Mickey Sherman stumbled yesterday, but will he fall? Most likely not. He's got powerful friends and a telegenic smile. Odds are, yesterday's conviction for failure to pay taxes will simply be a bump in the road. But it will be a close call. A very close call. And knowing Mickey, he might just come up smelling of roses.
The 62-year-old Connecticut lawyer pleaded guilty yesterday to two misdemeanor counts of failure to pay some $400,000 in taxes in 2001 and 2002. He faces up to two years in prison, one year on each misdemeanor count, and owes some $1.1 million in taxes to the Government.
Reading between the lines, Sherman is a lucky man.
One press account reported he had failed to report income. That would be a felony, filing a false return. Rather than face felony charges, he wisely pleaded to misdemeanors. I say wisely, because by pleading to misdemeanors, in particular to these misdemeanors, he minimizes the risk of disbarment. In other words, this plea may have saved his law license.
Under Connecticut law, a lawyer convicted of a felony or a larceny, a crime of theft or dishonesty, must be presented to a judge of the Superior Court for discipline, which can include suspension or disbarment. A mere misdemeanor conviction does require presentment to a judge. In misdemeanor cases, a lawyer must be presented only if he serves a term of imprisonment.
Although Sherman faces potential jail time, he is unlikely to be sentenced to a prison term by District Court Judge Janet Hall. Hall is a tough as nails jurist who will no doubt take a dim view of a darling of the bar's failure to pay taxes. But the federal Sentencing Guidelines, which are no longer mandatorily applied, do not even require prison time here. The judge can, and most likely will, walk Mickey out the door later this summer.
Should she do so? Plenty of folks are chortling with glee over Mickey's tax problems. Mike at Crime and Federalism, for example, is restrained rage: he would no doubt like to see Mickey imprisoned and disbarred. I am not so sure.
Sherman pleaded guilty to a misdemeanor to avoid false statement charges. A conviction on false statement charges would lead to bar discipline and potential suspension or worse. By not pleading to those charges, Mickey dodged a bullet.
But the marksman may still hit the target. If it turns out that Sherman did in fact file false returns, this conduct will become part of the record in the presentence report filed on Sherman. These reports are prepared by probation officers to assist the judge in imposing an appropriate sentence. Even if he is not convicted of felonious conduct, a judge might well find and conclude that relevant offense conduct included making false statements for the purpose of avoiding taxes. That is the very sort of conduct that will put a lawyer in hot water with a judge, and it should do so.
Mickey Sherman is a darling of the state court bar in Connecticut. His back-slapping antics have made him many friends on the bench and in the media. But he is a legal lightweight. Few consider Mickey when the law's heavy lifting must get done. Federal practitioners typically giggle at the mention of his name. The doors to the federal courts are heavy; Sherman's hot air doesn't budge them often or much. Come sentencing day, Sherman will be in the well of a court with little regard for his name-dropping bonhomie.
I'm no fan of Sherman's. Even so, I am not cheering at the sight of his stumble and potential fall. I once sued him and took his deposition; he was shrewd and charming in a way I found disarming. His success in the media is a gift for making others want to be part of his circle. Mickey is smooth in a way I will never be. He managed to disarm me with candor about his strengths and weaknesses. He is to the law what Bill Clinton's fling with Monica Lewinsky was to politics.
The government now owns Sherman to the tune of $1.1 million. I suspect it wants him to keep practicing law so that he can pay his slave's debt. He can't pay it in prison. He can't pay it if he can't work as a lawyer. Unless, of course, he turns his talents now to the media. Is Mickey the new Larry King? Gawd, I hope not. But it is a tea partying kind of year. Can Mickey remake himself as a victim of taxes?
I can fathom a new show: The Wages of Sin. It would be the sort of tell-all expose that would feature the rich and famous in the wake of their failings. A new gossip milieu filled with divorcing celebrities, tax evading hedge fund kings, and politicians recently rejected at the polls. Perhaps Sherman can co-host it with Sarah Palin. Mickey the Martyr. That would be the boldest remake of all, and, knowing Mickey Sherman, he might just be able to pull it off.