An attorney who had failed to report a 2005 conviction for securities fraud and related offenses has been disbarred by the New York Appellate Division for the First Judicial Department.

Respondent’s 2005 conviction stems from his participation in a scheme with his brother, Steven Merker, and others, to defraud the shareholders and creditors of Standard Automotive Corporation, of which respondent was a director and his brother was Chairman, President, and CEO. Their scheme involved orchestrating several multimillion dollar acquisitions by the corporation, and causing it to pay substantially in excess of the negotiated purchase price, which excess payments were then indirectly funneled back to respondent and his brother by a coconspirator. Respondent also created a series of fraudulent invoices for payment from Standard Automotive for services purportedly he performed on the company’s behalf, for which the company paid him over $75,000. Additionally, respondent and his brother submitted to the company falsified and inflated business expense reports, causing the company to reimburse them for amounts far beyond their legitimate business expenses.

Disbarment is an automatic consequence of such a conviction

For purposes of the application of Judiciary Law § 90(4)(a), which authorizes automatic disbarment of an attorney upon conviction of a felony, Judiciary Law § 90(4)(e) defines the term “felony” as “any criminal offense classified as a felony under the laws of this state or any criminal offense committed in any other state, district, or territory of the United States and classified as a felony therein which if committed within this state, would constitute a felony in this state.” The out-of-jurisdiction felony must be “essentially similar,” but not necessarily identical to, an offense classified as a felony in New York (see Matter of Margiotta, 60 NY2d 147, 150 [1983]).

(Mike Frisch)