Alabama State Bar v. Steven John Giardini
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REL: May 8, 2020 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 2290649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2019-2020 ____________________ 1180248 ____________________ Alabama State Bar v. Steven John Giardini Appeal from the Disciplinary Board of the Alabama State Bar (ASB: 2018-821) SHAW, Justice.1 The Alabama State Bar ("the Bar") appeals from an order of the Disciplinary Board of the Alabama State Bar ("the Board"), Panel III, granting the petition of Steven John 1 This case was previously assigned to another Justice; it was reassigned to Justice Shaw on August 21, 2019. 1180248 Giardini to be reinstated to the practice of law after a three-year suspension. For reasons stated below, we reverse the Board's order and remand the case for the Board to enter an order denying Giardini's petition. Facts and Procedural History Giardini was admitted to the practice of law in Alabama on September 28, 1990. Giardini was at one point employed as an Assistant District Attorney in Mobile County and in that position was primarily tasked with the prosecution of childsexual-abuse cases. The record indicates that, between 2008 and 2009, while working in that capacity, Giardini began communicating in online chat rooms2 and by telephone with persons who either were or were representing themselves to be underage girls. Because we hold that the Board's findings and Giardini's reinstatement to the practice of law are clearly erroneous in light of the facts in this case, the nature and content of certain communications are highly relevant to our analysis; thus, 2 the substance of those conversations unfortunately A chat room is defined as "a real-time online interactive discussion group." Merriam-Webster's Collegiate Dictionary 209 (11th ed. 2003). 2 1180248 cannot be omitted. However, because they are sexually graphic in nature, they have been summarized when possible but with the aim of ensuring that their content is still clear. Other portions of the transcripts are recited verbatim to show how Giardini interacted online with people purporting to be minors. On and around January 2 and 3, 2008, Giardini engaged in three separate communications themselves as underage girls. with persons describing The first of those was a girl whose chat-room name was "donnapa4." After "donnapa4" told Giardini that she was 17 years old, Giardini asked her about her breast size and dominance/submission, her experiences with bondage, and sadomasochism ("BDSM"). He also asked her if she was alone or if she had some privacy; however, when she indicated that she did not have a cellular telephone and that she was unable to "talk on the phone as [she] view[ed] on cam,"3 the conversation quickly concluded. Another, identified by the screen name "suzannagurl," failed to disclose her actual age but indicated she was young enough 3 In this context, in appears that "cam" referred to a "webcam," which is "a camera used in transmitting live images over the World Wide Web." Merriam–Webster's Collegiate Dictionary 1418 (11th ed. 2003). 3 1180248 to still live at home with her parents and younger sibling. After "suzannagurl" responded to Giardini's inquiry as to whether she "like[d] cams" by indicating that her mother had confiscated her webcam, their conversation also concluded. On January 3, 2008, Giardini began communicating with a girl whose "summersun." chat-room As screen demonstrated name by we the will identify following as excerpt, despite "summersun" telling Giardini that she was 16 years old, the online conversation between them centered on their purported mutual interest in BDSM. Giardini asked if she wished to engage in such conduct and asked her about her sexual experiences: 4 "[Giardini]: have you a master at this time? I would not wish to intrude "[summersun]: I do not "[Giardini]: are you seeking at all "[summersun]: yes Sir, but i am very new to this "[Giardini]: of course "[Giardini]: seeking real time or online or both? 4 Because of the nature of these chat-room conversations, they are presented here as they were transcribed from the originals -- essentially verbatim, with no correcting of spelling and punctuation. 4 1180248 "[summersun]: both please "[Giardini]: what has sparked your interest? "[summersun]: I found some of my moms porn "[Giardini]: it included BDSM? "[summersun]: no, but the guy was [definitely] in charge "[Giardini]: that aroused you? "[summersun]: yes "[summersun]: very much "[Giardini]: did you have to masturbate when you saw it? "[summersun]: yes I did "[Giardini]: what do you look like? I'm 5'10" 160 lbs drk hair/eyes "[Giardini]: you're lovely "[Giardini]: alone this morning? "[summersun]: my parents are downstairs "[Giardini]: when do they leave? "[summersun]: about 20 minutes, but I have to go with them "[Giardini]: what are you doing this morning? "[summersun]: going shopping "[Giardini]: what have you experienced sexually?" 5 1180248 At this point, summersun discloses that she had engaged in oral sex. Giardini then engages in a graphic discussion of oral sex and the practices he wants summersun to perform. He also asks her if her mother owns sex toys and whether she has used them. The conversation continues, and Giardini asks her to purchase a webcam when she is shopping with her parents and again asks whether she wished to engage in "BDSM" online and in person: "[Giardini]: can you relocate for the right master? "[summersun]: not till I'm 18 "[Giardini]: when do you turn 18? "[summersun]: 2 years "[Giardini]: so online until then? Or can you slip away some until you can move? "[summersun]: I can get away for a weekend "[Giardini]: ok "[Giardini]: when you're out shopping try to get a web cam I just got one for $20 that works fine "[Giardini]: it's a philips [brand] "[summersun]: I will try "[Giardini]: do what you can "[Giardini]: do you have a spare $20? 6 1180248 "[summersun]: no, maybe my parents will buy it "[Giardini]: can't hurt to ask ".... "[Giardini]: do you want to be restrained? "[summersun]: what do you mean? "[Giardini]: tied up? "[summersun]: mmmm yes please, I would like that." Giardini then asks her, in graphic manner, about engaging in anal sex, using her mother's sex toy, masturbation, and orgasms. The conversation ends with Giardini calling her a "good girl," arranging to talk again, and reminding her to purchase a webcam. On January conversation 16, with 2008, Giardini engaged "girlforguyfemale" during in an which online they discussed, in the presence of a 15-year-old girl who was allegedly with "girlforguyfemale" during their conversation, performing sex acts. On January 19, 2008, Giardini communicated in an online chat room with a girl identified by the online screen name "widespread," who stated that she was 17 years old. As in his conversations with "summersun," Giardini began by asking her 7 1180248 whether she was interested in acquiring a "master" and whether she enjoyed engaging in BDSM. After "widespread" confirmed her interest, Giardini asked her if she preferred older men. The conversation quickly became sexually explicit, with Giardini graphically discussing oral sex acts, ejaculation, and her experience with anal sex. The conversation continued as follows: "[widespread]: do you have any subs ".... "[Giardini]: not at this time "[Giardini]: I'm seeking, too "[widespread]: oh ok and have you ever had any young girls as subs "[Giardini]: yes "[Giardini]: how old are you? "[widespread]: kool how old "[widespread]: 17 "[Giardini]: 22 "[Giardini]: what do you look like? I'm 5'10" 160 lbs drk hair/eyes "[Giardini]: get that thong off "[widespread]: yes, sir." 8 1180248 The two engage in additional graphic conversation, with Giardini giving instructions to the teenager to stimulate herself. The two discuss pictures they apparently exchanged: "[widespread]: do you have any dirty pics "[Giardini]: good girl "[Giardini]: yes "[Giardini]: you want to be restrained? "[widespread]: I have never been done that way "[Giardini]: eager to try? ".... "[Giardini]: you'll love being tied up "[Giardini]: such helplessness "[widespread]: mmmmmmmmmmm "[widespread]: damn "[Giardini]: any other pics of you? "[widespread]: I want to try that "[Giardini]: we shall "[Giardini]: and so much more "[widespread]: mmmmmmmm ok ".... "[Giardini]: yes it is very arousing 9 1180248 "[Giardini]: you have another photo "[widespread]: no sorry only of pics other people have sent me "[widespread]: I have a pic of my mom though "[Giardini]: ok "[widespread]: you still there "[Giardini]: yes "[Giardini]: I was waiting for the photo sorry "[widespread]: sorry "[Giardini]: do you have a cam, too? "[widespread]: y did u close it "[Giardini]: that was really all I had "[widespread]: ok "[Giardini]: do you have a cam? "[widespread]: no sorry "[Giardini]: try to get one please "[Giardini]: I think they're like $20 at walmart "[widespread]: yes I will just have to hide it from mom "[Giardini]: ok." A graphic conversation continued about sex acts, with Giardini indicating what sex acts he would perform with her. 10 1180248 The conversation concluded with Giardini indicating that they could speak again later. On February 7, 2008, Giardini began engaging in a similar online conversation with a person identified as "heatherdwnsth." After "heatherdwnsth" told Giardini that she was 15 years old and from a city in Alabama, he immediately began inquiring in graphic detail about her past sexual experiences. He instructed her to perform a sex act, and at one point, after apparently exchanging pictures, he asked how she was dressed and then whether she was alone: "[Giardini]: how are you dressed today? "[heatherdwnsth]: jeans and a sweat shirt "[Giardini]: anything underneath? "[heatherdwnsth]: yesss lol "[heatherdwnsth]: u "[Giardini]: pics "[heatherdwnsth]: ur really pretty "[Giardini]: thank you "[Giardini]: you are too "[Giardini]: are you alone today? "[heatherdwnsth]: mom is downstairs im in my room 11 1180248 "[Giardini]: have privacy? "[heatherdwnsth]: yea "[Giardini]: nice." The teenager then asked: "[heatherdwnsth]: u [have] any more [pics?] "[Giardini]: yes "[heatherdwnsth]: :) "[Giardini]: but they are naughtier "[heatherdwnsth]: really :) "[heatherdwnsth]: kewl "[Giardini]: yes but I will have to wait until you get a little older to send those sorry." Giardini then instructed "heatherdwnsth" to unbutton her pants and masturbate, giving her explicit instructions and discussing her pubic hair. The conversation concluded as follows: "[heatherdwnsth]: gotta go moms calling "[Giardini]: ok "[heatherdwnsth]: look 4 me "[Giardini]: button your jeans "[Giardini]: I will." 12 1180248 Around the time that he was communicating with "heatherdwnsth," Giardini also engaged in online conversations with a person identified as "paint_my_face." Just as he did in his prior conversations with others purporting to be teenage girls, Giardini almost immediately asked for graphic details about her sexual experiences after learning that she was only 17 years old and was then unsupervised; however, their conversation tapered off shortly after she indicated that she lacked a webcam and that she was unwilling to make telephone contact. Similarly, two other conversations Giardini initiated in March 2008 with other individuals identifying themselves as 17-year-old girls ended abruptly after one indicated she did not "ever show" on webcams and the other indicated that she did not have a webcam. In December 2008, Special Agent Paul Roche of the Federal Bureau of Investigation ("FBI") undertook a sting operation under which he posed in a chat room as a 15-year-old female named "Diana Gautier." In that guise, Roche responded to an initial communication from Giardini to Diana on December 14, 2008. During their first conversation, "Diana" and Giardini 13 1180248 exchanged profile pictures, and "Diana" told Giardini about herself, her family, and her concerns about including the fact that she was 15 years old.5 21, 2008, however, their conversations became schoolwork, By December much more personal: "[Diana]: my moms super cool but she worries too much "[Giardini]: well she has to make sure you're taken care of and with money tight... ".... "[Diana]: shes always on me about dating ".... "[Diana]: she got pregnant with me when she was in high school and shes always worried about me getting pregnant "[Giardini]: well I can see wanting you to wait for awhile before you get invoved that seriously "[Giardini]: involved "[Diana]: I mean I know she means well but im not stupid and ill make the boy use a condom "[Giardini]: you're not that serious with anyone yet are you? 5 Giardini testified at the reinstatement hearing that he believed that Diana was a 15-year-old female. 14 1180248 "[Diana]: not right now I was with my ex [boyfriend] but we broke up after summer." Giardini asked Diana if she had ever had sex and how old she was when she did so, told her he was the same age when he first had sex, and stated that he was glad she used a condom. They further discussed her prior relationships: "[Diana]: my [boyfriend]'s name was david he was really nice but he dumped me for another girl "[Giardini]: I'm sorry "[Giardini]: he lacked good taste then "[Diana]: thks ok "[Diana]: thk u "[Giardini]: you're bright and pretty "[Giardini]: and nice "[Giardini]: good combination "[Diana]: LOL u made me blush! Thk u I think ur nice too [David's] new girl is really pretty thats why he went for her "[Diana]: I say its his loss though "[Giardini]: exactly "[Diana]: im not gonna cry abt it just move on "[Giardini]: that's the right approach 15 1180248 "[Diana]: u don't think bad of me do u? "[Giardini]: for having sex? "[Diana]: yeah "[Giardini]: of course not "[Giardini]: I told you how old I was "[Giardini]: I know it happens "[Giardini]: part of life "[Giardini]: and you were careful "[Diana]: good I didnt want u to think I was just a slut or something ok "[Giardini]: not at all "[Diana]: ur awsome! "[Giardini]: thanks! "[Giardini]: I think you're cool, too "[Diana]: thks did u mean it when u said I could call u "[Giardini]: sure I did "[Diana]: I have to be careful my mom would freak out on me LOL "[Giardini]: oh if she would not approve you think you should? "[Diana]: sure "[Giardini]: I do not want to make trouble for you or for you to make trouble for yourself 16 1180248 "[Diana]: thks no I just have to be careful." During this same conversation, Giardini told Diana about the swimming pool and Jacuzzi tub at his home and suggested that Diana was welcome to use either. The online conversations between Giardini and Diana continued until February 2009, at which time they apparently also began having telephone conversations. During those conversations, Special Agent Roche apparently used a device to disguise his voice and to make him sound like a teenage girl. Eventually, on February 19, 2009, Giardini admitted to Diana that he "liked her a lot" and began suggesting that they actually meet: "[Giardini]: I thought about you too "[Giardini]: a lot "[Diana]: really!!! ur not just saying that r u please don't tease me ok "[Giardini]: I'm not "[Giardini]: not at all "[Diana]: cause I really like u a lot "[Giardini]: I like you a lot "[Diana]: and I don't want to sound like an idiot or a geek 17 1180248 "[Giardini]: you don't sound like that "[Diana]: thks "[Giardini]: you're welcome "[Giardini]: quit worrying so much "[Giardini]: if I did not like you I would not be here "[Diana]: I just don't want u to think im a pest "[Giardini]: hardly "[Giardini]: I think you are wonderful "[Diana]: OMG thk u!! I think u are too!! Ur the coolest boy I've ever talked too!!! "[Giardini]: you're sweet to say that "[Diana]: I mean it u actually listen to me "[Giardini]: well sure "[Diana]: I really think ur an awesome guy "[Giardini]: you'll like me more when we meet "[Diana]: I really want to meet u but we have to b careful ok "[Diana]: I don't want to get in trouble "[Giardini]: of course "[Giardini]: or get either of us in trouble." Thereafter, the conversations and Giardini's efforts to avoid detection by planning their contact around Diana's 18 1180248 mother's work schedule continued. Their discussions regarding sex also continued, with Giardini asking Diana on March 23, 2009, about her sexual preferences, her pubic hair, and her past sexual experiences, which included explicit descriptions of oral sex and orgasms. Giardini assured Diana that he would not be mad at her regarding her past sexual experiences, that she could tell him anything, and that, regardless of what she told him, he would not think she was promiscuous. Giardini then encouraged Diana to engage in masturbation. During a subsequent conversation on April 1, 2009, Giardini and "Diana" discussed plans to meet on a Saturday and go to the beach: "[Giardini]: wear your swimsuit under your regular clothes Saturday "[Diana]: ok ".... "[Diana]: if we go to the beach can we go to orange beach I don't want to go to gulf shores in case somebody sees me "[Diana]: a lot of my friends go to gulf shores "[Giardini]: ok." On the following day, prior to the planned beach trip, the following occurred: 19 1180248 "[Diana]: r we still going to the beach "[Giardini]: yes we are "[Diana]: AWESOME!!! "[Giardini]: what time does your mother go to work Saturday? "[Diana]: she leave[s] around 10:30 cause she has to b there at 11 ".... "[Giardini]: ok "[Diana]: I can call u when she leaves "[Giardini]: great "[Diana]: im so excited!!!! "[Diana]: im gonna put on my strawberry lipstick "[Giardini]: your lips are just fine as they are though "[Diana]: I love that u say things like that ur really sweet "[Diana]: do you want me to wear it or just leave it "[Giardini]: honestly "[Diana]: yeah "[Giardini]: I think I just want to taste you "[Diana]: then ill leave it "[Diana]: I want to taste u too 20 1180248 "[Diana]: will u do that with ur tongue for me!!!! "[Giardini]: when you're old enough I will ".... "[Diana]: r there gonna b a lot of [people] at the beach "[Giardini]: no idea "[Giardini]: I doubt it "[Diana]: good "[Diana]: I want u all to myself LOL "[Giardini]: you would have that if there were 1000 people there "[Diana]: I cant wait to b with u "[Giardini]: good girl "[Diana]: can I ask u somethin and I don't mean to sound silly "[Giardini]: of course "[Diana]: what can we do together I mean thats ok cause I don't want to do somethin u don't want to and get u mad and im kind of confused "[Giardini]: we'll just have a good time together for now "[Diana]: I know just being with u ill have a good time "[Diana]: I know we cant do sex but ... what about [like] what we did last nite 21 1180248 ".... "[Giardini]: we can do it tonight too "[Diana]: cool "[Giardini]: if you want to "[Diana]: but I mean like can we do that when we go to the beach "[Giardini]: we can walk together and hold hands and kiss and it will be fine "[Diana]: GREAT!! "[Diana]: I was worried that if I did somethin wrong ud b mad at me "[Giardini]: I am never mad at you "[Diana]: thk u "[Diana]: u make me feel really special and I love it!!!!!! "[Diana]: I hope I make u feel good too "[Giardini]: you are special." According to the record, their meeting never actually took place. Despite encouraging "Diana" to meet him, and despite the fact that they had been in relatively continuous communication for approximately four months by that time, around April 4, 2009, Giardini apparently became concerned about their conversations being discovered and encouraged 22 1180248 "Diana" to keep their correspondence secret. Despite those concerns, however, Giardini apparently remained committed to "figur[ing things] out" with her: "[Giardini]: you know I like you a lot "[Giardini]: and care about you "[Diana]: yeah "[Giardini]: and want what is best for you "[Diana]: I know ur so awesome "[Giardini]: nobody would think I was behaving that way "[Giardini]: an awesome way "[Diana]: I do "[Giardini]: I want you to understand "[Giardini]: nobody would think this is ok "[Diana]: why ".... "[Giardini]: because I am old enough to be your father "[Giardini]: and I know I would do anything to be sure that you are ok "[Diana]: I don't care about that I can really talk with u and its like u understand me "[Diana]: I know you would "[Giardini]: now listen 23 1180248 "[Giardini]: we're going to figure this out "[Diana]: ok "[Giardini]: together "[Giardini]: but even if we wait to do anything NO ONE would find it acceptable "[Giardini]: do you believe me? "[Diana]: I believe u "[Giardini]: alright good "[Diana]: I don't care about anyone I wont tell anyone about us "[Giardini]: I know "[Giardini]: and I won't either." The record suggests that, in addition to continuing their online conversations, Giardini also spoke on the telephone with Diana on at least a couple of occasions in early April 2009. Although the actual transcripts of those telephone conversations are not included in the record, transcribed excerpts from those conversations report that Giardini engaged in graphic sexual dialogue with Diana, including instructing her to perform sex acts, describing her performing sex acts on himself, and stating "you will do what I tell you to do." 24 In 1180248 another telephone conversation, Giardini again, in great detail, instructed Diana to touch herself in a sexual manner. Around April 2009, the FBI executed a search warrant at Giardini's home that uncovered, among other things, multiple computers. Subsequent forensic examination of Giardini's computers revealed the chat-room conversations quoted above, Giardini's use of over 20 separate screen names/personas to solicit sex and/or nude images from individuals in various chat rooms, and thousands of nude images, including those allegedly depicting females under the age of 17. Giardini was eventually arrested and formally charged as a result of the conversations with "Diana."6 On August 21, 2013, the Bar also filed formal charges alleging that Giardini had violated the Alabama Rules of Professional Conduct. 6 It appears from the record that the charges stemming from Giardini's conversations with "Diana" were ultimately dismissed because, at the time those conversations occurred, electronic solicitation of a child was governed by § 13A-6110, Ala. Code 1975, which required that the victim be an actual child. On May 22, 2009, however, that statute was repealed and replaced by Alabama's current law against electronic solicitation of a child -- § 13A-6-122, Ala. Code 1975. See Acts No. 2009-745, Ala. Acts 2009, p. 2233. Section 13A-6-122 provides that a person may now be charged with electronic solicitation of a child -- a Class B felony -- even if, as occurred here, the defendant solicits a person online that the defendant merely believes is a child. 25 1180248 In 2014, Giardini contacted the director of the Alabama Lawyer Assistance Program ("ALAP") to ask for advice on how to address his conduct. The director of ALAP recommended that Giardini undergo an evaluation at Pine Grove Behavioral Health and Addiction Services in Hattiesburg, Mississippi ("Pine Grove"). During his time at Pine Grove, Giardini underwent a variety of evaluations and also participated in a polygraph examination. As a result of those evaluations, medical professionals apparently concluded that, although Giardini had a history of alcohol abuse, he was not a danger or a threat to the public, was not a pedophile, and did not have a compulsive sexual disorder. Specifically, the specialists at Pine Grove concluded that Giardini did not demonstrate the "typical pathology that would be associated with predatory or pedophilic behavior for relationships" and that his behavior was "'opportunistic' versus 'predatory.'" They recommended that Giardini work with a therapist on interpersonal issues. After being discharged from the facility, Giardini voluntarily agreed to submit to periodic drug and alcohol testing. On January 15, 2015, a hearing was held before Panel I of the Board during which Giardini pleaded guilty to the charges 26 1180248 against him. Nonetheless, the hearing proceeded for the purpose of determining Giardini's punishment. course of statement that that, prosecutor prosecuting who sex hearing, given had the that used crimes Bar Giardini his to argued in was specialized engage in During the its a opening sex-crimes knowledge graphic, in sexual conversations with a person he believed to be a 15-year-old girl for his own sexual benefit, disbarment was the only adequate punishment. Giardini's defense counsel argued that, while Giardini acknowledged his wrongful conduct, that conduct did not warrant disbarment because it allegedly represented an isolated incident, that Giardini had already "been through a lot," and that he had shown significant remorse and regret for his actions. After hearing testimony from a few witnesses, including Giardini himself, the Board found that Giardini violated Rule 8.4(a), Ala. R. Prof. Cond., which prohibits an attorney from violating the Rules of Professional Conduct; Rule 8.4(d), Ala. R. Prof. Cond., which prohibits an attorney from engaging in conduct that is prejudicial to the administration of justice; and Rule 8.4(g), Ala. R. Prof. Cond., which prohibits an 27 1180248 attorney from engaging in any other conduct that adversely reflects on his or her fitness to practice law. The Board issued an order noting that "[t]here was evidence in the transcriptions that [Giardini] had had explicit sexual conversations with at least one other 15 year old and, on numerous other occasions, with females who were 17-18 years old." It further noted that, although Giardini called several character witnesses who "made statements about [his] ability to practice law," none of the witnesses had actually read the transcripts of the chat-room conversations conversations with "Diana" provided by the FBI. and the Finally, the order concluded that, although Giardini testified that what he had been doing was wrong, he "showed very little remorse" and that suspension was warranted in his case. Several "aggravating factors" were found, including: "dishonest or selfish motive, a pattern of misconduct, multiple offenses, vulnerability of victim, and substantial experience in the practice of law." Giardini was suspended from the practice of law for three years. On July suspension, 17, 2018, Giardini at filed the a 28 conclusion petition for of his 3-year reinstatement 1180248 pursuant to Rule 28(a), Ala. R. Disc. P., which provides that a lawyer who has been suspended for more than 90 days shall not resume the practice of law until reinstated by order of the Board. reinstatement, At the all hearing the on evidence Giardini's from disciplinary hearing was readmitted. petition Giardini's for initial It is undisputed that, during that hearing, Giardini bore the burden of proving "by clear and convincing evidence that he or she has the moral qualifications to practice law in this state and that his or her resumption of the practice of law within the state will not be detrimental to the integrity and standing of the Bar or the administration of justice, and will not be subversive to the public interest." Rule 28(c), Ala. R. Disc. P. (emphasis added). In an effort to satisfy that burden, Giardini presented testimony from several character witnesses. Specifically, the director of ALAP testified that Giardini had voluntarily agreed to follow Pine Grove's recommendations, as outlined above. He also indicated that Giardini had begun meeting with a licensed professional counselor/psychotherapist and that he had voluntarily signed a "monitoring contract" agreeing to be monitored by ALAP and to submit to random alcohol testing. According to the director of ALAP, each of Giardini's random 29 1180248 alcohol-testing results had been negative. When asked whether he believed that Giardini should be reinstated, the director of ALAP, who admittedly had not seen the transcripts described and quoted above, testified that he supported reinstatement in Giardini's case. In addition, two of Giardini's former coworkers and a retired circuit-court judge testified on Giardini's behalf. First, a former coworker testified that she had worked with Giardini from 1995 to 1999 and again from 2002 or 2003 to 2008. a Specifically, she and Giardini had worked together on child-abuse-protection team. She testified that she believed Giardini would continue to be an asset to the legal profession if he were reinstated and that he had earned a second chance. She testified that she had not talked with Giardini the about circumstances that resulted in his suspension and that she was not familiar with the FBI's transcripts. Another former coworker testified that she thought that Giardini was a "superlative" attorney and that he deserved to be reinstated. When questioned about the circumstances underlying his suspension, she admitted that she had not seen 30 1180248 the transcripts but said that she believed Giardini's conduct with "Diana" in this case was "de minimis" compared to other sex-crimes cases she had prosecuted throughout her career. Finally, she testified that she knew that the Mobile Bar Grievance Committee did not object to Giardini's reinstatement. A retired circuit-court judge testified observations of Giardini in his courtroom. judge, Giardini was a good lawyer. about his According to the When asked about the circumstances underlying Giardini's suspension, the judge stated that he knew a little based on what had been reported in the media but that he was unaware of the details and had never read the transcripts of Giardini's conversations with "Diana" and the presumably underage girls. Despite this, he stated that he believed Giardini had been "punished enough" and that he did not see a problem with Giardini's working with children if he were reinstated. Giardini also presented the testimony of his therapist. She testified that, at the time of the hearing, she had been counseling Giardini for three and a half years. The therapist said that Giardini initially did not have good insight as to 31 1180248 the impact of his behaviors. During the course of her sessions with him, however, the therapist explained that it became clear that at the time of his online communications Giardini had communications "detached" "real" and in had his not mind. made his According Internet to the therapist, those conversations were more of a "sexual game" to Giardini. Despite having not read the transcripts of the conversations between Giardini and "Diana" and Giardini and the presumably underage girls, the therapist opined that those were isolated incidents and that Giardini did not pose a threat to the public. According to the therapist, the fact that Pine Grove did not review the transcripts of Giardini's Internet chats did not impair the credibility of Pine Grove's report. Finally, Giardini testified in support of his reinstatement. He stated that he was remorseful about the potential harm for that was caused by his chat-room conversations with underage girls and that he had taken responsibility for his actions. When asked to explain his behavior, Giardini testified that he felt that he had become desensitized to some things as a result of his work as a sex- 32 1180248 crimes prosecutor and that he believed that he had had a compulsion to visit chat rooms. He also stated that he was ashamed of the graphic nature of his conversations. Giardini admitted that, although his abuse of alcohol during that time likely contributed to his behavior, he did not believe that he was drinking during "most" of his inappropriate conversations. At the conclusion of Giardini's evidence, as recounted above, the Bar argued that reinstatement was inappropriate. In support of its position, it submitted the transcript of Giardini's disciplinary hearing and all exhibits presented into evidence at that hearing, including the above-quoted transcripts reflecting Giardini's chat-room conversations -transcripts that the Bar correctly pointed Giardini's witnesses had actually read. out none of Finally, the Bar argued that Giardini had not carried his burden of proving by clear and convincing evidence that his reinstatement "will not be detrimental to the integrity and standing of the Bar or the administration of justice, and will not be subversive to the public interest." Rule 28(c). On December 7, 2018, Panel III of the Board, with one member dissenting, entered an 33 order granting Giardini's 1180248 petition for reinstatement. In support of its decision, the Board found that Giardini had demonstrated by clear and convincing evidence that he had: (1) complied with all provisions of Rule 26, Ala. R. Disc. P.;7 (2) regularly followed the recommendations of the director of ALAP; (3) voluntarily undergone a comprehensive psychological evaluation that revealed that he was emotionally stable and was not a threat to the public; (4) maintained continuous psychotherapy sessions; (5) voluntarily abstained from alcohol; (6) "recognized the gravity of his conduct, refrained from such conduct, and been remorseful and penitent for his prior actions"; (7) received approval for his reinstatement from the Mobile Bar Association; and (8) been shown support for his reinstatement from fellow attorneys and a Mobile circuit-court judge. The Board attached numerous conditions to the reinstatement but did not, despite a request by the Bar, restrict Giardini's contact with or representation of minors, 7 Rule 26, Ala. R. Disc. P., provides requirements that lawyers who have been disbarred, suspended, or placed on inactive status due to a disability must meet once they have been disbarred, suspended, or placed on inactive status due to a disability. 34 1180248 despite his express willingness to accept such a condition. The Bar appeals. Standard of Review This Court applies the "clearly erroneous" standard of review to the findings of fact of the Board. Tipler v. Alabama State Bar, 866 So. 2d 1126 (Ala. 2003). A finding is "clearly evidence erroneous" when, although there is to support it, this Court, based on the evidence, is left with the definite and firm conviction that a mistake has been made. Alabama State Bar Ass'n v. Dudley, 95 So. 3d 777, 779–80 (Ala. 2012); Tipler, 866 So. 2d at 1137. When the Board's findings of fact are "in large part predicated upon the testimony personally given before it," the Board's findings are accorded the benefit of the ore tenus presumption. Tipler, 866 So. 2d at 1137. Under the ore tenus presumption, a judgment based on a finding of fact based on evidence presented ore tenus "'will not be disturbed unless it is clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence.'" Hayes v. Apperson, 826 So. 2d 798, 802 (Ala. 2002) (quoting Griggs v. Driftwood Landing, Inc., 620 So. 2d 582, 586 (Ala. 1993)). 35 1180248 Discussion The Bar contends that Giardini failed to present clear and convincing evidence to satisfy the requirements for reinstatement set forth in Rule 28(c), Ala. R. Disc. P., and that his reinstatement by the Board is clearly erroneous. "Clear and convincing evidence" is defined as "'[e]vidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion. Proof by clear and convincing evidence requires a level of proof greater than a preponderance of the evidence or the substantial weight of the evidence, but less than beyond a reasonable doubt.'" Lake Cyrus Dev. Co. v. Attorney Gen. of State of Alabama ex rel. Bessemer Water Serv., 143 So. 3d 771, 779–80 (Ala. 2014) (quoting Ala. Code 1975, § 6–11–20(b)(4)) (emphasis omitted). As noted above, Rule 28(c) states, in pertinent part, that a petitioner may be reinstated to the practice of law only if he or she has demonstrated "by clear and convincing evidence that he or she has the moral qualifications to practice law in this state and that his or her resumption of the practice of law within the state will not be detrimental to the integrity and standing of the Bar or the administration of justice, and will not be subversive to the public interest." 36 1180248 (Emphasis added.) A determination of the perception created by or the effects of a suspended attorney's reinstatement necessarily requires an examination of why the attorney was suspended in the first place. Cf. Worley v. Alabama State Bar, 572 So. 2d 1239, 1240–41 (Ala. 1990) (stating, in the context of a reinstatement after a disbarment: "Although the Bar has no obligation to offer any evidence in reinstatement proceedings, ... evidence of the misconduct that led to ... disbarment was clearly admissible ...."). In light of Giardini's prior misconduct and the evidence he presented at the reinstatement hearing, this Court holds that the Board's finding that Giardini's reinstatement will not be detrimental to the integrity and standing of the Bar or the administration of justice and will not be subversive to the public interest is clearly erroneous. Giardini was a prosecutor of sex crimes against children. During the time he was so employed, he was engaging in sexually explicit conversations with persons who were or who claimed to be teenage girls. Specifically, Giardini had sexually explicit conversations with girls who indicated that they were as young as 15 years old, during which he asked them 37 1180248 about their sexual activities and preferences; importantly, he encouraged those minors to acquire webcams, exchange pictures, and hide their activity from their parents. He engaged in extremely sexually charged conversations discussing graphic acts of erotic behavior. Most concerning are Giardini's actions regarding "Diana," who Giardini believed was a 15year-old girl. In addition to his attempts to groom, manipulate, and seduce "Diana," he had multiple conversations with her about her sexual experiences, masturbation, oral sex, orgasms, pubic hair, semen, and other graphic subjects. He simulated sexual encounters with her, he encouraged her to hide their activities from arrangements to meet with her. her mother, and he made Had "Diana" actually been a child and not an FBI agent, nothing before us indicates that she would not have been sexually victimized by Giardini. In reinstating Giardini, the majority of Panel III of the Board noted that it had relied on a "comprehensive" psychological examination of Giardini in which the examiners opined both that he was emotionally stable and that he was not a threat to the public. at a minimum they However, should have, 38 the examiners did not, as review Giardini's lurid 1180248 conversations with either "Diana" or the underage girls with whom he had been communicating. Panel III psychotherapy Giardini's also sessions therapist relied on during his opined that Giardini's three-year this was voluntary suspension. an "isolated incident" despite the fact that "Diana" was one of several presumably teenage girls with whom Giardini communicated over an extended time frame. Her conclusion further emphasizes that she, too, had not read the transcripts of Giardini's sexually graphic conversations. The other witnesses who testified on Giardini's behalf stated that they believed that he was a good lawyer and that he had been punished enough. Like Giardini's therapist, however, they all acknowledged that they had not read the chat-room transcripts and, thus, were unaware of the graphic content of Giardini's conversations with underage girls. They had insufficient knowledge of Giardini's prior conduct to compare to Giardini's current circumstances. Although Giardini and other witnesses who testified on his behalf stated that Giardini's abuse of alcohol during the time frame in which the misconduct occurred likely contributed 39 1180248 to his behavior, Giardini indicated that he did not believe he had been drinking during "most" of those inappropriate conversations. The depravity contained in Giardini's conversations with purported minors is, frankly, shocking. All of those conversations demonstrated both an ongoing and an escalating pattern of behavior by Giardini that included encouraging underage girls to converse with him about sexual matters when they had complete privacy and hiding their conduct from their parents. Contrary to the conclusions of Giardini's therapist, Giardini's behavior was consistently predatory in nature. Giardini himself acknowledged to "Diana" that "nobody would think [his actions] were ok." Further, Giardini's hesitancy at times to share graphic pictures with minors, his statement that he could not engage in sexual activity with "Diana" until she was older, and his acknowledgment that their relationship would not be deemed "ok" or "acceptable" demonstrate that he was not detached from the potential criminality and ramifications of his conduct and that his activities were not just a "game." 40 1180248 In light of the record, the evidence leaves this Court with the definite and firm conviction that the decision of Panel III of the Board to reinstate Giardini was unsupported by the evidence and was clearly erroneous. Contrary to the panel's findings based on testimony by those ignorant of the conduct predicating the suspension, reinstating a former child-sex-crimes prosecutor to the practice of law after he engaged in the above-described sexually related conduct with children would be "detrimental to the integrity and standing of the Bar or the administration of justice, and ... subversive to the public interest." Rule 28(c). Accordingly, we reverse the judgment of Panel III of the Board and remand the case for the panel to enter an order denying Giardini's petition for reinstatement. REVERSED AND REMANDED. Parker, C.J., and Wise and Bryan, JJ., concur. Bolin and Shaw, JJ., concur specially. Mitchell, J., concurs in the result. Sellers and Mendheim, JJ., dissent. Stewart, J., recuses herself. 41 1180248 BOLIN, Justice (concurring specially). I strongly agree with, and concur in, the majority opinion. Further, I join the measured and well reasoned special writing of Justice Shaw. I write simply to acknowledge and further reemphasize the duty of the Alabama State Bar to ensure that the privilege of practicing law protects the public, which the State Bar met in this case by seeking review of the disconcerting and inconceivable decision of the Disciplinary Board of the Alabama State Bar to reinstate Steven John Giardini to the practice of law. It is pursuant to the protective umbrella of Rule 28(c), Ala. R. Disc. P., that we consider appeals involving the relicensure of a professional when future clients may seek legal representation from a formerly suspended or disbarred lawyer. "The license to practice law in this State is a continuing proclamation by the Court that the holder is fit to be entrusted with professional matters .... It is the duty of every recipient of that privilege to conduct himself or herself at all times, both professionally and personally, in conformity with the standards imposed upon members of the bar as conditions for the privilege to practice law." Ala. R. Disc. P., "Preamble." As a guidepost for a profession, it could not be stated better, more succinctly, or 42 1180248 more directly. Specifically pertaining to the sickening and lurid details surrounding this former attorney and member of the State Bar, concepts of atonement and expiation should never override this Court's duty and obligation to protect the public by preventing relicensure to the legal profession for someone who arguably could not be less deserving. 8 8 In 2015, this Court approved the State Bar's recommendation to suspend Giardini. I note that Giardini agreed to the suspension after the panel of the Disciplinary Board made its recommendation. The materials before this Court at the time we approved the Bar's recommendation included the charges along with the order issued by the panel that recommended Giardini be suspended. The entirety of Giardini's graphic conversations were not before this Court at that time. Instead, there was a summary indicating that there had been graphic conversations and a few of the charges included quotes from those conversations to support the charges. 43 1180248 SHAW, Justice (concurring specially). The decision of the Disciplinary Board of the Alabama State Bar ("the Board"), Panel III, to reinstate Steven John Giardini to the practice of law as a member of the Alabama State Bar ("the Bar") is due to be reversed. As the author of the main opinion, I write specially only to respond to the dissent and to emphasize several key points. The suspension of an attorney from the practice of law does not result in an automatic reinstatement at the end of the suspension period; instead, the suspended attorney must prove that he or she should be reinstated. To do that, the suspended attorney has "the burden of demonstrating by clear and convincing evidence that he or she has the moral qualifications to practice law in this state and that his or her resumption of the practice of law ... will not be detrimental to the integrity and standing of the Bar or the administration of justice, and will not be subversive to the public interest." Rule 28(c), Ala. R. Disc. P. That Giardini participated in rehabilitation programs, as the dissent notes, dispositive here. is not disputed and, to me, is not What is ultimately dispositive is the 44 1180248 nature of the conduct that warranted his punishment and the flawed process by which he was reinstated. Giardini was a child-sex-crimes prosecutor who engaged in explicit chat-room and telephone conversations with persons who were or who purported to be minors; with one such person, he attempted to seduce and meet with her. and transcribed. Those conversations were recorded The witnesses who testified that Giardini was reformed had not read the transcripts of his online chatroom conversations and, thus, did not know the specific details of the very conduct that required his disqualification and rehabilitation efforts in the first place. who has committed such egregious conduct Any attorney with minors, especially an attorney who was a child-sex-crimes prosecutor at the time of the conduct, bears a heavy evidentiary burden to reestablish an entitlement to the privilege of practicing law. Giardini did not meet that burden, and his reinstatement would be clearly detrimental to the integrity and standing of the Bar or the administration of justice and subversive to the public interest. The dissent characterizes the transcripts provided in the main opinion as "a stale rendition" of Giardini's prior 45 1180248 actions. ___ So. 3d at ___. are at times graphic, The chat-room transcripts, which illustrate not just how Giardini interacted with minors online, but that he solicited them, that he asked them to obtain cameras in an apparent attempt to later receive pornography from them, that he had the intent and desire to meet them in person to engage in sex acts, and that he attempted to ensure that their parents would not know of this activity. The recitation of the graphic portions of those conversations in the main opinion is necessary to objectively show the depravity of Giardini's sexual intentions with respect to minors, including violent "BDSM" activity; to show his appalling lack of inhibition in discussing graphic sex acts with minors; and to illustrate Giardini's potential intentions with respect to "Diana," who he believed was a minor who was not anonymous, who lived near him, and who could actually be contacted in person. The specific transcripts detailing Giardini's interactions with "Diana," which in large part are not graphic, demonstrate his predatory intentions by showing how he attempted to groom her to establish an emotional connection with her and to lower her inhibitions. 46 1180248 One of the main points made by the Bar, and in the main opinion, is that Giardini's witnesses could not have meaningfully testified as to his rehabilitation or the impact of his reinstatement because they were not familiar with the content of the transcripts -- that is, his actual conduct. In a case of this importance to the bench and Bar, if this Court does not clearly explain that content, then we do not demonstrate just how important that factor is to our analysis. The dissent states that Giardini's counselor testified that his conduct was isolated. However, the transcripts clearly show that it was far-reaching. This alone demonstrates the counselor's Giardini's misunderstanding conduct. The of dissent an important further aspect notes that of she testified that Giardini was not a threat and that he would not cause harm to others, but, having never read the transcripts, the counselor's testimony was based upon an incomplete and distorted understanding of material evidence. The same is true with respect to Giardini's other witnesses. To the extent the dissent argues that there is no evidence before us to show that Giardini is a threat to children, I simply point the reader to his conversations with children, which are so bad, 47 1180248 the dissent states, they should not even be repeated in a published opinion from this Court. The dissent accepts the testimony of Giardini's uninformed witnesses at face value, without opinions. acknowledging the evident Respectfully, I cannot. weaknesses of their This Court's holding is based on a thorough examination of all the evidence before the Board, including the gravity of the undisputed facts shown by the transcripts, so those facts must be told. To water down the facts and simply assure the reader that they warrant reversal would not serve the interests of either the bench or the Bar, as such wordmongering would denigrate this Court's duty to explain the facts in accordance with the application of the pertinent standard of review. It is Giardini's conduct that damages the public good and is at issue here, not this Court's candor with the facts. The transcripts are also directly relevant to whether the reinstatement of a former child-sex-crimes prosecutor who engaged in this conduct would be detrimental to the integrity and standing of the Bar, the administration of justice, and the public interest, in contravention of Rule 28(c). In light of the transcripts, it is clearly erroneous to say that there 48 1180248 is clear and convincing evidence that Giardini's reinstatement would not be so. The dissent, stating that "[w]e have nothing before us to show that Giardini remains a threat to children," ___ So. 3d at ___, nonetheless proposes to uphold the reinstatement subject to a remand for the Board to amend the order "to include a prohibition restricting Giardini's contact with, or representation of, minors." ___ So. 3d at ___. I reject the notion that reinstating an attorney who must specifically be prohibited from contacting or representing children is not detrimental to the integrity and standing of the Bar, the administration of justice, and the public interest. would be untenable. Bolin, J., concurs. 49 That 1180248 MITCHELL, Justice (concurring in the result). I agree with the majority opinion that it is necessary to address, and in some instances quote, the content of Steven John Giardini's chat-room conversations to explain this Court's judgment. In my view, however, it is not necessary to quote graphic portions of those conversations in the opinion. I believe the graphic portions could have been described generally, while sufficiently demonstrating that Giardini failed to meet his burden of showing that he should be reinstated as a member of the Alabama State Bar. reason, I concur only in the result. 50 For that 1180248 SELLERS, Justice (dissenting). I respectfully dissent. The Court has the responsibility to police membership in the Alabama State Bar ("the Bar") by disciplining lawyers who violate Bar rules. But even in the worst case, there is a path for reinstatement that places the burden on the disciplined lawyer to show remorse, to seek education and treatment, and to present evidence of a transformation in lifestyle to be worthy of the privilege of practicing law in this State and representing clients before our courts. In this case, on June 12, 2015, this Court entered a unanimous order in a Bar proceeding against Steven John Giardini, stating: "IT IS ORDERED that Steven John Giardini is suspended from the Roll of Attorneys licensed by the Supreme Court of Alabama, effective February 23, 2015, for a period of three (3) years and subject to the terms and conditions set out in the January 27, 2015, order of the Disciplinary Board of the Alabama State Bar." The Court accepted the decision of the Disciplinary Board of the Alabama State Bar to suspend Giardini for three years; it did not disbar him. The information available to the Court at 51 1180248 that time, some five years ago, is the same information disclosed in the transcripts quoted in the majority opinion. The reason for suspending, and not disbarring, Giardini was expressed in the order of the Disciplinary Board in the proceeding that resulted in Giardini's suspension, which found the following mitigating factors: "absence of a prior disciplinary record, full and free disclosures to Disciplinary Board, cooperative attitude toward the proceedings, delay in disciplinary proceedings, [and] interim rehabilitation." After he was suspended from the practice of law, Giardini accepted responsibility for his actions, showed remorse, and started a program of addressing his addictions and managing his emotions. From my review of the record before us, ever since his suspension, Giardini has followed a plan provided by the Disciplinary Board and the Alabama Lawyers Assistance Program of the Alabama State Bar Association. Thus, when he applied for reinstatement, the Disciplinary Board determined that Giardini had "(i) complied with all provisions of Rule 26, Alabama Rules of Professional Conduct to the extent applicable; 52 1180248 "(ii) regularly consulted with and followed recommendations of the Director of the Alabama Lawyer Assistance Program (ALAP); "(iii) voluntarily undergone a comprehensive psychological examination at [the] recommendation of [the] ALAP Director which examination revealed he was emotionally stable and not a threat to the public; "(iv) maintained continuous psychotherapy sessions at the recommendation of the ALAP Director for over three years and voluntarily continued with those sessions; "(v) voluntarily abstained from alcohol with regular alcohol testings; "(vi) recognized the gravity of his conduct, refrained from such conduct, and [has] been remorseful and penitent for his prior actions; "(vii) received the recommendation of the Mobile Bar in favor of his reinstatement; and, "(viii) shown the support for reinstatement from fellow attorneys and a Circuit Judge of the Court of Mobile County ...." And, although the transcript of his prior behavior that resulted in his suspension indicated evidence of a depraved mind, unlike the majority, I believe this evidence can only be viewed in light of the actions he took during his suspension, which indicate a willingness to change and to seek reformation. In fact, Ashley Simpson, a licensed professional counselor and psychotherapist, testified that Giardini "is 53 1180248 emotionally stable and not a threat to the public." stated that Giardini's conduct Simpson forming the basis of his suspension "was an isolated incident" and that she did "not believe that [Giardini] will offend again." stated: "I haven't found negatives Simpson further that would affect [Giardini's] ability to practice law in the State of Alabama or negatives that would cause him to harm practicing law in the State of Alabama." others while Simpson further testified that, even though "we have completed our treatment goals," Giardini "has requested to continue [therapy] for a level of accountability and for any issues that may arise." The Bar provided no expert witness or other testimony to refute Simpson's reinstatement, conclusions. this Court has Thus, only in considering evidence his supporting Giardini's position that he has been rehabilitated and no substantial evidence refuting the efficacy of his treatment. We have nothing before us to show that Giardini remains a threat to children or to the legal profession; thus, there is no evidence to support reversing the Disciplinary Board's decision.9 9 The majority opinion acknowledges the deferential standard of review the Court must apply in this case, 54 1180248 If we suspend an attorney and offer him or her a second chance, I simply cannot, as the majority opinion implies, view conceding that we can reverse the Disciplinary Board's order reinstating Giardini only if the Board's findings are clearly erroneous. Despite acknowledging that standard, the majority opinion essentially ignores it and applies a different rule in this case. As outlined in the majority opinion, the testimony and other evidence provided to the Disciplinary Board during Giardini's reinstatement proceedings, including the opinions of medical professionals who had evaluated Giardini, suggest that he has been rehabilitated. The majority, though, disregards that evidence primarily because the medical professionals and witnesses were not made privy to the exact chat-room conversations that led to Giardini's suspension in the first place. But the majority provides no significant discussion of any legal or scientific principles that would justify disregarding the evidence and instead makes what appears to be a broad proclamation that the opinions provided regarding Giardini are simply not reliable because the people who provided those opinions did not read transcripts of conversations Giardini had with his would-be victims. Although members of an appellate court might reach a different conclusion than did the trier of fact if those members had acted as the trier of fact, that is not our role here. The applicable standard of review does not allow us to reweigh the evidence. Regardless of what the members of this Court, including me, would have done had we sat on the Disciplinary Board during Giardini's reinstatement proceedings, it is clear to me that the Board's findings of fact are not "clearly erroneous." Considering that nearly all the evidence of Giardini's conduct since his suspension, which was submitted to the Disciplinary Board during the reinstatement proceedings, tended to indicate that he has been rehabilitated and is fit to practice law, I am at a loss as to how the majority can say it has been left with "the definite and firm conviction that the decision of Panel III of the Board to reinstate Giardini was unsupported by the evidence." ___ So. 3d at ___. In reality, what the majority has done here is reweigh the evidence. 55 1180248 the attorney only by past behavior and judge him or her forever based on that behavior. The transcripts revealing Giardini's prior behavior are more than sufficient to suspend him from the practice of law, and, if that was the only evidence before us, I would wholeheartedly agree that he should never practice law again. But that behavior must now be considered in light of the fact that Giardini has made a substantial illness. effort to change his life and to treat his The fact that Giardini has tried to salvage his life and, from what I can tell, reform his soul is crucial. He could have accepted his suspension and attempted to earn a living in another profession, because he was never criminally prosecuted and listed as a sex offender. The act of applying for reinstatement and opening up his lurid past says something to me and indicates an attempt to exonerate and free himself from that past. I find this commendable. Current evidence shows a change in behavior such that Giardini's previous actions will not be repeated and that the reasons for his suspension have been superseded by a new personal narrative of reformation. I cannot help but applaud his effort, and I 56 1180248 believe that his path to recovery would be a model for others in a similar situation. Thus, I am concerned that the majority opinion focuses solely on the past and unwisely publishes Giardini's lurid sexual conversations as if he is the same person he was then and had taken no steps toward reformation. Regrettably, the majority opinion, under the guise of relevance, preserves in our caselaw those past conversations. Those conversations are not juxtaposed against any current conduct, nor do they contradict any evidence from the Disciplinary Board. Rather, they are a stale rendition of the actions that resulted in Giardini's suspension. Thus, the majority opinion ask us to freeze Giardini's conduct, to view him in light of only the same evidence we had available to us at his suspension, and to use that evidence to deny his reinstatement as if nothing has changed. I am not willing to do that. We accomplish conversations. nothing I do not by publishing believe the those public detailed good is facilitated by the majority opinion's graphic and disturbing presentation of them. It would be more suitable to summarize the conversations to reach the conclusion reached by the 57 1180248 majority opinion, albeit a conclusion with which I disagree. There is no need to set forth the transcripts verbatim and to give the dark recesses of a previously perverted mind any more attention than is absolutely necessary. Again, I would point out that the full transcripts were available to the Court when it elected to follow the Board's recommendation to suspend and not disbar Giardini. Publishing graphic portions of Giardini's conversations has the real possibility of causing further damage to the public good by focusing on a lurid past and ignoring any hope of redemption and any consideration of a more current personal depiction of someone who has tried to change. Recovery and redemption is something that should be encouraged and promoted. Sadly, the majority opinion implies that extensive rehabilitation and personal reformation will never be enough to overcome a significant past addiction. But the majority opinion will not necessarily be the end of Giardini's quest to practice law. He may apply for reinstatement in the future. At some point, the Court will have to decide whether a violation of the Bar's Rules of Professional Conduct is so heinous that reinstatement can never be achieved and that no 58 1180248 level of remorse, treatment, or behavioral change can ever be sufficient. Thus, I respectfully dissent. That said, although I believe Giardini has shown remorse and has taken personal actions worthy of reinstatement, I would nevertheless remand the matter reinstatement to the order Disciplinary to include a Board to prohibition amend restricting Giardini's contact with, or representation of, minors. Mendheim, J., concurs. 59 its
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