In re Robinson
Annotate this Case
ENTRY_ORDER.93-533; 161 Vt. 605; 639 A.2d 1384
[Filed 07-Jan-1994]
ENTRY ORDER
SUPREME COURT DOCKET NO. 93-533
DECEMBER TERM, 1993
In re William D. Robinson, Esq. } Original Jurisdiction
}
} FROM
} Professional Conduct Board
}
} DOCKET NOS. 90.55 & 92.30
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 William D.
Robinson, 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[ ] Do Not Publish
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STATE OF VERMONT
PROFESSIONAL CONDUCT BOARD
In re: PCB File Nos. 90.55 and 92.30
William D. Robinson, Esq.--Respondent
NOTICE OF DECISION
DECISION #63
This matter came before the Professional Conduct Board on September
30, 1993 by way of a stipulation between Bar Counsel, Shelley A. Hill,
and Respondent, William D. Robinson. By this stipulation, Respondent
waived all of his rights under Administrative Order No. 9, including the
right to contest the recommended sanction.
After due consideration of the stipulation, the Professional
Conduct Board hereby makes the following findings of fact and conclusions
of law. For the reasons stated below, the Board recommends to the
Vermont Supreme Court that William D. Robinson be publicly reprimanded.
FACTS
1. Respondent, William D. Robinson, was admitted to the Vermont
bar on October 5, 1971.
2. Mr. Robinson represented Stephen Mullin in a protracted, hotly
contested and emotionally charged post-divorce custody matter in which
the parties shared custody of two minor boys.
3. On February 24, 1990, Mr. Mullin's ex-wife, Rita Phelps,
obtained an ex-parte temporary relief from abuse order. She alleged that
Mr. Mullin had sexually abused the youngest child. The court
subsequently held a hearing on the matter. It concluded on March 1, 1990
that the allegations of abuse were unsubstantiated. The court ordered
the previous parent-child contact schedule as set forth in the order of
divorce to resume. The court ordered Ms. Phelps to return the children to
Mr. Mullin that day for the upcoming weekend. Ms. Phelps was then to
have the children with her on the following week-end.
4. Ms. Phelps did not return the children to their father that
day, as ordered by the court. She did not do so, according to Ms.
Phelps, because when they arrived at the drop-off location, the children
were hysterical. She drove around in an attempt to calm them and
eventually drove to the Bethel State Police barracks at 8:45 p.m. They
told her to take the children home and deliver them to the local Social &
Rehabilitation Services office the next morning. No one notified either
Mr. Mullin or Mr. Robinson of the whereabouts of the children or of Ms.
Phelps' plan. The children were turned over to Mr. Mullin the next
morning, March 2, 1990.
5. Throughout the day and evening of March 1, 1990, Mr. Mullin was
frantic over the whereabouts of his children. He was concerned that Ms.
Phelps had absconded with them. He contacted Mr. Robinson for his advice
as to whether or not, if the children were eventually returned, he should
turn them over to their mother at the end of his visitation, as required
by the divorce order.
6. Mr. Robinson advised his client that, due to the changed
circumstances since that morning's hearing--i.e- that Ms. Phelps had not
returned the children as ordered--he should not give the boys back to
their mother under any circumstances, pending the next custody hearing
which was then scheduled for March 20, 1990.
7. Since Mr. Robinson was leaving the country early on March 2,
1990, he dictated a letter to the court detailing the circumstances and
informing the court of his advice to his client. He left instructions to
his secretary to sign the letter and hand-deliver it to the court. That
letter states in pertinent part:
As a result of this situation, I have advised Mr.
Mullin that if the children are returned to him, he
should not deliver them to his former wife under any
circumstances. I realize that this is contrary to your
verbal Order from the bench, but the situation has be-
come extremely precarious. I wanted to inform you of
my advice to my client so that you would not perceive
it as being contemptuous of your Order. I take full
responsibility for this position and any action in
accordance with it by my client is based solely on
my advice. Since the custody hearing is scheduled
for March 20, retention of physical custody of the
children until that time by their father appears
necessary in order to ensure that the mother will not
again abscond with them.
8. Mr. Mullin followed his attorney's advice and refused Ms.
Phelps access to her children, pending the next court hearing. That
hearing was eventually held on April 5, 1990. Mr. Mullin's actions were
contrary to the requirements of the court order of March 1, 1990 and the
original divorce order. As a result of Mr. Mullin's actions, Ms. Phelps
was injured: she was denied contact with her children for four weeks.
Ms. Phelps, through her attorneys, filed a motion for contempt against
Mr. Mullin. That motion was never addressed by any court.
9. In a separate hearing in this same case on December 6, 1991,
Mr. Robinson appeared on behalf of Mr. Mullin, and Ms. Phelps appeared
pro se. Upon Mr. Robinson representing to the court that a new therapist
for the older child had been engaged, the court ordered Mr. Mullin to
provide information on the therapist's qualifications to the court and to
all parties.
10. Mr. Robinson did not submit the required information to the
court on behalf of Mr. Mullin, as he never received the information from
his client. Mr. Robinson never filed a Motion for Protective Order to
relieve his client of the obligation to supply the documents.
11. On January 9, 1992, a status conference was held in this case.
The court ordered Mr. Robinson to provide to Ms. Phelps, who was still
appearing pro se, all documents concerning the children which he had
received from Utah, the state where Mr. Mullin resided. The deadline for
production of these documents was January 14, 1992, the date of the next
hearing.
12. Mr. Robinson received a copy of an evaluation of the children
which had been prepared by the therapist in Utah. While it is not known
when Mr. Robinson obtained this report, it is undisputed that he had it
by January 9, 1992. Sometime between then and January 14, Mr. Robinson
transmitted this report by facsimile to the children's attorney. He did
not, however, provide a copy of this report to Ms. Phelps in advance of
the January 14, 1992 hearing, as ordered by the court.
13. When asked by the judge about his failure to abide by the
order of the court, Mr. Robinson misrepresented that he had received the
evaluation only one or two days prior to the January 14, 1992 hearing.
This was not true.
14. Ms. Phelps was not prejudiced by Mr. Robinson's failure to
provide her the report in advance of the hearing.
CONCLUSIONS OF LAW
DR 7-106(A) provides that a lawyer shall not disregard, or advise
his client to disregard, a standing rule of a tribunal, or a ruling of a
tribunal made in the course of a proceeding, but he may take appropriate
steps in good faith to test the validity of such rule or ruling. Mr.
Robinson violated this provision when he advised his client to deny Ms.
Phelps access to her children, when he failed to submit to the court
information on the new therapist, and when he failed to abide by the
court order to provide to Ms. Phelps a copy of the report in advance of
the January 14, 1992 court hearing.
DR 7-102(A)(5) prohibits a lawyer from knowingly make a false
statement of fact. Mr. Robinson violated this provision when he told the
court on January 14, 1992 that he had only received the report a day or
two earlier, when he knew he had the report in his possession for at
least 5 days.
DR 1-102(A)(5) prohibits an attorney from engaging in conduct that
is prejudicial to the administration of justice. Mr. Robinson violated
this provision by failing to obey the court's order, advising his client
to disobey the court order, and misrepresenting facts to the court. This
conduct also adversely reflects on Mr. Robinson's fitness to practice
law, in violation of DR 1-102(A)(7).
RECOMMENDED SANCTION
Respondent's misconduct here constituted serious breaches of his
ethical duty to the court.
Ms. Phelps' failure to deliver the children to Mr. Mullin on March
1 violated the court's order. However, her illegal actions did not vest
Mr. Mullin with the right to disobey the court order as well. While Ms.
Phelps' illegal activity may have constituted "changed circumstances",
Respondent's only recourse was to bring those changed circumstances
immediately to the attention of the court and to seek a modification of
the visitation order. He could have done so on an emergency basis. Mr.
Robinson had absolutely no authority to counsel his client to disobey the
order. The fact that Respondent honestly believed he could ethically
give such advice belies a basic misunderstanding of his ethical
obligations to the court.
A lawyer has a duty to protect his client's rights and to further
the client's lawful interests. However, when those interests conflict
with a court order, the lawyer's duty to uphold the law is paramount to
the interests of his client.
An attorney owes his first duty to the court. He assumed
his obligations toward it before he ever had a client. His
oath requires him to be absolutely honest even though his
client's interests may seem to require a contrary course. The
[lawyer] cannot serve two masters and the one [he has]
undertaken to serve primarily is the court.
In re Integration of Nebraska State Bar Association, 1333 Neb 283, 289,
275 NW 265, 268 (1937).
The Board is mindful that there are few areas in the practice of
law more stressful than contested child custody cases. However, family
law practitioners must work within the same ethical framework as the rest
of the bar.
Indeed, the need is greater in family matters where the
emotional commitment of the parties to the rightness and
justice of their cause may lead to the use of self-help, which
undercuts the ability of the court to resolve disputes in a
meaningful or effective manner.
In re Alan D. Rosenfeld, 157 Vt. 537, 544 (1991).
In mitigation, the Board notes that Respondent honestly believed he
could advise his client to disobey the court order. He advised the court
promptly of what he had done and took full responsibility for his
actions. Respondent's misconduct was apparently the result of a
negligent misunderstanding of his duty to obey the court order in light
of changed circumstances. He did not willfully seek to undermine the
court.
In aggravation, the Board notes that the injury was substantial.
Ms. Phelps was wrongfully denied access to her children for four weeks.
Respondent's subsequent dishonesty to the court is also serious
misconduct, the reasons for which are not clearly addressed in the
stipulated facts. There was potential for actual injury, although Ms.
Phelps was not actually injured.
There are additional mitigating factors present in this case:
1. Respondent has been practicing law in Vermont
continuously for a period of 21 years and has no prior
disciplinary record;
2. Respondent cooperated fully with the disciplinary
proceedings and accepts full responsibility for his
misconduct;
3. Although there were repeated instances of
misconduct in this particular case, there was no
pattern of misconduct in regard to other matters
handled by Respondent; and
4. The disciplinary proceedings in File No. 90.55 have
been pending for almost three years.
There are a number of aggravating factors present as well:
1. Respondent had a selfish motive when he made
misrepresentations to the court; and
2. Respondent has substantial experience in the practice
of law.
Three provisions of the ABA Standards for Imposing Lawyer
Discipline are relevant here.
Standard 5.13 provides that "[r]eprimand is generally appropriate
when a lawyer knowingly engages in ... conduct that
involves ... misrepresentation and that adversely reflects on the lawyer's
fitness to practice law."
Standard 6.12 provides that "[s]uspension is generally appropriate
when a lawyer knows that false statements ... are being submitted to the
court ... and takes no remedial action, and causes ... potential injury to a
party to the legal proceeding, or causes a[ ] ... potentially adverse
effect on the legal proceeding."
Standard 6.22 provides that "[s]uspension is appropriate when a
lawyer knowingly violates a court order ... and there is injury ... to
a ... party ... "
While there is an argument to support suspension, the majority of
the Board believe that a public reprimand in this case will be sufficient
to deter others-from similar misconduct and to protect the public from
further misconduct by Mr. Robinson. If Mr. Robinson's had engaged in
similar misconduct in more than one case, if his misrepresentations to
the court had caused actual injury to the litigants, or if Mr. Robinson
had a record of other violations during his legal career, the Board would
not hesitate to recommend a suspension. The Board is satisfied, however,
that Mr. Robinson now understands his ethical obligations and is not
likely to commit further ethical breaches.
Dated at Montpelier, Vermont this 5 day of November, 1993.
PROFESSIONAL CONDUCT BOARD
Deborah S. Banse, Chair
Anne K. Batten Donald Marsh
Joseph F. Cahill, Jr., Esq. Karen Miller, Esq.
Nancy Corsones, Esq. J. Garvan Murtha, Esq.
Nancy Foster Robert F. O'Neill, Esq.
Rosalyn L. Hunneman Ruth Stokes
Robert P. Keiner, Esq. Jane Woodruff, Esq.
Edward Zuccaro, Esq.
Dissenting Opinion:
I join the majority's decision that Respondent violated DR 1-
102(A)(5), DR 1-102(A)(7), DR 7-102(A)(5) and DR 7-106(A). I disagree
that the appropriate sanction for these violations is a public reprimand.
The cumulation of Respondent's misconduct, as well as several of the
violations in themselves, support a six month suspension under the ABA
Standards for Imposing Lawyer Sanctions.
The critical facts found by the Hearing Panel and accepted by the
Board are as follows:
1. Respondent advised his client to disobey a court order.
This not only constituted a violation of DR 7-106(A) but it also
exposed his client to sanctions for contempt. This latter fact serves to
emphasize the seriousness of Respondent's violation as well as the
potential harm to his client. ABA Standard 6.22 provides that suspension
is the appropriate sanction when an attorney "causes interference or
potential interference with a legal proceeding." The evidence is
undisputed that Respondent knew he was advising his client to disobey and
court order and therefore interfered with the legal proceeding.
Furthermore, he caused substantial harm to Ms. Phelps by denying her any
contact with her children for four weeks.
Suspension is also appropriate for this conduct under Standard 7.2
since respondent knowingly engaged in conduct in violation of a duty owed
to the profession (counseling a client to act in a way which would
subject a client to sanctions for contempt) and caused potential injury
to his client. Although no contempt proceeding was brought, Respondent
placed his client in the position where such a proceeding could have been
brought.
2. Respondent lied to the court when he told the court on January
14, 1992 that he had only received the report of the therapist who
evaluated the children a day or two earlier, when he knew he had the
report in his possession for at least 5 days.
Respondent lied in an effort to explain why he had not provided the
report to the other side prior to the January 14 hearing. Among the most
serious violations, attacking the very roots of our legal system, is
making false statements to a court. Standard 6.12 provides that
suspension is the appropriate sanction for conduct prejudicial to the
administration of justice or involving false statements to the court
which cause potential injury or potentially adversely affects the legal
proceeding. Although the record does not demonstrate that the opposing
party was actually prejudiced or that the proceeding was adversely
affected, it is obvious that receiving a critical report, a therapists
report on the children, in connection with a custody hearing at least
potentially has the actual or potential adverse affects.
3. The combination of the above behavior establishes that
Respondent engaqed in conduct prejudicial to the administration of
Justice and adversely reflects on Respondent's fitness to practice law.
The majority recognized that Respondent's actions violated both DR
1-102(A)(5) and (7). The majority correctly observes that Standard 5.13
requires reprimand under the facts of this case for Respondent's conduct
which adversely reflected on Respondent's fitness to practice law.
However, to the extent that the Respondent engaged in conduct prejudicial
to the administration of justice, Standard 7.2 supports the imposition
of a suspension.
The ABA Standards identify four factors to consider in imposing a
sanction for lawyer misconduct. The preceding discussion has reviewed two
of those factors: the duty violated and the actual and potential injuries
connected to the violations. The majority noted that "Respondent's
misconduct here constituted serious breaches of his ethical duty to the
court" and "that the injury was substantial." I believe that even the
majority's analysis overwhelmingly demonstrates that those two factors
support suspension as the appropriate sanction.
A third factor is the lawyer's mental state. As to both major
violations, the Respondent acted from a selfish motive in one instances
and negligently, at best, in the other. As to one violation, the
majority noted that "Respondent had a selfish motive when he made
misrepresentations to the court". AS to the second, since, as the
majority also noted, Respondent had "substantial experience in the
practice of law", it is fair to infer that he knew the proper procedure
for obtaining emergency relief. The failure to take action which he knew
was available and appropriate and knowledge that, the failure to take the
action could expose his client to sanctions for contempt of court are
unlikely to have resulted from a positive mental state. Rather, the facts
suggest that the Respondent was, at a minimum, negligent in respect to
advising his client to violate the custody order.
The fourth factor is the existence of aggravating or mitigating
factors. The ABA Standards list 13 mitigating factors. The majority
relies on only three of those listed factors: no prior disciplinary
record, the proceeding has been pending for nearly three years and
cooperation with the disciplinary proceedings. The fourth which the
majority lists the absence of a "pattern of misconduct in regard to other
matters handled by Respondent", is not among those listed in the ABA
Standards and is not, I believe, a proper mitigating circumstance.
Indeed, in its discussion of this point as a mitigating factor, the
majority actually describes an aggravating factor which it nowhere
recognizes as an aggravating factor: "there were repeated instances of
misconduct in this particular case". This is an aggravating factor under
9.22(d).
Against what I view as mitigating factors of relatively lesser
weight than most of the others in the ABA Standards, there are several,
weightier aggravating circumstances. In addition to 9.22(d), the
Respondent had a selfish motive (9.22(b)); Respondent did not acknowledge
the wrongful nature of his conduct (9.22(g)); the two victims were a
divorced husband and wife engaged in a child custody dispute, two people
in an extremely vulnerable state (9-22(h)); and finally, Respondent had
been admitted to the Vermont bar almost twenty years at the time of the
misconduct (9.22(i)).
I would interpret the ABA Standards list of aggravating and
mitigating factors to come into play after reaching a conclusion of the
appropriate sanction after an analysis of the first three factors. I
believe that the first three factors weigh very heavily toward
suspension as the appropriate sanction. When I review the mitigating and
aggravating circumstances to determine whether a different sanction
should be imposed, I would not view the mitigating circumstances to be of
such weight as to justify a reduction of the sanction. Quite the
contrary seems true. The aggravating circumstances would be substantial
enough to increase a public reprimand to a suspension.
The purposes of sanctions are to protect the public and to educate
the profession. ABA Standard 1.1. I would find that both these purposes
are served by a six month suspension. I find two factors particularly
compelling. First, the Respondent exposed his client to a contempt
proceeding by advising him to disobey an existing court order. Second,
Respondent lied to a court. To tell the public and the profession that
those two actions deserve a slap on the wrist (and that is what I believe
the affect of the public reprimand is likely to appear to the public and
the profession), is neither justified by the facts of the case, the ABA
Standards or the majority's reasoning.
As a final point, I would emphasize that the fact that Respondent's
actions took place in the context of a child-custody dispute supports
the imposition of a more stringent sanction. Indeed, the majority
recognizes that the Supreme Court has indicated that lawyers must be even
more careful about their conduct in family matters. In Re Alan D.
Rosenfeld, 157 Vt. 537, 544 (1991). At the time that client emotions are
most intense, when clients are most vulnerable, the lawyer must act even
more carefully in a thoughtful, reflective, ethical manner. The lawyer's
role is to facilitate effective, lawful resolution of disputes, not to
fuel the clients' fires further or to undercut court rulings. This is the
message the Board ought to send to the public and the profession.
For these reasons, I would recommend that Respondent receive a six
month suspension.
Paul F. Robert, Esq.
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