NEW YORK SUPREME COURT, APPELLATE DIVISION First Judicial Department
March 10, 2009
IN THE MATTER OF JOEL A. SILBERMAN (ADMITTED AS JOEL ALAN SILBERMAN), A DISBARRED ATTORNEY: PETITIONER,
FOR REINSTATEMENT TO THE BAR OF THE STATE OF NEW YORK, DEPARTMENTAL DISCIPLINARY COMMITTEE FOR THE FIRST JUDICIAL DEPARTMENT, RESPONDENT.
Disciplinary proceedings instituted by the Departmental Disciplinary Committee for the First Judicial Department. Respondent, Joel A. Silberman, 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 September 24, 1986.
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, Angela M. Mazzarelli, Richard T. Andrias, James M. McGuire, Rolando T. Acosta, Justices.
M1947 & M3040
Respondent was admitted to the practice of law in the State of New York by the Second Judicial Department on September 24, 1986, and at all times relevant to these proceedings he maintained his principal place of business within this Judicial Department.
On November 9, 2004, respondent pleaded guilty to criminal sale of a controlled substance in the third degree in violation of Penal Law § 220.39(1), a class B felony, and agreed to participate in the ASPIRE (Alternative Sentencing Pre-Indictment Rehabilitation Effort) program with the understanding that if he successfully completed the program and had not been rearrested, he would be allowed to withdraw his felony plea, plead guilty to a class A misdemeanor, and a sentence of time served would be imposed.
By order entered May 11, 2006, this Court struck respondent's name from the roll of attorneys based on automatic disbarrment as a result of his conviction of a felony as defined by Judiciary Law § 90(4)(e)(Matter of Silberman, 31 AD3d 21 ). We specifically rejected respondent's request to defer a final sanction until he completed the drug treatment program, stating in pertinent part, that the Judiciary Law "is self-executing" and,"[s]hould respondent re-plead to a misdemeanor, he may petition this Court to vacate the order of disbarrment" (31 AD3d at 22-23).
Respondent successfully completed the ASPIRE program in 2006, including completion of Daytop Village's six month residential drug treatment program; intensive outpatient treatment for one year; completion of community service; the securing of full time employment; living in housing approved by the Office of Special Narcotics; and weekly drug testing, and received excellent evaluations from the staff and program managers. Respondent avers that he has not used drugs since his March 2004 arrest.
On November 2, 2006, respondent pleaded guilty to criminal possession of a controlled substance in the seventh degree in violation of Penal Law § 220.03, a misdemeanor, and received a sentence of time served. Thereafter, On November 6, 2006, in accordance with his plea agreement, New York County Supreme Court vacated respondent's felony conviction and dismissed all pending criminal charges against him.
Now that his felony conviction has been dismissed and replaced by a misdemeanor conviction, respondent moves pursuant to Judiciary Law § 90(5)(a) for an order: 1) vacating this Court's previous disbarrment order entered May 11, 2006; 2) reinstating him to the practice of law without further proceedings; and 3) deeming his removal from the bar as a suspension nunc pro tunc to November 9, 2004 (date of conviction), since he has now effectively been out of the practice of law for almost four years for a misdemeanor conviction (see Matter of Hecht, 253 AD2d 98 [by the time final sanction of a one year suspension was determined in this non-criminal case, attorney already suspended for two years, thus, Court imposed suspension nunc pro tunc to interim suspension and reinstated attorney without further proceedings]; see also Matter of Levin, 261 AD2d 74 [three year suspension imposed nunc pro tunc to interim suspension and immediately reinstated]). Respondent, who has also been in the restaurant business since his graduation from law school in 1985, states that, since the reduction of his conviction to a misdemeanor, he has been actively involved in opening a new gourmet sandwich shop and he has not practiced law since his November 2004 guilty plea.
Although it concedes that respondent's disbarrment order should be vacated pursuant to Judiciary Law § 90(5), the Departmental Disciplinary Committee cross moves for an order: 1) immediately suspending respondent from the practice of law pursuant to 22 NYCRR 603.4(e)(1)(i) and (iii) based upon substantial admissions made under oath (referring to his plea allocution) and other uncontested evidence of professional misconduct in violation of DR 1-102(A)(3)(illegal conduct that adversely reflect on respondent's honesty, trustworthiness or fitness as a lawyer) and 1-102(A)(7)(conduct that adversely reflects on respondent's fitness as a lawyer); and 2) referring the matter to the Committee for the commencement of a disciplinary proceeding based upon a formal statement of charges, which will allow the issues surrounding his misconduct to be more fully addressed.
In opposition to respondent's motion and in support of its cross motion the Committee argues, inter alia, that respondent may still be disbarred for his conduct regardless of the fact that he was convicted of the misdemeanor of criminal possession of a controlled substance in the seventh degree. It contends that, at a deposition in May 2007 (taken in anticipation of respondent's current motion), respondent "recanted" his plea admission that he sold drugs and, therefore, testified inconsistently to his plea allocution; and he testified that he thought about practicing law before the order of disbarrment was issued (but never did).
In reply, respondent disputes the Committee's allegations regarding his alleged recantation and his consideration of possibly practicing law after his original conviction but before his formal disbarrment and argues, in essence, that, in light of his impressive record after his original conviction, he should be rewarded for his hard work and rehabilitation by permitting his four year de facto suspension to act as appropriate discipline in this case and that he be immediately reinstated to the practice of law. In the alternative, if this Court is uncertain as to the appropriate sanction on the record before it, respondent requests the matter be remanded strictly for a mitigation/sanction hearing (not formal charges) before a Hearing Panel. By contrast, if the Committee's cross motion is granted and formal charges and a formal hearing process are permitted to go forward, respondent contends that he could arguably be suspended in a year or more from now, and then he would have to move for reinstatement, which could take another year or so, resulting in a possible suspension of eight years for a misdemeanor conviction, which would be unfair for a rehabilitated lawyer who has done everything asked of him to make himself fit to again practice law.
Ordinarily, where a misdemeanor conviction is deemed a "serious crime," an interim suspension is imposed, and the matter is remanded for a hearing on the appropriate sanction to impose for the "serious crime" (see Matter of Biaggi, 170 AD2d 139 ); however, in at least two cases cited by respondent the Committee has not sought to suspend attorneys convicted of drug related misdemeanors pending consideration of the charges against them (see Matter of Keiser, 304 AD2d 96 [where this Court accepted Hearing Panel's recommendation of a four year suspension retroactive to date that respondent, who had been convicted of several misdemeanor drug offenses in Massachusetts, voluntarily suspended himself from the practice of law]; Matter of Hildebrand, 221 AD2d 85 [Hearing Panel sustained charges that attorney engaged in an illegal act involving moral turpitude and conduct adversely reflecting on his fitness to practice law where attorney was convicted of same misdemeanor charge as instant respondent and also failed to disclose conviction to appropriate Bar authorities]).
In this case, respondent's misdemeanor conviction under Penal Law § 220.03 does not meet the definition of a "serious crime" as set forth in Judiciary Law § 90(4)(d)*fn1. Nevertheless, under the present circumstances, we find the Committee's cross motion for an interim suspension, followed by the possible filing of formal charges for respondent's underlying criminal conduct, to be appropriate. Moreover, given the procedural posture of this matter and the interests of judicial economy, the Committee would not oppose referral of the matter directly to a Hearing Panel for a hearing on formal charges, thereby bypassing a Referee's hearing. As the Committee points out, Hearing Panels frequently serve as the initial fact finders in "serious crime" and reinstatement matters and, since this matter involves issues akin to those frequently raised in those proceedings, a Hearing Panel would be capable of reviewing the facts of the case and making recommendations as to a final sanction.
In Matter of Biaggi (supra.), where the disbarred attorney's conviction on Federal bribery and mail fraud counts, which led to his automatic disbarrment, was dismissed on appeal, and the matter remanded for resentencing on two counts of filing a false tax return, the respondent conceded that the tax perjury charges, which had no New York felony analog, were nevertheless "serious crimes" warranting interim suspension from practice pending consideration of disciplinary proceedings in this Court, but asked that a hearing be held to reconsider the appropriate sanction for such a serious crime, as well as to entertain a petition for reinstatement in light of the fact that he had been already effectively barred from practice for two and a half years since his conviction. This Court vacated its previous order of disbarrment, but since under the statute, the "serious crime" hearing (Judiciary Law § 90[h] serves a function different from the reinstatement hearing (§ 90), it declined to mandate such a dual assignment to the hearing panel. In so ruling, the Court stated, in pertinent part: " [T]he Hearing Panel may wish to fashion an additional recommendation in its report for appropriate relief in light of the punishment respondent has already absorbed (see, Matter of Kuba, 162 AD2d 30 )"(id. at 141). Thereafter, upon remand, the Hearing Panel recommended that the appropriate sanction be suspension limited to the period of time already served under our prior order, which recommendation was adopted and respondent was reinstated, effective immediately (see Matter of Biaggi, 178 AD2d 74 ).
Accordingly, as we stated in Matter of Biaggi (supra), although the Hearing Panel may wish to fashion an additional recommendation in its report for appropriate relief in light of the present posture of this matter, the Committee's cross motion should be granted, the matter remanded for hearing, report and recommendation ofan appropriate sanction on whatever charges the Committee may deem appropriate to bring against respondent and respondent suspended from the practice of law, effective immediately, pending our review and decision on that recommendation. Respondent's motion should be granted only to the extent of vacating our order of disbarrment, entered May 11, 2006.
Tom, J.P., Mazzarelli, Andrias, McGuire, and Acosta, JJ.
The order of disbarrment entered on May 11, 2006
(M-5268) vacated; petitioner suspended from the practice of law in the State of New York, effective the date hereof, and matter remanded to a Committee to designate a Hearing Panel to conduct a hearing, as indicated.