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In re Legato

Supreme Court of New Jersey

May 24, 2017

IN THE MATTER OF MARK G. LEGATO, An Attorney at Law IN THE MATTER OF REGAN C. KENYON, JR., An Attorney at Law IN THE MATTER OF ALEXANDER D. WALTER, An Attorney at Law

          Argued June 21, 2016

         On Orders to show cause why respondents should not be disbarred or otherwise disciplined.

          Isabel K. McGinty, Assistant Ethics Counsel, argued on behalf of the Office of Attorney Ethics in the Legato matter.

          Hillary K. Horton, Deputy Ethics Counsel, argued on behalf of the Office of Attorney Ethics in the Kenyon and Walter matters.

          Robyn M. Hill argued the cause for respondent Mark G. Legato.

          Dominic J. Aprile argued the cause for respondent Regan C. Kenyon, Jr. (Bathgate Wegener & Wolf, attorneys).

          Frederick J. Dennehy argued the cause for respondent Alexander D. Walter (Wilentz Goldman & Spitzer, attorneys; Risa M. Chalfin, on the brief).

          TIMPONE, J., writing for the Court.

         In these matters, the Court considers the discipline to be imposed on attorneys, with no previous disciplinary history, who pled guilty to sex offenses in which their intended victims were children ranging in ages from nine to twelve. Under Rule l:20-13(c)(1), the respondents' convictions constitute conclusive evidence of their criminal conduct, as well as a violation of Rule of Professional Conduct 8.4(b), which proscribes commission of "a criminal act that reflects adversely on lawyer's honesty, trustworthiness, or fitness as a lawyer." The only task before the Court is to determine the appropriate discipline for each respondent's ethical violations. The Office of Attorney Ethics (OAE) and the Disciplinary Review Board (DRB) recommended that the Court disbar each respondent.

         Respondents Mark G. Legato and Regan C. Kenyon, Jr., each pled guilty to third-degree attempted endangering the welfare of a child. Legato admitted that he engaged in explicit online conversations with a person he believed to be a twelve-year-old girl. He also admitted to scheduling two in-person meetings with the girl, but did not appear at either. Unbeknownst to Legato, the girl was actually an undercover law enforcement officer. Following Legato's guilty plea, the OAE filed a motion for final discipline before the DRB. In a unanimous decision, the DRB voted for his disbarment.

         Respondent Kenyon admitted that over the course of approximately four months, he engaged in online conversations with a person he believed to be a fourteen-year-old girl. He sent her images of, and links to, hardcore adult pornography and arranged to meet the girl, but did not appear for the meeting. Kenyon was unaware that he was in fact communicating with an undercover law enforcement officer. Kenyon maintains that his conduct was the result of his addiction to pornography, for which he began treatment six days after his arrest. In a majority decision, the DRB voted to disbar Kenyon. Three members dissented, recommending instead an indeterminate suspension. In a separate dissent, one member recommended a one-year suspension.

         Respondent Alexander D. Walter pled guilty to third-degree endangering the welfare of a child. He admitted during his plea colloquy that on multiple occasions, between December 1, 2010 and April 1, 2011, he masturbated in the presence of a nine-year-old girl, who moved into his home with her mother. He admitted that he masturbated in front of the girl for his own sexual pleasure while the two were alone in the family swimming pool. Following review of the matter submitted on motion for final discipline filed by the OAE, seven members of the DRB recommended Walter's disbarment. Two members dissented-one recommended an indeterminate suspension and one recommended a two-year suspension.

         HELD: For respondents Legato and Kenyon, the Court imposes indeterminate suspensions from the practice of law, pursuant to Rule 1:20-15A(a)(2). The Court disbars respondent Walter, pursuant to Rule l:20-15A(a)(1).

         1. "The privilege to practice law is [dependent] on an attorney's ability to maintain a high moral character." In re Hasbrouck, 0 N.J. 162');">140 N.J. 162, 166(1995). Under Rule l:20-13(c)(1), a criminal conviction is evidence of guilt in a disciplinary proceeding and establishes a violation of Rule of Professional Conduct 8.4(b), prohibiting criminal conduct that "reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer." The criminal conduct need not "involve the practice of law or arise from a client relationship." In re Musto. 152 N.J. 165, 173 (1997). "[T]he primary purpose of discipline is not to punish the attorney but to preserve the confidence of the public in the bar." In re Cohen, 220 N.J. 7');">220 N.J. 7, 11 (2014). (pp. 7-8)

         2. The Court has refrained from establishing a bright-line rule requiring disbarment in all cases involving sexual offenses against children. Rather, the appropriate level of discipline may depend on different factors, such as whether the case "involved touching, physical violence, or actual dissemination [of child pornography] to others, the number of pictures or videos, or whether the perpetrator suffered from mental illness or sexual abuse himself or herself." Cohen, supra, 220 N.J. at 18. Thus, the imposition of discipline in cases involving sexual misconduct with a minor requires a fact-sensitive inquiry on a case-by-case basis, (p. 9)

         3. In Cohen, the Court addressed the disciplinary action appropriate for an attorney who pled guilty to second-degree endangering the welfare of a child, based on the attorney's possession of child pornography. Id. at 8. For the first time in a child pornography case, the Court imposed an indeterminate period of suspension on the attorney, specifically underscoring that he would be subject to "vigorous review" before being considered for readmission to the practice of law. Id. at 19. The Court found that the attorney's "alleged mental illness, his own experience being sexually abused as a child, and his cooperation in seeking treatment and his progress thus far" warranted some leniency and discipline less than full disbarment. Id. at 18. Although discipline for sexual offenses has occasionally been as mild as reprimand, the Court announced in Cohen that "attorneys must be on notice that engaging in this form of unlawful activity may be considered grounds for losing the privilege of membership in a distinguished and trusted profession." Id. at 18. The Court also put the bar on notice of the "more stringent approach [it] will take in disciplining attorneys for egregious offenses." Ibid, (pp. 9-13)

         4. The conduct of Legato aligns with the conduct of the respondent in In re Ferraiolo. 170 N.J. 600 (2002). Just as in that instance, Legato engaged in illicit online conversations with an individual he believed to be a minor. The attorney's conduct in Ferraiolo, however, was more egregious because he appeared at the arranged meeting with the child; whereas here, Legato never showed to meet the child in person, despite making arrangements to do so. In the fifteen years since Ferraiolo, the Court has recognized changing societal attitudes toward child sexual offenders and has put the bar on strict notice of stringent discipline for such offenses. Although the Court found a one-year suspension to be appropriate in Ferraiolo, today, the Court finds that indeterminate suspension is appropriate for Legato. Like Legato, Kenyon engaged in illicit online conversations with an individual he believed to be a minor, but he never met in person. Thus, Kenyon's conduct similarly merits indeterminate suspension, (pp. 14-15)

         5. The Court notes that the public will be protected while Legato and Kenyon are suspended and under parole supervision for at least fifteen years. They will not be able to access the Internet for non-work purposes, and their Internet usage will be monitored. With the protections of Megan's Law and parole supervision for life (PSL) in place, the Court stops short of eliminating all hope of future reinstatement. It is unlikely that Legato or Kenyon could successfully petition the Court for readmission while under PSL. The Court does not minimize the reprehensibility of Legato's and Kenyon's conduct simply because the minors were actually undercover agents. It does, however, find a significant distinction between online and personal physical contact, (pp. 15-17)

         6. Finally, the Court addresses the disbarment of respondent Walter. The Court agrees with the DRB's assessment that Walter's characterization of the course of events demonstrates that he does not appear to take full responsibility for his actions, but rather attempts to apportion blame to a nine-year-old child. Unlike Legato and Kenyon, Walter was not shielded by distance or the artificiality of online interaction. Walter has demonstrated that he is willing to take advantage of his power for his own benefit, encapsulating the precise object that the Court is tasked with maintaining-public confidence in the bar. (pp. 17-19)

         So Ordered.

         JUSTICE ALBIN, DISSENTING as to respondents Legato (D-99-15) and Kenyon (D-100-15), expresses the view that the sexual exploitation or abuse of children-whether completed or, as in the Legato and Kenyon matters, attempted-is such an egregious violation of societal norms that no discipline short of disbarment will ensure public confidence in the bar or the judiciary's governance of the bar.

          CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON, FERNANDEZ-VINA, and SOLOMON join in JUSTICE TIMPONE's opinion. JUSTICE ALBIN filed a separate, dissenting opinion, except that he did not participate in the matter of respondent Walter (D-101-15; Sections I.C. and III.D).

          TIMPONE JUSTICE

         These consolidated matters involve attorneys, with no previous disciplinary history, who pled guilty to sex offenses in which their intended victims were children ranging in ages from nine to twelve. Respondents Mark G. Legato and Regan C. Kenyon, Jr., each pled guilty to third-degree attempted endangering the welfare of a child. Respondent Alexander D. Walter pled guilty to third-degree endangering the welfare of a child. Each respondent was sentenced to parole supervision for life (PSL), N.J.S.A. 2C:43-6.4, and subjected to the registration requirements of Megan's Law, N.J.S.A. 2C:7-1 to -11. Under Megan's Law, the respondents must, among other requirements, register their addresses, provide community notification, and submit to Internet registration. PSL subjects the respondents to supervision by the Division of Parole for at least fifteen years and to conditions such as counseling and limited Internet access and use.

         Under Rule 1:20-13(c)(1), the respondents' convictions constitute conclusive evidence of their criminal conduct, as well as a violation of Rule of Professional Conduct 8.4(b), which proscribes commission of "a criminal act that reflects adversely on lawyer's honesty, trustworthiness, or fitness as a lawyer." The only task before this Court is to determine the appropriate discipline for each respondent's ethical violations. The Office of Attorney Ethics (OAE) and the Disciplinary Review Board (DRB) recommended that the Court disbar each respondent.

         We now sanction Legato and Kenyon to indeterminate suspensions from the practice of law, pursuant to Rule 1:20-15A(a)(2). We disbar Walter, pursuant to Rule l:20-15A(a)(1).

         I.

         A.

         Respondent Mark G. Legato was admitted to practice law in New Jersey in 1999. On June 27, 2013, Legato pled guilty to third-degree attempting to endanger the welfare of a child by attempting to engage in sexual conduct that would impair or debauch the morals of a child under the age of sixteen, in violation of N.J.S.A. 2C:5-1 and N.J.S.A. 2C:24-4(a).

         Legato admitted that he engaged in explicit online conversations with a person he believed to be a twelve-year-old girl. During the conversations, Legato asked the girl to touch her genitals and told her that he would like to engage in oral sex and intercourse with her. Legato then began a video chat with her, during which he unzipped his pants and exposed his erect penis. He also admitted to scheduling two in-person meetings with the girl, but did not appear at either. Unbeknownst to Legato, the girl was actually an undercover law enforcement officer. Those interactions led to his arrest and subsequent guilty plea.

         Legato underwent a psychosexual evaluation and risk assessment. The evaluator opined during the sentencing hearing that Legato was "not a risk for any offending." The sentencing court found the need for specific deterrence and general deterrence, N.J.S.A. 2C:44-1(a) (9), as an aggravating factor. As mitigating factors, the court found that Legato's conduct did not cause or threaten serious harm, N.J.S.A. 2C:44-1(b)(1), that Legato had no prior criminal record, N.J.S.A. 2C:44-l(b)(7), that his character and attitude indicated that he was unlikely to commit another offense, N.J.S.A. 2C:44-1(b)(9), and that he was likely to respond affirmatively to probation, if available, N.J.S.A. 2C:44-1(b)(10).

         The court sentenced Legato to a special sentence of parole supervision for life and required him to comply with Megan's Law. The court further ordered Legato to continue therapy with his psychologist, restricted his Internet and computer access solely to work-related needs, subjected him to periodic unannounced inspections, and required him to pay for the installation of an electronic monitoring system.

         Following Legato's guilty plea, the OAE filed a motion for final discipline before the DRB. In a unanimous decision, the DRB voted for his disbarment.

         B.

         Respondent Kenyon was admitted to practice law in New Jersey in 2006. On June 27, 2013, Kenyon pled guilty to one count of third-degree attempted endangering the welfare of a child, contrary to N.J.S.A. 2C:5-1 and N.J.S.A. 2C:24-4(a).

         Kenyon admitted that between February 16, 2011, and June 23, 2011, he engaged in online conversations with a person he believed to be a fourteen-year-old girl. He sent her images of, and links to, hardcore adult pornography and arranged to meet the girl, but did not appear for the meeting. Kenyon was unaware that he was in fact communicating with an undercover law enforcement officer. He was arrested and pled guilty to one count of attempted endangering the welfare of a child.

         Kenyon maintains that his conduct was the result of his addiction to pornography, which began when he was thirteen years old, and that the exchanges with the girl were an "online escape" and a "fantasy." He began treatment for addiction six days after his arrest. The treating psychologist reported that Kenyon was making "excellent progress" by taking full responsibility for his behavior and that there were no clinical indications that he had "any tangible or identifiable intent to harm his children or any children sexually or otherwise."

         After accepting his guilty plea, the sentencing court found one aggravating factor: the need to deter, N.J.S.A. 2C:44-1(a) (9) . It also found three mitigating factors: no prior criminal activity, the conduct was based on circumstances unlikely to reoccur, and Kenyon's attitude indicated that he was unlikely to reoffend, N.J.S.A. 2C:44-1(b)(7), (8), (9). He was sentenced to a suspended three-year term of incarceration, fines, and parole supervision for life, and was ordered to comply with Megan's Law reporting requirements. He was also required to continue to seek psychological treatment and to attend Sexaholics Anonymous meetings.

         In a majority decision, the DRB voted to disbar Kenyon. Three members dissented, recommending instead an indeterminate suspension. In a separate dissent, one member recommended a one-year suspension.

         C.

         Respondent Walter was admitted to practice law in New Jersey in 2007. On February 14, 2012, Walter pled guilty to third-degree endangering the welfare of a child, in violation of N.J.S.A. 2C:24-4(a). He admitted during his plea colloquy that on multiple occasions, between December 1, 2010 and April 1, 2011, he masturbated in the presence of a nine-year-old girl, who moved into his home with her mother. He admitted that he masturbated in front of the girl for his own sexual pleasure while ...


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