Thursday, December 20, 2007

Disbarment For Child Molestation

The Supreme Court of Washington disbarred an attorney who had been convicted of first degree child molestation. The court majority agreed with its Board's unanimous recommendation for a sanction more severe than that called for by ABA Standards for Imposing Lawyer Sanctions due to the abuse of trust involved in the criminal conduct. The victim was an eleven year old former client of the lawyer.

A dissent favored suspension over disbarment, taking issue with the "breach of trust" predicate of the majority opinion:

"Here, of course, Day [the attorney]could not engage in consensual sexual activity with D.J.
[the victim]. Whether a lawyer's conduct is chivalrous or criminal, however, is irrelevant to
whether the lawyer breached a former client's trust because RPC 8.4(b) is not
concerned with the public's image of  the bar but protecting the public from
incompetent lawyers. See Curran, 115 Wn.2d at 768. The trust flowing from Day
to D.J. was one of a personal, not professional, nature. As such, violating this
personal trust does not necessarily implicate a lawyer's competence to practice law.

    As for D.J.'s mother, the majority cites no RPC establishing a duty between
Day and D.J.'s mother. Instead, the majority would have us believe because she
knew Day was an attorney and therefore trusted Day, Day's conduct "involved a
profound violation of trust." Majority at 16. This independent establishment of
professional trust divorced from any relevant professional duty places all attorneys
on precarious grounds. Every lawyer  now  becomes vulnerable to disciplinary
action merely because the accusing party knew of the lawyer's status as a lawyer,
trusted in that status, and was somehow aggrieved. The cornucopia of frivolity this
opens is staggering to comprehend. Surely, the majority cannot mean such
sweeping language, divorcing  professional  trust from  any professional  ethical
obligation. The majority's reasoning defeats the purpose of the rules, to protect us
from lawyers who violate professional duties. Standards std. 1.1.

  This is not to dismiss that which befell D.J. and his mother but to highlight
the central purpose of RPC 8.4(b), namely protecting the public from incompetent
practitioners. Curran, 115 Wn.2d at 768. As such, our case law draws a clear line
between conduct implicating a lawyer's fitness to practice law and conduct that
does not. Compare, e.g., In re Disciplinary Proceeding Against Huddleston, 137
Wn.2d 560, 974 P.2d 325 (1999) (false representation);  In re Disciplinary
Proceeding Against Plumb, 126 Wn.2d 334, 892 P.2d 739 (1995) (theft); and In re
Disciplinary Proceeding Against Johnson, 114 Wn.2d 737, 790 P.2d 1227 (1990)
(conversion of client funds for personal use) with Curran, 115 Wn.2d 747
(vehicular homicide).

       Here, Day's conduct did not violate any professional trust or duty placed in
him as a lawyer. As such, it does not implicate the "'characteristics relevant to law
practice.'" Curran, 115 Wn.2d at 766 (quoting ABA, Model Rules of Professional
Conduct 100 (1983))."

The relevant ABA Standard is 5.11, which lists crimes for which disbarment is appropriate and states that suspension is appropriate for non-listed serious criminal offenses. As child molestation is, to me, as indicative of moral turpitude as the listed offenses, perhaps the ABA may wish to consider its inclusion in future versions of the Standards. (Mike Frisch)

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