Disciplinary Hearings & Sanctions: The Process.

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:

  1. dismiss the complaint;
  2. initiate a formal disciplinary or disability proceeding ; or,
  3. 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:

  1. the duty violated;
  2. the attorney’s mental state; and,
  3. 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;
  • remorse;
  • 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.

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Conflicts: In some cases, appearances matter.

Last week, the Vermont Supreme Court issued an opinion in which it addressed this question:

  • “whether a court may terminate parents’ parental rights following a hearing in which, over an objection, the State was represented by the same lawyer who had previously represented the children in the same matter.”

Short answer: no.  The opinion is here.

The Court’s opinion relies on an analysis of Rule 1.9 of the Vermont Rules of Professional Conduct.  As such, I think it’s a natural for this blog. That being said, as was the Court, I want to be crystal clear: I am not suggesting that the State’s lawyer should face a disciplinary sanction.

By way of background, of the inquiries I receive, no topic comes up more often than conflicts of interest.  I rarely, if ever, say “yes, you have a conflict” or “no, you don’t.” Rather, I cite lawyers to the relevant rules, comments, and opinions, then leave the decision to the lawyer.

Similarly, if a lawyer asks whether opposing counsel has a conflict, I never provide a definitive answer.  It’s impossible to do so without hearing from opposing counsel. Again, I cite the lawyer to the relevant rules, comments, and opinions. I also offer to discuss the matter with opposing counsel.

That being said, when talking about conflicts, it’s not uncommon for me to say two things:

  1. the rules prohibit actual conflicts, not the appearance of a conflict; and,
  2. even if you decide you don’t have a conflict, do you want to deal with the appearance? The other side will almost certainly file a motion to disqualify or a disciplinary complaint.  Either can be costly and aggravating.

Which gets me to the Court’s recent opinion: at least in TPR cases, appearances matter.

I don’t want to bore you or make this blog too long.  Plus, the Court writes better than I do anyway.  So, I suggest reading the opinion.

Still, here’s a synopsis:

  • throughout a CHINS proceeding, Lawyer represented 4 children;
  • then, Lawyer represented the State in the subsequent TPR;
  • a guardian ad litem consented to Lawyer representing the State;
  • citing Rule 1.9, Mother’s attorney notified the trial court of concerns about Lawyer’s appearance for the State;
  • Lawyer argued that there was no conflict due to the State & children both taking the position that termination was warranted and, further, that the guardian had waived any conflict;
  • the trial court had “no concern” given that the State and children had the same interest (termination) and that the guardian had consented to Lawyer appearing for the State;
  • parents’ rights were terminated with respect to 3 of the children; and,
  • parents appealed.

When a lawyer has formerly represented a client in a matter, Rule 1.9 prohibts the lawyer from representing anyone in the same or a substantially related matter whose interests are materially adverse to the former client’s.  Exception: the former client gives informed consent that is confirmed in writing.

On appeal, the Court “decline[d] to parse the State’s and children’s specific positions in this case to evaluate whether they are actually materially adverse.”  Rather, the Court noted that:

  • “given the myriad issues in play in juvenile proceedings, the potentially dynamic nature of the parties’ positions, and the difficulty in discerning the children’s interests, determining whether the parties’ interests are truly aligned is a potentially complex undertaking.”

Thus, the Court concluded:

  • “as a matter of law that the potential conflict inherent in representing different clients in the same matter should be treated as an actual conflict for the purposes of determining whether counsel in an abuse-and-neglect case should be disqualified from subsequent representation of a different party in that same matter.”

In essence, then, the Court established a bright-line rule regarding disqualification in abuse & neglect cases, but recognized that the bright-line rule “is broader than the strict requirements of the ethical rule as applied in disciplinary proceedings.”

Finally, the Court noted that a lawyer’s prosecution of a TPR after having represented the children in the same matter “undermines the integrity of the judicial process . . . creates an appearance of impropriety and may be inconsistent with the lawyer’s role as a representative of the State – factors that are particularly significant in the context of abuse-and-neglect proceedings.”

In short, for disqualification purposes in abuse & neglect cases, appearances matter.

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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:

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.

Legal Ethics