Lawyer Spanks and Is Spanked In Return

The Virginia State Bar Disciplinary Board web page notes

On July 10, 2017, the Virginia State Bar Disciplinary Board revoked Jud Andrew Fischel’s license to practice law based on his affidavit consenting to the revocation. By tendering his consent to revocation at a time when allegations of misconduct are pending, Fischel acknowledges that the material facts upon which the allegations of misconduct are pending are true.

Fauquier Now reported on his crime

A well-known Warrenton lawyer got sentenced Monday afternoon to 60 days in jail for sexually assaulting two female clients in his law office last year.

With good behavior, Jud A. Fischel will serve half that time.

After a nearly four-hour hearing in Fauquier County Circuit Court, Mr. Fischel immediately began his sentence.

The 68-year-old former substitute judge pleaded guilty in January to two misdemeanor charges of sexual battery.

A misdemeanor sexual battery conviction carries a penalty of up to 12 months in jail and a $2,500 fine.

Judge David H. Beck sentenced Mr. Fischel to six months for each count, suspending all but 30 days per offense.

Mr. Fischel also will remain under the supervision of Fauquier’s Adult Court Services Office until that agency determines the disgraced attorney has received proper treatment.

He entered “Alford pleas” during the January hearing in circuit court. Under such a plea, the defendant asserts innocence but acknowledges enough evidence to support a conviction. 

By pleading guilty, he avoided two jury trials that had been scheduled for March. 

Mr. Fischel’s victims — whose identities the court has sealed — still could file civil lawsuits.

Both testified during Monday’s hearing. The assaults — one in June, the other in February 2016 — took place at the lawyer’s 24 Ashby St. office, according to the women.

A Fauquier grand jury on Aug. 1 indicted Mr. Fischel on the first misdemeanor charge of sexual battery. Another grand jury on Nov. 28 indicted him on a second count.

One of the women Mr. Fischel represented got convicted for a minor offense.

The defense attorney had told her that she received insufficient punishment and therefore should be spanked, the victim said.

“He spanked me very hard. . . on my behind,” she testified Monday. “When that happened, I freaked out . . . . I couldn’t believe this happened.”

The experience has had a disturbing and lasting effect on her, the 55-year-old woman said.

“I just think about it all the time. . . . I just cry every day.”

Mr. Fischel represented the other victim in an auto collision case.

The 58-year-old sobbed as she recalled the assault.

Mr. Fischel had walked behind her and grabbed her breasts, she said.

Traumatized by the attack, “I just lost myself,” the victim said. “I felt like I was a dog.”

That experience also has strained her relationship with her boyfriend.

Intimacy with her boyfriend sometimes can be emotionally trying for her, she suggested.

“It’s a big problem between us,” she told the judge.

Citing medical tests, evaluations and the testimony of Mr. Fischel’s wife, Georgia, long-time friends and a former employee, defense attorney Blair D. Howard argued that dementia helps explain his client’s actions.

Mrs. Fischel spoke of periodic “attacks” in the last couple of years, during which her husband experienced memory loss and trembling hands. Among other things, he repeatedly suffered severe migraine headaches, collapsed and went to the emergency room.

Mrs. Fischel feared her husband had been developing dementia, noting that he several times got lost on his way to their Warrenton home.

Mr. Fischel closed his law practice in July. 

During 18 months before he shut the business, it had been in disarray, partly because Mr. Fischel seemed befuddled, his former secretary Kathy Welch testified.

He misfiled documents and scheduled repeat meetings with clients to discuss the same topics, leaving them confused, Ms. Welch said.

Warrenton neurologist Larry L. Stevenson has treated Mr. Fischel since the 1990s.

Dr. Stevenson spoke of events over the years that caused Mr. Fischel to lose his memory and footing. 

Mr. Fischel several months ago began using a cane to steady himself.

Under questioning by Mr. Howard, the doctor acknowledged that the effects of the attacks could have impaired Mr. Fischel’s judgment and contributed to his actions. 

In his closing comments, Mr. Howard spoke at length of his client’s long and distinguished career as a lawyer, substitute judge and community volunteer.

“He involved himself in many things.”

Mr. Howard made no excuses for his client’s actions.

“His mind — his mental health was not good when these events occurred,” he said.

While Mr. Fischel pleaded guilty to two misdemeanor sexual battery charges, “this isn’t reckless driving or disorderly conduct,” Senior Assistant Commonwealth’s Attorney Charles Peters told the judge in his closing comments. “These are extremely serious misdemeanors.

“These are such a horrible violation of both a personal and professional trust.”

Moments before he got sentenced, Mr. Fischel said he “couldn’t apologize enough” to his victims.

The defendant said he “felt horrible” about his actions. “I’m ashamed. I’m humiliated. I’ve lost my self-respect.”

And though he didn’t challenge his victims’ accounts, Mr. Fischel said he had “no recall” of the assaults.

Judge Beck referred to the defendant’s “exemplary” career. But, because Mr. Fischel had violated an important trust between a lawyer and his clients, “it is appropriate there be some jail time.”

Mr. Fischel will complete his sentence at the Northwestern Regional Adult Detention Center in Winchester.

He and his wife intend to retire to New Mexico.

Maryland indefinitely suspended an attorney for similar misconduct in 1993

Catharine Sweitzer retained Mr. Goldsborough to seek recovery for injuries she received in 1978 when she was accidentally shot by a trespassing deer hunter. In connection with his representation, Goldsborough visited Sweitzer at her home. At one point during the visit, Goldsborough told Sweitzer she was a “bad girl,” pulled her over his knee, and lightly spanked her several times on her buttocks. A second incident occurred in Goldsborough’s Easton office when Sweitzer visited to tell Goldsborough she had become engaged to be married. Goldsborough became upset with Sweitzer because he believed her engagement might make a jury less sympathetic to her injuries, thereby affecting her lawsuit. Again calling her a “bad girl,” he pulled Ms. Sweitzer across his knee and, as before, spanked her lightly several times.

While investigating Sweitzer’s complaint, the Commission’s investigators learned of allegations that Goldsborough had behaved improperly toward at least one other female client, and had also repeatedly spanked a young woman who had been his personal secretary several years earlier. Ultimately, both of these women testified before the Commission’s Inquiry Panel and before Judge Simpson. The client, Peggy Porter, had retained Goldsborough in the summer of 1984 to represent her in a divorce proceeding. At a meeting in Goldsborough’s office in the fall of that year she became emotionally upset and, as she was leaving, Goldsborough put his arm around her and kissed her on the neck and cheek. She pulled back, said “I don’t think you should be doing this,” and left the office. Porter subsequently retained another attorney.

In January 1986, Sandy Schisler, then seventeen years old, applied to Goldsborough’s office for a job as a secretary. She was interviewed once and then called back by Goldsborough for a second interview which took place in Goldsborough’s office at which only she and Goldsborough were present. During this second interview, Goldsborough explained that he intended to teach Schisler to be a good secretary and would accomplish this by disciplining her with spankings. He demonstrated this by placing her over his knee and patting her on the buttocks. Schisler was offered a job and eventually became Goldsborough’s personal secretary.¹ Schisler testified that during her employment from January 1986 to November 1987, Goldsborough spanked her approximately once a week. By Schisler’s account, on “more than just a handful” of occasions Goldsborough required her to bare her buttocks for the spankings. She testified that these disciplinary measures were provoked by typing errors she made in Goldsborough’s documents and elementary mistakes that Goldsborough called “no brainers.” Schisler testified that she did not want to be spanked, but felt that Goldsborough was trying to teach her to be a good secretary. When asked if she believed she could lose her job if she did not submit to the spankings, Schisler testified that she thought so, “because I wouldn’t be learning, and I wouldn’t be trying to correct my mistakes.” In November 1987, Goldsborough’s wife heard of the spankings and suggested that Schisler leave her job. Mrs. Goldsborough referred Schisler to counseling, for which Mrs. Goldsborough paid. Schisler also received over three times her gross weekly salary in severance pay.

The Baltimore Sun covered the Maryland decision.

The District of Columbia imposed a reciprocal sanction of suspension of at least two years in the Goldsborough case and noted

The Board [on Professional Responsibility] found more difficult the question whether Goldsborough’s spanking and kissing of his clients and his spanking of his secretary violated the District’s disciplinary rules. In the Board’s view, the spanking and kissing did not, under District of Columbia law, constitute conduct that is “prejudicial to the administration of justice.”

…Under these circumstances, we are satisfied that reciprocal discipline can and should be imposed without our having to resolve some difficult questions raised in the Board’s comprehensive and scholarly opinion. Specifically, we decline, in the absence of the refinement of the issues, which would be provided by the adversarial process, to adopt any precedentially authoritative construction, as applied to the present context, of the phrase “prejudicial to the administration of justice,” see Rule 8.4(d) of the Rules of Professional Conduct, or of the provision in former DR 7-101(A)(3) that a lawyer shall not “[p]rejudice or damage his client during the course of the professional relationship.” We likewise need not decide whether, in a reciprocal discipline case in which the issue has been contested, the Board could permissibly invoke a disciplinary rule different from the one on which the court relied in the jurisdiction in which the initial discipline was administered. By defaulting, Goldsborough has, at least on these facts, admitted the existence of liability, and has thus conceded that the imposition of reciprocal discipline is warranted.

And footnoted

The Board was apparently of the opinion that Goldsborough’s regular spanking of his young secretary over a substantial period of time did not violate any District of Columbia disciplinary rule then applicable to Goldsborough. Cf. Goldsborough I, 624 A.2d at 511 (misconduct was “relevant to law practice”); In re Adams, 428 N.E.2d 786, 787 (Ind.1981) (per curiam) (kissing female client and raising her blouse held to be conduct indicating moral turpitude and lack of fitness to practice law, but lenient negotiated discipline imposed).

In the present case, the Board pointed out that Goldsborough’s misconduct predated the adoption, effective in 1991, of Rule 9.1 of our Rules of Professional Conduct, which provides in pertinent part that a lawyer “shall not discriminate against any individual in conditions of employment because of that individual’s … sex.” See Meritor Savings Bank v. Vinson, 477 U.S. 57, 61-67, 106 S. Ct. 2399, 2402-06, 91 L. Ed. 2d 49 (1986) (explicating relationship between sexual harassment and discrimination in employment).

I well remember that debate and was amazed that the then-BPR rose to the attorney’s defense.

But I was regularly amazed back in those days.

In this case, it took D.C. eight years to disclose an attorney convicted and imprisoned for sexually assaulting a vulnerable client notwithstanding his Georgia disbarment

We turn now to the question whether Mr. Rehberger’s misdemeanor convictions of sexual battery and simple battery involved moral turpitude on the facts presented.   Mr. Rehberger argues that “[w]hat was done to [him] is a known political prank and fixed proceeding.”   The record disputes this characterization.   The Court of Appeals of Georgia described in graphic detail his sordid sexual contact with and abuse of a female client who sought his advice concerning divorce action taken by her husband.   See Rehberger II, 510 S.E.2d at 595-96.   Mr. Rehberger’s criminal conduct not only “offend[ed] the generally accepted moral code of mankind,” but it also was base, vile, and depraved, as well as “contrary to ․ good morals.”  In re Colson, supra, 412 A.2d at 1168.

In addition, Mr. Rehberger’s conduct toward his client was for his own personal gratification which “[exceeded] his ability to demonstrate a public respect and appreciation of existing societal morals and values.”  In re Wolff, 490 A.2d 1118, 1120 (D.C.1985) (alteration in original).   In the past, we have determined that an attorney’s misdemeanor sexual contact conviction relating to a minor involved a crime of moral turpitude on the facts.   See In re Bewig, 791 A.2d 908, 909 (D.C.2002).   We agree with the Board that our designation of misdemeanor sexual convictions as crimes of moral turpitude on the facts should not be limited to “particularly vulnerable classes of persons” such as children.   Indeed, respondent’s twenty-seven-year-old client and victim was quite vulnerable while being subjected to Mr. Rehberger’s forceful, unwelcome, sordid sexual conduct.   We also agree that the Board’s disposition would not foster inconsistent decisions for comparable conduct or otherwise be unwarranted.  D.C. Bar R. XI, § 9(g)(1).

The Rehberger case took so long (and was inherited by Betsy Herman after I departed) because the then-BPR improvidently granted him a hearing because the crime was a misdemeanor rather than impose reciprocal disbarment based on his (entirely legitimate) disbarment by the trial court who presided over the case. (Mike Frisch)