from public criticism of judicial conduct, in reference to causes in which they have been of counsel, other than in courts of re- view, or when the conduct of a judge is nec- essarily involved in determining his removal from or continuance in office.” It urged at- torneys to sedulously avoid “[m]arked at- tention and unusual hospitality” to judges, as that behavior “subject both judge and attorneys to misconstructions.”51 The Code reflects its time. As expected,
there was more formality in the law at that time. Lawyers were expected to be gen- tlemen and manners were as important to reputation as success in the courtroom. The code provided, for instance, “[w]hen an attorney has been employed in a cause, no other attorney shall accept employment as his associate, without previously ascer- taining that his employment is agreeable to the attorney first employed.”52
Discuss-
ing a lawyer’s attitude to the jury, the Code explained, “It is the duty of the court and its officers to provide for the comfort of ju- rors. Displaying special concern for their comfort, and volunteering to ask favors for them, while they are present—such as fre- quent motions to adjourn trials, or take a recess, solely on the ground of the jury’s fatigue or hunger, and uncomfortableness of their seats, or the court room, and the like—should be avoided. Such intervention of attorneys, when proper, ought to be had privately with the court, whereby there will be no appearance of fawning upon the jury, nor ground for ill-feeling of the jury to- wards the court or opposite counsel, if such requests are denied. For like reasons, one attorney should never ask another in the presence of the jury, to consent to its dis- charge or dispersion; and when such a re- quest is made by the court, the attorneys, without indicating their preference, should ask to be heard after the jury withdraws.”53 These are still good rules of practice, but today’s Rules don’t begin to address such details.
The VBA constitution was amended in
1914 to require all complaints of unprofes- sional conduct to be referred to the Com- mittee, and for the Committee to investi- gate all complaints, “with power to caution or reprimand the offender, or prefer charg- es against him for disbarment.”54
This is the
first specific articulation of the Committee’s authority. In 1922, the constitution was fur- ther amended to direct the committee to treat all convictions for criminal behavior involving moral turpitude by attorneys as complaints to be investigated and report- ed and added authority to “advise mem- bers of the profession respecting questions arising under the Code of Ethics.” The Committee reported on three convictions, but found two not to involve crimes of mor- al turpitude. It was the third that created a small crisis for the Association.
12 THE VERMONT BAR JOURNAL • SPRING 2013
Horace Graham was convicted of grand
larceny of state funds, in the year follow- ing his retirement as Vermont governor, sentenced to five years at Windsor State Prison, and then pardoned by the outgo- ing governor in 1920. The Committee vot- ed three-to-two to recommend his pros- ecution by the attorney general for dis- barment, and that “his name should be stricked from [the] roll of attorneys of the Supreme Court.” The issue came to a head at the 1922 annual meeting of the Associ- ation. The crime had occurred when Gra- ham was serving as Vermont auditor of ac- counts, and the Association was divided on whether he had been judged sufficient- ly by the criminal process and whether the pardon washed away all of his misconduct. W.B.C. Stickney had defended Graham at trial, and played the same role at the As- sociation meeting. Harry Shurtleff was the chief inquisitor, and an advocate for refer- ral, but many attorneys were engaged in the argument. Fred Laird, a Montpelier lawyer, said, “if this Association is going to amount to any- thing, as regards discipline in lawyers, as regards setting a high moral standard, as regards making an impression upon a law- yer that he must be honest and take care of funds in his hands, and trust funds, and everything else; and then when a promi- nent man comes up they have got to stand up just the same as if that was a little fel- low.”55
Another described a young client of his who had served time in state prison for stealing as little as $20. Graham had taken more than $25,000 from state funds for his own purposes, and had repaid most of it. “Let those who are without sin among you cast the first stone,” argued seventy- two year-old Charles R. Tarbell, a South Royalton attorney, making his maiden speech before the VBA.56
The debate drew
strong feelings from partisans of Graham, and those who were determined that some action be taken. When one member sug- gested “we proceed to vote without any further discussion,” President John W. Red- mond dryly answered his motion, “That is not the custom of this body.”57 Horace Graham was well loved by many
leading members of the bar, and when the proposition was put to a vote Graham es- caped referral by a vote of thirty-four to thirty-seven. Harry Shurtleff, a Montpelier attorney who as a member of the Com- mittee on Professional Conduct, quickly moved that the Committee “be instructed not to proceed against any member guilty of any offense less than that of Horace F. Graham.” The motion received no second, and failed.58
A few years later, the Committee also re- ported sending a reprimand to an attorney who had neglected to settle “for a substan- tial settlement collection made by him” in
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Ruminations: The Great Falls
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