December 30th, 2008

Sex Offender Keeps Law License (Updated)

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.

Steven J. Lever was caught in a sting operation when “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 2005 he plead guilty to to the misdemeanor crime of attempted criminal sex act in the third degree.

The matter was first heard before a referee, who recommended just a six-month suspension, taking into account the mitigating circumstances that Lever had admitted to his conduct, cooperated with police, and that there was no actual contact with a minor, among other things.

The case proceeded to a six-member Hearing Panel that didn’t appreciate the light nature of the referees six-month recommendation. The panel took the view that “preying upon … minors for sexual gratification by means of the internet should be dealt with more harshly.” A majority of the Panel therefore recommended that Lever be suspended for three years, or until the end of his criminal term of probation, whichever was longer, and that any reinstatement be conditioned upon a psychiatric evaluation. A sole dissenter on the Panel believed that a one-year suspension was appropriate.

From there the matter went to the Appellate Division, which resulted in today’s divided opinion. In a per curiam majority by Justices Gonzalez, Nardelli, and McGuire, the court noted that “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.” They went on to write that “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 attorneys who engage in such immoral and criminal behavior to continue practicing law.”

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 majority went on to give great credit to mitigating factors in arguing against disbarment. They wrote:

Further, even if we agreed with the dissent that the offense, by itself, would ordinarily require disbarment, the substantial and credible mitigation evidence offered by respondent in this case requires us to consider a lesser sanction. From the beginning, respondent has admitted responsibility for his actions and has taken “uncommon” efforts to rehabilitate himself. After his arrest, he voluntarily entered sex offender treatment and all evidence in the record supports the therapist’s opinions that such therapy appears to be working and that the likelihood of respondent repeating the misconduct was “low.” Further, respondent cooperated with the criminal investigation and with Committee staff in their investigations, and he has no prior disciplinary record.

Justice James Catterson, writing in dissent and joined by Justice Saxe, called the act of dissenting in a disciplinary case an “unusual step” and urged disbarment, writing “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.”

Justice Catterson went on to explain his reasoning as follows:

[Lever’s] counsel characterizes [his] conduct in a three month campaign of seducing a girl that he believed to be thirteen years old as a “disturbing social problem.” This attempt at minimizing the acute danger of sexual predators should be summarily rejected. I recognize that New York attorneys convicted of various crimes are routinely suspended and ultimately return to practice law after a suitable period of time. Of course, there is a very broad spectrum of crime from the venal to the mortal and the discipline imposed upon attorneys must necessarily reflect that diversity.

However … we are charged with the duty of protecting both the courts and the public from unfit attorneys, and even attorney discipline must have some absolutes; some event horizon that dictates disbarment. Generally, conversion of client funds has epitomized that litmus test. I believe that a convicted and registered sex offender merits disbarment, even when the crime, as in the instant case, is inchoate.

Justice Catterson’s point at the end, that taking client money is the most common reason for disbarment, is well taken. Readers are left to decide on their own if sexual predation is worse than the taking of money. I, for one, think it’s a slam dunk, and hope the matter is appealed to the Court of Appeals so that this attorney is disbarred.

Update, 12/31/08: The New York Law Journal has published a long article regarding this rare split decision on a disciplinary matter.

Links to this post:

a tale of two lawyers
the internet tells two stories this morning. first, the maryland daily record tells the story of an applicant to the maryland bar who has been practicing law, apparently without incident, in new york for 25 years.

posted by @ January 05, 2009 4:05 PM

blawg review # 193
welcome…. bienvenue…willkommen … london calling…. i have the pleasure of opening the batting for the series of 2009 blawg reviews. i did my first blawg review exactly a year ago. i cannot quite believe that a year has gone by so rapidly

posted by charonqc @ January 04, 2009 4:38 PM

lawyers who sought sex with 13-year-old suspended
what gets a lawyer disbarred in new york? apparently not trying to “engage in an oral sexual act” with a 13-year-old. in 2004 barrister steven j. lever chatted online and had several phone calls with a cop pretending to be a severely

posted by @ December 31, 2008 1:17 PM

daily roundup 2008-12-31
due to work and family commitments today and tomorrow, this may be my final post at overlawyered. walter olson will be returning shortly. eight los angeles police officers may face suit from an unwilling jamie lynn spears decoy.

posted by SSFC @ December 31, 2008 8:25 AM

“Sex Offender Keeps Law License”
“Sex Offender Keeps Law License”: At his “New York Personal Injury Law Blog” today, Eric Turkewitz has a post that begins, “In a decision released today, a sharply divided panel of the Appellate Division, First Department determined
posted by @ December 30, 2008 4:10 PM


October 3rd, 2007

New York’s Disgraced Ex-Chief Judge Wachtler Readmitted to Bar

Sol Wachtler, formerly the Chief Judge of New York’s highest court, has been readmitted to the New York bar. Wachtler, who had served in the Court of Appeals for 20 years, had plead guilty to threatening and harassing his former lover 14 years ago. I had covered his motion to be re-admitted on February 21st (Sol Wachtler Getting Law License Back?).

Amongst other transgressions that involved stalking and hiring a private detective and anonymous obscene messages so that she would turn to him for help, he also had threatened to kidnap her teenage daughter.

He served a 13 month jail sentence and wrote a book about his experiences in which he blamed an undiagnosed mental illness and prescription drugs for his problems.

In a a biography of Wachtler (King of the Mountain) by Albany Times Union editor John Caher, he writes of the former Chief Judge:

“Wachtler struck down the ‘marital exemption’ to rape. Prior to his court’s decision, there was an exemption in the rape statute that essentially allowed a man to rape his wife, even a wife with whom he was estranged, with absolute impunity,” Caher says.

“Wachtler declared the law unconstitutional and initiated a reform. Other Wachtler decisions broadened the human rights law to prohibit discrimination against obese people and provided women with a far stronger sword against gender bias. He wrote a passionate dissent when his court found nothing wrong with a prison guard openly displaying his affinity for the KKK. Long before it was socially acceptable to tolerate homosexuality, Wachtler publicly and gratefully accepted the endorsement of a gay rights group.”

Coverage can be found here:

(Eric Turkewitz is a
personal injury attorney in New York.)


September 19th, 2007

Can Disbarred Lerach Assist Other Attorneys?

At Overlawyered, Ted Frank writes regarding the sweet plea deal of famed and now disgraced class action lawyer William Lerach:

[N]othing stops plaintiffs’ firms from offering small fortunes to Lerach to act as a “non-legal consultant.”

This is not accurate. Assuming that Lerach is disbarred for pleading to a felony, any attorney that attempts to employ him, or accept legal advice from him, may themselves run in to trouble. An ethics opinion by the New York City Bar concludes:

It is clearly improper for a lawyer or law firm to employ a disbarred or suspended attorney in any capacity related to the practice of law. What acts constitute the unauthorized practice of law is a question of law for the Appellate Division.

Other states may differ, but it would seem that in New York both Lerach and anyone who tried to employ him in some type of capacity related to the practice of law would find themselves at great risk for additional troubles. I have to assume that if Lerach gives guidance or legal consulting advice to another attorney, that most if not all other states would find that to be the unauthorized practice of law.

And I don’t think that simply calling himself a “non-legal consultant” in his area of specialty, as Frank suggests, would hold any water with a court. Because if it walks like a duck and quacks like a duck…

[A Washington Post article on the plea deal is here]

(Eric Turkewitz is a personal injury attorney in New York)


March 13th, 2007

Which New York Felons Can Practice Law?

New York Sets a High Bar for Convicted Felon, read the headline in a WSJ Law Blog posting last week by Peter Lattman. It centers on the 12-year campaign by a twice-convicted felon to practice law in New York after a small matter of attempted murder. He has been denied admission nine times. The posting received dozens of comments.

Now here is the interesting part, not noted in the column or the comments. If this felon is not allowed to practice, what are the ramifications for former Chief Judge Sol Wachtler, who had been convicted and served time for blackmail and extortion? He was recently in the papers for having received preliminary approval for getting his license back (Sol Wachtler Getting Law License Back?).


February 21st, 2007

Sol Wachtler Getting Law License Back?

Former New York Chief Judge Sol Wachtler has moved closer to reclaiming his lost law license. From my local paper, The Journal News, a recap of the sordid affair and conviction that led to his stunning fall:

Former chief judge wins step toward getting law license back

The former chief judge of New York state’s highest court who suffered a spectacular fall from grace after being arrested for stalking an ex-girlfriend has received preliminary approval to have his law license reinstated.

Sol Wachtler, who was disbarred after his 1993 conviction on federal charges including blackmail and extortion, has received approval from the state’s Appellate Division for a hearing before the Committee on Character and Fitness, a key step toward reinstatement that was denied to him on his first application in April 2003.

Wachtler, now 76 years old, made international headlines after FBI agents arrested him near his home on Long Island on Nov. 7, 1992. Wachtler ultimately admitted he sent threatening and sexually offensive letters to Joy Silverman, a Manhattan woman with whom he had carried on an extramarital affair, then tried to extort money in a scheme to win her back after their relationship soured.