    12-90089-am
    In re Hochbaum


                       UNITED STATES COURT OF APPEALS
                           FOR THE SECOND CIRCUIT

                                  SUMMARY ORDER
    RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
    ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL
    RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING
    A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
    FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A
    PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED
    BY COUNSEL.

         At a stated term of the United States Court of Appeals for the
    Second Circuit, held at the Thurgood Marshall United States
    Courthouse, 40 Foley Square, in the City of New York, on the 23rd day
    of May, two thousand sixteen.

    PRESENT:
              José A. Cabranes,
              Robert D. Sack,
              Richard C. Wesley,
                        Circuit Judges.
    _____________________________________


    In re Charles S. Hochbaum,                               12-90089-am

                               Attorney.                     ORDER OF
                                                             GRIEVANCE PANEL

    _____________________________________



1         This       Court’s   Committee   on   Admissions   and   Grievances     (the

2   “Committee”) has recommended that Charles S. Hochbaum be disciplined
 1   for his misconduct in this Court.     Upon due consideration, it is

 2   hereby ORDERED, ADJUDGED, AND DECREED that Charles S. Hochbaum be and

 3   hereby is PUBLICLY REPRIMANDED for engaging in conduct unbecoming a

 4   member of the bar.

 5         Hochbaum was admitted to the New York State bar in 1977, and to

 6   this Court’s bar in 1996.

 7   I.   Summary of Proceedings

 8         We referred Hochbaum to the Committee for investigation of his

 9   conduct in this Court and in three district court cases in this

10   Circuit, and for preparation of a report on whether he should be

11   subject to disciplinary or other corrective measures.     During the

12   Committee’s proceedings, Hochbaum had the opportunity to address the

13   matters discussed in our referral order and to testify under oath at

14   a hearing held before Committee members Eileen M. Blackwood, Evan A.

15   Davis, and James I. Glasser.    Thereafter, the Committee filed with

16   the Court the record of the Committee’s proceedings and its report

17   and recommendations, as well as the minority reports of Committee

18   members Gerald Walpin and the Honorable Howard A. Levine.

19         A.   The Committee’s Findings and Recommendations

20         The Committee found clear and convincing evidence that Hochbaum

21   had engaged in misconduct warranting the imposition of discipline.

22   See Majority Report at 15-16.    Specifically, the Committee found,

                                       2
 1   inter alia, that Hochbaum had (a) failed to timely file required

 2   documents or respond to directions from the Court in twelve appeals,

 3   resulting in dismissal of four of the appeals (although two were later

 4   reinstated); and (b) demonstrated a lack of full candor in two district

 5   court cases and in the Committee’s proceedings.1   Id. at 5-11, 15 n.6.

 6        Nearly all of Hochbaum’s defaults in the twelve appeals are

 7   identified in Court orders and notices entered on the docket; in some

 8   instances, defaults are reflected in non-public docket entries

 9   describing telephone or email communications with Hochbaum.        See

10   Second Circuit dockets for 12-1644, 11-5116, 11-2837, 11-2120,

11   11-1552, 10-4761, 09-3334, 08-0977, 07-5333, 06-5674, 06-3869,

12   05-2856.   The Committee’s findings concerning Hochbaum’s lack of full

13   candor are largely based on the analysis found in two district court

14   decisions concerning Hochbaum’s testimony in two cases, Aboulissan

15   v. United States, No. 03-CV-6214 (CBA), 2008 WL 413781, at *4-*5

16   (E.D.N.Y. Feb. 13, 2008), and United States v. Rosario, 237 F. Supp.


     1
       This Court’s records indicate that, in ten of the twelve appeals,
     Hochbaum was appointed to represent the appellants by the United
     States District Courts for the Eastern and Southern Districts of New
     York under the Criminal Justice Act (“CJA”). His CJA appointments
     in those cases continued in this Court pursuant to this Court’s Local
     Rule 4.1(a). In one of the remaining appeals, docketed under 08-0977,
     Hochbaum’s motion for CJA appointment was granted by this Court; in
     the final appeal, docketed under 11-5116, he was privately retained
     by the appellant. He is not a member of this Court’s CJA Panel.

                                       3
 1   2d   242,   246,   253   (E.D.N.Y.   2002).    Additionally,   regarding

 2   Aboulissan, the Committee stated that Hochbaum had presented it with

 3   an account of the relevant facts that was “not fully consistent” with

 4   the sworn statements he had presented to the district court.         See

 5   Majority Report at 10.        The Committee further concluded that it

 6   observed “a lack of propensity to full candor . . . in Mr. Hochbaum’s

 7   dealings with it.”       Id. at 11; see also id. at 15 n.6.

 8         After considering several mitigating and aggravating factors,

 9   id. at 13-15, the Committee recommended that Hochbaum be privately

10   reprimanded and required to attend continuing legal education (“CLE”)

11   classes in appellate practice, and to submit periodic status reports

12   to the Court, id. at 15-16.          Among the aggravating factors was

13   Hochbaum’s failure to timely respond to Committee requests for

14   documents and other information.         Id. at 14.    The Committee’s

15   decision to recommend a private, rather than public, reprimand was

16   largely based on its finding that a medical condition “was a

17   significant contributing cause of Mr. Hochbaum’s lack of diligence

18   and neglect” and that proper treatment of that condition should enable

19   him to meet his professional obligations going forward.        Id. at 15.

20   In their minority reports, Committee members Levine and Walpin

21   dissented from several findings bearing on Hochbaum’s credibility,




                                          4
 1   the severity of the misconduct, and aggravating and mitigating

 2   factors, and recommended a public reprimand.    See Minority Reports.

 3        B.    The Court’s September 2015 Order

 4        By order filed in September 2015, Hochbaum was directed to

 5   respond to the Committee’s reports by October 13, 2015.    He also was

 6   instructed as follows:

 7        A response is required even if you do not intend to object
 8        to any aspect of the reports. Any requests for extension
 9        of the time to respond must be made by motion in compliance
10        with the Federal Rules of Appellate Procedure and this
11        Court’s Local Rules.
12
13   Order filed Sept. 22, 2015, at 1.

14        In January 2016, the Court informed Hochbaum by telephone and

15   email that it had not yet received his response to the Committee’s

16   reports; a copy of our September 2015 order was attached to the Court’s

17   email message.   In the telephone conversation, Hochbaum stated that

18   he did not know that he was required to respond if he was in agreement

19   with the Committee’s recommendation, and that he would respond

20   shortly.    On March 16, 2016, the Court again inquired about the

21   response, and Hochbaum stated that it would be sent the next day.

22   Another inquiry was made on April 6, 2016; Hochbaum stated that he

23   had been hospitalized and would file his response that night.    After

24   yet another inquiry on April 14, 2016, Hochbaum complied with the

25   Court’s request that the response be filed by noon the next day.

                                       5
 1        C.    Hochbaum’s Response to the Committee’s Reports

 2        In his response to the Committee’s reports, Hochbaum stated,

 3   inter alia, that the Committee majority’s recommendation that the

 4   Court     impose   a   private   reprimand   “adequately   addressed   the

 5   significant mistakes [he had] made” and properly accounted for his

 6   medical condition “as a causative factor in [his] many missteps.”

 7   Response at 1.     He also stated that he had not previously responded

 8   to the Committee’s reports because they “did not request any response

 9   and [he] agreed with the conclusion set forth in the [Committee

10   majority’s] Report and Recommendation.”        Id.

11        Hochbaum did not address, or even mention, the September 2015

12   order, which explicitly required a response to the Committee’s reports

13   even if he did not intend to object to any aspect.         He also never

14   requested an extension of time to respond.        However, he did accept

15   responsibility for his delay, and stated that he has been out of work

16   “for considerable stretches of time this year” due to significant

17   family medical and legal issues, which exacerbated his own medical

18   condition.    Id. at 2.      He did not mention having been hospitalized.

19   Finally, he stated his belief that he is now “performing adequately

20   and timely on behalf of [his] clients,” although he has “not been so

21   successful when the actions [he] take[s] or fail[s] to take impact

22   on [him] alone.”       Id.

                                           6
 1   II.   Discussion

 2           “We give ‘particular deference’ to the factual findings of the

 3   Committee members who presided over an attorney-disciplinary hearing

 4   where    those   findings   are    based   on   demeanor-based   credibility

 5   determinations, and ‘somewhat lesser deference’ to credibility

 6   findings based on an analysis of a witness’s testimony.”              In re

 7   Gordon, 780 F.3d 156, 158 (2d Cir. 2015) (citing In re Payne, 707 F.3d

 8   195, 201 (2d Cir. 2013)).         “The Committee members who preside over

 9   a hearing are ‘in the best position to evaluate a witness’s demeanor

10   and tone of voice as well as other mannerisms that bear heavily on

11   one’s belief in what the witness says.’”            Id. (quoting Donato v.

12   Plainview-Old Bethpage Cent. Sch. Dist., 96 F.3d 623, 634 (2d Cir.

13   1996)).     In general, the credibility determinations of the presiding

14   Committee members will not be overruled unless they are clearly

15   erroneous.       Id.   “Where there are two permissible views of the

16   evidence, the factfinder’s choice between them cannot be clearly

17   erroneous.”      United States v. Murphy, 703 F.3d 182, 188 (2d Cir.

18   2012).

19           We accept the Committee majority’s credibility determinations,

20   as they are not clearly erroneous.          We also accept the Committee

21   majority’s other factual findings.              However, for the following

22   reasons, we do not agree that a private reprimand is appropriate.

                                            7
 1        The Committee majority properly treated Hochbaum’s medical

 2   condition as a substantial mitigating factor.    However, we conclude

 3   that two substantial aggravating factors warrant a public reprimand.

 4   First, Hochbaum’s lack of full candor and his failure to properly

 5   respond to various Committee requests for documents and other

 6   information   constitute   serious   breaches   of   his   professional

 7   obligations to the Court and the public.    We have previously stated

 8   that “the duty of candor is so basic, and so important to proceedings

 9   before the Court and Committee, that the possibility of suspension

10   should be considered in every case involving violation of that duty.”

11   Gordon, 780 F.3d at 161.   In his response to the Committee’s reports,

12   Hochbaum did not address the Committee’s statements regarding his lack

13   of candor and failure to properly respond to various Committee

14   requests.

15        Second, his failure to timely comply with our September 2015

16   order, which explicitly directed him to respond to the Committee’s

17   report by a set deadline, is another substantial aggravating factor.

18   In the context of an attorney who had failed to respond to the

19   Committee’s order to show cause why he should not be disciplined, we

20   stated the following:

21        An attorney’s default in disciplinary proceedings is a
22        serious breach of the attorney’s professional obligations
23        to the Court and the public. In such a case, the attorney
24        has not only failed to respond to a Court-sanctioned order,
                                       8
 1        but has done so after the Court already has found good cause
 2        to question the attorney’s very competence to continue
 3        practicing in this Court.       Furthermore, such defaults
 4        often seriously handicap the Committee and Court in their
 5        efforts to reach a fair determination based on a complete
 6        record, and usually result in waste of Committee and Court
 7        resources.
 8
 9        Thus, in most cases, when an attorney knowingly defaults
10        in a disciplinary proceeding, and fails to show good cause
11        or excusable neglect for the default, the resulting
12        disciplinary measure, for that misconduct alone, should be
13        no less than a public reprimand.
14
15   In re Warburgh, 644 F.3d 173, 176-77 (2d Cir. 2011).

16        Hochbaum’s failure to timely respond to the Committee’s reports

17   (and to our September 2015 order) has not seriously handicapped the

18   Court in reaching a decision based on a complete record, because his

19   response was eventually received.     However, he has delayed this

20   proceeding, wasted Court resources that were expended to obtain

21   compliance with an order of the Court, delayed the processing of other

22   litigants’ cases, and caused unnecessary expense to the public.     More

23   important, Hochbaum’s failure to timely respond to the September 2015

24   order is little different than the pattern of defaults underlying this

25   entire disciplinary proceeding, giving us little assurance that he

26   will now conform his conduct to expected professional norms.

27        The Committee concluded that Hochbaum’s medical condition was

28   a significant contributing cause of the defaults underlying this

29   proceeding, but there is no evidence in the record that it was a
                                       9
 1   contributing cause of his lack of candor, his failure to properly

 2   respond to Committee requests, or his failure to timely comply with

 3   our September 2015 order.      Additionally, we give little weight to

 4   Hochbaum’s suggestion, in his response to the Committee’s reports,

 5   that family medical and legal issues, which exacerbated his own

 6   medical condition, prevented him from timely complying with our

 7   September 2015 order.       Hochbaum’s assertions in his response are

 8   conclusory, lack any evidentiary support, do not address the entire

 9   period of delay from September 2015 to the present (since he only

10   references issues demanding his attention “for considerable stretches

11   of time this year”), and do not suggest that he lacked the ability

12   to file a simple motion for an extension of time.

13        We recently stated in a non-precedential order that “[a]n

14   attorney’s culpability for misconduct may be mitigated if, during the

15   relevant time period, the attorney was overwhelmed by the illnesses

16   or other dire circumstances of close family and friends, or by grief,

17   depression,   shock,   or   other   forms   of   mental   trauma.”   In   re

18   Villanueva, 633 F. App’x 1, 5 (2d Cir. Dec. 1, 2015).           However, we

19   also noted the importance of corroboration:

20        Due to the difficulty of assessing the impact of mental
21        trauma on an attorney’s professional obligations,
22        attorneys are encouraged to provide as much detail as
23        possible when raising that issue. Corroborating evidence,
24        including sworn statements from medical or mental health

                                          10
 1        professionals and others with personal knowledge of the
 2        impact, would be helpful.       However, the need for
 3        corroborating evidence will differ from case to case.

 4   Id. at 6 n.4.        During the Committee’s proceedings, Hochbaum’s

 5   assertions about his medical condition were corroborated by detailed

 6   testimony and a sworn statement of a medical professional; by

 7   contrast, his assertions in his response to the Committee’s reports

 8   are conclusory and deficient in the other respects noted above.2

 9        Attorney disciplinary proceedings are intended to protect the

10   public and the administration of justice from attorneys who fail to

11   satisfy their professional obligations to clients, the public, and

12   the legal system.       Because of the public’s strong interest in

13   disciplinary proceedings, disciplinary dispositions should be public

14   unless the misconduct was minor or there are significant mitigating
                      3
15   circumstances.        Although   Hochbaum’s   medical   condition   is   a



     2
       Even if Hochbaum’s medical condition was a significant contributing
     cause of his failure to timely comply with our September 2015 order,
     that would seriously undermine his assurances that his condition is
     now being properly treated and will no longer interfere with his
     professional obligations.
     3
        See ABA, STANDARDS FOR IMPOSING LAWYER SANCTIONS § III(A)(1.2) (1986,
     amended 1992) (stating that the “disposition of lawyer discipline
     should be public in cases of disbarment, suspension, and reprimand,”
     and that private discipline is appropriate “[o]nly in cases of minor
     misconduct, when there is little or no injury to a client, the public,
     the legal system, or the profession, and when there is little
     likelihood of repetition by the lawyer”).
                                        11
 1   significant       mitigating     circumstance,   it   is   outweighed     by   the

 2   significant aggravating factors discussed above.

 3          On the other hand, while the discipline we impose on Hochbaum

 4   is to be made public, we do not go as far as to impose a suspension.

 5   As noted above, we will consider a suspension whenever the duty of

 6   candor is violated, see Gordon, 780 F.3d at 161, but, here, the

 7   violation    of    that   duty    was   not   extensive    and   the   mitigating

 8   circumstances are substantial.

 9          Upon due consideration of the Committee’s majority and minority

10   reports, the underlying record, and Hochbaum’s response to the

11   reports, we adopt the findings and recommendations of the Committee

12   majority, except as discussed above, and publicly reprimand Hochbaum.

13   The misconduct found by the Committee warrants at least a public

14   reprimand.    Although Hochbaum’s medical condition, by itself, is a

15   strong enough mitigating factor to justify a private reprimand in the

16   absence of aggravating factors, the aggravating factors discussed

17   above require that the reprimand be public.

18   III.    Notice to Public and Other Courts

19          The Clerk of Court is directed to release this decision to the

20   public by posting it on this Court’s web site and providing copies

21   to the public in the same manner as all other unpublished decisions

22   of this Court.       Copies are to be served on: Hochbaum; the attorney

                                              12
1   disciplinary committee for the New York State Appellate Division,

2   Second Department; the United States District Courts for the Eastern

3   and Southern Districts of New York (specifically, the judges chairing

4   their attorney disciplinary and CJA committees); the judge chairing

5   this Court’s CJA committee; and all other courts and jurisdictions

6   to which this Court distributes disciplinary decisions in the ordinary

7   course.4


                                   FOR THE COURT:
                                   Catherine O=Hagan Wolfe, Clerk




    4
      Because the Committee’s reports and other documents in the record
    disclose medical and other personal information, the reports and
    remainder of the record will remain confidential. However, counsel
    to this panel is authorized to provide, upon request, all documents
    from the record of this proceeding to other attorney disciplinary
    authorities.    While we request that those 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 the same day as this order discusses,
    inter alia, Hochbaum’s disclosure and CLE requirements.

                                     13
