In re Lane (2008-153)
2008 VT 73
[Filed 08-May-2008]
ENTRY ORDER
2008 VT 73
SUPREME COURT DOCKET
NO. 2008-153
MAY TERM, 2008
In
re Frederick S. Lane, III
}
APPEALED FROM:
}
}
} Professional
Responsibility Board
}
}
}
DOCKET NO. 2008-120
}
¶ 1. The Professional Responsibility Board's recommendation that petitioner be reinstated as a member of the Vermont Bar is accepted. Within thirty days of readmission, petitioner must file an affidavit evincing compliance with Section 8 of the M.C.L.E.
BY
THE COURT:
______________________________
Paul
L. Reiber, Chief Justice
______________________________
John
A. Dooley, Associate Justice
______________________________
Denise
R. Johnson, Associate Justice
______________________________
Marilyn
S. Skoglund, Associate Justice
______________________________
Brian
L. Burgess, Associate Justice
108 PRB
[Filed 17-Apr-2008]
STATE OF
PROFESSIONAL
RESPONSIBILITY BOARD
In re:
PRB File No.
2008.120
Decision
No. 108
Petitioner filed a Motion for Reinstatement on January 15, 2008. The matter was heard before a Hearing Panel of Richard Wadhams, Esq., Chair, Keith Kasper and Samuel Hand on March 19, 2008. Petitioner was present with his counsel, Joseph E. McNeil, as was Disciplinary Counsel, Michael Kennedy. Disciplinary Counsel took no position with respect to the reinstatement, leaving the petitioner to his proof. The Hearing Panel finds that Petitioner has proved by clear and convincing evidence that he has met the requirements of Administrative Order 9 Rule 22D and recommends to the Supreme Court that Petitioner be reinstated with one condition outlined below.
Disbarment
Petitioner
was disbarred by order of the Supreme Court dated October 9, 2002. The facts leading to the
disbarment are as
follows: Petitioner was serving as Treasurer of the Chittenden County
Democratic Party and was responsible for maintaining the party's
savings
account. During the period of July 2001 through March of 2002
Petitioner
removed funds from the account and used them for his personal expenses.
Petitioner
repaid the money and self- reported the violation of the Vermont Rules
of
Professional Conduct. He
filed an
affidavit of resignation with the Supreme Court, admitting the facts
and was
disbarred without hearing. More than five years has elapsed since the
disbarment and Petitioner is eligible to move for reinstatement. A.O. 9 Rule 22A.
Standard for Reinstatement
A.O.9
Rule 22D provides that in a reinstatement proceeding the petitioner ".
. .
shall have the burden of
demonstrating by clear and
convincing evidence that he or she has the moral qualifications,
competency,
and learning required for admission to practice law in the state, and
the
resumption of the practice of law will be neither detrimental to the
integrity
and standing of the bar or the administration of justice nor subversive
of the
public interest and that the respondent-attorney has been
rehabilitated." The
Hearing Panel considered each of these
elements as it evaluated the testimony of Petitioner's witnesses. Disciplinary Counsel
presented no witnesses.
The two most important in this matter
are whether Lane has the competence and learning to return to practice,
and
whether he has been rehabilitated. We will discuss those first.
Competency
and Learning
Prior to the disbarment Lane had developed
an interest writing and lecturing on issues relating to computers and
the
law. In 1996, after
the passage of the
Internet Decency Act, he put together a book proposal which was
accepted. He spent
two years writing the book, Obscene Profits,
which was published in
2000. He has since written two other books, The
Naked Employee, published in 2003, which deals with employer
surveillance
of employee's computer use, and The
Decency Wars published in 2006 the idea for which was sparked
by the FCC's
reaction to perceived indecency during the Super Bowl entertainment in
2004. He has
recently had a book
proposal accepted for The Court and the
Cross which will focus on the religious right and the legal
system.
In order to assist with the research
for his books, Lane subscribes to Loislaw, a case law database similar
to
Westlaw. He
especially reads cases from
the U.S. District courts on issues relating to first amendment rights
and
technology issues.
During the past several years, Lane
has written regularly for Newsfactor.com, a website relating to
technical
computer issues. He
typically writes two
short articles per day and is paid by the article.
He chooses his own subject matter and tends
to write about legal issues relating to computers.
He is presently on leave from this job to
write his next book, but could return at any time.
The publication of the books has led
to seminar
presentations for lawyers, which Lane is now doing on a regular basis. This in turn has led to
requests to act as an
expert consultant. Attorney James Murdoch testified about his use of
Lane's
services as a consultant. Murdoch, who works as a family and criminal
attorney,
has known Lane since the mid-1990s when they worked together on a case
involving computer privilege. In
recent
years he has associated with Lane several times as a computer expert on
issues
of privacy and First Amendment rights in cases involving employee
embezzlement
and computer pornography. He
has found
Lane to be always up to date on the technical as well as the legal
aspects, and
that he is an articulate expert witness. Murdoch believes that there is
no
doubt that Lane has stayed current with the law relating to the First
Amendment
and free speech. He
characterized Lane
as an "extra-ordinary one man band of competence."
Murdoch told the Panel that he had
been contacted by the
State's Attorney in
Through a seminar presentation on
computers and federal and
state obscenity law, Lane came to the attention of Attorney Lisa
Shelkrot. She is a
litigator and approximately 30 to 50
percent of her practice involves criminal defense.
She thought Lane a thoughtful and
knowledgeable presenter at the seminar and has engaged him to assist
her with
the legal and technical issues in the defense of two criminal cases. In one case, Lane was
helpful in developing a
motion strategy based on the legal issues which led to a good plea
agreement. In the
other case, Lane was
able to discard some defenses and to identify other available defenses. She believes that he has
enormous competency
and currency in these types of issues, "probably one of the best in the
country." For her
his greatest
value was the fact that he understood the technical and the legal
issues and
that he was able to thoughtfully analyze all aspects of her cases in
light of
the current state of the law.
The other specialized area of the law
with which Lane has
remained current has been that relating to his work on the school board
which
we will cover in more detail in our discussion of his rehabilitation.
While we believe that Lane has the
necessary competency and
learning to return to the practice of law, we believe that he should
meet the
minimum standards required of any lawyer returning to practice after a
period
of more that three years of inactivity.
Section 8 of the Mandatory Continuing Legal Education
Rules provides
that any attorney retuning to practice must submit an affidavit showing
completion of 20 hours of accredited continuing legal education within
two
years of the date of readmission.
We
believe that Lane should meet this requirement, and thus as a condition
of this
recommendation we require that within 30 days of readmission Lane shall
complete any necessary continuing legal education needed and submit the
required affidavit to the M.C.L.E. Board with a copy to Disciplinary
Counsel.
Rehabilitation
Whether Lane has been rehabilitated
is an issue of concern. His
disbarment
was as a result of using money belonging to others for his personal
used. Even though
Lane testified that he has no
present intention of returning to practice, we are not in a position to
put
long term restrictions on his license, and thus have to be satisfied
that
should he decide to return to practice at some time in the future, that
client
monies would not be at risk.
In
order to assess this element of the rule, it
is helpful to look at Lane's personal and professional situation at the
time of
the disbarment and to compare it to the present date. Lane had
separated from
his wife in May of 2001. The
misuse of
funds began shortly thereafter. It
was a
period of emotional and financial stress for Lane. His first book had
been
published but was not bringing in money, and he had not yet developed
the
lecture and computer forensics business that he now has. Lane was clear that he
believed that these
factors led to the misconduct, but that he still made the decision to
use the
money and is responsible for the consequences.
Lane's misuse of funds was a very
public matter in
The professional toll for Lane is
two-fold. He has
not been able to
practice law, or to hold himself out as an attorney when soliciting his
legal
consulting business, and he has had to explain the circumstances to
each person
with whom he works.
The most compelling testimony about
Lane's rehabilitation came from the evidence concerning his work on the
Burlington
Paul Hale, the present Chair of the
School Board testified that when he was elected to the Board, Lane was
already
a member and that Lane helped him to understand the complex issues
before the
Board. When Hale
became Chair, he
appointed Lane to head the Finance Committee.
He believes that the committee under Lane's guidance has
done an
outstanding job. Lane has worked on complex financial situations to
obtain a
new track for the high school and to do work on old school buildings.
Jeanne Collins, the Superintendent of
the Burlington
Schools, also testified about the value of Lane's work on the Board and
especially as chair of the Finance Committee.
Lane has been a public face for the Board, attending
Neighborhood
Planning Assemblies and presenting to the city council. For the last
two years
he has attended the National School Board Association meetings and has
taken 10-12
hours of legal seminars prior to the meetings.
In his testimony Lane outlined the
steps that he has taken which he believes have led to his
rehabilitation. He
believes that he knows himself a lot
better now. He has
been working with a
therapist. The
therapist no longer
believes that he needs treatment and will not bill Lane's insurance
carrier,
but Lane still sees him and intends to continue to do so in the future
as a
means of support.
His staying in the South End of
Burlington instead of moving has been difficult, but has enabled him to
face up
to his situation and to persuade his neighbors by his actions that he
is again
worthy of respect. The
fact that he
continues to be elected to the School Board leads us to conclude that
he has
regained this respect.
His financial situation is much
better now than it was in 2000. In addition to his books, he has steady
work
now as a consultant and as a seminar presenter.
He has taken a leave from Newsfactor.com to write his
newest book, but
he is certain that should the need for money arise that they would
reengage
him.
He is seeking readmission not because
he has a present intention of returning to the practice of law, but for
personal reasons he does not want to end his legal career in the way
that he
did. He wants to
restore that part of
his life. Also, he
believes that having
the credential of bar admission would be beneficial in the work he is
presently
doing.
Amy Werbel, his domestic partner,
testified at some length
about his success in putting his personal life back together. He is now divorced, as is
Werbel. They each
have two boys and have worked hard to make a successful blended family.
Werbel
testified that Lane has made tremendous changes in his life, but that
even at
the worst times he was an excellent father, a productive member of the
school
board, a good writer and a loving companion to her.
He has told the boys about his difficulties
and has encouraged them to be honest and to reach out for help.
We now return to our initial concern
about the risk to
client money if Lane should resume law office practice.
There was nothing in any of the evidence to
suggest that he would allow himself to get into this type of situation
again. He appears
to be in a much improved personal
and financial situation with a good support system and better awareness
of
himself. He
acknowledged to the Panel
that this might be a concern, but he had no present intention of
returning to
practice, and if he did so, it would not be as a solo practitioner, but
rather
in association with other lawyers.
While
this is no guarantee, it is additional assurance to the Panel that
client
monies would not be at risk.
Moral
Qualifications, and Questions relating to the Integrity and Standing of
the Bar
and Whether Readmission will be Subversive to the Public Interest
Lane presented himself as a person who
has faced his
shortcomings, learned from them, and is no longer letting them define
him. He
appears to have gained not just the trust and confidence of those he
works and
interacts with, but their admiration as well.
The
witnesses, both attorneys and non-attorneys were unanimous in their
enthusiasm
about Lane's moral qualifications to practice law, and all believe that
the way
that he has handled himself since the disbarment is a credit to him and
will in
no way damage the profession or subvert the public interest. Paul Hale testified that
every process Lane
went through with the Board and the Finance Committee showed integrity,
and
that his
readmission
would not be subversive to the public interest.
Jeanne Collins testified as well that there is no question
in her mind
about Lane's integrity, that his readmission would have no negative
effect on
the standing of the bar and that he is a good candidate to return to
the
bar.
Petitioner also submitted the
testimony of Mary Sullivan by way of affidavit.
She knows Lane, Werbel and their children on a personal
basis and knows
of his work on the School Board. She
too
believes that Lane should be readmitted to the bar.
Conclusions
of
Law
The Panel finds by clear and
convincing evidence that Lane
has met the requirements for readmission set forth in Rule 22D of A.O.9. He has the moral
qualifications, the
necessary competency and learning and his return to the practice of law
will be
neither detrimental to the integrity and standing of the bar or the
administration of justice nor subversive of the public interest. We also find that Lane has
been
rehabilitated.
In assessing the issue of
rehabilitation the Panel in both In re
Lichtenberg, PRB Decision No. 1
(December 1990) approved by Supreme Court Entry Order, Docket No.
99-533,
(January 2000), and In re Blais, PRB
Decision No. 58, (October 2003), approved by Supreme Court Entry Order,
Docket
No. 2004-010, (October 2003), considered the underlying
causes of the disbarment or suspension in
connection with its determination of the attorney's rehabilitation. During the period when
Lane used the funds of
the Democratic Committee, he was under great emotional and financial
stress. He was
recently separated from
his wife and had none of the support systems that he now has in place. He is now financially much
more stable and
has a back-up employment plan if at some time his writing, consulting
and seminar
work is insufficient. He
has worked with
a therapist and plans to continue to do so, and is in a stable and
loving
family relationship. Lane
clearly knows
himself better than he did eight years ago and understands the value to
him of
these types of support systems. We
do
not believe that, given the changes he has made in his life in this
period,
that he would again find himself in the situation that led to his
disbarment.
In Blais
and also
in In re Illuzzi, PCB Decision No.
128 (May 1998), approved by Supreme Court Entry Order, Docket No.
98-191, (July
1998), the Panels
were concerned about
whether the attorney's attitude toward the practice of law had changed
during
the time of the suspension or disbarment.
In the present case it is not so much the fact that Lane's
attitude has
changed, but that he has a new appreciation of both the personal and
professional value to him of his license to practice law and of his
role as an
attorney. At the
time of his disbarment,
his chosen career path of writer and computer forensic expert was just
in the
beginning stages. He
now knows more
fully that his passion is writing and that his area of compelling
interest is
the intersection of technology and the First Amendment.
He has clearly worked hard to develop
substantial expertise in this area of the law, and his services are of
value to
other lawyers. He
wants the credential
of being a member of the bar, and he wants the restored dignity that
would
provide. We do not
believe that he would
jeopardize this again.
Recommendation
Based upon the foregoing the Panel
recommends that Frederick S. Lane III be reinstated to the practice of
law in
the State of
Date APRIL
17, 2008
Hearing
Panel No. 7
FILED APRIL 17, 2008
/s/
_____________________
Richard
Wadhams, Jr. Esq.
/s/
Keith
Kasper, Esq.
/s/
__________________________
Samuel
Hand