08-9050-am
In re Theodore Cox


                          United States Court of Appeals
                                                FOR THE
                                         SECOND CIRCUIT


              At a stated Term ofthe 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 3rd day of May, two thousand ten,

Present:
                 Jose A. Cabranes,
                 Robert D. Sack,
                 Richard C. Wesley,
                                   Circuit Judges.



                                                                            08-9050-am
In re Theodore Cox,
                                                                            AMENDED
                         Attorney_                                          ORDER OF
                                                                            GRIEVANCE P ANEL*




       By order filed in April 2008, this Court referred Theodore Cox to the Court's Committee on
Admissions and Grievances ("the Committee") for investigation of the matters described in that
order and preparation of a report on whether he should be subject to disciplinary or other corrective
measures.

        During the Committee's proceedings, Cox had the opportunity to address the matters
discussed in the Court's referral order and to testify under oath at a hearing held on November 18,
2008. Cox was represented during the Committee's proceedings by Hal R. Lieberman, Esq., of the
law firm of Hinshaw & Culbertson. Presiding over the hearing were Committee members Paul C.
Cumin, Esq., Eileen M. Blackwood, Esq., and Terrence M. Connors, Esq. In April 2009: the
Committee filed with the Court the record of the Committee's proceedings and its report and
recommendations. Thereafter, the Court provided Cox with a copy of the Committee's report, and
Cox responded.

        In its report, the Committee concluded that there was clear and convincing evidence that Cox



        *   This order is amended solely to correct the identification of Cox's counsel.
had engaged in conduct warranting the imposition of discipline. See Report at 2, 11. After noting
the presence of various aggravating and mitigating factors, id. at 10-11, the Committee
recommended that Cox be publicly reprimanded and subject to certain reporting requirements, id.
at 11. In his response, Cox stated that he had no objections to the factual or legal determinations in
the Committee's report, but requested clarification as to the date of commencement ofthe reporting
requirements recommended by the Committee. See Response at 1.

        In large part, Cox's referral to the Committee was based on his history of defaulting on this
Court's scheduling orders. That situation has improved. A review of this Court's records currently
indicates that Cox has faced briefing deadlines in well over 100 cases since he became aware of the
Committee's proceeding and has timely filed his briefs in the great majority of his cases. As far as
can be determined, his recent defaults are limited to the following cases.

        In both Ben Chen v. Holder, 09-1506-ag, and Shun Ting Ke v. Holder, 07-5078-ag, Cox
permitted the briefing deadlines to pass without filing his briefs or taking other appropriate action,
causing this Court to issue orders to show cause why the appeals should not be dismissed based on
his defaults. See Ben Chen, 09-l506-ag, order filed Sept. 14,2009; Shun Ting Ke, 07-5078-ag, order
filed Nov. 18,2008. In both instances, Cox timely responded to the orders and the cases proceeded.
Thereafter, however, Cox submitted defective briefs in both cases, which were cured only after the
filing deadlines. See Ben Chen, 09-1506-ag, entries for Oct. 16, 2009 (defective brief received on
deadline) and Oct. 21, 2009 (corrected version received); Shun Ting Ke, 07-5078-ag, entries for July
15, 2009 (defective supplemental brief received one day past deadline) and July 21, 2009 (corrected
version received). In another case, Cox filed a stipulation to withdraw the case six days after the
briefing deadline had passed, without having requested an extension of time or other relief. See Jin
Rong Chen v. Holder, 09-1265-ag, stipulation received Sept. 22, 2009 (dated one day past deadline
for brief). Finally, in Zou Ya Qing v. Mukasey, 08-3533-ag, Cox submitted his brief and a motion
for an extension of time one business day after the deadline for his brief. See Zou Ya Qing, 08-3533­
ag, motion and brief filed Nov. 17,2008. The Court granted the extension and the brief was filed.
See id., order filed Nov. 19,2008. It is our hope that Cox will make further improvements in this
area. I


        I We also are aware of other cases in which Cox's briefs were received by the Court from
one to five days after the deadline, but Cox was not required to file a motion for an extension of
time. See cases docketed under 09-2 155-ag, 08-5597-ag, 08-4191-ag. Since the affidavits of
service attached to those briefs indicate that the respondent was served with the briefs on or
before the filing deadline, we assume that the briefs were timely filed pursuant to Rule
25(a)(2)(B) of the Federal Rules of Appellate Procedure, although the date of mailing to the
Court was not specified in any attachment to the briefs. See Rule 25(a)(2)(B) ("A brief or
appendix is timely filed ... if on or before the last day for filing, it is: (i) mailed to the clerk by
First-Class Mail, or other class of mail that is at least as expeditious, postage prepaid; or (ii)
dispatched to a third-party commercial carrier for delivery to the clerk within 3 days."). In future
cases, Cox should ensure that the date of mailing to the Court is provided in his service affidavit
for purposes of Rule 25(a)(2)(B).


                                                  2
        Upon due consideration of the Committee's report, the underlying record, and Cox's
submissions, it is hereby ORDERED that Cox is PUBLICLY REPRIMANDED for the misconduct
described in the Committee's report and DIRECTED to comply with the reporting requirements
described on page 10 of the Committee's report. Regarding the commencement of the reporting
requirements: (a) the initial report from Cox is due six months from the date of entry of this order;
and (b) that initial report is to cover the time period beginning April 20, 2009 and ending on the due
date for the report.

         The text of this panel's April 2008 order and the Committee's report are appended to, and
deemed part of, the present order for the following disclosure purposes. Cox must disclose this order
to all courts and bars of which he is currently a member, and as required by any bar or court rule or
order. Furthermore, the Clerk of Court is directed to release this order to the public by posting it on
this Court's web site and providing copies to members of the public in the same manner as all other
unpublished decisions of this Court, and to serve a copy on Cox, this Court's Committee on
Admissions and Grievances, the attorney disciplinary committee for the New York State Appellate
Division, First Department, and all other courts and jurisdictions to which this Court distributes
disciplinary decisions in the ordinary course.


                                               FOR THE COURT: 

                                               Catherine O'Hagan Wolfe, Clerk 



                                               By:     /1c'~?Il~G
                                                       Michael hary
                                                       Counsel to the Grievance Panel



                                           APPENDIX]

                                     Text of April 2008 order


        For the reasons that follow, Theodore Cox is referred to this Court's Committee on
Admissions and Grievances for investigation of the matters described below and preparation of a
report on whether he should be subject to further disciplinary or other corrective measures. See
Second Circuit Local Rule 46(h). We express no opinion here as to an appropriate disposition. The
Committee may, of course, in the first instance, determine the appropriate scope of its investigation.

       Cox was referred to this panel after defaulting twice in Liang Chen v. Immigration and
Naturalization Service, No. 02-4828-ag - first by failing to file a brief in compliance with the
scheduling order, causing the appeal to be dismissed, see id., order filed Aug. 22, 2005, and, later,


                                                  3

after reinstatement was granted and the appeal was provisionally withdrawn by stipulation, by failing
to timely request reinstatement under the terms of the stipulation, see id., order filed July 20, 2007
(denying reinstatement); id., order filed Oct. 30, 2007 (granting reinstatement and referring Cox to
this panel for a determination of whether any disciplinary or corrective measure might be warranted).
However, Cox's performance in other appeals, described below, is also relevant to the issue of
whether he should be disciplined or subject to other corrective measures.

         In August 200S, Cox was sanctioned by this Court for his failure to timely file briefs and for
filing false affidavits of service. See Jin Hua Liu v. Bureau of Citizenship & Immigration Services
(BCIS) , No. 03-4640-ag, order filed Aug.24, 200S (order entered in five cases). The Court imposed
monetary sanctions and warned that future filing defaults, or false affidavits, would result in more
severe fines and possible suspension or disbarment. Id. In addition, the Court appointed a special
master to oversee Cox's practice for two years, with Cox to bear all costs of that appointment. Id.;
id., order filed Oct. 17, 200S (appointment order).

        In March 2006, Cox was ordered to show cause why he should not be sanctioned or referred
to the disciplinary committee for filing a stipulation to withdraw the petition for review in Keita v.
BCIS, OS-4606-ag, without the petitioner's authorization, and for failing to comply with a scheduling
order in Yu Fang Zhang v. Bureau of Citizen, 03-4S86-ag. See Keita, No. OS-4606-ag, order filed
Mar. 24, 2006; Yu Fang Zhang, No.03-4S86-ag, order filed Mar. 24, 2006. Following oral argument,
this Court imposed a $1000 sanction in Keita and a $3000 sanction in Yu Fang Zhang. See Keita,
No. OS-4606-ag, order filed Jun. 21, 2006; Yu Fang Zhang, No.03-4S86-ag, order filed Jun. 21,
2006.

        During 2006, the special master appointed to oversee Cox's practice submitted four reports
concerning Cox's practice; however, issues relating to Cox's payment of the special master's fees
led to both the institution of ancillary proceedings to resolve those issues and the suspension ofthe
special master's supervision of Cox's practice. See Jin Hua Liu, No. 03-4640-ag, orders filed
Dec.26, 2006, Apr.16, 2007, Aug. 31,2007. Additionally, although the special master's two-year
term was to extend to October 2007, it effectively ended upon, or soon after, the filing ofher fourth
report in November 2006. See id., report of special master, filed Nov. 20, 2006. That last report
noted both various improvements in Cox's performance and areas where further improvements were
recommended. Id. In his response to the fourth report, Cox offered various clarifications and
corrections of matters discussed in the report. Id., response filed Dec. 21, 2006; see also id.,
amended motion to terminate appointment of special master, filed Jan. 31,2007; special master's
response to amended motion, filed Feb. 2,2007; letter withdrawing amended motion, filed Mar. 8,
2007.

       Finally, in Xai Mei Liu v. Mukasey, No. 07-1663-ag, the appellant alleged that Cox, while
previously serving as her attorney, had failed to file a timely petition for review from an order ofthe
Board of Immigration Appeals, thus waiving her challenge to that order. See id., brief filed Aug. 24,
2007, at 8, 14.



                                                  4

Cox currently has over eighty petitions for review pending in this Court, and at least thirty petitions
that have been deferred or withdrawn without prejudice pending issuance of the decisions in several
cases involving issues that are relevant to the deferred and withdrawn cases (the "related cases").
See, e.g., Qui Hang Qui v. Mukasey, No. 07-3877-ag, stipulation and order filed Jan. 16,2008
(withdrawing petition pending ruling in the cases docketed under 05-6367 -ag, 06-0004-ag, 06-2998­
ag, and 05-5485-ag). A number of the cases that were withdrawn without prejudice must be
reinstated by May 6, 2008, even if decision on the related cases is outstanding. See, e.g., id; Bing
Hui Lin v. BClS, No. 06-1972-ag, stipulation and order filed Jan. 17,2008; Zhou Yuan Ni v. BelS,
No. 06-1705-ag, stipulation and order filed Jan. 9, 2008. Additionally, he has at least twenty-five
briefs due in the next several weeks.

        We are not aware of any other defaults by Cox since his last default in Liang Chen.
However, in light of that default, the large number of pending or soon-to-be-pending cases, the
matters discussed in the special master's fourth report and Cox's response to that report, and the
premature end of the special master's supervision, we are concerned whether Cox is able to fulfill
all of his professional responsibilities in this Court or whether new disciplinary or corrective
measures are necessary.

        Upon due consideration of the matters described above, it is ORDERED that Theodore Cox
is referred to this Court's Committee on Admissions and Grievances for investigation and
preparation of a report consistent with Federal Rule of Appellate Procedure 46, this Court's Local
Rule 46(h), and the Rules of the Committee on Admissions and Grievances.

      The Clerk of Court is directed to serve a copy of this order on both Cox and the Committee
on Admissions and Grievances.

                                               FOR THE COURT: 

                                               Catherine O'Hagan Wolfe, Clerk 


                                               By:           Is/_ _ _ _ _ __
                                                       Michael Zachary
                                                       Supervisory Staff Attorney
                                                       Counsel to the Grievance Panel




                                                  5

                                           APPENDIX 2

                               April 2009 Report of the Committee
                                 on Admissions and Grievances




                             REPORT & RECOMMENDATION 

                             Re: In re Theodore Cox, #08-9050-am 


I. Introduction

        By Order dated April 29, 2008, the United States Court of Appeals for the Second Circuit
(the "Court's Order") referred Theodore Cox to this Committee, for investigation of his conduct
before the Court and preparation of a report on whether he should be subject to disciplinary or
other corrective measures.

         Cox is a very active immigration practitioner, concentrating on Chinese asylum claims,
with approximately 150 active circuit court cases,'190% of them in the Second Circuit. Cox was
referred to this Committee after defaulting twice in Liang Chen v. INS, No. 02-4838-ag-first, by
failing to file a brief in compliance with the scheduling order and then by failing to timely request
reinstatement under the terms of a stipulation of dismissal. The Court~s Order raises several
other areas of concern about his conduct, however, including (l) failing to comply with
scheduling orders in two other cases (Jin Hua Liu v. BCLS, 03-4640-ag, and Yu Fang Zhang v.
BCIS, 03-4586-ag), (2) filing false affidavits of service in one of those cases (Jin Hua Liu), (3)
filing a stipulation of withdrawal without his client's authorization in a third case (Keita v. BCIS,
05-4606-ag), and (4) failing to file a timely petition for review in a fourth case (Xai Mei Liu v.
Mukasey, 07 -1663-ag). In addition, the Committee learned of two other pending concerns,
including (5) according to a BIA judge, filing repetitive motions in front of the BIA in a fifth
case, and (6) missing a court date, according to a complaint by replacement counsel in a sixth
case.

        As a result of his misconduct in Jin Hua Liu v. BCIS, 03-4640-ag (failure to file a brief in
compliance with the scheduling order and filing false affidavits of service), in August 2005, Cox
was sanctioned by this Court, which imposed monetary sanctions and in October 2005 appointed
a special master to oversee his practice. The Departmental Disciplinary Committee for the First
Judicial Department also privately reprimanded Cox for the same, as well as additional, behavior
in this Court. During the special master's appointment, in March 2006, Cox was fined $1000 by
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this Court for filing a stipulation of withdrawal without the client's authorization (Keita) and
$3000 for failing to comply with a scheduling order in another case (Xai Mei Liu).

        Based on clear and convincing evidence, the Committee concludes that Cox has
committed misconduct and that his misconduct warrants a sanction. The Committee
recommends that Cox be publicly reprimanded. In addition, Cox should be required, in
connection with his practice in any federal court in the Second Circuit or in any federal
administrative agency whose action is subject to the Second Circuit's review, to submit to the
Committee sworn statements identifying under oath each and every instance during each of th~
four reporting periods described below in which (1) a submission is not filed or filed out of time;
(2) an application is made for permission to make a late filing only after the due date has passed;
or (3) false affidavits of service have been filed. The following constitutes the Committee's
report and recommendation to impose discipline on Cox.

II.        The Disciplinary Proceeding

       On May 2,2008, this Committee issued an Order to Show Cause regarding Cox's
conduct as alleged in the Court's referral order. On July 2, 2008, Cox submitted a written
response to the Order to Show Cause with additional materials on August 1. On November 10,
2008, Cox submitted pre-hearing documentation to the Committee, and a hearing was held on
November 18, 2008 by a sub-committee consisting of Paul Cumin, Terry Connors, and Eileen
Blackwood. Patrick Shilling was also present for the sub-committee. Cox appeared with his
counsel, Hal Lieberman, and presented four witnesses: Thomas H. Nooter, Esq., Joshua
Bardavid, Esq., Peter D. Lobel, Esq., and Prof. Steve Golub, Ph.D. Attorney Lieberman then
submitted additional materials requested by the panel on December 2, 2008.

III.       Factual Background

       The following facts are taken from court records, Cox's written submissions, and the
testimony presented at hearing:

        Cox is an experienced immigration practitioner. He graduated from Brooklyn Law
School in 1982 and was admitted to practice law in New York State in 1983. He is now admitted
in all New York District Courts, all U.S. Circuit Courts of Appeal, and the U.S. Supreme Court.
He opened his own practice in 1993, and now has five attorneys, six paralegals, and a secretary
working for him. He also contracts with two former associates to prepare appellate briefs for
him. Cox estimates that 95% of his clients are Chinese, and about one-third of his practice is in
the Circuit Courts, primarily the Second Circuit. He regularly handles pro bono BIA appeals for
a Catholic clinic and occasional pro bono juvenile cases for the immigration court. He is a
member of the American Immigration Lawyers Association and has presented at a half-dozen
CLE programs. About 20 of his cases have resulted in published decisions.

        Prior to 2005, Cox and his counsel represent that he had not been the subject of any
disciplinary proceedings. In 2004-05, however, he found himself overwhelmed by a confluence
of events, both personal and professional. Changes in immigration practice led to a large number
of BIA decisions, within a very short time, on cases that had pending for some years, flooding
Cox's (and other practitioners') offices with petitions for review to be filed. In the fall of2004,
he asserts he received scheduling notices from the Court on more than 100 briefs due. At the
22953626.. 1
                           •
same time, he was working with his wife, a Chinese refugee, on her asylum proceedings, which
                                                                                                        3

were not going well. Before the First Department, he asserted that he was suffering from
depression and taking medication at this time. As a result, he fell behind in filing briefs in about
50 cases.

         A.    This Court's Prior Sanctions

           Cox filed a petition for review of the decision of the BIA inJin Hua Liu v. Bureau of
Citizenship, No. 03-4640-ag, in April 2003. The time for filing the petitioner's brief was
extended until December 2004, but no brief was filed, although other motions were pending. On
February 18, 2005, the Court ruled on those motions and notified Cox that it would be issuing a
final briefing scheduling. This order included a warning that "Petitioner is advised that no
further delays will be tolerated: failure to comply with this scheduling order will result in
dismissal of the petition for review." The petitioner's brief was due May 12,2005, but was not
filed until June 7, 2005, and only after the government had filed a motion for default and request
for sanctions for the failure to file the brief. This brief either was not filed with the government,
or at least not filed in the time asserted in the certificate of service.

         In addition, problems arose with the untimely filing of briefs and untimely service on the
government in four other cases--Huo Qiang Chen, No. 03-41216, Shan Wen Zheng, No. 03­
40146, YeongJe Li, No. 02-4185, and Wu Qian Huang, 02-4723 (L), 03-40273 (Con). In Chen,
Cox did not file a brief within the Court-imposed timeline, but filed a motion to file the brief out
of time a day after the brief was due. This motion was not served on the government, although it
included an affirmation of service signed by Cox. The government only learned of the filing
almost a month later when the Court granted the motion. The brief was then filed with the
government several days later with the false certificate of service. Cox apparently had defaulted
in filing briefs in 33 other cases, some of which were reinstated. He had also filed approximately
50 other false affidavits of service, most in June 2005, some of which were never served on the
government. As a result of this conduct, Cox was sanctioned $500 by the Court.

          The court dismissed Jin Hua Liu's petition for review and ordered Cox to show cause
why he should not be sanctioned. Upon his motion, the petition for review was reinstated on
August 24,2005, and Cox was sanctioned $200. In addition, on October 17,2005, the Court
appointed a special master for two years to ensure that Cox a) complied with all deadlines, b) did
not take on an unmanageable workload, and c) was truthful in all certificates of service.
Meanwhile, the petitioner's brief in Jin Hua Liu was filed on September 27 (one day after the
due date of September 26). Jin Hua Liu's petition for review was substantively denied on April
11,2006.

        During this time, in Keita, 05-4606, Cox filed a motion to withdraw the petition for
review, after a conversation with his client in which the client had indicated he did not want to
continue. Cox understood the client to mean that he wanted to withdraw the petition for review,
but apparently the client intended to obtain another attorney and not continue with Cox. Cox was
utilizing the client's friend as an interpreter, rather than a professional interpreter. This Court .
issued an order to show cause why Cox should not be sanctioned for moving to withdraw without
his client's consent.

         This mistaken withdrawal motion came soon after Cox had apparently failed to file the
initial brief, had then permitted a default dismissal a year later, and had failed to request
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reinstatement for another four months in Yu Fang Zhang, 03-4586. It also came at a time when,
according to the special master's report, this Court had issued Cox orders to show cause in six
other cases (between the end of March and May 1, 2006) why petitions for review should not be
dismissed for lack of prosecution.

           In June 2006, Cox was sanctioned $1000 in the Keita matter and $3000 in Zhang after
failing to appear at the scheduled oral argument on these orders to show cause. Cox asserts he
did not receive notice of the argument, and the special master who was copied on the court's
letter confirms that she did not receive it either. Despite this, Cox's motion to reconsider the
sanctions was denied, and he paid the fines.

           The special master filed four reports with the Court-the first dated February 16, 2006,
and the last dated November 20,2006. The special master's appointment was suspended on
December 26, 2006, and remanded to the EDNY magistrate to review a fee dispute between the
special master and Cox, noting that "the Court assumes that Cox is aware that his continuing
failures timely to abide with his obligations to the Court reflect negatively on his reputation with
the Court and may subject his license to practice before the Courts of New York to scrutiny. The
Court requests that Cox bring immediately current any defaulted amounts due and pay timely his
remaining obligations under the entered Judgment." On August 31, 2007, the court issued its
final order to Cox that he bring himself current with the special master.

          Cox represents that he has now worked out a payment schedule with the special master,
and he is currently paying her approximately $3000 a month through November 2009. He
represents that he is current with payments to her on this obligation and submitted a letter from
her with his original response confirming that he was current in June 2006. When completely
paid, Cox represents that he will have paid the special master approximately $150,000.

         B.    The Special Master's Reports

           The special master issued four reports, which reflect a considerable improvement in
Cox's office management and compliance with court orders. In the first report, issued in
February 2006, the special master notes that Cox had changed his practice to have briefs and
motions date-stamped in the Southern District U.S. Attorney's Office before filing with the
Court, thus obviating the need for certificates of service. She did report a number of inaccurate
certificates of service in the BIA, immigration courts, and other courts of appeal. In the first four
months of her supervision, Cox filed 47 timely and 11 late briefs with this Court, and missed five
other deadlines. However, the special master found significant improvement in Cox's
management, including an increase in staffing and better management practices.

           The second report, issued in June 2006, notes several continuing problems with
accurate certificates of service. Eighteen timely and three untimely briefs were filed in this
Court, but the special master noted seven cases with problems (e.g., filing requests for extension
on the day the brief was due). The orders to show cause in Keita and Zhang occurred during this
time as well. The special master also noted a few problems in other courts with not filing or late
filing of briefs. The special master also reported that Cox had significant staff changes, with all
three attorneys and a paralegal resigning, and one new attorney and two new paralegals hired.

        The third report, issued in August 2006, is somewhat limited by difficulties with Cox's
compliance in providing the special master with information, a task he found expensive and
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burdensome. In what was submitted, she found no inaccurate certificates of service, and only
one untimely brief in this Court, although there were several last-minute withdrawals of appeals.
 She found a few other problems with timeliness in other fora.

          The final report, in November 2006, reflects the breakdown of the relationship between
Cox and the special master. The special master noted that she was not receiving the information
she needed to make a complete review of Cox's practice, so the problems that she did note stand
out. For example, she found three civil cover sheets in which Cox had represented that he was
not the subject of any disciplinary action, although the First Department proceedings were
pending. She found four inaccurate certificates of service (out of more than 162 filings) in the
Second Circuit and a few others in other tribunals. Although these appeared to be mistakes, the
special master noted that Cox's "lack of concern for accuracy" continued to trouble her. She
reported significant improvement in the timeliness of filing with no late filings. While she found
significant improvement in his office management, she was disturbed that he reported to her
having 450 active cases, but her office's count of his open cases at the time was 592. She also
reported that on occasion when her office called to inquire about a case, she would be told that
Cox had no record of its existence, although it was his office that had previously informed the
special master about it.

         C.    The First Judicial Department's Sanctions

          This Court referred Cox to the Appellate Division of the Supreme Court, First Judicial
Department of the State of New York, and a petition for discipline was filed on February 16,
2006. The First Department applied collateral estoppel, based on this Court's August 24, 2005,
order in Jin Hua Liu, 03-4640, and found that Cox had engaged in professional misconduct. It
referred the issue of sanctions to Referee Irwin Kahn, who, after a hearing, recommended a
private reprimand. A hearing panel of the Departmental Disciplinary Committee accepted that
recommendation, and a private reprimand was issued on June 29,2007.

         D.    Issues Since Sanctions Were Determined

            Cox was referred to this panel after defaulting twice in Liang Chen v. INS, 02-4828-ag.
 Initially, Cox failed to file a brief in compliance with the court's scheduling order, and the
petition for review was dismissed on August 22, 2005. Reinstatement was granted in September
2006, but the petition for review was withdrawn by stipulation, pending the Court's ruling on a
legal issue in another case. The stipulation provided that Cox could re-file the case by May 1,
2007, but he did not do so, apparently because he had delegated the re-filing responsibility to a
docket manager who did not properly file the reinstatement request. Upon reconsideration, the
Court did reinstate the case on October 30, 2007, and a brief was filed. This matter was not
included in the First Judicial Department's consideration.

        In late 2006, Cox admits that he missed the deadline for filing the petition for review in
Xai Me; Liu. The BIA had affirmed a determination by the Immigration Judge that Ms. Liu was
ineligible for relief under the Convention against Torture on October 31, 2006. Cox had
instituted an office procedure in which a paralegal was responsible for filing the petition for
review, but she did not do so. Cox apparently did not double check the filing. When he learned
of her failure to file the petition for review, he immediately terminated the employee. Cox then
referred the matter to a colleague to file a Lozada complaint, and the Court denied Ms. Liu's
motion to reopen, stating that she was unable to show an appeal would have had any possibility
22953626v1
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of success, even if it had been timely filed. Cox represents that the First Department was aware
of this situation, but it was not included in his disciplinary case.

          From the decisions of the referee and the hearing panel, it also does not appear that the
First Judicial Department considered either of the June 2006 sanctions in Keita or Zhang.

         E.    Cox's Response

        Cox readily admits his errors and expresses remorse. Before this panel, as in his prior
disciplinary hearings, Cox asserts that his problems began with the procedural changes at the BIA
and this Court, which left him with an overwhelming volume of petitions for review (and thus
briefs due) in a short period. His trusted associate, Joshua Bardavid, left to take a job with the
UN, increasing the pressure on Cox. He was also dealing with his wife's own immigration case.
 She is a Chinese national and had filed for political asylum. Her application was denied, and
Cox was quite overwhelmed in trying to assist her with her appeal. Cox was unable to hire
additional staff for a time because he could not afford to do so.

       Cox ascribes many of the problems to supervision and office management issues. In
Liang Chen, Cox claims that the case was not properly reinstated by his docket manager. This
individual was an attorney, hired by Cox in 2006 to assist with his compliance with the special
master's recommendations. She was assigned to file timely reinstatement letters in Liang Chen
and other similar cases, but failed to do so. As a result, she has left Cox's firm.

        Similarly, in explaining the problem with false affidavits of service on the V.S.
Attorney's Office, Cox has represented that he had hired an individual specifically to serve briefs
on the Court and opposing counsel. That individual, instead of going directly to the V.S.
Attorney's Office after filing a brief with the Court, would apparently save up the briefs and
deliver a pile of them to the V.S. Attorney's Office once a week. As a result, the affidavits of
service on these briefs were false. Cox asserts that he is aware of this practice occurring five
times, although he admits it could have occurred many more times without his knowledge. Cox
also testified that he fired this employee immediately (June 2005), but in testimony before the
First Department, he admitted that he had admonished the employee a couple of weeks earlier for
not properly serving briefs and only terminated him when the V.S. Attorney's office complained.
In addition, he has instituted a practice of requiring the individual who completes the service to
sign and file the affidavit of service, instead of his signing the affidavit before the service is
completed.

        Cox admits that he missed the deadline for filing a petition for review in Xai Mel Liu in
2007 but attributes this error to a paralegal in his office. This employee was also immediately
terminated for not filing the petition for review on time. Cox referred this matter to another
attorney, who filed a Lozada complaint, including a bar grievance against him. The Disciplinary
Committee did not take any action against Cox on this matter. That default resulted in no
prejudice to the client apparently, as the Court on reconsideration noted that the client was unable
to offer any evidence that her petition for review had any possibility of success.

        To ensure that deadlines are not missed, Cox now uses Abacuslaw, a professional
database management system, which includes a docket system, calendar, and other case
management assistance. He has hired a full time docket manager and now has a total of five
other attorneys, six paralegals, a secretary, and two law students, as opposed to the two attorneys
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and two-three paralegals he employed in 2004-05.

        Cox engages personally in substantial amounts of pro bono work a year, including
hundreds of hours for the BIA pro bono panel, Amnesty International, and juvenile cases over the
past three years. He has presented approximately six CLE programs for other members of the
bar.

         Cox and his counsel represent that since June 2007, he has been in compliance with all
filing requirements imposed by the court, although he usually makes use of the automatic 30 day
extension issued by the clerk. At the time of hearing, his office was filing five briefs that week.
The Committee has no evidence that any of these briefs were not filed on time. Certainly, the
special master's reports demonstrate a significant improvement in meeting deadlines, although
not a perfect record.

        At the hearing, Cox presented four character witnesses who testified to his honesty and
integrity. They emphasized his commitment to his clients and his very good reputation. Joshau
Bardavid, his former associate, corroborated Cox's testimony about the inundation of appellate
cases after 2002, and also described changes he has seen Cox make in his office management
systems since that time. Cox's attorney represents that he has committed no professional
malpractice since June 2007.

        Cox has demonstrated substantial improvement in his office management practices and
compliance with court deadlines, as a result of the oversight provided by the special master. He
recognized the need to create an office culture in which everyone was responsible to make the
office function as a "responsible operation."

        In January 2008, Cox received an inquiry from the Office of the General Counsel,
Executive Office for Immigration Review of the U. S. Department of Justice, reporting a receipt
of a complaint that he had engaged in frivolous behavior during representation before the New
York Immigration Court and Board of Immigration Appeals, specifically moving to reopen a case
for the sixth time on the same basis as previously denied. Cox responded to this complaint and
has heard nothing further on the matter.

IV. Legal Standard

       Under the Rules of the Committee on Admissions and Grievances for the United States
Court of Appeals for the Second Circuit ("Committee Rules"),

         An attorney may be subject to discipline or other corrective measures for any act or
         omission that violates the rules of professional conduct or responsibility of the state or
         other jurisdiction where the attorney maintains his or her principal office, or the rules of
         professional conduct of any other state or jurisdiction governing the attorney's conduct.
         An attorney also may be subject to discipline or other corrective measures for any failure
         to comply with a Federal Rule of Appellate Procedure, a Local Rule ofthe Court, an
         order or other instruction of the Court, or a rule of professional conduct or responsibility
         of the Court, or any other conduct unbecoming a member of the bar.

Committee Rule 4; see also F.R.A.P. 46(c) ("a court of appeals may discipline an attorney who
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practices before it for conduct unbecoming a member of the bar or for failure to comply with any
court rule").

       "Conduct unbecoming a member of the bar" includes "conduct contrary to professional
standards that shows an unfitness to discharge continuing obligations to clients or the courts, or
conduct inimical to the administration ofjustice. More specific guidance is provided by case
law, applicable court rules, and 'the lore of the profession,' as embodied in codes of professional
conduct." In re Snyder, 472 U.S. 634, 645, 105 S.Ct 2874,2881 (1985).

        Because Cox is a member of the bar of New York State during the time period at issue,
the New York State Code of Professional Responsibility ("the Code") also applies. Two sections
are of particular relevance in this matter. First, the Code states that a lawyer shall not "[n]eglect
a legal matter entrusted to the lawyer." See DR 6-1 0 1(A)(3); 22 N.Y.C.R.R. § 1200.30(A)(3).
Second, the Code prohibits conduct that "adversely reflects on the lawyer's fitness as a lawyer:"
DR 1-102(A)(7); 22 N.Y.C.R.R. § 1200.3(A)(7).

       Courts have consistently treated neglect of client matters and ineffective or incompetent
representation as sanctionable conduct. See e.g., Gadda v. Ashcroft, 377 F.3d 934,940 (9th Cir.
2004); Amnesty Am. v. Town ofW Hartford, 361 F.3d 113, 133 (2d Cir. 2004); Matter of
Rabinowitz, 596 N.Y.S.2d 398, 402 (N.Y. App. Div. 1993). This conduct is also sanctionable
under the ABA Standards for Imposing Lawyer Sanctions ("ABA Standards"), which call for a
range of sanctions for various forms of "lack of diligence" and "lack of competence."

        According to this Committee's rules, "[a]ny finding that an attorney has engaged in
misconduct or is otherwise subject to corrective measures must be supported by clear and
convincing evidence." Committee Rule 7(h). If an attorney is found to have engaged in
misconduct, this Committee should consider (a) the duty violated, (b) the lawyer's mental state,
(c) the actual or potential injury caused, and (d) the existence of aggravating or mitigating
factors. See ABA Standards section 3.0. The Committee may then recommend to the Court's
Grievance Panel a range of sanctions from removal from the bar of the Court, suspension from
practice before the Court, public or private reprimanded, referral to another disciplinary
committee, supervision of a special master, counseling or treatment, or other disciplinary or
corrective measures, including any combination of these actions. Committee Rule 6(a)-(i).

V. The Alleged Misconduct

         A.        Duty Violated

        The evidence demonstrates, clearly and convincingly, that Cox has engaged in
professional misconduct subsequent to the behavior for which he was sanctioned by this Court in
August 2005 and collaterally by the First Department. This misconduct includes the following:

       (1) Cox failed to comply with court scheduling orders and to prosecute diligently in
Liang Chen, 02-4828 and Xai Mei Liu, 07-1663. 1 In Liang Chen, Cox's docket manager (an


I In Yu Fang Zhang. 03-4586, Cox was fined by this Court for failing to file for reinstatement, and although he has given no explanation for his office's failure to file for reinstatement, he asserts this case should have been included in the sanctions imposed in August 2005. As he was fined in June 2006 for this conduct, the Committee concludes that he has already been sanctioned for that failure. Similarly, in Keita v. BefS. 05-4606, in early 2006, Cox filed a 

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attorney) failed to file for reinstatement of the case in a timely manner in May2007. In Xai Me;
Liu, a paralegal failed to file a petition for review in November 2006, apparently after being
reminded by Cox to do so. These defaults come on the heels of the prior discipline imposed by
this Court and the First Judicial Department, arising out of Jin Hua Liu et al., (in which it was
found that during this 2004-05 timeframe, he had failed to file timely briefs in thirty other cases)
and fines he received from this Court in June 2006 in Yu Fang Zhang, 03-4586, and Keita, 05­
4606 The special master's reports in 2006 show that although his practices improved, Cox was
still having trouble meeting deadlines consistently through the summer of 2006.

        (2) Cox filed false affidavits of service in numerous cases. In addition to the case cited
by the Court, Jin Hua Liu v. BeIS, the First Judicial Department found that in June 2005, he filed
50 false affidavits of service. Although Cox attributes these to a single employee, whom he fired
when he discovered the problem was continuing, the special master appointed to oversee his
office reported the problem continuing for more than a year after that employee was fired. Cox's
explanation that the problem was attributable to a single employee was accepted by the First
Department, but a close review of the special master's reports shows that the problem continued
long after that employee was fired in June 2005. The special master found inaccurate certificates
of service continuing for more than a year after this employee's firing. In fact, she noted Cox's
"apparent disregard for the seriousness of an attorney's attestation of fact as the most significant
ongoing flaw in his practice" in her February 2006 report and while noting substantial
improvement, noted continuing concern even in her final report in November 2006.

             In addition, Cox incorrectly testified to this Committee when he said that the problem
with filing the false affidavits had not recurred since August 2005. While it had not recurred in
this Court, the special master reports numerous irregularities in certificates of service filed in
other courts, the BIA, and the immigration courts, including certificates dated from one to five
days before actual service (and vice versa) and certificates stating service by express mail when
service was made by regular mail (and vice versa). The Committee has no evidence, however, of
Cox's having filed a false or inaccurate affidavit of service after the fall of 2006.

        The two remaining issues considered by the Committee are not demonstrated by clear and
convincing evidence. An immigration court judge raised a question about Cox's filing of
repetitive motions before the immigration court, but no action has been taken against Cox in
relation to that matter. It does not appear to have been a formal complaint, and Cox has a
reasonable explanation for his conduct-that he had been seeking relief for this client under an
unsettled theory of law.

       The second issue is a Lozada complaint raised against Cox by a replacement law firm that
he missed a deadline for filing. That matter is apparently still pending before the First Judicial
Department, but the Committee does not have evidence to support a finding of misconduct in
that matter by clear and convincing evidence.


stipulation of withdrawal of a petition for review, in contravention of his client's wishes, apparently because he had misunderstood what his client wished him to do. The client apparently retained other counsel and was able to proceed with the case without prejudice. Cox was fined $1000 for this matter in June 2006, and the Committee has no evidence this problem has recurred; therefore, the Committee concludes that he has already been sanctioned for that conduct as welL That both matters occurred just months after this Court's initial August 2005 sanctions, however, concerns the Committee.

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         B.    The Lawyer's Mental State

        No evidence exists that Cox engaged in any of the behavior cited above due to a desire
for personal gain or with an intention to fail in his duty to his client. He apparently missed
deadlines because of an overload of cases during a particular period of time, as well as flawed
office supervision and practices. He has had a repeated problem with staff oversight causing
delinquencies, but the errors appear to arise out of carelessness or overwork, not intentional acts.
 A disturbing element, however, is Cox's apparent failure to recognize the importance of
accuracy in his certificates of service and his representations to this Committee about them.

         C.    The Actual or Potential Injury

        There appears to have been little actual injury to any client from Cox's conduct for which
he has not been previously sanctioned, although the potential for injury was great. Liang Chen's
petition for review was reinstated, and Cox continued as his attorney. Xai Mei Liu's case was
ultimately dismissed, but the Court specifically found that she was not prejudiced. Keisha found
another attorney and apparently pursued his case. Yu Fang Zhang's petition for review was
reinstated.

         D.    Aggravating and Mitigating Factors


       The primary mitigating factor in this case is that Cox has paid dearly for some of his
conduct. He has paid fines to this Court in at least four cases for a total of $4700. He has
incurred almost $150,000 for the special master and is continuing to pay off her bill in the
amount of $3000 per month. He has been privately reprimanded by the First Judicial
Department. Thus, he has already been punished for most of his misconduct before the Court.

        Cox's problems prior to 2006, such as in the Yu Fang Zhang case, stem from a
confluence of factors, including the changes in immigration practice from the wave of petitions
for review in 2002 to the elimination of CAMP meetings in 2004 and his wife's refugee status.
These factors went a long way to convince the First Department to issue only a private
reprimand.

        Since 2006, the problems have been attributable to the difficulty of supervision in a high­
volume practice that requires strict compliance by every participant. Character testimony speaks
to Cox's reputation for integrity. He is a respected member of the immigration bar. He engages
in pro bono service and has conducted CLE programs for his peers. His office handles a huge
volume of cases, and the problems identified here represent a small percentage of his total cases.
 He apparently provides competent representation to many petitioners and has been involved in
both precedent-setting and reported cases.

        As an aggravating factor, Cox is an experienced practitioner who continued to fail to
adequately supervise employees to ensure zealous representation of his clients after he was
punished by this Court. For example, he apparently did not double check that his docket clerk or
his paralegal actually filed the requests for reinstatement and did not at the time have a duplicate
system operating to provide reminders. Most disturbing, however, was his representation to this
Committee that the inaccuracies in his certificates of service were entirely due to an employee
and were fully resolved when that employee was fired in June 2005. The reports of the special
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master demonstrate continuing inaccuracies for more than a year later. Additional aggravating
factors include his prior multiple disciplinary offenses and the vulnerability of his clients.

VI. Recommendation

        The Committee finds, based on clear and convincing evidence, that Cox has violated his
duty of diligence to his clients by neglecting legal matters entrusted to him. The record shows
that after having been disciplined in 2005 by this Court, and even while disciplinary proceedings
were pending in the First Department in 2007, he again failed to properly supervise his staff to
ensure that his clients were adequately represented. While alone these incidents may not have
been sufficient to warrant discipline, their occurrence so soon after the prior discipline is
disturbing.

        Cox has clearly made an attempt to correct his management issues, and he has had no
recurrence, to the Committee's knowledge, since 2007. He has a very active practice before this
Court, and it appears that his representations since 2007 have been competent and timely.    '
Nevertheless, Cox's recidivism cannot be ignored.

        The Committee concludes that discipline is warranted. Cox should be publicly
reprimanded for his conduct. The Committee would also recommend that Cox be required, in
connection with his practice in any federal court in the Second Circuit or in any federal
administrative agency whose action is subject to the Second Circuit's review, to submit to the
Committee sworn statements identifying under oath each and every instance during each of th~
four reporting periods described below in which (1) a submission is not filed or filed out of time;
(2) an application is made for permission to make a late filing only after the due date has passed;
or (3) a false affidavit of service has been filed. It is expected that these reports will show no
such instances absent exigent circumstance, which circumstances should be attested to under
oath in the respective report.

        In the event that a report is not timely filed or reveals deficiencies not justified by exigent
circumstance, the Committee may recommend the imposition of additional discipline, including
but not limited to suspension from the Second Circuit, without hearing further testimony.

        The following reporting periods and deadlines shall be observed. The report for each
reporting period shall be mailed to the Committee Secretary within ten (10) days of the end of
that reporting period. The first reporting period shall commence 10 days after the Committee's
recommendation is mailed to Cox and shall end six months after the Second Circuit issues its
order of disposition in this matter. Each of the three subsequent reporting period shall be for a
reporting period commencing at the end of the prior reporting and ending six months later. A
total of four reports will be prepared and mailed to the Committee Secretary.




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