Matter of Gillman: Federal Health Care Fraud as Serious Crime and Essential Similarity Analysis Under Judiciary Law §90

Introduction

The Appellate Division of the Supreme Court of New York, Third Department, decided Matter of Gillman (2025 NYSlipOp 01996) on April 3, 2025. The case involves Seth Gillman, an attorney admitted in Illinois in 1993 and in New York in 1995, who pled guilty in February 2016 to a federal felony—health care fraud under 18 USC § 1347. The fraud scheme centered on a hospice provider that Gillman co-founded and co-owned, and it resulted in a $9 million restitution order and a 6½-year prison sentence. Following his conviction, the Attorney Grievance Committee of the Third Judicial Department (AGC) moved to strike Gillman’s name from the New York roll of attorneys or, in the alternative, to impose professional discipline for a serious crime. Gillman did not respond to the motion.

Summary of the Judgment

The Court divided its ruling into two parts:

Essential Similarity to NY Penal Law §177.20: The Court held that Gillman’s federal conviction for health care fraud was not essentially similar to the New York felony of health care fraud (Penal Law §177.20), because the record did not show that any single false Medicare claim to a specific patient exceeded $50,000—the statutory threshold in New York. Accordingly, the motion to strike Gillman’s name from the roll solely on that basis was denied.
Classification as a “Serious Crime” under Judiciary Law §90(4)(d): The Court concluded that 18 USC § 1347 falls within New York’s definition of a serious crime—namely, a felony involving misrepresentation or fraud. Having finalized its conviction and in light of Gillman’s failure to respond or present mitigating factors, the Court granted the AGC’s motion to disbar him immediately to protect the public and maintain the integrity of the profession.

Analysis

1. Precedents Cited

Matter of Chesebro (231 AD3d 1473 [3d Dept 2024]): Established that foreign‐conviction motions in New York aim only to strike names when a foreign felony is essentially similar to a New York felony.
Matter of Hand (164 AD3d 1006 [3d Dept 2018]): Clarified the multi‐factor comparison for essential similarity, including statutory language and factual context.
Matter of Philwin (108 AD3d 129 [1st Dept 2013]): Held that AGC may look beyond statutory elements to defendant’s actual conduct in determining essential similarity.
Matter of Farrace (173 AD3d 1422 [3d Dept 2019]) and Matter of DeMelo (162 AD3d 1303 [3d Dept 2018]): Recognized federal fraud statutes as serious crimes under Judiciary Law §90(4)(d).
Matter of Adler (211 AD3d 1166 [3d Dept 2022]) and Matter of Daly (43 AD3d 1269 [3d Dept 2007]): Provided guidance on the imposition of disbarment for attorneys convicted of serious crimes involving fraud.

2. Legal Reasoning

Essential Similarity Analysis: New York Judiciary Law §90(4)(e) mandates disbarment only when a foreign felony is essentially similar to a New York felony. Penal Law §177.20 requires, as an element, false submissions to a health plan aggregating over $50,000 in a one-year period for a single patient. The Court found no record evidence that Gillman’s false claim for the single patient at issue exceeded the $50,000 threshold. Aggregate losses cited at sentencing ($9.5 million to $20 million) served as aggravating factors, not as elements of the offense, so they could not supply the missing statutory element.

Serious Crime Classification: Judiciary Law §90(4)(d) encompasses any out‐of‐state or federal felony “a necessary element of which includes misrepresentation, fraud, deceit, … or conspiracy.” The Court held that 18 USC § 1347, which requires knowingly executing a scheme to defraud a health program, squarely meets that definition. Gillman’s conviction was final, and he failed to contest the AGC motion or offer mitigation.

Disciplinary Sanction: Under Judiciary Law §90(4)(g) and ABA Standards for Imposing Lawyer Sanctions, the Court weighed aggravating factors—dishonest motive, protracted multi‐year scheme, multiple false submissions, alteration of patient records, failure to report—and the absence of mitigating factors. Disbarment was deemed necessary to protect the public and uphold the profession’s integrity.

3. Impact on Future Cases

Clarifies that aggregate fraud losses cannot substitute for a single‐claim statutory threshold when determining essential similarity.
Affirms that federal health care fraud convictions are serious crimes under New York law, mandating disciplinary action even absent essential similarity to state felonies.
Emphasizes an attorney’s duty to report convictions and disciplinary actions promptly to the AGC.
Provides a roadmap for future discipline motions: precise statutory comparison for essential similarity and clear application of Judiciary Law §90(4)(d) for serious crime determinations.

Complex Concepts Simplified

Essential Similarity: A legal test comparing the elements of a foreign crime and a New York crime. If their statutory elements match, disbarment follows automatically for foreign felonies.
Serious Crime: Under Judiciary Law §90(4)(d), any felony (federal or out‐of‐state) that necessarily includes fraud, deceit, or similar misconduct—even if not a New York felony—warrants disciplinary proceedings.
Aggaravating vs. Mitigating Factors: Factors increasing or decreasing the severity of discipline (e.g., dishonest motive is aggravating; timely admission of wrongdoing is mitigating).

Conclusion

Matter of Gillman establishes two significant precedents in attorney disciplinary law:

Federal health care fraud under 18 USC § 1347 is not “essentially similar” to NY Penal Law § 177.20 unless the $50,000 single‐claim element is clearly satisfied in the record.
Such federal convictions qualify as “serious crimes” under Judiciary Law § 90(4)(d), meriting disbarment absent compelling mitigation.

This decision reinforces the rigorous statutory comparison required for foreign‐felony motions and underscores New York’s commitment to disciplining attorneys who engage in fraudulent schemes, thereby preserving public trust in the legal profession.