In Re Prb Docket No. 2007-046

2009 VT 115, 989 A.2d 523, 187 Vt. 35, 2009 Vt. LEXIS 138
CourtSupreme Court of Vermont
DecidedNovember 25, 2009
Docket08-214 & 08-215
StatusPublished
Cited by11 cases

This text of 2009 VT 115 (In Re Prb Docket No. 2007-046) 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 Prb Docket No. 2007-046, 2009 VT 115, 989 A.2d 523, 187 Vt. 35, 2009 Vt. LEXIS 138 (Vt. 2009).

Opinions

Skoglund, J.

¶ 1. We ordered review of these attorney-discipline cases to consider the application of the Vermont Rules of Professional Conduct to two attorneys who misled a potential witness [38]*38about whether they were recording a telephone conversation. A hearing panel of the Professional Responsibility Board determined that the attorneys had violated Rule 4.1 — which provides that “[i]n the course of representing a client a lawyer shall not knowingly make a false statement of material fact or law to a third person” — but had not violated Rule 8.4(c) — which establishes that it is professional misconduct for a lawyer to “engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” On review, the Office of Disciplinary Counsel argued that the hearing panel’s conclusion on Rule 4.1 was well founded, but that it had erred in concluding that the attorneys had not violated Rule 8.4(c). We affirm the hearing panel’s decision and find that a private admonition is the appropriate sanction for the offending conduct.

¶2. The parties stipulated to the following facts. Respondent attorneys were partners in a law practice and represented a client in a serious criminal matter. During trial, a potential witness contacted them, claiming to have information that tended to show their client’s innocence. Respondents obtained a continuance until the following day to ascertain the witness’s potential testimony. They quickly arranged to interview the witness by telephone and to record the call. During the call, the witness asked respondents whether they were recording the interview. One respondent said “No,” and the other, attempting to distract the witness, added “She’s on speaker phone, so I can hear you.” The witness later filed complaints with the Office of Disciplinary Counsel against both respondents. The parties jointly recommended that the hearing panel conclude that respondents had violated Rules 4.1 and 8.4(c). The disciplinary charges were premised at all times solely on the act of misleading the witness about the recording, and not on the recording itself.

¶ 3. The hearing panel first recounted the history of professional disciplinary consequences for attorneys who surreptitiously record conversations, noting that the American Bar Association issued a formal opinion in 1974 concluding that attorneys — except prosecutors — should not record any conversation without obtaining consent from all parties to the conversation. ABA Comm, on Ethics and Profl Responsibility, Formal Op. 337 (1974). Many state bar association ethics committees followed the ABA recommendation in their own advisory opinions, with some variation as to the scope of the prosecutorial exception; in some states, the [39]*39exception was extended, as a matter of fairness, to defense attorneys. See, e.g., State Bar of Ariz. Comm, on the Rules of Profl Conduct, Op. 90-02 (1990). The ABA recommendation was premised on the duty of candor embodied in the since-superseded provisions of the ABA Code of Professional Conduct. Several state bar committees, however, declined to follow the ABA’s formal opinion, concluding that surreptitious recording itself did not necessarily violate the conduct rules in those states, and that surreptitious recording, absent some other prohibited act, would not be a basis for discipline.

¶4. In 2001, the ABA formally revoked the 1974 opinion, replacing it with an opinion stating that mere surreptitious recording in states — like Vermont — where such recording is otherwise lawful, is not inherently deceitful and thus may be ethically permissible. ABA Comm, on Ethics and Profl Responsibility, Formal Op. 01-422 (2001). The opinion included a prohibition on nonconsensual recording “only where it is accompanied by other circumstances that make it unethical.” Id. at 1201:103. One such circumstance, the opinion went on to hold, was falsely denying that a conversation is being recorded. Id. at 1201:104.1 “That a lawyer may record a conversation with another person without that person’s knowledge and consent does not mean that a lawyer may state falsely that the conversation is not being recorded.” Id. Put another way, the opinion held that a “lawyer may not . . . falsely represent that a conversation is not being recorded.” Id. at 1201:101. The opinion noted that such false representations would “likely violate Model Rule 4.1, which prohibits a lawyer from making a false statement of material fact to a third person.” Id. at 1201:104. And although the word “likely” might suggest equivocation, the ABA committee went on to conclude, without reservation, that a “lawyer who records a conversation without the consent of a party to that conversation [40]*40may not represent that the conversation is not being recorded.” Id. at 1201:106 (emphasis added).

¶ 5. As noted above, the hearing panel in the instant appeal found that respondents had violated Rule 4.1, but not Rule 8.4(c), and that a private admonition was the appropriate sanction. Now, on review, we consider each rule in turn.2

I. Rule 4.1

¶ 6. Rule 4.1 provides that “[i]n the course of representing a client a lawyer shall not knowingly make a false statement of material fact or law to a third person.” As the hearing panel noted, the rule requires not only that the attorney’s statement be false, but that the falsity concern a material fact. Here, the hearing panel found that the misrepresented fact — whether the call was being recorded — was material to the witness. Respondents believed that the witness would have terminated the call if he had found out that he was being taped. We agree, on the record before us, that the recording of the call was a material fact.

¶ 7. We also agree that respondents knowingly made a false statement about the recording and thus violated Rule 4.1. One respondent stated in plain terms that she was not recording the conversation, when in fact she was. The second respondent attempted to distract the witness from the issue of recording entirely, by making a statement about the speakerphone. Furthermore, she did not disagree with or correct the misrepresentation made by the first respondent. Both respondents’ actions, therefore, violate Rule 4.1. See V.R.Pr.C. 4.1 cmt. (“A misrepresentation can occur if the lawyer incorporates or affirms a statement of another person that the lawyer knows is false. Misrepresentations can also occur by failure to act.”); see also Miss. Bar v. Att’y ST, 621 So. 2d 229, 233 (Miss. 1993) (‘We find, however, that Attorney ST stepped over the line . . . when he blatantly denied, when asked, that he was taping the conversations. Rule 4.1 comment expressly states that ‘[a] lawyer is required to be truthful when dealing with others on a client’s behalf.’ ”).

¶ 8. As the hearing panel took pains to make clear, the charges here are based entirely on these false statements, and not on the [41]*41mere surreptitious recording itself, which was lawful. We therefore express no opinion today on the distinct question of whether surreptitious recording, without an additional unethical act such as lying, would violate Rule 4.1.

II. Rule 8.4(c)

¶ 9.

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In Re Prb Docket No. 2007-046
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Bluebook (online)
2009 VT 115, 989 A.2d 523, 187 Vt. 35, 2009 Vt. LEXIS 138, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-prb-docket-no-2007-046-vt-2009.