Last summer, I posted this overview of the Vermont Professional Responsibility Program. Lately, more than a few folks have asked how the Court and the PRP’s hearing panels determine the sanction to impose in any particular case. Here’s how the entire hearing process works.
1. Disciplinary Counsel Initiates Formal Proceedings
As most of you know, I screen all complaints. If the conduct at issue “appears to constitute misconduct that may require disciplinary sanctions,” I refer the complaint to disciplinary counsel for a formal investigation.
Upon concluding an investigation, the rules authorize disciplinary counsel to do one of three things:
- dismiss the complaint;
- initiate a formal disciplinary or disability proceeding ; or,
- refer the complaint to the non-disciplinary dispute resolution program.
Formal disciplinary proceedings can be initiated in two ways.
One way is for disciplinary counsel to file a “petition of misconduct.” A petition of misconduct is the PRP’s version of a charging document. By rule, disciplinary counsel cannot file a petition of misconduct without first requesting a hearing panel of the Professional Responsibility Board to review her decision to do so for probable cause.
If a petition is filed, the rules allow the respondent 20 days from service to file an answer. Then, the parties have 60 days to take depositions and respond to reasonable requests for production of non-privileged documents and evidence. Other discovery methods are prohibited.
The other way to initiate formal disciplinary proceedings is for disciplinary counsel and the respondent to file a “stipulation of facts.” Then, the parties can either join to recommend conclusions of law & a sanction, or, they can make their own recommendations on each.
There are some other wrinkles in the process, but this is the basic way in which formal disciplinary proceedings are initiated. Which brings us to the next step: the panel’s decision.
2. The Hearing Panel Makes a Decision
Once formal proceedings are initiated, the case is assigned to a “hearing panel.” A hearing panel is the PRP’s equivalent of a trial court. There are 9 standing panels throughout Vermont. By rule, each must consist of 2 lawyers and 1 non-lawyer.
If formal proceedings are initiated by petition of misconduct, the hearing panel schedules a hearing. Disciplinary counsel must prove a violation by “clear and convincing” evidence. Upon request, the panel may bifurcate the hearing: one on whether the respondent violated the rules, a second (if necessary) on sanction.
If formal proceedings are initiated by stipulation, the hearing panel is not required to hold a hearing. However, it’s usually only in cases where the parties join to recommend a particular sanction, and the panel agrees, that a panel will issue a decision without holding a hearing.
In any case, no matter how initiated, a hearing panel’s first task is to determine whether disciplinary counsel’s evidence or the stipulated facts clearly and convincingly establish a violation of the Rules of Professional Conduct. In the trade, this is known as making “findings of fact and conclusions of law.” If a panel concludes that the facts clearly and convincing establish a violation of the rules, the panel must impose a sanction.
3. The Hearing Panel Imposes a Sanction.
I’m not going to provide cites or rehash opinions. For the purpose of this post, here’s what the Supreme Court has said about the sanction in an attorney discipline case. The purpose:
- is to protect the public from harm;
- is to maintain public confidence in the bar;
- is NOT to punish the lawyer.
By rule, a hearing panel has 4 options. They are:
- Admonition: (does not identify the lawyer or impact the lawyer’s privilege to practice)
- Reprimand: (identifies the lawyer, but doesn’t impact the lawyer’s privilege to practice)
- Suspension: (identifies the lawyer and suspends the lawyer’s privilege to practice)
- Disbarment: (identifies the lawyer and suspends the lawyer’s privilege to practice)
So, how does a panel choose? I’m glad you asked.
Many years ago, the ABA’s Center for Professional Responsibility published Standards for Imposing Lawyer Sanctions. The Vermont Supreme Court has indicated that the ABA Standards guide the sanction determination.
Initially, the ABA Standards require an analysis of 3 factors:
- the duty violated;
- the attorney’s mental state; and,
- the actual or potential injury caused by the misconduct.
This analysis results in a “presumptive sanction.”
For example, let’s imagine a lawyer violates the duty of candor to a client. Here’s what the ABA Standards say, with the mental state in red and the injury in purple.
- “Disbarment is generally appropriate when a lawyer knowingly deceives a client with the intent to benefit the lawyer or another, and causes serious injury or potentially serious injury to a client.”
- “Suspension is generally appropriate when a lawyer knowingly deceives a client, and causes injury or potential injury to the client.”
- “Reprimand is generally appropriate when a lawyer negligently fails to provide a client with accurate or complete information, and causes injury or potential injury to the client.”
- “Admonition is generally appropriate when a lawyer engages in an isolated instance of negligence in failing to provide a client with accurate or complete information, and causes little or no actual injury to the client.”
So, if a lawyer violates the duty of candor to a client, does so knowingly, and causes injury or potential injury, the presumptive sanction is a suspension.
Once a panel arrives at presumptive sanction, the panel weighs any aggravating and mitigating factors.
Aggravating factors include things like:
- prior disciplinary violations;
- a dishonest or selfish motive; and,
- substantial experience in the practice of law.
Mitigating factors include things like:
- no prior violations;
- a timely & good faith effort to rectify the consequences of the misconduct; and
- inexperience in the practice of law.
The aggravating & mitigating factors can lead a panel to increase or decrease the severity of the presumptive sanction. It’s similar to the sentencing process in federal criminal cases: there can be upward & downward departures.
Finally, the hearing panels often conduct what is known as a “proportionality analysis.” That is, the sanction is compared to sanctions imposed in previous cases, usually those involving similar misconduct.
In the end, a sanction issues.
4. There is an Appeal or the Supreme Court Orders Review.
Whenever a hearing panel issues a decision, both disciplinary counsel and the respondent have 30 days to appeal to the Vermont Supreme Court. Even if neither appeals, the Court may order review on its own motion. The normal appellate rules apply.
The Court upholds a hearing panel’s findings of fact unless they are “clearly erroneous.” A panel’s conclusions of law are upheld if “clearly & reasonably supported by the evidence.” When it comes to sanction, however, while the Court affords deference to a panel’s decision, the Court makes its own determination as to the ultimate sanction.
5. Oh yeah, a few other things.
There are two types of suspensions: short & long.
A “short” suspension is one that is fewer than 6 months. By rule, short suspensions end of their own volition and the lawyer may immediately resume practice.
A “long” suspension is one that is that is at least 6 months. By rule, a long suspension cannot be longer than 3 years. A lawyer suspended for 6 months or longer must petition for reinstatement. At a reinstatement hearing, the lawyer bears the burden of proving such things as rehabilitation and that reinstatement would not be a danger to the public. The lawyer may not resume practicing until the reinstatement petition is granted.
Finally, like most other jurisdictions, Vermont does not have “permanent disbarment.” By rule, disbarment is for 5 years. After 5 years, a disbarred attorney may petition for reinstatement.
So, there you have it. The hearing process, including the sanction determination, in a nutshell.
May this be the only time that you need to know any of this.
For more detail, please visit Supreme Court Administrative Order 9: Permanent Rules Governing Establishment and Operation of the Professional Responsibility Program.