A Tale of Two Lawyers

The Internet tells two stories this morning. First, the Maryland Daily Record tells the story of an applicant to the Maryland bar who has been practicing law, apparently without incident, in New York for 25 years. This New York lawyer apparently wanted to relocate to Maryland and took and passed the Maryland bar. Six months before he passed the Maryland bar, this lawyer had received a DWI in Virginia. He did not disclose this fact during his character committee interview, which was less than two weeks after he had been released from a four day stint in jail for the DWI. After he passed the bar, he fessed up. From the context of the story, I’m assuming that he came clean without any concern that the arrest was going to be uncovered; he just belatedly decided to do the right thing.

The second is a blog post from the New York Personal Injury Law Blog about a New York lawyer caught in a sting operation when “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.” But a divided New York court decided the appropriate sentence for this man would only be three years.

In the Maryland case, I would have admitted the lawyer if I were on the Maryland Court of Appeals. It seems to me, this was not a Marion Jones or even an Andy Petitte situation where someone gets caught and suddenly claims remorse. Instead, it seems like this guy just plain did the wrong thing and then decided to do the right thing. Sure, he did not show, as Judge Lynne A. Battaglia pointed out writing for the majority, absolute candor. But while wrong can be black and white, it is still a matter of degree. How about admitting the guy – who apparently has been practicing law for a long time – and then suspending him for a year? Moreover, for me personally, I’d be more inclined to deny his application for the DWI. He did not put my wife and kids at risk by omitting something and then correcting his error. But he did by getting drunk and getting behind the wheel of a car.

On the other hand, the New York sex offender case is completely baffling to me. How in the name of Chris Hansen is this guy permitted to continue to practice law? The dissent sums up my view:

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.

I agree. I wish this guy all of the luck in getting his life back in order. If we are going to let people out of prison, there has to be a level of forgiveness even for a crime like this. But that does not mean the guy should be permitted to practice law. The majority and the dissent bemoaned the lack of clear direction in cases like this. Okay, agreed. So let’s make a rule. Sexual predators can’t practice law. Done.

Parenthetically, in Attorney Grievance Commn. of Maryland v. Childress, 364 Md 48 (2001), the Maryland Court of Appeals in virtually the same situation makes a similarly awful call, giving the lawyer an indefinite suspension for a period of one year. Two judges dissented from the opinion, Judge Raker and Judge Cathell, the two judges I least expected to agree with when they were on the bench. Writing for both, Judge Cathell wrote that the lawyer’s

[M]isconduct seriously undermined public confidence in the legal profession. The public is becoming increasingly aware that adults preying on children via the Internet is a grave social problem. Imposition of a sanction more significant than an indefinite suspension for a period of one year is needed to deter similar future conduct by this Respondent and to serve notice on the members of the Bar that this type of conduct by an officer of this Court will not be tolerated. With its lenient sanction, the majority equates the attempts of respondent to illegally sexually prey upon young children, with an attorney who was suspended for consensually spanking adult women (citation omitted). In other words, attempts to corrupt children are no more serious than spanking consenting adults and are no more serious than putting twenty-five cent slugs in parking meters. I would disbar him in a second.

In a footnote, the dissent addressed the “mitigating factor” in the New York case, that he did not actually complete the act he was conspiring and taking action towards committing.

I realize that there is no evidence that he was successful in his endeavor to have sexual relationships with children. The evidence is, nonetheless, clear that such relationships were intended by the respondent. The mere fact that he made no “kill” should not be considered as a mitigating factor. Even a lion, I am told, misses in four out of five hunts. Nonetheless, the lion remains a lion. [The lawyer] remains a sexual predator. With the majority’s action, a sexual predator who preys on young girls may, all too soon, again be a practicing.

Good writing and well said.

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  • Seems to me that this guy got caught in some kind of political turf war between the committee and the board and came out on the losing end. As a member of the Maryland bar, I must say that the Maryland decision is extremely unfortunate.

  • Ron Miller

    It is tough. And certainly there should be some penalty for the lack of candor. But this is essentially the Maryland bar version of the death penalty when, as a I said before, people are committing the underlying offense in this case that actually causes the risk of death and that passes without incident. This makes no sense to me.

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