Persky, Application of

• Decision Date: 24 March 1983
• Citation: 460 N.Y.S.2d 316,92 A.D.2d 372
• Parties: In the Matter of the Application of Robert S. PERSKY, for Reinstatement as an Attorney and Counselor-at-Law in the State of New York.
• Court: New York Supreme Court — Appellate Division

Page 316

460 N.Y.S.2d 316

92 A.D.2d 372

In the Matter of the Application of Robert S. PERSKY, for

Reinstatement as an Attorney and Counselor-at-Law

in the State of New York.

Supreme Court, Appellate Division,

First Department.

March 24, 1983.

William Jarblum, New York City, of counsel (Jarblum & Solomon, P.C., New York City), for respondent.

Alan S. Phillips, New York City, of counsel (Michael A. Gentile, New York City), for the Departmental Disciplinary Committee for the First Judicial Department.

Before MURPHY, P.J., and SULLIVAN, ROSS, CARRO and BLOOM, JJ.

PER CURIAM:

Respondent has moved for an order confirming the July 9, 1979 report of the Committee on Character and Fitness and reinstating him as an attorney.

Respondent was admitted to practice on January 20, 1953 in the First Department. He was suspended by this court for two years, effective December 15, 1975, because of his conviction of four counts of filing a false statement with the Securities and Exchange Commission.

This is his fourth application for reinstatement. He previously applied to this court on December 16, 1977, December 30, 1978, and January 18, 1982. All three applications were denied. Subsequent to the order of suspension and before respondent's first application for reinstatement his involvement in the reorganization of Newburger, Loeb & Co., an episode which antedated our order of suspension, came to light. As a result, when respondent first applied for reinstatement we referred the question of his conduct in that matter to the Committee on Grievances. After a hearing the Committee, taking into account that respondent had "in effect" been suspended for an additional year beyond his original two-year suspension, reprimanded him for his serious professional misconduct in that matter.

The Departmental Disciplinary Committee, which opposed respondent's application for reinstatement in 1982 on the ground that he had failed to carry his burden of establishing, by clear and convincing evidence, that he possessed the requisite character and fitness to practice law, does not oppose the present application. Nor does it believe that the matter should be referred to it for any further review. The Committee on Character and Fitness, charged with investigating respondent's background, and to which the matter was referred after his second application, was unable to find any circumstance that would reflect adversely on his application. Respondent notes that more than seven years have elapsed since the date he was ordered suspended for two years, and states that he has faithfully complied with the order of suspension. Thus, respondent has been suspended for a period over three times as long as the one imposed by this court in 1975. In our view, further denials of his application cannot be justified, absent a showing that he has not complied with our order or that he does not possess the requisite character to practice law.

Under the Rules and Procedures of the Committee on Grievances ( § 3.35[a] ), effective October 1, 1977, respondent was not entitled to appeal the reprimand for his conduct in the Newburger, Loeb matter, although he could have demanded that a disciplinary proceeding be instituted before the court. He accepted the reprimand. The Committee itself did not have any right of appeal from its Hearing Panel's decision, although it had the option, which it did not exercise, to reprimand respondent with referral to this court with a recommendation as to censure, suspension or disbarment (Rule 3.27(d)[3] ). Thus, insofar as the conduct involved in the Newburger, Loeb matter is concerned, respondent has been disciplined, and the matter is not subject to further review.

Moreover, the Hearing Panel of the Committee on Grievances, after 20 hours of testimony and additional deliberations, dismissed the one charge which respondent was permitted to contest, and found against him only on the charges it believed it was precluded from considering de novo because of collateral estoppel. Significantly, the Hearing Panel refused to sustain the charge that respondent had rendered an opinion that the transfer of Newburger, Loeb partnership assets without the consents of three partners was legal when, in fact, he knew such transfer to be illegal. The Hearing Panel found:

There is no doubt that [respondent] knowingly and intentionally participated in the transaction and, indeed played an active and central role in its consummation. Nevertheless, we do not believe that the [respondent] knew that the transfer was wrongful when he counseled its accomplishment and opined as to its legality. The question, as a matter of law, of the legality of the transfer absent the consents of Bleich and Donoghue, was not completely free from doubt. At least prior to the District Court opinion, arguments could be marshalled, although not ultimately persuasive for the position that the transfer was permissible without their consents.

In addition, representatives of 17 law firms were present at the closing and were informed that the Rosenman firm would not give the requisite opinion. Nonetheless, after being presented with [respondent's] opinion that the transfer was lawful, apparently no objection was made by any counsel in attendance and all parties agreed to the closing. In fact, the partner of Rosenman Colin who had indicated that his firm could not give such an opinion, did not state any objection or dissent when [respondent] offered his opinion, and his clients also participated in the closing.

Thus, at least on the ethical question, a significant portion of the negative language of the opinions of the District Court and the Circuit Court of Appeals insofar as it related to respondent is undercut by the Hearing Panel's finding.

The dissent alludes to respondent's failure to inform the court at the time he was suspended that he was a defendant in a civil action as a result of his involvement in Newburger, Loeb. But, as respondent notes, at the time he was only a litigant and the action had not been resolved against him. As for his failure to inform the court at the time of his first application that he had been held liable, the Committee on Character and Fitness has found that while respondent would have been wiser to include it, there was no intent to conceal since the matter had been reported on the front page of the New York Law Journal. In any event, the judgment in the action has apparently been fully satisfied.

We note that respondent has complied with all the orders of this court, and apparently any judgments against him have been satisfied. He has supplied several affidavits from distinguished members of the bar, all of whom, while noting his past transgressions, support his petition. The Character Committee itself noted:

We are also impressed with the many glowing, but factual, affidavits of members of the judiciary and of the general bar and others, who have known [respondent] for many years. Each of these affiants, with knowledge of [respondent's] convictions and of his involvement in the Newburger, Loeb matter, believes that [respondent] possesses the requisite character and fitness for membership at the bar.

Your committee recommends [respondent's] reinstatement.

Any suggestion that some sinister element of respondent's character has slipped through the cracks of the disciplinary apparatus ignores that both the Committee on Character and Fitness and the Departmental Disciplinary Committee, when given the opportunity to investigate, or to oppose either recommended reinstatement or did not oppose the petition. Indeed, the former Chief Counsel to the Departmental Disciplinary Committee, after having this entire matter remitted to him by this court on one of the earlier applications "for the purpose of reviewing, de novo, the entire record concerning [respondent] and drawing charges for further suspension or disbarment ...", submitted a detailed affidavit on May 20, 1980, in which he recited that he had reviewed the entire record, and could find "no basis for filing any additional charges against [respondent] beyond those which were the subject of the proceedings which resulted in his suspension by this Court on December 15, 1975, and which resulted in the Reprimand by the Hearing Panel of the Committee on Grievances on December 28, 1978."

In one form or another respondent's applications have been before this court at least four times. His transgressions are well-known to the Disciplinary and Character Committees, as well as to this court. He has supplied whatever additional information was requested of him, by the committees and by the court. He has paid all the penalties and undergone all the disciplines imposed on him. He has met his burden. He should now be reinstated.

Motion granted and respondent reinstated as an attorney and counselor-at-law in the State of New York.

All concur except MURPHY, P.J., and CARRO, J. who dissent in an Opinion by MURPHY, P.J.

MURPHY, Presiding Justice (dissenting):

Respondent Persky moves for an order confirming the report of the Committee on Character and Fitness and reinstating him to the Bar. He was suspended, as of December 15, 1975, for a two year period for knowingly filing a false 10-K statement with the Securities and Exchange Commission (SEC) on behalf of Microthermal Applications, Inc. (Matter of Persky, 49 A.D.2d 353, 374 N.Y.S.2d 665). The 10-K statement listed about $500,000 in certificates of deposit which did not exist. He was convicted of filing a false report and of conspiracy to defraud in the purchase and sale of securities. Both convictions were affirmed. (United States v. Zane, 495 F.2d 683 (2 Cir.1974), cert. den. 419 U.S. 895, 95 S.Ct. 174, 42 L.Ed.2d 139; mot. for new trial denied, 507 F.2d 346 (2 Cir.1974), cert. den. 421 U.S. 910, 95 S.Ct. 1563, 43 L.Ed.2d 775; United States v. Persky, 520 F.2d 283 (2 Cir.1975)). Respondent served four months in prison and was placed on...