No Disbarment For Child Porn Conviction

A criminal conviction drew a three-year suspension by the New York Appellate Division for the First Judicial Department

In the Superior Court of New Jersey, respondent pleaded guilty to endangering the welfare of a child (possession of child sexual exploitation/abuse material, 100 or more items – third degree), in violation of New Jersey Statutes Annotated § 2C:244b(5)(b)(iii), and was sentenced to two years’ probation. On a previous motion by the Attorney Grievance Committee (AGC), we found that the evidence did not establish commission of a felony resulting in automatic disbarment, but that respondent had been convicted of a serious crime (Matter of Jimenez, 212 AD3d 72 [1st Dept 2023]). We ordered that a hearing be held before a referee and, in the interim, that respondent be suspended from the practice of law (id. at 76).

Subsequently, a hearing was conducted via Microsoft Teams on November 13, 2023. Respondent presented evidence and testimony on his own behalf. On August 5, 2024, the Referee issued a report. The Referee recommended that respondent be suspended from the practice of law for three years, nunc pro tunc to his interim suspension on January 9, 2023, and that respondent may not be reinstated without passing an independent psychosexual examination. This examination would be performed by a medical doctor specializing in psychosexual conditions, who would be selected by the AGC, and paid for by respondent. The AGC now moves to confirm the 2 report and recommendation (see Rules of App Div [22 NYCRR] § 603.8-a [t] [4]; Rules for Atty Disciplinary Matters [22 NYCRR] § 1240.8 [b] [1]).

The Referee found that respondent had pleaded guilty to possessing 100 or more items of “child pornography,” at least some of which depicted children engaged in sexual intercourse, and that he knew it was illegal to possess those materials. The Referee found this crime to be reprehensible.

The Referee, however, did not find the record to establish that any of the images depicted a child under the age of 16 so as to warrant automatic disbarment (see Jimenez, 212 AD3d at 75). Respondent had no criminal or disciplinary history other than the single arrest and conviction, and had character letters submitted on his behalf that the Referee described as “impressive.” He had completed his two-year term of probation in New Jersey and his one-year suspension from practice before certain federal agencies. The Referee found no evidence that respondent had ever distributed child pornography or attempted any in-person sexual contact with a child, both of which respondent denied in his testimony. The Referee also found that respondent’s offense did not involve representation of a client or the practice of law, and did not raise questions regarding his honesty or his fitness to practice law.

The Referee further found that respondent offered significant mitigating evidence. Respondent acknowledged full responsibility for his conduct, which he understood was not a victimless crime. He recognized the harm he had inflicted on children, whose sexual exploitation he had viewed, and that he had betrayed and embarrassed his wife. He showed remorse for these actions, which his treating psychologist believed to be genuine. The Referee found that respondent appeared to be sincere.

(Mike Frisch)