Friday, September 18, 2020

Upskirt Photo Convictions Draw New Jersey Sanction

The New Jersey Supreme Court imposed a one-year suspension for an attorney's "upskirt photograph" convictions. 

He has been disbarred in New York based on the automatic procedures for a state felony conviction.

From the recommendation of the Disciplinary Review Board

Respondent’s convictions relate to his taking "upskirt" photographs of women, without their knowledge or consent. Specifically, on June 7, 2017, respondent took an upskirt photograph of a woman at Grand Central Station in New York, New York. Three days later, on June 10, 2017, he took fifty-five upskirt photographs of women at Belmont Racetrack.

On November 6, 2017, a grand jury for the Supreme Court of New York, New York County, returned an indictment charging respondent with one count of second-degree unlawful surveillance for his misconduct at Grand Central Station. On December 27, 2017, another grand jury, for the Supreme Court of New York, Nassau County, returned an indictment charging respondent with fifty-five counts of second-degree unlawful surveillance for his misconduct at Belmont Racetrack.

In the criminal case

Respondent admitted that he intentionally took the photographs and was aware that a felony conviction would lead to his disbarment in New York. At his sentencing hearing, respondent stated to Judge McDonald, "I am very sorry about what I did, I take full responsibility. My actions were disgusting, disrespectful, and wrong."

DRB on sanction

Based on the foregoing precedent, as a case of first impression, the baseline level of discipline for respondent’s violations reasonably could range from a suspension of three months to one year. However, to craft the appropriate discipline in this case, we must consider both mitigating and aggravating factors.

In aggravation, respondent’s misconduct was a part of a pattern in public places. He took dozens of invasive photographs of unsuspecting victims. In mitigation, he has no disciplinary history and has shown contrition and remorse, as exemplified during his sentencing hearings and in his brief to us. We accord little weight to his lack of prior discipline, however, in light of his short time at the bar. Respondent also readily admitted his wrongdoing, both in pleading guilty to the charged offenses, and in his brief to us.

On balance, in light of the serious nature of the misconduct, and after consideration of the mitigation present, we determine that a six-month suspension, retroactive to the date of respondent’s temporary suspension, is the appropriate quantum of discipline to protect the public and preserve confidence in the bar. Additionally, due to the nature of respondent’s misconduct, his admitted alcoholism, and his continuing therapy, we further determine that proof of psychological counseling and proof of fitness to practice law should be conditions precedent to respondent’s reinstatement. Finally, upon reinstatement, respondent should be required to provide the OAE with proof of continued treatment, for two years.

Three members favored a two-year suspension. (Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2020/09/the-new-jersey-supreme-court-from-the-recommendation-of-the-disciplinary-review-board-respondents-convictions-relate-to.html

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