Tuesday, December 8, 2009

Sophistry About Conviction Circumstances Leads To Disbarment

The New York Appellate Division for the First Judicial Department has disbarred an attorney convicted of conspiracy to commit securities and wire fraud. The court noted that the attorney had been previously incarcerated for contempt as a result of his failure to pay court-ordered child support. Although the attorney was entitled to a hearing, the court rejected recommendations for a lesser sanction:

On or about October 30, 2008, the Referee issued his report. Although noting that respondent was on supervised release and is required to report to a probation officer until 2011, the Referee recommended that respondent be suspended from the practice of law for three years retroactive to June 15, 2006 (the date of this Court's interim suspension order), noting respondent's "remorse" and stating that respondent "considers himself a decent man and a law abiding citizen in spite of his conviction and his having been sentenced to six months incarceration in Westchester County for contempt of court regarding what he refers to as a civil' matter."

Thereafter, a Hearing Panel convened to review the report of the Referee. On April 20, 2009, the Panel issued its determination which recommended that respondent be suspended from the practice of law for five years, nunc pro tunc to June 15, 2006, the date of his interim suspension.

In recommending a five-year suspension, the Panel noted that it believed it was inappropriate for respondent to be allowed to practice law while he is under a period of supervised release with a special condition that he participate in a mental health treatment program. The Panel further noted that it believed that respondent had neither accepted responsibility for his conduct nor expressed remorse. The Panel stated:

"Respondent endeavors to persuade the Panel by sophistry, claiming that his regret for having allowed himself to get caught up with fraudsters entitles him to mitigation [...] Simply put, we do not equate his feelings of regret with remorse. More to the point, Respondent's attempt to excuse himself of any moral or criminal responsibility is pursued by blaming everyone else [...]"

The Panel also found, in aggravation, respondent's prior civil contempt conviction, the "significant" outstanding judgments and liens filed against him, and his failure to file an affidavit of compliance with this Court's order of interim suspension.

The court concludes:

Here, respondent engaged in much more reprehensible conduct than the attorneys in [prior cited cases]. As such, respondent must face a considerably greater sanction. Accordingly, regardless of whether respondent's conviction be deemed an analogue felony, we find that the serious nature of his crime coupled with his complete failure to assume responsibility for his actions, warrants disbarment, effective the date of his interim suspension.

(Mike Frisch)


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