In re Illuzzi

Annotate this Case
IN_RE_ILLUZZI.92-602; 160 Vt. 474; 632 A.2d 346

                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 92-602

                               MARCH TERM, 1993

 In re Vincent Illuzzi             }          APPEALED FROM:
                                   }          Professional Conduct Board
                                   }          DOCKET NO. 89.47

              In the above entitled cause the Clerk will enter:

     The decision of the Professional Conduct Board is adopted and its 
 recommendation for discipline is approved.  Vincent Illuzzi is suspended 
 from the practice of law for the period of six months, beginning September 
 1, 1993, during which time he shall successfully complete the multi-state 
 professional responsibility examination.

                                    BY THE COURT:

                                    Ernest W. Gibson III, Associate Justice

 Frederic W. Allen, Chief Justice   John A. Dooley, Associate Justice

                                    James L. Morse, Associate Justice

                                    Denise R. Johnson, Associate Justice



 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. 92-602

 In re Vincent Illuzzi                        Supreme Court

                                              Original Jurisdiction

                                              March Term, 1993

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

 David Putter of Saxer, Anderson, Wolinsky and Sunshine, Montpelier, for

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

      PER CURIAM.     This case is before us a second time.  In In re Illuzzi,
 ___ Vt. ___, ___, 616 A.2d 233, 236 (1992), we held that DR 7-104(A)(1)
 (lawyer shall not communicate with a represented party without consent of
 party's attorney) prohibits lawyers for plaintiffs from communicating directly
 with defendant insurance companies without the consent of the companies'
 counsel.  We remanded the case to the Professional Conduct Board because the
 Board "failed to adhere to the requirements of its procedural rules when it
 adopted a second hearing panel report that had not been submitted to
 respondent."  Id. at ___, 616 A.2d  at 234; see Administrative Order 9, Rule
 8C, 8D.  That procedural deficiency was remedied when respondent was given an
 opportunity to address the panel's second report, which the Board again
 adopted.  Respondent appeals anew on the grounds that there are procedural

 errors in the Board's decision; that the recommended sanction is too harsh
 because it is based upon an erroneous conclusion that he violated DR 1-102(A)
 and DR 1-102(A)(5); and that the Board failed to acknowledge certain
 mitigating factors, while considering inapplicable aggravating factors.  Bar
 Counsel responds by contending that the recommended sanction is too lenient in
 light of respondent's long history of unethical conduct and repeated
 violations of the Code.  She recommends that respondent be disbarred or, at
 minimum, suspended from practice for three years as provided in A.O. 9, Rule
 7A(2).  We adopt the Board's recommendation that respondent be suspended from
 the practice of law for six months.
      We begin by chronicling respondent's prior disciplinary record and the
 incidents that led to the present petition.  Respondent was admitted to the
 Vermont bar in 1979.  Shortly thereafter, he received his first reprimand for
 a disciplinary infraction.  In re Illuzzi, 138 Vt. 621, 622, 413 A.2d 1220,
 1220 (1980).  Then a deputy state's attorney, he was cited for a traffic
 violation en route to work.  The next day, his employer, the Orleans County
 State's Attorney, wrote a letter to the Washington County State's Attorney's
 office falsely stating that his deputy was responding to an emergency call
 regarding a homicide investigation when he was stopped for speeding.  This
 Court publicly reprimanded respondent for requesting that his employer
 fabricate a story aimed at persuading another prosecutor to dismiss the
 ticket, or for acquiescing in the false account, in violation of DR 1-
 102(A)(4) (lawyer shall not engage in conduct involving dishonesty or deceit)
 and DR 1-102(A)(5) (lawyer shall not engage in conduct prejudicial to
 administration of justice).  Respondent admitted to the falsity of the story

 and stipulated to the infraction after it became apparent that the story had
 been fabricated.
      Less than a year later, respondent received a private reprimand after he
 stipulated to violating DR 7-102(A)(3) (concealing or knowingly failing to
 disclose that which attorney is required to reveal), DR 7-103(B) (failing to
 disclose existence of exculpatory evidence to counsel of criminal defendant),
 and DR 7-104(A)(1) (communicating with party known to be represented by
 counsel).  In that instance, respondent, still a deputy state's attorney, was
 sanctioned after the Board found he should have known that a criminal
 defendant was represented by counsel, but nevertheless allowed the police to
 interview the accused without counsel present.  Not only did respondent fail
 to seek permission for the interview from the defendant's attorney, he also
 failed to inform the attorney that the interview had occurred or to furnish
 the attorney with a copy of the supplementary investigation report that
 recounted the interview.
      In 1983, respondent received another private reprimand for knowingly
 concealing facts, or making a false statement of fact, when he suggested to
 the court that his client, who had been released pending trial on other
 charges, remained incarcerated on the other charges.  This conduct constituted
 another violation of DR 7-102(A)(3).  Although a majority of the Board
 recommended a private reprimand, some members felt stronger action should have
 been taken.  The Board warned respondent that the violations were serious,
 that he had not acted within the standards of character and behavior expected
 of members of the bar, and that he must strictly adhere to the ethical
 standards set forth in the Code of Professional Responsibility.

     In August 1987, respondent received yet another private reprimand after
 the Board accepted a stipulation between respondent and bar counsel stating
 that he had committed acts prejudicial to the administration of justice, in
 violation of DR 1-102(A)(5).  In that incident, respondent had taken over a
 case from another attorney.  Despite the fact that he knew his client's former
 attorney claimed part of any future settlement as payment for services
 rendered, respondent failed to notify the attorney when the case settled or to
 resolve the issue of attorneys' fees before disbursing the settlement funds.
      The present allegations against respondent resulted from his
 representation of two plaintiffs in separate personal injury actions.  In one
 case, respondent represented a woman injured in an accident while a passenger
 in a car driven by her husband.  Respondent contacted the insurance company
 covering the vehicle, Travelers Insurance Company, and attempted to settle the
 matter with its claims supervisor, Linda Fritsch.  When they could not agree
 on the value of the claim, respondent filed a lawsuit on behalf of the
 plaintiff in the summer of 1989, and Travelers retained a law firm to defend
 the claim.  Respondent continued to communicate directly with Travelers,
 despite being told by Fritsch that the law firm had entered an appearance and
 that respondent should speak with counsel rather than the company.  He sent
 letters on September 26 and 28, suggesting that Travelers' counsel had not
 expeditiously handled the case or made the company aware of the relevant law.
 In the second letter, respondent made the following statement: "If you want to
 keep the meter running on your legal costs and expenses in this case, that is
 a decision which is up to you."
        When respondent did not cease direct contact with Travelers, Fritsch
 faxed him a letter on October 2, in which she reiterated that the company was

 represented by counsel and stated, "As such, I am at a loss to understand why
 you keep communicating directly with this office."  Three days later,
 respondent replied:
         I think you know very well why I am communicating with
         your office.  I believe the manner in which this case
         has been handled both by your company and the law firm .
         . . may give rise to a bad faith action directly against
         Travelers and the law firm which you have retained.  I
         need one further point of clarification.  Is the law
         firm . . . representing the interests of Travelers
         Insurance Company?

 Respondent telephoned Fritsch once again and was again told to contact
 Travelers' attorney.  The last direct contact occurred on October 11, 1989,
 when respondent called Travelers and angrily demanded to know why the
 company's counsel had failed to show up for a deposition.  Shortly
 thereafter, Fritsch advised the company's attorney to settle the bodily
 injury portion of the claim for the $20,000 policy limit.
      The second incident giving rise to this disciplinary action again
 concerned respondent's representation of a plaintiff in a personal injury
 case.  Government Employees Insurance Company (GEICO), which was represented
 by the same law firm that represented Travelers in the other action, insured
 the defendant in this second case.  During the course of the trial in May
 1987, defense counsel Lawrence Miller telephoned GEICO's claims
 representative, who informed him that respondent had just called and had
 suggested the company settle the case because the trial was going badly.
 Miller confronted respondent, expressed his dismay that respondent had
 called the insurer, and stated that both the defendant driver of the car
 and the insurance carrier were his clients and that respondent should not
 call GEICO.  Respondent told Miller that he did not know that Miller also
 represented GEICO, and that had he known, he would not have called.  He

 asked whether Miller was going to report him for an ethical violation.
 Miller responded that he "would accept his explanation at face value" and
 would not file a complaint with the Professional Conduct Board.
 Approximately two years later, while the case was pending on appeal,
 respondent again contacted GEICO by letter without Miller's permission.
 Miller then filed a complaint with the Board.
      Based on these two incidents, the Board adopted the second panel's
 determination that respondent violated DR 7-104(A)(1), DR 1-102(A)(7)
 (engaging in conduct adversely reflecting on lawyer's fitness to practice
 law), and DR 1-102(A)(5).  In the first appeal, we rejected respondent's
 argument that DR 7-104(A)(1) should not be applied to prohibit contact
 between plaintiffs' lawyers and insurance company adjusters, holding that
 "the definition of 'parties' under the rule is not restricted to named
 parties in a lawsuit.  The language of the rule suggests no limitation on
 the word 'party.' . . . The rule clearly prohibits direct contact without
 defense counsel's prior consent."  Illuzzi, ___ Vt. at ___, 616 A.2d  at 236.
      The hearing panel found that respondent violated DR 1-102(A)(7) "when
 he disparaged Mr. Miller with the suggestion to the client that he was
 'running the meter.'"  Respondent argues that the petition did not provide
 adequate notice of a violation of this rule, that the rule is
 unconstitutionally vague as applied to the alleged misconduct, and that the
 Board's conclusion that he violated the rule is not supported by the
 evidence.  We reject each of these arguments.
      The petition cited a violation of DR 1-102(A)(7) with respect to both
 counts.  Count II of the petition, on which the Board based the violation,

 states that respondent communicated directly with the insurer several times
 after the company specifically told him to direct his communications to its
 counsel for that particular matter.  The petition alluded to the September
 28, 1989 letter on which the violation was founded, noting that in the
 letter respondent challenged the insurer's legal position and insinuated
 that the company was wasting money on defense of the case.  A copy of the
 letter was attached to the petition.
      Given these factual allegations, respondent received adequate notice of
 the charge against him.  Rule 8C of A.O. 9 requires that the petition
 alleging misconduct be "sufficiently clear and specific to inform the
 respondent of the alleged misconduct."  Attorney disciplinary proceedings,
 like other legal actions, require only that notice "inform the lawyer of the
 nature of the charges . . . in sufficient detail to permit the lawyer to
 prepare a defense."  C. Wolfram, Modern Legal Ethics { 3.4.2 (1986); see In
 re Wright, 131 Vt. 473, 487-88, 310 A.2d 1, 8-9 (1973) (complaint in
 disbarment proceeding sufficient "if it fairly informs [respondent] of the
 nature of the misconduct").  Further, while basic due process rights
 regarding notice apply in disciplinary proceedings, In re Ruffalo, 390 U.S. 544, 550 (1968), the standard for what constitutes sufficient notice of the
 charge is generally lower than in criminal proceedings.  ABA/BNA Lawyer's
 Manual on Professional Conduct 101:2201 (1984).
      Here, notice was not inadequate merely because the petition did not
 specifically allege that the statements made in the September 28 letter
 violated DR 1-102(A)(7).  The panel found violations based on the conduct
 described and the disciplinary rules cited in the petition.  We find no
 violation of due process.

     Nor is DR 1-102(A)(7) unconstitutionally vague or overbroad.  The
 generality of the phrase, "conduct that reflects on fitness to practice
 law," does make the rule susceptible to varying subjective interpretations.
 ABA/BNA Lawyer's Manual on Professional Conduct 101:1001 (1987).
 Nevertheless, the rule has survived due process challenges not only because
 of the impossibility of enumerating every act that might constitute a
 violation of professional standards, but because "the everyday realities of
 the profession and its overall code of conduct provide definition for this
 type of phrase and thus give adequate notice of which behavior constitutes
 proscribed conduct."  Id.  We are not persuaded by respondent's argument,
 and his brief cites no case law in support of his constitutional challenge
 to DR 1-102(A)(7).
      Respondent also claims that the evidence does not establish that he
 disparaged attorney Miller by making the "running the meter" comment in the
 September 28 letter.  We agree that this isolated comment, in and of itself,
 does not clearly disparage Miller.  In isolation, the comment appears to be
 nothing more than a self-serving statement advising Travelers to stop
 spending time and money defending against the claim.  The Board's finding
 that respondent disparaged attorney Miller, however, is supported by the
 letter in its entirety and by an earlier letter.  Respondent states in the
 September 28 letter that he felt the company "should be aware of" statutory
 and case law in Vermont relevant to the then pending case, including the
 repeal of a statute that might have favored the insurer.  The letter warns
 the the insurer that it is "charged with the responsibility of knowing the
 law in the State," and suggests that the company was wasting money by


 "keep[ing] the meter running on . . . legal costs."  Respondent also
 mentions that he had given notice of a deposition to "your legal counsel."
      The letter was a "follow-up" to another letter respondent had written
 to the insurer two days earlier, in which he stated (1) he was not aware of
 any legal authority supporting the insurer's position, (2) attorney Miller's
 law firm had filed an answer to the complaint without even contacting the
 insured motorist it represented, and (3) "well after" filing the answer, the
 firm finally interviewed the insured, who provided information that
 undermined the insurer's position.
      Thus, examined in its entirety and in light of the previous letter, the
 September 28 letter directly suggested that the insurer's law firm had
 failed to apprise the insurer of the law governing the case; that this
 failure had exposed the company to a bad faith claim; and that, given the
 state of the law, the company's legal expenses were a waste of resources.
 The thinly veiled insinuation in the letter was that the law firm was
 profiting from its failure to fully inform the insurer of the state of the
 law governing the case.  We conclude that there was sufficient evidence for
 the Board to find that respondent disparaged attorney Miller.
      Respondent also argues that the evidence does not establish that he
 violated DR 1-102(A)(5) (conduct prejudicial to the administration of
 justice).  Respondent was charged with violating this disciplinary rule only
 as to Count II, the matter concerning Travelers.  The panel concluded that
 he violated the rule by his unauthorized direct contact with the insurer.
 The panel based the violation on respondent's "repeated pattern of
 conduct," not merely one isolated incident.  Following the commencement of


 the Travelers lawsuit, Ms. Fritsch found it necessary to inform respondent,
 both orally and in writing, that the insurer had obtained counsel, who would
 handle further settlement negotiations.  After making this point both
 indirectly and directly, to no avail, Fritsch wrote, "I am at a loss to
 understand why you keep communicating directly with this office."
 Nevertheless, respondent continued to contact the insurer directly, without
 consent or notice to counsel.  The Board's conclusion that respondent's
 actions demonstrated a "pattern" of misconduct was supported by the evidence
 and sufficient to establish that he violated DR 1-102(A)(5).
      Next, respondent argues that the Board improperly considered his prior
 disciplinary infractions in determining the recommended sanction.  According
 to respondent, the Board's reliance upon the prior infractions as an
 aggravating factor violated due process and the prohibition against
 retrospective laws because, at the time he "incurred" the prior reprimands,
 A.O. 9 { 3(e) permitted the Board to consider only prior infractions filed
 in the previous three years.  As amended, effective January 1, 1982, former
 A.O. 9 { 3(e) read:
           A record of the issuance of a public reprimand, public censure or
      admonition shall be maintained by the Professional Conduct Board for a
      period of three years from the date of its filing.  If during that
      period of time the Board conducts new proceedings involving an attorney
      who has been publicly reprimanded, publicly censured or admonished, the
      Board may consider that previous public reprimand, public censure or
      admonition as evidence of a continuing pattern of misconduct so as to
      support a recommendation of discipline in the proceeding then pending
      and to support the discipline recommended.

 This provision was deleted by an order, effective July 1, 1989, generally
 amending the rules governing the operation of the Board.  Since July 1989,
 there has been no limit on the Board's, or this Court's, consideration of

 prior violations.  See A.O. 9, Rule 7B ("Prior findings of misconduct may be
 considered by the Board or the Court in imposing sanctions.").
      We conclude that the Board properly considered the prior infractions in
 determining the appropriate sanction.  First, respondent incorrectly states
 that { 3(e) was in place at the time he "incurred" each of the four prior
 reprimands, and that all four of the prior infractions predated the instant
 proceedings by more than three years.  The first two infractions were found
 in February and November of 1980, while the first version of the three-year
 rule became effective on June 4, 1981.  Respondent contends, however, as
 stated in his affidavit presented to the Board, that the then bar counsel
 induced him to stipulate to the November 1980 reprimand by representing that
 an impending rule change would preclude consideration of infractions more
 than three years old.  This contention, which was refuted by the bar
 counsel, was not pursued before the hearing panel; therefore, we will not
 consider it here.  See A.O. 9, Rule 8D ("The record created before the
 hearing panel shall be the record submitted to the Board.").
      Moreover, respondent's assertion is incorrect because the stipulation
 that led to the 1987 reprimand was accepted in August 1987, before any
 formal petition was brought.  Accordingly, the Board could have considered
 it, even assuming the three-year rule applied here, because the petition in
 the present proceeding was filed in March 1990, less than three years after
 the 1987 stipulation.  Thus, the 1983 infraction is the only prior offense
 that was both found while the three-year rule was in place and filed more
 than three years before the present petition.
      Apparently, respondent would have the Board apply the three-year rule
 retroactively to cover the two 1980 reprimands, but not apply A.O. 9, Rule

 7B retroactively to cover the 1983 and 1987 reprimands.  To justify this
 position, he claims that allowing the 1989 amendment to expand a jeopardy
 period that had already run would impair his "vested" right to the limited
 three-year jeopardy period guaranteed by the former A.O. 9 { 3.  Thus, he
 argues, this situation is distinguishable from Carpenter v. Department of
 Motor Vehicles, 143 Vt. 329, 333, 465 A.2d 1379, 1382 (1983), where the
 plaintiff had argued that the penalty for refusal to submit to a breath test
 was improperly enhanced, pursuant to an amended statute, because the
 commissioner had considered DUI convictions that preceded the amended
 statute.  We held that as long as the triggering act, in that case the
 refusal, occurred after the effective date of the amended statute,
 consideration of the prior convictions for enhancement purposes was not
 improper because there would have been no impact on the plaintiff absent the
 triggering act.  Id.; see Erno v. Commissioner of Motor Vehicles, 156 Vt.
 62, 65-66, 587 A.2d 409, 412 (1991) (applying same rationale).
      We conclude that Carpenter permits retroactive application of A.O. 9,
 Rule 7B because A.O. 9 { 3 never precluded the Board from considering prior
 disciplinary offenses as an aggravating factor in determining the
 appropriate sanction for current violations. (FN1) Section 3 provided that,
 during a three-year period following the issuance of a reprimand, the Board
 "may consider that previous public reprimand, public censure or admonition
 as evidence of a continuing pattern of misconduct so as to support a
 recommendation of discipline in the proceeding then pending and to support

 the discipline recommended."  (Emphasis added.)  Certain violations of the
 disciplinary rules may be grounded on a "pattern of misconduct," as was the
 case here regarding DR 1-102(A)(5).  See State v. Dixon, 664 P.2d 286, 289-
 90 (Kan. 1983) (violation of rule proscribing neglect of client matters may
 be grounded on pattern of conduct with single client or consistent practice
 involving multiple clients).  Thus, on its face, the three-year rule
 prohibited the use of prior offenses only insofar as those offenses
 demonstrated, when considered in conjunction with conduct that triggered the
 current petition, that the respondent's actions constituted a "pattern of
 misconduct" in violation of one of the disciplinary rules.
      The rule, however, does not prohibit the consideration of prior
 offenses as an aggravating factor in determining the appropriate sanction
 for the current violations.  Cf. In re O'Dea, ___ Vt. ___, ___, 622 A.2d 507, 513 (1993) ("The Board, by agreeing not to charge respondent with a
 pattern of misconduct, did not waive consideration of the transcripts from
 noncharged cases as aggravating factors in determining the severity of the
 charged violations and the proper sanction.").  In O'Dea, we distinguished
 between using prior misconduct for the purpose of showing a pattern of
 misconduct and using it to enhance the sanction for the cited violations.
 Id. at ___, 622 A.2d  at 513.  We noted that, aside from its role in
 demonstrating a pattern of behavior, prior misconduct is important to
 consider in disciplinary proceedings in order to tailor the sanction to the
 individual offender and the administration of justice.  Id. at 22.  Here,
 the Board considered the prior infractions as an aggravating factor in
 determining the appropriate sanction for the current violations, not as
 constituting a separate violation based on "a pattern of misconduct," when

 considered in conjunction with the conduct that led to the instant
 petition.  Therefore, it violated neither A.O. 9 { 3 nor due process.
      Further, assuming the three-year rule precluded the Board not only from
 considering prior offenses in finding a current violation based on a
 pattern of misconduct, but also from considering prior offenses as an
 aggravating factor demonstrating a pattern of misconduct, we still conclude
 that the Board did not violate the rule here.  In its Standards For Imposing
 Lawyer Sanctions (1991) (ABA Standards), the American Bar Association
 considers "prior disciplinary offenses" and "a pattern of misconduct" to be
 distinct aggravating factors.  Standard 9.22(a) and (c); see Standard 8.0
 (in addition to warranting special attention that may result in severe
 sanctions, engaging in previously sanctioned conduct "may also demonstrate a
 pattern of misconduct that will serve as an aggravating factor").
      This interpretation of the three-year rule makes sense.  In considering
 whether certain incidents constitute a pattern of misconduct, it is
 appropriate to limit the time frame in which those incidents occur.  The
 administration of justice and the protection of the public are not served,
 however, by limiting consideration of prior offenses, regardless of when
 they occurred, for the purpose of determining the proper sanction of the
 current violation.  See People v. Barber, 799 P.2d 936, 941 (Colo. 1990)
 (four prior disciplinary violations issued from 1973 to 1981 were not so
 remote in time that grievance committee was precluded from considering them
 in aggravation of violation arising from conduct occurring in 1984 and
 1985).  To the contrary, as noted, it is important to consider prior
 infractions in order to tailor the sanction to the individual engaging in
 the misconduct to protect the proper administration of justice.

      We also reject respondent's argument that because the factual situation
 underlying the instant infraction differs from that of prior ones, it was
 improper to consider those previous transgressions, and thus the sanction
 is unwarranted.  The similarity of infractions may affect the weight given
 to them, but any disciplinary history is relevant to the lawyer's general
 fitness to practice law.  Finally, we are not foreclosed from publicly
 disclosing prior misconduct merely because it resulted in a private
 sanction.  In re Clark's Case, 619 A.2d 220, 220 (N.H. 1992).
      We need not address in detail respondent's arguments that (1) the Board
 erred, on remand from the first appeal, by "readopting" the findings in the
 second panel report rather than making further findings and conclusions, and
 (2) the inconsistency between the findings of the panel's first and second
 reports demonstrates that the findings were not supported by clear and
 convincing evidence.  We find no error in the Board "readopting" the panel's
 second report after respondent was given an opportunity to address that
 report.  In any case, it is unclear what remedy respondent seeks.  He
 states in his brief that he wishes this Court to address the legal issues
 not addressed by the Board, without further remand.  Even if we were to
 conclude that on remand the Board should have made findings and conclusions
 concerning the issues raised by respondent, respondent essentially has
 conceded the lack of prejudice.
      Regarding the second argument, respondent does not claim that the
 hearing panel violated the rules by issuing a second report.  The fact that
 the findings in the second report differed from the findings in the first

 report does not demonstrate, in and of itself, that the amended findings
 were not proved by clear and compelling evidence.
      Respondent contends that the Board should have considered as a miti-
 gating factor that direct contact between attorneys and adjusters, even if
 unethical, is the standard custom and practice in the insurance business in
 Vermont.  Respondent points out that in its first report, the hearing panel
 stated that "there is a clear practice in the Plaintiff's and defense bar in
 Vermont of allowing such contact," and that in its second report, the panel
 again acknowledged that the practice occurs in Vermont, stating that there
 was "considerable evidence" of its existence.  We find little merit to this
 argument.  As we stated in the previous appeal,
      Given the absence of ambiguity in the rule, we find irrelevant
      respondent's contention that it is the common and accepted
      practice for Vermont attorneys to have direct contact with
      insurance companies whose defense counsel have not consented to
      such contact.  Moreover, we note that the testimony on the
      practice of insurance attorneys in Vermont is in conflict.
 Illuzzi, ___ Vt. at ___, 616 A.2d  at 236.
      More importantly, as the hearing panel stated in its second report,
 this case concerns "unauthorized contact between Plaintiff's counsel and
 insurance adjusters after Plaintiff's counsel has been told not to contact
 the adjuster," not merely the practice of direct contact between plaintiff's
 counsel and insurance adjusters.  Respondent did not simply follow what he
 perceived to be Vermont custom and negotiate directly with the insurer.
 Rather, he purposely bypassed opposing counsel, despite requests by the
 insurer and its counsel that negotiations be through counsel only.  This
 fact alone distinguishes respondent's behavior from direct communication
 with the insurer early on, before defense counsel has entered an appearance.


      We are not persuaded by respondent's argument that his honest ignorance
 of an ambiguous rule should be a mitigating factor.  Not only was he
 repeatedly told by at least one adjuster and one attorney to communicate
 directly with the company's counsel, but he was also warned that his conduct
 in that regard might constitute a violation of the ethical rules.  Further,
 some of his actions and comments suggest his awareness that his conduct was
 unethical.  For example, the panel found that respondent asked attorney
 Miller whether Miller was going to report him to the Board for calling the
 insurer during a trial and trying to procure a settlement, despite the fact
 that he had agreed to negotiate directly with Miller.  Moreover,
 respondent's ignorance-of-the-law argument carries little weight in light of
 the Board's prior warnings that he must familiarize himself with the ethical
      Nor do the circumstances leading up to respondent's last contact with
 GEICO constitute a mitigating factor.  Even assuming a representative of
 GEICO initiated the contact and Miller knew about that contact, given the
 prior history of the case, respondent was obligated to make a call or write
 a letter to attorney Miller to confirm that the contact was permissible.
      Finally, respondent contends that a six-month suspension from practice
 exceeds the gravity of his violations.  He bases this contention on his
 claim that the violations were unknowing and that there was no actual or
 potential injury.  We conclude the Board's recommended sanction is
 appropriate under the circumstances of this case.
      First, as noted above, we are not persuaded by respondent's claim that
 the violations were unknowing.  Given his past experience, his prior


 disciplinary history, the Board's prior admonitions concerning his need to
 review the disciplinary rules, the repeated signals respondent received that
 his conduct was improper, and his own actions and communications, his
 characterization of his lapses in this case as negligent understates his
      Regarding the actual or potential harm, we recognize that respondent
 directly contacted relatively sophisticated insurance adjusters rather than
 vulnerable litigants who might be more susceptible to manipulation.  We also
 acknowledge that, despite the testimony of attorney Miller and his partner
 that respondent's conduct had damaged the firm's reputation and adversely
 affected their business with GEICO and Travelers, (FN2) the evidence on this
 point was disputed.  Nevertheless, we cannot conclude that respondent's
 conduct did not cause, at minimum, potential injury to a party or
 interference with a legal proceeding.  Indeed, regardless of whether he was
 successful, as some witnesses believed,(FN3) his conduct was aimed at
 interfering with a pending legal proceeding by circumventing defense
      Even assuming respondent's conduct was merely negligent and there was
 little or no injury to the client, a public reprimand would be the
 appropriate sanction, absent mitigating or aggravating circumstances.

 Standard 6.3 of the ABA Standards governs violations for "improper
 communications with individuals in the legal system."  According to the
 commentary of Standard 6.33, most courts impose reprimands on lawyers who
 negligently, but unknowingly, engage in improper communications.  The
 commentary cites In re McCaffrey, 549 P.2d 666, 668 (Or. 1976), where the
 court imposed a public reprimand on a lawyer who unknowingly communicated
 with a party represented by counsel.  Moreover, if we were to conclude that
 respondent's conduct violated only "duties owed to the profession," see ABA
 Standards 7.0, a public reprimand would be the proper sanction, absent
 aggravating or mitigating circumstances.  According to the commentary of
 Standard 7.3 of the guidelines,
           Reprimand is the appropriate sanction in most cases of a
      violation of a duty owed to the profession.  Usually there is
      little or no injury to a client, the public, or the legal system,
      and the purposes of lawyer discipline will be best served by
      imposing a public sanction that helps educate the respondent
      lawyer and deter future violations.
      Had this been respondent's first violation of the ethical rules, a
 public reprimand would have been an adequate sanction.  But given
 respondent's numerous prior disciplinary offenses, suspension from practice
 is necessary.  See In re Rosenfeld, 157 Vt. 537, 547, 601 A.2d 972, 978
 (1991) (lawyer's misconduct warranted suspension because this Court had
 "already imposed the highest non-suspension sanction for other misconduct");
 Florida Bar v. Glick, 397 So. 2d 1140, 1141 (Fla. 1981) (attorney who
 exhibits cumulative misconduct must be dealt with more severely).  The fact
 that we have now sanctioned respondent five times is particularly
 disturbing, considering the number of attorneys in this State and the
 relatively few number of sanctions imposed by this Court in past years.  In
 1980, the year respondent received two separate sanctions, the only other

 sanctions imposed by this Court were three private admonitions.  The
 sanction respondent received in 1983 was the only one imposed that year.  In
 1987, only four other attorneys were disciplined.  Only one other attorney
 in this state has been disciplined five times since 1968.
      Not only has respondent been disciplined on four prior occasions, but
 he has previously violated DR 7-104(A)(1) and DR 1-102(A)(5).  See ABA
 Standards 8.2 (suspension is appropriate when lawyer has been reprimanded
 for same or similar acts and engages in further acts that cause real or
 potential injury).  Although the circumstances of the two violations are not
 identical, the underlying provisions have remained the same.  Respondent's
 repeated violations make it apparent that he has failed to familiarize
 himself with the profession's code of conduct and to conform his behavior to
 that expected of the profession.  His cumulative disciplinary record
 demonstrates a cavalier attitude toward the profession's ethical practices
 and warrants suspension from the practice of law.
      The decision of the Professional Conduct Board is adopted and its
 recommendation for discipline is approved.  Vincent Illuzzi is suspended
 from the practice of law for the period of six months, beginning September
 1, 1993, during which time he shall successfully complete the multi-state
 professional responsibility examination.

FN1.   Respondent argues that another reason Carpenter and Erno do not apply
 is because the triggering act for one of the counts of the current petition
 predates the effective date of A.O. 9, Rule 7B by two weeks.  Assuming that
 respondent's dates are correct, the fact that the triggering act for the
 other count occurred after the amended statute makes his point irrelevant.

FN2.   Attorney Miller testified that respondent's communications had
 produced a "chilling effect" on his firm's relations with representatives of
 both insurers.  Mr. Miller's partner testified that he felt respondent's
 disparaging comments had caused Travelers to shift some of its legal work to
 another firm.

FN3.   Attorney Miller's partner testified that respondent's harassing
 conduct resulted in Ms. Fritsch ordering him to prematurely settle a claim
 that was not likely to prevail.  Ms. Fritsch also testified that
 respondent's intimidating and harassing behavior had caused her to advise
 the company's counsel to settle the case.


 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. 92-602

 In re Vincent Illuzzi                        Supreme Court

                                              Original Jurisdiction

                                              March Term, 1993

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

 David Putter of Saxer, Anderson, Wolinsky and Sunshine, Montpelier, for

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

      ALLEN, C.J., dissenting.   I dissent from the sanction imposed because
 I believe it to be too severe.  We have said that the purposes of sanctions
 are to protect the public from persons unfit to practice, to maintain public
 confidence in the bar and to deter others from similar conduct.  In re Berk,
 157 Vt. 524, 532, 602 A.2d 946, 950 (1991).  The infractions found do not
 reflect upon respondent's fitness to practice law.  They resulted from his
 erroneous belief that it was not improper to make direct contact with
 insurers that had retained counsel to represent their insureds.  While we
 proscribed such contact in In re Illuzzi, __ Vt. __, __, 616 A.2d 233, 236
 (1992), the line had not been clearly drawn before that decision and
 respondent's belief was not totally unfounded.  Indeed, we were able to find
 support for the holding only from a United States District Court and a state
 intermediate appellate court.


      The relationship between an insurer, insured, and counsel retained for
 the insured by the insurer is confusing at best. (FN1) At the outset, the
 insurer and insured usually have a shared interest to successfully resist or
 settle a claim.  This common interest permits the retained lawyer to
 represent ethically both the insurer and the insured in litigation.
 Difficulties arise when conflicts develop between the interests of the
 insurer and of the insured, such as a claimed lack of cooperation, claims
 made in excess of the policy limits, or receipt of information by the
 attorney that might relieve the insurer of the obligation to defend.  When
 such conflicts arise, the attorney's sole loyalty and duty is to the
      The potential for conflict was great in the Travelers case because the
 policy limits were low and a wife was suing her husband.  Respondent's
 inquiry as to whether the attorneys retained to represent the insureds were
 also representing the Travelers is understandable and should bear on the
 question of whether the conduct was knowing under the American Bar
 Association Standards and should also be considered in mitigation.
      The offending letter in GEICO was sent after GEICO had contacted
 respondent in an attempt to settle a companion case being defended by Mr.
 Miller and arising out of the same accident.  During these negotiations,
 GEICO was also attempting to dispose of the earlier case that had gone to
 judgment.  Although I agree that under the circumstances respondent should
 have obtained Mr. Miller's consent to discuss settlement of the earlier case

 directly with GEICO, I don't believe the conduct was so egregious as to
 warrant the sanction of suspension.
      I also do not believe that public confidence in the bar is undermined
 by wholly private contacts between attorneys and employees of insurance
 companies.  The practice exists and undoubtedly will continue.  Our
 determination that the disciplinary rule requires that such contact be
 consented to does not imply that public confidence in the bar is undermined
 where contact is made without consent.  The duty owed was to the profession,
 not the public.
      Respondent was disciplined by the Board for violations of three rules;
 DR 7-104(A)(1), "by communicating with persons of adverse interest"; DR 1-
 102(A)(7), "proscribing conduct adversely reflecting on a lawyer's fitness
 to practice law, when he disparaged Mr. Miller"; and DR 1-102(A)(5), for
 "conduct that is prejudicial to the administration of justice by this
 repeated pattern of contact."  With respect to the latter violation, the
 contacts arguably were not misconduct when committed.  Their repetition
 adds nothing to the discussion.  The majority has concluded, and I agree,
 that Mr. Miller was not disparaged by the "meter running" letter.
      I also do not agree that Standard 6.33 of the American Bar Association
 Standards applies to the violations found.  This standard applies to
 violations for "improper communication with an individual in the legal
 system."  American Bar Association, Standards for Imposing Lawyer Sanctions
 (1991) (ABA Standards) (emphasis added).  It is intended to punish attempts
 to influence a judge, juror, prospective juror, witness or other official,
 and does not apply to the facts before us.
      The appropriate sanctions for improper communications are set forth in
 7.0 of the ABA Standards.  "Admonition is generally appropriate when a

 lawyer engages in an isolated instance of negligence in determining whether
 the lawyer's conduct violates a duty owed to the profession, and causes
 little or no actual or potential injury.  ABA Standard 7.4.  Suspension is
 generally appropriate when a lawyer knowingly engages in such conduct with
 resulting or potential injury.  ABA Standard 7.2.  Thus, the issues are
 whether respondent acted knowingly or negligently and the magnitude of any
 injury.  "Negligence" is defined as "the failure of a lawyer to heed a
 substantial risk that circumstances exist or that a result will follow,
 which failure is a deviation from the standard of care that a reasonable
 lawyer would exercise in the situation."
 ABA Standards at 7.  "Knowledge" is defined as "the conscious awareness of
 the nature or attendant circumstances of the conduct but without the
 conscious objective or purpose to accomplish a particular result."  Id.  The
 respondent failed to heed the risk, and his conduct more closely fits the
 negligence definition.
      In determining an appropriate sanction we should consider, in addition
 to the duty violated and the lawyer's mental state, the potential or actual
 injury and the existence of aggravating or mitigating factors.  ABA
 Standard 3.0.  The only injuries suggested are that the Travelers paid the
 policy limit on a claim that the adjuster thought could be successfully
 defended because respondent had intimidated the adjuster and that respon-
 dent's direct contact had a "chilling effect" on the law firm's relationship
 with two insurers.  The adjuster, Linda Fritsch, testified that at the time
 she advised the attorney employed by Travelers to settle the case, she
 "wasn't as sure as I might have been originally that we would have been
 successful," and she was questioning the decision to deny liability.  The
 adjuster was an experienced assistant manager handling property and casualty

 claims.  There is no claim, or even suggestion, by the insurer that it paid
 more than the claim was worth. (FN2) The evidence established and the hearing
 panel found that insurers routinely have their adjusters contact plaintiffs'
 attorneys after they have retained defense counsel.  It is difficult to
 comprehend how the insurer is not injured by this practice while at the same
 time is injured simply because retained counsel for the insured has not
 granted permission for the contact.
      Although attorney Miller testified that he thought there had been a
 chilling effect on his firm's relationships with the two insurance carriers
 after the contact by respondent, there was no testimony from the insurers
 that this was the case.  At the time of the hearing in this matter, attorney
 Miller had been handling cases for both carriers for twenty-five years.  He
 is an experienced and competent trial attorney.  His firm continues to
 handle cases for the carriers, including the unresolved pieces of the case
 from which the complaint arose.  It is inconceivable that an ethics
 violation by another attorney could impact on this relationship.  In short,
 actual or potential injury is virtually non-existent.  The absence of a
 knowing violation, combined with the absence of actual or potential
 resulting injury, suggests the sanction of admonition under the ABA
 Standards, absent aggravating factors.  ABA Standard 7.4.  Even the
 application of ABA Standard 6.33 would not warrant suspension as there has
 been no showing that the respondent knew the communication was improper and
 no showing of injury or interference.


      The final consideration for the Court in imposing a sanction is the
 existence of aggravating or mitigating factors.  ABA Standard 3.0(d).
 Aggravating circumstances are any considerations that may justify an
 increase in the degree of discipline to be imposed and include prior
 disciplinary offenses.  ABA Standards 9.21, 9.22.  I agree with the
 majority's characterization of respondent's past disciplinary record and
 conclude that this record warrants a greater punishment than admonition; I
 would impose a public reprimand.

                                              Chief Justice

FN1.    It has been said that the relationship between the insurer and the
 retained attorney is not that of attorney and client.  Atlanta Int'l Ins.
 Co. v. Bell, 475 N.W.2d 294, 297 (Mich. 1991).

FN2.    The first report of the hearing panel made the following finding:
 "The panel is unpersuaded that there was damage to Linda Fritsch.  The panel
 believes that insurance adjusters are sophisticated enough to know what
 should and should not be done in this area."