In re DeMarco
733 F.3d 457
| 2d Cir. | 2013Background
- Mario DeMarco, a Second Circuit bar member, was referred to the Court’s Committee on Admissions and Grievances after multiple docket problems (late petitions, late/omitted briefs, and late Form C/A filings) and inadequate briefing in two companion immigration appeals (the Morales cases).
- Committee hearings occurred in 2009, 2010, and 2011; the Committee issued a majority report (recommend public reprimand + reporting/CLE) and a minority report (recommended suspension). The Court reviewed the record and adopted the Committee’s majority recommendation.
- Findings: DeMarco failed to timely file petitions/briefs in multiple cases; in the Morales cases he signed briefs that failed to address a Court‑ordered Suspension Clause issue; he failed to timely file Form C/A in numerous matters; and he inadequately supervised staff and failed to monitor dockets.
- Credibility/culpability: The Court and Committee concluded the misconduct was negligent (not intentional deceit); some defaults were attributable to employees’ failures, but DeMarco retained direct responsibility as signing counsel and counsel of record.
- Sanction: Public reprimand, required 6 hours of live CLE in law office/practice management within one year, biannual status reports for two years, and disclosure of the decision to other bars/courts; further misconduct could lead to suspension.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether DeMarco violated court rules/orders by failing to file timely petitions/briefs and Forms C/A | Committee/Court: repeated failures to meet deadlines and file required forms show neglect and misconduct warranting discipline | DeMarco: many failures resulted from paralegal/staff errors, docketing problems, and a practice of relying on clerk notices; he lacked deliberate intent | Held: DeMarco bore primary responsibility as counsel of record; failures were negligent and discipline (public reprimand) appropriate |
| Whether DeMarco deliberately misled the Court in filings asserting no prior violations | Committee minority: some representations were knowingly false and warrant harsher sanction | DeMarco: statements reflected a mistaken belief that administrative scheduling orders were not "court orders" and were not intentionally misleading | Held: misrepresentations were negligent/misunderstood, not willful deceit; no deliberate misleading found |
| Whether DeMarco was directly responsible for the Morales briefs’ deficiencies | Committee minority: DeMarco should be directly responsible and knowingly failed to follow the Court’s March 2007 instruction | DeMarco: at times claimed he was not lead counsel and that an associate or paralegal handled the drafting | Held: DeMarco signed the briefs as sole counsel of record and was directly responsible for their contents and for failing to address the Suspension Clause issue |
| Proper sanction for the misconduct (reprimand vs. suspension) | Committee majority: public reprimand plus CLE and reporting suffices given negligence and remediation | Committee minority: suspension for at least two years because of scope/recurrence and credibility concerns | Held: public reprimand with CLE and monitoring; mitigating factors (no client complaints, remedial steps, negligent rather than intentional conduct) weigh against suspension |
Key Cases Cited
- In re Payne, 707 F.3d 195 (2d Cir. 2013) (deference to committee credibility findings in attorney discipline)
- In re Girardi, 611 F.3d 1027 (9th Cir. 2010) (attorney responsible for work signed under his name; reprimand for recklessness in supervising documents)
- Dube v. Eagle Global Logistics, 314 F.3d 193 (5th Cir. 2002) (sanctioning attorneys who signed noncompliant appellate brief)
- Mennen Co. v. Gillette Co., 719 F.2d 568 (2d Cir. 1983) (duty of counsel to monitor docket and watch court orders)
- Lucidore v. New York State Div. of Parole, 209 F.3d 107 (2d Cir. 2000) (discussing Suspension Clause analysis in habeas context)
- RLI Ins. Co. v. JDJ Marine, Inc., 716 F.3d 41 (2d Cir. 2013) (court practice/history affecting lawyer expectations about scheduling/order enforcement)