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Suppose a non-lawyer does something wrong, perhaps something very wrong, but the misdeed is unrelated to the practice of law or even to the process of becoming a lawyer. It does not involve dishonesty or stealing money. If this wrongdoer subsequently becomes an attorney, must he hold his breath, worrying about the possibility of professional discipline forever, or is there some time after which he may breathe freely? The treatment of Raymond H. Wong by bar disciplinary authorities in New Jersey and New York provides provocative answers to these questions, while raising new issues as to the legitimate purposes of professional discipline and as to how the authorities of states which have not yet confronted such a case might respond in similar circumstances. In 1986, as a 30-year-old law student, Wong participated in a gymnastics practice during which he committed acts involving the sexual touching of a 10-year-old girl. These acts did not immediately come to light and, in 1988 and 1989, Wong became a member first of the New York bar, and, second, of the New Jersey bar. On July 26, 1993, seven years after the event, the victim reported Wong’s conduct to a New Jersey prosecutor. On December 13, 1994, a charge was filed against Wong for endangering the welfare of a child. Although there was little or no evidence to corroborate the accusations, Wong — along with his attorney — met with the investigating prosecutor, the victim and the victim’s family in December, 1994, contritely admitted what he had done and apologized for it. An attorney at New Jersey’s Office of Attorney Ethics, who was involved in the subsequent disciplinary action against Wong, told me quite candidly that, absent Wong’s admission, it was highly unlikely that Wong would have been found guilty of criminal or unethical conduct. Yet when Wong, who had an otherwise unblemished record, acknowledged his guilt and asked for forgiveness for conduct now eight years in the past, his problems began anew. The criminal charge against Wong was dismissed on January 19, 1996, after he successfully completed a New Jersey pre-trial intervention program. Nevertheless, in New Jersey, the Office of Attorney Ethics is notified whenever an attorney participates in pre-trial intervention. When the Office of Attorney Ethics learned of Wong’s past conduct, it initiated disciplinary proceedings against him. Neither the victim nor the victim’s family encouraged the filing of the disciplinary proceedings. On October 7, 1998, the New Jersey Disciplinary Review Board concluded that Wong should be reprimanded for having violated the New Jersey rule against “criminal conduct that reflects adversely on an attorney’s honesty, trustworthiness or fitness,” and, in January 1999, the New Jersey Supreme Court reprimanded Wong, required him to perform 250 hours of community service and ordered that the entire record be made a permanent part of Wong’s file as a New Jersey attorney. Although there was no evidence of any prior or subsequent misconduct by Wong, other than this 13-year-old event, the supreme court’s order specifically provided that the 250 hours of community service “not involve any activities with children.” New York’s Departmental Disciplinary Committee then filed a complaint against Wong seeking to have him disciplined for his 1986 conduct, based on the fact that he had been similarly disciplined in New Jersey. New York law, as that of most other jurisdictions, embraces the concept of “reciprocal discipline” and explicitly provides a streamlined procedure through which a New York attorney may be disciplined in New York for any conduct for which he was disciplined elsewhere. Among other things, Wong apparently argued that the New York authorities lacked jurisdiction to discipline him for conduct that occurred before he became a member of the New York bar. On June 30, 2000, the Appellate Division of the New York Supreme Court relied on the court’s broad and inherent authority to discipline members of the bar and — now 14 years after the incident — ruled that Wong should be publicly censured. In addition to underscoring the sweeping authority of attorney disciplinary officials, the New Jersey and New York actions against Wong raise concerns about the purposes for which this power is exercised. The most fundamental justification for disciplining lawyers is to protect the public from unfit practitioners, but this goal is most directly achieved through disbarring or suspending the offenders. Reprimands may marginally contribute to this objective by discouraging corrupting conduct which, if left unchecked, might lead to an attorney’s becoming unfit. In Wong’s case, however, there seems to have been no finding by the New Jersey or New York courts that there was any basis for worrying about any future wrongdoing. Neither court, for instance, asserted that he had any psychological or psychiatric disorder or required, as a condition to his continuing to practice law, that he receive any counseling. Attorney discipline is also sometimes justified by the purported need to maintain public confidence in the judicial system. This is why many ethics rules proscribe conduct that, although involving no real impropriety, give rise to an appearance of impropriety. In the case of Wong, however, there seems to have been no significant basis for concern on this score. New Jersey’s pre-trial intervention program is designed, in part, to protect the accused’s anonymity, and there appears to be no evidence of any media coverage — certainly not of any substantial media coverage — of any allegations against Wong prior to the disciplinary proceedings themselves. Even the New Jersey reprimand received relatively little press, and perhaps none in New York. Courts routinely deny that the purpose of attorney discipline is punishment. If so, the fact that Wong’s original conduct was abhorrent is not the issue. Instead, the question is whether disciplining Wong now promotes the legitimate objectives of the disciplinary system. Neither the relatively brief New Jersey Supreme Court’s order nor the considerably longer New York court’s opinion asks, let alone answers, this question. Steven H. Resnicoff is a Professor at the DePaul University College of Law and currently occupies DePaul’s Wicklander Chair for Professional Ethics. A graduate of Princeton College and Yale Law, an ordained rabbi, and a prolific author, Resnicoff has widely lectured regarding legal and medical ethics as well as about the interrelationship between religious and secular legal systems.

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