Matter of Smerling

Matter of Smerling 2026 NY Slip Op 05601 October 1, 2026 Appellate Division, First Department Per Curiam Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This decision is uncorrected and subject to revision before publication in the Official Reports. In the Matter of David Smerling, an attorney and counselor-at-law: Attorney Grievance Committee for the First Judicial Department, Petitioner, David Smerling (OCA Atty. Reg. No. 1450840), Respondent. Supreme Court, Appellate Division, First Judicial Department Decided and Entered: October 01, 2026 Motion No. 2026-02886|Case No. 2026-02388| Present — Hon. Lizbeth González, Justice Presiding, Bahaati E. Pitt-Burke John R. Higgitt Llinét M. Rosado Kelly O''Neill Levy Jorge Dopico, Chief Attorney, Attorney Grievance Committee, New York (Gina M. Patterson, of counsel), for petitioner. Respondent pro se Disciplinary proceedings instituted by the Attorney Grievance Committee for the First Judicial Department. Respondent, David Smerling, was admitted to the Bar of the State of New York at a Term of the Appellate Division of the Supreme Court for the First Judicial Department on March 29, 1976. Per Curiam [*1] Respondent David Smerling was admitted to the practice of law in the State of New York by the First Judicial Department on March 29, 1976. The First Judicial Department retains jurisdiction over respondent as the admitting Department (Rules for Atty Disciplinary Matters [22 NYCRR] § 1240.7[a][2]). From 2016 to 2020, respondent embezzled nearly $3 million from three companies for which he oversaw the bookkeeping and financial management. Respondent accomplished this by initiating unauthorized electronic transfers from various of their accounts under his control and depositing the stolen funds into an account whose statements he had diverted to his residence to conceal the theft. Respondent also violated his fiduciary duties as the trustee of a special needs trust established for one of his relatives by diverting nearly half a million dollars of trust funds for his own use and manipulating the trust account to conceal the theft. In addition, respondent violated his fiduciary duties as the holder of a financial power of attorney for a relative diagnosed with dementia by diverting nearly $200,000 from the relative's accounts to his own, and misrepresenting the purpose of the withdrawals to the financial institution to conceal the theft; by using the relative's credit card for his own purchases; and by diverting for his own use loan proceeds from an unauthorized $15,000 loan obtained in the relative's name. Further, following respondent's January 2025 arrest, his conditional release was revoked for having failed to transfer management of the relative's finances and having transferred to himself an additional $29,000 of the relative's funds. On May 16, 2025, respondent signed an acknowledgement of plea agreement, in which he agreed to plead guilty to the federal felonies of wire fraud (18 USC § 1343 - four counts), money laundering (18 USC § 1956[a][1][B][i] - two counts), and aggravated identity theft (18 USC § 1028A[a][1] - one count). On June 10, 2025, after admitting to the conduct described above, respondent pleaded guilty in the United States District Court for the District of Massachusetts to the counts listed in the plea agreement. On October 8, 2025, respondent was sentenced to a nine-year term of imprisonment and ordered to make restitution in the amount of $3,534,316. Respondent did not report the conviction to the Attorney Grievance Committee (AGC) as required by Judiciary Law § 90(4)(c) and 22 NYCRR 1240.12(a). [*2] In response to the ensuing motion of the Massachusetts Office of Bar Counsel seeking, among other things, respondent's immediate suspension, respondent signed an affidavit of resignation pursuant to Massachusetts S.J.C. Rule 4:01, § 15, in which he waived an evidentiary hearing, detailed the facts underlying his convictions, and agreed not to contest either the fact of his convictions or Bar Counsel's allegations that he violated Mass. R. Prof. C. 8.4(b) and (h). Respondent acknowledged that his agreement not to contest the facts and violations extended to disciplinary proceedings in any other jurisdiction. The AGC now seeks an order, pursuant to Judiciary Law § 90(2), 22 NYCRR 1240.13, and the doctrine of reciprocal discipline, finding that respondent has been disciplined by a foreign jurisdiction, directing him to demonstrate why discipline should not be imposed in New York for the misconduct underlying his discipline by the State of Massachusetts, and disbarring respondent, or, in the alternative, sanctioning respondent as the Court deems appropriate. Respondent does not substantively oppose the motion, urging instead that he be permitted to resign. In a proceeding seeking reciprocal discipline pursuant to 22 NYCRR 1240.13(b), respondent may raise the following defenses: (1) a lack of notice or opportunity to be heard in the foreign jurisdiction constituting a deprivation of due process; (2) an infirmity of proof establishing the misconduct; or (3) that the misconduct for which the attorney was disciplined in the foreign jurisdiction does not constitute misconduct in this State (see Matter of Milara, 194 AD3d 108, 110 [1st Dept 2021]). None of the 1240.13(b) defenses is available to respondent. Respondent cannot claim a lack of notice or opportunity to be heard because he voluntarily resigned from the Bar of Massachusetts without duress or coercion following motion practice premised on respondent's admissions made during the course of judicial proceedings. He received notice of the Massachusetts proceeding, voluntarily executed an affidavit of resignation admitting the underlying misconduct, and waived an evidentiary hearing. Further, respondent cannot claim an infirmity in the proof establishing the misconduct because he acknowledged that he could not successfully defend against the disciplinary charges brought in the Massachusetts proceedings. Finally, respondent's federal felony convictions and the misconduct underlying same also violated the New York Rules of Professional Conduct (RPC) (22 NYCRR 1200.0) because the Massachusetts and New York rules have parallel disciplinary provisions. Because respondent cannot avail himself of any of the defenses under 22 NYCRR 1240.13, and he expressly agreed "not to contest the facts and the violations . . . to this or any other bar discipline proceeding in this Commonwealth or in any other jurisdiction," reciprocal discipline is warranted. [*3] As to the appropriate sanction, "significant weight should be given to the sanction imposed by the jurisdiction where the misconduct occurred because the foreign jurisdiction has the greatest interest in fashioning sanctions for misconduct" (Matter of Blumenthal, 165 AD3d 85, 86 [1st Dept 2018]; see Matter of Jaffe, 78 AD3d 152, 158 [1st Dept 2010]). Only in rare instances will this Court depart from its general rule (see Matter of Karambelas, 203 AD3d 75, 80-81 [1st Dept 2022]; Matter of McHallam, 160 AD3d 89 [1st Dept 2018]), and no facet of the circumstances of the present application warrants such departure. Disbarment, as requested by the AGC, is the appropriate sanction in this matter because it is commensurate with and equivalent to the sanction issued by the State of Massachusetts and is in general accord with precedent involving comparable misconduct. Respondent's federal felony convictions arose from multiple intentional embezzlement schemes involving millions of dollars and repeated breaches of fiduciary duty. This Court has consistently held that intentional conversion of client or third-party funds warrants disbarment absent extraordinary mitigating circumstances, and the record contains no such evidence (see Matter of Carlos, 192 AD3d 170, 172 [1st Dept 2021]; see also Matter of Karambelas, 203 AD3d at 80-81; Matter of Desir, 163 AD3d 52 [1st Dept 2018]). Reciprocal discipline is likewise consistent with precedent involving disciplinary resignations in other jurisdictions (see Matter of Gentile, 46 AD3d 53 [1st Dept 2007] [reciprocal disbarment based on disbarment on consent in New Jersey]; Matter of Simons, 34 AD3d 136 [1st Dept 2006] [reciprocal disbarment based on North Carolina resignation]; Matter of Murphy, 276 AD2d 121 [1st Dept 2000] [reciprocal disbarment based on Massachusetts resignation]). Accordingly, the AGC's motion for reciprocal discipline pursuant to Judiciary Law § 90(2) and 22 NYCRR 1240.13, predicated on similar discipline imposed by the State of Massachusetts, should be granted, and respondent's name stricken from the roll of attorneys and counselors-at-law in the State of New York, effective immediately. All concur. Wherefore, it is Ordered that the motion by the Attorney Grievance Committee for the First Judicial Department for reciprocal discipline, pursuant to Judiciary Law § 90(2) and 22 NYCRR 1240.13, predicated on similar discipline imposed by the State of Massachusetts, is granted, and respondent, David Smerling, is disbarred and his name stricken from the roll of attorneys and counselors-at-law in the State of New York, effective immediately, and until further order of this Court; and [*4] It is further Ordered that, pursuant to Judiciary Law § 90, respondent, David Smerling, is commanded to desist and refrain from (1) the practice of law in any form, either as principal or agent, clerk or employee of another, (2) appearing as an attorney or counselor-at-law before any court, Judge, Justice, board, commission or other public authority, (3) giving to another an opinion as to the law or its application or any advice in relation thereto, and (4) holding himself out in any way as an attorney and counselor-at-law; and It is further Ordered that, respondent, David Smerling, shall comply with the rules governing the conduct of disbarred or suspended attorneys (see 22 NYCRR 1240.15), which are made part hereof; and It is further Ordered that if respondent, David Smerling, has been issued a secure pass by the Office of Court Administration, it shall be returned forthwith. Entered: October 1, 2026