In re Lever , 869 N.Y.S.2d 523 ( 2008 )

OPINION OF THE COURT

Per Curiam.

Respondent Steven J. Lever was admitted to the practice of law in the State of New York by the Second Judicial Department on September 20, 2000. At all times relevant to these proceedings, respondent maintained an office for the practice of law within the First Judicial Department.

In November 2006, respondent was served with a notice and statement of charges alleging that he engaged in illegal conduct that adversely reflected on his honesty, trustworthiness or fitness as a lawyer (see Code of Professional Conduct DR 1-102 [a] [3] [22 NYCRR 1200.3]), and further engaged in conduct that adversely reflected on his fitness as a lawyer (see DR 1-102 [a] [7]). Both charges arose from respondent’s September 27, 2005 guilty plea in Supreme Court, Suffolk County, to the crime of attempted criminal sex act in the third degree (Penal Law §§ 110.00, 130.40 [2]), a class A misdemeanor. Underlying the guilty plea was respondent’s admission that he engaged in sexually explicit conversations over an Internet chat room with an undercover police officer posing as a 13-year-old girl, followed by his attempted meeting with the presumed minor for purposes of sexual contact. Respondent filed an answer in this proceeding, admitting the charges and requesting a hearing on mitigation.

In February 2007, a hearing was held before a Referee. For the most part, the dissent has accurately stated the evidence adduced at the hearing, which will not be repeated herein. The only omission was the testimony of two character witnesses. The first character witness, the chair of the intellectual property practice at a law firm, testified that he first met respondent in 1998, when he was respondent’s supervising attorney at a New York City law firm. After his arrest, respondent called this attorney and told him what he had done. The witness testified that respondent had a reputation for honesty and integrity, notwithstanding the events leading to his conviction, and that respondent has a pending job offer with his current firm once these disciplinary proceedings are concluded.¹ A second character witness testified that she grew up with respondent, and was close friends with his sister. She further testified that she had kept in touch with respondent, who had a reputation for being a smart and honest person, even after his conviction.

At the conclusion of the hearing, the Referee recommended a six-month suspension in light of the considerable evidence in mitigation. Although recognizing the seriousness of respondent’s offense, the Referee was persuaded by the fact that there was no actual sexual contact with a minor, and that respondent “seems to have taken major steps to avoid any repetition of this abhorrent conduct.”

A Hearing Panel of six Committee members heard oral argument and issued a report. The Panel distinguished, as inapposite, the case law relied upon by the Referee, on the ground that such cases did not involve minors at all, nor did they include sexually explicit conversations, followed by an attempted meeting with a minor for the purpose of engaging in sexual conduct. Instead, the Panel took the view that “preying upon . . . minors for sexual gratification by means of the internet should be dealt with more harshly” than the six-month suspension proposed by the Referee. Accordingly, a majority of the Panel recommended that respondent be suspended for three years, or until the end of his criminal term of probation, whichever was longer, and that any reinstatement be conditioned upon a psychiatric evaluation. A sole dissenter on the Panel believed that a one-year suspension was appropriate.

The Committee now seeks an order confirming the Hearing Panel’s findings of fact and conclusions of law, and imposing the Panel majority’s recommended sanction of a suspension of three years, or until the conclusion of respondent’s probationary period, whichever is longer. The Committee notes the lack of New York precedent involving attorney discipline matters involving convictions for sexually explicit conversations with a minor over the Internet, followed by an attempted in-person meeting. Committee staff further notes that despite its initial recommendation of a six-month suspension, “upon reflection” it is persuaded that the three-year (or longer) suspension proposed by the Hearing Panel would send a strong message to both the bar and public that sexual misconduct involving minors will be met with a significant sanction.

Respondent has submitted a memorandum recommending an adoption of the Referee’s report, including the recommended six-month suspension. He argues that the Hearing Panel ignored the substantial evidence of mitigation in his case. Further, he points to two disciplinary cases from sister states involving attorneys convicted of crimes involving sexually explicit conversations with minors over the Internet that resulted in less severe sanctions than a three-year suspension (see In re Disciplinary Proceedings Against Engl, 283 Wis 2d 140, 698 NW2d 821 [2005] [public reprimand]; Attorney Grievance Commn. of Md. v Childress, 364 Md 48, 770 A2d 685 [2001] [indefinite suspension, with no right to apply for reinstatement for at least one year]). Finally, respondent cites New York disciplinary cases where lawyers serving probation in criminal cases have been allowed to continue practicing law (see e.g. Matter of Cutler, 227 AD2d 8 [1996]; Matter of Minkel, 221 AD2d 28 [1996]), although none of these cases involved sexual conduct involving minors.

In determining an appropriate sanction for respondent’s misconduct, we consider both the nature and severity of respondent’s criminal conduct, as well as any aggravating or mitigating circumstances. We are further guided by the principle that the purpose of 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 (Matter of Wong, 275 AD2d 1, 6 [2000]).

At the outset, we share three points of agreement with the dissent. First, respondent’s use of the Internet to prey on minors for purposes of sexual gratification is despicable and dangerous misconduct, that has brought shame to himself and to this state’s bar. Second, serious misconduct of this type necessarily requires a significant sanction that will convey to members of the bar and public that this Court will not permit attorneys who engage in such immoral and criminal behavior to continue practicing law. Finally, we agree that there are no New York disciplinary cases directly on point, which requires us to review the most analogous precedents from this and other jurisdictions.

The most factually analogous case cited by either party is In re Disciplinary Proceedings Against Engl (283 Wis 2d 140, 698 NW2d 821 [2005]). The facts in Engl are nearly identical to the instant matter, where a young lawyer had sexually explicit conversations over the Internet with a police detective posing as a 14-year-old girl, and then arranged a meeting with the alleged minor, leading to his arrest. The attorney pleaded guilty to a class D felony and was sentenced to four years’ probation, with conditions. Subsequently, the attorney stipulated with the Wisconsin disciplinary authorities that he had violated the disciplinary rules and that a public reprimand was the appropriate sanction. The stipulation specifically recited that a more severe sanction was not imposed due to the substantial evidence of mitigation, including a lack of prior disciplinary history, the attorney’s extreme stress caused by long work hours and the recent death of his mother, his cooperation with the criminal and disciplinary authorities, his actual remorse and a report from his therapist that he was unlikely to reoffend (283 Wis 2d at 142-143, 698 NW2d at 822-823).

Although we are convinced that the public reprimand in Engl, the equivalent of a public censure in New York (Matter of Maiorino, 301 AD2d 53, 56 [2002]), would be too lenient a sanction for the misconduct in this case, we agree with the Engl court’s implicit finding that disbarment is not the exclusive sanction for a single sexual offense involving solicitation of a minor, especially where significant mitigation exists (see also Disciplinary Counsel v Goldblatt, 118 Ohio St 3d 310, 888 NE2d 1091 [2008] [indefinite suspension imposed on attorney who solicited sexual encounter with underage girl, and downloaded images of nude children after conviction, where substantial mitigation exists]; Matter of Christie, 574 A2d 845 [Del 1990] [three-year suspension for providing alcohol, showing x-rated videotapes and masturbating in presence of teenage boys, where substantial mitigation shown]; see also Matter of Herman, 108 NJ 66, 527 A2d 868 [1987] [retroactive three-year suspension appropriate sanction for attorney who committed second-degree sexual assault, but who cooperated with authorities and voluntarily suspended his practice]).

Another case with many similarities is Attorney Grievance Commn. of Md. v Childress (364 Md 48, 770 A2d 685 [2001]), which involved a lawyer who engaged in sexual conversations with several young girls whom he believed were between 13 and 16 years of age via Internet chat rooms. The attorney in Childress convinced five underage girls to meet with him, but no sexual contact or conversations occurred during these meetings. The attorney was eventually arrested in a sting operation, and in a 4-2 decision, the Maryland Court of Appeals imposed an indefinite suspension, with no opportunity for reinstatement until after one year (364 Md at 64-67, 770 A2d at 694-697). The dissenters argued, as does the dissent here, that the nature of the sexual crime against minors demanded the ultimate sanction of disbarment (364 Md at 67-75, 770 A2d 697-701).

In our view, the sanction in Childress was again too lenient, especially given the multiple victims and pattern of misconduct involved in that case. However, we agree with the Maryland court’s willingness to at least examine the facts underlying the crimes, as well as the aggravating and mitigating circumstances, before deciding on an appropriate sanction. As was the case in Engl and in this case, the court in Childress found substantial mitigation, which included actual remorse and an expert psychiatric opinion that Childress posed an “insignificant risk” of similar behavior (364 Md at 66, 770 A2d at 696).

In urging disbarment as the only appropriate sanction in this case, the dissent relies on factually distinguishable cases which involved an attorney’s actual sexual contact with a minor. The distinction is significant. In Matter of Harlow (280 AD2d 870 [2001]), the Third Department disbarred an attorney who had engaged in sexual conversations with a minor over the Internet, and then, after arranging a meeting with the minor, had actual sexual contact with her. The attorney was convicted in Connecticut of a felony, and given a 10-year suspended sentence. The Connecticut disciplinary authorities suspended respondent for the same 10-year period, but in the New York serious crime proceeding, the court determined, without comment, that disbarment was required (id.).

While the dissent argues that “[t]he only substantive difference between Harlow and the instant case is that here, respondent was caught in a police sting,” in fact, the actual legal distinction between the two incidents is that the attorney in Harlow committed a crime involving actual sexual contact with a minor, while this respondent did not. Given that most states’ penal statutes treat sexual contact with a minor as a higher-grade crime than an attempt to commit such a crime (as would be the case in a sting operation), there is no basis for us to ignore that distinction in attorney disciplinary proceedings. Respondent’s sanction should be premised on what he was convicted of doing, not what he might have done if circumstances were different. Another stark difference in Harlow is that there was not a shred of discussion concerning any mitigation in that case, which suggests that the attorney in Harlow made no demonstration that he was deserving of any leniency. Here, in contrast, the evidence offered in mitigation was detailed and compelling.

The dissent further argues that Matter of Singer (290 AD2d 197 [2002]) mandates disbarment in this case. We respectfully disagree. In Singer, an attorney was convicted in Virginia state court of aggravated sexual battery, and was sentenced to a term of 20 years, with 16 years and eight months suspended, and lifetime probation. Although this Court rejected the Hearing Panel’s recommendation of a five-year suspension and disbarred respondent due to the “disturbing nature of the crime and the aggravating factors” (id. at 200), the dissent fails to mention the significant factual distinctions in that proceeding.

First, unlike this case, the respondent in Singer had actual sexual contact with a minor. Second, the misconduct in Singer was not isolated, as the respondent admitted similar conduct with five other minors over a 10-year period. Third, the penalty imposed in Singer was much longer than this respondent’s sentence in the Suffolk County criminal case, indicating that a more severe disciplinary sanction was appropriate. Fourth, unlike here, there was a “glaring absence” of character letters on that respondent’s behalf, and his own therapist had described him as having “lifelong pattern of maladaptive behavior” (id.). These significant differences, especially the admission of a pattern of criminal conduct involving minors over a long period, clearly indicates that the respondent in Singer posed a continuing risk to children that warranted the most severe sanction of disbarment. Thus, while disbarment may have been “mandate [d]” in Singer, the decision is not controlling here.²

The dissent also mistakenly disregards this Court’s decision in Matter of Maiorino (301 AD2d 53 [2002]) because it was a reciprocal discipline proceeding. In Maiorino, the respondent attorney was convicted in Connecticut of fourth-degree sexual assault for the improper touching of a minor, and was sentenced to a one-year suspended term and two years’ probation. As a result of the conviction, the New Jersey disciplinary authorities recommended that respondent be publicly reprimanded, noting the substantial mitigation present, including his youth and lack of maturity, his actual remorse, numerous letters attesting to his good character and an absence of any relationship between his misconduct and the practice of law.

While the dissent suggests that we simply adopted the New Jersey sanction in Maiorino without further scrutiny, in fact, we quoted the recommendation of the New Jersey Disciplinary Review Board’s discussion of mitigating circumstances at length in our decision, a clear sign that we independently assessed the severity of the sanction and found it appropriate under the circumstances (id. at 55-56). Although, it is true, that this Court in a reciprocal disciplinary proceeding will often defer to the sanction initially imposed by a foreign jurisdiction, our precedents are equally clear that we are not bound by that sanction, and may impose a more severe penalty if the circumstances warrant (Matter of Dranov, 26 AD3d 26, 30-31 [2006] [imposing more severe sanction in reciprocal disciplinary proceeding than that imposed by another state, which was “significantly too lenient”]). Thus, while the sanction in Maiorino was too light (even with the considerable mitigation), the decision nevertheless supports a sanction short of disbarment here.

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 (see Engl; Childress). 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.

Finally, while respondent’s grave misconduct unquestionably impugns the integrity of attorneys in general, and in this state in particular, our review of the record indicates that the Hearing Panel carefully considered this impact, and nevertheless concluded that a three-year or longer suspension carrying through the end of respondent’s probationary term was adequate to protect the public and deter future misconduct. We do not agree with the dissenter’s view that every registered sex offender merits disbarment. Attorney disciplinary proceedings must be determined on the specific facts and circumstances before us, and not on stigmatizing labels or speculative predictions about an attorney’s potential for rehabilitation or fitness to practice.

Nevertheless, in light of the inherent difficulty in predicting whether respondent’s rehabilitative efforts will ultimately render him fit to resume practicing law at the conclusion of his term of suspension, we take the additional precaution of conditioning any reinstatement of respondent on his submission to an independent psychiatric evaluation by a qualified expert in psychological sexual disorders, at respondent’s sole cost and expense (see Rules of App Div, 1st Dept [22 NYCRR] § 603.14 [e] [v]). Prior to filing any motion for reinstatement, respondent may communicate with the Committee regarding the selection of such an expert, but the designation of such qualified expert shall be made by the Court, in accordance with this Court’s analogous procedure for determining whether an attorney may be reinstated upon the termination of a disability (see Rules of App Div, 1st Dept [22 NYCRR] § 603.16 [e] [1] [court may take necessary action to determine whether attorney’s disability has been removed, “including a direction of an examination of the attorney by such qualified experts as this court shall designate”]).

Accordingly, the Committee’s motion to confirm the Hearing Panel’s findings of fact and conclusions of law, and the recommended sanction, should be granted, and respondent suspended, effective immediately, for a period of three years, or until the expiration of his criminal term of probation, whichever is longer, with reinstatement being conditioned on an independent psychiatric evaluation by a qualified expert.

1 . After his arrest in 2004, respondent’s employment was terminated by his law firm. He remained unemployed until January 2006, when he began temporary employment on a contract basis doing document review, corporate law firm litigation support and other projects.

2 . Nor do we find dispositive recent cases from other jurisdictions which have imposed disbarment for sexual crimes involving minors. In each of these cases, the conduct involved was distinctly more egregious, or involved multiple crimes or victims (see e.g. In re Disciplinary Proceeding Against Day, 162 Wash 2d 527, 173 P3d 915 [2007] [attorney convicted of first-degree child molestation of 11 year old and sentenced to 60 months to life in prison disbarred]; In re Domm, 965 So 2d 380 [La 2007] [attorney with extensive disciplinary history who failed to answer charges disbarred for molestation of nine-year-old girl, despite nonprosecution of offense]; Iowa Sup. Ct. Attorney Disciplinary Bd. v Blazek, 739 NW2d 67 [Iowa 2007] [disbarment ordered based on convictions for multiple sex crimes, plus prior sex crime conviction]; In re Aguillard, 958 So 2d 671 [La 2007] [disbarment ordered where attorney convicted of two felony sex crimes involving minors, including one involving sexual contact]; but see In re Wright, 949 A2d 583 [DC 2008] [disbarment where attorney sent sexually graphic pictures to person believed to be 15 years old, but no apparent sexual contact]).