It is fairly rare in Minnesota for there to be a dissent in a Minnesota Supreme Court decision regarding attorney discipline, but we have one this week in the case of Mr. Shawn Patrick Siders, who is suspended from the practice of law for two years after having been criminally charged with an attempt to pay a 15-year-old girl to have sex with him.
Justice McKeig, joined by Justice Lillehaug, dissented from the discipline proposed by the Office of Lawyers Professional Responsibility and approved by the majority of the Minnesota Surpeme Court. Justices McKeig and Lillehaug believe the discipline meted out to Mr. Siders was too lenient.
There are many directions that we can take in commenting on this recent decision and disagreement.
In no intentional order:
- Justice McKeig came to the Minnesota Supreme Court with as a highly regarded and distinguished judge at the trial court level with deep expertise in the context of family law. With that background, in comparison to others on the Minnesota Supreme Court, she probably has a far deeper understanding and appreciation of the overwhelming harms our society confronts (and, particularly girls and women) due to sexual exploitation and sexual predators.
- Justice McKeig’s dissent seems premised in part on the position that sexual predators tend to be serial predators and, therefore, evidence of a single bad act is often the proverbial tip of the iceberg. It does not seem to be a stretch to suggest that Justice McKeig’s may be informed by her deep experience as a trial court judge. On the other hand, we think the majority has the better argument that we do not impose discipline for a lawyer’s unknown but suspected wrongful acts (eve strong suspicions) (for obvious reasons, yes?).
- Attorney Siders apparently did not have sex with the 15-year old girl whom he allegedly solicited; it appears he simply tried to. Justice McKeig and Justice Lillehaug’s position is based, to some extent, on the proposition that, “It is no less dangerous to attempt a crime than to actually commit it.” This view has some profound truth to it but, at the same time, most people do not believe it and/or do not act like they do. Take, for example, two people fire a single gun-shot each into a crowd. One kills a person. The other’s bullet lodges harmlessly into the ground. Who thinks that each shooter should receive the identical criminal punishment? Who thinks they would receive the same criminal punishment? This might be an example of our irrationality (and the irrationality of our criminal justice system).
- The majority opinion recites that “the purpose of [our lawyer discipline system] is not to punish the attorney but rather to protect the public, to protect the judicial system, and to deter future misconduct by the disciplined attorney as well as by other attorneys.” Let’s take these points one-by-one. How, exactly, does barring such a lawyer from practicing law (that is, stripping the lawyer of his primary means of making a living) protect the public? Does it protect the judicial system? How? Does it deter future misconduct of the disciplined lawyer? Is there any evidence to suggest that it deters other lawyers from the same or similar misconduct?
We would suggest that stripping wrong-doers of their main source of income might not necessarily protect the public from the disgraced lawyer’s presumed predisposition for sexual misconduct. Query whether economic punishment has been shown to deter sexual misconduct. We wonder what the data show. Further, there is no evidence that the crime apparently committed by Mr. Siders, the disciplined lawyer, harmed the judicial system, per se (except that he failed to cooperate fully with the investigation into his wrong-doing).
As to the last point, however, presumably, it is true that it is added deterrent to Minnesota lawyers that sexual misconduct poses a threat of not only criminal liability but also to their ability to serve as lawyers.
In the end, very few people, if any, will be outraged by the fact of Mr. Sider’s suspension from the practice of law, whether a two-year or a three-year suspension. We might quibble and query, we might nibble at the edges of the reasoning, but our society seems to be FINALLY waking up to the pervasive and profoundly destructive role of sexual misconduct perpetrated, in large measure, against girls and women in our society. That is a good thing and long overdue.