IN RE: Gregory Val BITTERMAN (2026)

OPINION & ORDER

By summary order dated June 13, 2024, the United States Court of Appeals for the Second Circuit (hereinafter the Second Circuit) publicly reprimanded the respondent for his various defaults with regard to an appeal that he filed on behalf of a client with the Second Circuit and his subsequent failure to timely and adequately respond to an order of the Second Circuit directing the respondent to show cause why discipline should not be imposed on him based on his conduct during the same appeal pending before that court.

The Second Circuit Disciplinary Proceeding

According to the Second Circuit's summary order, the respondent represented Christian O. Dalmau in a criminal action in the United States District Court for the Western District of New York (hereinafter WDNY). Dalmau pleaded guilty in August 2017 and was sentenced, inter alia, to a term of imprisonment of 120 months. The respondent filed a notice of appeal for Dalmau with the Second Circuit. According to an order of the Grievance Panel of the Second Circuit dated November 14, 2022 (hereinafter the November 2022 order), beginning in September 2017, the Second Circuit twice warned the respondent that Dalmau's appeal would be dismissed unless the respondent, by a specified deadline, which was then extended, filed additional papers and paid the filing fee. An employee of the Second Circuit also informed the respondent, who was not admitted to practice before that court, that he was required to apply for admission and to submit an addendum to his notice of appearance. In November 2017, after the expiration of the deadlines for filing additional papers and paying the filing fee, an employee of the Second Circuit contacted the respondent and was informed that the respondent would file the required forms, pay the filing fee, and seek admission to the Second Circuit within the next week. There was no further activity reflected in the docket until January 2018, when a Second Circuit employee again contacted the respondent, who stated that he would speak to Dalmau to determine if the case should move forward and would contact the Second Circuit within 24 hours. The respondent failed to do so. Second Circuit employees left four voice messages for the respondent between February and April 2018 asking for an update on the overdue forms and fees and the status of the case. In April 2018, the respondent advised the Second Circuit that he would apply for admission within 24 hours and file the required forms, move to be relieved as counsel, or submit a letter explaining his failure to act on the appeal. There is no record that he did so. Second Circuit employees left additional messages for the respondent in May 2018 and August 2019. In October 2020, the respondent told an 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 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 A.D.3d 67, 84, 186 N.Y.S.3d 685 [internal quotation marks omitted] ).

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

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

PER CURIAM.

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