In Re Witherspoon

3 A.3d 496, 203 N.J. 343, 2010 N.J. LEXIS 704
CourtSupreme Court of New Jersey
DecidedJuly 29, 2010
DocketD-157 September Term 2008
StatusPublished
Cited by5 cases

This text of 3 A.3d 496 (In Re Witherspoon) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Witherspoon, 3 A.3d 496, 203 N.J. 343, 2010 N.J. LEXIS 704 (N.J. 2010).

Opinions

Justice HOENS

delivered the opinion of the Court.

This matter, which comes before the Court on a stipulated factual record, raises questions concerning the appropriate level of discipline to be imposed on a member of the bar who has used his license to practice law as a means to seek sexual favors from some of his clients. As offensive as that behavior is, as with all matters [345]*345of disciplino, it can only be addressed by considering it in accordance with the specific Rules of Professional Conduct (RPCs) that the attorney has violated and can only be appropriately punished in accordance with longstanding principles that form the existing and accepted hierarchy of our attorney disciplinary system. Applying those principles to the record before us, we reject as inadequate the disciplinary sanction of a three-month suspension recommended by the Disciplinary Review Board. For the reasons that follow, we instead impose upon respondent the sanction of suspension from the practice of law for the period of one year.

I.

Although this disciplinary matter arises in the context of a three-count attorney ethics complaint, the proceedings have focused only on the count involving sexual improprieties. For the sake of completeness, however, we recite all of the counts prior to discussing and evaluating the questions that arise from the stipulated record of respondent’s sexually inappropriate behavior.

The charges included in the three-count complaint can be summarized briefly. Count One charged respondent David Witherspoon with sexual harassment, sexual discrimination and conflicts of interest, in violation of RPC 1.7(a)(2), RPC 4.4, RPC 8.4(d), and RPC 8.4(g). Count Two charged respondent with practicing law while ineligible based on respondent’s failure to pay the required annual assessment to the Lawyers’ Fund for Client Protection, in violation of RPC 5.5(a)(1) and RPC 8.4(d). Count Three charged respondent with recordkeeping violations comprised of failing to maintain fully descriptive client ledgers, failing to conduct monthly trust account reconciliations and failing to maintain a running balance in the trust account checkbook ledger, all in violation of Rule 1:21-6 and RPC 1.15(d).

Respondent admitted that he had practiced for more than a year while ineligible, arguing in mitigation that this was merely due to oversight. He also conceded that he had failed to properly maintain his books and records, offering in mitigation that he [346]*346rarely used the trust account because of the nature of his practice and that no client had been harmed or had even complained about the way in which trust funds were handled.

Because respondent did not contest two of the counts charged, the proceedings were largely directed to Count One. Even that Count, however, was the subject of a stipulated factual record, with respondent offering explanations and arguments in mitigation. But it is Count One, and the issue as to the level of discipline appropriate for the behavior that gave rise to its charges, that has divided the members of each panel at virtually every level of the disciplinary process.

More to the point, it is Count One, and the discipline that it demands, that today divides this Court as well. We are therefore constrained to discuss at some length the underlying facts, the arguments raised by respondent by way of explanation or mitigation, and the way in which the ethical violations demonstrated by the record fit into the larger framework of our disciplinary precedents.

A.

According to the stipulated factual record, respondent offered discounted legal fees to one client in 2001, and on several occasions late in 2005 and early in 2006 to two clients and a family member of another client, in exchange for sexual favors of various kinds.

The first incident1 of this kind of behavior occurred in July 2001, when S.S. retained respondent to represent her in a bankruptcy matter. During that time, he asked her “about her personal life, ask[ed] if she would go out with him and made inappropriate sexual advances to[ward her].” S.S., who believed that respondent was offering “to exchange sexual favors for represen[347]*347tation in her bankruptcy matter,” rejected his importunings and sought other counsel.

In August 2005, T.B., whose father was a bankruptcy client of respondent’s, told respondent that her father did not have the sum of $300 that he then owed for respondent’s services. According to the stipulated facts, respondent offered to forgive that part of the debt if he could “meet T.B. in a hotel room for three hours.” Several months later, in January 2006, T.B.’s father was again behind in his payments, at which point he owed $200 that T.B. was not able to pay. Respondent told T.B. that she could “take care of the $200” if she would “come to his office in a bathing suit and dance for him.” T.B. believed that these were efforts by respondent to exchange legal services for sexual favors.

In September 2005, S.B. retained respondent to represent her in a bankruptcy matter. During one of her visits to his office, when she was accompanied by a female friend, respondent commented that “many gay women ‘come on’ to” him. He then said that “he would like to see S.B. and her friend ‘make out’ ... [and that if they did so] he would file the bankruptcy free of charge.” Some time later, when S.B. arrived to make a payment toward the agreed-upon fee and told him that there was another creditor to be added to the petition, respondent “stated that he would only add the creditor to S.B.’s bankruptcy if she lifted her skirt.” In yet another incident thereafter, when S.B. arrived to pay a balance due for legal services, respondent told her that she “could satisfy her outstanding legal fees by either allowing him to watch her with her female friend or by allowing him to join in.” S.B. refused each of these suggestions, understanding them to be offers to exchange legal services for sexual favors. She eventually retained alternate counsel to complete her bankruptcy matter.

Finally, in September 2005, A.C. retained respondent in connection with her bankruptcy petition. When she arrived for one of her appointments, respondent made several remarks about her sexual orientation. He said, “Oh, so you’re the gay girl,” and “suggest[ed] that A.C.’s lesbianism was caused by a bad experi[348]*348ence with the male sex organ.” Thereafter, following an appearance with A.C. in bankruptcy court, respondent told her that “he was a ‘breast man,’ that she was looking good that day and that if she came back to' his office and joined him on his ‘office couch,’ he would return to her $660 of the legal fees she [had] paid.” A.C. regarded some of these remarks as “constituting] a denigration of her lesbian lifestyle” and others as being “a proposal to exchange sexual favors for legal fees.”

B.

During the hearing on the complaint before a panel of the District VI Ethics Committee (DEC), respondent conceded that each of the grievants would testify in accordance with the foregoing stipulated facts. In his defense, he offered a variety of explanations, rebuttals and arguments he characterized as being in mitigation. For example, he described the atmosphere in his office as being very relaxed and a place where conversations on all subjects of a highly personal nature are common.

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In Re Witherspoon
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Bluebook (online)
3 A.3d 496, 203 N.J. 343, 2010 N.J. LEXIS 704, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-witherspoon-nj-2010.