Attorney Grievance Comm. for the First Judicial Dep't v. Sterling (In re Sterling)

205 A.D.3d 201

167 N.Y.S.3d 97

In the MATTER OF Jeffrey A. STERLING, (Admitted as Jeffrey Alexander Sterling), an attorney and counselor-at law:

Attorney Grievance Committee for the First Judicial Department, Petitioner,

v.Jeffrey A. Sterling, (OCA Atty. Reg. No. 3898137) Respondent.

Motion No. 2022-00900

Case No. 2022-00882

Supreme Court, Appellate Division, First Department, New York.

Entered May 12, 2022

Jorge Dopico, Chief Attorney, Attorney Grievance Committee, New York (Raymond Vallejo, Esq., of counsel), for petitioner.

J. Richard Supple, Jr., Esq., for respondent.

Judith J. Gische, J.P., David Friedman, Peter H. Moulton, Saliann Scarpulla, Bahaati E. Pitt, JJ.

Per Curiam

Respondent Jeffrey A. Sterling was admitted to the practice of law in the State of New York by the First Judicial Department on October 16, 2000, under the name Jeffrey Alexander Sterling. His admission to practice before the First Department provides this Court with jurisdiction over him (Rules for Attorney Disciplinary Matters [ 22 NYCRR] § 1240.7 [a][2]).

On January 26, 2015, respondent was convicted after a jury trial, in the United States District Court for the Eastern District of Virginia, of multiple federal felonies: unauthorized conveyance of government property in violation of 18 USC § 641 ; unauthorized disclosure of national defense information in violation of 18 USC § 793(d) and (e) ; unlawful retention of national defense information in violation of 18 USC § 793(e) ; and obstruction of justice in violation of 18 USC § 1512(c)(1). He was sentenced to 42 months imprisonment, supervised release for two years and ordered to pay a special assessment of $900.

Respondent's conviction stemmed from his employment at the CIA where he was assigned to a classified project designed to undermine Iran's nuclear program. Among other things, respondent shared classified information about the Iranian nuclear program with a reporter, which was published in a book.

The Attorney Grievance Committee (Committee) moves to strike respondent's name from the roll of attorneys pursuant to Judiciary Law §§ 90(4)(a) and (b), and 22 NYCRR 1240.12(c)(1) on the ground that he was convicted of a federal felony which would constitute a felony if convicted under New York law, as defined by Judiciary Law § 90(4)(e), and therefore respondent has been automatically disbarred.

Respondent submitted an affidavit and memorandum of law in which he concedes that his disbarment is required on account of his federal conviction.

Under § 90(4)(a) of Judiciary Law, "[a]ny person being an attorney ... who shall be convicted of a felony as defined in [ Judiciary Law § 90(4)(e) ], shall upon such conviction, cease to be an attorney." As pertinent here, felony offenses that merit automatic disbarment under this section include, "any criminal offense committed in any ... district, or territory of the United States and classified as a felony therein which if committed within this state, would constitute a felony in this state" (Judiciary Law Section § 90[4][e] ). Further, the federal felony need not be a "mirror image" of the New York felony but it must possess "essential similarity" ( Matter of Margiotta , 60 N.Y.2d 147, 150, 468 N.Y.S.2d 857, 456 N.E.2d 798 [1983] ).

Here, the Committee asserts that respondent's conviction for obstruction of justice in violation of 18 USC § 1512(c)(1) is "essentially similar" to the New York felony of tampering with physical evidence, Penal Law § 215.40(2). A person is guilty of obstruction of justice, pursuant to 18 USC § 1512(c)(1), if the person "corruptly" alters, destroys, mutilates or conceals "a record, document, or other object, or attempts to do so, with the intent to impair the object's integrity or availability for use in an official proceeding." In comparison, under New York Penal Law § 215.40(2), a person is guilty of tampering with physical evidence when "[b]elieving that certain physical evidence is about to be produced or used in an official proceeding or a prospective official proceeding, and intending to prevent such production or use, he suppresses it by any act of concealment, alteration or destruction, or by employing force, intimidation or deception against any person."

In Matter of Coren, 76 A.D.3d 285, 287, 905 N.Y.S.2d 62 (1st Dept. 2010), this Court found that "[r]espondent's conviction for obstruction of justice in violation of 18 USC § 1512(c) is a proper predicate for disbarment because there is ‘essential similarity’ between that federal statute and the New York felony of tampering with physical evidence ( Penal Law § 215.40[2] )" see also Matter of Kluger, 102 A.D.3d 168, 959 N.Y.S.2d 2 [1st Dept. 2013] ). Thus, as in our prior cases, the two statutes at issue here are essentially similar and respondent should be automatically disbarred.

The Committee further contends that respondent did not report his January 26, 2015 conviction until December 13, 2021 and therefore moves to make respondent's disbarment effective as of the date of the Committee's motion. Respondent urges that the disbarment be made nunc pro tunc to the date of his conviction.

First, we note that respondent committed professional misconduct by failing to timely report his conviction to either the Court or the Committee as required by Judiciary Law § 90(4)(c) and 22 NYCRR 1240.12(a). Although this failure to timely report his conviction may be germane to any future application for reinstatement (see 22 NYCRR 1240.16 [a]), it does not affect respondent's disbarment date. Indeed, the...