In re Tustaniwsky, 758 F.3d 179

Oleh R. Tustaniwsky, an attorney admitted to the Second Circuit bar, was investigated by the Court’s Committee on Admissions and Grievances for misconduct in multiple appeals.
The Committee found clear and convincing evidence that Tustaniwsky: defaulted on scheduling orders in 22 cases (10 leading to show-cause orders), filed substantively deficient briefs in 5 cases, filed knowingly meritless pleadings, and caused prejudice to at least two clients whose appeals were dismissed.
Aggravating factors included lack of remorse, hostile attitude toward the Committee, a pattern of misconduct, and lack of candor; a limited mitigating factor was that some conduct stemmed from employer instructions.
The Committee recommended a one-year suspension and CLE requirements; Tustaniwsky acknowledged some mistakes but disputed or minimized others and described remedial steps.
The Court adopted the Committee’s findings largely as written, rejected an allegation of intentional misrepresentation in one extension request, but agreed that permitting defaults for client non-payment was improper.
The Court publicly reprimanded Tustaniwsky and imposed a one-year suspension from practice before the Second Circuit, with detailed procedures for handling pending matters and notice to clients.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Tustaniwsky knowingly misrepresented basis for an extension in Chen v. Mukasey	Concurring Committee member: requested extension based on false pretext	Tustaniwsky (and Committee majority): he plausibly believed transcript problem justified extension	Court accepted Committee majority: insufficient evidence of intentional misrepresentation
Whether permitting defaults due to client nonpayment is proper	Concurring Committee member: improper to let cases default for nonpayment	Tustaniwsky: followed employer instructions; mitigation sought	Court: improper; employer instruction offers minimal mitigation; attorneys must seek withdrawal or stay instead
Whether Tustaniwsky’s briefing failures constituted professional misconduct	Committee: briefs omitted dispositive or exhaustion-related arguments, causing waiver and prejudice	Tustaniwsky: believed only viable issues should be raised; expected court to recognize exceptions without explicit argument	Court: deficient briefing violated duties to clients; issues were waived and prejudiced clients
Appropriate discipline for the misconduct	Committee majority and concurring member: one-year suspension and CLE conditions	Tustaniwsky: requested consideration of overall record and remedial measures; did not contest suspension outright	Court imposed public reprimand and one-year suspension, citing aggravating factors (lack of remorse, pattern, hostility)

In re Payne, 707 F.3d 195 (2d Cir.) (deference to committee credibility findings)
Bennett v. Mukasey, 525 F.3d 222 (2d Cir.) (attorney may not permit dismissal/default due to nonpayment)
In re Fengling Liu, 664 F.3d 367 (2d Cir.) (default dismissal prejudices client by denying panel review)
Sioson v. Knights of Columbus, 303 F.3d 458 (2d Cir.) (court is not appellant’s advocate; must raise arguments in brief)
Yueqing Zhang v. Gonzales, 426 F.3d 540 (2d Cir.) (issues not sufficiently argued are waived)
LNC Invs., Inc. v. Nat'l Westminster Bank, 308 F.3d 169 (2d Cir.) (court may reach waived issues only to avoid manifest injustice)
Peters v. Comm. on Grievances for U.S. Dist. Court for S. Dist. Of New York, 748 F.3d 456 (2d Cir.) (consideration of supervisory instruction as aggravating factor)