81 PRB

[File 22-Nov-2005]


                              STATE OF VERMONT
                      PROFESSIONAL RESPONSIBILITY BOARD


  In re:     PRB File No 2005.202


                               Decision No. 81

       Respondent missed a child support hearing due to a calendaring error
  and is charged with failure to represent her client with "reasonable
  diligence and promptness" in violation of Rule 1.3 of the Vermont Rules of
  Professional Conduct.  The  parties filed stipulated facts and recommended
  conclusions of law.  Respondent also waived certain procedural rights
  including the right to an evidentiary hearing.  The Hearing Panel accepts
  the stipulated facts, but declines to find a violation on the facts
  presented and the case is dismissed. 

                                    Facts
   
       In October of 2004 Respondent was retained to represent the
  complainant in a divorce action. Following a contested hearing in mid-
  December, custody was awarded to the husband.  On January 4, 2005, the
  court sent out a notice of child support hearing set for January 19, 2005. 
  Respondent received notice of the hearing but failed to enter the date on
  her calendar and failed to notify complainant.  In the stipulated facts
  this failure was attributed to a "calendaring error."  A few days before
  the hearing, the complainant was speaking with her husband about another
  matter and the issue of the hearing came up in conversation.  This was the
  first knowledge complainant had of the hearing. Complainant tried to reach
  Respondent, but she was unavailable.  On January 18 complainant called the
  court and learned that the hearing was set for the next day.  She informed
  the court clerk that she was firing her attorney and planned to hire a new
  one.  Complainant attended the hearing and requested a continuance to
  permit her to obtain new counsel.  The continuance was granted. There was
  no prejudice or injury to the complainant's case as a result of
  Respondent's oversight, though the complainant was stressed and
  inconvenienced by her attorney's oversight.

       Respondent was admitted to practice in Vermont in 1992.  She has no
  disciplinary record and no dishonest or selfish motive.  She made a full
  and free disclosure to Disciplinary Counsel and has expressed remorse for
  her actions.

                             Conclusions  of Law

       Rule 1.3 of the Vermont Rules of Professional Conduct requires that
  "[a] lawyer shall act with reasonable diligence and promptness in
  representing a client."  The definitions in the preamble to the Rules state
  that reasonable "when used in relation to conduct by a lawyer denotes the
  conduct of a reasonably prudent and competent lawyer."  The standard of
  proof for charges of misconduct is "clear and convincing evidence." A.O.9
  Rule 16(C). Thus, we are asked to find by clear and convincing evidence
  that a single instance of a missed court date due to a calendaring error is
  misconduct. To do so would result in bringing all instances of an
  attorney's inadvertence or negligence within the realm of misconduct. We do
  not believe that the Rule is this broad and far reaching. Attorneys are
  held to a high standard of conduct, but absent injury or other factors a
  single instance of mistake does not show a lack of "reasonable diligence or
  promptness" (emphasis added).
   
       The misconduct in  In re Furlan, PRB Decision No 65 (May 3, 2004),
  began in much the same way we find here. The attorney did not attend two
  court hearings due to a heavy case load and poor office practices.  In each
  instance the client's case was dismissed. It is what happened after the
  missed court dates that changes Furlan from a case of poor office practices
  to one of misconduct.  Upon receipt of the notices of dismissal, Furlan
  took no action for his clients.  In the present case the attorney missed
  the court date, but no further action was required since the client had
  attended the hearing, received a continuance and obtained new counsel. This
  standing alone is not misconduct.

                                    Order

       For the foregoing reasons, the complaint is hereby DISMISSED and the
  Hearing Panel recommends that this matter be referred to an Assistance
  Panel.



  Dated NOVEMBER 22, 2005               


  Hearing Panel No. 5
  
  /s/
  ___________________________
  Mark Sperry, Esq.               

  /s/
  ___________________________
  Jane Woodruff, Esq.

  /s/
  ___________________________ 
  Sara Gear Boyd