State of New York

Supreme Court, Appellate Division

Third Judicial Department
Decided and Entered: October 31, 2024 PM-213-24
________________________________

In the Matter of KENNETH JOHN

CHESEBRO, an Attorney. MEMORANDUM AND ORDER
ON MOTION
(Attorney Registration No. 4497913)
________________________________

Calendar Date: October 10, 2024

Before: Garry, P.J., Pritzker, Reynolds Fitzgerald, Ceresia and Mackey, JJ.

__________

Monica A. Duffy, Attorney Grievance Committee for the Third Judicial

Department, Albany (Alison M. Coan of counsel), for Attorney Grievance Committee for
the Third Judicial Department.

Tesser, Ryan and Rochman, LLP, White Plains (Randall Tesser of counsel), for
respondent.

__________

Per Curiam.

Respondent was admitted to the practice of law in this state in 2007, and he has
also been admitted to practice in Massachusetts, California, Texas, Florida and Illinois.1
In August 2023, respondent was criminally indicted, along with former President Donald

1
The Attorney Grievance Committee for the Third Judicial Department advises
that, as of March 2024, respondent was temporarily suspended by the Supreme Judicial
Court for Suffolk County in Massachusetts. Moreover, respondent is listed as not eligible
to practice law in California; inactive and not eligible to practice law in Florida; and
voluntarily inactive in Illinois.
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Trump, Rudolph Giuliani2 and 16 other defendants in Fulton County, Georgia, for their
alleged efforts to overturn the 2020 presidential election. Respondent's indictment arose
in connection with his involvement, along with his 18 codefendants and others, in a
scheme to submit false election results to Congress concerning the 2020 presidential
election. While respondent was indicted on seven counts, in October 2023, in satisfaction
of all counts, he pleaded guilty to count 15 of the indictment, specifically conspiracy to
commit filing false documents, which crime is itself comprised of two statutes of the
Georgia code, which crime constitutes a felony in that jurisdiction (see Ga Code Ann §§
16-4-8; 16-10-20.1 [b] [1]). The Attorney Grievance Committee for the Third Judicial
Department (hereinafter AGC) now therefore moves by order to show cause to strike
respondent's name from the roll of attorneys due to his felony conviction or, alternatively,
to impose discipline upon respondent as a consequence of his commission of a "serious
crime." By affirmation of counsel, respondent opposes AGC's motion and AGC has been
heard in reply; the parties were also heard at oral argument.

Count 15 of the indictment alleged that respondent, along with Trump, Giuliani,
John Eastman and others, unlawfully conspired in Georgia between December 6, 2020
and December 14, 2020 to knowingly file, enter and record a document entitled
"Certificate of the Votes of the 2020 Electors from Georgia," in a court of the US, while
having reason to know that the document contained a materially false statement.
Specifically, the Certificate wrongfully stated that the signatories thereof were "the duly
elected and qualified Electors for President and Vice President of the United States of
America from the State of Georgia." Additionally, count 15 alleged that defendants
David Shafer, Shawn Micah Tresher Still, and Cathleen Alston Latham – but notably not
respondent – acting as coconspirators, had placed in the US mail a document addressed to
the Chief Judge of the US District Court for the Northern District of Georgia, with such
act being an overt act to effect the object of the conspiracy.

During respondent's plea hearing, Fulton County Assistant District Attorney

Daysha Young orally recited what the prosecution would have shown in its case-in-chief
against respondent, and asserted that said information would be the factual basis for the
plea. Following this exposition, respondent was asked by the Superior Court of Fulton
County whether he was "pleading guilty today because [he] agree[d] that there's a factual

2
Giuliani, the former Mayor of the City of New York, was disbarred by July 2024
order of the Appellate Division, First Judicial Department as a consequence of his
conduct in connection with the Trump campaign and the 2020 presidential election
(Matter of Giuliani, 230 AD3d 101 [1st Dept 2024]).
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basis that supports this remaining charge?" to which respondent replied "[y]es, this
charge." The court thereafter found, in addition to concluding that respondent had entered
his plea knowingly, voluntarily and intelligently, that there was a sufficient factual basis
for the charges as proffered by the State. Respondent was then sentenced, pursuant to
Georgia's First Offender Act, to five years of probation, restitution in the amount of
$5,000, 100 hours of community service and was directed to write an apology letter to the
citizens of Georgia.3 The plea further required respondent to testify truthfully at all
hearings or trials involving his codefendants and prohibited him from communicating
with his codefendants, witnesses or media entities until all cases have been resolved.

Judiciary Law § 90 (4), Rules for Attorney Disciplinary Matters (22 NYCRR) §
1240.12 and Rules of the Appellate Division, Third Department (22 NYCRR) § 806.12
collectively provide a framework by which AGC may seek to discipline an attorney
following his or her conviction of a crime. Upon an attorney's conviction for a felony –
that being either a felony offense committed in New York or a crime committed outside
of New York that would constitute a felony if committed in this state (see Judiciary Law
§ 90 [4] [e]) – the attorney ceases to be competent to practice law; thus, a motion by
AGC upon an attorney's felony conviction only seeks to strike the attorney's name from
the roll of attorneys (see Judiciary Law § 90 [4] [a]; Rules for Atty Disciplinary Matters
[22 NYCRR] § 1240.12 [b] [2] [i]; [c] [1]). Conversely, upon our conclusion that an
attorney has been convicted of a serious crime – which is statutorily defined as "any
criminal offense denominated a felony under the laws of any state . . . which does not
constitute a felony under the laws of this state, and any other crime a necessary element
of which . . . includes . . . false swearing, misrepresentation, fraud, . . . deceit, . . . or an
attempt or conspiracy or solicitation of another to commit a serious crime" (Judiciary
Law § 90 [4] [d]) – we shall suspend the attorney upon receipt of proof of such
conviction pending our eventual issuance of a final order of discipline (see Judiciary Law
§ 90 [4] [f], [g]; Rules for Atty Disciplinary Matters [22 NYCRR] § 1240.12 [c] [2] [i],
[ii]).

In determining whether the out-of-state felony constitutes a felony in New York,

the out-of-state felony need not be a mirror image of the New York felony; the crimes at
issue must nonetheless have "essential similarity" (Matter of Margiotta, 60 NY2d 147,
150 [1983]), which may be determined "through a comparison of the language of the

3
Respondent's one-sentence apology letter was provided by AGC in its motion
papers and succinctly states that he "apologize[s] to the citizens of the State of Georgia
and of Fulton County for [his] involvement in Count 15 of the indictment."
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applicable statutes along with any precedent pertaining to the foreign felony at issue," as
well any records from a respondent attorney's proceedings before the foreign
jurisdiction's judicial forum (Matter of Hand, 164 AD3d 1006, 1007-1008 [3d Dept
2018]). Since respondent explicitly pleaded guilty to count 15 charging him with the
crime of conspiracy to commit the filing of false documents, the threshold determination
is whether the Georgia statutes at issue are essentially similar to any New York felony-
level crime (see Matter of Nazor, 228 AD3d 1058, 1060 [3d Dept 2024]; Matter of Hand,
164 AD3d at 1008-1009). The Georgia crime of conspiracy to commit false filings (see
Ga Code Ann §§ 16-4-8; 16-10-20.1 [b] [1]) requires the conspirators, as applicable here,
to unlawfully conspire to knowingly file a document in a public record or court of
Georgia or of the US knowing or having reason to know that such document is false or
contains a materially false, fictitious or fraudulent statement or representation, with one
or more of the conspirators doing any overt act to effect the object of the conspiracy.

AGC initially argues that count 15 of the indictment, together with respondent's
plea and Young's statement at the plea hearing, collectively establish that New York's
class E felony of offering a false instrument for filing in the first degree (see Penal Law §
175.35 [1]) is itself essentially similar to the Georgia crime to which respondent pleaded
guilty.4 The fundamental flaw with this argument, however, is that respondent pleaded
guilty to an anticipatory conspiracy offense, rather than the crime constituting the object
of the conspiracy. AGC nonetheless contends that it is of no consequence that respondent
was not the individual who signed or undertook the physical act of filing the fraudulent
certificate of votes, since he acted in concert with others who were to be responsible for
the filing and may therefore be held liable for the affirmative acts of his coconspirators
(see Matter of Amsterdam, 26 AD3d 94, 97 [1st Dept 2005]; see also Penal Law § 20.00).
However, the record of the Georgia proceeding does not demonstrate that respondent,
himself, personally presented the documents for filing with the Northern District of
Georgia or was aware that the filing had taken place; rather, as noted above, the act of
filing was attributed to three of respondent's coconspirators in a separate count of the
indictment (compare Matter of Amsterdam, 26 AD3d at 96-97). Under the circumstances
presented, and mindful that the purpose of our analysis here is only to determine whether
those acts which respondent actually admitted to committing constitute a New York
felony, we decline to apply principles of accessorial liability as a means of determining

4
Notably, the crime of conspiracy to commit a felony-level offering a false
instrument for filing is itself decidedly not a felony offense under New York law (see
Penal Law § 105.05).
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that respondent engaged in conduct constituting offering a false instrument for filing
when, in fact, he merely pleaded guilty to a conspiracy to do so.

Moreover, even if it could be said that respondent himself engaged in acts

constituting offering a false instrument for filing, Penal Law § 175.35 (1) also contains an
element that the defendant possess an intent to defraud, which is notably absent from the
Georgia felony respondent pleaded guilty to (compare Penal Law § 15.05 [1], with Penal
Law § 15.05 [2]). AGC counters that we may nonetheless find that respondent acted with
an intent to defraud in this instance, as the record of the Georgia criminal proceeding
reveals that he acted with the conscious aim and objective to defraud (see People v
Taylor, 14 NY3d 727, 729 [2010]), specifically by drafting documents and accompanying
instructions for his coconspirators, and knowing that such documents would be falsely
certified to and submitted to Congress. However, this state has consciously distinguished
the offense of offering a false instrument for filing into felony and misdemeanor crimes,
each with different levels of intent (compare Penal Law § 175.35 [1], with Penal Law §
175.30). Such a distinction cannot be overlooked, particularly when New York's
misdemeanor crime of offering a false instrument for filing in the second degree is itself
similar to the relevant Georgia statute (see e.g. Matter of Valandingham, 207 AD3d 989,
990 n 3 [3d Dept 2022]). Accordingly, we conclude, based on the specific facts before us,
that the Georgia crime which respondent pleaded guilty to is not essentially similar to the
New York felony of offering a false instrument for filing in the first degree.

Despite this conclusion, we conclude that a plain reading of the statutes

comprising the Georgia crime of conspiracy to commit filing false documents
demonstrates that respondent's conduct categorically meets the definition of a serious
crime in this state as respondent pleaded guilty to a felony in Georgia that does not
constitute a felony in this state. Moreover, even if respondent had not pleaded guilty to a
felony crime in Georgia, his plea would nonetheless constitute a serious crime in this
instance since it implicates a conspiracy to commit a crime which itself includes the
"necessary element" of "misrepresentation, fraud [or] . . . deceit" (Judiciary Law § 90 [4]
[d]), specifically the element that the document itself is false or contains materially false
or fraudulent statements or representations (see e.g. Matter of Daly, 20 AD3d 762, 762-
763 [3d Dept 2005]).

Having established that the Georgia felony respondent pleaded guilty to

constitutes a serious crime under New York law, we must next consider whether
respondent has actually been "convicted" in the Georgia matter (Judiciary Law § 90 [4]
[f]), given the application of Georgia's First Offender Act (see Ga Code Ann § 42-8-60).
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As is relevant here, the First Offender Act permits a Georgia court to withhold final
judgment and sentence a defendant with no prior felony conviction to a term of probation
upon his or her guilty verdict or plea of guilty or nolo contendere. Provided that the
defendant subsequently successfully completes his or her probationary term under the
Act, he or she thereafter "shall be exonerated of guilt and shall stand discharged as a
matter of law" (Ga Code Ann § 42-8-60 [e] [1]). Respondent argues that, when a
defendant is sentenced under the First Offender Act, there is no adjudication of guilt and
that the defendant is not considered criminally convicted at the time of offering the plea;
rather, upon successful completion of his sentence, he avers that he will be considered to
have never been criminally convicted. While this Court, or other New York courts, have
not determined, for attorney disciplinary purposes, whether a guilty plea pursuant to
Georgia's First Offender Act constitutes a conviction in this state, this state has long
recognized that nolo contendere pleas in a foreign jurisdiction qualify as convictions in
this state (see e.g. Matter of Kasckarow v Board of Examiners of Sex Offenders of State of
N.Y., 25 NY3d 1039, 1042 [2015]; People v Daiboch, 265 NY 125, 129 [1934]; Matter of
Goncalves, 161 AD3d 1377, 1379 n 3 [3d Dept 2018]; Matter of Tendler, 131 AD3d
1301, 1302 [3d Dept 2015]). Inasmuch as the record demonstrates that respondent
entered a plea of guilty to count 15 of the indictment before the Georgia court and was
thereafter sentenced to a term of probation, among other sanctions, we conclude that he
has been convicted for purposes of Judiciary Law § 90 (4) (f) (see Matter of Delany, 87
NY2d 508, 511 [1996]; CPL 1.20 [13]).

Having concluded that respondent has been convicted of a serious crime, we

accordingly suspend respondent from the practice of law in New York on an interim basis
(see Judiciary Law § 90 [4] [f]; Rules for Atty Disciplinary Matters [22 NYCRR] §
1240.12 [c] [2] [ii]), and next turn to a determination of whether a judgment of conviction
has become "final" in respondent's Georgia criminal proceeding, thereby triggering the
additional statutory procedures before the final disciplinary sanction may be imposed.
While an attorney convicted of a felony is automatically disbarred, "the Judiciary Law
provides that an attorney convicted of a serious crime is suspended when [this Court]
receives a record of such conviction, and a judgment of conviction must be rendered
before [we] may order the 'attorney to show cause why a final order of suspension,
censure or removal from office should not be made' " (Matter of Delany, 87 NY2d at 512,
quoting Judiciary Law § 90 [4] [g]). The Court of Appeals has held that the terms
"conviction" and "judgment" have specific meanings in New York, with the judgment
consisting of both a conviction and sentence imposed (see Matter of Delany, 87 NY2d at
512; see also CPL 1.20 [15]).
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AGC contends that we may impose final discipline upon respondent given that the
judgment of conviction was rendered on October 20, 2023 (see Judiciary Law § 90 [4]
[g]), the date of his plea in Georgia. Respondent counters that the Georgia court's
certification in his criminal matter, which states that "no judgment of guilt [shall] be
imposed at this time but that further proceedings are deferred" and that, upon completion
of probation, respondent "shall be completely exonerated of guilt of said offense charged"
demonstrates that the judgment in Georgia is not yet final. Thus, he argues that the
procedures for the imposition of a final disciplinary sanction in this state have not yet
been triggered and that we must instead await final resolution of the Georgia matter,
including any proceedings eventually arising under Georgia's First Offender Act (see
Matter of Kramer, 69 AD3d 139, 141-142 [1st Dept 2009]).

While the state of Georgia may defer its own proceedings against respondent and
may treat him, upon successful completion of his term of probation, as never having been
convicted of a crime, our review of the record reveals that a judgment of conviction has
in fact been rendered by the Georgia courts (compare Matter of Delany, 87 NY2d at
510). Specifically, the certified records from the Superior Court of Fulton County reveal
that it entered a judgment against respondent, directing him to complete a five-year term
of probation with various conditions, including cooperating in providing testimony
against his codefendants. In our view, it is of no moment that respondent may ultimately
be "exonerated" under Georgia law, as it equally as plausible that he may violate the
terms of his probation and be subjected to additional criminal penalties as a result.

Garry, P.J., Pritzker, Reynolds Fitzgerald, Ceresia and Mackey, JJ., concur.

ORDERED that the motion of the Attorney Grievance Committee for the Third
Judicial Department is granted in part and denied in part consistent with this decision;
and it is further

ORDERED that respondent's conviction of conspiracy to commit filing false

documents is determined to constitute a serious crime within the meaning of Judiciary
Law § 90 (4) (d); and it is further

ORDERED that, pursuant to Judiciary Law § 90 (4) (f), respondent is suspended

from the practice of law, effective immediately, and until further order of this Court; and
it is further
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ORDERED that respondent is directed to show cause before this Court, at a time
and manner to be determined by the Clerk of this Court, why a final order of suspension,
censure or removal from office should not be made pursuant to Judiciary Law § 90 (4)
(g); and it is further

ORDERED that, for the period of the suspension, respondent is commanded to

desist and refrain from the practice of law in any form in the State of New York, either as
principal or as agent, clerk or employee of another; and respondent is hereby forbidden to
appear as an attorney or counselor-at-law before any court, judge, justice, board,
commission or other public authority, or to give to another an opinion as to the law or its
application, or any advice in relation thereto, or to hold himself out in any way as an
attorney and counselor-at-law in this State; and it is further

ORDERED that respondent shall comply with the provisions of the Rules for
Attorney Disciplinary Matters regulating the conduct of suspended attorneys and shall
duly certify to the same in his affidavit of compliance (see Rules for Atty Disciplinary
Matters [22 NYCRR] § 1240.15).

ENTER:

Robert D. Mayberger
Clerk of the Court