New York Appellate Division Suspends Lawyer For Varsity Blues Conviction

The Respondent was a well-known attorney and a chairman of a large law firm. Unfortunately, he became involved with Rick Singer and paid Singer to enable his child to get preferential treatment on a college entrance examination. He was indicted, pleaded guilty and served one month in prison and did 250 hours of community service. The New York Appellate Division suspended him for two years. The lawyer obtained a terrific result from the Appellate Division. Disbarment was certainly a possibility. His decision to plead guilty and accept responsibility was undoubtedly helpful to his cause.

The explanation is as follows:

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 [*4]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 thinking . It was just abhorrent. I always thought I’d be the guy who would hang up on something like this . But when I was tested in this instance, I went for it.

* * *

“This was hubris. It was arrogant. It was about me, not about my child. That took a lot of self-realization. It was deep insecurity, I think. I frankly think a lot of people in my former profession have this notion of having to

prove yourself all the time. It overwhelmed me and it destroyed my life. I destroyed my life.”

The Referee noted that the record itself showed that respondent’s criminal actions were “out of character with his professional life and his desire to make amends.” Respondent presented his pre-sentencing memorandum with some 70 letters of support from, among others, family, friends, former colleagues and Greenwich policemen, all of which showed “the breadth and depth of Respondent’s extensive pro bono activities, his help to others in need, his millions of dollars in financial contributions and hours of personal service to Fordham Law School and Cornell University and his numerous acts of generosity and kindness throughout his career.” Respondent became well known in the legal community, writing articles and presenting at conferences; he was named “Dealmaker of the Year” by American Lawyer in 2018; and he became more involved with Fordham Law School, providing contributions and becoming a member of the Dean’s Advisory Planning Council, for which he was recognized in 2016 with a public service award.

At the hearing, the former Chairman of the law firm where he worked testified that, inter alia, he had worked with respondent for nearly 20 years and knew him quite well due to their management positions, and there was “universal respect and affection” for him. He explained that anybody who knows respondent saw his misconduct as “a real aberration, understood by everyone to be an act of zealousness and protectiveness for his daughter. But it doesn’t change anybody’s views who know him as to his reputation.” The founder of Publicolor testified to respondent’s extensive financial and hands on involvement with the organization assisting struggling schools and their students in poorer neighborhoods in New York City with advancing their education. This included serving as a Board member for 10 years (5 years as Chairman), until he was charged with the subject crime, painting with the kids, and being a mentor to many of the high school students. Even after he resigned from the Board, respondent continued to mentor students.

Recalling [*5]his one-month incarceration respondent testified that it was “deeply, humbling, extraordinarily eye-opening” “horrific on many levels” and it “changed my life forever. I don’t know for better or for worse, but it’s definitely changed the way I view life.” During his incarceration he conducted continuing education seminars for other inmates on their lives after prison and how to start and run a business and met with them individually to make sure they understood the materials. In prison respondent “was a kind, caring, and humble man deeply contrite about his actions and earnestly seeking forgiveness and redemption” who “never minimized his conduct or attempted to shift the blame to someone else” and “desire[d] to atone by helping others at Loretto [prison]”, with several inmates commenting that “his seminar transformed their own post-release plans.”

Prior to his misconduct most of his charitable work was “ironically enough” with education; however, following his experience in prison, respondent wanted to work with an organization that helps inmates and their families and so his community service work was with the Aleph Institute based in Los Angeles which provides “social and religious services focused around the needs of prisoners and their families.”

Since his immediate suspension and release from prison, respondent has been getting his “own house in order” and has been working on business issues related to companies regarding negotiations and investing or strategy around transactions.

In considering a proper sanction, the Referee noted that, as respondent admitted before the sentencing judge, “[t]his was not a victimless crime. The real victims are the kids and the parents who played by the rules in the college admissions process.”

The Referee also considered the importance of “[t]he attorney’s attitude toward the obligations and duties implicit in taking the oath of office” and “notice to the profession that certain conduct will not be tolerated” (Matter of Nearing, 16 AD2d 516, 518 [1st Dept 1962]). The Referee found respondent’s “deep and genuine” remorse “expressed over and again” —

“from his allocution at his sentencing in Federal court, his [EUO] before the Committee and the hearing, and from observing his forthright demeanor at the hearing, it is clear that Caplan has learned his lesson — painfully and traumatically. It is difficult, if not impossible, to imagine Caplan ever again deliberately crossing the line and acting criminally or unethically.”

However, the Referee suggested that the mitigation could not obscure the purpose of the proceedings, “the protection of the public” and imposing a sanction —

“Respondent was at the very top [of] the legal profession in June 2018 when he had his first conversation with Rick Singer. He was co-chair of one of the country’s leading law firms, he had a large and extremely remunerative law practice, he was highly respected by all. Despite all that, when faced with a clear ethical choice, he failed [*6]badly. He knew in that first conversation that Singer was proposing “cheating” the college admissions process. But rather than hanging up the phone, Caplan said yes, signing onto an illegal, criminal scheme that brought shame to himself and to his family.

“In making that choice, Caplan completely disregarded his professional and civic duties. Rather, he used his skills as a lawyer and the rewards of his successful law practice to circumvent the rules, not to honor them, to try to protect himself against the consequences of his clearly ethical and criminal conduct, rather than to choose to avoid any such behavior.

“In these circumstances, the balancing test this proceeding requires weighs against a shorter suspension, but not so heavily, given the weight and consequences of the lessons Caplan has learned, as to require disbarment. I recommend that Caplan be suspended for a period of two years, retroactive to the date of the Appellate Division suspension order of November 7, 2019.”

The AGC now moves for an order confirming the findings of fact, conclusions of law and recommendation of the Referee to impose a two-year suspension, nunc pro tunc to November 7, 2019 (date of his interim suspension) in this “serious crime” proceeding. Although he urged a one-year suspension before the Referee, respondent has submitted a separate Memorandum of Law in support of the Committee’s request for a two-year suspension and provides a detailed presentation of the evidence in mitigation and case precedent. In view of all of the foregoing, and that the purpose of this proceeding is to protect the public as opposed to punishment (Matter of Samuel, 103 AD3d 134, 137 [1st Dept 2013]), the Referee’s report including the sanction recommendation is confirmed.

Within weeks of his arrest, respondent pleaded guilty to conspiracy to commit mail fraud and honest services mail fraud (18 USC § 1349 [see 18 USC §§ 1341 and 1346]), a federal felony, for his participation in a scheme which involved two trips to California and extended for eight months until he was arrested. Almost immediately respondent accepted full responsibility for his criminal and unethical wrongdoing and expressed sincere remorse, not only in court and in public, but to essentially anyone he came into contact with. His honesty about his failings, his shame and the devastating consequences his criminal behavior has had on his personal and professional lives was palpable in his testimony before the sentencing judge, before the AGC (in his EUO) and before the Referee. Respondent’s years of mentoring people from all walks of life and participation in charitable and pro bono activities was not done for appearances but involved a substantial commitment of his time and effort, not just financial. Indeed, the numerous letters submitted on his behalf describe the positive impact respondent has had on people’s lives spanning decades, and not just with family and friends but with acquaintances and even strangers. [*7]Even the Committee acknowledges that his character evidence is “impressive” and that “there is little reason to believe that he will engage in similar criminal conduct.”

Nonetheless, it is clear that respondent’s focus at the time was not on the immorality and illegality of his actions but on not getting caught, and he continued with the scheme despite numerous opportunities to walk away. Although no case is directly on point, this Court has faced somewhat similar matters where attorneys have engaged in deceptive conduct and/or bribery resulting in discipline ranging from suspension to disbarment (Matter of Davis, 109 AD3d 154 [1st Dept 2013]; Matter of Bertel, 268 AD2d 112 [1st Dept 2000]; Matter of Holtz, 239 AD2d 24 [1st Dept 1998]; Matter of Stone, 230 AD2d 481 [1st Dept 1997]; Matter of Goldberg, 190 AD2d 269 [1st Dept 1993]; Matter of Lefkowitz, 105 AD2d 161 [1st Dept 1984]).

Additionally, in the 1990’s there were several misdemeanor commercial bribery/scheme to defraud cases involving attorneys who participated in the “ten percenter” bribery scheme in which they paid insurance adjusters to influence the handling of insurance claims, resulting in sanctions ranging from censure to disbarment (see e.g. Matter of Kreitzer, 281 AD2d 35 [1st Dept 2001], lv denied 97 NY2d 609 [2002]; Matter of Fields, 280 AD2d 104 [1st Dept 2001]; Matter of Rotter, 241 AD2d 81 [1st Dept 1998]; Matter of Ingber, 239 AD2d 58 [1st Dept 1998]).

A two-year suspension retroactive to his 2019 suspension properly balances respondent’s criminal conduct with the substantial evidence in mitigation, the protection of the public, maintaining the honor and integrity of the profession and as a deterrence to others from committing similar misconduct (22 NYCRR 1240.8 [b][2]).

Accordingly, we grant the AGC’s motion to confirm the Referee’s findings of fact, conclusions of law and recommendation, and respondent is suspended from the practice of law in the State of New York for a period of two years, nunc pro tunc to November 7, 2019, and until further order of the Court.

All concur.

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