Sunday, February 14, 2021

The Meaning Of Disadvantageous Use

The Vermont Supreme Court Court has imposed a three-month suspension and, in so doing, provides guidance on what constitutes "disadvantageous use" of information against a former client in violation of Vermont Rule 1.8(b)

The attorney was admitted in 1986 and has no prior discipline.

He initially worked in a small firm before opening his solo practice about twenty years ago. Respondent’s primary area of practice is real-estate law, but he also offers additional services “typical of small-town Vermont lawyers.”

The charges related to the attorney's alleged interference with a property closing of a former client

Respondent is correct that only uses of representation-related information which disadvantage a client violate Rule 1.8(b). See V.R.Pr.C. 1.8, cmt. 5 (“The rule does not prohibit uses that do not disadvantage the client.”). However, respondent misapprehends the meaning of “disadvantage” as used in Rule 1.8(b). In arguing that a showing of disadvantage requires “actual harm,” respondent conflates “disadvantage,” as required to show a violation of 1.8(b), with injury, a factor we consider in determining the appropriate sanction where a violation has been established. See Disadvantage, Merriam-Webster Online Dictionary [] (explaining that “disadvantage” may mean both “loss or damage especially to reputation, credit, or finances” or “an unfavorable, inferior, or prejudicial condition,” i.e., “a quality or circumstance that makes achievement unusually difficult”). A finding of “disadvantage” does not require that a client experience material damage or loss as a result of her attorney’s use of representation-related information; rather, disadvantage may be found where added difficulty or prejudice arise from the same.

Thus, contrary to respondent’s suggestion, the purchase did not have to fall through, be substantially delayed, or take place on terms less favorable to wife to support a finding that wife was disadvantaged by respondent’s conduct..

Rather, it was sufficient that respondent’s self-serving conduct put wife in a less-advantageous position relative to the closing on the property than she had been in before respondent intervened to promote his own interests. By filing the writ, respondent substantially reduced the likelihood of a timely closing, and risked undermining the sale entirely to further his unrelated pursuit of compensation from a former client. That, in itself, was a disadvantage to wife.


In short, there is ample evidence from which the panel could draw the very reasonable inference that when respondent used information gleaned from his professional representation of wife to obtain a writ of attachment on the property she was under contract to purchase, she experienced unnecessary worry, stress, anxiety, and concern.


Trust and confidence form the foundation of the attorney-client relationship. See 2 Mallen and Smith, Legal Malpractice § 14.1, at 230 (4th ed.) (“The fiduciary obligations are the foundation of the attorney-client relationship and enable a client to fully reveal confidences and to repose unhesitating trust in the attorney’s ability to represent the client’s interests diligently and competently.”). In straying from these fundamental obligations, an attorney risks eroding public trust in the profession as a whole—a trust without which our legal system cannot function. People ex rel. Dep’t of Corps. v. Speedee Oil Change Sys., Inc., 980 P.2d 371, 379 (Cal. 1999) (“The effective functioning of the fiduciary relationship between attorney and client depends on the client’s trust and confidence in counsel.”). Therefore, the appropriate sanction must be weighty enough to counter this serious risk. See Accident & Injury Med. Specialists, P.C. v. Mintz, 2012 CO 50, ¶ 25, 279 P.3d 658 (en banc) (describing attorney-client relationship as “distinctly a fiduciary relationship . . . founded up a special trust and confidence” and explaining that “[t]o such trust and confidence, attorneys are governed by rules of conduct overseen by [the state Supreme Court]”). Here, “[m]erely to express disapproval, or censure, would be to treat lightly matters vitally affecting the integrity of the profession and the interests of society.” Themelis, 117 Vt. at 24, 83 A.2d at 510-11 (imposing three-month license suspension as sanction). We conclude that a three-month suspension is necessary here, not as punishment, but in order to maintain public confidence in our legal institutions.

(Mike Frisch)

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