In re Shepperson
Annotate this Case
In re Shepperson (95-133); 164 Vt 636; 674 A.2d 1273
[Filed 24-Jan-1996]
ENTRY ORDER
SUPREME COURT DOCKET NO. 95-133
NOVEMBER TERM, 1995
In re Carlyle Shepperson } APPEALED FROM:
}
}
} Professional Conduct Board
}
}
In the above-entitled cause, the Clerk will enter:
Respondent Carlyle Shepperson appeals the Professional Conduct Board's
recommendation that he be disbarred for violating DR 6-101(A)(1) (lawyer
shall not handle legal matter that lawyer is incompetent to handle) and DR
6-101(A)(2) (lawyer shall not handle legal matter without adequate
preparation). We suspend respondent indefinitely until he can demonstrate
that he is fit to practice law.
In June 1991, a justice of this Court not taking part in this decision
filed a complaint with the Board concerning the quality of respondent's
legal submissions. In March 1993, the Board and respondent entered into a
remedial stipulation in which respondent agreed not to engage in the
practice of law while he completed a legal writing tutorial. The
stipulation provided that respondent would participate in periodic tutoring
sessions to develop skills in legal analysis, persuasive writing
techniques, writing organization, and use of legal authority, proper
citation form, and proper formatting for memoranda and briefs. At the end
of the tutorial program, which was to last for a minimum of six months,
respondent was to prepare a ten-page legal writing sample and a
self-written evaluation of his progress. Respondent was given until
September 1, 1993 to report on his progress with the tutor. On September
15, 1993, respondent wrote bar counsel that he would not be completing the
tutorial, and that he had left the United States for an indefinite period
of time.
Bar counsel filed a petition of misconduct in June 1994, charging
respondent with violating DR 6-101(A)(1) & (2). Respondent filed memoranda
with the Board but did not appear for the disciplinary hearing held in
December 1994. A majority of the Board adopted the hearing panel's
recommendation that respondent be disbarred, with two dissenting members
stating that they would suspend respondent indefinitely until he proved he
was fit to practice law.
All members of the Board agreed with the hearing panel's findings that
between 1985 and 1992 respondent repeatedly submitted legal briefs to this
Court that were generally incomprehensible, made arguments without
explaining the claimed legal errors, presented no substantiated legal
structure to the arguments, and devoted large portions of the narrative to
irrelevant philosophical rhetoric. The briefs contained numerous citation
errors that made identification of the cases difficult, cited cases for
irrelevant or incomprehensible reasons, made legal arguments without
citation to authority, and inaccurately represented the law contained in
the cited cases. All members of the Board also agreed with the hearing
panel's conclusions that (1) respondent's briefs were not competently
prepared and fell below the minimum standard for brief-writing expected of
a practicing attorney in this state; (2) respondent failed to prepare
adequately or give appropriate attention to his legal work; and (3)
respondent did not use proper care to safeguard the interests of his
clients.
A review of the exhibits in this case supports the Board's findings
that respondent disserved his clients by preparing inadequate and
incomprehensible legal briefs, in violation of DR 6-101(A)(1) & (2).
Respondent's brief in this matter is a further example of the deficiencies
noted by the Board. In over ninety pages, respondent fails to raise a
legitimate legal issue or cite a single authority in support of his
arguments. The gist of his harangue against the legal system is that the
Board and this Court have violated his freedoms of speech and religion and
limited his ability to think in diverse ways by dictating what is and what
is not a proper legal argument. If we were to accept this argument, it
would preclude any oversight of attorney competence in representing members
of the public. Respondent may represent himself as he pleases, but he
cannot be permitted to represent others in a manner that, under reasonable
and accepted standards, fails to safeguard his clients' interests. Indeed,
the primary purpose of the attorney disciplinary system is to protect the
public. In re Berk, 157 Vt. 524, 532, 602 A.2d 946, 950 (1991); ABA
Standards for Imposing Lawyer Sanctions, Standard 1.1, Commentary (1991).
The only real issue on appeal is whether respondent should be
disbarred or suspended indefinitely.(FN1) According to the American Bar
Association Standards, which we have found helpful in determining
appropriate sanctions, see Berk, 157 Vt. at 532, 602 A.2d at 950,
"Disbarment should be imposed on lawyers who are found to have engaged in
multiple instances of incompetent behavior . . . [or] whose course of
conduct demonstrates that they cannot or will not master the knowledge and
skills necessary for minimally competent practice." Standard 4.51,
Commentary. Here, respondent's course of conduct in filing several
incomprehensible briefs over a period of seven years and his failure to
follow through with the stipulated tutorial program designed to improve his
skills demonstrate his inability or refusal to understand and apply
fundamental legal doctrines and procedures. Id. Standard 4.51.
Nevertheless, because there is no indication that respondent's conduct was
intentional or based on corrupt motives, we adopt the minority position of
the Board and suspend respondent until he can prove that he is fit to
practice law. See ABA Standard 9.32(b) (absence of dishonest or selfish
motive is mitigating factor); cf. In re Hogan, 490 N.E.2d 1280, 1281-82
(Ill. 1986) (attorney's inability to draft
comprehensible briefs, which does not involve corrupt motive or
moral turpitude, warrants placement on inactive status during period of
rehabilitation until competence to engage in practice of law is
demonstrated). In no event, however, shall respondent's suspension be less
than six months. See A.O. 9, Rule 7(2); id. Rule 20B, D.
Judgment that Carlyle Shepperson be suspended, effective upon issuance
of this order, for not less than six months and until he has demonstrated
to the satisfaction of this Court, via motion to the Professional Conduct
Board, that he is fit to practice law in this state. The Board is
empowered to require such further study and examination, oral or written,
as it deems appropriate to the circumstances.
BY THE COURT:
_______________________________________
Frederic W. Allen, Chief Justice
_______________________________________
Ernest W. Gibson III, Associate Justice
_______________________________________
Albert W. Barney, Chief Justice (Ret.)
Specially Assigned
_______________________________________
Louis P. Peck, Associate Justice (Ret.)
Specially Assigned
_______________________________________
Wynn Underwood, Associate Justice (Ret.)
Specially Assigned
------------------------------------------------------------------------
Footnotes
FN1. We grant respondent's motion to file an enlarged brief, but deny his
motion to dismiss for lack of jurisdiction, which is without merit.
------------------------------------------------------------------------
84.PCB
[03-Mar-1995]
STATE OF VERMONT
PROFESSIONAL CONDUCT BOARD
In re: Carlyle Shepperson, Respondent
PCB File 91.40
FINAL REPORT AND RECOMMENDATION TO THE SUPREME COURT
DECISION NO. 84
Pursuant to A.O. 9, Rule 8E, the Professional Conduct Board hereby
reports to the Supreme Court its findings of fact, conclusions of law and
recommended disposition.
The Board has reviewed the report of the hearing panel dated January
6, 1995, and adopts as its own the findings of fact and conclusions of law
contained therein. We also held a hearing on this matter pursuant to Rule
8(D) on March 3, 1995. Although Respondent submitted a brief, he did not
appear.
We further adopt as our own the hearing panel's recommended sanction.
For the reasons contained in the panel's report, we recommend that
Respondent be disbarred.
Dated at Montpelier, Vermont this 3rd day of March, 1995.
PROFESSIONAL CONDUCT BOARD
/s/
___________________________
Deborah S. Banse, Chair
/s/
___________________________ ___________________________
George Crosby Donald Marsh
/s/
___________________________ ___________________________
Joseph F. Cahill, Esq. Karen Miller, Esq.
/s/
___________________________ ___________________________
Nancy Corsones, Esq. Garvan Murtha, Esq.
/s/
___________________________ ___________________________
Paul S. Ferber, Esq. Edward Zuccaro, Esq.
/s/ /s/
___________________________ ___________________________
Nancy Foster Ruth Stokes
/s/
___________________________ ___________________________
Rosalyn L. Hunneman Jane Woodruff, Esq.
DISSENT
We agree with the findings of facts and conclusions of law, but would
recommend that Respondent be suspended indefinitely until he can prove that
he is fit to practice law.
/s/ /s/
___________________________ __________________________
Robert P. Keiner, Esq. Robert O'Neill, Esq.
--------------------------------------------------------------------------------
PROFESSIONAL CONDUCT BOARD
IN RE: Carlyle Shepperson
PCB File No. 91-40
HEARING PANEL'S FINDINGS OF FACT, RECOMMENDED CONCLUSIONS OF LAW AND
RECOMMENDED SANCTION
PROCEDURAL HISTORY
In a Petition Of Misconduct dated June 28, 1994, respondent was
charged by Bar Counsel with violations of DR 6-101(A)(7) and DR
6-101(A)(2) of the Code of Professional Responsibility. On August 9,
1994, the Petition Of Misconduct was amended by charging that the violation
was of DR 6-101(A)(1) instead of (7) which was a misprint.
The matter was heard before a Hearing Panel on December 9, 1994 in
the Vermont District Court, Brattleboro, Vermont. The Hearing Panel
consisted of J. Garvan Murtha, Esq., who served as Chair; Deborah S. Banse,
Esq. and Ms. Rosalyn Hunneman. Present at the hearing was Shelley A.
Hill, Esq., Bar Counsel. Respondent did not appear for the hearing. The
Board was advised by Kerry B. DeWolfe, Esq. by correspondence dated
November 21, 1994 that Mr. Shepperson was aware of the hearing of December
9, 1994, but would not be present. Cathryn Nunlist, Esq. was the
only witness appearing at the hearing.
Respondent filed several pre-hearing motions, including a Motion
to Dismiss for Lack of Jurisdiction, a Motion for Summary Judgment, a
Motion to Strike, all of which were denied by an Order dated November 23,
1994.
Subsequent to November 23, 1994, respondent filed numerous
additional motions, including a Motion to Dismiss, Motion to
Transfer, Motion to Amend or Reconsider, Notice of Appeal, Motion to Amend,
Motion for Summary Judgment and Motion To Transfer To A Legal and Impartial
Court. The most recent motion filed by the respondent prior to the hearing
on December 9, 1994 was entitled "Motion for Permission to File Motions"
and "Notice to Objection
To And Appeal of Order 23 November". These motions were received by
the Board on December 7, 1994.
The Hearing Panel considered all of respondent's pending
motions at the hearing and they were DENIED.
FINDINGS OF FACT
1. Carlyle Shepperson was admitted to the Vermont Bar in
1982. He is a graduate of Vermont Law School.
2. Between 1985 and 1992 respondent submitted nine (9) legal briefs
to the Vermont Supreme Court (Exhibits 1 through 9).
3. All of the briefs were written and signed by the
respondent.
4. All but two (2) briefs submitted by the respondent to the
Vermont Supreme Court fell below the minimum standard for brief writing
expected of a practicing attorney in the State of Vermont.
5. The brief filed in the Supreme Court in the matter of "State
of Vermont vs. Aaron Johnson" dated October 19, 1991 and the reply
brief filed by respondent in the matter of "State of Vermont vs. Aaron
Johnson" dated January 9, 1992 were appropriate and competently prepared.
6. However, the remaining briefs prepared and filed by the
respondent were, in general, incomprehensible, did not aid the Court and
did not meet the standard of what is expected of a reasonably
qualified attorney.
7. The briefs in question consistently failed to identify the issues
or the rules by which the issues should be resolved; made
arguments without explanation as to what constituted the legal error;
presented no substantiated legal structure to the argument; and
devoted large portions of the narrative to philosophical rhetoric.
8. In addition, on a technical basis, the briefs in question
contained many citation errors; legal propositions were not often cited
at all; citations were so incomplete or inaccurate that identification of
the cases was difficult or impossible; cases were inaccurately
represented; cases were cited for reasons that were incomprehensible;
cases were cited from other jurisdictions that were neither
binding, persuasive nor relevant. Further, the briefs were so
filled with spelling and grammatical errors as to cast a doubt on the
credibility of the respondent.
9. DR 6-101 of the Code of Professional Responsibility
entitled "Failing To Act Competently" states in part:
(A) A lawyer shall not:
(1) Handle a legal matter which he knows or should know that he is
not competent to handle, without associating with him a lawyer who is
competent to handle it.
(2) Handle a legal matter without preparation adequate in the
circumstances.
10. In February, 1993 and April, 1993, the respondent and the
Professional Conduct Board entered into a Stipulation whereby the
respondent agreed not to engage in the practice of law whatsoever
until he completed the requirements for an advanced degree and,
subsequent thereto, retained a legal writing expert, Janis M. Murcic,
Esq., to develop respondent's skills in legal analysis, persuasive
writing techniques, etc. (Exhibit 10).
11. On September 27, 1993, respondent wrote Bar Counsel indicating
"........I will be unable to complete the stipulation at the present time."
(Exhibit 13).
Thereafter, Bar Counsel initiated a Petition of Misconduct.
CONCLUSIONS OF LAW
1. Seven of nine briefs filed with the Vermont Supreme Court by the
respondent between 1985 and 1992 were not competently prepared.
2. The preparation of the briefs in question fall below the minimum
standards expected of a practicing attorney in the State of Vermont.
3. Respondent did not use proper care to safeguard the
interests of his clients. He did not diligently undertake the work and
study necessary to qualify himself as a competent preparer of
briefs submitted to the Vermont Supreme Court.
4. He failed to prepare adequately for and give appropriate attention
to his legal work.
6. As a result of his actions respondent failed to act
competently and violated DR 6-101(A)(1) and DR 6-101(A)(2).
RECOMMENDED SANCTION
Respondent repeatedly violated the duties owed to his clients, to the
Court and to the legal system. Over a period of seven years respondent
submitted seven briefs to the Vermont Supreme Court which indicated he did
not understand the most fundamental legal doctrines or procedures.
The American Bar Association Standards For Imposing Lawyer Sanctions
states:
"Disbarment is generally appropriate when a lawyer's
course of conduct demonstrates that the lawyer does not
understand the most fundamental legal doctrines or
procedures, and the lawyer's conduct causes injury
or potential injury to a client".
(Section 4.51 of the Standards).
The respondent received a private admonition on April 5, 1991, for a
violation of DR 7-106(C)(6).
The respondent engaged in multiple instances of incompetent behavior.
Seven briefs submitted to the Vermont Supreme Court demonstrate that Mr.
Shepperson cannot or will not master the knowledge and skills necessary for
minimally competent practice.
The Hearing Panel is convinced the respondent's unethical
conduct is so significant and wide-ranging that he is a threat to the
public, the profession, the courts and his clients. The Hearing
Panel recommends he be disbarred from the practice of law.
DATED: January 6, 1995
Respectfully submitted:
/s/
J. Garvan Murtha, Esq.
/s/
Deborah S. Banse,Esq.
/s/
Rosalyn Hunneman
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