Opinion
M–2843
09-20-2018
In the MATTER OF Herbert G. LINDENBAUM, (admitted as Herbert Gerald Lindenbaum), a suspended attorney: Attorney Grievance Committee for the First Judicial Department, Petitioner, v. Herbert G. Lindenbaum, Respondent.
Jorge Dopico, Chief Attorney, Attorney Grievance Committee, New York (Raymond Vallejo, of counsel), for petitioner. Richard E. Mischel, Esq. for respondent.
Jorge Dopico, Chief Attorney, Attorney Grievance Committee, New York (Raymond Vallejo, of counsel), for petitioner.
Richard E. Mischel, Esq. for respondent.
Judith J. Gische, Justice Presiding, Troy K. Webber, Jeffery K. Oing, Anil C. Singh, Peter H. Moulton, Justices.
PER CURIAM
Respondent Herbert G. Lindenbaum was admitted to the practice of law in the State of New York by the Second Judicial Department on December 21, 1962, under the name Herbert Gerald Lindenbaum. At all times relevant to this proceeding, he has maintained an office for the practice of law within the First Judicial Department.
On October 12, 2017, respondent pleaded guilty in the United States District Court for the Southern District of New York to evasion of payment of income taxes in violation of 26 U.S.C. § 7201, a felony under federal law. Respondent admitted that from 1999 through 2013, he attempted to evade paying taxes by sending business checks directly to his wife's account, paying personal expenses from his business accounts and clients' accounts, paying family members for work they did not perform, cashing checks made out to his business accounts, and closing and opening certain business accounts to avoid IRS levies.
On January 11, 2018, he was sentenced, in accordance with his plea agreement, to time served and placed on supervised release for three years, with six months of home confinement during which he was ordered to remain at home each day from 6:30 p.m. to 7 a.m. Respondent was ordered to pay restitution of $3,392,211 and an assessment of $100.
The Attorney Grievance Committee (Committee) seeks an order determining that the crime of which respondent has been convicted is a "serious crime" as defined by Judiciary Law § 90(4)(d) ; immediately suspending respondent from the practice of law pursuant to the Rules for Attorney Disciplinary Matters ( 22 NYCRR) § 1240.12(b)(2) and Judiciary Law § 90(4)(f) ; and directing respondent to show cause before a referee appointed by the Court, which shall hold a hearing and issue a report and recommendation to the Court, why a final order of censure, suspension or disbarment should not be made.
Respondent does not oppose the relief sought by the Committee with respect to the designation that the crime is a "serious crime" as defined by Judiciary Law § 90(4)(d) and the referral by this Court of the matter to a referee to hear and report. Respondent, however, opposes the Committee's motion to the extent it seeks an order imposing an interim suspension until a final order is issued. Respondent argues that this Court should set aside his immediate suspension because supervised release and home confinement do not constitute probation or incarceration, which normally require such suspension. He also argues that he is 79–years–old, lives with his wife and 35–year–old daughter who has significant health issues, and he cannot work the way he used to due to his own health problems. Respondent claims that he will be unable to continue making restitution payments if he is interimly suspended.
The crime which respondent was convicted of is a "serious crime" within the meaning of Judiciary Law § 90(4)(d) which defines "serious crime" in relevant part as follows:
"any criminal offense denominated a felony under the laws of ... the United States which does not constitute a felony under the laws of this state ..."
The crime of which respondent has been convicted, tax evasion in violation of 26 U.S.C. § 7201, is a "serious crime" insofar as it is a felony under the United States Code. Thus, such convictions constitute serious crimes within the meaning of the statute (see Matter of Shapiro, 81 A.D.3d 25, 27, 915 N.Y.S.2d 538 [1st Dept. 2011] ; Matter of Ruble, 66 A.D.3d 48, 49, 883 N.Y.S.2d 36 [1st Dept. 2009] ; Matter of Batalla, 205 A.D.2d 66, 618 N.Y.S.2d 22 [1st Dept. 1994] ). Moreover, respondent acknowledges that his conviction constitutes a "serious crime" under the statute. Accordingly, respondent's conviction mandates the conclusion that he has been convicted of a "serious crime."
As for the interim suspension, Judiciary Law § 90(4)(f) provides the following in relevant part:
"Any attorney and counsellor-at-law convicted of a serious crime ... shall be suspended upon the receipt by the appellate division of the supreme court of the record of such conviction until a final order is made pursuant to paragraph g of this subdivision.
"Upon good cause shown the appellate division of the supreme court may, upon application of the attorney or on its own motion, set aside such suspension when it appears consistent with the maintenance
of the integrity and honor of the profession, the protection of the public and the interest of justice."
We have consistently held that it is appropriate to suspend an attorney, pursuant to Judiciary Law § 90(4)(f), who has been convicted of a felony, during the pendency of a "serious crime" proceeding and until a final order is issued (see Matter of Freedman, 109 A.D.3d 151, 153, 968 N.Y.S.2d 504 [1st Dept. 2013] ; Matter of Lynch, 55 A.D.3d 213, 214–215, 866 N.Y.S.2d 1 [1st Dept. 2008] ; Matter of Fasciana, 36 A.D.3d 9, 10–11, 823 N.Y.S.2d 132 [1st Dept. 2006] ). Specifically, we have suspended attorneys convicted of tax evasion under 26 U.S.C. § 7201 and who are serving a term of probation or imprisonment (see Matter of Shapiro, 81 A.D.3d at 27, 915 N.Y.S.2d 538 ; see also Matter of Ruble, 66 A.D.3d at 49, 883 N.Y.S.2d 36 ["[t]he pendency of respondent's appeal is not a compelling reason to delay disciplinary action in the instant matter"] ).
Respondent has not demonstrated good cause pursuant to Judiciary Law § 90(4)(f) as to why this Court should set aside the immediate suspension. Respondent was sentenced to time served, six months of home confinement, and three years of criminal supervised release. Supervised release constitutes probation (see Matter of Lee, 235 A.D.2d 110, 111, 663 N.Y.S.2d 161 [1st Dept. 1997] ). In light of this Court's general policy that a lawyer convicted of a felony and sentenced to probation should be precluded from practicing law (see Matter of Witchell, 220 A.D.2d 153, 154, 642 N.Y.S.2d 262 [1st Dept. 1996] ; see generally Matter of Cantor, 252 A.D.2d 269, 272, 684 N.Y.S.2d 233 [1st Dept. 1999] ), the Committee's motion for immediate suspension is appropriate.
Further, interim suspensions will be upheld even in instances where a respondent is obligated to make restitution and pay fines (see Matter of Rakov, 225 A.D.2d 34, 648 N.Y.S.2d 31 [1st Dept. 1996] ; Matter of Witchell, 220 A.D.2d at 154, 642 N.Y.S.2d 262 ; Matter of Batalla, 205 A.D.2d at 67, 618 N.Y.S.2d 22 ). We have explicitly found that "financial and family hardships are inherent in any significant suspension, but are not sufficient to avoid such sanction when merited" ( Matter of Joffe, 158 A.D.3d 11, 17, 68 N.Y.S.3d 468 [1st Dept. 2018] ; see Matter of Alperin, 66 A.D.3d 309, 313, 885 N.Y.S.2d 261 [1st Dept. 2009] ; Matter of Leavitt, 291 A.D.2d 37, 39, 738 N.Y.S.2d 313 [1st Dept. 2002] ). In any event, respondent does not proffer any evidence of his current financial condition, but claims, through his counsel, that he will be unable to pay his $3.3 million in restitution if he is immediately suspended.
Accordingly, the Committee's motion should be granted and the offense of which respondent has been found guilty is deemed to be a "serious crime" within the meaning of Judiciary Law § 90(4)(d) ; respondent is hereby suspended from the practice of law pursuant to Judiciary Law § 90(4)(f) effective immediately; and respondent is directed to show cause before a referee appointed by the Court, pursuant to Judiciary Law § 90(4)(g), which shall thereupon hold a hearing and issue a report and recommendation to this Court, why a final order of censure, suspension, or disbarment should not be made.
Ordered that the motion is granted to the extent of deeming the offense of which respondent has been found guilty to be a "serious crime" and respondent is suspended from the practice of law in the State of New York, effective the date hereof, until such time as disciplinary matters pending have been concluded, and until further order of this Court.
All Concur.