from persons unfit to serve as attorneys.”124 The Court then suspended Knapp from practice for four months, the same sanction that was approved in Calhoun. This would suggest that the Court was working on a standard sanction for similar violations, but in another income tax evasion decision, en- titled In re McShane, issued the same year, the sanction was limited to censure and reprimand. The only explanation for a light- er penalty is the finding that there was “no bad faith or evil intent on the part of the respondent.” He was blamed for his “care- lessness.”125


There must be differences in


the fact patterns, but they are not shown in the reported decisions. The decision in Knapp found inspiration


from a comment made by Chief Justice James Holden, in his dissent in a 1966 de- cision, In re Monaghan, a ruling on the ad- mission of an attorney:


Attorneys are officers of the court ap- pointed to assist the court in the ad- ministration of justice. Into their hands are committed the property, the lib- erty and sometimes the lives of their clients. This commitment demands a high degree of intelligence, knowl- edge of the law, respect for its func- tion in society, sound and faithful judg- ment and, above all else, integrity of character in private and professional conduct.126


The Professional Conduct Board The Vermont Supreme Court created


the Professional Conduct Board for the purpose of enforcing the Code of Profes- sional Responsibility, enacted in 1971. The PCB’s record of actions from 1990 to 1999 appears at the Department of Libraries website, and describes 149 cases.127


Oth-


er cases from 1971 to 1990 are reported in Vermont Reports. In the twenty-eight years of its existence, the PCB’s work with the Supreme Court resulted in twelve dis- barments, sixteen suspensions, thirty-four public reprimands, and 143 private admo- nitions. The process of professional disci- pline had changed, once the VBA’s role was over. In 1973, the Supreme Court di- rected the PCB to sever charges against one attorney from those pending against two others, declare a mistrial against that attorney, and withhold any hearing until the other two cases were finished.128


The


gentlemen’s club was no longer in charge, and the Court would exercise complete power over its appointed commission. In State v. Hohman (1980), the Court referred questions about the ethical propriety of a state’s attorney’s conduct to the PCB.129


In


1988, the Court answered a certified ques- tion by the PCB of the propriety of extra- judicial statements by a lawyer in a crim-


18


Reading through all of the reported dis- ciplinary cases is plainly depressing. Too of- ten we see names of good people we know and respect, and reports of sanctioned conduct that we ourselves have occasional- ly committed—late discovery, for instance, not returning phone calls (although per- haps not to the extreme as those who have been sanctioned), not keeping track of ev-


THE VERMONT BAR JOURNAL • FALL 2013


inal investigation.130


Three years later, the


high court denied a motion to quash a sub- poena filed by a respondent, ruling that an attorney is not entitled to a statement of charges against him before an investigative subpoena is issued, but also agreeing that prior to the issuance of a subpoena the PSB must: show the factual basis, beyond con- jecture and suspicion, that an ethical stan- dard has been violated; demonstrate how relevant the information is to the investiga- tion; and prove that the demand is not too indefinite or overbroad. By its statement, the Court amended the Code in accord with this procedure.131


The Professional Responsibility Board The Professional Responsibility Board


was created in 1999 to replace the Profes- sional Conduct Board, at the same time that the Code was replaced by the Rules of Professional Conduct. The Board’s juris- diction goes beyond the discipline of law- yers, and includes resolution of disputes against lawyers through dispute resolution, and assistance to “attorneys and the pub- lic by providing education, advice, referrals and other information designed to main- tain and enhance the standards of profes- sional responsibility.”132


At the time the


new Board was constituted, there was a significant backlog of cases, which was dra- matically reduced with appointment of bar counsel to review and refer cases and disci- plinary counsel to litigate them. The PRB has been keeping track of its


work since 1999. In that time, according to the latest reports, the board has reviewed and ruled on 162 disciplinary matters, in- cluding those for which no action is rec- ommended.133


Its work has contributed


to disbarments of eighteen attorneys, for- ty-four suspensions, thirty-six public rep- rimands, and sixty-eight private admoni- tions. Not all disbarments, suspensions, or reprimands were ordered by the Supreme Court, in cases where a stipulation has end- ed the conflict or, in the case of admoni- tions, where disciplinary counsel has made the final decision, without appeal to the Court. The PRB’s record over the last thir- teen years reveals processing of a greater caseload and more disciplinary decisions than under any former system.


Reflections on the Fall


erything—and the experience cannot help but fill any attorney with dread. We are all guilty of something, and there is no point in trying to act superior to those who have fallen. We can sympathize with them for their pain, suffering, and embarrassment, as we would for most who do wrong, be- cause we know there is a thin line that sep- arates us from each other. None will dis- agree with the prayer of contrition: we have left undone those things which we ought to have done, and we have done those things which we ought not to have done. As Ches- terton is reported to have said, “Children are innocent, and love justice, while most adults are guilty, and love mercy.”134 We are members of a profession, schooled in and dedicated to knowing the difference between right and wrong, and licensed to advise others on the difference. When we violate the law, we know it. The record, taken as a whole, is a fas- cinating, if horrible, reflection on the Ver- mont bar. Lawyers get busy and neglect important things, like trust accounts, cli- ent calls, and court orders. There is some consolation in the relative low number of sanctions compared to the large number of lawyers. But there is no denying there are lawyers who step way over the line, are too zealous or take risks to favor their client’s interests or harm them. Some just steal. Some are disloyal to their clients. Some be- havior is so obviously wrong it’s stunning the attorney didn’t try to avoid or correct it. As lawyers, we are constantly exposed to trauma, anxiety, fear, and the guilt of mak- ing a mistake. All the esteem and advan- tage within the office of attorney—the priv- ileges, the power, the financial rewards— come at a high price. We develop obses- sive-compulsive habits. We exhaust our- selves, to the point where performing even the slightest unpleasant task becomes im- possible. Each can lead to self-destructive tendencies, although the regular failure of lawyers to ignore calls from bar counsel, letters from disciplinary counsel, and even notices of hearings—leaving a pile of let- ters unopened—requires some greater analysis. Janet Malcolm’s study of psychia- try relates the stories of two eminent men who threw their careers away crossing the line that separates physician and patient by entering into intimate relationships with those who had trusted them to act as pro- fessionals. She suggests that in some pro- fessionals there is an “underlying sense of guilt, an abiding sense of moral defi- ciency,” which is a natural reaction to be- ing “idolized, idealized, lionized, and wor- shipped,” and defines such career suicide as the way this guilt handles success.135


Ev-


ery fall is a tragedy. A lawyer who dips into his trust fund to pay for a vacation crosses the line. It is a form of fiduciary incest. A lawyer who lies to a client or a court or an


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Ruminations: The Great Falls


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