In Re Illuzzi

632 A.2d 346, 160 Vt. 474, 1993 Vt. LEXIS 83
CourtSupreme Court of Vermont
DecidedJuly 30, 1993
Docket92-602
StatusPublished
Cited by11 cases

This text of 632 A.2d 346 (In Re Illuzzi) is published on Counsel Stack Legal Research, covering Supreme Court of Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Illuzzi, 632 A.2d 346, 160 Vt. 474, 1993 Vt. LEXIS 83 (Vt. 1993).

Opinions

Per Curiam.

This case is before us a second time. In In re Illuzzi, 159 Vt. 155, 159-60, 616 A.2d 233, 236 (1992), we held that DR 7-104(A)(l) (lawyer shall not communicate with a represented party without consent of party’s attorney) prohibits lawyers for plaintiffs from communicating directly with defendant insurance companies without the consent of the companies’ counsel. We remanded the case to the Professional Conduct Board because the Board “failed to adhere to the requirements of its procedural rules when it adopted a second hearing panel report that had not been submitted to respondent.” Id. at 156, 616 A.2d at 234; see Administrative Order No. 9, Rules 8C, 8D. That procedural deficiency was remedied when respondent was given an opportunity to address the panel’s second report, which the Board again adopted. Respondent appeals anew on the grounds that there are procedural errors in the Board’s decision; that the recommended sanction is too harsh because it is based upon an erroneous conclusion that he violated DR 1-102(A) and DR 1-102(A)(5); and that the Board failed to acknowledge certain mitigating factors, while considering inapplicable aggravating factors. Bar counsel responds by contending that the recommended sanction is too lenient in light of respondent’s long history of unethical conduct and repeated violations of the Code. She recommends that respondent be disbarred or, at minimum, suspended from practice for three years as provided in A.O. 9, Rule 7A(2). We adopt the Board’s recommendation that respondent be suspended from the practice of law for six months.

I.

We begin by chronicling respondent’s prior disciplinary record and the incidents that led to the present petition. Respond[477]*477ent was admitted to the Vermont bar in 1979. Shortly thereafter, he received his first reprimand for a disciplinary infraction. In re Illuzzi, 138 Vt. 621, 622, 413 A.2d 1220, 1220 (1980). Then a deputy state’s attorney, he was cited for a traffic violation en route to work. The next day, his employer, the Orleans County State’s Attorney, wrote a letter to the Washington County State’s Attorney’s office falsely stating that his deputy was responding to an emergency call regarding a homicide investigation when he was stopped for speeding. This Court publicly reprimanded respondent for requesting that his employer fabricate a story aimed at persuading another prosecutor to dismiss the ticket, or for acquiescing in the false account, in violation of DR 1-102(A)(4) (lawyer shall not engage in conduct involving dishonesty or deceit) and DR 1-102(A)(5) (lawyer shall not engage in conduct prejudicial to administration of justice). Respondent admitted to the falsity of the story and stipulated to the infraction after it became apparent that the story had been fabricated.

Less than a year later, respondent received a private reprimand after he stipulated to violating DR 7-102(A)(3) (concealing or knowingly failing to disclose that which attorney is required to reveal), DR 7-103(B) (failing to disclose existence of exculpatory evidence to counsel of criminal defendant), and DR 7-104(A)(l) (communicating with party known to be represented by counsel). In that instance, respondent, still a deputy state’s attorney, was sanctioned after the Board found he should have known that a criminal defendant was represented by counsel, but nevertheless allowed the police to interview the accused without counsel present. Not only did respondent fail to seek permission for the interview from the defendant’s attorney, he also failed to inform the attorney that the interview had occurred or to furnish the attorney with a copy of the supplementary investigation report that recounted the interview.

In 1983, respondent received another private reprimand for knowingly concealing facts, or making a false statement of fact, when he suggested to the court that his client, who had been released pending trial on other charges, remained incarcerated on the other charges. This conduct constituted another violation of DR 7-102(A)(3). Although a majority of the Board recommended a private reprimand, some members felt stronger [478]*478action should have been taken. The Board warned respondent that the violations were serious, that he had not acted within the standards of character and behavior expected of members of the bar, and that he must strictly adhere to the ethical standards set forth in the Code of Professional Responsibility.

In August 1987, respondent received yet another private reprimand after the Board accepted a stipulation between respondent and bar counsel stating that he had committed acts prejudicial to the administration of justice, in violation of DR 1-102(A)(5). In that incident, respondent had taken over a case from another attorney. Despite the fact that he knew his client’s former attorney claimed part of any future settlement as payment for services rendered, respondent failed to notify the attorney when the case settled or to resolve the issue of attorneys’ fees before disbursing the settlement funds.

The present allegations against respondent resulted from his representation of two plaintiffs in separate personal injury actions. In one case, respondent represented a woman injured in an accident while a passenger in a car driven by her husband. Respondent contacted the insurance company covering the vehicle, Travelers Insurance Company, and attempted to settle the matter with its claims supervisor, Linda Fritsch. When they could not agree on the value of the claim, respondent filed a lawsuit on behalf of the plaintiff in the summer of 1989, and Travelers retained a law firm to defend the claim. Respondent continued to communicate directly with Travelers, despite being told by Fritsch that the law firm had entered an appearance and that respondent should speak with counsel rather than the company. He sent letters on September 26 and 28, suggesting that Travelers’ counsel had not expeditiously handled the case or made the company aware of the relevant law. In the second letter, respondent made the following statement: “If you want to keep the meter running on your legal costs and expenses in this case, that is a decision which is up to you.”

When respondent did not cease direct contact with Travelers, Fritsch faxed him a letter on October 2, in which she reiterated that the company was represented by counsel and stated, “As such, I am at a loss to understand why you keep communicating directly with this office.” Three days later, respondent replied:

[479]*479I think you know very well why I am communicating with your office. I believe the manner in which this case has been handled both by your company and the law firm . . . may give rise to a bad faith action directly against Travelers and the law firm which you have retained. I need one further point of clarification. Is the law firm . . . representing the interests of Travelers Insurance Company?

Respondent telephoned Fritsch once again and was again told to contact Travelers’ attorney. The last direct contact occurred on October 11, 1989, when respondent called Travelers and angrily demanded to know why the company’s counsel had failed to show up for a deposition. Shortly thereafter, Fritsch advised the company’s attorney to settle the bodily injury portion of the claim for the $20,000 policy limit.

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In Re Illuzzi
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Bluebook (online)
632 A.2d 346, 160 Vt. 474, 1993 Vt. LEXIS 83, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-illuzzi-vt-1993.