In the Matter of Mark G. Legato (077464), In the Matter of Regan C. Kenyon, Jr. (077465), In the Matter of Alexander D. Walter (077467), Attorneys at Law

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

In the Matter of Mark G. Legato, an Attorney at Law (D-99-15) (077464)
In the Matter of Regan C. Kenyon, Jr., an Attorney at Law (D-100-15) (077465)
In the Matter of Alexander D. Walter, an Attorney at Law (D-101-15) (077467)

Argued June 21, 2016 -- Decided May 24, 2017

TIMPONE, J., writing for the Court.

In these matters, the Court considers the discipline to be imposed on attorneys, with no previous
disciplinary history, who pled guilty to sex offenses in which their intended victims were children ranging in ages
from nine to twelve. Under Rule 1:20-13(c)(1), the respondents’ convictions constitute conclusive evidence of their
criminal conduct, as well as a violation of Rule of Professional Conduct 8.4(b), which proscribes commission of “a
criminal act that reflects adversely on lawyer’s honesty, trustworthiness, or fitness as a lawyer.” The only task
before the Court is to determine the appropriate discipline for each respondent’s ethical violations. The Office of
Attorney Ethics (OAE) and the Disciplinary Review Board (DRB) recommended that the Court disbar each
respondent.

Respondents Mark G. Legato and Regan C. Kenyon, Jr., each pled guilty to third-degree attempted
endangering the welfare of a child. Legato admitted that he engaged in explicit online conversations with a person
he believed to be a twelve-year-old girl. He also admitted to scheduling two in-person meetings with the girl, but
did not appear at either. Unbeknownst to Legato, the girl was actually an undercover law enforcement officer.
Following Legato’s guilty plea, the OAE filed a motion for final discipline before the DRB. In a unanimous
decision, the DRB voted for his disbarment.

Respondent Kenyon admitted that over the course of approximately four months, he engaged in online
conversations with a person he believed to be a fourteen-year-old girl. He sent her images of, and links to, hardcore
adult pornography and arranged to meet the girl, but did not appear for the meeting. Kenyon was unaware that he
was in fact communicating with an undercover law enforcement officer. Kenyon maintains that his conduct was the
result of his addiction to pornography, for which he began treatment six days after his arrest. In a majority decision,
the DRB voted to disbar Kenyon. Three members dissented, recommending instead an indeterminate suspension.
In a separate dissent, one member recommended a one-year suspension.

Respondent Alexander D. Walter pled guilty to third-degree endangering the welfare of a child. He
admitted during his plea colloquy that on multiple occasions, between December 1, 2010 and April 1, 2011, he
masturbated in the presence of a nine-year-old girl, who moved into his home with her mother. He admitted that he
masturbated in front of the girl for his own sexual pleasure while the two were alone in the family swimming pool.
Following review of the matter submitted on motion for final discipline filed by the OAE, seven members of the
DRB recommended Walter’s disbarment. Two members dissented—one recommended an indeterminate suspension
and one recommended a two-year suspension.

HELD: For respondents Legato and Kenyon, the Court imposes indeterminate suspensions from the practice of
law, pursuant to Rule 1:20-15A(a)(2). The Court disbars respondent Walter, pursuant to Rule 1:20-15A(a)(1).

1. “The privilege to practice law is [dependent] on an attorney’s ability to maintain a high moral character.” In re
Hasbrouck, 140 N.J. 162, 166 (1995). Under Rule 1:20-13(c)(1), a criminal conviction is evidence of guilt in a
disciplinary proceeding and establishes a violation of Rule of Professional Conduct 8.4(b), prohibiting criminal
conduct that “reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer.” The criminal
conduct need not “involve the practice of law or arise from a client relationship.” In re Musto, 152 N.J. 165, 173
(1997). “[T]he primary purpose of discipline is not to punish the attorney but to preserve the confidence of the
public in the bar.” In re Cohen, 220 N.J. 7, 11 (2014). (pp. 7-8)

1
2. The Court has refrained from establishing a bright-line rule requiring disbarment in all cases involving sexual
offenses against children. Rather, the appropriate level of discipline may depend on different factors, such as
whether the case “involved touching, physical violence, or actual dissemination [of child pornography] to others, the
number of pictures or videos, or whether the perpetrator suffered from mental illness or sexual abuse himself or
herself.” Cohen, supra, 220 N.J. at 18. Thus, the imposition of discipline in cases involving sexual misconduct with
a minor requires a fact-sensitive inquiry on a case-by-case basis. (p. 9)

3. In Cohen, the Court addressed the disciplinary action appropriate for an attorney who pled guilty to second-
degree endangering the welfare of a child, based on the attorney’s possession of child pornography. Id. at 8. For the
first time in a child pornography case, the Court imposed an indeterminate period of suspension on the attorney,
specifically underscoring that he would be subject to “vigorous review” before being considered for readmission to
the practice of law. Id. at 19. The Court found that the attorney’s “alleged mental illness, his own experience being
sexually abused as a child, and his cooperation in seeking treatment and his progress thus far” warranted some
leniency and discipline less than full disbarment. Id. at 18. Although discipline for sexual offenses has occasionally
been as mild as reprimand, the Court announced in Cohen that “attorneys must be on notice that engaging in this
form of unlawful activity may be considered grounds for losing the privilege of membership in a distinguished and
trusted profession.” Id. at 18. The Court also put the bar on notice of the “more stringent approach [it] will take in
disciplining attorneys for egregious offenses.” Ibid. (pp. 9-13)

4. The conduct of Legato aligns with the conduct of the respondent in In re Ferraiolo, 170 N.J. 600 (2002). Just as
in that instance, Legato engaged in illicit online conversations with an individual he believed to be a minor. The
attorney’s conduct in Ferraiolo, however, was more egregious because he appeared at the arranged meeting with the
child; whereas here, Legato never showed to meet the child in person, despite making arrangements to do so. In the
fifteen years since Ferraiolo, the Court has recognized changing societal attitudes toward child sexual offenders and
has put the bar on strict notice of stringent discipline for such offenses. Although the Court found a one-year
suspension to be appropriate in Ferraiolo, today, the Court finds that indeterminate suspension is appropriate for
Legato. Like Legato, Kenyon engaged in illicit online conversations with an individual he believed to be a minor,
but he never met in person. Thus, Kenyon’s conduct similarly merits indeterminate suspension. (pp. 14-15)

5. The Court notes that the public will be protected while Legato and Kenyon are suspended and under parole
supervision for at least fifteen years. They will not be able to access the Internet for non-work purposes, and their
Internet usage will be monitored. With the protections of Megan’s Law and parole supervision for life (PSL) in
place, the Court stops short of eliminating all hope of future reinstatement. It is unlikely that Legato or Kenyon
could successfully petition the Court for readmission while under PSL. The Court does not minimize the
reprehensibility of Legato’s and Kenyon’s conduct simply because the minors were actually undercover agents. It
does, however, find a significant distinction between online and personal physical contact. (pp. 15-17)

6. Finally, the Court addresses the disbarment of respondent Walter. The Court agrees with the DRB’s assessment
that Walter’s characterization of the course of events demonstrates that he does not appear to take full responsibility
for his actions, but rather attempts to apportion blame to a nine-year-old child. Unlike Legato and Kenyon, Walter
was not shielded by distance or the artificiality of online interaction. Walter has demonstrated that he is willing to
take advantage of his power for his own benefit, encapsulating the precise object that the Court is tasked with
maintaining—public confidence in the bar. (pp. 17-19)

So Ordered.

JUSTICE ALBIN, DISSENTING as to respondents Legato (D-99-15) and Kenyon (D-100-15), expresses
the view that the sexual exploitation or abuse of children—whether completed or, as in the Legato and Kenyon
matters, attempted—is such an egregious violation of societal norms that no discipline short of disbarment will
ensure public confidence in the bar or the judiciary’s governance of the bar.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON, FERNANDEZ-VINA,
and SOLOMON join in JUSTICE TIMPONE’s opinion. JUSTICE ALBIN filed a separate, dissenting
opinion, except that he did not participate in the matter of respondent Walter (D-101-15; Sections I.C. and
III.D).

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 SUPREME COURT OF NEW JERSEY
D-99 September Term 2015 (077464)
D-100 September Term 2015 (077465)
D-101 September Term 2015 (077467)

IN THE MATTER OF

MARK G. LEGATO,

An Attorney at Law

IN THE MATTER OF

REGAN C. KENYON, JR.,

An Attorney at Law

IN THE MATTER OF

ALEXANDER D. WALTER,

An Attorney at Law

Argued June 21, 2016 – Decided May 24, 2017

On Orders to show cause why respondents
should not be disbarred or otherwise
disciplined.

Isabel K. McGinty, Assistant Ethics Counsel,
argued on behalf of the Office of Attorney
Ethics in the Legato matter.

Hillary K. Horton, Deputy Ethics Counsel,
argued on behalf of the Office of Attorney
Ethics in the Kenyon and Walter matters.

Robyn M. Hill argued the cause for
respondent Mark G. Legato.

1
 Dominic J. Aprile argued the cause for
respondent Regan C. Kenyon, Jr. (Bathgate
Wegener & Wolf, attorneys).

Frederick J. Dennehy argued the cause for
respondent Alexander D. Walter (Wilentz
Goldman & Spitzer, attorneys; Risa M.
Chalfin, on the brief).

JUSTICE TIMPONE delivered the opinion of the Court.

These consolidated matters involve attorneys, with no

previous disciplinary history, who pled guilty to sex offenses

in which their intended victims were children ranging in ages

from nine to twelve. Respondents Mark G. Legato and Regan C.

Kenyon, Jr., each pled guilty to third-degree attempted

endangering the welfare of a child. Respondent Alexander D.

Walter pled guilty to third-degree endangering the welfare of a

child. Each respondent was sentenced to parole supervision for

life (PSL), N.J.S.A. 2C:43-6.4, and subjected to the

registration requirements of Megan’s Law, N.J.S.A. 2C:7-1 to -

11. Under Megan’s Law, the respondents must, among other

requirements, register their addresses, provide community

notification, and submit to Internet registration. PSL subjects

the respondents to supervision by the Division of Parole for at

least fifteen years and to conditions such as counseling and

limited Internet access and use.

Under Rule 1:20-13(c)(1), the respondents’ convictions

constitute conclusive evidence of their criminal conduct, as

2
well as a violation of Rule of Professional Conduct 8.4(b),

which proscribes commission of “a criminal act that reflects

adversely on lawyer’s honesty, trustworthiness, or fitness as a

lawyer.” The only task before this Court is to determine the

appropriate discipline for each respondent’s ethical violations.

The Office of Attorney Ethics (OAE) and the Disciplinary Review

Board (DRB) recommended that the Court disbar each respondent.

We now sanction Legato and Kenyon to indeterminate

suspensions from the practice of law, pursuant to Rule 1:20-

15A(a)(2). We disbar Walter, pursuant to Rule 1:20-15A(a)(1).

I.

A.

Respondent Mark G. Legato was admitted to practice law in

New Jersey in 1999. On June 27, 2013, Legato pled guilty to

third-degree attempting to endanger the welfare of a child by

attempting to engage in sexual conduct that would impair or

debauch the morals of a child under the age of sixteen, in

violation of N.J.S.A. 2C:5-1 and N.J.S.A. 2C:24-4(a).

Legato admitted that he engaged in explicit online

conversations with a person he believed to be a twelve-year-old

girl. During the conversations, Legato asked the girl to touch

her genitals and told her that he would like to engage in oral

sex and intercourse with her. Legato then began a video chat

with her, during which he unzipped his pants and exposed his

3
erect penis. He also admitted to scheduling two in-person

meetings with the girl, but did not appear at either.

Unbeknownst to Legato, the girl was actually an undercover law

enforcement officer. Those interactions led to his arrest and

subsequent guilty plea.

Legato underwent a psychosexual evaluation and risk

assessment. The evaluator opined during the sentencing hearing

that Legato was “not a risk for any offending.” The sentencing

court found the need for specific deterrence and general

deterrence, N.J.S.A. 2C:44-1(a)(9), as an aggravating factor.

As mitigating factors, the court found that Legato’s conduct did

not cause or threaten serious harm, N.J.S.A. 2C:44-1(b)(1), that

Legato had no prior criminal record, N.J.S.A. 2C:44-1(b)(7),

that his character and attitude indicated that he was unlikely

to commit another offense, N.J.S.A. 2C:44-1(b)(9), and that he

was likely to respond affirmatively to probation, if available,

N.J.S.A. 2C:44-1(b)(10).

The court sentenced Legato to a special sentence of parole

supervision for life and required him to comply with Megan’s

Law. The court further ordered Legato to continue therapy with

his psychologist, restricted his Internet and computer access

solely to work-related needs, subjected him to periodic

unannounced inspections, and required him to pay for the

installation of an electronic monitoring system.

4
 Following Legato’s guilty plea, the OAE filed a motion for

final discipline before the DRB. In a unanimous decision, the

DRB voted for his disbarment.

B.

Respondent Kenyon was admitted to practice law in New

Jersey in 2006. On June 27, 2013, Kenyon pled guilty to one

count of third-degree attempted endangering the welfare of a

child, contrary to N.J.S.A. 2C:5-1 and N.J.S.A. 2C:24-4(a).

Kenyon admitted that between February 16, 2011, and June

23, 2011, he engaged in online conversations with a person he

believed to be a fourteen-year-old girl. He sent her images of,

and links to, hardcore adult pornography and arranged to meet

the girl, but did not appear for the meeting. Kenyon was

unaware that he was in fact communicating with an undercover law

enforcement officer. He was arrested and pled guilty to one

count of attempted endangering the welfare of a child.

Kenyon maintains that his conduct was the result of his

addiction to pornography, which began when he was thirteen years

old, and that the exchanges with the girl were an “online

escape” and a “fantasy.” He began treatment for addiction six

days after his arrest. The treating psychologist reported that

Kenyon was making “excellent progress” by taking full

responsibility for his behavior and that there were no clinical

5
indications that he had “any tangible or identifiable intent to

harm his children or any children sexually or otherwise.”

After accepting his guilty plea, the sentencing court found

one aggravating factor: the need to deter, N.J.S.A. 2C:44-

1(a)(9). It also found three mitigating factors: no prior

criminal activity, the conduct was based on circumstances

unlikely to reoccur, and Kenyon’s attitude indicated that he was

unlikely to reoffend, N.J.S.A. 2C:44-1(b)(7), (8), (9). He was

sentenced to a suspended three-year term of incarceration,

fines, and parole supervision for life, and was ordered to

comply with Megan’s Law reporting requirements. He was also

required to continue to seek psychological treatment and to

attend Sexaholics Anonymous meetings.

In a majority decision, the DRB voted to disbar Kenyon.

Three members dissented, recommending instead an indeterminate

suspension. In a separate dissent, one member recommended a

one-year suspension.

C.

Respondent Walter was admitted to practice law in New

Jersey in 2007. On February 14, 2012, Walter pled guilty to

third-degree endangering the welfare of a child, in violation of

N.J.S.A. 2C:24-4(a). He admitted during his plea colloquy that

on multiple occasions, between December 1, 2010 and April 1,

2011, he masturbated in the presence of a nine-year-old girl,

6
who moved into his home with her mother. He admitted that he

masturbated in front of the girl for his own sexual pleasure

while the two were alone in the family swimming pool. Walter

was arrested and pled guilty to one count of endangering the

welfare of a child.

The sentencing court found two aggravating factors: the

risk of recidivism and the need for deterrence. N.J.S.A. 2C:44-

1(a)(3), (9). It also found two mitigating factors: no

criminal history and extensive hardship to respondent or his

dependents. N.J.S.A. 2C:44-1(b)(7), (11). The court sentenced

Walter to parole supervision for life, required compliance with

Megan’s Law and Walter to continue psychological counseling.

The court prohibited him from having contact with the victim or

her family.

Following review of the matter submitted on motion for

final discipline filed by the OAE, seven members of the DRB

recommended Walter’s disbarment. Two members dissented -- one

recommended an indeterminate suspension and one recommended a

two-year suspension.

II.

“The privilege to practice law is [dependent] on an

attorney’s ability to maintain a high moral character.” In re

Hasbrouck, 140 N.J. 162, 166 (1995). Under Rule 1:20-13(c)(1),

a criminal conviction is evidence of guilt in a disciplinary

7
proceeding and establishes a violation of Rule of Professional

Conduct 8.4(b), prohibiting criminal conduct that “reflects

adversely on the lawyer’s honesty, trustworthiness, or fitness

as a lawyer.” The criminal conduct need not “involve the

practice of law or arise from a client relationship.” In re

Musto, 152 N.J. 165, 173 (1997). Rather, any offense that

reveals ethical shortcomings requires discipline, Hasbrouck,

supra 140 N.J. at 167, because “[t]o the public [a lawyer] is a

lawyer whether he acts in a representative capacity or

otherwise,” In re Gavel, 22 N.J. 248, 265 (1956).

“[T]he primary purpose of discipline is not to punish the

attorney but to preserve the confidence of the public in the

bar.” In re Cohen, 220 N.J. 7, 11 (2014). “The imposition of

discipline in a particular case . . . is meant to foster

continued faith in the legal profession as a whole.” In re

Torre, 223 N.J. 538, 549 (2015).

Our role is to impose the appropriate discipline on

respondents for their ethical violations. R. 1:20-13(c); R.

1:20-16; Cohen, supra, 220 N.J. at 12. That determination is

“driven by the gravity of the offense,” Cohen, supra, 220 N.J.

at 12, and requires consideration of the “nature and severity of

the crime, whether the crime is related to the practice of law,

and any mitigating factors such as respondent’s reputation, his

8
prior trustworthy conduct, and general good conduct,” In re

Lunetta, 118 N.J. 443, 445-46 (1989).

“Disbarment is the most severe punishment, reserved for

circumstances in which ‘the misconduct of [the] attorney is so

immoral, venal, corrupt or criminal as to destroy totally any

vestige of confidence that the individual could ever again

practice in conformity with the standards of the profession.’”

Cohen, supra, 220 N.J. at 15 (alteration in original) (quoting

In re Templeton, 99 N.J. 365, 376 (1985)). We have refrained

from establishing a bright-line rule requiring disbarment in all

cases involving sexual offenses against children. Id. at 9.

Rather, we found that the appropriate level of discipline may

depend on different factors, such as whether the case “involved

touching, physical violence, or actual dissemination [of child

pornography] to others, the number of pictures or videos, or

whether the perpetrator suffered from mental illness or sexual

abuse himself or herself.” Id. at 18. Thus, the imposition of

discipline in cases involving sexual misconduct with a minor

requires a fact-sensitive inquiry on a case-by-case basis.

Recently, in Cohen, this Court addressed the disciplinary

action appropriate for an attorney who pled guilty to second-

degree endangering the welfare of a child, based on the

attorney’s possession of child pornography. Id. at 8. The

attorney, a member of the State Assembly, was arrested after an

9
investigation revealed that he accessed adult and child

pornography on his work and law firm computers and printed

pornographic images of young victims. Id. at 9-10. Overall,

the attorney accessed thirty-four images of child pornography

online, and authorities recovered nineteen printed photos of

girls under sixteen. Id. at 10.

In our analysis, we highlighted the range of disciplinary

measures available, depending on the degree of seriousness of

the attorney’s involvement with child pornography. Id. at 12-

15. For the first time in a child pornography case, the Court

imposed an indeterminate period of suspension on the attorney,

specifically underscoring that he would be subject to “vigorous

review” before being considered for readmission to the practice

of law. Id. at 19. The Court found that the attorney’s

“alleged mental illness, his own experience being sexually

abused as a child, and his cooperation in seeking treatment and

his progress thus far” warranted some leniency and discipline

less than full disbarment. Id. at 18.

Lesser suspensions have also been applied in child

endangerment cases. In discussing the following disciplinary

cases, we glean the facts from the DRB opinions archived on the

Rutgers Law School website, available at

http://njlaw.rutgers.edu/collections/drb/.

10
 This Court suspended an attorney for one year, when the

attorney attempted to meet a minor after engaging in illicit

online conversations. In re Ferraiolo, 170 N.J. 600 (2002).

There, the attorney entered an Internet chat room to communicate

with a person he believed to be a child. He discussed sexual

acts that he wished to engage the minor in and sent the minor

boy two nude photos respondent claimed were of himself. He then

arranged a meeting with the boy, appeared at the location, and

was subsequently arrested by an undercover officer, who had been

posing as the minor. The attorney admitted that he frequented

Internet chat rooms that introduced older men to younger boys

and had previously arranged to meet a boy for the purpose of

engaging in sexual acts, but had never actually met with the

boy. The DRB highlighted the attorney’s favorable prognosis

provided by psychological reports, his unblemished legal career,

and letters from friends and family attesting to his otherwise

good character. The DRB recommended a one-year suspension,

which this Court ordered. See also In re Ruddy, 130 N.J. 85, 86

(1992) (suspending respondent for two years after he sexually

molested several pre-teenage boys).

In contrast, this Court found disbarment the appropriate

disciplinary action for an attorney who engaged in illicit

conversations in an Internet chat room with an individual he

believed to be a twelve-year-old boy. In re Cunningham, 192

11
N.J. 219, 220 (2007). During the conversations, the attorney

described the sex acts that he wished to perform with the boy

and also invited the boy to meet in person in a secluded area,

but he never finalized the arrangement. Under those facts, this

Court found disbarment proper, despite the DRB’s recommendation

of a two-year suspension.

We also found disbarment proper for an attorney who

inappropriately touched a girl’s rectal area. In re Frye, 217

N.J. 438 (2014). Though the incident in Frye was isolated, this

Court accounted for the attorney’s failure to report the

conviction to the ethics committee for several years and his

failure to attend mandatory outpatient sexual offender therapy

sessions as indicative of the attorney’s inability to

rehabilitate and his danger to the bar. See also In re Burak,

208 N.J. 484 (2012) (disbarring respondent who pled guilty to

possession of child pornography); In re Thompson, 197 N.J. 464

(2009) (disbarring respondent convicted of sexual exploitation

of a minor); In re Sosnowski, 197 N.J. 23, 23-24 (2008)

(disbarring respondent for New Hampshire conviction of

possession of child pornography); In re Wright, 152 N.J. 35, 35

(1997) (disbarring respondent for aggravated assault for

digitally penetrating his minor daughter’s vaginal area); In re

Palmer, 147 N.J. 312, 313 (1997) (disbarring respondent for

seven counts of third-degree aggravated criminal sexual contact

12
and one count of fourth-degree criminal sexual contact); In re

“X”, 120 N.J. 459, 464 (1990) (disbarring respondent for second-

degree sexual assault of his three daughters).

Although discipline for sexual offenses has occasionally

been as mild as reprimand, see, e.g., In re Pierce, 139 N.J. 533

(1995) (attorney convicted of lewdness for exposing his genitals

to twelve-year-old girl), we recognized in Cohen that “[c]rimes

involving the sexual exploitation of children have a devastating

impact and create serious consequences for the victims.” Id. at

12. We explicitly announced that, from the date of that

decision, “attorneys must be on notice that engaging in this

form of unlawful activity may be considered grounds for losing

the privilege of membership in a distinguished and trusted

profession.” Id. at 18. We also put the bar on notice of the

“more stringent approach we will take in disciplining attorneys

for egregious offenses.” Ibid. With those principles in mind,

we turn to the particular circumstances of the three cases

before us.

III.

We have considered the circumstances underlying each

respondent’s guilty plea and the recommendations made by the

DRB, and address each in turn.

A.

13
 We first confront the indeterminate suspension of Legato.

In affixing an indeterminate suspension on Legato, we consider

the nature of his actions and any mitigating factors. The

conduct of Legato aligns with the conduct of the respondent in

Ferraiolo. Just as in that instance, Legato engaged in illicit

online conversations with an individual he believed to be a

minor. The attorney’s conduct in Ferraiolo, however, was more

egregious because he appeared at the arranged meeting with the

child; whereas here, Legato never showed to meet the child in

person, despite making arrangements to do so.

In the fifteen years since Ferraiolo, we have recognized

changing societal attitudes toward child sexual offenders and

have put the bar on strict notice of stringent discipline for

such offenses with our decision in Cohen, supra, 220 N.J. at 9,

12, 18. Although we found a one-year suspension to be

appropriate in Ferraiolo, today, we find that indeterminate

suspension is appropriate for Legato because he admitted to

targeting an underage child online, but never took the

additional step of meeting with the minor. Instead, the

communication with the purported minor was limited to online

interaction. While Cunningham paved a path for disbarment

without physical interaction, we do not find the need for

complete disbarment for Legato. We therefore find indeterminate

suspension the appropriate discipline for Legato. We reiterate,

14
as we did when imposing an indeterminate suspension on the

respondent in Cohen, that Legato will be subject to “vigorous

review” before the Court considers restoration of his license.

B.

Similarly, Kenyon’s conduct merits indeterminate

suspension. Like Legato, Kenyon engaged in illicit online

conversations with an individual he believed to be a minor, but

he never met the child in person. Kenyon’s psychiatric

evaluation was also favorable.

While suspended, the stringent requirements of Megan’s Law

and PSL will protect the public with respect to Kenyon. As with

respondent Legato, Kenyon will be subject to parole supervision,

continuing psychological counseling, and limitations on his

access to and usage of the Internet. Kenyon too will be subject

to “vigorous review” before his license may be restored. We

refrain from applying a bright-line disbarment and find

indeterminate suspension the appropriate discipline.

C.

We note that the public is protected while Legato and

Kenyon are suspended and under parole supervision for at least

fifteen years. They will not be able to access the Internet for

non-work purposes, and their Internet usage will be monitored.

With the protections of Megan’s Law and PSL in place, we stop

short of eliminating all hope of future reinstatement. We

15
cannot anticipate what therapies, pharmaceuticals, or treatments

may become available to help control or rehabilitate Legato or

Kenyon. It is unlikely that Legato or Kenyon could successfully

petition the Court to grant them readmission while under PSL.

As a practical matter, in this case, at this time, disbarment

and indeterminate suspension are disciplinary differences

without a distinction. Only time will tell whether they become

markedly different sanctions.

When we protect the public in this manner, we

simultaneously protect the integrity of our profession and our

obligation to decide each matter based on the facts of each

case. The dissent’s focus on monetary-based ethics violations

conflates two categories of lawyers -- those who are motivated

by greed to betray their client’s and the public’s trust and

defraud them, and those who may have an affliction unrelated to

their practice of law and commit offenses based on that

affliction, see, e.g., Fred S. Berlin, Pedophilia and DSM-

5: The Importance of Clearly Defining the Nature of a

Pedophilic Disorder, 42 J. Am. Acad. of Psychiatry & L. 4, 404-

07 (2014) http://jaapl.org/content/42/4/404 (discussing

psychopathology of pedophilia); Michelle A. McManus et al.,

Paraphilias: Definition, Diagnosis Treatment, Nat’l Ctr. for

Biotech. Info., 5 F1000Prime Reports 36 (2013),

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3769077/ (same);

16
Gilian Tenbergen et. al, The Neurobiology and Psychology of

Pedophilia: Recent Advances and Challenges, Frontiers in Human

Neuroscience (June 24, 2015),

http://doi.org/10.3389/fnhum.2015.00344 (same). The two

categories should not converge. Rather than draw another

bright-line rule that looks singularly at the egregiousness of

the act, we prefer to utilize the approach of examining the

individual circumstances before determining that the sanction of

disbarment is warranted for a sexually based offense. See

Cohen, supra, 220 N.J. at 9.

Regarding Legato and Kenyon, there was no actual harm or

contact to an actual minor, which would require disbarment. To

be clear, we do not minimize the reprehensibility of Legato’s

and Kenyon’s conduct simply because the children in the online

chat rooms were actually undercover agents. We do, however,

find a significant distinction between online and personal

physical contact.

D.

Finally, we address the disbarment of respondent Walter.

On multiple occasions throughout a five-month period, Walter

masturbated in the family pool in front of a nine-year-old girl

who was under his care. Strikingly, in describing the course of

events to his evaluating psychologist, Walter implied that while

in the pool the “physical barriers broke down, and the two

17
became too comfortable with each other physically.” We agree

with the DRB’s assessment that this characterization

demonstrates that Walter does not appear to take full

responsibility for his actions, attempting to apportion blame to

a nine-year-old child.

We further reject Walter’s argument that his conduct is

less culpable than that in Frye, simply because he did not

actually fondle the child but instead masturbated in her

presence for his own sexual gratification. Unlike Legato and

Kenyon, Walter was not shielded by distance or the artificiality

of online interaction. When “physical barriers broke down,”

Walter was not living an online fantasy -- he was masturbating

in his pool in the presence of a young child in his charge.

We find that the nature and severity of his conduct, the

physical presence of the child, and his position of power over

and responsibility for the child brings Walter’s actions into

the realm of Frye and Wright. Walter has demonstrated that he

is willing to take advantage of his power for his own benefit,

encapsulating the precise object that we are tasked with

maintaining -- public confidence in the bar. The lack of

apparent remorse, lack of acceptance of responsibility and

multiple instances of masturbating in the presence of a child

who was under his care clearly warrant Walter’s disbarment.

18
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON,
FERNANDEZ-VINA, and SOLOMON join in JUSTICE TIMPONE’s opinion.
JUSTICE ALBIN filed a separate, dissenting opinion, except that
he did not participate in the matter of respondent Walter
(Sections I.C. and III.D).

19
 SUPREME COURT OF NEW JERSEY
D-99 September Term 2015 (077464)
D-100 September Term 2015 (077465)
D-101 September Term 2015 (077467)

IN THE MATTER OF

MARK G. LEGATO,

An Attorney at Law

IN THE MATTER OF

REGAN C. KENYON, JR.,

An Attorney at Law

IN THE MATTER OF

ALEXANDER D. WALTER,

An Attorney at Law

JUSTICE ALBIN, dissenting.

Some “ethical violations are, by their very nature, so

patently offensive to the elementary standards of a lawyer’s

professional duty that they per se warrant disbarment.” In re

Cammarano, 219 N.J. 415, 421 (2014) (quoting In re Conway, 107

N.J. 168, 180 (1987)). The sexual exploitation or abuse of

children -- whether completed or, as in the Legato and Kenyon

matters, attempted -- is such an egregious violation of societal

1
norms that no discipline short of disbarment will ensure public

confidence in the bar or the judiciary’s governance of the bar.

In recommending the disbarment of attorneys Mark G. Legato

and Regan C. Kenyon, Jr., for the crimes of attempting to

endanger the welfare of children, the Disciplinary Review Board

(DRB) recognized that the outrageous conduct of these attorneys

justified the ultimate discipline. In making its

recommendation, the DRB simply followed this Court’s decision to

disbar an attorney for similar conduct in In re Cunningham, 192

N.J. 219 (2007).

The public and the bar must have confidence that the Court

means what it says. Because I believe that the majority has

erred in not adopting the DRB’s recommendation that the Court

disbar Legato and Kenyon, I respectfully dissent.

I.

A.

In 2013, Legato pled guilty to third-degree attempting to

endanger the welfare of a child by attempting to engage in

sexual conduct that would impair or debauch the morals of the

child, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:24-4(a), and was

sentenced to a special sentence of supervision for life and

ordered to comply with the dictates of Megan’s Law. The facts

set forth in Legato’s plea colloquy and the DRB decision reveal

that Legato engaged in explicit sexual conversations online with

2
a girl he believed to be twelve-years old. The “girl” was a law

enforcement officer.

During the online chats, Legato disclosed that he was a

forty-three-year-old male, and she stated that she was twelve-

years old. During a video chat with the girl, Legato “unzipped

his pants and exposed his erect penis.” During their online

conversations, Legato asked the girl “to touch herself in her

genital area and [told] her that he would like to engage in oral

sex with her as well as penetrate her.” Although Legato twice

scheduled in-person meetings with the girl, he did not appear on

either occasion.

B.

In 2013, Kenyon pled guilty to third-degree attempting to

endanger the welfare of a child by attempting to engage in

sexual conduct that would impair or debauch the morals of the

child, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:24-4(a), and was

sentenced to a suspended three-year prison term and a special

sentence of supervision for life as well as ordered to comply

with the dictates of Megan’s Law. The facts set forth in

Kenyon’s plea colloquy and the DRB decision reveal that Kenyon

engaged in twenty-one sexually explicit online chats with a

person whom he believed was a fourteen-year-old girl.

Unbeknownst to Kenyon, the “girl” was a law enforcement officer.

During those online conversations, Kenyon “sent to her

3
images of, and links to, hardcore adult pornography.” In

addition to sharing pornographic pictures with the girl, Kenyon

“direct[ed] her to masturbate” and arranged to meet with her.

Kenyon, however, did not appear at the scheduled rendezvous.

II.

Just three years ago, we acknowledged that, “[t]oday, we

are more acutely aware of the long-lasting pernicious effects of

sexual crimes against children.” In re Cohen, 220 N.J. 7, 17

(2014). We also observed that “[u]ntil now attorneys have not

had clear notice of the more stringent approach we will take in

disciplining attorneys for egregious [sexual] offenses.” Id. at

18. Clearly, our society and our legal system have undergone a

sea change in our understanding of the nature, extent, and

effect of sexual exploitation and abuse of children. Sexually

abused children are irreparably harmed and permanently scarred.

This profound reality must inform our judgment in determining

the appropriate level of discipline for sexual-abuse offenses

involving children -- and must guide us as we form new

precedents. Children are the most vulnerable members of our

society and the most in need of special protection by our laws

and by the legal profession.

The precedent most closely aligned with the case before us

is Cunningham, supra, 192 N.J. 219. There, we disbarred an

attorney for misconduct strikingly similar to the transgressions

4
of the attorneys in this case. Ibid. Cunningham engaged in

Internet chats with an undercover officer who was posing as a

twelve-year-old boy. In re Cunningham, No. DRB 06-250 (Dec. 21,

2006) (slip op. at 2). In the online conversations,

“[Cunningham] described, in lurid detail, certain sexual acts

that he hoped to perform on the boy” and “sex acts that he hoped

to teach the boy to perform on him.” Id. at 2-3. Although

Cunningham planned a sexual liaison with the boy, he never

finalized the arrangement. Id. at 3.

Like the attorneys in this case, Cunningham pled guilty to

third-degree attempted endangering the welfare of a child,

N.J.S.A. 2C:5-1 and N.J.S.A. 2C:24-4(a). Cunningham, supra, 192

N.J. at 220. Cunningham too received a special sentence of

parole supervision for life and was required to register as a

sex offender under Megan’s Law. Cunningham, supra, No. DRB 06-

250 (slip op. at 5).

In deciding that a two-year suspension was the appropriate

discipline, the DRB noted, “as societal standards evolve, so

does our attitude toward this sort of criminal behavior, and

that predatory conduct directed at our young children requires

more serious discipline.” Id. at 8. This Court rejected the

DRB’s recommendation and determined that Cunningham’s “unethical

conduct requires that he be disbarred.” Cunningham, supra, 192

N.J. at 220 (noting also that Cunningham failed to appear before

5
Court on Order to Show Cause).

The majority acknowledges, “Cunningham paved a path for

disbarment” in similar sexual-abuse cases. Ante at ___ (slip

op. at 14). Yet, the majority does not follow that path. There

is no meaningful distinction that separates Cunningham, decided

ten years ago, from Legato and Kenyon and no justification for

different discipline, particularly given our heightened

awareness of the serious and pervasive danger of sexual-abuse

crimes against children.

III.

We have recognized that certain species of egregious

misconduct so impugn the integrity of the bar and the legal

system that, even though the misconduct is unlikely to be

repeated, “[n]o sanction short of disbarment will suffice to

repair the damage” to the public’s confidence in the bar. In re

Hughes, 90 N.J. 32, 36-37 (1982). Even when an attorney’s

misconduct is unrelated to the practice of law, this Court will

disbar attorneys for egregious offenses, as in In re Goldman,

224 N.J. 33 (2016) (robbery); Cammarano, supra, 219 N.J. 415

(public bribery); In re Hasbrouck, 152 N.J. 366 (1998) (burglary

and theft); In re Valentin, 147 N.J. 499 (1997) (criminal sale

of controlled substance); and In re Wright, 152 N.J. 35 (1997)

(aggravated sexual assault).

Indeed, in such cases, we have declined to consider an

6
attorney’s likelihood of rehabilitation as a factor in

determining the appropriate sanction. See, e.g., Cammarano,

supra, 219 N.J. at 424; Hasbrouck, supra, 152 N.J. at 374-75.

That was so in Hasbrouck, supra, a case involving home

burglaries by an attorney. 152 N.J. at 370. There the Court

declined to consider Hasbrouck’s drug addiction or the potential

for her rehabilitation as mitigating factors. Id. at 374-75.

The Court disbarred Hasbrouck, noting that “[s]ome criminal

conduct is so utterly incompatible with the standard of honesty

and integrity that we require of attorneys that the most severe

discipline is justified by the seriousness of the offense

alone.” Id. at 371-72.

The Court came to the same result in Cammarano, supra, a

case involving an attorney who, during a law-enforcement sting

operation, accepted bribes to fund his election campaign for

Mayor of Hoboken. 219 N.J. at 417-20. There, the Court

disbarred the attorney despite noting his “prior unsullied

reputation, his service to the community, the adverse impact of

his conviction on his personal and professional life, and his

expression of remorse.” Id. at 424. Although the Court

“applaud[ed] the steps he ha[d] taken to right his life,” it

held that “the concerns raised by this case are greater than

whether this [attorney] is capable of rehabilitation” and that

our charge is to ensure “that the public will have confidence in

7
members of the bar.” Ibid.

The Court has taken a similar position in cases involving

attorneys who knowingly misappropriate client funds, regardless

of the amount taken or whether the attorney made repayment

before the theft was discovered. See generally In re Wilson, 81

N.J. 451 (1979). In requiring disbarment in such cases, the

Court has expressed its understanding of the stressors that

might prompt an attorney knowingly to invade a client’s trust

account -- financial desperation and family crises, id. at 457-

60, mental illness, alcoholism, and drug addiction, see In re

Greenberg, 155 N.J. 138, 161 (1997). In such cases, the Court

has accepted “the very real possibility of reformation, which

would result in the creation of a new person of true integrity,

an outstanding member of the bar.” Wilson, supra, 81 N.J. at

460.

Despite the potential for personal reformation and the

severity of the discipline in such cases, we concluded that no

result other than disbarment would satisfy the need for

“continued confidence of the public in the integrity of the bar

and the judiciary.” Ibid. The maintenance of public confidence

in the bar and our legal system has been the overarching goal of

our disciplinary jurisprudence, even if the discipline in

individual cases is seemingly harsh.

It is difficult to reconcile the majority’s position that

8
those, such as Legato and Kenyon, who attempt to commit sexual

crimes against children are worthy of reformation and

rehabilitation but that those who are driven by desperation to

invade a trust account or those who commit other crimes, e.g.,

burglary or sale of drugs, are not. Was the bribe-taker in

Cammarano less worthy of rehabilitation than Legato and Kenyon?

IV.

In Cohen, supra, a case involving an attorney who possessed

and viewed child pornography on a state computer, we imposed an

indeterminate suspension and put the bar on notice that such

offenses in the future might result in disbarment. 220 N.J. at

9-10, 18. There we said: “[A]ttorneys must be on notice that

engaging in this form of unlawful activity may be considered

grounds for losing the privilege of membership in a

distinguished and trusted profession.” Id. at 18.

The depraved actions of Kenyon and Legato exceeded the

misconduct in Cohen because they engaged not only in explicit

sexual conversations with individuals they believed to be young

girls, but also coached them to engage in sexual acts. Unlike

Cohen, Kenyon and Legato directly attempted to debauch the

morals of minors. Although Kenyon and Legato were mistaken

about the identity of the young girls, there is no mistaking

their intent. In disbarring Cammarano, it made no difference

that the bribe the attorney took was from a government

9
informant. Cammarano, supra, 219 N.J. at 423-24. It should

make no difference that Kenyon and Legato revealed themselves to

undercover law enforcement officers rather than to real

children.

Legato and Kenyon, moreover, are subject to parole

supervision for life and cannot be released from that

supervision for a period of fifteen years. The Court

nevertheless keeps open the possibility that they might be

eligible for reinstatement even while they are under parole

supervision. The indeterminate suspension clearly is not the

equivalent of disbarment, which is the reason I have parted from

the majority.

To be clear, I do not question that Legato and Kenyon are

capable of rehabilitating and redeeming themselves and becoming

successful and productive members of society. I hope that they

accomplish those goals for their benefit and the benefit of

their families and communities. The practice of law, however,

is a high calling and a privilege, not a right. I believe that

our jurisprudence calls for the permanent revocation of that

privilege in these egregious cases to ensure the paramount goal

of public confidence in the bar and the disciplinary process.

V.

Our decisions in disciplinary cases must not be

idiosyncratic, but based on principles that consistently apply

10
to similarly situated attorneys. Our precedents, moreover,

should matter. Attorneys must know that there are certain lines

that can never be crossed if they intend to retain the privilege

to practice law. In my opinion, that line was crossed in these

cases.

I therefore respectfully dissent.

11