2013 VT 47


In re William J. McCarty, Jr.
(2012-156)
 
2013 VT 47
 
[Filed 28-Jun-2013]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40 as well as formal revision
before publication in the Vermont Reports.  Readers are requested to
notify the Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by
mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont
05609-0801, of any errors in order that corrections may be made before this
opinion goes to press.
 
 

2013 VT 47

 

No. 2012-156

 

In re William J. McCarty, Jr.


Original Jurisdiction


 


 


 


From


 


Professional Responsibility Board


 


 


 


November Term, 2012


 
 


 


Bruce
  C. Palmer, Chair 


 

Beth DeBernardi, Disciplinary Counsel, Burlington, for
Petitioner.
 
Gary D. McQuesten of Valsangiacomo, Detora & McQuesten,
PC, Barre, for Respondent.
 
 
PRESENT:  Reiber, C.J., Dooley, Skoglund, Burgess and
Robinson, JJ.
 
 
¶ 1.            
SKOGLUND, J.  A panel of the Professional Responsibility
Board (PRB) concluded that respondent William McCarty violated Vermont Rules of
Professional Conduct for his participation in the wrongful eviction of Denise
Brennan.  The panel recommended that respondent be suspended from the
practice of law for six months.  Respondent contends that the panel had
insufficient evidence to support a finding that he violated the rules; that
laches should bar the disciplinary action; and that the resulting sanctions
were excessive.  We conclude that respondent violated the rules and find
the defense of laches inapplicable in this case.  However, we find a
three-month suspension to be a more appropriate sanction. 
¶ 2.            
Admitted to the Vermont Bar in 1967, respondent established his law
practice in Brattleboro.  For a number of years, respondent represented
Sandra Glick in various legal matters.  Sandra Glick owned a home in
Brattleboro.  In July 2001, she entered into an oral agreement with Denise
Brennan to rent Brennan a room in her home with access to most of the
property.  Brennan moved in days later.  Shortly thereafter, on
August 8, 2001, Sandra Glick was hospitalized for several weeks as a result of
her bipolar disorder.  With Sandra Glick hospitalized, Gabrielle
Glick, Sandra Glick’s adult daughter, became uncomfortable with Brennan living
in her mother’s home, as she had suspicions that Brennan had impermissibly used
Sandra Glick’s ATM card.  
¶ 3.            
On August 10, 2001, Gabrielle Glick informed Brennan that she must
vacate the premises in thirty days, or by September 9, 2001.  Brennan
began packing her belongings to comply with Gabrielle’s request.  Gabrielle
then hired respondent to assist with the eviction process, as Gabrielle lived
and worked in Massachusetts.  On August 13, 2001, respondent sent a letter
to Brennan, notifying her that he represented Gabrielle Glick and reiterating
that she must leave the premises immediately, no later than September 9. 
Brennan received the letter on August 16, 2011.  
¶ 4.            
Respondent then composed a second letter to Brennan, which was identical
in all respects, except that it did not contain the date by which Brennan was
to vacate the property (September 9) and stated that “[t]he desire is that you
vacate immediately.” Along with the second letter, respondent drafted another
document entitled “Notice to Vacate,” styled to look like a formalized court
order in a suit brought by Sandra Glick, Landlord/Plaintiff against Brennan,
Tenant/Defendant.  The Notice was signed by respondent on behalf of Sandra
Glick.  \  The text of the Notice provided:
 
Pursuant to the provisions of 9 V.S.A. § 4486, you, Denise Brennan are hereby
notified to vacate the premises and to restore the premises to its condition at
the beginning of the rental term.
 
. . . .
 
If you remain in possession after August 17, 2001, Landlord Sandra Glick will
be compelled to bring an action for possession as authorized by 9 V.S.A. §
4468, et. al. 
 
¶ 5.            
On August 17, 2001, Deputy Sheriff Lavalla, a longtime acquaintance of
respondent, met Gabrielle Glick at respondent’s office and picked up the second
letter and the Notice to Vacate with the intention of serving Brennan.[1]  Deputy Sheriff Lavalla and
Gabrielle Glick went to Sandra Glick’s home and served the papers on Brennan
and informed her that she was to vacate the premises immediately.[2]  Brennan tried to discuss the matter
with Deputy Sheriff Lavalla, showing him previous documents which stated that
she was not required to vacate the premises until September 9, 2001. 
Deputy Sheriff Lavalla refused to look at the papers and insisted that she
leave immediately.  He threatened to handcuff and arrest her if she did
not leave.  
¶ 6.            
Chaos ensued.  Unable to reach respondent to make sense of the
matter, Brennan became hysterical. She had nowhere to go and no one to care for
her dog.  After locking her belongings in a room in the house, Deputy
Sheriff Lavalla took Brennan to the Brattleboro Hospital Emergency Room, at her
request.  Animal control took the dog.  As a result of the sudden
eviction, Brennan suffered serious emotional and physical consequences, including
post traumatic stress disorder and intermittent homelessness. The circumstances
also exacerbated her substance abuse issues.  
¶ 7.            
Oral rental agreements, such as between Brennan and Sandra Glick, are
legally enforceable.  See 9 V.S.A. § 4451(8).  The landlord must
provide adequate notice to terminate a tenancy.  See generally 9 V.S.A. §
4467(h) (“A rental arrangement whereby a person rents to another individual one
or more rooms in his or her personal residence that includes the shared use of
any of the common living spaces . . . may be terminated by
either party by providing actual notice to the other of the date the rental
agreement shall terminate, which shall be at least 15 days after the date of
actual notice if the rent is payable
monthly . . . .”).  It is only when the tenant does
not vacate by the specified date that the landlord may commence a civil action
in the superior court.  The landlord must prove entitlement to possession
and obtain a judgment from the court awarding possession to the landlord. 
12 V.S.A. § 4761.  The judgment must be served on the tenant, and if the
tenant does not leave, the landlord may then apply to the superior court for a
writ of possession.  Id. § 4854.  Once the writ is served on
the tenant, the tenant then has five business days to vacate the
premises.  Only if the tenant does not vacate within that time may a
sheriff forcibly remove the tenant.  Id. 
¶ 8.            
Respondent had done landlord-tenant work for previous clients. 
Respondent knew that Brennan was legally entitled to stay on the premises until
September 9.  Nonetheless, “he was anxious to have Ms. Brennan leave the
property as soon as possible in order to protect . . . and safeguard”
his client’s property.  Based on his testimony and the testimony of
others, the hearing panel concluded that respondent intentionally removed the
date of termination from the second letter to deceive Brennan and effectuate an
immediate eviction. 
¶ 9.            
The panel also found that respondent instructed Deputy Sheriff Lavalla
to remove Brennan on August 17, 2001, even though Lavalla did not recall being
informed by respondent himself.  Lavalla testified that the office manager
handled the matter.  Nevertheless, he understood from the papers that
Brennan was to vacate the premises that day. 
¶ 10.        
Respondent did not express any surprise that Brennan left on August 17,
but instead testified that he was “relieved” she vacated the premises. 
Thereafter, respondent made no attempt to inform Glick, Brennan, or Deputy
Sheriff Lavalla that Brennan was not legally required to leave the
premises.  Nor did he make any further inquiry regarding Brennan’s
remaining property in Glick’s home.  
¶ 11.        
Accordingly, the panel found that respondent violated Rules 1.2(d), 4.1,
4.4, 8.4(c), 8.4(d), and 8.4(h) of the Vermont Rules of Professional
Conduct.  All told, his acts of deception in drafting misleading
correspondence and making false statements violated rules prohibiting a lawyer
from engaging in fraudulent behavior, making false statements, and violating
others’ rights.  As a result of respondent’s violations concerning
this incident, past infractions, public concern, and respondent’s personal
circumstances, the panel recommended that respondent be suspended from the
practice of law for six months.  On appeal, respondent argues that
the panel failed to use the proper standard of proof; that there is
insufficient evidence to support its factual findings; that laches should bar
the disciplinary action; and that the resulting sanction is excessive. 
Respondent, however, does not dispute that the facts, if found to be true,
would support the underlying violations. 
¶ 12.        
Respondent first argues that the panel was required to employ a higher
standard of proof to prove his alleged fraudulent activity.  He contends
that the hearing panel did not acknowledge the higher standard of proof
associated with fraud and that disciplinary counsel did not meet its burden in
showing that he committed fraud.  However, respondent is not charged with
common-law fraud.  See Estate of Alden v. Dee, 2011 VT 64, ¶ 32,
109 Vt. 401, 35 A.3d 950 (proving common-law fraud must be done by clear and
convincing evidence).  Rather, he is alleged to have conducted dishonest,
fraudulent, or deceitful activity in violation of Professional Conduct Rule
8.4(c).  All formal charges of misconduct “shall be established by clear
and convincing evidence.”  A.O. 9, Rule 16(C).  Without
evidence to the contrary, we presume the panel employed the appropriate
standard of review.  
¶ 13.        
Respondent next asserts that the evidence does not support the panel’s
findings of fact.  Specifically, respondent alleges that the panel improperly
concluded that he colluded with Deputy Sheriff Lavalla to evict Brennan on the
basis that they had known one another for thirty years, they both belong to the
Vermont Chapter of the Marine Corps League, and their wives worked together for
the hospital auxiliary. 
¶ 14.        
Findings of fact shall not be set aside unless clearly erroneous.
 On review, we will uphold the panel’s findings unless they are clearly in
error.  A.O. 9, Rule 11(E); In re
Pressly, 160 Vt. 319, 322, 628 A.2d 927, 929 (1993).  Based on
respondent’s testimony, the panel found that respondent “desired to have Ms.
Brennan leave immediately” and was “relieved” when she was removed.  The
panel concluded that respondent drafted the second eviction letter and the
Notice to Vacate to compel Brennan to vacate the premises.  Further
reinforcing its finding, the panel looked to the credible testimony of
others.  Gabrielle Glick testified that she took time off work and came to
Vermont because she believed Brennan would be removed from the property on
August 17, 2001.  Deputy Sheriff Lavalla also understood that it
was his job to ensure that Brennan vacated the property that day. 
“Against the backdrop of the clear understanding of all of the other parties,”
the panel concluded that respondent’s “testimony that he did not intend the
second letter and Notice to Vacate to communicate that Ms. Brennan was required
to leave forthwith, or that she and Deputy Sheriff Lavalla had only to read it
carefully to understand that” was not credible.  Put another way,
the panel found that respondent drafted documents in a manner intending to
fraudulently deceive and conspired with Deputy Sheriff to accomplish an
eviction even though no writ of possession had ever been issued by the
court.  The panel did not base its conclusion solely, or even primarily,
on the fact that Deputy Sheriff Lavalla and respondent had a prior
relationship.  Rather, the panel reached its conclusion based on the
credibility of the witnesses and totality of the facts.  Because the panel’s
decision is “clearly and reasonably supported by the evidence,” we find no
reason to disturb its findings.  See In re Berk, 157 Vt. 524, 527,
602 A.2d 946, 947 (1991)(quotations omitted). 
¶ 15.        
Appellant next contends that the charges should be dismissed on the
grounds of laches.  Laches is an equitable defense that bars relief when a
party fails “to assert a right for an unreasonable and unexplained lapse of
time.”  Comings & Livingston v. Powell, 97 Vt. 286, 293,
122 A. 591, 594 (1923).  A lapse of time is not enough.  “Laches involves prejudice, actual or implied, resulting
from the delay.  It does not arise from delay alone, but from delay that
works disadvantage to another.”  Id. at 294, 122 A. at 594.
 
¶ 16.        
 The underlying wrongful eviction that prompted disciplinary action
took place in August 2001.  Respondent was first notified that there was
an investigation regarding his conduct in the eviction matter in October 2004.
 In August 2005, disciplinary counsel informed respondent that a hearing
panel found probable cause to charge him with six violations of the rules.
 Nonetheless, formal charges were not brought against respondent until
July 2010.  Respondent argues that this significant time delay prejudiced
his case.  Specifically, he claims that the four witnesses involved in the
eviction, namely Deputy Sheriff Lavalla, Sandra Glick, Gabrielle Glick, and his
assistant were “unavailable” during the 2011 hearing.  
¶ 17.        
There is no statutory or rule-based limitation in attorney disciplinary
proceedings, and delay, alone, does not warrant dismissal.  See In re
Wright, 131 Vt. 473, 489, 310 A.2d 1, 9 (1973) (finding that no statute of
limitations applies to attorney disciplinary proceedings); see also A.O. 9,
Rule16(I).  The purpose of attorney discipline proceedings is to protect
the public by assessing the attorney’s fitness to practice law.  See ABA
Ctr. for Prof’l Responsibility, Standards for Imposing Lawyer Sanctions,
§ 1.1 (1986)(amended 1992) [hereinafter ABA Standards].  Absent a showing
of prejudice, a mere delay in bringing a disciplinary action does not justify
dismissal.[3]
 
¶ 18.        
Respondent has not adequately established prejudice here. 
Respondent asserts that several witnesses have become “unavailable” or have
dulled memories as a result of the time lapse.  Though many courts
recognize that evidentiary prejudice can result
from witnesses whose memories have faded, or who
have died, we cannot substantiate respondent’s laches defense on the facts
presented.  See In re Siegel, 708 N.E.2d 869 (Ind. 1999).
¶ 19.        
Respondent’s first claim of prejudice is that Deputy Sheriff Lavalla was
unavailable to testify in front of the 2011 hearing board panel.  It is
uncontested that Deputy Sheriff Lavalla suffered a transient ischemic attack
(TIA) in 2006, which reduced his ability to recall the events of 2001 with
clarity.  The hearing panel found that respondent failed to show resulting
prejudice from this because Lavalla testified before the TIA in the 2004 civil
proceeding brought by Brennan concerning the wrongful eviction,[4] and further found that a transcript of
his prior testimony would be “available to refresh Lavalla’s recollection with respect
to any forgotten evidence favorable to [r]espondent.”  Respondent contends
that Lavalla’s previous testimony was not adequate because respondent was not a
party in the prior litigation nor were there charges of unprofessional conduct
in the 2004 proceedings.  
¶ 20.        
Vermont Rule of Evidence 612 entitles a witness to use a writing or
object to refresh memory.  As found by the hearing panel, respondent could
have used Lavalla’s testimony from the 2004 civil suit to refresh Lavalla’s
recollection with respect to any forgotten facts, but he did not.  While
it is true that respondent was dismissed from the prior civil suit and his
professionalism was not under review in that instance, Lavalla still testified
to the underlying facts surrounding the eviction.  Because Lavalla’s
recollection may have been sufficiently refreshed by his previous testimony, we
agree with the panel that without attempting to refresh Lavalla’s memory,
respondent cannot declare Lavalla unavailable for the purposes of the hearing. 

¶ 21.        
Next, respondent asserts that he was prejudiced by the death of Sandra
Glick.  This argument is unavailing.  Though Sandra Glick was the
landlord in this case, she was hospitalized and incapacitated during the
eviction.  She did not witness the events that gave rise to the
disciplinary proceedings; nor is there evidence to suggest that Sandra Glick
would provide exculpatory testimony for respondent in this matter.  As
such, we do not find that respondent was prejudiced by the death of Sandra
Glick. 
¶ 22.        
Third, respondent argues that Gabrielle Glick, a resident of
Massachusetts, was unavailable because she was outside the court’s subpoena
power.  However, the parties stipulated that Gabrielle’s deposition could
be substituted for her live testimony, and in effect, respondent waived any
objection to her absence.  In any event, Gabrielle Glick has always been a
resident of Massachusetts with respect to this proceeding.  Because her
availability has not changed as a result of the delay, we find no prejudice. 
¶ 23.        
Finally, respondent argues that he is prejudiced by the unavailability
of his office assistant.  According to respondent, his assistant left
without notice some time ago and cannot be located.  It is unclear,
however, what respondent’s assistant would have added to the discussion, and
respondent fails to provide further support other than allegations that she was
the individual “who would have drafted the documents involved in this matter.”
 Regardless of who drafted the documents, respondent signed the papers,
and he makes no allegation that his assistant would have drafted these
documents contrary to his direction.  Because respondent does not specify
how he is harmed by his assistant’s absence, we fail to see the resulting
prejudice.  In sum, respondent fails to demonstrate how the delay
prejudices the proceedings and, therefore, the defense of laches does not
apply.
¶ 24.        
As a final matter, respondent asserts that the sanction imposed by the hearing
panel is excessive.  The panel recommended a six-month suspension from the
practice of law.  Disciplinary counsel maintains that respondent should be
disbarred on the basis of prior discipline,[5] dishonest motive, refusal to acknowledge
the wrongful nature of his conduct, the vulnerability of the victim, his
substantial experience, and his indifference in providing restitution for his
actions.  Respondent argues that at most he should receive a public reprimand
for the violations. 
¶ 25.        
Imposition of a sanction is a matter left to this Court’s discretion.
 “This Court makes its own determination as to which sanctions are
appropriate, but we nevertheless give deference to the recommendation of the
Hearing Panel.”  In re Blais, 174 Vt. 628, 630, 817 A.2d
1266, 1269 (2002) (mem.).
¶ 26.        
“The American Bar Association’s Standards for Imposing Lawyer Sanctions
guide our” disciplinary sanctions.  See In re Fink, 2011 VT 42, ¶
35, 189 Vt. 470, 22 A.3d 461.  “The purpose of lawyer discipline
proceedings is to protect the public and the administration of justice from
lawyers who have not discharged . . . their professional
duties to clients, the public, the legal system and the legal
profession.”  ABA Standards § 1.1; see also In re Hunter, 167 Vt.
219, 226, 704 A.2d 1154, 1158 (1997) (The purpose of sanctions is not “to
punish attorneys, but rather to protect the public from harm and to maintain
confidence in our legal institutions by deterring future misconduct.”).  
¶ 27.        
 Under this framework, we consider the duty violated, the lawyer’s
mental state, the actual or potential injury, and any aggravating or mitigating
circumstances.  ABA Standards § 3.0.  Depending on the
importance of the duty violated, the level of the attorney’s culpability, and
the extent of the harm caused, the standards provide a presumptive sanction,
which can then be adjusted based on aggravating or mitigating factors. 
See V.R.Pr.C. Scope. 
¶ 28.        
Here, respondent owed a duty to his client, the public, and his
profession.  Like all attorneys, he had a duty to avoid conduct “involving
dishonesty, fraud, deceit or misrepresentation,” V.R.Pr.C. 8.4(c), as well as
to maintain the standards of personal integrity. ABA Standards § 5.0.  As
an officer of the court, respondent had an obligation to abide by the legal
rules of both substance and procedure that affect the administration of
justice.  ABA Standards § 6.0.  Disbarment is generally appropriate
when a lawyer knowingly engages in conduct that is a violation of a duty owed
as a professional with the intent to obtain a benefit for the lawyer or
another, and causes serious or potentially serious injury to a client, the
public, or the legal system.  Having a duty to uphold and obey the law, as
both a citizen and professional, respondent, here, intentionally violated the
legal process by circumventing the statutorily prescribed eviction
process.  
¶ 29.        
Respondent purposefully drafted a Notice to Vacate, stylized as a
legitimate court document.  The Notice was designed to create the
impression that Brennan was required to leave the premises immediately, even
though by law and agreement, she did not have to leave until later the next
month.  
¶ 30.        
These actions gave rise to serious consequences—Brennan lost her home
without warning, causing her to enter a period of homelessness and exacerbating
serious physical and mental conditions.  Respondent’s actions also had
grave consequences for Sandra Glick who became embroiled in the wrongful
eviction lawsuit, ending with a judgment of approximately $290,000 against her.
 The legal system was also injured, for any time an attorney purposefully
ignores legal procedures for his client’s benefit, the legal system is
undermined and thereby harmed.  
¶ 31.        
Under the ABA Standards, an intentional violation of a duty, giving rise
to actual injury, calls for a presumptive sanction of disbarment.  ABA
Standards § 7.1.  In the present case, however, the panel found, and we
agree, that the circumstances, taken together, support suspension rather than
disbarment, which is generally “reserved for cases in which the attorney was
convicted of a felony and often where there has been loss or the potential for
loss of client funds.”  The panel specifically looked to In re
Rice, PRB Decision No. 64 (Sept. 13, 2004), where Attorney Rice avoided the
legal process to assist his client in hiding assets from creditors.  Based
on the ABA Standards, a panel of the PRB suspended Rice for thirty days due to
the presence of aggravating factors similar to the case at hand. Like
respondent, Rice was an experienced attorney, had received prior discipline,
and failed to acknowledge the wrongful nature of his conduct.  Here, the
panel concluded that respondent’s conduct was more severe than Rice’s in that
he intentionally drafted deceptive documents to circumvent the legal process,
which produced serious injury for Brennan, Sandra Glick, and the legal system,
all of which are aggravating factors that call for a longer suspension. 
¶ 32.        
Specifically, the panel considered the following additional aggravating
factors: respondent’s substantial experience as a lawyer; his prior discipline;
his failure to acknowledge the wrongful nature of his conduct; and the
vulnerability of the parties involved, namely Brennan and Sandra Glick. The
panel also gave considerable attention to respondent’s five prior disciplinary
actions and his failure to acknowledge responsibility or wrongdoing. 
¶ 33.        
The panel considered mitigating factors as well. While the panel did not
find respondent’s previous chemical dependency to be a mitigating factor, as he
had been sober for more than a year after a successful rehabilitation at the
time of the incident, it took notice of respondent’s recovery and found this
mitigated his prior disciplinary offenses that occurred before his
rehabilitation.  The panel also highlighted the fact that there have been
no known subsequent violations since the wrongful eviction.  Accordingly,
the panel afforded “some weight in mitigation to the delay, coupled with the
testimony that Respondent has changed and his formerly aggressive behavior has
ceased.” 
¶ 34.        
On balance, we agree with the panel that a suspension is the most
appropriate sanction.  We find that respondent’s actions were
severe.  Respondent’s manipulation of the legal system created dire
consequences for both his client and Brennan, and he altogether disregarded his
duties to uphold the law and maintain professional integrity.  Further
augmenting the violations arising out of this case are the five previous
disciplinary actions, making respondent’s continued refusal to acknowledge
wrongdoing particularly egregious.  Nonetheless, there are mitigating
factors.  This matter has been delayed for a long period of time and, in
the interim, respondent has not had other violations brought against him. 
Because the sanctions are not designed to be punitive in nature but rather are
imposed to protect the public and the profession, we give strong consideration
to the fact that respondent has not violated the rules in the last eleven years
and find that a three-month suspension is appropriate.  See In re
Keitel, 172 Vt. 537, 538, 772 A.2d 507, 510 (2001)(mem.) (“The purpose
of sanctions is not punishment. Rather, they are intended to protect the public
from persons unfit to serve as attorneys and to maintain public confidence in
the bar.”) (quotation and alteration omitted).
William McCarty, Jr. is
suspended from the practice of law for three months from the date of this order
for violating Rules 1.2(d), 4.1, 4.4, 8.4(c), 8.4(d), and 8.4(h) of the Vermont
Rules of Professional Conduct by intentionally drafting legal documents
designed to mislead and circumvent the legal process.
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate Justice

 





[1]
Though respondent testified that he did not call the Deputy Sheriff’s office,
the panel concluded that respondent called and instructed the Deputy Sheriff to
serve the papers on Brennan.  Respondent’s billing records reflect that he
signed off on “calls to Deputy Lavalla” on August 13 and “calls to and from
Sheriff regarding service and schedule” on August 15, 2001. Respondent
testified that these were likely “duplicate entries” and one of his staff
members made the calls.  
 


[2] Deputy Sheriff Lavalla does not recall being
personally informed by respondent that he was to remove Brennan.  Rather,
he testified that the office manager handled the matter.  He further
testified that he understood the papers to mean that Brennan was to vacate the
premises that day—though he never read the whole document, stopping after
seeing that Brennan was to vacate “forthwith.” 
 


[3]  A few jurisdictions do not permit the
defense of laches to bar an attorney disciplinary proceeding.  These
courts either use the delay as a factor to be considered in the disciplinary
sanction determination, see, e.g., In re Eisenberg, 423 N.W.2d 867, 872
(Wis. 1988), or do not permit delay to serve as a mitigating factor, especially
where the public interest is served, see, e.g., Attorney Grievance Comm’n of
Md. v. Snyder, 793 A.2d 515, 533-34 (Md. 2002).  As far as we can
determine, only one court has permitted the equitable defense of laches to bar
an attorney disciplinary action,  Tenn. Bar Ass’n v. Berke, 344
S.W. 2d 567, 571-72 (Tenn. Ct. App. 1960), where the vast majority of courts
leave the ultimate question of whether laches is available in legal malpractice
unaddressed.  See In re Tenenbaum,  918 A.2d 1109, 1113-14
(Del. 2007); In re Johnson, 2004 MT 6, ¶¶ 20-21, 84 P.3d 637 (2004); In
re Siegel, 708 N.E.2d 869, 871-872 (Ind. 1999); Ching v. State Bar
of Nevada, 895 P.2d 646, 648-49 (Nev. 1995); In re Wade, 814
P.2d 753, 764 (Ariz. 1991); Harris v. State Bar of Cal, 800 P.2d
906, 910, (Cal. 1990).  Courts have found similarly in other professional
disciplinary proceedings, such as physician disciplinary actions.
 


[4]
 In 2004 Brennan brought a wrongful eviction action against Sandra Glick,
Deputy Sheriff Lavalla, and respondent.  Respondent was dismissed as a
party because the court concluded that the “Vermont Residential Rental
Agreements Act (VRRAA) provides for a cause of action against landlords who
illegally evict tenants, but not against the landlords’ attorneys.” The jury
awarded Brennan damages roughly in the amount of $290,000 in addition to
attorney’s fees and costs.


[5]
Respondent has five prior disciplinary actions.  In June 1987, respondent
was admonished for failure to cooperate with Bar Counsel.  He received a
public reprimand for neglect of several client matters.  In 1995,
respondent received admonishment from the Professional Conduct Board for
refusing to turn over a client’s file to new counsel.  He was disciplined
again in 1995 for his failure to return client property upon the conclusion of
representation and his refusal to admit the wrongful nature of his conduct.
 Finally, in 1999, respondent was disciplined for lying to the court.



