No Second Bite

The Vermont Supreme Court has imposed reciprocal disbarment of an attorney sanctioned by consent in North Carolina

The North Carolina disbarment order recounts the following. Respondent was admitted to practice in North Carolina in 2004 and practiced in North Carolina thereafter. He acted as an administrator for the estate of a client, L.S. Between November 2009 and September 2011, respondent misappropriated $21,500 of funds entrusted to him on behalf the estate by disbursing them to himself without court authorization. Between February 2011 and February 2012, respondent filed false and inaccurate accountings for the estate with the court clerk. On August 22, 2013, the court approved legal fees related to services respondent provided for the L.S. estate in the amount of $18,232.50.

The North Carolina court concluded that by misappropriating funds from the L.S. estate, respondent used entrusted property for the benefit of someone other than the legal or beneficial owner in violation of North Carolina Rule of Professional Conduct 1.15-2(j) and he engaged in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of North Carolina Rule of Professional Conduct 8.4(c). He also engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation in violation of Rule 8.4(c) by filing false and inaccurate accountings with the court clerk. His misconduct constituted grounds for discipline and warranted disbarment. The court accepted respondent’s surrender of his license and disbarred him. Respondent did not notify Vermont Disciplinary Counsel that he was disciplined in another state as required Rule 24(A).

Respondent had objected to reciprocal disbarment

Respondent contends that the imposition of the same discipline by the Court would result in grave injustice and that the established misconduct warrants substantially different discipline in Vermont. Respondent offers an explanation for his behavior and for his decision to consent to disbarment in North Carolina. He relies heavily on allegations that are not part of the “face of the record from which the discipline is predicated.” A.O. 9, Rule 24(D). There are no findings by the North Carolina court supporting respondent’s explanations for his conduct. Relying on his version of events, respondent argues that the appropriate reciprocal discipline is a public reprimand and possibly probation.

The court

We agree with Disciplinary Counsel that respondent failed to make the necessary showing under Rule 24(D) based on the face of the record upon which discipline was imposed. As recognized in the Annotated Standards for Imposing Lawyer Sanctions, “[t]he purposes of reciprocal discipline are to prevent a lawyer admitted to practice in more than one jurisdiction from avoiding the effect of discipline by simply practicing in another jurisdiction, to prevent relitigation of misconduct that already has been established in another jurisdiction, and to protect the public from lawyers who commit such misconduct.” E. Rosen, Annotated Standards for Imposing Lawyer Sanctions, Standard 2.9, 112 (2d ed. 2019). This is not the appropriate place to relitigate the consented-to sanction imposed in North Carolina. Respondent relies on materials and arguments that are not part of the North Carolina disciplinary record. Respondent’s explanation of his behavior in North Carolina comes too late. He waived these arguments by not raising them to the North Carolina court in 2015 and allowing that court the opportunity to consider them, and by agreeing that disbarment was the appropriate sanction for his misconduct. On the face of the available record, we reject the argument that imposition of a similar punishment would be a grave injustice or that the “misconduct established warrants substantially different discipline in this state.” A.O. 9, Rule 24(D)(4). We thus impose the same discipline as North Carolina and disbar respondent from the practice of law in Vermont effective as of the date of this order.

(Mike Frisch)