In re Andres
Annotate this Case
In re Andres (2002-428); 177 Vt. 511; 857 A.2d 803
2004 VT 71
[Filed 6-Aug-2004]
ENTRY ORDER
2004 VT 71
SUPREME COURT DOCKET NO. 2002-428
OCTOBER TERM, 2003
In re Robert Andres, Esq. } APPEALED FROM:
}
}
} Professional Responsibility Board
}
}
} DOCKET NO. 2002-110
In the above-entitled cause, the Clerk will enter:
¶ 1 Respondent, Robert Andres, Esq., appeals a Professional
Responsibility Board decision that he violated Rule 1.3 of the Vermont
Rules of Professional Conduct by failing to attend a pretrial hearing and
to respond to a motion for summary judgment. We adopt the Professional
Responsibility Board's ruling and suspend respondent for a period of two
months.
¶ 2 Respondent was assigned to represent Andres Torres in a
post-conviction relief (PCR) petition arising out of Torres's 1997 guilty
plea to a second offense of domestic assault. Torres was represented by
counsel other than respondent when he entered his guilty plea. The
information charging Torres with second offense domestic assault relied on
an alleged 1995 domestic assault conviction. That charge had, in fact,
been dismissed; there was no conviction. Torres therefore pled guilty to a
second offense of domestic assault even though he lacked a conviction for a
first offense.
¶ 3 On July 20, 2000, Torres filed a PCR petition pro se arguing
that his conviction for second offense domestic assault was unlawful
because he lacked the necessary prior domestic assault conviction.
Respondent was assigned to represent Torres in the PCR matter and, on
October 17, 2000, filed an amended PCR petition on Torres's behalf. He
then engaged in a reasonable investigation of Torres's case, including
speaking with Torres's prior counsel and listening to the taped Change of
Plea Hearing.
¶ 4 In June 2001, respondent received a Notice of Hearing
scheduling a pretrial conference in Torres's PCR matter. Respondent failed
to attend the pretrial conference. In July 2001, the State filed a motion
for summary judgment seeking to dismiss Torres's PCR petition. Respondent
failed to file a response to the State's motion, nor did he move the court
for permission to withdraw from representing Torres. In September 2001,
the court granted the State's motion for summary judgment dismissing
Torres's PCR petition with prejudice. Respondent notified Torres of the
dismissal in an undated letter. Torres obtained new court-appointed
counsel and appealed the summary judgment ruling to this Court.
¶ 5 After pleading guilty in 1997, Torres was sentenced by Judge
Jenkins. At some point during his engagement with Torres, respondent
became aware that Judge Jenkins was also presiding over his PCR petition.
In an undated letter, Torres informed respondent of this fact saying, "P.S.
I've just now realized that Judge Jenkins was the judge who sentenced me on
the charges that I am now serving time for, and the charge in question.
Can he preside over my P.C.R. without bias? I doubt it." Because
respondent had not attended the pretrial conference, he was never
confronted with Judge Jenkins's presence in the case. Respondent testified
that he knew 13 V.S.A. § 7131 prohibited the sentencing judge from hearing
a subsequent PCR petition in the same matter. At no time, however, did he
seek to have Torres's PCR petition reassigned.
¶ 6 When Torres appealed with new counsel to this Court, the
parties stipulated to vacating the summary judgment ruling and remanding
the case for consideration on the merits by a different judge. Torres's
new attorney then filed an opposition to the State's summary judgment
motion.
¶ 7 In October 2002, Torres filed a complaint against respondent
with the Professional Responsibility Program alleging misconduct in the
handling of his PCR petition. Respondent was charged with violating Rules
1.2(a) (failure to abide by a client's decision concerning the objectives
of representation), 1.3 (failure to act with reasonable diligence and
promptness), and 8.4(d) (engaging in conduct prejudicial to the
administration of justice). The alleged misconduct consisted primarily of
respondent's failure to attend a pretrial conference and to file a response
to the State's summary judgment motion.
¶ 8 The matter was heard by a Hearing Panel of the Professional
Responsibility Board. After reviewing the evidence, the Board found that
respondent violated Rule 1.3 when he neglected to attend the pretrial
conference and intentionally abandoned his client's case by failing to file
an opposition to the State's summary judgment motion. Charges based on
Rules 1.2(a) and 8.4(d) were dismissed. The Board recommended that he be
suspended from the practice of law for a period of two months. Respondent
appeals.
¶ 9 "On review, this Court must accept the Panel's findings of
fact unless they are clearly erroneous." In re Blais, 174 Vt. 628, 629,
817 A.2d 1266, 1269 (2002) (mem.); A.O. 9, Rule 11(E). We will uphold the
Board's findings - whether they are pure fact or mixed questions of law and
fact - if they are "clearly and reasonably supported by the evidence." In
re Berk, 157 Vt. 524, 527, 602 A.2d 946, 947 (1991) (internal citation
omitted).
¶ 10 Respondent does not dispute that he failed to attend the
pretrial conference or to file a response to the State's summary judgment
motion. Rather, he argues that he was justified in not responding to the
State's motion because his client's argument had no merit. He also insists
that, had he filed a response when there was no likelihood of success, he
would have violated V.R.C.P. 11.
¶ 11 The evidence is to the contrary, however. There are several
arguments respondent could have made to oppose summary judgment without
violating V.R.C.P. 11. First, he could have challenged the factual
inaccuracies of the information under which Torres was charged. Respondent
admitted knowing that his client pled guilty to a second offense domestic
assault charge under 13 V.S.A. § 1044(a)(2) absent a prior conviction, yet,
he never raised the issue before the court; presumably because he thought
it meritless.
¶ 12 Second, the State argued that 13 V.S.A. § 1044(a)(2) does
not require a prior conviction for domestic assault, but can be satisfied
by a prior offense. Respondent testified that he did not raise this issue
because he agreed with the State's reading of the statute. That is no
excuse. Respondent could and should have advocated for an alternative
interpretation of § 1044(a)(2) without running afoul of V.R.C.P. 11. Even
assuming his client had waived his right to challenge his conviction on
this ground, respondent had a duty to bring the matter before the
court.(FN1) As the Board pointed out, to respond effectively, respondent
need only show that credible issues existed for the court's consideration,
not that he would ultimately prevail on each question.
¶ 13 Finally, at a minimum, respondent should have asked the
court to reassign the case for consideration by another judge. Despite his
failure to attend the pretrial conference, respondent acknowledged that he
knew the PCR petition was being heard by the same judge who sentenced
Torres in violation of 13 V.S.A. § 7131. His only defense was that he did
not think it was a problem and that disputing it "might cause further
delay." There is no merit to this justification. Respondent had a duty to
diligently advocate for his client and his failure to do so violates Rule
1.3. No matter how foolish Torres's arguments might have seemed to him,
respondent was not entitled to intentionally abandon his client's case. We
hold that the Board's finding that respondent's conduct in this case
violates Rule 1.3 of the Rules of Professional Conduct was clearly and
reasonably supported by the evidence and we affirm.
¶ 14 When sanctioning attorney misconduct, we have adopted the
ABA Standards for Imposing Lawyer Discipline which requires us to weigh the
duty violated, the attorney's mental state, the actual or potential injury
caused by the misconduct, and the existence of aggravating or mitigating
factors. In re Warren, 167 Vt. 259, 261, 704 A.2d 789, 791 (1997).
Suspension is generally appropriate when a lawyer knowingly fails to serve
a client's interests causing real or potential injury or when a lawyer has
been reprimanded previously for the same or similar conduct. See ABA
Standard 3.0. Although they are not binding upon this Court, we give
deference to the Board's recommendation regarding sanctions. In re
Gadbois, 173 Vt. 59, 63, 786 A.2d 393, 396-97 (2001).
¶ 15 The Board recommended a two-month suspension based on
findings that respondent's conduct was intentional and that he has faced
three previous disciplinary actions, two of which involved a lack of
diligence. Respondent does not challenge the Board's suggested sanction.
We find the Board's recommendations regarding suspension clearly and
reasonably supported by the evidence and thus we will not disturb them.
Robert K. Andres is hereby suspended from the practice of law for a
period of two months. The suspension will commence thirty days from the
issuance of this order to allow Mr. Andres time to comply with A.O. 9, Rule
23.
BY THE COURT:
_______________________________________
Jeffrey L. Amestoy, Chief Justice
_______________________________________
John A. Dooley, Associate Justice
_______________________________________
Denise R. Johnson, Associate Justice
_______________________________________
Marilyn S. Skoglund, Associate Justice
-----------------------------------------------------------------------------
Footnotes
FN1. See our decision in In re Andres Torres, 2004 VT 66, ¶ 9-11, as
it relates to his client's appeal from the same criminal conviction
referenced here.
-----------------------------------------------------------------------------
41 PRB
[18-Sep-2002]
STATE OF VERMONT
PROFESSIONAL RESPONSIBILITY BOARD
Decision No: 41
In re: Robert Andres, Esq.
PRB File No 2002-110
Respondent is charged with failing to abide by a client's decision
concerning the objectives of representation in violation of Rule 1.2(a) of
the Vermont Rules of Professional Conduct, failure to act with reasonable
diligence and promptness in violation of Rule 1.3, and engaging in conduct
prejudicial to the administration of justice in violation of Rule 8.4(d),
arising principally out of his intentional failure to respond to a motion
for summary judgment in a criminal case.
This matter was heard on August 2, 2002 before Hearing Panel No. 1,
consisting of Douglas Richards, Esq., Lawrin Crispe, Esq. and Michael
Filipiak. Beth DeBernardi appeared as Disciplinary Counsel. Respondent
appeared pro se. Based upon the evidence, and in consideration of the
aggravating factors present, Respondent is suspended for a period of two
months for violation of Rule 1.3. The charges of violation of Rules 1.2(a)
and 8.4(d) are dismissed.
Facts
Respondent Robert Andres was admitted to practice law in the State of
Vermont in 1983 and is currently licensed to practice law in Vermont. The
charges of misconduct in this matter arise out of Respondent's
representation of Andres Torres in a petition for post conviction relief.
In August of 1996 Torres was charged with violation of 13 V.S.A. §
1044(a)(2), which provides that "A person commits the crime of second
degree aggravated domestic assault if the person commits a second or
subsequent offense of domestic assault which causes bodily injury." The
information charging Torres with second offense domestic assault cited a
previous conviction of domestic assault in 1995. Although Torres had been
arraigned on this charge, it was subsequently dismissed, and thus in fact
Torres had no prior conviction for domestic assault. In January of 1997,
while represented by counsel other than Respondent, Torres entered into a
plea agreement in Vermont District Court. He plead guilty to a second
offense of domestic assault, as well as burglary, petty larceny and
violation of conditions of release. At the same time three other charges
of second offense domestic assault were dismissed as well as a simple
assault and a retail theft. During the hearing on the change of plea
Torres testified under oath that he had in fact been previously convicted
of domestic assault.
On July 20, 2000, Torres filed a pro se Post Conviction Relief (PCR)
petition in Chittenden Superior Court arguing that his conviction of second
offense domestic assault was unlawf since it was not supported by a first
conviction for domestic assault. In filing this petition Torres was
concerned primarily with his classification by the corrections department
as having a high risk of violence. He had been required to attend the
violent offenders program, but failed to complete it and was thus denied
parole at his minimum release date.
Respondent was assigned to represent Torres in the PCR matter and on
October 17, 2000, Respondent filed an Amended Petition with the Chittenden
Superior Court on behalf of Torres. After filing the amended petition
Respondent undertook appropriate investigation in the PCR matter. He spoke
to Torres' original counsel and listened to the tape of the Change of Plea
Hearing.
On June 22, 2001, the Chittenden Superior Court issued a "Notice of
Hearing" scheduling the PCR matter for a Pre-Trial Conference on July 13,
2001, at 8:30 a.m. Respondent received a copy of the Notice of Hearing but
did not attend the Pre-Trial Conference. On July 12, 2001, the State
filed a Motion for Summary Judgment requesting dismissal of the PCR
petition. Respondent did not file a response to the state's motion nor did
he move the court for permission to withdraw from representing Torres in
the PCR matter. Respondent testified that he believed that Torres had no
defense to the state's motion, and that his failure to file a response was
intentional rather than negligent. On September 25, 2001, thuperior Court
granted the state's motion for summary judgment. By undated letter,
Respondent notified Torres that the Superior Court had dismissed his PCR
petition and on October 8, 2001, Torres filed a Notice of Appeal in the
Vermont Supreme Court. Torres was not represented by Respondent in the
appeal.
Torres had been sentenced by Judge Jenkins and at some point during
the time he was represented by Respondent, Torres became aware of the fact
that Judge Jenkins was also involved in his PCR matter. In an undated
letter wrote to Respondent "P.S. I've just realized that Judge Jenkins was
the judge who sentenced me on the charges that I am now serving time for,
and the charge in question. Can he preside over my P.C.R. without bias? I
doubt it."
Respondent testified that he was aware of the provision of 13 V.S.A.
Sec. 7131 which provides that the sentencing judge shall not hear any
application for post conviction relief. At no time did Respondent seek to
have the PCR assigned to another judge and since he did not attend the
pre-trial conference he was not confronted with Judge Jenkins presence in
the case.
In April of 2000 the Supreme Court remanded the PCR matter to the
Superior Court for consideration by a judge other than Judge Jenkins. As
of the writing of this opinion the matter remains pending.
Conclusions of Law
Rule 1.2(a) provides that [a] lawyer shall abide by a client's
decision concerning the objectives of represeation . . . and shall consult
with the client as to the means by which they are to be pursued . . ." It
is clear from the evidence and the exhibits that Torres was clear in his
objectives. He wanted the court to grant his motion for post conviction
relief and ultimately to vacate the conviction for a second offense of
domestic assault. Disciplinary Counsel argues that Respondent's failure to
respond to the motion for summary judgment meets the criteria of this rule;
that the failure to present arguments on Torres' behalf constitutes a
failure to abide by the client's objectives. We disagree. Torres's
objectives in this matter were similar to those of other civil or criminal
litigants. Like Torres they want to prevail.
The provisions of Rule 1.2 are narrower than this. They relate to the
division of authority between the attorney and the client as to how the
client's ultimate objectives will be achieved. "In criminal matters, the
lawyer must defer to the client's decision regarding the plea to be
entered, whether to waive a jury trial and whether to testify."(FN1) The
decision as to tactical matters such as witness selection and pretrial
practice is generally left to the attorney.(FN2) Respondent's decision not
to file a response to the state's Motion for Summary Judgment cannot be
termed a tactical decision. It was a complete abdication of his
responsibility to his client. Thus, while the panel believes that
Respondent's decision noteto file a response to the state's motion is far
more serious than an error of trial tactics, we do not believe that it
meets the standards for violation of Rule 1.2 (a) and that charge is hereby
dismissed.
Rule 8.4(d) provides that "It is professional misconduct for a lawyer
to . . . . engage in conduct that is prejudicial to the administration of
justice." Disciplinary Counsel argues that the adversarial system of
justice is built upon the premise that both sides will present their
positions to the court, and that the court will then make its decision
having heard the evidence and arguments of both parties. In general we
agree, but the real issue is whether Respondent's failure to respond to the
motion for summary judgment and failure to attend the pre-trial conference,
actions which are clearly addressed under Rule 1.3, also go beyond the
realm of individual representation and impact upon the legal system in
general. The Reporter's notes to Rule 8.4 seem to suggest that the rule is
concerned primarily with actions which reflect upon the attorney's fitness
to practice or upon the legal profession as a whole. The ABA/BNA Manual
states that "[t]his prohibition most often applies to conduct directly
related to litigation, such as the interference with judicial proceedings
or the abuse of process,"(FN3) or "conduct that "violates a lawyer's duty
to maintain the integrity of the legal profession."(FN4) In a recent
Kansas case, In re Farm ,(FN5) a lawyer was found to have violated the
provisions of Rule 8.4(d) for actions similar to those of Respondent.
Though in Farmer the failures were multiple and of long duration. The
lawyer had a habit of failure to attend hearings, to file pleadings and to
train his employees. These lapses were so great that they caused
disruption in the operation of the two bankruptcy courts in which he
practiced. The actions of the Respondent here, while similar, have clearly
impacted his client, but Disciplinary Counsel has failed to show that these
actions have impacted the court system in the same way that they did in the
Farmer case. It is at best speculative that respondent's lapses caused
additional work for the court system. The Supreme Court reversed the case
not on the merits but because the same judge was involved. We cannot say
for certain that had Respondent filed a response or appeared at the hearing
that he would have raised this issue.
Respondent's actions are not of the magnitude seen in the Farmer case
and we decline under these facts to extend what is basically a matter
between one attorney and his client to a violation of Rule 8.4(d) and that
charge is hereby dismissed.
Respondent's conduct falls squarely into Rule 1.3 which provides that
"[a] lawyer shall act with reasonable diligence and promptness in
representing a client." Generally speaking, cases falling under this rule
involve an attorney's negligence in attend ng to a client's affairs, such
as missing deadlines, failure to communicate with clients and failure to
conclude matters in a timely fashion. Respondent's conduct goes beyond
that. He intentionally failed to file a response to a motion that he knew
would be dispositive of the issues in the case. It is Respondent's
position that after investigation of the case, he determined that there
were no viable arguments which he could put forth for his client and that
he told his client of this fact before the deadline for filing a response.
He argues that to file a response when there was no likelihood of
prevailing would violate "VRCP Rule 11 and The Code of Professional
Responsibility DR 102(a)(2)and (5)(FN6) [which] prohibit attorneys from
filing frivolous claims or proceeding with a claim not supported in law or
fact." His argument is basically that as he reads the statute under which
Torres was convicted it does not require a subsequent conviction but a
subsequent offense and that by pleading to the offense Torres had waived
any factual defects to the elements of the offense.
Respondent is in effect acting as the judge in his client's matter by
deciding not to go forward. He has however, been practicing law long enough
to know that very often judges do not do what you expect them to do; that
often one party may prevail or lose on an issue that they had not deemed
important or had not anticipated. While not expressing an opinion on the
interpretation of the statute or on whether or not Respondent would have
prevailed, we are convinced that there were sufficient arguments that could
have been made which would have avoided any charges of frivolous activity
(FN7) and would have been in accord with the reporter's comments to Rule
1.3.
A lawyer should pursue a matter on behalf of a client despite
opposition, obstruction or personal inconvenience to the
lawyer, and may take whatever lawful and ethical measures are
required to vindicate a client's cause or endeavor. A lawyer
should act with commitment and dedication to the interest of
the client and with zeal in advocacy upon the client's
behalf.
A failure or a refusal to act on a client's behalf has a twofold
effect on the client. Not only is the client's case compromised by the
lawyer's inaction, but the client, while obviously not precluded from
acting on his own behalf, is not inclined to do so and thus is usually
prevented from acting promptly to preserve his or her own rights. In a
Pennsylvania case in which the lawyer and the client disagreed about how a
case was to be handled, the disciplinary authority held that
A lawyer who believes that a client is mistaken in his desire
to take a particular legal action is obligated to either
follow the clients instructions or withdraw from
representation. Rule 1.2 (FN8)
While this case arose under a different rule, we believe that the same
principle applies. Respondent had the duty to either zealously advance his
client's case or to withdraw so that his client could pursue other ways of
advancing his cause.
We find by clear and convincing evidence that Respondent violated Rule
1.3 by his failure to attend the pretrial hearing and his intentional
abandonment of his client's case by failing to respond to the motion for
summary judgment.
Sanctions
In determining the appropriate sanction in this matter we have applied
the ABA Standards for Imposing Lawyer Discipline which require us to look
at four factors: "(a) the duty violated; (b) the lawyer's mental state; (c)
the actual or potential injury caused by the lawyers misconduct; and (d)
the existence of mitigating or aggravating factors."(FN9) Section 4.42 of
the ABA Standards provides that
Suspension is generally appropriate when: (a) a lawyer
knowingly fails to perform services for a client and causes
injury or potential injury to a client, or (b) a lawyer
engages in a pattern of neglect and causes injury or
potential injury to a client.
In this case the Respondent's failure to act was intentional and thus
falls under the provisions of the first section. This is however not an
isolated case of Respondent's failure to meet the standards of Rule 1.3.
Three separate complaints against Respondent were considered in a prior
disciplinary action in which he received a public reprimand.(FN10) Two of
these cases involve lack of diligence. In one case Respo dent undertook
representation of a criminal client charged with driving while intoxicated.
As a result of Respondent's failure to act the client's appeal was
dismissed. In another case involving child support, Respondent failed to
keep his client informed and failed to attend a hearing. In both of these
cases the Respondent's failure to act was characterized as neglectful
rather than intentional, but they are in many ways similar to the facts in
the present case and show a pattern of lack of diligence. His mental state
is however different in this case. He has acted intentionally rather than
negligently.
This prior discipline is another factor leading the panel to consider
suspension as the appropriate discipline. ABA Standard 8.2 provides that
"[s]uspension is generally appropriate when a lawyer has been reprimanded
for the same or similar misconduct and engages in further acts of
misconduct that cause injury or potential injury to a client, the public,
the legal system, or the profession."
In determining whether a suspension is appropriate it is necessary to
determine whether or not there has been actual or potential harm to the
client. Respondent argues that there has been no harm to Torres; that
Torres would not have been released from jail sooner nor would there have
been any change in his programming while in custody.
Despite the fact that most of the facts were admitted, the panel would
have benefited from the testimony ohe complainant Andres Torres. Since
Respondent did not keep copies of correspondence leaving his office, nor
did he maintain telephone notes, it would have been helpful to hear Mr.
Torres version of events. This would have aided the panel in assessing the
degree of actual harm suffered by Torres. Despite this lack, we find that
there is clearly the potential for harm as well as the actual harm from the
stigma and curtailment of rights that follow from a second conviction for
domestic assault.
There are several factors in aggravation and mitigation which also
must be considered. In aggravation, Respondent has been practicing law for
19 years and presented himself to the panel as an experience criminal
practitioner. ABA Standards §9.22(i). He has prior discipline, ABA
Standards §9.22(a) and has refused to acknowledge the wrongful nature of
his conduct. ABA Standards §9.22(g). In addition Torres was a somewhat
vulnerable victim. Despite his obvious familiarity with the criminal
justice system, he was incarcerated throughout these proceedings and his
attorney was his only real link to the court system. ABA Standards
§9.22(h). In mitigation, we find that Respondent did not act with a
dishonest or selfish motive. ABA Standards §9.32(b).
In reaching its decision the panel is guided by two recent decisions
of the Professional Responsibility Board. In In re Wenk (FN11) the Board
imposed a six month suspension. Like the Respondent, enk had substantial
experience and prior discipline. Unlike Respondent he had a dishonest or
selfish motive, but did not have a vulnerable client. In the Wenk case
there was both financial and emotional injury to the client.
In In re Sunshine (FN12) the Board imposed a four month suspension
followed by probation. Sunshine had substantial experience but had never
been previously disciplined and the panel found no likelihood of further
similar violations. His clients, however, suffered serious harm.
Taking into account Respondent's intentional breach of his duty to his
client, his mental state, the potential if not actual injury to his client
and the aggravating and mitigating factors, the panel finds that a
suspension is the appropriate sanction in this matter.
Respondent is hereby SUSPENDED from the practice of law for a period
of two months commencing November 1, 2002.
Dated: 9/18/02
HEARING PANEL NO. 2
/s/
___________________________
Douglas Richards, Esq., Chair
/s/
___________________________
Lawrin P. Crispe, Esq.
/s/
____________________________
Michael H. Filipiak
----------------------------------------------------------------------------
Footnotes
FN1. §31.301, ABA/BNA Lawyers Manual on Professional Conduct, 2002
ABA BNA
FN2. Id., at §31.308.
FN3. Id. §101.501
FN4. Id.
FN5. 950 P2d 713 (Kan 1997).
FN6. The Panel finds it telling that Respondent is citing us to
disciplinary rules which have not been in effect for more than two years.
FN7. It is indeed a fact that Torres was convicted of second offense
domestic assault absent any prior conviction. It is also a fact that the
PCR was heard by the sentencing judge. To respond effectively to the
motion for summary judgment it was not necessary that Respondent show that
he would ultimately prevail only that issues existed for the court to
consider.
FN8. Op. 97-48(4/17/97) Committee on Legal Ethics and Professional
Responsibility of the Pennsylvania Bar Association, ABA/BNA Lawyers Manual
on Professional Conduct, Ethics Opinions 1996-2000.
FN9. ABA Standards §3.0, approved in In re Warren 167 Vt. 259
(1997).
FN10. PCB Decision No. 140, In Re: Robert Andres, Esq., PCB Docket
Nos. 95.66, 98.08 and 99.02.
FN11. Decision No. 14, In re: PCB File No. 96.50, Craig Wenk, Esq.
FN12. Decision No. 28, In re PRB File Nos. 2001.001 & 2001.075, David
Sunshine, Esq.
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