Lawyers in the Dock: SDNY Judge Denies Downward Departure Based on Defendant’s Good Works, but Imposes Below Guidelines Sentence

A white collar defendant’s good deeds are put under the microscope in Judge Marrero’s thoughtful decision in United States v. Fishman, 2009 WL 1940742 (S.D.N.Y. June 29, 2009).  To what extent should they mitigate the defendant’s punishment, particularly where his ability to perpetuate his fraud is closely related to his standing in the community (“[i]t is precisely the defendant’s mantle of integrity and benevolence that serves as cover for an invidious end, enabling him to move about his game undetected, the better to prey upon whose who least expect it”)?  Citing general sentencing purposes, like the avoidance of unwarranted disparities, the need for punishment and deterrence and to promote “proper respect for the law,” the court rejected Fishman’s request for a non-custodial sentence.  It didn’t help either that Fishman was a lawyer who had pled guilty to bilking his clients.  But while pulling no punches on Fishman’s arguments for leniency – and in a significant victory for the defense – the court cut Fishman’s minimum guideline in half, sentencing him to 15 months in jail.  Apart from its specific holdings, the case is also notable as a fascinating and philosophical rumination on the process of sentencing.

Facts

Fishman, a former partner at Latham & Watkins, pled guilty to one count of mail fraud for charging $350,000 of personal and non-existent business expenses to the firm and its clients over a period of thirteen years.  He also inflated the actual costs incurred by the firm to clients, and caused the firm to pay his personal expenses, such as hotel bills, by mischaracterizing them as reimbursable business expenses.

Defendant’s Good Deeds

The defense argued for a downward departure based on his charitable and civic activities, in particular his work with the Sinai schools, where he had been a volunteer and board member, and following his termination from his firm, a salaried fundraiser.  The court subjected this claim to a careful critique, concerned that the defendant not use his good name and works both as a sword (“the mask of piety he wears is but the face that previously disarmed his victims”) and a shield (raised “to seek immunity or dramatic mitigation of punishment when he is caught.”).  The court also considered the need to avoid unwarranted sentencing disparities, noting that “white collar offenders, because of their greater wealth and leadership in the community, enjoy much greater opportunities to participate and rise to prominence in charitable activities, and also possess the means to contribute resources with larger generosity to community service organizations.”

In the end, the court concluded “that Fishman’s charitable and civic activities, while extremely laudable, do not warrant a downward departure in his offense level,” but rather, would be fully considered and weighed “in connection with [the court’s] analysis of the § 3553(A) factors.”

Defendant’s Indispensability to Business

The court also gave short-shrift to the defendant’s claim that the Sinai schools, in which Fishman was now employed as a fundraiser at an annual salary of $180,000, would “cease operations . . . resulting in incalculable hardship to needy children and their families,” if Mr. Fishman were incarcerated.  “[T]he Court is skeptical that there would exist in New York, or in this region, no other individual who could work in a fundraising or financial capacity at a salary of $180,000 a year.”  (The lady may have protested too much there...). 

Defendant’s Status as a Lawyer

The court was especially troubled that the defendant was a lawyer whose fraud victimized clients and partners:

The gravity of Fishman’s crime has another dimension. In one special respect particularly resonant in this forum, Fishman is not just another citizen or an ordinary offender. He is an officer of the Court. He once took an oath in a courtroom such as this essentially affirming not only that he would serve a vital role in facilitating the Court’s application of the law, but that he would himself uphold the law himself, and the canons of ethics governing his professional practice. By virtue of that oath, and the grace and privilege conferred upon him by the public through his license to practice law, he rose to substantial wealth and prominence in his various legal and social communities-a public privilege and function he has betrayed by extensive criminal conduct.

Comment

Although Judge Marrero analyzed Fishman’s request for leniency with some skepticism, in the end, he granted him a significant variance below the Guidelines – sentencing him to fifteen months, instead of a sentence within his guideline range of 27 to 33 months.  The court noted that “[t]here is much in Fishman’s plea to commend the compassion it seeks to evoke,” and perhaps he was also moved by Judge Rakoff’s point in United States v. Adelson, 441 F.Supp.2d 506 (S.D.N.Y. 2006), that “even relatively short sentences can have a strong deterrent effect on prospective ‘white collar’ offenders.”