In Re: PRB File Nos (Richard Rubin, Esq., Complainant) (Ryan, Smith, Carbine, Complainants) (Self-Report)

Transcription

1 STATE OF VERMONT PROFESSIONAL RESPONSIBILITY PROGRAM In Re: PRB File Nos (Richard Rubin, Esq., Complainant) (Ryan, Smith, Carbine, Complainants) (Self-Report) Matthew D. Gilmond, Esq., Respondent Respondent s Sanction Memorandum Now comes Respondent,who files this Sanction Memorandum pursuant to Rule 11(D)(1) of Administrative Order 9, for the use of the Panel in connection with the Stipulation of Facts and Joint Recommendations as to Conclusion of Law: Summary This matter involves an attorney who made poor choices and violated the Rules of Professional Conduct in the face of unique circumstances that created confusion, and were complicated by significant personal trauma. There was no motive of personal gain and despite considerable delays, the outcome of the matter in question was not changed. Respondent has taken extensive steps through counseling and time away from the practice of law to reflect on and learn from the experience, and to reaffirm his mental state and decision-making process, to eliminate any possibility of a similar circumstance.. Respondent requests that the Panel conclude that admonishment is the appropriate sanction. Analytical Framework The American Bar Association s Standards for Imposing Lawyer Sanctions guide our disciplinary sanctions. See In re Fink, 2011 VT 42, 35. The purpose of lawyer discipline proceedings is to protect the public and the administration of justice from lawyers who have not discharged their professional duties to clients, the public, the legal system, and the legal profession. ABA Standards 1.1; see also, In re Hunter, 167 Vt. 219 (1997)(The purpose of sanctions is not to punish attorneys, but rather to protect the public

2 from harm and to maintain confidence in our legal institutions by deterring future misconduct. ) In re McCarty, 2013 VT 47, 26. The framework for decisions consists of the duty violated, the lawyer s mental state, the actual or potential injury, and any aggravating or mitigating circumstances. Id. 27 (citing ABA Standards 3.0). Depending on the importance of the duty violated, the level of the attorney s culpability, and the extent of the harm caused, the standards provide a presumptive sanction, which can then be adjusted based on aggravating or mitigating factors. Id. 27 (citing V.R.Pr.C. Scope.). All formal charges of misconduct shall be established by clear and convincing evidence. Id. 12 ( quoting A.O. 9, Rule 16(C)). Knowledge is the conscious awareness of the nature or attendant circumstances of the conduct but without the conscious objective or purpose to accomplish a particular result. Negligence is the failure of a lawyer to heed a substantial risk that circumstances exist or that a result will follow, which failure is a deviation from the standard of care that a reasonable lawyer would exercise in the situation. Analysis of Facts In this case, much will depend on the conclusion as to respondent's mental state in the context of his personal trauma in combination with the confusion created by the absence of an adjuster to oversee this matter for the insurance carrier. The violation at issue occurred at a time when it is stipulated that Respondent was suffering from depression due to a serious physical injury and prolonged recovery as well as the death of his mother. Respondent became very anxious following the successful mediation and settlement agreement, when suddenly the adjuster was out on medical leave. Respondent was not initially informed of the adjuster's

3 absence or the reason for it, but simply could not reach her. This void was prolonged when no new adjuster was readily assigned. Respondent then realized he had not documented in writing the settlement authority he had received from the carrier. Panicked by his own failure to follow best practices and confused by the void at the carrier, Respondent started making excuses. That panic and the confusing status of the case at the insurance carrier led to what were, admittedly, poor choices. In this state of anxiety and stress, Respondent was not consciously aware of the nature of the conduct in which he was engaged, on the one hand making excuses to Attorney Rubin and on the other, seeking to cut through layers of bureaucracy. These actions were not taken for Respondent s personal gain. Indeed, the settlement was favorable to Zurich and the only goal was complete that settlement. The settlement agreement was made when Respondent believed he had such authority, as supported by evidence provided by Ms. Remarque. The choices, again admittedly wrong, were about the means of concluding that settlement as quickly and smoothly as possible. ABA Standards Section 5.1 of the ABA Standards applies to cases involving commission of a criminal act that reflects adversely on the lawyer s honesty, trustworthiness, or fitness as a lawyer in other respects, or in cases with conduct involving dishonesty, fraud, deceit, or misrepresentation. ABA Standards, 5.1. Under this section the analysis, as applied to the facts of this case is between reprimand and admonishment: 5.13 Reprimand is generally appropriate when a lawyer knowingly engages in any other conduct that involves dishonesty, fraud, deceit, or misrepresentation and that adversely reflects on the lawyer s fitness to practice law Admonition is generally appropriate when a lawyer engages in any other conduct that reflects adversely on the lawyer s fitness to practice law.

4 Id. In this case, the misrepresentations were not based on a motive of personal gain or ill will. Therefore, Respondent believes admonition is the appropriate sanction. Section 4.6 of the ABA Standards addresses lack of candor Reprimand is generally appropriate when a lawyer negligently fails to provide a client with accurate or complete information, and causes injury or potential injury to the client. Respondent failed to provide Zurich with accurate or complete information during a time of his own emotional trouble when he did not wish to get into a confrontation with subsequent adjuster over the settlement authority he believed he had received from Ms. Haas. Respondent did not intend to deceive the client, only to expedite the conclusion of the settlement in the face of a confounding bureaucracy. The means chosen were inappropriate, but there was no motive of personal gain at any time. Section 4.4 of the ABA Standards is entitled Lack of Diligence and applies to cases involving a failure to act with reasonable diligence and promptness in representing a client. Id Here, any lack of diligence in representing Zurich is arguably covered by 4.6. For example, Respondent did not fail to respond to requests for information from Zurich. Respondent sought to expedite the conclusion of the settlement and chose poorly what information he did convey. To the extent the Panel believes that 4.4 applies, Respondent submits admonishment is the applicable sanction: Admonition is generally appropriate when a lawyer is negligent and does not act with reasonable diligence in representing a client, and causes little or no actual or potential injury to a client. Id Caselaw Applying Sanctions The facts in this case regarding the failure to act with diligence and keep the client fully informed are similar to those of In Re PRB Decision No. 164 (2013). In that case, Respondent

5 was engaged to represent complainant in a criminal matter involving serious felony allegations that could potentially result in a life sentence. Respondent did not engage in any discovery or trial preparation, did not meet with the client and did not respond to complainant's inquiries. The decision details that respondent was overburdened with his workload, which recently increased, and was not aware of certain resources available to him to assist with that workload. These facts allowed the panel to conclude that there were no concerns about repetition of the violations. Further, the decision details numerous mitigating factors, such as lack of a prior disciplinary record, cooperation with the disciplinary proceedings, lack of selfish or dishonest motive and expressions of remorse. The panel determined that these mitigating factors are sufficient to support a private admonition. Further, this was consistent with several prior decisions cited by the panel. [Tie back to MDG here? No concerns of repetition?] There are several key differences between the present situation and that of In re McCarty, 2013 VT 47. In that matter, the Court found that Respondent intentionally drafted a document intended to deceive a tenant that it was a legitimate court document. This caused the tenant to become homeless without warning and aggravated physical and emotional health problems. The panel gave considerable attention to Respondent's failure to admit his wrongdoing, the vulnerability of the parties involved, and five prior instances of discipline. ( Id. 32.) but were somewhat offset by other factors ( Id. 33).. Here, actions were taken out of a sense of panic during a period in which Respondent was dealing with emotional issues. In McCarty the actions were found to be intentional, the highest level of culpability. Id. 31. The harm in this matter was real, but not on the scale of the suffered in the McCarty matter.

6 Likewise, the motives in Matter of Ragland, 647 N.E.2d 319 are very different from those in the present matter. In Ragland, the attorney falsely told his client he had reached a settlement agreement with two parties simultaneously, which was the client's wish. In fact, there was a settlement with only one party but lying to the client, the attorney was able to get have client endorse the first check so that he could receive his fee. As the court said, Respondent's acts were motivated by his own interests and desire for a quick fee, regardless of the client's interests and wishes. Id. at 320. In the present matter there was no such motive or intent. The facts in this case regarding the failure to act with diligence and keep the client fully informed are most similar to those of In Re PRB Decision No. 164 (2013). In that case, Respondent was engaged to represent complainant in a criminal matter involving serious felony allegations that could potentially result in a life sentence. Respondent did not engage in any discovery or trial preparation, did not meet with the client and did not respond to complainant's inquiries. The decision details that respondent was overburdened with his workload, which recently increased, and was not aware of certain resources available to him to assist with that workload. These facts allowed the panel to conclude that there were no concerns about repetition of the violations. The panel determined that the steps taken by Respondent since the violation were relevant is assessing the appropriate sanction. Further, the decision details numerous mitigating factors, such as lack of a prior disciplinary record, cooperation with the disciplinary proceedings, lack of selfish or dishonest motive and expressions of remorse. The panel determined that these mitigating factors were sufficient to support a private admonition. Further, this was consistent with several prior decisions cited by the panel. Id. at 7-8; See also, In Re PRB Decision No. 158 (2013).

7 There are several parallels from PRB Decision No. 164 to the present case. Respondent in this matter was overwhelmed by the situation, do to a combination of personal issues, the void created by the absence of the adjuster, Ms. Haas, and discovery of his own failure to confirm in writing the settlement with Ms. Haas. Likewise, Respondent expressed his remorse throughout the investigation. Respondent has voluntarily not sought legal employment up to the present time since his involuntary termination. This has allowed time to make the necessary effort, individually and with professional guidance, to improve Respondent s mental state because he knew that it was not appropriate to rush right back to the practice of law. The six months since Respondent has worked as an attorney have paid substantial dividends in providing perspective and time to change him as a person,with the tools and the energy to take care of his mental state in the future. Conclusion Respondent acted out of a sense of anxiety and frustration, being overwhelmed by the situation and his own personal circumstances. He did not act for his personal gain or other selfish motive. Because of Respondent s mental state, his actions were those of negligence, not knowledge. Therefore the appropriate sanction is admonishment. Further, several mitigating factors apply, including 1) absence of a prior disciplinary record, 2) personal or emotional problems, 3) full and free disclosure to the disciplinary board or cooperative attitude towards the proceedings, 4) remorse and 5) Respondents own actions to remedy the conditions that existed at the time of the violations.

8 Wherefore, Respondent requests that he be ADMONISHED. Matthew D. Gilmond, Esq Respondent