SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
IMO David J. Witherspoon, an Attorney at Law (D-157-08)
Argued December 1, 2009 -- Decided July 29, 2010
Hoens, J., writing for a majority of the Court.
In this matter, the Court considers the appropriate level of discipline for an attorney with a history of discipline who now has been found to have engaged in additional unethical conduct in violation of the Rules of Professional Conduct (RPCs), the most serious of which involves offering women legal services or reductions in his fees in exchange for sexual favors. Respondent, David J. Witherspoon, was admitted to practice in 1994 and was disciplined four times between 2002 and 2008 through a series of admonitions and a reprimand, primarily for failing to communicate with clients.
In the current matter, besides the allegations pertaining to sexual misconduct, the Office of Attorney Ethics (OAE) charged Witherspoon with practicing law during the fifteen-month period he was ineligible to do so because of his failure to pay the annual assessment to the New Jersey Lawyers' Fund for Client Protection and with failing to maintain the books and records required of attorneys, for which he had been disciplined in the past. Witherspoon acknowledged he had practiced while ineligible and that he did not maintain his books and records properly.
At a hearing before a panel of the District VI Ethics Committee (DEC) that dealt mainly with the charges of attempted sexual bartering, Witherspoon and the presenter for the OAE entered into a stipulation of facts in lieu of testimony by the women from whom Witherspoon had sought sexual favors of various kinds. According to the stipulation, in four separate matters between 2001 and 2006, Witherspoon offered discounted legal services or fee refunds to three female bankruptcy clients and the adult daughter of another bankruptcy client in the context of suggestions that they perform certain acts with him or with other women while he watched. The stipulated facts included Witherspoon's offer to the daughter of a client that he would forgive $300 of her father's fee obligation if she would meet Witherspoon "in a hotel room for three hours" and his suggestion to a female bankruptcy client that she could satisfy her outstanding legal debt either by allowing him to watch her and her female friend "make out" or by allowing him to join in. Witherspoon commented to a lesbian client that her lesbianism was caused by "a bad experience with the male sexual organ." He told her that he was "a breast man," that she was "looking good," and that he would return $660 of fees she had paid him if she joined him on his office couch.
All of these women believed that by his comments, Witherspoon was proposing to exchange sexual favors for legal fees. The lesbian client perceived his remarks as "a denigration of her lesbian lifestyle." Some sought or retained new lawyers to handle their matters. Witherspoon asserted that the comments he made were in jest and that he never intended to demean or insult the women. He contended that his office atmosphere was quite relaxed and that very personal conversations were common.
The DEC rejected Witherspoon's defenses and explanations and recommended that he be censured for his unethical conduct, which the DEC found included conflict of interest, discrimination based on sex or sexual orientation, intention to embarrass, burden or delay, and conduct prejudicial to the administration of justice, in addition to his conceded practicing while ineligible and violations of the recordkeeping rules. The DEC also recommended that Witherspoon be required to attended sexual harassment sensitivity training and put accounting controls in place in his practice.
The Disciplinary Review Board (DRB), which conducted a de novo review of the matter after receiving the DEC's recommendation of discipline, found clear and convincing evidence of most of the unethical conduct found by the DEC. The DRB disagreed with the findings of a purpose to embarrass or burden and conduct prejudicial to the administration of justice and so dismissed those charges. A six-member majority of the DRB concluded Witherspoon should be suspended from practice for a period of three months. Two dissenting members voted to suspend Witherspoon for six months because of his ethics history, arrogance, "lack of moral values," lack of contrition, and "poor attitude" toward the disciplinary rules.
The DRB filed its decision with the Court, and on its own motion, the Court ordered Witherspoon to show cause why he should not be disbarred or otherwise disciplined.
HELD: For his unethical conduct in this matter and his history of discipline, David J. Witherspoon is suspended from the practice of law for a period of one year and until he complies with conditions imposed by the Court.
1. Because of the stipulation of facts and Witherspoon's conceded violations, the Court is concerned only with the measure of discipline. Discipline for sexual misconduct has ranged from reprimands to disbarment. The most substantial discipline has been imposed on attorneys who have been convicted of serious crimes of a sexual nature, particularly against children. The Court has cautioned that sexual offenses against clients will be dealt with severely. In In re Gallo, 178 N.J. 115 (2003), the respondent attorney entered a guilty plea to fourth-degree charges of criminal sexual contact with three clients and a self-represented litigant, each of whom he assaulted at either his office or a courthouse. The DRB concluded a three-year retroactive suspension was appropriate based on the criminal plea record, but the Court directed that a more comprehensive record be developed before determining the discipline. Thereafter, Gallo consented to disbarment. (pp. 11-16).
2. Most disciplinary cases are very fact-sensitive. Aside from discipline for the knowing misappropriation of trust funds, for which disbarment almost invariably will be ordered, the Court rarely has established bright-line rules in this area, even in cases of serious, violent criminal conduct. The essential purpose of New Jersey's system of attorney discipline is to protect the public, not to punish the attorney. The Court declines to declare a bright-line rule of automatic disbarment for attorneys who conduct themselves as Witherspoon did. What discipline will be required to protect the public in a given case will turn on a fact-sensitive evaluation of the ethical lapses compared to disciplinary precedent, and consideration of the attorney's ethical history.(pp. 16-22).
3. A one-year suspension from practice, with reinstatement conditioned on the successful completion of an approved sensitivity training course and proof of the institution of accounting controls in his office, is the appropriate measure of discipline for Witherspoon. More substantial discipline is not warranted on the record in this case, which does not include criminal conduct, unwanted, traumatic physical contact, or particularly vulnerable subjects of Witherspoon's attention. Preying on clients as Witherspoon has done deserves to be dealt with harshly because it goes to the heart of the trust on which the attorney-client relationship is based, but it would be disproportionate to disbar him for his boorish, insensitive and offensive, but hardly criminal, conduct. (pp. 22-27).
JUSTICE LaVECCHIA filed a separate, dissenting opinion, in which JUSTICE ALBIN joins. JUSTICE LaVECCHIA views Witherspoon's efforts to exchange legal services for sexual favors from financially vulnerable clients, his lack of remorse or recognition of wrongdoing, together with his ethics history, as calling for nothing less than disbarment. A zero-tolerance policy toward attorneys who prey on clients, whether financially or as Witherspoon has done, is needed to protect the public and the reputation of the profession.
CHIEF JUSTICE RABNER and JUSTICES LONG, WALLACE, and RIVERA-SOTO join in the opinion of JUSTICE HOENS. JUSTICE LaVECCHIA filed a separate, dissenting opinion, in which JUSTICE ALBIN joins.