September 2, 2011
The Moonlighting Taxman
The New York Appellate Division for the First Judicial Department has publicly censured an attorney employee of the Department of Taxation and Finance for engaging in outside practice without permission and using confidential information that he had access to as an employee for the benefit of a private client.
The attorney was convicted:
Pursuant to his guilty plea entered in Kings County, Criminal Court, respondent was convicted of official misconduct (Penal Law § 195.00), a class A misdemeanor, upon his admission that while employed by the New York State Department of Taxation and Finance (DTF) from July 1988 until February 9, 2007, he engaged in the practice of law without seeking permission and accessed the confidential tax records of a company for use in a client's civil suit. Respondent was sentenced to three years' probation, a $1,000 fine and a $160 surcharge upon his agreement not to work for the State of New York any further.
He claimed to be unaware of the outside practice limitations of his job.
The court described the conduct and mitigation:
In 2004, respondent opened a law office in the Bronx, while employed full-time by the DTF, without seeking authorization to practice law from the Commissioner of Taxation and Finance. His clients that year included the partner of a New York company, whom he represented in a dispute with her partners in an action he brought against the company in Supreme Court, Bronx County. He accessed the department's database, with his client's authorization, to find out where her partners were located and to ensure that they were not moving partnership assets. He also accessed a tax reporting system in order to ascertain whether the partnership filed a tax return and view the addresses listed for it and the "sales tax reporting system," "access[ing] at least three databases" which contained information derived from tax returns. Respondent was aware that he had done something wrong and that his conduct exposed him to disciplinary and criminal action. Respondent admitted that, from 2004 through 2006, he used his computer at DFT to verify addresses of other adverse parties for the purpose of process service.
In mitigation, respondent, who was 46-years-old at the time of the hearing and married with two children, is a recovering alcoholic and substance abuser, who attends Narcotics Anonymous and Alcoholics Anonymous meetings weekly. He has been drug free and sober since 1988. In 1992, while working full-time for DTF, respondent, who was born to an alcoholic family, became the first member of his family to graduate from college. He then attended Fordham Law School at night while continuing to work to support his family, and graduated in May 1998. His decision to begin practicing law was motivated by his wife's loss of employment due to a disability and the expiration of his student loan waiver. His annual salary was in the high $40,000's to low $50,000's, and he was not sure how he would make ends meet. He testified that his supervisors and co-workers at the DTF, some of whom he represented, were aware of his law practice.
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