No Automatic Disbarment for Child Sex Offenses, Court Rules

In a ruling that ethics attorneys say is not as startling as it might appear, the New Jersey Supreme Court on Wednesday indefinitely suspended two lawyers and disbarred a third for sex offenses involving children, but stopped short of issuing a bright-line disbarment rule in such cases.

In a 6-1 ruling, the majority declined to mandate the automatic disbarment of lawyers who commit sex offenses involving children, and said matters must be resolved on a case-by-case basis—with particular emphasis on whether the attorney had actual physical contact with the child victim.

“We have refrained from establishing a bright-line rule requiring disbarment in all cases involving sexual offenses against children,” Justice Walter Timpone wrote for the majority. “The imposition of discipline in cases involving sexual misconduct with a minor requires a fact-sensitive inquiry.”

The consolidated ruling involved three attorneys in unrelated cases: Mark G. Legato, who heads a firm in Somerville; Titusville solo Regan C. Kenyon Jr.; and Alexander D. Walter, of the Maldjian Law Firm in Tinton Falls.

Legato and Kenyon, the ruling said, engaged in sexually explicit online conversations with persons they believed to be underage girls, but who in fact were undercover police officers. Walter admitted to masturbating in front of a 9-year-old girl—the daughter of his girlfriend—in a swimming pool, according to the ruling.

All three pleaded guilty to third-degree charges of attempted endangering the welfare of a child, and are subject to Megan’s Law registration requirements, restrictions on internet use, and parole supervision for life, according to the decision.

“With the protection of Megan’s Law and [parole supervision for life] in place, we stop short of eliminating all hope of future reinstatement,” Timpone said with regard to Legato and Kenyon.

But the majority disbarred Walter, based on the “nature and severity of his conduct, the physical presence of the child, and his position of power over and responsibility for the child.”

In a dissent, Justice Barry Albin called for a holding of automatic disbarment for any lawyer involved in a child sex-abuse case.

“The sexual exploitation of children—whether completed or … attempted—is such an egregious violation of societal norms that no discipline short of disbarment will ensure public confidence in the bar or the judiciary’s governance of the bar,” Albin said.

All three attorneys, until Tuesday, had continued to practice since they were not subjected to orders of temporary suspension after their indictments or guilty pleas. None had any prior disciplinary history, the court noted.

Legato’s attorney, Lumberton solo Robyn Hill, said only that she was “pleased that Mr. Legato was not disbarred.”

Kenyon’s attorney, Dominic Aprile, said he had hoped that Kenyon would have been suspended for only a year, based on the court’s 2002 ruling in In re Ferraiolo, where an attorney engaged in a sexually explicit online conversation with, and sent nude photos of himself to, a person he believed to be an underaged boy.

“We believe, based on the suspension in Ferraiolo, that a one-year suspension was appropriate,” said Aprile, of Lakewood’s Bathgate, Wegener & Wolf.

Walter’s attorney, Frederick Dennehy of Wilentz, Goldman & Spitzer, has since retired and could not be reached for comment.

Walter, reached by phone, declined to comment.

Attorney ethics lawyers said they were not shocked that the majority declined to mandate disbarment for lawyers who are found guilty of or who confess to their involvement in sex offenses involving children. The nondisbarment punishments meted out leave those two lawyers unlikely to practice anytime soon, if ever, they said.

Justin Walder of Pashman Stein Walder Hayden said the rule allowing for an indefinite suspension, first adopted [] by the court in 2002, is an alternative to disbarment. If a lawyer is disbarred in New Jersey, he or she has no chance of reinstatement.

“Most states don’t have disbarment for life,” Walder said. “Most provide at least a mechanism for application for readmission after disbarment.”

The purpose behind the court’s decision to adopt the rule allowing for an indefinite suspension was to allow for rehabilitation, he noted.

“After an intervening period, the lawyer can show that they are not a danger to the public,” Walder said.

Mount Laurel solo Lee Gronikowski—a former counsel for the state Office of Attorney Ethics, which prosecutes lawyers accused of violating the Rules of Professional Conduct—said he believed Albin’s dissent should have been adopted by the majority, but added that he understood why the majority chose to stop short of adopting that bright-line rule.

There is a subtle question of whether there was an actual intent to commit a crime, Gronikowski said: “There’s always room for doubt.”

Shalom Stone of Florham Park’s Stone Conroy said indefinite suspension is “very rarely used” and is reserved for lawyers “who are on the cusp of disbarment.”

Stone said that Timpone noted in his opinion that an indefinite suspension and disbarment is a “difference without a distinction.”

Timpone said in the ruling that, at least in the cases involving Legato and Kenyon, there will be no chance of reinstatement while they remain on parole supervision for life.

“It’s obviously going to be a very long time” before Legato and Kenyon can apply for reinstatement, Stone said.

Marc Garfinkle, who heads a firm in Morristown, said the court appeared to be conflicted in trying to reach a ruling.

“Every case has to be decided on its own merits,” he said. “The court had every avenue of discipline available, from reprimand to disbarment. This ruling is consistent with precedent.”

Garfinkle said that there is no guarantee that Legato and Kenyon will ever practice again, since the majority ruled that reinstatement won’t be considered unless they are released from lifetime supervision.

“There are significant hurdles, even though parole supervision for life does not always mean parole supervision for life,” Garfinkle said. “They will still have to go through the [Supreme Court’s] Committee on Character, and its approval is not automatic.”

Timpone said in the ruling that the majority relied in large part on the court’s 2014 decision placing former state Assemblyman Neil Cohen, D-Union, on indefinite suspension for having images of child pornography on his legislative office computer.

When the court heard arguments regarding Cohen’s possible punishment, a number of justices questioned why Cohen should not be disbarred altogether. Justice Faustino Fernandez-Vina at the time said disbarment could be likely in similar cases in the future.

“We caution that while we do not establish a bright-line rule requiring disbarment in all cases against children, in the future, convictions in egregious cases involving child pornography may result in disbarment of attorneys who commit these offenses, in light of society’s increasing recognition of the harm done to the victims of those offenses,” Fernandez-Vina said in Cohen’s case.

Cohen, who sat in the Legislature for 16 years, pleaded guilty in 2010 to a single charge of second-degree endangering the welfare of a child and was sentenced to five years in prison.

He has since been released from prison, completed his parole and is undergoing mental health counseling.

Cohen was arrested after two other legislators, who shared the same office space, allegedly discovered the images on his computer.

In Wednesday’s ruling, Timpone said the distinction between the Legato and Kenyon matters and the Walter case hinged on the fact that there was no in-person contact in Legato’s and Kenyon’s cases, whereas Walter was in close proximity to the child victim when he committed his offenses.

Timpone added that Legato and Kenyon both readily admitted to their addictions to online pornography, while Walter attempted to shift at least part of the blame to the victim.

Oral arguments in the cases were held in April 2016.

“After an intervening period, the lawyer can show that they are not a danger to the public,” Walder said.

Michael Booth, New Jersey Law Journal

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