In re Rosenfeld

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 89-513


In re Alan D. Rosenfeld                      Supreme Court

                                             Original Jurisdiction

                                             September Term, 1991


Jeffrey L. Amestoy, Attorney General, and Marilyn Skoglund, Assistant
  Attorney General, Montpelier, for State

William A. Hunter, Ludlow, for respondent

J. Eric Anderson, Manchester Center, for amicus curiae Professional Conduct
  Board


PRESENT:  Allen, C.J., Gibson and Dooley, JJ.


     PER CURIAM.   The Attorney General brought a nine-count presentment in
this Court against attorney Alan Rosenfeld, alleging that he violated the
Code of Professional Responsibility.  The alleged violations were in
connection with three civil cases in which he represented a party in
litigation, and a case in which he was a pro se plaintiff.  We referred this
matter to a committee for fact-finding, legal conclusions and recommended
action.  See Permanent Rules Governing Establishment of Professional Conduct
Board and its Operation, Administrative Order 9, { 18(d). (FN1) The committee
consisted of Ritchie E. Berger, Esq., chairman, Patricia A. Barr, Esq., and
William J. Donahue, Esq.  Evidence was taken over three days in November
1990, and on December 13, 1990, the committee issued findings and
conclusions.  It concluded that three of the counts had been proven by clear
and convincing evidence.  On one of the counts, a majority of the committee
found that it had not been proven by clear and convincing evidence, and
Chairman Berger dissented.  The Attorney General withdrew one of the counts,
and the committee concluded unanimously that the remainder had not been
proven.  The committee held a separate sanction hearing on December 14,
1990, and on December 20, 1990, filed a recommendation that respondent be
publicly censured, that he be required to complete at least twenty hours of
continuing legal education (ten in ethics, ten in office management) over an
eighteen-month period, and that he be required to take a multistate
professional responsibility examination and remain licensed to practice only
if he passed it.
                                    I.
     The Attorney General appeals the committee's failure to find a breach
of the Code of Professional Responsibility in Count II(A) of the
presentment, the matter on which there was not a unanimous opinion.  The
Attorney General further urges that we not accept the recommended sanction
and instead suspend respondent from the practice of law for an appropriate
period.
     In order to address the sanction issue, we include a complete statement
of the relevant facts bearing on the counts for which the committee found
violations of the Code, as well as the count in dispute.
                                   II.
                            COUNTS II(B) & (C)
     These related counts arise out of respondent's representation of
Katrina Yurenka in Sacks v. Yurenka, a parentage case, in which custody and
visitation were contested.  Respondent was retained in May of 1987 with a
$500 retainer and an agreed rate of compensation of $50 per hour.  Shortly
thereafter, the rate was reduced to $25 per hour because of Ms. Yurenka's
financial difficulties.  There was no discussion of whether the client was
to receive a detailed, itemized bill from respondent, although the committee
found that an attorney practicing in Vermont should "maintain records
adequate so that, upon request, a client may promptly be provided with a
detailed, itemized bill for legal services provided."
     Respondent's record-keeping did not allow him to present an itemized
bill.  On August 7, 1987, respondent billed Ms. Yurenka for legal services
rendered without detailing those services.  She paid him in October.  In
December, Ms. Yurenka hired another lawyer who asked respondent to notify
the court of his withdrawal and send her Ms. Yurenka's file.  Respondent
sought confirmation from Ms. Yurenka that she was discharging him and wanted
him to withdraw, but added that he would withdraw by the end of December if
he did not hear from her.  The client responded without addressing
respondent's inquiry.  She requested an itemized bill of the services he had
rendered.  At the end of January, 1988, respondent withdrew from the court
action.  In February, he wrote the client's new lawyer that he wanted to
resolve any questions over his fee, adding:
         I will be able to prepare a specific accounting for Ms.
         Yurenka of all my work for her.  To my mind, however,
         this will be a substantial change in the agreement that
         we had.  I can assure you that I spent substantially
         more time on the case than I have been paid for, and if
         requested to prepare a complete accounting I will do so
         and then expect payment for whatever balance it turns
         out remains unpaid.  As a rough estimate, I had told Ms.
         Yurenka that the unbilled portion would be about thirty
         three percent extra.

The new lawyer responded that she found respondent's threat to increase his
bill to be inappropriate and again sought Ms. Yurenka's file.  Respondent
began transmitting the file on March 25, 1988.
     The committee found that respondent violated the Code of Professional
Responsibility in two respects in connection with the Yurenka case. (FN2) It
concluded that respondent's threat to increase his bill if he was required
to create an itemized statement was "conduct that adversely reflects on
[respondent's] fitness to practice law" in violation of DR 1-102(A)(7).  It
concluded that the delay in forwarding Ms. Yurenka's file to the new lawyer
was "excessive and unjustified" and was also a violation of DR 1-102(A)(7)
and of DR 2-110(A)(2) (a withdrawing lawyer must take "reasonable steps to
avoid foreseeable prejudice to the rights of [the] client," including
"delivering to the client all papers and property to which the client is
entitled").
                                  III.
                                COUNT II(A)
     This count, on which the committee divided, also arose out of
respondent's representation of Katrina Yurenka.  In June 1987, the
Washington Superior Court issued a temporary order giving temporary custody
of the child to Ms. Yurenka, but awarded the father visitation each weekend
and set the final hearing for July 14, 1987.  On July 7, 1987, Ms. Yurenka
became concerned that the father had sexually abused the child.  She went to
the Washington Superior Court seeking a relief-from-abuse order to prevent
further contact between the child and the father.  By chance, she met
respondent at the court, and he helped her prepare the proper paperwork.
     The relief-from-abuse petition was filed on July 10th, and the
attorney for the father of the child was notified of the filing.  The court
decided to consolidate it with the hearing on permanent custody to be held
on the following Tuesday, July 14, 1987.  On learning that the matter would
not be heard until after the weekend, respondent and Ms. Yurenka conferred
on what to do about the father's right to visitation over the weekend.
     Respondent told Ms. Yurenka that he could not advise her to violate the
outstanding visitation order.  Nevertheless, he told her that he did not
think the judge would hold it against her if she denied visitation.  He
informed her "that it was his guess that . . . [the judge] did not expect
her to permit . . . [the father] to exercise his parent-child contact for
the coming weekend."  To avoid a confrontation, he advised her not to be at
home if she decided to withhold visitation.  Respondent thought that his
client would not allow visitation that weekend, and his expectation proved
correct.
     The majority of the committee found that respondent was properly
sympathetic to his client's concerns and was honest with her.  It noted that
he failed to discourage her from violating the order, adding "his failure .
. . was not blunted by his self-serving disclaimer that he could not
counsel a violation of the order."  The committee concluded that respondent
did not violate DR 7-106(A) (a lawyer shall not advise a client to disregard
a ruling of a tribunal made in the course of a proceeding, but may take
steps in good faith to challenge the validity of the ruling) because of the
jeopardy his client perceived in granting visitation, the inability to place
the matter before the court prior to the weekend visit, the loss of only one
weekend visit, and the short time prior to the court hearing.  The committee
also concluded that similar situations arose often in family practice and
many attorneys "choose to assure the safety of the child over the sanctity
of the court order."
     The chairman of the committee dissented, concluding that the failure of
respondent to advise Ms. Yurenka that she was legally obligated to comply
with the court order effectively guaranteed that she would violate the
order.  He rejected the application of a different standard for family law
practitioners and concluded the conduct violated DR 7-106(A) as well as DR
1-102(A)(5) & (A)(7).
     The Attorney General argues that the committee's conclusion is
inconsistent with its findings and should be reversed.  Respondent urges
that we uphold the conclusion on the basis that the evidence shows he did
not "advise" his client to disregard the court's order.  See DR 7-106(A).
We first emphasize the proper standard for our review.  The committee was
the trier of fact and "it was for the committee to determine the weight of
the evidence and the persuasive effect of the testimony."  In re Wright, 131
Vt. 473, 490, 310 A.2d 1, 10 (1973).  The committee's findings must be
upheld if they are "clearly and reasonably supported by the evidence."  Id.
     The committee had to decide as a factual matter whether respondent
advised Ms. Yurenka to violate the visitation order of the court.  Often
this determination is difficult because the precise words used may not
reflect fully the message conveyed.  As the Supreme Court of New Jersey
found in a case where a lawyer told a client how he could skip bail:
         To the extent that respondent did not intend his remarks
         to constitute advice to a client, it nevertheless had
         all of the indicia of improper counseling.  His
         communication is one that reasonably could be understood
         to convey improper advice.

Matter of Mintz, 101 N.J. 527, 535, 503 A.2d 290, 295 (1986).  See also
Committee on Professional Ethics v. Crary, 245 N.W.2d 298, 307 (Iowa 1976)
(respondent's participation in successful effort to frustrate a custody
order is circumstantial evidence that he counseled the client to disobey the
order).
     We read the findings of the majority of the committee as resolving the
fact question against respondent.  The committee did not adopt the theory
that respondent technically complied with DR 7-106(A) because he did not
advise the client to violate the order.  Indeed, this theory was specifi-
cally rejected with a finding that respondent's failure "was not blunted by
his self-serving disclaimer that he could not counsel a violation of the
order."  It is inconsistent with the committee's conclusions that respondent
expected Ms. Yurenka to violate the visitation order and counseled her to be
away from her house if she violated the order.
     We are left, then, with the committee's conclusion that respondent's
conduct was justified by the danger present to the children, the short
duration of the violation, and the inability to obtain other relief.  While
we agree that these factors should mitigate any sanction imposed, we see
nothing in the Code of Professional Responsibility that permits respondent's
conduct.  See In re Goodrich, 111 Vt. 156, 159-60, 11 A.2d 325, 326 (1940)
(ignorance of ethical requirements does not excuse misconduct but operates
to mitigate its seriousness).  All of the facts here presented had been
placed before the superior court in Ms. Yurenka's request for relief from
abuse, and that court refused to act to change the outstanding custody and
visitation order to suspend the father's visitation until the hearing on the
permanent order.  Respondent's obligation was to "trust in the efficacy of
the legal system," to resolve the custody and visitation dispute, and
counsel the client accordingly.  The Florida Bar v. Wishart, 543 So. 2d 1250, 1252-53 (Fla. 1989), cert. denied, ___ U.S. ___, 110 S. Ct. 839
(1990).  We do not agree that this obligation is different for attorneys
handling family matters.  See A. Haralambie, Handling Child Custody Cases {
9.23 at 135 (1983) ("Clients should always be counseled to work within the
proper legal procedures in obtaining custody and visitation, without
resorting to self-help.").  Indeed, the need is greater in family matters
where the emotional commitment of the parties to the rightness and justice
of their cause may lead to the use of self-help, which undercuts the ability
of the courts to resolve disputes in a meaningful or effective manner.
     Based on the committee's findings of fact, we conclude that the
Attorney General demonstrated ethical misconduct as alleged in Count II(A)
of the presentment.  We find that in connection with his representation of
Ms. Yurenka, respondent violated DR 7-106(A), his conduct was prejudicial
to the administration of justice in violation of DR 1-102(A)(5), and
adversely reflected on his fitness to practice in violation of DR 1-
102(A)(7).
                                   IV.
                                COUNT IV(A)
     This count arises out of respondent's representation of Ann Marie
Limoge in Lawrence v. Limoge, also a child custody dispute.  Doctor Pamela
Langelier was appointed as an independent expert in that case, and she
testified in October 1987.  Based on her testimony, the court awarded
temporary custody of Ms. Limoge's daughter to the father, David Lawrence.
When respondent entered the case in November 1987, he reviewed Dr.
Langelier's testimony and consulted his own expert witness.  After
concluding that Dr. Langelier's evaluation was erroneous, respondent wrote
her on December 21, 1987, conveying his conclusion, seeking to provide her
with more facts, and stating:
         If you would be willing to spend up to an hour in your
         office discussing the case and reviewing the new
         information with me, I could offer to you a signed
         promise by Ann Marie Limoge not to hold you or the
         institute liable in any way for any damages caused by
         your mistake.  (This waiver would only be effective if
         you retracted your previous testimony in writing prior
         to any court hearing which ultimately results in the
         return to Ann Marie of custody of [her daughter].)

At the time that he sent the letter, respondent had not obtained the
authorization of his client to offer a waiver.  Dr. Langelier responded that
she felt threatened by respondent's letter.
     While the committee questioned whether respondent had any good-faith
basis to assert potential civil liability against Dr. Langelier, it did not
find an independent ground for misconduct in respondent's motive.  However,
the committee found that sending the letter did violate DR 1-102(A)(5) &
(A)(7) because it constituted conduct prejudicial to the administration of
justice and reflected adversely on respondent's fitness to practice.  The
committee also found that the letter violated DR 7-109(C) because it offered
payment to a witness "contingent on the content of [her] testimony or the
outcome of the case."  It found that in acting without his client's
authorization, respondent also violated DR 1-102(A)(4) (conduct involving
"dishonesty, fraud, deceit or misrepresentation") and DR 1-102(A)(7).
                                   V.
                                 SANCTION
     The committee took evidence on the sanction to be imposed.  Although it
found that "[t]he record speaks of poor business practice and poor judgment
by respondent that raise serious concern as to the potential for
repetition," it recommended that respondent not be suspended from practicing
because he handles difficult and unpopular cases with passion and zeal, his
testimony before the committee was frank and forthright, he was relatively
inexperienced when the misconduct occurred and he was experiencing personal
difficulties at the time.  The committee recommended that respondent be
required to take special CLE courses and be publicly censured.
     In addition to the committee's recommendation, we consider the effect
of the misconduct proved in Count II(A) of the presentment, and the fact
that in May of 1988 this Court publicly censured respondent for misconduct.
We based that censure on respondent having misled opposing counsel in a
divorce case so that his client could obtain physical custody of the child
of the parties.  Respondent's conduct was found to involve "deceit and
misrepresentation."
     The Professional Conduct Board in an amicus brief has urged us to
consider the American Bar Association Standards for Imposing Lawyer
Sanctions [ABA Standards] in considering a sanction.  The Board has been
using the Standards in recommending sanctions to us in other cases. (FN3) We
have considered the application of the ABA Standards here and find them
helpful.  Standard 3.0 provides that in imposing a sanction the Court should
consider (a) the duty violated; (b) the lawyer's mental state; (c) the
actual or potential injury caused; and (d) the existence of aggravating or
mitigating factors.  Among the aggravating factors present in this case are
the prior disciplinary offenses, the multiple offenses and the vulnerability
of the victims.  See ABA Standards 9.22(a), (d), (h).  Among the mitigating
factors, applicable to at least some of the instances of misconduct, are
the honest motive to help a client, respondent's personal difficulties, his
forthrightness before the committee, and his relative inexperience. See ABA
Standards 9.32(b), (c), (e), (f).
     The violations of ethical standards present here are serious.  They
demonstrate a recklessness in dealing with opposing parties and witnesses
aligned with opposing parties that is inconsistent with the fair
administration of justice.  Respondent's handling of his termination in the
Yurenka case, including his response to his client's request for an
itemization of charges, was vindictive and had the potential to cause great
injury.  In the aggregate, respondent's misconduct warrants suspension,
especially since we have already imposed the highest non-suspension sanction
for other misconduct.
     The ABA Standards recommend that if a lawyer is to be suspended for
professional misconduct, the suspension have a duration of at least six
months.  ABA Standard 2.3, Commentary.  The rationale is that "short-term
suspensions with automatic reinstatement are not an effective means of
protecting the public" because rehabilitation cannot be shown in less than
six months and a six-month duration is needed to protect client interests.
Id.  We agree and impose a suspension of six months in this case.
     Under Administrative Order 9, as amended effective July 1, 1989, a
lawyer who is suspended for a duration of six months or more is required to
move the Professional Conduct Board for reinstatement and show:  (1) the
lawyer has the moral qualifications, competency and learning required for
admission to practice; (2) reinstatement would not be detrimental to the
integrity and standing of the bar or the administration of justice; (3)
reinstatement would not be subversive to the public interest; and (4) the
lawyer has been rehabilitated.  A.O. 9, Rule 20(B), 20(D).  Since the new
rules do not apply to this case, we will not require that respondent seek
reinstatement before he is again allowed to practice.  We agree with the
committee, however, that respondent must demonstrate study and knowledge of
legal ethics.  Thus, we condition reinstatement at the end of suspension
period on respondent taking and passing the multistate professional
responsibility examination.
     The misconduct found with respect to Count II(C) of the presentment
shows that respondent did not have in place a time-record and billing system
that allowed him to give clients an itemized statement of work done.  We
also condition reinstatement on respondent demonstrating that he will
practice in an office where a system is in place that will enable him to
provide itemized statements to clients.
     Compliance with the two reinstatement conditions shall be determined by
the Professional Conduct Board.  Reinstatement shall be by order of this
court on the expiration of the six-month suspension and the receipt of a
determination of compliance with the reinstatement conditions by the Board.
     Judgment that Alan D. Rosenfeld is suspended from the office of
attorney and counselor at law and from the office of solicitor in chancery
for the period of six months, beginning November 18, 1991 and ending May 17,
1992, and thereafter until he demonstrates compliance with reinstatement
conditions contained in this opinion.

                                   BY THE COURT:



                                   _______________________________________
                                   Frederic W. Allen, Chief Justice

                                   _______________________________________
                                   Ernest W. Gibson III, Associate Justice

                                   _______________________________________
                                   John A. Dooley, Associate Justice



FN1.    Administrative Order 9 was totally rewritten effective July 1, 1989.
The order provided, however, that "any matter then pending with respect to
which a formal hearing has been commenced shall be concluded under the
procedure existing prior to July 1, 1989."  Since a formal hearing in this
matter was held before the Professional Conduct Board prior to July 1, 1989,
it is governed by the earlier rules.  Thus, all references to A.O. 9 in this
opinion are to the Administrative Order as it existed prior to July 1, 1989,
except as otherwise indicated.

FN2.    The Attorney General did not allege misconduct in connection with
respondent's delay in withdrawing from the court action.  The committee
concluded that respondent should have acted with greater dispatch but found
no prejudice to the client and no unprofessional conduct.

FN3.    In connection with the brief, the Board submitted an affidavit of
its vice-chair concerning events that transpired in the case for which
respondent was publicly censured along with the vice-chair's view of
respondent's conduct.  Respondent has moved to strike the amicus brief of
the Board, to strike the affidavit and the attachments to it as well as
references to those materials in the brief, and to impose sanctions on the
members of the Board.
     We agree that the affidavit and attachments should have been submitted
to the committee and it cannot be submitted to this Court.  Accordingly, we
will grant the motion to strike the affidavit and attachments.  We have not
considered those materials or the briefing based on those materials.  The
motions to strike the entire brief of the Professional Conduct Board and to
impose sanctions on members of the Board are denied.