74 PRB

[28-Mar-2005]


                              STATE OF VERMONT
                      PROFESSIONAL RESPONSIBILITY BOARD

                               Decision No. 74


  In Re:     PRB File No. 2005.117

       On February 23, 2005, the parties filed a stipulation of facts as well
  as joint recommendations on sanctions and conclusions of law.  Respondent
  also waived certain procedural rights including the right to an evidentiary
  hearing. The Hearing Panel accepts the facts and recommendations and orders
  that Respondent be admonished by Disciplinary Counsel for threatening
  criminal prosecution to gain advantage in a civil matter in violation of
  Rule 4.5 of the Vermont Rules of Professional Conduct.

  Facts

       Respondent is an attorney licensed to practice law in the State of
  Vermont.  He was admitted to practice in Vermont in 1987.

       Respondent represented clients in a civil matter involving a dispute
  with a landscaper. In correspondence with the landscaper's attorney dated
  December 6, 2004, Respondent stated:

       My clients are not prepared to accept as settlement anything
       less than Five Thousand  Dollars ($5000.00).  Payment thereof
       is demanded within fifteen (15) days of the date of this
       letter.  If payment is not forthcoming, I have been
       instructed to {sic} by my client's {sic} to pursue
       appropriate legal action to recover the damages arising from
       [name of client]'s actions.  I shall likewise refer this
       matter to the [County] State's Attorney for review.

       Upon receiving the letter, the landscaper's attorney called
  Respondent.  He told him that the letter violated Rule 4.5 of the Vermont
  Rules of Professional Conduct and asked Respondent to self-report the
  violation.  On December 9, Respondent wrote to opposing counsel withdrawing
  his letter of December 6, and on the following day he reported the matter
  to the Disciplinary system. Respondent did not report the matter to the
  police.

       Respondent has no disciplinary history and made a timely effort to
  rectify his misconduct.  He made a full and free disclosure of his
  misconduct to Disciplinary Counsel and has cooperated with the subsequent
  proceedings.

  Conclusion of Law

       Rule 4.5 of the Vermont Rules of Professional Conduct provides that
  "[a] lawyer shall not present, participate in presenting, or threaten to
  present criminal charges in order to obtain an advantage in a civil
  matter."  The Comment to the rule sets for the important rationale for this
  prohibition: The civil adjudicative process is primarily designed for the
  settlement of disputes between parties, while the criminal process is
  designed for the protection of society as a whole.  Threatening to use, or
  using, the criminal process to coerce adjustment of private civil claims or
  controversies is a subversion of that process; further, the person against
  whom the criminal process is so misused may be deterred from asserting the
  person's legal rights, and thus the usefulness of the civil process in
  settling private disputes is impaired.  As in all cases of abuse of
  judicial process, the improper use of criminal process tends to diminish
  public confidence in our legal system.

       Respondent's actions fall squarely within the prohibition of the rule,
  a fact which Respondent understood as soon as it was pointed out to him,
  and we find a violation of the rule. Sanction
   
       Admonition by disciplinary counsel is appropriate in this case.  There
  is no evidence that Respondent's conduct caused injury either to his client
  or the opposing party, since the threat was not carried out, and the letter
  was withdrawn within a few days.  The fact that Respondent reported the
  violation and that he has no prior disciplinary record leads us to believe
  that it is unlikely that the misconduct will be repeated.  While a
  violation of this rule has the potential for serious consequences in some
  cases, no such circumstances exist in this case, and we conclude that the
  violation is minor and thus within the bounds of A.O. 9, Rule 8(A)(5). 

  Order

       Based upon the foregoing, the Hearing Panel orders that Respondent be
  Admonished by Disciplinary Counsel for violation of Rule 4.5 of the Vermont
  Rules of Professional Conduct. 


  Dated March 28, 2005           

  Hearing Panel No. 8

  /s/
  _________________________________     
  Eileen Blackwood, Esq., Chair

  /s/
  __________________________________
  Peter Bluhm, Esq.

  /s/
  __________________________________
  Tim Volk

  FILED MARCH 28, 2005