Opinion
June 8, 1999
Disciplinary proceedings instituted by the Departmental Disciplinary Committee for the First Judicial Department.
Raymond Vallejo, of counsel (Thomas J. Cahill, Chief Counsel) for petitioner.
Joseph A. Bondy, attorney for respondent.
BETTY WEINBERG ELLERIN, Presiding Justice, PETER TOM, ALFRED D. LERNER, JOHN T. BUCKLEY, DAVID FRIEDMAN, Justices.
Respondent Harvey B. Baum was admitted to the practice of law in the State of New York by the First Judicial Department on December 23, 1968. At all times relevant to this proceeding he maintained an office for the practice of law within the First Judicial Department.
Respondent was charged with several felony offenses in an indictment filed in the United States Court for the Southern District of New York. On January 28, 1999, he pleaded guilty to the single felony charge of obstruction of justice (18 U.S.C. § 1503 [a]), but has not yet been sentenced. Petitioner Departmental Disciplinary Committee moves under Judiciary Law § 90(4)(a) for automatic disbarment. Respondent cross-moves for an order determining that his Federal conviction constitutes a "serious crime" pursuant to Judiciary Law § 90(4)(d), and for a hearing to determine an appropriate sanction pursuant toJudiciary Law § 90(4)(h) . The issue before us is whether respondent's plea allocution satisfies the elements of a New York felony offense, in this case offering a false instrument for filing in the first degree (Penal Law § 175.35 ), requiring disbarment. We conclude that it does.
These charges arose from respondent's conduct as an attorney wherein he sought to induce the United States Attorney's office to file a motion, pursuant to Rule 35 of the Federal Rules of Criminal Procedure, on behalf of a cooperating witness represented by respondent, purportedly to aid in the apprehension of a violent narcotics trafficker. Rule 35 allows for a sentence modification that results in a downward departure from the sentencing guidelines for a defendant under limited circumstances when a third party provides cooperation. The U.S. Attorney requires that the third party be a close relative or a friend of the defendant, that he not be cooperating in exchange for money, and the defendant must have some personal knowledge of the investigated criminal conduct and thus can personally facilitate the investigation. In the present case, respondent had also formerly represented the third party, who had returned to his native Columbia after completing his own period of incarceration. Respondent's present client, seeking favorable treatment as a cooperating witness, was serving a 20-year term for narcotics trafficking and murder in aid of racketeering. Respondent entered an agreement whereby respondent would arrange a third party cooperation agreement on his client's behalf in exchange for remuneration to the informant of $1 million. Respondent then communicated to the prosecutor in writing that the cooperating witness's grandfather would pay respondent's outstanding legal fees and expenses of $100,000 from legitimate earnings. Subsequently, respondent executed, and caused the cooperating witness to execute, a declaration memorializing this putative fee arrangement, and further representing that the third party was cooperating because of his close relationship with the cooperating witness, not for pecuniary gain, and that the close relationship arose when the cooperating witness had protected the third party in prison from a specified gang.
These statements were false. Although at his plea proceeding respondent characterized his conduct as constituting a reckless disregard for the truth, in fact, he also conceded that he knew the statements were misleading when he filed them, that they were made with the intent to wrongfully influence the U.S. Attorney's office to file a Rule 35 motion, and that he knew that his conduct was illegal.
The Federal offense of obstruction of justice does not have a New York felony analog. Nor does it contain as an element that the criminal defendant, in this case the respondent, make a false statement. The making of a false statement is an essential element of the New York class "E" felony of offering a false instrument for filing. However, that distinction does not govern our determination when the respondent's plea allocution for the Federal offense establishes the elements of a New York felony (Matter of Kaye, 217 A.D.2d 197). Offering a false instrument for filing in the first degree, in relevant part, is committed when a person "knowing that a written instrument contains a false statement or false information, and with intent to defraud the state . . . he offers or presents it to a public office or public servant with the knowledge or belief that it will be filed with, registered or recorded in or otherwise become a part of the records of such public office or public servant." Respondent admitted having knowingly submitted false statements to a public servant. False statements to a prosecutor or law enforcement agent made with the intent to induce leniency or to avoid penal sanctions have been recognized to fall within this offense (People v. Sinclair, 208 A.D.2d 573). As such, respondent has admitted to facts establishing the elements of a New York felony, providing the predicate for automatic disbarment.
Accordingly, the petition should be granted and respondent's name stricken from the roll of attorneys authorized to practice law in this State, and the cross-motion should be denied.
All concur.
Order filed.