In re PRB Docket No. 2006-167
Annotate this Case
In re PRB Docket No. 2006-167 (2006-287)
2007 VT 50
[Filed 02-May-2007]
ENTRY ORDER
2007 VT 50
SUPREME COURT DOCKET NO. 2006-287
DECEMBER TERM, 2006
In re PRB Docket No. 2006-167 } APPEALED FROM:
}
} Professional Responsibility Board
}
}
} DOCKET NO. 2006-167
In the above-entitled cause, the Clerk will enter:
¶ 1. Disciplinary Counsel appeals from a decision of the
Professional Responsibility Board. Disciplinary Counsel and respondent
entered into a stipulation which recommended the Hearing Panel find that
respondent had violated Rule 1.3 of the Vermont Rules of Professional
Conduct. The parties further recommended that the Panel impose a private
admonition as the appropriate sanction. The Hearing Panel found no
violation of Rule 1.3, and dismissed the complaint. We affirm.
¶ 2. Respondent, admitted to the bar in 1985, represented a client
in a criminal matter in district court. A jury convicted the client, and
on November 29, 2000, the court imposed a sentence of incarceration. The
client asked respondent to file a notice of appeal on his behalf, and
respondent agreed to do so. Respondent filed his client's notice of appeal
five days after the deadline, and this Court dismissed the appeal as
untimely.
¶ 3. Fewer than sixty days after the appeal was dismissed, the
Prisoners' Rights Division of the Defender General's Office filed a
petition for post-conviction relief in superior court on behalf of the
client alleging that the respondent's untimely filing of the appeal
constituted ineffective assistance of counsel. Respondent cooperated in
that proceeding as a potential witness. The parties settled the
post-conviction relief case by providing the client an additional thirty
days in which to file a new notice of appeal. The client filed his second
notice of appeal within that time, and this Court eventually denied the
client's appeal on the merits.
¶ 4. The client then filed a professional conduct complaint
against respondent, alleging that he failed to act diligently and promptly
in filing the original notice of appeal. The Vermont Rules of Professional
Conduct require an attorney to act with reasonable diligence and promptness
in representing a client. V.R.P.C. 1.3. Respondent cooperated with the
disciplinary process, and admitted the alleged misconduct. As noted above,
Disciplinary Counsel and respondent entered into a stipulation in which
respondent admitted misconduct and the parties recommended an agreed-upon
sanction to the Hearing Panel of the Professional Responsibility Board.
The Panel held that missing the deadline to file a notice of appeal did not
constitute a violation of Rule 1.3 in this case. Therefore, the Board
dismissed the complaint. One member of the Board dissented. Disciplinary
Counsel appealed.
¶ 5. "This Court makes its own decisions as to attorney
discipline, according deference to the Board's findings." In re Keitel,
172 Vt. 537, 538, 772 A.2d 507, 509 (2001) (mem.). "[W]e . . . give
deference to the recommendation of the Hearing Panel," but we make our own
determination as to which sanctions are appropriate. In re Blais, 174 Vt.
628, 630, 817 A.2d 1266, 1269 (2002) (mem.) (internal citations omitted).
The Court "must accept the Panel's findings of fact unless they are clearly
erroneous." Id. at 629, 817 A.2d at 1269. There is no challenge to the
facts as found by the Hearing Panel.
¶ 6. The Vermont Rules of Professional Conduct require that "[a]
lawyer shall act with reasonable diligence and promptness in representing a
client." V.R.P.C. 1.3. The definitions in the preamble to the Rules state
that the term "reasonable" when used in relation to conduct by a lawyer
"denotes the conduct of a reasonably prudent and competent lawyer." The
standard of proof for charges of misconduct is "clear and convincing
evidence." A.O. 9, Rule 16(C). Thus, the Panel was asked to find by clear
and convincing evidence that a single instance of a missed appellate
deadline was misconduct. The Panel held that "[a] single isolated act of
negligence without any further acts compounding the error does not breach
the standard of Rule 1.3." It reasoned that "[w]ere we to find a violation
here, most attorney errors would be subject to the disciplinary system."
¶ 7. In arriving at this conclusion, the Panel looked to two prior
disciplinary rulings for guidance. The Panel first examined a case in
which an attorney missed a child support hearing due to a calendaring
error. In re PRB File No. 2005.202, Decision No. 81 (Nov. 22, 2005). In
that case, the Panel found no prior disciplinary record, and no dishonest
or selfish motive. The attorney made a full and free disclosure to
Disciplinary Counsel and expressed remorse for her actions. In addition,
the client suffered no injury because the client appeared at the hearing
and requested and received a continuance. There, the Panel held that a
single instance of inadvertence or negligence was not misconduct, absent
further inappropriate conduct after the inadvertence or negligence.
Charges were dismissed.
¶ 8. The Panel also considered a case in which all of the
difficulties in the case stemmed from one act of negligence. In re PRB
File No. 2005.191, Decision No. 90 (Mar. 17, 2006). In that case, the
attorney, appearing pro hac vice, failed to file a notice of appearance,
and so he did not receive notice of a crucial discovery-scheduling order.
As a result, he filed numerous untimely discovery requests which were all
denied. The Panel found that the respondent knew a discovery order would
be issued but made no effort to obtain a copy of the order and discover its
contents within the discovery period. It was the attorney's failure to
follow up on an order that he never received but should have known would be
issued that changed the case from one of simple negligence into one of
misconduct.
¶ 9. In the case before us, the Panel found that a single isolated
act of negligence did not constitute misconduct under the Rules. We agree
with manner in which the Panel balanced the attorney's conduct in this case
against the public protection goals articulated by the Rules of
Professional Conduct. In general, the Rules are "intended to protect the
public from persons unfit to serve as attorneys and to maintain public
confidence in the bar." In re Berk, 157 Vt. 524, 532, 602 A.2d 946, 950
(1991) (per curiam) (although Berk referred particularly to sanctions, it
is clear that these are the overarching goals of the Rules). The
respondent missed an important deadline, but he worked to remedy his error
with the client and subsequent counsel. In the end, the client was
afforded his appellate rights. Respondent's cooperation distinguishes his
conduct from cases in which the Panel found misconduct based on failures to
act. Further, there was no evidence that respondent attempted to evade or
deny his error. Cf. In re PRB File No. 2004.062, Decision No. 68 (July 3,
2004) (attorney's negligence followed by a long period of inaction and a
refusal to answer client's calls); In re PRB File No. 2002.219, Decision
No. 57 (July 7, 2003) (attorney's negligence was followed by eighteen
months in which attorney failed to communicate with client); In re PRB File
No. 2003.183, Decision No. 56 (June 9, 2003) (attorney's failure to pay
credit card bills immediately after a real estate closing prompted phone
calls from client, and attorney did not take immediate action). And, the
Panel found respondent took remedial action after he discovered his
negligence. Cf. In re Furlan, Decision No. 65 (May 5, 2004) (attorney's
negligence in missing two court dates was compounded by the fact that when
the court ruled against his clients after failure to appear, he took no
action because he believed the case had no merit).
¶ 10. This decision should not be read to excuse single
negligent acts or omissions by attorneys in all situations. Missing a
filing deadline is never insignificant, but the availability of remedies to
correct a mistake may tend to mitigate the seriousness of an error. The
absence of an opportunity to cure a negligent misstep may render an error
more serious and, depending on the circumstances, constitute misconduct
even though isolated. The Panel exercised its authority in reasonably
balancing the competing interests in this case. We agree with the Panel
that respondent's error was appropriately remedied through the
post-conviction relief process, and none of the goals of attorney
discipline would have been served by imposing discipline here. See In re
Blais, 174 Vt. at 631, 817 A.2d at 1270 (goal of attorney discipline is to
protect the public). It is true that respondent has been disciplined once
before, and we acknowledge that the concerns stated by the dissenting Panel
member in this case are important. However, we agree with the Board's
conclusion that respondent's actions did not rise to the level of
misconduct. To so hold would result in bringing all instances of an
attorney's inadvertence or negligence within the realm of misconduct. We
do not believe that the Rule is this broad and far reaching. Attorneys are
held to a high standard of conduct, but absent injury or other factors, a
single mistake does not show a lack of reasonable diligence or promptness.
Affirmed.
BY THE COURT:
_______________________________________
Paul L. Reiber, Chief Justice
_______________________________________
John A. Dooley, Associate Justice
_______________________________________
Denise R. Johnson, Associate Justice
_______________________________________
Marilyn S. Skoglund, Associate Justice
_______________________________________
Brian L. Burgess, Associate Justice
-----------------------------------------------------------------------------
92 PRB
[Filed 13-Jul-2006]
STATE OF VERMONT
PROFESSIONAL RESPONSIBILITY BOARD
In re: PRB File No 2006.167
Decision No. 92
Respondent failed to file a timely notice of appeal in a criminal
matter and is charged with failure to represent his client with "reasonable
diligence and promptness" in violation of Rule 1.3 of the Vermont Rules of
Professional Conduct. The parties filed a stipulation of facts and
recommended conclusions of law. The Panel accepts the stipulation of facts
but a majority of the Panel does not find that the evidence supports a
finding of misconduct and the case is dismissed.
Facts
Respondent was assigned to represent an indigent defendant in a
criminal matter. Following a jury trial, the client was convicted and
asked Respondent to file an appeal. The client was eligible for assigned
counsel on appeal, and Respondent needed to file an income and expense
affidavit in conjunction with the notice of appeal. Respondent prepared
the notice of appeal in a timely fashion but neglected to obtain the
required income and expense affidavit from his client in time, and the
documents were filed 35 days after sentencing. The Supreme Court dismissed
the appeal as untimely.
A post conviction relief petition was filed on behalf of the client on
the grounds of ineffective assistance of counsel. Respondent acknowledged
that the appeal was not timely and cooperated in the filing of the
petition. The post conviction relief petition was resolved by giving the
defendant an additional 30 days to appeal. He did so with the help of
other assigned counsel and ultimately lost the appeal on the merits. The
stipulated facts are silent on how the client was informed of the dismissal
of the appeal, but the time between the dismissal of the appeal and the
filing of the petition for post conviction relief is less than sixty days.
Respondent was admitted to practice in 1985 and has one prior disciplinary
offense in 1995 for neglecting a client matter. Respondent had no selfish
or dishonest motive, feels genuine remorse and cooperated fully with the
post conviction relief case and with disciplinary counsel.
Majority Opinion
Rule 1.3 of the Vermont Rules of Professional Conduct requires an
attorney to "act with reasonable diligence and promptness in representing a
client." What is reasonable diligence depends on the circumstances. Where
an appeal must be filed within thirty days it is clearly negligence to fail
to act within that period of time. The more difficult question is whether
this is also misconduct. This case is similar to In re PRB File No.
2005.202, Decision No. 81 (Nov. 22, 2005), in which a Hearing Panel
declined to find misconduct when an attorney missed a child support hearing
due to a "calendaring error." In that case, as well as in the case before
us, there were no other charge of misconduct and no other acts which were
detrimental to the client.
In In re Furlan, Decision No. 65 (May 3, 2004), the attorney's
negligence in missing two court dates was compounded by the fact that when
the court ruled against his clients after his failure to appear, he took no
action because he did not believe that the cases had merits. In Furlan it
was the inaction after the negligence that brought the case into the realm
of misconduct. Here Respondent admitted his error and cooperated with the
post conviction relief petition.
Similarly, there is no evidence presented that Respondent attempted to
cover up his error. He acknowledged his error and cooperated with the
filing of the post conviction relief petition. This distinguishes this
case from In re PRB File No. 2002.219, Decision No. 57 (July 7, 2003),
where the attorney's negligence was followed by failure to communicate with
the client over a period of some eighteen months, or In re PRB File No.
2003.183, Decision No. 56 (June 9, 2003), where the attorney's failure to
pay credit card bills immediately after a real estate closing prompted
phone calls from the client but did not result in immediate action by the
attorney. A violation of Rule 1.3 was found in In re PRB File No. 2004.062,
Decision No. 68 (July 26, 2004), where the violation was followed by a long
period of inaction and a refusal to respond to client calls.
In In re PRB File No. 2005.191, Decision No. 90, (March 17, 2006), the
Hearing Panel found that all of the difficulties in the case stemmed from
one act of negligence. Respondent failed to file a timely notice of
appearance in a matter in which he was appearing pro hac vice, and thus
missed a discovery order. The Hearing Panel distinguished Decision No. 81
and found a violation. In Decision No 90, Respondent knew that a discovery
order would be issued but made no effort to obtain a copy of the order and
discover its contents within the discovery period. It was Respondent's
failure to follow up on an order that he never received but should have
known would be issued that changed the case from one of simple negligence
to one of misconduct.
A similar result was reached in a North Dakota case, In re Hoffman,
703 N.W.2d 345 (ND 2005). Here the attorney mis-informed his client about a
statute of limitations and the case was dismissed. The court failed to
find misconduct, stating that a simple act of negligence not accompanied by
some other violation is not a violation of the ethical rules.
We agree with this ruling and find that it is consistent with the
negligence cases we have reviewed. A single isolated act of negligence
without any further acts compounding the error does not breach the standard
of Rule 1.3. Were we to find a violation here, most attorney errors would
be subject to the disciplinary system. While we concede that missing an
appellate deadline could be deemed more serious than missing a child
support hearing, Decision No. 81, there are provisions for dealing with
this kind of attorney negligence outside the disciplinary system. In the
present instance the post conviction relief process restored the
defendant's appellate rights. In the case of negligence in connection with
a civil matter, malpractice claims exist to provide relief for the injured
client.
In summary, while lawyers are rightly held to a high standard of
conduct, a single act of negligence does not breach the rules of
professional conduct absent some compounding factor such as failure to
communicate with client, or to take remedial action.
Order
For the above reasons the within complaint is hereby DISMISSED.
Dated:______________
FILED 7/13/06
Hearing Panel No. 1
/s/
____________________
Lawrence Miller, Esq.
/s/
_____________________
Susan P. Ritter, Esq.
--------------------------------------------------------------------------
Concurring Opinion of Lawrence Miller, Esq.
Perhaps it is somewhat unusual for a member of the majority to write
separately as well, but it is not without precedent. See Losordo v.
Department of Employment Sec. 141 Vt. 391, 394, 449 A.2d 941, 942 (Vt.,
1982) where Justice Peck authored the majority opinion and wrote a separate
concurring opinion in addition. I concur in the result reached by the
majority of Panel Number 1 that the complaint should be dismissed and write
separately to dispel the concerns held by the dissent and to emphasize my
firm conviction that this record does not contain clear and convincing
evidence that respondent committed the ethical violation with which he is
charged. Absent this threshold criterion, the complaint must be dismissed.
"[M]ost decisions and official ABA policy insist that a single instance of
"ordinary negligence" is usually not a disciplinary violation. See
generally C.W. WOLFRAM, MODERN LEGAL ETHICS at 190 n. 36 (1986) (citing ABA
Informal Op. 1273 (1973) (DR 6-101(A)(3)) ("Neglect usually involves more
than a single act or omission." Matter of Myers, 164 Ariz. 558, 561, 795 P.2d 201, 204 (Ariz., 1990).
"Negligence" and "unethical conduct" are not convertible terms. Care
must be undertaken to avoid confusion of the two concepts. Proof of one
does not automatically equate with proof of the other. And because the
concepts are not interchangeable it therefore follows that proof of simple
negligence by clear and convincing evidence does not automatically morph
into proof of unethical conduct by clear and convincing evidence. A single
isolated act of negligence, unaccompanied by other circumstances falls
short of establishing an ethical violation by clear and convincing
evidence. See In re Gygi, 273 Or. 443, 450-451, 541 P.2d 1392, 1396 (Or.
1975) ("Although negligence may be a sufficient basis for civil liability
under Rule 10b--5 in a federal securities suit, we are not prepared to hold
that isolated instances of ordinary negligence are alone sufficient to
warrant disciplinary action. "); Broome v. Mississippi Bar, 603 So. 2d 349
(1992), 353 -354 (Miss., 1992) ("We agree with James Robertshaw's notation
that Broome's conduct was not unethical; it was only negligent. There is no
indication that Broome's actions which prejudiced his client's cause were
intentional or deliberate.").See also Nagy v. Beckley, 218 Ill.App.3d 875,
879, 578 N.E.2d 1134, 1136, 161Ill.Dec.488, 490 (Ill.App. 1 Dist., 1991)
("defendant's behavior may have been unethical, we do not think that it
equates to legal malpractice."); Hizey v. Carpenter, 119 Wash. 2d 251, 262,
830 P.2d 646, 652 - 653 (Wash., 1992) ("There are several significant
differences between a civil malpractice action and a disciplinary
proceeding. *** [A] rule promulgated for discipline is inappropriate as a
principle of law or standard for defining proper civil conduct.").
The goals of professional discipline for offending attorneys are
deterrence of future misconduct, protection of the public, and, vindication
of the profession. People v. Abelman, 804 P.2d 859, 863 (Colo., 1991)
("the primary purpose of attorney discipline is the protection of the
public, People v. Grenemyer, 745 P.2d 1027, 1029 (Colo.1987)").
"Neglect involves indifference and a consistent failure to carry out
the obligations which the lawyer has assumed to his client or a conscious
disregard for the responsibility owed to the client. The concept of
ordinary negligence is different. Neglect usually involves more than a
single act or omission. * * * Professional discipline for one isolated
incident of simple negligence serves none of these purposes. One imprudent
act indicates neither a propensity for future carelessness nor an imminent
risk of disservice to future clients; one unmindful oversight brings the
profession into disrepute only in the eyes of those who have forgotten that
lawyers, too, are human and prone to err. No act of negligence should be
condoned. But in the absence of a continuing pattern of neglect or some
other aggravating circumstance such as an attempt to cover up the error,
professional discipline is neither necessary nor appropriate." Broome v.
Mississippi Bar, 603 So. 2d 349, 356 (Miss., 1992) (McRae, Justice,
dissenting joined by Dan M. Lee, P.J., and Banks, J.).
Moreover, an isolated prior ethical violation involving a negligent
act in 1995 is too attenuated in time and scope to create a "pattern of
conduct" worthy of cognizance in this proceeding which concerns the
untimely filing of a notice of appeal in 2000. The passage of five years
without incident destroys any clear and sufficient temporal nexus between
those isolated instances of negligence to establish a pattern of conduct, a
recurring incident, or a general or continuing condition. Any comparison
of the incident that occurred in 1995 to the one in 2000 that is now under
consideration is far too attenuated and removed to satisfy the proximate
relation necessary for a pattern of conduct to exist. Generally, a
"pattern" has been defined as "a regular, mainly unvarying way of acting or
doing." See State v. Gorman, 546 N.W.2d 5, 9 (Minn., 1996) ("In State v.
Robinson, 539 N.W.2d 231 (Minn.1995), this court held that a pattern was "a
regular, mainly unvarying way of acting or doing." Id. at 237; see also
State v. Grube, 531 N.W.2d 484 (Minn.1995).").
There is no clear and convincing evidence of any conduct or plan of
consistent, characteristic form, style or method involving the event in
1995 and the complaint now under consideration. The only evidence in this
matter is that of a simple negligent act in failing to file, in a timely
fashion, the notice of appeal that the respondent had prepared in
accordance with his client's wishes. Without more an ethical violation is
not proved. See Florida Bar v. Neale, 384 So. 2d 1264, 1265 (Fla.1980)
("There is a fine line between simple negligence by an attorney and
violation [of Code] that should lead to discipline. The rights of clients
should be zealously guarded by the bar, but care should be taken to avoid
the use of disciplinary action ... as a substitute for what is essentially
a malpractice action.").
Simply stated, there is no clear and convincing evidence that the
respondent's mere failure to file the notice of appeal within the time
specified by the rule constitutes an ethical violation for which discipline
is necessary or appropriate. Therefore, I concur that the complaint must
be dismissed. I am authorized to say that Sue Ritter joins in the views
expressed in this concurrence.
/s/
________________________
Lawrence Miller, Esquire
Dated:______________
FILED 7/13/06
--------------------------------------------------------------------------------
Dissenting Opinion
I disagree with the majority's analysis of Decisions Numbered 81 and
90. In Decision No. 81, the attorney's "calendaring error" was a case of
negligence in office administration and is the single act that led to the
charge of misconduct. In Decision No. 90, there was again a single error,
the attorney's failure to file his application to appear pro hac vice.
Because of this failure, discovery deadlines were missed and the case
compromised. The Hearing Panel in that case found a violation of Rule 1.3
because, while the attorney did not receive the discovery order because of
his negligence, he knew that a scheduling conference had been set and that
a discovery order would issue. It was the attorney's failure to anticipate
the order and discover the contents that moved the case form one of mere
negligence to one of misconduct. The circumstances in this case seem
markedly similar. The attorney was asked to file an appeal and prepared
the notice of appeal but failed to obtain the income and expense affidavit
in order to file within the appeal period. He knew the necessity of filing
within the period prescribed by the rules and should have monitored the
process in the same way that the attorney in Decision No. 90 should have
anticipated the issuance of a discovery order.
As the majority has pointed out, attorneys are and should be held to a
high standard of conduct. Missing the deadline for filing a criminal
appeal is more serious than a calendaring error and is in my opinion
misconduct, and for that reason I dissent from the opinion of the majority.
Dated:___________________
FILED 7/13/06
/s/
___________________________
Diane Drake
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