Friday, June 8, 2018

Vermont Follows New Hampshire

Reciprocal disbarment has been imposed by the Vermont Supreme Court based on sanctions ordered in New Hampshire

 Respondent stipulated to the underlying facts in the New Hampshire matter and to his complicity therein. We summarize the New Hampshire Supreme Court’s findings here. In 2001, respondent and another lawyer persuaded a couple to hire them to pursue additional litigation in a home-construction case although the matter had already been the subject of an arbitration award. Respondent filed two actions. The first action challenged the arbitration award, and it was dismissed as untimely filed. Respondent filed the second action against various alleged subcontractors. The subcontractors moved to dismiss on res judicata and statute-of-limitations grounds and they sought attorney’s fees. Respondent essentially ignored these motions; he filed no responses and did not inform the clients that they had been filed. This pattern continued even after some of the motions were granted. Respondent did not attend a status conference in the case. He later informed the clients that the construction case might not be successful. He lied about having discussed certain issues with the clients and neglected to tell them that the case had already been effectively dismissed and that the court was preparing to award attorney’s fees. The court awarded approximately $16,000 in attorney’s fees. Respondent and his co-counsel then discussed how to pay the fee awards without informing their clients so as to avoid a malpractice claim.

Eventually, respondent and his co-counsel informed the clients about the attorney’s fee award but did not disclose the amount.

 He had admitted the violations

 The rules that respondent admitted to violating are substantially similar to the Vermont rules. To the extent that respondent argues that his personal struggles support the imposition of different discipline in this state, the New Hampshire Supreme Court considered these issues in reaching its decision and nonetheless concluded that disbarment was appropriate. It would be unfair for this Court to consider any evidence that post-dates the New Hampshire decision because this would effectively reward respondent for failing to report his New Hampshire disbarment to this Court. See id. ¶ 3 (stating that "[i]n considering reciprocal discipline," Court is "limited to the ‘face of the record from which the discipline is predicated’ " and does "not consider any explanations or evidence" not found in out-of-state record (quoting A.O. 9, Rule 20(D)). Even if we were to consider later events, however, we would not conclude that the grounds set forth in Rule 20(D) are satisfied.

Because the grounds set forth in Rule 20(D) are not satisfied, the New Hampshire Supreme Court’s decision "establish[es] conclusively the misconduct for purposes of a disciplinary proceeding in this jurisdiction" and the imposition of identical discipline is warranted.

(Mike Frisch)

Bar Discipline & Process | Permalink


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