Wednesday, September 25, 2019

Forced Touching Of Incarcerated Client Leads To Two Year Suspension

An attorney's forcible touching conviction drew a two-year suspension from the New York Appellate Division for the Second Judicial Department.

The Poughkeepsie Journal reported on the criminal disposition

The retired Town of Poughkeepsie police lieutenant and attorney who admitted to forcibly touching a former law client was sentenced on Wednesday to 45 days in jail and six years of probation.

Wayne Thatcher, 63, pleaded guilty in September to a misdemeanor charge of forcible touching in connection with an incident on May 16, 2017, according to the Dutchess County District Attorney’s Office. He was arrested two days later and charged with two counts of forcible touching for engaging in ongoing sexual contact with a client.

From the sentencing argument for the state

“This only came to light because the victim, who is named in the charge to which [the defendant] pled guilty, who was in jail at the time, decided that she couldn’t take it anymore and came forward to investigators to disclose what the defendant had been doing to her for quite some time. Imagine how she felt coming forward as an incarcerated defendant, in jail, on drug charges and other charges, knowing that she was reporting that her attorney, who was probably one of the most well-known and respected attorneys in Dutchess County, a former police officer, a lieutenant with the Town of Poughkeepsie, she was accusing him of horrific conduct. That was not an easy day for her, and I was there the day she came forward to meet with the police, and I commend her for the strength that it took to make that report, because she told us, I didn’t expect anyone would believe me.

“We did believe her and I give credit to the Sheriff’s office for their dedication and their investigation of this case, because it wasn’t just her. Nine women in total came forward dating back to 2006, which was the earliest report that the police had received of this defendant’s behavior towards a client, but in 2006 when it was investigated, unfortunately it was her word against his, and who could go up against him?

The attorney's position 

the respondent contends that the appropriate sanction is a public censure, taking into consideration the following mitigating circumstances: the respondent’s cooperation, his lack of a prior disciplinary history, his jail time, the significant loss of clients, his reputation for honesty and truthfulness, and his pro bono services to the community. The respondent contends that he is remorseful as he so testified repeatedly at the hearing. The respondent further contends that there are no aggravating circumstances, arguing that the remarks made by the Assistant District Attorney were, in fact, precluded by the Special Referee when the respondent challenged them at the hearing. Moreover, the respondent argues that his due process rights would be violated if the remarks were considered.

Sanction

We find that public discipline should be imposed, and accordingly, the Grievance Committee’s motion to confirm the report of the Special Referee is granted. We find no reason to disturb the Special Referee’s finding of no remorse by the respondent, as the respondent viewed his conduct as actions merely taken in jest, rather than as the abusive conduct it was. We disagree with the respondent’s contention that there are no aggravating factors. While the Special Referee did not consider the remarks made by the Assistant District Attorney, neither did she preclude them as no formal motion to preclude was ever made by the respondent. The remarks related to pertinent background information and were never challenged by the respondent or his criminal attorney at sentencing. We find the information relevant to this Court’s determination of a sanction, as the respondent’s guilt is undisputed in this disciplinary proceeding. Finally, we find that the respondent committed serious professional misconduct. The respondent engaged in nonconsensual physical contact with a client to gratify a sexual desire. Committed in the confines and privacy of the respondent’s law office, the conduct would have continued and gone unchecked, but for the client’s cooperation with law enforcement. The conduct was not isolated. The respondent not only abused his position as an attorney, but he relied on his former position as a police officer to insulate himself from accountability.

In view of the aggravating circumstances of this matter, we conclude that the respondent’s criminal conduct warrants a suspension from the practice of law for two years.

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2019/09/an-attorneys-unlawful-touching-conviction-drew-x-from-the-new-york-appellate-division-for-the-second-judicial-department-th.html

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