Eric Turkewitz at New York Personal Injury Law Blog answers the age old question, just how low must one go before a lawyer loses his ticket.
In a decision released today, a sharply divided panel of the Appellate Division, First Department determined that an admitted sex offender will keep his New York law license. A majority of three justices suspended the license of the admitted offender for three years. Two dissenters insisted he should have been disbarred. The case is Matter of Lever.
While others debate the hot button issue of SORA, when the miscreant happens to hold a law license, the courts suddenly get a bit mushy about the whole problem.
It seems that Steven J Lever likes little girls. As in 13 year old girls.
“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.” The then 30-year old patent lawyer, formerly at Kirkland and Ellis, had logged on to a chat room targeting older men and younger women. In six separate conversations over a period of three months he engaged in discussions with “significant sexual content” and then arranged to meet the girl at the Ronkonkoma train station in Suffolk County for the purpose of oral sex.
In most posts about people who engaged in conduct like this, we would be considering the propriety of his return to society after a reasonable prison stay, and the issue would be whether he is entitled to return to the community without others burning his effigy on his front lawn. Not here.
The only question before the Appellate Division, First Department, is whether he gets to keep his license, and the answer of the majority is . . . you betcha.
But the majority voted not to disbar since they saw a distinction between an attempt to have sex with the minor and actually doing it. The court wrote:Given that most State’s penal statutes treat sexual contact with a minor as a higher-grade crime than an attempt to commit such a crime (as would be the case in a sting operation), there is no basis for us to ignore that distinction in attorney disciplinary proceedings. Respondent’s sanction should be premised on what he was convicted of doing, not what he might have done if circumstances were different.
The distinction is fine, and fully appropriate in determining the extent of penal sanction. But admission to the bar, the ability to practice law, is not an aspect of sanction, but a privilege. One of the foundational aspects of admission to the bar is to be of good moral character. Lever isn’t. Not even close.
Per the New York Law Journal, dissenting Justice James Catterson wrote, “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 really don’t think this requires a lot more explanation than this. The bar isn’t a refuge for sex offenders, and the practice of law is not a right.
When one assumes the responsibility of being a lawyer, one undertakes the responsibility of trustworthiness above and beyond others. We aren’t close to being as trustworthy as we should (right Marc Dreier?) and should put our effort into being worthy of the license we hold, not trying to get 13 year old girls to engage in sex. Lever’s conduct was sick, but the Appellate Division’s decision was simply wrong and disgraceful.
So we now have our answer. Lawyers will be summarily disbarred for messing with escrow funds, but 13 year old girls, not so much. It’s good to know where the line of moral turpitude is located, just in case some lawyer with an urge to sexually molest young women needs to know.
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I agree, as I must, that practicing law is considered by the bar and statutory law as a privilege rather than a right, but I disagree with the premise that this is as it should be. Those in need of legal services have a natural right to hire whom they will to represent them, and would-be providers of legal services have a natural right to make a living in the way that they choose. In general, I am skeptical of the idea that “moral turpitude” should disqualify one from the practice of law.
That said, I appreciate with you the irony of the situation. I have a client who is now serving a ten-year sentence in federal prison because of an internet conversation he had with an undercover officer representing herself to be a 15 1/2 year old female (i.e., 6 months shy of the age of consent in Indiana). If in doing so he hadn’t gotten himself tangled up under federal jurisdiction and instead had been tried and convicted for the same crime in state court, he likely would have served just two years in state prison, and even that might have gotten suspended since he had no prior criminal record.
I wonder if the majority simply has misgivings about sting operations, and views soliciting an undercover officer posing as a 13-year-old as morally different somehow than soliciting an actual 13-year-old. I rather doubt that if the guy had been caught on his way to meet a real 13-year-old the outcome would be the same. Like the dissent, I find that distinction unpersuasive.
That’s absolutely idiotic. Put someone into a position of public monopolistic trust, but have no demand or expectation of ethics, integrity or trustworthiness? You scare me.
Misgivings about a sting? Not that crew. I smell politics, but I can’t quite put my finger on it. It’s not at all clear.
There are two different questions. The first one is: do I think that the behavior he engaged in should be a crime? And my answer to that is no. But it is a crime and that fact can’t be overlooked. Once you agree to play by a certain set of rules, those rules need to be implemented consistently. I simply find it unfathomable how the court could not take his crime seriously; its position manifests a disrespect for the law itself. If I had been one of the judges I honestly would have felt sorry for this guy, but I would have felt it my duty to respect the will of the people and the conscious of the legal profession and vote to disbar him.
You almost seem to understand, by your reference to “monopolistic,” that the monopoly of legal services by the profession is precisely what I have a problem with. For most people, the whole idea of “monopoly” has negative connotations, as it should. Before you dismiss me as an idiot, consider that Milton Friedman, Nobel Prize winner in economics, argued cogently against licensure requirements for the medical profession, where people’s actual lives are at stake. I recommend that you broaden your horizons by reading some Lysander Spooner, who wrote a treatise titled No Treason: The Constitution of No Authority. Now, someone holding Spooner’s views presumably couldn’t obtain a law license in this day and age, given the prerequisite for bar admission to swear an oath to uphold the Constitution. Now, that’s unfortunate and wrong, given that Spooner’s views on the primacy of natural law are very close to those of Aquinas, who held that a bad law is no law at all. Generally, I don’t think lawyers should be required to respect man-made laws any more than those laws deserve, and any more than other citizens.
Don’t get me wrong. I’m no fan of people who have obscene conversations online with people representing themselves to be minors. But I think we need a very, very good reason to interfere with people’s natural rights to make a living. The connection between sexual perversion and inability to make legal arguments and give legal advice is not obvious. If someone commits a genuine crime, they should pay for it just as everyone else does, but it doesn’t follow that their ability to make a living after they get out of jail should be stepped on. I think adultery is morally despicable. Are we ready to disbar all attorneys and judges who commit adultery?
This all may sound just too radical for you, but sometimes radical is right.
I understood your ideas, and it was indeed radical. But I don’t think you an idiot, but the notion that attorneys should be unchecked. Very free market. Very radical. But as long as we have a license, then it has to mean things.
Edit: Sorry, kiddo, but you don’t get to post links to yourself here, particularly under cover of anonymity. However, I’m taking the liberty of including your “take”:
This shows a total lack of distinction between criminal liability and the privilege of holding a position of trust. This may be subtle, but comprehending nuanced differences is one of the defining characteristics of good lawyers.
My take FWIW is the outcome of such cases depend on where you live. If he lived in Iowa he would have been disbarred.
And more. What shocks me most about this decision is that Jim McQuire voted against disbarment. That’s what leads me to believe that there’s a level to this that’s under the surface. Even in Manhattan, soliciting sex from a 13 year old should be enough to pull a ticket, (and enjoy a short vacation on the rock) and yet now we have precedent.
Entrapment? Imagine that. The folks that designed the internet wanted it to be completely open so their could be free exchange of information and ideas. Anyone could watch what they were doing (including the police and their contract monitors).
I wasn’t going to touch the entrapment part. As if the evil police forced him to solicit sex from a child.
“But I think we need a very, very good reason to interfere with people’s natural rights to make a living.”
Disbarment would do nothing to interfere with his natural right to make a living. It would prevent him from earning a living as a lawyer while he is disbarred, but there is no natural right to be a licensed lawyer. In fact, the major reason I personally support disbarment not because I think the crime is heinous; I don’t think it should be a crime at all. But society thinks it should be a crime and all other people who commit this crime go on the sex offender list and have trouble finding any job at all, let alone a professional paying job. Why should lawyers not suffer the same economic punishment other sex offenders do? Indeed, for me, this decision is yet another example of how the legal profession sees itself as immune for the ordinary consequences of its behavior. It’s filthy and disgusting.
“But as long as we have a license, then it has to mean things.”
And, as we both know, merely graduating from law school and passing a bar exam (the most significant obstacles to obtaining a law license) don’t mean much at all. Pretty much everything we need to know to practice law competently we learn after law school. How much better that time in law school could have been spent by actually “practicing” law instead; hopefully under the tutelage or mentorship of an experienced practitioner, and/or by starting off with very simple cases.
As the mom of a 13 year old daughter that looks like she is 19 years old, I am really angry about this decision. A young child must be harmed before this merits the loss of a law license?? No wonder our character and fitness requirements for our profession are scorned by most! He should be disbarred-
sometimes I am ashamed to be a lawyer!
ps – is is not clear to me, did they at least suspend him???
The good news is that he was suspended, to the extent that’s good news at all.
If Avvo Leads, Then It Has to do Far Better
Just as there remains a large swathe (overly large in some eyes) of the blawgosphere dedicated to lawyers servicing other lawyers’ needs to “package” and market their online personas and make the “best use” of the internet to obtain business, there is a concomitant duty to be responsible and honest when doing so.
If Avvo Leads, Then It Has to do Far Better
Just as there remains a large swathe (overly large in some eyes) of the blawgosphere dedicated to lawyers servicing other lawyers’ needs to “package” and market their online personas and make the “best use” of “social media” on the internet to obtain business, there is a concomitant duty to be responsible and honest when doing so.