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?

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8 Responses

  1. Joe says:

    Wow, what a horrible person. He should have been disbarred. Apparently punishing him more lightly does no good. Something has to get through that apparently thick head of his.

  2. Confused 2(now 3ish)L says:

    I’m sorry but I fail to see how Mr. Weatherspoon’s behavior isn’t classified as criminal. I’m uncertain if NJ has recognized the classification of rape by fraud, but as a professional in a position of authority he applied coercive pressure in the hope of procuring sexual services. The appropriate response is not merely disbarment, but incarceration.

  3. Karen Swim says:

    This is shameful and I agree that he should be disbarred and jailed. Mr. Witherspoon’s behavior is a discredit to his profession and every other professional who relies on a sacred contract of trust.

  4. Woohoo For Arbitrary Sentiments says:

    “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.”

    Good for you. Why should lawyers even be licensed/regulated face/disbarment anyways?

    My firm’s IT people could bring down the whole our entire practice and they’re not regulated by the state.

    Let anyone practice law or hold themselves out as lawyers and clients will benefit with reduced fees.

  5. Waste says:

    So what the NJ Supreme Court just said was that soliciting sex for money or other services is not a crime in NJ. I’m sure a number of Johns will be happy to know that.

  6. Absolutely correct: thank you. If this conduct doesn’t show a lack of trustworthiness and a complete absence of integrity or respect for the profession, nothing does. The court’s ruling is not only a disgrace, it’s an insult to lawyers and an indictment of the profession.

  7. The Curmudgeonly Ex-Clerk says:

    I disagree with the notion that “we should disbar attorneys who seek sexual favors from their clients even if their conduct is not criminal or threatening” to the extent that it could be understood to extend to consensual sexual relationships between adults. We doubtless can envision circumstances under which even consensual relations are unethical (e.g., divorce lawyers sleeping with their clients), but there likewise are situations in which a sexual relationship poses no ethical quandary — at least not of the sort addressed by professional ethics rules (e.g., transactional lawyers sleeping with business clients).

    We don’t need a categorical prohibition in order to conclude that the attorney here was in the wrong either. He proposed to turn his clients into prostitutes. Given that fact, I’m at a loss to understand the New Jersey Supreme Court’s conclusion that Witherspoon’s conduct was not criminal. See N.J. Stat. 2C:34-1 (defining “prostitution” in part as “the offer or acceptance of an offer to engage in sexual activity in exchange for something of economic value” and defining “promoting prostitution” in part as “[e]ncouraging, inducing, or otherwise purposely causing another to become or remain a prostitute” and criminalizing both); see also N.J. Stat. 2C:33-4 (criminal offense of “harrassment,” another offense for which a lawyer likely could be prosecuted under these circumstances).

  8. I wonder if he channeled George Costanza at the hearing:

    “Was that wrong? Should I not have done that? I’m sorry, I’m gonna have to plead ignorance on this thing, because if I had known that sort of thing was frowned upon…”