In Re Peter S. Gordon, 780 F.3d 156

Background

Peter S. Gordon, admitted to the NY bar in 1989 and this Court’s bar in 2008, was referred to the Court’s Committee on Admissions and Grievances for attorney discipline based on multiple defaults and unauthorized motions in numerous appeals.
The Committee found by clear and convincing evidence that Gordon (a) filed nearly identical, unauthorized "summary judgment" motions in at least nine appeals; (b) disobeyed an April 2011 order to withdraw or justify those motions; (c) failed to file required scheduling letters in 17 cases; (d) missed deadlines in 11 cases causing two dismissals; and (e) failed to oppose a government motion for summary affirmance in at least one matter.
The Committee concluded Gordon’s explanations were inconsistent and his testimony lacked credibility, finding a violation of New York Rule of Professional Conduct 3.3(a)(1) (candor to a tribunal).
The Committee majority recommended a public reprimand and CLE in appellate immigration law; a dissenting member urged at least a nine-month suspension.
The Court largely adopted the Committee’s findings, gave significant weight to the Committee’s credibility determinations, and concluded Gordon’s lack of candor warranted discipline greater than a reprimand.
The Court publicly reprimanded Gordon and imposed a two-month suspension from practice before the Court, explaining the lack of candor was material but not part of an extensive pattern or extremely prejudicial.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Gordon’s pattern of filing unauthorized "summary judgment" motions and repeated procedural defaults warranted discipline	Committee: misconduct shown by unauthorized motions and repeated rule violations that delayed proceedings and wasted resources	Gordon: sought only a public reprimand, cited mitigation including cooperation after hiring ethics counsel	Court: misconduct proven; discipline warranted (public reprimand plus suspension)
Whether Gordon’s failure to comply with an April 2011 order and his explanations justified an adverse credibility finding	Committee: explanations inconsistent and disingenuous; violated duty of candor	Gordon: disputed severity, emphasized cooperation and mitigation	Court: upheld credibility finding; lack of candor was material and an aggravating factor
Whether lack of candor to the disciplinary Committee generally necessitates suspension rather than reprimand	Committee majority: recommended reprimand; minority urged longer suspension	Gordon: argued mitigation and cooperation make reprimand sufficient	Court: lack of candor typically merits significant weight; here two-month suspension appropriate given mitigating factors
Appropriate scope of prejudice from defaults (e.g., Pugach dismissal)	Committee initially suggested little client prejudice in Pugach	Gordon implied settlement explained dismissal and lack of client harm	Court: clarified appeal dismissal affected represented clients, but harm was procedural (wasted resources, delay); defaults created potential for serious prejudice to clients

Key Cases Cited

In re Payne, 707 F.3d 195 (2d Cir. 2013) (deference to Committee credibility findings)
Donato v. Plainview-Old Bethpage Cent. Sch. Dist., 96 F.3d 623 (2d Cir. 1996) (trial judge best positioned to assess witness demeanor)
United States v. Yousef, 327 F.3d 56 (2d Cir. 2003) (credibility determinations not overturned unless clearly erroneous)
Fujitsu Ltd. v. Fed. Exp. Corp., 247 F.3d 423 (2d Cir. 2001) (same standard for reviewing factual findings)
United States v. Murphy, 703 F.3d 182 (2d Cir. 2012) (definition of clearly erroneous)
In re DeMell, 589 F.3d 569 (2d Cir. 2009) (attorney with long experience cannot assume extensions will be granted; defaults risk severe prejudice)
United States v. Raimondi, 760 F.2d 460 (2d Cir. 1985) (lawyer assumes peril by relying on court to relieve him of deadlines)
In re Warburgh, 644 F.3d 173 (2d Cir. 2011) (default in disciplinary proceedings is serious and handicaps committee and court)