In re Taylor
Annotate this Case
In re Taylor (2000-178); 171 Vt. 640; 768 A.2d 1273
[Filed 29-Dec-2000]
ENTRY ORDER
SUPREME COURT DOCKET NO. 2000-178
DECEMBER TERM, 2000
In re Richard F. Taylor, Esq. } APPEALED FROM:
}
}
} Professional Conduct Board
}
}
} DOCKET NO. 98.005 & 99.200
In the above-entitled cause, the Clerk will enter:
The former Professional Conduct Board (now the Professional
Responsibility Board) recommends that Respondent Richard F. Taylor be
suspended from the practice of law for six months. Respondent argues that
the Board and hearing panel were without jurisdiction to render
recommendations on the two misconduct petitions and that the Board's
determination that he was motivated by selfishness or dishonesty in his
conduct is without support in the record. We adopt the Board's
recommendation and impose a six month suspension.
The facts as stipulated to by respondent are as follows: Respondent
was admitted to the practice of law in Vermont in 1978. In 1992,
respondent moved to St. John, United States Virgin Islands and in 1993
placed his license on inactive status. In July 1994, the Addison Family
Court entered an order requiring respondent to pay spousal maintenance and
child support to his former wife. When respondent failed to make payments
in accordance with the court's order, respondent's wife sought enforcement
of the order. In September 1996, the court entered judgment against
respondent in the amount of $13,699.80, along with attorney fees, and
ordered respondent to pay that amount within thirty days
Respondent did not pay the judgment within thirty days and also
continued to fail to comply with the family court's original order. This
resulted in a second enforcement action by respondent's wife and a March
1997 judgment for an additional $23,518.60 and attorney fees, payable
within ten days of the court's order. The court also ordered that
respondent would be held in contempt for failing to comply within the
ten-day period. Following a show cause hearing, the court found
respondent to be in contempt of court and ordered him confined for a period
of seven days. In May 1997, respondent was charged with misdemeanor
non-support under 15 V.S.A. § 202. He was convicted following a jury
trial and served sixty days in jail.
The Office of Bar Counsel brought two petitions of misconduct against
respondent based on the above facts. The first, filed March 4, 1999, was
based on his conduct before the family court, and the second, filed June
28, 1999, was based on his conviction of the crime of non-support. The
cases were consolidated and were considered by a hearing panel. Following
submissions by bar counsel and respondent, the Professional Conduct Board
adopted the hearing panel's report and recommended suspension of
respondent for a period of six months based on its determination that
respondent's conduct before the family court violated DR 1-102(A)(5)
(conduct prejudicial to the administration of justice), DR 1-102(A)(7)
(conduct adversely reflecting on fitness to practice law) and DR 7-106(A)
(disregard of court orders). It dismissed, however, the count alleging a
violation of DR 1-102(A)(3) (illegal conduct involving a serious crime)
that was based on his conviction of criminal non-support. Respondent now
appeals to this Court.
Prior to review by the hearing panel, respondent and bar counsel
entered a stipulation that the disciplinary proceedings should be
conducted pursuant to the newly-enacted rules establishing the
Professional Responsibility Program. The hearing panel, however, rejected
this stipulation, determining that the proceedings were instead governed
by the rules as they existed prior to amendment. Respondent argues on
appeal that this was error and that the new rules should govern. He
reasons that, because appeals are directly from a hearing panel to this
Court under the new rules, Administrative Order 9, Rule 11(E), and no
appeal was taken to this Court from the hearing panel decision in this
case within thirty days, the hearing panel decision is final. He further
reasons that, because the new rules indicate that hearing panels should be
appointed by the chair of the Professional Responsibility Board,
Administrative Order 9, Rule 2(A), and the hearing panel which reviewed
his case was instead appointed by the chair of the Professional Conduct
Board, the panel was without jurisdiction or authority to preside in his
case. Therefore, its judgment is void.
Respondent's argument is without merit. This Court's order amending
the rules governing attorney discipline explicitly provided that any
matter pending at the time the rules took effect on September 1, 1999, in
which a formal hearing had been commenced would be governed by the old
rules. Administrative Order 9, History. Formal proceedings are commenced
by the filing of a petition of misconduct. Administrative Order 9, Rule
8(C) (amended March 11, 1999, effective September 1, 1999); see also
Administrative Order 9, Rule 11(D) (current rule governing initiation of
formal disciplinary proceedings). Both petitions of misconduct in this
case were filed before September 1, 1999 and, therefore, formal
proceedings were pending against respondent at the time the new rules took
effect. Accordingly, the proceedings against respondent were properly
conducted pursuant to the old rules.
Respondent also argues in the alternative that the Board's adoption of
the panel's finding that his conduct was motivated by selfishness or
dishonesty is not supported by the record and should be stricken from the
Board's recommendation. More specifically, when determining the
appropriate sanction, the panel found in aggravation the presence of a
"dishonest or selfish motive." Given that bar counsel has taken no
position on this specific finding and that this case is before us on the
stipulated facts recounted above, we decline to adopt the finding as part
of our decision. Nevertheless, we conclude that the recommended sanction
of suspension for six months is merited
as respondent does not challenge the Board's determinations that his
conduct before the family court violated DR 1-102(A)(5), DR 1-102(A)(7)
and DR 7-106(A). Cf. In re Free, 159 Vt. 625, 625-26, 616 A.2d 1140,
1140-41 (1992) (mem.) (imposing six month suspension for illegal conduct
involving moral turpitude, conduct prejudicial to the administration of
justice and conduct adversely reflecting on the respondent's fitness to
practice law where respondent had failed to pay his state taxes for a
number of years).
Respondent Richard F. Taylor is suspended from the practice of law for
a period of six months.
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
------------------------------------------------------------------------------
148.PCB
[14-Apr-2000]
STATE OF VERMONT
PROFESSIONAL CONDUCT BOARD
RE: Docket Nos. 98.005 and 99.200
Richard F. Taylor, Esq. - Respondent
NOTICE OF DECISION
Decision No. 148
The Board convened on April 14, 2000 and adopted as its own the
panel's report, attached hereto at Appendix 1. The Board recommends that
Respondent be suspended for 6 months.
Dated at Montpelier, Vermont this 14th day of April, 2000.
PROFESSIONAL CONDUCT BOARD
/s/ /s/
___________________________ ____________________________
Charles Cummings, Esq. Michael Filipiak
/s/ /s/
___________________________ ____________________________
Barry E. Griffith, Esq. Alan S. Rome, Esq.
/s/ /s/
___________________________ ____________________________
Mark L. Sperry, Esq. Ruth Stokes
/s/ /s/
___________________________ ____________________________
Joan Wing, Esq. Toby Young
-------------------------------------------------------------------------
STATE OF VERMONT
PROFESSIONAL CONDUCT BOARD
In Re: Richard F. Taylor, Esq.
PCB File Nos. 98.05 & 99.200
Hearing Panel Decision
A petition of misconduct was filed against Respondent on March 4,
1999, and a second one filed on June 28. With the consent of the parties,
the two matters were consolidated and submitted to us on stipulated facts.
We have adopted those facts as our own, incorporating them herein by
reference. By Order dated September 26, 1999, the parties were given until
October 13 to file recommended conclusions of law and recommended
sanctions, and the merits hearing was set for the morning of October 19,
1999.
The office of Disciplinary Counsel did file recommended Conclusions
and Sanctions, with supporting authority, on October 13. Respondent filed
by facsimile transmission "Respondent's Response to Petitioners Proposed
Conclusions and Sanction Recomendation [sic] after the merits hearing, at
1:00 p.m. on October 19. Nonetheless, in light of the seriousness of this
matter, and the issues raised and briefed by the parties, the Panel treats
Respondent's filings as timely.
We have considered all of these pleadings and conclude that the Board
does have jurisdiction over Respondent who is an inactive member of the
Vermont bar. We also conclude that Respondent engaged in conduct
prejudicial to the administration of justice in violation of DR
1-102(A)(5), that he engaged in conduct that adversely reflects on his
fitness to practice law in violation of DR 1-102(A)(7), and that he
intentionally disregarded court orders in violation of DR 7-106(A). We do
not find that Respondent engaged in "serious criminal conduct" in violation
of DR 1-102(A)(3) and recommend dismissal of that particular allegation in
the petition of misconduct. In light of the pattern of misconduct, and the
substantial nature of the charges, and in accordance with the ABA
Standards, we recommend that he be suspended.
The salient facts are that Respondent was admitted to practice law in
the State of Vermont on November 8, 1978. He became a resident of St.
John, United States Virgin Islands in December of 1992. On July 16, 1993,
Respondent placed his license to practice law in Vermont on inactive
status. See Supreme Court Administrative Order, Licensing of Attorneys §
5. In this way he could remain a member of the Bar without having to pay
annual licensing fees, and could also reactivate his license when he chose
to do so.
The following year, in July of 1994, the Vermont Family Court for
Addison County ordered him to pay spousal maintenance and child support to
his former wife. When he failed to comply fully with this order, she moved
to enforce it.
In September of 1996 the Court granted her motion to enforce and
entered a judgment order requiring him to pay past-due maintenance in the
amount of $13, 699.80 and to do so within 30 days. The Court also ordered
Respondent to pay his former wife $500 in attorney's fees. Finally, the
Court ordered Respondent to pay his wife $2,000 in attorney's fees for the
costs of collection outside of Vermont, should the Respondent fail to
comply with the 30 day deadline.
The Respondent did not pay the judgment within 30 days of the order.
Again, his former spouse moved to enforce the order.
In March of 1997, the Family Court granted that motion. In its
judgment order, the Court found that Respondent was in arrears on both
child support and spousal maintenance. In addition to the previous $13,
700 in unpaid maintenance, the Court found that he now owed his ex-wife an
additional $15,818.60 in past due maintenance and $7,800 in past due child
support.
The Court ordered Respondent to pay these arrearage, to pay his
ex-wife $500 in attorney's fees, and to do so in 10 days. If he did not
comply with the order within 10 days, the Court ordered that he would have
to pay her $2,000 in attorney's fees for collection of the judgment.
Finally, the Court stated that Respondent would be held in contempt of
court and jailed for seven (7) days if he did not comply with the terms of
the Court's order.
On that same date, the Addison Family Court held a hearing to permit
the Respondent to show cause why he should not be in contempt for failing
to pay amounts due in child support and spousal maintenance. Subsequently,
in late April, it found Respondent in contempt of court and ordered him to
be confined for seven (7) days if he failed to comply with previous orders
requiring him to pay spousal maintenance and child support.
Respondent did not pay and in May of 1997, criminal charges alleging
nonsupport were filed against him. He was arrested in the Virgin Islands in
June of 1997. After trial by jury, he was convicted in March of 1998 of
violating 15 V.S.A. § 202 , a misdemeanor. He was sentenced to
imprisonment for a term of 6 months to 1 year, all suspended but 60 days.
Respondent served his sentence and was released on probation.
Jurisdictional Arguments
In response to these misconduct petitions, Respondent seeks dismissal
of the charges. His theory is that this Board, and by extension the
Vermont Supreme Court, has no jurisdiction over his conduct because he is
on inactive status. Respondent argues, in a series of pleadings, that the
exercise of continued jurisdiction over members of the Bar on inactive
status offends the U.S. constitutional guarantees of equal protection and
due process. We disagree.
The Vermont Constitution gives to the Supreme Court the authority and
responsibility to structure and administer the lawyer discipline system in
this State. VT. Const. Ch II, § 30. Pursuant to that authority, A.O. 9,
Rule 1 (now superceded) gave broad jurisdiction to the Professional Conduct
Board. The present disciplinary system, now administered by the
Professional Responsibility Board, continues the same plenary jurisdiction,
providing in A.O. 9, Rule 5 § (A)(1) that
the Board shall have jurisdiction over any lawyer
admitted in the state, including any formerly admitted lawyer
with respect to acts committed prior to resignation,
suspension, disbarment or transfer to inactive status, or
with respect to acts subsequent thereto . . . which
constitute a violation of these rules or the code of
Professional Responsibility . . . ."
Simply put, whether Respondent is active or inactive, he is still a member
of the bar. This Board and the Supreme Court of Vermont clearly have
licensing and disciplinary authority over him.
Nature of Alleged Misconduct
Respondent also argues that his alleged misconduct involved so called
"personal behavior" as distinguished from actions directly related to the
practice of law. As such, there should be no Supreme Court jurisdiction
over him in the context of professional discipline. The law of Vermont is
quite clear, however, that an "attorney is subject to misconduct for
actions committed outside the professional capacity." In Re Berk, 157 VT.
524, 530 (1991).
The stipulated facts demonstrate by clear and convincing evidence that
by disregarding the court's orders, Respondent not only violated DR
7-106(A), he also violated DR 1-102 (A)(5) (engaging in conduct
prejudicial to the administration of justice) by failing to comply with a
court order. In re Robinson, 161 VT. 605, 607 (1994). Other
jurisdictions have also concluded that a lawyer who fails to make court
ordered child support and maintenance payments engages in conduct that is
prejudicial to the administration of justice. In Re Green, 982 P.2d 838, 838-39 (Colo. 1999)(attorney suspended); In the Matter of Hall, 509 S.E.2d 266, 268 (S.C. 1998)(attorney suspended); State v. Hanks, 967 P.2d 144,
145 (Colo. 1998)(attorney suspended).
It is true that a minority of the Supreme Court raised somewhat
similar concerns after the enactment of 32 V.S.A. § 3113(b)(occupational
license requires payment of all taxes due) and 15 V.S.A. §
795(b)(occupational license requires current child support payments). See
Supreme Court Administrative Order, Licensing of Attorneys § 7, dissenting
opinion by Justices Morse and Johnson. Nonetheless, Administrative Order,
Licensing of Attorneys § 9, was promulgated and is clear on its face.
Unless and until the law is changed, it is incumbent upon attorneys to
abide by its terms or fail to do so at their peril. The licensing option
available to members of the bar for their convenience if not actively
practicing is not intended as a shield against regulation or discipline.
We also conclude that Respondent violated DR 1-102(A)(7) by engaging
in conduct which adversely reflects upon his fitness to practice law. We
have held in the past that disregard of an order to pay child support,
particularly where the ordering court must resort to its contempt powers to
enforce compliance, is conduct which adversely reflected on the lawyer's
fitness to practice law. PCB Decision No. 42, 1. Vt.P.C.R. 74 (Dec. 6,
1992)(involved an arrearage of $840 in child support payments).
We are not persuaded, however, that this conduct constituted a serious
crime in violation of DR 1-102(A)(3), which allegation forms the basis of
P.C.B. File No. 99.200. The Code states:
"a 'serious crime' is any felony, and any lesser crime a
necessary element of which, as determined by the statutory
or common law definition of such crime, involves
interference with the administration of justice, false
swearing, misrepresentation, fraud, deceit, bribery,
extortion misappropriation, theft, or an attempt or a
conspiracy or solicitation of another to commit a 'serious
crime'."
Code of Professional Responsibility, Definitions, § 5. The parties agree
that Respondent was convicted, after jury trial, of a misdemeanor by
violating 15 V.S.A. § 202. Absent some authority to the contrary, we
decline to conclude that a misdemeanor conviction for intentionally failing
to support children is within the Code definition of a serious crime. The
criminal statute does require a finding, beyond a reasonable doubt, that
the failure to provide support be a wilful failure. However, interference
with the "administration of justice" is not an essential element of this
offense. On the record before us, it does not appear that the types of
criminal offenses listed in D.R. 1-102(A)(3) can be comfortably stretched
to included nonsupport. Accordingly, we would recommend dismissal of this
count.
Sanctions - The A.B.A. Standards
The ABA Standards for Imposing Lawyer Discipline lead us to conclude
that suspension is the appropriate remedy. See also the dissenting opinion
in In re Robinson, supra, at 609 - 611.
Respondent violated several duties here: (1) the duty he owed to the
public to maintain his personal integrity, Standard 5.1; (2) the duty he
owed to legal system not to abuse the legal process, Standard 6.2; and (3)
the duty he owed to the profession not to act to diminish the public's
confidence in the bar, Standard 7.0. Respondent acted willfully and
knowingly and caused actual, significant injury.
In reaching our recommendation, we rely upon Standard 6.2 which
provides, in pertinent part:
Absent aggravating or mitigating circumstances, upon
application of the factors set out in Standard 3.0, the
following sanctions are generally appropriate in cases
involving failure to expedite litigation or bring a
meritorious claim, or failure to obey any obligation under
the rules of a tribunal except for an open refusal based on
an assertion that no valid obligation exists:
6.1 Disbarment is generally appropriate when a lawyer
knowingly violates a court order or rule with the intent to
obtain a benefit for the lawyer or another, and causes
serious injury or potentially serious injury to a party or
causes serious or potentially serious interference with a
legal proceeding.
6.22 Suspension is generally appropriate when a
lawyer knows that he or she is violating a court order or
rule and causes injury or potential injury to a client or a
party, or causes interference or potential interference with
a legal proceeding.
In mitigation we find factors 9.32 (a). (e), and (k): i.e., absence of
a prior disciplinary record, co-operative attitude toward proceedings, and
imposition of other penalties. We are not unmindful of the fact that these
circumstances have occurred in the aftermath of a divorce, although
certainly the family court system provides an abundance of process, during
which inappropriate orders may be challenged. More significantly,
Respondent has actually been incarcerated, and may have suffered other
penalties in the context of whatever relationship he may have with his
offspring. See § 9.32(k).
In aggravation, we find the following factors in 9.2:
(b) dishonest or selfish motive
(c) a pattern of misconduct
(4) multiple offenses
(k) vulnerable victim, and
(1) substantial experience in practicing law.
We are particularly troubled by the repetitive nature of this misconduct.
Respondent disregarded three separate rulings of the Addison Family Court,
and the disregard lasted over a period of years. In July of 1994, he
failed to abide by an order to make support payments. Over the next two
years, he continued to flaunt the Court's authority, leading to a September
1996 order to enforce. In March of 1997, a third order issued which he
ignored. He was found in contempt of court. Even then, before issuing
sanctions, the family court issued a show cause order to give Respondent an
opportunity to demonstrate an inability to abide by the previous orders.
It was his failure to provide any credible excuse for his actions that lead
ultimately to a criminal prosecution and conviction.
Nor can this be viewed as a victimless crime. Between April of 1993
and March of 1997, Respondent racked up a debt of $29,518.40 in spousal
support and $7,800 in child support payments. Respondent's October 19,
1999 pleading addressing sanctions repeats his earlier jurisdictional
arguments. On the subject of the arrearage, he asserts that the family
court, per the orders of Hon. Matthew Katz, miscalculated the sums by
including amounts actually due the month of the order and thus not
technically overdue. Rather disingenuously, Respondent offers that if his
arrearage were amortized over the nine years since his separation from his
ex-wife, the calculation "represent less than a 10% overall default rate as
against the sums actually paid." It is hard to characterize this attitude
as "remorse."
In light of the above, we recommend the Respondent's license to
practice be suspended for a period of six months.
Dated this 20th day of December, 1999.
/s/
Barry Griffith, Esq. - Chair
Hearing Panel
/s/
Steven A. Adler, Esq.
/s/
Ruth Stokes
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