In re Hunter

IN_RE_HUNTER.94-275; 163 Vt 599; 656 A.2d 203

[Filed 22-Dec-1994]


                           ENTRY ORDER

                 SUPREME COURT DOCKET NO. 94-275

                       DECEMBER TERM, 1994


In re William A. Hunter, Esq.          }             Original Jurisdiction
                                       }
                                       }             FROM
                                       }             Professional Conduct Board
                                       }
                                       }             DOCKET NOS. 91.43, 93.12
                                                     & 93.32


        In the above entitled cause the Clerk will enter:

     Pursuant to the recommendation of the Professional Conduct Board filed
May 23, 1994, and approval thereof, it is hereby ordered that William A.
Hunter, Esq., be publicly reprimanded and placed on probation for nine months
for the reasons set forth in the Board's final report attached hereto for
publication as part of the order of this Court.  A.O. 9, Rule 8E. 

     The probationary period shall begin on January 1, 1995 and end on
September 30, 1995. 


                                  BY THE COURT:

                                  __________________________________
                                  Frederic W. Allen, Chief Justice

                                  ________________________________________
                                  Ernest W. Gibson III, Associate Justice

                                  ________________________________________
                                  John A. Dooley, Associate Justice

                                  ________________________________________
                                  James L. Morse, Associate Justice

                                  ________________________________________
                                  Denise R. Johnson, Associate Justice
[ ] Publish

[ ] Do Not Publish

--------------------------------------------------------------------------------
 

                             STATE OF VERMONT

                         PROFESSIONAL CONDUCT BOARD


           In re:  William A. Hunter, Esq., Respondent
                   PCB File Nos. 91.43, 93.12 and 93.32

                              DECISION NO.  69
                      
                      FINAL REPORT TO THE SUPREME COURT

This case involves a continuing pattern of neglect of clients and 
disregard of requests from Bar Counsel for information necessary to her 
investigation of these allegations.  We recommend to the Supreme Court  that 
Respondent be publicly reprimanded and placed on probation for nine  months. 

We make this recommendation based upon the report of the hearing panel
which we accepted after due consideration of the oral arguments of the parties
who appeared before us on April 1, 1994, pursuant to Rule 8(D) of
Administrative Order 9.

                A.  FINDINGS OF FACT AND CONCLUSIONS OF LAW

Respondent, William A. Hunter, has been a member of the Vermont Bar
since December 19, 1985 and is currently on active status.  At all times
relevant to this matter, Respondent was operating two store front law offices:
one in Ludlow and the other in Windsor.

                       COUNT I - PCB FILE NO. 91.43

Elaine Broekhuizen retained Respondent on December 11, 1990 to  advise
her on her responsibilities as the co-executrix of her father's will and  to
represent her in that role.  The other co-executor was her brother, Willis
Antonovich, from whom she had been estranged for years.  The estate was a
complicated one.  Mr. Antonovich had been left the family home,  among  other

 

valuable assets.  Mrs. Broekhuizen had been given primarily  personal  property.
Although the will was skewed in favor of Mr. Antonovich, Mrs. Broekhuizen  did
not want to contest it.

Some of the valuable personal property that Mrs. Broekhuizen was to
receive was located in the family home.  Mrs. Broekhuizen stressed to
Respondent in their first meeting that she was concerned about her brother's
son living in the family home before the estate was settled.  She told
Respondent that she was concerned about the safety of her valuables and the
impending task of inventorying.  She instructed Respondent to proceed  to  have
her nephew moved out of the home.

Respondent's first effort to have the nephew move from the home  occurred
on January 4, 1991, in a telephone call to Mr. Antonovich.  Respondent
followed up this call with a letter, dated January 8, 1991.  The  nephew  moved
out on January 19, 1991, five weeks after Mrs. Broekhuizen personally  observed
some mistreatment of her property by her nephew and was distressed that he
remained in the house.  She, however, ultimately received all property to
which she was entitled with no diminution in value.

Although the Petition to Open the Estate was filed on January 8, 1991,
the appointment of the co-executors did not occur until April 8, 1991, due  to
a delay in the surety bond.  Mrs. Broekhuizen and Respondent set up a
procedure whereby, during this time period, some estate bills were paid.  A
total of just under $2,000 of future estate funds was placed in Respondent's
trust account.  When Mrs. Broekhuizen presented bills to Respondent, he  was  to
pay them.

Respondent was not timely in making all payments.  Mrs. Broekhuizen
repeatedly had to call Respondent or his office to secure payment of bills

 

previously submitted.

Respondent did make special arrangements to have an emergency delivery
of heating oil to the family home on a Saturday.

Mrs. Broekhuizen instructed Respondent to arrange with Mr. Antonovich
that his son pay for the utilities of the home, including the telephone, while
he was living there.  Respondent wrote only one letter to Mr. Antonovich
regarding this issue.  At 0-ne point, the telephone in the family home was
disconnected because of non-payment.

In March 1991, Mrs. Broekhuizen delivered to Respondent a list of
-questions about her father's will and estate.  Although Respondent recalls
discussing the questions with his client, Mrs. Broekhuizen maintains that
Respondent never addressed the list whatsoever.  We find that Respondent did
not answer the questions in a way satisfactory to his client.

Respondent had several meetings with his client and Mr. Antonovich.  He
had many telephone conversations with Mrs-.  Broekhuizen.  Nonetheless,
Respondent failed to return many of Mrs. Broekhuizen's telephone calls.
Respondent canceled three meetings in one week with Mrs. Broekhuizen to go
over the estate's taxes.  According to Respondent, the reason for these
cancellations was scheduled court hearings running late.  Respondent's failure
to maintain contact and failure to meet appointments was frustrating to Mrs.
Broekhuizen.

Mrs. Broekhuizen consulted with Barry Polidor, Esq. on May 9, 1991.  By
letter dated May 12, 1991, Mrs. Broekhuizen informed Mr. Polidor that she
wanted to retain him.  He informed her that once she received her file from
Respondent, he would file a Notice of Appearance.

For the next month, Mrs. Broekhuizen repeatedly called Respondent and

 

his office in an attempt to obtain her file.  Respondent failed to  return  her
telephone calls.  She was not successful in reaching him.

On June 3, 1991, Mr. Polidor filed his Notice of Appearance and sent a
copy to Respondent.  That same date Mr. Polidor sent Respondent a letter
requesting the file and the monies of the estate held in trust.  Mrs.
Broekhuizen continued calling to get the file.  Leslie Black, Esq. (whom Mr.
Antonovich had retained) wrote to Respondent on June 26, 1991 with the same
requests.  Respondent turned over the file on July 1, 1991.

A complaint was filed with the Professional Conduct Board.  On  July  31,
1991, the Chair of the Board sent to Respondent a copy of the complaint and
asked Respondent to submit a written response to the allegations within twenty
days.  Respondent failed to answer.

Bar Counsel made a similar request to Respondent on August 27,  1991.  On
September 9, 1991, Respondent submitted a response to the complaint.  He
generally denied Mrs. Broekhuizen's allegations about his performance, but
neglected to address most of the specifics in the complaint.

Investigator Jean Cass wrote to Respondent on October 29, 1991 and
informed him that his response did not address a number of allegations  raised
in the complaint.  Respondent was asked to respond to eight specific  questions
and to submit a copy of his file.  Respondent did not respond.

On November 26, 1991, Jean Cass wrote to Respondent and reminded  him  of
her request of October 29, 1991, and that his failure to respond to a
reasonable request for information may constitute grounds for discipline under
the rules of the Vermont Supreme Court.  Respondent did not reply.

Bar Counsel next wrote to Respondent on April 1, 1993, requesting a
response to Ms. Cass' questions in her October 29, 1991 letter.  Bar Counsel

 

reminded Respondent that several attempts were made in 1991 to obtain a copy
of Respondent's file in this matter, which had not yet been  received.  Bar
Counsel requested a specific response and a copy of Respondent's complete  file
no later than April 20, 1993.  Respondent did not reply.

On April 30, 1993, Bar Counsel wrote to Respondent and reminded him  that
she had requested a response by April 20, 1993.  Bar Counsel asked Respondent
to comply with her request no later than Friday, May 14, 1993, and to produce
a complete copy of Respondent's file.  Bar Counsel reminded Respondent that
failure to furnish information or respond to a request from Bar Counsel
without justifiable reason may be grounds for independent imposition of
sanction under both Rule 6D of Administrative Order 9 and DR 1-102(A)(5).
Respondent failed to respond.

On May 5, 1993, Bar Counsel sent to Respondent, by certified mail,  a
copy-of her letter of April 30, 1993.  Bar Counsel received the domestic
return receipt signed by Respondent on May 10, 1993.  Respondent  failed  to
respond.

On June 21, 1993, Investigator Jean Cass wrote to Respondent to arrange
an interview date.  She offered four alternative dates, between June 28 and
30, as possibilities.  She again requested his file on Mrs. Broekhuizen.
Respondent failed to respond to this letter, which he received on June  25,
1993.

On October 13, 1993, Investigator Anne Buttimer spoke with Respondent
and sent a confirmation letter to Respondent that she was going to pick  up
Respondent's Broekhuizen file (and others) at his office in Windsor on  October
15, 1993.  When Investigator Buttimer arrived as scheduled, Respondent  was  not
present and had not made arrangements to turn over the files.  The office

 

person present called Respondent, after which Investigator Buttimer was
informed that Respondent would send the files to Bar Counsel's office for
delivery on October 18, 1993.  The files did not arrive as promised.

on October 18, 1993, Investigator Buttimer confirmed, in a letter  to
Respondent, an interview date of October 29, 1993, at Bar Counsel's office.
On October 26, 1993, Respondent sent a letter to Bar Counsel informing  her
that he would not be in attendance on the 29th, as he was retaining an
attorney and would be in touch soon.  Respondent's attorney entered an
appearance on December 21, 1993.

Respondent never did meet with Bar Counsel's investigator to discuss the
Broekhuizen case.  On November 24, 1993, Respondent informed Bar Counsel that
he no longer had any file on Mrs. Broekhuizen, as he had turned over the
original to Mr. Polidor in 1991.

Respondent filed a timely Answer to the formal charges in this  case.
Respondent did appear for deposition on December 20, 1993, pursuant to a
subpoena.

DR 6-101(A)(3) provides that an attorney not "[n]eglect a legal matter
entrusted to him." By not diligently addressing the needs and  concerns  of
Elaine Broekhuizen in the administration of her father's estate and by failing
to forward her file to new counsel in a timely manner, Respondent  violated
this disciplinary rule.

In consistently, over two years, failing to respond to reasonable
requests from Bar Counsel for information, Respondent violated Administrative
Order 9, Rule 6D and engaged in conduct prejudicial to the administration of
justice, in violation of DR 1-102(A)(5).

 

                           COUNT II - PCB FILE NO. 93.12
In July of 1989, Scott Bashaw was seriously injured when an intoxicated
acquaintance of his threw him over a railing of a deck at  a  modular  home  owned
by Mark Kearney, Mr. Bashaw's employer.    The home was leased to a tenant and
coworker, Barry Barlow.     The land on which the home and  deck  were  constructed
was owned separately by Coastal Imports, Inc., a company wholly owned by Mr.
Kearney.   Mr. Bashaw's medical expenses were over $10,000.     He had no
insurance.

The  next month, Mr. Bashaw consulted with Respondent, who agreed to
represent  him for a reasonable contingency fee.  Mr. Bashaw selected
Respondent as he could not afford to pay any up-front fees or expenses, as
expected by other attorneys he consulted.  Had  Respondent  not  agreed  to  the
representation, it is likely that Mr. Bashaw  would  have  gone  unrepresented.

Respondent attempted to obtain relief for Mr. Bashaw from Mr. Kearney's
insurance company.   The insurance company denied liability.     In May of 1990,
Respondent filed a complaint on behalf of Mr. Bashaw against Mark Kearney and
Coastal Imports.   Respondent's theory against the two  entities  was  that,  as
owners of the home and land, they had the responsibility to provide a safe
railing around the deck, and they failed in that duty.

Depositions were taken in December of  1991.  At  the  deposition  of  Mr.
Kearney, Respondent learned for the first time that titles to the home and
land were split.   Scott Bashaw testified that, there was no  fault  in  the  design
or construction of the deck.  Respondent left  the  depositions  with  the  opinion
that his cases were substantially weakened.

At some point Respondent received a settlement offer of $2,500.

 

Respondent met with Mr. Bashaw to discuss the offer.  Respondent did not
inform Mr. Bashaw that, in his opinion, the cases against the named defendants
were weak.  Mr. Bashaw informed Respondent that $2,500 was insufficient to
cover his medical expenses.  Respondent indicated that perhaps they could get
the offer up to $5,000.  Respondent did not give Mr. Bashaw the benefit of his
advice on the matter of accepting the offer or continuing the  lawsuit.  Mr.
Bashaw decided to continue the lawsuit in hopes of receiving $5,000, thinking
that, as Respondent had told him early on in the representation, his case
against the named defendants was strong.

On December 30, 1991, Coastal Imports filed a Motion for Summary
Judgment.  On January 9, 1992, Mark Kearney filed a similar motion.
Respondent did not respond to the motions within the thirty-day time  period
provided by the rule.  Mark Kearney's attorney filed a request for  a  default
judgment on February 11, 1992.  On February 12, 1992, Respondent filed a
letter with the court for additional time to respond, as he had been ill  for
ten days.  Respondent's request was granted, over opposition of  the  attorney
for Coastal Imports.  Respondent did not file a written response to the
Motions.

The Motions were heard on April 15, 1991.  Respondent appeared to
address them as did the attorneys for the defendants.  The court granted both
defendants' Motions for Summary Judgment, holding that there was no legal
theory under which the plaintiff could recover.  Respondent did  not  promptly
inform Mr. Bashaw that the court had dismissed his lawsuit.

Respondent has continued to represent Mr. Bashaw in a  separate  lawsuit
against Barry Barlow, the occupant of the home, on the basis of social  host
liability.  The acquaintance who threw Mr. Bashaw from the deck  is  judgment

 
proof

Counsel for Coastal Imports filed a complaint against Respondent with
the Professional Conduct Board, alleging knowing filing of a frivolous
lawsuit.  On February 26, 1993, the Chair of the Board sent Respondent a copy
of the complaint and asked him to file a written response within twenty days.
He advised Respondent that failure to furnish information or respond to a
request from Bar Counsel without justifiable reason may be grounds for
independent imposition of sanction under DR 1-102(A) (5).  Respondent  failed
to answer.

Bar Counsel sent a copy of the Chair's letter of February 26, 1993,  to
Respondent on June 3, 1993, by certified mail, return receipt requested.
Respondent's secretary, Kathy Davis, accepted delivery on June 7, 1993.

On June 16, 1993, Respondent submitted a written response to the
complaint.  In his letter, Respondent stated that he did not believe  that  he
violated the Code by acceding to his client's wishes to have the defense make
its case in court, rather than dismissing the complaint.  Respondent failed to
address the additional allegations.

Bar Counsel's investigator wrote to Respondent a few days later by
certified mail, return receipt requested.  She asked Respondent to  meet  with
her to discuss the Bashaw matter as well as others.  She offered available
dates of June 28 through 30, 1993.  She reminded Respondent that  his  refusal
to cooperate with Bar Counsel or failure to respond to a reasonable request
for information by Bar Counsel may constitute grounds for discipline under the
rules of the Vermont Supreme Court.

Respondent's secretary, Kathleen Davis, accepted delivery of this letter
on June 25, 1993.  Respondent failed to respond to the letter.

 

On September 10, 1993, Respondent was served with the Petition of
Misconduct.  He filed a timely answer.

In failing to advise Mr. Bashaw on the merits of his claims against Mark
Kearney so that Mr. Bashaw could make an informed decision on a settlement
offer, Respondent violated DR 6-101(A)(3) (neglect).

In failing to respond to reasonable requests from Bar Counsel,
Respondent violated Administrative Order 9, Rule 6D and engaged in conduct
prejudicial to the administration of justice, in violation of DR 1-102(A)(5).

                        COUNT III - PCB FILE NO. 93.32

In December 1992, Loretta Fleming consulted Respondent about possible
representation in civil litigation against the Windsor Police Department.
Mrs. Fleming's parked car had been struck by a passing vehicle.  She had
objections to the accident report prepared by the police offer and wanted  to
know if anything could be done to alter it officially.  Respondent  asked  Ms.
Fleming to leave her file with him to review and assured her that her  file--
which contained numerous original documents--would be safe with him.

Over the next five months, Mrs. Fleming telephoned and wrote to
Respondent on numerous occasions to inquire about the status of her case.  Ms.
Fleming left many messages on Respondent's answering machine and with
Respondent's secretary to have Respondent contact her.  Respondent  failed  to
respond to her entreaties.  Mrs. Fleming did not have a telephone.

Beginning in February 1993, Mrs. Fleming continued to call  Respondent,
but now for the return of her file.  She had no success in reaching Respondent
or obtaining her file.  On May 28, 1993, Mrs. Fleming wrote to  Respondent  by
certified mail.  She reminded him of the history of her case and  his  failure
to respond to her numerous calls and letters.  She threatened to take further

 
action if she did not receive her file by June 4, 1993.  She told Respondent            
that she was sending a copy of the May 28, 1993 letter to the  Professional
Conduct Board.

Respondent mailed the complete file to Mrs. Fleming on June 4,  1993,
which she received the next day.

Mrs. Fleming suffered no injury.

In failing to respond to the legal inquiry and the telephone calls of
Mrs. Fleming, Respondent violated DR 6-101(A)(3) (neglect).

In failing to return promptly Mrs. Fleming's file to her,  Respondent
violated DR 9-102(B)(4)(failure to relinquish property of a client).

                       B.  RECOMMENDED SANCTION

Bar Counsel and Respondent jointly recommended a sanction of public
reprimand.  We concur and recommend that probation be imposed as well.

In deciding upon the appropriate sanction, we rely upon ABA Standards
for Imposing Lawyer Sanctions  (1986) (hereinafter referred to as "Standards").
The Standards suggest four criteria in determining the appropriate sanction:

        (1)  the duty violated;
        (2)  the lawyer's mental state;
        (3)  the potential or actual injury caused by the lawyer's misconduct;
        (4)  the existence of aggravating or mitigating factors.

                       1.  Duties Violated

Respondent violated his duty of diligence, a duty which he owes  to
each of his clients.  The duty owed to the client:

       arises out of the nature of the basic relationship between the lawyer
       and the client.  The lawyer is not required to accept all clients, but,
       having agreed to perform services for a client, the lawyer has duties

 

       that arise out of the ethical rules, agency law, and under the terms  of
       the contractual relationship with the individual client.

Introduction to Standard 4.0.

The Respondent also has a duty to the profession in his response to  the
lawyer disciplinary system.  The Respondent was not timely in his  response  to
repeated requests by Bar Counsel, although some of the delay in this case
cannot be attributed to him.

2.  The Respondent's Mental State

There are aspects of the Respondent's mental state during the times in
question that are both aggravating and mitigating.  It is clear that  he  never
intended to hurt or neglect any of his clients.  The Respondent  testified  and
we accept the notion that he often found it difficult to say "no" to those who
sought his help.  As a result, the Respondent was taking on cases at a
frequency that would eventually render his caseload unmanageable.  When he
finally appreciated that he could not adequately represent the interest of  so
many clients, the Respondent took steps to curtail his practice by closing
down his two store front offices.

Based on this scenario, we conclude that Respondent's state of mind  was
one of negligence, i.e., "the failure of a lawyer, to heed a substantial risk
that circumstances exist or a result will follow, which failure is a deviation
from the standard of care that a reasonable lawyer would exercise in this
situation".  Standards at 7.

Similarly, as to the Respondent's failure to promptly cooperate with
disciplinary Counsel, we conclude that the Respondent's actions were not an
intentional effort to ignore the process.  Rather it appears to have  been  yet
another symptom of a law practice overburdened by an unworkable caseload.

 

Just as clients did not receive timely responses to pressing matters, neither
did Bar Counsel.    It was the unreasonable amount of work which Respondent had
taken on, not any intentional act to thwart the disciplinary system, which led
to his delay in responding to Bar Counsel's inquiries.

3.  Injury

Mr. Bashaw was financially injured when he gave up the opportunity to
accept $2,500.  Neither Mrs. Broekhuizen nor Mrs. Fleming was financially
injured.  Both, however, experienced frustration and anguish as a result of
their relationship with Respondent.  While there may have been some  delay  in
the administration of Mrs. Broekhuizen's father's estate during  Respondent's
involvement, a five-month delay in the early period of an estate is not
uncommon.

4.  Aggravating and Mitigating Factors

There are several aggravating factors present.

Respondent received a public reprimand on August 8, 1991, in PCB  Files
No. 89.51 and 89.65.  That misconduct involved improper communications with
prospective jurors [DR 7-108], engaging in conduct involving dishonesty [OR 1-
102(A)(4)], engaging in conduct prejudicial to the administration of  justice
[DR 1-102(A)(5)], and guaranteeing financial assistance to a client [DR 5-
103(B)].

There are multiple offenses present and some of the offenses present  a
pattern of misconduct -- specifically those involved in neglecting legal
matters entrusted.

Lastly, in aggravation, Respondent has substantial experience in the
practice of law.

Several mitigating factors are also presented.  It is uncontroverted

 

that the Respondent had no dishonest or selfish motive.  On the contrary, we
have concluded that while the Respondent should at some point have recognized
that he was taking on too heavy a caseload, this was precipitated by a  genuine
desire on his part to make his legal services readily available to the  public.
This was often manifested in an effort to help that portion of the public  that
is often unable to retain counsel because of financial circumstances.  Too  few
lawyers see this as a personal responsibility and Respondent's efforts in  this
regard are commendable.

In further mitigation, we believe that the Respondent regrets his
actions and that he has taken steps to avoid similar problems in the future.
Respondent has limited the number of clients he represents.  The closing down
of the two store front offices was a major step in the right direction and is
evidence of the Respondent's commitment to reduce his caseload.
We are concerned that the behavior exhibited by the Respondent in these
cases reveals disturbing patterns of neglect and unresponsiveness to clients'
needs.  This led us to consider whether suspension would be a  more  appropriate
sanction.  However, each particular case of misconduct, in and of itself,
would likely warrant only a private admonition.   While we acknowledge and
welcome our responsibility to make an independent determination as to the
appropriate sanction, Bar Counsel's recommendation is given great  weight.  She
has displayed a very thorough familiarity with all of the facts and
circumstances surrounding the events in question.   In the circumstances
presented here, we are confident that the sanction  of public reprimand will
adequately protect the public and the profession without unduly penalizing the
 Respondent.

In conjunction with our recommended sanction, we believe a nine month

 

period of probation should be imposed to further protect the public.  A
condition of this probation should be that the Respondent and a member of the
Vermont Bar acceptable to Respondent and Bar Counsel shall perform a monthly
review of the Respondent's caseload.  Respondent and probation counsel should
be required to file with the Board quarterly reports, in writing, which verify
each monthly review.   In addition, probation counsel should be required, in
writing, to make such recommendations to the Respondent regarding timely
attention to case matters as he or she may feel are appropriate.  Finally, the
terms of probation should require Respondent and probation counsel to retain
copies of all suchrecommendations.

Dated at Montpelier, Vermont this  2O day of May, 1994.

PROFESSIONAL CONDUCT BOARD

Deborah  Banse, Chair
Donald Marsh
Anne K. Batten
Karen Miller, Esq.                  
Nancy Corsones, Esq.
J. Garvan Murtha, Esq.             
Paul S. Ferber, Esq.
Robert F. O'Neill, Esq.             
Nancy Foster