*1
In re PRB Docket No. 2007-047
[
Opinion Filed November *2 DeBemardi, Counsel, Deputy Beth Disciplinary Burlington, for Petitioner. *3 Reis, Urso, Anderson, K. PLLC,
Robert Reis of Ewald & Rutland, Respondents. for Sorrell, General,
William H. Attorney Michael Duane and 0. Treadwell, H. General, John Attorneys Assistant and Jane Director, Woodruff, Executive Attorneys’ State’s and Sheriffs’ Department, Montpelier, for Amicus Curiae Office of the Vermont Attorney General. Valerio, General, F. Saxman,
Matthew Defender Anna Deputy General, (On Mobbs, Brief), Defender and Renee Law Clerk Montpelier, for Amicus Curiae Office of the Defender General. Graaf,
Paul Van De Acting Attorney, United States Carol L. Shea, Tomasi, B. William Darrow and B. Timothy Assistant United States Attorneys, Burlington, and David Margolis, Acting General, Deputy Attorney N. Douglas and Letter and Lowell V. Jr., Division, Sturgill, Attorneys D.C., Washington, Civil for Amicus Curiae United States of America.
¶ Skoglund, J. We ordered attorney-discipline review these cases to consider the of the application Vermont Rules of Profes- sionаl Conduct to two a attorneys potential who misled witness A conversation. recording telephone a they were about whether Board determined Responsibility of the Professional hearing panel — that provides Rule 4.1 which attorneys had violated that the a shall not lawyer a client representing course of “[i]n material fact or law to statement of make false knowingly — — violated Rule but had not person” third misconduct for professional establishes misrep- deceit or dishonesty, involving in conduct “engage review, argued Disciplinary the Office of Counsel resentation.” On founded, on Rule 4.1 was well hearing panel’s conclusion that the attorneys had not concluding erred in but that it had 8.4(c). decision and hearing panel’s affirm the violated Rule We for the sanction private appropriate that a admonition is find offending conduct.
¶2. following Respondent to the faсts. parties stipulated The and a client represented in a law attorneys partners were trial, a witness During potential in a serious criminal matter. them, to have information that tended to show claiming contacted until innocence. obtained continuance Respondents their client’s potential testimony. following day to ascertain the witness’s by telephone the witness They quickly arranged to interview call, respondents the witness asked During to record the call. said recording respondent were the interview. One they witness, “No,” other, added attempting and the to distract I The witness later phone, you.” so can hear speaker “She’s against with the Counsel complaints Disciplinary filed Office jointly recommended that respondents. parties both The 4.1 hearing panel respondents conclude that had violated Rules 8.4(c). at all times disciplinary charges premisеd The were solely misleading recording, on the act of the witness about the and not on the itself. history professional hearing panel 3. The first recounted who record
disciplinary consequences attorneys surreptitiously conversations, that the American Bar Association issued noting attorneys except pros- in 1974 opinion concluding formal *4 — any obtaining not record conversation without ecutors should Comm, ABA on all to the conversation. parties consent from (1974). Many Responsibility, Op. Ethics and Profl Formal ABA committees followed the recom- state bar association ethics as advisory with some variation opinions, mendation their own states, in some the prosecutorial exception; of the scope to the fairness, to defense extended, as a matter exception was Comm, the Rules Ariz. on See, Bar of State attorneys. e.g., (1990). was ABA recommendation Conduct, The 90-02 Op. Profl since-superseded of candor embodied duty on the premised Several state Conduct. ABA of Professional of the Code provisions the ABA’s formal committees, however, to follow declined bar not itself did recording surreptitious concluding opinion, states, those the conduct rules necessarily violate act, would prohibited some other recording, absent surreptitious discipline. not be basis
¶4. opinion, the 1974 ABA revoked formally In surreptitious that mere stating an opinion it with replacing — — recording such like Vermont where recording in states lawful, may be inherently deceitful and thus is not otherwise Comm, Respon- Ethics and Profl permissible. ABA on ethically (2001). a prohi- included opinion 01-422 The sibility, Op. Formal accompanied “only it is where bition on nonconsensual 1201:103. it Id. at that make unethical.” by other circumstances hold, falsely circumstance, on was opinion wеnt One such 1201:104.1 recorded. Id. at being that a conversation is denying person another a conversation with lawyer may “That a record not mean that and consent does person’s knowledge without that being is not falsely that the conversation lawyer may state “lawyer held that way, opinion Id. Put another recorded.” being not falsely . . that a conversation is may represent not . that such false opinion 1201:101. The noted recorded.” Id. at “likely pro- Model Rule representations would violate fact to making a false statement of material hibits a from “likely” word although at 1201:104. And person.” a third Id. the ABA committee went might equivocation, suggest reservation, who records conclude, “lawyer that a without to that conversation party of a conversation without the consent as opinion’s false statements hearing panel treatment of The characterized the holding pаuse of a case between dictum. We note that distinction — advisory opinion like significance in a association ethics dictum is of limited bar court must opposed case in which a Opinion contested Formal 01-422 as Indeed, perhaps it is most dispute arising particular from facts. resolve a live as none Opinion dictum insofar Formal accurate to characterize entire event, agree controversy. any with we do necessary a live In was to resolve propriety Opinion equivocal about the panel’s 01-422 was conclusion that Formal lying recording conversations. about *5 may not represent being the conversation is not recorded.” added). Id. at 1201:106 (emphasis above, hearing 5. As noted the panel appeal the instant respondents 8.4(c),
found that had violated but Rule not Rule private Now, and that a admonition was appropriate the sanction. review, on we consider each rule turn.2
I. Rule 4.1 ¶ 6. Rule provides 4.1 the course of representing “[i]n lawyer a client a knowingly shall not make a false statement of person.” material fact law to a panel third As the hearing noted, the rule requires attorney’s that the statement be false, Here, but the concern falsity a material fact. — hearing panel found that the misrepresented fact whether the call being was recorded was material to the Respond witness. ents believed that the witness would have terminated the call if he had found out that he being taped. agree, was We on the record us, recording before that the of the call awas material fact. ¶ 7. also agree We that respondents knowingly made a false recording statement about the and thus violated Rule 4.1. One respondent stated in plain terms that recording she was not conversаtion, when fact she was. The respondent second attempted distract the witness from the issue of recording entirely, by making a statement about speakerphone. Further more, disagree she did not with or correct the misrepresentation by made respondent. the first Both respondents’ actions, there fore, (“A violate 4.1. See V.R.Pr.C. 4.1 cmt. misrepresentation can lawyer occur if the incorporates or affirms a statement of person lawyer another that the knows is false. Misrepresentations can occur act.”); also failure ST, see also v. Att’y Miss. Bar 229, (Miss. 1993) (‘We 2d find, So. however, that Attorney stepped ST over the . . denied, line . when blatantly he when asked, that he was taping conversations. 4.1 comment expressly states that ‘[a] required be truthful when ”). dealing with on others a client’s behalf.’ ¶ 8. As the hearing panel took pains clear, to make charges here entirely are stаtements, based on these false and not on 2 The Vermont Rules of September Professional Conduct were amended effective underlying 2009. disciplinary prior As acts this action occurred amendment, opinion prior we base this version of the rules associated comments. itself, therefore lawful. We which was surreptitious mere question on the distinct today express opinion no act such as unethical an additional recording, without surreptitious Rule 4.1. violate lying, would
II. Rule violating additionally charged with were Respondents from “engag[ing] of the Bar 8.4(c), a member prohibits *6 fraud, misrepresenta or dishonesty, deceit involving in conduct charges based these panel dismissed Although hearing tion.” 8.4(c), the text and of finding violations on its recent cases own rule meant to that the was the rule us persuade of construction attorney’s an fitness question into that calls reach conduct studying the rule’s by conclusion law. reach this We alongside its function immediate context and body authority. a considerable reviewing provides text of 8.4 of the entire 10. An examination (c). 8.4 provides interpreting subsection necessary context for as follows: lawyer to: misconduct for a professional
It is (a) violate Rules of Profes- attempt or violate another to do Conduct, assist or induce knowingly sional another; so, the acts of through do so or crime,” (b) illegal a defined as in “serious engage crime felony involving any or lesser involving any conduct interference with necessary element of which involves intentional justice, swearing, false the administration of extortion, fraud, deceit, mis- bribery, misrepresentation, theft, or attempt conspiracy an or a or appropriation, crime”; to commit “serious solicitation another (c) dishonesty, deceit engage involving in conduct misrepresentation; or
(d) admin- prejudicial in engage conduct is justice; istration of
(e) ability improperly an to influence imply state or official; or government agency (f) knowingly judge judicial assist a or officer in conduct that is a applicable judicial violation rules law; conduct other or
(g) any discriminate of his or against individual because color, race, religion, ancestry, origin, sex, her national orientation, sexual of birth or place age, against or individual, qualified in handicapped hiring, promoting determining otherwise the conditions of employment of individual; or (h) any engage other conduct adversely which reflects on lawyer’s fitness to practice law. 8.4.
V.RJPr.C. ¶ 11. The subsections in the rule draw a distinction between two prohibited types behavior. quite Some subsections are specific as' the behavior proscribed, while others prohibit genеral categories (a), (b), (e), and, behavior. Subsections (g), arguably, (f) (a) proscribe behavior with specificity: subsection proscribes (b) violation or attempted rules; violation subsection pro- hibits engaging serious crimes term then defined; (e) exhaustively proscribes subsection stating or implying ability to improperly a government official; influence subsection (g) prohibits discrimination on enumerated bases *7 contexts; (f) enumerated and subsection proscribes knowingly judge a assisting violating in governing standards her behav- hand, ior. (c), (d), (h) On the other subsections prohibit “conduct,” engagement a broad range defined as: “conduct fraud, involving dishonesty, (c), deceit misrepresentation,” or “con- prejudicial duct that is (d), to the justice,” administration of “other conduct which adversely reflects lawyer’s on the to fitness (h). law,” practice
¶ 12. Reading another, the subsections in the context of one (h) subsеction is to meant capture other conduct to similar that preceding described subsections and specifically to define such conduct as that which adversely practice reflects on fitness to law. See 2A N. generally Singer Singer, & J. Statutes and §47:16, (7th 2007). Statutory Thus, Construction at 347-57 ed. 8.4(c) while Rule . is “broad and . . encompasses conduct both within and practice law,” outside the realm of ABA Ctr. for Prof Responsibility, Annotated Model Rules of Profl Conduct 583 dishonesty, any that to believe (6th 2007), prepared are not we ed. engagement, dinner breaking for a false reason giving such as 8.4(c) Rather, prohibits rules. under the actionable would be misrepresentation” deceit or dishonesty, “involving conduct law, that to attorney’s practice fitness on an that reflects life. professional or attorney’s personal in an occurs conduct that 8.4(c). panel’s conclusion hearing This affirms V.R.Pr.C. that (c) egregious “to conduct so only applies subsection to moral character charged lacks the lawyer indicates that law.” practice to found the comment for this result is support Further importance stresses repeatedly
the rule. The comment that reflect those behaviors attorneys accountable holding “Many begins: comment to The practice. on their fitness poorly law, on fitness to adversely reflect kinds of conduct illegal an income tax failure to file . offense of willful as . . the such such However, carry implica- of offenses no some kinds return. lawyer personally is answerable “Although It tion.” continues: answer- law, lawyer professionally should the entire criminal characteristics that indicate lack of those only for offenses able added). The (emphasis 8.4 cmt. practice.” to law V.R.Pr.C. relevant offenses, pattern repeated to note that “[a] comment goes can separately, when considered significance even ones of minor Id, legal obligation.” indicate indifference 8.4(c) that interpretation of Rule ensures 14. Our narrow surplusage. A fundamental Rule 4.1 not reduced to mere no that the drafters intended assumes principle construction ¶ 17, Hill, Crosbie, 1, Inc. v. 2005 VT redundancy. See Fletcher (“[W]e legislative 77, language presume 872 A.2d Vt. surplusage.” create advisedly and not intended to is inserted 187, 193, omitted)); Hartford, v. Town 161 Vt. Robes (quotation (1993) portions of (declining interpret 636 A.2d 346-47 redundant). provides as Rule 4.1 the course “[i]n statute a false knowingly make a client a shall representing V.R.Pr.C. 4.1. person.” fact law to third statement of material result in all behavior of Rule 8.4 would interpretation A broader 8.4(c) well, afoul of Rule since running Rule 4.1 violates told to apply any anyone untruth conceivably could *8 made third Admittedly, some false statements any purpose. for reflect representation could also during the course persons violating practice, thus both lawyer’s fitness adversely on 44 However, not all misrepresentations by attorney
rules.
made
an
character,
questions
calling
raise
about her moral
into question
If
her fitness to
Rule
practice
interpreted
law.
8.4
to automati-
prohibit
circumstances,
cally
“misrepresentations” in all
Rule 4.1
entirely
would be
superfluous.
meaning
There must be some
for
—
8.4(c) independent
Rule
4.1
of Rule
for we presume that the
drafters meant
to have
every
meaning.
rule
some
See Judicial
¶
Watch,
108, 14,
State,
214,
Inc. v.
2005 VT
179 Vt.
That does and consent knowledge person’s without that person falsely that lawyer may a state mean that not likely do so would being recorded. To is not conversation 4.1, lawyer from prohibits violate Model to a third fact statement material false making person. regarding note of caution
Id. at 1201:104. The Committee’s being conversation is falsely denying that a ramifications of context though the broader to Rule even is limited recorded 8.4(c). or the court If the Committee opinion of the concerns violated ST had concluded the same behavior Attorney in much. say to 8.4(c), every and reason opportunity had of Rulе scope not they did believe Their silence indicates it. 8.4(c) we, likewise, to so extend refuse this far and reached who zealously client representing 17. In the course in matter, respondents in a serious criminal was the defendant All of deception. in an isolated instance engaged this case their earnestly believed that respondents indications are that Indeed, panel found that necessary proper. and actions were to defend a “determination the rules out of violated respondents nothing else. charges,” and serious criminal against their client circumstances, simply do actions respondents’ such Under The acknowl rules practice. on their fitness to adversely reflect in the are encountered” “conflicting responsibilities edge that from “difficult arise law, problems ethical and that . clients . . and lawyer’s responsibilities conflict betweеn upright person.” an remaining interest lawyer’s own reason,” Nevertheless, “rules of V.R.Pr.C., the rules are Preamble. the fact that recognition “in applied and should be of the incomplete evidence uncertain or upon has to act often here. resonates V.R.Pr.C., This admonition Scope. situation.” For our review we asked for from briefing the United Attorney, Vermont, Attorney States General of and the De- General, Counsel, fender along Disciplinary with the Office concerning scope exceptions the existence and 4.1 Rules prosecuting for attorneys attorneys defense criminal matters. also requested briefing We on the responsibility attorneys police, investigators, the activities of agents other acting on their behalf. The may Court aware that there facially circumstances which misrepresentations violate the useful, perhaps rules are even nеcessary, functioning of the *10 judicial law-enforcement and systems. Attorneys general and attorneys, state’s part as of that system, may employ such themselves, or may them, methods direct to employ they others investigate discrimination, consumer or other crimes.3 Some panels courts and advisory have 4.1 concluded that Rule does not apply attorneys’ activities, to prosecuting to applies differently them than to attorneys. Many too, other courts and panels, have concluded that as a prosecutorial matter of exceptions fairness the to the rule must also extend to the defense bar.
¶ 19. Having the briefing reviewed the questions considered therein, examined any we conclude that exception prohibi- to the come, tions in Rule 4.1 summarily Court, should not from this but from, rather a through process that input allows and collaboration among, groups all potentially affected a rule change. To end, establish, this we will by separate order, administrative a joint committee comprised of members from the Civil Rules Committee, Committee, the Criminal Rules and the Professional Board, Conduct to consider whether the rules should amended to and, allow for some investigatory misrepresentations, so, by if whom and under what today circumstances. We make no comment on the questions merits that we charge will the committee to consider.
III. Sanction ¶ 20. hearing The panel adopted disciplinary counsel’s recommendation that appropriate sanction is private a admo counsel, nition. Disciplinary advocating while that appeal we 3 harbor, suggested One of the amici that warrants offer safe but does judicial explain finding probable warrant, called, how cause for a wire so could prohibited by authorize an ethical violation the rules.
47
violation,
private
to
support
continues
rule
find an additional
defer-
decision is
sanction
panel’s
review of
Our
admonition.
¶ 31, 5,
Affirmed.
¶26. J., Burgess, concur, I concurring. reluctantly, affirming the violation of Rule 4.1 because that expressly, rule does and broadly, prohibit intentionally all representations by dishonest attorneys, even when such misrepresentations are legal otherwise lawyer’s duty. and serve Our conclusion that technically dishon- est on strictly conduct behalf of a legitimate client’s interests written, violates Rule 4.1 appears but at odds with what obligations are otherwise fundamental govern- attorneys. ment and defense Bar counsel insists that no such issue here, arises but impact ruling the wider this the investiga- operations branch, tive of the executive and its сhilling implica- bar, tions for the public private and defense are inescapable and troubling.
¶27. It seems at least unclear judicial branch, rule, an through ethical might unconstitutionally interfere with valid, and even statutory, executive branch by functions directed discrimination, attorneys supervising undercover consumer investigations and criminal that require surreptitious taping deceptive impersonations, including those authorized warrant. See, 8.4(a) e.g., V.R.Pr.C. (declaring misconduct for a another”); 5.3(b) violate the rules “through the acts of V.R.Pr.C. & (c) (making a supervising lawyer responsible for investigator compliance with the rules professional obligations lawyer). Related separation powers questions, as well as due *12 process equal issues, and protection arise judicial over curtailment
49 public to defender available valid tactics legal and of otherwise clients.5 their аllegations against into criminal looking investigators ¶ instant context in the actionable in an presented Not 28. then, unresolved, Equally unresolved. issues such remain appeal, in law by attorneys involved for ethical violation potential is the malice, or who, lucre without criminal defense and enforcement by or staff strategies executed entirely legal investigative oversee for justified allow recognize to and of the rules agents. Failure and of law enforcement in the course necessary deception and Henry Secretary of State reminiscent investigation is defense codebreaking between diplomatic prohibition foolish Stimson’s do that “Gentlemen high-minded premise on the the Wars World might dictate that Common sense mail.”6 not read each other’s instant in the like Rule 4.1 found violated principle, a blind such of the legitimate demands case, legal objeсtively and ignores the real world. only to lament the unfortunate points are raised 29. These the for the need emphasize violation and to
absurdity of this 4.1 to of Rule application the literal committee to reconsider relating to enforcement. law investigations and defense executive Reiber, C.J., dissenting part. concurring part opinion and majority I and III of the I with parts While concur they be should attorneys violated agree admonition, that we establish should private with a sanctioned rules, I from dissent joint amending committee to consider a view, attorneys also In majority’s my II of the part opinion. to witness about they potential lied when violated interrupted here, example, at last minute of almost Respondents for were immediately degree charged murder with second their trial defense of client jailhouse tipster exculpatory evidence resрond to an unsolicited claim interview, during phone tipster, implicating as the murderer. That another attorneys to being expressed recorded would cause reasonable then concern about target inmate, stranger potentially question to them and whether an record, proffered snitching, information on the his would volunteer retribution all, effect, testify in court. Given the upon at same or could relied whatsoever, any corrupt exigent motive circumstances and the absence justify arguably uncertainty of the situation was sufficient inherent recording. surreptitious (1948). Secretary Bundy, in Peace & War H. M. Active Service Stimson & On (Hoover 1929-33) Secretary Administration, yielded his views as of State Stimson Kahn, 360 n.* citing changing The Codebreakers times. D. of War Stimson (1996). *13 they short, were a telephone conversation. In I with the agree majority’s cannot conclusion that bold-faced lying fraud, is not “conduct involving dishonesty, deceit or misrepresen- 8.4(c). tation.” V.R.Pr.C. 8.4 in provides part: 31. Rule relevant “It professional is (c)
misconduct for a . lawyer . . in engage conduct involving fraud, dishonesty, misrepresentation.” deceit or The hearing panel concluded that although there was “misrepresentation to the witness,” question the conduct in was not “so egregious that it lawyer[s] charged indicates that the lack[] the moral character to practice Accordingly, law.” the panel found no violation of Rule 8.4(c), which it apply only concluded was intended to to such egregious funds, conduct as commingling of client forging fee agreements, or making false statements on attorney-licensing statements. I disagree panel’s with the interpretation narrow 8.4(c). Rule
¶ 32. 8.4 generally governs “misconduct.” provides, It in pertinent part, as follows:
It professional misconduct for a to: (a) violate or attempt to violаte the Rules of Profes- Conduct, sional knowingly assist or induce another to do so, another; or do so through the acts of
(b) engage crime,” in a “serious defined as illegal involving conduct or any felony involving any lesser crime a necessary element which involves interference with justice, administration of swearing, false intentional fraud, misrepresentation, deceit, extortion, bribery, mis- theft, appropriation, an or or attempt conspiracy solicitation of crime”; another to commit a “serious
(c) engage involving dishonesty, conduct deceit or misrepresentation.
V.R.Pr.C. 8.4. ¶ 33. The rule does not explicitly contain the limit that panel
hearing inferred applies “to conduct so egregious that it indicates that the lawyer charged lacks the moral character practice The panel law.” previous cited several Vermont disciplinary rulings which more serious conduct was 8.4(c), found violate Rule panel upon relied those conduct only such serious the conclusion that to draw decisions interpre- narrow 8.4(c). this inspection, close Upon violates is untenable. tation (c) is, construing subsection narrowly rationale 34. The 8.4. The com- published alongside the comment
principally, single subsection any its limit reach explicitly ment does meant to it is rule, language strongly suggests its but (b). as follows: comment reads The only to subsection apply adversely reflect conduct illegal kinds Many law, involving fraud as offenses such fitness to tax an income willful failure to file offense of and the no such However, carry some kinds of offense return. was drawn Traditionally, the distinction implication. *14 con- turpitude.” That involving “moral of offenses terms concerning to offenses construed include cept can be morality, adultery such as of personal sоme matters to offenses, no connection specific that have comparable is lawyer Although of law. fitness for the law, criminal answerable to entire personally only offenses that for professionally answerable should be law relevant to of those characteristics indicate lack violence, breach of involving dishonesty, Offenses practice. trust, with the administration serious interference or repeated A category. pattern are that justice offenses, significance of minor when considered even ones legal obligation. to can indicate indifference separately, suggests, As the clause of the comment opening 8.4 cmt. V.R.Pr.C. (b) That subsection concerns directly only. it subsection applies involve, among acts that other illegal prohibits only acts and those fraud, or deceit. Subsection misrepresentation, intentionаl things, comment, (b) that, only subsection of Rule 8.4 like (c) contrast, By on conduct. subsection illegal its focus places legality. The without limitation as to concerns all “conduct” strongly suggests of the comment illegality-centered language (c) all. as to subsection at guide not meant the comment is Thus, panel relying on the comment hearing erred 8.4(c) narrowly. be read that Rule should support of its conclusion ¶ 8.4(c) should be construed opines majority 35. The because only misrepresentations “egregious” as prohibiting 8.4(c) 4.1 and redundant. render Rules construe it otherwise would ¶¶ Ante, 12, 14. It further concludes that because Rule 4.1 already “false of material fact” made in “the statement[s] forbids course of 8.4(c) client,” representing must as applying be construed only misrepresentations by that are not covered that rule. See ante, 14. majority The conclusion and of the hearing panel lаrgely below was derived from law review article that was concerned implications misrepresentations with made — identity discrimination testers as to their and purpose facts not the article concluded are “material” which may, therefore, violating be falsified without Rule 4.1. D. See Isbell & Salvi, L. Responsibility Lawyers Ethical Deception by Investigators Undercover and Discrimination An Analy- Testers: sis Misrepresentation the Provisions Prohibiting Under the Conduct, Model Rules 791, 8 Geo. J. Ethics Legal of Professional (1995). Thus, article, according to the authors of that it would incongruous to construe Rule as prohibiting “lesser — misrepresentations 4.1(a) than prohibited by those e.g., those involving less than material misrepresentations but 8.4(c)] graver rather must apply (emphasis [Rule ones.” Id. omitted). I find logic this in the unpersuasive context the Rules of Professional Conduct.
¶ While, matter, a general to presume is reasonаble that the of rules redundancies, drafters do not intend to create ante, see interpretive presumption against redundancy is weaker in the Rules of Professional Conduct than in other Here, contexts. penalties are assessed based not the number of transgressions, totality but rather on the of the circumstances V.R.Pr.C., surrounding (“Moreover, misconduct. See Scope presuppose rules discipline imposed should be *15 violation, for a severity sanction, and the of a depend on all the circumstances, such as the willfulness and seriousness of the violation, extenuating factors and whether previ- there have been violations.”); 163, ous Karpin, 173, 700, In re 162 Vt. 647 A.2d 706 (1993) curiam) (“[T]he (per factors to be in considered imposing violated, state, sanctions are duty lawyer’s the the mental the actual or potential injury caused the lawyer’s misconduct and (citation the existencе of aggravating or mitigating factors.” omit- ted)). The single may mere fact that a act abe violation of two 8.4(c) not require rules does us to an adopt interpretation of Rule that is supported by not language the of the rule.
¶ of Regardless majority 37. whether the place is correct to so ¶ here, 14, much on weight avoiding ante, redundancies
53 8.4(c) surplusage. not avoid Rule does majority’s interpretation — in majority today by the Rather, adopted interpretation on 8.4(c) that “reflects only to conduct applies that Rule holding —¶ ante, law,” 12 makes practice to attorney’s fitness an 8.4(h), already prohibits which 8.4(c) in of Rule superfluous light fitness to lawyer’s reflects on adversely which “conduct Thus, principle resorting interpretive to the law.”7 practice determining in get anywhere not us surplusage does avoiding 8.4(c). proper scope
¶ would be to to here principle apply A interpretive better Comm. Cf., Advisory re Court e.g., Supreme In vagueness. avoid (N.J. 2006) 51, 697, 59 911 A.2d Opinion No. Ethics Prof'l appro “are not ambigu[ous]” provisions that (noting “vague[] noted, standards”). has attor “[i]f As one court as ethics priate are to have implications rules neys’ violations ethical status, the standards disciplinary as their own litigation, as well should be consis which their conduct is to be measured against Adver., Inc., 68, R 148 F.R.D. 83 Miano v. AC & tent and clear." 1993) (S.D.N.Y. added). “re certain conduct (emphasis Whether ¶ law,” ante, 12, is much attorney’s fitness flects on an — array of inconsistent subject to much wider vague more “in conduct simply determining than applications dishonesty, misrepresentation,” deceit volv[es] 8.4(c). in in that is not the rule something than reading Rather I limit our vagueness, would itself and that introduces is clear language, of Rule to its actual interpretation on its face.
7 arguably longer worry Although problem surplusage no now that this subsection to the Rules of Professional Conduct have deleted recent amendments (h), majority correctly recognizes applicable not those amendments are that ¶ Ante, Further, because there is proceedings Court. 5 n.2. the current before the clarify attempt original were an no indication the recent amendments 125, 33, 318, Pierce, 8.4, Washington meaning v. Vt. of Rule see 2005 VT helpful interpreting (recognizing later clarifications can be A.2d 173 interpretation statute), our of Rule recent amendments should not affect 435, Johnson, 92, 12, (citing Vt. 987 A.2d Pa. v. 2009 VT see Ins. Co. of Revenue, Bottling Northampton 473 N.E.2d v. Comm’r Co. Coca Cola (Mass. legislation 1985), proposition . . . involved “[w]hat for the 189 n.3 by [subsequent] legislation”). If rationally influenced case means cannot this ease, present any significance on the Rule 8.4 have the recent amendments any majority language that amending of the that rule we did add is that 8.4(e). now reads into Rule *16 54
¶39. Although majority together cobbles some support 8.4(c), panel’s narrow construction of Rule hearing most existing authority goes way suggests the other and 8.4(c) is and . . . encompasses “broad conduct both within and outside the realm of the ABA law.” Ctr. for Profl Annotated Responsibility, Model Rules Professional Conduct (6th 2007). advisory 583 ed. The courts and committees that have 8.4(c) have, considered Rule to this contexts similar one — main, 8.4(c)’s prohibition concluded that Rule or identical provisions other rules involving dishonesty, “conduct fraud, or misrepresentation” prohibits deceit attorneys from affir- matively misleading third parties as whether a conversation is Comm, being recorded. See ABA on Ethics and Responsi- Profl (2001) 01-422, (“A bility, not, Formal Op. may 1201:101 lawyer however, . falsely . . represent that a is conversation not being recorded.”); Hale, 1116, (N.D. Supp. Anderson v. 159 F. 2d 1117 2001) Ill. (recording teleрhone calls disclosing without much 8.4(c) 83.58.4(a)(4), violates Local Rule which like Rule prohibits “dishonesty, or misrepresentations”); deceit People v. Wallin, (Colo. 1981) 330, 621 P.2d 331 (recording conversation permission without of other party provision violates of Code of Responsibility forbidding, 8.4(c), Professional like Rule conduct involving dishonesty, fraud, deceit, or misrepresentation); Iowa Supreme Plumb, Bd. Court Ethics & Conduct v. 546 of Prof'l (Iowa 1996) N.W.2d (noting that it “is not the use of devices, recording but the employment pretense, artifice or poses a truly threat to the trust which is the bedrock our professional relationships,” holding that surreptitious record- ing for purposes litigation against judge future was “conduct involving dishonesty, fraud, deceit, or misrepresentation”); Profl Bar, Ethics Comm’n of Me. Bd. of Overseers of Op. (1999) (Maine 3.2(f), Bar Rule which parallels Vermont’s Rule 8.4(c), prohibits affirmative misrepresentations about if recording, itself); nоt recording Advisory Comm., State Bar of N.M. Ethics (2005) Formal Ethics Advisory Op. (provision 2005-03 identical 8.4(c) precludes “the secret of a witness interview if lawyer ... a recording such would deceiving involve omission”); witness either by commission or Okla. Bar Ass’n (1994) Op. that, Ethics (noting although recording not per deceptive, se that “if requires inquiry regard- is made ing . tape recording, truthful”); . . the must be candid and conver- (lawyers record Bar, may Formal 2005-156 Op. State Or. recording” prohibit if law does “substantive sations *17 person affirmatively lead would of conduct that “in the absence Comm, made”); Profl Ethics be recording that no would to believe (same). (2006) Tex., Op. Bar 575 of for the State ¶ Court Supreme correct that the majority is 40. The 229, ST, 621 So. 2d Attorney Bar v. Mississippi in Mississippi, about (Miss. 1993), misrepresentations concluded that 233 not Rule 4.1 but violated with a witness conversation taping no 8.4(c). case, however, in engaged the court In that 8.4(c) all, though the tribunal anаlysis of Rule at even independent 8.4(c) not Rule conduct under Rule analyzed had below ST for the court’s Attorney is given explanation 4.1. No therefore, 8.4(c), case, and the of Rule to find no violation decision merely rule because reading of that not a narrow support does Lawyers the Minnesota Similarly, it. any discussion of omits stated, has without consider- Board Responsibility Professional 8.4(c), misrepresenta- of Rule that analysis independent ation or K. Rule 4.1. See violate of conversations tions about is Recording Conversations Barring Secret Jorgensen, Opinion 3, 2002, http:// at Lawyer, June available Repealed, Minnesota I do not believe www.courts.state.mn.us/lprb/fc02/fc060302.html. enough to support are these and similar authorities that 8.4(c), of Rule when reading particularly narrow hearing panel’s all the rule itself and plain language contrasted with ¶ cited supra, 39 and sourcеs authority go way. that the other See Indeed, claims that “considerable although majority therein. ¶ ante, 9, it telling authority” supports position, its body of court and the “silence” of one ultimately upon rests majority 4.1, violate Rule that state that certain actions opinion one ethical 8.4(c). violate Rule nothing those actions say but about whether Astrue, ¶16. Cf., ante, e.g., Rupard v. logic This is untenable. See 2009) (E.D. 590, that when (holding 2d Pa. F. Supp. other,” the “silence finding way judge’s no one or the judge “made issue). on that a determination” interpreted cannot be ¶41. in its goes too far statement majority The also 8.4(c) the door open would of Rule interpretation broad for anyone “any untruth told to based disciplinary proceedings ¶ breaking ante, a false reason for “giving even any purpose,” notes, ¶ ante, majority 12. As the itself engagement,” a dinner ” V.R.Pr.C., Ante, 17 (quoting of reason.’ “the rules are ‘rules addition, Scope). In the rules specifically state “whether or should . . discipline imposed depend[s] . on . .. the . . . V.R.Pr.C., seriousness of the violation.” A Scope. broad interpre- therefore, 8.4(c), tation of Rule would not disciplinary invite proceedings based upon something lawyer’s as trivial as a un- truthful statement for missing a dinner engagement. I Although conclude that respondents violated Rule agree addition Rule I with the that the majority sanction
imposed by panel remains appropriate here. See ABA Stan- Sanctions, dards Imposing Lawyer in ABA Compendium (2008 Responsibility ed.) Professional Rules and Standards (“The standards thus are not analogous to criminal determinate sentences, guidelines but are which give courts the flexibility select the appropriate particular sanction each case misconduct.”). My conclusion that the offending conduct violated two than rules rather one require would not the imposition aof *18 more onerous sanction.
¶ 43. I am authorized to state that Dooley joins Justice in this concurrence and dissent.
[989 A.2d 995] No. 07-367 Reiber, C.J., Dooley, Johnson, Skoglund Burgess, Present: JJ.
Opinion Filed November