Tuesday, December 30, 2008

Sanction Disagreement For Sex Offense

An attorney who was convicted of misdemeanor attempted criminal sex act in the third degree as a result of his participation in sexually explicit chat room conversations with a person that he believed was a 13 year old girl was suspended for at least three years by the New York Appellate Division for the First Judicial Department. The factors that the court found justified a sanction other than disbarment:

Upon our review of these precedents, and our consideration of the nature and severity of respondent's offense, the aggravating and mitigating circumstances, and the impact of such offense on the bar and public, we conclude that the Hearing Panel's recommendation of a suspension of three years, or until the conclusion of respondent's probationary period, whichever is longer, is appropriate. As noted, misdemeanor convictions involving sexual solicitation of minors that do not involve sexual contact generally result in a suspension, not disbarment. Further, even if we agreed with the dissent that the offense, by itself, would ordinarily require disbarment, the substantial and credible mitigation evidence offered by respondent in this case requires us to consider a lesser sanction. From the beginning, respondent has admitted responsibility for his actions and has taken "uncommon" efforts to rehabilitate himself. After his arrest, he voluntarily entered sex offender treatment and all evidence in the record supports the therapist's opinions that such therapy appears to be working and that the likelihood of respondent repeating the misconduct was "low." Further, respondent cooperated with the criminal investigation and with Committee staff in their investigations, and he has no prior disciplinary record.

As the majority notes, a dissent would impose disbarment and sets out the circumstances in greater detail:

It is uncontested that in July 2004, while using his law office computer, respondent, then thirty-years old and a patent lawyer, logged onto an internet instant-messaging service and entered a chat room specifically targeting "older men and younger women." He commenced an online conversation with a female who claimed she was thirteen and who purportedly lived with her mother on Long Island but who was, in fact, a police officer. The chat room was "sexually oriented" and there was "significant sexual content" in the six separate conversations that followed over a period of three months. On October 16, 2004, after three months of these sexually explicit conversations, respondent, in further online conversations, arranged to meet the girl the next day at the Ronkonkoma train station in Suffolk County. They exchanged photos over the internet to ensure that they could identify each other so as to consummate their pre-arranged sexual liaison.

On October 17, 2004, respondent traveled on the Long Island Railroad from Manhattan to Ronkonkoma, admittedly "to engage in an oral sexual act" with a female whom he believed to be a thirteen-year-old girl. Upon his arrival he was arrested. At that point, he learned for the first time that the thirteen-year-old girl with whom he had anticipated having sex was actually a Suffolk County police detective.

The dissenting justice decries the random choice of sanction with the following footnote:

This seemingly random assignment of sanction recalls Justice Scalia's dissent in Dickerson v. United States (530 U.S. 428, 455, 120 S.Ct. 2326, 2342, 147 L.Ed.2d 405, 427 [2000]): "The issue, however, is not whether court rules are mutable'; they assuredly are. It is not whether, in the light of various circumstances,' they can be modified'; they assuredly can. The issue is whether, as mutated and modified, they must make sense. The requirement that they do so is the only thing that prevents this Court from being some sort of nine-headed Caesar, giving thumbs-up or thumbs-down to whatever outcome, case by case, suits or offends its collective fancy." The instant case demonstrates the danger of this Court becoming, to paraphrase Justice Scalia, a five-headed Caesar.

(Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2008/12/an-attorney-w-6.html

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Comments

Should there really be certain conditions which, per se, preclude someone from being a lawyer now and forever in the future? Obviously, the dissent thinks so.

Both the main opinion and the dissent correctly note that “a disciplinary proceeding is not to punish the respondent attorney, but rather to determine the fitness of an officer of the court and to protect the courts and public from attorneys that are unfit for practice” yet there is almost no attempt by the court to apply the facts of the case to the question of fitness.

I am not arguing that the court failed to reach the correct conclusion, only that they are paying lip service to the issue supposedly before the court. In reality, they are turning the disciplinary process into a form of super-criminal law reflecting their own personal moral beliefs which they then apply to those who practice before them. It is no wonder, therefore, that the dissent complains that the court is becoming “a five-headed Caesar”.

Stephen

Posted by: FixedWing | Dec 31, 2008 5:43:56 AM

I tend to agree with Stephen; I have written before, more generally, about my own views of the unforgiving notion of Permanent Disbarment. Is it really about fitness and not punishment if no amount of future rehabilitation (or proof of fitness and protection of clients) could ever -- even in 20 years -- suffice to allow reinstatement? And the states that have started to use Permanent Disbarment seem to apply it to misdeeds that look less about law practice and more about moral indignation. Understandable moral indignation, but maybe we should dispense with the disingenuous line about "not punishment" and own up to the reality that this is about punishment and public relations perception, not the reality of rehabilitation and fitness to practice law. For example, John Dean is a worthy person in the law. Here is my old post on that:

http://lawprofessors.typepad.com/legal_profession/2006/09/permanent_disba.html

--Alan Childress

Posted by: Legal Profession Prof | Jan 1, 2009 6:01:19 PM

hi this is anil i have written before, more generally, about my own views of the unforgiving notion of Permanent Disbarment. Is it really about fitness and not punishment if no amount of future rehabilitation (or proof of fitness and protection of clients) could ever -- even in 20 years -- suffice to allow reinstatement? And the states that have started to use Permanent Disbarment seem to apply it to misdeeds that look less about law practice and more about moral indignation

Posted by: anil | Jan 21, 2009 3:21:17 AM

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