252 A.3d 300
Vt.2021Background
- Richard Bowen, a solo Vermont practitioner, previously represented a divorcing couple and later represented the ex-husband (former client) in post-judgment proceedings; he billed the former client about $11,000 which went unpaid.
- Bowen later agreed to represent a married couple (wife was purchaser; husband acted as principal contact) in buying a vacant lot owned by his former client; Bowen did not obtain informed consent from either the former client or the buyers and did not disclose his prior representation.
- In late January 2019 Bowen learned title issues existed (ex-wife had filed liens; no quitclaim deed); he told the buyers—relying on information from his earlier representation—that the ex-wife would not enforce any interest because she had inherited substantial assets.
- Two days before a scheduled closing Bowen filed an ex parte writ of attachment and recorded a lien on the seller’s proceeds to secure his unpaid fee, without the buyers’ consent; Bowen told buyers only that “someone” had filed a lien and then sought to leverage the imminent closing to collect his fee.
- The buyers experienced worry and the closing was briefly postponed; former client ultimately paid half the bill and the sale closed; Disciplinary Counsel charged Bowen with violations of V.R.Pr.C. 1.8(b) and 1.9(c)(2).
- A Professional Responsibility Board panel found Bowen violated Rules 1.8(b) and 1.9(c)(2) and recommended a three-month suspension; the Vermont Supreme Court affirmed.
Issues
| Issue | Disciplinary Counsel's Argument | Bowen's Argument | Held |
|---|---|---|---|
| Whether Bowen used information relating to his representation of the buyer (wife) to her disadvantage in violation of V.R.Pr.C. 1.8(b) | Bowen used representation-related information to secure a writ that jeopardized the buyer’s transaction and therefore disadvantaged her | No clear disadvantage occurred: the sale closed, wife suffered no material harm, and stress findings lack support | Court affirmed: “disadvantage” need not be material harm; Bowen’s lien and leverage put buyer in a less-advantageous position, violating Rule 1.8(b) |
| Whether Bowen revealed confidential information of a former client in violation of V.R.Pr.C. 1.9(c)(2) | Bowen disclosed divorce-related confidences (including assertions about the ex-wife’s inheritance and motivations) to buyers and opposing counsel without consent | Bowen claimed he reasonably believed public court records divested the information of confidentiality and argued any error was negligent, not knowing | Court affirmed: Bowen acted knowingly; mistaken belief about public records did not negate knowing disclosure, violating Rule 1.9(c)(2) |
| Whether a three-month suspension is an appropriate sanction | Suspension is warranted under ABA Standards §§4.22 and 4.32 given knowing misconduct, selfish/dishonest motive, multiple rule violations, and actual/potential client injury | Suspension is disproportionate; Bowen urged admonition or public reprimand and relied on comparators with lighter sanctions | Court affirmed three-month suspension as proportionate given the fiduciary nature of the duties violated, Bowen’s knowing state of mind, aggravating factors, and actual/potential injury |
Key Cases Cited
- In re Strouse, 34 A.3d 329 (Vt. 2011) (standard of review for Board findings and sanctions guidance)
- In re Wysolmerski, 237 A.3d 706 (Vt. 2020) (appellate review is de novo on sanction questions; Board recommendations are persuasive but not binding)
- In re Robinson, 209 A.3d 570 (Vt. 2019) (attorney’s misunderstanding of ethics rules does not negate a knowing mental state)
- In re Adamski, 228 A.3d 72 (Vt. 2020) (comparative sanctions analysis; duties breached to firm vs. clients affect sanction severity)
- In re Pressly, 628 A.2d 927 (Vt. 1993) (emotional distress from disclosure of confidences can constitute actual injury)
- In re Blais, 817 A.2d 1266 (Vt. 2002) (clients’ anxiety from attorney misconduct recognized as actual injury)
- In re Themelis, 83 A.2d 507 (Vt. 1951) (three-month suspension previously imposed where attorney breached fiduciary duties)