In re Culhane , 848 N.Y.2d 165 ( 2007 )

McGuire, J. (dissenting).

Petitioner was admitted to practice as an attorney in the State of New York by this Court on June 29, 1954. By an order dated September 29, 1998, this Court accepted petitioner’s resignation and ordered that his name be struck from the roll of attorneys, i.e., petitioner was disbarred (247 AD2d 88 [1998]). Petitioner’s disbarment was precipitated by his conviction, upon his guilty plea, in the United States District Court for the Eastern District of New York for conspiracy to commit mail fraud, a federal felony, in violation of 18 USC §§ 371 and 1341 et seq. Petitioner admitted that he conspired with others to pay cash bribes through middlemen to insurance company employees in exchange for favorable consideration in connection with the settlement of personal injury claims and lawsuits. Petitioner so conspired on approximately 15 to 20 occasions over a 13-year period.

Petitioner now seeks to be reinstated (Judiciary Law § 90 [5] [b]; 22 NYCRR 603.14). In order to be reinstated, petitioner must establish by clear and convincing evidence, among other things, that he “possesses the requisite character and general fitness to practice law” (22 NYCRR 603.14 [b] [2]). In evaluating the petition, “[we] may consider the misconduct for which petitioner was originally disbarred . . . and any other relevant conduct” of petitioner (22 NYCRR 603.14 [c]).

Petitioner should not be reinstated. Petitioner pleaded guilty to a serious federal felony conspiracy charge stemming from his repeated bribing of insurance company adjusters who expedited the settlement of cases petitioner had pending with insurance companies. These bribes were paid, through middlemen, on approximately 15 to 20 occasions over a period of 13 years, demonstrating a pattern of criminal conduct and belying any claim that petitioner’s conduct was aberrational.

Of paramount importance, however, is petitioner’s insistence that there were no victims as a result of his criminal conduct. On the issue of whether petitioner accepted responsibility for his criminal and professional misconduct, the Hearing Panel found that petitioner was “confused” and “did not have an adequate opportunity to address the questions posed by his counsel and Staff’ on the subject. The Panel’s finding is not defensible. Petitioner was asked during his reinstatement hearing whether he believed anyone or anything had been harmed by his criminal conduct and petitioner answered in the negative. Notably, the following colloquy occurred during the Departmental Disciplinary Committee’s cross-examination of petitioner at the reinstatement hearing:

“Q: Do you have an understanding as to whether or not there were any victims or victimized agencies as a result of your criminal conduct?

“A: No, sir.

“Q [The Hearing Panel]: Do you understand the question? Was anybody hurt by what you did?

“A: Was anybody hurt by what I did? No.”

Petitioner was then presented with an excerpt from an affidavit he submitted in support of his application for reinstatement. In the affidavit, petitioner averred “[t]hat I was acting in what I perceived to be a manner that benefitted my clients without an adverse impact on the [insurance] carriers does not excuse my actions” (emphasis added). The Hearing Panel then asked petitioner, “So it’s your testimony . . . that in your mind neither the [insurance] carrier nor your clients were hurt by your conduct?” Petitioner, consistent with his prior answer, replied “I don’t believe that the insurance carrier was hurt at all.”

As the attorney for the Departmental Disciplinary Committee (the Committee) correctly puts it in his submission to this Court, “the questions posed to petitioner on this topic were as clear as a bell.” And in his unequivocal responses, petitioner repeatedly made clear that he does not believe there were any victims of his crimes. As the Committee’s attorney goes on to stress, “petitioner either refuses or is incapable of accepting the fact that entities, namely the insurance companies, were victimized as a result of the criminal scheme in which he participated for thirteen years.”

Finally, I respectfully disagree with the majority that petitioner’s assertion that he has no intention of recommencing the practice of law is a “fact [that] militates in favor of . . . his reinstatement.” Of course, however, once reinstated petitioner is free to change his mind. Accordingly, in my opinion, this assertion is irrelevant.

Given that petitioner’s serious criminal conduct took place repeatedly over the course of so many years and the persistence of his position that the insurance companies were not harmed by that conduct, petitioner has failed to establish by clear and convincing evidence that he “possesses the requisite character and general fitness to practice law” (22 NYCRR 603.14 [b] [2]). Accordingly, the petition should be denied.

Andrias, J.P., Saxe, Nardelli and Malone, JJ., concur; McGuire, J., dissents in a separate opinion.

Petitioner reinstated as an attorney and counselor-at-law in the State of New York, effective the date hereof.