Friday, November 6, 2009
Not sure whether or not we previously posted this admonition from Vermont, but it does serve as a cautionary tale for taking on a matter outside of the attorneys area of competence. The facts:
Respondent represented a large corporation, which was sued for an employee's alleged misdeeds that occurred decades prior to the litigation. The discovery plaintiff's counsel requested required examination and analysis of documentation that was stored in different locations and not well organized. Respondent's client did not have an effective file management system, and while much of the requested discovery material was provided to plaintiff, it was not always completely responsive to plaintiff's requests.
Respondent has substantial experience in the practice of law, but limited experience in complex litigation. He was not well enough organized to manage large and complex litigation. He essentially worked as a sole practitioner, with a part-time associate and a secretary. He often relied on his client to locate and produce the requested documentation, with no effective way to ensure that production was complete. In fact, the discovery produced was not always complete and plaintiff's counsel expended additional time and resources to determine what was missing from the production.
As the litigation progressed, plaintiff's counsel learned of documents that had not been produced in the pending case, but had been previously provided voluntarily to a state agency during a related investigation. These documents were clearly relevant to the litigation and should have been produced in discovery.
Respondent's failure to locate and produce in a timely manner all of the required documents was not for the purpose of delaying the litigation or obstructing access, but for a time did have that effect. Ultimately, discovery was completed with around 4000 pages of documents disclosed. Many of these documents were already available to plaintiff through discovery in other cases. The underlying case was settled in a manner favorable to the plaintiff. While the discovery dispute delayed plaintiff's positive outcome, it did not otherwise injure plaintiff.
Respondent has no prior disciplinary record, cooperated with disciplinary counsel, and had no selfish or dishonest motive in failing to promptly and fully comply with the discovery requests. The discovery difficulties were the result of disorganization on the part of both respondent and his client, as well as respondent's lack of experience in complex litigation and his failure to promptly secure from the client funding for more assistance.
Admonition (which in Vermont does not identify the attorney by name) was deemed appropriate:
Respondent's conduct did not result in actual substantial harm to his client, the public, the legal system, or the profession. Plaintiff in the underlying litigation ultimately received all the requested discovery documentation and achieved a favorable settlement of his claim. The parties have stipulated that respondent now recognizes that his responses to the discovery requests were inadequate, and "there is little likelihood of repetition by the lawyer." Respondent's violations were not intentional; his omissions resulted from disorganization, over-reliance on his client, and his lack of experience in complex litigation—but not from an intent to conceal these documents. Further mitigating respondent's actions, he has no prior disciplinary record and fully cooperated in the disciplinary proceedings. See id. § 9.32(a), (e). Under these circumstances, we conclude that the misconduct was minor and that admonition is the appropriate sanction.