An Extra Night In Boston

A Vermont Hearing Panel sustained some and rejected other allegations of misconduct brought against an attorney and ordered a suspension of one year in connection with representation in two employment discrimination matters.

The decision may be appealed as set forth in the applicable rules.

All final decisions of the hearing panel which fully dispose of an entire proceeding may be appealed as of right to the Court by respondent or disciplinary counsel pursuant to the Vermont Rules of Appellate Procedure, which rules shall govern the proceedings on appeal except where these rules establish a different procedure.

Charges to a client

Respondent charged J.H. for staying three nights, August 11, 12, and 13, 2015, at a $452.08/night (including tax) hotel in Boston, Massachusetts, to take depositions on August 12 and 13, 2015. The deposition on August 13, 2015, concluded no later than 5:30 p.m. Respondent traveled to Boston on the Dartmouth Coach bus. A return Dartmouth Coach bus left Boston as late as 9:30 p.m. that day. J.H.’s billing file does not include documentation showing it was necessary or reasonable for Respondent to stay in Boston the night of August 13, 2015, for purposes of representing J.H. Respondent charged J.H. for staying one night at a $259.00/night hotel in Rochester, New York, to take a deposition on August 4, 2015. He charged her $311.16 for one night’s stay plus meals at a hotel in Amherst, Massachusetts, to take a deposition on September 18, 2015.

Respondent charged J.H. $100.00/day for three days of meals in Boston, for a total charge of $300.00. J.H.’s billing file only includes documentation showing that Respondent spent $179.25 on August 11, 2015, for dinner at the Taj Boston, $4.38 on August 12, 2015, for a food item from the honor bar at the Taj Boston, and $19.05 on August 13, 2015, for an alcoholic beverage from the bar at the Taj Boston. J.H. did not agree to pay Respondent $100.00/day for meals. J.H.’s billing file does not include documentation showing these expenses were necessary or reasonable for his representation of J.H.

Findings

Special Disciplinary Counsel has not established by clear and convincing evidence that Respondent stayed at unreasonably expensive hotels when he traveled for depositions. The fact that Respondent paid more for the hotels than the federal government would is immaterial, as Respondent was not traveling for the federal government. The record is devoid of the  comparator evidence.

It was unreasonable for Respondent to charge J.H. $452.08 to stay at a hotel in Boston on August 13, 2015, when the last deposition in Boston ended hours before the last return bus departed that evening. It was also unreasonable for Respondent to charge $300.00 for meals in Boston, when there was no documentation in J.H.’s billing file that Respondent actually incurred $300.00 in meal expenses, and there was no communication to J.H. that she would be responsible for paying Respondent $100.00/day of travel for meals.

The Hearing Panel concludes that Special Disciplinary Counsel has proven by clear and convincing evidence that Respondent violated V.R.Pr.C. 1.5.

As to meals and hotel

The evidence in the record is insufficient to show that Respondent knew the expenses were unreasonable when he charged J.H.; rather, the evidence tends to show that Respondent was sloppy.

Respondent’s sloppiness created a substantial risk of overcharging clients. In fact, his sloppiness cause J.H. actual injury. She suffered a financial loss of $2,652.08.

And

Special Disciplinary Counsel charged that Respondent knowingly made two false statements to her in connection with this disciplinary matter – He falsely stated that G.A.’s retainer was in his IOLTA account until he transferred a portion to his operating account in 2019 after the conclusion of representation, and he falsely stated that he issued G.A. a check for his portion of the retainer shortly before July 24, 2020. Respondent conceded the statements he made were false but argued that he did not know they were false when he made them because he relied solely on his faulty memory in making the statements.

Respondent’s argument that he falsely told Special Disciplinary Counsel that he kept G.A.’s entire retainer in his trust account until he transferred earned fees and expenses to his law firm operating account after the conclusion of representation because of a faulty memory is plausible. He made the false representation in July 2020; G.A. gave him the retainer in August 2017; the representation concluded in March 2019. He admitted that he did not review records before making the representation to Special Disciplinary Counsel. Respondent’s decision to give her information based solely on his memory was negligent under the circumstances, but V.R.Pr.C. 8.1 requires knowledge.

On the other hand, Respondent’s argument that he falsely told Special Disciplinary Counsel that he returned G.A.’s retainer because of a faulty memory is not credible. On July 24, 2020, Respondent told Special Disciplinary Counsel that he returned G.A.’s retainer after she reminded him to do so on July 14, 2020. Respondent provided no explanation for this false statement other than a faulty memory; it is simply not plausible that Respondent recalled issuing a check he did not, in fact, issue during those 10 days. Given that Special Disciplinary Counsel was specifically investigating Respondent’s handling of G.A.’s retainer, whether or not he returned the retainer was clearly material. The evidence shows that Respondent knowingly made a false statement of material fact in connection with a disciplinary matter.

The Hearing Panel concludes that Special Disciplinary Counsel has proven by clear and convincing evidence that Respondent violated V.R.Pr.C. 8.1.

Sanction

Respondent has demonstrated a disregard for meeting his duties to clients, the public, the legal system, and the attorney disciplinary process. He “poses a serious risk to potential future clients and public trust in the legal profession.” See In re Manby, 2023 VT 45, ¶ 65. “The appropriate sanction must be weighty enough to counter this serious risk.” In re Bowen, 2021 VT 7, ¶ 50. The Hearing Panel concludes that, in order to protect client interests and maintain public confidence in the legal profession, Respondent is suspended for one (1) year.

(Mike Frisch)