responsibility for her misconduct was evidenced by the cavalier or evasive manner
in which she responded to many of the questions the Committee put to her during the hearing.
This Committee is hopeful that its disciplinary recommendation will serve not only as a sanction
but also as an incentive or "wake-up call," as she herselfexpressed, for Attorney Agola to
transfonn her overall attitude toward her professional responsibilities.
I
VII. Recommendation
I
Based on the foregoing and after consideration of both aggravating and mitigating
factors, the Committee concludes that Attorney Agola's conduct warrants discipline. There is
clear and convincing evidence that Attorney Agola failed in numerous cases to comply with the
I
Court's scheduling orders. Of the 40 cases identified in the Referral Order in which Attorney
Agola was listed as attorney of record, she failed to comply with scheduling orders in over half.
Seven of those cases were dismissed. While Attorney Agola has credibly demonstrated that
none of her clients were meaningfully prejudiced, her failure to comply with the Court's
scheduling orders and court procedure was chronic and longstanding. See In re Van Wang, No.
08-9039-am, 2010 WL 2812824, at *3-4 (2d Cir. July 19,2010) ("[A]n appellant's counsel of
I record who detennines that the appeal will not proceed for any reason is required to infonn the
Court of the situation and seek either to withdraw the appeal or withdraw as counsel. Counsel of
record may not end the representation of a client without taking affirmative action, or end an
I appeal by allowing its dismissal for lack of prosecution.").
In addition, the Committee places great weight on the observations of the federal judges
that were brought to the Committee's attention for the purpose of considering whether Attorney
I Agola will be able to meet her future obligations to the Court. Attorney Agola testified that the
Court's Referral Order served as a "wake-up" call and that she now "gets it." But, the public
criticisms of the District Court Judges should have served as an earlier warning to Attorney
I Agola to make changes to her business model and fully respect her professional obligations to
her clients and the courts.
I In considering the recommended discipline for Attorney Agola, the Committee is
influenced by two factors that result in a recommendation short of suspension.
I First, the Committee believes that Attorney Agola is capable of improving her practice.
When Attorney Agola is forced to focus her time and attention on individual clients, it appears
that she is capable of effectively and zealously representing that client. That point was well
I illustrated by the character ',vitness who testified at the hearing and by Judge Feldman's
observation that: " Agola has the legal ability and professional ethics to be a valuable member of
our legal community."
I
II
I
I
I
Second, since her receipt of the Referral Order, Attorney AgoJa has taken numerous steps
to address the shortcomings of her practice. She has taken CLE courses in order to improve her
writing. She has also implemented the practice of having other lawyers in her office proof read
and critique the others' work. Attorney Agola has also made changes to her staff and hired
people who she described as more competent and skilled. Also, after the hearing in this matter,
Attorney Agola consulted with members of Rivkin Radler's appellate practice group to improve
her appellate practice. In her post-hearing submission, Attorney AgoJa stated that she believed
that the "opportunity to consult with other members of the Second Circuit bar was informative," I
and that Rivkin Radler's appellate lawyers "have made themselves available to Ms. Agola going
forward for consultations on issues of Second Circuit appellate practice and procedure."
Attorney Agola also said that she would "schedule quarterly meetings" with these attorneys for I
the period of one year in order to discuss her progress. 5
It is also worth noting that Attorney Agola has spent countless hours representing clients
in pro bono matters and serves a need in her community in representing individuals in civil rights
I
matters and in employment discrimination matters.
Under all of the circumstances, the Committee recommends that Attorney Agola be
I
publicly reprimanded.
In addition, Attorney Agola should be required, in connection with her practice in any
federal court in the Second Circuit or in any federal administrative agency whose action is
subject to the Second Circuit's review, to submit to the Committee sworn statements identifying
under oath each and every instance during each of the six rep0I1ing periods described below in
which (1) a submission is not filed or is filed out of time; or (2) an application is made for
permission to make a late filing only after the due date has passed. During these reporting
periods, Attorney Agola must also submit to the Committee sworn statements noting (3) any
criticism of her law practice, her briefing, or her representation of her cl ients in any written order
or oral pronouncement of any court or any other tribunal.
The following reporting periods and deadlines shall be observed: The first reporting
I
period shall commence ten days after the Committee's recommendation is mailed to Attorney
Agola and shall end six months after the Second Circuit issues its order of disposition in this
matter. Each of the five subsequent reporting period shall be for a period of six months. A total
I
of six statements will be prepared by Attorney Agola and mailed to the Committee Secretary.
The statement for each reporting period shall be mailed to the Committee Secretary within ten
days of the end of each reporting period.
I
The Committee further recommends that within twelve months of the date of any order of
the Court, Attorney Agola be required to complete no fewer than four hours of continuing legal
I
•
education ("CLE") in appellate advocacy, including appellate writing, and no fewer than four
hours of CLE in law office/practice management or legal writing from CLE providers accredited
5On July 20, 20 II, Rivkin Radler moved to withdraw as counsel for Agola owing to a fee dispute, which motion
was granted by the Court on September 13,20 II. The Committee assumes the promised consultations and quarterly
meetings with the Rivkin Radler lawyers will not occur.
12
I
I
by the Bar of the State of New York, over-and-above the CLE hours required for all attorneys
admitted in New York State. The Committee recommends that Attorney Agola be required to
complete these CLE credit hours through in-person attendance at seminars. Attorney Agola
should provide a sworn statement, accompanied by supporting documentation, attesting to her
compliance to this Committee's Secretary no later than thirty days after the expiration'of the
twelve month period in which she must complete these CLE credit hours.
Given the serious shortcomings noted in the Referral Order and disclosed during the
course of the Committee's investigation, Attorney Agola's conduct will be monitored closely by
the Committee Tn the event any of the required sworn statements to be filed by Attorney Agola
are not timely, accurate or disclose deficiencies or public criticisms not justified by exigent
circumstance, the Committee may recommend the imposition of additional discipline, including
but not limited to suspension froin the Second Circuit, without hearing further testimony.
Respectfully Submitted,
.J ~ .
~o~tt- ~~
Member of the Committee
get.. bgr IJ; 20 I I
~OIl~6V. 2g
IJ
