The Passage Of Time

An attorney benefitted from his failure to report a federal conviction to bar authorities and, as a result, avoided automatic disbarment.

The New York Appellate Division for the Second Judicial Department accepted his resignation

A federal felony conviction does not trigger automatic discipline unless the offense would constitute a felony under the New York Penal Law (see Judiciary Law § 90[4][e]). The federal felony need not be a “mirror image” of the New York felony, but it must be “essentially similar” to trigger automatic disbarment. In determining whether a federal felony is essentially similar to a New York felony, this Court may consider the attorney’s plea allocution.

In the decisions of this Court cited by the Grievance Committee in support of its motion, a conviction under 18 USC § 371 was found to be essentially similar to a New York felony in light of the admissions made by the attorney upon his or her plea, and as evidenced by the transcript of the plea proceeding. Here, the Grievance Committee has submitted copies of the indictment and the judgment of conviction. However, as a result of the respondent’s failure to report his conviction and the passage of 16 years since he was convicted, the Grievance Committee was unable to obtain transcripts or other evidence of the respondent’s admissions made during the course of his plea proceeding or at the sentencing proceeding. Therefore, we conclude that the judgment reflecting the respondent’s conviction of one count of conspiracy to commit securities fraud and to making misleading statements to auditors, in violation of 18 USC § 371, without more, does not warrant automatic discipline pursuant to Judiciary Law § 90(4)(a). Accordingly, the Grievance Committee’s motion to strike the respondent’s name from the roll of attorneys and counselors-at-law must be denied.

Disbarment was nonetheless imposed based on the resignation. (Mike Frisch)