In re Gadbois

Annotate this Case

In re Gadbois (2000-026); 173 Vt. 59; 786 A.2d 393

[Filed 21-Sep-2001]

NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.

No. 2000-026

In re Richard Gadbois Supreme Court

Original Jurisdiction
from Professional Conduct Board

January Term, 2001

L. Brooke Dingledine of Valsangiacomo, Detora & McQuesten, P.C., Barre, for
Appellant.

Jessica G. Porter and Michael E. Kennedy, Disciplinary Counsel, Burlington, for
Appellee.

PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.

DOOLEY, J. Respondent, Richard Gadbois, Esq., appeals the
Professional Conduct Board's decision that he violated the Code of
Professional Responsibility: (FN1) DR 4-101(B)(3) (using a confidence or
secret of a client for the advantage of another); DR 5-105(A) (accepting
employment even though it would likely involve him in representing
differing interests); and DR 1-102(A)(7) (engaging in conduct adversely
reflecting upon fitness to practice law). Respondent argues on appeal
that the Board erred in finding he violated any disciplinary rule and
committed a number of procedural errors. We reach the merits and reverse.

Respondent represented Richard Rainville in his divorce from his first
wife in 1980 and 1981. Rainville's first wife accused him of verbally and
mentally abusing her during the marriage. During this representation,
Rainville discussed various aspects of his life with Respondent. In the
divorce proceedings the Franklin Superior Court found Rainville to be more
at fault for the marriage ending because of his temper and assaultive
behavior. Shortly after the completion of the divorce, respondent
represented Rainville in connection with a property tax abatement. In the
years since the representation was completed, respondent has had only
limited contact with Rainville: in connection with a will respondent
drafted for Rainville's father, and in connection with Rainville's purchase
of property from an estate for which respondent was the administrator.

In 1994, Rainville's second wife filed for divorce citing verbal and
mental abuse, using respondent to represent her. Rainville was shocked
that respondent appeared as his wife's lawyer because he believed
respondent "knew him 'from all ends.'" In response, Rainville asked his
lawyer to request that respondent withdraw, which the lawyer did by
letter. When respondent refused to withdraw, Rainville's lawyer moved to
disqualify him alleging that respondent gained confidential information
from the former representation of Rainville "which information is now
likely to be detrimental to defendant in the instant case." The court
denied the motion, indicating that ethical complaints should go to the
Professional Conduct Board (the Board).

Rainville then changed counsel, and on June 2, 1995, his new lawyer
filed a complaint with the Board. The lawyer also renewed the motion to
disqualify respondent, relying on an affidavit from Rainville which stated
that he gave respondent confidential information about "many aspects of my
background, my marriage and my personal life" and "about me and my former
wife's family life, life styles, habits, personalities and characters."
Rainville indicated that he feared that

respondent would use against him some of the information. Concluding that
Rainville had demonstrated an "appearance of conflict, and thus the
appearance of impropriety," after first denying the motion to disqualify
respondent again, pending submission of supporting authority, the court
granted the motion, and respondent withdrew.

A hearing panel for the Board then went forward on the complaint.
Recognizing that "the Code of Professional Responsibility does not have a
specific provision outlining the circumstances under which an attorney may
accept representation which is adverse to a former client," the panel
analyzed the facts under the American Bar Association, Model Rules of
Professional Conduct Rule 1.9, which were not then in effect in Vermont,
and under this Court's decision in State v. Crepeault, 167 Vt. 209, 704 A.2d 778 (1997). It concluded that respondent violated DRs 1-102(A)(7), 4-
101(B)(3), and 5-105(A) of the Code of Professional Responsibility by
representing "Mrs. Rainville in her divorce from Mr. Rainville, even
though he had represented Mr. Rainville in his first divorce."

The majority of the Board accepted the panel's findings and
conclusions, adding:

The facts show that during the representation of the second
wife, respondent endeavored to use his knowledge and prior
representation of husband against him. For instance, he told
husband's new counsel that respondent's "participation would
positively affect the dynamics of the case" and that husband would
be more likely to settle if he were working with a "known cast of
characters."

In response to respondent's renewed argument that representing a new client
against a former client does not violate the Code of Professional
Responsibility, the Board stated:

case based on former Canons of Professional Ethics). The Code of
Professional Responsibility, as interpreted by several courts
throughout the country, implicitly carried forward that
prohibition. See ABA/BNA Lawyers' Manual on Professional
Conduct, 51:205-218. The Rules of Professional Conduct, adopted
in Vermont this past September 1, made that prohibition explicit.
Rule 1.9, Vermont Rules of Professional Conduct.

Based on its findings and conclusions, the Board recommended that we
publicly reprimand respondent and require him to reimburse his former
client the attorneys' fees he incurred in attempting to disqualify
respondent from representing his wife. Four members of the Board
dissented from the finding that respondent violated DR 4-101(B)(3), but
concurred in the proposed sanction based on the violation of DR
1-102(A)(7).

Respondent appeals, raising a number of procedural issues and arguing
that the facts do not support the violation of any disciplinary rule. We
begin with consideration of the merits.

The Vermont constitution gives this Court "disciplinary authority
concerning all judicial officers and attorneys at law in the State." Vt.
Const. ch. II, § 30. In assisting the Court with judicial conduct
proceedings, the Board collects facts and advises the Court of its
findings. See In re Hill, 152 Vt. 548, 555, 568 A.2d 361, 365 (1989).
Although the Board's recommendations are shown "deference," their
recommendations are not binding on this Court, and we have the final
decision concerning discipline. In re Berk, 157 Vt. 524, 528, 602 A.2d 946, 948 (1991); see also In re Harrington, 134 Vt. 549, 552, 367 A.2d 161, 163 (1976).

We stress that this case deals with standards of professional
regulation that are no longer in force. By adopting the American Bar
Association, Model Rules of Professional Conduct, with appropriate
amendments, we have as of the September 1, 1999 specifically stated the
ethical rules

applicable when a lawyer "side switches," that is, represents a present
client against a former client. Rule 1.9(a) provides:

Rule 1.9. Conflict of Interest: Former Client

(a) A lawyer who has formerly represented a client in a
matter shall not thereafter represent another person in the same
or a substantially related matter in which that person's
interests are materially adverse to the interests of the former
client unless the former client consents after consultation.

Even before the adoption of the model rules, we have applied its standard
to disqualification motions. See Stowell v. Bennett, 169 Vt. 630, 632,
739 A.2d 1210, 1212 (1999); Crepeault, 167 Vt. at 216, 704 A.2d at 783.
Rule 1.9(a) states what has been termed a prophylactic rule that is
intentionally broad to ensure that a lawyer does not use confidential
information acquired from a former client against that client and to avoid
even an appearance of impropriety. See C. Wolfram, Modern Legal Ethics §
7.4.2, at 364. Especially in disqualification situations, the former
client should not be put in the position of disclosing the confidential
information in order to protect it. Id. at 360; Crepeault, 167 Vt. at
216-17, 704 A.2d at 783.

We agree with the Board that respondent's conduct would violate Rule
1.9(a) if it governed this case. We also agree with the family court's
disqualification decision. The difficulty with this case is that the
prophylactic rule now stated in Rule of Professional Conduct 1.9(a) was not
contained in its predecessor, the Code of Professional Responsibility,
which was in effect when respondent entered his appearance in the divorce
case against his former client. The Board hearing panel acknowledged this
difficulty. Nevertheless, it found a violation of two specific
disciplinary rules, DR's 4-101(B)(3) and 5-105(A), and a general
disciplinary rule, DR 1-102(A)(7), apparently

on the view that the combination of these disciplinary rules created a
prohibition on respondent's conduct.

We cannot reach this conclusion from the specific disciplinary rules
relied upon by the hearing panel and the Board. The first is DR
4-101(B)(3), which required that a lawyer not knowingly "[u]se a
confidence or secret of his client for the advantage of himself, or of a
third person." "'Confidence' refers to information protected by the
attorney-client privilege under applicable law, and 'secret' refers to
other information gained in the professional relationship . . . the
disclosure of which would be embarrassing or would be likely detrimental to
the client." DR 4-101(A).

As the minority of the Board held, there is no evidence that
respondent knowingly used confidential information acquired from his
former client for the advantage of his new client. The evidence before
the Board related to Rainville's fear that respondent still held
confidential information and might use it against him, not that he had
used it. The majority of the Board tried to fill this gap in the hearing
panel's decision with its reference to respondent's expressed position that
his presence as a "known" character would help settle the divorce case. We
do not believe that reference can be fairly read as a threat to misuse
confidential information against Rainville, especially since respondent
continuously stated that he had no information from the former
representation of Rainville that remained relevant thirteen years later.
To the extent that the Board grounded its finding of a violation on this
reference, we must conclude that the finding of a violation is not clearly
and reasonably supported by the evidence. See In re Bucknam, 160 Vt. 355,
362, 628 A.2d 932, 936 (1993).

The Board also found that respondent violated DR 5-105(A). DR
5-105(A) forbids an attorney from accepting employment "if the exercise of
his independent professional judgment in behalf of a client will be or is
likely to be adversely affected by the acceptance of the proffered
employment, or if it would be likely to involve him in representing
differing interests." DR 5-105(A). "Differing interests" are defined as
those "that will adversely affect either the judgment or the loyalty of a
lawyer to a client, whether it be a conflicting, inconsistent, diverse or
other interest." Code of Prof'l Responsibility, Definitions (1).

This disciplinary rule states the classic formulation of the
prohibition of accepting a client who has a conflict of interest with a
present client. By its terms, it requires the presence of two clients or
potential clients. It does not apply where the conflict is with a former
client who is no longer a client of the lawyer. See Adoption of Erica,
686 N.E.2d 967, 971 (Mass. 1997) (decided under identical provision of
Massachusetts Code of Professional Responsibility).

Numerous commentators have discussed the omission of a former client
conflict rule from the Code of Professional Responsibility. See C.
Wolfram, Modern Legal Ethics § 7.4.2, at 363; C. Wolfram, Former Client
Conflicts, 10 Geo. J. Legal Ethics 677, 678 (1997); Morgan, Conflicts of
Interests and the Former Client in the Model Rules of Professional Conduct,
1980 A.B.F. Res. J. 993, 995. Indeed, the repair of that omission is one
of the reasons why the American Bar Association adopted the Model Rules of
Professional Conduct as a replacement for the Code. The absence of a
former client conflict rule has not deterred courts from adopting broad
prophylactic disqualification rules to prevent the misuse of confidential
information and the appearance of impropriety. See generally Comment,
Developments in the Law of Conflicts of Interest in the Legal Profession,
94 Harv. L. Rev. 1244, 1131-33 (1981). In creating such rules, the courts
can protect

the administration of justice irrespective of the narrow drafting of the
lawyer disciplinary rules. Thus, in fashioning a disqualification rule,
it was natural for us to look to the ethical considerations that
accompanied the Code of Professional Responsibility, new statements of
ethical responsibilities contained in such documents as the Model Rules
and The Restatement (Third) of the Law Governing Lawyers (1998) and the
appearance of impropriety. See Code of Prof'l Responsibility, Canon 9 (A
Lawyer Should Avoid Even the Appearance of Professional Impropriety). The
Board engaged in this kind of analysis in this case.

But in determining whether to discipline a lawyer under the Code of
Professional Responsibility, we must find the lawyer committed
"misconduct," which is defined in DR 1-102(A) as violation of a
disciplinary rule or other specified misconduct. See A.O. 9, Permanent
Rules Governing Establishment and Operation of the Professional
Responsibility Program, Rule 7(A); cf. In re Powell, 533 N.E.2d 831, 836
(Ill. 1989) (Canon 9 statement that a lawyer should avoid even an
appearance of impropriety is not a disciplinary rule and cannot be used as
independent grounds for discipline); Wolfram, supra, 10 Geo. J. Legal
Ethics at 686 n.35. For the reasons stated above, we can not find breach
of a disciplinary rule. We must, then, find another source of "misconduct"
as specified in the Code. The Board found such source was DR 1-102(A)(7),
a catchall provision that defines misconduct as follows:

DR 1-102. Misconduct.

(A) A lawyer shall not:

. . .

(7) Engage in any other conduct that adversely reflects on
the lawyer's fitness to practice law.

Code of Prof'l Responsibility DR 1-102(A)(7).

Although citations to this section appear in a number of Board
decisions approved by this Court, usually as an alternative source of a
finding of misconduct, see, e.g., In re Wysolmerski, 167 Vt. 562, 562, 702 A.2d 73, 74 (1997) (mem.) (attorney violated DR 1-102(A)(7) when he lied to
clients about status of cases, failed to make filings, and failed to
forward settlement offers to clients), we have had occasion to consider
its scope in only a few contested proceedings. In In re Rosenfeld, 157
Vt. 537, 544, 601 A.2d 972, 976 (1991), we upheld a Board conclusion that a
lawyer violated DR 1-102(A)(7), along with two other disciplinary rules,
by counseling a client to violate a court order. In In re Berk, 157 Vt.
at 530-31, 602 A.2d at 950-51 (1991), we upheld the Board's conclusion
that a lawyer violated DR 1-102(A)(7) when he purchased cocaine for his own
use and to distribute to friends and an associate in his firm. In
reaching the latter decision we noted that attorneys have "a duty to the
profession and the administration of justice especially to uphold the laws
of the state in which he practices." Id. at 531, 602 A.2d at 949. We
found that the lawyer's actions "reflect negatively on his professional
judgment and detract from public confidence in the legal profession" and
were "even more reprehensible because he encouraged and facilitated his
associate's participation in the criminal act." Id.

In In re Illuzzi, 160 Vt. 474, 482, 632 A.2d 346, 350 (1993), we
upheld the application of DR 1-102(A)(7) to a case in which a plaintiff's
personal injury lawyer had disparaged opposing insurance defense counsel
through a number of unauthorized direct communications with the insurance
carrier. This holding dovetailed with a finding that the lawyer had also
violated a specific disciplinary rule prohibiting direct, unauthorized
contact with a represented client. As discussed

below, Illuzzi is also significant because we upheld DR 1-102(A)(7) against
a challenge that it was void for vagueness. Id. at 480-82, 632 A.2d at
349-50.

Finally, in In re McCarty, 162 Vt. 535, 542, 649 A.2d 764, 768 (1994),
we reversed a Board finding that a lawyer had violated DR 1-102(A)(7) when
he neglected a client's legal matter and acted in an undignified manner to
the client in a telephone conversation. We held that neglect of a
client's legal matter is covered by a specific rule, DR 6-101(A)(3), and
therefore should not be sanctioned under DR 1-102(A)(7), and that the
lawyer's rudeness to the client "does not rise to the level as to
adversely reflect upon his fitness to practice law." Id.

As indicated above, we upheld DR 1-102(A)(7) against a challenge that
it is void for vagueness. We acknowledged that the "generality of the
phrase" in the rule "does make the rule susceptible to varying subjective
interpretations." Illuzzi, 160 Vt. at 481, 632 A.2d at 349-50.
Nevertheless, we upheld the rule because of the "impossibility of
enumerating every act that might constitute a violation of professional
standards" and because "'the everyday realities of the profession and its
overall code of conduct provide definition for this type of phrase and thus
give adequate notice of which behavior constitutes proscribed conduct.'"
Id. (quoting ABA/BNA Lawyer's Manual on Professional Conduct 101:1001
(1987)); see also Ex Parte Secombe, 60 U.S. 9, 14 (1856) ("it is
difficult, if not impossible, to enumerate and define, with legal
precision, every offense for which an attorney or counsellor ought to be
removed").

Although broad standards are not unconstitutional in the context of
lawyer disciplinary proceedings, we must be careful to adequately define a
threshold to give lawyers some warning of what kind of conduct can give
rise to sanctions. As reflected in McCarty, "[u]nnecessary breadth is to
be regretted in professional rules that can be used to deprive a person of
his or her means of

livelihood through sanctions that are universally regarded as
stigmatizing." C. Wolfram, Modern Legal Ethics § 3.3.1, at 87 (1986); see
also Restatement (Third) of the Law Governing Lawyers § 5 cmt. c.
(1998) (the breadth of provisions like DR 1-102(A)(7) "creates the risk
that a charge using only such language would fail to give fair warning of
the nature of the charges to the lawyer respondent . . . and that
subjective or idiosyncratic considerations could influence a hearing panel
or reviewing court in resolving a charge based only on it"). We find
appropriate statements in the decisions of the highest courts of other
states. For example, the New York Court of Appeals has held that the
standard "must be whether a reasonable attorney, familiar with the Code and
its ethical strictures, would have notice of what conduct is prescribed."
In re Holtzman, 577 N.E.2d 30, 33 (N.Y. 1991). The Massachusetts and New
Jersey Courts have held that violation of a general rule is shown only by
"conduct flagrantly violative of accepted professional norms." In re
Discipline of Two Attorneys, 660 N.E.2d 1093, 1099 (Mass. 1996); Matter of
Hinds, 449 A.2d 483, 498 (N.J. 1982). We believe that the Massachusetts
and New Jersey standard captures the essence of the line we attempted to
draw in McCarty and explains our application of DR 1-102(A)(7) in the cases
in which we have employed it.

We cannot, consistent with that standard, conclude that respondent
violated DR 1-102(A)(7) here. The Code of Professional Responsibility
purported to fully regulate lawyer conflicts of interest and did not
prohibit side-switching as reflected in this case. As the Comment to the
Restatement states: "a specific lawyer code provision that states the
elements of an offense should not, in effect, be extended beyond its
stated terms through supplemental application of a general provision to
conduct that is similar to but falls outside the explicitly stated ground
for a violation." Restatement (Third) of the Law Governing Lawyers at §
5, cmt. c. We would be doing exactly what the

Restatement comment advises against if we disciplined respondent for
side-switching under DR 1-102(A)(7).

We are also mindful that there was an alternative remedy in this case,
and that remedy worked. We believe that both Rainville and respondent
were entitled to rely on that remedy. Vermont Rule of Professional
Conduct 8.4 is the general rule defining misconduct, similar in purpose to
DR 1-102(A) of the Code of Professional Responsibility. The comment to
that rule notes: "A lawyer may refuse to comply with an obligation imposed
by law upon a good faith belief that no valid obligation exists." At the
time the issue arose in the family court, this Court had not determined
the law applicable to motions to disqualify counsel because of
side-switching. Respondent resisted the motion to disqualify in apparent
good faith and then complied once the court made a definitive ruling
disqualifying him. We are concerned that under the Board's rationale a
lawyer who loses a contested motion to disqualify will be automatically
subject to discipline irrespective of whether the applicable law is clear.

We cannot find that respondent flagrantly violated accepted
professional norms such that his conduct adversely reflects on his fitness
to practice law. Accordingly, we reverse the Board's finding that
respondent violated DR 1-102(A)(7), as well as the other disciplinary rules
as discussed above. Because of our disposition, we do not reach the
procedural issues raised by respondent.

Reversed.

FOR THE COURT:

_______________________________________
Associate Justice

------------------------------------------------------------------------------
Footnotes

FN1. The references are to the Code of Professional Responsibility
rather than the Rules of Professional Conduct because the conduct at issue
predates our adoption of the Rules of Professional Conduct.

-----------------------------------------------------------------------------
146.PCB

[17-Jan-2000]

STATE OF VERMONT
PROFESSIONAL CONDUCT BOARD

In re: Richard A. Gadbois, Esq., Respondent
Docket No. 96.64

FINAL REPORT

Decision No. 146

We received the hearing panels's report and recommendations in this
matter on July 7, 1999. Respondent filed a brief in response on September
27, 1999. Pursuant to Administrative Order No. 9, Rule 8D, we heard
argument in this case on October 1, 1999. Present were Bar Counsel,
Jessica G. Porter, Esq., Respondent, and his counsel, L. Brooke Dingledine,
Esq. and Oreste Valsangiacomo, Jr., Esq.

Upon consideration of the hearing panel report, the arguments of
counsel and briefs, we adopt the findings of fact as our own and
incorporate those findings herein by reference. Briefly, those facts show
that Respondent represented Husband in a 1981 divorce action. Among the
issues in the case were allegations of physical, verbal and mental abuse by
Husband of his wife. During Respondent's representation of Husband,
Husband told Respondent everything about his life. Respondent had other,
minor connections with Husband after the divorce.

In 1994, some twelve years after this divorce, Husband's second wife
wanted a divorce from Husband. She asked Respondent to represent her.
Among the issues in this divorce would be allegations of abuse.

After weighing the ethical issues in his own mind, Respondent agreed
to represent her. Husband was shocked by what he apparently perceived as a
switch of allegiance. Respondent declined Husband's new counsel's requests
to withdraw. Respondent paid counsel to litigate this issue before the
Family Court several times before that court finally disqualified
Respondent in November of 1995.

The facts show that during the representation of the second wife,
Respondent endeavored to use his knowledge and prior representation of
Husband against him. For instance, he told Husband's new counsel that
Respondent's "participation would positively affect the dynamics of the
case" and that Husband would be more likely to settle if he were working
with a "known cast of characters."

The hearing panel concluded that Respondent's conduct violated three
disciplinary rules: DR 1-102(A)(7)(engaging in conduct adversely
reflecting upon fitness to practice law); DR 4-101(B)(3)(using a confidence
or secret of a client for the advantage of another); and DR
5-105(A)(accepting employment even though it would be likely to involve him
in representing differing interests). We adopt these conclusions of law as
our own for the reasons stated in the hearing panel's report.

Respondent argues that the disciplinary rules do not apply here. He
suggests that subsequent representation of an opposing party, 12 years
after the original representation, in a matter where the issue of the
original client's proclivity for abusive behavior does not fall within the
black letter prohibitions contained in these disciplinary rules. We
disagree.

Representation of subsequent, conflicting interests in divorce cases
violates the lawyer's duty of loyalty and confidentiality to the original
client. It has been prohibited in Vermont for some time. See, e.g., In re
Themelis, 117 VT. 19, 83 A.2d 507 (1951)(lawyer disbarred for representing
subsequent conflicting interests in divorce cases based upon the former
Canons of Professional Ethics). The Code of Professional Responsibility,
as interpreted by several courts throughout the country, implicitly carried
forward that prohibition. See ABA/BNA Lawyers' Manual on Professional
Conduct, 51: 205-218. The Rules of Professional Conduct, adopted in
Vermont this past September 1, made that prohibition explicit. Rule 1.9,
Vermont Rules of Professional Conduct.

We also adopt the hearing panel's recommendation that Respondent be
publicly reprimanded. This is not minor misconduct nor is it a case
without significant aggravating factors. See Hearing Panel Report at 11.
We would also add the recommendation that Respondent reimburse his former
client the approximately $1,300 that his former client spent trying to stop
Respondent from representing an adverse party.

Dated at Montpelier, Vermont this 3rd day of December, 1999.

PROFESSIONAL CONDUCT BOARD

Signed by

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

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

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

___________________________ ____________________________
Mark L. Sperry, Esq. Joan Wing, Esq.

/s/
___________________________
Jane Woodruff, Esq.

--------------------------------------------------------------------------

Dissent

We do concur in the violation of DR 1-102(A)(7). However, we do not
think that the facts as found add up to a violation of DR 4-101(B)(3).

Succinctly put, respondent's actions did adversely affect on his
fitness to practice law. However, we do not think that he did use a
confidence or secret of his client for his own advantage or the advantage
of a friend or third person. Of course, he could have used potential
information, which puts him in the prohibition of DR 1-102(A)(7). Because
there was no proof that he used the potential confidences in fact, the
second purported violation, DR 4-101(B)(3) was not proven. Therefore, our
dissent after an original concurrence on the first violation as stated,
supra.

Dated at Montpelier, Vermont this 17th day of January,
2000.

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

/s/ /s/
___________________________ ____________________________
Michael Filipiak Alan S. Rome, Esq.

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