    14-90008-am
    In re Castillo


                     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 19th day
    of January, two thousand eighteen.

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


    In re Gaspar Castillo,                                     14-90008-am

                              Attorney.                        ORDER OF
                                                               GRIEVANCE PANEL

    _____________________________________



1         For the reasons that follow, the record of this disciplinary

2   proceeding, except as to the portions described below, will be

3   disclosed to the judge presiding over, and the parties to, the 28
 1   U.S.C. § 2255 proceeding docketed in the United States District Court

 2   for the Northern District of New York under Bouchard v. United States,

 3   12-cr-381 (N.D.N.Y.).

 4   I.   Overview of Disciplinary Record

 5        By order filed in April 2016, this Court publicly reprimanded

 6   Gaspar Castillo for engaging in conduct unbecoming a member of the

 7   bar, and barred him from representing clients in this Court pursuant

 8   to the Criminal Justice Act for a two-year period.          Castillo was

 9   represented in the disciplinary proceeding by Robert Roche.

10        The record for this disciplinary proceeding consists of a number

11   of filings by Castillo and Roche and several orders of this panel,

12   including (a) a May 2014 public order imposing an interim suspension;

13   (b) a June 2014 public order terminating the interim suspension; (c)

14   a June 2014 non-public order imposing a private reprimand; (d) an

15   April 2016 public order imposing a public reprimand; and (e) a July

16   2016 public order imposing a reciprocal suspension, based on a

17   suspension imposed by a state court.       Until now, the only documents

18   in the record available to the public have been the above-listed

19   orders imposing public discipline.

20        Both     Castillo   and   Roche   filed   documents   in   Castillo’s

21   disciplinary proceeding that reference medical information about

22   themselves.     That information is found in a May 2014 letter from

                                            2
 1   Roche and a November 2015 affirmation from Castillo; both documents

 2   primarily address the allegations of misconduct in the disciplinary

 3   proceeding, although Roche’s letter also addresses the timing of

 4   Castillo’s response to the misconduct allegations.

 5   II.   The Present Request for Disclosure

 6         Elizabeth Bouchard, on behalf of Michael Bouchard, recently

 7   requested that Castillo’s disciplinary record be disclosed to her

 8   and   Michael    Bouchard   for   purposes   of   Mr.   Bouchard’s   §   2255

 9   proceeding, which commenced in October 2017.        See Bouchard v. United

10   States, 12-cr-381 (N.D.N.Y.), doc. 153 (§ 2255 motion, filed Oct.

11   17, 2017).      Mr. Bouchard alleges in his § 2255 motion that, inter

12   alia, he received ineffective assistance of counsel from Castillo,

13   and that Castillo’s disciplinary record in this Court is relevant

14   to those claims.     Id. at 48-88.   In November 2017, this Court ordered

15   Castillo and Roche to show cause why Castillo’s disciplinary record

16   should not be made public or, in the alternative, disclosed to

17   Elizabeth and Michael Bouchard and/or the judge presiding over Mr.

18   Bouchard’s § 2255 proceeding.        Castillo opposes disclosure; Roche

19   has not responded.1

20


     1 For present purposes, we do not deem Roche’s failure to respond to
     be a waiver of the disclosure issue, and assume that he opposes
     disclosure of the medical-related information concerning him.
                                       3
 1   III. Disposition

 2         Upon due consideration, it is hereby ORDERED that, with the

 3   exceptions noted below, the disciplinary record be provided to the

 4   judge and parties in Michael Bouchard’s § 2255 proceeding.           The

 5   exceptions are as follows:

 6       (a)   Roche’s May 2014 letter will be redacted to delete
 7             several sentences on pages 1 and 2 concerning medical
 8             information relating to Roche (the first, third, fourth
 9             and fifth redactions), and two sentences and a portion
10             of a sentence on page 1 concerning medical information
11             relating to Castillo (the second redaction);
12
13       (b)   Castillo’s November 2015 affirmation will be redacted
14             to delete a sentence on page 2 relating to a medical
15             issue; and
16
17       (c)   The documents concerning Bouchard’s disclosure request
18             will not be disclosed: the request itself, this Court’s
19             November 2017 order, and Castillo’s opposition to the
20             request, which concern only the present disclosure
21             issue.2
22
23         Although Bouchard’s criminal case was not at issue in Castillo’s

24   disciplinary proceeding, we conclude that the disciplinary record

25   is arguably relevant to the ineffective assistance of counsel claims

26   raised in Bouchard’s § 2255 proceeding.       We further conclude that

27   any interest Castillo and Roche may have in keeping the entire

28   disciplinary    record   confidential   is   outweighed   by   Bouchard’s


     2 The Court’s deliberative documents, such as memoranda prepared
     in-chambers or by counsel to the Grievance Panel that were not
     intended for filing, are not part of the disciplinary record and are
     not subject to disclosure.
                                       4
 1   interest in disclosure, particularly since: Castillo’s disciplinary

 2   proceeding resulted in public discipline, much of the disciplinary

 3   record is already public, and redaction of specific sensitive

 4   information will protect Castillo’s and Roche’s privacy interests.

 5        This Court does not have any rule or case law governing the

 6   disclosure of disciplinary records after an attorney disciplinary

 7   proceeding results in public discipline.        However, the rules of

 8   other courts and disciplinary authorities support disclosure to

 9   varying degrees.

10        Only a few other circuits have published rules covering the

11   issue.   The relevant Third Circuit rule makes public, with certain

12   exceptions,   any   disciplinary   proceeding   resulting   in   public

13   discipline.    See Third Circuit Rules of Attorney Disciplinary

14   Enforcement, Rule 15 (July 2015).    The Sixth and Eleventh Circuits

15   treat disciplinary records as confidential, with certain exceptions,

16   but permit the chief judges of those circuits to make records public.

17   See Sixth Circuit Rule 46(c)(2) (Aug. 2012); Eleventh Circuit Rules

18   Governing Attorney Discipline, Rule 2(E) (Jan. 2002).3



     3 The Sixth Circuit’s Rule 46(c)(2) provides that “[a]ll records
     pertaining to disciplinary proceedings before the court must be filed
     under seal, unless the chief judge orders otherwise.” The Eleventh
     Circuit’s Rule 2(E) provides that “[e]xcept as provided in Rule 13(C)
     [permitting public discipline orders to be transmitted to other
     disciplinary authorities], unless and until otherwise ordered by the
                                       5
 1        The relevant statutes and rules of New York, Connecticut, and

 2   Vermont, governing disclosure of state disciplinary records, also

 3   would permit the disclosure of Castillo’s disciplinary record.

 4        Under New York law, state disciplinary records are initially

 5   confidential, but can be divulged upon a showing of good cause and,

 6   in any event, become public if “charges are sustained by the justices

 7   of the appellate division.”    N.Y. Judiciary Law § 90(10).       Under

 8   Connecticut law, a disciplinary record is public, with certain

 9   exceptions that are not now relevant, if “probable cause has been

10   found that the attorney is guilty of misconduct.”   Conn. Gen. Stats.

11   § 2-50(c).   Under Vermont law, in relevant part, all Professional

12   Responsibility proceedings and records “formally submitted to a

13   hearing panel after the filing of formal charges or stipulation shall

14   be public unless [an interested party] obtains . . . a protective

15   order for specific testimony, documents, or records,” except that

16   “the work product of the [Professional Responsibility] Board,

17   hearing panel, and their counsel, as well as the deliberations of

18   the hearing panel, Board, and Court shall remain confidential.”    Vt.




     Chief Judge, all reports, records of proceedings, and other materials
     presented by the Court, the [Court’s] Committee [on Lawyer
     Qualifications and Conduct], or any person to the Clerk of the Court
     (the Clerk) for filing shall be filed and maintained as sealed and
     confidential documents and shall be labeled accordingly by the Court,
     the Committee, or the person presenting such matters for filing.”
                                       6
 1   Supreme Ct. Admin. Order No. 9, Perm. Rules Governing Estab. &

 2   Operation of Prof’l Resp. Program, Rule 12(B).

 3          Additionally, the American Bar Association’s Model Rules for

 4   Lawyer    Disciplinary       Enforcement        provide    that   disciplinary

 5   proceedings become public, with certain exceptions, once there is

 6   a    “determination   that    probable    cause    exists    to   believe   that

 7   misconduct occurred” and formal charges have been filed and served.

 8   ABA, Model Rules for Lawyer Discipl. Enf., Rules 16(A) and (C) (Aug.

 9   1989, amended Aug. 2002); id., Rules 16(D)-(E) (exceptions).

10          For present purposes, we need not determine whether all

11   disciplinary records, or all disciplinary proceedings resulting in

12   public discipline, are presumed to be open to the public.                 Nor do

13   we    decide   that   all    references    to    medical    information     in   a

14   disciplinary record must be redacted when the record is disclosed.

15   We hold only that, in this case, Bouchard has shown good cause for

16   the disclosure of Castillo’s record with certain redactions, and that

17   the redacted portions contain personally sensitive information that

18   is either irrelevant to Bouchard’s § 2255 claims (e.g., Roche’s

19   medical information) or, at most, tangential to those claims (because

20   the sensitive information relates to why certain defaults occurred,

21   not whether they occurred).

22

                                           7
 1        We   reject   Castillo’s   suggestion   that   disclosure   of   his

 2   disciplinary record by this Court is barred absent his execution of

 3   a release pursuant to the privacy provisions of the Health Insurance

 4   Portability and Accountability Act of 1996 (“HIPAA”).      First, this

 5   Court is not one of the entities covered by that statute.        See 42

 6   U.S.C. § 1320d-1(a) (stating that the statute applies to health

 7   plans, health care clearinghouses, and health care providers);

 8   Executive Order No. 13181, Dec. 20, 2000, 65 F.R. 81321 (“HIPAA

 9   applies only to ‘covered entities,’ such as health care plans,

10   providers, and clearinghouses. HIPAA regulations therefore do not

11   apply to other organizations and individuals that gain access to

12   protected health information, including Federal officials who gain

13   access to health records during health oversight activities.”); 45

14   C.F.R. § 160.103 (“Covered entity means: (1) A health plan. (2) A

15   health care clearinghouse. (3) A health care provider who transmits

16   any health information in electronic form in connection with a

17   transaction covered by this subchapter.”).

18        Second, and in any event, the redactions required by this order

19   will avoid any unauthorized or inappropriate disclosure of medical

20   information.

                                FOR THE COURT:
                                Catherine O=Hagan Wolfe, Clerk of Court




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