In re Free

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ENTRY_ORDER.93-532; 161 Vt. 602; 640 A.2d 22

[Filed 07-Jan-1994]

                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 93-532

                             DECEMBER TERM, 1993


 In re Edwin W. Free, Jr., Esq.    }          Original Jurisdiction
                                   }
                                   }          FROM
                                   }          Professional Conduct Board
                                   }
                                   }          DOCKET NO. 92.46


              In the above entitled cause the Clerk will enter:


      Pursuant to the recommendation of the Professional Conduct Board filed
 November 8, 1993, and approval thereof, it is hereby ordered that Edwin W.
 Free, Jr., Esq., be publicly reprimanded for the reasons set forth in the
 Board's Notice of Decision attached hereto for publication as part of the
 order of this Court.  A.O. 9, Rule 8E.







                                    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
 [x] Publish

 [ ] Do Not Publish

-------------------------------------------------------------------------------
 
                               STATE OF VERMONT
                          PROFESSIONAL CONDUCT BOARD

  In re:   PCB File No. 92.46
            Edwin W. Free, Jr., Esq.


                              NOTICE OF DECISION

                              Decision No.  62

       This matter came before the Professional Conduct Board by way of a
  stipulation between Bar Counsel, Shelley A. Hill, and Respondent, Edwin
  W. Free, Jr.  Respondent waived his procedural rights under
  Administrative Order 9, including the right to contest the sanction
  recommended by the Board.

       Based upon the stipulated facts, the Board makes the following
  findings of fact and conclusions of law.  For the reasons set forth
  below, it recommends to the Supreme Court that Respondent be publicly
  reprimanded.
                                    FACTS
       1.  Respondent, Edwin W. Free, Jr., Esq., was admitted to the
  Vermont bar on May 3, 1960.

       2.  Mr. Free represented Denis A. Roy in 1987 in a divorce action
  brought by the Complainant, Helen Roy.  While the divorce was pending, on
  December 31, 1986, the Roys entered into a stock purchase agreement with
  a third party.  The Roys sold to the Buyers 16 shares of stock they owned
  in Peerless Granite Co. for $670,000.  The purchase arrangement had
  several components--cash, discharge of an existing mortgage and two

  

   promissory notes.  Mr. Roy held one of the notes and secured it with a
   second mortgage on Peerless Granite real estate and corporate property.
   Mr. and Mrs. Roy jointly held the other promissory note.

        3.   On the same date the Roys entered into the stock purchase
   agreement, Mrs. Roy took a year-end bonus from Peerless Granite of
   $20,000.    The Buyers were not informed of the bonus and did not discover
   it prior to the January 30, 1987 closing.  When the Buyers discovered the
   bonus to Mrs. Roy, they withheld $20,000 from the final payment on what
   was later determined to be the jointly-held note.

        4.  The Roys' Final Order of Divorce, dated July 22, 1987, provided
   in part:

              11.  The right to seek collection of $20,000 that
              is in dispute between Peerless Granite Company and
              the parties hereto is awarded to Denis A. Roy.
              Helen C. Roy is ordered to cooperate with Denis A.
              Roy if she is requested to do so in his collection
              efforts, provided, however, that Helen C. Roy shall
              be awarded one-fourth of any such recovery after
              the payment of attorney fees and costs.

        5.  In May 1991, Mr. Free began the document preparation for the
   collection of the $20,000.  The jointly-held note was made payable to
   Peerless Granite, Denis A. Roy and Helen C. Roy.     When Mr. Free met with
   the Roys to discuss the lawsuit, no mention was made of the provisions in
   paragraph 11 of the divorce order.  Mr. Free did not recall the relevant
   provision of the divorce order and brought the action against the Buyers
   in the names of the payees on the note--including Mrs. Roy, even though
   he did not represent her.   6.  In July 1991, the Buyers filed an answer
   and counterclaim against all the plaintiffs.     In April 1992, Mr. Free
   amended the complaint, again reflecting Helen Roy as a plaintiff.

        7.  The Buyers noticed Mrs. Roy's deposition for April 30, 1992.

 

   At Mr. Free's request, Mrs. Roy went into his office to review Mr. Roy's
   deposition on April 29.  When she saw the document, she asked why she was
   a named plaintiff.  She then reminded Mr. Free of paragraph 11 of the
   Final Divorce Order and informed him that he had no authority to bring
   suit on her behalf.  She further informed Mr. Free that, although she had
   no objection to being a witness, she did not want to be a plaintiff and
   would not attend the deposition.

        8.  Mr. Free told her he would try to have her removed as a
   plaintiff but, regardless of his success, the defendants would bring her
   in on their counterclaim.  Mrs. Roy then told Mr. Free she would get in
   touch with her  own attorney, Rusty Valsangiacomo.

        9.  Upon receipt of a letter from Mrs. Roy, dated April 30, 1992,
   Mr. Valsangiacomo called Mr. Free to ascertain what was happening.  Mr.
   Free reiterated that he would get Mrs. Roy's name dropped from the
   lawsuit.

        10.  Mr. Free was unable to remove Mrs. Roy as a plaintiff.

        11.  On June 18, 1992, Mr. Free called Mrs. Roy at work to again
   request her attendance at a deposition.  Mr. Free did not have authority
   from Mr. Valsangiacomo to contact his client directly.  Mrs. Roy told Mr.
   Free to contact Mr. Valsangiacomo, which he did.

        12.  During this conversation, Mr. Valsangiacomo learned of the
   counterclaim against Mrs. Roy.  He asked Mr. Free for a copy of the file.
   Upon reviewing it, Mr. Valsangiacomo realized that Mrs. Roy would have to
   remain a party.  He also discovered that Mr. Free had not filed answers
   to the counterclaim, despite two Motions for Default Judgment for failure
   to answer.  The judge had threatened, although not ordered, penalties of

 

   approximately $100 per day until the answers had been filed.

        13.  Mr. Free again called Mrs. Roy on July 30, 1992 at work and
   asked that she come to his office to clarify some issues.  She refused
   but agreed to answer his questions over the telephone.  Mr. Valsangiacomo
   was on vacation and had not authorized Mr. Free to contact his client.

        14.  Trial on the matter was in August 1992.
   Judgment was for the Roys in the amount of $20,000 (plus statutory
   interest), but did not include attorneys' fees.  The Buyers appealed.
   The Roys appealed the denial of attorneys' fees.  The case is presently
   pending before the Supreme Court.

        15.  There was no injury to Mrs. Roy.  She would have been joined
   as a necessary party by the defendants irrespective of being a named
   plaintiff.  She recovered at trial and may be awarded attorney's fees by
   the Supreme Court.

                               CONCLUSIONS OF LAW

        By instituting a lawsuit partially in the name of Helen C. Roy,
   without any authority to do so, Respondent misrepresented to the court
   and the opposing litigants that he represented Mrs. Roy, in violation of
   DR 1-102(A)(4)(a lawyer shall not engage in conduct involving
   misrepresentation).

       Respondent knew as of the April or May 1992 conversation with
   Attorney Valsangiacomo that Mrs. Roy was represented by Mr.
   Valsangiacomo.  By contacting Mrs. Roy on June 18, 1992 and again on July
   30, 1992 to discuss the litigation, Respondent violated DR 7-104(A)(1)(a
   lawyer shall not communicate on the subject of the representation with a
   party he knows to be represented by a lawyer without prior consent of the

  

    lawyer) .

                              RECOMMENDED SANCTION

         Respondent here violated his duty to the  legal  system.  Standard  6,
    ABA Standards for Imposing Lawyer Discipline  (1986).  He  acted  knowingly
    in that he knew he did not represent Mrs. Roy when he filed  the  law  suit
    and he knew Mr. Valsangiacomo represented Mrs. Roy when  he  contacted  her
    directly.   No actual injury occurred, however, either to Mrs. Roy or to
    the legal proceedings.

         In aggravation, the Board notes that Respondent has substantial
    experience in the practice of law.  The  most  serious  aggravating  factor,
    however, is Respondent's disciplinary record.  In 1975, Respondent was
    privately admonished for neglecting a client's case.  PCB 75.21.  In
    1980, he was privately admonished for neglecting client matters in
    violation of DR 6-101(A)(2) and (3).  PCB  File  80.62.  More  importantly,
    in 1992, Respondent was suspended from the practice of law for  six  months
    following conviction for failure to file Vermont  Income  Tax  returns.  He
    has not applied for readmission and remains suspended.

        There are mitigating factors present:    Respondent  had  no  dishonest
    or selfish motive in  his actions, was  cooperative  with  the  disciplinary
    proceedings, and has demonstrated remorse for his misconduct.

        Bar counsel and respondent have suggested to the Board that a
    private admonition is appropriate here in accordance  with  Standards  6.14
    and 6.34.  Those standards, however, refer to negligent conduct.   More
    importantly, the private admonition suggested by Standards  6.14  and  6.34
    is recommended absent aggravating or mitigating factors.

        We believe that Respondent's extensive experience at the bar and

 

   his disciplinary record require more than a private admonition and
   recommend to the Court that Respondent be publicly reprimanded in this
   case.

         Dated at Montpelier this 5       day of November, 1993.


                                  PROFESSIONAL CONDUCT BOARD

                                  Debroah S. Banse, Chair



               Anne K. Batten                           Donald Marsh
               Josph F. Cahill, Esq.                    Karen Miller, Esq.
               Nancy Corsones, Esq.                     J. Garva Murtha, Esq.
               Paul S. Ferber, Esq.                     Robert F. O'Neill, Esq.
               Nancy Foster                             Ruth Stokes
               Rosalyn L. Hunneman                      Jane Woodruff, Esq.
               Robert P. Keiner, Esq.                   Edward Zuccaro, Esq.
                                                  6

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