In Re Warburgh
644 F.3d 173
| 2d Cir. | 2011Background
- Second Circuit referred Warburgh to the Committee on Admissions and Grievances for investigation and possible discipline.
- Warburgh defaulted by failing to respond to the show-cause order; the Committee proceeded with summary action under Rule 7(d).
- Committee found clear and convincing evidence of neglect, failure to follow scheduling orders, failure to respond to inquiries, and poor client communication; improper cooperation with the investigation was aggravating.
- Committee recommended private reprimand, withdrawal from the court’s bar, and preclusion from readmission, with involuntary disbarment if he declined to withdraw.
- Warburgh eventually submitted a short email indicating retirement and requesting leave to resign from the Second Circuit bar; the court treated this as a request for leave to withdraw.
- The district court style of action culminated in the court publicly reprimanding Warburgh and granting his leave to withdraw from the Second Circuit bar.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was summary action by the Committee proper? | Committee | Warburgh | Yes; summary action upheld and waiver not required |
| May default serve as an independent basis for discipline and an aggravating factor? | Committee | Warburgh | Yes; public reprimand warranted due to default and lack of good cause |
| Did Warburgh waive rights to challenge the Committee's report due to default? | Committee | Warburgh | Waiver not applied to current case; Court announces waiver rule for future discipline proceedings |
| What is appropriate discipline given findings of neglect and lack of cooperation? | Committee | Warburgh | Public reprimand with leave to withdraw; no removal or disbarment given mitigating factors |
| Should Warburgh be allowed to withdraw from the court's bar? | Committee | Warburgh | Leave to withdraw granted; public reprimand issued |
Key Cases Cited
- Thomas v. Arn, 474 U.S. 140 (1985) (waiver of appellate review may be used to conserve judicial resources)
- In re Male Juvenile, 121 F.3d 34 (2d Cir. 1997) (rule limiting appellate review for unobjected magistrate judge findings)
- In re Amato, 42 A.D.3d 32 (N.Y.A.D. 2d Dep't 2007) (waiver of rights in disciplinary proceedings contexts)
- In re Spiegler, 33 A.D.3d 187 (N.Y.A.D. 1st Dep't 2006) (interim suspension contexts for non-cooperation)
- In re Jaffe, 585 F.3d 118 (2d Cir. 2009) (commentary on withdrawal in disciplinary proceedings)
- Schronce, 727 F.2d 91 (4th Cir. 1984) (considerations of efficiency and fairness in disciplinary contexts)
- Yan Wang, 388 Fed.Appx. 24 (2d Cir. 2010) (factors supporting withdrawal during disciplinary pendency)
- In re Moran (Grullon), not fully provided in excerpt (not provided) (retirement-related relief discussions in disciplinary context)