Friday, February 19, 2010
The New York Appellate Division for the First Judicial Department has disbarred the attorney-defendant in high-profile Brooke Astor affair as a result of his criminal conviction. The court states:
On October 8, 2009, following a jury trial in Supreme Court, New York County, respondent was found guilty of scheme to defraud in the first degree (Penal Law § 190.65[b]), conspiracy in the fourth degree (Penal Law § 105.10), and forgery in the second degree (Penal Law § 170.10), all felonies, as well as conspiracy in the fifth degree (Penal Law § 105.05), a class A misdemeanor. On December 21, 2009, he was sentenced to a cumulative term of imprisonment of 1 to 3 years.
Respondent's conviction arose out of his participation in a scheme to defraud Brooke Astor. Respondent, with the assistance of her son, Anthony Marshall, looted Ms. Astor's estate during the period from approximately 2001 to 2007, when her mental capacity was diminished. Respondent was found guilty of forging a codicil to Ms. Astor's will, thereby giving Mr. Marshall the power to appoint co-executors and shifting some $5 million in estate costs from the $60 million residuary estate, over which Mr. Marshall had outright control under the terms of an earlier codicil, to a $60 million trust. Respondent was subsequently appointed co-executor of the trust by Mr. Marshall together with Mr. Marshall's wife.
The Disciplinary Committee now seeks an order striking respondent's name from the roll of attorneys and counselors-at-law pursuant to Judiciary Law § 90(4)(a) on the ground that he was automatically disbarred as a result of his conviction of a felony under New York law. Respondent's counsel has submitted a letter response asking this Court to stay its order until respondent's anticipated appeal of his criminal conviction is decided, a request the Committee opposes.
A conviction of a criminal offense classified as a felony under the laws of this state results in automatic disbarment (see Judiciary Law § 90[b] and [e]; Matter of Conroy, 309 AD2d 57 ). Thus, upon his conviction of three felonies, respondent ceased to be an attorney by operation of law (see Matter of Just, 38 AD3d 58  [scheme to defraud in the first degree]; Matter of Velella, 11 AD3d 50  [conspiracy in the fourth degree]; Matter of Postel, 165 AD2d 474  [inter alia, forgery in the second degree]).
Accordingly, the Committee's petition should be granted and respondent's name stricken from the roll of attorneys and counselors at law, effective nunc pro tunc to October 8, 2009, the date of conviction.