In re Keitel
Annotate this Case
In re Keitel (2000-290); 172 Vt. 537; 772 A.2d 507
[Filed 02-Mar-2001]
ENTRY ORDER
SUPREME COURT DOCKET NO. 00-290
JANUARY TERM, 2001
In re Sheldon Keitel, Esq. } Original Jurisdiction
}
}
} Professional Responsibility Board
}
}
} DOCKET NO. 1999-121
In the above-entitled cause, the Clerk will enter:
This case concerns a hearing panel decision of the Professional
Responsibility Board ("the Board") imposing a public reprimand on
respondent Sheldon Keitel, after finding that he had violated the Code of
Professional Responsibility for inappropriate comments made in written
correspondence to the Washington Family Court and to the Board. Pursuant
to Rule 11E of Administrative Order 9, this Court, on its own motion,
ordered a review of the hearing panel's decision and invited the parties
to file briefs. The Office of Disciplinary Counsel urges this Court to
find that: (1) lawyers on inactive status remain subject to the ethics
rules; (2) respondent violated DR 7-102(A)(1) and DR 7-106(C)(6) of the
Code of Professional Responsibility; and (3) a public reprimand is
appropriate. Respondent asserts that neither the Court nor the Board of
Professional Responsibility retain jurisdiction over attorneys on inactive
status because it effectively infringes upon his First Amendment right to
freedom of association.
While we agree that this Court and the Board retain jurisdiction over
attorneys on inactive status, we decline to adopt the hearing panel's
legal conclusion that respondent violated DR 7-102(A)(1) and DR
7-106(C)(6). (FN1) We further decline to adopt the hearing panel's
sanction, but in doing so determine that the conduct which gave rise to
the sanction may be considered in the event that respondent seeks to
reactivate the status of his license to practice law in Vermont. (FN2)
In October 1999, the Office of Disciplinary Counsel filed a formal
petition, charging respondent with violating DR 7-102(A)(1) and DR
7-106(C)(6) for comments made in a cover letter accompanying his notice of
intent to appeal a decision of the Washington Family Court to which he was
a party. Respondent's cover letter, addressed to the clerk of the court,
included an inappropriate
personal attack on the family court magistrate. Respondent was
representing himself pro se in divorce proceedings before the court, and
although an attorney admitted to practice law in Vermont, he was on
inactive status.
In March 2000, the Board convened a sanctions hearing. Respondent did
not appear, but delivered a letter to the hearing panel which included
additional inappropriate comments directed at the same magistrate. The
hearing panel reconvened in June, and issued its findings of fact,
conclusions of law and sanction. Respondent did not appeal, but filed an
open letter with this Court.
The Vermont Constitution states that the Supreme Court "shall have . . .
disciplinary authority concerning all judicial officers and attorneys at
law in the State." Vt. Const. ch. II, § 30. Pursuant to this authority,
the Court promulgated rules for attorney discipline, and created the
Professional Responsibility Board. See Administrative Order 9, Permanent
Rules Governing Establishment and Operation of the Professional
Responsibility Program. The Board holds jurisdiction over:
[a]ny lawyer admitted in the state, including any formerly
admitted lawyer with respect to acts committed prior to
resignation, suspension, disbarment, or transfer to inactive
status, or with respect to acts committed subsequent thereto
which amount to the practice of law or constitute a violation of
these rules or of the Code of Professional Responsibility or any
rules or code subsequently adopted by the Court in lieu thereof.
A.O. 9, Rule 5(A)(1). The rule unequivocally vests the Board with
jurisdiction over lawyers who violate the rules of ethics prior, and
subsequent, to their transfer to inactive status. See also In re Taylor,
PCB Decision No. 148, 12/20/99 (". . . whether Respondent is active or
inactive, he is still a member of the bar.")
The Office of Disciplinary Counsel contends that the record in this
case conclusively establishes that respondent acted in violation of DR
7-102(A)(1) and DR 7-106(C)(6) of the Code of Professional Responsibility
in his correspondence with the family court magistrate and the Board, and
that a public reprimand is the appropriate sanction for his actions.
This Court makes its own decisions as to attorney discipline,
according deference to the Board's findings. See In re Hunter, 167 Vt.
219, 227, 704 A.2d 1154, 1158 (1997). Generally speaking, "[t]he purpose
of sanctions is not punishment. Rather they are intended to protect the
public from persons unfit to serve as attorneys and to maintain public
confidence in the bar." In re Berk, 157 Vt. 524, 532, 602 A.2d 946, 950
(1991); but see also The Florida Bar v. Feinberg, 760 So. 2d 933, 939
(Fla. 2000) (attorney discipline serves several purposes, including
protecting public from unethical conduct, punishing violations of canons
of ethics, and deterring future misconduct); Lawyer Disciplinary Bd. v.
Veneri, 524 S.E.2d 900, 905-906 (W.Va. 1999) (in determining proper
sanction, court may consider what steps would appropriately punish
respondent attorney, as well as what would serve as effective deterrent).
We reject the hearing panel's recommended sanction. Although we do
not condone respondent's behavior, which exhibited a marked disrespect for
the court and the administration of justice, we note that he was
representing himself in a divorce case, has no prior disciplinary history,
and is not currently engaged in the practice of law. Accordingly, we
conclude that in this matter, the purposes underlying the imposition of
sanctions will be adequately served by full consideration of respondent's
conduct by the Character and Fitness Committee (FN3) at such time as he
seeks to reactivate the status of his license to practice law in Vermont.
See Berk, at 527-8, 602 A.2d at 948 ("This Court retains inherent power .
. . to dispose of individual cases of lawyer discipline.") (internal
quotations omitted); see also In re O'Dea, 159 Vt. 590, 606, 622 A.2d 507,
517 (1993) ("Our powers in fashioning an appropriate sanction are broad.")
We decline to adopt the hearing panel's legal conclusion that the
respondent violated DR 7-102(A)(1) and DR 7-106(C)(6). At such time
respondent seeks to resume active status as a practicing attorney, the
conduct which gave rise to the charges shall be considered by the Character
and Fitness Committee in determining whether respondent may resume active
status.
BY THE COURT:
_______________________________________
Jeffrey L. Amestoy, Chief Justice
_______________________________________
John A. Dooley, Associate Justice
_______________________________________
James L. Morse, Associate Justice
_______________________________________
Matthew I. Katz, Superior Judge
Specially Assigned
_______________________________________
Frederic W. Allen, Chief Justice (Ret.)
Specially Assigned
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Footnotes
FN1. DR 7-102(A)(1) prohibits a lawyer from taking any action "on behalf of
his client when he knows or when it is obvious that such action would
serve merely to harass or maliciously injure another." DR 7-106 (C)(6)
prohibits a lawyer "appearing in his professional capacity before a
tribunal" from engaging in "undignified or discourteous conduct which is
degrading to a tribunal."
FN2. In light of our disposition of this matter, we do not reach
respondent's constitutional claim.
FN3. See Rules of Admission to the Bar §11(a), (b) (requiring applicant to
possess "good moral character," and to "consent to an investigation by the
Character and Fitness Committee" in order to exclude "those persons
possessing character traits that are likely to result . . . in a violation
of the Code of Professional Responsibility").
-----------------------------------------------------------------------------
10 PRB
[5-Jul-2000]
PROFESSIONAL RESPONSIBILITY BOARD
In Re: Sheldon Keitel, Esq.
PCB File No. 1999.121
DECISION NO. 10
FINDINGS, CONCLUSIONS AND ORDER
On May 4, 2000, the above-captioned cause came before the undersigned
members of the Hearing Panel assigned in this cause. The May 4 hearing was
a continuation of a hearing originally scheduled for March 6, 2000 which
was commenced for the purpose of conducting a hearing on sanctions. At
that time, Attorney Michael Kennedy, Disciplinary Counsel for the
Professional Responsibility Board was in attendance. Mr. Sheldon Keitel
was not in attendance; however, Mr. Keitel did provide the Hearing Panel
with a letter dated March 6, 2000, hand-delivered at the time of the
hearing which will be referred to further in this order. At the hearing
held on May 4, 2000, Mr. Kennedy was again present on behalf of the
Professional Responsibility Board and Mr. Keitel was neither present nor
represented.
After consideration of the records and files in this cause, together
with the representations of Disciplinary Counsel, the Board hereby makes
the following Findings, Conclusions and Order:
I. Procedural History
On October 23, 1999, the Office of Disciplinary Counsel filed a
Petition of Misconduct charging the Respondent, Mr. Keitel with the
violation of D.R. 7-102(A)(1) and D.R. 7-106(C)(6) of the Code of
Professional Responsibility. Mr. Keitel did not answer those charges in
person or in writing. Therefore, on November 18, 1999, the Office of
Disciplinary Counsel moved to have the charges deemed admitted. This
motion was granted and the matter was set for a hearing on the issue of the
appropriate sanction to be imposed.
II. Findings
1. Sheldon Keitel was admitted to practice in the state of
Vermont on September 7, 1973.
2. On July 2, 1998, Mr. Keitel's license to practice was placed
on suspended status due to the failure to pay licensing fees.
3. In 1997, Mr. Keitel and his ex-wife were involved in a
divorce, a case which was filed and pending in the Washington Family Court
styled Keitel v. Keitel, Docket No. 368-9-97 Wndm.
4. The Respondent was not represented by legal counsel in his
divorce, but rather appeared pro se.
5. On March 9, 1999, an eight-page ruling was issued by the
Honorable Thomas J. Devine on pending motions in the divorce action. That
ruling was not favorable to the Respondent.
6. By correspondence dated March 11, 1999, the Respondent, Mr.
Keitel, notified the Clerk of the Washington Family Court that he wished to
take an appeal from the Magistrates decision. In his correspondence, Mr.
Keitel enclosed his Notice of Appeal form and further stated, "Please
assist Mr. Devine from removing his head from his ass before he tries to
operate any machinery."
7. On October 5, 1999, following a Complaint submitted through
the Office of Disciplinary Counsel, a hearing panel found probable cause to
believe that the respondent had violated D.R. 7-102(A)(1) and D.R.
7-106(C)(6) of the Code of Professional Responsibility.
8. On October 27, 1999, the Respondent signed a receipt
acknowledging receipt of the Petition for Misconduct which was filed
against him by the Office of Disciplinary Counsel on October 23, 1999.
9. The Respondent did not file a timely answer to the
allegations in the Petition; nor did the respondent request an extension of
time in which to file an answer.
10. On December 9, 1999, pursuant to A.O. No. 9 Rule 2(A), the
undersigned members were appointed to serve as the Hearing Panel of the
Professional Responsibility program in connection with the above-captioned
matter. Subsequently, Disciplinary Counsel Kennedy and the Respondent, Mr.
Keitel, were provided with notice that the Petition for Misconduct filed on
October 23, 1999 had been deemed "admitted" and further advised the parties
of the Hearing Panel assignment.
11. As previously stated, a hearing was scheduled before the
Hearing Panel on March 6, 2000 to consider the issue of sanctions. Mr.
Kennedy appeared for the Office of Disciplinary Counsel; however, Mr.
Keitel did not appear in person.
12. As the Hearing Panel was about to make findings and record
concerning the lack of appearance by Mr. Keitel, a signed letter dated
March 6, 2000 was hand-delivered to the Hearing Panel by the request of Mr.
Keitel. A copy of that correspondence is attached hereto, made a part
hereof and marked as Exhibit A.
13. In substance, the correspondence of Mr. Keitel questioned the
authority of the Hearing Panel to consider the Petition for Misconduct and,
with respect to the specific allegations relating to his comments
concerning the Magistrate, Mr. Keitel stated, "The particular Magistrate
who was the subject of the alleged misconduct in the instant proceeding
desperately needed to be made aware that he had his head in an anatomically
unlikely location. So far up it was starting to look like a hemorrhoid.
If he has re-thought his role in the lives of the people who appear before
him, I cannot regret for a moment that I said it. If not, it doesn't
matter, but I will not silence myself. This is the stuff revolutions are
made of. "Please publish this letter as my 'response' to your 'petition'.
I dare you."
14. Upon receiving and reviewing the correspondence of Mr.
Keitel, the Hearing Panel adjourned and continued its March 6th Hearing
until May 4, 2000.
15. At the hearing held on May 4, the Office of Disciplinary
Counsel was once again represented by Mr. Michael Kennedy. The Respondent,
Mr. Keitel, did not appear nor this time did he forward any written
communication to the Hearing Panel concerning any issue raised by the
Petition or his earlier correspondence.
CONCLUSIONS OF LAW AND SANCTIONS
1. Based upon the above-referenced findings, the Hearing Panel
concludes that the Respondent, Sheldon Keitel, violated Administrative
Order No. 9, Rule 11(D)(3) by failing to respond to the original petition.
As previously noted, the charges of misconduct are deemed admitted.
2. The Hearing Panel specifically concludes that Respondent is
subject to the jurisdiction of the Professional Responsibility Board based
upon Administrative Order 9, Rule 1 as well as the Vermont Constitution
which specifically provides that the Supreme Court "shall
have...disciplinary authority concerning all judicial officers and
attorneys in the state." Vt. Const., Ch. II, Section 30.
The fact that the Respondent is on inactive status inasmuch as he has
failed to pay the appropriate registration fees does not deprive the Board
or this Hearing Panel of the jurisdictional grant over attorneys admitted
in the state of Vermont. See, In re Taylor, P.C.B. File Nos. 98.05 &
99.200, at 4 (Dec. 20, 1999). In essence, regardless of whether Attorney
Keitel is active or inactive, as a member of the Bar, he is and continues
to be subject to the jurisdiction of the Professional Responsibility Board
and the decisions of this Hearing Panel.
3. In his correspondence, presented at the March 6th hearing,
Respondent Keitel raised various issues, including constitutional questions
concerning the jurisdiction of the Professional Responsibility Board and
the Hearing Panel. Those issues were not properly presented in the context
of the original Petition and, therefore, are not appropriate to be
considered or ruled upon by this Hearing Panel. Therefore, the Hearing
Panel makes no specific findings with respect to the substantive arguments
set forth therein. The Board does consider the remarks set forth in Mr.
Keitel's March 6 correspondence to the Hearing Panel, however, as relevant
and appropriate for consideration on the issue of sanctions and on the
issues of mitigation/aggravation.
4. It is the specific finding and conclusion of this Hearing
Panel that Attorney Keitel did not make his remarks concerning Magistrate
Devine in the "heat of battle" such as comments made by an attorney present
in a courtroom making vigorous arguments in person before a judicial
officer. The original letter of Mr. Keitel dated March 11, 1999 was
received and filed by the Washington County Family Court on March 12, 1999.
Thus, it is clear to the panel that Mr. Keitel clearly had the opportunity
to engage in careful reflection and consideration prior to authoring his
letter of appeal.
Moreover, the correspondence of March 6, 2000, hand-delivered to the
Hearing Panel "by courier", was clearly drafted months after the issuance
of the original Petition for Misconduct and, a fair reading of the
document, indicates clearly that much reflection and thought went into its
content prior to actual authorship. The Hearing Panel specifically
concludes that the correspondence of Mr. Keitel dated March 6, 2000
evidences a lack of any attempt to mitigate the original offense for which
he was cited and, in fact, constitutes an aggravating circumstance to be
appropriately considered by the panel.
Therefore, based upon the foregoing, it is the conclusion of this
panel that Sheldon Keitel be publicly reprimanded for the conduct set forth
above. Inasmuch as Mr. Keitel has not paid his registration fees and is
not actively engaged in the representation of actual clients, this Hearing
Panel believes that the sanction of a public reprimand is sufficient to
protect the public interest and the integrity of the legal profession in
the State of Vermont. At the same time, however, the Hearing Panel wishes
to make clear that based upon the aggravating circumstances, had Mr. Keitel
been an active member of the Bar, duly registered, and having paid the
licensing fees, serious concerns about his ability to represent clients
before the Courts of the State of Vermont would clearly exist and warrant
further investigation.
Dated this 30th day of June, 2000.
/s/
_______________________________
Robert F. O'Neill, Esq., Chair
/s/ July 3, 2000
_______________________________
Ruth Stokes, Esq.,
Hearing Panel Member
/s/ June 30, 2000
_______________________________
S. Stacy Chapman, III, Esq.,
Hearing Panel Member
FILED JULY 5, 2000
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