IN RE: Harvey D. MYERSON (admitted as Harvey Daniel Myerson)

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

IN RE: Harvey D. MYERSON (admitted as Harvey Daniel Myerson), a suspended attorney. Departmental Disciplinary Committee for the First Judicial Department, Petitioner, Harvey D. Myerson, Respondent.

Decided: October 27, 1998

ROSENBERGER, J.P., ELLERIN, NARDELLI, WALLACH and RUBIN JJ. Richard M. Maltz, of counsel (Thomas J. Cahill, Chief Counsel) for petitioner No appearance for respondent.

Respondent Harvey D. Myerson was admitted to the practice of law in the State of New York by the First Judicial Department as Harvey Daniel Myerson on December 22, 1964.   On September 22, 1992, this Court suspended respondent from the practice of law based on his conviction, on April 29, 1992, in the United States District Court for the Eastern District of New York, of three counts of mail fraud, in violation of 18 U.S.C. § 1341 and two counts of travel fraud, in violation of 18 U.S.C. § 2314 1 , both of which are felonies under the United States Code, and referred the matter to petitioner Departmental Disciplinary Committee for a hearing as to the appropriate sanction (182 A.D.2d 242, 588 N.Y.S.2d 142).

That hearing having been held, petitioner now seeks an order confirming its Panel's findings of fact and conclusions of law and imposing the recommended penalty of disbarment.

In support, petitioner has demonstrated that, as to the crimes for which respondent was suspended, respondent was convicted of defrauding three clients, the largest being Shearson Lehman Hutton, Inc., out of millions of dollars by inflating attorney hours and billing the cost of personal expenses.

Petitioner has also demonstrated that, subsequent to his conviction for the above-described offenses, respondent was convicted, after a second trial, of three counts of conspiracy to defraud the United States, in violation of 18 U.S.C. § 371, making a false statement on a tax return, in violation of 26 U.S.C. § 7206(1), and assisting in filing a false tax return, in violation of 26 U.S.C. § 7206(2).   As to these convictions, petitioner has demonstrated that respondent was engaged in a scheme that involved his participation in the filing of false tax returns and his failure to report substantial income on his own tax returns.

Both of respondent's convictions were upheld on appeal in an opinion detailing the precise nature of respondent's crimes (United States v. Myerson, 2d Cir., 18 F.3d 153).

 We find that the Hearing Panel's findings of fact and conclusions of law should be confirmed.   As to the appropriate sanction, it is clear that the deliberate and false billing of personal expenses to clients is, in and of itself, egregious conduct warranting severe penalty (Matter of Kroll, 212 A.D.2d 220, 630 N.Y.S.2d 512;  Matter of Gieger, 170 A.D.2d 134, 572 N.Y.S.2d 11).   Moreover, in this matter, respondent's outrageous overbilling and fraudulent expense practices were compounded by a tax conviction involving a very substantial amount of money over an extended period of time (see, Matter of Chervin, 181 A.D.2d 111, 586 N.Y.S.2d 946).   Furthermore, with respect to the overbilling, respondent was guilty of particularly reprehensible conduct in that he solicited the help and involvement of four junior partners.   His argument that his penalty should be mitigated because of the lesser penalties received by these four is particularly distasteful, in light of the fact that respondent used his position of authority to involve them in schemes that were clearly authored by him and of the additional fact that they displayed both remorse and a willingness to cooperate that has been sadly lacking on respondent's part.2  Indeed, respondent, who had displayed at least one episode of very selective remorse for his behavior during the prior proceedings, displayed none at all at the instant hearing.

Under these circumstances, we find that the appropriate sanction is disbarment.

Accordingly, the motion should be granted, the findings of fact and conclusions of law confirmed and respondent should be disbarred as of September 22, 1992.

FOOTNOTES

1.   The travel fraud counts were subsequently dismissed.

2.   We note, however, that there is no proof that respondent actually stole from his cohorts, as was previously reported (see, Matter of Segall, 218 A.D.2d 331, 638 N.Y.S.2d 444)

PER CURIAM.

All concur.