PCB 4

[12-Oct-1990]

                              STATE OF VERMONT

                         PROFESSIONAL CONDUCT BOARD
                                     
                                     
                                     
In re: PCB File No. 88.70

                             NOTICE OF DECISION

                                 PCB No.   4

                            Procedural History

       A complaint was filed with the Professional Conduct Board by an
  attorney who alleged that the Respondent, a member of the Vermont Bar, had
  improperly failed to obey a court order.

       Specially assigned bar counsel investigated this matter and, as a
  result of the investigation, entered into a stipulation of facts with the
  Respondent. The Respondent did not contest the allegations nor bar
  counsel's allegation that the Respondent violated DR 7-106(A).

       A hearing panel appointed pursuant to Rule 8C reviewed the
  stipulation. The panel, with one member abstaining, concluded that
  Respondent violated Dr 7 106(A).

       The Professional Conduct Board reviewed the stipulation and accepted
  it. Set forth below are the Board's findings of fact and conclusions of
  law.

                                    Facts
                                     
       1. The Respondent represented a client in a contested divorce matter.

       2. The complainant, a Vermont attorney, represented the opposing party
  in the divorce action.

       3. As part of its final order in the case, the court ordered the
  Respondent's client to "execute all necessary documents to effectuate a
  transfer" of the former homestead to the client's spouse by a time certain.

       4. The Respondent oversaw the execution of the appropriate transfer
  deed by the client, but refused to convey the deed to the complainant
  because the disposition of the parties' wood stove had not been resolved.

       5. The Respondent indicated that the deed would be delivered only when
  the parties' had resolved the ownership of the stove.

       6. Subsequently, other disputes arose between the parties concerning
  visitation and insurance coverage.

       7. The Respondent delivered said deed after being so directed by the
  court at a hearing.

       8. By that time, the complainant had perfected his client's title by a
  filing pursuant to 15 V.S.A. Section 754.

                             Conclusions of Law
                                     
       The Code of Professional Responsibility contains the following
  Disciplinary Rule: 

          DR 7-106 Trial Conduct
          (A) A lawyer shall not disregard or advise his 
          client to disregard standing rules of a tribunal 
          or a ruling of a tribunal made in the course of 
          a proceeding, but he may take appropriate steps 
          to test the validity of such rule or ruling.

       In this case, the Respondent failed to follow a valid court order and
  took no steps to question its validity. Therefore, the Board finds that
  Respondent violated DR 7-106(A).

       Respondent stipulated that the Respondent "did not intend to violate
  the Professional Responsibility Code nor did she believe that her actions
  violated the Code." Intent to violate a particular disciplinary rule,
  however, is largely irrelevant in the disciplinary process. The relevant
  consideration is whether Respondent knowingly advised her client to
  disregard a tribunal's ruling. The Board concludes that Respondent acted
  knowingly.

       In imposing sanctions this Board considers, among other factors, the
  duty violated, the lawyer's mental state, the potential or actual injury
  caused by the lawyer's misconduct, and the existence of aggravating or
  mitigating factors.

       Respondent here violated the duty owed to the legal system.
  Respondent's actions were purposeful and not the result of mistake. Actual
  injury was caused in that the opposing party had to resort to additional
  legal process in order to perfect title.

       Such circumstances would normally require this Board to recommend to
  the Supreme Court that a public sanction be imposed. However, several
  mitigating factors are presented here including the absence of a prior
  disciplinary record, the absence of a selfish motive, and the remoteness of
  the offense. Additionally, bar counsel's recommendation that a sanction no
  greater than a private admonition be imposed is a recommendation which
  carries great weight with the Board in this case.

       Accordingly, the Board has voted to issue a private admonition to
  Respondent with the specific warning that the Board considers such conduct
  a serious violation which may be sanctioned more severely in the future.

       Dated at Montpelier this 12th day of October, 1990.

                                     PROFESSIONAL CONDUCT BOARD

                                        /s/
                                   _____________________________
                                   J. Eric Anderson, Esq., Chair



     /s/                                /s/
_____________________________      _____________________________
Anne K. Batten                     Joseph F. Cahill, Jr., Esq.

     /s/                                /s/
_____________________________      _____________________________
Christopher L. Davis, Esq.         Hamilton Davis

     /s/                                /s/
_____________________________      _____________________________
Deborah S. McCoy, Esq.             Donald Marsh

     /s/                                /s/
_____________________________      ______________________________
Karen Miller, Esq.                 Joel W. Page, Esq.

     /s/                                /s/
_____________________________      ______________________________
Edith Patenaude                    Edward Zuccaro, Esq