Suspension And Reprimand In Vermont

The Vermont Supreme Court has publicly reprimanded a former judge

This matter was initiated based on media reports of allegations that former assistant judge Paul Kane may have engaged in improper conduct regarding the assets of his uncle’s wife, Katherine “Kay” Tolaro. On February 22, 2016, the Board initiated an investigation into these allegations. On February 25, 2016, Mr. Kane agreed to step down from his position during the pendency of the investigation. After the Board’s initial inquiry pursuant to the Rules of Supreme Court for Disciplinary Control of Judges (hereinafter R.S.C.D.C.J.) 7(1), Attorney Ian P. Carleton was appointed to serve as Special Counsel to investigate the matter further. Attorney Carleton filed a formal complaint on June 27, 2016, alleging that Mr. Kane violated several Canons of the Vermont Code of Judicial Conduct. Mr. Kane retained Attorney Melvin Fink as his counsel and filed his answer on July 26, 2016. The Board held an evidentiary hearing on March 20-22, 2017.

Findings

Mr. Kane’s treatment of the loan repayments as his own, his lack of forthrightness with the estate administrators, his intentional misleading of attorneys Moore and French, and his hiding and withholding of the $10,000 all demonstrate that Mr. Kane failed to observe high standards of conduct such that his actions diminished the integrity of the Judiciary. Further, his intentionally misleading testimony at the November 5, 2015 hearing demonstrated a failure to act in such a way to promote public confidence in the integrity of the Judiciary. In fact, his continued failure to inform the court that he had given intentionally misleading testimony demonstrates a continuing failure to observe the high standards of personal conduct and a continuing failure to act in a way that promotes public confidence in the integrity of the Judiciary. Taken as a whole, Mr. Kane’s treatment of these loans during the time in which he was a candidate for, and holder of, the office of assistant judge demeaned the judicial office.

It was established by clear and convincing evidence that Mr. Kane intentionally filed a facially implausible claim. The circumstances demonstrate Mr. Kane’s conduct was intentional for several reasons. First, he claimed that he was providing services to Ms. Tolaro 159 hours out of 169 hours in a week, for 135 weeks, despite the fact that he had a full-time job and had previously indicated in emails that only Mrs. Kane was providing care for Ms. Tolaro. Second, even if the 159 hours was an accurate weekly estimate, the claim still attempted to double-charge the estate for his alleged services rendered by also claiming he was owed for management services provided five hours per week for 104 weeks. Third, the claim included a request to be reimbursed $31,827.51, which he had already received from the Jackson annuity. Fourth, the claim included the 159 hours of care for both himself and his wife, even though his wife was deceased and her estate was closed. Mr. Kane reviewed these figures and still signed the statement of claim.

Even if the Board where to find that these errors were mistakes, which the Board does not so find, it is undisputed that most of these errors have not been brought to the attention of the Probate and Civil Court, even though he filed an amended claim, and despite the fact that it has been months since Mr. Kane became aware of these errors…

It was established by clear and convincing evidence that Mr. Kane failed to protect Ms. Tolaro’s assets in the Jackson and Great American annuities during the time he was subject to the Code. It is not the Board’s responsibility to determine the propriety of Mr. Kane using his POA to take out the annuities and list himself as the beneficiary; that conduct occurred before he became subject to the Code. However, to the extent that Mr. Kane believed the proceeds of the annuities belonged to Ms. Tolaro’s estate, as he testified to the Board, he was obligated to provide the proceeds to the estate. Instead, he kept the Jackson annuity proceeds in his personal checking account between July and October 2014, when he was subject to the Code.

Sanction

Special Counsel seeks sanctions to the fullest extent of the Board’s authority. He asserts that this can include an immediate suspension, a public reprimand, and the barring of Mr. Kane from serving as a judge for life. Mr. Kane contends that his resignation and a public reprimand briefly stating the violations of the Canons is sufficient…

In the Board’s unanimous judgment, the appropriate sanction for Paul Kane’s violation of Canons 1, 2A, 4A(2), and 5B(2) is the immediate and indefinite suspension from judicial office, a public reprimand, and a prohibition on his ever holding judicial office in Vermont. Although Mr. Kane and Attorney Fink represented that he has submitted his resignation to several officials, they did not provide the Board with proof that Mr. Kane had actually resigned. Therefore, an immediate suspension is appropriate. Moreover, because a formal complaint was filed, a public reprimand is required.

Brattleboro Reformer reported that he resigned his judicial office.

In his resignation letter emailed to the media, Kane noted that following Tolaro’s death he was “attacked in the news with words such as stole/siphoned and bilked. These were all in reference to my handling of the affairs. … Too much misinformation has been printed with seemingly no remorse. I am not going to argue my probate case nor my alleged ethical misconduct in the newspaper, but I will state that money from the Estate is intact and though I do not believe I breached any Ethical Canon, I will be stepping down from my elected position with great sadness. Though I was naive to some fiduciary responsibilities and did not fully understand and carry out all (Power of Attorney) statutes, I find it hard to believe that the press can print anything they want without repercussion.”

Kane also wrote that his integrity, honesty and reputation have been challenged due to the perception that he had done something wrong in the handling of the Tolaro estate.

“I am beat emotionally/physically and financially. I do not think I have fight left in me. Therefore I am stepping down from my position of Assistant Judge to stem any further judicial dishonor that may be perceived,” he wrote. “I do this with great sadness but without shame or guilt.”

Seven Days (Vermont’s Independent Voice) covered the probate case. (Mike Frisch)