Eligible To Seek Reinstatement
A 2 1/2 year suspension – making the attorney eligible to seek reinstatement – has been imposed by the New York Appellate Division for the First Judicial Department for tax crimes.
On April 14, 2014, respondent was convicted, upon his plea of guilty, in the United States District Court for the Northern District of New York of obstructing and impeding the Internal Revenue Service, in violation of 26 USC § 7212(a), a felony. On May 1, 2014, respondent was convicted, upon his plea of guilty, in the United States District Court for the Southern District of New York of two counts of failure to file individual income tax returns for the years 2006 and 2007, in violation of 26 USC § 7203, a misdemeanor.
He was released after serving 11 months.
Both the IRS and New York State are claiming significant taxes are still owed. Negotiations for a settlement and payment plan between the IRS and respondent and New York State and respondent remain ongoing.
On October 26, 2016, counsel for respondent filed an affidavit of compliance with this Court’s April 14, 2015 interim suspension order.
Respondent admits that he was convicted of offenses which are defined as “serious crimes” under New York law and that his conduct violated rule 8.4(b) of the New York Rules of Professional Conduct (22 NYCRR 1200.0), which provides that a lawyer shall not engage in illegal conduct that adversely reflects on the lawyer’s honesty, trustworthiness or fitness as a lawyer.
The parties agree that, in accordance with the case law and taking into account the factors in mitigation, a suspension of 2½ years, retroactive to his interim suspension dated April 14, 2015, is appropriate. The mitigating factors considered by the parties include respondent’s candor about his misconduct, his acceptance of responsibility and expressions of sincere remorse and contrition; his filing of all outstanding federal and state tax returns for 2005 through 2010 covering all the years he had failed to file returns, and his payment of estimated payments totaling $118,000 for tax years 2006 through 2009; his position as a staff lawyer with the Legal Aid Society in the Bronx from 1984-1989, and as a solo practitioner handling mostly criminal defense matters representing many indigent clients, many of whom were Native Americans, from 1989-2015; his devotion to pro bono work in international human rights matters as a “significant” part of his practice, and his plan to continue this work upon his reinstatement; his devotion to caring for his longtime life-partner who has long-term serious mental and physical health problems; his own chronic health condition; his previously unblemished record as an attorney; his austere lifestyle, where respondent is without assets or an income; his actions did not harm his clients; his compliance with this Court’s interim suspension order; and finally the consequences of his misconduct, insofar as he served 11 months out of his 18-month sentence in prison, three months in a halfway house and two months of home confinement.
Sanction
The parties have agreed further, subject to this Court’s consent, that in light of his age, the absence of any new allegations, and respondent’s desire to return to “productive activity so that he may repay his back tax liability and teach abroad, as he plans to do,” he should be allowed to apply for reinstatement immediately.
In light of the foregoing, we find that the proposed discipline of a 2½ year suspension, effective April 14, 2015, the date of his interim suspension, is an appropriate sanction for respondent’s serious crimes.
As the period of suspension has already run, respondent may apply for reinstatement (22 NYCRR 1240.16[c][2]). Therefore, it is unnecessary for this Court to give respondent “permission to apply for reinstatement immediately,” as the parties request.
(Mike Frisch)