In re Roisman

89 A.D.3d 164, 931 N.Y.2d 571
CourtAppellate Division of the Supreme Court of the State of New York
DecidedOctober 18, 2011
StatusPublished
Cited by7 cases

This text of 89 A.D.3d 164 (In re Roisman) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Roisman, 89 A.D.3d 164, 931 N.Y.2d 571 (N.Y. Ct. App. 2011).

Opinion

OPINION OF THE COURT

Per Curiam.

Respondent Roger M. Roisman was admitted to the practice of law in the State of New York by the Second Judicial Department on June 24, 1981. At all times relevant to the misconduct which underlies this proceeding, he maintained an office for the practice of law within the First Judicial Department.

In 1987, respondent, an experienced tax lawyer with an LLM in tax law who, since graduating law school in 1975, practiced law at several law firms and was also employed in the tax department of an accounting firm, became an equity partner at the law firm of Stroock & Stroock & Lavan LLP (Stroock) where he remained until 1999. Thereafter, respondent, who in 1998 earned $653,539, started a company called Retail Development Partners (RDP). In 2001, however, approximately after 21k years with RDP, during which time respondent’s yearly income precipitously dropped, never exceeding $122,682, respondent deemed RDP a failure and returned to law firm practice, working at several law firms and ultimately joining the firm of Tannenbaum Helpern Syracuse & Hirschtritt LLP (Tannenbaum Helpern). Respondent joined Tannenbaum Helpern as a partner in 2004 and is currently so employed. Since 2001, after respondent wound down RDP and resumed private law practice, respondent’s income has steadily increased, generally exceeding $200,000 per year. In 2007, respondent earned $497,667.

In 1998, respondent was diagnosed with an atrial septal defect, a congenital heart defect, which required respondent to undergo surgery. Complications from the surgery, however, left respondent with an atrial flutter, atrial fibrillation, and two heart arrhythmias, requiring further surgery in 1999. Respondent’s surgery in 1999 successfully repaired his atrial flutter, however, his arrhythmias were irreparable and they continue to plague him. Besides the foregoing, in 1999, respondent was diagnosed with Type 2 Diabetes, a cancerous thyroid requiring surgery, and hepatitis C. In 2001, as a result of RDP’s failure and his multitude of health issues, respondent became “quite upset” and depressed and therefore began and continues treatment with a psychiatrist.

In 2008, respondent was contacted by the New York State Department of Taxation and Finance concerning his failure to file tax returns for years 2001-2007 and his failure to pay New [166]*166York State taxes for those same years. Conceding that he knowingly failed to file tax returns and pay state and federal taxes for seven years, respondent retained counsel, hired an accountant, filed the outstanding tax returns, and in 2008, paid $732,930 in state and federal taxes. While respondent attributed depression, embarrassment and avoidance to his failure to file tax returns and pay taxes, he admitted that the failure to pay was neither due to the size of his tax liability nor to the financial inability to pay. Instead, respondent, who was gainfully and successfully employed between 2001 and 2007, and who managed to keep all his other personal and financial affairs in order during that time period stated that he had “no excuse[s],” and that he “should have filed the returns and paid the tax[es].” Between 2001 and 2007, when respondent’s wife would inquire about whether he had filed tax returns and paid their taxes, respondent would assure her that he had.

On November 19, 2008, respondent entered into a plea agreement whereby he would plead guilty to one count of violating New York Tax Law § 1801 (a) insofar as he failed to file a New York State tax return for the year 2006. It was understood that the plea was in satisfaction of respondent’s failure to file tax returns for the years 2001-2007. On November 25, 2008 respondent pleaded as agreed and was convicted of a class A misdemeanor. He was sentenced to a conditional discharge and fined $10,000.

On February 18, 2010, the Departmental Disciplinary Committee (Committee) filed a petition seeking an order declaring that the crime of which respondent was convicted, the intentional failure to file a tax return, constituted a “serious crime” pursuant to Judiciary Law § 90 (4) (d) and 22 NYCRR 603.12 (b). By unpublished order dated April 12, 2010, we granted the Committee’s petition and pursuant to 22 NYCRR 603.4 (d), referred this matter to a Hearing Panel (Panel) to conduct a hearing on sanctions. The Panel conducted a hearing, respondent was present, represented by counsel, and was afforded an opportunity to be heard. The Panel also heard from several witnesses who testified about respondent’s good character. Thereafter, the Panel issued its report. Finding only one aggravating factor, namely respondent’s failure to voluntarily discontinue and self-report his illegal behavior, and finding several mitigating factors, namely that respondent acknowledged his guilt, cooperated with the authorities, made restitution, has good moral character, and engages in community service and pro [167]*167bono work, the Panel recommended suspension from the practice of law for one year.

The Committee now petitions this Court for an order pursuant to 22 NYCRR 603.4 (d) and 605.15 (e) (2), and Judiciary Law § 90 (2), confirming the determination of the Panel and suspending respondent from the practice of law for one year. Respondent cross-moves for an order disaffirming the Panel’s determination, averring that the Panel erred in failing to recognize certain mitigating factors and further erred in concluding that suspension, rather than public censure, was the appropriate sanction.

“As in all ‘serious crime’ cases, the only issue for the Court to decide is the appropriate sanction to impose upon the respondent based upon the offense committed and any mitigating or aggravating circumstances” (Matter of Novak, 200 AD2d 66, 68 [1994]). Here, notwithstanding the existence of mitigating factors, we agree with the Panel’s recommended sanction of one year’s suspension from the practice of law, since it is in accord with this Department’s recent precedent for substantially analogous conduct (see Matter of Rosenberg, 82 AD3d 85 [2011]; Matter of Goldman, 71 AD3d 9 [2009]; Matter of Howley, 70 AD3d 218 [2009]). Accordingly, we hereby grant the Committee’s petition in its entirety.

An attorney’s failure to comply with the law’s basic obligation to file tax returns is a serious offense warranting public discipline (Matter of Partland, 257 AD2d 209, 211 [1999]). This is because “[o]ne of the basic obligations of a citizen in a free society is to declare and pay taxes [and a] lawyer — least of all, a benefactor and role model for the community — cannot purposely avoid that civic responsibility without appropriate sanction” (Matter of Barnes, 241 AD2d 13, 15 [1998]). The sanctions for an attorney’s failure to pay taxes vary, from private reprimand to suspension (Matter of Eppner, 62 AD3d 151, 155 [2009]). While public censure is warranted when the failure to pay taxes is aberrational (Matter of Burns, 242 AD2d 49, 50 [1998]), suspension may be warranted when the failure to pay taxes is protracted, spanning several years (id. at 51), in the absence of substantial mitigating factors or when there exist substantial aggravating factors (Eppner at 155).

Here, contrary to respondent’s contention, the Panel properly recommended suspension, since while the evidence at the hearing established the existence of several mitigating factors, the same evidence also established the existence of several aggravat[168]*168ing factors, some which the Panel failed to note.

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Bluebook (online)
89 A.D.3d 164, 931 N.Y.2d 571, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-roisman-nyappdiv-2011.