In re Illuzzi
Annotate this Case
In re Illuzzi (98-191); 168 Vt. 600; 723 A.2d 315
[Filed 28-Jul-1998]
ENTRY ORDER
SUPREME COURT DOCKET NO. 98-191
JUNE TERM, 1998
In re Vincent Illuzzi } ORIGINAL JURISDICTION
}
}
} Professional Conduct Board
}
}
} DOCKET NO. 94.41
In the above-entitled cause, the Clerk will enter:
The Professional Conduct Board's recommendation that petitioner be
reinstated to the practice of law is accepted. Petitioner is reinstated as
of the date of this order.
BY THE COURT:
_______________________________________
Jeffrey L. Amestoy, Chief Justice
_______________________________________
John A. Dooley, Associate Justice
_______________________________________
James L. Morse, Associate Justice
_______________________________________
Denise R. Johnson, Associate Justice
_______________________________________
Marilyn S. Skoglund, Associate Justice
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128.PCB
[5-May-1998]
STATE OF VERMONT
PROFESSIONAL CONDUCT BOARD
In Re: Vincent Illuzzi, Respondent
PCB Docket Nos. 89.47R and 94.41R
DECISION NO. 128
This case involves a Motion for Reinstatement filed by the above-named
Respondent. A Hearing Panel consisting of Paul Ferber, Esq., Chair;
Robert O'Neill, Esq. and Rosalyn Hunneman was appointed by the Board to
hear the evidence in this case. The Hearing Panel's Findings of Fact and
Recommendation, dated April 21, 1998, a copy of which is attached hereto,
was reviewed by the Board at its May 1, 1998 meeting.
A. Case History
The history of this case is as follows:
(1) Petitioner, Vincent Illuzzi, was admitted to the Vermont bar in
1979.
(2) In PCB File No. 89.47, Petitioner was suspended from the practice
of law for six months, effective September 1, 1993, by decision of the
Vermont Supreme Court, dated July 30, 1993. Petitioner also was required
to take and pass the Multi-State Professional Responsibility Examination,
which he did.
(3) Petitioner filed a Motion for Reinstatement from that suspension.
After four days of hearings, the Hearing Panel found that Petitioner
failed to establish, by clear and convincing evidence, that he should be
reinstated under A.O. 9, Rule 20(D) and recommended against reinstatement.
The Professional Conduct Board adopted that recommendation. Petitioner
withdrew his Motion for Reinstatement before a decision by the Supreme
Court.
(4) In PCB File No.94.41, Petitioner received a further eighteen
month suspension from the Supreme Court, effective August 1, 1996.
(5) That eighteen month period ended February 1, 1998. Petitioner
has again filed a motion seeking reinstatement.
(6) Petitioner has not practiced law since September 1, 1993, nor has
he worked as a law clerk from that date to the present.
B. Conclusions & Recommendation
Based upon the evidence presented to the Hearing Panel, and our
agreement with their conclusions, we find by clear and convincing
evidence, that as to the elements required for reinstatement, under A.O.9,
Rule 20(D):
1. Petitioner has the moral qualifications required for admission to
practice law;
2. Petitioner has the competency required for admission to practice
law;
3. Petitioner has the learning required for admission to practice
law; and
4. Petitioner's resumption of the practice of law will not be
detrimental to the integrity of or standing of the bar, nor detrimental to
the administration of justice, nor subversive of the public interest.
5. Petitioner has been rehabilitated.
The Professional Conduct Board recommends to the Vermont Supreme Court
that Vincent Illuzzi be reinstated to practice law in the state of
Vermont. Dated at Montpelier, Vermont this 5th day of May, 1998.
PROFESSIONAL CONDUCT BOARD*
BY:
Robert P. Keiner
____________________________
Robert P. Keiner, Esq. Chair
*Members Cahill, Hunneman, Porter, Stokes and Woodruff did not
participate in this decision.
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STATE OF VERMONT
PROFESSIONAL CONDUCT BOARD
In re: Vincent Illuzzi, Petitioner
PCB Docket Nos. 89.47 and 94.41
HEARING PANEL'S FINDINGS OF FACT
AND RECOMMENDATION
On Thursday, March 19, 1998, a hearing was held on a Motion for
Reinstatement by Petitioner, Vincent Illuzzi, before a Panel of the
Professional Conduct Board composed of Paul S. Ferber, Esq., Rosalyn
Hunneman and Robert F. O'Neill, Esq. Petitioner was represented by David
Putter, Esq., and himself. The Bar was represented by Bar Counsel, Shelley
A. Hill, Esq.. The following are the Hearing Panel's findings of fact and
recommendation based on the testimony, exhibits, and balance of the record
of the proceedings in PCB Docket Nos. 89.47 and 94.41.
GENERAL FINDINGS OF FACT
1. Petitioner, Vincent Illuzzi, was admitted to the Vermont bar in
1979.
2. In PCB File No. 89.47, Petitioner was suspended from the practice
of law for six months, effective September 1, 1993, by decision of the
Vermont Supreme Court, dated July 30, 1993. Petitioner also was required
to take and pass the Multi-state Professional Responsibility Examination,
which he did.
3. Petitioner filed a motion for reinstatement from that suspension.
After four days of hearings, the Hearing Panel found that Petitioner
failed to establish, by clear and convincing evidence, that he should be
reinstated under A.O. 9, Rule 20(D) and recommended against reinstatement.
The Professional Conduct Board adopted that recommendation. Petitioner
withdrew his motion for reinstatement before a decision by the Supreme
Court.
4. In PCB File No. 94.41, Petitioner received a further eighteen month
suspension from the Supreme Court, effective from August 1, 1996.
5. That eighteen month period ended on February 1, 1998. Petitioner
has again filed a motion seeking reinstatement.
6. Petitioner has not practiced law since September 1, 1993, nor has
he worked as a law clerk from that date to the present.
7. Petitioner has been a member of the Vermont Senate for a period of
18 years.
FINDINGS OF FACT REGARDING THE ELEMENTS OF Rule 20(D)
Administrative Order 9, section 20(D) provides that in order to be
reinstated following a suspension, Petitioner must prove, by clear and
convincing evidence, that:
(a) he has the moral qualifications required for admission to practice
law;
(b) he has the competency required for admission to practice law;
(c) he has the learning required for admission to practice law;
(d) the resumption of the practice of law will not be detrimental to
the integrity of the bar;
(e) his resumption of the practice of law will not be detrimental to
the standing of the bar;
(f) his resumption of the practice of law will not be detrimental to
the administration of justice;
(g) his resumption of the practice of law will not be subversive of
the public interest; and
(h) he has been rehabilitated. Administrative Order 9, Rule 20(D).
The following is a summary of the evidence regarding each element and
our findings with respect to each. We address rehabilitation first because
we view it as the core of the case for reinstatement.
(h) Whether Petitioner has been rehabilitated.
1. Judge Edward Cashman has been a Vermont District Court judge for 16
years. He has also served as an assistant attorney general, Grand Isle
state's attorney, Chittenden County court clerk, and commissioner of the
Department of Public Service. Judge Cashman has known Petitioner since
1978. Petitioner appeared before him as a lawyer representing parties in
both criminal and civil actions. He has also dealt with Petitioner in the
latter's capacity as a state senator, working on legislative issues
impacting on and involving the judicial branch of government.
Judge Cashman testified that in the past, Petitioner was "immature and
impatient." Today, he is mature, has mellowed and understands that he has
too much to offer and too much at stake to "cut comers." Petitioner has
became the foremost legislative spokesperson for the commissioner of the
Department of Corrections, a former adversary, in supporting restorative
justice legislation. Petitioner's change in attitude about the
commissioner of corrections reflects a positive change. It reflects an
abandonment by Petitioner of a "friend or foe" mentality.
The philosophy underlying the "restorative justice" legislation is
that the offender takes responsibility for the behavior that caused harm
to the victim and to the community. It is a "let's solve the problem"
rather than a "punishment and retribution" response to a criminal act.
Petitioner's active support of this approach reflects an abandonment by
Petitioner of the "win at any cost" mentality.
Since the restorative justice legislation runs contrary to the public
demands for a tougher response to crime, Petitioner has no incentive to
promote it, other than a personal belief that he thinks it is a better
policy for the state. Petitioner's actions show a change: "he has moved
from a mentality of vindictiveness and not caring about the means, to a
person who advocates for resolution, looks to solve problems, is not
vindictive."
Petitioner's reputation in the community since the suspension has
changed from being perceived as "very result oriented" and believing that
the "ends justify the means" to treating people "fairly".
2. Robert Gensberg has been an attorney practicing law in St.
Johnsbury since 1967. He has been a State's Attorney, has served in a
range of state government agencies, has been a member of the Professional
Conduct Board, has been Special Bar Counsel and counsel for the Judicial
Conduct Board. In the latter position, he investigated the three
complaints made by Petitioner against Judge Suntag which resulted in
Petitioner's second suspension.
Mr. Gensberg had interviewed Petitioner several years ago in
connection with Mr. Gensberg's investigation of the complaints filed
against Judge Suntag. He also spent about 1 « hours talking with
Petitioner shortly before the current hearing. He testified that
Petitioner has become "less defensive" and "more realistic" about the
matters that led to his suspension. Petitioner truly seems to understand
and accept that he should not have filed the complaints against Judge
Suntag.
3. Stephen Webster has been in practice since 1970. He served as
State's Attorney for six years and has been in private practice in Orange
County since then. He served in both the House and Senate beginning in
1983.
Mr. Webster testified that since 1993, Petitioner has not been as
"cocky." He testified that "I think this -- these proceedings have really
devastated him. I -- think humble is probably a word that applies to some
degree."
When the late Senator John Bloomer of Rutland died in January, 1995,
Petitioner and Mr. Webster were candidates to fill the leadership vacancy
of "president pro tem" of the Vermont Senate. Although winning the contest
meant a great deal to Petitioner, Petitioner lost the race in the
Republican Senate Caucus. Although Petitioner could have gone outside the
Republican Caucus and sought the position from the full 30-member Senate,
he did not do so, despite a likelihood that doing so would have allowed him
to win the election. Petitioner showed no resentment at losing the
election, even though winning the election would have meant a great deal
to Petitioner. Thereafter, Petitioner was "supportive" of Mr. Webster as
president pro tem of the Senate.
Even though Petitioner was at odds with Mr. Webster on issues and
votes, "as time progressed, I never sensed we couldn't talk about issues."
Petitioner "never held [disagreeing] votes" against him
4. David Kelley is an attorney who has been practicing in the
Northeast Kingdom since several months prior to Petitioner's initial
suspension in 1993. He took over many of Petitioner's cases at that time,
and has been a good friend of Petitioner's for many years. Based on his
personal experiences with Petitioner over many years (including having
helped him study to take the Multi-state Professional Responsibility
examination), and as a lawyer practicing in the Northeast Kingdom.
Mr. Kelley testified that as time passed after the initial suspension,
Petitioner abandoned the "friend or foe" and "win at any cost" mentality
which had characterized him previously. He has "changed radically" because
of the hardship, failure and difficult times during his suspension.
Petitioner is "less arrogant" and has become a very humane person.
In dealing with opponents, Petitioner's attitude used to be one of "do
it my way or the highway." Today, Petitioner is a person who "makes things
work," who "communicates" and who "solves problems." Petitioner has become
a "force for compromise and conciliation."
5. Robert Appel has been Vermont's Defender General since March 1,
1993. In that capacity, he heads a statewide law practice. He has been
admitted to the Vermont Bar since 1984. He has worked as an assistant
attorney general, public defender in St. Johnsbury and deputy defender
general. Mr. Appel acts as an unofficial adjunct to the Legislative
Council on legal issues of interest to the Defender General's office.
Mr. Appel has had substantial contact with Petitioner as a member of
the Senate Judiciary Committee, the Senate Institutions Committee, and a
committee investigating the death of a corrections in-mate in St. Albans.
Defender General Appel testified that "Over the last three years, the
sanction has had a `significant humbling' impact on Petitioner. Petitioner
has exhibited "growth and maturity." In earlier years, Petitioner may have
been "less willing to hear someone out." In recent years, Petitioner
displays "more patience" and "civility." Petitioner is "more open to
hearing" what others have to say, "even though they don't support" his
initial position. Today, Petitioner is "better at listening to opposing
views" than he was in 1993. Petitioner synthesizes those views and "comes
up with a better product." Although Mr. Appel and Petitioner disagree "on
a fairly regular basis," they maintain a "professional, collegial"
relationship.
6. Kimball Johnson has known Petitioner as his Senator, his attorney,
and his friend over an 18 year period. He is a businessman in the
Northeast Kingdom, has been President of the Lake Willoughby Chamber of
Commerce and has been heavily involved in regional economic development.
Mr. Johnson testified that Petitioner used to be inclined to "Jump and
do something," displaying a propensity to be "impetuous . . . too quick
to draw" and not put things in proper context. Petitioner has been
"humbled" by his suspension and is not as "apt to jump the gun." Now, he
doesn't move as quickly. He wants more background information. He now has
the ability to step back and request more information.
7. Charles Bristow has been practicing law for 34 years, in Vermont
since 1970. He has been a Vermont District Court judge, an assistant
attorney general, deputy attorney general, commissioner of public safety,
professor of law at Vermont Law School, and general counsel for the
Department of Environmental Conservation. Since January, 1993, Mr. Bristow
has been a member of the office of Legislative Counsel, where he is an
attorney for the House and Senate Judiciary Committees. The legislation
referred to those two committees deal with "all areas of the law,"
criminal law, juvenile law, and civil law.
He has served as a member and chair of the Character & Fitness
Committee , which determines whether an applicant to the bar has the
requisite character for admission to practice law in Vermont. He has also
prosecuted disbarment cases.
Mr. Bristow has had significant contact with Petitioner since January,
1993, when Bristow joined the office of the Legislative Counsel.
Petitioner is an active member of the Senate Judiciary Committee.
Mr. Bristow testified that Petitioner previously exhibited an "us and
them" attitude. But this attitude has substantially diminished over the
past few years. Petitioner's behavior has changed for the better with the
passage of time. He is more "cautious," has "slowed down," is more
"thoughtful" and "much more introspective." Petitioner's change is not due
to just maturation, but also to a "conscious choice to change behavior."
Petitioner's conversations show "insights into the events" that led to
his suspension, making him more respectful to witnesses and staff.
8. Thomas Costello is an attorney practicing in Windham County. He is
also a member of the Vermont House, where he serves as chair of the House
Judiciary Committee. For the last four years, Representative Costello has
had a "close and intense" working relationship with Petitioner. They are
members of opposing political parties who frequently interact in an
attempt to reconcile differences in Senate and House versions of
legislation.
Representative Costello is a House Democrat while Petitioner is a
Senate Republican. As political adversaries they often find themselves on
opposing sides of legislative issues. He and Petitioner regularly "clash"
and "severely disagree" over major issues. Nevertheless, he testified,
that since 1994, Petitioner has changed from being "cavalier" to being a
more "considerate," "thoughtful," "reserved" and "mature" person.
Petitioner does not exhibit a "friend or foe" or "win at any cost"
mentality. Rather, "he looks at issues, takes them one at a time, without
recrimination."
9. Former Governor Philip Hoff stated that Petitioner was "bright and
energetic, in the 1980's, but also was ambitious, self-absorbed and
immature. His ambitions combined with his immaturity to get him into
trouble. Over the past five years, Petitioner has "matured" He is more
reflective and more considerate of people. He no longer acts impulsively.
Bar Counsel presented no witnesses dealing with this issue although
she cross-examined Petitioner's witnesses. We find that all of the
witnesses testifying regarding rehabilitation were credible on this issue.
Ultimately, the focal point for determining reinstatement is
rehabilitation. Indeed, Bar Counsel's opposition to Petitioner's
reinstatement is rooted in this issue. Since the purpose of the suspension
is to protect the public, proving rehabilitation deals with whether
Petitioner has changed such that returning to the practice of law is not
likely to subject the public to the risk of repeated violations. Since
Petitioner has not been practicing law during the period of time during
which he needs to prove his rehabilitation, we have no direct evidence on
this point.
However, the record contains substantial evidence that Petitioner has
recognized that he made a mistake in filing the complaints against Judge
Suntag with the Judicial Conduct Board. Rehabilitation begins with the
recognition of the mistakes made and acceptance of responsibility for the
mistakes. In this regard, we found compelling the testimony of Robert
Gensberg, Defender General Appel, Charles Bristow, and Representative
Costello. Each of them represent neutral witnesses who have observed
significant changes in Petitioner's behavior on a daily basis, particularly
in contexts which are filled with conflict and disagreement. Without
exception, they described Petitioner as a mature, reflective person, more
interested in solving problems than winning or having his way.
Bar Counsel raises three specific issues regarding Petitioner's
rehabilitation. They are:
1. Petitioner's act of providing witnesses with summaries of his
history of ethical violations which minimize "his actual culpable conduct
suggests that Petitioner was attempting to guide their beliefs and
thereby, elicit their favorable testimony." [Bar Counsel's Proposed
Findings of Fact and Conclusions of Law, p. 7.]
2. Petitioner's continued failure to send a promised letter of apology
to Judge Suntag from 1994 to Feb. 20, 1998.
3. An apparent conflict between Petitioner's testimony in 1994 and a
statement made to a TV reporter in 1996 regarding the clarity of a statute
dealing with the location where certain lawsuits must be heard.
While there is some validity to each of Bar Counsel's points, we do
not find that they bear sufficient weight to alter our conclusion that the
record contains clear and convincing evidence that Petitioner has been
rehabilitated.
Bar Counsel's first point overstates the record. She suggests that the
entire packet appears "to be instructions to the witness about that to
which she should testify." [p.5] Our reading of Exhibit 15 is far less
sinister. The overall packet seems to us to be an attempt to acquaint
witnesses with the subject matter to be covered. While it is possible to
question particular parts of the packet, when she had an opportunity to
examine Petitioner, she did not ask Petitioner any questions regarding
Exhibit 15. We recognize that Bar Counsel first saw the document during
the hearing. Nevertheless, we are left with the record which was made at
the hearing. We cannot say that Exhibit 15, standing alone, can support the
negative inference Bar Counsel suggests.
Bar Counsel's second point does raise some concern. Petitioner agreed
to send a letter of apology to Judge Suntag several times as part of
earlier proceedings in this matter. Apparently that letter was never
received by Judge Suntag. Petitioner testified that he thought the letter
had been sent by his lawyer. When the fact that the letter had not been
received was brought to Petitioner's attention in connection with these
proceedings, he sent, and Judge Suntag received, the letter of apology.
Petitioner also suggested in a phone conversation with Judge Suntag that
they should get together over a cup of coffee.
In view of the repeated notice to Petitioner that the letter was not
received in 1994 and 1995, the record suggests at least a lack of careful
follow-up on this issue by Petitioner. Whether it suggests more than that
is debatable. What is most significant is that Petitioner acted
effectively upon receiving notice earlier this year that the apology never
had been received. Since the focus of rehabilitation is on current conduct,
it is Petitioner's current conduct which we need to consider, and it
supports rather than undercuts our conclusion regarding rehabilitation.
Bar Counsel's third point is that the quote Petitioner gave to a TV
reporter regarding the clarity of certain statutes [Defendant's Exhibit 8
is a transcript] proves that Petitioner has not truly abandoned his
position that his original claim that Judge Suntag ignored the only clear
meaning of section. The record does not clearly support this conclusion.
Rather, there is a reference to unidentified statutes. Petitioner's
testimony is that the statement includes reference to a statute passed
subsequent to Petitioner's second suspension to clarify the original
statute at issue in the complaint Petitioner filed against Judge Suntag.
Therefore, it does not support Bar Counsel's argument.
For the foregoing reasons, we find that Petitioner has established by
clear and convincing evidence that he has been rehabilitated.
(a) Whether Petitioner has the moral qualifications required for
admission to practice law. Numerous witnesses who have know Petitioner for
many years testified to his moral qualities, as follows:
1. Judge Cashman has recently observed Petitioner conduct a hearing,
and has appeared as a witness at a committee meeting chaired by
Petitioner. Judge Cashman has interacted with Petitioner in connection
with the restorative justice legislation Petitioner is promoting.
Judge Cashman has sat in Orleans County several times, including since
September, 1997, as presiding judge in family, district and superior court
in Newport. He feels he has a good relationship with the bar in that area
and has a good sense of the community at large. It is his conclusion that
Petitioner is viewed in those cimmunities as a "trustworthy individual."
2. Mr. Kelley testified that Petitioner's honesty, integrity and
reliability are "stellar."
3. Defender General Appel testified that based on his experiences
working with Petitioner concerning Senate Judiciary and Institutions
Committee matters, and as an attorney practicing on a statewide basis, he
has "no hesitancy" in concluding that Petitioner has the "proper moral
character" for readmission. Petitioner has "never been anything but
straight with me." "Sometimes, we vehemently disagree," but Petitioner has
never engaged in any misrepresentation of the law or facts. Rather, he has
always been straightforward in their dealings.
4. Mr. Johnson testified that "everything I've ever been told by Vince
Illuzzi has been truthful and forthright and that I would not in the past
and not in the future - or present and future question his integrity.
5. Mr. Bristow testified that Petitioner is one of the more
straightforward and direct persons in the legislative process. Petitioner
"has never been dishonest" or contradictory "with me or anyone else."
There is "no doubt about [Petitioner's] integrity." He has never known
Petitioner to "not do what he said he was going to do." Based on his
personal experience with Petitioner and with his experience as a former
member and chair of the Vermont Supreme Court's Character & Fitness
Committee, Mr. Bristow concluded that Petitioner has the requisite
honesty, integrity and reliability to be admitted to the practice of law.
5. Mr. Costello testified that he has found Petitioner to be "very
honest and to be straightforward, to be someone you can rely on."
Petitioner has always "forthright and honest and reliable." been "very
up-front" and "open."
Bar Counsel presented no witnesses dealing with this issue although
she cross-examined Petitioner's witnesses. We find that all of the
witnesses were credible on this issue. Therefore, the Panel finds that
Petitioner has established by clear and convincing evidence that he
possesses the moral qualifications required for admission to practice law.
(b) Whether Petitioner has the competency required for admission to
practice law, and (c) Whether Petitioner has the learning required for
admission to practice law. We have chosen to consolidate the evidence
regarding these two issues because they are highly inter-related. We
understand "competency" to refer to actual performance abilities. We
understand "learning" to refer to a petitioner's substantive
knowledge-base.
1. Judge Cashman testified that based on his contacts with the bar in
Orleans county and his own personal experience, Petitioner is a competent
lawyer who has a good working knowledge of the law.
2. Mr. Gensburg testified that Petitioner is a very competent lawyer.
3. Mr. Kelley, who took over approximately three quarters of the cases
that Petitioner had been handling prior to his initial suspension,
reviewed each such case. Relying, in part, on that review, Mr. Kelley was
able to assess Petitioner's competency and learning of the law. Mr. Kelley
testified that Petitioner's work established that he is an
"extraordinarily competent" lawyer and that Petitioner's knowledge of the
law is "exceptional."
4. Defender General Appel's interaction with Petitioner predominately
revolves around "legal issues." He acts as an unofficial adjunct to the
Legislative Counsel on legal issues of interest to the Defender General's
office, and the Senate Judiciary Committee, on which Petitioner serves.
They deal with both criminal and civil areas of the law.
As a result of his frequent contacts with Petitioner, Defender General
Appel testified that Petitioner has displayed a "significant working
knowledge of statutes and case law." Petitioner is "tireless" in his
efforts to produce "perfect bills" and is "very diligent" at producing the
best laws for the state. Petitioner has legal skills which enable him to
"understand and construct legal arguments." Petitioner is familiar with
recent court decisions that "invite a legislative response." Petitioner is
familiar with court decisions that are discussed in legislative
committees. He views Petitioner as "a walking encyclopedia of Vermont
statutes", with "a significant working knowledge of both statutory and
decisional law." He concluded that "Petitioner has the requisite knowledge
and skills" to be admitted to practice law.
5. Mr. Bristow testified that Petitioner is "very competent." He based
his judgment on the extensive debates in the legislative committees about
legal issues, what the law is now, what process is and what the
significance of particular changes would be in the existing law. Senate
Judiciary Committee members regularly use the law books. Since the General
Assembly can amend judicial rules, Petitioner is involved in a continuing
discussion about the rules of civil and criminal procedure. Mr. Bristow
testified that Petitioner is "as competent as I or most other people I
know would be."
6. Representative Costello testified that Petitioner is both competent
and diligent, sometimes providing legislators with recent court decisions
not previously provided by the Legislative Counsel legal staff. He would
be "very comfortable" with Petitioner representing him, his wife, or his
daughter.
7. Petitioner has participated in numerous continuing legal education
programs although they are not required of a suspended lawyer.
Bar Counsel presented no witnesses dealing with this issue although
she cross-examined Petitioner's witnesses. We find that all of the
witnesses testifying to Petitioner's competency and learning were
credible. Therefore, the Panel finds that Petitioner has established by
clear and convincing evidence that he possesses the competency and
learning qualifications required for admission to practice law.
(d)-(g) Whether the Petitioner's resumption of the practice of law
will be detrimental to the integrity or standing of the bar; detrimental
to the administration of justice; or subversive of the public interest. We
have chosen to consolidate the evidence regarding these issues because the
testimony on them are intertwined.
1. Judge Cashman testified that Petitioner's reinstatement would allow
Petitioner to play a "valuable, important" role in the bar in the
Northeast Kingdom. At this point, there are many criminal and juvenile
cases awaiting appointments "that we need lawyers on that we're delaying
and delaying trying to find counsel." Petitioner's reinstatement would
generate a positive reaction from the public in the Northeast Kingdom.
There, the public perception is that Petitioner made some serious
misjudgments but that he has learned his lesson and his reinstatement
would be a positive thing.
2. Mr. Gensberg testified that Petitioner's reinstatement would
improve, rather than subvert, the public standing of the bar. Petitioner
is a very "public personality," who the public believes has paid a "heavy
price" for his violations, particularly because they did not involve
client-related misbehavior.
3. Mr. Webster testified that allowing Petitioner to resume the
practice of law would "dispel the notion" that the Judiciary and the
Professional Conduct Board are "against" him. "It is time to welcome Vince
back into the fold of lawyers. Enough is enough. It is time to get over
this."
4. Mr. Kelley testified that allowing Petitioner to resume the
practice of law in the Northeast Kingdom would improve the administration
of justice in the Northeast Kingdom in view of Petitioner's willingness to
take cases that many attorneys would not,. Mr. Kelley's review of
Petitioner's caseload showed that about one third of his clients and cases
were such that they would have been unable to find competent legal counsel
in the Northeast Kingdom.
5. Defender General Appel testified that Petitioner's resumption of
practice "would favorably" impact on the administration of justice.
Petitioner traditionally has been "an advocate for less favored
socioeconomic constituents whom he represents in the Northeast Kingdom,
and has demonstrated his willingness to accept cases on a pro bono and ad
hoc basis. I certainly think he has substantial legal knowledge, skills and
abilities that could be put to good use on behalf of Vermonters who are
desperately in need of legal services."
6. Mr. Johnson testified that the Orleans community would benefit from
having another local attorney. If Petitioner is not allowed to resume
practice, "people will start to wonder" about the propriety of the
sanction imposed relative to Petitioner's wrongdoing. Reinstatement is
proper at this point considering that Petitioner has lost his livelihood
for four and one-half years.
7. Mr. Bristow testified that Petitioner's readmission will not have
any adverse effect on the standing of the bar. As to lawyers who practice
at the Statehouse, the standing of that bar would be improved because
Petitioner's participation will raise the level of competence. There is a
sense that Petitioner's suspension has been for a long time and the
"penalty" has been "sufficient."
8. Representative Costello testified that Petitioner is a "caring
person" and the bar would be "strengthened" by a person of his
"disposition serving the public. The passage of time and the disposition
of Petitioner's offenses makes it appropriate to reinstate him.
9. Governor Hoff stated that Petitioner's reinstatement will not be
detrimental to the integrity of the bar. "Rather, I believe that his
reinstatement will be helpful to the Bar." Petitioner routinely interacts
with members of the bar and is respected and has proven to be reliable and
fair." The public's perception of Petitioner "has improved significantly
over the last few years and he is perceived to be thoughtful, fair and
thorough." His resumption of practice would not "impair the public
perception of the bar nor will public confidence in the integrity of
lawyers be lost by his reinstatement." There is a general sense that
"Enough is enough."
Bar Counsel presented no witnesses dealing with this issue although
she cross-examined Petitioner's witnesses. We find that all of the
witnesses testifying on issues (d)-(g) were credible. Therefore, the Panel
finds that Petitioner has established by clear and convincing evidence
that Petitioner's resumption of the practice of law will not be
detrimental to the integrity or standing of the bar; will not be
detrimental to the administration of justice nor subversive of the public
interest.
In view of the foregoing, the Hearing Panel finds that Petitioner has
established by clear and convincing evidence the elements required by
Administrative Order 9, Rule 20(D) to justify reinstatement, and
recommends that the Professional Conduct Board recommend to the Supreme
Court that Petitioner be reinstated.
Dated April , 21 1998
Paul S. Ferber
Paul S. Ferber, Esq.
Rosalyn L. Hunneman
Rosalyn L. Hunneman
Robert O'Neill
Robert F. O'Neil, Esq.
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