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In re Lever (N.Y.App.Div. 12/30/2008)

December 30, 2008

IN THE MATTER OF STEVEN J. LEVER, (ADMITTED AS STEVEN JON LEVER), AN ATTORNEY AND COUNSELOR-AT-LAW:
DEPARTMENTAL DISCIPLINARY COMMITTEE FOR THE FIRST JUDICIAL DEPARTMENT, PETITIONER,
v.
STEVEN J. LEVER, RESPONDENT.



Disciplinary proceedings instituted by the Departmental Disciplinary Committee for the First Judicial Department. Respondent, Steven J. Lever, was admitted to the Bar of the State of New York at a Term of the Appellate Division of the Supreme Court for the Second Judicial Department on September 20, 2000.

Per curiam.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

David B. Saxe, Justice Presiding, Luis A. Gonzalez, Eugene Nardelli, James M. Catterson and James M. McGuire, Justices.

M1412

M-1412 (April 25, 2008) IN THE MATTER OF STEVEN J. LEVER, AN ATTORNEY

Respondent Steven J. Lever was admitted to the practice of law in the State of New York by the Second Judicial Department on September 20, 2000. At all times relevant to these proceedings, respondent maintained an office for the practice of law within the First Judicial Department.

In November 2006, respondent was served with a notice and statement of charges alleging that he engaged in illegal conduct that adversely reflected on his honesty, trustworthiness or fitness as a lawyer (see DR 1-102[A][3]), and further engaged in conduct that adversely reflected on his fitness as a lawyer (see DR 1-102[A][7]). Both charges arose from respondent's September 27, 2005 guilty plea in Supreme Court, Suffolk County, to the crime of attempted criminal sex act in the third degree (Penal Law §§ 110.00/130.40[2]), an A misdemeanor. Underlying the guilty plea was respondent's admission that he engaged in sexually explicit conversations over an internet chat room with an undercover police officer posing as a 13-year old girl, followed by his attempted meeting with the presumed minor for purposes of sexual contact. Respondent filed an answer in this proceeding, admitting the charges and requesting a hearing on mitigation.

In February 2007, a hearing was held before a Referee. For the most part, the dissent has accurately stated the evidence adduced at the hearing, which will not be repeated herein. The only omission was the testimony of two character witnesses. The first character witness, the chair of the intellectual property practice at a law firm, testified that he first met respondent in 1998, when he was respondent's supervising attorney at a New York City law firm. After his arrest, respondent called this attorney and told him what he had done. The witness testified that respondent had a reputation for honesty and integrity, notwithstanding the events leading to his conviction, and that respondent has a pending job offer with his current firm once these disciplinary proceedings are concluded*fn1. A second character witness testified that she grew up with respondent, and was close friends with his sister. She further testified that she had kept in touch with respondent, who had a reputation for being a smart and honest person, even after his conviction.

At the conclusion of the hearing, the Referee recommended a six-month suspension in light of the considerable evidence in mitigation. Although recognizing the seriousness of respondent's offense, the Referee was persuaded by the fact that there was no actual sexual contact with a minor, and that respondent "seems to have taken major steps to avoid any repetition of this abhorrent conduct."

A Hearing Panel of six Committee members heard oral argument and issued a report. The Panel distinguished, as inapposite, the case law relied upon by the Referee, on the ground that such cases did not involve minors at all, nor did they include sexually explicit conversations, followed by an attempted meeting with a minor for the purpose of engaging in sexual conduct. Instead, the Panel took the view that "preying upon ... minors for sexual gratification by means of the internet should be dealt with more harshly" than the six-month suspension proposed by the Referee. Accordingly, a majority of the Panel recommended that respondent be suspended for three years, or until the end of his criminal term of probation, whichever was longer, and that any reinstatement be conditioned upon a psychiatric evaluation. A sole dissenter on the Panel believed that a one-year suspension was appropriate.

The Committee now seeks an order confirming the Hearing Panel's findings of fact and conclusions of law, and imposing the Panel majority's recommended sanction of a suspension of three years, or until the conclusion of respondent's probationary period, whichever is longer. The Committee notes the lack of New York precedent involving attorney discipline matters involving convictions for sexually explicit conversations with a minor over the internet, followed by an attempted in-person meeting. Committee staff further notes that despite its initial recommendation of a six-month suspension, "upon reflection" it is persuaded that the three-year (or longer) suspension proposed by the Hearing Panel would send a strong message to both the bar and public that sexual misconduct involving minors will be met with a significant sanction.

Respondent has submitted a memorandum recommending an adoption of the Referee's report, including the recommended six-month suspension. He argues that the Hearing Panel ignored the substantial evidence of mitigation in his case. Further, he points to two disciplinary cases from sister states involving attorneys convicted of crimes involving sexually explicit conversations with minors over the internet that resulted in less severe sanctions than a three-year suspension (see In re Disciplinary Proceedings Against Engl, 283 Wis 2d 140, 698 NW 2d 821 [2005][public reprimand]; Attorney Grievance Commn. v Childress, 364 Md 48, 770 A2d 685 [2001][indefinite suspension, with no right to apply for reinstatement for at least one year]). Finally, respondent cites New York disciplinary cases where lawyers serving probation in criminal cases have been allowed to continue practicing law (see e.g. Matter of Cutler, 227 AD2d 8 [1996]; Matter of Minkel, 221 AD2d 28 [1996]), although none of these cases involved sexual conduct involving minors.

In determining an appropriate sanction for respondent's misconduct, we consider both the nature and severity of respondent's criminal conduct, as well as any aggravating or mitigating circumstances. We are further guided by the principle that the purpose of a disciplinary proceeding is not to punish the respondent attorney, but rather to determine the fitness of an officer of the court and to protect the courts and public from attorneys that are unfit for practice (Matter of Wong, 275 AD2d 1, 6 [2000]).

At the outset, we share three points of agreement with the dissent. First, respondent's use of the internet to prey on minors for purposes of sexual gratification is despicable and dangerous misconduct, that has brought shame to himself and to this State's bar. Second, serious misconduct of this type necessarily requires a significant sanction that will convey to members of the bar and public that this Court will not permit attorneys who engage in such immoral and criminal behavior to continue practicing law. Finally, we agree that there are no New York disciplinary cases directly on point, which requires us to review the most analogous precedents from this and other jurisdictions.

The most factually analogous case cited by either party is Matter of Engl, (283 Wis 2d 140, 698 NW2d 821 [2005]). The facts in Engl are nearly identical to the instant matter, where a young lawyer had sexually explicit conversations over the internet with a police detective posing as a 14-year old girl, and then arranged a meeting with the alleged minor, leading to his arrest. The attorney pleaded guilty to a D felony and was sentenced to 4 years probation, with conditions. Subsequently, the attorney stipulated with the Wisconsin disciplinary authorities that he had violated the disciplinary rules and that a public reprimand was the appropriate sanction. The stipulation specifically recited that a more severe sanction was not imposed due to the substantial evidence of mitigation, including a lack of prior disciplinary history, the attorney's extreme stress caused ...


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