Appeal Draws Increased Sanction

The Vermont Supreme Court increased the sanction in a bar discipline matter that the attorney had appealed

Respondent appeals a disciplinary hearing panel’s decision, which concluded respondent violated numerous professional conduct rules and imposed a one-year suspension with one year of probation and reinstatement subject to certain conditions. On appeal, respondent argues that he is entitled to a new hearing or a reduced sanction because his rights to due process were violated and some findings were not supported by the record. We conclude that there was no violation of due process and the violations are all supported. Given the number and type of violations, respondent’s lack of cooperation and remorse, and the harm caused by respondent’s action, we impose a two-year suspension and one-year probationary period, with reinstatement subject to the conditions imposed by the hearing panel.

Misconduct

In addition to the general mismanagement of his IOLTA account, there were concerns related to respondent’s representation of two clients. Respondent represented G.A. in a lawsuit against a multi-national company for employment discrimination based on age. G.A. signed a retainer agreement and gave respondent $2500 to be held in trust for outstanding fees. Respondent did not keep the retainer in his IOLTA account and instead deposited it in his firm operating account. Respondent filed a three-count complaint, and after the lawsuit was dismissed at the summary judgment stage, respondent withdrew as G.A.’s attorney in March 2019. When representation concluded, respondent did not return the unspent portion for more than seventeen months despite reminders from Special Disciplinary Counsel. The retainer agreement provided that G.A. was responsible for fees and expenses to be billed monthly. Each bill stated that the full balance was due in ten days and respondent repeatedly pressured G.A. to pay off his balance, including threatening to immediately withdraw from his case. The threats caused G.A. and his wife significant financial and emotional stress. Respondent knew that the rules prohibited him from immediately withdrawing from representing G.A. in an ongoing case but did not inform G.A. regarding the withdrawal process, including that respondent would have to file a motion and seek court approval to withdraw.

J.H. retained respondent’s services in a lawsuit against an educational institution for employment discrimination based on race and national origin. Before entering an agreement, J.H. sought an estimate of fees and expenses. Respondent estimated between $12,000 and $28,150 depending on the defendant’s conduct and if the case proceeded to trial. When J.H.’s case was dismissed on summary judgment, she had incurred approximately $90,000 in fees and expenses. She incurred $20,000 in additional fees and expenses for the appeal. The retainer agreement indicated that J.H. was responsible for reasonable litigation expenses. J.H. challenged some of respondent’s expenses as unnecessary, including time spent on the case after respondent missed a discovery deadline and the cost of a hotel in Boston after depositions ended at 5:30 p.m. J.H. provided respondent with a $5000 retainer at the beginning of his representation. In May 2017, after representation concluded, J.H. asked for a final billing statement and return of her retainer. Respondent did not return J.H.’s retainer until September 2017.

Respondent challenged the appointment of a Special Disciplinary Counsel

The panel did not abuse its discretion in finding that respondent had not met that heavy burden. Respondent moved to disqualify SDC or have his case dismissed due to statements SDC made about respondent’s counsel and a trial judge in a responsive pleading and SDC’s alleged nondisclosure of communication with complainant G.A. We need not delve too deeply into the details of these allegations because respondent has not identified any prejudice that has resulted to him from the acts respondent alleges were objectionable.

The court also rejected challenges to the findings and legal conclusions by the hearing panel.

Sanction

We conclude that a two-year suspension followed by a one-year probationary period is warranted in this case. Respondent committed five violations of the professional rules. Respondent violated duties owed to his clients and engaged in intentional and knowing behavior that caused real injury to his clients. This harm included the following. Respondent’s failure to timely return retainers to G.A. and J.H. caused his clients a great deal of stress and the loss of their money for seventeen and four months, respectively. J.H. paid more than four months’ interest on a loan she would not have paid if respondent had promptly returned funds. Respondent withheld information from G.A. regarding the withdrawal process, causing G.A. to work weekends and sell off property to accelerate payment to respondent. G.A. and his wife experienced financial and emotional stress because of respondent’s behavior. In addition, respondent negligently overcharged J.H. in attorney’s fees and expenses.

Respondent’s attempts to minimize his actions and the harm caused to his clients is particularly concerning. On appeal, respondent continues to demonstrate no remorse for his actions or exhibit any recognition for the harm caused both to his clients and the legal profession in general. Respondent characterizes the injuries here as minimal, alleging that the extent of the actual injury involved “small sums of interest.” Respondent views the amounts from his perspective and fails to consider how the loss of this money impacted his clients in their circumstances.

Justice Carroll dissented and would impose disbarment. (Mike Frisch)