Vermont’s Professional Responsiblity Program

Back to basics today.

The Professional Responsibility Program remains somewhat mysterious to many Vermont lawyers. In a sense, the fact that most attorneys lack first-hand experience with the Program is a good thing.  Nevertheless, since the PRP is funded by attorney licensing fees, it’s good for lawyers to know what the PRP does and the resources that it makes available.

Here’s an overview.

The Vermont Constitution vests the Supreme Court with exclusive “disciplinary authority concerning all judicial officers and attorneys at law in th State.”  Vt. Const., Ch. II, §30.  In its exercise of that authority, the Court has promulgated and adopted (1) Permanent Rules Governing Establishment and Operation of the Professional Responsibility Program; and, (2) Vermont Rules of Professional Conduct.  The former is more commonly known as “A.O. 9,” while the latter are the ethics rules.

A.O. 9 delegates responsibility for, and supervision of, the PRP to the Professional Responsibility Board.  The Board consists of 7 members.  By rule, 3 must be lawyers, 3 must be non-lawyers, and 1 must be a judge. The current members:

• Jan Eastman, Esq., Chair
• Michael Hanley, Esq., Vice-Chair
• The Honorable Brian Burgess, Associate Justice (ret.)
• Christopher Chapman
• Carolyn Anderson, Esq.
• Lisa Ventriss
• Kevin O’Donnell

The Board meets between 4 and 5 times per year.  The Board does not direct investigations or prosecutions. It plays no role in the adjudication of disciplinary cases.  Each year, the Board issues an Annual Report.  The most recent is HERE.

A.O. 9 creates two positions to administer the PRP’s daily operations: Bar Counsel and Disciplinary Counsel.  I have been bar counsel since 2012.  I was disciplinary counsel from 2000 thru June of 2012.   Now, Sarah Katz is disciplinary counsel.  She started in April 2017. Our offices are in the Costello Courthouse in Burlington.  We have separate and independent roles within the Program.  Rules 3 and 9 of A.O. 9 defines those roles.

Bar Counsel

My responsibilities include:

1. responding to ethics inquiries;
2. providing education & outreach on legal ethics;
3. administering the non-disciplinary dispute resolution program; and
4. screening ethics complaints filed against attorneys

An ethics inquiry is when someone contacts me for guidance related to the Rules of Professional Conduct.  The key word is “guidance.”  I do not provide legal advice or formal advisory ethics opinions.  Rather, I share my views on the issue, and try to direct the person to the proper rule, decision, or opinion in order to frame the analysis so that the person can make his or her own decision.  Inquiries are confidential and I do not share the fact of the inquiry or its content with anyone, including disciplinary counsel.

Last fiscal year, I received 1106 inquiries.  999 came from attorneys, judges, law students, or law professors. The rest came from non-attorneys.  The topic most often raised in the inquiry process is conflicts of interest.  Additional detail on the inquiries I received will be available in the annual report that the Board will publish this fall.

Education & outreach are self-evident.  Among other things,  I frequently appear at continuing legal education seminars and I use this blog as a form of outreach.

I will discuss the non-disciplinary dispute resolution program later in this post.

Screening complaints.  By rule, bar counsel screens ethics complaint.  A.O. 9, Rule 10. The screening process involves a limited investigation in which I determine whether a complaint (1) should be dismissed; (2) can be resolved without referral to disciplinary counsel; or (3) should be referred to disciplinary counsel for an investigation.

If I dismiss a complaint at screening, the complainant has 30 days to file an appeal with the Chair of the Board.  The Chair either upholds my decision or refers the complaint for an investigation by disciplinary counsel.

Once a complaint is referred for an investigation, my involvement ends.  The respondent has 21 days to file a written response.  Exception: trust account overdrafts. Years ago, the Board decided trust account overdrafts go straight to disciplinary counsel and that a lawyer will have 5 days to respond.

Disciplinary Counsel

As disciplinary counsel, Sarah Katz investigates and litigates all disciplinary and disability matters. Sarah does not have a full-time investigator, but, in certain cases, the Board authorizes her to contract with an investigator.

Once Sarah receives an attorney’s response to a complaint, she investigates.  Upon concluding an investigation, Sarah has 3 options:

1. dismiss the complaint;
2. recommend formal disciplinary or disability charges; or,
3. refer the complaint to the non-disciplinary dispute resolution program.

If Sarah dismisses a complaint, there is no appeal.  By contrast, she cannot unilaterally file formal disciplinary charges against a lawyer.  Rather, if Sarah decides to file formal charges, the rules require her to requesting a hearing panel to review her decision for probable cause.  The request is in the form of an affidavit outlining her investigation and a memorandum arguing why the respondent violated the rules  It is an ex parte process. If probable cause is found, Sarah must file formal charges against the lawyer.

There are 9 standing hearing panels.  By rule, each consists of 2 lawyers and 1 non-lawyer.  Member of the Board are not allowed to sit on hearing panels.

Once charges are filed, the respondent has 20 days to answer, followed by 60 days in which disciplinary counsel and the respondent can conduct discovery. At a hearing, disciplinary counsel must prove a violation of the Rules of Professional Conduct by clear and convincing evidence.

Not every case begins with formal charges filed by disciplinary counsel.  The rules authorize disciplinary counsel and a respondent to file stipulated facts with a hearing panel.  If a case is presented by stipulated facts, the parties can join to recommend a particular sanction, or, can present argument as to sanction.

Hearing panels are not required to accept stipulated facts.  The rules authorize a panel to reject stipulated facts and return a case to disciplinary counsel.  Similarly, if a panel accepts stipulated facts, the rules do not require the panel to accept a joint recommendation as to sanction.  Rather, a panel is free to impose its own sanction.

No matter how a case is presented, a hearing panel must issue a written decision.  If a panel concludes that the evidence or the stipulated facts clearly and convincingly establish a violation of the rules, the panel must impose a sanction.  The potential sanctions:

• 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)

Once a panel issues a decision, 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.  If no appeal is taken and the Court does not order review, a hearing panel decision becomes final and has the full force & effect of a decision of the Supreme Court.  Disciplinary decisions can be found here.

Vermont does not have permanent disbarment.  In Vermont, disbarment is for 5 years.  A disciplinary suspension must be for at least 1 day, but cannot be longer than 3 years.  If a lawyer is suspended for less than 6 months, the lawyer may return to practice when the suspension expires. A lawyer who is disbarred or suspended for 6 months or longer, must petition for reinstatement.

A reinstatement case is one in which the lawyer bears the burden of proving that the lawyer should be allowed to return to practice. Reinstatement cases are heard by hearing panels, with the decision subject to the same appellate process as in a disciplinary prosecution.

Finally, disciplinary counsel has options other than a disciplinary prosecution.  Among them, petitions for interim suspensions and petitions for transfers to disability inactive status.  Those are bit too far into the weeds for this post.

Non-Disciplinary Dispute Resolution

The rules authorize bar & disciplinary counsel to refer complaints to an “assistance panel” or any other dispute resolution program.  The PRP has both informal and formal dispute resolution.

Informal dispute resolution is bar counsel resolving the dispute.  Typically this involves me asking a lawyer to do something simple like call a client or return a client’s file.

Formal dispute resolution is resolution by an “assistance panel.”  By rule, an assistance panel must include 3 people.  Each panel must include at least 1 lawyer, at least 1 non-lawyer, and at least 1 member of the Professional Responsiblity Board.  The program has approximately 30 volunteers who have agreed to serve as assistance panel members.

The AP process is set out in Rule 4 of A.O. 9.  In short, assistance panels work to provide a forum for the non-disciplinary resolution of ethics complaints.  The process is confidential and the resolution cannot and does not result in a sanction being imposed against the lawyer’s license.

While we do not receive many fee complaints, the rules authorize us to refer fee complaints to the VBA’s Committee for the Abitration of Fee Disputes.   In my view, the Vermont Lawyers Assistance Program is a “dispute resolution program” and I have referred matters to the LAPVT. Complaints against judges are referred to the Judicial Conduct Board.

Other

That’s the program in a nutshell.

As I mentioned, I became bar counsel in June 2012.  Prior to June 2012, I was full-time disciplinary counsel and I had a full-time deputy.  The bar counsel position was half-time.

In 2012, recognizing the value in allocating resources to the prevention of misconduct, as opposed to the response to misconduct, the Board and the Court made bar counsel a full-time position and reduced the deputy disciplinary counsel position to part-time.  The position of deputy disciplinary counsel has since been eliminated.

From May 2014 to May 2017, and due to a staff vacancy, I was responsible for administering the daily operations of the Board of Bar Examiners, the Character & Fitness Committee, and the Continuing Legal Education Board.  That included administering the bar exam and the constant flow of applications for admission without examination.  In May 2017, the Court hired Andy Strauss as full-time Licensing Attorney.

With Andy on board, I’ve returned to focusing solely on my duties as defined in Rules 3 and 9 of A.O. 9 .  My goal is to move the program further towards a proactive system of regulation.  Soon, I will post on proactive attorney regulation.  For now, please visit this FAQ issued by the National Organization of Bar Counsel for more on the topic.