Opinion
June 27, 2000.
Disciplinary proceedings instituted by the Departmental Disciplinary Committee for the First Judicial Department. Respondent was admitted to the Bar at a Term of the Appellate Division of the Supreme Court for the Third Judicial Department on July 13, 1982.
Raymond Vallejo, of counsel (Thomas J. Cahill, Chief Counsel) for petitioner.
Sarah Diane McShea, attorney for respondent.
Before: Joseph P. Sullivan, Presiding Justice, Eugene Nardelli, Peter Tom, Richard W. Wallach, Alfred D. Lerner, Justices.
Respondent was admitted to the bar at the Third Judicial Department in 1982, and has practiced law within the First Department at all times pertinent to these proceedings. He is also admitted to practice in New Jersey.
In 1998, a 106-count indictment was handed up in United States District Court for the Southern District of New York, stemming from an investigation by the Securities and Exchange Commission into certain sham transactions which involved, in part, a financial concern (Mutual Investor's Funding Corporation) whose president and sole shareholder was respondent. Respondent was named in two of those counts, alleging obstruction of Federal governmental proceedings, perjury and conspiracy, in violation of 18 U.S. Code §§ 1505, 1621 and 371, all classified as Federal felonies (§ 3559[a]). On December 3, 1998, respondent entered a plea of guilty to those counts, and is awaiting sentencing.
Respondent consents to petitioner's request for an order striking his name from the roll of attorneys and disbarring him as of the date of his plea. He has also notified the New Jersey authorities of his guilty plea, and has expressed his desire to resign from that Bar.
The underlying Federal felonies of obstructing governmental proceedings and perjury have no direct New York felony analog. However, a "mirror image" of a New York felony is not required (Matter of Altman, 196 A.D.2d 390, 392). Essential similarity between the elements of a Federal offense and a New York felony may be established in the admission under oath during the respondent's plea allocution (Matter of Baum, 258 A.D.2d 83), which may be read in conjunction with the indictment (Matter of Kaye, 217 A.D.2d 197). The Federal indictment specifies conduct alleging respondent's conspiracy to fabricate and backdate documents which were to be submitted as evidence in connection with the proceedings before the SEC. During his plea allocution, respondent admitted that he had fabricated such a document with the understanding that it would be submitted to the SEC. This is similar to the New York felony of offering a false instrument for filing in the first degree (Penal Law § 175.35; see, Matter of Sprecher, 181 A.D.2d 347).
Respondent has been convicted of a Federal felony offense which would also have been considered a felony under New York law if committed in this State (Judiciary Law § 90[e]). Upon such conviction, he automatically ceased to be an attorney competent to practice law in this State (§ 90[4][a]), effective upon the date of his plea (Matter of Kourland, 172 A.D.2d 77). Accordingly, the petition should be granted and respondent's name stricken from the rolls.
All concur.