Opinion
October 15, 1996
Sherry K. Cohen of counsel (Hal R. Lieberman, attorney), for petitioner.
Michael S. Feldberg of counsel (Schulte Roth Zabel, attorneys), for respondent.
Respondent Robert Sylvor was admitted to the practice of law in the State of New York by the First Judicial Department on June 20, 1961 and at all times relevant to this proceeding has maintained an office for the practice of law within this Department.
In April 1993, the Disciplinary Committee filed an amended petition seeking an order finding respondent guilty of professional misconduct pursuant to the doctrine of collateral estoppel and arising from his conduct that was the subject of two Federal court civil lawsuits ( Duttle v Bandler Kass, Sylvor Werner, 127 FRD 46; Freschi v Grand Coal Venture, 767 F.2d 1041, vacated on other grounds 478 U.S. 1015). By order entered September 22, 1993, this Court granted the amended petition only with respect to the Freschi matter, in which respondent was found to have engaged in securities fraud and common-law fraud, and ordered that any hearing on the issue of sanction for respondent's misconduct in Freschi be held in abeyance pending further proceedings arising out of respondent's conduct in the Duttle action, in which respondent was alleged to have participated in a conspiracy with others to defraud certain foreign investors through the marketing and sale of certain securities abroad.
After hearings regarding respondent's conduct with respect to the Duttle matter, the Hearing Panel issued a decision dismissing all charges of professional misconduct arising from respondent's conduct in Duttle.
Thereafter, on January 22, 1996, the parties entered into a stipulation in which they consented to the imposition of a public censure with respect to respondent's conduct in the Freschi matter and further consented to consider the Duttle matter closed. By a Report and Recommendation dated March 15, 1996, the Hearing Panel recommended that the stipulation be approved and independently concluded that the sanction of public censure is appropriate under the circumstances of the case.
Initially, the provision in the stipulation that the Duttle matter be considered closed is proper, since the Hearing Panel conducted extensive hearings with respect to that matter and concluded in a thorough report, which was not challenged by the Disciplinary Committee, that the charges of professional misconduct had not been sustained.
With respect to the Freschi matter, as the Hearing Panel noted, while respondent is collaterally estopped from challenging the jury's verdict of securities fraud, it cannot be determined from the verdict whether the jury found that respondent had engaged in reckless behavior or had committed a deliberate fraud, and, in view of the fact that the events took place more than 17 years ago, further litigation would not necessarily clarify the issues. Moreover, respondent has had no disciplinary problems since the 1978-1980 period, when the events in the Duttle and Freschi matters occurred.
Accordingly, the Committee's motion to confirm the Hearing Panel's report should be granted and the recommended sanction of public censure should be imposed.
SULLIVAN, J.P., MILONAS, ELLERIN, ROSS and TOM, JJ., concur.
Petition granted and respondent is publicly censured.