In re Schulman
Alan W. Friedberg, Chief Counsel, Departmental Disciplinary Committee, New York City (Raymond Vallejo of counsel), for petitioner.
OPINION OF THE COURT
Per Curiam.
Respondent Steven G. Schulman was admitted to the practice of law in the State of New York on February 17, 1981, by the Third Department, under the name Steven Gary Schulman. At all relevant times, respondent was a named partner with the law firm formerly known as Milberg Weiss Bershad & Schulman LLP (Milberg Weiss), located within the First Judicial Department.
The Disciplinary Committee seeks an order striking respondent‘s name from the roll of attorneys pursuant to
On October 9, 2007, respondent was convicted, upon his guilty plea, in the United States District Court for the Central District of California of racketeering conspiracy in violation of
According to the second superceding information, Milberg Weiss constituted an enterprise specializing in representing plaintiffs in class actions and shareholder derivative actions. Respondent admitted in his plea allocution and plea agreement, read in conjunction with the information, that from approximately 2003 through at least 2005, while respondent was a partner at Milberg Weiss, there was an agreement among two or more other Milberg Weiss attorneys to conduct Milberg Weiss‘s affairs through a “pattern of racketeering activity.” This involved giving secret, illegal kickbacks to individual class action plaintiffs who were essentially on call to act as lead plaintiffs. This arrangement allowed Milberg Weiss to file lawsuits faster and to gain the position as lead counsel to receive higher fees.
Specifically, respondent admitted that he participated in negotiating with Howard J. Vogel the amounts Milberg Weiss
Additionally, respondent and others knew they had to conceal their payment arrangement with Vogel from the federal and state courts presiding over the class actions. Otherwise, they risked disqualification because of the apparent conflict of interest between Vogel and the absent class members Vogel purported to represent. Respondent admitted that he knew the secret arrangement was improper.
In order to conceal this illegal arrangement further, respondent knowingly caused to be submitted to the court certifications Vogel signed under penalty of perjury in which Vogel certified that he would “not accept any payment for serving as a representative party beyond my pro rata share of any recovery.” These certifications were false because they misrepresented the true nature of Milberg Weiss‘s payment arrangement to Vogel.
A conviction of a federal felony does not trigger automatic disbarment unless the offense would also constitute a felony under the New York Penal Law (Matter of Sorin, 47 AD3d 1 [2007]). The federal felony need not be a “mirror image” of the New York felony but it must be essentially similar (Matter of Margiotta, 60 NY2d 147, 150 [1983]). Evidentiary materials such as admissions under oath in the respondent‘s plea allocution or other testimony may demonstrate essential similarity (Matter of Mercado, 1 AD3d 54, 55 [2003]), that the court may read in conjunction with the indictment or information (Matter of Amsterdam, 26 AD3d 94, 96 [2005]).
A person is guilty of enterprise corruption in violation of
This Court has previously found essential similarity between the New York State felony of enterprise corruption in violation of
Respondent contends in his opposition papers that there is no essential similarity between
Respondent also claims that his actions are not essentially similar because
Respondent‘s argument places form over substance. Respondent has admitted not only that he engaged in a “pattern of racketeering activity” but has admitted that on at least three separate occasions he knowingly participated in the filing of falsified documents to the courts. Thus, the activities to which respondent admitted are essentially similar to the New York felony of enterprise corruption under
In addition, respondent‘s admissions that he knowingly participated in the filing of false documents (certifications) with federal courts in class actions in order to conceal the secret payment arrangement with Vogel satisfy the elements of the New York felony of offering a false instrument for filing in the first degree. This New York felony occurs when:
“[a] person . . . knowing that a written instrument contains a false statement or false information, and
with intent to defraud the state or any political subdivision . . . he offers or presents it to a public office . . . with the knowledge or belief that it will be filed with, registered or recorded in or otherwise become a part of the records of such public office” ( Penal Law § 175.35 ; see Matter of Amsterdam, supra [attorney‘s conviction of conspiracy to defraud the United States was essentially similar to offering a false instrument for filing in the first degree]; Matter of Fier, 276 AD2d 17 [2000] [attorney‘s conviction of making false statements essentially similar to offering a false instrument for filing in the first degree]).
Thus, respondent‘s admissions of criminal conduct also satisfy the elements of offering a false instrument for filing in the first degree. That respondent filed the false document with a court, rather than with the category of agencies or offices the statute refers to is inconsequential (see Matter of Amsterdam, 26 AD3d 94 [2005] [false applications for appointment as assigned counsel filed in federal court sufficient to satisfy
Finally, that respondent has not yet been sentenced does not bar petitioner‘s relief because it is well settled that it is the plea or verdict that triggers disbarment (see Matter of Lee, supra; Matter of Ferrandino, 18 AD3d 116, 117 [2005]).
Accordingly, the Disciplinary Committee‘s petition should be granted and respondent‘s name stricken from the roll of attorneys pursuant to
Lippman, P.J., Tom, Nardelli, Catterson and Moskowitz, JJ., concur.
Respondent‘s name stricken from the roll of attorneys and counselors-at-law in the State of New York, nunc pro tunc to October 9, 2007.