108 A.D.3d 129
N.Y. App. Div.2013Background
- Respondent Jed M. D. Philwin was admitted to the New York bar in 1993 and maintained an office in the First Judicial Department.
- He was charged in SDNY by superseding information with one count of conspiracy to commit immigration fraud (18 USC §§ 371, 1001, 1546(a)).
- The alleged scheme (2003–2008) involved filing thousands of fraudulent DOL and CIS petitions to fraudulently obtain status adjustments for aliens.
- Respondent pleaded guilty on January 3, 2013, admitting submission of well over a hundred such false immigration applications.
- The Committee sought automatic disbarment under Judiciary Law § 90(4)(a) and (e) based on the federal felony conviction; respondent did not oppose and sought a brief stay.
- The court held that the federal felony is essentially similar to a New York felony (offering a false instrument for filing), rendering automatic disbarment appropriate nunc pro tunc to January 3, 2013.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether federal conspiracy to commit immigration fraud triggers automatic disbarment. | Committee argues automatic disbarment under §90(4)(a)/(e). | Philwin concedes but seeks a stay; relies on similarity between statutes. | Yes; automatic disbarment applies. |
Key Cases Cited
- Matter of Rosenthal, 64 AD3d 16 (1st Dept 2009) (disbarment when out-of-state felony mirrors NY felony)
- Matter of Christo, 69 AD3d 157 (1st Dept 2009) (automatic disbarment when comparable NY offense exists)
- Matter of Weiss, 58 AD3d 203 (1st Dept 2008) (essential similarity analysis for out-of-jurisdiction felonies)
- Matter of Sorin, 47 AD3d 1 (1st Dept 2007) (essential similarity may arise from conduct underlying the out-of-jurisdiction felony)
- Matter of Harnisch, 7 AD3d 58 (1st Dept 2004) (essential similarity analysis; conduct-focused approach)