Attorney Misconduct, Bar Exams, Kids, Legal Ethics, Pornography

Heaven Forfend Kentucky Allow A Porn-Addicted Attorney

Kentucky won't let a registered sex offender with a kiddie porn conviction take the bar exam. What's up with that?

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Recently, the Kentucky Supreme Court rejected a registered sex offender’s application to sit for the Kentucky bar exam. Guy Padraic Hamilton-Smith pled guilty in 2007 to a single charge involving the “possessing or viewing of matter portraying a sexual performance by a minor.” He received a five-year suspended sentence but was ordered to register as a sex offender for the following twenty years. Hamilton-Smith graduated from the University of Kentucky College of Law in 2011. Since graduating, he has been working in a non-lawyer position for the Lexington firm of Baldani, Rowland, and Richardson.

The Kentucky Office of Bar Admissions denied Hamilton-Smith’s application to sit for the bar exam, citing character and fitness concerns. The Office also asked the Kentucky Supreme Court to create a rule that would have kept all registered sex offenders from joining the state’s bar, but the court opted against that suggestion. Instead, the court wants the Office of Bar Admissions to consider bar applicants with sex-offender registration on a case-by-case basis.

What were the particular circumstances in Hamilton-Smith’s case that led the Kentucky Supreme Court to deny his application, despite not creating a blanket rule? Was it the right outcome?

The court’s reasons for denying Hamilton-Smith’s particular application remain vexingly mysterious at the moment. The Kentucky Supreme Court’s website lists the order denying Hamilton-Smith’s application on page nine of its December 2013 minutes. It simply shows:

IN RE: GUY PADRAIC HAMILTON-SMITH 2013-SC-000082-CF IN SUPREME

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ORDER DENIED APPLICATION TO SIT FOR COURT

BAR EXAM.

MINTON, C.J.; ABRAMSON, CUNNINGHAM,

KELLER, NOBLE AND VENTERS, JJ., CONCUR.

SCOTT, J., CONCURS IN RESULT ONLY.

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It doesn’t provide a link to the text of the order, even though opinions not to be published seem to still get links in the KSC’s minutes. As of this writing, nothing appears on Westlaw either. (If any readers have better information, please share in the comments or via email.)

The difficulty in finding the text of the original documents is especially frustrating since Associated Press reporting on the story quotes Kentucky Chief Justice John D. Minton’s opinion in the case. None of the outlets that have picked up the AP story seem to link to the text either, including, for example, the ABA Journal.

What is clear is the outcome: Hamilton-Smith is unable to sit for the Kentucky bar exam. It’s not clear, however, that Hamilton-Smith is the sort of child pornographer that society most worries about. His attorney, Scott White, insists that Hamilton-Smith is an admitted “classic sex addict” who has participated in a recovery program for sex addiction since his 2007 conviction. White says that his client downloaded “buckets” of online pornography, only to later to discover that there was some kiddie porn mixed in with the adult-porn images. (Who knew “bucket” was a standard unit of measure for pornography?) Note that the statute at issue requires that the offender intentionally possess the images, but it does not require that he know or intend the images to be of minors. So, conceivably, Hamilton-Smith could have been properly found guilty had he known that he was downloading the “bucket” of porn in question, without knowing that the “bucket” contained particular images of children.

That doesn’t mean I want him leading a Girl Scout troop on an unsupervised camping trip, but it also doesn’t mean that this fellow is a pedophile. More likely, he is a pornography addict with bad judgment and worse luck.

Does porn addiction substantially compromise one’s character or undermine one’s fitness to practice law? A recent study suggests that pornography consumption increases an individual’s opposition to affirmative action for women in the workplace. Other studies have shown that compulsive porn-viewing may impair one’s working memory.

However, the Office of Bar Admissions and the Supreme Court are probably not nixing Hamilton-Smith’s application because they fear that his criminal history makes him more likely to start fast-tracking female associates to partnership or forgetting to bring donuts to the office on Friday. Rather, they seem to be making a judgment about either his lingering sex addiction or simply the optics of a client discovering that her bar-admitted attorney is a registered sex offender. Hamilton-Smith appears to have taken all the recommended steps for addressing his addiction, though. So, what makes him substantially different than a recovering alcoholic who has successfully sought treatment to manage the addiction that led to a DUI six years ago? Concern for clients’ responses to Hamilton-Smith’s registration status is not unwarranted, but it points to the greater issue of how unduly stigmatizing sex offender registration can be.

Hamilton-Smith’s outcome seems like an unfortunate one. If, as a matter of routine practice, though, the Kentucky Office of Bar Admissions intends to deny the applications of registered sex offenders, better that they do have a blanket rule. At least with a blanket rule, potential law school applicants with this sort of criminal history would know in advance that they wouldn’t be given the chance to practice law in Kentucky. They would know with certainty that they wouldn’t be admitted to the Kentucky bar, and they presumably would not spend three years and tens of thousands of dollars on law school. As it stands, such individuals are left hoping that maybe they will be the sex offender whose application gets accepted. Hamilton-Smith and others with felony histories know that they are gambling when they attend law school. But the lack of a blanket rule keeps hope alive when, as a matter of practicality, that hope should die an early death. Unfortunately, there’s a glutted job market full of young attorneys who demonstrate that rational risk calculation isn’t the strong suit of many law school applicants. Not every former felon is going to have a bar application as compelling as that of the inspiring Shon Hopwood, after all.

Too bad for Hamilton-Smith that he isn’t a British computer scientist. Then maybe he’d get a pardon and his record as a sex offender would no longer be an obstacle.

Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit. She will be working at the Center for Legal Pedagogy at Texas Southern University during the 2013-2014 academic year. She looks forward to a career of teaching and writing about, but never practicing, law. You can reach her at tabo.atl@gmail.com

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