In Re Fink

764 A.2d 1208, 171 Vt. 319, 2000 Vt. LEXIS 312, 2000 WL 1597796

Opinions

Skoglund, J.

Appellant Special Bar Counsel filed a petition of misconduct against appellee-attorney, alleging that appellee had violated DR 1-102(A)(4) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and DR 7-102(A)(7) (counseling client in conduct attorney knows to be illegal or fraudulent) of the Code of Professional Responsibility.

Footnotes

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* A hearing panel held a hearing, concluded that appellee had violated DR 1-102(A)(4), but not 7-102(A)(7), and recommended a sanction. The Professional Conduct Board (Board) subsequently held a hearing and adopted the panel’s findings of fact, but concluded that appellee had not violated either DR 1-102(A)(4) or 7-102(A)(7), and dismissed the petition. Special Bar Counsel appeals the Board’s conclusion that appellee had not violated DR 1-102(A)(4). We affirm.

The relevant facts are not in dispute. Appellee represented Robin Bushey in a divorce matter and assisted in preparing the parties’ stipulated itemized division of personal property. The final divorce order incorporated the stipulation and further provided: “Each of the parties is awarded the personal property in his or her possession free and clear of any and all marital right or claim of the other . . . .” Neither the stipulation nor the final divorce order made reference to a Subaru automobile that Bushey had in her possession at the time the final divorce order was issued. As the Board stated: “While it would have been better practice to itemize such a significant item of personal property to avoid all confusion, it is clear that the client, Robin, was to have complete ownership rights in that vehicle.”

A few months after the final divorce order was issued, Bushey decided to trade in the Subaru. When she realized that her ex-husband’s name was on the certificate of title, and that, in order to trade in the car, she needed her ex-husband’s signature, she called appellee and asked if she could sign her ex-husband’s name. Relying on the above-quoted provision of the divorce decree, and upon something he recalled reading in a legal treatise several years earlier, appellee told Bushey that she could. Wfiien she traded in the car, Bushey signed her ex-husband’s name, but did not tell the dealer that she had done so. The legal treatise appellee relied upon turned out to be inapplicable. Prior to giving his client the above-noted advice, appellee failed to conduct legal research on the issue. Had he done so, he might have discovered 23 V.S.A. § 2025 (involuntary transfers), under which Bushey could obtain a new title to the automobile under circumstances such as presented in this case.

The hearing panel, whose findings were adopted by the Board, stated:

We find respondent’s testimony that he did not believe that there was any harm to Jeffrey Bushey because of the provisions of the divorce decree giving Robin the Subaru automobile truthful. . . . [W]e find that he gave her the advice to sign Jeffrey Bushey’s name because he thought it was the simplest resolution of her problem and had, in Respondent’s mind, was [sic] a minimal risk of adverse consequences.

The panel concluded that appellee had violated DR 1-102(A)(4), stating:

[B]y signing the name of Jeffrey Bushey, Robin Bushey made a misrepresentation and deceived the dealership. . . . In telling Robin Bushey that she could sign Jeffrey Bushey’s name on the certificate of title, he intended her to rely on that advice to sign Jeffrey Bushey’s name, and he knew that she would rely on his advice in signing Jeffrey Bushey’s name on the certificate of title, and that she did so.

The Board reversed. While noting that appellee may have provided legal advice without adequate preparation, the Board could not find “by clear and convincing evidence that Respondent engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation in violation of DR 1-102(A)(4).”

DR 1-102(A)(4) provides: “A lawyer shall not: . . . [e]ngage in conduct involving dishonesty, fraud, deceit, or misrepresentation.” Here, appellee was familiar with the final divorce order that awarded the parties the property in their possession; he knew the Subaru was in Bushey’s possession; he believed his advice was supported by a legal treatise; and he believed that advising Bushey that she could sign her ex-husband’s name would cause no harm to anyone. Appellee’s major transgression was that he failed to conduct adequate legal research. Given these facts, we agree with the Board that, while appellee’s conduct may have been sufficient to conclude that he violated DR 6-101(A)(2) (attorney shall not handle legal matter without adequate preparation), the advice he gave Bushey did not constitute dishonesty, fraud, deceit, or misrepresentation.

The cases in which we have upheld the determination that an attorney has violated DR 1-102(A)(4) involve facts much more egregious than those of the instant case. See In re Karpin, 162 Vt. 163, 170-71, 647 A.2d 700, 704-05 (1993) (attorney instructed office worker to forge and notarize client’s signature on affidavit, and made false assertions in memorandum to court; when forgery and false assertions were discovered, attorney lied to magistrate and drafted two affidavits, which he had office worker sign two months apart, stating she had mistakenly signed original affidavit); In re Bucknam, 160 Vt. 355, 367, 628 A.2d 932, 939 (1993) (attorney misrepresented status of case to clients; attempted to alter implied fee agreement; negligently failed to supply detailed accounting of expenses; and acted vindictively toward clients by refusing to provide them with retainer agreement, revising offer to successor counsel concerning potential recovery, and retaining clients’ file to pressure them into paying expenses legitimately in dispute).

The same is true of other jurisdictions applying DR 1-102(A)(4), with language identical to Vermont’s rule. See People v. Shields, 905 P.2d 608, 611 (Colo. 1995) (attorney engaged in fraudulent billing practices); People v. McDowell, 718 P.2d 541, 543-46 (Colo. 1986) (attorney represented both buyer and seller of corporation and failed to tell buyer that three judgments had previously been entered against corporation; thus, attorney “knowingly withheld highly ma terial information from his client, with the result that the client was given an untrue picture of the financial condition of the business he was about to purchase”); Committee on Prof’l Ethics & Conduct of Iowa State Bar Ass’n v. Davidson, 398 N.W.2d 856, 858 (Iowa 1987) (where attorney for estate filed for and collected payment for unauthorized trip, then later took trip solely to justify receiving payment, court stated: “This action by Davidson, seeking approval by the court for compensation for services never requested by the trustees nor authorized by the will. . . constitutes a blatant misrepresentation to the court . . . .”); Louisiana State Bar Ass’n v. Nabonne, 539 So. 2d 1207, 1210 (La. 1989) (attorney allowed statute of limitations to expire on client’s lawsuit, then “deceived his client into thinking that a suit was pending by showing the client sham pleadings which were confected solely for the purpose of promoting the deception”); In re Kranis, 219 A.D.2d 278, 279 (N.Y. 1996) (attorney “blatantly neglected cases entrusted to him by five clients and misled those clients into believing that the cases were being actively pursued”); State ex rel. Oklahoma Bar Ass’n v. Moore, 741 P.2d 445, 446-48 (Okla. 1987) (attorney used estate funds for own purposes; submitted fraudulent tax return, forcing heir to mortgage property to pay taxes; forged names of co-executors, and altered documents); In re Hockett, 734 P.2d 877, 883 (Or. 1987) (attorney assisted clients in fraudulent transfers with intent to cheat creditors of their lawful debts).

In cases with facts similar to those of the instant case, applying DR 1-102(A)(4), with language identical to Vermont’s rule, courts have concluded that the attorney did not violate the rule. See In re Bargman, 704 N.Y.S.2d 25, 25-26 (App. Div. 2000) (no violation of DR ■1-102(A)(4) where attorney represented seller in real estate transaction; buyer gave attorney $14,000 in escrow; attorney asked seller if he could use money; seller said yes, and attorney did, believing seller’s permission was sufficient); see also Committee on Prof’l Ethics & Conduct of Iowa State Bar Ass’n v. Bitter, 279 N.W.2d 521, 526 (Iowa 1979) (attorney did not violate DR 1-102(A)(4) where he did not fully represent facts in motion for extension of time; “rule does not apply to mere negligence, and would not be violated by acts resulting from ‘haste’ or ‘oversight’ . . . , absent other aggravating circumstances”); In re Disselhorst, 444 N.W.2d 334, 338 (N.D. 1989) (attorney who negligently failed to return numerous client phone calls, failed to send child custody papers to successor attorney, and failed to return retainer until after client filed complaint, did not violate DR 1-102(A)(4)).

We conclude that, under the facts of this case, appellee did not violate DR 1-102(A)(4).

Affirmed.

As of September 1999, Vermont follows the Rules of Professional Conduct. There is no question that this case is governed by the Code of Professional Responsibility