Unanswered Questions, Procedural Error, Draw Remand

The Vermont Supreme Court remanded a bar discipline matter, concluding that there was error in recommending two sanctions (one public, one private) for a single course of conduct 

The Court ordered review of these two Professional Responsibility Board (PRB) decisions on its own motion and consolidated them for purposes of review. Both decisions stem from a single misconduct petition, which charged respondent with violating various professional-conduct rules while representing a husband in divorce proceedings. The PRB adopted the parties’ stipulated findings, conclusions, and sanctions. As agreed by the parties, it considered some charges in one decision and recommended a private admonition; it considered other charges in a separate decision and recommended a public reprimand. Several charges in the petition were left unaddressed. Because we conclude that it was inappropriate to issue two separate decisions with different sanctions, we vacate the panel’s decisions and remand for additional proceedings consistent with this opinion.

The allegations of misconduct involved the representation of a husband in a divorce

Shortly before the final divorce hearing, respondent informed the court that neither he nor his client would attend the hearing. Respondent’s client, who was from India, believed the Vermont court lacked jurisdiction over the proceeding.

Error below in recommending both a public and private sanction

The panel’s approach here was inconsistent with the analysis called for in the ABA Standards for Imposing Lawyer Discipline. Examining misconduct piecemeal minimizes the harm that results from multiple instances of misconduct, and it does not further the goals of the professional-conduct rules. It does not allow for a full accounting of the charged conduct, which then undermines proper consideration of the application of aggravating and mitigating circumstances to the highest presumptive sanction associated with the most serious misconduct. Because one decision was confidential in this case, moreover, the conduct sanctioned there could not be explicitly addressed as an aggravating factor in the companion decision, which was public.

The court majority

we vacate the panel’s decisions and remand for consideration of respondent’s misconduct as a whole, including the resolution, in one way or another, of the charged violations for violating Rule 3.4(c) and Rule 3.1 relating to the submission of the children’s affidavits. Notwithstanding our conclusion, we discuss the PRB decisions in additional detail below to address issues that might arise on remand.

Public matter

We begin with the public reprimand decision. In that decision, the panel found that respondent violated Rule 3.4(c) by failing to attend the final divorce hearing or withdraw from representing husband prior to the hearing, and that he violated Rule 3.1 by filing a post-hearing challenge to wife’s proposed findings of fact without any evidentiary basis for doing so. The panel considered both violations together and appeared to find that respondent violated a duty to the legal system. It found that the improper filings caused wife anxiety and distress and she presumably incurred legal fees in responding to them. The court also incurred time to respond to respondent’s post-hearing filings. The panel did not clearly delineate the injury caused by respondent’s failure to attend the final divorce hearing.

Private admonition

The panel concluded there that respondent violated Rule 1.1 by filing a “notice of appeal” from an interlocutory ruling rather than seeking permission to appeal. The request was both untimely and filed in the wrong court. Respondent also violated Rule 3.1 by (1) filing a motion for permission to appeal and/or for reconsideration without articulating the legal standard for seeking reconsideration or providing any argument for why that legal standard was met, and where there was no good faith reason for the relief sought; and (2) by filing multiple motions regarding the sale of the marital home and seeking appointment of an attorney for the children, which lacked a good faith basis in law.

The court found that the panel’s sanction analysis was inadequate.

COHEN, J., dissenting.

I agree in principle with the majority’s thorough and well-reasoned opinion. In a typical disciplinary proceeding, the Professional Responsibility Board (PRB) should not issue two separate decisions to resolve multiple violations that occurred throughout a single representative matter. The majority also raises substantial concerns with the two decisions of the PRB, namely, its analysis of the conduct at issue to reach an ultimate sanction. See ante, ¶¶ 19-33. I share those concerns which, under most circumstances, would require this Court’s intervention. I part ways with the majority only due to the unique posture of this matter. Here, the PRB accepted a stipulation between the parties and, pursuant to that stipulation, issued two separate decisions addressing two tranches of violations stemming from respondent’s representation of a client throughout a single divorce proceeding. Under these circumstances, I would affirm the PRB’s choice to issue two decisions, even when the violations occurred during a single matter. As such, I disagree with the majority’s blanket proscription on the PRB’s ability to issue two decisions to address multiple violations pursuant to a stipulation that the PRB has accepted. Therefore, I respectfully dissent.

The dissent underscores the value of stipulated dispositions and surveys the experience of other jurisdictions

There is much to gain from applying this general framework to situations like the one we face here. Giving the PRB flexibility to shape sanctions after accepting a stipulated resolution allows the PRB to resolve disciplinary complaints in an efficient and prompt manner. See A.O. 9, Purpose. Doing so also encourages attorneys to recognize why certain conduct runs afoul of our Rules of Professional Conduct, acknowledge when they have engaged in misconduct, and seek the education or help that they may need. Ultimately, that should lead to a more professionally competent attorney and prevent future rule violations.

Deference should be accorded

I reach this conclusion despite my shared discomfort with the PRB’s analysis. Had this matter been brought to us under different circumstances, a remand to the PRB would have been necessary. In fact, a harsher sanction might have been more appropriate had respondent continued to dispute the allegations made against him. But the PRB, disciplinary counsel, and respondent agreed on an acceptable sanction for admitted rule violations, with respondent taking esponsibility for his misconduct. And although the stipulated sanction is premised on a hurried analysis, it is not deficient enough to warrant a remand. As such, I would allow the two decisions of the PRB to stand.

(Mike Frisch)