2011 VT 77



In re Margaret Strouse, Esq. (2010-053)
 
2011 VT 77
 
[Filed 15-Jul-2011]
 
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, 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. 
 

2011 VT 77 

 

No. 2010-053

 

In re Margaret Strouse, Esq.


Original Jurisdiction


 


 


 


FROM:


 


Professional Responsibility
  Board


 


 


 


October Term, 2010


 


 


 


 

Harland
L. Miller III, Chair
 
Michael Kennedy, Disciplinary Counsel, Burlington, for
Petitioner.
 
Joel B. Harris and Ross Feldmann of Gravel and Shea, Burlington, for Respondent.
 
 
PRESENT:  Reiber, C.J.,
Dooley, Johnson, Skoglund and Burgess, JJ.
 
 
¶ 1.            
PER CURIAM.   In this
case, we review, on our own motion, a decision of a Hearing Panel of the
Professional Responsibility Board, which concluded that respondent, Margaret Strouse, engaged in deceit, violating Rule 8.4(c) of the
Vermont Rules of Professional Conduct.  The Panel imposed a sanction
suspending respondent from the practice of law for six months.  By our
order, the Office of Disciplinary Counsel has been
designated appellant.  Disciplinary counsel argues that we should uphold
the finding of a violation of the disciplinary rule, but that the sanction is
too lenient, and respondent should be disbarred. 
Respondent argues that the finding of a violation should be reversed, and if
upheld, the sanction should be reduced to a reprimand.  We affirm the
finding of a violation and impose a public reprimand.
¶ 2.            
The relevant facts are not in dispute.  Respondent was admitted to
practice law in Vermont in 2001 and was hired to work for a Burlington law firm
in January 2006.  In November 2007, a client hired the firm to represent
her in a divorce from her then-husband.  In early February 2008, before
becoming aware of her firm’s representation of the client, respondent met the
client’s husband and began dating him.  On or about February 19, 2008,
respondent saw her firm’s client list and realized that she was dating the husband
of her firm’s client and that the firm was representing the client in a divorce
proceeding against the husband.  Within several hours of discovering this
information, respondent informed the firm’s senior attorney that she had
recently become romantically involved with the husband.  Respondent
requested that the firm create a “conflict wall,” which she believed would
prevent her from participating in any representation of the client and allow
her to continue dating the husband.  
¶ 3.            
The day after meeting with respondent to discuss her conflict, the
senior attorney left respondent a message indicating that respondent’s
employment would be terminated if she refused to end her relationship with the
husband.  The next day, respondent told the senior attorney that she had
terminated the relationship.  In reliance on this representation, the
senior attorney disclosed the situation to the client.  After consulting
with another lawyer, and relying on the senior attorney’s representation that
respondent had terminated the relationship with her husband, the client decided
to continue using the firm to represent her in the divorce.  
¶ 4.            
However, respondent did not entirely cease contact with the
husband.  On February 26, 2008, she ordered a gift of chocolates to be
delivered to the husband.  At some point between February 21 and March 8,
2008, respondent and her children spent time with the husband and his children
at a local health club pool.  Respondent and the husband were also together
on other occasions during this period.  
¶ 5.            
On March 8, 2008, the client left the state to seek treatment for her
health.  The client and her husband had previously negotiated an agreement
stating that the husband could move into the marital home to care for the
children in the client’s absence.  On the same day that the client left
for treatment, respondent and her children joined the husband and his children
at the marital home and spent the night.  Members of the client’s family
learned about respondent’s stay and contacted the senior attorney about it on
March 11, 2008.  
¶ 6.            
The senior attorney confronted respondent about her overnight stay with
the husband, and respondent admitted to it and admitted that her relationship
with the husband had resumed.  The senior attorney immediately terminated
respondent’s employment with the firm.  Respondent and her children
continued to live with the husband for several months after the termination of
her employment.  
¶ 7.            
In its decision and order addressing respondent’s conduct, the Panel
found that respondent’s relationship with the husband had been romantic in
character at all times.  The Panel also concluded that actual harm—stress
on the client and her children—had resulted from the relationship and that the
relationship had created the potential for more serious harm. 
Furthermore, the Panel was concerned that respondent did not acknowledge the
“wrongful nature” of her conduct and felt that she was either evasive or nonresponsive
to questions about the details of her relationship with the husband. 
Ultimately, the Panel concluded that during her relationship with the husband,
respondent had engaged in deceit in violation of Rule 8.4(c) and suspended her
from the practice of law for a period of six months.  
¶ 8.            
This Court reviews a disciplinary hearing panel’s findings of fact under
a clearly erroneous standard.  A.O. 9, Rule 11(E); In re Farrar,
2008 VT 31, ¶ 5, 183 Vt. 592, 949 A.2d 438 (mem.). 
A panel’s findings are upheld if “clearly and reasonably supported by the
evidence,” whether the findings are purely factual or mixed law and fact. 
In re Blais, 174 Vt. 628,
629, 817 A.2d 1266, 1269 (2002) (mem.) (quotations omitted).  We give deference to the
recommendations of a disciplinary panel but use our own discretion and make our
own determination as to which sanctions are appropriate for violations of the
Rules of Professional Conduct.  Id. at 630, 817
A.2d at 1269; Farrar, 2008 VT 31, ¶ 5.
¶ 9.            
On appeal, disciplinary counsel argues that respondent violated Rule
8.4(c) because her conduct involved deceit and that, based on the American Bar
Association standards and aggravating factors, this Court should disbar
respondent.  Respondent, in turn, claims that her conduct did not
constitute deceit and that, at most, she should have been reprimanded, not
subjected to suspension or disbarment.  We agree with the Panel’s decision
that respondent’s conduct involved deceit and constitutes a violation of Rule
8.4(c); however, we hold that a public reprimand, not disbarment or suspension,
is the appropriate sanction.
¶ 10.        
It is professional misconduct for a lawyer to “engage in conduct
involving dishonesty, fraud, deceit or misrepresentation.”  V.R.Pr.C. 8.4(c). 
The rule is meant to reach only conduct “that reflects on an attorney’s fitness
to practice law.”  In re PRB Docket No. 2007-046,
2009 VT 115, ¶ 12, 187 Vt. 35, 989 A.2d 523.
¶ 11.        
We begin with an evaluation of the ethical difficulty caused by
respondent’s conduct.  Rule 1.7 of the Rules of Professional Conduct
prohibits a lawyer from representing a client without the client’s written
consent if the representation involves a “concurrent conflict of
interest.”  V.R.Pr.C. 1.7(a).  Such a conflict exists if “there is a
significant risk that the representation of one or more clients will be
materially limited . . . by a personal interest of the lawyer.”  Id.
1.7(a)(2).    In general, if one lawyer
in a firm would be prohibited by Rule 1.7 from representing a client, all are
prohibited.  See id. 1.10(a).  This
rule is subject to an exception, however, when the prohibition “is based on a
personal interest of the prohibited lawyer” if that interest “does not present
a significant risk of materially limiting the representation of the client by
the remaining lawyers in the firm.”  Id.  The Comment explains
the exception as follows:
  The rule in
paragraph (a) does not prohibit representation where neither questions of
client loyalty nor protection of confidential information are presented. 
Where one lawyer in a firm could not effectively represent a given client
because of strong political beliefs, for example, but that lawyer will do no
work on the case and the personal beliefs of the lawyer will not materially
limit the representation by others in the firm, the firm should not be
disqualified.  On the other hand, if an opposing party
in a case were owned by a lawyer in the law firm, and others in the firm
would be materially limited in pursuing the matter because of loyalty to that
lawyer, the personal disqualification of the lawyer would be imputed to all
others in the firm.
Id.,
cmt. [3].  
¶ 12.        
Under Rule 1.7(a)(2), there is a conflict of
interest if the firm’s senior attorney represented the client in her divorce
and, at the same time, another attorney in the firm has a romantic relationship
with the client’s husband.  Such a situation raises serious concerns about
loyalty to the client and misuse of confidential information.  See id.,
cmts. [6], [10].  This conflict is closer to the
hypothetical from Comment [3] where disqualification is imputed to all firm
members, than to the hypothetical where it is not.  The situation created
a significant material risk that the client’s representation would be
limited.  Continuing representation of the client would have risked
violating Rule 1.7(a)(2) had the client’s
representation continued once respondent recommenced the relationship with the
husband.
¶ 13.        
We recognize that the conflict of interest was not present at the onset
of the representation of the client.  In these circumstances, the lawyer
is required to withdraw from representing the client if “the representation will
result in violation of the rules of professional conduct.”  Id.
1.16(a)(1); see also id. 1.7,
cmt. [3].  We
also recognize that in some instances a lawyer may seek consent for
continuation of representation despite a conflict of interest.  See id.
1.7(b).  We doubt that such consent would apply
where the client wife was in direct litigation with the husband, but, in any
event, the senior attorney chose not to seek consent.
¶ 14.        
This brings us to whether respondent engaged in “dishonesty, fraud,
deceit or misrepresentation” by failing to inform the senior attorney that her
relationship with the husband had resumed.  Id. 8.4(c).  We
conclude that respondent’s failure to inform the senior attorney about her
renewed relationship with the husband can be characterized as deceitful; she
was aware that her relationship with the husband put the firm into a conflict
of interest with its representation of its client.  Respondent had a duty
to disclose the continuing relationship so that the firm could take the action
necessary to cure the potential ethical violation.  See Velardo v. Ovitt,
2007 VT 69, ¶ 29, 182 Vt. 180, 933 A.2d 227 (holding that father was entitled
to new custody trial because assistant judge in case was sister of guardian ad litem, and relationship was not revealed until after trial;
this Court emphasized “that the appearance of impropriety here is substantial
and the conduct that created it is inexcusable. . . . [T]he assistant judge had
actual knowledge of the source of the conflict . . . [and thus] had an
independent duty to disclose the relationship that created the conflict of
interest and failed to do so”).  
¶ 15.        
Respondent urges us to view her conduct in relation to the common law of
fraud and deceit, arguing that her conduct did not meet that standard.  We
conclude otherwise.  When there exists a duty to speak, “Vermont has long
recognized the doctrine of negative deceit.”  Sutfin
v. Southworth, 149 Vt. 67, 70, 539 A.2d 986, 988
(1987); see also Crompton v. Beedle, 83 Vt. 287,
295, 75 A. 331, 333 (1910) (same).  Thus, liability for fraud may be
premised “on the failure to disclose material facts as well as on affirmative
misrepresentations.”  Sugarline
Assocs. v. Alpen Assocs., 155 Vt. 437, 444, 586
A.2d 1115, 1119 (1990); see also White v. Pepin, 151 Vt. 413, 416, 561
A.2d 94, 96 (1989) (“Where [an affirmative] duty is present, the failure to
disclose a material fact coupled with an intention to mislead or defraud rises
to the level of material misrepresentation.”); Standard Packaging Corp. v.
Julian Goodrich Architects, Inc., 136 Vt. 376, 381, 392 A.2d 402, 405
(1978) (stating fraud “must consist of some affirmative act, or of concealment
of facts by one with knowledge and a duty to disclose”).  A duty can arise
from the relations of the parties, or superior knowledge, or means of
knowledge.  See Silva v. Stevens, 156 Vt. 94, 103, 589 A.2d 852, 857 (1991).  Here, there are multiple
sources of a duty to disclose.  As in Velardo,
respondent created a conflict of interest for the firm by her conduct, and had
a duty to disclose it.  The senior attorney made clear that the firm would
not tolerate the situation and would terminate respondent as the remedy.  
¶ 16.        
Respondent argues that there was no scienter—that
is, an intent to mislead—because she was not required
to cease all contact with the husband.  See White,
151 Vt. at 416, 561 A.2d at 96.  This argument ignores the fact
that she did not disclose the renewal of her romantic relationship with the
husband.  The evidence strongly supports the conclusion that she intended
to mislead the senior attorney through nondisclosure.  We have a similar
reaction to respondent’s arguments that there was no justifiable reliance upon
her nondisclosure and there was no damage caused by it.  The senior
attorney relied upon respondent’s promise to terminate the relationship with
the husband by continuing to represent the client—oblivious to the conflict of
interest—and by continuing to employ respondent.  As the Panel found, respondent’s
actions damaged the client.  They damaged the firm by exposing it to an
ethical violation.  They damaged the senior attorney’s relationship with
the client.  Thus, even if we view this case through a prism of common law
deceit, we find the elements of a violation of Rule 8.4(c). 
¶ 17.        
Respondent argues that even if her behavior is found to have been
dishonest, it does not rise to the level of reflecting on her fitness to
practice law.   See PRB Docket No. 2007-046, 2009 VT 115, ¶
12.  We disagree.  This Court provided extensive analysis of Rule
8.4(c) in PRB Docket No. 2007-046.  In that case, we declined to
hold that the respondents’ action, misleading a potential witness about whether
they were recording a telephone conversation, rose to the level of violating
Rule 8.4(c).  Id. ¶ 1.  However,
our decision in PRB Docket No. 2007-046 was significantly influenced by
factors not present in the current case.  In that case, we specifically
noted that the respondents “earnestly believed that their actions were
necessary and proper” and that they were motivated by a desire to defend their
client.  Id. ¶ 17.  Given these
motives, we concluded that respondents’ actions did not reflect adversely on
their fitness to practice law.  Id.
¶ 18.        
In the current case, respondent put the firm in danger of an ethics
violation.  She knew the firm sought to prevent a problem by requiring her
to end the relationship with the husband.  She acted deceitfully when she
concealed her renewed relationship.  Respondent’s actions were motivated
by a self-serving desire to keep both her employment and her
relationship.  We hold that respondent’s choices and actions reflect
adversely on her fitness to practice law, and we affirm the Panel’s decision
that respondent violated Rule 8.4(c).
¶ 19.        
We look to the ABA’s Standards for Imposing Lawyer Sanctions to “guide
our determination of the appropriate sanction in an attorney disciplinary
matter.”  In re Neisner, 2010 VT 102, ¶
14, ___ Vt. ___, 16 A.3d 587; see also ABA Center for Professional
Responsibility, Standards for Imposing Lawyer Sanctions (1986) (amended
1992) [hereinafter ABA Standards].  We weigh four factors when deciding
upon the appropriate sanction:  “(1) the duty violated, (2) the attorney’s
mental state, (3) the actual or potential injury caused by the misconduct, and
(4) the existence of aggravating or mitigating factors.”  Neisner, 2010 VT 102, ¶ 14; see also ABA
Standards § 3.0, at 26 (listing same).  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.  In re Fink, 2011 VT 42, ¶ 35, ___ Vt. ___, ___ A.3d ___. 
The presumptive sanction can then be tailored to the case, based on the
existence of aggravating or mitigating factors.
¶ 20.        
Based on the ABA Standards, disciplinary counsel argues that disbarment
is the “presumptive sanction.”  Respondent, on the other hand, concludes
that, according to the ABA Standards, the punishment for this first-time
offense should be a reprimand.  Both interpretations are plausible because
the language used in the ABA Standards is relatively broad and subjective, and,
when applied to this case, different ABA Standards appear to advocate the use of
different sanctions. 
¶ 21.        
Disciplinary counsel urges us to look at three ABA Standards which,
counsel argues, each support a sanction of disbarment: Standards 7.1, 4.6 and
5.11.  The Panel concluded that Standards 7.1 and 4.6 apply and support
suspension.  Respondent argues that neither standard 7.1 nor 4.6 apply and
that Standard 5.11 does not support disbarment or suspension.
¶ 22.        
We start with Standard 7.1, which appears to be the primary standard
relied upon by the Panel.  It pertains to “Violations of Other Duties Owed
as a Professional,” and it provides for disbarment if such conduct is intended
“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.”  
We agree with respondent that this standard does not apply to this case. 
As stated in the introduction to the standard, it is meant to apply to “cases
involving false or misleading communication about the lawyer or the lawyer’s
services, improper communication of fields of practice, improper solicitation
of professional employment from a prospective client, unreasonable or improper
fees, unauthorized practice of law, improper withdrawal from representation, or
failure to report professional misconduct.”  ABA
Standards § 7.0, at 46.  None of these behaviors matches
respondent’s conduct here.
¶ 23.        
We have a similar view of Standard 4.6.  It sanctions disbarment
when the lawyer “knowingly deceives a client with intent to benefit the lawyer”
and “causes serious injury or potential serious injury to a client.”  ABA Standards § 4.61, at 36.  The standard states that
it is invoked when the lawyer “engages in fraud, deceit, or misrepresentation
directed toward a client.”  Id. § 4.6, at 36. 
We recognize that respondent’s conduct caused harm to the client, but the
fraud, as we defined it above, was aimed primarily at the senior attorney and
the firm, and not directly at the client.  If respondent had used
confidential information from the client or the senior attorney to benefit the
husband, the situation would be different and Standard 4.61 could apply. 
There was, however, no evidence of such conduct.
¶ 24.        
This leaves us with Standard 5.1, which does clearly apply because it
covers other instances of conduct “involving dishonesty, fraud, deceit, or
misrepresentation.”  Disciplinary counsel and respondent
point to different sub-sections of ABA Standard 5.1.  Standard
5.11(b), advocated for by disciplinary counsel, states that disbarment is
generally appropriate if a lawyer engages in intentional conduct involving
“dishonesty, fraud, deceit, or misrepresentation that seriously adversely
reflects on the lawyer’s fitness to practice.”  Standard 5.13, advocated for by respondent, states that reprimand is generally
appropriate “when a lawyer knowingly engages in any other conduct that involves
dishonesty, fraud, deceit, or misrepresentation and that adversely reflects on
the lawyer’s fitness to practice.”  The difference between these two ABA
Standards is the seriousness of the reflection on the lawyer’s fitness to
practice.  This standard, however, contains no option between reprimand
and disbarment, such as suspension.  The sanction to be applied,
therefore, be it disbarment, reprimand, or something in between, requires an
exercise of judgment.  
¶ 25.        
In deciding between 5.11(b) and 5.13, we agree with respondent that 5.13
is the more fitting.  While we conclude her actions reflected adversely on
her fitness to practice law, we do not agree that the reflection was so serious
as to merit disbarment.  This opinion is supported by a review of the
Commentary to ABA Standard 5.11, which discusses a number of cases where
disbarment was proper, all of which involved significantly more serious conduct. 
See ABA Standards § 5.11, at 38, Commentary (citing cases where lawyers were
convicted of serious felonies and disbarment was imposed, including In re
Grimes, 326 N.W.2d 380 (Mich. 1982) (disbarring lawyer convicted of two
counts of federal income tax evasion and one count of subordination of perjury)
and Sixth Dist. Comm. of the Va. State Bar v. Hodgson, No. 80-18 (Va.
Disciplinary Bd., 1981) (disbarring lawyer who advised client that he could
make arrangements to have her husband killed in lieu of bringing child custody
suit)).
¶ 26.        
Like the Panel, we find that the ABA Standards offer guidance but are
not dispositive in this case.  We note that the sanctions are intended to
leave “room for flexibility and creativity in assigning sanctions in particular
cases.”  ABA Standards, Preface at 2.  Also,
as the Panel did, we turn to precedent from this Court to augment our analysis
under the standards.  While our precedents do not preclude disbarment as a
sanction in a case like this, neither do they compel it as a remedy. 
Rather, on careful review, our precedents suggest that a public reprimand is
most appropriate.  
¶ 27.        
We have generally deemed disbarment to be warranted only in cases of
very serious misconduct, such as significant criminal activity, misuse of
client information or funds, or deceit in the handling of client
information.  See, e.g., In re Hunter, 171 Vt.
635, 639, 769 A.2d 1286, 1291 (2000) (mem.)
(“We conclude that disbarment is the appropriate sanction to protect the
public.  Respondent engaged in serious criminal conduct, misused clients’
funds for his own benefit, and lied to clients, attorneys and the court to
cover up his misconduct.”); In re Burgess, 169 Vt. 533, 533, 725 A.2d
302, 302 (1999) (mem.) (disbarring already-suspended
attorney where suspension stemmed from federal convictions in California on
charges of contempt, interstate transportation of stolen property, and fraud,
and after incarceration, he violated probation and was again incarcerated; in
spite of probation condition prohibiting him from practicing law, he accepted
job with a law firm and ultimately defrauded the firm, resulting in additional
incarceration); In re Abell, 166 Vt. 620, 697
A.2d 340 (1997) (mem.) (disbarring
attorney who embezzled $408,260 from his law firm); In re Mitiguy, 161 Vt. 626, 641 A.2d 362 (1994) (mem.) (disbarring attorney who was
convicted of four counts of embezzlement for embezzling client funds and two
counts of false swearing); In re Joy, 158 Vt. 646, 650, 605 A.2d 850,
853 (1992) (mem.) (disbarring
attorney where he “abandoned [client] and then lied to her about the status of
her case,” despite attorney’s knowledge of obligations to client; attorney’s
abandonment of client’s case resulted in preclusion of client pursuing legal
remedies in court).  In contrast to the cases where we have ordered
disbarment, the conduct at issue here involved no criminal activity—either
charged or uncharged.  Furthermore, the conduct at issue was not related
directly to the handling of client matters or funds.  While respondent’s
behavior did involve harm to a client, the harm did not result from direct
misconduct with relation to a client’s case; it resulted from respondent
deceiving her employer, and thereby indirectly deceiving the client.  We
believe that these distinctions make disbarment an inappropriate
response.  
¶ 28.        
The suspension ordered by the Panel also fails to follow our earlier
cases.  ABA Standard 7.2 suggests that a lawyer be suspended when the
lawyer “knowingly engages in conduct that is a violation of a duty owed as a
professional, and causes injury or potential injury to . . .
the public or the legal system.”  If, however, the conduct is an isolated
instance of negligence that causes little or no actual or potential injury, the
ABA Standards recommend an admonition.  In re Warren,
167 Vt. 259, 261-62, 704 A.2d 789, 791 (1997).  
¶ 29.        
This Court generally has ordered suspension only in cases involving
behavior more egregious than the conduct in this case.  In In re Hongisto, the
respondent received two six-month suspensions, to run concurrently, for failing
to cooperate with investigations of a client-trust-account overdraft and
several client ethics complaints, failing to represent her client with
reasonable diligence, failing to communicate with a client, and violating
attorney licensing rules.  2010 VT 51, ¶¶ 11-12, ___Vt.
___, 998 A.2d 1065 (mem.).  In Hongisto, the hearing panel found a pattern of
misconduct and a significant disciplinary record as aggravating factors. 
In In re Blais,
the respondent was suspended for five months for misconduct consisting of five
separate instances of neglect of client matters and three instances of
misrepresentation.  174 Vt. 628, 630, 817 A.2d 1266,
1269 (2002) (per curiam).  We also
recognized as aggravating factors that the respondent had a dishonest or
selfish motive in committing this misconduct in that the neglect resulted from
his concern with bringing in money for himself and his firm, and it
demonstrated a pattern of misconduct.  Id.  He also had two
prior disciplinary offenses and was found to have substantial experience in the
practice of law (twenty-five years).  Id.  
¶ 30.        
In In re Wenk,
the respondent had received a private reprimand for his first violation for
neglect and misrepresentation, a public reprimand for his second violation for
the same behaviors and, finally, a six-month suspension for his third
disciplinary proceeding, again on the same basis: neglect and
misrepresentation.  In re Wenk, PCB File
No. 96.50, Decision No. 14 (Oct. 16, 2000), available at:
http://libraries.vermont.gov/law/prb/prbdecisions; see also In re Wenk, 165 Vt. 562, 678 A.2d 898 (1996) (mem.) (public reprimand for second
professional conduct violation).  He did not appeal from the third
disciplinary proceeding resulting in his suspension.  In the third
proceeding, the hearing panel noted the respondent’s substantial experience in
the practice of law (twenty-two years).  Wenk, PCB File No. 96.50,
Decision No.14.  Most recently, in Neisner,
this Court upheld the hearing panel’s finding that the respondent violated Rule
8.4(b) based on his conviction for impeding a public officer, a felony.  2010 VT 102, ¶ 13.  The Court ultimately determined
that a two year suspension, commencing on the date of the respondent’s interim
suspension and concluding a few weeks after this Court’s opinion issued, was
appropriate.  Id. ¶ 26.  As an
aggravating factor we considered that respondent had been in practice for
nearly twenty years.  Id. ¶ 19.
¶ 31.        
In each of the above examples, this Court found suspension to be an
appropriate sanction when the respondent had been found to violate the Rules
through neglect of a client and serious misrepresentation directly to the
client of matters being handled by the attorney.  In Neisner
we found the respondent’s behavior involved “the ‘serious criminal conduct a
necessary element of which includes intentional interference with the
administration of justice, false swearing, misrepresentation, and fraud.’ ”  Id.  ¶ 26 (quoting ABA Standards §
5.11(a), at 38).  
¶ 32.        
The critical question, therefore, is whether respondent’s misconduct was
of a similar character.  This determination is informed by reviewing the
aggravating and mitigating factors and the Panel’s application of ABA Standards
9.2 and 9.3.  The Panel found that respondent’s behavior included several
aggravating factors listed in ABA Standard 9.22: (1) respondent appeared to
have little remorse for her behavior; (2) the motive behind respondent’s
behavior was selfish; (3) the client harmed in this case was a vulnerable
victim; and (4) respondent’s answers to questions were vague and
nonresponsive.  The Panel found respondent’s lack of a prior disciplinary
record was a mitigating factor.   
¶ 33.        
The record evidence provides limited support for the Panel’s finding
that respondent “appeared to have little remorse for the situation.”  On
the one hand, respondent initially responded to the disciplinary investigation
by flatly denying any ethical misconduct, accusing her firm’s senior partner of
engaging in “payback” and “inappropriate conduct,” and castigating the client’s
“presumption.”  On the other hand, respondent later testified, “these
aren’t things that I’m very proud of, and certainly not things that I, you
know—I tried to take this situation and learn from it what I could and really
not dwell on any of it, so I’m terribly regretful.”  This is an expression
of remorse.  
¶ 34.        
The Panel found that respondent’s behavior was selfish, and it was.
 But it was mitigated, to be sure, by the fact that she acted not for
greed or glory, nor for malice or lucre, but apparently for romantic
reasons.  The harm to the firm and the client, however, remained the same. 

¶ 35.        
Ultimately, we conclude that respondent’s relatively brief professional
experience and her lack of other disciplinary actions militate in favor of the
more lenient sanction of a public reprimand.  The ABA Standards suggest
that public reprimand “is generally appropriate when a lawyer knowingly engages
in any other conduct that involves dishonesty, fraud, deceit, or
misrepresentation and that adversely reflects on the lawyer’s fitness to
practice law.”  ABA Standards, in ABA Compendium of Professional Responsibility
Rules and Standards 429 (2008 ed.).  Recently, in
Fink, the respondent was found to have violated duties he owed as a
professional to put a contingent fee agreement in writing and to charge a
reasonable fee for his services.  2011 VT 42, ¶¶ 19-23.  This Court
found that there was injury to the public at large and to the legal profession
because lack of written contingent agreements and excessive fees increased
public distrust of lawyers and decreased public confidence in the profession. 
Id. ¶ 36.  Having found actual injury
to the public and potential injury to the client, this Court sanctioned
respondent with a public reprimand.  In Warren the respondent was
publicly reprimanded for repeatedly contacting the wife of a man with whom the
respondent’s estranged wife was living, informing her of the situation, and
offering to help her get a divorce from her husband “at no cost to you but at
great expense to him.”  167 Vt. 259, 260, 704 A.2d 789,
790 (1997) (per curiam) (quotation marks omitted). 
The matter at hand is similar to Warren.  Warren had a selfish
motive for revenge, respondent had a selfish motive
for romance.  Neither disciplinary counsel, nor the Panel has provided a
compelling reason for treating respondent differently than Warren.  
¶ 36.        
There is no question that respondent was deceitful.  While her
deceit concerned how she was conducting her personal life, this was not a
purely personal failure, but a professional one.  See PRB Docket No.
2007-046, 2009 VT 115, ¶ 15 (reading Rule 8.4 as “applying only to
misrepresentations that reflect adversely on a lawyer’s fitness to practice
law” and citing other jurisdictions).  Her deceit harmed her firm and the
client.  However, respondent was immediately fired when the senior attorney
learned she had continued her relationship with the client’s husband. 
Representation of the client went on unaffected.  Respondent briefly
exposed the firm to a potential ethical violation, but, again, that potential
was soon extinguished.  There was no actual injury to the public. 
She is a relatively new attorney, in practice for less than seven years, with
no prior disciplinary record.  
           
The decision of the Professional Responsibility Board’s Hearing Panel that
respondent violated Rule 8.4(c) is affirmed.  Respondent is hereby
publicly reprimanded for her conduct.    

 


 

¶ 37.        
DOOLEY, J., dissenting.  I
concur with the majority’s conclusion that respondent engaged in deceit and
violated Rule 8.4(c) of the Rules of Professional Conduct.  However, given
the level of deceit involved, I cannot agree that a public reprimand is the
appropriate sanction.  I believe the suspension imposed by the Panel is
more fitting.  Accordingly, I respectfully dissent.  
¶ 38.        
The majority correctly identifies the ethical problem caused by
respondent’s conduct but inaccurately downplays the harm caused by her
actions.  By carrying on a romantic relationship with the client’s
husband, respondent clearly created a conflict of interest that was imputed to
her entire firm, causing it and its members to violate Rule 1.7(a)(2) of the Rules of Professional Conduct.  She did
this knowingly and intentionally—she did it surreptitiously after promising to
terminate the relationship.  
¶ 39.        
The majority seeks to justify its decision to impose a public reprimand
instead of a suspension by minimizing the seriousness of respondent’s conduct,
concluding that respondent only “briefly exposed the firm to a potential
ethical violation, but . . . that potential was soon extinguished.”  Ante, ¶ 36.  While it is true the firm’s
exposure to potential ethical violations was short, that is because the senior
attorney learned of respondent’s actions independently and terminated
her.  Had the client’s family not informed the senior attorney about
respondent’s overnight visit, there is no indication respondent would have
taken any action on her own to end the firm’s exposure to the ethical violation.  
¶ 40.        
The misconduct in this case involved deceit, and the impropriety of the
behavior was obvious.  After definitively being told that she could not
maintain both her position at the firm and her relationship with the opponent
of the firm’s divorce client, respondent chose to continue or restart relations
with the opponent-husband, while failing to disclose the ongoing relationship
and the conflict of interest it created.  The senior attorney relied upon
respondent’s promise to terminate the relationship with the husband and continued
to employ respondent and to represent the client, unaware of the renewed
conflict of interest.  Respondent understood the conflict of interest that
was created by her conduct as shown by her misguided request for a “conflict
wall.”  As the Panel found, and the majority recognized, respondent’s
actions damaged not only the client, but also damaged the firm and the senior
attorney’s relationship with the client.  Respondent’s behavior
illustrates a serious lack of judgment and lack of moral character that reflects
adversely on her fitness to practice law.  
¶ 41.        
As the majority recognizes, we give deference to the Panel’s
decision.  In giving deference, I concur with the Panel’s decision that a
reprimand is too lenient a sanction, given the level of deceit and the severity
of the potential ethics violation here.  Although I agree with the
majority that the ABA Standards are broad and subjective and do not lead
conclusively to any one sanction in this case, I believe they support a
suspension.  See ABA Center for Professional Responsibility, Standards
for Imposing Lawyer Sanctions (1986) (amended 1992).  ABA Standard 5.1
is the most applicable standard as it deals with conduct “involving dishonesty,
fraud, deceit, or misrepresentation.”  As the majority notes, the parties
point to different subsections of Standard 5.1.  Disciplinary counsel
advocates for ABA Standard 5.11(b), which states disbarment is generally
appropriate for “intentional conduct involving dishonesty, fraud, deceit, or
misrepresentation that seriously adversely reflects on the lawyer’s fitness to
practice.”  ABA Standard 5.13, for which respondent advocates, states that
a reprimand is “generally appropriate when a lawyer knowingly engages in any
other conduct that involves dishonesty, fraud, deceit, or misrepresentation and
that adversely reflects on the lawyer’s fitness to practice law.”  The
majority correctly acknowledges that whether or not the seriousness of an
attorney’s actions rises to the level covered by Standard 5.11(b) is an extremely
subjective determination.  Because this ABA Standard does not provide for
suspension, the severity of the sanction varies tremendously based on the
difference in the degree of conduct.  
¶ 42.        
I agree with respondent and the majority that Standard 5.13 is more
appropriate than 5.11(b); however, as the majority notes, the standards are
intended to leave “room for flexibility and creativity” in imposing
sanctions.  ABA Standards, Preface at 2. 
Taking into account the aggravating factors present in this case, I believe a
suspension is more appropriate than a reprimand under the ABA Standards. 
Respondent’s deceit was intentional, and it compromised the position of her
firm and the senior attorney.  Adding to the seriousness of this underlying
offense are the following aggravating factors: (1) respondent appeared to
have little remorse; (2) the motive behind respondent’s behavior was selfish;
(3) the client harmed in this case was a vulnerable victim; and (4)
respondent’s answers to questions were vague and non-responsive.*  Given the severity of the underlying
offense and the added aggravating factors, a suspension is appropriate.  
¶ 43.        
The imposition of a suspension is also most consistent with prior precedent
from this Court, which suggests a public reprimand would be too lenient. 
In general, meaningful comparisons of attorney sanction cases are difficult as
the behavior that leads to sanctions varies so widely between cases.  That
said, because respondent’s conduct involved obvious
deceit and she knowingly put all members of her firm in violation of ethical
standards, the conduct at issue here is more serious than behavior for which we
have issued reprimands.  
¶ 44.        
The majority tries to liken respondent’s actions to the behavior that
resulted in a public reprimand in In re
Warren, 167 Vt. 259, 704 A.2d 789 (1997) (per curiam). 
In that case, the respondent sent three letters to the wife of the man with
whom his estranged wife was living.  These letters asked the wife
repeatedly to contact the respondent and offered the wife help in getting a
divorce from her husband “at no cost to you but at great expense to him.”
 Id. at 260, 704 A.2d at 790.  We
found the respondent violated the Code of Professional Responsibility in Warren
because the content of his letters made sense only as an offer to use his
knowledge of the law and legal experience in an unethical manner, id. at 262, 704 A.2d at 791; however, we also noted there was
little actual injury as a result of the respondent’s conduct.  Id.
at 262, 704 A.2d at 792.  The majority suggests
that this case is controlled by Warren because the respondent in Warren
“had a selfish motive for revenge,” and “respondent had a selfish motive for
romance.”  Ante, ¶ 35.  While
the subject matter and motives involved in the two cases might be similar, the
actions taken by respondent here were significantly more egregious.  In Warren,
the respondent violated the Code of Professional Responsibility, and he alone risked
suffering any consequences.  He allowed his emotions to drag him into a
violation of the Code, as opposed to respondent in this case, who allowed her
emotions to drag her entire firm into a serious ethical violation. 
Furthermore, while evidence from his letters suggested the respondent in Warren
knew his conduct was improper, he did not act with the same level of deceit as
respondent here.  Here, respondent was told, point blank, that she must
end her relationship, and she assured the senior attorney that she had done
so.  Realizing that the senior attorney had relied on
her representation that the relationship had ended, respondent then recommenced
relations with the husband without making any effort to inform the senior
attorney or her firm.  
¶ 45.        
Other cases from this Court have also imposed reprimands for less
serious behavior than the conduct at issue here.  See,
e.g., In re Sinnott, 2004 VT 16, ¶ 10,
176 Vt. 596, 845 A.2d 373 (mem.) (assigning
sanction of public reprimand and restitution when “the panel concluded that
respondent had violated Vermont Rules of Professional Conduct 1.5 by charging
an unreasonable fee which it labeled as a ‘nonrefundable retainer’ ”); Farrar,
2008 VT 31, ¶¶ 3, 12 (concluding public reprimand appropriate where attorney’s
bookkeeper transferred money each month from firm’s business account to client
trust account and then back to business account to ensure there would be
sufficient funds in business account each month to meet payroll—bookkeeper
reconciled trust account monthly and respondent had no selfish or dishonest
motive for commingling money with clients’ property).  
¶ 46.        
I agree that there are some cases in which this Court has ordered
suspension for more egregious behavior than the actions in this case. 
See, e.g., In re Hongisto, 2010 VT 51,
¶¶ 11-12, ___ Vt. ___, 998 A.2d 1065; In re Neisner,
2010 VT 102, ¶ 13, ___ Vt. ___, ___ A.3d ___.  However, respondent’s
behavior is on a par with other behavior that has resulted in the imposition of
a suspension.  For example, in In re
Taylor, this Court considered a recommendation from the Professional
Conduct Board that the respondent be suspended from the practice of law for six
months based on his conduct before the family court, which included his failure
to pay spousal maintenance and child support and his failure to comply with
related family court orders.  171 Vt. 640, 640-41, 768
A.2d 1273, 1274 (2000) (mem.).  We
imposed a six-month suspension in Taylor based on a determination that
the respondent’s behavior demonstrated conduct prejudicial to the
administration of justice, conduct adversely reflecting on fitness to practice
law, and a disregard of court orders.  Id.  I believe the
conduct at issue here is comparable to that in Taylor.  While respondent
here did not openly violate court orders, she acted deceitfully and violated
the agreement she made with her senior attorney.  I again emphasize that
an important factor in this case is that respondent knowingly put her entire
firm into an ethical violation.  Other cases from this Court have also
imposed suspensions for behavior that calls into question an attorney’s fitness
to practice to the same degree as respondent’s conduct here.  See, e.g., In re Free, 159 Vt. 625, 625-26, 616 A.2d 1140,
1140-41 (1992) (mem.) (suspending
respondent for six months for three counts of knowingly failing to file Vermont
income tax returns where respondent provided full and free disclosure to bar
counsel and exhibited cooperative attitude in proceedings, where penalties for
criminal conduct were also imposed, but where respondent had a disciplinary
record, multiple offenses, and substantial experience in practice of law).
¶ 47.        
The Panel imposed a suspension in this case, and we must give deference
to that decision.  The seriousness of respondent’s actions, combined with
aggravating factors, make a period of suspension the most appropriate
sanction.  Accordingly, I respectfully dissent.  
¶ 48.        
I am authorized to state that Chief Justice Reiber
joins this dissent.
 
           
            BY THE
COURT:
 
 
Dissenting:                                                                 
___________________________________
                                                                                   
Denise R. Johnson, Associate Justice
 
___________________________________             
__________________________________
Paul L. Reiber,
Chief
Justice                                     
Marilyn S. Skoglund, Associate Justice
 
___________________________________             
__________________________________
John A.
Dooley,
Associate
Justice                             
Brian L. Burgess, Associate Justice    
 





*  I accept the
Panel’s analysis of the aggravating and mitigating factors as supported by the
evidence.  The majority ignores the standard of review and does not
provide sufficient support to suggest that these findings were clearly
erroneous.  See A.O. 9, Rule 11(E); In re Farrar, 2008 VT 31, ¶ 5,
183 Vt. 592, 949 A.2d 438 (2008) (mem.).  The
Panel was in a much better position than this Court to determine whether
respondent showed remorse or whether her answers were evasive.



