A former Sullivan & Cromwell partner who was sentenced to two years in prison in 2012 for not paying taxes will have to reapply for his law license following a three-year suspension, a New York appellate court ruled last week.
The former M&A lawyer, John O’Brien, admitted that he failed to file his income tax returns for 2004 and 2006 and did not pay income taxes in 2005 and 2007. In 2012, he was convicted and ordered to pay $2.87 million to the Internal Revenue Service.
In June 2015, an attorney disciplinary panel in New York recommended a three-year suspension of O’Brien’s law license, backdated to 2012, finding that his willful tax-dodging was partly mitigated by his otherwise unblemished record. The panel suggested that O’Brien’s license be reinstated automatically following his suspension if he passed a professional responsibility exam, earned 24 CLE credits and received mental health treatment.
In an unsigned order issued on Dec. 29, a five-judge panel of New York’s Appellate Division, First Department panel approved the three-year suspension. Among the “aggravating factors” warranting the sanction, the court found that “respondent’s conduct was not attributable to any medical or psychological condition or any unforeseen extraordinary financial expense, but was simply a choice to live an extravagant lifestyle rather than pay his taxes, until such time as the authorities caught up with him.”
The court refused to allow O’Brien to be automatically reinstated to practice, however. Instead, like most other New York attorneys whose licenses are suspended for more than six months, O’Brien will have to reapply to the court, the panel wrote.
In another departure from the disciplinary report, the court ordered that O’Brien will not have to present proof to a disciplinary committee that he is receiving mental health treatment. The court also declined to redact or seal records of the disciplinary proceedings related to O’Brien’s mental health, as he had requested.
O’Brien’s psychiatrist had testified during the disciplinary hearing that she had been treating him since 2008. Though she said his mental health issues may have contributed to his tax problems, she did not say it was the cause, the court’s order said. A psychologist who examined O’Brien in 2012 found his mental health had hampered his ability to make rational decisions, according to sibling publication the New York Law Journal.
O’Brien earned close to $11 million in partnership income between 2002 and 2008, and he failed to pay taxes for nearly the entire period, according to the court. He ignored notices he received “periodically” from the IRS and tax authorities in New York and California and spent much of his money on his live-in partner, including $3.2 million on a rare bookstore they co-owned and nearly $1 million on his partner’s extensive travel.
The Sullivan & Cromwell partner’s conduct first came to light in 2009, when tax authorities from California, where O’Brien earned some of his income, contacted the firm. O’Brien resigned from Sullivan & Cromwell’s partnership soon afterward.
O’Brien’s current whereabouts could not immediately be determined. Federal prison records show that he was released in 2014.
A lawyer representing O’Brien, Emery Celli Brinckerhoff & Abady partner Hal Lieberman, did not respond to a request for comment on Tuesday.