119 PRB

 

[Filed 10/9/2009]

STATE OF VERMONT

PROFESSIONAL RESPONSIBILITY BOARD

 

 

 

In Re:    PRB File No. 2009.117

              Melvin B. Neisner, Jr., Esq.

 

Decision No. 119

 

            The parties in this case filed a stipulation of facts and recommended conclusions of law and the matter was heard on the issue of sanctions on July 9, 2009, before Hearing Panel No.  8, consisting of John T. Leddy, Esq., Chair, Joseph F. Obuchowski, Esq. and Tim Volk.

The Panel accepts the facts and recommendation and finds that Respondent violated Rule 8.4(b) of the Vermont Rules of Professional Conduct as a result of his conviction of four criminal offenses including the felony of impeding a public officer.

            The Panel was faced with two difficult issues.  The first being has Respondent’s conduct since the time of the offenses been significant enough to move this case from one of disbarment to one of suspension.  The second issue arises out of our recognition that the harm caused by Respondent was not to an individual client but to the public perception of the legal system. It is our desire to structure the sanction to address that injury.

In consideration of the fact that Respondent has been suspended from the practice of law since January 9, 2009, we suspend Respondent from the practice of law for an additional period of one year with a one-year period of probation following reinstatement. Our reasons for selecting suspension and the details of probation are further set forth below.

Facts

            On November 24, 2008, Respondent was convicted of four criminal offenses arising out of a motor vehicle accident, including impeding a public officer, leaving the scene of an accident, negligent operation and providing false information to a police officer.  The facts of the accident and its aftermath are important to our decision and we detail them here.

            The accident happened sometime after 8:30 pm.  Respondent passed two motorcycles on the road.  He then believed that the motorcycles were tailgating him. Respondent testified that he has a fear of motorcycles.  He sped up to about 40 mph and then tapped on the brakes, reducing his speed to 35 about mph.  He felt an impact on his car, but it did not seem to him to be too hard.  At the time he did not see an accident, but did notice one of the motorcycles following him.  He drove to his office and then turned around to go home to get something for his daughter.  He passed the spot where he had tapped the brakes and noticed cars on the side of the road. He continued home and called his attorney and left a message for a call back.

            In the meantime, a Killington constable had recognized the car seen leaving the scene of the accident and with that information, Trooper McKenna went to Respondent’s home.  He was admitted to the house and Respondent told the trooper that his wife had been in an accident.  Respondent did not permit the trooper to speak with his wife, but he did perform a breath test for alcohol and found no reason to believe that Mrs. Neisner had been operating under the influence.  Based on Respondent’s statements, Trooper McKenna arrested Mrs. Neisner for suspicion of leaving the scene of an accident.  He took her to the Vermont State Police Barracks in Rutland, processed her, cited her and released her to her attorney.

            The State scheduled an inquest for November 2, 2007, and on October 29, 2007, Trooper McKenna served four subpoenas directing witnesses to appear at the inquest.  They included Mrs. Neisner, her two children and another witness.

            On October 30, 2007, attorney Steve Klein called Trooper McKenna and asked to schedule a meeting with Respondent.  The meeting was scheduled for the next day.  Respondent came with his attorney.  Trooper McKenna advised Respondent of his rights.  Respondent told Trooper McKenna that he had lied to him when he said that his wife had been driving, but that he himself had been driving the car.

            Respondent was charged and convicted of the offenses listed above.  As of the date of this hearing he had not been sentenced.

             In support of mitigating factors presented during the sanction hearing, Respondent testified relating to his efforts to confront his alcoholism and the steps he has taken since the accident to both come to terms with his behavior while he was drinking and to maintain his sobriety.

            When Respondent returned home after the accident and before the police came, he was in a state of some panic.  He feared that he would lose everything, his license to practice law, his family, his life as he knew it.  He had several stiff drinks and convinced his wife to lie for him, which she was willing to do. 

When he woke the next morning he went to visit a neighbor, who is a licensed clinical social worker with some experience in treating alcoholism, and asked her for a professional consultation.  She agreed, but told him she would not be his therapist, but would assist him that day and in finding help.   The neighbor testified that Respondent’s behavior was fairly typical of alcoholics.  He was scared, appalled humiliated and did not know what to do.  He just wanted to disappear and to have it go away.  She also testified that Respondent’s wife’s actions were also fairly typical.  She wanted to protect her family.   The neighbor arranged for Respondent to speak to her husband, who has been in AA for many years and that evening Respondent went to an AA meeting with him.  Since that time Respondent testified that he has continued to attend AA meetings.

 He has been working with a Licensed Drug and Alcohol Counselor.  He met with her initially on a weekly basis and now periodically.  It is his counselor’s opinion that he is taking his recovery very seriously and that the prognosis is good.

Respondent has been a general practitioner as well as town moderator in Killington for a number years.  He also served as a traffic court judge prior to the accident.  The accident and trial received significant publicity especially in the Rutland Herald.  Despite the accident and this negative publicity, Respondent has continued to be an important and vital member of his community and presented significant oral and written testimony to this effect.

Conclusions of Law

            Respondent was convicted of impeding a police officer, a felony, 13 V.S.A § 3001(a) and knowingly giving false information to a police officer, 13 V.S.A. §7504(a).  The parties have stipulated that Respondent’s conduct is a violation of Rule 8.4(b) of the Vermont Rules of Professional which provides that

 [i]t is professional misconduct for a lawyer to: … (b) engage in a “serious crime,” defined as illegal conduct involving any felony or involving any lesser crime a necessary element of which involves interference with the administration of justice, false swearing, intentional misrepresentation, fraud [or]  deceit . . . .

           

Rule 8.4(b) provides that conviction of any felony violates the rule.  In addition, providing false information to a police officer is a crime, the heart of which involves “intentional misrepresentation” and “deceit.”  We find that both convictions violate this Rule.

Sanctions

            It is well settled that we may look to the ABA Standards for Imposing Lawyer Sanctions as well as case law in determining the appropriate sanction in any disciplinary matter. In re Warren, 167 Vt. 259, 261(1997); In re Berk, 157 Vt. 524, 532 (1991).   The ABA Standards require us to determine a presumptive sanction and then to the look to aggravating and mitigating factors to determine whether the sanction should be modified.

            In the introduction to Section 5, “Violations of Duties Owed to the Public,” the editors comment that “[t]he most fundamental duty which a lawyer owes the public is the duty to maintain the standards of personal integrity upon which the community relies.  The public expects the lawyer to be honest and to abide by the law; public confidence in the integrity of officers of the court is undermined when lawyers engage in illegal conduct.” 

In recommending sanctions in these matters the ABA Standards provide that:

Disbarment is generally appropriate when: (a) a lawyer engages in serious criminal conduct a necessary element of which includes intentional interference with the administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft. . .§5.11(a)

 

            The Commentary to this provision underscores the seriousness of this these violations; “a lawyer who engages in any of the illegal acts listed above has violated one of the most basic professional obligations to the public, the pledge to maintain personal honesty and integrity.”

            We concur with the editorial comment to this section.  There is perhaps no misconduct by lawyers that does more harm to the public perception of lawyers, than those offenses which bring a lawyer’s honesty and integrity into question.  The only real question before us in determining sanctions is whether the mitigating factors are such that Respondent should not be disbarred, since absent those factors we would not have hesitated to recommend disbarment.

            There are a number of mitigating factors here.  Respondent has no prior disciplinary offenses, ABA Standards §9.32(a); he has expressed remorse for his conduct, ABA Standards §9.32(l); he has cooperated with the disciplinary process, ABA Standards §9.32(e), and, though he has yet to be sentenced, we can reasonably assume that there will be other penalties imposed through the criminal justice system. ABA Standards §9.32(k).   

The most compelling mitigating factors relate to Respondent’s character and reputation, ABA Standards §9.32(g), and his interim rehabilitation, ABA Standards §9.32(j).  Respondent’s witnesses testified to his reputation in Killington and his commitment to the community. In addition to these witnesses, Respondent introduced testimonials in the form of letters from members of the local community and members of the bar. It was clear from this evidence that Respondent had been deeply involved and very committed to the community.  The people of the town relied on him, not just as the only general practitioner in town but also as someone who was willing to lend a hand in any community project he was asked to participate in.

            Respondent had, for a number of years, been the moderator of the Killington Town Meeting.   At the next ensuing March Town Meeting after the accident, he apologized to the community for his lack of judgment, accepted responsibility for his actions and thanked the town for its support to him and his family.  His apology was well received by the meeting and he was unanimously elected to serve another term as moderator.

Section 9.32(i) of the ABA Standards permits us to consider as a mitigating factor:

A mental disability or chemical dependency including alcohol or drug abuse when

(1) there is medical evidence that the Respondent is affected by a chemical dependency or mental disability;

(2) the mental disability or chemical dependency caused the misconduct;

(3) the respondent’s recovery from the mental disability or chemical dependency is demonstrated by a meaningful and sustained period of successful rehabilitation; and

(4) the recovery arrested the misconduct and a recurrence of the misconduct is unlikely.

 

The commentary to this section suggests that

 [i]ssues of physical and mental disability or chemical dependency offered as mitigating factors in disciplinary proceedings require careful analysis.  Direct causation between the disability or chemical dependency and the offense must be established.  If the offense is proven to be attributable solely to a disability or chemical dependency, it should be given the greatest weight. If it is principally responsible for the offense, it should be given very great weight; and if it is a contributing cause of the offense, it should be given great weight.  In all other cases in which the disability or chemical dependency is considered as mitigating, it should be given little weight.  A showing of rehabilitation from chemical dependency may be considered but should not, in and of itself, be a justification for a recommendation for discipline less than that which would have been imposed upon an attorney in similar circumstances where a chemical dependency was not present.

 

It is not an easy task to determine to what extent Respondent’s alcoholism caused his behavior.  We do not believe that Respondent’s alcoholism was solely responsible for his behavior. The question is, to what extent it was a contributing factor.  Respondent was not so incapacitated by alcohol that he was totally unaware of the fact that something had struck his car or that he was lying to the police officers.  He had the capacity to return to the scene and notice cars stopped, to place a call his attorney, and to arrange for his wife to lie for him, and he kept that posture for a full month during which he consumed no alcohol. 

We acknowledge the fact alcoholism is a disease of denial and that Respondent’s alcoholism skewed his later thinking about his behavior, most specifically the fact that he harbored a mistaken belief that it would somehow go away.  We also believe that his alcoholism affected his judgment.  We do not, however, believe that Respondent’s chemical dependency in the words of section 9.32(i) of the ABA Standards, “caused the misconduct.”  It was a contributing factor and we have given it some weight in reaching our decision on sanctions.

Another factor, which weighs against considering Respondent’s alcoholism as a principal or contributing factor, is his own testimony that he acted as he did because he was afraid that he would lose everything.  This behavior, which speaks more to a dishonest or selfish motive, than a chemical dependency, is one which we would consider as an aggravating factor. ABA Standards 9.22(b).  There are other aggravating factors as well.  Respondent has substantial experience in the practice of law, ABA Standards 9.22(i), and the conduct was illegal, ABA Standards 9.22(k).

Respondent has also raised the issue of reliance on his attorney’s advice to remain silent and suggests that it be considered as a mitigating factor, even though it is not enumerated in the factors listed in the ABA Standards.  We reject this for several

reasons. 

Our Supreme Court has consistently relied on the ABA Standards in considering sanctions, and has never extended its consideration to include advice of counsel as a mitigating factor nor have any Vermont Hearing Panels. 

Courts in other jurisdictions have rejected the advice of counsel as a defense to misconduct.  Attorney Griev. Com’n v. Pennington, 876 A.2d 642 (Md. 2004); People v. Katz, 58 P.3d 1176 (Colo. 2002).  We believe that the same reasoning applies to raising this issue as a mitigating factor. 

In Katz, the attorney presented evidence that he had acted only after being advised by his attorney that it was permissible to do so and that this should therefore be a defense to a petition of misconduct.  The Court rejected this argument stating that “[i]t is the individual attorney’s duty and obligation to comply with the Rules of Professional Conduct.  The attorney may not delegate that duty or responsibility to another under the umbrella of advice of counsel and thereby create a defense to a violation of those rules.” Id at 1187.

In Pennington, the Court rejected the defense of advice of counsel where the attorney testified that she had relied on advice of counsel in presenting her clients with a fake settlement after the case had been dismissed.  The Court also refused to consider it as a mitigating factor.  The Court did suggest that reliance on advice of counsel could be mitigating only if the opinion is sought in good faith and is rendered after a full and honest disclosure of the underlying facts, but the court also suggested that even if mitigating it would not be given great weight since “every lawyer is presumed to know and abide by the Rules of Professional Conduct.  Id at 661.

Were we to apply the reasoning of the Pennington case on advice of counsel to the present case, it would fail the test set forth in that case.  Respondent testified that he spoke with his attorney, and that he was advised to remain silent.  The testimony was unclear as to how much he had told his attorney and when he told him.  In response to the question as to when he told his attorney that he had lied to the police, his response was that it was between the time of the accident and the date he admitted the lie to the police.  Thus, we have no way of knowing what his attorney knew and when he knew it.  Even if we were to acknowledge that this is a mitigating factor, one cannot claim reliance on advice of counsel when one has not told one’s lawyer the entire story.  We do not find the good faith and the full and honest disclosure here that the Pennington court suggests could be mitigating.

Lastly, we believe that there is something illogical about the request to consider reliance on advice of counsel as a mitigating factor in this case.  Putting aside the fact that we do not know how much his attorney knew and when, Respondent knew that he had lied to the police and that as a result of that lie the police had charged his wife with the crimes that he was eventually convicted of.

In summary, under the ABA Standards the presumptive sanction is disbarment, however, we believe that mitigating factors, most specifically Respondent’s good reputation among both lawyers and the community, his remorse for his actions and his genuine desire to deal with his alcoholism lead us to the conclusion that under the ABA Standards, suspension is the appropriate sanction in this matter.

We now turn to Vermont disciplinary decisions which also are consistent with suspension in this case. 

In cases of attorney’s convicted of serious crimes such as embezzlement or misuse of client funds, disbarment has generally been the sanction.  In re McGinn,178 Vt. 646 (2005), In re Ruggiero, 179 Vt.636 (2006). In re Harwood, PRB Decision No. 83 (2005). In all three of these cases the attorneys misappropriated client funds.  In the first two cases, client funds were taken and the attorneys convicted of crimes.  In Harwood, the attorney used client funds for his own purposes for a number of years, but was able to repay his trust account before detection.  He was not charged with crimes and no client money was lost.  In all three of these cases the harm or potential harm to clients was considerable and the attorneys violated a fundamental duty to their clients, to protect their property. 

While Respondent was convicted of a serious crime, it was not as serious as in these cases, and we do not find the substantial harm to clients as in McGinn or Ruggiero. 

There are two relatively recent cases involving false statements and one involving crimes committed while addicted to drugs that are important to our consideration here.

In In re Daly, PRB Decision No 49 (2002), the attorney was suspended for three years for failure to reveal charges of criminal fraud and ethical violations in New York on his application for admission to the Vermont Bar.[1]   The parties had stipulated to a one-year suspension in Daly, but the Panel did not believe that it adequately addressed the seriousness of the conduct. “Our judicial system is premised on the fact that an attorney’s relationships with courts, clients and fellow members of the bar will be truthful and candid.  An attorney’s failure to meet this standard on his application for admission is of grave concern.”  PRB Decision No. 49 (2003).  There were no mitigating factors in that case.

In In re Harrington, PRB Decision No. 53 (2003),  the attorney was suspended for three years after conviction of the federal crime for filing false fee agreements in eight separate cases with the Social Security Administration.  In that case, the Panel acknowledged, as do we, that under the ABA Standards, disbarment would be the presumptive sanction, but they also acknowledged that disbarment has been reserved for serious criminal conduct with serious harm to clients.

The case of In re van Aelstyn, PRD Decision No 112 (2008), is also instructive here.  In that case the attorney was convicted of extortion and stalking.  He had become addicted to crystal methamphetamine, and the crimes were committed during the period of his addiction.  By the time the case reached hearing, van Aelstyn had stopped using drugs and was availing himself of recovery services.  In imposing a one-year suspension the Panel noted his remarkable effort and success in turning his life around.  In discussing the mitigating factor of chemical dependency under the ABA Standards, the Panel in van Aelstyn stated:  “While there was no medical evidence of Respondent’s drug dependency, we believe that it was not necessary in this circumstance.  It is clear that the drug use exacerbated the emotional reaction to being rejected which led to the misconduct, and that Respondent is not now using drugs.” 

            The facts of the present case are similar to those in van Aelstyn.  In both cases the attorneys were convicted of serious crimes, and in both cases there was raised at the hearing the mitigating factor of drug or alcohol dependency.   However, an important distinction that we note is that, unlike in van Aelstyn, we do not find the “clear” connection between Respondent’s alcoholism and the criminal activity that the previous panel did.

In arguing for a suspension of six months or less, Respondent points us to two lines of cases in which attorneys were convicted of crimes involving drugs or false statements.  We turn first to the cases of failure to file income tax returns.  In both In re Massucco, 159 Vt. 617 (1992), and In re Taft, 159 Vt. 618 (1993),  the attorneys were suspended for four months after a conviction on two counts of knowing failure to file income tax returns.  While theses attorneys were convicted of crimes, and the injury, as here, is to the public perception of attorneys, we believe that Respondent’s  lying to police officers and implicating another in his crime is a more serious breach of the duty that attorneys owe to the public.  This is borne out by consideration of the ABA Standard on disbarment for serious criminal activity set forth above. The section refers to “cases which include intentional interference with the administration of justice.”  Such interfere in present here but not in the tax evasion cases. §5.11 (a).

There are several drug cases in which the attorney received suspensions of less than six months.  In In re Mayer, 159 Vt. 621 (1992) the attorney was charged with attempting to receive cocaine and received a two month suspension.  A  more recent case, In re Davis, PRB File No. 117 (2008), the  attorney was suspended for three months after having been found to possess a substantial amount of marijuana and marijuana cultivating equipment.  As in the tax cases, the attorneys engaged in serious criminal activity, but again it is not conduct which involves “intentional interference with the administration of justice,” or “misrepresentation,” ABA Standards §5.11 (a).

            Respondent also suggests that the cases involving false statements to courts should be considered in imposing a shorter sanction. In In re Bridge, 168 Vt. 633 (1998), the attorney lied to the court at an arraignment and in In re Lancaster, 166 Vt. 602 (1996) the attorney made a false statement in a pre-trial motion.  Both attorneys were reprimanded. While these cases involve knowing misrepresentations to a court, neither attorney was charged with a crime, nor was there any allegation that their activity was criminal. 

            The final reason for rejecting a suspension of less than six months is that were we to impose such a sanction, Respondent would be automatically reinstated to practice at the end of his suspension.  With a suspension of more than six months he would be required to apply for readmission under A.O. 9 Rule 22 E and he would have to demonstrate to a hearing panel at that time that he has:

the moral qualifications, competency, and learning required for admission to practice law in the state, and the resumption of the practice of law will be neither detrimental to the integrity and standing of the bar or the administration of justice nor subservice of the public interest and that the respondent-attorney has been rehabilitated.

 

 

These are important safeguards to the public, and we believe that it will be important for another hearing panel to consider Respondent’s situation at the time of readmission, especially in terms of the progress of his recovery from alcoholism.

We believe that the facts of this case most strongly resemble those in the van Aelstyn case and are inclined to impose a similar sanction.  Disciplinary Counsel has recommended that we impose a two-year suspension with the effective date being January 9, 2009,  the date of his interim suspension.  We are inclined to impose sanctions prospectively, and thus our imposition of a one-year suspension is not dissimilar to that requested by Disciplinary Counsel.  The suspension addresses our concern about the seriousness of Respondent’s conduct and acknowledges the substantial mitigating factors that are present.

            We do not, however, believe that the suspension alone adequately addresses the harm to the public perception of the bar and of the legal system.  Our criminal justice system has devised alternative sentencing structures which look to community service as an alternative to incarceration.  Such plans have the advantage of benefiting the community, avoiding punishment and using the skills which the offender possesses to give back to the community which has been harmed by his or her conduct.

            We believe that a similar plan would be appropriate in this case.  The harm here was not to any particular client, and therefore there is no restitution to be made to any one individual.  The harm here is to the public and that is where any redress must be .Respondent has skills as a general practitioner and is involved in his local community of Killington.  A plan of probation which uses these skills for the community will address this harm.

            Should Respondent apply for reinstatement after the conclusion of his suspension, we impose the following terms of probation to become effective at that time.  We would also anticipate that the Hearing Panel ruling on his readmission might well impose additional terms of probation to address Respondent’s alcoholism, but we will leave that to assessment at that time.

Order

            Respondent is suspended from the practice of law for one year commencing on the date this opinion becomes final.  Upon reinstatement to the bar he shall be placed on probation on the following terms.

Probation

  1. Respondent is placed on probation as provided in Administrative Order 9, Rule 8A(6), for a minimum term of twelve months.  The probation term may be renewed for an additional period as provided by A.O.9 Rule 8(A)(6)(a).  See ¶¶ 9 and 11, below.  The term of probation shall commence on the date on which Respondent is readmitted to practice following the suspension imposed here.
  2. At the commencement of probation, Respondent shall select a probation monitor acceptable to Disciplinary Counsel as required by A.O.9 Rule 8(A)(6)(b).  In the event that the approved probation monitor shall become unavailable during the term of probation, Respondent shall submit an alternate name to the Office of Disciplinary Counsel for approval as a substitute. 
  3. During the period of probation Respondent shall provide no less than 500 hours of pro bono legal services to organizations or individuals engaged in community service.
  4. The selection of recipients for such services shall be made in conjunction with the probation monitor with the goal being community benefit.
  5. Respondent shall maintain records of his time and submit them to the probation monitor. 
  6. The probation monitor shall file quarterly reports with Disciplinary Counsel detailing Respondent’s compliance with the terms of probation.
  7. It shall be Respondent’s responsibility to secure quarterly written reports from the probation monitor detailing compliance with probation and shall provide Disciplinary Counsel with copies of the reports.
  8. Probation  may be terminated  after the initial twelve-month period or during any renewal term thereof upon the filing of an affidavit by Respondent showing compliance with the conditions of probation and an affidavit by the probation monitor stating that probation is no longer necessary and the basis for that conclusion.  Such affidavits shall be filed with the Program Administrator of the Professional Responsibility Board with copies to Disciplinary Counsel.
  9. The absence of a filing of such affidavits after twelve months shall be considered a recommendation of continued probation by the probation monitor.
  10. In accordance with A.O. 9, Rule 8(A)(6) the probation monitor shall then file a brief written recommendation with the Office of Disciplinary Counsel
  11. Should the Office of Disciplinary Counsel desire to renew the term of probation for an additional period, it shall notify Respondent via certified mail, return receipt requested.  Should Respondent wish to be heard on this issue of renewal of probation, he shall file a request for hearing and serve a copy of the request on the Office of Disciplinary Counsel.
  12. Respondent shall bear all costs associated with this probation.

 

Dated:_______________________                                 Hearing Panel No. 8_____

                                                                                                      /s/

                                                                                          ________________________            John T. Leddy, Esq., Chair

                                                                                                      /s/

                                                                                         

                                                                                          ______________________

                                                                                          Joseph F. Obuchowski, Esq.

 

                                                                                                      /s/

                                                                                          ______________________

                                                                                                Tim Volk



[1] Daly was later disbarred in an unrelated case.  In re Daly, PRB Decision No. 87 (2006).