Unanswered Questions

A Hearing Panel of the Vermont Professional Conduct Board has imposed a nine-month suspension of an attorney for failure to cooperate in a bar investigation on these allegations

Respondent, Carrie J. Legus, resides in and is licensed to practice law in Vermont. On or about April 27, 2020 Respondent was charged with one count of reckless endangerment, a misdemeanor, in violation of 13 V.S.A. § 1025, in a criminal proceeding, Docket No. 178-4-20 Cacr. The affidavit in support of the criminal charge indicated that on April 26, 2021 Respondent come onto the premises of a store in her community “yelling about a social distancing sign . . . saying it was offensive and tried to knock it down”; and that, after an employee advised Respondent that the employee would have to speak to the store owner about Respondent’s conduct, Respondent “pulled out a handgun and pointed it at [the employee] before leaving.” Exhibit DC-4. The affidavit further indicated that when police interviewed Respondent later on the same day of the reported incident, Respondent told the police that she believed the sign at the store was a barricade and that “people were shooting [at] the road from it”; that Respondent was yelling that “everyone on the road is the military” and that she maintained that “her ex-husband was behind all this” and that the “state police have been following her vehicle all day long.” The affiant also stated that Respondent conceded when asked by the police that she had a handgun on her and that the police then determined the handgun in her possession was loaded. Respondent pled not guilty to the charge and has represented herself in the criminal proceeding.

Disciplinary Counsel petitioned the Vermont Supreme Court, which ordered an interim suspension which remains in force and effect.

The Court concluded, on the basis of evidence presented at that time by Disciplinary Counsel, that Respondent had knowingly failed to respond to a lawful demand by Disciplinary Counsel for information, contrary to Vermont Rule of Professional Conduct 8.1(b). The Court further concluded that “respondent’s behavior presents a substantial threat of harm to the public . . . . Due to respondent’s failure to communicate, Disciplinary Counsel cannot ascertain the nature of respondent’s practice or determine if respondent has any active clients; she cannot determine if a disability investigation should be opened; and she cannot assess how to protect the public.”

The misconduct found here does not involve the criminal allegations.

As to the non-cooperation merits hearing

Respondent participated in the remote merits hearing in this matter held on June 28, 2021 while seated in the front seat of a parked automobile with a Covid-19-type mask covering the majority of her face. There did not appear to be anyone else in the automobile. When Disciplinary Counsel asked Respondent if she would remove her mask for the hearing, Respondent declined to do so without offering any explanation. After Disciplinary Counsel called her as a witness to testify, Respondent indicated that she was asserting her Fifth Amendment right against self-incrimination and on that basis would not answer questions from Disciplinary Counsel.

In response to essentially every question from Disciplinary Counsel, Respondent either cited the Fifth Amendment or indicated that “you have my response.” The Chair of the Panel took time to state on the record his understanding that the law does not allow for a general assertion of the Fifth Amendment right against self-incrimination. He further stated his understanding that in order to be valid, an assertion of the Fifth Amendment would have to be addressed to a specific question the answer to which could reasonably lead to a statement or statements that could incriminate Respondent. Respondent persisted in asserting a blanket Fifth Amendment privilege, at one point stating that she was asserting the Fifth Amendment “for the entire hearing.”

At no time did Respondent submit to the Hearing Panel any explanation or justification tailored to a specific question posed in order to demonstrate a nexus between the question and the pending criminal proceeding against Respondent. After considering the content of the questions asked and in the absence of any supporting argument by Respondent focused on a specific question, the Chair of the Panel overruled Respondent’s Fifth Amendment objections.

The questions posed by Disciplinary Counsel during the merits hearing included a multitude of questions which the Panel concluded could not reasonably incriminate Respondent in the pending criminal proceeding. For example, Respondent declined to answer whether Disciplinary Counsel and Respondent spoke on the telephone on June 10, 2020; whether Respondent received an email from Disciplinary Counsel on June 13, 2020; and whether Respondent had logged on to the video conference that Disciplinary Counsel had scheduled to conduct an interview of Respondent.

During her testimony, Respondent engaged in some disrespectful behavior. In response to one question posed by Disciplinary Counsel she responded: “Are you asking me to do pushups?”

Prior to the completion of her examination by Disciplinary Counsel, Respondent stated that her computer battery was running out and that as a result she would have to cease participation in the hearing. She requested a continuance of the hearing. Respondent did not make any representation to the Panel as to why she was participating in the hearing from an automobile – as opposed to a location with a power outlet. Respondent did not file any motion with the Panel prior to the hearing either objecting to a remote hearing or citing any technology obstacle or limitation to her participation in the scheduled remote hearing or requesting an accommodation of any sort related to the hearing.

The violation

Beginning in early May 2020 and continuing through July 17, 2020, Respondent was aware of and knowingly failed to accede to multiple requests by Disciplinary Counsel for Respondent to submit to an interview. In addition, after Disciplinary Counsel went ahead and scheduled an interview, Respondent knowingly failed to cooperate, despite being offered two options to facilitate her participation.

The basis for a bar investigation 

Disciplinary Counsel’s investigation was prompted by the filing of criminal charges that suggested erratic behavior on the part of Respondent – aiming a loaded handgun at a store clerk – and the inquiry reasonably required not only information relating to Respondent’s current practice and clients, but also an assessment of Respondent’s health and well-being. 

The panel found that the misconduct was “knowing” in its sanction determination and assessed the ABA sanction standards.

…the behavior detailed in the affidavit of probable cause accompanying the criminal information raised the question of whether Respondent was experiencing emotional problems and, in fact, prompted Disciplinary Counsel’s desire to ascertain whether a disability proceeding might be appropriate. And, finally, Respondent’s appearance for the merits hearing while seated in a car (apparently by herself) and wearing a face mask – and her refusal without any explanation to remove the face mask for the hearing – suggest the possibility of emotional problems. Given all these considerations, the Panel concludes that the presumptive sanction of suspension is appropriate at this time and should not be increased.

(Mike Frisch)