The New York Law Journal by Mark Fass - December 31, 2008
An associate who was fired from Kirkland & Ellis in 2004 after admitting he attempted to arrange a meeting "to engage in an oral sexual act" with someone he thought was a 13-year-old girl has been suspended from practicing law for three years. In a rare 3-2 decision in a disciplinary matter, a five-judge panel of the Appellate Division, First Department, agreed that Steven J. Lever "brought shame to himself and to this State's Bar" by using the Internet "to prey on minors for purposes of sexual gratification." They also agreed his conduct required "a significant sanction." However, finding a dearth of New York precedent on point, the judges could not agree on the appropriate punishment.
The three-judge majority, looking at similar cases from other states, cited the "substantial and credible mitigation evidence" in confirming a hearing panel's recommended three-year suspension. "From the beginning, respondent has admitted responsibility for his actions and has taken 'uncommon' efforts to rehabilitate himself," the majority wrote in its per curiam opinion, Matter of Lever, M-1412. "After his arrest, he voluntarily entered sex offender treatment and all evidence in the record supports the therapist's opinions that such therapy appears to be working and that the likelihood of respondent repeating the misconduct was 'low.'"
Justices Luis A. Gonzalez, Eugene Nardelli and James M. McGuire joined the majority. In a vehement dissent, Justices David B. Saxe (See Profile) and James M. Catterson argued for disbarment. Justice Catterson wrote for the two.
"Because I believe that a convicted and registered sex offender has forfeited the privilege of admission to the bar and the elevated status of the officer of the court, I must respectfully take the unusual step in a disciplinary proceeding and dissent," Justice Catterson wrote. "I believe that any penalty short of disbarment would not comport with the standards to which a member of the bar should adhere. I do not believe that we can reconcile the status of registered sex offender with that of a member of the bar in good standing." The majority and the dissent did not dispute the basic facts. Mr. Lever, a patents and intellectual property associate at Kirkland & Ellis, graduated from the University of Pennsylvania Law School in 1999 and was admitted to the New York bar in 2000.
In July 2004, using his law firm computer, Mr. Lever logged onto a chat room for "older men and younger women." According to the decision, Mr. Lever "commenced an online conversation with a female who claimed she was thirteen and who purportedly lived with her mother on Long Island but who was, in fact, a police officer." Mr. Lever and the officer engaged in six sexually explicit phone calls over the next three months. On Oct. 16, 2004, Mr. Lever, then 30, agreed to meet with the purported girl at the Ronkonkoma train station in Suffolk County to engage in oral sex. When he arrived at the station, he was instead met by the police. The Suffolk County district attorney charged Mr. Lever with six felony counts of disseminating indecent material to minors and one misdemeanor count of attempted criminal sexual act. In November 2005, Mr. Lever pleaded guilty to the single misdemeanor charge and was sentenced to six years' probation and certified as a level-one sexual offender.
Under New York law, attorneys convicted of a felony are automatically disbarred, but disciplinary authorities have discretion when a misdemeanor is involved. Citing the mitigating evidence, a court-appointed referee recommended a six-month suspension. By a vote of 5-1, the Departmental Disciplinary Committee Hearing Panel recommended a three-year suspension or until the end of his probation, whichever is longer. (As Mr. Lever's six-year probation began in November 2005, at this date the three-year suspension will last longer.) According to the committee's report, "[P]reying upon . . . minors for sexual gratification by means of the internet should be dealt with more harshly" than the referee's proposed six-month suspension. The committee moved to confirm its findings. Yesterday, the First Department granted the motion.
Lack of Case Law
The main obstacle to unanimity was the lack of case law, the majority and dissent agreed. The majority focused its attention on several cases from other states, including Matter of Engl, 283 Wis 2d 140, a Wisconsin action in which an attorney was only reprimanded for having sexual conversations with and arranging to meet someone whom he believed to be a 14-year-old girl. In Attorney Grievance Commn. of Maryland v. Childress, 364 Md 48, the Maryland Court of Appeals imposed an indefinite suspension with no opportunity for reinstatement until after one year on an attorney who convinced five underage girls to meet with him, though there were no sexual conversations or contact. While finding both Engl and Childress too lenient, the majority said they stand for the proposition that disbarment "is not the exclusive sanction for a single sexual offense involving solicitation of a minor, especially where significant mitigation exists." Here, the mitigating factors - such as seeking treatment, taking responsibility for his actions and cooperating with the criminal and disciplinary investigation - merited only suspension, the majority concluded.
However, "in light of the inherent difficulty in predicting whether respondent's rehabilitative efforts will ultimately render him fit to resume practicing law," the panel required Mr. Lever to submit to a psychiatric evaluation before reinstatement. As the suspension begins immediately, he will be eligible to apply for reinstatement on Dec. 30, 2011. In his dissent, Justice Catterson agreed there is no "New York authority directly on point," but he disagreed as to which cases were "germane to the analysis." He cited as relevant Matter of Harlow, 280 A.D.2d 870, in which an attorney corresponded with a 13-year-old over the Internet, then arranged to meet with her to have sex. The attorney was suspended by Connecticut, but disbarred by New York. "The only substantive difference between Harlow and the instant case is that here, respondent was caught in a police sting," Justice Catterson wrote. "But for that fortuitous intervention, it is beyond cavil that respondent fully intended to have sex with a thirteen-year-old girl in Suffolk County."
In a footnote, Justice Catterson bemoaned the lack of uniformity or predictability in attorney sanctions. Alluding to the dissent in Dickerson v. United States, 530 U.S. 428, he wrote, "The instant case demonstrates the danger of this Court becoming, to paraphrase [U.S. Supreme Court] Justice [Antonin] Scalia, a five-headed Caesar." After his 2004 arrest, Kirkland & Ellis terminated Mr. Lever's employment, according to the decision. In January 2006, he "began temporary employment on a contract basis doing document review, corporate law firm litigation support and other projects," the panel said in a footnote.