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Fishman v. Fishman (N.Y.App.Div. 02/26/2009)

NEW YORK SUPREME COURT, APPELLATE DIVISION First Judicial Department


February 26, 2009

IN THE MATTER OF SAMUEL A. FISHMAN, (ADMITTED AS SAMUEL AARON FISHMAN), AN ATTORNEY AND COUNSELOR-AT-LAW: DEPARTMENTAL DISCIPLINARY COMMITTEE FOR THE FIRST JUDICIAL DEPARTMENT, PETITIONER,
v.
SAMUEL A. FISHMAN, RESPONDENT.

Disciplinary proceedings instituted by the Departmental Disciplinary Committee for the First Judicial Department. Respondent, Samuel A. Fishman, was admitted to the Bar of the State of New York at a Term of the Appellate Division of the Supreme Court for the Second Judicial Department on March 10, 1982.

Per curiam.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Peter Tom, Justice Presiding, Luis A. Gonzalez, John T. Buckley, John W. Sweeny, Jr., James M. Catterson, Justices.

M5534

M-5534 — December 19, 2008

Respondent Samuel A. Fishman was admitted to the practice of law in the State of New York by the Second Judicial Department on March 10, 1982, under the name Samuel Aaron Fishman. At all times relevant herein, respondent was a partner in a law firm located within the First Judicial Department.

On March 28, 2008, respondent pleaded guilty in the United States District Court for the Southern District of New York, to one felony count of mail fraud in violation of 18 USC § 1341.

The Departmental Disciplinary Committee now seeks an order striking respondent's name from the roll of attorneys, pursuant to Judiciary Law § 90(4)(b), on the ground that his Federal conviction is a proper predicate. Respondent has not submitted a response.

A conviction of a Federal felony triggers automatic disbarrment if the offense is "essentially similar" to a felony under New York law (see Matter of Sorin, 47 AD3d 1, 3 [2007]; Judiciary Law § 90[4][e]). Respondent admitted during his plea allocution that, as billing partner between 2002 and 2005, he wrongfully charged personal expenses as business expenses to his firm and its clients, and that he knew documents reflecting those charges would be sent through the United States mail. He further conceded that his activity "involved a scheme or artifice to defraud money or obtain money by materially false pretenses or promises," and he agreed to make restitution in the amount of $350,000.

Respondent's admissions during his plea allocution are sufficient to establish the elements of the New York felony of scheme to defraud in the first degree, which include a fraudulent scheme that defrauded more than one person by false pretenses and thereby obtained property in excess of $1,000 (see Penal Law § 190.65[1][b]; Matter of Treffinger, 11 AD3d 185 [2004], lv denied 4 NY3d 703 [2005]). As a result, respondent's conviction for mail fraud under 18 USC § 1341 is essentially similar to a conviction for scheme to defraud in the first degree under Penal Law § 190.65(1)(b), and therefore he automatically ceased to be an attorney, by operation of law, upon entry of his guilty plea (see Matter of Treffinger, 11 AD3d 185 [2004]; Matter of Lulkin, 258 AD2d 209 [1999]; Matter of Koss, 253 AD2d 259 [1999]).

Accordingly, the Committee's motion to strike respondent's name from the roll of attorneys and counselors-at-law pursuant to Judiciary Law § 90(4)(b) should be granted and respondent's name stricken, effective nunc pro tunc to March 28, 2008.

All concur.

Order filed.

Tom, J.P., Gonzalez, Buckley, Jr., and Catterson, JJ.

Respondent's name stricken from the roll of attorneys and counselors-at-law in the State of New York, nunc pro tunc to March 28, 2008.

20090226

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