Bartering Legal Services for Sex
Sometimes I think that lawyers unfairly get a bad rap. Most lawyers work hard, comply with all of the ethical rules, and respect their clients. However, there are a few that repeatedly violate the Rules of Professional Conduct, hurting their clients and threatening the public’s trust in the legal profession. Unfortunately, they continue to practice law.
Imagine an attorney who has been admonished, reprimanded, and censured four times in a 6-year period for failing to communicate with clients and for recordkeeping violations, and who is later held ineligible to practice law for 15 months for failure to pay into the state’s Lawyers’ Fund for Client Protection among other things. Imagine that this attorney (who continues to practice law during this period of ineligibility) offers discounted fees to three female bankruptcy clients and to the daughter of another client in exchange for sexual favors. (He told the daughter of a bankruptcy client who could not afford his fee that he would forgive her father’s debt if she would meet him “in a hotel room for three hours.”) You can read the rest of the stipulated facts here.
What is an appropriate sanction in this case? Is disbarment too harsh? Is it relevant that Mr. Witherspoon has a “troubling disciplinary history?” That he claims that he made the offers “purely in jest”? Does it matter that none of the women accepted his offers even though they all believed that he was serious—that their legal fees would be reduced if they provided sexual favors? Attorneys who willfully misappropriate trust funds are generally disbarred. Is Mr. Witherspoon’s conduct as egregious as theft?
New Jersey Supreme Court Justice Jaynee LaVecchia thought so. As she put it, “[o]ne’s bodily integrity is at least as important as the security of the finances one entrusts to an attorney.” According to Justice LaVecchia, Mr. Witherspoon’s “astounding exhibition of bad taste, lack of professionalism, and overreaching of vulnerable clients” warranted disbarment: “The only appropriate measure of discipline that protects the public from respondent’s intolerable behavior, and sends a zero-tolerance message toward lawyers who would consider preying on their clients, is disbarment.”
If you are worried that Mr. Witherspoon will no longer be able to earn a living as a lawyer, you can relax. Justice LaVecchia wrote the dissenting opinion (which Justice Barry Albin joined). The majority of the Court, in an opinion written by Justice Helen Hoens, held that disbarment was not warranted and instead suspended Mr. Witherspoon from practicing law for one year and required him to complete a sensitivity training course. The Court reasoned that while Mr. Witherspoon’s “repeated, demeaning and offensive suggestions to his clients were not merely in jest, but an effort to barter his professional services for sexual favors,” his behavior was not criminal, nor did it involve unwanted physical contact or children. Thus, it lacked the severity that has led to disbarment in other cases. (In some cases, attorneys who have been convicted of sexual offenses, including sexual exploitation of a minor, have not been disbarred). The majority was concerned that the zero-tolerance rule advocated by the dissent would require automatic disbarment of attorneys involved in “non-criminal, non-threatening, non-traumatizing, purely verbal, sexual improprieties directed at other adults, simply because [the victims] are clients.”
I, for one, believe we should disbar attorneys who seek sexual favors from their clients even if their conduct is not criminal or threatening, or involve physical contact. If Mr. Witherspoon behaved in this manner towards his employees, he could be liable for sex discrimination and sexual harassment under Title VII of the federal Civil Rights Act, and if he were a college professor, his behavior, if directed at one of his students, could similarly be actionable under Title IX. In fact, the District Ethics Committee that first heard this case found that Mr. Witherspoon had violated Rule of Professional Conduct 8.4(g) (sexual discrimination and harassment). So why shouldn’t preying on clients, which the majority concedes “goes directly to the heart of the trust on which the attorney-client relationship is founded,” lead to automatic disbarment?