75 A.3d 589
Vt.2013Background
- McCarty, a veteran Vermont attorney, oversaw the eviction matter involving Denise Brennan based on a representation for Sandra Glick.
- Brennan occupied a room in Glick’s Brattleboro home under an oral rental arrangement; Glick’s daughter Gabrielle sought Brennan’s removal.
- Respondent drafted two eviction letters; the second letter omitted the September 9 deadline and introduced a Notice to Vacate styled as a court order.
- Deputy Sheriff Lavalla served Brennan on August 17, 2001 under the impression Brennan must vacate immediately, leading to Brennan’s distress and homelessness.
- The Professional Responsibility Board found multiple Rule violations (8.4(c), (d), (h); Rules 1.2(d); 4.1; 4.4) based on deceptive drafting and attempt to circumvent statutory eviction procedures; sanction proposed was six months, later reduced.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did McCarty commit professional conduct violations based on the eviction actions? | PRB: violations established by clear and convincing evidence; deception and fraud. | McCarty: evidence insufficient; disputes intent and collusion. | Yes; violations proven. |
| Is laches a bar to disciplinary action here? | None stated; court should proceed. | Delay prejudiced him; laches should bar action. | No; laches not applicable. |
| What standard of proof applies to professional misconduct here? | Clear and convincing evidence required for 8.4(c). | Not challenging standard if facts support violations. | Clear and convincing standard applied. |
| What sanction is appropriate for the violations? | Six-month suspension warranted by severity and prior discipline. | Public reprimand sufficient; punishment excessive. | Three-month suspension appropriate. |
Key Cases Cited
- In re Pressly, 160 Vt. 319 (1993) (credibility/clear evidence standard in review of findings)
- In re Berk, 157 Vt. 524 (1991) (evidence sufficient; substantial support for panel findings)
- In re Blais, 174 Vt. 628 (2002) (deference to hearing panel on sanctions; ABA framework guidance)
- In re Wright, 131 Vt. 473 (1973) (no statutory limit on disciplinary actions; public protection goal)
- In re Hunter, 167 Vt. 219 (1997) (purpose of sanctions to protect public and maintain confidence)
- In re Siegel, 708 N.E.2d 869 (1999) (prejudice considerations in laches defense (non-Vt source))