In re Smith

In re Smith (99-169); 169 Vt. 617; 739 A.2d 1191

[Filed 21-Jul-1999]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 99-169

                               JUNE TERM, 1999


In re Jeffrey T. Smith, Esq.	       }	Original Jurisdiction
                                       }
                                       }
     	                               }	Professional Conduct Board
                                       }	
                                       }
                                       }	DOCKET NOS. 96.44



       Pursuant to the recommendation of the Professional Conduct Board filed
  April 8, 1999, and  approval thereof, it is hereby ordered that Jeffrey T.
  Smith, 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.

       Attorney Smith shall also be placed on probation for 6 months with the
  conditions set forth in the  attached report.  The period of probation
  shall begin on August 1, 1999.

                                      


                                       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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132.PCB

[2-Apr-1999]

                             STATE OF VERMONT
                         PROFESSIONAL CONDUCT BOARD


In re:  Jeffrey T. Smith, Esq. - Respondent
PCB Docket No. 96.44

                      FINAL REPORT TO THE SUPREME COURT
                             DECISION NO.    132

Procedural History

       On January 7, 1999, the parties filed a stipulation of facts as well
  as jointly recommended findings of fact and conclusions of law.  In
  addition, Respondent filed a waiver of several procedural rights, including
  the right to a hearing and the right to appeal this Board's decision.  
  Exhibit 1. 

       Given the paucity of details provided in the stipulation, counsel for
  the Board asked the parties to submit additional information prior to the
  Board reviewing the matter.  The parties obliged by filing a supplemental
  stipulation on February 5, 1999.  Exhibit 2.

       The full Board reviewed the matter on February 12, 1999, and concluded
  that the stipulated facts were not sufficiently clear.  It decided that the
  parties should appear at the next Board meeting to explain the details of
  the conduct as outlined in the stipulations.

       On March 5, 1999, Respondent appeared before the Board.  Special Bar
  Counsel William Dorsch participated via telephone conference call.  The
  parties provided additional information, beyond the stipulated facts, to
  augment the record.

       After reviewing all of the information presented to it, the Board
  concluded that it could not accept the recommended sanction of private
  admonition.  The Board recommends to the Supreme Court that it impose a
  public reprimand.  The information which supports this recommendation
  follows.

                                    Facts

       Respondent has been a member of the Vermont bar for over 25 years.  He
  is a solo practitioner in the town of Brandon.

       In 1995, Respondent represented one Clifton Alexander who was married
  to Margaret Alexander.  The Alexanders had a sometimes difficult
  relationship, which often had issues relevant to an imbalance of power
  between them.   One source of discord was Mrs. Alexander's money which was
  held in a trust established by Margaret Alexander to protect her assets.  
  The trustee was her nephew, Richard  Dubois.

       Mr. Alexander brought an involuntary guardianship petition against his
  wife in 1995.  Respondent was appointed to represent him on a pro bono
  basis.   Mrs. Alexander was represented by Carolyn Tonelli, Esq.  who had
  represented Mrs. Alexander since at least 1992.  Her response to the
  petition was that while Mrs. Alexander was frail, had a poor memory, and
  was susceptible to her husband's pressures, she was legally competent.  On
  behalf of Mr. Alexander,  Respondent withdrew the guardianship petition in
  March of 1995.

       Less than six months later, Mr. Alexander told Respondent that he and
  his wife had been to the banks in Randolph in an attempt to get information
  about Mrs. Alexander's assets.  They were denied the information and told
  they would have to obtain that information from the trustee, Mr. Dubois. 
  Mr. Alexander felt that Mr. Dubois was not co-operative with his requests
  for information. 

       At Mr. Alexander's request, Respondent prepared a document for Mrs.
  Alexander's signature whereby she revoked the trust and any power of
  attorney that Mr. Dubois or anyone else may have held.  Attachment A to
  Exhibit 1.  At the time he did this, Respondent was aware of the DR
  7-104(A), the disciplinary rule prohibiting him from direct contact with an
  adverse party who was represented by counsel.   Respondent felt that the
  rule did not apply because the couple seemed to be compatible.  Further,
  Mr. Alexander told him that Attorney Tonelli was no longer Mrs. Alexander's
  counsel.   This was not true.

       Mrs. Alexander signed the document in Respondent's office on August
  18, 1995, although Respondent was not personally present.

       Respondent also prepared for Mrs. Alexander's signature a power of
  attorney, which by its terms gave Mr. Alexander complete control over Mrs.
  Alexander's assets.  See Attachment B to Exhibit 1.  It is a general power
  of attorney which states that it "shall not be affected by disability or
  death of the principal(s)." 

       In preparing this document, Respondent was mindful of his client's
  claim that  he needed assets from the trust not for his own benefit, but
  for the benefit of his wife, and that the trustee was not providing his
  wife with sufficient funds.  Respondent was concerned as to whether Mrs.
  Alexander was competent to sign a new power of attorney.

       On August 25, 1995, Respondent met with Mrs. Alexander and explained
  to her that the purpose of the power of attorney was to allow her husband
  to obtain information from the bank.    He also told her that the power of
  attorney allowed her husband to do only what she directed him to do.  This,
  by the very terms of the document, was not true, although Respondent seemed
  to have believed that the power of attorney was so limited.  Respondent
  appeared to the Board to misapprehend the effect of the document he had
  prepared.  In any event, Respondent concluded that Mrs. Alexander seemed to
  know what she was doing.  He witnessed her signature.

       Attorney Tonelli learned of these documents.  She notified Respondent
  that she was still counsel of record and that her client had signed them
  only due to undue pressure by her husband.  Attorney Tonelli notified all
  relevant parties that the documents signed by Mrs. Alexander without
  benefit of independent counsel were null and void.  No actual injury
  resulted to Mrs. Alexander.	

                             Conclusions of Law

       Respondent clearly violated DR 7-104(A).(FN1) Respondent knew that Mrs.
  Alexander had retained independent counsel to assist her in resisting her
  husband's attempt to have her declared incompetent in March of 1995.  When
  Mr. Alexander sought Respondent's assistance only five months later in
  obtaining Mrs. Alexander's power of attorney over her assets, Respondent
  had the duty to contact Attorney Tonelli and request permission to contact
  her client.  It  was insufficient to rely upon his own client's claim that
  Attorney Tonelli had been discharged, a claim which proved to be untrue. 
  It was insufficient to rely upon his client's claim that they were no
  longer in an adverse relationship vis a vis Mrs. Alexander's assets, a
  claim which also proved to be untrue.

       Even if we were to assume that Respondent was correct in his belief
  that Mrs. Alexander was not represented by counsel, he would have violated
  the Code of Professional Responsibility by advising Mrs. Alexander as to
  the meaning of the power of attorney which he prepared for her to sign.  DR
  7-104(A)(2) which provides that an attorney shall not "give advice to a
  person who is not represented by a lawyer, other than the advice to secure
  counsel, if the interests of such person are or have a reasonable
  possibility of being in conflict with the interests of his client."  
  Obviously, Mr. Alexander's interest in obtaining access to Mrs. Alexander's
  assets conflicted with Mrs. Alexander's desire to protect those assets as
  evidenced by her having placed those assets in trust.  It is particularly
  distressing that the advice which Respondent proffered to Mrs. Alexander,
  i.e., that the general power of attorney was really a limited power of
  attorney, was erroneous.

                                  Sanction

       It is obvious to every member of the Board that Respondent is a
  well-meaning and gracious person who acted without malice or any bad
  intent.   It is also clear to the Board, however, that Respondent fails to
  appreciate the seriousness of the misconduct.  But for Attorney Tonelli's
  intervention, it is quite possible that Mrs. Alexander could have suffered
  a significant monetary loss.  It is also quite clear that Respondent does
  not understand the broad scope of the power of attorney which he drafted
  for Mrs. Alexander.

       Despite the parties' joint recommendation that a private admonition be
  imposed here, we are guided by our actions in many prior cases of improper
  contact as well as by the ABA Standards for Imposition of Lawyer Discipline
  in recommending a public sanction here.

       This was not an isolated instance of improper contact which arose by
  accident or chance meeting.  See, e.g.,  Decision No. 23, PCB Docket No.
  91.38, (December 6, 1991)(private admonition imposed on lawyer who
  accompanied her client to pick up the client's children and became involved
  in a discussion with the represented ex-spouse).  To the contrary,
  Respondent deliberately planned this contact with the represented party not
  once, but twice.  

       While Respondent did not intend to violate the disciplinary rule, he
  was certainly negligent in failing to determine Attorney Tonelli's status
  in light of his knowledge that she had represented Mrs. Alexander only five
  months earlier.    Even if Mrs. Alexander had told Respondent that she had
  discharged Attorney Tonelli, it would have been prudent to check directly
  with opposing counsel.   But to simply rely upon the claim of his client
  that the adverse party was no longer represented, particularly given this
  couple's history, was reckless.  A mere negligent contact in such
  circumstances warrants public reprimand.  See In re McCaffrey, 275 Or. 23,
  549 P.2d 666 (1976)(attorney who knew adverse party in domestic relations
  matter was represented six months earlier was publicly reprimanded for
  direct contact, even though the attorney did not know the adverse party was
  still represented) cited with approval in In re Illuzzi, 160 Vt. 474, 490
  (1993).

       We are guided by In re Illuzzi, supra, in concluding that Standard
  6.33 of the ABA Standards for Imposition of Lawyer Discipline controls this
  case.  That Standard provides:

    Reprimand is generally appropriate when a lawyer is negligent in
    determining whether it is proper to engage in communication with an
    individual in the legal system, and causes injury or potential injury to a
    party or interference or potential interference with the outcome of the
    legal proceeding.

       In aggravation, we note that Respondent has substantial experience in
  the practice of law and that the victim of this misconduct, Mrs. Alexander,
  was vulnerable.  In mitigation, we note an absence of a dishonest or
  selfish motive and a full and free disclosure to the disciplinary board. 
  These factors do not tilt the balance away from our recommendation that a
  public reprimand be imposed.

       In order to protect the public and insure that Respondent receives
  sufficient training in the areas of ethics and the substantive law
  pertinent to trusts and powers of attorney, we also recommend that
  Respondent be placed on probation for a period of six months.  During this
  probationary period, Respondent should be required to complete five hours
  of continuing legal education in ethics, particularly in the area of
  conflicts, and another five hours of continuing legal education in the area
  of trusts and estates.  Respondent should be required to report his
  progress to Bar Counsel for monitoring purposes.

       Dated at Montpelier, Vermont this     2nd        day of April, 1999.

  PROFESSIONAL CONDUCT BOARD


            /s/
  ____________________________ 
  Robert P. Keiner, Esq. Chair


            /s/	                   /s/
  ___________________________	____________________________
  Steven A. Adler, Esq.	        John Barbour 


            /s/
  ___________________________	____________________________
  Charles Cummings, Esq.	Paul S. Ferber, Esq.	

            /s/
  ___________________________	____________________________
  Michael Filipiak	        Nancy Foster


            /s/
  ___________________________	____________________________
  Barry E. Griffith, Esq.	Robert F. O'Neill, Esq.


            /s/
  ___________________________	____________________________
  Alan S. Rome, Esq.	        Mark L. Sperry, Esq.


            /s/
  ___________________________	____________________________
  Ruth Stokes	                Joan Wing, Esq. 


  ___________________________	____________________________
  Jane Woodruff, Esq.	        Toby Young



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                                 Footnotes

FN1.  DR 7-104(A) states: "During the course of his representation of a
client, a lawyer shall not:

(1) Communicate or cause another to communicate on the subject matter of the
representation with a party he knows to be represented by a lawyer in that
matter unless he has the prior consent of the lawyer representing such other
party or is authorized by law to do so."