Matter of Bitterman

employee of the Second Circuit that Dalmau intended to withdraw his appeal as moot and that the motion would be filed within a couple of weeks, after the respondent was able to visit Dalmau in prison. The respondent failed to do so. In May 2021, the respondent told a Second Circuit employee that Dalmau had settled certain District Court cases but did not want to withdraw his appeal until he could meet with the respondent in person. Employees of the Second Circuit left four more messages with the respondent over the course of the next year requesting an update. By letter dated August 4, 2022, the respondent informed the Second Circuit that he had represented Dalmau in two District Court cases: the WDNY case that resulted in the appeal to the Second Circuit and a related case in the United States District Court for the Eastern District of New York (hereinafter EDNY). Dalmau had pleaded guilty in the EDNY case, and a requirement of his plea was that no appeal could be taken in either case. The respondent claimed that he mistakenly believed that this aspect of the plea "would automatically withdraw" the notice of appeal in the WDNY case. The respondent asked for 60 days to locate Dalmau and have him sign a stipulation discontinuing the appeal in the Second Circuit. On November 3, 2022, a Second Circuit employee left a voice message for the respondent requesting a status update. There is no record of a filing or status update in response to this message. In the November 2022 order, the Grievance Panel of the Second Circuit ordered the respondent to show cause, in a detailed declaration, why disciplinary measures should not be imposed upon him pursuant to Federal Rules of Appellate Procedure rule 46(b) and (c), as well as Local Rules of the US Court of Appeals for the Second Circuit rule 46.2, based on his conduct with regard to the Dalmau appeal. Although the declaration was due within 28 days, the respondent did not submit his response until February 2023, after being twice reminded by the Second Circuit. In his response to the November 2022 order, the respondent claimed that he did not move to withdraw Dalmau's appeal because his client instructed him to neither proceed with the appeal nor withdraw it, but rather to allow it to be dismissed as abandoned. In the summary order, the Second Circuit noted that the respondent failed to explain the basis of his belief that Dalmau's EDNY plea would automatically withdraw the appeal to the Second Circuit.

In January 2023, more than five years after the Second Circuit began contacting the respondent about the appeal on Dalmau's behalf, the respondent finally filed a motion to dismiss Dalmau's appeal. The Second Circuit responded by notifying the respondent that: (1) the motion did not comply with the Second Circuit's relevant local rule (including that the motion did not contain the required client statement), (2) he had not yet responded to the November 2022 order, and (3) he was relieved as counsel and substitute counsel would be appointed to determine whether Dalmau wished to pursue the appeal. The substitute counsel ultimately successfully withdrew the appeal. In the summary order, the Second Circuit noted the respondent's proffered mitigation, including that during the time of his misconduct, he was trying to recover from a devastating financial loss, he was the sole supporter of six relatives, Dalmau's family never paid the requested fees, the respondent had a busy work schedule, he lacked prior discipline, Dalmau was not prejudiced by the respondent's conduct, and Dalmau was satisfied with the respondent's representation.

However, the Second Circuit also noted the respondent's failure to explain why he did not timely respond to the November 2022 order or address the many specific instances where he failed to comply with or respond to the court's directives. The respondent also failed to reconcile his argument that he believed Dalmau's EDNY plea automatically withdrew the appeal to the Second Circuit with the fact that the Second Circuit repeatedly reached out to the respondent over the course of at least five years, notifying him of his obligations to address or withdraw the appeal. Thus, the respondent continued to engage in misconduct in regard to both the appeal and the disciplinary proceeding before the Second Circuit after being put on notice by the November 2022 order.

In the summary order, the Second Circuit publicly reprimanded the respondent for [*3]his defaults with regard to the Dalmau appeal and his subsequent failure to timely and adequately respond to the November 2022 order. New York Proceeding

This Court and the Grievance Committee for the Tenth Judicial District have no record of being notified by the respondent of the subject order of discipline in the Second Circuit, as required by 22 NYCRR 1240.13(d). By order to show cause dated September 19, 2024, the respondent was directed by this Court to show cause on or before November 4, 2024, why he should not be reciprocally disciplined. The respondent's response to the order to show cause was not timely, and because he failed to follow proper procedure for requesting an adjournment, his submission was not accepted by this Court.

The Grievance Committee submits an affirmation in response to the Court's order to show cause, in which it responds to the respondent's untimely submission and points out that the respondent, in failing to timely respond to this Court's order to show cause or to adequately follow this Court's procedure, has repeated his behavior of failing to comply with court directives.

Findings and Conclusion

Based on the misconduct underlying the discipline imposed by the summary order of the Second Circuit, we find that the imposition of reciprocal discipline is warranted. Regarding the sanction, this Court has found that

"[i]n reciprocal proceedings, we generally accord significant weight to the sanction imposed by the jurisdiction where the misconduct occurred because the foreign jurisdiction has the greatest interest in fashioning sanctions for misconduct perpetrated therein. Therefore, when the sanction prescribed by the foreign jurisdiction is not inconsistent with the sanction for similar misconduct in this jurisdiction, the Court should impose the same sanction" (Matter of Megaro, 215 AD3d 67, 84 [internal quotation marks omitted]).

Therefore, we conclude that the respondent should be publicly censured.

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LASALLE, P.J., DILLON, DUFFY, BARROS and WARHIT, JJ., concur.

ORDERED that pursuant to 22 NYCRR 1240.13, the respondent, Gregory Val Bitterman, is publicly censured for his professional misconduct.

ENTER:

Darrell M. Joseph Clerk of the Court

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