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January 6, 2014

"Sex offender seeks admission to Kentucky bar"

The title of this post is the headline of this notable new AP article discussing a notable dispute concerning the potential professional collateral consequences of getting convicted of downloading the wrong dirty pictures.  Here are the details, followed by a bit of commentary: 

Guy Padraic Hamilton-Smith graduated in the top third of his law school class at the University of Kentucky, but the state Supreme Court blocked him from taking the bar exam because he is a registered sex offender.  In the first case of its kind in Kentucky, the court rejected Hamilton-Smith’s bid and a move by the state Office of Bar Admissions to create and endorse a blanket rule that would have kept all registered sex offenders from gaining access to the bar.

“Rather, we believe the better course would be to allow any applicant for bar admission who is on the sex offender registry the opportunity to make his or her case on an individualized basis,” Chief Justice John D. Minton wrote in the Dec. 19 opinion on Hamilton-Smith’s case and the proposed rule.

Hamilton-Smith, who was convicted of a charge related to child pornography in 2007, has until Jan. 13 to ask the court to reconsider its decision. In an email, Hamilton-Smith referred Associated Press questions to his attorney, who said the reconsideration request will be filed.

Nationally, cases of felons seeking admission or re-admission to the bar are common. But situations of registered sex offenders attempting to do so appear to be rare. Beyond a recent rejection in Ohio and an ongoing case in Virginia, legal experts and those who work to rehabilitate sex offenders couldn’t recall a similar situation arising in recent years.

But Shelley Stow of Reform Sex Offender Laws — a Massachusetts-based organization that seeks to ease restrictions on offenders and promote rehabilitation — said she wouldn’t be surprised to see more cases out there. “It is so difficult for registrants to even get jobs and support themselves and function day to day, let alone pursue a law career,” she said.

The Kentucky case brings up the question of how to treat someone who has admitted to criminal activity, wants to rehabilitate himself and serve others, but is still monitored by law enforcement, said Hamilton-Smith’s attorney, Scott White, of Lexington. “It’s a highly stigmatized thing,” White said.

Hamilton-Smith pleaded guilty to a charge of possession of matter portraying a sexual performance by a child in March 2007. He received a five-year prison sentence, which was suspended, and was required to register as a sex offender for 20 years — until 2027.

After disclosing the conviction and sex offender status on his applications, Chase Law School at Northern Kentucky University and Brandeis Law School at the University of Louisville both rejected him in 2008. But the University of Kentucky College of Law accepted him in 2008 and he graduated in 2011. Hamilton-Smith later competed on the National Trial Team and National Moot Court Team, and he had a piece published in the Berkeley La Raza Law Journal through the University of California law school.

Since graduating in 2011, Hamilton-Smith has held a non-lawyer position for Baldani, Rowland and Richardson. The Lexington firm has filed letters in support of Hamilton-Smith taking the bar exam, White said. But Hamilton-Smith still has not been cleared by the Kentucky Office of Bar Admissions to take the exam that would allow him to practice law.

White called Hamilton-Smith “a classic sex addict.”

“The classic example is somebody who just downloads buckets of pornography,” White said. “In that download, there just happened to be child pornography.” In this case, Hamilton-Smith has gone through Sex Addicts Anonymous, despite a few admitted relapses with adult, but not child, pornography, White said.

White also said his client used law school as a redemptive and rehabilitative effort while owning up to his criminal conduct. “He just hasn’t let it define him,” White said....

For the justices, the nature of the crime defines someone lacking in the “requisite character and fitness” to be admitted to the bar.  “Indeed, our certification could significantly mislead the public into believing that we vouch for (Hamilton-Smith’s) good character,” Minton wrote.  “Consequently, a client’s subsequent discovery of the registry listing could then justifiably lead him to question the value of this court’s certification of the good character of those who are permitted to take the bar examination.”

I find this matter interesting for lots of reasons, especially because I suspect that Hamilton-Smith's personal background and recent professional challenges are likely to make him a much better lawyer to serve the (ever-growing) legal needs of the (ever-growing) sex offender population.  Indeed, were I running a law firm that often dealt with sex offense cases and offenders, I would be very eager to hire Hamilton-Smith to help me serve this client population whether or not he ever gets admitted to the bar.

That said, it is quite possible (even likely?) that Hamilton-Smith is eager to develop a legal practice that has nothing to do with sex offenders.  If that is true, I cannot help but wonder and worry that his status as a registered sex offender may always serve as a problematic disability in the competitive legal marketplace: I fear Hamilton-Smith's adversaries may be inclined (even perhaps eager) to use the modern stigma associated with sex offenders to harmfully impact both Hamilton-Smith and his clients.

More broadly, if the goal of the barring process was only to ensure that only those capable of being a competent lawyer served in this profession, it would be clear that Hamilton-Smith should be allowed to sit for the bar exam.  Conversely, if the goal the barring process was only to ensure that nobody with a blemished past could become a lawyer, it would be clear that Hamilton-Smith should not be allowed to sit for the bar exam.  But because it seems the goal of the barring process is a little of both, this is an interesting case.

Cross-posted at PrawfsBlawg

January 6, 2014 at 11:24 AM | Permalink

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Comments

While I have yet to meet Mr. Hamilton-Smith, I am familiar with the Lexington criminal defense law firm where he works as a paralegal. I also know his advocate before the KBA, Scott White, who is a former Deputy Attorney General of Kentucky (he ran the civil division of the A.G.'s Office under Ben Chandler, who went on to become a Congressman). One of the nuanced aspects of Mr. Hamilton-Scott's case is that her never went to prison, but received a 5-years probated sentence for 1 count of possession of child pornography. He has now completed his 5 years on probation, without any violations. It appears that it is his only lifetime conviction, but he will remain on a sex offender list until 2017 (13+ more years). In the process of downloading large amounts of adult porn (which is legal), he unintentionally acquired 1 video containing minors. It strikes me that Mr. Hamilton- Smith might be a good candidate for a Ky. Governor's pardon, which, if granted, would get him off the sex offender registry. A pardon should alter the KBA's and Kentucky Supreme Court's perspective on permitting Mr. Hamilton-Smith to sit for the Kentucky Bar Exam. Despite the social stigma of his crime, if we are to be a society of second chances, then he seems like a good candidate. Doug, you might also want to read the law review article that MR. Hamilton-Smith and a co-author wrote on the disenfranchisement of former felons from voting. Kentucky remains one of only 3 states that doesn't restore the voting rights of felons after they complete their sentences, including probation and parole. Here,felons must apply to the Governor to seek restoration of their voting rights. As a result of Kentucky's law (which would require a Kentucky Constitutional amendment to change it), it is estimated that 20% of the black men in Kentucky cannot vote or hold public office. I like this guy, and see him making a difference in the world, one way or another.

Posted by: Jim Gormley | Jan 6, 2014 11:52:53 AM

Ever download something and then get something in the collection that you did not seek? We ought to find a way to send child porn to every Governor and every Bar Association gate keeper in America.

Posted by: Liberty1st | Jan 6, 2014 12:32:50 PM

Guy should be allowed to practice law. Anyone who knows him knows that he would make a fine, dedicated, smart, and honest lawyer. His conviction was not for dishonesty. Nor do the circumstances evince some general disregard for the law. In fact, he has taken more responsibility for his wrongdoing than almost anyone I've ever witnessed.

But sadly, Guy will never be able to satisfy society’s insatiable desire to utterly destroy the lives of anyone whose conviction has anything to do with sex. Wherever he goes, and whatever admirable things he does to redeem his life, he will face a world in which people don’t want him in their neighborhoods, don’t want to see him, and don’t want him to have a job. It really is sad. The message for sex offenders—and indeed many felons—is “don’t bother” living a good life, because it no longer matters.

Maybe I'm old-fashioned, but I still believe in second chances for those who've earned them, and if Guy hasn't, nobody can.

Posted by: AnonymousOne | Jan 6, 2014 1:04:47 PM

I don't see why he shouldn't be allowed to practice law.

Posted by: federalist | Jan 6, 2014 2:28:38 PM

I know that this will be an unpopular opinion here, but the Supreme Court of Kentucky got it exactly right. They rejected the categorical ban on sex offenders becoming attorneys but rejected this application - that is the right call because it is a direct consequence of the applicant's own argument - namely, the applicant was trying to have things both ways - namely arguing that the state bar should ignore his sex offense because he is a sex addict but the state should ignore his sex addiction in deciding whether it is a good idea for him be in a trust position with clients. The State Bar has an obligation to protect the public from attorneys that will abuse their trust position to exploit a client. While it has taken much too long for state bars to recognize that attorneys using their positions to sexually exploit, abuse, assault, and even rape clients, client's families, and witnesses is a major issue, state bar associations now recognize this is a major ethical issue. Therefore the applicant in my opinion loses - and should lose if one can reasonably say that there is an elevated risk that the admitted sex addiction will lead to potential sexual exploitation of a client.

His argument is further undermined by his own admission that he is continuing to struggle with the sex addiction and continuing to have relapses - this again argues caution - as does the relatively recent time period between the conviction and the present. IF the state bar is going to license a person who committed a sex crime due to a claimed sex addiction they should expect a much longer period of being free of addiction than is present here - indeed, the applicant seems to have applied to law school almost immediately after the conviction - which again does not create an inference that if licensed the state bar can trust that the applicant would not abuse his trust position to engage in sexual exploitation of clients.

I also believe that the state bar has to ignore the fact that the applicant has a job within a law firm which could provide a safe guard in case of a relapse of the sex addiction (for example by limiting the applicant's exposure to being by himself with clients, support staff, other attorneys, witnesses, etc. who match his sexual preference) - quite simply, the state bar cannot presume that the structure of a firm will remain - once he receives his law license the new attorney could set off on his own for many reasons (including firm cutbacks, moving to a different town, wanting more control over schedule, etc.) In fact, the only sure way to assure that the applicant would remain working in a supervised structured setting and not be placed in a situation where he might be able to abuse his trust position is by denying his application.

Therefore, I think that the public interest strongly favors using caution - as well as a case by case look - in these cases. There is probably no legitimate reason for a blanket ban - for example, had the current applicant had 16 years since his conviction and no recent relapses of the sex addiction, I would not see a strong justification to prevent the client from becoming an attorney. As it is, in the current case, the relatively recent date of the conviction and the evidence that the client continues to struggle with the addiction that he himself claims caused the conviction the public interest is best served by exercising caution - quite simply we have little evidence that if placed in a trust position with an attractive client he won't abuse it to satisfy his admitted sex addition. The best way to assure caution is by denying the application for bar admission.

Erika :)

Posted by: erika | Jan 6, 2014 3:02:10 PM

Erika, I may be wrong, but it sounds to me as if they rejected his application on the basis of character (i.e., based on his offense, not to mention the court's misguided concern about how the public will perceive its good judgment) rather than on issues of fitness, which is what you describe.

Posted by: Anon | Jan 6, 2014 3:18:31 PM

Anon: Do you know where I can find the Kentucky Supreme court's December 2013 Order in Mr.Hamilton-Smith's case? I went to the Ky. Supreme court's web site and searched for his name, but nothing comes up. I want to read the complete Order for a better understanding.

Posted by: Jim Gormley | Jan 6, 2014 3:28:53 PM

Anon: I finally found the reference on the Kentucky Supreme court's web site under "Minutes" from December 2013. The cite is:"In re: Guy Padraic Hamilton-Smith, No. 2013-SC-000082-CF". There is no Order (published or unpublished) available, so presumably it is a one line Order only, denying his application, with no analysis or discussion.

Posted by: Jim Gormley | Jan 6, 2014 3:42:03 PM

While each state is different, many states apply a presumptive period of disqualification after a criminal offense (at least a felony or one that involves "moral turpitude") followed by a case-by-case review on individual applicants after the presumptive period ends.

Assuming that criminal activity at the very least shows an unwillingness to abide by the rules of society, an automatic cooling off period to allow adequate time to demonstrate real rehabilitation and a case-by-case review to see if the former offender has changed and is now willing to conform to the rules of society (and the rules of the bar designed to protect clients from unscrupulous or otherwise unfit attorneys) seems logical.

Posted by: tmm | Jan 6, 2014 3:54:46 PM

Jim - just saw your question. I had searched WL after reading the article, but I didn't find anything. If there is a full order/opinion, I am interested in reading it, but it sounds like there is not.

Posted by: Anon | Jan 6, 2014 3:58:11 PM

"downloading the wrong dirty pictures"

Yes, child pornography is targeted because it specifically is deemed "wrong" while a whole range of "dirty" pictures are not for legal purposes.

The overall discussion is interesting and the concern for "individualized basis" should be more of a concern that some across the board rule, even if the law violated is something particularly stigmatizing like this.

Posted by: Joe | Jan 6, 2014 4:16:08 PM

In addition to the Virginia and Ohio cases, there is a New York disciplinary case, In re Lever, 60 A.D.3d 37 (1st Dept. 2008), which found by 3-2 that an attorney who pled guilty to an Internet sex crime should be suspended rather than disbarred.

Posted by: Jonathan Edelstein | Jan 6, 2014 4:21:48 PM

anon, I do not believe it is easy - nor proper to really separate the two. The bar admission statutes refer to "character and fitness" and in any case, the court appears to have rejected a strict ruling based solely upon prior "offense" - the article that Professor Berman linked to shows at least some of the argument that the state bar made against admission - including pointing out that the sex addiction issue is really a double edged sword - and they pretty clearly were directed at both character and fitness.

I suspect that as a good law professor, Professor Berman did not include the state bar's arguments relating to the sexual addiction issue in order to better frame the issue as a hypothetical and better frame the overall issue. Sometimes facts get in the way of really looking at the law - and I think ultimately this case provides such an instance

Erika :)

Posted by: erika | Jan 6, 2014 4:22:36 PM

actually Erika based on the 2002 USSC decision that made the registry Legal. This is ILLEGAL. Since they specifically state in that 2002 decision that one of the REASONS they allowed it to stand was they are entitled to "work where they want" "live where they want" with no supervison.

Therefore this ruling is illegal.

Posted by: rodsmithi | Jan 6, 2014 5:02:24 PM

I think it's worth keeping in mind that it's his conviction that's the real bar, not his requirement to register. And I do think the court at least got the framework law correct - no absolute bar, but it's still a significant factor (although, I suspect, in practice, they'll make it a dispositive factor). His stated circumstances help, but might not help enough. It didn't sound like they claimed he didn't know it was there and downloaded it accidentally (in which case he might not technically be guilty and whether or not he entered an Alford Plea would be relevant). It also should matter, in my view, whether his case involved a video with a 16 year old or a 12 year old. All these are factors that a case-by-case review could decide. However, one really shouldn't have to go all the way through law school to get that decision. There should be some kind of judgment before he even applies, imo.

As for whether he would do well working for clients who have sex offenses. I can see the court having legitimate concerns here. If he's an addict who has potential for relapse, I don't think they want him working closely with other addicts. Imagine if he has to defend someone charged with child pornography. Then he would have to look at the pictures in order to prepare his defense, which could certainly be problematic.

Posted by: Erik M | Jan 7, 2014 8:13:08 AM

rodsmith, the applicant was rejected because of his conviction which is perfectly acceptable

the registry has nothing to do with it - even without the sex offender registry the applicant would have been rejected.

Posted by: erika | Jan 7, 2014 8:51:51 AM

Should the gentleman be permitted to take the Bar and practice law if he passess and wants to - Absolutely! This is America and not amerika.

But why should he lower himself by becoming a lawyer?

Posted by: albeed | Jan 7, 2014 11:14:22 AM

Erika I take it you missed this part of the article!

" and a move by the state Office of Bar Admissions to create and endorse a blanket rule that would have kept all registered sex offenders from gaining access to the bar."

So sounds to me like they certainly did base their refusal on his registry status!

What does someone need to hit you with a 2x4?

Posted by: rodsmithi | Jan 8, 2014 1:50:20 AM

So this is the "Guy" who occasionally posts here? Interesting.

I agree with the views of federalist, tmm and Jonathan Edelstein. I oppose blanket rules covering a large swath of people. (This is one of the main reasons I oppose a blanket rule taking the DP off the table in all instances).

If the licensing of lawyers is a proper state function (libertarians think it is not), then moral qualifications as well as technical competence should be in the mix, but each applicant should be assessed on his individual qualifications, not on the basis of a presumption.

It is in Guy's favor that he has come clean about this, but not so much in his favor that he continues to do it.

Posted by: Bill Otis | Jan 8, 2014 5:46:03 AM

Supreme Court rules that Guy can NOT take the state bar, but does not rule in favor of a blanket endorsement.

http://reason.com/blog/2014/01/06/sex-offenders-can-be-prohibited-from-bar

Posted by: Eric Knight | Jan 9, 2014 2:07:03 PM

will bill I guess they forgot their so-called "moral qualifications" after they moved from the bar to the political side. Since a big part of the useless govt fucktards seem to start out as lawyers. So until they start using it in their political side they have no right to tell anyone else to do it.

Posted by: rodsmith | Jan 9, 2014 11:16:26 PM

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