The Wrong Of Way

A Hearing Panel of the Vermont Professional Responsibility Board has ordered a six-month suspension of an attorney for conduct in connection with the sale of real property 

Respondent Daniel W. Ewald, Esq., is a licensed Vermont attorney with offices in Killington, Vermont. He has practiced transactional law, including land transactions, for more than 40 years. Respondent enjoys a long-standing reputation as a competent, trustworthy, honest, and ethical lawyer among transactional attorneys in central and southern Vermont. He has no prior record of professional misconduct as an attorney.

Background

Respondent represented husband and wife Audie and Lisa Bellimer in several real estate transactions and the sale of a business over a period of more than 15 years. He also represented Lisa’s cousin Raymond “Otis” Robinson in various matters over a period of approximately 14 years.

Lisa Bellimer and Otis Robinson were part of a large extended family in and around Killington. For approximately 60 years, the family owned a parcel of land in Killington. The parcel of around 1000 acres consisted of woods and a woodlot, orchards, and a seasonal camp. The parcel was bordered on one side by Town Highway #23 (also known as Little Sherburne Road) and on another by Town Highway #25, a discontinued Town road included within ownership of the parcel. In 2013, Robinson was the owner of record of the parcel.

Robinson discussed selling off the land with family members in 2013. The Bellimers wanted to buy a portion of the land that included the woodlot, some orchards, and the camp building. After walking the land together, Robinson and the Bellimers agreed they would buy a parcel of around 12 acres at $1,000 per acre.

Robinson planned to sell the remaining land on the open market. This remaining land included discontinued Town Highway #25. The Bellimers needed an easement across the private road to provide reasonable vehicular and additional pedestrian access to the woodlot behind (or west of) the camp building. The camp building itself was accessible along the eastern boundary of their parcel by Town Highway #23, a public road.

At a family event on December 8, 2013, Robinson and the Bellimers signed a handwritten “bill of sale” documenting the Bellimers’ purchase of parcel and camp building for $12,000. The “bill of sale” did not include or reference an easement or right of way.

The mishandling of the property matter had a number of consequences

The Bellimers made a malpractice claim against Respondent, In the fall of 2022, the Bellimers received monetary compensation from Respondent’s insurer, with Respondent’s consent, in a negotiated pre-suit settlement for the loss of the right of way easement. However, the malpractice settlement did not fully compensate the Bellimers for the significant damage they suffered as a result of Respondent’s misconduct.

The Bellimers lost the right to use discontinued Town Highway # 25 for vehicular and pedestrian access to the woodlot portion of their property. They lost the ability to use and enjoy the land they had purchased in the manner they had intended because of the lost access over discontinued Town Highway #25. They lost some of the value of their property due to the lack of reasonable vehicular access to the woodlot portion of it.

They also experienced worry and stress from their land use dispute with Ding and Killington Farms, LLC. (Ding conveyed Parcel #1 to Killington Mountain Farms, LLC, of which he was the member-manager at some point.) In March 2021, Killington Mountain Farms served the Bellimers with a Notice Against Trespass to prohibit them from using discontinued Town Highway #25 to access the woodlot portion of their property. In March 2021, Killington Mountain Farms also notified the Bellimers they were liable for slander of title due to the assertion of a right of way easement across discontinued Town Highway #25 in the August 2014 deed and in Audie Bellimer’s December 26, 2019, affidavit.

Competence

Respondent represented the Bellimers in purchasing a parcel of land with a right of way easement across discontinued Town Highway #25 from Otis Robinson. Unbeknownst to the Bellimers, Respondent neglected to timely record the August 2014 deed that reflected the right of way easement. By failing to timely record a deed reflecting the purchase and easement, Respondent failed to provide the Bellimers competent representation. Respondent’s failure to timely record the August 2014 deed that properly reflected the land and right of way easement the Bellimers purchased displayed a lack of the thoroughness required of a competent lawyer.

Conflict of interest

Respondent’s representation of both Robinson and the Bellimers involved a concurrent conflict of interest. Respondent represented Robinson in the sale of his land to Ding at the same time he represented the Bellimers in the purchase of a right of way easement on the same land from Robinson. There was a significant and obvious risk that Respondent’s representation of the Bellimers in buying the right of way easement would be materially limited by Respondent’s representation of Robinson in selling the same land, and vice versa. The value and ease of selling land encumbered by an easement could differ from the value and ease of selling unencumbered land.

To proceed with representation, therefore, Respondent needed to obtain informed written consent to the conflict from both Robinson and the Bellimers. He failed to do so. He never made Robinson or the Bellimers aware of the foreseeable ways the conflict could adversely affect their interests. He never sought or obtained consent to the conflict from Robinson before representing him in the sale of land for which he also represented the Bellimers in encumbering. He never sought or obtained consent to the conflict from the Bellimers before representing them in the purchase of land for which he also represented Robinson in selling to Ding ostensibly unencumbered.

Dishonesty

First, Respondent violated Rule 8.4(c) by notarizing Robinson’s signature on the August 2014 deed when he admittedly did not, in fact, witness Robinson sign the document, merely obtaining acknowledgment of his signature over the telephone. By writing that his notary commission expired, “2/10/15,” Respondent also misleadingly indicated that he notarized the signature in 2014, when he did not notarize it until 2019. Knowing misrepresentations by an attorney in notarizing a document constitute a violation of Rule 8.4(c)…

Seeking to shift blame away from himself and conceal his drafting errors, Respondent separately violated Rule 8.4(c) by dishonestly implying to Audie Bellimer that Robinson deliberately omitted reference to the Bellimers’ right of way easement across discontinued Town Highway #25 from the December 2014 deeds in order to sell the land that included the private road to Ying Ding.

Proposed sanction

The Hearing Panel agrees with the parties that suspending Respondent from the practice of law for six months is necessary and sufficient to protect the public from harm, maintain confidence in the legal profession, and deter future misconduct.

Respondent engaged in five instances of professional misconduct. The presumptive sanction for each of Respondent’s two violations of Rule 1.1 is reprimand. The presumptive sanction for Respondent’s violation of Rule 1.7 is suspension. The presumptive sanction for each of Respondent’s two violations of Rule 8.4(c) is suspension.

Where there are multiple counts of misconduct, the sanction “should at least be consistent with the sanction for the most serious instance of misconduct among a number of violations; it might well be and generally should be greater than the sanction for the most serious misconduct.” ABA Standards, Part II, Theoretical Framework, at 7. Generally, a “suspension should be for period of time equal to or greater than six months.” ABA Standards, § 2.3. In most cases, “short-term suspensions with automatic reinstatement are not an effective means of protecting the public because rehabilitation cannot be shown in less than six months and a sixmonth duration is needed to protect client interests.” In re Blais, 174 Vt. 628, 631, 817 A.2d 1266 (2002) (mem.) (quotations and citations omitted); see also A.O. 9, Rule 26(B), (D) (A lawyer who is suspended for at least six months must apply for reinstatement and prove they meet reinstatement requirements.).

Importantly, a six-month suspension appears consistent with prior disciplinary determinations. 

(Mike Frisch)