Opinion
DRB 21-274
06-21-2022
In the Matter of William H. Lynch, Jr. An Attorney at Law
Hillary K. Horton appeared on behalf of the Office of Attorney Ethics. Respondent appeared pro se. Timothy M. Ellis Acting Chief Counsel
Argued: April 21, 2022
District Docket No. XIV-2020-0406E
Hillary K. Horton appeared on behalf of the Office of Attorney Ethics.
Respondent appeared pro se.
Timothy M. Ellis Acting Chief Counsel
DECISION
Hon. Maurice J. Gallipoli, A.J.S.C. (Ret.), Chair
To the Honorable Chief Justice and Associate Justices of the Supreme Court of New Jersey.
This matter was before us on a motion for final discipline filed by the Office of Attorney Ethics (the OAE), pursuant to R. 1:20-13(c)(2), following respondent's guilty plea and conviction, in the Court of Common Pleas of Chester County, Pennsylvania, to one count of stalking, contrary to 18 Pa.C.S.A. § 2709.1(a)(2). The OAE asserted that respondent's misconduct constituted a violation of RPC 8.4(b) (committing a criminal act that reflects adversely on a lawyer's honesty, trustworthiness or fitness as a lawyer in other respects).
18 Pa.C.S.A. § 2709.1(a)(2) provides that a person is guilty of stalking when he "engages in a course of conduct or repeatedly communicates to another person under circumstances which demonstrate or communicate either an intent to place such other person in reasonable fear of bodily injury or to cause substantial emotional distress to such other person."
The OAE filed this matter as a motion for final discipline prior to the entry of a final order of discipline against respondent in Pennsylvania. However, on January 24, 2022, the Office of Board Counsel (the OBC) requested, based upon information contained in the OAE's motion, additional information from the Pennsylvania disciplinary proceedings in order to provide us with the full breadth of respondent's misconduct. On February 25, 2022, the OAE provided the OBC with the additional documents it obtained and that information is incorporated in this decision.
For the reasons set forth below, we determine to grant the motion for final discipline and impose an eighteen-month suspension, with conditions.
Respondent earned admission to the New Jersey bar in 1987 and to the Pennsylvania bar in 1983. He has no prior discipline in New Jersey.
Effective June 4, 2018, the Court declared respondent administratively ineligible to practice law in New Jersey for failure to pay the annual assessment to the New Jersey Lawyers' Fund for Client Protection.
Additionally, effective November 5, 2018, the Court declared respondent administratively ineligible to practice law in New Jersey for failure to comply with continuing legal education requirements.
On January 6, 2022, the Supreme Court of Pennsylvania imposed a prospective, three-year suspension on respondent for the criminal conduct described below.
We now turn to the facts of this matter.
On July 13, 2020, the Supreme Court of Pennsylvania temporarily suspended respondent from the practice of law in that jurisdiction following his guilty plea and conviction for stalking his victim, R.S. Although the information contained in those documents involves graphic language, it is included within the facts because it is critical to understanding the nature of respondent's misconduct and its impact on his victim.
Specifically, on August 7, 2019, respondent and R.S. met at a Pennsylvania train station, exchanged business cards, and began to communicate via text message, telephone call, and in-person meetings. This meeting occurred after respondent had first noticed R.S. at the train station, months earlier, at which time he placed a "note of flirtation" under the windshield wiper of her car. R.S. did not recall having received the note, but respondent was emphatic that he placed the note on the correct car, noting that R.S. "caught [his] attention driving into the parking lot one morning." Respondent did not take the train on August 7, 2019 but, rather, told R.S. that he was at the train station that morning for the sole purpose of interacting with her.
Initials are used to protect the victim's identity.
Following that meeting and through the beginning of September 2019, in addition to their telephone and text message communication, respondent and R.S. occasionally met in person. However, during that time, despite respondent's romantic overtures, R.S. repeatedly told him that she was only interested in friendship.
Indeed, in an August 8, 2019, text message that R.S. sent respondent, she indicated that she was focused on her career, was happy with her life, and did not need someone to make her happy.
On September 5, 2019, after respondent suggested that he could make R.S. feel less stressed in life, R.S. told respondent that she was not stressed, but was very busy with her life and did not have much time to exchange text messages. R.S. also told respondent that he needed to "stop saying [he] will be [her] husband. Seriously. We are friends at this point and you are running a little far in your fantasy world Mr. Lynch." Respondent replied to inform R.S. that she needed to keep believing in their future together. In reply, R.S. reiterated that "as far as dealing with reality, Bill - please stop saying all those things about getting married and love affair."
Following R.S.'s text message again asking him to stop referring to getting married or having a love affair - because they were just friends - respondent launched into a vulgar series of text messages in which he asked if R.S. was "just kidding Billy" and was "enjoying his attention?" Respondent accused R.S. of "cock teasing" him and referred to R.S. previously declining an invitation to have sexual intercourse with him. In so doing, respondent repeatedly referred to the size of his genitals and told R.S. he did not like being "teased."
Later that evening, respondent continued to send text messages to R.S., which went unanswered, in which he told her that she had both sexually aroused him and upset him, and that he was watching a movie about the pornography industry.
Thereafter, on September 6, 2019, at 12:07 a.m., disregarding R.S.'s previous statements that she was not interested in respondent romantically, and after already sending R.S. multiple text messages referring to his genitals, his desire to have sexual intercourse with her, and accusing her of being a "cock tease," respondent sent R.S. a series of text messages stating "One last thing Sweetie [. . .] If u r going to delay taking care of the new man in your life;" then "[they] should start sexting," and, without waiting for R.S.'s consent, sent her twenty-three sexually explicit, derogatory, and vulgar text messages in less than twenty-four hours. The text messages referred, in graphic detail, to the various sexual acts respondent wished to perform on and with R.S.
The Cambridge Dictionary defines "sexting" as "the activity of sending text messages that are about sex or intended to sexually excite someone."
At 5:35 a.m. the same date, R.S. replied to respondent's inundation of messages and stated: "Bill this is totally inappropriate [sic] you just texted me and not how you treat a lady! I'm very disappointed in you." After reiterating to respondent that his sexually explicit text messages were inappropriate and unwanted, the following text message exchange occurred over approximately thirty minutes:
Respondent: "Good morning my Love."
Respondent: "Yes I was upset with u [sic] last night"
Respondent: "Maybe I overreacted"
R.S.: "My son is in the car with me this morning, so we can't talk. Especially not discussing your text while in car."
R.S.: "Bottom line, I didn't do anything to deserve such disrespect. Period!"
Respondent: "Ok I love you. But I also felt disrespected last night."
R.S.: "??How??"
[S¶16.]
"S" refers to the March 16, 2021 Stipulation of the Parties entered in the Pennsylvania disciplinary proceedings. "ODCEx." refers to the supplemental exhibits submitted during respondent's Pennsylvania ethics proceedings. "1T" refers to the February 4, 2020, criminal sentencing transcript.
Thereafter, from 6:52 a.m. to 9:03 a.m., respondent sent R.S. fourteen more text messages attempting to persuade her to engage in a romantic relationship with him, including informing R.S. that he was "flattered" that she "welcome[s] [his] interest." At 10:03 a.m., R.S. sent respondent a text message stating: "You did not treat me with respect at all this morning, Bill. I have never been spoken to by anyone like that. It was truly bizarre."
After receiving R.S.'s text message, respondent sent her a bouquet of flowers. Consequently, R.S. sent respondent a text message to inform respondent that she had received the flowers but told him to use his money for other things. R.S. also sent respondent a text message stating that she "want[ed] only friendship for now. . . Honestly, Bill, even if I was in love with you - which I am not - I don't have time for a relationship." R.S. then informed respondent that she was going out with friends that night and that she only had her phone with her in case of an emergency with her children. She informed respondent that she did not have her phone to "text a friend while [she was] sitting at a dinner table in [sic] restaurant. Hope you understanding [sic] this about me." In reaction to R.S.'s message, respondent sent her ten text messages in approximately ten minutes. Via text message, R.S. asked respondent to "stop these over the top messages. You stated this morning to be texting less . . . not seeing it!"
At 10:13 p.m. that same date, respondent sent a text message to R.S. at 10:13 p.m. stating: "Just called. Good night [R.S.] if we do not talk tonight. I am exhausted but will be up for a little while. R u [sic] sleeping?" Approximately forty minutes later, respondent sent R.S. another text message stating:
I just listened to Love is in the air. Regardless of wether [sic] we become lovers and husband and wife I will never listen to that song again without thinking about u [sic]. Could we go out dancing [September 7, 2019] after your dinner engagement? We can dance to our theme songs and other favorite love and dance songs per [sic].[S¶24.]
During the month respondent and R.S. exchanged text messages, many messages consisted of respondent naming a song, or quoting song lyrics, often with a theme of love or sex, and asking R.S. if she knew of the song. There is no indication in the text messages that a "theme song" was agreed to by R.S.
The next day, September 7, 2019, at 12:57 p.m., R.S. sent respondent a text message stating that she could not speak with him that day because she was doing things for her son and had a dinner party that evening.
Later that day, respondent called R.S. and left a voicemail message. The content of the voicemail message is not contained in the record, but it prompted R.S. to send respondent a text message at 3:36 p.m. stating:
Bill, I listened to your message and sad [sic] you think that low about me. I have friendships for yrs [sic] with people and even my ex in laws respect me. All I have to offer is friendship and I have told you this many times. Instead of respecting this, you get mad that I am not jumping into a relationship with you.[S¶26.]
Respondent replied immediately with four text messages demanding that R.S. return his property and stated "this has been a charade" and "U [sic] got off on it [. . .] Right?" Respondent followed those text messages with three more text messages describing R.S. using sexually explicit, derogatory, and profane words, including calling R.S. a lesbian, a "cock tease," and a "c**t."
On September 7, 2019, at 5:49 p.m., R.S. permanently ended her friendship with respondent by sending a text message stating:
I just returned the 3 books I borrowed and the poster you had given to me as a gift. It's all in front of your door. I don't want you to ever contact me again, either directly or indirectly. If you do, I will not respond back and will contact the police immediately and file a complaint.[S¶30.]
At 6:15 p.m., respondent called R.S. and left a voicemail for her. In his voicemail, respondent stated that he wanted to:
Make this offer to you, offer you this deal. [. . .] I think you're gonna like this deal. Because I think either you're a cockteaser or you really just wanted to have sex with me. [. . .] You thought I was a stud. You liked me. you just wanted to have sex with me. [ . . .] And I started to f**k it up for you and make it too complicated. So I'm gonna make it real simple for you. Here's the deal. You return my property, the books and the poster, number one. Number two, I draft an airtight release for you to sign. And it goes something like this.
That you agree to have sex with me. And it's all voluntary, it's all consensual sex.[ODCEx.7.]
Also in the voicemail, respondent explicitly described at least seven different sexual acts that he would place into the contract. However, respondent added that he was "not gonna be a gigolo [. . .] I'm not gonna be your male prostitute." After again describing multiple sexual acts he wished to place into the contract, respondent told R.S. that he would draft the contract, have it notarized, and then he would have sexual intercourse with her. Also in the voicemail message, respondent described his genitals and repeatedly stated his belief that R.S. had wanted to have sexual intercourse with him throughout the course of their friendship. Respondent added that "you're gonna sign a contract so that you're not gonna turn around and cry rape and try to sue me. [. . .] I'm not gonna take the chance that you're gonna try to f**k me over by crying after I have sex with you." Respondent told R.S. that he was not going to charge her a fee for drafting the contract.
Shortly thereafter, respondent called R.S. again and left another voicemail message. In the voicemail message, respondent stated:
One other provision in the contract. [. . .] it's negotiable for me to ride you bareback. [. . .] But we're gonna need - you're gonna need to swear on some Bibles that you're not - you don't have AIDS or other diseases. The other thing with the bareback is - because I have
prostate trouble - but there's always a possibility that some of my incredible semen - that the creative genius might come out. And you're gonna have to agree in the contract that if that happens and you become pregnant, you're not gonna have an abortion. I won't agree to that.[ODCEx.9.]
Respondent told R.S. that his offer:
forces [her] to come clean and prove that you're a cockteaser. You know that that's true. But you have a chance to redeem yourself and prove that you're not a cockteaser. I'm giving you that out. So I know if you don't agree to this that you're a cocktease. That's what you are. You put on a charade, a great performance. You've made a goddamn fool out of me, of my friends, and other people. You've made a f**king fool out of me. The one way you redeem yourself is by signing this agreement and letting me f**k the s**t out of you.[Ibid.]
Later that day, beginning at 8:01 p.m., after offering to draft the contract that would permit him to have sexual intercourse with R.S., respondent sent R.S. a series of text messages accusing R.S. of "scamming" him with her telephone number; warning her not to damage his property; informing her that he had already filed a police report against her; and stating that she had "picked thewrong guy to run your lezzie man hater con on" because she was "not smart enough to know better."
R.S. used the same telephone number to communicate with respondent for the duration of their relationship.
At 8:08 p.m., respondent again sent sexually explicit, derogatory, and profane text messages to R.S. and concluded at 8:09 p.m. by stating to R.S. that he would contact the police if she ever contacted him again.
However, at 8:10 p.m. respondent continued his barrage of text messages to R.S. in order to threaten her safety by telling her "[by the way] I lied to u [sic] about firearms;" "I have several in this house[. . .];" "[s]o do not even think about that."
Although he told R.S. that he had firearms, respondent testified at the March 18, 2021 hearing that he never possessed any firearms. In his verified answer to the ODC's Petition for Discipline, respondent claimed that he "did not mean that as a threat." The record does not provide an explanation as to why, if respondent did not mean his statement as a threat, he would inform R.S. that he lied about not possessing firearms in the midst of the angry text messages he was sending to R.S.
Also on September 7, 2019, at 8:25 p.m., respondent contacted his local police department seeking to file a report related to his relationship with R.S. and sent R.S. a text message to inform her that he was going to file a "precautionary police report tonight for my safety."
Respondent then sent R.S. a text message informing her that she was:
being placed on legal notice that if u [sic] destroyed or do destroy the two llove [sic] letters William h [sic] Lynch jr [sic] wrote to you that William h [sic] Lynch jr [sic] may have a legal claim against you for spoliation of evidence in a pending or possible civil lawsuit or criminal prosecution. Do not reply of course if u [sic].[S¶46.]
For several days following R.S.'s message specifically stating that she did not want respondent to contact her, respondent sent more than ninety text messages that were sexually explicit, disparaging, and threatening. The text messages were in addition to his two voicemail messages offering to negotiate a contract for sexual intercourse.
On September 8, 2019, respondent traveled to his local police department and demanded to speak with a detective. Because there was no detective on duty at the time, respondent left. The next day, respondent again went to the police department, his third contact with the police department regarding his desire to file charges against R.S., to demand to speak with a detective.
When a detective went to the lobby to speak with respondent, respondent told the detective that he was a civil attorney and demanded to be taken into an interview room so that he could provide a recorded statement about a crime. The detective declined to take a recorded statement and instead spoke with respondent for one hour and twenty minutes in the lobby of the police station. During the conversation, the detective observed that respondent became "immediately agitated and argumentative."
Respondent told the detective that R.S. was a "f**king, d**k tease, c**t." Respondent stated that he had been receiving telephone calls from R.S. but that the number now appeared to be blocked. However, respondent claimed to know calls were coming from R.S. Consequently, respondent was "adamant" that the police investigate R.S. for fraud, even though respondent could not explain what criminal behavior R.S. had engaged in and had no evidence that she was committing a crime against him.
It is likely that respondent equated R.S.'s lack of communication with him - as she warned in her September 7, 2019 text message - as a technological problem and not a consequence of his harassing and threatening conduct.
Following the interview, the detective prepared an Incident Data Sheet and wrote that he repeatedly had asked respondent to provide details of the crime he believed R.S. was committing; instead of answering, however, respondent described R.S.'s body and "would digress to a point where he would demonstrate the sex act of placing his head between her breasts, shaking it back and forth, while his tongue hung out of his mouth making noises . . . ." The detective also noted that, throughout the conversation, respondent frequently would become agitated and refer to R.S. as a fraud and a "Man Hating, Cock teasing, Lesbian, C**t." Furthermore, respondent told the detective that he was a "self proclaimed expert in pornography, specifically lesbian pornography, and compares himself to Howard Stern."
Following the conversation, the detective advised respondent that there was no evidence that R.S. committed a crime and that the police department was not going to investigate her. Moreover, the detective told respondent that it appeared that, after R.S. got to know respondent, she realized they were not compatible and was now ending the friendship. Respondent thanked the detective for the "therapeutic" talk they had and invited him to a presentation he was going to give on the presidential history of the United States. During his Pennsylvania disciplinary proceedings, respondent admitted that, by his conduct at his local police department, he had attempted to file a baseless police report against R.S. Respondent also admitted that he "abused his status as an attorney when he used it to berate and intimidate [R.S.]."
On September 9, 2019, respondent sent R.S., who was born outside of the United States, a text message stating:
If u [sic] pass a background check including my contact with FBI and CIA. [sic] Your privileges to contact hill Billy will be restored fully. Texts. Calls in person and physical contact will be allowed. This vetting process will take several days. Maybe till Friday [sic] or Monday [sic] and I will [sic].[S¶56.]
"Hill Billy" was one of the names that respondent called himself (in the third person) in text messages he exchanged with R.S.
Additionally, on September 10, 2019, respondent sent R.S. a text message threatening to appear at the office where she was employed and told her he had loved her since he met her.
Respondent sent numerous text messages to R.S. telling her that they would eventually marry each other.
On September 11, 2019, respondent sent R.S. yet another text message referencing a background check. In the message, respondent informed R.S. that he had hired a private investigator whom he had worked with when he was an attorney at Swartz Campbell & Detweiler in the late 1980s and again threatened to show up, uninvited, to R.S.'s office. Thereafter, respondent sent R.S. a series of text messages describing, in graphic detail, the sexual acts he wanted to perform with her and to her, in R.S.'s office.
On September 11, 2019, R.S. reported respondent's actions to her local police department; the same date, a detective filed a criminal complaint against respondent setting forth R.S.'s allegations, provided information regarding his independent review of the text messages and voicemail messages respondent sent to R.S., and charged respondent with stalking, harassment, and disorderly conduct. Consequently, District Judge John R. Bailey issued a warrant for respondent's arrest.
Also on September 11, 2019, respondent traveled to the Pennsylvania Office of Attorney General in Harrisburg, Pennsylvania. While there, respondent met with three special agents (two female and one male) because he wanted to file a complaint against former Pennsylvania Governor Edward Rendell, as well as the Pennsylvania Attorney General, for sexually assaulting R.S. Prior to meeting with respondent, one of the female special agents was informed that there was an individual present who was extremely vulgar and had yelled at the female receptionist in the building. The receptionist was reported to be shaken by respondent's behavior, which continued once he was in the conference room with the three agents.
Respondent ultimately admitted, during the Pennsylvania ethics proceedings, that R.S. had not, in fact, been sexually assaulted by either of these individuals.
While in the conference room, the agents observed respondent's behavior to be "very loud, very obnoxious, very vulgar" toward all three agents. Additionally, during the meeting, respondent repeatedly referred to R.S. as a "c**t" and, indeed, referred to all women as "c**ts." Identical to the information he had provided to his local police department, respondent told the agents that he was an expert in pornography, particularly lesbian pornography, and compared himself to Howard Stern. Also similar to his meeting with his local police department, respondent repeatedly made comments about what sexual acts he wanted to perform with R.S., and continually made sexual gestures toward his genitals. Additionally, respondent told the agents that he felt he was being "scammed" by R.S. because he wanted her to perform sexual favors.
One of the special agents testified that because respondent was "so angry and so obnoxious - something I have never seen in almost my 25 years of law enforcement, even dealing with [domestic violence] offenders - that I was afraid if he would be at an event where the Attorney General was at, he would actually attack the Attorney General."
Respondent admitted that, by threatening R.S. with legal action and attempting to file baseless police reports against her, as well as former Pennsylvania Governor Edward Rendell and the Pennsylvania Attorney General, his conduct violated RPC 8.4(c).
Ultimately, from September 5 through September 12, 2019, respondent sent R.S. 292 text messages. R.S., on the other hand, sent respondent only twenty-eight text messages, from September 5 through September 7, 2019, and did not communicate with respondent at all after she sent him the September 7, 2019, text message terminating their friendship.
On September 12, 2019, respondent was arrested, arraigned by video, and released on bail. One condition of respondent's release was that he was prohibited from contacting R.S. Notwithstanding this prohibition, respondent prepared an apology card and mailed it to R.S. The card was postmarked September 12, 2019 and, within the card, respondent dated his apology as September 12, 2019. Also within the card, respondent wrote "I Said Something that I can't take back, and ALL I can THINK about is rewinding the clock to that MOMENT JUST BEFORE STUPID TOOK OVER. In that moment, I would say something else - something that would let me know how much I love you. I'm sorry." Respondent also wrote that he was "Look[ing] forward to seeing you Friday to return the gifts I gave you." On September 17, 2019, R.S. received the card in the mail, took it to her local police department, and opened it in front of a detective, who documented the incident in a report.
Subsequently, on November 23, 2019, despite the no contact order, respondent called R.S., who did not answer the telephone. Respondent did not leave a voicemail message. R.S. reported respondent's conduct to the police and, when a detective went to respondent's home to warn him his conduct violated the conditions of his bail and that his bail could be revoked, respondent claimed that he had "butt dialed" R.S. and that he did not intentionally call her. The detective advised respondent to delete R.S.'s telephone number from his telephone, which he did.
On December 18, 2019, the Chester County District Attorney's Office filed a criminal Information against respondent in the Chester County Court of Common Pleas and charged respondent with stalking, harassment, and disorderly conduct.
On February 4, 2020, in the Chester County Court of Common Pleas, before the Honorable Patrick Carmody, respondent pled guilty to one count of stalking.
During his plea allocution, respondent provided an "explanation for his conduct." Respondent testified that there was no excuse for his "bad conduct" and that he accepted full responsibility for his actions, but then added that he "felt a little bit led on." After his counsel redirected respondent's focus, the court stated that it was concerned to hear respondent testify that he felt led on, because respondent "repeatedly call[ed] her things like a cock tease."
Respondent's counsel interrupted and redirected respondent's testimony four separate times to attempt to prevent respondent from placing blame for his conduct on R.S.
Thereafter, respondent further tried to justify his criminal conduct by stating that there were "some comments by the victim before this thing all unraveled, some sexual comments that she made, and there was nothing said at the beginning about this being a platonic situation." The court rejected respondent's statement by pointing out that R.S. repeatedly told respondent she only wanted friendship, to which respondent kept "coming back with sexual things [. . .] and trying to hurt her" by calling her derogatory names.
Respondent stated that, before he "lost it," he felt humiliated by R.S. Additionally, respondent stated that he did not ultimately file charges against R.S. but he had concerns that her cellular phone number and text messages were blocked, so he had concerns about her motives. Furthermore, respondent stated that, as a result of his actions, he was embarrassed that he was arrested in front of his home and subsequently was before the court as a defendant in a criminal matter, instead of as an attorney representing a client.
There is no indication in the record that there was an extended period where respondent and R.S. were not communicating, until September 7, 2019. To the contrary, there were text message communications nearly every day between the two parties, using the same telephone numbers each time.
The court rejected respondent's attempt to show remorse or to take responsibility for his actions, stating:
I don't think you quite get it. You say you get it, but the more I hear you, I don't think you quite get it. And reading through this objectively, it's not the right response that I would expect. Yes, you pled guilty. No, you don't want to go through a trial and that's good. But I'm concerned.[1T41.]
Prior to respondent's sentencing, R.S. provided a statement to the court. R.S. explained that, after meeting respondent at the train station, she made it clear to him that she was only interested in developing a friendship, and that, at the beginning of their relationship, respondent accepted that. However, within a few weeks, respondent's demeanor "drastically changed" and he became more demanding.
R.S. stated that, as a result of respondent's conduct, although she was not physically harmed, she was left with "mentally a huge scar." Moreover, R.S. explained that she is vigilant regarding her surroundings in her home and when she leaves her home out of fear that respondent would approach her. Furthermore, due to respondent's conduct, R.S. purchased a firearm, became a member of a shooting club, and obtained a license to carry a firearm in Pennsylvania, all things she would have never considered doing before September 7, 2019.
Ultimately, Judge Carmody sentenced respondent to two days imprisonment followed by twenty-three months of probation. Judge Carmody also prohibited respondent from contact with R.S.; directed him to undergo a mental health evaluation and follow all recommendations; and ordered him to complete fifty hours of community service. Due to the COVID pandemic, respondent was allowed to contribute to a charity in lieu of performing community service.
During the Pennsylvania ethics proceedings that followed his criminal conviction, respondent did not offer any medical evidence to demonstrate a causal link between his conduct and his mental health and conceded that the letters and testimony of his mental health treatment providers did not satisfy the standard for mitigation in Pennsylvania ethics proceedings. See Office of Disciplinary Counsel v. Braun, 520 Pa. 157 (1989) (finding that evidence that supports that an attorney's psychiatric diagnosis was a causal factor in his misconduct was appropriate to consider as a mitigating factor in a disciplinary proceeding). Rather, respondent presented letters from his treating therapist and treating psychiatrist solely to demonstrate his compliance with the terms of his criminal sentence.
Accordingly, on March 25, 2020, Mindy Bell, MA, LPC, issued her report following the court-ordered mental health evaluation she performed. Bell diagnosed respondent with bipolar disorder; irritability and anger; problems related to other legal circumstances; adult antisocial behavior; and a history of anxiety. In connection with her diagnosis, Bell neither read the text messages respondent sent to R.S. nor listened to the voicemails he left for R.S.
Bell also testified at respondent's ethics hearing before the Disciplinary Board of the Supreme Court of Pennsylvania (the Pennsylvania Board). In her testimony, Bell explained that she provided therapy to respondent as a part of his parole, but thereafter, respondent retained her for private sessions. Bell testified that she saw respondent weekly, or biweekly, for sessions that focused on managing respondent's depression, anxiety, and emotions - particularly his anger. Bell explained that respondent's symptoms worsened after he was temporarily suspended in Pennsylvania, which, she believed, made the "recommendation of [continued] counseling crucial."
Dr. Franklin Maleson, M.D., respondent's treating psychiatrist, also provided the Pennsylvania Board with three letters describing his treatment of respondent. In his May 25, 2020 letter, Dr. Maleson described first meeting with respondent, on October 14, 2019, for an evaluation. Thereafter, treatment remained inconsistent, with no sessions occurring from January 3 through May 1, 2020, due to respondent's financial problems. Dr. Maleson believed respondent's inconsistent treatment was "clinically problematic." Dr. Maleson's letter focused on respondent's ongoing depression following his criminal charges but did note that respondent had suffered from depressive episodes since 1977, and that respondent periodically had taken various antidepressant medications, which respondent did not believe were beneficial.
Dr. Maleson conceded that he did not review the voluminous text message exchanges between respondent and R.S., but stated that, nevertheless, it was his "sense that a complicated dynamic was at work, with ongoing contributions from both parties. Rightly or wrongly, he had a growing sense of being entrapped in a charge of sexual assault or misconduct, increasing his anxiety, playing to his angry argumentative tendencies, escalating his texting." Thus, Dr. Maleson strongly urged that respondent continue with treatment and, if needed, arrange for a more financially prudent arrangement for treatment.
In his October 8, 2020, letter update, Dr. Maleson wrote that he had only seen respondent three times for sessions - on July 10, 2020, for half of a session, September 4, 2020, for half of a session, and October 2, 2020. Although respondent reported that he had worsening of his depressive symptoms and "reported significantly reduced compliance with his medication regimen, driven by a wish to reduce costs," he sought treatment sporadically. Dr. Maleson again strongly recommended that respondent adhere to the medication he had prescribed.
On February 22, 2021, Dr. Maleson again provided a letter update, in which he reported only seeing respondent for treatment twice since his last update - on November 6, 2020, for a half session, and on January 8, 2021, for a full session.
On March 18, 2021, Dr. Maleson also testified at the ethics hearing before the Pennsylvania Board. Dr. Maleson stressed that respondent's ability to stabilize his mood was dependent upon compliance with the prescribed medication regime. Dr. Maleson explained that respondent's mental health was not currently under control because he was still struggling with depression. However, Dr. Maleson added that, so long as respondent was compliant with his psychotropic medication, there was little chance of respondent engaging in similar criminal conduct again.
Additionally, R.S. testified at the ethics hearing before the Pennsylvania Board. Her testimony was consistent with the testimony she provided during respondent's criminal sentencing. R.S. explained that, although she was not subpoenaed to appear at the ethics proceeding, she appeared voluntarily because she wanted to provide testimony to prevent respondent from using his law license to threaten any other women in the future, since he had frequently used derogatory terms to refer to women.
Finally, respondent testified on his own behalf at the ethics hearing before the Pennsylvania Board. Respondent testified that he was sorry and remorseful for his actions, and that he accepted full responsibility for his actions. Respondent asserted that his actions were the result of "some sort of an episode involving extreme anger, probably manic, part of a manic depression. But basically extreme anger." Respondent added that he had thought about his actions every day because he had been "paying, obviously, a very heavy price for it," and lamented that he had lost his livelihood due to his criminal charges.
Following consideration of the evidence and testimony presented throughout the Pennsylvania disciplinary proceedings, on January 6, 2022, the Supreme Court of Pennsylvania issued its opinion and order imposing a prospective three-year suspension on respondent.
Respondent failed to report his criminal charges or conviction to the OAE as R. 1:20-13(a)(1) requires.
Although in Pennsylvania, stalking is a first-degree misdemeanor, in New Jersey, the offense of stalking is graded as no less than a fourth-degree crime. See N.J.S.A. 2C:12-10 ("a person is guilty of stalking, a crime of the fourth-degree, if he purposely or knowingly engages in a course of conduct directed at a specific person that would cause a reasonable person to fear for his safety or the safety of a third-person or suffer other emotional distress."). Thus, respondent was required to report his stalking conviction to the OAE.
The OAE argued in its brief to us that respondent should receive a six-month suspension for his criminal conduct. Specifically, the OAE asserted that respondent's misconduct was analogous to the misconduct we addressed in In re Garofalo, 229 N.J. 245 (2017) (attorney suspended for six-months after he sexually harassed an employee who worked at the same law firm as Garofalo; the law firm's internal investigation also revealed that Garofalo sexually harassed a second firm employee). The OAE contended that respondent refused to cease communication with R.S. even after she expressly asked him to refrain from his behavior. The OAE also argued that respondent's harassment of R.S. was so severe that it caused her to become "hypervigilant" and to purchase a firearm, something she had never considered doing prior to being victimized by respondent. The OAE also recommended that respondent provide proof of psychological counseling and proof of fitness as attested to by a mental health professional approved by the OAE prior to his reinstatement to practice law.
During oral argument before us, the OAE reiterated the arguments set forth in its brief. Deputy Ethics Counsel for the OAE added that respondent had frequently communicated with her following the OBC's January 24, 2022 letter requesting additional information. Counsel for the OAE noted that, although respondent was polite in his communications with her, he used his frequent telephone calls with the OAE as an opportunity to complain about the harshness of the discipline he received in Pennsylvania for his criminal conduct. Consequently, the OAE argued that respondent still has failed to demonstrate sincere remorse for his actions.
As mentioned above, by letter dated January 24, 2022, the OBC, with a copy to respondent, requested that the OAE provide additional documents regarding respondent's misconduct. Also within that letter, the OBC requested that the OAE confirm that respondent granted permission to his Pennsylvania counsel, Samuel Stretton, Esq., who is not admitted in New Jersey, to accept service on his behalf. The letter also permitted respondent to provide his reply to the OAE's motion on or before March 18, 2022, to allow time for respondent to reply to any additional briefing by the OAE. By e-mail dated February 23, 2022, the OAE articulated its understanding that Stretton accepted service on respondent's behalf and offered to re-serve respondent at his home if that understanding was in error. On February 25, 2022, at 9:56 p.m., respondent sent an e-mail to Chief Counsel for the Board stating: "ATTORNEY JONES. PER FRIDAY NIGHT VOICE MAILS PLEASE CALL ME BACK MONDAY 28 Feb 22 asap respectfully bill lynch." Between February 25, 2022, and March 17, 2022, respondent called OBC staff numerous times to request information, including instructions regarding how to request an extension to file a reply to the OAE's motion.
On March 8, 2022, the OAE sent OBC staff an e-mail stating that the OAE had spoken with respondent, who represented that he had authorized Stretton to accept service of the motion for final discipline, and confirmed its understanding that, pursuant to the OBC's January 24, 2022 letter, respondent's reply was due by March 18, 2022. By letter dated March 14, 2022, Acting Chief Counsel for the Board sent respondent a letter confirming that Stretton agreed to accept service and informing respondent that oral argument was scheduled for April 21, 2022.
Despite multiple communications with OBC staff and the OAE, by e-mail dated March 17, 2022, respondent stated for the first time that he was requesting an extension of time to submit a reply brief because he had "not yet received brief of moving party/ethics counsel." The next day, respondent sent a similar request for an extension of time. The OAE sent respondent a reply e-mail, with a copy to the OBC, clarifying that respondent, for the first time, alleged that he had not received a copy of the motion for final discipline, despite the OAE having sent respondent a copy of the motion via e-mail and regular mail on March 10 and March 14, 2022. Consequently, by letter dated March 21, 2022, the OBC advised respondent that his request for an extension of time to file a reply to the OAE's motion was granted and that that his response was due March 25, 2022. The OBC noted that the extension was peremptory and that no further extensions of time would be granted.
Despite these communications and the grant of an extension, respondent did not file a brief for our consideration.
However, respondent elected to appear by telephone for oral argument held in this matter. In his appearance, respondent stated that he was "profoundly sorry" for his conduct, that he accepted full responsibility for his actions, and concurred with the OAE's recommendation for a six-month suspension, with conditions.
When asked about his two violations of the no-contact order R.S. obtained against him, respondent maintained that he accidentally "butt dialed" R.S., and insisted that he sent the apology card (that was dated and postmarked September 12, 2019) before he was arrested. Respondent also conceded that he attempted to file false police reports with the local police department against R.S.; against the former Pennsylvania governor and attorney general; and lied to R.S. about his possession of firearms.
Following our review of the record, we determine to grant the OAE's motion for final discipline. Final discipline proceedings in New Jersey are governed by R. 1:20-13(c). Under that Rule, a criminal conviction is conclusive evidence of guilt in a disciplinary proceeding. R. 1:20-13(c)(1); In re Magid, 139 N.J. 449, 451 (1995); and In re Principato, 139 N.J. 456, 460 (1995). Hence, the sole issue is the extent of discipline to be imposed. R. 1:20-13(c)(2); In re Magid, 139 N.J. at 451-52; and In re Principato, 139 N.J. at 460.
Pursuant to RPC 8.4(b), it is unethical conduct for an attorney to "commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer." Respondent's guilty plea and conviction for stalking, contrary to 18 Pa.C.S.A. § 2709.1(a)(2), thus, establishes a violation of RPC 8.4(b).
Although the OAE did not charge respondent with violating RPC 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation) respondent's misrepresentations to R.S. surrounding his access to firearms, his multiple attempts to file baseless police reports against R.S., and his attempt to file baseless criminal complaints against the former governor of Pennsylvania and the Pennsylvania attorney general demonstrate that he clearly violated the Rule. Indeed, respondent conceded during oral argument before us that his conduct violated RPC 8.4(c). Thus, we consider respondent's uncharged misconduct to be an aggravating factor. See In re Steiert, 201 N.J. 119 (2010) (evidence of unethical conduct contained in the record can be considered in aggravation, even though such unethical conduct was not charged in the formal ethics complaint).
In determining the appropriate measure of discipline, we consider the interests of the public, the bar, and respondent. "The primary purpose of discipline is not to punish the attorney but to preserve the confidence of the public in the bar." (citations omitted). Fashioning the appropriate penalty involves a consideration of many factors, including the "nature and severity of the crime, whether the crime is related to the practice of law, and any mitigating factors such as respondent's reputation, his prior trustworthy conduct, and general good conduct." In re Lunetta, 118 N.J. 443, 445-46 (1989).
The Court has noted that, although it does not conduct "an independent examination of the underlying facts to ascertain guilt," it will "consider them relevant to the nature and extent of discipline to be imposed." In re Magid, 139 N.J. at 452. In motions for final discipline, it is acceptable to "examine the totality of the circumstances," including the "details of the offense, the background of respondent, and the pre-sentence report" before "reaching a decision as to [the] sanction to be imposed." In re Spina, 121 N.J. 378, 389 (1990). The "appropriate decision" should provide "due consideration to the interests of the attorney involved and to the protection of the public." Ibid.
That an attorney's conduct did not involve the practice of law or arise from a client relationship will not excuse an ethics transgression or lessen the degree of sanction. In re Musto, 152 N.J. 165, 173 (1997). Offenses that evidence ethics shortcomings, although not committed in the attorney's professional capacity, may, nevertheless, warrant discipline. In re Hasbrouck, 140 N.J. 162, 167 (1995). The obligation of an attorney to maintain the high standard of conduct required by a member of the bar applies even to activities that may not directly involve the practice of law or affect his or her clients. In re Schaffer, 140 N.J. 148, 156 (1995).
Here, respondent first met R.S. when he waited at a train station where he knew, due to his prior surveillance of R.S., that she would be boarding a particular train. Respondent did not take the train that day, and instead, told R.S. he only appeared to meet R.S. in person, after having left a "note of flirtation" on her car months earlier. R.S. made clear in the early text messages that she exchanged with respondent that she was a very busy woman and was only interested in a friendship with respondent.
Nevertheless, in the four weeks that respondent and R.S. consensually communicated - leading up to R.S.'s September 7, 2019 text message terminating the relationship - respondent sent R.S. text messages stating that he loved her and would marry her, feelings R.S. clearly communicated to respondent that she did not reciprocate. However, beginning in earnest on August 26, 2019, respondent began sending R.S. increasingly graphic, sexual text messages. R.S., multiple times and in various ways, told respondent to stop and that the two were "friends, period."
Respondent was unable to accept that R.S. was not romantically interested in him and rejected her requests to stop sending romantic text messages and to stop sending so many text messages. Then, beginning on September 6, 2019, respondent dramatically escalated the sexual content of the text messages he sent to R.S., because, as respondent stated, he felt "disrespected." The record does not reflect any reason respondent would have felt disrespected by R.S. but for her lack of romantic interest in him.
Thus, respondent, who has demonstrated a disturbing inability to take "no" for an answer and an inability to respect the position of a woman who had made it clear she was never interested in anything more than a friendship, launched into a series of unrelenting text messages and voicemail messages in which he unleashed his sexual desires onto her, even though she explicitly told him, on multiple occasions, that she did not want a romantic relationship. In reaction to R.S.'s unequivocal statements that she wanted only friendship, respondent told her that he had lied and that he did, in fact, have firearms at his home. Furthermore, respondent, leveraging his status as an attorney, threatened to utilize his contacts at the FBI and CIA in connection with R.S.'s status in the United States. Additionally, not content to inundate R.S. with unwanted sexual messages, respondent went to his local police department, as well as the Pennsylvania Attorney General's office, in an attempt to file baseless criminal reports against R.S. When law enforcement authorities asked respondent what crimes R.S. committed, instead of providing information regarding a crime, respondent largely discussed only what he wanted to do sexually to R.S., going so far as to act out corresponding, sexually explicit gestures at the police department and the Pennsylvania Attorney General's office.
Respondent also left R.S. two voicemail messages, laced with profanity and derogatory names, in which he again leveraged his status as an attorney when he offered to draft an "airtight" contract that would permit respondent to have sexual intercourse with R.S. to avoid her accusing him of rape. Also in the voicemail messages, respondent articulated his belief that R.S. had been interested in him romantically since they first met - a belief that is clearly not supported in the text messages exchanged between respondent and R.S. Respondent's demonstrated inability to conform his behavior in a way that comports with facts, especially those with which he disagrees, is highly disturbing. Additionally, respondent's repeated statements referring not only to R.S. in a derogatory manner, but women in general, are extremely alarming.
Although respondent unquestionably disseminated misogynistic and homophobic content as a part of his harassment of R.S., his hateful speech, while discriminatory and anathema to participation in the bar, was not conduct in which respondent "engage[d], in a professional capacity," which would have been a violation of RPC 8.4(g).
Even after he pled guilty to stalking R.S., respondent could not accept responsibility for his own actions, and instead, stated to the Pennsylvania court that he felt that R.S. humiliated him and that she had "led him on," a claim not supported by the record. Even if there were flirtatious messages exchanged between the parties, respondent's criminal conduct clearly was not justified. To the contrary, as a result of respondent's increasingly alarming conduct, R.S. purchased a firearm, obtained a license to carry the firearm, and became a member of a shooting club in order to protect herself against respondent.
Thus, based on respondent's guilty plea to stalking, we find that respondent violated RPC 8.4(b). The only remaining issue is the appropriate quantum of discipline to be imposed for respondent's misconduct.
Attorneys found guilty of harassment or stalking have received discipline ranging from a reprimand to a term of suspension, depending on the duration of the offending behavior, whether the attorney had a history of stalking or harassment, and whether the attorney was suffering from mental illness.
For example, in In re Frankfurt, 159 N.J. 521 (1999), the Court suspended an attorney for three months, on a motion for final discipline, where the attorney pleaded guilty to a charge of fourth-degree stalking, in contravention of N.J.S.A. 2C:12-10(b). The victim was a Passaic County judge. During a one-month period, the attorney visited the judge's chambers on numerous occasions and asked to speak to her, although he had no matters pending before her. Even after the attorney was told that the judge would not speak to him, he returned to her chambers repeatedly and asked to speak with her. The attorney also was found guilty of contempt for failing to appear at a trial, after having been directed by a judge to appear.
Four years later, in In re Thakker, 177 N.J. 228 (2003), we imposed a reprimand on an attorney who pleaded guilty to one count of harassment. The attorney made repeated telephone calls in the span of a few hours to his former client and asked to speak with her husband. Respondent knew, and the client repeatedly reminded him during his first several calls, that her husband had been committed to a correctional facility that same day for an assault upon her. After the client called the police, the responding officer warned respondent over the telephone to cease harassing the client or be charged with harassment. The attorney then challenged the officer to come to his house and fight him.
Later, in In re Wachtel, 194 N.J. 509 (2008), an attorney was suspended for six months for stalking two individuals. In the first matter, Wachtel left numerous threatening telephone messages for his wife's attorney, and inappropriately sent a box of feminine hygiene products with an obscene note attached, intended for that attorney's pregnant daughter. The note wished for the mother-to-be's death during childbirth. In a second matter, Wachtel threatened a court-appointed mediator by leaving obscene messages for her with references to "doing certain sexual acts" to her. In aggravation, Wachtel had previous involvement with the law, including a 2005 guilty plea to disorderly conduct and possession of drug paraphernalia after an arrest for shoplifting, and a 2006 guilty plea to harassment, a disorderly persons offense. In further aggravation, as executor of his late father's estate, Wachtel sent his sister's attorney a harassing letter and left two harassing, obscene messages on the attorney's answering machine.
The same year, in In re Beatty, 196 N.J. 153 (2008), an attorney received a three-month suspension after he pleaded guilty to fourth-degree stalking, in violation of N.J.S.A. 2C:12-10(b). In that case, the attorney was a security guard at Monmouth Park Racetrack and became fixated on a young woman who was a frequent guest of a horse trainer. When the woman ceased appearing at the racetrack, Beatty convinced himself that something terrible must have happened to her. Therefore, he traveled to the horse trainer's home in South Carolina, in an effort to locate the woman.
Additionally, the year before he began employment at the racetrack, Beatty stalked his neighbor. The neighbor had turned down Beatty's invitation to dinner, so he contacted the police. With no basis in fact, Beatty had imagined that the neighbor had hosted a loud party at her apartment, at which a young man was tortured in preparation for his murder. Eventually, Beatty's conduct deteriorated to the point that he was caught peering into the neighbor's apartment window while she dressed. After the neighbor moved away, Beatty located her and resumed his stalking by again peering into her window. Beatty admitted that he had suffered from mental illness, for which he had been treated for thirty years.
We found that Beatty's misconduct, which occurred over two years, was more serious than the attorney's misconduct in Frankfurt. Furthermore, we were troubled that Beatty stalked the woman at the racetrack while enrolled in Pre-Trial Intervention for having previously stalked his neighbor. Nevertheless, we declined to suspend Beatty for six-months, finding that the conduct in the cases in which an attorney received a six-month suspension for stalking and harassment were more alarming than Beatty's conduct.
In In re Witherspoon, 203 N.J. 343 (2010), the attorney received a one-year suspension after being found guilty of sexually harassing four female bankruptcy clients. In all four matters, the attorney repeatedly made sexual propositions that they interpreted as offers of his legal services in exchange for sex. In two of them, he discriminated on the basis of sexual preference.
Specifically, Witherspoon offered to pay a filing fee for client S.B., a lesbian, if she and her female friend "made out" in front of him and commented to S.B., that "gay women" often "came on" to him. On another occasion, he offered to pay a court fee if S.B. lifted her skirt. In a third incident, when S.B. tried to pay the outstanding legal fee, he told her that he would waive it if he could watch her and her female friend engage in sex or if they allowed him to join them for sex. In the Matter of David J. Witherspoon, DRB 08-302 (July 23, 2009), at 14-15.
On another occasion, knowing that another bankruptcy client, A.C., was a lesbian, Witherspoon suggested to the client that her sexual preference may have come about as the result of a bad experience with "the male sex organ." A.C. interpreted this comment as a slur. At the conclusion of her bankruptcy case, Witherspoon told her that he was a "breast man," liked the way she looked, and would refund $660 of his legal fee if she came back to his office to join him on his office couch. Witherspoon was also guilty of engaging in conflicts of interest with his female clients, practicing law while ineligible, and recordkeeping deficiencies. In aggravation, he showed no remorse for his actions and had two prior admonitions, a reprimand, and a censure.
More recently, in In re Garofalo, 229 N.J. 245 (2017), an attorney was suspended for six months for sexually harassing two former employees of the law firm where he had been a partner. The firm's internal investigation revealed that Garofalo had sent a series of harassing e-mails to his victim, W.B., over the 2011 calendar year, wherein Garofalo referred to W.B. by derogatory names.
With respect to a second victim, C.D., Garofalo had engaged in a brief, consensual sexual relationship with her in 2005, and thereafter, the two remained socially friendly until the end of 2009, when C.D. told Garofalo she no longer wanted him to communicate with her. From 2009 to 2014, C.D. told Garofalo to stop contacting her; however, Garofalo continued to send her unwanted and unsolicited correspondence. A number of the e-mails that Garofalo sent C.D. requested that the two go out for lunch or for drinks after work. The communications were often sexual in nature, referring to C.D. as a "love doll, sex toy, love kitten, sweetie pie, lover, sweetheart, darling, sweet pea, sweet cheeks, love muffin, sweet meats, love cakes, sweetness, sexy, and sexy girl." We found that these communications were "variously offensive, insulting, and demeaning."
Additionally, Garofalo repeatedly expressed his love for C.D. and even asked her to marry him. However, he also referred to her as a "bitch" or an "asshole" and made offensive remarks about her weight. Ultimately, between 2009 and 2015, Garofalo sent C.D. hundreds of unwanted e-mails. C.D. attempted to file a police report against Garofalo to document his harassment, but the police seemingly did not act on her concerns.
We found, in aggravation, Garofalo's failure to stop harassing C.D., despite multiple warnings and opportunities to correct his conduct. In mitigation, we found that Garofalo had no disciplinary history in eighteen years at the bar and that he sought medical counseling to address his conduct.
In another recent case, in In the Matter of Milena Mladenovich, DRB 21-200 (March 11, 2022), we transmitted a decision to the Court in which we imposed a three-month suspension on an attorney who repeatedly threatened her former psychologist by sending at least seventeen voicemail messages and numerous text messages containing threatening and anti-Semitic language. The messages included death threats that the attorney would "bury" the psychologist with her "bare hands" and "end" her with a firearm. To emphasize the threat, the attorney sent the victim a picture of a gun above a religious text. The attorney's alarming messages caused significant emotional distress to the psychologist, who previously had been victim to the attorney's stalking and threatening behavior two years earlier. We found that Mladenovich's conduct lasted several weeks, disparaged the psychologist's Jewish faith, and caused the psychologist severe emotional distress to the point where she was afraid to leave her home.
Here, respondent's misconduct is demonstrably worse than addressed in Garofalo, where we imposed a six-month suspension. As in Garofalo, both respondent and Garofalo became friendly with their victims, but when the victims did not reciprocate the love the attorneys felt for the women, both respondent and Garofalo reacted with anger, derogatory name-calling, and an inundation of unwanted communications.
Where the misconduct between respondent and Garofalo diverge initially is the speed with which respondent expressed an entitlement to a sexual relationship with R.S., despite her clear statements at the beginning of their relationship that she only wanted friendship. Garofalo's misconduct arose from a different type of relationship - one in which Garofalo and his victims were employed at the same law firm, misconduct which brings with it considerations of the role of power and subordination that are not present in this case. However, here, R.S. was effectively a stranger to respondent, who began his attempt at "romance" by leaving a note on R.S.'s vehicle months before they actually met in person. Then, once respondent and R.S. met in person, despite R.S.'s declination of a romantic relationship, respondent continually sent R.S. sexual messages he knew she did not want. Indeed, in Garofalo, the attorney sent hundreds of unwanted messages to his victim over six years. Here, respondent sent R.S. hundreds of unwanted messages in the seven days surrounding R.S.'s termination of their relationship but authored the majority of the 2,748 text messages exchanged between the two parties between August 7 and September 12, 2019.
Furthermore, respondent threatened R.S. with firearms and leveraged his law license with veiled threats regarding R.S.'s status in this country - solely because she did not accept his sexual advances. Further, respondent offered to draft an "airtight" contract - at no legal cost to R.S. - which would permit respondent to have sexual intercourse with R.S. and which would insulate him against any allegations of rape. Respondent also violated the court-imposed no-contact order two times, by sending R.S. an apology card and calling her. It is unconscionable that an attorney licensed to practice law in New Jersey would violate a court order on two separate occasions.
Just as Garofalo continued to harass his victim despite her repeatedly asking him to cease communication, here, respondent unleashed his fury on R.S. after she sent him a text message terminating their relationship. However, even before R.S. terminated their friendship, respondent continued to send correspondence to R.S. containing unwanted sexual content. Moreover, respondent's unrelenting criminal conduct caused R.S. so much fear that she felt she needed to purchase a firearm, obtained a license to carry the firearm, and join a shooting club in order to protect herself against respondent.
In further aggravation, unlike the facts of Garofalo, respondent attempted to file two separate baseless police reports against R.S., alleging an amorphous fraud that she was perpetrating on respondent. Respondent also told R.S. he was going to utilize his contacts at the FBI, CIA, and his former law firm to conduct background checks on her, and implicating R.S.'s status in the United States.
Finally, respondent failed to report his criminal charges or conviction to the OAE as R. 1:20-13(a)(1), requires.
In mitigation, respondent has been a member of the bar for thirty-five years with no disciplinary history.
Although we cannot ignore the role respondent's mental health may have played in his misconduct, respondent expressly stated in his Pennsylvania ethics proceedings that the mental health evaluation Bell performed, in addition to the information provided by his treating psychiatrist, Dr. Maleson, would fail to satisfy the Braun standard for mitigation in Pennsylvania. Braun is akin to our own stringent Jacob standard (a demonstration by competent medical proofs that the attorney "suffered a loss of competency or will of a magnitude that could excuse egregious misconduct that was clearly knowing, volitional and purposeful"). In re Jacob, 95 N.J. 132 (1984).
Moreover, respondent has conceded that his mental health issues failed to establish a causal connection between his conduct and diagnoses. Notably, neither Bell nor Dr. Maleson offered the opinion that respondent's conduct was attributable to his mental health. Instead, both Bell and Dr. Maleson focused on respondent's present mental health and their attempts to help respondent understand why his criminal conduct was problematic.
However, despite participating in treatment for nearly eighteen months, respondent, at his Pennsylvania ethics hearing, still focused on the impact his conduct had on his own life. Rather than acknowledge the harm R.S. suffered in that she no longer felt like she could be an independent woman; had to obtain weapons to protect herself against respondent; had a huge mental scar; and was afraid to leave her home, respondent's testimony focused on the loss of his livelihood and gave only lip service to being remorseful for his conduct. Respondent's inability to acknowledge, at the ethics hearing, the impact his actions had on R.S. is particularly troubling. Respondent should have been clearly aware of the consequences of his actions, because R.S. offered testimony both at respondent's criminal sentencing hearing and his ethics hearing about the fear she felt due to respondent's conduct. Thus, it is concerning that, despite hearing directly from his victim on two separate occasions, and despite engaging in sporadic treatment, respondent was unable to accept responsibility for his actions. Indeed, respondent's continuing failure to appreciate the impact his behavior had on R.S. is generally consistent with his refusal to respect R.S.'s requests that he cease sending graphic sexual messages because he is focused instead on his own desires and the impact his actions have had on his own life. It is also consistent with his communications with the OAE wherein he complained about the "harshness" of the discipline he received in Pennsylvania.
Therefore, we assign minimal weight to respondent's mental health diagnoses as a mitigating factor, particularly because of his own concession that there was no link between his conduct and his mental health, and the lack of medical documentation establishing any link between respondent's behavior and his diagnosis. Similarly, respondent did not offer his mental health as a mitigating factor in his presentation to us during oral argument.
Thus, on balance, we determine that an eighteen-month suspension is the appropriate quantum of discipline necessary to protect the public and to preserve confidence in the Bar.
As conditions precedent to reinstatement, we determine that respondent must provide to the OAE (1) proof of ongoing compliance with psychiatric treatment, and (2) proof of his fitness to practice law, as attested to by a medical doctor approved by the OAE.
Chair Gallipoli voted to impose a three-year suspension with the same conditions.
Member Joseph was absent.
We further determine to require respondent to reimburse the Disciplinary Oversight Committee for administrative costs and actual expenses incurred in the prosecution of this matter, as provided in R. 1:20-17.