Ohio lawyer alleged to have engaged in sexual misconduct with court staff and clients allowed to resign prior to a public disciplinary hearing. How would a similar situation play out in Vermont?

It’s been a while since I’ve blogged.  I hope your summer is going well.

Today’s goal is to outline a little-known aspect of Vermont’s disciplinary program.   Perhaps I’m wrong to describe it as “little known.”  To test my assumption that it is, I’ll use this scenario:

1. Disciplinary complaint is filed against Attorney.
2. Screening Counsel reviews the complaint and refers it to Disciplinary Counsel for investigation.
3. Screening Counsel’s referral directs Attorney to provide Disciplinary Counsel with a written response to the complaint within 21 days.
4. Attorney sends Disciplinary Counsel a letter in which Attorney does not respond to the allegations in the complaint. Rather, Attorney writes “I hereby resign my Vermont law license and waive my right to reactivate it.  This ends this matter.  It’s moot. I no longer have a license for you to sanction.”

Does Attorney’s argument hold water?

No.  Attorney is as wrong as was the defense in My Cousin Vinny.

Before I get to Vermont’s rule, why am I even blogging about a lawyer’s attempt to resign while under disciplinary investigation?  Because, as reported by The Legal Profession Blog and Bloomberg Law, the Ohio Supreme Court recently accepted the resignation of an attorney who, according to a complaint filed by Ohio Disciplinary Counsel, had engaged “in inappropriate comments and conduct with female court staff and clients.”   The complaint can be accessed here.  As noted on the Legal Profession Blog, ‘[t]he lengthy charges make for painful reading.”

The disciplinary complaint did not result in a hearing.  Rather, last week, the Ohio Supreme Court granted the attorney’s application for “resignation with disciplinary action pending.”  The opinion is here.

One justice dissented, focusing on the fact that under Ohio’s rules, when the Court approves a request to resign while under disciplinary investigation, most of the details remain confidential.  As such, the proceedings:

• “are generally enshrouded in a cloud of secrecy that keeps the public, the bench, and the practicing bar ignorant of the reasons for the request to resign with discipline pending. This is problematic, especially when the allegations against an attorney describe a disturbing pattern of predatory behavior toward a vulnerable population.” (internal citation omitted.)

The dissenting justice acknowledged that the result left the attorney ineligible to practice law.  However, the justice added:

• “But I do not think that this court should favor a process that is quick over a process that is designed to obtain truth and dispense justice that more effectively protects the public. The disciplinary proceedings governed by this court may provide the victims, the public, and [the attorney] with much-needed transparency about the entire situation. While the alleged victims would bear the heavy burden of testifying before a hearing panel, I believe that they should at least have the opportunity to have their voices heard by the public and by this court. The public should know what this court and the numerous volunteers and employees participating in this court’s disciplinary process are doing to keep the public safe from attorneys who are alleged to have violated the Rules of Professional Conduct in perturbing manners. And at least in the disciplinary process, this court has the opportunity to provide help to the attorney should an addiction or other issue be the root cause of the problem. By accepting [the attorney’s] resignation, the court simply washes its hands of the problem without providing any real resolution.”

In Vermont, Supreme Court Administrative Order 9 establishes the Professional Responsibility Program and sets out the rules that govern the disciplinary process.  Rule 23 of A.O. 9 is entitled “Resignation by Attorneys Under Disciplinary Investigation.”  The rule allows an attorney under investigation to resign by affidavit.

Among other things, the affidavit must acknowledge “that the material facts upon which the complaint is predicated are true” and that “the attorney knows that if charges were predicated upon the misconduct under investigation the attorney could not successfully defend against them.”  Rule 23 also allows Disciplinary Counsel to file a statement of facts that supports a finding that the attorney violated the Rules of Professional Conduct. If accepted, the Court enters “an order disbarring the attorney on consent.”

Rule 23(D) is most relevant to today’s post.

• “(D). Disclosure. The order disbarring the attorney on consent as well as the affidavit and statement of facts shall be a matter of public record.”

So, returning to the scenario I posed at the beginning of this post, Attorney would not be able to avoid investigation and public scrutiny by writing to Disciplinary Counsel “I resign and that’s that.”

Unless you’re disciplinary counsel investigating an attorney who attempts to resign, or on the Supreme Court or the Professional Responsibility Board and tasked to review an affidavit by resignation, may this post never be one to which you need to refer for guidance.