Lawyer Ethics and the Registered Sex Offender

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 in New York for three years.

In a rare 3-2 decision in a disciplinary matter, a five-judge panel of the New York Appellate Division, 1st 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.

In a vehement dissent, Justices David B. Saxe and James M. Catterson argued for disbarment. 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,” 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.”

In November 2005, 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.

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.

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