A Newark, N.J., solo practitioner with a history of flouting ethics rules faces a three-month suspension or longer for making improper sexual remarks to four female clients and friends.
Appearing before the New Jersey Supreme Court on Dec. 1, David Witherspoon said he regretted his comments and said he was ready to accept the three-month suspension recommended by a majority of Disciplinary Review Board.
John McGill III, counsel to the Office of Attorney Ethics, told the Court that Witherspoon had fully cooperated with the ethics investigation and had admitted responsibility for all the material allegations. His cooperation negated the need to have the women testify before the DRB, which could have been "embarrassing and humiliating" for them, McGill said, noting that in view of Witherspoon's cooperation, the OAE had recommended only a censure.
But the DRB found the seriousness of the acts deserving of a suspension, and two members even recommended that it be for six months, based on what they called "lack of candor," "arrogance" and "lack of moral values." In the Matter of David J. Witherspoon, D-157-08.
Witherspoon -- now charged with violating Rules of Professional Conduct 1.7(a)(2), for advancing his own prurient interests over the legal interests of his clients, and 8.4(g), for engaging in discriminatory conduct -- has been reprimanded twice before and censured once, primarily for not communicating with clients and for shoddy record-keeping.
His attorney, Seton Hall University law professor Bernard Freamon, told the Court that Witherspoon "fully understands the seriousness" of the allegations and "is totally remorseful."
Chief Justice Stuart Rabner asked why it has taken Witherspoon so long to understand the seriousness of the disciplinary system.
Freamon said Witherspoon, who was admitted to the bar in 1994, spent seven years in banking on Wall Street where such bad behavior is not taken as seriously as it is in the legal profession.
"He did not really get the meaning or purpose," he said. "When it became apparent he was facing suspension or disbarment, he realized that this was not just a regulatory matter."
The incidents involving the four women occurred in 2005 and 2006, said Freamon, and at that time Witherspoon was under a great deal of stress. "Nothing like that has happened since," he said.
Justice Virginia Long asked if Witherspoon has apologized. Freamon said Witherspoon has apologized to three of the women and cannot find the fourth.
Witherspoon spoke to the Court on his own behalf. "I do want to express my regret for my behavior," he said, admitting that until recently he did not take the attorney disciplinary system as seriously as he should have. "It took me months to understand that the RPCs are there to help my practice," he said.
Witherspoon said he has taken five steps to improve himself professionally. Witherspoon said he has taken professional responsibility courses, hired an accounting firm, adopted a policy of immediately returning telephone calls and conducted his own audit of his business and trust accounts.
"When someone comes into my office, professionalism should start right then," he said.
Justice Barry Albin noted that four women filed complaints against him. "That's really remarkable. Do you understand that?" he asked.
"Yes, I do," Witherspoon replied.
Justice Roberto Rivera-Soto asked Witherspoon to talk about himself. "Tell us who David Witherspoon is."
Witherspoon said he grew up in Teaneck, N.J., the son of a accountant mother and a father who was a business administrator and an attorney. He said he was the youngest of three children, and has two children of his own.
He graduated from Morehouse College in Atlanta with a degree in accounting and earned an MBA from the Wharton School of the University of Pennsylvania. After that, he worked on Wall Street for a bank before being admitted into Rutgers Law School-Newark. After he graduated and was admitted to the bar, he became a solo practitioner specializing in bankruptcies and tax appeals.
Speaking again, Freamon urged the Court to adopt the minimum suspension and consider appointing a proctor for Witherspoon. "Mr. Witherspoon is trying to turn the corner," Freamon said. "I don't believe you will see Mr. Witherspoon again."
