A two year nunc pro tunc suspension has been imposed by the New York Appellate Division for the Third Judicial Department

The Referee found that, as the sole owner and chief operating officer of a Michigan-based payroll processing company, Affinity Human Resources, LLC, respondent failed to report an omission in an application for workers’ compensation coverage submitted to the New York State Insurance Fund by one of Affinity’s construction company clients. Following an audit by state authorities, respondent, Affinity and some of its clients were indicted on criminal charges, which ultimately resulted in respondent’s criminal plea and sentence of one-year conditional discharge. The Referee found that such testimony appeared to indicate an act of omission, but noted that respondent’s plea allocution – wherein he admitted to directing Affinity’s employees to omit certain information in the application before the Fund – signaled an act of commission and his active participation in a scheme to defraud the Fund. The Referee further cited respondent’s testimony as to the remorse he feels for his conduct, but nonetheless noted the seriousness of respondent’s conduct. The discrepancies in respondent’s hearing testimony as compared to his plea allocution are further highlighted in his submissions to the Court, wherein he attempts to characterize his direction of employees as a failure to ensure that the application before the Fund and Affinity’s internal records were correct, as opposed to an overt act. While we note that a hearing as to mitigation and aggravation would naturally allow an attorney to provide context as to past events, we nonetheless find that respondent’s inconsistent testimony about his culpability should be construed as a lack of remorse in aggravation (see Matter of Selterman, 66 AD3d 74, 79 [1st Dept 2009]

The sanction was imposed retroactive to the date of his imterim suspension. (Mike Frisch)