qualifies as professional misconduct, as it demonstrated a failure to perform a le- gal duty and tended to discredit the le- gal profession, violating the lawyer’s duty to “uphold with strict fidelity” the profes- sion. During the investigation of that case, the Committee worried about the effect of a recent decision that suggested disbar- ment was the exclusive choice for a finding of misconduct. The Court used Calhoun to clarify that ruling, recognizing that it could “adjust the penalty to what it finds to be the measure of culpability.”120 Calhoun’s “strict fidelity to the profes- sion” illustrates the inherent dilemma of lawyer discipline. It is one thing to uphold the law, but too great a dependence on protecting the profession reflects profes- sional narcissism or guildism, which has been a complaint against professional reg- ulation generally. Protecting the profes- sion is the least of the values sought to be achieved in professional discipline. It’s the public that needs protecting.
In deciding whether Fayette should be sanctioned and if so by what sanction, the high Court recognized that misbehavior by a lawyer can include conduct as a can- didate for public office, recognizing that “a lawyer bears a burden of responsibil- ity that is uncommon to the ordinary citi- zen.”121 The duty extends beyond the law- yer-client relationship. Fayette violated the
“letter and spirit of accepted standards of professional conduct,” and for that he was suspended from the practice of law for four months. For authority, the Supreme Court quoted the Canons of Professional Ethics of the American Bar Association, which had been adopted by the Vermont Bar Associa- tion in 1949, also citing a draft amendment of the Canons from 1968. The Fayette decision recognizes mitigat- ing factors can affect the severity of the sanction. It deferred to the VBA Commit- tee’s conclusion that “retribution has been harsh and continuing,” which “tempered” the Court’s decision not to disbar the re- spondent, along with recognition that Fay- ette obtained no advantage from his ac- tions, as he had to return the money and suffer the humiliation and public scorn that came with the conviction. In hindsight, this showing of compassionate mitiga- tion seems atonal. To say one has suffered enough should not counterbalance the necessary enforcement of a law of profes- sional conduct, and shows one of the risks in any effort to adjust a sanction based on what the lawyer did after being caught. For the process to be respected, these consid- erations would be better left out of the de- liberations or at least the report of those deliberations, because they suggest a pro- tectionist attitude toward the profession. The Court, through its various decisions on
professional discipline, often shows its love and respect for lawyers. The same tenden- cy is shown in many professional boards and commissions, and is a fundamental flaw in the process. Calhoun and In re Knapp (1968), issued the same year—the cases that inspired the clarification in Fayette—both involved law- yers who had failed to file federal income tax returns.122 Each era of attorney miscon- duct cases reveals the culture of the pe- riod. In the 1990s, it’s marijuana and co- caine. In recessionary times, it’s trust funds that create the trouble. Knapp is interesting for its explanation of
process. As was its practice, the Supreme Court appointed a “three-man commit- tee of the bar” to make findings and re- port them to the Court. The committee re- leased its report, but left the decision on whether the actions constituted profession- al misconduct to the Court. It used the re- port to consider mitigation, which included serious illnesses of the respondent and his wife, but stepped back from that evidence by denying any “retreat from the standards of conduct … because of family problems or physical difficulties.”123 The per curiam decision firmly explains, “It is the responsi- bility of this Court to fulfill its obligation to take action to inspire and maintain public confidence in the bar admitted to practice before it, as well as to protect the public
www.vtbar.org
THE VERMONT BAR JOURNAL • FALL 2013
17
Ruminations: The Great Falls
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40