with clients.”73 The Committee reported one attorney


to the attorney general in 1944 after his conviction for perjury, without recommen- dation. A second complaint reflected the problem of a failure to respond to the dis- ciplinary process, presaging similar prob- lems with challenged lawyers in the years ahead. The lawyer had failed to account for a collection award, retaining money for over two years. He didn’t answer the Com- mittee’s letters and repeated requests for a hearing. Eventually he told the Committee this matter needed to wait until the war was over, as he was at work in a defense plant in Connecticut. Exasperated, the Committee referred the complaint to the attorney gen- eral for appropriate action.74


The following


year, it referred another complaint for fur- ther investigation and action and issued a letter of reprimand to another attorney, for undefined misconduct.75 Two attorneys were reprimanded in 1948,


for threatening a debtor with jail and pad- ding bills. The Committee also explained it had given opinions on the Code of Eth- ics, as required by the VBA constitution on conflicts of interest, adding, “Personal sac- rifice of financial reward in such cases adds professional honor and dignity and ele- vates the profession in public esteem.” The Committee recommended adopting the schedule of uniform rates of the Commer- cial Law League of America, but that part of the report was not accepted.76 The Committee explained it had met


In 1953, the Committee repri- manded the complainant, an inmate in the state prison, for flagrantly misrepresenting the facts of a complaint.79


An attorney was censured in 1952 for failing to keep to an agreement with a client.78


Another censure


was issued in 1954 for an attorney confer- ring with the wife in a divorce case when she was represented by counsel.80 The report of the Committee in 1960 described two complaints of conduct that stemmed from “lack of an adequately close relationship and understanding between lawyer and client,” which the Committee noted was a significant factor in most com- plaints.81


That year the Committee recom- mended the adoption of the Canons of Ju- dicial Ethics, prepared by the ABA. Over time, the Committee became more involved in settling disputes between cli- ents and attorneys, getting money re- turned, fees adjusted, and files transferred to new counsel, becoming an arbitration panel and an advisory board, rather than exclusively a generator of formal com- plaints. The focus changed from discipline to correction and avoidance of problems.


14


with the Supreme Court during 1950 “as to the necessary elements of some of the matters that the Committee feels should be presented to the Court for its consider- ation.”77


After the Professional Conduct Board was created by the Court in 1969, the VBA com- mittee’s direct work on disciplinary matters ended, and the system of providing opin- ions on ethical issues was expanded and has continued to this day.82


The Committee members spent many hours over the years reviewing complaints, investigating them, and holding hearings. They played an important role in the reg- ulation of the profession, but they were never empowered to act, beyond referrals to the attorney general and the occasion- al censure, which today would be treated as an admonishment. In all of the various reports, attorney’s names are rarely given, reflecting the closed nature of what would become a very public process, once the business of regulation became exclusively a Court function. The Committee’s work over nearly a cen- tury also illustrates the problem of priva- cy in professional regulation. Many com- plaints are groundless. Premature publicity about them unfairly damages reputation. But what the complaints reveal about the practice of law cannot be hidden under a basket. The same problems have existed from the beginning—commingling funds of clients with those of the lawyer, missing deadlines, and disputes over fees. The last- ing value of human experience extends be- yond the parochial needs of the individuals involved. There must be a record of what was done, a set of principles and stories to illustrate how they will be applied. The practice of law doesn’t come with an oper- ating manual, and no code can predict ev- ery conflict or hard question. But the sanc- tions others have suffered are lessons no one dares to ignore. The Committee’s record over the ninety- two years of its official role as a profession- al grand jury consists of seven referrals to the attorney general for disbarments and eleven reprimands or censures, plus one reprimand of a complainant. The VBA car- ried the process as far as it could go, but professional discipline could not remain within the filter of the Association to main- tain credibility and avoid the perception of favoritism. Only the Court could take for- mal action.


Discipline of Attorneys by the Court, 1895-1970


Before 1971, when equity and law were at last merged, suspension or disbarment involved two separate courts, so if an attor- ney was disbarred, he lost two offices—as an attorney-at-law and a solicitor in chan- cery. Between 1895 and 1970, the Court disbarred eight attorneys. The reasons, ar- ticulated in Vermont Reports, consisted of overzealousness in pursuing client’s inter- ests, leading to conviction of a felony in-


THE VERMONT BAR JOURNAL • FALL 2013


volving extortion;83


counts of embezzlement of funds entrust- ed to his care by others;84


conviction on eleven forging names


of clients and others on various legal doc- uments and diverting client’s funds to his own use;85


attorney’s own use;86


converting client’s funds to the exaction of excessive


perjury for the purpose of deceiv- ing and defrauding the court of chancery;88 misconduct in prosecuting recognizanc- es for liquor law violations as state’s attor- ney;89


and unconscionable fees and fraud upon clients;87


and fraudulently pretending to have knowledge of certain facts, offering to sell the same to the opposing attorney, to in- duce an offer of settlement that would not otherwise be made.90


In that time, the Court suspended nine lawyers. The suspensions were for partici- pating in the planning and execution of a plan to entrap a libelee in a proposed di- vorce action in a compromising situation with a young woman hired for purpose of entrapment (one year);91 receiving a politi- cal contribution in consideration for prom- ised support to candidate for public office (four months);92 failing to file income tax re- turns (four months);93 failing to file feder- al income tax returns with a plea of guilty (four months);94 representing one spouse in first divorce proceeding (then withdrawn) and other spouse in second divorce ac- tion (three months);95 falsely stating at court that he had not entered jury room and conversing with jurors during trial (six months);96 permitting a libellant to take an oath to libel for divorce containing a false statement that libellant had faithfully kept the marriage covenant when the attorney knew that libellant had pleaded guilty to charge of adultery, failure to know the rule of law that uncondoned adultery is a bar to granting a divorce on those grounds (one year);97 defending a client before the Li- quor Control Board while serving as state’s attorney, who is charged with prosecuting violations of the liquor control law (three months);98 and attempting to collect costs of a suit for a client without ascertaining whether the settlement made provision for the costs (one year).99 Two lawyers were censured or repri- manded by the Court in that time: one for failing to file federal income tax returns;100 the other for conversion of funds collected for a client. In the second the Court consid- ered mitigating evidence of the attorney’s good reputation for truth, honesty, and fair dealing, the absence of any attempt to conceal the shortage, the possibility that it was caused by his wife drawing on his bank account without his knowledge, his restitu- tion to client, and his war activities just be- fore and after conversion.101 If there were disbarments, suspensions,


and reprimands, private or public, they are not reported before 1895. The reason for


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Ruminations: The Great Falls


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