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David Witherspoon must undergo sexual harassment sensitivity before returning to practice, said the justices, who agreed that his behavior was “boorish, insensitive and offensive, but well shy of criminal.”
Yet they were divided on punishment.
“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,” Justice Jaynee LaVecchia wrote, in a dissent joined by Justice Barry Albin.
However, the majority agreed that could establish severe punishment for minor offenders.
Authorities charged Witherspoon, of Newark, with offering to forgive fees to four female clients in bankruptcy cases if they had sex with him.
In one case, the court said, he told a woman he would forgive her father’s $300 bill if she met him in a hotel room for three hours. He then asked her whether she’d dance for him in a bathing suit — in his office — if he wiped out an additional $200.
The court said Witherspoon also offered to file bankruptcy papers for a woman if she “made out” with his female friend. An offer for a threesome soon followed, the woman testified.
Witherspoon, questioned under oath by an ethics committee, claimed he was kidding around.
The committee, finding violations of the Rules of Professional Conduct, recommended he be censured and required to take sensitivity training.
However, the state Disciplinary Review Board wanted a suspension of anywhere from three to six months.
It’s not like Witherspoon hasn’t been in trouble before. Records show reprimands and censures for sloppy business practices.
Disbarment is mandated in certain cases — when a lawyer swipes a client’s funds, for instance. But there’s no rule that speaks directly to Witherspoon’s behavior, the Supreme Court said.
In his favor, the justices said, “none of the grievants accused [Witherspoon] 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.”
Creating a rule now would make the slope quite slippery, Justice Helen Hoens wrote for the majority:
“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.”
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