The New Jersey Supreme Court on Thursday issued a one-year suspension to a Newark lawyer who offered discounted fees to female clients or their family members in exchange for sexual favors.
David Witherspoon might consider himself lucky. Two justices wanted him disbarred and said the court should set a bright-line rule like the one that mandates disbarment for trust-fund theft.
"One's bodily integrity is at least as important as the security of the finances one entrusts to an attorney," Justice Jaynee LaVecchia said in a dissent joined by Justice Barry Albin.
"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."
But the rest of the court was more forgiving, saying the facts did not warrant imposing so extreme a punishment. This record … lacks the severity of the sexually-unethical behavior that we have previously considered to be worthy of disbarment," Justice Helen Hoens wrote for the majority in In the Matter of David Witherspoon, D-157-08.
For his part, Witherspoon says he disagrees with the court's assessment of what occurred between himself and his clients. "I have a decent record of providing affordable service to over 10,000 clients and will resume that level of service when this period is over," he says.
Witherspoon, a Newark solo, was charged with telling four female clients in bankruptcy cases that he would reduce or forgive fees in return for sexual favors. According to the stipulated fact record:
• In 2001, Witherspoon asked one client, S.S., about her personal life, asked if she would go out with him and made inappropriate sexual advances.
• In 2005, he told T.B., the daughter of a client, that he would forgive her father's debt of $300 in legal fees if she would meet him in a hotel room for three hours. Later in the case, he offered to forgive another $200 if she would dance for him in a bathing suit at his office.
• In 2005, when a client, S.B., visited Witherspoon's office accompanied by a female friend, he commented that many gay women "come on" to him and that if S.B. and her friend would "make out" he would file S.B.'s bankruptcy free of charge. Later, when S.B. told him that there was another creditor to be added to the petition, Witherspoon said he would do so only if S.B. lifted her skirt. On another occasion, he told her she could satisfy her outstanding legal fees by allowing him to watch her with her female friend or by letting him join in.
• In 2005, when a client, A.C., arrived for one of her appointments, Witherspoon said, "Oh, so you're the gay girl," and suggested that her lesbianism was caused by a bad experience with the male sex organ. On another occasion, he told her that he was a "breast man" and that if she joined him on his office couch, he would return to her $660 of the legal fees she had paid him.
None of the women accepted his offers. In his defense, Witherspoon said the atmosphere in his office was very relaxed and conversations on subjects of "a highly personal nature" were common. He also said the comments were made "purely in jest" and that he never intended to insult or demean any of the grievants. But the women all testified they believed he was proposing to exchange legal services for sex.
The District VI Ethics Committee that first heard the case found Witherspoon's respondent's explanations for his conduct unpersuasive and found he violated several Rules of Professional Conduct, among them RPC 1.7(a)(2) (conflict of interest) and RPC 8.4(g) (sexual discrimination or harassment).
The committee recommended a censure, along with mandatory sexual harassment sensitivity training and other supervisory measures.
The Disciplinary Review Board recommended, after de novo review, agreed with the committee on its findings but not as to discipline. The board urged a three-month suspension while two members would have imposed six months.
The DRB minority cited Witherspoon's prior disciplinary history. Admitted to the bar in 1994, he was on four prior occasions admonished, reprimanded and censured for shoddy recordkeeping and for failing to communicate with clients. That, together with his lack of contrition for his actions in the present case, evidenced "both arrogance and a lack of moral values," the minority said.
When the court heard his case last Dec. 1., Witherspoon offered apologies for his conduct. "I do want to express my regret for my behavior," he told the justices, admitting that until recently he did not take the attorney disciplinary system as seriously as he should have.
"It took me months to understand that the RPCs are there to help my practice," he said, recounting five steps he had taken to improve himself professionally. He said he had taken professional responsibility courses, hired an accounting firm, adopted a policy of immediately returning telephone calls and conducted his own audit of his business and trust accounts.
At the hearing, Witherspoon's attorney Bernard Freamon urged the court to impose the minimum suspension and consider appointing a proctor. "Mr. Witherspoon is trying to turn the corner," said Freamon, a Seton Hall University School of Law professor. "I don't believe you will see Mr. Witherspoon again."
In Thursday's opinion, Hoens said that the DRB majority's recommendation was "inadequate" but that there was no bright-line rule for the proper discipline to impose.
"Although we have cautioned that sexual offenses involving clients will be treated severely … there are few published decisions addressing such matters, and those decisions yield a variety of disciplinary outcomes,"
Hoens wrote.
Disciplinary cases involving sexual misconduct of a criminal nature have resulted in disbarment, she said, while others have led to periods of suspension ranging from three months to three years.
Only in certain cases -- such as willful misappropriation of funds or certain violent criminal offenses -- is there a bright-line rule mandating disbarment, Hoens said. Otherwise, "all discipline is fact-sensitive."
There were three reasons why the majority believed a one-year suspension was appropriate.
First, Hoens said, "As offensive as respondent's behavior was … none of the grievants accused respondent of forcing them to endure any unwanted physical contact or even attempting to do so; none of them felt sufficiently pressured that she even considered giving in; none sought therapy or treatment to overcome the experience; none has suggested the incidents were traumatic; and none pursued criminal charges."
Second, the record "lacks the severity" of behavior that in prior cases have led to disbarment. There was no evidence that Witherspoon was threatening or dangerous, Hoens said.
Third, while preying on clients goes directly to the heart of the attorney-client relationship, the majority could not go along with creating a bright-line rule mandating disbarment.
"[W]e cannot endorse the dissenters' automatic disbarment approach because of its broader implications," Hoens said.
"Carried to its logical conclusion, creating the zero tolerance' rule that they advocate based on this record would demand that we automatically disbar attorneys involved in non-criminal, non-threatening, non-traumatizing, purely verbal, sexual improprieties directed at other adults, simply because they are clients.
"In light of our disciplinary precedents making pain that not every conviction for a sexual offense will result in disbarment, we conclude that it would be disproportionate punishment indeed if respondent's behavior, although boorish, insensitive and offensive, but well shy of criminal, found itself on the far side of that bright line."
The Court said Witherspoon must undergo sensitivity training and institute accounting controls in his office before he can return to practice.
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