In Re: Spivak
469 F. App'x 16
| 2d Cir. | 2012Background
- Spivak was referred to this Court's Committee on Admissions and Grievances in February 2010 for investigation of conduct before the Second Circuit and potential disciplinary or corrective measures.
- The Committee found a pattern of Spivak defaults on scheduling orders in ten post-2007 cases, leading to dismissals; New York attorney registration was delinquent.
- Spivak testified at a November 2010 hearing without counsel; the Committee filed its report in September 2011 and the Court reviewed submissions.
- The Committee recommended a public reprimand with reporting requirements; the Court adopted the findings with a minor error and imposed a public reprimand.
- Spivak was ordered to comply with reporting requirements and confidentiality, and to disclose the order publicly and to relevant authorities.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether pattern of defaulting on scheduling orders constitutes misconduct | Spivak misconduct was established by clear and convincing evidence | Mitigating factors and lack of intent offset severity | Yes; misconduct established and sanctioned with reprimand |
| Appropriate sanction given findings of misconduct | Public reprimand with monitoring is appropriate | Mitigating factors warrant less severe discipline than suspension | Public reprimand with monitoring; no suspension |
| Whether the Committee's findings should be adopted with minor correction | Findings should be adopted; any minor error corrected | Minor error should be noted but not alter outcome | Adopted with minor correction; sanction upheld |
| Whether reporting and disclosure requirements are proper and to what extent | Reporting and public disclosure are appropriate to ensure compliance | Confidential handling may limit broader dissemination | Yes; require ongoing reporting and public posting of the order |
Key Cases Cited
- In re Snyder, 472 F.2d 634 (U.S. 1985) (conduct unbecoming a member; professional standards guidance)
- In re Fengling Liu, 664 F.3d 367 (2d Cir. 2011) (prejudice to client and defaulting in appeals relevant to sanctions)
- Amnesty Am. v. Town of W Hartford, 361 F.3d 113 (2d Cir. 2004) (sanctions for lack of diligence and incompetence; standards applied)
- United States v. Song, 902 F.2d 609 (7th Cir. 1990) (prejudice to clients and lack of diligence)