    10-90021-am
    In re David Yan


                      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:
    “SUMMARY ORDER”). A PARTY CITING 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 Daniel Patrick Moynihan United
    States Courthouse, 500 Pearl Street, in the City of New York, on
    the 10th day of August, two thousand ten.

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

    ______________________________________

    In re David Yan,                                       10-90021-am

                       Attorney.                           ORDER OF
                                                           GRIEVANCE PANEL

    ______________________________________


    For David Yan:                 David Yan, Esq., Flushing, New York
1

2         UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

3   DECREED that David Yan is PUBLICLY REPRIMANDED for engaging in

4   conduct unbecoming a member of the bar, and DIRECTED to comply

5   with the continuing legal education (“CLE”) requirements

6   described below.
1         Yan was referred to this panel based on his conduct in Xie

2    Qin Ye v. Mukasey, 08-0334-ag, which was dismissed after he

3    twice defaulted on this Court’s scheduling orders.    Yan’s first

4    default occurred in May 2008, when he failed to file his brief

5    by the deadline set by this Court pursuant to Yan’s request for

6    an extension.    See 08-0334-ag, order granting extension, filed

7    4/11/08.   Thereafter, this Court ordered Yan to show cause why

8    the appeal should not be dismissed based on that default.      See

9    id., order filed 7/14/08.   One day after the deadline for a

10   response, Yan filed a second motion for an extension, which this

11   Court granted.    See id., motion filed 7/29/08, order filed

12   8/8/08.    However, the Court warned that no additional extension

13   motions would be entertained and that the appeal would be

14   dismissed without further notice if the brief was not filed by

15   the new deadline.    See id., order filed 8/8/08.   In September

16   2008, the appeal was dismissed due to Yan’s failure to file a

17   brief.    See id., order filed 9/23/08.

18        In March 2009, the petitioner, represented by new counsel,

19   moved this Court for reinstatement of the appeal, alleging,

20   inter alia, that she had paid Yan a retainer of $1,000 for the

21   appeal, that no further money was due until “the appeal was

22   granted,” that the default dismissal was the result of Yan’s

23   ineffective assistance of counsel, and that the petitioner would

24   suffer irreparable harm if the appeal were not reinstated.     See

25   id., motion filed 3/19/09, and attachments.   This Court denied


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1    the motion for reinstatement, finding that the petitioner had

2    failed to make a showing of manifest injustice.    See id., entry

3    at 4/6/09.

4         A review of the eight other cases in this Court in which

5    Yan was counsel of record revealed that three of those cases

6    were dismissed based on Yan’s default.    In both Haitao Zeng v.

7    Mukasey, 09-0113-ag, and Xuefeng Wang v. Mukasey, 08-2129-ag,

8    Yang failed to file briefs or respond to this Court’s orders to

9    show cause why the appeals should not be dismissed based on his

10   defaults.    As a result, both appeals were dismissed.    See Haitao

11   Zeng, 09-0113-ag, order filed 6/22/09; Xuefeng Wang, 08-2129-ag,

12   order filed 12/24/08.    Additionally, in Xuefeng Wang, Yan filed

13   a motion for an extension six days after the deadline for a

14   response to the Court’s order to show cause; however, the case

15   had already been dismissed.    See Xuefeng Wang, 08-2129-ag,

16   motion received 12/24/08.    Although Yan was told that a motion

17   to reinstate the appeal was required, and Yan stated that he

18   would file one, no such motion was received by the Court.      In

19   Yun Xuan Jia v. U.S. Citizenship & Immigration Service, 04-3239-

20   ag, Yan defaulted twice on this Court’s briefing orders,

21   resulting in dismissal on the second occasion; however, the

22   Court later granted Yan’s motion for reinstatement.      See 04-

23   3239-ag, orders filed 12/16/05, 4/7/06, 4/21/06, 5/5/06.

24        In addition to the above-noted default dismissals, Yan

25   failed to respond to the Government’s motions to dismiss the

26   petitions for review in both Zhongping Yu v. Mukasey, 08-3452-
                                      3
1    ag, and Baogang Wang v. Holder, 09-2210-ag.    In Zhongping Yu,

2    the motion to dismiss was granted.    See 08-3452-ag, order filed

3    1/14/09.   In Baogang Wang, this Court’s records indicate that

4    Yan informed the case manager in June 2009 that a response would

5    be filed, but failed to do so; the motion remains pending.

6         By order filed in February 2010, this Court directed Yan to

7    show cause why he should not be subject to disciplinary or other

8    corrective measures based on the conduct described above.        The

9    order also directed Yan to provide this Court with additional

10   information regarding his disciplinary and litigation history,

11   and to list “all cases in this Court in which he is, or was,

12   counsel of record or performing legal services for any

13   litigant.”   In his response to the February 2010 order, Yan

14   discusses Xie Qin Ye in detail, but provides only sketchy

15   information about the remaining cases.    We find Yan’s response

16   inadequate for the following reasons.

17   I.   Clients’ Failure to Pay Fees in Xie Qin Ye and Haitao Zeng

18        Regarding Xie Qin Ye, Yan alleges that, although Xie Qin Ye

19   had paid an initial fee of $1,000, leading him to file the

20   petition for review, she failed to pay him the remaining $2,000

21   required for the writing of the brief.    April 2010 Response at

22   ¶¶ 9-13.   As a result, Yan did not file a brief, causing the

23   case to be dismissed on default.     Id. at ¶ 14.   According to

24   Yan, Xie Qin Ye then asked him to request reinstatement of the

25   case, which he declined to do, having determined that her case

26   had no realistic chance of success.     Id. at ¶¶ 17-19.   Yan
                                     4
1    states that discipline should not be imposed because the default

2    dismissal “was caused by Ms. Ye’s action and Ms. Ye knew the

3    status of her case and realistic chance of the success of her

4    case.”   Id. at ¶ 20.

5         Haitao Zeng may be another instance where Yan permitted the

6    case to be dismissed on default as a result of nonpayment of

7    legal fees.   Specifically, Yan states that “Haitao Zeng decided

8    not to continue after dodg[ing] the call from [Yan’s] office

9    regarding the payment of the legal fee.”      Id. at 4, ¶ 1.    Yan

10   also appears to allege that Haitao Zeng had decided to remarry

11   his ex-wife, who had been granted asylum, rather than continue

12   with the case pending in this Court.    Id.    Although Yan’s

13   explanation is unclear, we conclude that he is claiming either

14   that Haitao Zeng explicitly decided to not pursue the case in

15   this Court or that Yan inferred such a decision when Haitao Zeng

16   failed to pay the legal fees.   However, with regard to both

17   Haitao Zeng and Xie Qin Ye, Yan fails to explain why he did not

18   move to withdraw as counsel based on the failure to pay legal

19   fees or, if applicable, his client’s decision to not proceed.

20   He also fails to explain why he did not respond to this Court’s

21   order in Haitao Zeng that required him to file either a brief or

22   a motion for an extension of time to file a brief.      See Haitao

23   Zeng, 09-0113-ag, order filed 6/1/09.

24        As noted by Judge Newman of this Court, “a lawyer’s

25   practice of accepting an initial retainer fee and then

26   deliberately failing to take required action because of non-
                                     5
1    payment of additional fees, thereby permitting his client’s

2    petition to be dismissed, is unacceptable.”   Bennett v. Mukasey,

3    525 F.3d 222, 223 (2d Cir. 2008).   “[A] retained lawyer can

4    either pursue contractual remedies to collect unpaid fees or

5    seek leave to withdraw, but he cannot abandon his client for

6    lack of a promised payment nor neglect his professional

7    responsibilities until such payment has been made.”   Id. at 224.

8    Furthermore, if it is unclear whether a client wishes to

9    proceed, an attorney may, depending on the circumstances,

10   request: an extension of time to file his brief, a stay of the

11   appeal, withdrawal as counsel, withdrawal of the appeal, or

12   advice from the Court.   Yan’s failure to take any of the

13   preceding actions was a disservice to his clients, this Court,

14   and the public.

15   II.   Other Defaults and Inadequate Response to This Panel’s
16         February 2010 Order
17
18         Yan’s remarks concerning the remaining cases are largely

19   non-responsive.   Regarding Xuefeng Wang, Yan does not explicitly

20   address his failure to file a brief or a reinstatement motion,

21   or his statement to the Clerk’s Office that he would do so.

22   Instead, Yan merely states that Wang and his wife were divorced

23   after Yan filed the petition for review and that Wang was “going

24   to marry ... someone to reopen his case,” April 2010 Response,

25   at 4, ¶ 2, without explaining the significance of that

26   information.   However, Yan may have intended to convey that his

                                     6
1    client wished to pursue other possible relief in lieu of

2    continuing in this Court.

3         Regarding Yun Xuan Jia, where Yan defaulted twice on this

4    Court’s briefing orders, he states, without further explanation,

5    that there was a mistake regarding the docket number when he

6    submitted the brief, which resulted in the case’s dismissal, and

7    that the “brief was already filed.”   Id. at ¶ 3.   However, Yan

8    did not explain his first default and, after the second default,

9    his motion to reinstate made no reference to a docket number

10   mistake; instead, Yan stated only that he was busy advising

11   clients on tax matters and was handling two jury trials at the

12   time, which caused him to miss the last filing deadline.    See

13   04-3239-ag, motion filed 5/5/2006.

14        Regarding Zhongping Yu, where this Court granted the

15   Government’s unopposed motion to dismiss, Yan offers no explicit

16   explanation for not filing opposition papers, and states only

17   that there was unspecified “confusion about this case,” and that

18   the petition for review “was not based on the BIA’s final order

19   of removal.”   April 2010 Response at 5, ¶ 5.   Although this

20   suggests that Yan agreed with the government’s position in its

21   motion, see 08-3452-ag, motion filed 7/21/08, it does not

22   explain his failure to respond to that motion at all or to take

23   other appropriate action.

24        Regarding Baogang Wang, Yan alleges that his client

25   unsuccessfully pursued alternative relief (through his wife’s
                                     7
1    asylum application), that the client informed Yan that he was

2    still interested in having Yan file the brief in this Court, and

3    that Yan intended to request leave to file a late brief.    April

4    2010 Response, at 5, ¶ 6.    However, as of the date of this

5    order, Yan has not filed anything further in the case.     See 09-

6    2210-ag.

7           Finally, Yan also failed to list “all cases in this Court

8    in which he is, or was, counsel of record or performing legal

9    services for any litigant,” as required by our February 2010

10   order, since he did not note his representation of the

11   appellants in Marvel Enterprises v. Toy Season, Inc., 07-1064-

12   cv.    Even if Yan was replaced by another attorney in that case

13   (which is unclear, since no substitution papers were filed), our

14   order required the case to be listed.

15   III.    Conclusions

16          Since Yan’s response to our February 2010 order is unclear

17   in many respects, it is difficult to conclude whether his

18   defaults in the cases discussed above were all intentional –

19   based on his clients’ failure to pay fees or desire to pursue

20   other remedies – or whether some defaults were inadvertent.    To

21   the extent they were intentional, we advise Yan that an

22   appellant’s counsel of record who determines that the appeal

23   will not proceed for any reason is required to inform the Court

24   of the situation and seek to either withdraw the appeal or

25   withdraw as counsel.   Counsel of record may not end the
                                      8
1    representation of a client without taking affirmative action, or

2    end an appeal by allowing its dismissal for lack of prosecution.

3         Upon due consideration of Yan’s defaults in the cases

4    discussed above, his failure to respond to orders of this Court

5    and dispositive motions, and his failure to properly respond to

6    the February 2010 order, it is hereby ORDERED that Yan is

7    PUBLICLY REPRIMANDED and DIRECTED to attend, within six months

8    of the filing date of this order, CLE programs covering federal

9    appellate practice and appellate writing.1

10        Yan must disclose this order to all clients in cases

11   currently pending in this Court and to all courts and bars of

12   which he is currently a member, and as required by any bar or

13   court rule or order.   Yan also must, within fourteen days of the

14   filing of this order, file an affidavit with this Court

15   confirming that he has complied with the preceding disclosure

16   requirement.   Furthermore, the Clerk of Court is directed to

17   release this order to the public by posting it on this Court’s

18   web site and providing copies to members of the public in the

19   same manner as all other unpublished decisions of this Court,


          1
           The CLE courses must be approved by this Court’s Committee
     on Admissions and Grievances, which will determine the requisite
     number of hours for each subject matter once Yan provides
     information about the proposed CLE courses. Yan may submit that
     information to the Court, which will forward it to the Committee.
     Yan must certify his completion of the required CLE programs by
     sworn statement filed with both this panel and the Committee’s
     secretary no later than seven days after the end of the six-month
     period. The Committee may modify this deadline, either on motion
     or sua sponte.
                                    9
1    and to serve a copy on Yan, this Court’s Committee on Admissions

2    and Grievances, the attorney disciplinary committee for the New

3    York State Appellate Division, Second Department, the attorney

4    grievance committees for the United States District Courts for

5    the Southern and Eastern Districts of New York, and all other

6    courts and jurisdictions to which this Court distributes

7    disciplinary decisions in the ordinary course.

 8
 9                            FOR THE COURT:
10                            Catherine O’Hagan Wolfe, Clerk
11
12
13
14
15
16                            By: Michael Zachary
17                            Counsel to the Grievance Panel




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