In Re Schwartz
665 F. App'x 99
| 2d Cir. | 2016Background
- Jeremy D. Schwartz, admitted NY 2005 and to the Second Circuit bar 2006, handled multiple criminal appeals (Caliz, Rickard, Marandola, Eldridge) in which he defaulted on appellate duties.
- In Caliz (No. 13-4755) Schwartz repeatedly failed to file briefs or move to withdraw; court left numerous messages and entered orders; Caliz served much of his prison term while the appeal languished.
- In Rickard (No. 12-4164) Schwartz allowed the rehearing deadline to lapse and belatedly sought an extension, which was denied. In Marandola and Eldridge he missed required forms and periodic transcript/status filings, prompting threatened dismissals and court inquiries.
- Schwartz attributed some defaults to awaiting information from clients/other counsel, high workload while working for another practitioner, delayed receipt of court messages, and increased staffing after January 2015.
- The court found aggravating facts: continued noncompliance after being put on notice by the Show-Cause Order and that the misconduct affected criminal appeals implicating liberty interests.
- Disposition: public reprimand and a six-month bar from representing CJA-appointed clients in the Second Circuit, with specific directives (28‑day window to finish certain filings; 14 days to resolve Caliz by withdrawing, curing defaults, or withdrawing as counsel).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Failure to prosecute / prolonged inaction in Caliz | Court: Schwartz defaulted on briefs, updates, and ignored messages/orders, leaving appeal unresolved | Schwartz: delay due to awaiting transcripts, information from client/other counsel, some messages were delayed or not received | Held: Court rejected excuse; counsel must monitor docket, request extensions/stays, or move to withdraw; default was sanctionable |
| Missing deadlines and defaults (Rickard, Marandola, Eldridge) | Court: missed rehearing/reply and form/status deadlines, forcing court inquiries and risking dismissal | Schwartz: press of other business, heavy workload while working for another attorney; increased staff later | Held: Court held passive inaction unacceptable; extensions or requests for guidance required; workload not a sufficient mitigation without attempts to mitigate |
| Prior related discipline / prior show-cause in district court | Court noted prior show-cause for failure to appear but gave it little weight here | Schwartz provided scant record of that proceeding; offered no exculpatory detail | Held: Prior matter accorded minimal weight; lack of documentation and relevance limited mitigating value |
| Appropriate discipline and mitigation | Court sought to balance mitigation (staffing, reduced caseload claims) against aggravation (continued defaults, criminal liberty stakes) | Schwartz pointed to remedial steps (hiring staff/associate, decreased caseload) | Held: Aggravating factors predominated; imposed public reprimand and six-month CJA bar in the Second Circuit; directed immediate steps to resolve Caliz |
Key Cases Cited
- In re DeMarco, 733 F.3d 457 (2d Cir.) (counsel must periodically review docket and ensure cases proceed)
- In re Aranda, 789 F.3d 48 (2d Cir.) (counsel of record must affirmatively move to withdraw or otherwise act if appeal will not proceed)
- In re Payne, 707 F.3d 195 (2d Cir.) (permitting deadlines to lapse while awaiting other steps is not acceptable conduct)
- In re Tustaniwsky, 758 F.3d 179 (2d Cir.) (limited mitigation when misconduct results from employer direction absent attempts to mitigate)