In re Hunter

In re Hunter  (96-490); 167 Vt. 219; 704 A.2d 1154

[Filed 3-Oct-1997]

[Motion for Reargument Denied 3-Nov-1997]

       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. 96-490


In re William Hunter                         Supreme Court

                                             Original Jurisdiction from
                                             Professional Conduct Board

                                             June Term, 1997


       William A. Hunter, Cavendish, pro se, appellant

       William M. Dorsch of Mickenberg, Dunn, Sirotkin & Dorsch, Special Bar
  Counsel, Burlington, for appellee

PRESENT:   Amestoy, C.J., Dooley, Morse and Johnson, JJ., and Allen, C.J. 
           (Ret.), Specially Assigned


       PER CURIAM.   Respondent William A. Hunter challenges the Professional
  Conduct Board's recommendation that he be suspended from the practice of
  law for three years.  His principal contention is that the recommendation
  is unduly harsh because the Board failed to consider several mitigating
  factors and refused to reopen the case to take new evidence on his mental
  condition.  He also argues that if we accept the Board's recommendation, we
  should impose the sanction retroactively to the date that he voluntarily
  ceased practicing law.  We adopt the Board's recommendation and impose the
  three-year sanction effective as of January 10, 1997.

       The Board's recommendation is based on stipulations in which
  respondent acknowledged having violated multiple provisions of the Code of
  Professional Responsibility on numerous occasions involving many different
  clients and cases.  Most instances concerned neglect of client matters,
  such as failing to appear for scheduled court hearings, failing to timely
  file legal documents and memoranda, failing to follow client instructions,
  failing to keep clients abreast of developments in their cases, failing to
  respond to client telephone calls and written correspondence, and failing
  to timely forward client files to new attorneys.  See DR 1-

 

  102(A)(5), (7) (engaging in conduct that is prejudicial to administration
  of justice or that adversely reflects on fitness to practice law); DR
  6-101(A)(3) (neglecting legal matters).

       The most serious incidents involved respondent (1) arranging the loan
  of an elderly client's funds to another client without adequately securing
  the loan or disclosing to the elderly client that the borrower was also his
  client; (2) reloaning those same funds, again without informing the client
  or obtaining adequate security, to a corporate client for which he served
  as director; and (3) executing and signing the promissory note and mortgage
  deed nearly one and one-half years after the loan was made, but backdating
  the documents to the date of the loan. Based on these admissions,
  respondent acknowledged violating DR 5-101(A) (failing to disclose
  conflicting personal interest in legal matter), DR 5-105(C) (representing
  multiple clients without disclosing conflicting interests), and DR 9-102
  (failing to handle client funds properly).

       Following a one-day sanctions hearing in which numerous witnesses
  testified on respondent's behalf, a hearing panel recommended that
  respondent be disbarred.  The parties then presented briefs and oral
  argument before the Board.  In September 1996, two months after the Board
  hearing and approximately one week before the Board filed its original
  final report, respondent moved to reopen the matter so that he could share
  with the Board what he had recently learned through therapy and treatment
  about his personal problems and psychological condition during the period
  in which his transgressions had occurred.  The Board informed respondent
  that he could decide if he still wanted to reopen the matter after
  reviewing its final report.  In the final report, with the exception of one
  dissenting member, the Board declined to adopt the hearing panel's
  recommendation, but instead recommended that respondent be suspended from
  the practice of law for three years.

       Respondent then renewed his motion to reopen, this time including a
  doctor's affidavit stating that respondent had displayed symptoms
  suggesting Attention Deficit Disorder (ADD) with depression, but that he
  seemed to have responded well to an antidepressant prescribed to reduce
  those symptoms.  On January 10, 1997, the Board denied respondent's motion
  to reopen and filed a slightly revised final report.  On appeal, respondent
  argues that (1) the Board abused

 

  its discretion by denying his motion to reopen; (2) the Board failed to
  give sufficient weight to several mitigating factors; (3) the Board
  exaggerated the number of violations and failed to distinguish between
  those committed before and after this Court disciplined him in 1994; (4)
  the recommended sanction was unduly harsh; (5) if this Court adopts the
  Board's recommended sanction, it should make the three-year suspension
  retroactive to the date he voluntarily ceased practicing law; and (6) the
  Board chair erred in denying his request that she and other Board members
  disqualify themselves from his case.

                                     I.

       We first consider respondent's argument that the Board chair should
  have disqualified herself and certain other Board members from
  participating in his case.  In May 1995, while representing Attorney
  Vincent Illuzzi in disciplinary proceedings before the Board, respondent
  filed suit in federal district court, claiming that four members of this
  Court and fourteen members of the Board had violated Illuzzi's
  constitutional rights.  Soon thereafter, in his own disciplinary
  proceeding, respondent sought the recusal of the members of the Board whom
  he had sued on behalf of Illuzzi.  The Board chair denied the motion.

       We find no abuse of discretion.  Indeed, although four members of this
  Court ultimately decided not to take part in the Illuzzi disciplinary
  action upon which the federal suit was based, we emphasized that recusal is
  not compelled merely because a litigant sues or threatens to sue a judge. 
  In re Illuzzi, 164 Vt. 623, 624, 670 A.2d 1264, 1265 (1995) (mem.).  Nor is
  there a per se lack of impartiality, requiring recusal, when a judge is the
  subject of a judicial conduct complaint by an attorney appearing before the
  judge.  Ball v. Melsur Corp., 161 Vt. 35, 39, 633 A.2d 705, 709 (1993)
  ("Otherwise, an attorney would need only file a complaint, possibly
  groundless, to a avoid particular judge thereafter."); see State v. Putnam,
  164 Vt. 558, 561, 675 A.2d 422, 424 (1996) (rule of per se disqualification
  is generally inappropriate in circumstances where Code of Judicial Conduct
  does not require disqualification).

       Given this law, we can hardly conclude that the members of the Board
  were required to disqualify themselves simply because respondent had sued
  them on behalf of a client.  Nor is a

 

  different result compelled by the fact that the Board chair, who denied
  respondent's motion, was one of the Board members whom respondent had sued. 
  Further, respondent's attempts to demonstrate actual prejudice by claiming
  that the hearing panel did not give adequate consideration to the testimony
  of his witnesses and other facets of his case fall far short of the
  required showing.  See Ball, 161 Vt. at 40, 633 A.2d  at 710 (party seeking
  judge's recusal must make clear and affirmative showing of bias or
  prejudice).

                                     II.

       Respondent argues that the Board abused its discretion by refusing to
  reopen his case to hear new evidence on his mental condition.  We disagree. 
  See In re Petition of Twenty-four Vermont Utilities, 159 Vt. 339, 356, 618 A.2d 1295, 1305 (1992) (administrative agency has discretion whether to
  reopen evidence).  In support of his motion to reopen, respondent offered
  an affidavit from a psychiatrist stating that respondent appeared to have
  "symptoms suggesting an Attention Deficit Disorder with depression."  The
  doctor indicated that he had prescribed an antidepressant to counter these
  symptoms, and that respondent had made significant improvements in
  planning, organization and consistency.  This latter statement in the
  affidavit appears to be based on respondent's and his wife's own reports of
  respondent's progress. According to the affidavit, respondent's wife
  reported that respondent was now taking responsibility for organizing his
  life, and respondent reported that he was no longer setting unrealistic
  deadlines for his work.  The doctor concluded that (1) many of the
  behaviors that led to problems in respondent's practice seem to have been
  caused by ADD and depression; (2) respondent appears to be improving as the
  result of taking an antidepressant; and (3) he appears to be ready to
  return to the practice of law.

       The proffered evidence in the affidavit added little of significance
  to the factors affecting the Board's recommended sanction.  This is
  particularly true in light of the Board's concern that respondent's
  misconduct had devolved from neglect to unauthorized use of clients' funds,
  serious enough to "easily support a recommendation of disbarment."  The
  Board already knew that respondent had mental problems that he hoped to
  address and overcome.  Indeed, in its final

 

  report, the Board recognized respondent's acknowledgment that "he suffers
  from an addiction to work and an obsessive inability to place boundaries on
  his practice which is comparable to alcoholism," and that "this addictive
  behavior is a mental problem which has substantially affected his well
  being and jeopardized his career in the field of law."  See People v.
  Goldstein, 887 P.2d 634, 642 (Colo. 1994) (although hearing board did not
  specifically mention attorney's emotional condition as mitigating factor,
  board's finding on condition indicated that it took condition into account
  in recommending sanction).

       At the disciplinary proceedings, respondent claimed that the many
  instances in which he had neglected client matters occurred because he was
  unable to control and organize his practice. The doctor's affidavit
  similarly suggests that respondent's mental condition prevented him from
  consistently planning and organizing his caseload.  The proffered evidence
  does not suggest, however, that ADD caused respondent to engage in the
  misconduct that the Board considered most egregious.  See id. at 641 (under
  ABA standards, mental condition may be considered as mitigating factor when
  medically documented condition caused misconduct, and respondent's recovery
  is demonstrated by meaningful and sustained period of rehabilitation that
  makes recurrence of the misconduct unlikely).  The misconduct that
  "shock[ed] the conscience of the Board" was respondent's misappropriation
  of his client's money by loaning it to another client without the first
  client's authority.  Whatever else this may have been, it was more than
  inattention to client needs caused by respondent's inability to limit his
  caseload.(FN1)  See Oklahoma Bar Ass'n v. Busch, 919 P.2d 1114, 1120 (Okla.
  1996) (while attorney's neglectful behavior may have been influenced by
  ADD, his physician testified that ADD does not create inability to tell
  truth).  As the Board concluded, respondent cannot defend his
  misappropriation of client funds

 

  by claiming that he has a disorganized law practice.  See Oklahoma Bar
  Ass'n v. Prather, 925 P.2d 28, 30 (Okla. 1996) (ADD may not shield attorney
  from professional responsibility, although mental condition may be
  considered as mitigating factor where attorney's long-term commitment to
  treatment has brought illness under control).

                                    III.

       We also reject respondent's arguments that (1) even on the evidence
  presented, the Board failed to give sufficient weight to his mental
  condition and other mitigating factors such as his lack of a selfish
  motive, cooperation and remorse, character and reputation, and pro bono
  work; (2) the Board exaggerated the number of violations and failed to
  distinguish ones committed after this Court last disciplined him in 1994;
  and (3) the recommended sanction was unduly harsh. The record reveals that
  the Board considered the positive aspects of respondent's practice and
  character, but concluded that they were far outweighed by the numerous
  aggravating factors present in this case.  We concur.

       The overriding aggravating factor is respondent's prior disciplinary
  record.  In 1990, respondent appeared before the Board to answer multiple
  complaints of ethical violations; eventually, this Court publicly
  reprimanded him for improperly communicating with jurors.  In re Hunter,
  157 Vt. 649, 595 A.2d 296 (1991) (mem.).  In 1994, this Court again
  publicly reprimanded respondent and placed him on probation for nine months
  as the result of his continuing pattern of neglect to clients and his
  disregard for bar counsel's efforts to investigate the complaints against
  him.  In re Hunter, 163 Vt. 599, 656 A.2d 203 (1994) (mem.).

       Notwithstanding these earlier disciplinary proceedings and sanctions,
  respondent not only continued to commit similar ethical violations, but his
  inappropriate conduct escalated into violations of a more serious nature
  involving the mishandling of client funds.  Further, regardless of the
  exact number of violations or how many occurred after a certain date,
  respondent concedes that some of these violations occurred after this Court
  sanctioned him a second time in December 1994.  Even more violations
  occurred after disciplinary proceedings leading up to the December 1994
  sanction had begun, at a time when respondent should have been on notice as
  to the

 

  impropriety of his conduct.

       As respondent acknowledges, disciplinary sanctions are not intended to
  punish attorneys, but rather to protect the public from harm and to
  maintain confidence in our legal institutions by deterring future
  misconduct.  Given these objectives, respondent's mental condition is not
  the dispositive factor in determining the appropriate sanction.  See In re
  Wysolmerski, 8 Vt. L.W. 200 (1997) (mem.) (diagnosis of clinical depression
  would not alter conclusion that respondent should be suspended from
  practice of law for three years; whether respondent's extreme errors in
  judgment can be explained in terms of clinical depression or profound
  personal distress, Court must adhere to its goals of protecting public from
  misconduct and maintaining confidence in our legal institutions); In re
  Sullivan, 530 A.2d 1115, 1119 (Del. 1987) (since focus of disciplinary
  sanction is on protecting public, mental condition of attorney who posed
  danger to public was not mitigating factor).

       Nor are we persuaded -- as respondent would have us conclude -- that
  the Board's "most serious mistake" in weighing mitigating factors was its
  evaluation of respondent's character and reputation witnesses.  The Board
  acknowledged that a broad spectrum of witnesses testified regarding their
  personal opinions as to respondent's good character.  But any mitigating
  effect that good character and reputation evidence might have on the
  Board's choice of sanction is necessarily diminished when, as here, the
  attorney has been previously disciplined.  In light of respondent's
  continued and escalating pattern of misconduct notwithstanding prior
  sanctions against him, the Board's recommended three-year suspension is not
  excessive.  See In re Berk, 157 Vt. 524, 527-28, 602 A.2d 946, 948 (1991)
  (although Supreme Court makes its own ultimate decision, Board's
  recommendations on sanctions are accorded deference); cf. Wysolmerski, Vt.
  L.W. at 200 (in light of respondent's multiple, serious violations of
  disciplinary rules, three-year suspension is appropriate); In re Illuzzi,
  160 Vt. 474, 490, 632 A.2d 346, 354-55 (1993) (given respondent's numerous
  prior disciplinary offenses, suspension from practice is necessary).

 


                                     IV.

       Respondent requests that any suspension be made retroactive to January
  17, 1996, the date that he voluntarily ceased practicing law.  The Board
  made no recommendation on retroactivity, but bar counsel argues that the
  suspension should commence on the date of this decision.  A number of
  factors inform our determination on this point.  On the one hand, voluntary
  agreements to cease practicing law while a disciplinary hearing is pending
  can protect the public when other alternatives are not available.  Cf.
  Administrative Order No. 9, Rule 15 (setting forth basis and procedure for
  interim suspension).  There would be little incentive for an attorney faced
  with license suspension to enter into such agreements if the period of
  nonpractice were not considered in appropriate cases.  Here, the parties
  stipulated that respondent had suspended his law practice by notice to this
  Court on January 17, 1996.  See Oklahoma Bar Ass'n v. Badger, 912 P.2d 312,
  316 (Okla. 1995) (suspension made retroactive to date parties filed
  stipulations agreeing, among other things, that respondent had voluntarily
  ceased practice of law).  There is no suggestion that respondent has
  practiced law since the latter part of January 1996.

       On the other hand, because neither the Board nor this Court is in any
  position to monitor voluntary suspensions, which are not recognized by law,
  it is crucial that attorneys agreeing to suspensions fully comply with the
  rules for discontinuing a law practice.  Respondent failed to comply with
  Administrative Order No. 9, Rule 21 in discontinuing his practice, as he
  had agreed to do.  He did not follow the formal notification procedures
  contained in that Rule.  Further, he failed to discontinue his practice on
  the day he agreed to do so, but instead did so a few days later shortly
  after bar counsel informed respondent's attorney that he knew respondent
  was still practicing law.  Respondent also failed to comply with some of
  the probationary conditions imposed as part of his previous December 1994
  disciplinary sanction.  Considering all of the circumstances of this case,
  we impose the sanction retroactively from January 10, 1997, the date that
  the Board filed its revised final report and recommendation.

       Finally, we note that irrespective of the retroactivity of the
  suspension, respondent may

 

  not be reinstated until he has demonstrated by clear and convincing
  evidence that (1) he has the moral qualifications, competency, and learning
  required for admission to practice law in this state; (2) the resumption of
  his practice will be neither detrimental to the integrity and standing of
  the bar or the administration of justice nor subversive to the public
  interest; and (3) he has been rehabilitated.  See Administrative Order No.
  9, Rule 20(D).

       Respondent William A. Hunter is hereby suspended from the practice of
  law for a period of three years, effective as of January 10, 1997.

                          BY THE COURT:

                          ______________________________________________
                          Jeffrey L. Amestoy, Chief Justice


                          ______________________________________________
                          John A. Dooley, Associate Justice


                          ______________________________________________
                          James L. Morse, Associate Justice


                          ______________________________________________
                          Denise R. Johnson, Associate Justice


                          ______________________________________________
                          Frederic W. Allen, Specially Assigned



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                                  Footnotes



FN1.  The Board made no finding that respondent knowingly and
  intentionally converted client money in the "Alderbert matter."  The
  Board's characterization of respondent's conduct as "neglect" was pivotal
  in its decision to recommend suspension rather than disbarment.  We take
  judicial notice that subsequent to oral argument in this matter respondent
  was indicted by a federal grand jury for alleged criminal conduct arising
  out of his legal representation of clients, including Ms. Alderbert.  The
  sanctions we impose today do not foreclose any further disciplinary action
  that may be warranted under Administrative Order No. 9, Rules 14 and 15.