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

• Decision Date: 07 December 2020
• Docket Number: Motion No. 2020-03510,Case No. 2019-00252
• Citation: 141 N.Y.S.3d 444,193 A.D.3d 86
• Parties: In the MATTER OF Gordon R. CAPLAN (Admitted as Gordon Rubin Caplan), a suspended attorney: Attorney Grievance Committee for the First Judicial Department, Petitioner, v. Gordon R. Caplan, (OCA Atty. Reg. No. 2467462), Respondent.
• Court: New York Supreme Court — Appellate Division

193 A.D.3d 86

141 N.Y.S.3d 444

In the MATTER OF Gordon R. CAPLAN (Admitted as Gordon Rubin Caplan), a suspended attorney:Attorney Grievance Committee for the First Judicial Department, Petitioner,

v.Gordon R. Caplan, (OCA Atty. Reg. No. 2467462), Respondent.

Motion No. 2020-03510

Case No. 2019-00252

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

December 7, 2020

Entered February 18, 2021

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

Michael S. Ross, Esq., for respondent.

Barbara R. Kapnick, J.P., Troy K. Webber, Cynthia S. Kern, Angela M. Mazzarelli, Saliann Scarpulla, JJ.

Per Curiam

Respondent Gordon R. Caplan was admitted to the practice of law in the State of New York by the First Judicial Department on February 3, 1992, under the name Gordon Rubin Caplan. At all times relevant to this proceeding, respondent maintained an office for the practice of law within the First Department.

On May 21, 2019, respondent was convicted, upon his plea of guilty, in the United States District Court for the District of Massachusetts, of conspiracy to commit mail fraud and honest services mail fraud in violation of 18 USC § 1349 (see 18 USC §§ 1341 and 1346 ), a felony. On October 3, 2019, respondent was sentenced to one month in prison, one year of supervised release, 250 hours of community service and ordered to pay a fine of $50,000. Respondent's conviction stemmed from his involvement in the widely publicized college admissions bribery and cheating scandal centered on college admissions consultant William ‘Rick’ Singer who helped parents bribe test administrators and/or coaches so their children had a better chance of getting into prominent schools.

By order entered November 7, 2019, this Court granted the Attorney Grievance Committee's (AGC) motion and determined that respondent's conviction was a "serious crime," immediately suspended him from the practice of law and directed him to show cause before a referee appointed by this Court within 90 days of his release from prison, why a final order of censure, suspension or disbarment should not be made; respondent joined in the motion ( Judiciary Law § 90[4] and Rules for Attorney Disciplinary Matters [ 22 NYCRR] § 1240.12 [c][2]).

On July 31, 2020, a Referee conducted a virtual hearing at which respondent testified on his own behalf and presented evidence of good character. In post-hearing submissions the AGC urged a two-year suspension and respondent advocated for a one-year suspension, with both parties suggesting the suspension be made effective retroactive to the date of this Court's interim suspension. In a corrected report dated October 15, 2020, the Referee recommended adopting the AGC's recommendation, namely, a two-year suspension nunc pro tunc to November 7, 2019. The AGC moves to confirm that recommendation and respondent now supports that request.

In 2015, respondent, who is currently 54 years-old, became co-chair of a major law firm until his arrest in March 2019 for his involvement in the college admissions bribery scandal. Respondent's daughter is a nationally ranked junior tennis player who regularly attended a Florida tennis academy. In June 2018, she was a junior in high school and had not yet applied to colleges. A college counselor at the tennis academy introduced respondent to another college counselor, Rick Singer, saying he was very successful in assisting potential college athletes navigate the college admissions process. Singer and respondent subsequently engaged in approximately 30 telephone conversations which, unbeknownst to respondent, were tape recorded by the FBI, numerous texts and emails, and one meeting.

During their first phone conversation in June 2018, Singer described what he called his "side door" or quid pro quo scheme that he had successfully engaged in with nearly 800 other families. The specific plan he proposed included having Singer's "tutors" take online courses for respondent's daughter to increase her grades as well as manipulate the standardized college admissions testing process; respondent chose only the latter, which had a price tag of $75,000. Singer explained the first step was to get respondent's daughter tested for a learning difference to get more time to take the standardized test, that way she could take the test at a school that Singer "own[ed]" and he could "guarantee her a score" because his "proctor would then answer her questions, and by the end of the day, she would leave, and [the] proctor would make sure she would get[ ] a score that would be the equivalent to the number that we need to get," "[s]he won't even know that it happened".

In July 2018, respondent and his daughter flew to Los Angeles to meet with a psychologist recommended by Singer to obtain the medical documentation required to take the ACT exam untimed. Once it was approved, in December 2018, respondent and his daughter travelled again to California to the changed testing location so that Singer's associates could proctor her exam, correct her answers to obtain the desired score, and mail the corrected exam to the ACT grading center in Iowa. This resulted in his daughter receiving a score of 32 out of a possible 36 on her corrected exam; a score respondent thought would likely be sufficient for her to get into his alma mater, Cornell University.

Subsequently, when ACT declined to score the test on the ground that permission for untimed testing had been improperly granted, respondent went into "panic mode," personally calling ACT before retaining counsel to pressure the release of the fraudulently obtained score. Respondent acknowledged that this was "yet another opportunity for [him] to withdraw from the scheme instead of pursuing it."

As part of this proceeding, on December 19, 2019, the AGC took respondent's examination under oath (EUO) during which respondent admitted that from the first phone conversation he understood the implications of Singer's proposal – "[a]t that point I knew what he was talking about was cheating.... [h]e was proposing cheating on the test." In subsequent phone calls respondent told Singer "It's just, to be honest, I'm not worried about the moral issue here. I'm worried about the, if she's caught doing that, you know, she's finished" and "keep in mind I am a lawyer. So I'm sort of rules oriented." When asked if he realized at the time that he was committing a crime, respondent testified –

"No. To be honest, it never even occurred to me. It should have. I'd like to think I was a good lawyer. I wasn't this kind of lawyer, but I was a good lawyer. It should have occurred to me. I knew what I was doing was unethical, I knew what I was doing was immoral, I knew what I was doing was wrong ...

"So I wasn't trying to excuse it as not a crime because the threshold was really immoral and unethical; that should have been good enough. And it wasn't."

Respondent acknowledged that he had thought about what the "ramifications and consequences would be" if he were "caught" and even researched them. Respondent concluded that the "worst-case scenario was that [his daughter] would be accused of cheating and would not be able to take the ACT again, so she'd have to take the SAT or apply to a school that didn't require standardized testing." He also extensively researched among others, Singer, his colleagues, and Singer's Key Worldwide Foundation, and although various schools had been investigating Singer for years they never reported it.

Respondent was arrested on March 12, 2019, entered into a plea agreement on April 4 (the first U.S. parent to do so) and the next day issued a televised public apology expressing his shame and taking sole responsibility for his conduct, thinking "that [it] was important [ ] for showing my kids".

The sentencing judge described the two different schemes that Singer had employed:

"[t]he test taking scheme sought to change an aspect of a student's application to make the package more competitive. The recruitment scheme was directed at gaining a specific spot. And I note here that Mr. Caplan has engaged in the one scheme, the test taking scheme, and explicitly rejected the second scheme, the recruitment scheme."

The judge also considered several factors including that respondent was not a repeat player in that he engaged in the scheme on only one occasion, he was an active participant in that he brought his daughter to the test taking facility but did not involve her directly in the conduct, and there were no fraudulent applications submitted to any school. Although she found respondent "among the least culpable of the defendants," the judge did find—

"one factor that does suggest that there is something slightly more that happened in the course of the conduct here, and that was Mr. Caplan pressuring ACT to release the fraudulently obtained scores. It was a moment where he could have backed out of it and chose instead to push ahead, so ... — that distinction is something I do note."

The sentencing judge rejected the prosecutor's argument that respondent, as a lawyer and the head of a law firm, was a driving factor and that he traded on his position.

Respondent has served his one-month sentence, paid the fines, and completed the 250 hours of community service; his one-year supervised release ended November 22, 2020.

Respondent cooperated with the AGC and has no disciplinary history. He testified how he disgraced his family and his firm, how he betrayed his former partners, colleagues and his profession, and he acknowledged that he had several chances to reconsider the wrongness of what he was doing. When asked how he reconciled his statement to Singer that he was not concerned about the moral issue of what he was doing with the person who he thought he was, respondent stated –

"it's an anathema to me.... It's an enormous disappointment to me that that's where my head was at.... It doesn't matter how I got there. It doesn't matter what I was

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