In Re C. Robert Manby, Jr., Esq., 308 A.3d 465

Background

Disciplinary Counsel filed a petition alleging respondent violated V.R.Prof.Cond. Rules 1.14(a), 1.1, and 1.4(b) in representing a 91‑year‑old client (E.M.); respondent admitted negligent violations of Rules 1.1 and 1.4(b) but denied 1.14(a).
Respondent, a solo practitioner since 1980 focusing on real property/probate, dealt primarily with the client’s son (J.M.), prepared deeds, a power of attorney, and trust documents conveying major assets to J.M., and met the client only briefly in parking‑lot encounters—with J.M. present each time.
The panel found E.M. suffered advanced dementia and lacked capacity during respondent’s encounters; respondent never met with her alone, asked only yes/no questions, relied on J.M.’s assurances, and accepted a $1,000 cash gift from J.M.
The probate/guardianship proceedings later invalidated the documents; E.M.’s daughters litigated and alleged economic and emotional injuries from the transactions and prolonged litigation.
The PRB hearing panel found clear and convincing evidence of violations of Rules 1.14(a), 1.1, and 1.4(b), concluded respondent acted knowingly, and recommended a five‑month suspension; the Vermont Supreme Court reviewed de novo and imposed a one‑year suspension.

Issues

Issue	Disciplinary Counsel’s Argument	Respondent’s Argument	Held
Notice / due process: did panel rely on uncharged conduct?	Allegations tracked respondent’s failure to maintain a normal lawyer‑client relationship with a client of diminished capacity; panel’s findings mirrored petition.	Panel found misconduct on bases not alleged in petition, depriving respondent of fair notice.	No due process violation—the panel’s findings tracked the petition and any references to capacity were within charged allegations.
Whether Rule 1.14(a) requires a lawyer to assess client capacity	Rule 1.14(a) implicitly requires a lawyer to make a reasonable effort to assess capacity to know when to maintain a normal relationship or take protective steps.	Rule 1.14(a) imposes no affirmative duty to assess capacity; respondent claims he satisfied any duty.	Rule 1.14(a) does require a reasonable effort to assess capacity; respondent’s conduct failed that obligation.
Admissibility/weight of medical testimony and circumstantial evidence on capacity	Testimony from treating physician and circumstantial evidence sufficiently show client’s incapacity was obvious; expert opinion tying incapacity to specific meeting dates not required.	Medical testimony was inadmissible or speculative about capacity on specific dates; panel relied on improper evidence.	No abuse of discretion—treating physician’s testimony and circumstantial evidence were admissible and sufficient; credibility/weight decisions were for the panel.
Appropriate sanction and respondent’s mental state	Violations are serious, client vulnerable, injury actual and prolonged; suspension appropriate and should reflect knowing state of mind and aggravators (including $1,000 gift).	Respondent characterized violations as negligent (per his answer) and sought lesser sanction; argued panel should accept his admitted mental state.	Court upheld knowing violations, found multiple aggravators, and increased sanction to a one‑year suspension to protect public and maintain confidence in the bar.

Key Cases Cited

In re Kulig, 282 A.3d 926 (Vt. 2022) (comparison case on discipline and aggravating factors)
In re Bowen, 252 A.3d 300 (Vt. 2021) (prior suspension for ethical violations; discussed aggravators and harm)
In re Robinson, 209 A.3d 570 (Vt. 2019) (standard of review for disciplinary conclusions)
In re Fink, 22 A.3d 461 (Vt. 2011) (definitions and distinctions between negligent and knowing lawyer conduct)
In re Obregon, 145 A.3d 226 (Vt. 2016) (purpose of sanctions: protect public and maintain confidence)
In re Andres, 857 A.2d 803 (Vt. 2004) (use of ABA Standards factors in sanctioning)
In re Rosenfeld, 601 A.2d 972 (Vt. 1991) (deference to trier of fact on weight and credibility)
Bull v. Pinkham Eng’g Assocs., Inc., 752 A.2d 26 (Vt. 2000) (preservation and waiver principles)
Deyo v. Kinley, 565 A.2d 1286 (Vt. 1989) (plain error/miscarriage of justice review)
Town of Ira v. Vt. League of Cities and Towns, 109 A.3d 893 (Vt. 2014) (time value of money as measure of economic loss)