In re Pressly

IN_RE_PRESSLY.92-135; 160 Vt. 319; 628 A.2d 927


 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. 92-135


 In re Thomas Pressly                         Supreme Court

                                              On Appeal from
                                              Professional Conduct Board

                                              March Term, 1993



 A. Jeffrey Taylor, Rutland, for appellant

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


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


      PER CURIAM.   Respondent Thomas Pressly appeals from a decision of the
 Professional Conduct Board recommending a public reprimand as discipline for
 his misconduct in violating Disciplinary Rule (DR) 4-101(B)(1) ("a lawyer
 shall not knowingly . . . [r]eveal a confidence or secret of his client").
 DR 1-102(A)(1); A.O. 9, Rule 7.A.(4).  We affirm and impose the recommended
 sanction.
      In 1989, respondent, a member of the Vermont bar since 1975,
 represented complainant in connection with relief from abuse and divorce
 proceedings.  Complainant informed respondent that her husband had a history
 of alcoholism, battering, and abuse.  After a hearing at which she was
 represented by respondent, complainant was granted a temporary order
 requiring her husband to refrain from abusing her, and, by stipulation of
 the parties, temporary custody of the couple's two children with supervised
 visitation by the father.  About a month later, respondent filed a divorce
 complaint on his client's behalf.  The parties negotiated an agreement under
 which complainant would retain temporary custody of the children and her
 husband would be allowed unsupervised visitation.  Complainant, on
 respondent's advice, reluctantly agreed to the visitation provision.
      At that time, complainant told respondent that she was being harassed
 by her husband, that his alcoholism was a continuing problem, and that she
 wanted the children's visits with their father to be supervised.  Respondent
 advised her, however, that there were insufficient legal grounds to require
 supervised visits.  Complainant continued to press respondent to help her
 prevent her husband from continuing unsupervised visitation, but no motion
 was filed seeking supervised visitation.
      Near the end of August 1989, complainant told respondent her
 suspicions, based on consultation with a counselor, that her nine-year old
 daughter had been sexually abused by the father.  According to the coun-
 selor, a "yellow flag" went up when she observed several symptoms of abuse.
 Complainant told respondent her suspicions, the basis for them, and her
 plan to arrange for a doctor's appointment for the daughter, which she
 thought might provide needed evidence against the father.  She asked that
 respondent not discuss her suspicions or plans with her husband's lawyer.
      In response to opposing counsel's question as to why the wife continued
 to request supervised visitation and whether sexual abuse was an issue in
 the case, respondent, notwithstanding his client's request, revealed to him
 the suspicions of sexual abuse.  Respondent then asked the husband's lawyer
 not to communicate this information to the husband. (FN1) The next day,
 opposing counsel wrote respondent stating, "I mentioned to [my client] the
 representation [your client] had made to you about their daughter making
 statements to her counselor about sexual abuse. . . .  [They] are totally
 unfounded and he views them to be a blatant attempt on the part of [your
 client] to manufacture evidence to keep him away from his children."
      Complainant confronted her attorney about the disclosure, and was told
 by respondent that he provided the information in response to questions from
 opposing counsel.  Shortly thereafter, she discharged respondent, and
 retained new counsel.  After the disclosure, complainant perceived that her
 husband became increasingly uncooperative, which heightened her sense of
 fear and anxiety and created emotional distress.
      The report of the panel appointed to hear the wife's complaint was
 adopted verbatim by the Board, which agreed that respondent had violated
 disciplinary rule 4-101 of the Code of Professional Responsibility.  In
 approving a public reprimand, the Board agreed that respondent, although he
 did not intend to harm his client, knew the disclosure he made was
 confidential.
      Respondent raises numerous claims of error in the Board's determination
 and recommendation.  He argues that the panel's findings that he acted
 "knowingly" and that complainant was injured by his conduct were not
 supported by the evidence; the Board's failure to find any additional miti-
 gating factors was clearly erroneous; the sanction recommended is dispro-
 portionate when viewed in relation to other cases involving public
 reprimands; the Board's approval of the panel's findings, without issuing a
 separate written decision, violated Rule 8D of A.O. 9; and he was deprived
 of his due process rights because not all members of the Board received his
 brief prior to the issuance of the Board's decision.  The basic premise of
 respondent's claim is that the discipline does not fit the infraction and
 that under the circumstances only a private admonition  is warranted.
      Findings of the Professional Conduct Board "shall not be set aside
 unless clearly erroneous."  A.O. 9, Rule 8E.  This Court also gives
 deference to the Board's recommendations on sanctions.  In re Berk, 157 Vt.
 524, 528, 602 A.2d 946, 948 (1991) (citing A.O. 9).
      In recommending public reprimand, the Board looked to the American Bar
 Association's Standards for Imposing Lawyer Sanctions (ABA Standards).  The
 standards are a model for imposing sanctions on attorneys based on the
 ethical duty involved, the party to whom the duty is owed, the lawyer's
 motives and intentions, and whatever injury is caused by the misconduct.
 Preface to ABA Standards.  Section 4.2 of the ABA Standards provides
 guidance as to what sanctions are appropriate for failing to preserve a
 client's confidences.  Absent aggravating or mitigating circumstances,
 Standard 4.22 generally recommends suspension when an attorney violates DR
 1-104(B)(2) and the disclosure causes "injury or potential injury to a
 client."  Standard 4.23 generally recommends a public reprimand when the
 lawyer negligently reveals a client confidence and "injury or potential
 injury to a client" results.  Standard 4.24 recommends a private admonition
 when the lawyer negligently reveals a client confidence and "little or no
 actual or potential injury to a client" results.
      The Board found that respondent acted knowingly, not negligently.  The
 Board, however, looked to Standards 4.23 and 4.24 for guidance in determin-
 ing what sanction was appropriate even though those standards refer to a
 lawyer acting "negligently."  The Board found the sanction of suspension,
 which it may have recommended for knowing disclosure, "too draconian" under
 the facts of this case.  Respondent argues that his actions were in fact
 negligent and contends that the sanction should be reduced to a private
 admonition.  The Board considered discipline to be a "close question"
 between a private or public reprimand.
      Whatever mental state we ascribe to respondent's conduct, he should
 have known not to disclose his client's confidence.  He testified before the
 panel that he knew the information was to be held in confidence, but felt
 that when pressured as to why his client wanted supervised visitation,
 informing opposing counsel was his best option.  When asked whether he had
 thought of ending the conversation with counsel by stating that an
 attorney/client privilege precluded him from revealing anything further, he
 stated "If I say that, I think I'm letting the cat out of the bag also."  He
 understood that he should not have revealed what his client had requested
 him to hold in confidence; therefore, his conduct satisfied the "knowingly"
 element of DR 1-102(A)(1).
      "Knowingly" has two connotations, however.  In addition to the
 knowledge respondent had that his conversations with his client were
 protected under the attorney/client privilege, the Board may consider in
 fashioning a sanction the degree and quality of the lawyer's knowledge in
 committing the violation; for example, whether respondent actually
 considered the repercussions of the violation on his client.  That
 respondent did not actually understand the duty established by the Code is
 not the same as whether he committed the violation with knowledge of all
 probable consequences.
      The Board gave respondent the benefit of the doubt on whether he knew
 that his disclosure to opposing counsel would cause his client anguish or
 jeopardize her case.  If respondent did not actually know that his conduct
 would injure his client -- his conduct being negligent because of his good
 intention (good faith) in making the disclosure -- he still knew that his
 conduct violated a confidence.  He nevertheless misunderstood his duty to
 disclose under the circumstances.  If this is, for all practical purposes,
 negligence, we still fail to find error in the Board's determination that a
 public reprimand is the appropriate sanction.
      Regardless of the Board's characterization of respondent's mental
 culpability, the Board's recommendation of reprimand is consistent with the
 prevailing standards for determining sanctions under such circumstances.
 The ABA standards advise public reprimand, even though the attorney may have
 acted in good faith and was merely negligent.  That is as far as the Board
 went in its recommendation of discipline.
      The Board found that complainant suffered "emotional distress" as a
 result of the disclosure, which "heightened her level of fear and anxiety."
 Respondent complaints that the Board did not sufficiently analyze the level
 of seriousness of the injury in light of the ABA Standard recommending at
 least a public reprimand when "injury or potential injury to a client"
 occurs.  Further analysis, however, seems unnecessary in this case.  As the
 Board discussed,
             Complainant was shocked by this news.  She had relied
           upon respondent to protect the confidentiality of this
           information.  She felt that Respondent had betrayed her
           trust.

             . . . .

             Respondent's conduct was injurious to his client to
           the extent that his actions caused her emotional
           distress.  We do not find, however, that the disclosure
           had an adverse impact on the pending litigation although
           there was a potential for such injury.

 That fairly sums up a finding of more than "little or no actual or potential
 injury," justifying more than a private admonition.
      Respondent complains that the Board did not credit him with sufficient
 mitigating factors, including a failure to acknowledge his cooperative
 attitude, his good character and reputation, and the delay in the
 proceedings.  The Board's decision, however, implicitly recognizes all of
 these factors to the extent they are warranted.  The Board did not indicate
 a dim view of respondent's character or his cooperation.  It spoke highly
 of him: "In mitigation we find an absence of a prior disciplinary record and
 the absence of a dishonest or selfish motive.  Furthermore, it is clear from
 Respondent's testimony that he understands fully the nature of his
 misconduct and that he would not commit a like violation in the future."
 Respondent was himself responsible for some of the delay, and we fail to see
 how he was prejudiced by it.
      Next, respondent argues that a public reprimand here would be
 disproportionate to other recent cases imposing the same sanction, citing
 four examples.  Respondent's conclusory argument does not persuade us that
 the sanction imposed here demonstrates an inconsistent approach.
      We adhere to the Board's recommendation.  Respondent's infraction
 violated a core component of the attorney-client relationship, of which he,
 as an attorney in practice in this state for approximately sixteen years at
 the time of the infraction, should have been well aware.  Respondent does
 not contend, nor does the record reflect, that his disclosure was intended
 or necessary to protect the child; rather, he claimed he felt compelled to
 inform opposing counsel because he was asked why complainant wanted
 supervised visitation.  His hope that opposing counsel would not disclose
 the information to the husband demonstrates an acute naivete, rather than
 any intent to simply disregard his client's confidence.  Consequently, we
 agree with the Board that a suspension would be too harsh.  On the other
 hand, a private admonition would unduly depreciate the violation.
        According to ABA Standard 1.2., it is "[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" that private discipline is appropriate.  The Board
 found and we agree that respondent "will not make a similar error in the
 future," but complainant was obviously injured by the disclosure.  Persons
 seek a lawyer's help not just for a favorable outcome or sage advice, but
 for the peace of mind that their interests are being taken into account and
 protected.  The Board's finding was not clearly erroneous.  A sanction of
 public reprimand is appropriate under the circumstances.
      Respondent's contention that the Board erred by not making separate
 findings is without merit.  Administrative Order 9, Rule 8D, does not
 require the Board issue a separate written decision in a case where, as
 here, the Board agreed wholly with the findings, conclusions, and recom-
 mendations of the panel.  Adoption of the hearing panel's decision is
 sufficient where the rationale for the outcome is apparent.
      Last, we find no due process violation in the Board's issuance of its
 decision prior to the receipt of respondent's brief by all its members.
 Respondent was advised by a letter dated February 18, 1992, that his brief
 was to be submitted to each member of the Board "on or before March 9,
 1992."   Respondent concedes that his brief, dated March 9, was also mailed
 on that date; we must therefore conclude that it was not received by members
 of the Board by the deadline.  Any injury that may have resulted was
 therefore self-inflicted.
      The decision of the Professional Conduct Board is affirmed and its
 recommendation for discipline is approved.  Thomas Pressly is publicly
 reprimanded for violation of DR 4-101(B)(1) of the Code of Professional
 Responsibility by knowingly revealing a confidence of his client.




                                    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


FN1.    Complainant's testimony indicated that she directed her attorney not
 to disclose anything about sexual abuse to the husband.  No mention was made
 of the opposing counsel.  Although respondent points out this distinction as
 being contrary to the findings, we fail to understand its significance.
 The only ethical way respondent could communicate about the case was through
 the husband's lawyer.  DR 7-104(A)(1) (lawyer not to communicate directly
 with adverse party).  Respondent could not reasonably expect husband's
 counsel to keep the wife's confidences unrevealed.   Respondent acknowledged
 that if he had been given similar information by opposing counsel, he would
 have disclosed it to his client, notwithstanding a request not to do so.