Sex v. Money in Attorney Ethics – Two Recent Cases

Two cases of discipline and suspension involving professional misconduct of attorneys were decided within the same week in New York. Since all appellate departments in New York now follow the Rules of Professional Conduct under the New York State Unified Court System one can reasonably expect uniformity in the application of the law.

However the two cases and the related penalties on professional misconduct either serve to show the disparity between treating sexual misconduct and financial misconduct, as bearing on the profession, or they serve to show that ‘who throws the greater weight' matters in misconduct.


See also: Leave Sex, Politics, Religion, and Social Activism out of Your Job Search and Career If You Want to Work in a Large Law Firm

The earlier case, where the concerned attorney received a suspension of nine months, extended from an initial recommendation of three months, was of sexual misconduct. The accused used to be a member of the First Department's Attorney Character and Fitness Committee, and committed the sexual misconduct proving his loose character while serving on the Attorney Character and Fitness committee.

The suspension was passed by his own department, the First Department, and the court found the accused had groped a female client and took her hand in his and rubbed her hand all over his groin. Nine months suspension, for sexual misconduct by a senior attorney serving on the Attorney Character and Fitness Committee.

The other case, decided against an associate working in a private law firm is of financial misconduct. The associate billed his employers and clients without performing any work. The decision, passed by the Appellate Division, Third Department is suspension for two years.

What's the difference?

The first case, involving sexual misconduct with a client, was against a really senior lawyer, who argued that he suffered from periods of mental illness (when such things happened) and that he had paid damages to the client (money for sex) and that he had a “long and honorable” career as a lawyer (that no one had succeeded in exposing him earlier).

The court noted the “respondent failed to act in accordance with the high standards imposed upon members of the bar and his misconduct reflects adversely on his fitness as a lawyer and upon the legal profession.”

Sentence was suspension from the bar for nine months.

The second case was of a relatively new entrant to the profession. A music teacher, who worked in different schools as a music teacher, then did his law degree and joined the profession. His roots were not grounded and network was not strong. He had no “long and honorable” career as a lawyer and did not “suffer from periods of mental illness” when he engaged in misconduct. The court noted that upon being apprehended, the accused expressed regrets and said family problems and health issues contributed to his misconduct.

The court noted, “To protect the public, deter similar misconduct, and preserve the reputation of the bar, respondent should be suspended from the practice of law for a period of two years.”

Draw your own conclusions.

The first case is Matter of Greenberg, No. 00278, Appellate Division, First Department, Supreme Court.

The next one is the Matter of Mark D. Nizer, No. 4106894, New York Supreme Court, Appellate Division, Third Department.