In re Robert Lee Vogel, BPR 023374
2016 Tenn. LEXIS 74
| Tenn. | 2016Background
- The Board of Professional Responsibility filed disciplinary charges against attorney Robert L. Vogel based on two unrelated matters: (1) disclosure of confidential information of former client Lisa Horn‑Brichetto to Judge Eblen, and (2) a sexual relationship with court‑appointed client Ashley Alford while representing her in federal criminal proceedings.
- The hearing panel found Vogel violated RPC 1.9 (confidentiality) in the Horn‑Brichetto matter and RPC 1.7 (concurrent conflict of interest) in the Alford matter, and imposed a one‑year suspension with all but 30 days stayed and the remainder on probation conditioned on TLAP compliance and treatment.
- The Board petitioned the Tennessee Supreme Court for enforcement; under Tenn. Sup. Ct. R. 9, § 8.4 the Court reviewed the panel’s sanction and proposed increasing it as appearing inadequate. Vogel requested and received oral argument.
- Key factual findings: Vogel knowingly disclosed confidential information to a judge causing recusal and delay in Horn‑Brichetto’s case; with Alford, he engaged in repeated sexual activity during representation, including persistence after she expressed reluctance, and Alford was a vulnerable, court‑appointed, drug‑using client.
- Vogel participated in inpatient treatment and TLAP monitoring after discovery of the Alford relationship; the panel credited rehabilitation as mitigating and found multiple aggravating factors (client vulnerability, multiple offenses, Vogel’s experience).
Issues
| Issue | Plaintiff's Argument (Board) | Defendant's Argument (Vogel) | Held |
|---|---|---|---|
| Did Vogel violate RPC 1.9 by disclosing client confidences in the Horn‑Brichetto matter? | He revealed confidential information to Judge Eblen without informed consent, causing injury (judge recusal/delay). | Ms. Horn‑Brichetto’s letter to the court implied consent or made disclosure appropriate; any disclosure was negligent, not knowing. | Yes. Court agreed disclosure lacked informed consent and violated RPC 1.9. |
| Did Vogel violate RPC 1.7 by engaging in a sexual relationship with a court‑appointed client (Alford)? | Sexual relations with a vulnerable, court‑appointed client created a concurrent conflict and unfair exploitation causing injury/potential injury. | Relationship was consensual, Vogel attempted informal disclosure, and rehabilitation/mental health issues mitigate culpability. | Yes. Court held conduct created a significant risk of materially limited representation and violated RPC 1.7. |
| Was the panel’s sanction (one year with all but 30 days suspended and probation) appropriate and uniform with precedent? | The Board argued the sanction was inadequate given client vulnerability, multiple offenses, and Vogel’s experience; sought increase. | Vogel contended the panel properly weighed mitigation and that probationary suspension was consistent with precedent. | The Court increased the sanction: one‑year suspension fully served on active suspension (no probation). |
| What aggravating and mitigating factors affect sanction? | Aggravators: client vulnerability, continuation after client reluctance, multiple offenses, substantial experience. | Mitigators: inpatient treatment, TLAP compliance, rehabilitation efforts, cooperation and remorse. | Court recognized mitigation but found aggravators decisive; vulnerability/exploitation of Alford and multiple offenses warranted active one‑year suspension. |
Key Cases Cited
- Long v. Bd. of Prof'l Responsibility, 435 S.W.3d 174 (Tenn. 2014) (Court’s supervisory authority over lawyer discipline and review standard)
- Hughes v. Bd. of Prof'l Responsibility, 259 S.W.3d 631 (Tenn. 2008) (Court’s inherent power to enforce attorney licensing and discipline)
- Bailey v. Bd. of Prof'l Responsibility, 441 S.W.3d 223 (Tenn. 2014) (use of ABA Standards as guideposts for sanctions)
- Lockett v. Bd. of Prof'l Responsibility, 380 S.W.3d 19 (Tenn. 2012) (consideration of aggravating/mitigating factors and uniformity)
- Maddux v. Bd. of Prof'l Responsibility, 148 S.W.3d 37 (Tenn. 2004) (ABA Standards guide for sanctions and factors)
- Sneed v. Bd. of Prof'l Responsibility, 301 S.W.3d 603 (Tenn. 2010) (Court’s duty to supervise and regulate the profession)
- Disciplinary Counsel v. Booher, 664 N.E.2d 522 (Ohio 1996) (analogous reasoning imposing one‑year suspension for sexual activity with vulnerable client)