In Re: Ivan S. Fisher

Filing

OPINION, affirming Order of Committee, per curiam (BDP, DC, RJL), FILED.[1276177] [13-1272]

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No. 13-1272-cv
Fisher v. Comm. on Grievances, S.D.N.Y.

In the

United States Court of Appeals
For the Second Circuit
August Term, 2013
No. 13-1272-cv
IVAN STEPHAN FISHER,
Appellant,
v.
COMMITTEE ON GRIEVANCES FOR THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK,
Appellee.

Appeal from the Committee on Grievances for the United States
District Court for the Southern District of New York.
No. 13-1272-cv ― P. Kevin Castel, Judge, Chairman.

ARGUED: JUNE 17, 2014
DECIDED: JULY 22, 2014

Before: PARKER, CHIN, and LOHIER, Circuit Judges.

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FISHER V. COMM. ON GRIEVANCES, S.D.N.Y.
Appeal from an order of the Committee on Grievances for the
United States District Court for the Southern District of New York,
entered March 14, 2013, directing that appellant's name be stricken
from the roll of attorneys admitted to practice in its court.
AFFIRMED.

DAVID L. LEWIS, Lewis & Fiore, New York, New
York, for Appellant, and Ivan Stephan Fisher, pro
se, Law Office of Ivan S. Fisher, New York, New
York, on the brief.
SHAWN PATRICK REGAN (Joseph J. Saltarelli,
Joshua S. Paster, on the brief), Hunton & Williams
LLP, New York, New York, for Appellee.

PER CURIAM:
Appellant Ivan Stephan Fisher is a criminal defense lawyer
who zealously represented clients for more than forty years.

In

2007, a client, Abrahim Raphael, entrusted Fisher with $250,000 to be
used to pay restitution to the victim of Raphael's crimes. Instead,
Fisher used $180,000 of the money for personal purposes.

The

Committee on Grievances for the United States District Court for the
Southern District of New York (the "Committee") found that this
conduct violated, inter alia, Disciplinary Rule of the New York
Lawyer's Code of Professional Responsibility ("DR") 1-102(A)(4),

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FISHER V. COMM. ON GRIEVANCES, S.D.N.Y.
which provides that a lawyer shall not engage in conduct involving
dishonesty, fraud, deceit, or misrepresentation.1 Consequently, the
Committee struck Fisher's name from the roll of attorneys admitted
to practice in its court.
Fisher appeals. He concedes that he acted unethically, but he
contends that the Committee abused its discretion by disbarring him
rather than imposing a lesser penalty. We affirm.
BACKGROUND
I.

Facts
In 2004, Raphael retained Fisher to represent him in a criminal

investigation of a scheme to embezzle funds from International
Gemological Institute, Inc. ("IGI"). In late 2005, Raphael entered into
a cooperation agreement with the Government and pleaded guilty
to one count of conspiracy to commit money laundering and one
count of conspiracy to commit wire fraud. Raphael's sentencing
before Judge Kimba M. Wood was adjourned so that Raphael could
assist the Government and help IGI recover the stolen funds.
In the summer of 2007, Raphael gave Fisher $250,000 for the
payment of restitution to IGI. Fisher placed the money in his
The conduct occurred prior to April 1, 2009, when the New York Rules of
Professional Conduct superseded the Code of Professional Responsibility. See
N.Y. Comp. Codes R. & Regs. tit. 22, § 1200.
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FISHER V. COMM. ON GRIEVANCES, S.D.N.Y.
general operating account and used some of it for personal
purposes, including medical expenses. At Fisher's request, Raphael
signed a letter in September 2007 stating that he loaned Fisher
money.
In January 2008, Fisher told Raphael that he had spent $50,000
of the restitution funds and asked Raphael to raise more money.
When Raphael borrowed and delivered another $50,000, Fisher paid
only $120,000 to IGI. From March 2008 through September 2009,
Fisher asked the district court to adjourn Raphael's sentencing
approximately fifteen times for various reasons, including that
Raphael was still procuring the money necessary for restitution.
In 2009, Raphael told attorney James O. Druker that he had
given Fisher $250,000 to pay to IGI, but that Fisher had spent some
of the money and had not fully paid the restitution. Druker was
substituted as counsel for Raphael and disclosed to the district court
what he had learned of Fisher's conduct.
Prior to his sentencing, Raphael borrowed an additional
$30,000 from his brother and assigned to IGI his claims against
Fisher and his right to $100,000 Druker had requested from the
Lawyers' Fund for Client Protection. IGI prepared to commence a
civil action against Fisher to enforce the rights assigned by Raphael.
In December 2011, Fisher executed an Affidavit of Confession of
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FISHER V. COMM. ON GRIEVANCES, S.D.N.Y.
Judgment in which he swore that Raphael "gave $250,000 to [him] to
hold in trust for the benefit of IGI for the express purpose of holding
the funds for the benefit of IGI and making the restitution payment
to IGI prior to sentencing." Hr'g Tr., Apr. 23, 2012, at 156. Fisher
spent some $180,000 of the total of $300,000 given to him by
Raphael.2 Fisher never repaid this money to Raphael.
II.

Proceedings Below
On January 29, 2010, Judge Wood referred Druker's complaint

that Fisher had misappropriated Raphael's funds to the Committee. 3
On December 20, 2011, Judge Wood referred a second complaint to
the Committee, from counsel for IGI, raising the same allegations.
The Committee appointed Sheldon Elsen as Investigating
Counsel for the matter. Elsen issued a statement of charges, alleging
Although there may have been some question as to the total amount of money
Raphael gave Fisher, the Committee ultimately adopted Magistrate Judge
Pitman's findings that Fisher initially received $250,000 from Raphael and later
borrowed an additional $50,000 from him.
3 As of January 23, 2012, the members of the Committee were District Judge Jed
S. Rakoff, Chair; Chief Judge Loretta A. Preska; District Judges Vincent L.
Briccetti, P. Kevin Castel, Paul G. Gardephe, John F. Keenan, Colleen McMahon,
Louis L. Stanton, and Richard J. Sullivan; and Magistrate Judge Frank Maas. By
December 10, 2012, the composition of the committee had changed to District
Judge P. Kevin Castel, Chair; Chief Judge Loretta A. Preska; District Judges
Vincent L. Briccetti, Katherine B. Forrest, Paul G. Gardephe, John F. Keenan,
Colleen McMahon, Louis L. Stanton, and Richard J. Sullivan; and Magistrate
Judge Frank Maas.
2

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FISHER V. COMM. ON GRIEVANCES, S.D.N.Y.
violations of DR 9-102(A), which prohibits a lawyer from
misappropriating client funds or commingling client funds with his
own property; DR 9-102(B), which provides that a lawyer must
maintain client funds in a bank account that meets certain
requirements; DR 9-102(C)(4), which instructs that a lawyer must
promptly deliver client funds to the client or a third party as
requested by the client; DR 1-102(A)(4), which provides that a
lawyer shall not engage in conduct involving dishonesty, fraud,
deceit, or misrepresentation; and DR 5-104(A), which prohibits a
lawyer from entering into a business transaction with a client unless
certain requirements are met.
On March 23, 2011, Fisher was ordered to show cause why he
should not be disciplined. Fisher denied that he had violated any of
the Disciplinary Rules. Specifically, he claimed that Raphael wanted
to put $250,000 in Fisher's bank account and Fisher explained to him
that he could only accept the funds if Raphael understood they were
a loan to Fisher. Fisher also explained that he had undergone seven
surgeries and was taking "extremely strong pain medicine with side
effects, the most significant of which related to [his] mental
functioning." Letter from Ivan S. Fisher to Judge Jed S. Rakoff,
Chair, Committee on Grievances (July 11, 2011), at 7.

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FISHER V. COMM. ON GRIEVANCES, S.D.N.Y.
On January 23, 2012, the Committee determined that Fisher
violated DR 5-104(A) by entering into a business transaction with his
client without taking steps to protect his client's interests, and DR
9-102(C)(4) by failing to pay or deliver Raphael's funds at Raphael's
request. The Committee suspended Fisher from practicing law
before the court, pending a determination as to discipline.
Fisher moved for reargument, seeking an evidentiary hearing
on the two charges the Committee found he had violated. The
Committee granted Fisher an evidentiary hearing on all the charges
and referred the matter to Magistrate Judge Henry Pitman.
During a four-day hearing, the Magistrate Judge heard
testimony from Fisher, Raphael, Druker, and others. Fisher testified
that he received the funds from Raphael as a loan. Raphael, in
contrast, testified that he did not intend to loan Fisher money
because he had no reason to do so and was having substantial
difficulty raising and borrowing the restitution funds. He explained
that he did not read the loan document he executed in September of
2007, but rather signed it because Fisher explained that it was
necessary to avoid tax problems.
Fisher described the effect that his surgeries and health had on
his practice of law during the time in question. Lawrence Gerzog, a
criminal defense attorney who had a close professional relationship
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with Fisher, testified that the pain medications, which included
OxyContin, affected Fisher's ability to engage in lucid conversation.
Druker also observed that when he spoke with Fisher during the
relevant time, he had the impression that Fisher was groggy from
medications.
In a Revised Report and Recommendation dated August 23,
2012, the Magistrate Judge determined that Fisher did not violate
DR 5-104(A), but did violate (1) DR 9-102(A),(B), and (C)(4), which
govern a lawyer's handling of a client's funds; (2) DR 1-102(A)(4),
which prohibits a lawyer from engaging in conduct involving
dishonesty, fraud, deceit, or misrepresentation; (3) DR 1-102(A)(5),
which prohibits a lawyer from engaging in conduct that is
prejudicial to the administration of justice; and (4) DR 1-102(A)(7),
which prohibits a lawyer from engaging in any other conduct that
adversely reflects on the lawyer's fitness to practice law. He
concluded that the "facts establish[ed], by clear and convincing
evidence[,] . . . that Fisher intentionally misappropriated his client's
funds, commingled his client's funds with his own personal
property, failed to deliver the funds . . . as requested by his client
and as ordered to do so by the Court, and converted those funds to
his own personal use." Revised Report and Recommendation, Aug.
23, 2012, at 22. Moreover, the Magistrate Judge determined that
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FISHER V. COMM. ON GRIEVANCES, S.D.N.Y.
Fisher "deceived his client by lying to him about the need for a loan
document and lied to his client about the status of the restitution
payment." Id. The Magistrate Judge explained that he failed to
credit Fisher's account that the funds from Raphael were a personal
loan, in part, because it was "internally inconsistent," and "ma[d]e[ ]
no sense" in the context of Raphael's pending criminal case. Id. at
19-20.
In an Opinion and Order dated December 10, 2012, the
Committee adopted Magistrate Judge Pitman's findings and
conclusions of law. The Committee agreed that "the purported
documentation of the transaction as a loan was a sham," and that
Fisher "stole his client's money and has never repaid it." Op. and
Order, Dec. 10, 2012, at 3-4.4
On December 21, 2012, Fisher moved for reconsideration.
Fisher argued, among other things, that the Committee "overlooked
the substantial evidence that for a substantial period of time,
including the summer of 2007, [he] was suffering from a series of
debilitating illnesses, undergoing major surgical procedures, and

Judge Stanton dissented, in part, on the ground that "the evidence of a venal
intent does not rise to the clear and convincing standard required to support a
finding of dishonesty, fraud, deceit or manipulation" required for a violation of
DR 1-102(A)(4). Op. and Order, Dec. 10, 2012 (Stanton, J., dissenting in part).
4

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taking serious prescribed pain medications . . . which clearly had an
impact on his thinking and judgment." Mem. in Supp. of Mot. for
Recons. or Reargument, Dec. 21, 2012, at 2. The Committee denied
the motion.
Several of Fisher's colleagues submitted letters on his behalf
attesting to his skills as an advocate, his dedication to his clients, and
his contributions to the legal profession. For example, one colleague
stated that he had "learned so much" from Fisher who was "the
premier criminal trial lawyer of his generation." App. at 186.
Another colleague wrote that Fisher's "achievements over the years
not only in so-called high profile cases but also in the more ordinary
cases that consume most of our time as criminal law practitioners,
bear testament to his creativity, judgment and persuasive abilities."
Id. at 188. Another lawyer noted that Fisher "always seems to be
asking, 'Isn't there something more that we can do on behalf of this
client?'" Id. at 193. Many lawyers described how Fisher had
provided them advice and mentorship. Indeed, one colleague
wrote, "[f]or as long as I have known Ivan Fisher I, along with many
of my peers, have looked up to him as an honorable and ethical
attorney whose ability shined above virtually all others." Id. at 200.
After considering Fisher's conduct, his career, and letters of
support on his behalf, the Committee issued an Opinion and Order
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FISHER V. COMM. ON GRIEVANCES, S.D.N.Y.
on Sanction on March 14, 2013, directing that, based on his
violations of the Disciplinary Rules, Fisher be stricken from the roll
of practicing attorneys of the court.5
This appeal followed.
DISCUSSION
I.

Applicable Law
We review a disciplinary order entered by a district court for

abuse of discretion. See In re Peters, 642 F.3d 381, 384 (2d Cir. 2011)
("Peters I") (per curiam). When, however, "the district court is
accuser, fact finder and sentencing judge all in one, . . . this Court's
review is more exacting than under the ordinary abuse-of-discretion
standard." Id. (internal quotation marks omitted). Specifically, we
"must be careful to ensure that any [decision to impose sanctions] is
made with restraint and discretion." Id. (internal quotation marks
omitted; alteration in original). 6

Judge Stanton dissented for the reasons set forth in his dissent of December 10,
2012.
6 The parties dispute whether, because the Committee appointed a private
practitioner to investigate Fisher's charges and Magistrate Judge Pitman made
findings of fact and conclusions of law that the Committee reviewed de novo, this
more exacting standard applies. We need not resolve the issue. Even under the
more exacting standard, we find that the Committee's decision to disbar Fisher
was "made with restraint and discretion." Peters I, 642 F.3d at 384.
5

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FISHER V. COMM. ON GRIEVANCES, S.D.N.Y.
Pursuant to Local Rule 1.5(b) of the United States District
Courts for the Southern and Eastern Districts of New York, the
Committee may impose discipline or other relief if, among other
things, a lawyer's conduct is found by clear and convincing evidence
to violate the New York State Rules of Professional Conduct. In
making its determination, the Committee gives "due regard to
decisions of the New York Court of Appeals and other New York
State courts." S.D.N.Y. & E.D.N.Y. Local Civ. R. 1.5(b)(5).
DR 1-102(A)(4) provides that a lawyer shall not "[e]ngage in
conduct involving dishonesty, fraud, deceit, or misrepresentation."
See N.Y. Comp. Codes R. & Regs. tit. 22, § 1200.3(A)(4). "Venal
intent" is an element of a violation of DR 1-102(A)(4). See Peters I,
642 F.3d at 394. It is defined as "scienter, deceit, intent to mislead, or
knowing failure to correct misrepresentations." Peters v. Comm. on
Grievances for U.S. Dist. Court for S. Dist. of N.Y., 748 F.3d 456, 461 (2d
Cir. 2014) ("Peters II") (per curiam) (internal quotation marks
omitted). "The 'venal intent' necessary to support intentional
conversion is established where . . . the evidence shows that the
attorney knowingly withdrew client funds without permission or
authority and used said funds for his own personal purposes."
Matter of Katz, 109 A.D.3d 143, 146 (1st Dep't 2013). "[A]bsent
exceptional mitigating circumstances[,] the intentional conversion of
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FISHER V. COMM. ON GRIEVANCES, S.D.N.Y.
escrow funds mandates disbarment." Id. (internal quotation marks
omitted).
II.

Application
On appeal, Fisher does not challenge the fact that he engaged

in misconduct. Instead, he claims that the evidence did not support
a finding that his "misconduct entailed the venality that is essential
to" a violation of DR 1-102(A)(4), and he argues that disbarment was
not warranted. Appellant's Br. at 2-3. We disagree in both respects.
The evidence here was sufficient to support a finding that
Fisher acted with venal intent. He received monies from his client
for the payment of restitution, placed the funds in a general
operating account, and then used some $180,000 of it for personal
purposes. Moreover, nothing in the record suggests that the
Magistrate Judge's findings that Fisher "deceived his client" and lied
to him are clearly erroneous. Revised Report and Recommendation,
Aug. 23, 2012, at 22. Rather, the record supports a determination
that Fisher "knowingly withdrew client funds without permission or
authority and used said funds for his own personal purposes," Katz,
109 A.D.3d at 146, and "inten[ded] to mislead" his client, Peters II,
748 F.3d at 461. Nothing more is required to establish venal intent.
See id. at 461-62.

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FISHER V. COMM. ON GRIEVANCES, S.D.N.Y.
Fisher claims that the Committee failed to weigh the
"aberrant" nature of his misconduct and the adverse state of his
health in assessing whether he had the requisite venal intent and
imposing punishment. The Magistrate Judge acknowledged,
however, that "Fisher had practiced law for more than forty years as
a well-known and well-respected criminal defense attorney," and
that he "was very ill at certain times during his representation of
Raphael." Revised Report and Recommendation, Aug. 23, 2012, at 5,
12 n.7. Likewise, in issuing its sanction, the Committee stated that it
had "considered [Fisher's] age, health, financial condition and his
long distinguished career as a criminal defense counsel and zealous
advocate for his clients." Op. and Order on Sanction, Mar. 14, 2013,
at 1. Moreover, the Committee considered Fisher's prior disciplinary
history, which "included one public censure twenty years ago
arising from his misdemeanor convictions for one count of willfully
failing to file an income tax return and two counts of failing to pay
income taxes." Id. at 2. Contrary to Fisher's suggestion, therefore,
the Committee did consider Fisher's misconduct in the context of his
career and health conditions.
Nonetheless, the Committee concluded that disbarment was
appropriate. The Committee emphasized the "serious aggravating
circumstances present" in Fisher's conduct. Id. Specifically, the
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FISHER V. COMM. ON GRIEVANCES, S.D.N.Y.
Committee explained that Fisher "did not deposit the funds in an
attorney trust account as he should have but, instead, tried to
recharacterize the payment as an unsecured loan by the client to
him." Id. Moreover, Fisher's "conduct resulted in a direct monetary
loss to his client, . . . . a financial benefit to himself[,] and was venal,"
as "[it] was a breach of [Fisher's] most fundamental professional
responsibilities to his client." Id.
In light of these circumstances and the record as a whole, we
find no abuse of discretion in the Committee's decision to strike
Fisher's name from the roll of attorneys admitted to practice in its
court. Even accounting for his long and notable career, during
which Fisher's contributions to his clients and the legal profession
were many, we conclude that disbarment was within the range of
appropriate punishments. See Katz, 109 A.D.3d at 146.
CONCLUSION
The order of the Committee is AFFIRMED.

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