Close Enough To Disbar

The New York Appellate Division for the First Judicial Department disbarred an attorney convicted in federal court

Respondent’s conviction stems from his participation in a scheme by which he and others defrauded an investor by representing that they collaborated with hedge funds and wealthy investors who were willing to “lease” funds and set up bank accounts in client names, which contained the leased funds in exchange for a substantial fee. Based on this and other similar misrepresentations, the victim was induced to invest $5 million in order to “lease” a credit line of $100 million, which supposedly would generate millions in future profits. In furtherance of the scheme, respondent and his codefendants falsely represented that the funds would be held in his attorney escrow account pending the opening of a bank account with the leased funds, and they sent the victim fabricated documentation of the alleged $100 million bank account. In actuality, respondent and his codefendants distributed the investor’s $5 million among themselves for their own personal use. In addition, while under oath, before a federal grand jury, respondent knowingly and intentionally made false material declarations regarding his disbursement of escrow funds in connection with the scheme.

The perjury offense was “sufficiently similar” to a state felony to warrant automatic disbarment

.A conviction of a federal felony does not trigger automatic disbarment unless the federal felony at issue would constitute a felony under New York Penal Law (Judiciary Law § 90[4][e]; Matter of Rosenthal, 64 AD3d 16, 18 [1st Dept 2009]). The federal felony does not have to be a “mirror image” of a New York felony, but must be “essentially similar” (Matter of Margiotta, 60 NY2d 147, 150 [1983]). Essential similarity can be established by comparing the language of the applicable federal and state felony statutes, as well as by examining its own precedent. If this analysis is inconclusive, essential similarity can be determined by plea admissions or evidence adduced at trial, read in conjunction with the indictment or information (Matter of Adams, 114 AD3d 1, 2-3 [1st Dept 2013]; Matter of Deutsch, 286 AD2d 91 [1st Dept 2001]). Here, essential similarity is demonstrated by a comparison of the two statutes.

In the District of Columbia, an attorney is disbarred without a hearing for conviction of a felony involving moral turpitude. Moral turpitude per se is evaluated by reference to the elements of the offense rather than the facts of the conviction. If the elements do not amount to moral turpitude, the attorney gets a hearing.

D.C.  will only look at the indictment in conspiracy cases to see if the object of the conspiracy involces moral turpitude.

This D.C. Board on Professional Responsibility Report lays out the process with citations.  (Mike Frisch)