Petition Amendment Denied

A Vermont Professional Responsibility Program Hearing Panel denied a motion of Disciplinary Counsel to amend a petition charging misconduct

The Petition in this matter charged Respondent with violating Vermont Rule of Professional Conduct 8.4(b) by engaging in lewd and lascivious conduct towards J.H. on July 17, 2017. The Proposed Amended Petition does not merely, for example, allege that Respondent’s July 17, 2017, conduct towards J.H. violated other provisions of the Vermont Rules of Professional Conduct, or allege additional facts that support the charge that Respondent violated Vermont Rule of Professional Conduct 8.4(b). Rather, in the Proposed Amended Petition, Disciplinary Counsel seeks to formally charge Respondent with violating Vermont Rules of Professional Conduct 8.1(a) and 8.4(c) by making a false or misleading statement of fact to former Disciplinary Counsel in August 2018 and with violating Vermont Rules of Professional Conduct 3.3(a)(1) and 8.4(c) by making a false or misleading statement or omission of fact to a tribunal in November 2023.

The nature of the charges, dishonesty, is wholly dissimilar from the nature of the initial charge, criminality. The charges are based on a wholly separate constellation of facts – indeed 19 paragraphs of newly-alleged facts – than the initial charge. In particular, while the alleged August 2018 conduct occurred in the course of this disciplinary matter, the alleged November 2023 conduct occurred in the course of a Bennington County Superior Court proceeding more than six years after the July 17, 2017, conduct for which Respondent was charged in the Petition.

There is no indication in Disciplinary Counsel’s filings that a different hearing panel has found probable cause to believe Respondent committed these distinct violations. Permitting Disciplinary Counsel to formally charge Respondent with the violations without submitting a written application and affidavit setting forth a factual basis for them to a different hearing panel to conduct a probable cause review would circumvent this requirement, deprive Respondent of the process he is due under Administrative Order No. 9, and prejudice his legal rights.

Accordingly, Disciplinary Counsel’s Motion to Amend Petition of Misconduct is DENIED.

Standard

Under Vermont law, a hearing panel must grant a party leave to amend a pleading liberally if no prejudice to the other party would result. See In re PRB No. 2013- 145, 2017 VT 8, ¶ 1, 165 A.3d 130, 136. The Hearing Panel concludes that the proposed amendment would result in prejudice to Respondent.

The original petition was filed in February 2019.

VT Digger reported on related criminal charges.

The Vermont Attorney General’s Office has resolved a 2019 sexual misconduct case against a Windsor County lawyer by referring him to a pretrial diversion program — a decision that the local state’s attorney opposed and that has raised the concerns of the state-affiliated crime victim center.

(Mike Frisch)