to admit, to withdraw the rights and privileges conferred by the admission. It does this, not primarily as a punish- ment to him, but to protect the admin- istration of justice.109


The Court recognized the gravity of its decision. Thompson wrote,


The charges touch the fidelity and in- tegrity of the respondent, and show him to be unworthy to minister at the altar of justice, and that under the law it is the duty of this court to withdraw from him the right which it granted by admitting him to the bar of this state. It is never other than a sad and painful duty for a court to be obliged to ren- der such a judgment against one of its once accredited officers.110


How the System Worked in 1913 Attorney William R. Aldrich was charged


with champertous undertakings in 1913 for attempting to collect costs in a suit that weren’t part of the settlement. He was sus- pended from the practice of law for one year.111


mont Liquor Control Board, at a hearing where Gosselin’s second class license was at risk, as he had sold sherry and port when he was only authorized to pour lighter al- coholic beverages. The Board complained to the attorney general, and the Supreme Court sanctioned Wakefield for a “gross violation of the ethics of the profession.” The defense that this was common practice among prosecutors held no water; such a mixture of roles was unethical and improp- er. Wakefield had violated the Vermont Code of Ethics. The Supreme Court relied in part on an opinion of the ABA Commit- tee on Professional Conduct to justify its decision.


Goodrich In 1940, Ernest F. Goodrich was suspend- ed for one year for representing a woman in a divorce case who denied violating the marriage oath, after defending her par- amour and herself in a criminal case where she had pled guilty to a charge of adul- tery.114


The decision discloses the way dis-


ciplinary matters were handled in that time. G.H. Flint, the opposing attorney, react- ing to the attempt to collect costs, filed a complaint about Aldrich with the Supreme Court, but later Flint wrote the chief jus- tice and asked that the complaint be with- drawn. Aldrich then wrote the chief a let- ter “saying, among other things, that he had no intention of doing any act that would bring discredit upon his profession.” The chief put the letters into an envelope and had them sent to the clerk of Orleans County. Ten years passed before the mat- ter was brought to the Supreme Court’s at- tention. As was the custom, the Court sent the papers to a committee of lawyers, who concluded they could make no present- ment of wrongdoing based on claims of champerty in the charging of fees, but they noted that Aldrich’s conduct in attempting to collect costs when none were awarded was open to criticism. Recognizing that dis- barment was an “immoderate” penalty, the Court could not let Aldrich off, and “mere- ly to express disapproval or censure would be to treat lightly matters vitally affecting the integrity of the profession and the in- terests of society,” leading to the one year suspension.112


Wakefield Frederick W. Wakefield was suspended


from practice for three months in 1939, for a conflict of roles.113


Wakefield was Chitten-


den County State’s Attorney, charged with enforcing the criminal laws of Vermont, in- cluding those relating to intoxicating bev- erages. He also appeared as defense coun- sel for Eugene Gosselin before the Ver-


16


tation.117


The 1949 adoption by the VBA of


the ABA’s Canons was relied on for author- ity. What’s interesting about the decision is the way the Court handled the defenses made by the respondent. He said it was in- advertence that led to his conduct, and jus- tified his actions by showing that the sec- ond divorce action was also dismissed, that he had the consent of both spouses, and even a decision of the trial court to allow him to continue in the case. Justice Walter Cleary, writing for the Court, agreed that consent might work to justify dual repre- sentation in a civil matter, but not with di- vorce. That the cases were dismissed, he concluded, did not justify the wrong.


The attorney had notarized her af- fidavit stating her innocence, and the di- vorce was granted on grounds of desertion by the husband. The lawyer never men- tioned the conviction to the Court during the divorce, but after the facts were pre- sented explained that the only way the judge in the criminal court would assign her counsel was if she pled guilty, which was a lie. Later the attorney admitted knowing it was a lie. Justice Olin Jeffords, writing for the Supreme Court, relied in part on the oath an attorney takes when admitted to practice, that “You solemnly swear that you will do no falsehood, nor consent that any be done in court.” This course of conduct, evidenced by the false statement in the li- bel and during the trial “tended to pervert and obstruct justice. There is nothing in the duty of diligence which a lawyer owes to his client which in any way makes it neces- sary, under any circumstances, for him to practise, or permit to be practised, a fraud on the court.”115 Goodrich defended by claiming igno- rance of the effect of the adultery on the right to obtain a divorce, but this didn’t carry much weight as to liability. He had practiced for eleven years, and if he didn’t know that rule of law that was gross neg- ligence. But it did help in mitigation of the sanction. Suspension, not disbarment, was the chosen penalty. It was also impor- tant that he had apologized, justifying the Court’s leniency.116


Themelis and Suspension In 1951, an attorney was suspended for


three months for representing one spouse in a divorce action, which was dismissed, and then the other spouse in a subsequent divorce action against his previous client, as well as five other conflicts of represen-


THE VERMONT BAR JOURNAL • FALL 2013


Other interests than those of the par- ties are involved. Such cases often af- fect the rights of children, innocent and helpless victims of their parents’ selfishness and sin. The attorney’s duty to the court and to the public at large must be considered. The due and or- derly administration of justice, the honor and purity of the profession, the protection of clients, the dignity and reputation of the court itself are all en- dangered.


“Mere disapproval or censure,” wrote


Cleary, “would be to treat lightly matters vitally affecting the integrity of the profes- sion and the interests of society.” In this case, “where the respondent’s zeal outran his discretion … it is time that a salutary les- son be given to the end that fidelity and loyalty may be duly recognized and appre- ciated, and that lapses therefrom may re- ceive proper condemnation.”118 The trial court’s ruling, however, helped the respon- dent avoid disbarment.


Fayette and the Question of Authority Frederic Fayette, a prominent Vermont attorney and politician, was convicted by the U.S. District Court of accepting $3,000 as a political contribution in exchange for a promise that the donor would be ap- pointed postmaster at St. Johnsbury.119 The Committee on Professional Conduct of the VBA investigated and recommended a public reprimand and, “[c]onsistent with the then prevailing policy,” the Vermont at- torney general adopted the Committee’s report. During the process of review, the Vermont Supreme Court issued two other lawyer discipline decisions, which changed the A.G.’s position on the issue. Relying on those cases, the attorney general asked the Committee to reconsider its decision, but the Committee refused, leading the Su- preme Court to resolve the conflict. One of the cases that led the attorney general to change his view was In re Cal- houn (1968), where the Court ruled that failing to file federal income tax returns


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Ruminations: The Great Falls


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