PATRONIZING PROSTITUTES PASS

Did Eliot Spitzer get a free pass from the body responsible for policing the conduct of lawyers admitted to practice in Manhattan?

The question becomes relevant because Spitzer, who resigned as governor in disgrace more than five years ago, is attempting to revive his political career with a run for comptroller, the guardian of New York City’s treasury.

Barely 15 month after he took office Spitzer’s reign as governor crashed and burned after a federal investigation gathered evidence that he had paid for round-trip train tickets to bring a high-priced prostitute from New York to Washington for an assignation.

On its face, Spitzer’s conduct appears to have violated the federal Mann Act, enacted in 1910, which makes transporting a person across interstate lines for the purpose of engaging in prostitution a crime, punishable up to 10 years in prison.

Michael J. Garcia (who was the U.S. Attorney in Manhattan at the time), in announcing his decision not to prosecute Spitzer, issued a statement saying that the office’s investigation had found that “on multiple occasions,” Mr. Spitzer arranged for women to travel from one state to another to engage in prostitution.

But, Garcia demurred on bringing charges against Spitzer, according to the statement, because “the public interest would not be further advanced by filing criminal charges in this matter” in light of the Department of Justice’s policy “with respect to prostitution offenses and the longstanding practice of this office, as well as Mr. Spitzer’s acceptance of responsibility for his conduct.”

Three well connected sources have told me that the Departmental Disciplinary Committee for the appeals court responsible for disciplining errant lawyers in Manhattan took no steps to determine whether Spitzer should have been disciplined. The Appellate Division, First Department, which sits in Manhattan, has specifically authorized its committee, consisting of approximately 60 members, to issue complaints against lawyers “sua sponte, which is Latin for “on its own initiative”.

According to the three sources, the First Department’s committee did not exercise that power and no complaints were filed by outsiders against Spitzer. Alan Friedberg, who was the chief counsel of the committee at the time Spitzer’s governorship imploded, did not respond to a request for comment.

A lawyer familiar with past practices in the First Department Committee said that the panel frequently exercised its “sua sponte” powers in a wide variety of situations including: when judges complain of an attorney’s conduct; in instances where the committee learns that an attorney’s escrow check has bounced; when an attorney reports having been convicted of a crime, as required under state law; or where a judicial ruling comes to its attention, which calls into question an attorney’s conduct.

Convictions of a felony (crimes that under state law require a prison sentence of longer than a year) require automatic disbarment. Other penalties the court may impose on attorneys found to have violated ethics rules include suspension, censure or a non-public admonition.

Lisa Linden, a publicist with LAK Public Relations, who is handling press relations for the Spitzer campaign, did not respond to a request for comment.

Even though the Mann Act calls for sentences as stiff as 10 years in prison, the conduct turned up by the federal investigation of Spitzer would not be considered a felony under state law and would not trigger automatic disbarment. New York classifies sex with a prostitute over the age of 13 as a misdemeanor, which is punishable by a maximum of one year in prison.

An attorney who formerly prosecuted attorney ethics cases said that it was highly unlikely that a disciplinary committee would seek to punish attorneys who patronize prostitutes because it is a garden-variety crime and would expose far too many lawyers to disciplinary sanctions.

So the issue boils down to this. Should Spitzer receive the same “equal treatment” as any ordinary lawyer who becomes a “John”? But Spitzer was not any old lawyer. He was the governor and, before that, the attorney general, the state’s chief law enforcement officer.

As such, he had to know that if his conduct became public it would create an off-the-charts scandal. He also had to know that, since his security detail was in tow, there was a substantial risk that his conduct would become known. Given those risks, his reckless conduct, in addition to reflecting upon his moral compass, raised serious questions about his fitness to function as a lawyer. There was the further aggravating factor that Spitzer squeezed in the tryst while traveling to Washington to testify before a House of Representatives subcommittee even though, according to news reports at the time, the panel had asked his superintendent of insurance —not Spitzer himself—to testify on the bond insurance crisis, which erupted in late 2007.