In re Lancaster
Annotate this Case
In re Lancaster (95-547); 166 Vt. 602; 690 A.2d 863
[Filed 23-Jan-1997]
ENTRY ORDER
SUPREME COURT DOCKET NO. 95-547
SEPTEMBER TERM, 1996
In re Patricia Lancaster, Esq. } Original Jurisdiction
}
} FROM:
} Professional Conduct Board
}
} DOCKET NO. 94-60
In the above-entitled cause, the Clerk will enter:
The Professional Conduct Board recommends that respondent, who
knowingly made false statements to a court in a pretrial motion, receive a
public reprimand for her conduct. Respondent argues that, based on the
circumstances of this case, a private admonition would adequately serve the
goals of the disciplinary process. We adopt the Board's recommendation
that respondent receive a public reprimand.
Respondent has stipulated to the underlying facts. At the time this
incident occurred, respondent had practiced law for fifteen years. She was
admitted to the Vermont bar in 1987, and since that year has served as a
public defender. On May 20, 1993 she was appointed to represent John
Gillam on a charge of driving under the influence, third offense. When she
first interviewed the defendant on that date, he stated that he had
provided a breath sample to the police and that at his request he had been
taken to a hospital to obtain an independent blood test. Respondent
received the results of that test several weeks later. In November 1993
respondent deposed the processing officer. The officer testified that the
defendant had not requested a blood test and therefore had not been taken
to the hospital. The processing paperwork did not mention the trip to the
hospital and the prosecutor was unaware that defendant had received the
blood test.
Based on the officer's testimony, respondent moved to suppress the
results of the defendant's breath test, alleging that the defendant's
request for an independent blood test was denied. See 23 V.S.A. §
1202(d)(4); State v. Karmen, 150 Vt. 547, 548-49, 554 A.2d 670, 671 (1988).
She admits that she knew at the time she filed the motion that the
defendant had in fact been given a blood test. Respondent gave substantial
consideration to the motion and discussed the issue with another attorney.
Her decision to file the motion was based on her belief that a motion in a
criminal case raises issues for hearing and places the burden on the state
to establish compliance with statutory and constitutional requirements.
At the hearing, the officer again testified that the defendant had not
been taken to the hospital for an independent blood test because he did not
ask for one. Respondent put the defendant on the stand. She had
previously advised him to answer all questions truthfully, whether on
direct or cross-examination. In response to her questions, the defendant
testified that he had requested a blood test, and that up to a certain
time, the police did not take him to get a test. Respondent limited her
direct examination to avoid the conclusion of the processing, and the
defendant's eventual trip to the hospital for the blood test. This
information was, however, elicited during cross-examination, and respondent
withdrew the motion to suppress at the conclusion of the hearing.
Respondent stipulated that her conduct violated DR 7-102(A)(5)
(knowingly making a false statement of law or fact). The Board also found
that respondent engaged in deceit and misrepresentation in violation of DR
1-102(A)(4) and in conduct prejudicial to the administration of justice in
violation of DR 1-102(A)(5). Based on these violations, the Board looked
to Standard 6.12 of the American Bar Association Standards for Imposing
Lawyer Sanctions. See In re Berk, 157 Vt. 524, 532, 602 A.2d 946, 950
(1991) (ABA standards helpful in determining attorney sanctions). That
provision states:
Suspension is generally appropriate when a lawyer knows that false
statements or documents are being submitted to the court or that
material information is improperly being withheld, and takes no
remedial action, and causes injury or potential injury to a party to
the legal proceeding, or causes an adverse or potentially adverse
effect on the legal proceeding.
The Board recognized, however, that the circumstances of this case
supported a less severe form of discipline. Specifically, the Board noted
that respondent was motivated by a desire to advocate strongly for her
client, not by selfishness; that she was troubled by the ethical dilemma
and sought guidance from a colleague; that she tried to avoid the
presentation of perjured testimony by counselling her client to testify
truthfully; that she had no prior disciplinary history; that she cooperated
with the disciplinary proceedings; and that she was extremely remorseful.
In light of the strong and positive impact the disciplinary process had on
respondent, the Board concluded that a public reprimand would be a
sufficient sanction.
We agree with the Board that this instance of misconduct does not
warrant the sanction suggested by Standard 6.12. This case, although
involving a serious violation of the disciplinary rules, is distinguished
by the many mitigating factors listed above. See ABA Standard 3.0 (in
imposing sanction, court should consider existence of aggravating and
mitigating factors). Respondent did act wrongly, but both the Board and bar
counsel agree that she was motivated by a sincere desire to advocate
strongly for her client and by a good-faith misunderstanding of the law.
In the words of the Board, respondent acted with a "bad head," not with a
"bad heart."
Nonetheless, we cannot accept respondent's argument that a private
admonition is the appropriate sanction. According to the Permanent Rules
Governing Establishment of the Professional Conduct Board and Its
Operation, an admonition should be imposed "[o]nly in cases of minor
misconduct, when there is little or no injury to a client, the public, the
legal system, or the profession." A.O. 9, Rule 7(A)(5)(b). However
well-intentioned, respondent's conduct was a serious violation of the Code
of Professional Responsibility. The profession, the public, and most of
all the judicial system, rely on attorneys to be honest and straightforward
in their representations to courts.
Respondent is publicly reprimanded for the violations found in this
opinion.
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
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103.PCB
[13-Oct-1995]
STATE OF VERMONT
PROFESSIONAL CONDUCT BOARD
In re: Patricia Lancaster
PCB Docket No. 94.60
FINAL REPORT TO THE SUPREME COURT
Decision No. 103
This case presents an unfortunate incident where Respondent's zeal to
prevail overcame sound judgment, resulting in a deliberate
misrepresentation of facts to the trial court. We recommend that
Respondent be publicly reprimanded for this significant lapse of duty.
There was no factual dispute in this disciplinary case. Bar Counsel,
Respondent and her counsel appeared before us on September 1, 1995 and
presented us with stipulated facts, incorporated by reference as Exhibit 1.
Each presented oral argument on the issue of sanctions. Both sides urged a
public admonition which we feel would be inappropriate.
Facts
Respondent, a public defender and a lawyer with 15 years of
experience, was assigned in May of 1993 to represent a defendant charged
with driving while intoxicated. It was his third offense and, therefore, a
felony.
The defendant told Respondent that he had provided a breath sample as
well as a blood sample before being lodged overnight at the correctional
facility. Respondent contacted the hospital and made arrangements for the
blood sample to be tested by an independent laboratory.
Vermont law provides that if an accused asks to give a blood sample,
the arresting officer must make arrangements for administration of the
blood test. 23 V.S.A. Section 1203a (b). If the officer does not do so,
the State's breath test results might be suppressed as evidence against the
accused.
Nearly six months after the defendant was arrested, Respondent deposed
the arresting officer. The paperwork which the officer had prepared at the
time of the arrest was not complete. It did not reveal that the officer
had, in fact, made arrangements for the defendant to give a blood sample as
required by law.
Relying upon this paperwork, the officer testified that the defendant
did not give a blood sample for testing because he did not ask for one.
Respondent knew that the officer's testimony was not accurate.
Within a week, Respondent filed two motions in which she asked the
Vermont District Court to suppress the Infra-red breath test. In support
of this motion, Respondent falsely alleged that the arresting officer had
failed to honor her client's request for a blood test.
At the time Respondent made these statements to the court, she knew
they were false. However, she felt that her actions were justifiable
because her intent was to put the State to its burden of proving compliance
with statutory and constitutional requirements. Respondent even inquired
of other counsel as to the propriety of the motion before filing it.
Meanwhile, the prosecutor had no knowledge that there was an
independent blood test. He relied upon the processing paperwork and the
officer's testimony that no blood test had been requested.
The court began hearing testimony on this motion on December 22. The
officer testified that the defendant had not received or asked for a blood
test. The matter was continued until January 6, 1994 when Respondent put
her client on the stand. To her credit, Respondent told the defendant to
respond truthfully to whatever question was posed. However, she limited
her questioning so as not to elicit the fact that the police eventually
took the defendant to the hospital for a blood test.
On cross examination, the prosecutor learned that defendant had, in
fact, received a blood test. Respondent then withdrew her motion. The
prosecutor brought this matter to our attention.
Conclusions of Law
Respondent admitted in her stipulation that she violated DR
7-102(A)(5)(knowingly making a false statement of fact). We also find that
in filing pleadings with the court alleging that her client was denied his
right to obtain an independent blood sample when she knew that allegation
was not true, Respondent engaged in deceit and misrepresentation in
violation of DR 1-102(A)(4). We further find that in wasting part of two
different days of the court's time hearing a motion based upon false
statements, Respondent engaged in conduct prejudicial to the administration
of justice in violation of DR 1-102(A)(5).
Sanctions
We find that Standard 6.12 of the ABA Standards is applicable here
because the admitted deception was done not by negligence but with
knowledge. However, there are several factors present which this standard
does not take into account.
When we examine the cases where lawyers have been suspended from the
practice of law for presenting false information, they all involve cases
where there was a clear plan to deceive the court. The lawyers not only
submitted false documents, they counselled clients to support the deception
in their testimony. See the cases collected at "Fabrication or Suppression
of Evidence as Ground for Disciplinary Action Against Attorney," 40 ALR 3d
169.
Respondent here tried to avoid the presentation of perjured testimony
by counselling her client to testify truthfully. At the same time, she
continued to support the deception by bringing out only the testimony which
supported her false statement. This clumsy attempt to walk a tightrope
between truthfulness and what she perceived to be vigorous advocacy shows
that Respondent did not act with a bad heart. She acted with a bad head.
She made a foolish decision to advocate a position that was based on a
falsehood.
In many ways, this case is similar to People v. Bertagnoli, 861 P.2d 717 (Col.1993) where the lawyer relied upon his expert witness' testimony
during closing argument. So great was the lawyer's interest in prevailing
that he failed to disclose that the expert witness wished to appear before
the tribunal and correct the testimony he had given. Like Respondent here,
Mr. Bertagnoli was troubled by the ethical dilemma he faced in not wanting
to damage his client's position but in wanting to be truthful to the
tribunal. Like Respondent here, Mr. Bertagnoli sought guidance from a
colleague who advised silence about the change of testimony. In a decision
which carefully analyzes the duties violated, the Colorado supreme Court
chose to impose a public reprimand.
We believe that a public reprimand is the appropriate choice here,
too. Respondent, although she has substantial experience at the bar, has
no prior disciplinary history and has been co-operative during the pendency
of these proceedings. Her misconduct was not the result of selfishness,
but of a misguided desire to advocate strongly for her client. She is
extremely remorseful and has obviously learned the hard way that every
lawyer must be scrupulous in presenting the truth to the court.
There was clearly a potential for injury to the State here and to the
legal proceeding. That potential was substantially diminished by
Respondent calling her client to testify, thereby subjecting him to
cross-examination, and her preparatory admonition to him to testify
truthfully. It is fortunate for Respondent and all concerned that the
truth came out when it did, thereby avoiding the court's suppression of
evidence based on her false allegations.
Respondent's demeanor before us and her expressions of remorse at the
hearing of September 1 convince us that the impact of the disciplinary
process upon her has been strong and positive. We believe that she poses
no danger to the public and that her license to practice should not be
interrupted.
Dated at Montpelier, Vermont this 13th day of October, 1995.
PROFESSIONAL CONDUCT BOARD
/s/
___________________________
Deborah S. Banse, Chair
___________________________ ___________________________
Joseph F. Cahill, Jr., Esq. Nancy Corsones, Esq.
___________________________ ___________________________
George M. Crosby Charles Cummings, Esq.
/s/ /s/
___________________________ ___________________________
Paul S. Ferber, Esq. Nancy Foster
/s/
___________________________ ___________________________
Rosalyn L. Hunneman Robert P. Keiner, Esq.
/s/ /s/
___________________________ ___________________________
Donald Marsh Karen Miller, Esq.
/s/
___________________________ ___________________________
Robert F. O'Neill, Esq. Mark L. Sperry, Esq.
/s/
___________________________ ___________________________
Ruth Stokes Jane Woodruff, Esq.
/usr3/wsc/9460.opinion
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STATE OF VERMONT
PROFESSIONAL CONDUCT BOARD
In re: PCB File No. 94.60
Patricia Lancaster, Esq.--Respondent
STIPULATION OF FACTS
NOW COME Shelley A. Hill, Bar Counsel, and Patricia Lancaster,
Respondent, and hereby stipulate to the following facts:
1. Patricia Lancaster was admitted to practice law in the State of
Vermont on September 1, 1987 and is currently on active status.
2. Ms. Lancaster is a public defender in Rutland County and has
served in that capacity since 1987.
3. On May 20, 1993 Ms. Lancaster was appointed to represent John
Gillam on a charge of driving while intoxicated, third offense, a felony.
Ms. Lancaster met with Mr. Gillam on that date and briefly interviewed him.
He told her that he had provided a breath sample and had been lodged
overnight. He also told her that the police had, before transporting him
to the correctional facility, taken him to the hospital at his request so
that he could obtain an independent blood test.
4. Vermont statutes require that if an accused is being lodged the
officer must "make arrangements for administration of the blood test upon
demand." 23 V.S.A. Section 1203a (b). If such requirement is not met, the
State's breath test results are susceptible to being suppressed.
5. Upon return to her office that day, Ms. Lancaster directed her
staff to send the designated form to the hospital where the blood sample
was being held for forwarding to an independent chemist for analysis. The
sample was analyzed, and the results received by Ms. Lancaster on June 7,
1993.
6. Ms. Lancaster took the deposition of the processing officer,
Officer Fuller, on November 5, 1993. In response to Ms. Lancaster's
question, Officer Fuller testified that Mr. Gillam had not requested an
independent blood test so that he was not taken to the hospital before
being lodged.
7. On November 17, 1993, Ms. Lancaster filed two motions to
suppress. One of them was based partially on the officer's allegation that
Mr. Gillam had been denied his request and right to an independent blood
test. (Attachment A). The other was based exclusively on that same
allegation. (Attachment B). The filing of the second motion was an
oversight.
8. Ms. Lancaster admits that the statement she set forth in her
motions, i.e., the officer's testimony that Mr. Gillam had not been given a
blood test, was not true and that she knew it was not true at the time.
Her belief was that a motion in a criminal case raises issues for hearing
and places the burden on the state to establish compliance with statutory
and constitutional requirements. However, because of the unusual nature of
the motions, Ms. Lancaster gave substantial consideration to the filing and
discussed the issue with another attorney before filing them with the
court.
9. The prosecutor did not know that Mr. Gillam had requested an
independent blood sample and had been accommodated in his request because
the processing paperwork did not reflect it and the officer denied it under
oath in his deposition.
10. Hearing on the motions to suppress was held on December 22 1993.
There was time only for Officer Fuller's testimony. He testified again
under oath that Mr. Gillam was not taken to the hospital for an independent
blood test because he did not ask for one.
11. At the continuation of the hearing on January 6, 1994 Ms.
Lancaster put Mr. Gillam on the stand. She had previously advised him to
respond truthfully to whatever question was posed to him, either on direct
or cross examination. She elicited from him that he requested of the
officer the opportunity to obtain a blood sample. She also elicited from
him that, up to a certain point in time, they did not take him to get a
blood test. She limited her direct examination of her client to not
include the conclusion of the processing, or that he had eventually been
taken to the hospital.
12. In cross examination the prosecutor elicited from Mr. Gillam the
fact that he was taken to the hospital for a blood drawing. (Attachment C).
13. Ms. Lancaster withdrew that portion of the motion to suppress
related to the blood test issue at the conclusion of the hearing, and that
issue was not continued before the court for its determination.
14. Ms. Lancaster admits that her inclusion of this language in the
motion constituted a violation of DR 7-102(A)(S).
15. Ms. Lancaster has no previous disciplinary sanctions, nor have
any actions previously been brought against her.
16. Ms. Lancaster has cooperated fully with the disciplinary
proceedings.
17. Ms. Lancaster has substantial experience in the practice of law.
Dated at Montpelier, Vermont this 28th day of August, 1995.
/s/
____________________________
Shelley A. Hill
Bar Counsel
Dated at Rutland, Vermont this 24th day of August, 1995.
/s/
____________________________
Patricia Lancaster
Respondent
Approved as to form:
/s/
_____________________________
Martha M. Smyrski
Attorney for Respondent
23-137/48731
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Attachment A
STATE OF VERMONT
RUTLAND COUNTY, SS.
STATE OF VERMONT * VERMONT DISTRICT COURT
V. * Unit #1, RUTLAND CIRCUIT
JOHN GILLAM * Docket No. 616-5-93Rdcr
MOTION TO SUPPRESS/MOTION TO DISMISS
Defendant, through counsel, moves to suppress evidence seized in the
above matter on the ground that his rights were violated, as set forth
below.
1. No probable cause existed for the stop of Defendant's vehicle.
Defendant was stopped as an alleged participant in a misdemeanor not
observed by the officer. V.R.Cr.P. 3(a) does not permit a warrantless
arrest under these circumstances. U.S. Constitution Amend. IV, XIV,
Vermont Constitution, Chapter 1, Article 11.
2. Defendant's breath test must be suppressed because of Defendant's
stated inability to comprehend the implied consent advice. A defendant
cannot be held to waive rights he does not understand. State v. Normandy,
143 Vt. 383, 387 (1983). In addition, Defendant was advised that he would
be incarcerated if he did not take the test, the voluntariness of any
consent given.
3. Defendant requested counsel and did not waive his Constitutional
rights prior to the officer's request to him to provide a breath sample for
testing. Defendant was not permitted to consult with counsel before
deciding whether to take the test, despite his request. 23 V.S.A.
§1202(c); State v. Garvey, 157 Vt. 105 (1991); 13 V.S.A. §5234(a), U.S.
Constitution, Amend. V, VI, XIV; Vermont Constitution, Chapter 1, Article
10. Because Defendant did not waive his rights, the police were required
to cease all further interrogation. Edwards v. Arizona, 451 U.S. 477
(1981); State v. Kilborn, 143 Vt. 360, 363 (1983); reversed on other
grounds, State v. Davis, 157 Vt. 506 (1991). Failure to cease questioning
requires suppression of the evidentiary fruits of the further
interrogation. State v. Badger, 141 Vt. 43, 451 (1982).
4. Defendant's request for a blood test rather than an infra-red test
was a refusal to take the test, which should have been honored. 23 V.S.A.
§1205(a). Instead, he was advised that he would go to jail if he did not
take the test and would not be entitled to have a blood test, at his own
expense, unless he took the infra-red test.
5. Subsequently, and after Defendant gave the infra-red sample,
Defendant's request for an independent blood test was denied, in violation
of 23 V.S.A. §1202(d)(4)(5), requiring suppression of the infra-red test
results. See, State v. Karmen, 150 Vt. 547 (1988). Vermont Constitution,
Chapter I, Article 10, United States Constitution, Amendments VI and XIV.
DATED at Rutland, Vermont this 17th day of November, 1993.
JOHN GILLAM
By: /s/
Patricia M. Lancaster
Attorney for Defendant
cc: Marc D. Brierre, Deputy State's Attorney
-----------------------------------------------------------------------------
Attachment B
STATE OF VERMONT
RUTLAND COUNTY, SS.
STATE OF VERMONT * VERMONT DISTRICT COURT
V. * UNIT #1, RUTLAND CIRCUIT
JOHN GILLAM * DOCKET No. 616-5-93Rdcr
MOTION TO SUPPRESS BREATH
TEST RESULTS/MOTION TO DISMISS
John Gillam, through his attorney Patricia M. Lancaster, respectfully
moves for suppression of the Infra-red test results in the above matter on
the ground that Defendant was denied the procedural protections guaranteed
by the Implied Consent Law. Specifically, he was refused his request, as a
Defendant being lodged, to have the officer make arrangements for the
administration of a blood test. 23 V.S.A. §1202(d)(4)(5).
Since Mr. Gillam was denied this right, he was unable to obtain the
independent test results which the statue mandates, denying him the right
to a fair trail and to "call for evidence in his favor." Vermont
Constitution, Chapter I, Article 10, United States Constitution, Amendments
VI and XIV. Therefore, suppression of the State's breath test results
and dismissal of the charges is required due to the statutory
violation which resulted in Defendant's inability to obtain an independent
test.
DATED at Rutland, Vermont this 17th day of November, 1993.
JOHN GILLAM
By /s/
Patricia M. Lancaster
Attorney for Defendant
cc: Marc D. Brierre, Deputy State's Attorney
-------------------------------------------------------------------------------
Attachment C
Exhibit C-2
MR. BRIERRE RESUMES
Q. The officer testified, but you were offered, were you not?
A. Yes. I told him I wanted to go.
Q. And you're saying that he just refused?
A. No. I'm not saying he refused anything.
Q. He just didn't take you?
A. Yes. They brought me up to the hospital.
Q. You were brought to the hospital?
A. Yes. I did get a blood test.
Q. You got a blood test?
A. Yes.
Q. Are you sure?
A. Positive.
Q. And we're talking about the night, May 20, 1993, when Officer
Fuller stopped you outside the Midway Diner?
A. Right. Same night.
Q. He brought you to the hospital, or some officer brought you to
the hospital?
A. Yes. He brought me to the hospital.
Q. And blood was taken?
A. That's right.
Q. So you had an independent sample taken from you; a blood test?
A. Right.
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