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Commonwealth of Massachusetts

NO. BD-1998-027

IN RE: STUART A. ROMM

SS.J.C. Order of Indefinite Suspension entered by Justice Marshall on November 3, 1999, retroactive to October 31, 1998.

BOARD MEMORANDUM

Bar Counsel appeals from the report of a hearing committee, which recommended that the respondent, Stuart A. Romm, be suspended from the practice of law for two years based on his conviction for activities involving the solicitation of sex by a minor over the Internet. Maintaining that a two-year suspension is inadequate for the misconduct involved, Bar Counsel urges us to recommend an indefinite suspension. The respondent has not appealed from the hearing committee's report. We allow Bar Counsel's appeal and recommend an indefinite suspension retroactive to October 31, 1998, the effective date of his temporary suspension. Matter of Romm, No. BD-98-027 (October 5, 1998).

Findings of Fact and Conclusions of Law

The following is a summary of the hearing committee's findings of fact and conclusions of law, which we adopt and incorporate by reference.

In December 1995, the respondent became a subscriber to America On-Line, on which he identified himself by the screen name "Gdada13552." In September 1997, the FBI notified the Broward County Sheriff’s Department that an AOL subscriber known as "GDada" was contacting juvenile AOL subscribers in chat rooms and that the FBI believed it was for the purpose of developing sexual relationships with the children.

A deputy sheriff posing as a fourteen-year old boy named "Marc" entered an AOL chat room and sought contact with other subscribers.

The respondent promptly made contact with "Marc" by using an "instant message" that allowed private written screen correspondence between subscribers. The respondent inquired about "Marc's" sexual orientation and requested his picture. Over the next two months the respondent engaged in frequent, sexually explicit correspondence with "Marc" by electronic mail. The respondent transmitted to "Marc" obscene photographs he had downloaded, at least two of which depicted children under the age of eighteen. At the respondent's suggestion, "Marc" also sent letters to him at a post-office box he maintained in Brockton, Massachusetts, but did not use for his regular mail.

On November 1, 1997, the respondent suggested that "Marc" telephone him, and told him how to do so using the respondent's credit card number. An undercover deputy posing as "Marc" called the respondent, and they spoke for almost half an hour, during which the respondent suggested they could "experiment" with different sexual activities.

On November 13, 1997, Florida charged the respondent with two counts of promoting sexual performance by a child less than eighteen1 and one count of computer child exploitation.2 Five days later he was arrested at his home in Massachusetts and his computer records were seized. On April 3,1998, he entered a plea of nolo contendere on all three counts in the Circuit Court of the 17th Judicial District in Broward County, Florida.

The court accepted the plea, withheld adjudication of guilt, and sentenced him to two years of community control or its equivalent in Massachusetts (house arrest) followed by ten years' probation. During the period of community control, the respondent is permitted to leave home for religious, work or his child's education purposes; he is subject to a 9:00 p.m. curfew unless he is working or needs time for religious purposes or to attend functions related to his son's education; he is prohibited from having contact with children under 18 except for his own child; he is not to possess sexually explicit materials involving children; he is to receive counseling and follow-up treatment; he is to have no access to any Internet service or other related computer service; his computer is subject to random searches; he is required to submit to two polygraph examinations per year at his own expense regarding his contact with children under eighteen and his computer use; he is required to complete successfully a sex-offender counseling program; he is to perform twenty hours of community service per month; and he is to reimburse the Broward County Sheriffs Department for costs in the amount of $1,545 .

A plea of nolo contendere constitutes a "conviction" under S.J.C. Rule 4:01, § 12(1), and the crimes of which the respondent was convicted are felonies under Florida law and under analogous statutes in Massachusetts. See G.L. c. 272, §§ 29B and 29C (classed as felonies by G.L. c. 274, § 1), which prohibit the dissemination of photographs of children engaged in sexual conduct or the knowing purchase or possession of such photographs. Accordingly, the respondent concedes he has been convicted of "serious crimes" within the meaning of SJ.C. Rule 4:01, § 12, and that the conduct underlying his convictions violated Canon One, DR 1-102(A)(6) (conduct reflecting adversely on the lawyer's fitness to practice law).

In mitigation, the respondent has no disciplinary history, has an excellent reputation in his community, once served as an administrative law judge for the Industrial Accident Board, and has been active in civic and charitable matters, including several years handling consumer complaints as the head of his city's consumer advisory commission. The hearing committee further remarked on "the significant degree of loyalty demonstrated by the respondent's clients," only three of whom (out of over 200) discharged him after intense publicity in the media regarding the respondent's arrest. The committee also found that the respondent demonstrated concern and remorse regarding the effects of his conduct on his family.

The Appropriate Sanction

Our task is to recommend a sanction that is not "markedly disparate" from sanctions imposed in related cases. Matter of Alter, 389 Mass. 153, 156, 3 Mass. Att'y Disc. R. 3,6-7 (1983). To that end, "[w]e start with the premise that disbarment or indefinite suspension is the usual sanction imposed for felony convictions." Matter of Concemi, 422 Mass. 326, 329, 12Mass. Att'y Disc. R. 63, 68 (1996). Accord Matter of Paris, 9 Mass. Att'y Disc. R. 257, 257 (1993) ("Felony convictions generally require disbarment.") Where the felony was committed within the practice of law, the presumptive sanction has been disbarment except where the attorney has made a convincing showing in mitigation of the misconduct. Cp. Matter of Concemi, supra (lawyer disbarred following conviction of 35 counts relating to bank fraud) with Matter of Nickerson, 322 Mass. 333, 12 Mass. Att'y Disc. R. 367 (1996) (lawyer convicted of similar conduct indefinitely suspended because of powerful mitigating circumstances).

Here the respondent's misconduct was not committed in his capacity as a lawyer.3 In such instances the Court has sometimes invoked what it has called a "private-citizen exception" to the presumption in Concemi. See Matter of Labovitz, 425 Mass.1008, 1008 n.1 (1997) (rescript), citing Matter of Concemi, supra 422 Mass at 331 n.5, 12 Mass. Att'y Disc. R.. at 70 n.5. Yet this is not a case involving a conviction of an economic crime, for which the Court has imposed term suspensions. See, e.g., Matter of Behenna, 10 Mass. Att'y Disc. R. 15 (1994) (two-year suspension for making false statements to a bank in furtherance of personal investments); Matter of Coughlin, 10 Mass. Att'y Disc. R. 47 (1994) (two-year suspension for providing false information in loan application for daughter's college); Matter of Jennings, 9 Mass. Att'y Disc. R. 174 (1993) (18-month suspension for income tax evasion). The respondent stands before us as a convicted felon who thrice violated criminal statutes aimed at protecting children from sexual predation. Given the nature of his misconduct, we can discern no sound basis for departing from the starting "premise" stated in Concemi—i.e., disbarment or indefinite suspension.

The closest Massachusetts case on point is Matter of Olson, 5 Mass. Att'y Disc. R. 283 (1988). Olson was disbarred following his conviction of conspiracy, aiding and abetting, and sexual exploitation of children by virtue of his role in the taking of sexually explicit photographs of a child. In recommending a two-year suspension, the hearing committee viewed the conduct in Olson as more dangerous than that of the respondent, who never had any physical contact with "Marc." We agree and recalibrate the sanction accordingly. A diminution from disbarment to two years, however, would result in a disposition markedly disparate from that imposed in Olson.

Both Olson and this case involved felony convictions for exploitative sexual conduct directed at children. Where an arrest follows a sting operation, it is always difficult to assess the "dangerousness" of conduct proposed but never consummated. As Bar Counsel points out, the factual basis for the conviction, to which the respondent stipulated (Hearing Committee Report paragraph 13), indicates that his conduct embraced more than making inappropriate sexual remarks.4

Over a two-month period of correspondence, the respondent proposed meeting with "Marc” and described in disturbing detail a number of sexual acts in which they might engage. (See generally Ex. 7). He also suggested that "Marc"—a fourteen-year-old, as far as the respondent knew—was "mature enough to be with a man . . . you have to decide where you are ... ." (Ex. 7). "Someday when you are my age," he wrote, "you will remember me lovingly and then set out to do something wonderful and right for someone else in my honor." (Ex. 7). In the telephone conversation that immediately preceded his arrest, the respondent suggested not just that he and "Marc" could "'experiment' with different sexual activities," as the hearing committee put it, but that the respondent "could teach" him. (Ex. 3, paragraph 17). Given these circumstances, we are not persuaded that this case diverges so sharply from Olson. We believe the sanction should be reduced from disbarment but only so far as indefinite suspension.

The hearing committee implies that it would be anomalous to impose a greater sanction than the two-year suspensions handed down in cases involving convictions for vehicular homicide. See Matter of Mdntyre, 10 Mass. Att'y Disc. R. 186 (1994); Matter of Campbell, 4 Mass. Att'y Disc. R. 13 (1985). The same reasoning would suggest that no convicted lawyer acting as a private citizen should be suspended for more than two years unless a fatality was involved, but that clearly is not the case. See, e.g., Matter of Bedinger, 10 Mass. Att'y Disc. R. 12(1994) (three-year suspension for bank fraud); Matter of Garflnkle, 3 Mass. Att'y Disc. R. 64 (1982) (disbarment for tax evasion). As Bar Counsel rightly points out, the lesser sanctions imposed in drunk-driving homicide cases reflect a judgment based on the species of intent (negligence or recklessness) as much as the nature of the resulting harm. Here, by contrast, the respondent necessarily formed a specific intent to target children in violation of criminal statutes enacted to protect them from sexual abuse and exploitation. As such, his conduct reflects a more culpable and troubling mens rea.

As against the nature of his misconduct, the respondent has offered little in the way of forceful mitigation. Evidence of his remorse, excellent reputation, absence of prior discipline, and community service are "typical" mitigating circumstances that are given little weight in determining the level of discipline. Matter of Alter, 389 Mass. 153, 157, 3 Mass. Att'y Disc. R. 3, 7-8 (1983). The respondent has made no showing whatsoever of "special" mitigating factors the court has deemed sufficient to palliate his misdeeds. See Matter of Concemi, supra, 422 Mass, at 330 n.4, 12 Mass. Att'y Disc. R. at 69 n.4, and cases cited.

The “’primary factor' in bar discipline is ‘the effect upon, and the perception of, the public and bar.’’’ Matter of Kerlinsky, 428 Mass. 656, 664 (1999), quoting Matter of Finnerty, 418 Mass. 821, 829, 10 Mass. Att'y Disc. R. 86, 95 (1994). Given the nature of the misconduct, Massachusetts precedent, and the absence of a convincing showing in mitigation, we believe the protection of the public and its perception of the bar would best be served by imposing an indefinite suspension.

Conclusion

For all of the foregoing reasons, we adopt the hearing committee's findings of fact and conclusions of law but modify its suggested disposition. An Information shall be filed with the Supreme Judicial Court recommending that the respondent, Stuart A. Romm, be indefinitely suspended from the practice of law, retroactive to October 31, 1998, the effective date of his temporary suspension.

Respectfully submitted,
THE BOARD OF BAR OVERSEERS
By: Mitchell H. Kaplan, Secretary
Approved: August 9, 1999

FOOTNOTES

1 Counts 1 and II charged that the respondent "on the 26th day of October, A.D. 1997" and "on the 1st day of November, A.D. 1997," respectively, "did, when knowing the character and content thereof, promote any performance which includes sexual conduct by a child less than 18 years of age, contrary to F.S. 827.071 (3)." These counts were based on the respondent's sennding of photographs of sexual conduct by minors through electronic mail.

2 Count III charged that the respondent "commencing on the 1st day of September, A.D. 1997, and continuing through the 11th day of November, A.D. 1997 ... did knowingly use a computer on-line service ... to seduce, solicit, lure, or entice, or attempt to seduce, lure, or entice, another person believed by [the respondent] to be a child ... to commit an illegal act... relating to sexual battery;... relating to lewdness and indecent exposure;... relating to child abuse, to wit: the penetration of the mouth by one of the sexual organs of another, and/or having the person believed to be a child urinate and/or ejaculate into the mouth of [the respondent], and/or causing the mouth and/or tongue of [the respondent] to come into contact with the anal area of the person believed to be a child ...."

3 Bar Counsel argues that the respondent "exploited his position as a lawyer to gain the trust of the intended victim." The evidence of such "exploitation" is thin, consisting chiefly of publishing a profile of himself as a "lawyer/trusted friend/mentor/'dad’ to smart young men" and responding encouragingly to "Marc's" expression of interest in the profession. While these acts may have some force as an aggravating circumstance, in our judgment they hardly transform otherwise private doings into conduct undertaken in the course of one's law practice.

4 Analogizing the Board's role to that of an appellate court, the respondent objects to our weighing this evidence because the hearing committee did not make findings with respect to them. This misconceives the Board's role. Our own authority to make findings of fact is plenary so long as we do not trench on credibility determinations made by the hearing committee. See SJC Rule 4:01, § 8(3); Matter of Carrigan, 414 Mass. 368, 372-73, 9 Mass. Att'y Disc. R. 54, 59-60 (1993). No credibility determination is involved here; these facts are not even disputed, since we draw on those the respondent stipulated to at his criminal trial. (See Hearing Committee Report 13). To the extent there is any valid objection to considering uncontested matters in the record but not described in the hearing committee's report, we exercise our factfinding authority by adding them to the committee's findings of fact.



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