DISCIPLINARY PROCEEDING instituted by the Grievance Committee for the Ninth Judicial District. The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on September 12, 1984, under the name Philip Joseph Smallman.

Courtny Osterling, White Plains, NY, for petitioner.

Scalise & Hamilton, P.C., Scarsdale, NY, (Deborah A. Scalise of counsel), for respondent.

OPINION & ORDER

The Grievance Committee for the Ninth Judicial District commenced a formal disciplinary proceeding against the respondent by serving and filing a notice of petition dated July 15, 2021, and a verified petition dated May 24, 2021. The respondent, through counsel, served and filed a verified answer dated August 10, 2021, largely admitting to the factual specifications contained in the petition, denying the conclusion of law as to charge one in the petition, and conceding charge two. The Grievance Committee filed a statement of disputed and undisputed facts dated October 15, 2021, which was not challenged by the respondent. By decision and order on application dated February 17, 2022, this Court referred the matter to Norma Giffords, as Special Referee, to hear and report. A prehearing conference was conducted on July 13, 2022. A disciplinary hearing was held on four separate dates: September 9, 2022, December 20, 2022, January 30, 2023, and April 11, 2023. By report dated July 5, 2023, the Special Referee sustained both charges in the petition.

The Grievance Committee now moves to confirm the Special Referee's report and to impose such discipline upon the respondent as this Court deems just and proper. The respondent cross-moves to disaffirm so much of the Special Referee's report as sustained charge one and requests that the Court deny the Grievance Committee's motion to confirm the Special Referee's findings as to charge one; concedes the Special Referee's findings that charge two be affirmed; and requests that this Court impose discipline in the form of an admonition or private reprimand, but no greater than a public censure if both charges are sustained. In view of the evidence adduced at the hearing, we find that the Special Referee properly sustained both charges in the petition and both [*2]charges are sustained.

The Petition

Charge one alleges that the respondent employed coercion, intimidation, or undue influence in entering into sexual relations incident to his professional representation of a client, CL, in violation of rule 1.8(j)(1)(ii) of the Rules of Professional Conduct (22 NYCRR 1200.0). In March 2017, the respondent was appointed to represent CL following her indictment on charges of murder in the second degree. In March 2017, CL pleaded not guilty to the murder charge and, pending trial, she was remanded to the custody of the New York City Department of Correction and housed at Rikers Island. Thereafter, representatives of the Women's Prison Association met with CL and prepared a background narrative of her, which was provided to the respondent. This narrative revealed that CL was a survivor of childhood and adult sexual trafficking and was certified by New York State as a trafficking survivor. Upon receiving this information, the respondent filed a motion seeking CL's release from custody, which was granted upon the condition that CL live with her mother upon her release. CL agreed to the condition and was released from custody on April 3, 2020.

Subsequent to CL's release from custody, the respondent learned that CL was not living with her mother, in violation of CL's conditional release. The respondent telephoned CL and sent her text messages. In an exchange of text messages in September 2020, CL sent the respondent pictures of herself in which she was partially clothed. The respondent replied via text that additional pictures should be sent. CL complied with the respondent's request, to which the respondent replied that he was physically aroused. The respondent and CL agreed to meet at the respondent's office on September 21, 2020. At this meeting, they discussed the respondent's filing of a civil suit on CL's behalf and the terms of a written retainer agreement related to the civil suit. Also at this meeting, CL performed an act of fellatio on the respondent.

Charge two alleges that by the aforementioned facts, the respondent engaged in conduct that adversely reflects on his fitness as a lawyer, in violation of rule 8.4(h) of the Rules of Professional Conduct.

The Hearing

At the hearing, the respondent testified that the Honorable Vincent Del Giudice of the Supreme Court, Kings County, assigned the respondent as counsel on CL's criminal matter, wherein she was indicted on the top count of murder in the second degree and remanded to Rikers Island. The respondent stated that it was a complicated case for which he retained an investigator, and the court appointed a psychiatrist to evaluate CL. Regarding the findings, the respondent stated, "To my knowledge, [CL] had a long and troubled history going back to her grammar school years, a dysfunctional family, if you will. I believe her mother was involved in the sex trade as well, and I guess the simple way to say it is she probably just acted out in a number of ways from a very early childhood, which resulted in conflict with various governmental agencies; resulted in placement in group homes, which obviously, is not a very good setting." The respondent stated that CL's designation as a trafficking survivor was a result of her prior exposure of being placed in a home, where abuse was alleged to have taken place, and formed the basis for CL to file a civil lawsuit. Based on CL's status as a survivor of human trafficking, and due to the COVID-19 pandemic, the respondent made an application that CL be released from Rikers Island pending trial. CL was released from custody with the condition that she remain with her children at her mother's home. The respondent learned from CL's mother that CL was not abiding by the terms of her conditional release, and he contacted CL via phone. Thereafter, the respondent and CL exchanged multiple text messages, which the respondent characterized as becoming "completely inappropriate." The respondent received text messages from CL with photographs in which she was partially clothed, and the respondent requested that CL send additional photographs. The respondent and CL continued their text message exchange in a sexual nature, and discussed CL's criminal matter while having referenced the terms of her pretrial conditional release. The respondent and CL agreed to meet at the respondent's office in Brooklyn. The respondent testified that there "was some back and forth about picking a date and a time, and I did write, 'It's a date.' She wrote, 'Then see you Monday, Mr. Smallman,'" to which the respondent replied, "'Aw, I'm blushing.' She wrote, 'Yes. Me too.' I wrote, 'Maybe more,' and she wrote, 'Like,' with four question marks."

The respondent testified that their in-person meeting at his Brooklyn office lasted approximately 10 to 15 minutes, during which the respondent informed CL of an attorney who would handle her civil suit, and reminded her of the terms of her conditional release. The respondent stated [*3]that at the conclusion of the meeting, he got up to leave, CL approached him and got close to him, and extended her hand towards the respondent's crotch. The respondent testified that he "let the situation continue to unfold, and she performed oral sex." The respondent stated he did not request that CL do anything, that there was no dialogue that he could recall, and that he did not tell CL to stop. However, the respondent did recall that he loosened his belt. On cross-examination, the respondent was asked about the version of events in a report from the respondent's psychiatrist, Paul Schienberg, which stated, "At some point, [the respondent] asked [CL] to meet him at his office for the purpose of discussing her cases. At the time, he rented an office in a dentist's suite. She met him there as he had requested. When she arrived at the office, he requested that she perform fellatio and he touched her breasts" (emphasis added). When questioned regarding the inconsistency between Schienberg's report and the respondent's testimony, the respondent stated that he recalled having telephone interviews over several sessions with Schienberg, but that he did not agree with or adopt several findings in Schienberg's report, which the respondent thought were "inaccurate." The respondent testified that the interactions with CL were consensual, he expressed remorse for his misconduct, and stated that the conduct was aberrational.

The text messages between the respondent and CL show that the sexual text messages began on Friday, September 11, 2020, when CL sent the respondent a picture of herself partially clothed. The next day, the respondent initiated the sexual text messaging, including telling CL that it was "[h]ard to show you what needs to be done," and that it was "[m]uch easier to go over in person." The respondent and CL then agreed to meet on Monday, September 21, 2020, which is when the physical sexual contact occurred.

The respondent denied demanding sexual relations from CL, nor did he employ coercion, intimidation, or undue influence in entering into sexual relations with CL. The respondent withdrew his representation of CL only after a complaint was filed against him. He also withdrew from the Assigned Counsel Plan panel for the City of New York.

The respondent testified in mitigation regarding his struggles with alcohol addiction, health issues, and family issues. The respondent further testified regarding remedial measures he has taken, including that he no longer represents female clients, that he attends weekly therapy sessions, that he has returned to Alcoholics Anonymous, that he participates in the Lawyers Assistance Program, that he is preparing for retirement, and that he has been supporting his family members through medical issues that they were experiencing. Further in mitigation, the respondent testified that he engaged in pro bono work throughout his career, most notably, he worked on two exoneration matters that resulted in those clients being released from prison. The respondent further testified that he, along with a professor from Brooklyn Law School, "started" the original Innocence Project at Brooklyn Law School, which "started a bunch of others," but he did not provide any additional evidence to support that claim.

The Special Referee's Report

In sustaining both charges, the Special Referee found that: