In re Warren

In re Warren  (96-376); 167 Vt. 259; 704 A.2d 789

[Filed 21-Nov-1997]

       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, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                            No. 96-376


In re Mark E. Warren, Esq.                   Supreme Court

                                             Original Jurisdiction from
                                             Professional Conduct Board

                                             October Term, 1997


Shelley A. Hill, Bar Counsel, White River Junction, appellant

Mark E. Warren, pro se, Boston, Massachusetts, appellee


PRESENT:  Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.


       PER CURIAM.  This is an appeal by bar counsel of a decision of the
  Professional Conduct Board recommending an admonition as discipline for
  respondent's misconduct in violation of DR 2-101(2).  We decline the
  Board's recommendation and impose a public reprimand.

       Respondent attorney's wife filed for divorce in 1994 and began living
  with another man, D.T.  At that time D.T. was separated from his wife, P.T. 
  Between September 20, 1994 and October 4, 1994, respondent sent to P.T.
  three letters, which are the subject of this proceeding.

       In the first letter respondent tells P.T. that his wife is living with
  her husband, D.T., and that he wants to stop their relationship by "making
  his life a living hell."  Although respondent does not identify himself as
  an attorney, he states that he can help her get a divorce from her husband
  "at no cost to you but at great expense to him."  Respondent repeatedly
  asks P.T. to contact him.  The letter concludes by stating that respondent
  "will get tremendous satisfaction out of assisting [P.T.] to hit [D.T.] so
  hard that he will join me in wishing he was never born."

       The second letter dated September 27, 1994 refers to respondent's
  first letter and asks P.T. to contact him.  Finally, on October 4, 1994,
  respondent sent the third letter to P.T.

 

  requesting, yet again, that she contact him.  In this letter respondent
  identifies himself as an attorney, stating that "the reason I think I can
  help you is that . . . I am a lawyer specializing in domestic relations."

       After holding a hearing, a six-member plurality of the Board concluded
  that respondent made misleading representations about himself.  Respondent
  could not ethically represent P.T. in a divorce action or obtain a
  cost-free divorce for her.  Likewise, he could not ethically assist her to
  make D.T.'s life "a living hell."  The plurality, therefore, determined
  that the letters were likely to create an unjustified expectation about
  respondent's ability to successfully represent P.T. in a divorce action in
  violation of DR 2-101(2).(FN1)

       A five-member concurrence agreed that respondent violated DR 2-101(2),
  but disagreed with the plurality's finding that his conduct amounted to
  "minor misconduct."  Finally, two members dissented, finding that
  respondent's conduct was not a violation of his professional
  responsibilities.

       The Board was also divided as to the proper sanction.  The plurality
  recommends a private admonition, believing this is a case of minor
  misconduct.  The concurrence recommends a public reprimand, believing that
  respondent's misconduct is of a more serious nature.

       Initially, respondent has not appealed the Board's finding that he
  violated DR 2-101(2). Instead, respondent argues that this Court lacks
  jurisdiction to sanction him as an attorney because he has resigned from
  the Vermont bar.  We disagree.

       This Court's disciplinary authority extends to "[a]ny lawyer admitted
  in the state, including any formerly admitted lawyer with respect to acts
  committed prior to resignation." A.O. 9, Rule 4A(1).  Although respondent
  resigned from the Vermont bar on November 15, 1996, the letters predicating
  this disciplinary hearing were sent while respondent was admitted.

 

  This Court, therefore, has jurisdiction to sanction respondent
  notwithstanding his resignation.

       We now consider whether a private admonition is the appropriate
  sanction for respondent's misconduct.  Bar counsel essentially argues that
  we should reverse the Board's recommendation that we admonish respondent
  and impose a more stringent sanction because he knowingly violated his
  ethical obligations as an attorney.  We agree.

       When sanctioning attorney misconduct, we have looked to the American
  Bar Association's Standards for Imposing Lawyer Sanctions (ABA Standards)
  for guidance.  See, e.g., In re Pressly, 160 Vt. 319, 322, 628 A.2d 927,
  929 (1993); In re Rosenfeld, 157 Vt. 537, 546, 601 A.2d 972, 977 (1991). 
  The Standards contain recommended sanctions for ethical violations and
  identify four factors that courts should weigh when determining whether the
  recommended sanction is appropriate.  The four factors are the duty
  violated, the lawyer's mental state, the actual or potential injury caused
  by the misconduct, and the existence of aggravating or mitigating
  circumstances.  See In re Karpin, 162 Vt. 163, 173, 647 A.2d 700, 706
  (1993); ABA Standard 3.0.

       ABA Standard 5.13 provides that "[r]eprimand is generally appropriate
  when a lawyer knowingly engages in . . . conduct that involves . . .
  misrepresentation and that adversely reflects on the lawyer's fitness to
  practice law."  Standard 7.2 suggests that a lawyer be suspended when the
  lawyer "knowingly engages in conduct that is a violation of a duty owed as
  a professional, and causes injury or potential injury to . . . the public
  or the legal system." If, however, the conduct is an isolated instance of
  negligence that causes little or no actual or potential injury, the
  Standards recommend an admonition.

       A private admonition is not appropriate in this case because
  respondent knew when he sent the letters that his offer to represent P.T.
  was a violation of the Code of Professional Responsibility.  Respondent
  sought to conceal his conduct.  In his first letter, he asked P.T. to "keep
  this letter and our relationship a secret.  No one must know that I know
  about you."  That respondent tried to keep his conduct a secret indicates
  that he knew that it was improper.

 

  Moreover, respondent's testimony at the hearing and the content of his
  letters only make sense as an offer to use his knowledge of the law and
  legal experience in an unethical manner. Finally, respondent admitted
  knowing that he could not ethically represent P.T.  When the Board asked
  him whether it would have been a violation of the disciplinary rules for
  respondent to have represented P.T., respondent replied, "Yes, absolutely."

       It is no defense for respondent to claim that he was not acting in his
  capacity as an attorney.  "An attorney is subject to [discipline] even for
  actions committed outside the professional capacity."  In re Berk, 157 Vt.
  524, 530, 602 A.2d 946, 949 (1991).  Additionally, the record is barren of
  any evidence to support this argument.  When asked how he would obtain a
  divorce for P.T. at no cost, respondent first replied that he intended to
  refer the case to another attorney; yet he never contacted the attorney to
  determine whether she would take the case for free.  Respondent then
  indicated that he believed P.T. was indigent and, presumably, that she
  could obtain free legal services; yet he admitted that he "didn't know what
  the facts were."

       We, therefore, find that respondent knew that his conduct was
  improper.  We note that the Board's opinion does not make an express
  finding as to respondent's mental state, other than to say that he acted
  "selfishly."  On this record, however, the Board's failure to make a
  finding that respondent knowingly violated his ethical obligations was
  clearly erroneous.  See In re Bucknam, 160 Vt. 355, 362, 628 A.2d 932, 936
  (1993).

       Respondent's mental state is an important element in determining what
  sanction should be imposed.  Given our disagreement with the Board over
  respondent's mental state, we must revisit the Board's decision to
  recommend a private admonition.  The Board based its recommendation on its
  finding that respondent's conduct did not cause any injury.  We agree that
  there was little actual injury as a result of respondent's conduct.  We do
  not agree, however, that this is a case of "minor misconduct" warranting a
  mere admonition.  See A.O. 9, Rule 7A(5)(b) (admonitions proper "[o]nly in
  cases of minor misconduct").  Respondent

 

  knowingly violated his ethical duties and injury was avoided only because
  P.T. fortuitously decided to file a complaint instead of following
  respondent's advice.

       Sanctions are intended to protect the public from lawyers who have not
  properly discharged their professional duties and to maintain public
  confidence in the bar.  See In re Shepperson, 164 Vt. 636, 637, 674 A.2d 1273, 1274 (1996) (mem.); Berk, 157 Vt. at 532, 602 A.2d  at 950. 
  Respondent has a prior disciplinary record, including a recent public
  reprimand. At the Board hearing, respondent refused to even acknowledge the
  wrongful nature of his actions.  If respondent continues to believe this
  type of conduct is permissible, it increases the likelihood of repeat
  violations.  Taking into account these aggravating factors, a private
  admonition will neither adequately protect the public, nor will it maintain
  the public's confidence in the bar.  Considering that respondent acted
  knowingly, but that his conduct caused little actual harm, a public
  reprimand is the appropriate sanction in this case.  Compare ABA Standard
  7.2 (suspension if knowing violation) with ABA Standard 7.4 (admonition if
  little or no injury).

       Mark E. Warren is publicly reprimanded for violation of DR 2-101 of
  the Code of Professional Responsibility.


                              BY THE COURT:



                              _______________________________________
                              Jeffrey L. Amestoy, Chief Justice

                              _______________________________________
                              John A. Dooley, Associate Justice

                              _______________________________________
                              James L. Morse, Associate Justice

                              _______________________________________
                              Denise R. Johnson, Associate Justice

                              _______________________________________
                              Marilyn S. Skoglund, Associate Justice



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                                  Footnotes



FN1.  DR 2-101(2) prohibits a lawyer from making a communication about
  the lawyer or the lawyer's services that "is likely to create an
  unjustified expectation about results the lawyer can achieve, or states or
  implies that the lawyer can achieve results by means that violate the Code
  of Professional Responsibility or other law."