opposing counsel hides the truth because confronting it is intolerable. There must be sanctions. Otherwise, there would be no order.
Aristotle should have the last word. In
Book 7 of Nicomachean Ethics, he writes about incontinence. In this context, it means doing wrong, knowing it is wrong, because of a failure of moral strength.136 Why this happens varies from person to person. Some believe there will be no pen- alty, because they will not be found out. Some are sleep walking, some drunk, some just stupid, but they all know where the line is drawn. Mencken described a Puritan as one who has a haunting fear that some- where, someone may be happy.137
A lawyer
is one who fears there’s something more left to be done. The life of the law isn’t log- ic, it’s anxiety.
____________________ Paul S. Gillies, Esq., is a partner in the Montpelier firm of Tarrant, Gillies, Merri- man & Richardson and is a regular contrib- utor to the Vermont Bar Journal. A collec- tion of his columns has recently been pub- lished under the title of Uncommon Law, Ancient Roads, and Other Ruminations on Vermont Legal History by the Vermont His- torical Society.
____________________ 1
ISAAC WATTS, THE NEW ENGLAND PRIMER (1777) at
http://www.sacred-texts.com/chr/nep/1777.
Based on a translation of Lazarus Spengler’s poem, “Durch Adams Fall ist ganz verderbt” (1524), which itself as based on I Corinthians 15:22 (“As in Adam all die, even so in Christ shall be made live.”), at
http://cyberhymnal.org/htm/
a/l/l/
allmanfa.htm. 2
1997). 3
4
ARISTOTLE, POETICS 22-23 (Dover Publications, In re Flint, 110 Vt. 38 (1938).
Samuel Damon, “Ripton,” in 1 ABBY MA- RIA HEMENWAY, VERMONT HISTORICAL GAZETTEER 85
(1867). 5
note 4, at 212. 6
supra note 4, at 887. 7
pra note 4, at 356. 8
(1871). 9
Nancy M. Haynes, “Peru,” in HEMENWAY, supra Gay H. Naramore, “Underhill,” in HEMENWAY, George Cahoon, “Lyndon,” in HEMENWAY, su- M.N. Winslow, “Stowe,” in ABBY MARIA HEM-
ENWAY, 2 VERMONT HISTORICAL GAZETTEER 728, 729
pra note 4, at 415. 10
12
pra note 4, at 978. 11
Loyal C. Kellogg, “Benson,” in HEMENWAY, su- J. K. Woodbury, “Concord,” in HEMENWAY, su- Winslow, supra note 8, at 728.
pears to be the first to use these lines in print. 13
Cahoon, supra note 7, at 351. Cahoon ap- In re Macero, PRD Digest No. 161 (2013); In
re Harwood, PRD Digest No. 157 (2013); In re Neiser, PRD Digest No. 139 (2011), In re Blais, PRD Digest No. 58 (2003); In re Lichtenberg, PRD Digest No. 1 (1999); In re Capriola, 145 Vt. 245 (1984); In re Harrington, 134 Vt. 549 (1976);
In re Haddad, 130 Vt. 586 (1972). 14
sented at the 19th
This essay is a shorter version from that pre- Annual Vermont Judicial His-
tory Seminar, given at the September 27, 2013, at the annual meeting of the Vermont Bar Asso- ciation. The longer version lists the disbarments,
suspensions, reprimands, and admonitions for the Professional Conduct Board and the Profes- sional Responsibility Board, and is available at
the VBA website. 15
Lawyer misconduct may also be punished by opposing counsel, outside the courtroom, by poisonous letters and angry talk, or even a duel. “Mr. Johnson” was a lawyer from Highgate who emigrated to the west, where he encountered another lawyer, and offended him in some way, leading the lawyer to challenge him to a duel. Johnson, having the right to the choice of weap- ons and mode of fighting, named pistols, “which were to be loaded with powder and ball, and each was to hold the muzzle of his pistol in the other’s mouth, and both fire at a given signal.” The duel was cancelled, the offense forgiven. Warren Robinson, “Highgate,” in HEMENWAY, su-
pra note 8, at 264-266. 16
TEER 40 (1891). 17
David Lufkin Mansfield, “Dummerston,” in 5 ABBY MARIA HEMENWAY, VERMONT HISTORICAL GAZET-
WAY, supra note 4, at 973. 18
J.N. Woodbury, et al., “Concord,” in HEMEN- An attorney, overzealous in pursing his cli-
ent’s interests, was convicted of a felony involv- ing extortion in 1970. In re Harrington, 128 Vt. 445 (1970). See also the law against barratry, 13 V.S.A. § 701. A common barrator encourages un- necessary lawsuits. Westlaw contains no report-
ed Vermont decision on the topic. 19
Discipline of lawyers is neither civil nor crimi- nal, but lawyers have basic due process rights, including a full opportunity to explain the cir- cumstances of an accusation and the right to of- fer mitigating evidence about sanctions. In re Fink, 189 Vt. 470, 472-473 (2011), citing In re Berk, 157 Vt. at 528. A license is at most a privi- lege subordinate to the public interest and po- lice power of the state. Carousel Grill, Inc. v. Li-
www.vtbar.org
THE VERMONT BAR JOURNAL • FALL 2013
19
Ruminations: The Great Falls
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