In re Andres

In re Andres  (99-532); 170 Vt. 599; 749 A.2d 618

[Filed 8-Feb-2000]

                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 99-532

                             JANUARY TERM, 2000


In re Robert Andres, Esq.	}	Original Jurisdiction
                                }
                                }
                                }	Professional Conduct Board
                                }	
                                }
                                }	DOCKET NOS. 95.66, 98.08 & 99.02



       Pursuant to the recommendation of the Professional Conduct Board filed
  December 3, 1999, and  approval thereof, it is hereby ordered that Robert
  Andres, 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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140.PCB

[3-Dec-1999]



                              STATE OF VERMONT
                         PROFESSIONAL CONDUCT BOARD

In Re:	Robert Andres, Esq., Respondent
        PCB Docket Nos. 95.66, 98.08 and 99.02

                      FINAL REPORT TO THE SUPREME COURT

                         PCB DECISION NO.       140

       This matter was submitted to the Professional Conduct Board by
  stipulation.  A hearing  before this Board was held on October 1, 1999. 
  The Office of Bar Counsel was represented by  Michael Kennedy, Esq., Deputy
  Bar Counsel.  The Respondent, Robert Andres, Esq., did not  appear nor
  communicate with the Board as to the reason for his absence.(FN1)

       After hearing the presentation by Deputy Bar Counsel and reviewing the
  stipulated  documents, we find that Respondent was admitted to practice law
  in Vermont in 1983 and is  currently licensed to practice law here.  We
  make the following findings of fact, draw the  following conclusions of
  law, and recommend that the Vermont Supreme Court impose a public 
  reprimand.

PCB File No. 95.66

       Respondent represented K.L. who was charged in 1994 with driving while
  intoxicated.    Respondent represented this client in both the civil
  suspension and the criminal aspects of this  case.

       In August of 1994, the Court ruled against K.L. in a civil suspension
  hearing.  

       Later that month, the Respondent injured his neck and was unable to
  attend to all aspects of his  practice for several weeks.  Nevertheless, on
  August 31, 1994,  Respondent filed an appeal of the  ruling in the civil
  suspension hearing.  

       Over the course of the next several months, however, Respondent
  neglected this case.  He  failed to order the transcript of the civil
  suspension hearing and did not pay the filing fee until late  October.  
  K.L. did not reimburse the Respondent's office the cost of the filing fee,
  and  Respondent took no further steps at that time to file a docketing
  statement or order a transcript of  the civil suspension hearing.

       On December 2, 1994, the Supreme Court issued an order requiring that
  a docketing  statement be filed, that a transcript be ordered, or that a
  statement be filed stating that no  transcript would be ordered.  All of
  this was to be accomplished by December 15.  The order  stated that failure
  to comply with the order might result in the appeal being dismissed.

       Respondent promptly informed K.L. of this order by letter dated
  December 6, 1994.  He  told her that she had to provide him with money to
  order the transcript or the appeal would be  dismissed.

       Two days before the deadline,  K.L's husband gave Respondent a check
  for $150.00 to  pay for the transcript. Respondent then completed a
  transcript order but did not include the  proper date of the hearing nor
  the necessary fee so that the transcript could be prepared.  More 
  importantly, he failed to file the transcript order with the Supreme Court
  as required by its  December 2 order.  Accordingly, on  December 28, the
  Supreme Court dismissed K.L.'s appeal.

       Respondent did not tell K.L. that the appeal had been dismissed.  K.L.
  learned of the  dismissal when she called the Court in February of 1995,
  seeking an update on the case.  K.L.  subsequently moved to re-open the
  appeal, but the motion was denied.

       K.L. filed a small claims case against the Respondent in which she
  sought to recover legal  fees paid to the Respondent as well as
  compensatory and punitive damages. The court found that  Respondent's
  failure to effectively order the transcripts resulted in the dismissal of
  K.L.'s appeal  and ordered Respondent to pay K.L. $788.32 in damages,
  interests, and costs.

       Respondent's neglect of K.L.'s appeal and his failure to inform his
  client when the appeal  was dismissed constituted a violation of DR 
  6-101(A)(3) which provides that a lawyer shall not  "neglect a legal matter
  entrusted to him."   By essentially abandoning this client's case, 
  Respondent caused his client to lose her right to pursue an appeal of an
  adverse decision.  Respondent's lack of diligence thereby caused injury to
  his client.  			

PCB File No. 98.08

       On April 18, 1996, the Respondent entered an appearance on behalf of
  Defendant  Raymond Gale in the matter of Hoburn v. Gale, 92-3-96 Frdm.  The
  case was one in which Mr.  Gale was being sued for child support.

       On May 29,  the court scheduled a settlement conference for June 26. 
  On June 5,  Respondent moved to continue this settlement conference. 
  Respondent did not inform his client  that a settlement conference had been
  set for June 26 or that he had moved to continue it.

       The motion to continue was granted by court order of June 6, 1996.  In
  that same order,  the court set the matter for a case manager's conference
  on July 11.  The court sent a copy of this  order to Respondent. 
  Respondent did not inform his client that a case manager's conference had 
  been scheduled for July 11. Neither the Respondent nor Mr. Gale appeared at
  the case manager's  conference.

       The court then scheduled a hearing to establish child support for
  August 22, 1996.  Respondent did not tell Mr. Gale that this hearing had
  been set.  On July 19, 1996,  Respondent  moved to continue this hearing. 
  Respondent did not inform his client of this motion.

       On August 14, 1996, a settlement conference was held.  Respondent
  appeared but his  client did not because Respondent had failed to inform
  him that a settlement conference had been  scheduled.

       On September 26, 1996, the court scheduled a hearing to establish
  child support  for October 17, 1996.  Again, Respondent failed to inform
  his client of a scheduled  hearing. In early October, 1996, the plaintiff
  called  Mr. Gale's wife and told her that a hearing to  establish child
  support had been set for October 17, 1996.  Mr. Gale's wife called
  Respondent's  office and spoke to a secretary who told Mrs. Gale that
  Respondent would file a motion to  continue the October 17 hearing because
  Respondent was unable to attend.  The secretary also  told Mrs. Gale that a
  hearing would not be necessary if Mr. Gale completed a particular form used 
  by the family court.  

       Mr. Gale did not complete the form that would have obviated the need
  for a hearing.  Respondent did not file a motion to continue the hearing.

       The court held the hearing on October 17, 1996.  Respondent did not
  appear although Mr.  Gale did.  Mr. Gale fired  Respondent and settled the
  case on his own.

       As early as May of 1996, Mr. Gale was ready to proceed to a final
  hearing to determine the amount he would owe in child support, except he
  had not filled out a form that was  required by the family court despite
  being advised to do so by the Respondent.

       We conclude that Respondent violated DR 6-101(A)(3)(neglecting a legal
  matter  entrusted to him).  Rather than diligently pursue the case, the
  Respondent filed a series of motions  to continue various hearings without
  even informing his client as to the fact that a hearing had  been
  scheduled, that a motion to continue had been filed, or the reason why
  Respondent wanted  the matter continued.  Respondent's failure to inform
  Mr. Gale that a final hearing had been  scheduled was inexcusable. 

PCB File No. 99.02

       In the spring of 1998, the Respondent was in a local bar with some
  friends.  The  Respondent represents the bar in various legal matters. One
  Jeff Sullender entered the bar and  began speaking with the Respondent and
  his friends.  

       Respondent had previously represented Mr. Sullender in a case in which
  Mr. Sullender had  been charged with various criminal offenses.  Mr.
  Sullender never paid the Respondent for the  services he had rendered.

       Respondent told Mr. Sullender that he did not want anything to do with
  him.  Mr.  Sullender responded by stating that he was insulted.  The
  Respondent said that he did not care,  told Mr. Sullender that he was not
  interested in hanging around with him, and reminded Mr.  Sullender that he
  owed him money.  Mr. Sullender became angry at the mention of the unpaid
  bill,  confronted Respondent, and was forced to leave the bar.

       On June 24, 1998,  Respondent was in a tavern in Winooski owned by one 
  of his clients.  Mr. Sullender entered the tavern with two other men.  One
  of the men was a client of Respondent's.  

       Respondent got up to leave.  As he was leaving, Mr. Sullender said
  that friends of the  Respondent had threatened to kill him and that it was
  Respondent's fault that they had made the  threat.   Respondent stated that
  he did not know anything about the alleged threats.  Mr.  Sullender
  responded by using abusive language to which Respondent responded in kind.  

       Respondent then accepted Mr. Sullender's invitation to step outside to
  fight. A mutual friend attempted in vain to stop the fight.  Mr. Sullender
  punched the  Respondent in the face.  Respondent punched him back.  A melee
  ensued.  One of Mr. Sullender's  friends joined in.  Respondent and Mr.
  Sullender traded punches.  Eventually, the police arrived  and broke up the
  fight.

       Respondent was charged with simple assault.  He eventually pled guilty
  to the lesser  offense of simple assault by mutual affray.

       DR 1-102(A)(3) provides that it is unethical for an attorney to engage
  in certain types of  criminal conduct.  While street fighting is not the
  sort of criminal conduct envisioned by that rule,  Respondent's criminal
  conduct here demonstrates a lack of judgment, control, maturity, and good 
  sense which adversely reflects on his reputation as a member of the bar. 
  This sort of criminal  conduct calls into question Respondent's character
  and his ability to abide by the law.  We find  that this conduct
  constitutes a violation of DR 1-102(A)(7)(a lawyer shall not engage in
  conduct  that adversely reflects on his fitness to practice law). 

                                  SANCTIONS

PCB File No. 95.66

       The applicable sections of the ABA Standards for Imposing Lawyer
  Sanctions to these  three cases are:

       1. Section 4.43 which states that a "[r]eprimand 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";
 
       2. Section 4.63 which states that a "[r]eprimand is generally
  appropriate when a  lawyer negligently fails to provide a client with
  accurate or complete information,  and causes injury or potential injury to
  the client"; and  

       3. Section 7.3 which states that a"[r]eprimand is generally
  appropriate when a lawyer  engages in conduct that is a violation of a duty
  owed to the profession and causes  injury or potential injury to a client,
  the public, or the legal system."

       In addition to these standards, we consider as aggravating factors the
  fact that there are  multiple offenses here and the fact that Respondent
  had substantial experience in the practice of  law.   In mitigation, we
  note that Respondent does not have a prior disciplinary record and that he 
  did not have a dishonest or selfish motive when committing these ethical
  violations.  We also  understand that he co-operated with bar counsel.  

       Although Respondent suffered a neck injury in August of 1994 and
  missed several weeks  of work, we do not have sufficient evidence before us
  on this matter to conclude that this was a  personal problem which would
  constitute a mitigating factor in the K.L. case.  It does not explain  his
  neglectful behavior in December of 1994 in regard to the K.L. appeal and
  appears irrelevant to  the Gale case and to the Sullender fight.

       Because Respondent failed to provide any additional comment at the
  hearing before us  and because the stipulated facts provide no reason for
  Respondent's neglectful behavior in the  K.L. and Gale cases, it is
  difficult to determine if the neglect here was aberrational and unlikely to 
  be repeated.  There appears to have been a pattern of neglect, particularly
  in the Gale case.  Nevertheless, since the incidents of neglect occurred
  several years ago and there have been no  other cases of neglect brought to
  our attention since, we recommend that a public reprimand  issue.

       Dated at Montpelier, Vermont this    3rd       day of December, 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/	                     /s/
___________________________	____________________________
Michael Filipiak	        Barry E. Griffith, Esq.

      /s/	                     /s/
___________________________	____________________________
Robert F. O'Neill, Esq.	        Alan S. Rome, Esq.

   (ABSENT)
___________________________	____________________________
Mark L. Sperry, Esq.	        Ruth Stokes 

     /s/
___________________________	____________________________
Joan Wing, Esq. 	        Jane Woodruff, Esq.

           (ABSENT)
___________________________	
Toby Young

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                                  Footnotes
   
  FN1.  By letter dated August 24, 1999, the parties were notified that oral
  argument was scheduled for October 1, 1999.