Lawyers, Sex, Drugs and Pete Rose

An Anne Arundel County lawyer who gave a woman Vicodin in exchange for oral sex was suspended from practicing by the Maryland Court of Appeals for 60 days. Incredibly, this lawyer had previously been suspended for the less creepy but still creepy offense of sending sexually explicit text messages to one of his clients and touching her inappropriately in the courthouse.

The court was split 4-3 with Judges Glenn T. Harrell Jr., Lynne A. Battaglia and Mary Ellen Barbera pushing for an indefinite suspension (although he could apply for reinstatement after six months).

I think the most logical question here is how on Earth did this guy get off with essentially a slap on the wrist? The short version of the story is that the court gave the offending lawyer a lot of credit for the fact that he came forward with information to help a client. You can read the full twisted story in the Maryland Daily Record article on the court’s opinion. (If you read the case, this next comment will make sense to you. I find it a little odd that credibility of the woman’s claim she was raped appeared to pivoted on the fact that she traded oral sex for Vicodin and no one even as an aside questioned the logic of this leap. But the details are not made entirely clear so I don’t know what to make of it.)

The longer answer to the question of how the majority can justify such a short suspension is that the decision to discipline lawyers is not measured by the “how awful is it?” scale. The purpose of disciplinary sanctions is “to protect the public, to protect the integrity of the legal profession and to deter other lawyers from violating the Rules of Professional Conduct.” The judiciary has an obligation to make sure the public can trust their lawyers. To me, comingling client funds with your own when you have no intention of stealing the clients’ money is a lesser crime than exchanging drugs for oral sex. But when your mission is to protect the public and to maintain clients’ trust in their lawyers, the relative innocence of comingling funds becomes the graver offense.

Discipline in sports is similarly, yet correctly, convoluted. Pete Rose bet on baseball, a relatively innocuous offense to the general public, particularly because he bet on his own team. His own team. Is that so awful?

From the point of view of the best interests of baseball, it is that awful. Baseball’s primary job is not to sanction wrongdoers but to protect the game. Betting on baseball, which brings into question the very integrity of the game, is a graver crime for the game itself than, say, a violent crime or a DWI that leads to a fatality. Baseball fans can live with a player on the field being a bad or even evil human being. But that fan cannot live with the idea that the game could be fixed. Baseball’s disciplinary rules reflect this reality.

Going back to this case, in his dissenting opinion, Judge Harrell called the 60 day sanction, in the absence of analysis of how long the sanction should be, “plucked randomly from the air.” This is absolutely true. But even if you analyze it until you are blue in the face, isn’t every sanction, where the determination is length of the sanction, plucked out of the air on some level? It is a “what does your gut tell you?” kind of decision, no matter how much you try to break it down.

I’m sure it did not hurt that the suspended lawyer was represented in the Court of Appeals by Kramon & Graham’s Andy Graham, who is on everyone’s “Best Lawyers in Maryland” list. He’s just a spectacular lawyer.