The Reluctant Healer

by Andrew D. Himmel

  I sat down hard on the back bench near the door, as if crippled from a neural seizure.

  “Counselor?”

  I contemplated the myth of rock bottom. That suggested boundaries. But rock could be blasted through suddenly or scraped at slowly. There were no limits.

  “No,” I whispered. “No, I was not aware . . .”

  “You see?” Ramone cried victoriously. “This is exactly what I’m talking about. Here I have, right in front of me, a letter from Ms. Bryant all but accusing Mr. Alexander here of, well, of really questionable conduct. And this is so unfair.”

  Ramone vigorously rocked back and forth in her chair, creating an irritating squeak. She then stopped suddenly. “First of all,” she continued, “if we believe Mr. Alexander, and of course, there is no reason to doubt his credibility, then Ms. Bryant did not even copy him on the letter. How improper is that?”

  The courtroom filled with the drone of a collective disapproval.

  “No existing procedure or hearing. The DA hasn’t weighed in. Mr. Alexander has had no fair opportunity to marshal his thoughts, provide an explanation, mount a defense. And by the way . . .” Ramone leaned forward and sipped water from a bottle. “By the way, I am not going to read from this letter or provide details of the alleged misconduct. These accusations could very well be defamatory or without merit. And I will not contribute to any erosion of due process. Not here, not in my courtroom.”

  I glanced over at Roger Whitfield, who was more shocked than triumphant. I looked back to Ramone.

  “You see, Mr. Alexander, I suspected that Ms. Bryant may not have sent you a copy of this letter. So I wanted to make you aware of the correspondence. You can contact my court clerk later to receive a copy.” Ramone shuffled a few papers into a new pile. “And please be assured,” she said, “that while the contents of this letter may be relevant in another forum, they played no role in any action I took in the proceedings today.” She cast one more look at me, then swiveled her head back to the crowded courtroom. “Next case,” she called out.

  I stood and tested my motor control with two hesitant steps. Confident I would not collapse, I walked quickly out of the courtroom.

  Decision and Order

  In the Matter of Will Alexander, an attorney and counselor-at-law:

  Departmental Disciplinary Committee for the First Judicial Department,

  Petitioner, Will Alexander,

  Respondent 2019-1928

  SUPREME COURT OF THE NEW YORK, APPELLATE DIVISION,

  FIRST DEPARTMENT

  105 A.D.3d 108; 960 N.Y.S.2d 376

  COUNSEL: Wallace Peel, Chief Counsel, Departmental Disciplinary Committee, New York (Mario Baretta, of counsel), for petitioner Will Alexander, respondent pro se.

  JUDGES: Michele Artco, Justice Presiding, Anthony Isaac, Nicole Florenberg, Eleanor Mazzucco, Betty Carol Jefferson, Justices. All concur.

  OPINION

  Disciplinary proceedings instituted by the Departmental Disciplinary Committee for the First Judicial Department. Respondent, Will Alexander, was admitted to the Bar of the State of New York at a Term of the Appellate Division of the Supreme Court for the First Judicial Department. At all times relevant to this proceeding, respondent has maintained an office, or has been affiliated with a law firm, within the First Department.

  PER CURIAM

  Earlier this year, the Departmental Disciplinary Committee (the “Committee”) initiated an investigation into respondent’s conduct after receiving a referral from Justice Carlina Ramone of the Supreme Court of the State of New York, County of New York, identifying potential violations of various provisions of the Code of Professional Responsibility (the “Code”). In its statement of charges dated May 17, the Committee alleged that respondent violated DR 1-102(A)(4),(7), and (8) and other related sections by communicating with an adversary known to be represented by counsel; engaging in illegal conduct that adversely reflects on the respondent’s “honesty, trustworthiness, or fitness as a lawyer” by (a) misappropriating property belonging to another, (b) engaging in extortionate conduct by threatening distribution of personal and embarrassing material, or by conditioning the withholding of such distribution on the forbearance of certain conduct, and (c) engaging in the prohibited practice of fortune telling in violation of New York Penal Law §165.35, with respect to those provisions which hold a person in violation of such section when “he . . . holds himself out as being able, by claimed or pretended use of occult powers, to exorcise, influence, or affect evil spirits or curses . . .” By Answer dated June 14, respondent has admitted to all of the material factual allegations and has provided additional information not contained within the initial Statement of Charges. In addition, the record before this Court contains an affidavit submitted by one Jessica Bryant, discussed infra. Respondent concedes the truth of the allegations contained therein.

  The underlying facts germane to a disposition of this matter are not in dispute. Last September, respondent, a litigation associate employed by Canaan & Cassidy, met Mark Lindquist, the president and chief executive officer of Lindquist Analytics. Lindquist is the plaintiff in a patent infringement suit in the case of Lindquist v. Halter Trading, pending in Supreme Court, New York County. From the commencement of this lawsuit, Halter Trading has been represented by Canaan & Cassidy. At the time that respondent first met Lindquist, respondent was an active participant on the Canaan litigation team defending the Lindquist lawsuit. In subsequent meetings with Lindquist, respondent was on a leave of absence but still affiliated with and receiving compensation from Canaan. In his Answer, respondent claims that none of his communications with Lindquist related to the pending proceeding but instead involved discussions regarding the provisions of services intending to alleviate Lindquist’s medical and/or physical condition. The Committee has presented no evidence to contradict respondent’s allegations in this regard.

  In October, respondent, while on a leave of absence and receiving compensation from Canaan, began conducting sessions on a one-to-one basis with members of the public, the apparent purpose of which was to provide “healing” services to said individuals. Respondent claims that he never advised these individuals that he was an attorney and never characterized the services that he was offering as legal in nature. Respondent did not require payment of a fee but instead left it to the discretion of the participants as to whether or not they would pay respondent for said “healing” services. If the participants chose to pay, they could decide for themselves the amount. In the Answer and in supplementary materials, respondent claims that he made no specific promises or guarantees of results with respect to the aforementioned “healing” sessions. Instead, respondent advised the participants that sessions with him “might” result in some alleviation of their ailments, whether psychological or physiological in nature. The Committee has provided no information, evidence, or documents to contradict the assertions of the respondent with respect to the aforementioned “healing” sessions. Respondent received compensation from these sessions and also received his leave-of-absence compensation from Canaan for the period October and thereafter.

  One of the individuals who participated in the “healing” sessions was Jessica Bryant, a freelance columnist whose work has appeared in a number of publications in the New York area, including New York magazine, the New Yorker, the Wall Street Journal, and the New York Times Magazine. Bryant withheld her true identity from respondent during her sessions with respondent and instead posed as “Jessica Bueti,” for the apparent purpose of obtaining information and material for an article she was working on regarding, in her view, the charlatans and modern day “snake oil” salesmen who deceive the public with promises of miraculous cures and improvement of their health. In January of this year, New York magazine ran as its cover story an article written by Jessica Bryant entitled “The Future of Fraud.” A substantial portion of the article was devoted to Bryant’s sessions with the respondent, whose photograph appeared on the cover of the issue. The ar
ticle provided information concerning what transpired during the sessions, with the apparent purpose of exposing respondent and others as fraudulent practitioners of the “healing” arts. Much of the article contained information of a personal nature which respondent had disclosed to Bryant.

  Following the publication of the article, respondent and an individual named Erica Wells, a social worker licensed in the state of New York, followed Bryant, unbeknownst to Bryant, to a church on the Upper East Side of Manhattan, where they took possession of Bryant’s cell phone (again, unbeknownst to Bryant) and thereafter accessed a large amount of personal and professional information belonging to Bryant, using the cell phone to access such data stored on Bryant’s computer and other social networking and cloud computing sites. Wells, with no objection from respondent, anonymously sent a voluminous amount of material of such accessed information to Bryant, with a typewritten notation stating: “This is what it feels like.” Thereafter, Bryant confronted respondent and Wells in person with the accusation of the conduct described herein, and respondent informed Bryant that if she revealed any additional information concerning their “healing” sessions, then he, respondent, would in turn disclose a “proportionate” amount of materials accessed through respondent’s misappropriation of Bryant’s cell phone.

  Later this year, an individual named Roger Whitfield commenced an action against respondent, alleging intentional and negligent infliction of emotional distress, fraud, impersonation of a psychologist, and other related causes of action. The gravamen of the complaint is that respondent prevailed upon the mother of Roger Whitfield’s son ( Josh) to participate, along with Josh Whitfield, in “healing” sessions, for the purpose of curing or improving the condition of Josh Whitfield, who at the time was 8 years old and suffering from stage 4 lymphatic leukemia. The complaint contends that, through these means, Josh Whitfield, who later passed away, was deprived of medically necessary treatment which might have resulted in a different outcome. Although this action was dismissed by Justice Ramone for failure to state a cause of action pursuant to CPLR 3211(a)(7), respondent, in supplementary materials furnished to the Committee, conceded that he provided, on an “informal” basis, certain “healing services” for Josh Whitfield for which he was offered substantial compensation.

  DISCUSSION

  We dismiss those charges relating to claimed misconduct for communicating with an adversary known to be represented by counsel. RPC Part 1200 Rule 4.2(a) states that a lawyer “shall not communicate . . . about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter . . .” (Emphasis added.) The Committee has presented no evidence to rebut respondent’s contention that respondent’s communication with Lindquist never related to “the subject of the representation.” Absent such evidence, the Rule 4.2(a) charge cannot be sustained.

  Similarly, we dismiss those charges relating to claimed misconduct for engaging in “fortune telling” as prohibited by New York Penal Law §165.35, with particular regard to that portion of the law which states: “A person is guilty of fortune telling when, for a fee or compensation which he directly or indirectly solicits or receives, he . . . holds himself out as being able, by claimed or pretended use of occult powers, to . . . influence or affect evil spirits or curses. . . .” A violation of this criminal statute might very well implicate Rule 8.4 of the Rules of Professional Conduct which states that a lawyer shall not “engage in illegal conduct that adversely reflects on the lawyer’s honesty, trustworthiness, or fitness as a lawyer.”

  We have doubts about the constitutionality of §165.35, as it appears on its face to be impermissibly vague and may also be violative of First Amendment protections. Nonetheless, we need not reach these issues, as we find that the statute, as written, does not apply in any event to the conduct charged by the Committee. We do find that respondent may very well have held himself out as being possessed of “occult” powers. See, e.g., Oxford English Dictionary definition of occult: “of, involving, or relating to supernatural, mystical, or magical powers or phenomena . . .” The express representation or implicit suggestion that one can improve concrete physiological ailments through “healing” sessions would appear to fall within the coverage of “occult.”

  Where the statute loses coverage is its requirement that such use of occult powers “influence or affect evil spirits or curses . . .” We see no evidence that respondent claimed any ability to “influence or affect evil spirits or curses . . .” and the Committee does not suggest otherwise. We reject the invitation by the Committee to read §165.35 expansively so as to encompass respondent’s conduct.

  We sustain the charges of the Committee relating to claimed misconduct for engaging in acts of extortion and misappropriation of property. Indeed, we find that the Committee, if anything, understated the seriousness of the charges in this regard. Respondent admits to participating in a brazen act of misappropriation of property in the taking of Bryant’s cell phone and accessing information connected by the Internet, syncing, and social media. It is no answer that Wells was primarily responsible for the misappropriation of property and data. By respondent’s own account, at every opportunity where he was in a position to engage in mitigating conduct, he failed to do so. When Wells obtained possession of the phone, respondent took no steps to return the phone to Bryant. When Wells commenced the process of accessing information stored on the phone, respondent not only failed to try to halt this process but, indeed, actively participated in the endeavor.

  It is similarly no answer to suggest that Bryant herself engaged in questionable behavior by posing as Jessica Bueti. Our view of Bryant’s behavior, whether we believe it to be reprehensible or commendable, is irrelevant to our conclusion. Respondent’s conduct stands alone as a misappropriation of property, as a misuse of personal information, and is not mitigated by the explanation or background of events provided by respondent.

  We find even more disturbing the act of extortion committed by respondent. We find no other term appropriate to describe the conditioning of the release or nonrelease of misappropriated data on the requirement of the victim to adhere to certain behavior. Such conduct on respondent’s part is almost certainly criminal in nature and may deserve attention from the district attorney’s office. We understand from Bryant’s submission that Bryant has decided not to press charges against either Alexander or Wells, and therefore, it is possible that respondent’s conduct will escape the scrutiny of that office.

  However, neither our jurisdiction nor our resolution of this matter is dependent on the filing of a criminal indictment or the entry of a finding of guilt. It is enough for our purposes that we conclude that respondent has engaged “in illegal conduct that adversely reflects on the lawyer’s honesty, trustworthiness, or fitness as a lawyer.” Rule 8.4(b). Even were we to find that such conduct did not rise to the level of illegality, we would still hold that respondent has engaged “in any other conduct that adversely reflects on the lawyer’s fitness as a lawyer.” Rule 8.4(h).

  The Committee seeks an order confirming the Hearing Panel’s findings of facts and conclusions of law and imposing whatever sanction the Court deems appropriate. The Office of Chief Counsel seeks an order imposing the sanction of a two year suspension from the practice of law and a public censure.

  The Hearing Panel’s report is confirmed insofar as it sustained the charges against respondent; it is disaffirmed insofar as the recommended sanction. We find that public censure and the two year suspension, recommended by the Office of Chief Counsel, is insufficient under the circumstances. The slender reed that prevents the permanent expulsion of respondent from the rolls of attorneys has been respondent’s cooperation and full disclosure of additional facts and information in the course of these proceedings, all of which argues for some degree of mitigation.

  Respondent is suspended from the practice of law for a period of five years, and respondent is publicly censured. This constitutes the decision and order of the
Court.

  All concur.

  Artco, P.J., Isaac, Florenberg, Mazzucco, and Jefferson.

  Epilogue

  The Spirit of Liberty

  Dear Mom and Dad,

  It’s been a few weeks since the four of us had dinner in Cold Spring, so please forgive my delay in sending this email to you. Erica and I are a few miles outside of Cleveland in a Courtyard by Marriott, waiting for the rain to relent so that we can continue our motorcycle journey out west. Actually, “west” doesn’t quite capture it. Our destination is no longer San Francisco. Instead, we’re off on a pilgrimage, to the Jungle Kingdoms of the Ancient Maya, including Palenque, Yaxchilian, Tika, and Quirigua. Mexico and Guatemala, if I’m not mistaken. Erica tells me that these are sacred regions and that I should prepare for spiritual rejuvenation. Me, I’m just happy to ride.

  We stopped by to visit Erica’s parents in Beachwood, Ohio, a mistake, I’m afraid to say, but an illuminating one. It was unsettling watching their display of love and contempt. They care for Erica, but they are people of science and have developed an intolerance for the ideas and possibilities she has embraced. How can I put this? There’s nothing to work through, to grapple with, to consider. It’s all just patent nonsense. And they can’t help themselves.

  I resist the temptation to paint them as one dimensional, a mistake I believe Erica makes too easily. They will never accept Erica’s path, but they want their reaction to be different. They want only to disagree, firmly perhaps, but they want to separate the intensity of their disagreement from the overall assessment of their only child. This they cannot do. And I think that their disability in this regard, as much as their disagreement with their daughter’s path, has caused them profound sadness.