In re Bailey

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P.
40 as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 90-543


In re Thomas B. Bailey, Esq. }               Supreme Court
                             }
                             }
                             }               Original Jurisdiction
                             }
                             }
                             }               September Term, 1991



Wendy S. Collins, Bar Counsel, Montpelier, for plaintiff-appellee

Paul D. Jarvis of Jarvis & Kaplan, Burlington, for defendant-appellant


PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


     PER CURIAM.   In November, 1989, respondent was notified by the
Professional Conduct Board of a complaint against him for withholding money
owed to an insurance company for several years, and for issuing from his
attorney trust account a check that bounced.  After months of prompting
from the Board to resolve the complaint and the receipt of another complaint
of a bounced check from the trust account, respondent admitted he had
commingled personal and client funds in the account.  He also repeatedly
refused to allow the Board's bar counsel to inspect his records.
    In July, 1990, respondent was charged with professional misconduct for
noncooperation with the Board's investigation.  A.O. 9, Rule 6D; DR1-
102(A)(5) (engaging in conduct prejudicial to administration of justice).  A
timely answer was not forthcoming, and respondent defaulted.  He did, how-
ever, present evidence to mitigate his misconduct to the Board.
     At a sanction hearing before the Board, respondent explained that he
had become dysfunctional due to depression and illness, but would begin to
cooperate with the investigation of his handling of client funds.
     On November 26, 1990, the Board reported to this Court, recommending:
          The sanction of a public reprimand be imposed for
          Respondent's failure to cooperate in violation of DR 1-
          102(A)(5) and Rule 6D of A.O.9, and further that
          Respondent be placed on probation for six (6) months
          under Rule 19 with the following conditions: (1) that he
          not engage in the practice of law until he produces
          appropriate documentation providing clear and convincing
          evidence that he is fit to practice law; (2) that he
          forthwith produce all materials requested by Bar
          Counsel; and (3) that he submit to independent, appro-
          priate medical examination at his own expense upon
          request of Bar Counsel.

Respondent appealed.
      Bar counsel requests that we suspend respondent until he cooperates
with the investigation and demonstrates to the Board his fitness to practice
law.  She emphasizes that the record before us discloses that the status of
respondent's attorney trust account is still in doubt and that respondent
has not provided sufficient information to permit the Board to assess the
integrity of that account and respondent's use of it.
     On appeal, respondent asserts that he is presently fit to practice law
because of his twice weekly participation in counseling sessions since early
1990, and the implementation of certain measures to assure that his client
trust account is properly used.  There is no support for these assertions
in the record before us.  Yet respondent urges us to allow him to continue
practicing law.
     A central problem with respondent's position is his unwillingness or
inability to disclose fully to the Board the history of transactions in his
client trust account and to allow the Board to assess the integrity of the
account and his ability to handle his financial responsibilities in the
future.  We have no assurance that respondent is presently fit to continue
to practice law.
     The Board's probation approach is in our opinion inadvisable for
several reasons.  First, if respondent does not cooperate with the Board,
and the known status of his practice is the same in six months as it is
today, respondent's right to practice law could resume without the Board
being able to assess his fitness to practice.  We realize probation may be
renewed upon notice and hearing, A.O. 9, Rule 19A, but we believe the burden
to demonstrate fitness to practice law, given this record, should be on
respondent.
     Second, probation should be imposed only when "there is little
likelihood that the respondent will harm the public during the period of
probation and the conditions of probation can be adequately supervised."
A.O. 9, Rule 19A.  This record does not support either finding, because
respondent has not demonstrated that his accounting system adequately
protects client funds or that he can be adequately supervised given his
past failure to cooperate with the Board.
     Respondent is suspended from the practice of law until he complies with
A.O. 9, Rule 20B (practice may be resumed upon proof of compliance with
requirements of suspension order).  For purposes of A.O. 9, this suspension
shall be considered one "less than six months."  Rule 20B.  The requirements
of this suspension order are as follows:
          (1)  Respondent shall provide the Board with sufficient
          evidence of the history of his attorney trust account
          since January 1, 1986, to satisfy it that the integrity
          of the account, including the procedures and safeguards
          used to protect client funds, is sufficiently secure to
          justify respondent's continued practice of law.
          (2)  Respondent shall provide the Board with sufficient
          medical evidence to satisfy it that he is physically and
          mentally able to practice law.
    Respondent is advised he must comply with A.O. 9, Rule 21.



                                   BY THE COURT:


                                   ______________________________________
                                   Frederic W. Allen, Chief Justice

                                   _______________________________________
                                   Ernest W. Gibson III, Associate Justice

                                   _______________________________________
                                   John A. Dooley, Associate Justice

                                   ______________________________________
                                   James L. Morse, Associate Justice

                                   ______________________________________
                                   Denise R. Johnson, Associate Justice