In re Decato
Annotate this Case
In re Decato (98-138); 168 Vt. 579; 719 A.2d 390
[Opinion Filed 18-Jun-1998]
[Motion for Reconsideration Denied 26-Jun-1998]
ENTRY ORDER
SUPREME COURT DOCKET NO. 98-138
JUNE TERM, 1998
In re R. Peter Decato, Esq. } Original Jurisdiction
}
}
} Professional Conduct Board
}
}
} DOCKET NO. 94.25
In the above-entitled cause, the Clerk will enter:
Pursuant to the recommendation of the Professional Conduct Board filed
April 7, 1998, and approval thereof, it is hereby ordered that R. Peter
Decato, Esq. be publicly reprimanded for the reasons set forth in the
board's report attached hereto for publication as part of the order of this
Court. A.O. 9, Rule 8E.
BY THE COURT:
_______________________________________
Jeffrey L. Amestoy, Chief Justice
_______________________________________
John A. Dooley, Associate Justice
_______________________________________
James L. Morse, Associate Justice
_______________________________________
Denise R. Johnson, Associate Justice
_______________________________________
Marilyn S. Skoglund, Associate Justice
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125.PCB
[6-Mar-1998]
STATE OF VERMONT
PROFESSIONAL CONDUCT BOARD
In re: R. Peter Decato, Esq., Respondent
PCB Docket No. 94.25
REPORT TO THE VERMONT SUPREME COURT
Decision No. 125
This matter was presented to us by stipulated facts, which we adopt as
our own and publish below.
The parties also submitted a joint recommendation to the Board as to
what conclusions of law should be drawn from these facts and what sanction
should be imposed. Respondent submitted a waiver of certain procedural
rights, including the right to withdraw the stipulated facts in the event
that the recommended sanction was not imposed.
Bar counsel and Respondent appeared before us on February 6 and
presented oral argument in support of the joint recommendation of an
admonition.
Upon consideration of the documents filed and the oral argument
presented, we adopt the stipulated facts and the conclusions of law. We
cannot accept, however, the recommended sanction. For reasons set forth
below, we recommend that a public reprimand be imposed.
FINDINGS OF FACT
1. Mr. Decato was admitted to the bar of Vermont on September 17,
1985 and is currently on active status. He was
admitted to the bars of New Hampshire and Massachusetts in 1973. In the
summer of 1986, he undertook representation of one Stuart Kellogg.
2. Stuart Kellogg was a truck driver for Noel Vincent Trucking. He
operated a large truck that picked up dumpsters and off-loaded them. On
April 16, 1986, while raising a dumpster onto his truck for rubbish
deposit, some pins in the truck's lifting gear broke. Proper safety
restraints had not been installed on the truck, and the dumpster was free
to swing around, out of control. Mr. Kellogg was pinned next to a fence and
could not escape the direct hit to his head by the six-ton dumpster. He was
knocked unconscious and suffered severe head and facial injuries.
3. In July 1986, Mr. Kellogg consulted Attorney William Whitten
regarding workers compensation benefits for this accident. Mr. Whitten
referred Mr. Kellogg to Mr. Decato for potential civil actions. Mr.
Kellogg retained Mr. Decato on a contingency fee basis. Mr. Whitten
continued his involvement in the workers compensation issues.
4. Mr. Decato identified three potential defendants for a civil
action. First was Stanley Boyce, the company supervisor of employees and
equipment. He was in charge of maintaining and overseeing the truck fleet.
Second was Robert MacNeil, the owner of Noel Vincent Trucking, the
corporation which employed Mr. Kellogg. Third was "Loadmaster," a company
whose name was located on the truck. Mr. Decato inferred that "Loadmaster"
was the
manufacturer of the truck, or packer, with defective lifting gear and
improper safety restraints.
5. Mr. Decato filed suit against all three defendants on April 8,
1987 in Windsor County Superior Court. The cause of action against
Loadmaster was a product liability claim for improperly designing and
manufacturing the packer. The cause of action against both Mr. MacNeil and
Mr. Boyce was a claim sounding in negligence for failing to exercise
reasonable care in the supervision and maintenance of the truck.
6. As owner of the corporation and employer of Mr. Kellogg, Mr.
MacNeil would not ordinarily be liable for negligence in a work-related
injury since he would be entitled to all the [workers compensation]
statutory defenses of an employer. Steele v. Eaton, 130 Vt. 1, 4 (1971). A
suit against an owner/employer could only successfully be based on his/her
liability as a co-employee. Id. Mr. Decato made such a claim in the
complaint.
Claim Against Defendant Loadmaster
7. On August 5, 1987, Defendant Loadmaster filed a request for
admissions, averring that it did not design or manufacture the packer in
question and that another entity, Hagen Industries, Inc., or one of its two
subsidiaries, was the manufacturer.
8. On December 17, 1987, Defendant MacNeil admitted that these
allegations were true. On behalf of the plaintiff, respondent did not
respond to Loadmaster's Request for Admissions.
9. On December 24, 1987, in response to Defendant MacNeil's
Interrogatories, Defendant Loadmaster more fully explained its
denial of responsibility for the packer in question and its belief that
Hagen Industries, Inc. or one of its two subsidiaries was the responsible
party.
10. On December 28, 1987, Defendant Loadmaster renewed its
previously-filed Motion for Judgment on the Pleadings. The Court granted
Loadmaster's Motion on April 12, 1988, by which time Mr. Decato had still
not responded to the Request for Admissions.
11. In reaction to the information from Loadmaster about possible
corporate responsibility, Mr. Decato determined by telephone calls to the
Virginia and New York Secretaries of State that the two subsidiary
companies had dissolved, but that the parent corporation, Hagen Industries,
Inc. was in good standing in New York. Mr. Decato did no further inquiry
concerning the corporate manufacturer of the defective packer.
Claim Against Defendant MacNeil
12. Mr. Kellogg had informed Mr. Decato that Mr. MacNeil had been
actively involved in all aspects of company management - that he was a
micro-manager.
13. Around December 15, 1987, Defendant MacNeil filed a Motion for
Summary Judgment. He claimed no direct negligence to the plaintiff and he
claimed employer protection under the exclusive remedy provision of the
Workers Compensation statute. Accompanying the motion was an affidavit of
Mr. MacNeil denying any part in the maintenance of the truck fleet.
14. There was a factual dispute between Mr. Kellogg's description of
Mr. MacNeil's duties and Mr. MacNeil's description
of his duties.
15. Mr. Decato did not depose Mr. MacNeil or any other person, nor
did Mr. Decato propound interrogatories to Mr. MacNeil or Mr. Boyce. Mr.
Decato did not obtain a counter-affidavit from Mr. Kellogg nor did he
oppose the Motion for Summary Judgment.
16. Mr. Decato did not believe he could rebut the assertions of Mr.
MacNeil that he was not involved in the day-to-day maintenance operations.
17. Summary judgment was granted for Defendant MacNeil on April 12,
1988.
Claim Against Defendant Boyce
18. By agreement of the parties for late filing, defendant Boyce
filed an Answer to the Complaint on March 2, 1988. He denied liability.
19. Mr. Kellogg was a friend and colleague of Mr. Boyce, who had few
resources. Mr. Kellogg was inclined to proceed against Mr. Boyce if the
company's insurance policy provided coverage. The company denied coverage,
and the company policy did not include employees within the definition of
those insured.
20. On July 28, 1988, attorney for Mr. Boyce filed the stipulation to
dismiss him from the lawsuit, signed by Mr. Decato.
Post-Dismissal Activity
21. After the dismissal of Defendants Loadmaster and MacNeil, Mr.
Decato advised Mr. Kellogg that if he wanted to pursue a claim against
Hagen Industries, Inc., he should retain the services of
another attorney.
22. In 1993, Mr. Kellogg conferred with another attorney about his
SSI benefits. Upon learning of the failed lawsuit, the attorney referred
Mr. Kellogg to Attorney Michael Hanley. Mr. Hanley pursued Mr. Decato in a
malpractice action. It was mediated to Mr. Kellogg's satisfaction by the
end of 1995.
23. Bar Counsel received a letter of complaint from Mr. Kellogg on
October 27, 1993. It concerned solely the issue of Mr. Decato's failure to
turn over the file to Mr. Hanley, which Mr. Hanley had initially requested
on May 12, 1993.(FN1) Bar Counsel sent Mr. Kellogg's letter of complaint to
Mr. Decato on November 9, 1993. Upon receipt, November 10, 1993, Mr.
Decato immediately forwarded the file to Mr. Hanley.
24. Mr. Decato's state of mind was one of negligence.
25. Mr. Decato has two prior disciplinary sanctions.
* A private admonition in PCB File No. 87.33, issued
on November 12, 1987; and
* A private admonition in PCB File No.91.49, issued
on November 6, 1992.
26. Mr. Kellogg was vulnerable.
27. Mr. Decato has, and at the time had, substantial experience in
the practice of law.
28. Mr. Decato had no dishonest or selfish motive.
29. Mr. Decato has cooperated fully in the disciplinary
proceedings.
30. There has been a delay in the disciplinary proceedings through no
fault of Mr. Decato.
31. The events at issue occurred ten years ago.
32. Mr. Decato was cooperative in mediating the malpractice action
against him.
33. One of the prior disciplinary offenses is remote in time.
34. Bar Counsel received only one complaint against Mr. Decato since
this case has been pending. The complaint letter in PCB File No. 95.55 was
filed eight months after the complaint in the case at bar. It was dismissed
as meritless.
CONCLUSIONS OF LAW
Once retained, and especially after having filed a client's claim in
court, an attorney has the responsibility to pursue the facts and the law
diligently to preserve the client's rights and interests. Respondent here
failed to fulfil that duty to his client in at least three respects:
1) he did not pursue a claim against the proper corporate defendant
or assist his client in locating substitute counsel to handle the claim,
2) he did not research the legal basis for his claim against the
owner/co-employee, Mr. MacNeil, nor did he oppose the Motion for Summary
Judgment, and
3) he did not investigate the facts of the case or the available
evidence to ascertain the accuracy of Mr. MacNeil's claim that he was not
actively involved in management or maintenance of
the company as a co-worker.
Respondent's conduct in this case evidences a lack of attention to a
very significant case. He had a client who was severely injured by
defective equipment. One would expect a personal injury lawyer to
vigorously pursue the matter. Yet Respondent here did not zealously
represent his client's interests.
It is as though Respondent went through the rudimentary preliminaries
necessary to filing a law suit and then lost interest when he encountered a
defense. The loss of interest is unexplained by the stipulation. Whatever
the reason for his conduct, the least Respondent could have done and should
have done for Mr. Kellogg was to find him substitute counsel who would have
given the case the attention it deserved.
We conclude the Respondent violated DR 6-101 by failing to act
competently. His preparation was inadequate in violation of DR 6-101(A)(2)
and his abandonment of the cause of action against the manufacturer
constituted neglect in violation of DR 6-101(A)(3).
SANCTIONS
In recommending a public reprimand in this case, we apply Sections 3.0
of the ABA Standards for Imposing Lawyer Sanctions. We consider the duty
violated, the lawyer's mental state, the potential or actual injury, and
any aggravating or mitigating factors.
The duty violated is the duty of diligence owed to the client. The
mental state is one of negligence. The appropriate standard to apply is
4.43 which states: 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.
Mr. Kellogg was injured in that he lost his opportunity to pursue an
action directly against those responsible for his injury. The only reason
he received any financial recovery is because a problem with SSI benefits
brought his situation to the attention of another attorney who recognized a
legal malpractice case. But for this, Mr. Kellogg may have received no
recovery at all. The recovery he received through the legal malpractice
claim came almost ten years after the accident.
We find that neither the aggravating nor mitigating factors move this
case toward suspension or admonition.
In aggravation, we find the following factors present under Standard
9.22:
(a) prior disciplinary offenses;
(b) vulnerability of victim; and
(c) substantial experience in the practice of law.
In mitigation, we find the following factors present under Standard 9.32:
(a) absence of a dishonest or selfish motive; and
(b) full co-operation with these disciplinary
proceedings.
Respondent and Bar Counsel have urged that other factors be considered
as mitigating factors, i.e., co-operation in settling
the malpractice case, a lack of other complaints received, the remoteness
of the events which led to this disciplinary action, and the remoteness of
the prior sanctions. We decline to do so.
Given that the malpractice case was settled some two years after this
disciplinary investigation was initiated, we cannot conclude that this was
a "timely good faith effort to make restitution or rectify consequences of
misconduct" as described at Standard 9.32(d). See Factor 9.4(a) and
corresponding Commentary.
Neither remoteness of the events which led to discipline nor a lack of
other complaints are mitigating factors recognized by this Board, the
Vermont Supreme Court, or the ABA Lawyer Standards. We are unaware of any
policy reason which would justify their adoption in this case.
The remoteness of the prior offense is also not a mitigating factor
here. One of Respondent's prior offenses occurred in 1987, the same year
in which he neglected Mr. Kellogg. It would seem to us that, if anything,
it is an aggravating factor for an attorney to engage in misconduct while
engaged in other disciplinary proceedings. Be that as it may, it is
certainly not a mitigating factor.
Finally, as to the stipulated delay in the disciplinary proceedings,
while we note it was not attributable to Respondent, it was not of
sufficient length to render it a mitigating circumstance under the
particular facts present here.
CONCLUSION
We recommend to the Supreme Court that it publicly reprimand
Respondent for neglecting Mr. Kellogg's case, in violation of DR 6-101.
Dated at Montpelier, Vermont this 6th day of March, 1998.
PROFESSIONAL CONDUCT BOARD
/s/
____________________________
Robert P. Keiner, Esq. Chair
/s/
___________________________ ____________________________
John Barbour Joseph F. Cahill, Jr., Esq.
/s/
___________________________ ____________________________
Charles Cummings, Esq. Paul S. Ferber, Esq.
___________________________ ____________________________
Michael Filipiak Nancy Foster
/s/
___________________________ ____________________________
Rosalyn L. Hunneman Robert F. O'Neill, Esq.
/s/ /s/
___________________________ ____________________________
Jessica Porter, Esq. Alan S. Rome, Esq.
/s/
___________________________ ____________________________
Mark L. Sperry, Esq. Ruth Stokes
/s/
___________________________
Jane Woodruff, Esq.
dal/9425.fnl
FN1. The delay in producing the file was largely attributable to
persons other than Mr. Decato.
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