In re Bucknam

IN_RE_BUCKNAM.92-134; 160 Vt. 355; 628 A.2d 932


 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. 92-134


 In re Deborah Bucknam                        Supreme Court


                                              Original Jurisdiction


                                              March Term, 1993




 Wendy S. Collins, Special Bar Counsel, Montpelier, for plaintiff-appellee

 Edwin A. Amidon, Jr. of Roesler, Whittlesey, Meekins and Amidon, Burlington,
    for defendant-appellant



 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.




      JOHNSON, J.   The Professional Conduct Board concluded that respondent-
 attorney Deborah Bucknam violated several provisions of the Code of
 Professional Responsibility in dealing with a client and his wife over a
 six-month period in 1989.  The Board recommended that respondent be sus-
 pended from the practice of law for a period of thirty days and that she be
 placed on probation for a period of one year under the following conditions:
 that she successfully complete the multi-state professional responsibility
 exam, that she forego the collection of any expenses from complainants, and
 that she not be found to have committed similar ethical violations.  On
 appeal, respondent challenges three of the six violations found by the
 hearing panel and adopted by the Board.  She argues that the remaining three
 violations warrant only an admonition with no probationary period.  We con-
 clude that a public reprimand is a more appropriate sanction than a one-
 month suspension, given the facts of this case.  In all other respects, we
 adopt the Board's recommended sanctions.
                                     I.
      In January 1987, respondent agreed to represent complainants on a
 contingency basis regarding a worker's compensation claim and a tort suit
 against the husband's former employer, the Goss Tire Company.  The husband
 signed a retainer agreement.  After filing a worker's compensation claim
 against Goss Tire, respondent persuaded complainants that it was also
 necessary to file a worker's compensation claim against Asplundh Tree
 Company, a subsequent employer that had also denied a claim for benefits by
 the husband, and to add Asplundh as a defendant in the tort suit to be filed
 against Goss Tire.  In November 1987, respondent filed a worker's
 compensation claim against Asplundh and, two months later, a civil suit
 against both Asplundh and Goss Tire.
      In early 1988, respondent settled the Goss Tire worker's compensation
 case for $1008.  She retained 20% for her legal services and remitted the
 balance to complainants without retaining any money to cover her expenses.
 In July 1988, respondent sent complainants a bill for expenses, totaling
 $580.  Complainants did not pay the bill, and neither respondent nor
 complainants discussed the bill again.
      In December 1988, Goss Tire filed a motion for summary judgment in the
 civil suit on the ground that worker's compensation was the husband's
 exclusive remedy.  Within a month, Asplundh filed a motion to dismiss on the
 same ground.
      About that time, the husband contacted another lawyer because he was
 frustrated by what he perceived to be respondent's failure to keep him
 informed of progress with the lawsuits.  The lawyer suggested he resolve the
 problem with respondent.  In early February, complainants met with
 respondent and, among other things, mentioned that they had contacted
 another lawyer because of their frustration over the lack of progress in
 their cases.  Angered by complainants' lack of gratitude for her work on the
 cases, respondent suggested that they retain another lawyer if they were not
 happy with her services.  Complainants stated that they did not want to
 retain another lawyer because it would mean a great deal of lost time and
 effort.
      A few days after this meeting, on February 6, the superior court
 dismissed the civil suit against Asplundh without prejudice to refile after
 resolution of the Asplundh worker's compensation claim.  On March 6,
 respondent wrote a letter to complainants informing them of the dismissal.
 In that letter, she stated that a fee agreement had never been reached
 regarding the Asplundh claim, that she would continue to represent them only
 on an hourly basis, that she charged $80 per hour and required a $750
 retainer, and that she would presume they did not want her to represent
 them if she did not receive the retainer and a signed agreement by March 15.
 Complainants immediately called respondent and told her they had understood
 that the actions against both Goss Tire and Asplundh would be handled on a
 contingency basis.  Respondent disagreed.  Because respondent was unwilling
 to represent complainants in the Asplundh claim on a contingency basis,
 complainants agreed to allow respondent to withdraw from the pending cases.
      Complainants then contacted the lawyer to whom they had previously
 spoken.  In turn, the lawyer contacted respondent, who said she wanted to
 withdraw from all of the remaining matters involving complainants, but would
 not release the case files until complainants reimbursed her for out-of-
 pocket expenses, which amounted to $498.  On April 3, respondent mailed a
 letter to complainants, with a copy to the lawyer, confirming her agreement
 with complainants to withdraw, stating that she would not release the files
 unless complainants paid her expenses, and warning complainants that they
 would be responsible for the entire amount of her attorney's fees unless the
 expenses were paid within fifteen days.  Respondent also sent complainants a
 statement itemizing the expenses.  The wife called respondent to challenge
 the accuracy of the statement and to obtain copies of the underlying bills,
 but respondent neither returned the calls nor supplied the requested
 information.
      On April 12, the lawyer with whom complainants had been consulting
 entered his appearance in the Asplundh worker's compensation claim.  That
 same day, he wrote respondent, stating that complainants had not agreed to
 be responsible for her fees in the event they could not pay her expenses
 within fifteen days, and that he believed the canons of ethics required her
 either to continue zealous representation of complainants in the Goss Tire
 civil suit or to allow complainants access to the files, regardless of
 whether expenses were paid, so that they could secure other representation.
 Respondent was incensed by the letter, which she considered patronizing and
 sexist.
      On April 17, the superior court granted summary judgment to the
 employer in the Goss Tire civil case at a hearing attended by respondent.
 Complainants' new attorney learned of the order on April 25 and suggested
 that complainants call respondent and ask her if anything had happened in
 the case.  The next day, when the wife inquired about the status of the
 case, respondent told her that the court had not yet issued a decision.
 Respondent first informed complainants of the court's order at a meeting on
 April 29.
      At that meeting, complainants stated that they wanted respondent to
 appeal the order.  Respondent agreed to do so if complainants paid the
 filing fee, the cost of a transcript, and $100 per month towards expenses.
 Although complainants did not believe they could make the payments, they
 agreed to do so.  Respondent filed the appeal, but complainants failed to
 make payments as agreed.  On June 21, respondent wrote complainants that she
 would seek to withdraw from the case if they did not pay her $100 within
 five days.  When complainants did not respond to her letter, respondent
 filed a motion to withdraw in early July on the ground that complainants had
 "failed to abide by the retainer agreement."  When complainants sought to
 obtain a copy of the retainer agreement, respondent told her office manager
 not to give them one.
      On July 26, complainants filed a letter opposing respondent's motion to
 withdraw.  The letter stated that complainants were not in violation of the
 retainer agreement and that respondent had failed to provide them with bills
 supporting her accounting of expenses even though they had asked for such
 proof three times.  Complainants' letter angered respondent because she
 believed that her office manager had sent them copies of the bills, although
 she did not verify whether this had been done.  In fact, in late June or
 early July, respondent's staff had compiled a list of expenses, totaling
 $809, incurred on behalf of complainants, along with copies of checks and
 invoices substantiating the charges; however, complainants did not receive
 this accounting until after it was sent to bar counsel in connection with
 the present disciplinary action.
      On August 1, complainants' new attorney asked respondent to state (1)
 her conditions for releasing the file of the Goss Tire civil suit, and (2)
 her expectations for future payments in the event she was permitted to
 withdraw and complainants prevailed on appeal.  Respondent stated that she
 would turn over the file under the following conditions: (1) "All costs
 which have been expended on [complainants'] behalf will be paid," and (2)
 "[w]e will expect to receive 1/3 of whatever fees you receive in the event
 this matter is successfully appealed."
      On August 10, respondent's motion to withdraw was granted.  At the
 hearing on the motion, the husband stated among other things, that
 respondent had yelled at him and failed to provide him with a complete
 accounting of the expenses, and that he was unable to pay the expenses.
 Acting on this Court's order, respondent sent a copy of the retainer
 agreement to complainants' new attorney.  She also sent him a letter stating
 that because the husband had made false allegations to the Vermont Supreme
 Court, she would now release the file only under the following conditions:
 complainants pay either $800 in expenses plus her full fee should the appeal
 prove successful, or an estimated $2200 based on the number of hours billed
 on the case.  Complainants made no payments to respondent, and complainants'
 new attorney would not take over the appeal without reviewing medical
 evidence in the file held by respondent.  On November 20, 1989, the Goss
 Tire appeal was dismissed because complainants failed to comply with an
 entry order requiring the filing of a printed case and brief.
      Based on this sequence of events, the hearing panel found that
 respondent had violated ethical rules by:

      (1) lying about the status of the Goss Tire civil suit, in violation of
 DR 1-102(A)(4) (dishonesty, fraud, deceit, or misrepresentation);

      (2) attempting to unilaterally alter the Asplundh fee agreement, in
 violation of DR 1-102(A)(4) and (5) (conduct prejudicial to administration
 of justice) and DR 7-101(A)(3) (damaging client during course of
 professional relationship);

      (3) wrongfully demanding reimbursement of expenses before the
 conclusion of the case, in violation of DR 1-102(A)(4) and (5), and 7-
 101(A)(3);

      (4) negligently failing to provide an expense accounting, in violation
 of DR 1-102(A)(7) (conduct adversely reflecting on lawyer's fitness to
 practice law);

      (5) falsely asserting an oral agreement between herself and her
 clients, in violation of DR 1-102(A)(4) and DR 1-102(A)(7); and

      (6) failing to release a file to the detriment of her clients, in
 violation of DR 1-102(A)(4) and (7), DR 7-101(A)(3), and DR 2-110 (A)(2)
 (lawyer shall not withdraw without taking reasonable steps to avoid
 prejudicing client, including delivering all papers to which client is
 entitled).
      The majority of the three-member panel recommended that respondent be
 suspended from the practice of law for thirty days followed by a period of
 probation to last until she successfully completed the multi-state
 professional responsibility examination.  The majority also recommended that
 respondent be required to reimburse complainants for fees retained that
 exceeded any judgment she collected based on expenses owed by complainants.
 In a minority opinion, the panel chair recommended that respondent be
 publicly reprimanded rather than suspended.  After noting various mitigating
 and aggravating circumstances, the Professional Conduct Board adopted the
 sanctions recommended by the panel majority, with certain clarifications
 regarding reimbursement to complainants.
                                     II.
      Respondent concedes that she misrepresented the status of the Goss Tire
 civil suit to complainants, attempted to unilaterally alter the implied-
 in-fact agreement in the Asplundh worker's compensation matter, and
 negligently failed to provide complainants with cancelled checks for out-of-
 pocket expenses.  She also concedes that she handled the fee dispute with
 complainants poorly.  Nevertheless, she contends that, given the mitigating
 factors and the absence of prejudice to complainants resulting from these
 three violations, the appropriate sanction is admonition without a period of
 probation.
                                     A.
      Respondent argues that two of the violations found by the Board are
 unsupported by the record.  First, she contends that the evidence does not
 support the Board's conclusion that she falsely asserted an agreement by
 complainants to pay expenses within fifteen days.  We agree.
      The disputed March 22, 1989 letter reads as follows:
      This is to confirm our agreement that I am withdrawing from the
      case of Favreau vs. Goss, et al.  I will give you your file when I
      receive my out-of-pocket expenses, which amount to $498.00.

      By this agreement, you are not responsible for any other
      attorney's fees.  As I indicated to you over the telephone, this
      is more than fair to you since we spent many hours on your case.

      Therefore, if I do not receive money for the expenses within 15
      days, you will be responsible for the entire amount of my
      attorney's fees.

      On its face, the letter confirms only that there was an agreement that
 respondent would withdraw from the case.  Rather than asserting an oral
 agreement that complainants would be liable for attorney's fees, the third
 paragraph of the letter is, at worst, a threat to charge complainants for
 her fees unless they paid her out-of-pocket expenses within fifteen days.
 Respondent may not have had a right to demand attorney's fees in the event
 of nonpayment of expenses, but that fact does not transform the third
 paragraph into a false assertion of an agreement.  This Board's finding of a
 violation is not "'clearly and reasonably supported by the evidence.'"  In
 re Rosenfield, 157 Vt. 537, 543, 601 A.2d 972, 975 (1991) (quoting In re
 Wright, 131 Vt. 473, 490, 310 A.2d 1, 10 (1973)).
      Second, respondent argues that the evidence does not support the
 Board's conclusion that she wrongfully demanded reimbursement of expenses.
 In support of this argument, she points out that (1) from the outset,
 complainants wanted to pay for expenses on a monthly basis, and (2) the
 Board itself had found the fee agreement to be unclear as to whether it
 required reimbursement for expenses at the time they were incurred or at
 the conclusion of the matter.  While we agree that the retainer agreement
 was ambiguous, and that complainants expressed a desire to pay for expenses
 as they came up, the Board's finding of a violation is supported by the
 evidence.
      In relevant part, the retainer agreement read as follows:
         If we are successful, I will receive as a fee a
         percentage of the gross recovery.  This percentage will
         be as follows: 25 percent of any recovery of a Workman's
         Compensation claim; 33 1/3 percent of any other claim up
         to jury verdict; 40 percent if the case is appealed.

           You will pay all costs and expenses of prosecution of
         the claim . . . .  I may advance these costs and
         expenses, and in that case, I will deduct them from any
         recovery in addition to my percentage of the gross
         amount. . . .

           . . . .

           I shall be entitled to the percentage fee we have
         agreed on from any recovery, even though you may have
         dismissed me or substituted another attorney in my place
         before obtaining such recovery.

           I shall have an attorney's lien on any recovery
         pursuant to this agreement.
 The agreement does not spell out when complainants must pay expenses.  It
 does indicate, however, that costs and expenses would be deducted from any
 recovery if respondent decided to advance them to complainants.  Despite
 complainants' request for monthly billing of expenses so that they would not
 have to pay a large sum at one time, respondent did not send complainants
 any bill for expenses until approximately eighteen months after she took the
 case.  Complainants ignored that $580 bill, and respondent made no attempt
 to collect it or any other expenses until nearly a year later when she
 decided she no longer wanted to represent complainants.  Given the language
 of the retainer agreement, which was drafted by respondent, her actions
 implied an agreement that she would advance the costs and expenses of the
 case until the matter was concluded.
      In any event, respondent's demand for reimbursement was wrongful
 because she made the demand while refusing to provide complainants with a
 copy of the retainer agreement and while negligently failing to provide them
 with a detailed accounting of her expenses.  Further, because her demand for
 reimbursement of expenses was wrongful, respondent cannot argue that the
 expenses were properly due after complainants, under pressure from her,
 agreed to pay $100 per month toward expenses.  The evidence supports the
 Board's finding of a violation.

                                     B.
      Respondent also contends that the panel abandoned its finding of a
 violation regarding the retaining lien, and that, even if it did not, the
 record does not support such a finding.  We cannot agree with either
 contention.  In its original findings and conclusions, the hearing panel
 found no violation for withholding the file "in and of itself," but stated
 that respondent could not claim an attorney's lien as a defense to the other
 alleged disciplinary violations.  In its second decision regarding
 sanctions, the hearing panel stated that respondent "intentionally pre-
 judiced or damaged her clients . . . by insisting on fees to which she was
 not entitled and by improperly withholding her clients' file."  The panel
 then discussed the wrongful retention of the file within its discussion of
 respondent's wrongful demand for expenses.  In short, the panel enfolded the
 retaining-lien violation into the wrongful-demand-for-expenses violation.
 The panel concluded that respondent's retention of the files was wrongful
 because her demand for expenses was wrongful.  The Board adopted this
 conclusion.
      We agree that the respondent's imposition of a retaining lien was
 inappropriate because her demand for reimbursement of expenses was wrongful,
 given her unilateral attempt to change the fee arrangement, her refusal to
 provide complainants with a copy of the retainer agreement, and her failure
 to provide complainants with support for her accounting of out-of-pocket
 expenses.  See Lucky-Goldstar v. International Mfg. Sales Co., 636 F. Supp. 1059, 1064 (N.D. Ill. 1986) (attorney who fails to assure agreement as to
 amount or method of calculating fee should forego lien); Miller v. Paul, 615 P.2d 615, 620 (Alaska 1980) (if client does not initiate lawyer's
 withdrawal, or if discharge of lawyer is due to unethical conduct, files
 should not be withheld). (FN1) Accordingly, apart from determining the
 appropriate sanction, we need not address respondent's argument that
 complainants were not entitled to the file because they had the ability to
 pay the expenses and because all of the relevant materials contained in the
 file were available to complainants in the file at the Vermont Supreme
 Court.
                                     C.
      Finally, respondent argues that the sanction recommended by the Board
 is too severe given the circumstances of this case and the mitigating
 factors present.  We adopt the Board's recommendation of sanctions, except
 for the one-month suspension.
      While they are not controlling, the American Bar Association Standards
 For Imposing Lawyer Sanctions [hereinafter ABA Standards] provide guidance
 for determining the appropriate sanction.  In re Rosenfeld, 157 Vt. at 546,
 601 A.2d  at 977.  We have already accepted the ABA's recommendation that a
 suspension should be for a period of at least six months.  Id. at 547, 601 A.2d  at 978.  The reasoning is that a minimum of six months is needed to
 ensure effective rehabilitation and thus protect the public.  Id.; ABA
 Standard 2.3, Commentary.  Further, short-term suspensions function
 primarily as a fine, which is not a recommended sanction.  ABA Standard 2.3,
 Commentary.  We find nothing exceptional about this case that persuades us
 to disregard this policy.  Therefore, we must determine whether respondent's
 conduct warrants a six-month suspension.
      We conclude that it does not.  In determining the appropriate sanction,
 we consider the duties violated, the lawyer's mental state, the potential or
 actual injury caused by the lawyer's misconduct, and any aggravating or
 mitigating factors.  In re Rosenfeld, 157 Vt. at 546, 601 A.2d  at 977.  As
 the majority of the hearing panel stated in summarizing its recommendation
 on sanctions, respondent never intended to cheat or gouge her clients.
 Indeed, there is no suggestion that she provided inadequate representation
 or that she overcharged for her services.  Rather, believing that her
 clients were cheating her, she overreacted and used improper means to bully
 them into paying.  When her clients challenged her right to the disputed
 expenses, she used her position as their attorney to punish them.  While
 these violations are serious, they do not require a suspension to protect
 the public.
      As mitigating factors, the Board cited the absence of prior ethical
 violations, the institution of new office procedures for explaining retainer
 agreements and for itemized billing, and the substantial amount of pro bono
 work done by respondent in the past.  As aggravating factors, the Board
 cited the pattern of misconduct involving multiple offenses, respondent's
 dishonest and selfish motive, her refusal to acknowledge the wrongful nature
 of her conduct, the vulnerability of the clients, and her substantial
 experience as a lawyer.  Moreover, the majority opinion of the panel, which
 was adopted by the Board, emphasized that the complainants' civil suit was
 dismissed by this Court as the result of respondent's misconduct.
      While we acknowledge the mitigating factors, we are less persuaded by
 the aggravating factors.  First, although there were multiple offenses, they
 were restricted to one client-couple that respondent believed was cheating
 her.  No pattern of misconduct has been shown.  Second, while respondent was
 somewhat defiant regarding the extent of her culpability, she acknowledged
 some wrongdoing.  Third, although complainants were relatively
 unsophisticated, they did have access to the advice of another lawyer
 throughout the time the violations occurred.  Finally, while the dismissed
 appeal would most likely have been heard by this Court if respondent had
 acted properly and remained as complainants' counsel, it is unclear why the
 unavailability of complainants' file prevented them from obtaining another
 attorney to brief the appeal.  All of the documents that constituted the
 entire record on appeal were available in this Court's file.  Other than a
 vague reference to medical records, there is no explanation of why the
 appeal could not have been briefed based on the documents in that file.
 Thus, the extent of actual or potential prejudice is questionable.
      Based on these considerations and the fact that a one-month suspension
 is generally ineffective and inappropriate, we agree with the minority
 opinion of the hearing panel, which recommends public censure rather than a
 one-month suspension.  We reject, however, respondent's contention that her
 misconduct warrants only an admonition.  Admonition is appropriate "[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, and when there is
 little likelihood of repetition by the lawyer, should private discipline be
 imposed."  ABA Standard 1.2.  Here, in view of the number of violations and
 respondent's begrudging acknowledgment of wrongdoing, public censure is
 necessary not only to inform the public but also to put respondent, and the
 bar in general, on notice that this type of overbearing conduct toward
 clients is unacceptable.  Further, the same considerations warrant a one-
 year probationary period, with conditions recommended by the Board.
      Respondent has acknowledged that she misrepresented the status of a
 case to complainants, attempted to alter an implied fee agreement, and
 negligently failed to supply a detailed accounting of expenses.  She also
 acted vindictively toward complainants by refusing to provide them with a
 retainer agreement, by revising her offer to successor counsel concerning
 sharing any potential recovery, and by retaining their file to pressure them
 into paying expenses that were legitimately in dispute.  Respondent's
 misrepresentation alone could warrant a public reprimand.  See In re Welt's
 Case, 620 A.2d 1017, 1019-20 (N.H. 1993) (lawyer publicly censured based on
 isolated course of conduct in which he misrepresented the status of
 litigation to clients).  Combined with other incidents of misconduct
 against complainants, a public reprimand is appropriate and necessary.
      Respondent is publicly reprimanded for the violations found in this
 opinion.  She shall forego collecting expenses allegedly due her from
 complainants.  From the date of issuance of this opinion, she shall be on
 probation for a period of one year, during which time she shall successfully
 complete the multi-state professional responsibility examination and shall
 not be found to have committed similar ethical violations.



                               FOR THE COURT:



                               ____________________________________________
                               Associate Justice


FN1.   While both the common law and the Code of Professional Responsibility
 recognize the attorney's lien, the courts have narrowly circumscribed use of
 the lien.  E.g., Academy of California Optometrists, Inc. v. Superior Court,
 124 Cal. Rptr. 668, 672 (Cal. Ct. App. 1975) (lien is void where subject
 matter of lien is of no economic value and lien is used solely to extort
 disputed fees from client); Marsh, Day & Calhoun v. Solomon, 529 A.2d 702,
 706 (Conn. 1987) (self-executing attorney's retaining lien is not absolute
 right but merely method for attorney to protect "proper fee"; it should not
 be used when attorney withdraws voluntarily or is discharged because of
 negligence or misconduct); Vermont Bar Association, Ethics Opinion No. 82-9
 (1982) (retaining lien not proper if it reasonably appears that withholding
 file might prejudice client's interest in subject matter of file or
 adversely affect speedy administration of justice); see generally ABA
 Standing Comm. on Ethics and Professional Responsibility, Informal Op. 1461
 (1980) (providing guidelines for attorneys to determine whether retaining
 lien can properly be invoked); Annotation, Attorney's Assertion of Retaining
 Lien as Violation of Ethical Code or Rules Governing Professional Conduct,
 69 A.L.R. 4th 974 (1989) (compiling cases addressing circumstances under
 which retaining lien is appropriate).