Vermont Panel Recommends Against Reinstatement

A Vermont Hearing Panel has recommended that reinstatement be denied to a suspended former judge

On May 24, 2022, the Professional Responsibility Board (PRB) publicly reprimanded Respondent and suspended him from the practice of law in Vermont for 15 months for violating Rule 1.1, Rule 8.4(d), Rule 1.3, Rule 1.6, and Rule 8.4(c) of the Rules of Professional Conduct. The PRB found Respondent violated Rule 1.1 by failing to request and review recorded interviews with the alleged child victim of his client MK (who was charged with sexual assault) before the deposition deadline passed. The PRB also concluded that Respondent violated Rule 1.3 by failing to move to modify client MK’s conditions of release to allow for contact with his children, despite MK’s repeated requests.

In addition, the PRB found Respondent violated Rule 8.4(d) by publicly disclosing confidential information from a juvenile court file in the course of representing another client, KH. Respondent also violated Rule 1.6 by disclosing confidential information related to his representation of client BA to another attorney without BA’s knowledge or consent.

Finally, the PRB found Respondent violated Rule 8.4(c) by dishonestly creating misleading timekeeping records in response to a request from then-Disciplinary Counsel Sarah Katz. When this was discovered, Respondent failed to meaningfully acknowledge the wrongful nature of what amounted to fabrication of evidence to obstruct his disciplinary proceeding.

At the time of the PRB’s decision, Respondent was the probate judge for Caledonia County. He was temporarily suspended (with pay) on June 1, 2022, then suspended for the remainder of his term (without pay) effective November 3, 2022. The Judicial Conduct Board filed a Formal Complaint against Respondent for violating Canons 1.2 and 2.16 of the Vermont Code of Judicial Conduct on April 25, 2023. Respondent ultimately admitted to the violations and agreed to never again serve as a judicial officer in Vermont.

Respondent’s suspension from the practice of law in Vermont began on July 10, 2022. At the time, Respondent was also admitted in New York and Connecticut; in the U.S. Immigration Court; and in the U.S. District Court for the Districts of Vermont, Connecticut, and New York (Eastern, Southern, and Northern).

He testified that he had notified those jurisdictions but with two differing letters

The seemingly small distinction between Respondent’s two methods of correspondence is significant for two reasons: (1) Respondent was never suspended in New York; and (2) Respondent has a history of creating evidence designed try to avoid sanctions associated with the disciplinary process. When questioned by the Board, Respondent was unable to explain why he never faced suspension in New York, but it appears that the reason may have been that he did not send notice of the PRB’s decision to suspend him to the proper recipient (if he sent it at all).

Respondent’s ability to practice in New York allowed him to avoid the most damaging collateral consequences ordinarily associated with suspension, and dramatically weakened the Order’s protective effect. Respondent was able to promptly secure employment as a full-time attorney at the law firm of his brother, Stephen Cobb, Esq., in Newburgh, New York.

Despite favorable evidence

The Panel recognizes that Respondent expressed remorse for his misconduct to affected clients, former Disciplinary Counsel, and his witnesses. Respondent implemented changes to his legal practice that might address or mitigate some of the causes for his misconduct, such as scheduling regular client meetings, prompt discovery review, and systematic time-tracking. Respondent also completed more than 50 hours of continuing legal education, and reviewed and summarized the Rules of Professional Conduct.

However, these efforts were not sufficient to assure the Panel Respondent has been rehabilitated when weighed against the above-discussed concerns. Doing so will require evidence of successful implementation of treatment for ADHD following an appropriate assessment, full and complete documentation of proper notification to authorities in New York, and sufficient evidence that Respondent’s candor is more important than his self-interest.

On that issue, while Respondent presented credible evidence establishing that he had done soul searching about the weaknesses that led to his misconduct, he has not shown evidence of improved honesty or judgment apart from conclusory opinions of witnesses who are friends and family. See, e.g., In re John Burgess, 169 Vt. 533, 725 A.2d 302, 303 (1999) (disbarring rather than reinstating suspended attorney for failure to show that the circumstances leading to his misconduct, “whether internal or external, have been addressed in a way that would make less likely the potential for a recurrence of this behavior”); In re Blais, PRB Decision No. 58 (October 1, 2003) (Respondent must show that he “understands and recognizes what led to his violations of the Code, that he has truly changed his ways, and that his attitude toward the practice of law has changed.”), approved by Supreme Court Entry Order No. 2003-44 (October
21, 2003).

For these reasons, Respondent has not established by clear and convincing evidence that he has a sufficient understanding of the causes of his misconduct and that those causes have been ameliorated such that he would not engage in similar misconduct if he were reinstated to the practice of law in Vermont – i.e., that he has been rehabilitated. Accordingly, his reinstatement to the practice of law in Vermont is not warranted at this time.

(Mike Frisch)