Mario DeMarco, an attorney admitted to the bar of the United States Court of Appeals for the Second Circuit, has been publicly reprimanded for misconduct as recommended by the Court's Committee on Admissions and Grievances. The reprimand follows an extensive investigation initiated by an order in April 2009, during which DeMarco had multiple opportunities to address the allegations and testify under oath across several hearings from 2009 to 2011.
The Committee concluded that there was clear and convincing evidence of DeMarco's misconduct, which included failing to timely file petitions and briefs in multiple cases, notably the "Morales cases," and neglecting to submit required forms in eleven cases. The Committee recommended public reprimand and periodic status reports on his legal practice after considering aggravating and mitigating factors.
A minority report from a dissenting Committee member agreed that DeMarco violated professional obligations but advocated for a two-year suspension in addition to the reprimand, citing claims that DeMarco was directly responsible for the misconduct and had made false statements to both the Committee and the Court regarding his compliance with deadlines and orders. The full Committee adopted the majority report by a vote of 8 to 1, with one member absent.
DeMarco objected to the Committee's recommendation for a public reprimand in response to a report but did not address the minority's suggestion for suspension, despite being informed that the Court could impose different disciplinary measures. The Committee's findings on credibility, particularly regarding demeanor, were given significant weight, revealing a split opinion on DeMarco's credibility. Ultimately, the evidence suggested that DeMarco's misconduct was negligent rather than intentional, and that some deficiencies stemmed from inadequate employee supervision rather than direct negligence on his part.
The Committee found that several defaults and violations of Court orders were attributed to DeMarco's employees, who failed to communicate timely or file necessary documents. While some responsibility was assigned to his subordinates, DeMarco was acknowledged to have shared direct responsibility due to his insufficient oversight.
Regarding the Morales briefs, DeMarco's testimony evolved throughout the hearings. Initially, he distanced himself from responsibility, claiming he was not the lead attorney but later indicated some level of awareness and involvement in the case, ultimately retreating to a position of uncertainty about his lead role. The Committee did not fully accept his claims of lack of direct responsibility for the failures in handling the Morales cases.
The Committee determined that DeMarco was directly responsible for noncompliance with the Court’s instructions regarding the Morales cases, as he was the sole attorney of record and signed the deficient briefs. By signing the briefs, he certified their compliance with relevant rules and accuracy of facts, as outlined in Fed. R. Civ. P. 11 (b). The Committee rejected DeMarco's claim of not being the "lead attorney," emphasizing that regardless of who drafted the briefs, he held responsibility for their contents. The Committee referenced case law, including *In re Girardi* and *Dube v. Eagle Global Logistics*, to illustrate that attorneys are accountable for documents they sign, even if drafted by others.
DeMarco's defense that he relied on assurances from the drafting attorney was undermined by the contents of his April and May 2007 briefs, which he signed and acknowledged as familiar with the case facts. The April brief was filed in response to a Court order to address the Suspension Clause, stating he was fully familiar with the case circumstances. His May brief acknowledged the government's motion to dismiss, which criticized his failure to address the Suspension Clause. Additionally, DeMarco's affidavit in the May brief affirmed the truthfulness of its contents under penalty of perjury. If his claims were false, he risked perjury charges; if true, he knowingly failed to address the Suspension Clause despite being aware of its significance. The Committee concluded that DeMarco knew of the Court's directive and neglected to address the issue due to a misunderstanding of its relevance.
DeMarco, as counsel of record, had the obligation to ensure his cases proceeded in a timely manner, independent of notifications from employees or the Court. While constant monitoring of the docket is not required, attorneys must periodically review it to avoid lengthy lapses. Legal precedent underscores that trial counsel must be proactive in tracking docket activities and should not neglect this responsibility based on speculation about the Court's processing speed. For instance, if a brief is due shortly, an attorney should frequently check the docket, particularly if they have requested an extension. A newly filed case may not require immediate constant monitoring, but prolonged inattention—such as DeMarco's months-long gaps without checking the docket—constitutes unreasonable neglect, making him primarily responsible for resulting delays. DeMarco's claims of not receiving orders for deadlines in multiple cases failed to excuse his lack of inquiry into their status, evidenced by his long-term neglect shown in Thaqi v. Ashcroft, where he only became aware of his default two years after the case was filed.
DeMarco's conduct in two cases, Pochon-Chavez v. INS and De La Vega v. Gonzales, demonstrated a lack of due diligence, as he allowed significant delays in filing required documents despite multiple court orders. He conceded to misrepresenting his compliance with court orders in two filings, although he did not intend to mislead the court. At the time of his misrepresentations, DeMarco and other attorneys viewed the court’s scheduling orders as non-mandatory due to a historical pattern of leniency from the court regarding deadlines. The court recognized that while DeMarco should have been aware of the inaccuracies, the context of his thinking was consistent with a broader issue among attorneys. Ultimately, the court determined that DeMarco's misconduct warranted a public reprimand rather than suspension, emphasizing that future violations could lead to more severe consequences. He is ordered to complete at least six hours of continuing legal education in law office management within one year, in addition to his regular CLE requirements, with prior approval from the Committee.
Mario DeMarco is required to complete Continuing Legal Education (CLE) classes and certify completion through a sworn statement to the relevant panel and Committee secretary within seven days after a one-year period. The Committee retains the authority to modify CLE requirements and deadlines. For the next two years, DeMarco must submit biannual status reports to the Committee's secretary, detailing any criticisms of his conduct from courts or agencies and covering specified reporting periods. He is also obligated to disclose this decision and related documents to all bars and courts where he is a member and file an affidavit confirming this disclosure within fourteen days. The decision will be publicly posted by the Clerk of Court, who will serve copies to relevant parties, including disciplinary authorities. While documents from the proceedings may be shared with other authorities, confidentiality is requested where possible. All three Committee reports will be publicly accessible with certain redactions.
DeMarco's referral to the Committee for investigation stems from his failure to file timely petitions in two immigration cases, resulting in jurisdictional dismissals and inadequate briefing. The Court expressed concern over his conduct, particularly regarding a repeated inadequate brief that failed to address specific legal issues, and noted that DeMarco attributed the late filing to a paralegal's error. The matter is now with the Grievance Panel for potential disciplinary action.
Mario DeMarco has faced significant challenges in complying with court filing requirements and scheduling orders in 19 out of 41 cases where he is the attorney of record. Specific instances include: untimely motions for reinstatement, case withdrawals after default notices, late extension motions, dismissals for failure to file briefs, and default dismissals due to incomplete filings. As a result of these issues, the court has referred DeMarco to the Committee on Admissions and Grievances for investigation and a report on potential disciplinary actions.
The referral, initiated on April 30, 2009, highlighted concerns over DeMarco's failure to file timely petitions in immigration cases, leading to dismissals for lack of jurisdiction, as well as the submission of inadequate briefs. The Committee recommends that DeMarco receive a public reprimand, complete at least six hours of continuing legal education (CLE) in law office management from an accredited provider, and adhere to specified reporting requirements.
The disciplinary process began with a notification to DeMarco on June 8, 2009, allowing him 30 days to respond. After he failed to respond, a follow-up letter was sent, prompting a delayed response from him that included an incorrect docket number. He was subsequently invited to provide a supplemental response, which he did on August 13, 2009.
A hearing took place on September 18, 2009, with Committee members Eileen Blackwood, Evan A. Davis, Loretta E. Lynch, and Michael Patrick in attendance, where DeMarco appeared without counsel. The hearing was adjourned to gather testimonies from DeMarco's former paralegal and his current office manager. It resumed on April 16, 2010, with DeMarco and his office manager testifying, but attempts to contact the paralegal, who had agreed to appear by phone, were unsuccessful. She had moved to Georgia after her termination, complicating efforts to secure her testimony. The Committee ultimately decided not to compel her appearance, considering corroborative testimony from the office manager and the necessity of the paralegal's testimony. DeMarco was informed via a letter on July 26, 2010, that the hearing was closed, and he was given until August 23, 2010, to submit a post-hearing memorandum, which he did not do.
Subsequently, a new panel member requested more evidence, leading to a decision to hear testimony from a former associate of DeMarco and to recall him for questions regarding alleged misrepresentations in court filings. The hearing reconvened on June 27, 2011, with a panel that included Evan Davis, Eileen Blackwood, Gerald Walpin, and a colleague of Michael Patrick, who reviewed the transcript. Testimonies were taken from the associate and DeMarco, and following this, DeMarco was asked to submit an affidavit answering two questions, which he completed by July 14, 2011.
DeMarco graduated from Thomas M. Cooley Law School and was admitted to practice law in New York and Connecticut in 1993. He has practiced primarily immigration law until about 2001, then served as corporation counsel for the Village of Port Chester from 2002 to 2006. His practice has since diversified into immigration, matrimonial, and criminal law. He had managed 41 immigration cases in the Second Circuit but had only one remaining by the time of the hearing. Until early 2010, DeMarco operated two offices, eventually consolidating to one in Port Chester with a reduced staff, including one part-time attorney and three paralegals.
By April 2010, DeMarco had closed his Long Island office, and by June 2011, his staff included only two paralegals (one acting as office manager) and one associate attorney. DeMarco primarily operated out of the Port Chester office but visited Long Island two to three days weekly. His paralegal, who had been with him for twelve years until her termination in August 2009, managed 80% of the immigration work, including mail handling, scheduling, and court communication. The Port Chester office relied on a manual docketing system, unlike the computerized system in Long Island, and the paralegal worked with minimal supervision. As DeMarco's divorce and criminal practice expanded, he focused on those areas while his staff managed immigration cases. He had employed several associates over the years, none of whom raised issues regarding his professional conduct; he has never faced disciplinary action in his 17 years of practice.
The legal standard for attorney discipline under the Committee on Admissions and Grievances for the Second Circuit includes violations of professional conduct rules and court orders. An attorney may face disciplinary action for conduct unbecoming a member of the bar, which includes any behavior demonstrating unfitness to serve clients or the courts. The New York State Code of Professional Responsibility is applicable, particularly prohibiting neglect of legal matters and conduct reflecting poorly on a lawyer's fitness. Legal precedents indicate that neglect and ineffective representation can lead to sanctions. The American Bar Association's Standards for Imposing Lawyer Sanctions outline a range of penalties, from reprimand to disbarment, for lack of diligence and competence.
New York's Lawyer's Code of Professional Responsibility mandates that lawyers must not neglect legal matters (D.R. 6-101 (a)(3)) and must represent clients zealously (Canon 7-1) while being punctual with professional commitments (Canon 7-38). Any misconduct findings against an attorney require clear and convincing evidence (Committee Rule 7(h)). When imposing sanctions, the Committee considers factors such as the violated duty, the lawyer's mental state, the injury caused, and any aggravating or mitigating factors (ABA Standards 3.0). Sanctions may include disbarment, suspension, reprimands, monetary penalties, removal from panels, referrals to other disciplinary bodies, or other corrective measures (Committee Rule 6).
In the Morales cases (06-0780-ag and 06-0781-ag), attorney Mario DeMarco was referred for failing to file timely petitions and for inadequate briefing. The Court criticized DeMarco for resubmitting a brief that did not address required issues and for a late notice of appeal attributed to a paralegal's miscalculation of deadlines. DeMarco provided an affidavit from the paralegal explaining the error, acknowledging responsibility, yet failed to implement changes in office procedures or supervision until after the referral order was issued over two years later.
DeMarco maintained the same staff and supervision practices but has not missed a petition filing deadline since that time. The timeliness of a petition for review became contested after the government sought to dismiss the Morales cases for not filing a brief over a year post-filing. DeMarco could not explain his failure to submit the initial brief. The Court denied the government's dismissal motion, noting that the petitioner had missed the 30-day filing period, and directed parties to discuss whether the application of this deadline would violate the Suspension Clause. Despite this directive, DeMarco failed to address the constitutional issue in his brief, claiming he was not the lead attorney; it later emerged that his associate, who had handled the case, was no longer employed with him. An affidavit submitted by DeMarco indicated that another associate, Associate B, was responsible for the case. Testimony revealed that DeMarco typically reviewed drafts before submission. DeMarco contended that the Suspension Clause was irrelevant to the case, misunderstanding the Court's request to analyze its implications regarding the late filing rather than the underlying asylum issue. The Committee observed that DeMarco's failure to grasp the Court's point stemmed from a misunderstanding, not an intentional disregard. The dissent highlighted inconsistencies in DeMarco's explanations to the Committee regarding the brief's shortcomings, while the majority found no evidence that he attempted to deflect blame for his mistakes.
DeMarco acknowledged his responsibility for errors, stating that even if an employee caused them, he bore the ultimate accountability. Throughout his testimony, he confirmed failing to file the Form C/A on time in at least eight or nine cases, often only filing after receiving overdue notifications from the Court. The scheduling and filing were managed by a paralegal with no formal case management system, relying solely on her manual calendar. DeMarco claimed he was unaware of this practice until the referral order was issued and admitted to not providing adequate guidance on appellate procedures to his staff, nor did he keep up with appellate rules himself. Notably, a case (Grrela v. Ashcroft) was dismissed for failure to file the Form C/A, which he attributed to the client's desire not to pursue it, although he did not formally notify the Court or document the client's decision. Over a two-and-a-half-year period, the Court frequently had to remind DeMarco's office to file the Form C/A, indicating a pattern of neglect in adhering to filing requirements.
In Chaves Lopez, No. 05-5183, the court noted that DeMarco failed to file a required Form C/A by the deadline of October 14, submitting it instead on October 17. DeMarco claimed ignorance of the situation, attributing it to his paralegal's handling without his knowledge, which was deemed credible as the paralegal admitted to not keeping DeMarco informed. The Committee concluded that regardless of whether DeMarco was directly involved or not, he bore responsibility for the noncompliance. Although messages were sometimes left with his receptionist, most communications occurred with staff rather than DeMarco himself. Following the court's Referral Order, DeMarco acknowledged the fault in his office's practice of delaying filings until contacted by the court and has since complied with filing requirements.
In relation to the timely filing of briefs, DeMarco initially asserted no wrongdoing but later admitted to failing to file on time in several instances. He attributed part of this failure to distractions from his role as corporation counsel for Port Chester from 2002 to 2006, while also recognizing his overall responsibility for his staff’s actions. DeMarco's office typically did not adhere strictly to filing schedules, often waiting for court reminders or filing motions for extensions, which he frequently did not follow up on. He also mentioned instances where he believed reaching a stipulation with the government negated the need for filing briefs, considering such cases to "die a natural death."
DeMarco exhibited a significant misunderstanding regarding the importance of court scheduling orders, believing them to be less binding than orders issued by a judge since they were prepared by court administrative staff. This attitude was echoed by other respondents, suggesting a broader issue within the practice. DeMarco's approach was influenced by inconsistent communication from the court, where scheduling orders were sometimes noted on the docket yet not received by his office. The court's historical leniency in granting extensions without formal motions contributed to a culture of neglect regarding compliance with deadlines. For instance, in the case of Pouchon-Chavez v. INS, a brief due on September 12, 2002, was not filed until nearly eight months later, with DeMarco's office citing a pending motion for an extension as the reason for the delay. DeMarco initially claimed no wrongdoing but later recognized failures in his office's compliance, attributing the missed deadlines to inexperience and reliance on past practices. Ultimately, he acknowledged a lack of communication and oversight within his team, maintaining responsibility for the failures despite uncertainties about the specific case details. The case was withdrawn and reinstated multiple times after deadlines had lapsed.
DeMarco's failure to adhere to court deadlines stemmed from an assumption that prior leniency would continue, impacting multiple cases. He acknowledged the need for better communication and accountability regarding his office's shortcomings. In one instance, despite believing in the merit of the appeal, his lackadaisical approach to deadlines was noted, particularly in a case that was ultimately affirmed due to the absence of a legal basis for the challenge.
In Benites-Rodriguez v. 34 INS, despite being aware of a September 12, 2002 deadline, DeMarco failed to file the brief, justifying this by expecting an extension that was never requested. This case experienced multiple withdrawals and reinstatements but was decided favorably for the client. Similar negligence was seen in Darji v. Ashcroft, where a brief due on June 25, 2004, was not submitted until January 24, 2005, after multiple warnings from the court. DeMarco's actions posed a significant risk of prejudice to his clients, despite eventual favorable outcomes.
The ABA Standards suggest that such negligence warrants a public reprimand, as demonstrated by DeMarco's repeated failures to meet deadlines, which he later recognized as risky practices. In Jimenez v. Ashcroft, another case was dismissed due to a similar failure to file a brief on time. Overall, while DeMarco's clients did not suffer direct prejudice, the potential for harm due to his disregard for deadlines was substantial.
DeMarco testified that following the scheduling conference, he concluded the case lacked merit, and the client agreed to let it lapse. He acknowledged failing to withdraw or notify the Court of this decision, not realizing it was proper procedure. DeMarco adopted a practice of allowing the Court to dismiss cases when there was a lack of communication, believing that if the client was not harmed, all was acceptable. He perceived Court deadlines as flexible, noting that extensions and reinstatements were often granted after the deadline. In a specific case, Delavaga v. Ashcroft, DeMarco's office failed to respond to a call regarding the status of a brief due on June 28, 2004, which he was unaware of due to a lack of communication from his paralegal. After receiving a letter from the AUSA on July 29, 2004, DeMarco claimed he had not received the scheduling order, leading to a show cause order from the Court, which he did not respond to, asserting he never saw it. A second show cause order was issued, and although DeMarco claimed he filed a response, it was not received by the Court until February 15, 2005. He had no explanation for not responding to the first order but suggested issues with receiving notices from the Court. DeMarco's office lacked a follow-up system for motions to extend time, leading to missed deadlines, and he believed there was nothing wrong with his practices at that time.
Thaqi v Ashcroft, No. 03-40629-ag, was dismissed under CAMP for failure to comply with a scheduling order. DeMarco, the attorney, claimed he did not receive the order, and his motion to reopen the case was denied on March 8, 2006, with the court concluding that no manifest injustice would result. DeMarco later stated he believed the case lacked merit, leading to his decision not to pursue it.
In a similar case, Zuleta v Ashcroft, No. 03-40944, the petitioner’s brief was due on July 9, 2004, but was not filed. DeMarco again asserted he did not receive the scheduling order but acknowledged seeing a subsequent show cause order, which he failed to respond to within the specified timeframe, ultimately filing the brief a day late.
Boci v. Gonzalez, No. 05-6586-ag, also resulted in dismissal due to non-compliance with the scheduling order. DeMarco claimed his client terminated his services but failed to notify the Court or have a new attorney enter an appearance. Jajdari v. Gonzales, No. 06-1095, faced dismissal for similar reasons, with DeMarco stating the client had moved to Canada and abandoned the appeal without informing the Court.
In Abajlal v Gonzales, No. 06-3242-ag, the court initially dismissed the case for not filing a brief by the due date, although the dismissal was later vacated.
Throughout 2004, the court issued three show cause orders regarding DeMarco's cases, indicating potential referral for his conduct if he did not comply. Despite these warnings, DeMarco claimed he was unaware of issues until a referral order was received in June 2009. He did not respond to the referral until prompted by a subsequent communication from the Committee. DeMarco attributed his failures to his paralegal’s handling of mail, but the Committee expressed concern over his overall supervision and attitude towards the Court’s procedures. Despite this, DeMarco did not attempt to evade responsibility for his actions.
DeMarco is held responsible for neglect due to his own inaction and that of a subordinate he was meant to supervise. In 2008, he misrepresented his compliance with court orders, claiming no pattern of violations despite numerous failures to file required documents. His first affidavit inaccurately framed his adherence to a specific deadline regarding petitions for review, while he had indeed missed multiple scheduling deadlines, which he later recognized as a mistake rather than a habitual issue. DeMarco differentiated between administrative deadlines and direct court orders, believing his office's practices did not constitute violations. However, the Committee found that many attorneys, including DeMarco, did not view missed deadlines or failure to dismiss cases correctly as violations. Despite acknowledging poor practices, DeMarco's claims of never violating a court order were deemed unintentional rather than deceitful. The Committee recommends a public reprimand, noting no evidence of intent to harm clients, while highlighting a concerning pattern of negligence and inadequate supervision in his office, inconsistent with his level of experience.
Concerns have been raised regarding DeMarco's management of his office practices, particularly his reliance on untrained lay staff without adequate supervision to ensure adherence to court rules and orders. However, since the Court's 2009 referral order, DeMarco has complied with scheduling orders and met deadlines, indicating some functional improvement in his practices. He often attributes his previous failures to a paralegal, Ms. Paralegal, whom he delegated significant responsibilities regarding compliance with procedural rules. The Committee highlights that the legal assistant must operate under the supervision of a lawyer, who remains accountable for the assistant's actions.
The Committee noted two additional cases reflecting similar issues of inadequate compliance, though they were not included in the recommendations as DeMarco had no chance to respond to them. Despite being unable to obtain Ms. Paralegal's testimony regarding her supervision, DeMarco acknowledged his failure to provide adequate oversight and admitted to giving possibly improper instructions to her. Testimonies from other staff indicated they received sufficient supervision, yet they lacked extensive experience with Second Circuit cases. The Committee expressed concern over DeMarco's justification for his previous lack of supervision and his admission of inadequacy in appellate court matters. These findings suggest a pattern of neglect and insufficient preparation, violating professional conduct standards requiring competent legal representation.
Competent legal representation requires appropriate legal knowledge, skill, and thorough preparation. Lawyers in management roles must ensure compliance with disciplinary rules among their colleagues. A firm is responsible for adequately supervising its attorneys and nonlawyers. Testimony from Mr. Associate-A] indicated that while DeMarco's office procedures were inadequate, he promoted timely court submissions. Mr. Associate-A], a new attorney with no appellate experience, believed he would have communicated any concerns about deadlines but asserted that no deadlines were missed in his cases. However, it was noted that DeMarco did not properly train his staff regarding Second Circuit procedures, leading to failures in timely filing briefs and compliance with court orders. Despite attempts to attribute these failures to others, DeMarco accepted responsibility at the hearing. The Committee found that although there was potential harm to clients, it did not warrant severe disciplinary action due to the lack of client complaints and the Court's efforts to accept late submissions. Consequently, the Committee recommends a public reprimand for DeMarco, along with a mandate to complete at least six hours of continuing legal education in law office management. Additionally, DeMarco must submit sworn statements detailing any late filings or applications for late submissions to the Committee during specified reporting periods, expected to include no instances except under extenuating circumstances, which must also be verified under oath.
If a report is not filed on time or contains unexcused deficiencies, the Committee may impose additional discipline, including suspension from the Second Circuit, without further testimony. Reports must be sent to the Committee Secretary within ten days following each reporting period. The initial reporting period starts ten days after the Committee's recommendation to DeMarco and lasts for six months following the Second Circuit's order of disposition. Subsequent reporting periods will also last six months, totaling four reports to be submitted. The dissenting opinion suggests suspension for DeMarco, but the majority opposes this, asserting that a public reprimand with the required reporting is a significant sanction. Although DeMarco engaged in improper conduct, he has accepted responsibility, made substantial improvements, and has not repeated such conduct in three years. He has cooperated with the Committee during three appearances, and the issues stemmed from neglect rather than intentional harm or self-benefit, which would warrant suspension.
