In re McCarty

In re McCarty  (95-276); 164 Vt 604; 665 A.2d 885

[Filed 11-Aug-1995]


                                 ENTRY ORDER

                   VERMONT SUPREME COURT DOCKET NO. 95-276

                               JUNE TERM, 1995


In re William M. McCarty, Jr., Esq.  }              Original Jurisdiction
                                     }
                                     }              FROM
                                     }              Professional Conduct Board
                                     }
                                     }              DOCKET NO. 93.25


       In the above-entitled cause, the Clerk will enter:

       Pursuant to the recommendation of the Professional Conduct Board filed
  June  5,  1995, and approval thereof, it is hereby ordered that William M.
  McCarty, Jr., Esq.,  be  publicly reprimanded and placed on probation for
  six months for the reasons set forth in the Board's final report attached
  hereto for publication as part of the order of this Court.  A.0. 9, Rule
  8E.

       The probationary period shall begin on September 1,  1995  and  end 
  on  February  29, 1996.




                                  BY THE COURT:


                                  Frederic W. Allen, Chief Justice

                                  Ernest W. Gibson III, Associate Justice


                                  John A. Dooley,   Associate Justice


                                  James L. Morse, Associate Justice 
[x] Publish

[ ] Do Not Publish                Denise R. Johnson, Associate Justice



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                              STATE OF VERMONT

                         PROFESSIONAL CONDUCT BOARD


In re:   William M. McCarty, Jr., Respondent

PCB File No. 93.25

            FINAL REPORT AND RECOMMENDATION TO THE SUPREME COURT

                               Decision No.  90

       Pursuant to A.0. 9, Rule 8E, the Professional Conduct Board hereby
  reports to the Supreme Court its findings of fact, conclusions of law and
  recommended disposition in this matter.

       On April 7, 1995, a hearing panel of the Professional Conduct Board
  issued a report following a hearing on the merits.  The panel found that
  Respondent violated DR 2-110(A)(2) by failing to return client property to a
  client after termination of the legal representation. The panel further
  found that the failure to return property was not justified by assertion of
  an attorney retaining lien because Respondent had not complied with his
  client's reasonable request for details regarding an outstanding bill. 
  Because of a number of aggravating factors, the panel recommended that
  Respondent be suspended from the practice of law for one month.  In
  addition, the panel recommended a period of probation during which
       Respondent be required to submit the requested billing information to
  his client and, if necessary, to 

  

  submit the billing dispute to arbitration.

       The Board held a hearing on this matter on May 5, 1995, pursuant to
  A.0. 9, Rule SD. The Respondent, his counsel Douglas Richards, Esq., and
  Bar Counsel, Shelley A. Hill, Esq. appeared.  The Board entertained oral
  argument from Respondent, through counsel, and from Bar Counsel.  In
  addition, the Board considered the brief filed by Respondent.  No brief was
  filed by Bar Counsel although she answered each of Respondent's arguments
  orally.

       In his brief, Respondent raises four arguments, each of which will be
  addressed below.

       First, Respondent claims that the hearing panel erred in failing to
  find certain facts as requested by Respondent.  Respondent argues that
  since these facts were not controverted by Bar Counsel, the hearing panel
  was required to include them in its findings.

       The hearing panel's report includes facts which it found, by clear and
  convincing evidence, to be relevant to the issues at hand.  The hearing
  panel is not obligated to find facts it does not find relevant to the issue
  of whether Respondent returned property to his client upon the termination
  of the relationship.  The facts which Respondent claims were erroneously
  omitted concern the details of the client's business and the obnoxiousness
  of the client's behavior when he was unable to secure return of his
  property.  While some of these details may be interesting, they are not
  directly relavant to whether Respondent provided client property to the
  client upon his request.  The hearing panel  appropriately exercised its
  discretion in omitting these details in its report.

       Second, Respondent argues, without citation to specifics in a
  transcript, that the panel's findings of fact consistent with the client's
  version of events and contrary to Respondent's version was contrary to the
  evidence.  Respondent argues that because the

  

  hearing panel rejected Respondent's submissions, it was biased against
  Respondent.

       We see no evidence of bias by the hearing panel.  It is the
  responsibility of the hearing panel to weigh the credibility of each
  witness appearing before it.  The hearing panel's report indicates that it
  did so.  We cannot find, based upon Respondent's submission, that the
  hearing panel's findings are contrary to the evidence.  Indeed, the hearing
  panel's report evidences a considerable effort to sift through the various
  factual and legal contentions. We adopt the hearing panel's findings of
  fact as our own.
                    
       Third, the Respondent argues that the hearing panel's conclusions of
  law are erroneous.  We disagree and adopt as our own the conclusions of law
  reached by the panel.
  
       Fourth, the Respondent argues that the sanction of suspension for one
  month is inappropriate.  We agree that a less severe sanction is
  appropriate.
  
       Under Administrative Order 9, the Supreme Court promulgated rules
  which allow for two types of suspensions: suspension for six months or more
  and suspension for less than six months.  The difference is critical
  because a suspension of less than six months ends with automatic
  reinstatement.  A lawyer suspended for more than six months, however, is
  not readmitted unless and until he has proven by clear and convincing
  evidence that he has been rehabilitated.  See Rules 6 and 20(b).
  
       In the case of In re Bucknam, 160 Vt. 355, 365 (1993), the Supreme
  Court wrote that suspensions should be for a period of at least six months.
  ne Court noted that suspensions of shorter periods of time serve merely as
  fines and do not insure rehabilitation.  The Court made this determination
  in reliance upon the ABA Standards for Imposing Lawyer Sanctions.
  
       This holding seems to be inconsistent with the Court's Permanent Rules
  Governing

   

  Establishment of Professional Conduct Board and its Operation as
  promulgated in A.0. 9. In addition, the Supreme Court has continued to
  suspend attorneys for periods of time shorter than six months.  See, for
  example In re Doherty, Docket No. 94-379 (Oct. 7, 1994)(two month
  suspension imposed).

       We feel that periods of suspension of less than six months are 
  appropriate  in  some circumstances and should be authorized by the Court. 
  In this case, however, the recommended suspension of one  month  would 
  appear  to  be  merely  punitive.  It  would  do nothing to rehabilitate
  Respondent or protect the public.  On the other hand, a suspension of six
  months would be too harsh for the conduct engaged in here.  Accordingly we
  decline to follow the hearing panel's recommended one month suspension.
  
       The conduct here is similar to the conduct sanctioned in the Bucknam
  case.  We believe the similar sanction of public reprimand is appropriate
  here.  We agree, however, with the hearing panel's recommendation regarding
  probation and adopt that recommendation as our own.
  
       The Professional Conduct Board hereby adopts the findings of fact and
  conclusions of law of its hearing panel It recommends to the Supreme Court
  that Respondent be publicly reprimanded for violating DR2-110(A)(2). 
  Respondent should be placed on probation for six months during which time
  he be required to provide to his client the requested detail regarding the
  outstanding bill for services rendered If the client continues to  dispute 
  the validity of the charges, Respondent must submit the matter to 
  arbitration  through  the  VBA Fee Arbitration Committee.  Failure to
  comply with these requirements within the six month period of probation
  should result in an immediate suspension until the requirements are met.