Respondent was admitted to the practice of law in the State of New York by the Second Judicial Department. At all times relevant to these proceedings, respondent maintained an office for the practice of law within the First Judicial Department.
A New York Criminal attorney said 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, and further engaged in conduct that adversely reflected on his fitness as a lawyer. Both charges arose from respondent’s guilty plea in Supreme Court, Suffolk County, to the crime of attempted criminal sex act in the third degree, 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.
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 criminal 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. 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.”
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. Finally, respondent cites New York disciplinary cases where lawyers serving probation in criminal cases have been allowed to continue practicing law, 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.
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 criminal attorneys who engage in such immoral and criminal behavior to continue practicing law. Finally, the Court agreed 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.
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. 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.
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.
Lawyers should serve as a good example in the community. Did you encounter a lawyer who abused others sexually? Don’t hesitate to contact us here in Stephen Bilkis and Associates. We have our New York Criminal attorneys who will draft the complaint of the victims against said lawyer. For other sexually related cases, contact our New York Sex Crimes lawyers.