10-90003-am
In re Tustaniwsky




                    UNITED STATES COURT OF APPEALS
                        FOR THE SECOND CIRCUIT

                                   August Term, 2013
                                 (Decided: July 9, 2014)

                         Docket No. 10-90003-am
______________________________________________________



In re Oleh R. Tustaniwsky,

                     Attorney.

______________________________________________________



Before:               Cabranes, Sack, and Wesley, Circuit Judges.

                                 _____________________

       This Court’s Committee on Admissions and Grievances has recommended

that Oleh R. Tustaniwsky, an attorney admitted to the bar of this Court, be

disciplined for his misconduct in this Court. We adopt the Committee’s findings

of fact and recommendations, with certain exceptions, publicly reprimand

Tustaniwsky, and suspend him from practice before this Court for one year.

                                 _____________________

For Oleh R. Tustaniwsky:                 Oleh R. Tustaniwsky, Esq.
                                         New York, New York
     PER CURIAM:

 1         Pursuant to this Court’s Local Rule 46.2, it is hereby ORDERED,

 2   ADJUDGED, AND DECREED that the findings and recommendations of this

 3   Court’s Committee on Admissions and Grievances (“the Committee”) are

 4   adopted, except as discussed below, and Oleh Tustaniwsky is PUBLICLY

 5   REPRIMANDED, and SUSPENDED from practice before this Court for one year,

 6   for engaging in misconduct in this Court.

 7   I. Summary of Proceedings

 8         We referred Tustaniwsky to the Committee for investigation of his conduct

 9   in this Court and preparation of a report on whether he should be subject to

10   disciplinary or other corrective measures. During the Committee’s proceedings,

11   Tustaniwsky had the opportunity to address the matters discussed in our referral

12   order and to testify under oath at hearings held before Committee members

13   Eileen M. Blackwood, Evan A. Davis, Michael D. Patrick, and Gerald Walpin.

14   Thereafter, the Committee filed with the Court the record of the Committee’s

15   proceedings and its report and recommendations, as well as the concurring

16   report of Committee member Walpin. Tustaniwsky responded to the



                                             2
 1   Committee’s reports.

 2         A.     The Committee’s Findings and Recommendations

 3         The Committee found clear and convincing evidence that Tustaniwsky had

 4   engaged in misconduct warranting the imposition of discipline. Specifically, the

 5   Committee found that Tustaniwsky had: (1) defaulted on scheduling orders in

 6   twenty-two cases, with ten of those defaults resulting in orders requiring him to

 7   show cause why the cases should not be dismissed based on his defaults; (2) filed

 8   substantively deficient briefs in five cases; (3) knowingly filed meritless

 9   pleadings; and (4) prejudiced at least two clients whose cases were dismissed as a

10   result of his defaults, and exposed other clients to potential prejudice through his

11   pattern of defaulting on scheduling orders. See Committee Report at 5-9;

12   Concurring Report at 1.

13         The Committee also found several aggravating factors: a lack of remorse,

14   no more than a grudging acknowledgment of wrongdoing, a hostile and

15   disdainful attitude toward the Committee, a pattern of misconduct, and a lack of

16   candor about his failure to respond to certain Court orders. See Committee

17   Report at 9-10, 11 and 11 n.10. It found one mitigating factor: some of

18   Tustaniwsky’s misconduct resulted from instructions he received from his


                                               3
 1   employers. See id. at 10. The Committee recommended that Tustaniwsky be

 2   suspended from practice before this Court for one year, and that, as a condition of

 3   readmission, he be required to complete at least six hours of continuing legal

 4   education (“CLE”) in appellate immigration law and four hours of CLE in

 5   professional ethics. Id. at 12.1

 6                B.     Tustaniwsky’s Response

 7         In his response to the Committee’s report, Tustaniwsky, inter alia,

 8   acknowledged his “mistakes and transgressions in failing to comply with Court-

 9   ordered deadlines,” stated that he had endeavored to only present viable issues

10   to this Court and to represent his clients to the best of his ability, and conceded

11   that he had “used poor judgment” in filing untimely petitions for review in two

12   cases. See Response at 2-3. He asserted, however, that the clients in those two

13   cases were not prejudiced because it was only after the deadline had passed that


             1
              The concurring Committee member agreed with the Committee
      majority’s misconduct findings and its recommendation that Tustaniwsky be
      suspended for one year, but recommended that the Court find additional
      aggravating factors and reject the one mitigating factor found by the majority.
      The concurring Committee member’s additional finding that Tustaniwsky
      demonstrated a lack of candor in a pleading was accepted by the Committee
      majority, see Committee Report at 11 n.10, and is adopted by the Court. The
      other additional aggravating factors found by the concurring Committee
      member, and the disputed mitigating factor, are discussed infra.

                                               4
 1   he was asked to file the late petitions, and he described the measures he has taken

 2   to prevent future misconduct. See id. at 3. Tustaniwsky did not explicitly

 3   challenge the Committee’s recommended suspension, but asked this Court to

 4   “[c]onsider its discipline in the context of all the cases in which he has

 5   represented a client before this Court and take into account the measures he has

 6   taken not to repeat the mistakes and transgressions in question.” Id. at 4.

 7   II.   Discussion

 8         We give “particular deference” to the factual findings of the Committee

 9   members who presided over an attorney disciplinary hearing where those

10   findings are based on demeanor-based credibility determinations, and somewhat

11   lesser deference to credibility findings based on an analysis of a witness’s

12   testimony. See In re Payne, 707 F.3d 195, 201-02 (2d Cir. 2013). Upon due

13   consideration of the Committee’s majority and concurring reports, the underlying

14   record, and Tustaniwsky’s response, we adopt the findings and

15   recommendations that were agreed upon by the majority and concurring

16   Committee members. We limit our discussion to the major points of

17   disagreement among the Committee members and to the deficient briefing issue.

18         A. Possible Misrepresentation to Court and Committee


                                                5
 1         The concurring Committee member recommended that the Court find that

 2   Tustaniwsky knowingly misrepresented his reason for requesting an extension of

 3   time in Chen v. Mukasey, 08-0516, while the Committee majority found

 4   Tustaniwsky’s proffered reason to be plausible and likely not pretextual. We

 5   conclude that the totality of the evidence supports the Committee majority’s

 6   findings on this point.

 7         Tustaniwsky’s request for an extension in Chen was based on his asserted

 8   inability to obtain a complete transcript of an immigration court proceeding. In

 9   concluding that Tustaniwsky’s asserted basis for the extension request was not

10   credible, the concurring Committee member argued that a diligent, proactive

11   attorney would have pursued various remedies to obtain the missing portions of

12   that transcript and, in any event, would have determined that the transcript was

13   not necessary for the issues he wished to present in this Court. However, in their

14   discussion of Tustaniwsky’s conduct in many other cases in this Court, the

15   majority and concurring Committee members made clear that Tustaniwsky often

16   was not diligent or proactive, leading us to conclude that, in Chen, it is just as

17   likely that Tustaniwsky did believe, based on a superficial review of the case, that

18   the incomplete transcript provided a legitimate basis for an extension of time.


                                                6
 1   Under the circumstances, we accept the Committee majority’s finding that there

 2   was insufficient evidence that Tustaniwsky had made an intentional

 3   misrepresentation to the Court and Committee.

 4         B. Defaults Resulting from Client’s Failure to Pay Attorney’s Fees

 5         We agree with the concurring Committee member that Tustaniwsky

 6   improperly permitted cases to be defaulted based on the clients’ failure to pay

 7   attorney’s fees. In situations where an attorney does not wish to proceed with a

 8   case due to non-payment of fees or any other issue with a client, the attorney

 9   may, inter alia, request leave to withdraw from the case, or request a stay of

10   proceedings pending resolution of the issue. See, e.g., ABA, Model Rules of

11   Professional Conduct, Rules 1.16(b)(5), (c), (d) (2013) (permitting a lawyer to

12   withdraw from representation if “the client fails substantially to fulfill an

13   obligation to the lawyer regarding the lawyer’s services,” provided the lawyer

14   complies with the tribunal’s rules and “take[s] steps to the extent reasonably

15   practicable to protect [the] client’s interests”).

16         But “deliberately failing to take required action because of non-payment of

17   [legal] fees, thereby permitting [the] client’s petition to be dismissed[, or put into

18   default], is unacceptable.” Bennett v. Mukasey, 525 F.3d 222, 223 (2d Cir. 2008)


                                                 7
 1   (Newman, J.); accord In re Meenan, 117 A.D.3d 42, --- N.Y.S.2d ---- (2nd Dep’t 2014)

 2   (holding that attorney violated disciplinary rule by stopping work on client’s case

 3   due to nonpayment of legal fees without seeking the tribunal’s leave to withdraw

 4   from the representation). This rule applies even if the attorney does not use the

 5   possibility of dismissal, default, or other prejudice to the client’s case as leverage

 6   to obtain payment.

 7         However, Tustaniwsky’s culpability for this misconduct is somewhat

 8   mitigated, to the extent he engaged in the misconduct only because instructed to

 9   do so by his employer. See In re Hemlock, 52 A.D.2d 248, 250-51, 383 N.Y.S.2d 600,

10   602 (1st Dep’t 1976) (finding, in mitigation, that junior partner only acted as an

11   “amanuensis” under the direction of a senior partner “who set firm policy,

12   established fees, and directed the other attorneys in their work”). But any such

13   mitigation is minimal in the present case, even if Tustaniwsky reasonably

14   believed that he would be fired if he failed to comply with his employer’s

15   instructions. See New York Rule of Professional Conduct 5.2(a) (“A lawyer is

16   bound by these Rules notwithstanding that the lawyer acted at the direction of

17   another person”; rule effective as of April 1, 2009)); New York Code of

18   Professional Responsibility, Disciplinary Rule 1-104(E) (essentially identical rule;


                                                8
 1   in effect prior to April 1, 2009). There is no indication that Tustaniwsky, for

 2   example, discussed the ethics issue with his employer, resisted his employer’s

 3   instructions in any way, attempted to mitigate the effect of those instructions,

 4   sought advice from anyone, or reported the matter to the Court or any bar

 5   authority.2

 6         C. Briefing Deficiencies

 7         Tustaniwsky’s testimony and his response to the Committee’s reports

 8   strongly suggest that he still does not fully understand why the Court and

 9   Committee found his briefs in five cases to be substantively deficient. The two

10   most serious deficiencies were (a) his failure to raise dispositive issues in this

11   Court, resulting in the Court finding those issues waived and the appeals


             2
               The American Bar Association’s Standards for Imposing Lawyer Sanctions
      does not address whether being instructed by an employer to engage in
      improper behavior might constitute a mitigating factor. However, it does state
      that “agreeing to [a] client’s demand for ... improper behavior or result” should
      not be considered a mitigating or aggravating factor. ABA, Standards for Imposing
      Lawyer Sanctions § 9.4(b) (1986, amended 1992). While the two scenarios are
      similar, we do not adopt a categorical rule barring an employer’s instructions
      from being treated as a mitigating factor. On the other hand, for purposes of the
      present case, we need not decide what type or degree of employer pressure or
      coercion might entitle an attorney to more than minimal mitigation. Cf. Peters v.
      Comm. on Grievances for U.S. Dist. Court for S. Dist. Of New York, 748 F.3d 456, 463
      (2d Cir. 2014) (noting aggravating factor of instructing a junior associate to
      engage in misconduct and then attempting to shift blame to him).

                                                9
 1   meritless, and (b) his raising of issues in this Court that had not been raised first

 2   before the administrative agency, resulting in the Court finding those issues

 3   barred, based on that failure to exhaust administrative remedies.

 4         Tustaniwsky’s explanation was simple: an exhausted issue would not be

 5   raised in this Court if it was not viable, and an unexhausted issue would be raised

 6   in this Court if it was viable despite being unexhausted. See Response at 1.

 7   However, Tustaniwsky did not explain in his appellate briefs why he was not

 8   raising the issues that, on their face, appeared dispositive of the appeals, or why

 9   the Court had the authority to consider the unexhausted issues he did present.

10   His apparent belief was that the Court itself should have known the answers to

11   these questions, without the need for his briefs to mention either the questions or

12   the answers. For example, in his hearing testimony, Tustaniwsky stated that the

13   Court should have itself seen that an exception to the exhaustion requirement

14   applied without his having to “use the magic words.” Transcript (Exh. B) at 509.

15   In the case then under discussion, Tustaniwsky’s brief did not mention that the

16   issue before the Court was unexhausted or that any exception to the exhaustion

17   requirement might apply, let alone present a reasoned argument that the issue

18   should not be barred on that basis. See Xing Jian Jiang v. Mukasey, No. 08-3275,


                                               10
 1   brief filed March 12, 2009.

 2         Tustaniwsky’s position has been rejected by this Court multiple times. He

 3   essentially believes that the Court itself should “‘scour the record, research any

 4   legal theory that comes to mind, and serve generally as an advocate for

 5   appellant.’” Sioson v. Knights of Columbus, 303 F.3d 458, 460 (2d Cir. 2002)

 6   (quoting Ernst Haas Studio, Inc. v. Palm Press, Inc., 164 F.3d 110, 112 (2d Cir. 1999)).

 7   But, as we held in Sioson, that is not the Court’s role, particularly in a counseled

 8   appeal. Id. Federal Rule of Appellate Procedure 28(a) required Tustaniwsky to

 9   present each of the “appellant’s contentions and the reasons for them, with

10   citations to the authorities and parts of the record on which the appellant relies.”

11   Fed. R. App. P. 28(a)(8)(A). The substantial risk he ran by not clearly and

12   explicitly presenting each relevant argument, with appropriate citations, should

13   have been known to him at the time he filed those briefs, since this Court has

14   repeatedly made clear that “‘[i]ssues not sufficiently argued in the briefs are

15   considered waived and normally will not be addressed on appeal.’” Yueqing

16   Zhang v. Gonzales, 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir. 2005) (quoting Norton v.

17   Sam's Club, 145 F.3d 114, 117 (2d Cir. 1998)). While the Court may have had

18   authority to address some or all of Tustaniwsky’s waived arguments, in order to


                                                11
 1   avoid manifest injustice, see LNC Invs., Inc. v. Nat'l Westminster Bank, 308 F.3d 169,

 2   176 n. 8 (2d Cir. 2002), no reasonable attorney would rely on that mere possibility.

 3         Tustaniwsky’s failure to properly set forth his arguments for why the Court

 4   should grant relief was not a mere inconvenience to the Court. It was a serious

 5   disservice to his clients, whose claims for relief were not even considered by the

 6   Court due to Tustaniwsky’s failure to properly present them. In a similar context,

 7   where a client’s claims for relief were not considered due to a default dismissal,

 8   this Court held that

 9         the dismissal of a case on default without the client’s consent, even if
10         the case appears to lack merit, causes prejudice by depriving the
11         client of review by a panel of Article III judges. Litigants who face
12         deportation, incarceration, or simply a financial loss if they lose on
13         appeal are likely to derive at least some satisfaction, consolation, or
14         sense of finality from knowing that the loss on appeal resulted from
15         the reasoned decision of three judges rather than from their
16         attorneys’ default.

17   In re Fengling Liu, 664 F.3d 367, 373 (2d Cir. 2011). In the present proceeding,

18   Tustaniwsky himself has asserted that the issues he raised, or thought he had

19   raised, in his appellate briefs were viable, making clear that his clients were

20   prejudiced when those issues were never reached by the Court.3


             3
              Tustaniwsky’s speculation that some of his defaults may have been
      caused by Clerk’s Office error – i.e., that the Clerk’s Office may have mailed
      certain orders to an incorrect address – was treated as an aggravating factor in

                                               12
 1   III. Imposition of Suspension and Other Corrective Measures

 2         Despite disagreements on several points, the Committee’s majority and

 3   concurring members all agreed that Tustaniwsky’s misconduct in this Court

 4   warranted a one year suspension from this Court’s bar. We agree. A one-year

 5   suspension is warranted by the aggravating factors in this case, particularly

 6   Tustaniwsky’s lack of remorse, his grudging and only partial acknowledgment of

 7   wrongdoing, and his hostile and disdainful attitude toward the Committee. It is

 8   therefore ORDERED that Tustaniwsky is publicly reprimanded and suspended

 9   from practice before this Court for one year. It is further ORDERED as follows:

10         (a) The suspension period will commence twenty-eight days from
11         the date of this decision. Tustaniwsky may file any briefs that
12         currently have filing deadlines falling within the next twenty-eight
13         days, and may see through to completion any case in this Court in
14         which his brief has been filed by the end of that twenty-eight day
15         period. However, any panel presiding over a case in which
16         Tustaniwsky is representing a party is free to reconsider his
17         continued representation.
18
19         (b) With respect to all of his other pending cases in this Court,
20         Tustaniwsky must, within twenty-eight days: (i) inform his clients
21         that, due to his suspension, they must obtain new counsel or proceed
22         pro se, (ii) turn over all client files and materials to those clients, to the
23         extent required by applicable laws and rules, (iii) cooperate in all


      the concurring Committee report. See Concurring Report at 11. We decline to
      reach any conclusion on this point, as the record is not sufficiently developed
      regarding Tustaniwsky’s basis for his assertion.

                                                13
 1         other respects with his clients’ efforts to prosecute their cases, and
 2         (iv) move to withdraw in each case and, if appropriate, move for an
 3         extension of time to enable new counsel, or the client, to prepare for,
 4         and prosecute, the appeal.
 5
 6         The Clerk of Court is directed to release this decision to the public by

 7   posting it on this Court’s web site and providing copies to the public in the same

 8   manner as all other published decisions of this Court, and to serve a copy on

 9   Tustaniwsky, this Court’s Committee on Admissions and Grievances, the

10   attorney disciplinary committee for the New York State Appellate Division, First

11   Department, and all other courts and jurisdictions to which this Court distributes

12   disciplinary decisions in the ordinary course.4




             4
              The Committee’s reports are to be available to the public. Additionally,
      counsel to this panel is authorized to provide, upon request, all other documents
      from the record of this proceeding to other attorney disciplinary authorities.
      While we request that those other documents remain confidential to the extent
      circumstances allow, we of course leave to the discretion of those disciplinary
      authorities the decision of whether specific documents, or portions of documents,
      should be made available to any person or the public.

            A supplemental order issued this date discusses Tustaniwsky’s CLE
      requirements and readmission to this Court’s bar after his suspension period.

                                              14
