In re Hunter
Annotate this Case
In re Hunter (99-534); 171 Vt. 635; 769 A.2d 1286
[Filed 28-Dec-2000]
ENTRY ORDER
SUPREME COURT DOCKET NO. 99-534
NOVEMBER TERM, 2000
In re William Hunter, Esq. } APPEALED FROM:
}
}
} Professional Conduct Board
}
}
} DOCKET NO. 99.26
In the above-entitled cause, the Clerk will enter:
Respondent William A. Hunter appeals from the recommendation of the
Professional Conduct Board that he be disbarred as a result of engaging in
illegal conduct involving a serious crime in violation of DR 1-102(A)(3)
of the Code of Professional Conduct. He contends that the Board erred (1)
by failing to consider his mental disability as a mitigating factor, (2)
by failing to address the evidence respondent presented on seven other
mitigating factors, and (3) by failing to explain why disbarment is the
appropriate sanction to protect the public. We adopt the Board's
recommendation and disbar respondent effective October 5, 1998.
The parties stipulated to the facts before the Board. On June 17,
1998, respondent pled guilty to one felony count of mail fraud in the
United States District Court for the District of Vermont. On October 5,
1998, the court entered a felony conviction against respondent. The
conduct at issue involved mishandling of client funds and
misrepresentations about those funds during the period from 1993-1996.
Respondent repeatedly deposited client funds in his personal account or his
general office account when these funds should have been held in
respondent's client trust account on behalf of clients. In many
instances, respondent used client funds in his office or personal account
for personal expenses, and he also used funds in the client trust account
for his personal benefit. The parties' stipulation of facts details
eleven separate matters in which respondent mishandled client funds,
illustrating that respondent repeatedly used client funds without the
permission of the client and lied to clients, attorneys and a probate
judge to cover up his misconduct.
Pursuant to A.O. 9, Rule 14(D) (Cum. Supp. 1998) (formal proceedings
after conviction for serious crime), special bar counsel filed a petition
of misconduct against respondent. There was no dispute that respondent
was convicted of a serious crime. The only issue before the Board was the
sanction to be imposed for the undisputed conduct. The Board's decision
was based on the parties' stipulation of facts and the testimony of
respondent and two expert medical experts, one proffered by each side,
concerning whether respondent had a mental disability that mitigated the
misconduct. Applying the ABA's Standards for Imposing Lawyer Sanctions,
the Board concluded that disbarment
was appropriate under three separate standards. See ABA, Standards for
Imposing Lawyer Sanctions, Standard 4.61 (disbarment appropriate when
lawyer knowingly deceives client with intent to benefit lawyer or another,
and causes serious injury or potentially serious injury to client);
Standard 5.1 (disbarment appropriate when lawyer engages in serious
criminal conduct or intentional conduct involving dishonesty, fraud,
deceit or misrepresentation that adversely reflects on lawyer's fitness to
practice law); Standard 6.1 (disbarment appropriate when lawyer makes false
statement with intent to deceive court).
Further, the Board found several aggravating factors: (1) respondent
has a significant record of prior discipline, (2) respondent acted with a
dishonest or selfish motive, (3) respondent exhibited a pattern of
misconduct, (4) respondent is responsible for multiple offenses, and (5)
the victims of respondent's misconduct were vulnerable. See ABA
Standards, supra, Standard 9.2 (listing factors that may be considered
aggravating and justifying increase in degree of discipline to be imposed).
It considered but rejected several mitigating factors advanced by
respondent. First, the Board rejected respondent's claim that he was
motivated by a genuine desire to help people obtain financing because it
had previously found that respondent had a dishonest or selfish motive for
much of the misconduct. Second, the Board rejected respondent's claim
that his mental disorder, attention deficit disorder (ADD), be considered
a mitigating factor. It concluded that ADD would explain a disorganized
practice and neglect of client matters, but did not explain repeated use of
client's money without permission, lying to clients, attorneys and judges,
and covering up the misconduct to protect himself. Third, the Board
rejected respondent's claim that he has been rehabilitated by obtaining
professional help and taking medication for ADD because addressing his ADD
is not rehabilitative of the misconduct that is not attributable to the
mental disability. The Board found no credible evidence that respondent
had learned from his mistakes and now has the ability to handle client
funds in a responsible manner. In view of the aggravating factors and
the absence of mitigating factors, the Board unanimously concluded that
disbarment is the appropriate sanction.
Although we make the ultimate decision on discipline, we accord
deference to the Board's recommendations. See In re Berk, 157 Vt. 524,
527-28, 602 A.2d 946, 948 (1991). Before this Court, respondent raises
three issues. He contends first that the Board erred in failing to
consider his mental disability as a mitigating factor. He concedes: "No
one has suggested that ADD was a direct cause of the infractions." He
contends, however, that the Board's past decisions have recognized a
mental impairment as a mitigating factor without requiring a showing that
the mental impairment caused the misconduct. We have held otherwise.
In In re Hunter, 167 Vt. 219, 224-25, 704 A.2d 1154, 1157 (1997),
respondent argued that ADD caused the disorganization of his practice
which resulted in the many instances in which he neglected client matters.
We rejected this claim because the evidence did not show that ADD caused
respondent's most egregious misconduct, misappropriation of client funds by
loaning them to other clients without permission to do so. See id. at
225, 704 A.2d at 1157. In so ruling, we adopted the ABA Standard
requiring that the respondent show direct causation between the mental
disability and the offense before the mental disability may be considered
as a mitigating factor. See id.; ABA Standards, supra, Standard 9.3(i)(2)
and commentary (1992 amendments). Other courts have similarly required a
showing of causation before considering a mental disability as a mitigating
factor. See, e.g., Oklahoma Bar Assoc. v. Busch, 976 P.2d 38, 56
(Okla.1999) (rejecting respondent's claim that ADD mitigated his
misconduct because "there is no causal connection between respondent's
condition and the ethical violations in contest"). Thus, we reject
respondent's contention that he need not show that the mental disability
caused the misconduct.
As in respondent's previous disciplinary proceeding, we conclude again
that ADD does not explain respondent's most egregious conduct: (1) loaning
client funds to other clients without permission, (2) lying to clients,
attorneys and a judge about client funds, and (3) using client funds to
make loans and payments for his personal benefit. Indeed, respondent
presented no evidence that ADD caused this misconduct. His treating
psychiatrist, who testified as his medical expert, testified that ADD does
not explain respondent's lies to clients about their funds. Accordingly,
we agree with the Board that ADD is not a mitigating factor to this
misconduct.
Second, respondent contends that the Board erred in failing to address
seven other mitigating factors upon which he presented evidence. Despite
the Board's statement that respondent advanced two mitigating factors, the
Board's decision addresses many of the factors respondent advances as
mitigating. Respondent contends that the Board failed to address as
mitigating factors: (1) that he had personal and emotional problems, (2)
that he made timely, good faith efforts to make restitution, (3) that he
made a full and free disclosure of his conduct to the disciplinary board,
(4) that he has a good character and reputation, (5) that he has in the
interim been rehabilitated, (6) that other sanctions have been imposed for
the misconduct, and (7) that he has shown remorse.
On the contrary, the Board explicitly rejected his claim of
rehabilitation because addressing his mental illness did not address the
most egregious misconduct, which was not attributable to the mental
illness. The Board's decision also implicitly rejects any contention that
respondent has shown remorse, as it found that his claim that he had
learned from past mistakes was not credible. In addition, although the
Board's decision did not explicitly consider as mitigating factors whether
respondent had personal and emotional problems or whether other sanctions
were imposed, these factors are apparent in the Board's decision, and we
have no doubt that they were taken into account in the discipline
recommendation. See People v. Goldstein, 887 P.2d 634, 642 (Colo. 1994)
(consideration of respondent's other sanctions and emotional problems
apparent from Board's findings that respondent was convicted of felony and
sentenced to three years probation and continued mental health counseling
for emotional disorder he alleged responsible for the misconduct).
Further, as in Goldstein, the other sanctions imposed for the criminal
conviction, a two-year probationary sentence and 200 hours of community
service, are not so severe as to create a mitigating factor. See id. at
643 (rejecting sanction on criminal conviction as mitigating where
respondent was placed on probation for three years and ordered to perform
150 hours of community service; finding case distinguishable from prior
case where factor was mitigating because respondent was not directly
responsible for securities fraud but was imprisoned for more than a year).
We also reject respondent's claim that his good character and
reputation are mitigating. In respondent's previous disciplinary
proceeding, we stated that "any mitigating effect that good character and
reputation evidence might have had on the Board's choice of sanction is
necessarily diminished when, as here, the attorney has been previously
disciplined." See Hunter, 167 Vt. at 227,
704 A.2d at 1158. In light of respondent's continuing and escalating
pattern of misconduct, as well as the multiple offenses, such evidence
would have little or no effect on the discipline imposed here.
Respondent's contention that we should consider as mitigating factors
that all clients have been made whole, and that he made full and free
disclosure to the disciplinary board, are compromised by the multiple
disciplinary proceedings. The misconduct in this case was occurring during
the proceedings for the previous case, and thus, it is not clear at all
that respondent made full and free disclosure to the disciplinary board,
for example by self-reporting, nor that he made restitution before
disciplinary proceedings were initiated, see ABA Standards, Standard 9.32
commentary (lawyers who make restitution before initiation of disciplinary
proceedings present best case for mitigation). In sum, we agree with the
Board that there are no clearly mitigating factors in this case.
Finally, respondent contends that disbarment is not consistent with
the primary purpose of lawyer sanctions, which is to protect the public.
He contends that all the misconduct upon which this proceeding is based
happened before he was diagnosed and treated for ADD. Respondent maintains
that he has since made tremendous positive changes in his life, and thus,
disbarment is not necessary at this point to protect the public.
Respondent relies on two cases.
In Iowa Supreme Court Bd. of Prof'l Conduct v. Erbes, 604 N.W.2d 656
(Iowa 2000), the lawyer was charged with neglecting clients' matters and
failing to cooperate with the investigation into those matters by the
disciplinary authority. Because the lawyer: (1) had successfully addressed
his depression with counseling and medication, (2) had consequently
completely transformed his office to meet his high standards, (3) had
learned from his experience, and (4) posed no current threat to the
public, the court determined that a public reprimand was the appropriate
sanction. Id. at 658-59. This case is inapposite. First, in Erbes, the
lawyer's misconduct was caused by his mental illness, and thus, addressing
the mental illness was rehabilitative. Second, the charges of neglect
against the lawyer in Erbes were far less serious than the charges of
intentional deceit here. Most importantly, however, the Board in Erbes
concluded that Erbes was no longer a threat to the public. In this case,
we cannot reach this conclusion.
The other case upon which respondent relies, Cincinati Bar Assoc. v.
Stidham, 733 N.E.2d 616 (Ohio 2000), is also distinguishable. In that
case, the lawyer was charged with multiple offenses involving mishandling
of client funds, generally caused by his severe depression. The court
found numerous factors mitigating against the board's recommendation of
indefinite suspension. First, the lawyer had no prior disciplinary
record. Most importantly, the court found that he was being treated for
the depression that caused the misconduct, and that he had changed his
office and accounting practices to prevent future problems. None of these
factors is present here.
We agree with respondent that "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." Hunter, 167 Vt. at 226, 704 A.2d at 1158. We have, however,
already imposed the maximum sanction short of disbarment for other conduct
of respondent, and the misconduct here is more serious than that we have
found in the past. As we noted above, some of the misconduct involved
here occurred while the last disciplinary action was pending, indicating
that
the last sanction or its threat was inadequate to deter continuing
misconduct.
We conclude that disbarment is the appropriate sanction to protect the
public. Respondent engaged in serious criminal conduct, misused clients
funds for his own benefit, and lied to clients, attorneys and the court to
cover up his misconduct. The ABA Standards for Imposing Lawyer Sanctions
recommend disbarment for each of these actions. We are not persuaded that
there are any overriding mitigating factors in this case - ADD cannot be
considered the cause of the most egregious conduct - and there are
certainly several aggravating factors. Moreover, all of the misconduct is
directly related to respondent's practice of law. Accordingly, we agree
with the Board's recommendation that respondent be disbarred. See
Goldstein, 887 P.2d at 644 (attorney disbarred for deceitful conduct in
handling legal matters despite claims that mental disorder contributed to
misconduct); The Florida Bar v. Clement, 662 So. 2d 690, 699 (Fla. 1995)
(attorney disbarred for misuse of client funds where referee found that
mental illness did not cause misconduct); Busch, 976 P.2d at 56 (attorney
disbarred for misuse of client funds where court found no causal
connection between misconduct and ADD).
The Board recommended that disbarment be effective October 5, 1998,
the date of respondent's conviction. Because neither party has contested
this date, we accept the recommendation of the Board.
Respondent William A. Hunter is hereby disbarred, effective October 5,
1998.
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, Chief Justice (Ret.)
Specially Assigned
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139.PCB
[3-Dec-1999]
STATE OF VERMONT
PROFESSIONAL CONDUCT BOARD
In Re: William A. Hunter, Esq., Respondent
PCB Docket No. 99.26
Final Report
Decision No. 139
The hearing panel filed its report in this matter on October 1, 1999.
We held a hearing on October 1, 1999, pursuant to Administrative Order No.
9, Rule 8D. Special Bar Counsel William Dorsch appeared. Respondent
appeared, represented by counsel Peter Langrock.
After consideration of the oral argument and of briefs submitted by
the parties, we must recommend to the Supreme Court that Respondent be
disbarred. We rely upon the findings of fact, conclusions of law and
recommended sanctions which appear in the hearing panel report, adopted as
our own by reference here and attached hereto as Exhibit 1. Because this
disbarment recommendation is based upon a conviction for a serious crime,
we would begin the period of disbarment retroactive to the date of
conviction, October 5, 1998.
Dated at Montpelier, Vermont this 3rd day of December, 1999.
PROFESSIONAL CONDUCT BOARD
/s/
____________________________
Robert P. Keiner, Esq. Chair
RECUSED /s/
___________________________ ____________________________
Steven A. Adler, Esq. John Barbour
/s/
___________________________ ____________________________
Charles Cummings, Esq. Paul S. Ferber, Esq.
/s/ /s/
___________________________ ____________________________
Michael Filipiak Barry E. Griffith, Esq.
/s/
___________________________ ____________________________
Robert F. O'Neill, Esq. Mark L. Sperry, Esq.
ABSENT
___________________________ ____________________________
Ruth Stokes Joan Wing, Esq.
/s/
___________________________ ____________________________
Jane Woodruff, Esq. Toby Young
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CONCURRING AND DISSENTING
I take no issue with the recommendation as made by the entire Board.
However, I feel that the retroactive date should not be at the time of
sentencing (10/5/98), but at the time of his plea.
/s/
Alan S. Rome, Esq.
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Attachment (Hearing Panel Report)
STATE OF VERMONT
PROFESSIONAL CONDUCT BOARD
In Re: William A. Hunter, Esq., Respondent
PCB Docket No. 99.26
HEARING PANEL REPORT
TO THE PROFESSIONAL CONDUCT BOARD
On June 17, 1998, Respondent pled guilty to one count of mail fraud, a
felony under the United States Criminal Code. On October 5, 1998, the
United States District Court for the District of Vermont entered a felony
judgment of conviction against Respondent. This conviction was based upon
a plea agreement.
On November 13, 1998, Special Bar Counsel William Dorsch filed a
Petition of Misconduct pursuant to Supreme Court Administrative Order No.
9, Rule 14(D). It is not contested that Respondent has been convicted of a
serious crime as defined by the Code of Professional Responsibility. The
only issue to be determined is the extent of the final discipline to be
imposed. This matter was referred to us by the full Professional Conduct
Board to make a recommendation as to what that sanction should be.
We held a hearing on June 24, 1999, at which Respondent, his counsel,
Peter Langrock, Esq., and Special Bar Counsel William Dorsch, Esq. and
Aileen Lachs, Esq. appeared and participated. A Stipulation of Facts was
presented as to many issues. Respondent testified as did two medical
experts, one proffered by each party.
After review of all of the credible, reliable, admissible evidence,
including the Stipulation of Facts, signed by Respondent on June 24, 1999,
attached hereto as Exhibit A and incorporated herein by reference, we
recommend that Respondent should be disbarred as a result of his engaging
in serious criminal activity in violation of DR 1-102(A)(3). Our findings
and analysis are summarized below.
Introductory Facts
1. Respondent, William A. Hunter, was licensed to practice law
in the State of Vermont on December 19, 1985. Since January 10, 1999, his
license has been suspended.
2. Respondent was convicted in October of 1998 of devising a
scheme and artifice to defraud law clients and others for whom he was
holding funds in trust, to deprive these individuals of their right to
honest services, and to obtain money by means of false and fraudulent
pretenses, representations, and promises, through embezzlement, conversion
and secret self-dealing with respect to funds he held in trust and
obtaining funds by misrepresentation, concealment and false pretenses.
3. It was part of the scheme that Respondent would commingle
funds held in trust and in escrow for various law clients, and deposited
the funds into various accounts, including accounts unrelated to his law
practice or the client, and avoided keeping detailed records as required by
law concerning the use of client trust accounts.
4. The misuse of these trust accounts occurred during a period
beginning in 1993 and ending in 1996.
Standards for Imposing Lawyer Discipline
5. In considering the appropriate sanction to recommend, we
consider the duty violated, the lawyer's mental state, the actual or
potential injury caused by the lawyer's misconduct, and the existence of
aggravating or mitigating factors. Standard 3.0, Standards for Imposing
Lawyer Sanctions, American Bar Association (1991 ed.).
The Duties Violated
6. The criminal conduct committed by Respondent involved the
misuse of trust accounts in 11 different matters. See paragraphs 6
thorough 55 of Exhibit A.. The conduct detailed in paragraphs 6 through 55
show the violation of four duties:
a. the duty he owed to his clients to preserve their
property ,
b. the duty he owed to his clients to be candid and
honest ,
c. the duty he owed to the public to maintain personal
integrity and abide by the laws against serious criminal
conduct , and
d. the duty he owed to the legal system to speak
honestly and truthfully to the court .
Respondent's State of Mind
7. Respondent's mental state, in devising and acting pursuant to
a scheme to defraud and to obtain money by false pretenses, was that he
acted intentionally. While considerable evidence was introduced concerning
Respondent's complaint of suffering from attention deficit disorder, we
have examined the transcript of Respondent's change of plea. There is no
suggestion therein that Respondent did not act with the full mental
capacity alleged in the indictment and admitted to when he pled guilty to
one count of mail fraud. While we will address this issue more fully below
under our analysis of mitigating circumstances, it is apparent that
Respondent committed this criminal activity with the mens rea alleged by
the indictment and admitted to at the change of plea hearing. While we are
not constrained to employ a criminal law analysis to Respondent's mental
state, a review of his guilty plea and its underpinnings aids us in our
task.
Actual or Potential Injury Caused by the Lawyer's Misconduct
8. Respondent caused potential and actual injury to his clients
and did so as follows:
a. The Respondent caused injury to Larry and Lila
Carrara when he failed for five months to forward their
settlement money. Exhibit A at 32-37.
b. Respondent caused injury to Lisa Polston, the
beneficiary of the Pazda Estate, by failing to comply with
her repeated requests that he pay funds to her so that she
could pay her own bills. Instead, without her knowledge or
consent, Respondent used this money for other purposes.
Exhibit A at 43.
c. Respondent caused injury to Marie Louise and Ronald
Thorburn when he obtained $20,000 by false pretenses. They
believed that the funds were being used to make repairs at
their inn, when in fact the money was used to benefit
Respondent. Exhibit A at 48.
d. Respondent caused potential injury to Lorle
Adlerbert when he failed to secure the loan to the
Hammondsville Environmental Forestry Associates, Inc. and
when he executed a stipulation which placed Ms. Adlerbert's
loan in an inferior position, all without Ms. Adlerbert's
knowledge or consent.
The Existence of Aggravating or Mitigating Factors
AGGRAVATING FACTORS
9. There are a number of aggravating factors present.
10. We find from Exhibit A a significant record of prior
discipline. Standard 9.22(a). The first three disciplinary matters
detailed below primarily concerned neglect of client matters. The fourth
disciplinary matter concerned the mismanagement of client funds, in
addition to neglect of more than twenty client matters. Six of the client
matters which were part of the criminal scheme to defraud involved activity
which occurred after the third public discipline detailed below was
imposed..
11. The record of prior discipline is as follows:
a. Public reprimand on August 8, 1991, in PCB
File No. 89.65, for violation of DR 7-108 (communication with
jurors);
b. Public reprimand on August 8, 1991, in PCB
File No. 89.51, for violation of DR 1-102(A)(4) (dishonesty,
fraud, deceit or misrepresentation), DR 1-102 (A)(5) (conduct
prejudicial to the administration of justice), and DR 5-103
(B) (guaranteeing financial assistance to a client);
c. Public reprimand and nine month probation
with conditions on December 22, 1994, in PCB File No. 91.43,
for violating DR 6-101(A)(3) (neglecting client matters) and
DR 1-102 (A)(5) (conduct prejudicial to the administration of
justice), in PCB File No. 93.12 for violating DR 6-101(A)(3)
(neglecting client matters) and DR 1-102 (A)(5) (conduct
prejudicial to the administration of justice), and in PCB
File No. 93.32 for violating DR 6-101(A)(3) (neglecting
client matters) and DR 9-102(B)(4) (failing to relinquish
client property); and
d. Three year suspension beginning January 10,
1997, on October 3, 1997, in PCB file numbers 94.02, 94.14,
94.27, 94.46, 95.41, 95.42, 95.77, 96.09, and 96.30 for
violating DR 6-101(A)(3) (neglecting client matters), DR
1-102(A)(5) (conduct prejudicial to the administration of
justice), DR 1-102(A)(7) (conduct adversely reflecting upon
his fitness to practice law), DR 5-105(C) (representing
multiple clients with conflicting interests), DR 5-101(A)
(involvement in a legal matter with a conflicting personal
interest), and DR 9-102 (failure to handle client funds
properly).
12. We find from Exhibit A that, in many instances, Respondent
acted with a dishonest or selfish motive. Standard 9.22(b). Respondent
testified that he did not have a selfish or dishonest motive when he began
using other people's funds in order to finance projects which he felt were
worthy and which would benefit disadvantaged people. While that may have
been his initial intent, at some point Respondent began to misuse client
funds in order to cover up his previous professional misconduct or in order
to benefit himself economically. There are several instances which
evidence this dishonest or selfish motive.
a. The Respondent benefitted personally when he loaned
$20,000 of Lorle Adlerbert's money to the Hammondsville
Environmental Forestry Associates, Inc. (HEFA), of which he
was a director and for which he received $5,500 directly.
Even if the $5,500 was payment for legal frees incurred in
another matter, because the loan permitted Mr. Harrington to
pay the respondent the past due fees. The Respondent also
benefitted personally when he executed a stipulation which
prioritized the plaintiff's debt over the debt to Lorle
Adlerbert in the matter of Moore v. HEFA, Inc., in order to
avoid HEFA's liability. Exhibit A at 18-26.
b. The Respondent benefitted personally when he
obtained money from Larry and Lila Carrara by false
pretenses. He used their money to pay part of a $13,858.86
debt for which Respondent had become personally liable by
unethically assuming responsibility for the debt of a client.
Exhibit A at 37.
c. The Respondent neglected his representation of Biff
Mithoefer. Due to Respondent's failure to attend to Mr.
Mithoefer's case, Mr. Mithoefer owed the plaintiff $2,750.
Respondent used other client's monies to pay this debt for
Mr. Mithoefer, thus avoiding a potential professional conduct
complaint or malpractice claim from Mr. Mithoefer. Exhibit A
at 27.
d. The Respondent benefitted by using other client's
trust account monies to pay himself for services rendered to
David Mitchell. By doing so, there was a net loss of $4,500
of his clients' trust account and a net gain of $9538.95 to
Respondent's own accounts. Exhibit A at 28-30. See also self
dealing involving client funds and Nyline Turgeon and Nancy
Kelleher (Kimball), described in Exhibit A at 49-54.
e. The Respondent personally benefitted from his
mismanagement of the Pazda Estate. He used this money,
placed in his client trust account, to pay a personal bill
received from the IRS. Exhibit A at 55. The Respondent
benefitted also from his lies in the Pazda Estate matter.
His lies to Honorable Sarah Vail, the Probate Judge handling
the Pazda Estate, about the whereabouts of the estate funds
distracted the judge from her concern about the management of
the Estate and delayed her further inquiry into his conduct.
Exhibit A at 44-45. The lie to Attorney Patrick Ankuda,
the successor administrator, avoided a complaint to the
Court.
f. The lies to Jean Bewley, Mary Louise Thorburn, Doug
and Nancy Reed also benefitted the Respondent because those
lies permitted him to pay off the Pazda Estate debt for which
he was personally responsible as administrator. Stipulation
at 45, 46 and 48.
13. We find from Exhibit A an obvious pattern of misconduct,
Standard 9.22(c).
14. We find from Exhibit A many examples of multiple offenses,
Standard 9.22(d).
15. We find that the victims of Respondent's misconduct were
vulnerable. Standard 9.22(h). The Respondent's willingness to provide
legal services to clients with little or no financial means in no way
excuses his mismanagement of their funds. On the contrary, clients who
have little or no resources are the most vulnerable to misconduct, and
deserve the very best and most professional service.
MITIGATING FACTORS
16. Respondent advances two mitigating factors. The first is
that he was motivated by a genuine desire to help people obtain financing.
We decline to find the absence of a dishonest or selfish motive, Standard
9.32(b), for the reasons discussed above.
17. The second mitigating factor is Respondent's claim of a
mental impairment, attention deficit disorder. Most of the hearing before
us was devoted to testimony regarding whether or not Respondent actually
suffers from such an impairment. There was substantial and conflicting
testimony on this issue. It is the opinion of this panel, for the reasons
that follow, that whether or not Respondent suffered from attention deficit
disorder when the misconduct occurred, the characteristics of the disorder
are not mitigating of the specific misconduct here.
18. Attention deficit disorder is characterized by impulsive
behavior, inattention to detail, forgetfulness, poor attention,
distractability, lack of organization. Since most people have these
qualities at least sometimes during their lives, there needs to be chronic
and severe impairment in these areas which is demonstrated across settings,
e.g. family, peer, education, work. There also must be reliable data,
including signs and symptoms during childhood. See testimony of Dr. Paul
Cotton at Panel hearing transcript at pages 49-53.
19. There exist a number of contraindications for attention
deficit disorder in Respondent. He showed outstanding capacity to succeed
during childhood, adolescence and adulthood, across all settings. He
achieved high honors, was admitted to and succeeded at schools of great
distinction (e.g. Yale, Princeton and Harvard), was a Rhodes Scholar, was
elected at a very young age to the Vermont State House, and performed this
service while attending law school and running a newspaper. See Panel
hearing transcript at pages 54-60.
20. While Respondent testified that taking on too many tasks at
once and believing that he could juggle them all resulted from attention
deficit disorder, his accomplishments belie such an explanation. His
ability to pass the bar exam, complete college and law school at
competitive universities, and review and make legislation suggest a strong
ability to concentrate and focus on tasks at hand, consistently and for
many years.
21. However, even if Respondent did and does suffer from
attention deficit disorder, this does not explain the misconduct to which
he has stipulated. That misconduct includes numerous instances in which the
Respondent was dishonest to clients. In many of those instances he
benefitted from these lies. Attention deficit disorder does not explain
Respondent's lying to clients. See testimony of Dr. Ray Abney at Panel
hearing transcript at pg. 31, and of Dr. Paul Cotton at Panel hearing
transcript at pgs. 61-66.
22. Even assuming that Respondent suffers from attention deficit
disorder, that would not explain or mitigate lying to other attorneys or to
a probate judge. "...[A]ttention deficit disorder is a disorder of
attention. It is not a disorder of speaking truthfully." Testimony of
Dr. Paul Cotton at Panel hearing transcript at p. 65, lines 4-6.
23. The complexity of many of the financial transactions at issue
in this case indicate that Respondent's conduct was not controlled by
attention deficit disorder. Respondent's consistent ability to balance his
client trust account in contrast to his other accounts contradicts
attention deficit disorder. This conduct illustrates attention to detail,
concentration and precision - all contrary to the characteristics which
define attention deficit disorder. See Dr. Paul Cotton's testimony at
Panel hearing transcript at pg. 67, lines 5-11.
24. In sum, while attention deficit disorder may explain a
disorganized practice and neglect of client matters, it cannot and does not
explain Respondent's intentional and repeated use of his clients' money
without their permission, lying to clients, attorneys and judges, and
covering up the misconduct in order to protect or benefit himself.
25. Respondent also suggested that he has learned from his
mistakes and has rehabilitated himself. Indeed we are encouraged that
Respondent sought professional help and is now taking medication. This may
be helpful to him in some areas of the practice of law but cannot be
characterized as rehabilitative (and there for mitigating) with regard to
the misconduct here.
26. Respondent has told this Board in the past, on several
occasions, that he had learned from his mistakes and was competent to
practice law in an ethical fashion. Experience has demonstrated that those
statements were untrue. In fact, while being disciplined for one set of
misconduct in another case, Respondent was committing misconduct in this
one.
27. There was no evidence that Respondent's recent experiences
will keep him from using his clients' money in future. There was no
testimony concerning an ability to handle other people's money in a
responsible manner, only that Respondent now attends appointments on time
and takes on fewer tasks.
28. To the contrary, Respondent admits that he intentionally
failed to consult with his clients before spending their money. He was
aware that this was wrong, but he did it anyway. He offers as an
explanation that he had "no interest in doing ... [the] detail work..." of
consulting with his clients and that he was convinced that his clients
would agree to spend their money the way he had chosen. This is not the
product of a mental impairment but of arrogance. Respondent knew and
understood that he was violating the rules of conduct, and his decision to
do so was purposeful. See Panel hearing transcript at pages 139-141, and
change of plea hearing transcript at page 25.
Conclusion
Applying the applicable Standards , we conclude that Respondent should
be disbarred
Dated at Montpelier , Vermont this 1st day of
October, 1999.
/s/
Robert P. Keiner, Esq.
Hearing Panel Chair
/s/
Jane Woodruff, Esq.
Hearing Panel Member
/s/
John Barbour
Hearing Panel Member
----------------------------------------------------------------------------
Attachment Exhibit A
Distribution:
William M Dorsch, Special Bar Counsel
Peter Langrock, Esq., Counsel for Respondent
STATE OF VERMONT
PROFESSIONAL CONDUCT BOARD
IN RE: Professional Conduct Board File No. 99.26
William Hunter, Respondent
STIPULATION OF FACTS
The respondent and Bar Counsel hereby stipulate to the following facts
in the above-entitled matter.
GENERAL:
1. On October 5, 1998, the United States District Court for the
District of Vermont entered a felony judgment of conviction against the
respondent for mail fraud. The conduct at issue in that case included
mishandling of client funds and misrepresentations concerning those funds.
The conviction and much of the conduct at issue in the federal case
underlies this Professional Conduct Board complaint.
2. The respondent repeatedly placed client funds in his personal
or general office account during the period 1993-96. Those funds should
have been held in the respondent's office trust account on behalf of the
clients.
3. In many instances when the funds were improperly placed in the
respondent's personal or general office account, he used the funds for
personal expenses. He also used funds held in his client trust account for
his personal benefit.
4. The respondent repeatedly allowed the office client trust account
to be depleted such that the balance in the account was considerably less
than the client funds that he supposedly was holding.
5. The respondent repeatedly overdrew his office and personal
bank accounts. However, he did not overdraw the client trust account.
WILLIAM AND VIRGINIA WESTCOM:
6. The respondent represented William and Virginia Westcom in
the matter of the Estate of James Clifford Westcom v. Brian McAllister and
Robert Wylie, Docket No. LP-68-91 I, Lamoille County Probate Court. The
estate matter resulted from a wrongful death action on behalf of the
Westcom's son and granddaughter.
7. On or about April 14, 1993, the respondent received $32,500
from the carrier for Robert Wylie. He deposited this sum of money into
Vermont National Bank account #19535830, which was his personal account.
See Exh. 4. The respondent was a fiduciary for the estate for so long as
he held this money.
8. By correspondence dated June 13, 1993, the respondent
informed his clients, William and Virginia Westcom, that he was holding a
total of $42,015.41, which consisted of the $32,500 from the Wylie carrier,
$10,000 received from the insurance carrier for Shawn McAllister, accrued
interest on the Wylie money in the amount of $316.66 and accrued interest
on the McAllister money in the amount of $198.75. See Exh. 2.
9. The representations specified in the prior paragraph were not
true. The balance in Vermont National Bank account #19535830 dropped to
$21,000 on April 19, 1993 remained at this level through April 20, 1993 and
never increased any higher through May 18, 1993. The balance during the
period May 18 through June 14, 1993 remained below $20,000. See Exh. 4-6.
The balance increased to $34,000 on June 14 when the respondent deposited
$20,000 from his home equity line of credit, and the balance remained above
$33,000 until July 6, 1993, when it dropped below $32,500. See Exh. 7.
10. Throughout most of the time period that the respondent had a
fiduciary duty to hold money on behalf of the Westcom Estate, the balance
in his personal account (where he had originally placed the money) was less
than $32,500.
11. On numerous occasions William and Virginia Westcom requested
that the respondent send them money from the estate which was due them.
Mr. Westom needed to be reimbursed for his out of pocket expenses for the
funeral. The respondent did not do so, yet he had paid his own fees soon
after his receipt of the funds.
12. On or about July 13, 1993, the respondent paid $19,908.50 to
Attorney Vincent Illuzzi as payment to the estates of Whitney and Christian
Larow and to the LaRows for accident reconstruction, and other costs. The
transactions which preceded this payment were as follows: the respondent
took $20,000 out of his home equity line of credit in June, and put this
money into his personal account. He then purchased, in July 1993, a bank
check in the amount of $19,906 using the funds from his personal account.
He deposited the bank check into his client trust account, and then paid
Mr. Illuzzi with a check written on the client trust account.
13. In September 1993, the respondent paid the Westcoms $16,300
out of his client trust account. Since the Westcom money was not put in
the client trust account, the Westcoms were paid with other clients' money.
LORLE ADLERBERT:
14. The respondent represented Lorle Adlerbert and her husband,
now deceased, Bo Adlerbert, for many years in a variety of matters,
including the setting up of a family trust, the Adlerbert Family Trust.
Mishandling of funds from this trust during the period 1992 through 1996
was the subject matter of a prior professional conduct board complaint, PCB
File No. 96.30, in which the respondent stipulated to: loaning client's
funds without obtaining adequate security in violation of DR 6-101(A)(3);
loaning a client's funds to another client without adequate disclosure in
violation of DR 5-105(C); loaning client funds to a corporation for which
he served on the board without adequate disclosure in violation of DR
5-101(A); and failing to repay client funds in violation of DR 9-102.
15. Lorle Adlerbert inquired on many occasions as to the status
of her trust money during the above referenced period. By letter dated
July 1, 1993, the respondent informed Mrs. Adlerbert that he had received
interest on the loan in the amount of $1338.95, was holding the money in a
First Vermont Bank account and that the monthly loan payments would be
placed directly into the account from then on. See Exh 10.
16. Contrary to that representation, the respondent had received
no interest towards the loans and paid the interest out of his own funds in
the amount of $1338.95.
17. By the above misrepresentation to Lorle Adlerbert, the
respondent covered the fact that the client was not receiving periodic
payments on a loan, as he represented. Rather, the respondent was paying
the funds himself, which made it appear that the loan repayment was timely
and that the client's funds were secure.
HAMMONDSVILLE ENVIRONMENTAL FORESTRY ASSOCIATES:
18. The respondent represented Thomas P. Harrington with regard
to the logging of land in Reading by Mr. Harrington's company,
Hammondsville Environmental Forestry Associates, Inc. ("HEFA") The
respondent represented Mr. Harrington at the closing and arranged for the
purchase of the wood lot in the name of HEFA.
19. At the time of the transaction, the respondent was also a
registered agent for HEFA and a director and incorporator of HEFA.
20. In the summer of 1993, the respondent arranged a loan to Mr.
Harrington of approximately $35,000 to purchase the wood lot in Reading.
The loan was to be repaid from the logging proceeds.
21. The Adlerbert Trust provided $20,000 of the $35,000 loan.
Lorle Adlerbert was another client of the respondent. See further
discussion of Lorle Adlerbert and the Adlerbert Trust above). Lorle
Adlerbert was not informed about, nor did she consent to, use of the trust
money for this purpose. The respondent also did not secure the loan until
August 3, 1994.
22. The respondent was entitled to a "finders fee" in the amount
of $5500. See Exh. 8. He alleges that this was money for work done in
connection with another corporation owned by Thomas Harrington, but that he
told Mr. Harrington that he could call it a finder's fee to justify the
money coming out of the Hammondsville account. Exhibit 8, which refers to
this sum of money as "finders fee and legal fees" was created by the
respondent, except possibly for the last column of the document.
23. The respondent collected three monthly $2,500 interest
payments on the loan to Mr. Harrington. However, he misinformed Lorle
Adlerbert that the monthly payments received on her money were
substantially less than $2,500.
24. A dispute arose in late 1993 concerning the Reading land.
When the dispute could not be resolved, the neighbor of the Reading Wood
lot brought a lawsuit against HEFA. Moore v. Hammondsville Environmental
Forestry Association, Inc. Windsor Superior Court, Docket No.
5220-94-WrC. On September 27, 1995, the respondent executed a stipulation
between the plaintiffs, Helen and Pamela Moore, and the defendant, HEFA,
which made a debt to the plaintiffs superior to the loan from Lorle
Adlerbert. See Exh. 9 at para 2. The respondent did not consult or inform
Lorle Adlerbert before signing the stipulation.
25. The respondent compromised Lorle Adlerbert's security without
her knowledge or consent. In doing so, the respondent benefitted another
client in which he had personal financial involvement.
26. The respondent also represented Mr. Harrington during this
period in a Chapter 7 bankruptcy proceeding. The respondent did not list
the Reading Wood lot as an asset, which he should have done. Mr.
Harrington was successfully discharged in the summer of 1994.
BIFF MITHOEFER:
27. The respondent represented Biff Mithoefer in a fee collection
matter brought by Mr. Mithoefer's former attorney, Brian Dempsey. The
respondent failed to meet numerous deadlines in the case, including
Requests to Admit and two Supreme Court deadlines for filing the brief.
This resulted in a trial court decision for Mr. Dempsey and dismissal of
the appeal. The respondent then settled the matter with Mr. Dempsey and,
on or about June 22, 1994, the respondent paid this debt from his client
trust account in the amount of $2,750. There was no prior payment into the
client trust account by Mr. Mithoefer to pay this debt. See Exh. 11.
DAVID MITCHELL:
28. The respondent represented David Mitchell regarding a
commercial real estate transaction. On or about November 22, 1994, Mr.
Mitchell paid a retainer to the respondent in the amount of $5,038.95. The
respondent deposited this money in his Vermont National Bank personal and
general accounts.
29. On four separate occasions, three of them prior to the date
that the respondent received the retainer check, the respondent paid
himself fees for this case and deposited the checks into his Vermont
National Bank account. The payments for his fees were made out of the
respondent's client trust account, despite there being no David Mitchell
funds in the client trust account.
30. The net effect of these transactions, during the period June
20, 1994 through December 6, 1994, was a depletion of the client trust
account by $4,500, and an increase in the respondent's personal and general
accounts by $9,538.95. See exh. 11 & 12.
THOMAS MELENDY:
31. The respondent represented Thomas Melendy in the defense of a
collection action brought by a financial institution. Attorney Illerdon
Mayer represented the financial institution. In an effort to resolve the
dispute, Mr. Melendy paid $125 each month toward the debt, and sent this
sum to the respondent, sometimes in cash. The respondent did not forward
all of the money to Attorney Mayer and did not set the money aside. On or
about July 1, 1994, the respondent paid the remaining sum due on the debt
($2,250) out of his client trust account. Since the respondent had already
spent the money he had received from Mr. Melendy, the respondent used other
people's money from the client trust account to pay the debt balance.
LARRY AND LILA CARRARA:
32. The respondent represented Larry and Lila Carrara in a
lawsuit. The matter settled and the respondent received a check from the
carrier in the amount of $23,750 on or about October 14, 1994.
33. The respondent placed the settlement check which was made
payable to the Carraras and the respondent into his Chittenden Bank client
trust account.
34. The respondent did not pay the Carraras their portion of the
settlement ($13,876) until March 29, 1995, despite their repeated inquiries
about the money. During the period October 1994 through March 1995, the
respondent's client trust account balance was near zero.
35. In order to pay the Carraras their share of the settlement,
the respondent withdrew $15,000 from the Pazda Estate and paid it into his
client trust account. He did this the same day he paid the Carraras their
money.
36. Prior to paying the Carraras their share of the settlement,
and immediately after receipt of the settlement check, the respondent paid
himself for fees related to the Carrara matter. See Exhs. 13 and 14.
37. Immediately following payment to the Carraras of their money
in March 1995, the respondent received their approval to return the money
to the respondent. He told them that he intended to loan the money to a
client who had meals and room taxes he could not pay. However, the
respondent knew that these representations were false. Instead the
respondent used the money to pay the portion of another client's debt for
which the respondent had become responsible to Lavalley Building Supply in
the amount of $13,858.86. See Exh. 15.
MIRACLE SNACK BAR:
38. The respondent represented Josiah Lupton, the owner of
Miracle Snack Bar. Mr. Lupton was rebuilding the snack bar which had
burned down. The respondent guaranteed a portion of Mr. Lupton's bill with
Lavalley Building Supply. As a result, when Lavalley sued for payment, the
respondent became a judgment debtor and was obligated for a portion of the
judgment.
39. On March 29, 1995, the respondent received a message from Mr.
Lupton's attorney, Illerdon Mayer, stating that if the respondent did not
appear the next day for a deposition with his client, he might report an
ethical violation. See Exh. 17. Also during this period, the respondent
was deeply involved in his third professional conduct investigation and on
notice that guaranteeing a client's debt was a code violation.
40. The respondent then used the reloaned money from the Carraras
to pay the respondent's share of the Lupton debt.
41. By doing so, the respondent assured that his liability was
satisfied, but only partially satisfied the client's liability.
THE ESTATE OF BENJAMIN PAZDA:
42. The respondent was appointed by the District of Windsor
Probate Court as Administrator of the Estate of Benjamin Pazda, and served
as administrator from January, 1994 until November, 1995. The decedent's
daughter, Lisa Polston, was the sole beneficiary of the estate. The total
estate was valued at approximately $80,000 in January 1994 when it first
began.
43. Despite numerous requests from Ms. Polston for money since
she had significant bills to pay, the respondent failed to pay her money
from the estate. Instead the respondent used the estate money to loan
money to other clients, which he did without the permission or knowledge of
Ms. Polston. By June of 1995, when the respondent learned he was under
investigation by the federal government, the estate account balance was
less than $7,000. See exh. 19.
44. When asked by the Honorable Sarah Vail, the probate judge
handling the estate, about the management of the money in the estate, the
respondent said that the money was invested in certificates of deposit and
money market accounts. That was not true. The respondent did not tell the
judge that the funds had been loaned to other clients, which was an
unethical conflict of interest.
45. In doing so, the respondent distracted the judge from her
concern about the management of the estate and delayed her further inquiry
into his conduct. However, on or about November 1995, the Court replaced
the respondent with another attorney, Patrick Ankuda, and in January 1996,
Hon. Sarah Vail filed a complaint with the Professional Conduct Board.
46. The respondent also lied to attorney Patrick Ankuda. The
respondent had told Mr. Ankuda that the sum of $38,327.50 which had been
forwarded to Mr. Ankuda represented the proceeds of a Vermont National Bank
account and that the sum of $52,534.88 which had been forwarded to Mr.
Ankuda had represented a series of loans or notes to third parties made by
the Estate. Mr. Ankuda requested statements to track the interest payments
for these funds. However, the respondent had borrowed money from other
people to make these payments to Mr. Ankuda so he had to estimate the
interest and pay it himself. See Exh. 18.
47. The respondent failed to meet the Court's reporting
requirements as administrator. He used the estate funds other than to pay
creditors or beneficiaries in violation of his fiduciary duties as
administrator, and in doing so depleted the funds.
48. In order to pay back the Pazda Estate, the respondent
borrowed money from other clients and depleted his client trust account.
See Exh. 20. For example he used money from Gary Thomas, Doug and Nancy
Reed, Jean Bewley and Mary Louise and Ronald Thorburn. Meanwhile, in March
1996, he misinformed Jean Bewley that he was holding this client's money
when he had already spent it. Similarly, he lied to Marie Louise and
Ronald Thorburn. In December, 1995, the respondent told these clients that
he needed $20,000 for renovations on their Inn in Hartland, Vermont. He
told them that because Attorney Kevin Dailey not available and the money
was needed right away. In fact, attorney Daly was available and the
respondent already had sufficient money for renovations. The respondent
needed the money for his own purposes.
NYLINE TURGEON:
49a The client represented Nyline Turgeon in a civil matter. The
matter was settled and a check in the amount of $1,750 was paid by the
claims service to the respondent and Ms. Turgeon. The respondent placed
the money into his Vermont National Bank personal account.
50a The respondent then made a check payable to Ms. Turgeon in
the amount of $1,500 from his Chittenden Bank client trust account. The
net result of this series of transactions was that the client trust account
lost $1,500 while the respondent's personal account gained $1,750,
approximately $1500 more than the respondent collected for his fee in this
matter. See exh. 22.
NANCY KELLEHER:
51a The respondent represented Nancy Kelleher (now Kimball)
concerning a vehicular collision. The matter was resolved and a
settlement check in the amount of $4,550 was sent by the carrier on or
about February 9, 1995, made payable to Ms. Kelleher and the respondent.
The respondent placed this check into his Vermont National Bank personal
account.
52a Prior to this, on or about December 14, 1995, the respondent
deposited a check into his personal account in the amount of $1,000 made
payable to him for fees in this case. The check was written on his
Chittenden Bank client trust account.
53a On or about February 11, 1995, the respondent forwarded a
check to Ms. Kelleher for the sum of $2,650 and on March 29, 1995 he
forwarded the sum of $941 to James McGlinn, DC, an expert in the Kelleher
matter. Both checks were written from the client trust account.
54a The net effect of these transactions was a net gain of $5,550
in the personal account and a net loss of $4,591 in the client trust
account. See exh. 23.
DIRECT PERSONAL USE OF CLIENT TRUST ACCOUNT:
55a On or about February 2, 1995, the respondent made a payment
for his newspaper, the Black River Tribune, to the Internal Revenue Service
out of his client trust account.
CLIENT INJURY:
56. Bar Counsel cannot refute the respondent's contention that,
with respect to the above instances, all clients have been made whole.
DATED at Cavendish, Vermont, this 24th day of June 1999.
/s/
_________________________________
William A. Hunter, Esq.
Respondent
DATED at Middlebury, Vermont, this 24th day of June 1999.
/s/
_________________________________
Peter F. Langrock, Esq.
Attorney for the respondent
DATED at Burlington, Vermont, this 24th day of June 1999.
/s/
_________________________________
William M Dorsch
Bar Counsel
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