In re Adler

178 N.Y.S.3d 643

In the MATTER OF Enrique Elliot ADLER, an Attorney.

(Attorney Registration No. 5381785)

PM–206–22

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

Calendar Date: November 15, 2022

Decided and Entered: December 1, 2022

Monica A. Duffy, Attorney Grievance Committee for the Third Judicial Department, Albany (Alison M. Coan, of counsel), for Attorney Grievance Committee for the Third Judicial Department.

Law Offices of Michael S. Ross, New York City (Michael S. Ross of counsel), for respondent.

Before: Aarons, J.P., Pritzker, Reynolds Fitzgerald, Ceresia and Fisher, JJ.

MEMORANDUM AND ORDER ON MOTION

Per Curiam.

Respondent was admitted to practice by this Court in 2015, following his 2003 admission in his home state of California. In May 2022, respondent pleaded guilty before the United States District Court for the Southern District of California to a single count of the federal felony of conspiracy to commit offense or to defraud United States (see 18 USC § 371 ). In conjunction with his plea, respondent admitted that he and a coconspirator had filed false tax returns and participated in a fraudulent scheme over several years to disguise various monies as charitable contributions to a religious organization. Alleging that respondent has pleaded guilty to his commission of a "serious crime" ( Judiciary Law § 90[4][d] ; see Rules for Attorney Disciplinary Matters [ 22 NYCRR] § 1240.12 ), the Attorney Grievance Committee for the Third Judicial Department (hereinafter AGC) now moves to impose discipline upon him as a consequence. Respondent has been heard in response to AGC's motion and submitted materials in mitigation, and AGC has been heard in reply. Upon respondent's request, we have also heard from the parties at oral argument (see Judiciary Law § 90[4][h] ; Rules for Attorney Disciplinary Matters [ 22 NYCRR] § 1240.12 [c][2][iii]).

AGC correctly alleges, and respondent effectively concedes, that respondent's adjudicated violation of 18 USC § 371 meets the statutory definition of a "serious crime" ( Judiciary Law § 90[4][d] ; see Matter of Daly, 20 A.D.3d 762, 763, 798 N.Y.S.2d 777 [3d Dept. 2005] ; Matter of Joslin, 288 A.D.2d 552, 552, 732 N.Y.S.2d 446 [3d Dept. 2001] ). Given that conclusion, and inasmuch as respondent's criminal conviction has been finalized by the imposition of, among other penalties, a term of incarceration, the matter is ripe for us to immediately determine whether censure, suspension or disbarment is warranted pursuant to Judiciary Law § 90(4)(g) (see Matter of Marinelli, 205 A.D.3d 1129, 1130–1131, 167 N.Y.S.3d 254 [3d Dept. 2022] ; Matter of Farrace, 173 A.D.3d 1422, 1422, 100 N.Y.S.3d 585 [3d Dept. 2019] ; compare Matter of Delany, 87 N.Y.2d 508, 512, 640 N.Y.S.2d 469, 663 N.E.2d 625 [1996] ).

In making our assessment of the appropriate sanction "to protect the public, maintain the honor and integrity of the profession, or deter others from committing similar misconduct" (Rules for Attorney Disciplinary Matters [ 22 NYCRR] § 1240.8 [b][2]), we observe at the outset that standard 5.11 of the American Bar Association's Standards for Imposing Lawyer Sanctions generally prescribes disbarment for "serious criminal conduct [which includes the] necessary element of ... misrepresentation [or] fraud" or "any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that serious adversely reflects on the lawyer's fitness to practice." Notwithstanding the facts adduced by respondent in mitigation, we are not persuaded that a departure from that ultimate sanction is warranted here. Moreover, respondent's conduct is further exacerbated by his long tenure as an attorney in California (see ABA Standards for Imposing Lawyer Sanctions standard 9.22[i]), the "dishonest or selfish motive" behind his actions (ABA Standards for Imposing Lawyer Sanctions standard 9.22[b]) and the fact that his criminal conduct encompassed multiple offenses over a course of several years (see ABA Standards for Imposing Lawyer Sanctions standard 9.22[c], [d], [k]; see also Matter of Uhl, 88 A.D.3d 1052, 1052–1053, 930 N.Y.S.2d 491 [3d Dept. 2011] ; Matter of Richichi, 52 A.D.3d 1109, 1109, 858 N.Y.S.2d 921 [3d Dept. 2008] ). We therefore grant AGC's motion and disbar respondent, effective immediately (see Matter of Cooper, 122 A.D.3d 1057, 1057, 995 N.Y.S.2d 842 [3d Dept. 2014] ; ...