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December 31, 2008

Should any and all sex offenders be barred from ever practicing law?

The New York Law Journal has this effective report on an interesting split decision from a New York state appellate panel in the lawyer discipline case of Matter of Lever.  The NYLJ article headline provides the basics of the story: "Attorney Caught in Internet Sex Sting Suspended From Practice for 3 Years: Rare split N.Y. appellate court suspends former Kirkland & Ellis associate who admitted attempting to meet purported 13-year-old for sex."  Here are a more details:

In a rare 3-2 decision in a disciplinary matter, a five-judge panel of the New York Appellate Division, 1st Department, agreed that Steven J. Lever "brought shame to himself and to this State's Bar" by using the Internet "to prey on minors for purposes of sexual gratification." They also agreed his conduct required "a significant sanction." However, finding a dearth of New York precedent on point, the judges could not agree on the appropriate punishment.

The three-judge majority, looking at similar cases from other states, cited the "substantial and credible mitigation evidence" in confirming a hearing panel's recommended three-year suspension. "From the beginning, respondent has admitted responsibility for his actions and has taken 'uncommon' efforts to rehabilitate himself," the majority wrote in its per curiam opinion, Matter of Lever, M-1412. "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.'"...

In a vehement dissent, Justices David B. Saxe and James M. Catterson argued for disbarment. Catterson wrote for the two. "Because I believe that a convicted and registered sex offender has forfeited the privilege of admission to the bar and the elevated status of the officer of the court, I must respectfully take the unusual step in a disciplinary proceeding and dissent," Catterson wrote. "I believe that any penalty short of disbarment would not comport with the standards to which a member of the bar should adhere. I do not believe that we can reconcile the status of registered sex offender with that of a member of the bar in good standing."

UPDATE:  On this story, Scott at Simple Justice has this post asking "Just How Much Moral Turpitude is Too Much?"

December 31, 2008 at 08:50 AM | Permalink

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Comments

This disciplinary matter bears an uncanny resemblance (in some ways, but not in others) to a disciplinary case the Georgia Supreme Court handled about 15 years ago. In the Georgia case, a male attorney was having sex with his female divorce client, in lieu of the payment of cash fees, which the woman coulld not afford to pay. The attorney was also video taping the trysts in his office. The video tapes mysteriously disappeared from the man's law office and arrived in a plain manilla envelope (no return address or name), thru the mail, at the law office of opposing counsel (the divorcing husband's attorney), who viewwed the tapes and turned them over to the State Bar of Georgia. The Bar Disciplinary recommended disbarment as punishment for the attorney's transgressions, but a deeply divided Supreme Court of Georgia only suspended the attorney from practice for 5 years. In a scathing dissent, Justice Leah W. Sears (a black woman who is presently the Chief Justice of the Supreme Court)wrote that if the Court would not disbar that attorney, they should never disbar anyone. The case resulted in a cynical and politically incorrect humor among Georgia divorce lawyers. Q: "What is the difference between ethics and professionalism among Georgia divorce lawyers?" A: "Ethical lawyers never sleep with their divorce clients. Professional lawyers may sleep with their divorce clients, but they never video tape it!" Happy New Year.

Posted by: Jim Gormley | Dec 31, 2008 9:50:46 AM

This in a state that would deny an individual a barber or cosmetology license based on prior criminal history. Of course, that appears to be changing:

http://assembly.state.ny.us/mem/?ad=079&sh=story&story=29321

Posted by: O | Dec 31, 2008 10:09:02 AM

"I do not believe that we can reconcile the status of registered sex offender with that of a member of the bar in good standing."

Given that general statement, I was quite curious to find out which specific implication(s) of sex offender registration he believes cannot be reconciled with good standing at the bar. Unfortunately, he goes on to say absolutely nothing to support that statement.

Posted by: | Dec 31, 2008 10:13:34 AM

So if the guy didn't have to register, the dissent would not have a problem with it?

Posted by: | Dec 31, 2008 11:22:48 AM

I am going to agree with the dissent not because I agree with them on the substance but because I agree with them as a matter of impression. I don't think sex offenders should be disbarred based upon that fact alone. For example, the GA case Jim brings up is far more heinous in my mind than the present case. But given the way we treat sex offenders generally, it seems inconsistent to treat lawyer sex offenders in less harsh fashion; frankly, it smacks of favoritism. As a real matter, many registered sex offenders have a huge problems getting any job at all, let alone a professional paying one. From a purely economic standpoint, the panel just gave this guy a "get out of jail free card" and they did so for no other reason I can tell except for the fact he was a lawyer. That's wrong. They should have disbarred him so that he could go work as a handy-man or a janitor like all the other sex offenders.

Posted by: Daniel | Dec 31, 2008 12:52:04 PM

"Should any and all sex offenders be barred from ever practicing law?" No, but this case does not actually present that question.

1) Disbarment is not necessarily permanent. It is not particularly unusual for a disbarred lawyer to get reinstated.

2) The question in this case is not what punishment to impose on "any and all sex offenders" but rather the punishment for a 30-year-old man to attempted to arrange a tryst with a 13-year-old girl. This is a level of moral turpitude well above the minimum for the category of "sex offense."

Posted by: Kent Scheidegger | Dec 31, 2008 5:34:38 PM

Neutering is a condition precedent to allowing a stray dog out of the dog pound. That would be an appropriate "precedent" and in this case let the man back in to practice law. Neuter him and his computer.

Humor aside, we do not know the facts of this case and do not know what facts the judges were basing their decision on. I would side with the majority, absent compelling reasons given by the dissent as to why the majority was wrong.

And, I do not think that the example from Georgia rises to anywhere near the level of this case. A lawyer who has sex with his/her divorce client is having sex with a consensual adult who has a right to do what they choose. If coercion exists, that is different. Lawyers choose to waive fees for all sorts of reasons. The "fee couch" should not be put on the same level as criminal conduct.

Posted by: mpb | Jan 1, 2009 4:48:13 AM

Can someone with a sex offender criminal background for downloading child pornin college. Which by the way, his girlfriend broke into his password protected computer, and called the police, ever be admitted to law school to become a lawyer? He has a PhD and a Master's degree from outstanding universities. Are there second chances and any law school who may allow him to get a law degree and practice in the future?
DK

Posted by: DK | Jan 2, 2009 1:51:05 AM

At a minimum, this guy should have to wait a while before he can practice law again. When you're 30, and you try to arrange a sexual encounter with a 13 yr old girl, you presumptively don't have the necessary ethical standards to represent clients. If he leads an exemplary life for a decade or so, then his application should get consideration.

I suspect that this decision has a little to do with the idea that his crime was the result of a sickness, thus mitigating its severity. Of course, one can have the sickness of being attracted to 13 year old girls, yet not act on such sickness.

Posted by: federalist | Jan 2, 2009 12:17:24 PM

Let's look at this from another angle. Would a person with a sex offense conviction be granted a law license? Since most all states have moral character guidelines as they relate to Attorneys; why would any state allow an Attorney to REMAIN licensed after betraying the public trust? Double standard! Once a police officer is convicted of a felony, he/she cannot remain a sworn police officer, regardless of pre/post appointment. If you cannot become X with certain convictions, you should not be allowed to remain X post-conviction.

Posted by: Richard | Jun 7, 2013 11:19:18 PM

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