In re Cummings

In re Cummings  (95-368); 164 Vt 615; 669 A.2d 555

[Filed 30-Oct-1995]


                               ENTRY ORDER

                      SUPREME COURT DOCKET NO.  95-368

                             OCTOBER TERM, 1995





In Re ROBERT E. CUMMINGS, ESQ,       }         APPEALED FROM:
                                     }
                                     }
                                     }         Professional Conduct Board
                                     }
                                     }
                                     }         DOCKET NOS.
                                                  PCB 94.51 & 95.06



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

       Pursuant to the recommendation of the Professional Conduct Board filed
  July 17, 1995, and approval thereof, it is hereby ordered that Robert E.
  Cummings, Esq., be publicly reprimanded for the reasons set forth in the
  Board's final report 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

------------------------------------------------------------------------------
 
                             STATE OF VERMONT

                        PROFESSIONAL CONDUCT BOARD


In re:    Robert E. Cummings, Esq.--Respondent
          PCB Files No. 94.51 and 95.06


                             DECISION NO.  97

       Respondent, by and through counsel Thomas. J. Dailey, Esq., and bar
  counsel submitted a stipulation of facts which we adopt and attach hereto
  as Exhibit 1.  All three appeared before the Board on June 2, 1995. 
  Although the parties had previously signed a stipulation agreeing that a
  public reprimand is appropriate, respondent argued that he had not
  understood the agreement.  His counsel urged that a private admonition be
  imposed.  We recommend to the Supreme Court that respondent be publicly
  reprimanded.

       Respondent, who has been a member of the Vermont Bar for nearly 35
  years, is before us on two different matters.

                                 File 94.51

       The first involves a lawsuit which respondent filed in Vermont in
  October of 1990 on behalf of Mr. Burdo whose New York business sought to
  collect an unpaid bill of $30,255 for work performed as a subcontractor on
  a construction project. Because Mr. Burdo had failed to register his
  company as a foreign business in accordance with 11 V.S.A. Sections 1621
  and 1634, the court promptly dismissed the suit for lack of jurisdiction.

       Respondent told his client that the suit had been dismissed but
  misrepresented the reasons for the dismissal.  He told Mr. Burdo that the
  case had been dismissed because the business had 

   

  failed to pay taxes owed to Vermont.  He also told Mr. Burdo that the
  taxes had to be paid before the lawsuit could recommence.

       Mr. Burdo immediately arranged to have these taxes paid and so
  notified Respondent.  His business was badly in need of money, and he
  wanted to get the case moving again.

       Respondent did not refile the law suit until February of 1992.  Again
  it was dismissed pursuant to a motion filed by defendant arguing lack of
  jurisdiction because of failure to register the foreign business. 
  Respondent did not file a response to this motion. An entry order granting
  the motion was filed in October.  A dismissal order was filed in January of
  1993.  By then, the Statute of Limitations tolled Mr. Burdo's claim.

       From the time of the first dismissal in May of 1990 until late 1993,
  Respondent had numerous conversations with his client about the case. 
  Respondent repeatedly misrepresented to Mr. Burdo that the case was
  pending.  He would tell Mr. Burdo that they were waiting for a court date,
  or give some other reason for the delay.  At one point, respondent sent Mr.
  Burdo a tradename registration form, requesting that it be executed and
  returned. This served to reinforce Mr. Burdo's belief that his lawsuit was
  pending.

       Throughout this time, Mr. Burdo was experiencing financial and
  emotional stress.  His marriage broke up and he filed for personal and
  business bankruptcy.   Respondent misrepresented to Mr. Burdo's estranged
  wife that the case was still pending and 

   

  promised to send her documents from the case and a status report. He
  did not do so.

       Finally, in late 1993 or early 1994, after yet another inquiry from
  his client, respondent met with his client and told him the truth:  the
  case had been dismissed and could not be filed again.  They discussed the
  probable value of the lost claim.  Eventually, after discussing the matter
  with another lawyer, Mr. Burdo settled for a payment of $20,000 from
  respondent who personally paid that sum.

       DR 1-102(A)(4) provides that "[a] lawyer shall not engage in conduct
  involving dishonesty, fraud, deceit, or misrepresentation."   Respondent
  violated that rule by engaging in a pattern of deceit and
  misrepresentation.  He not only misrepresented the reason for the first
  dismissal, he knowingly deceived his client into thinking that his second
  complaint remained pending for a year or more after it had been dismissed
  and could not be resurrected.

       Respondent also violated DR 6-101(A)(3)( "[a] lawyer shall not neglect
  a legal matter entrusted to him") by failing to ensure that the
  jurisdictional requirements of maintaining a lawsuit in Vermont on behalf
  of his client had been met--even after direct notice to him of the
  deficiency.

                               PCB File 95.06

       The second disciplinary matter involves neglect of a real estate
  matter and joint representation of diverse interests.

       In this case, an unmarried couple -- Mr. Babcock and Ms. 

   

  Metcalfe -- retained respondent in 1980 to prepare deeds so that Ms.
  Metcalfe would have an ownership interest in Mr. Babcock's house. They went
  to respondent's office where they executed two deeds to vest in each of
  them a joint tenancy with rights of survivorship.  Respondent was to have
  the deeds recorded.  He neglected this task, however, and the deeds were
  never recorded.

       Three years later,  Mr. Babcock changed his mind.  He went to
  respondent's office and told a secretary there that he wanted to "un-do"
  the land deeds he had executed earlier.  The secretary replied that this
  would cost $25.00, which Mr. Babcock paid.  He left the office believing
  that the house belonged only to him once more.  The $25.00 check was
  deposited into respondent's checking account, although there is no evidence
  that respondent knew anything about this.

       The couple remained together for thirteen years and then separated. 
  In 1993, Ms. Metcalfe learned that her rights in the property had not been
  protected.  She retained an attorney and had to sue in order to establish
  her rights in the property.  She received a favorable ruling in 1994 and is
  now defending a partition action brought by Mr. Babcock.

       Clearly, respondent was not diligent in ensuring that the deeds of his
  clients had been properly recorded.  Moreover, respondent was not diligent
  in the training and supervision of his employees which should have
  prevented an employee from advising a client that an executed deed could be
  altered without the assent of all parties to the deed.  Respondent's
  neglect of 

   

  this case violated DR 6-101(A)(3).

       The more substantial violation is in undertaking joint representation
  of the couple in the first place.  DR 5-105(A) provides that "[a] lawyer
  shall decline proffered employment...if it would be likely to involve him
  in representing differing interests...."  The conveyance of realty from one
  party to another, whether by gift or purchase, invariably involves
  differing interests and requires separate counsel.

                            Recommended Sanction

       Three different sections of the ABA Standards for Imposing Lawyer
  Sanctions are applicable here.  Section 4.43 provides, in pertinent part:

                    Reprimand is generally appropriate when a lawyer
               is negligent and does not act with reasonable diligence
               in representing a client, and causes injury or
               potential injury to a client.

   Section 4.43.

                    Suspension is generally appropriate when a lawyer
               knowingly deceives a client, and causes injury or
               potential injury to the client.

   Section 4.62.

                    Reprimand is generally appropriate when a lawyer
               is negligent in determining...whether the
               representation [of a client] will adversely affect
               another client, and causes injury or potential injury
               to a client.

   Section 4.33.

       Both Mr. Burdo and Ms. Metcalfe were substantially injured by
  respondent's misconduct.  Mr. Burdo lost any opportunity to collect a
  $30,000 debt he claimed was owed to him, although Respondent reimbursed him
  for 2/3 of that debt.  Ms. Metcalfe has 

   

  had to resort to litigation to protect her ownership interest in real
  property, an interest which would have been protected if Respondent had
  filed the deeds.

       Respondent's state of mind was one of negligence in regard to
  protecting the interests of both clients;  he acted knowingly in deceiving
  Mr. Burdo about the dismissal of his law suit.

       We find the following mitigating factors present in this case:

               *  Respondent has no prior disciplinary
                    record;

               *  Respondent made substantial restitution
                    to Mr. Burdo prior to the involvement
                    of Bar Counsel;

               *  Respondent has cooperated with the
                    disciplinary proceedings.

       We find the following aggravating factors present in this case:

               *  Respondent exhibited a selfish motive
                    in his deceit of Mr. Burdo;

               *  There are multiple offenses;

               *  Respondent has substantial experience in
                    the practice of law.

       Respondent urges us to impose only a private admonition, a sanction
  which we find wholly inappropriate here.  See A.O. 9, Rule 7 (A)(5).(FN1)
  This was not minor misconduct and serious injury resulted.  On the other
  hand, we are convinced that there 

   

  is little or no likelihood that respondent will again violate the Code
  of Professional Responsibility.  It is clear to us that respondent has been
  deeply affected by these proceedings.

       We join in bar counsel's recommendation that a public reprimand issue. 
  No greater sanction is necessary to protect the public or educate the bar.

       Dated at Montpelier, Vermont this 7th day of   July 1995.


                                           PROFESSIONAL CONDUCT BOARD

                                           ___________________________
                                           Deborah S. Banse, Chair

___________________________                ___________________________
George Crosby                              Donald Marsh

      /s/                                       /s/
___________________________                ___________________________
Joseph F. Cahill, Esq.                     Karen Miller, Esq.

___________________________                ___________________________
Nancy Corsones, Esq.                       Mark Sperry, Esq.

     /s/                                         /s/
___________________________                ___________________________
Paul S. Ferber, Esq.                       Robert F. O'Neill, Esq.

                                                 /s/
___________________________                ___________________________
Nancy Foster                               Ruth Stokes

     /s/                                        /s/
___________________________                ___________________________
Rosalyn L. Hunneman                        Jane Woodruff, Esq.

     /s/
___________________________                ___________________________
Robert P. Keiner, Esq.                     Charles Cummings, Esq.



/wsc/cummings.dec


---------------------------------------------------------------------------
                                  Footnotes


FN1.  "Only 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, should an
  admonition be imposed."