Sanction Increased For “Sexually-Based Misconduct”
Reciprocal discipline of a two-year suspension has been imposed by the New York Appellate Division f or the Third Judicial Department in a matter where New Jersey had imposed a three-month suspension on a revoked attorney
In 2013, respondent’s license to practice law in New Jersey was revoked owing to his failure to pay the required fees to the New Jersey Lawyers’ Fund for Client Protection for seven consecutive years (see NJ Court Rule 1:28-2 [c]). Subsequently, by May 2017 order, the Supreme Court of New Jersey suspended respondent for a three-month term based upon his 2010 conviction of the offense of lewdness (see NJSA 2C:14-4 [a]) and lengthy record of inappropriate sexual conduct (Matter of Sicklinger, 228 NJ 525, 159 A3d 371 [2017]). According to that order, respondent’s suspension was set to take effect upon his application for readmission from his 2013 revocation, which readmission would be conditioned on respondent submitting proof of his sobriety and fitness to practice law as attested to by a mental health professional.
As to sanction
The sexually-based misconduct underlying respondent’s conviction in New Jersey warrants a significant sanction as it “diminishes the public’s trust in the legal profession and ‘evidenc[es] a disregard of the high standards imposed upon members of the bar'” (Matter of Walter, 160 AD3d 1335, 1337 [2018], quoting Matter of Rothschild, 127 AD3d 178, 180 [2015]; see also Matter of Swedick, 81 AD3d at 1033-1034; Matter of McCallig, 79 AD3d at 1360). In aggravation of the misconduct resulting in his conviction, we note that respondent’s actions were not isolated to a single incident, as the decision of the Disciplinary Review Board in New Jersey outlines a pattern of inappropriate sexual conduct detailing four separate arrests stemming from respondent masturbating in public (see generally Matter of Walter, 160 AD3d at 1336; see also ABA Standards for Imposing Lawyer Sanctions § 9.22 [c]). Further aggravating respondent’s misconduct is his failure to advise this Court and AGC of his New Jersey suspension (see Matter of Graham, 164 AD3d 1520, 1521 n [2018]; Rules for Attorney Disciplinary Matters [22 NYCRR] § 1240.13 [d]) and his persistent registration delinquency spanning the last four registration periods.
Our post on the New Jersey proceedings is linked here.
Here, we determine to assess the sanction for respondent’s misconduct solely on the 2010 Bradley Beach lewdness conviction for masturbating in a Quick Chek parking lot. We considered the remaining three matters as aggravating factors, as follows.
The Lake Como lewdness conviction occurred in 2015, long after respondent’s New Jersey license to practice law already had been revoked. The Point Pleasant Beach and Belmar Borouqh incidents did not constitute criminal convictions. Because these matters involved violations of local ordinances, they cannot serve as a basis for imposing a sanction in a motion for final discipline.
We consider, however, in aggravation, that respondent has engaged in a pattern of inappropriate sexual behavior, as demonstrated by the Lake Como, Point Pleasant Beach, and Belmar Borouqh matters…
The four incidents here span a period of eight years, the last one occurring as recently as last summer. For respondent’s years-long pattern of inappropriate sexual conduct, and based on respondent’s seeming indifference to the seriousness of his actions, we determine that a three-month suspension is warranted.
Finally, we are mindful that the sanction imposed on respondent will not become effective unless and until he is reinstated to practice law in New Jersey. Nevertheless, should respondent ever seek reinstatement, we require him to provide proof of both sobriety and fitness to practice law, as attested by a mental health professional approved by the OAE.
Member Gallipoli voted for a one-year suspension with the above conditions. Member Singer voted to censure respondent, with the above conditions. Vice-Chair Baugh and Member Zmirich did not participate.
(Mike Frisch)