In re Bailey

In re Bailey (2002-228); 174 Vt. 447; 800 A.2d 493

[Filed 31-May-2002]

                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 02-228

                               MAY TERM, 2002

In re Thomas Bailey, Esq.	       }	APPEALED FROM:
                                       }
                                       }
    	                               }	From Professional
                                       }	Responsibility Board
                                       }
                                       }	DOCKET NO. PRB File No. 2002-118

             In the above-entitled cause, the Clerk will enter:


       Attorney Thomas Bailey filed an affidavit of resignation pursuant to
  Rule 19(A) of  Administrative Order No. 9.  Disciplinary counsel submitted
  an additional statement of facts.   Thomas Bailey's resignation from the
  Bar of the Vermont Supreme Court is accepted subject to the  terms and
  conditions of Administrative Order No. 9, Rule 19.  It is hereby ordered
  that Thomas  Bailey is disbarred from the office of attorney and counselor
  at law.

       Thomas Bailey is reminded that he must comply with A.O. 9, Rule 23.



                                       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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35 PRB

[17-May-2002]


                              STATE OF VERMONT
                      PROFESSIONAL RESPONSIBILITY BOARD

       In re:	Thomas A. Bailey, Esq. - Respondent
       PRB Docket No. 2002-118

                               Decision No. 35

       Upon receipt of the Affidavit of Resignation submitted to the Board
  and pursuant to Administrative Order No. 9, Rule 19, we recommend to the
  Court that the above referenced Respondent be disbarred.   Attached hereto
  are the Affidavit of Resignation, Statement of Facts and Proposed Order.
  Dated at Rutland, Vermont this 16th day of May, 2002.
       
  FILED MAY 17, 2002

  /s/
  __________________________
  Joan Loring Wing, Esq. -
  Chair
  Professional Responsibility Board


  attachments
  cc:	Barry Griffith, Esq.
        Martha Smyrski, Esq.
        Michael Filipiak
        Thomas Bailey, Esq.
        Michael Kennedy, Disciplinary Counsel

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                              STATE OF VERMONT
                     PROFESSIONAL RESPONSIBILITY PROGRAM

       In Re:	PRB File No. 2002.118
       Thomas Bailey, Esq., Respondent

  Statement of Facts

       NOW COMES Disciplinary Counsel Michael Kennedy and, pursuant to Rule
  19(B) of Administrative Order 9 submits this statement of facts in
  conjunction with the Affidavit of Resignation that has been submitted by
  the Respondent.

  I  General

       1.  Thomas Bailey (hereinafter "Respondent") is an attorney
  licensed to practice  law in Vermont.  The Respondent was admitted to
  practice law in Vermont in October of 1977.

       2.  On February 4, 2002, Disciplinary Counsel filed a Petition of
  Misconduct charging the Respondent with violating the Vermont Rules of
  Professional Conduct.  Disciplinary Counsel attempted to serve the Petition
  on the Respondent by certified mail - return receipt requested - sent to an
  address that the Respondent had provided Disciplinary Counsel.  The
  Respondent did not claim the Petition and it was returned to Disciplinary
  Counsel.  On March 6, 2002, a deputy sheriff made personal service of the
  Petition on the Respondent.

       3.  The Respondent did not file an Answer to the Petition.  As a
  result, Disciplinary Counsel moved the Panel to deem that the Respondent
  had admitted the charges alleged in the Petition.  Disciplinary Counsel
  served the motion on the Respondent.  Respondent neither replied to the
  motion nor provided the Panel with any explanation for his failure to
  respond to the Petition.  By order dated April 1, 2002, the Panel granted
  Disciplinary Counsel's motion.

  II  Respondent's Disciplinary History

       4.  In 1991, the Vermont Supreme Court suspended Respondent's
  license to practice law in Vermont.  In Re Bailey, 157 Vt. 424 (1991).  The
  suspension resulted, in part, from the Respondent's failure to respond to
  requests from disciplinary authorities.  In 1992, the Vermont Supreme Court
  placed the Respondent on disciplinary probation for two years.  In Re
  Bailey, 158 Vt. 636 (1992).

       5.  In 2000, the Vermont Supreme Court publicly reprimanded the
  Respondent and placed him on disciplinary probation.  In Re Bailey, 170 Vt.
  616 (2000).  In so doing, the Court adopted the Professional Conduct
  Board's conclusions that the Respondent had committed multiple violations
  of the Code of Professional Responsibility.  Id., at 616-17.  Most relevant
  to this case, the Court adopted the Board's conclusion that the Respondent
  had neglected legal matters entrusted to him by four separate clients and
  had engaged in conduct prejudicial to the administration of justice by
  failing to respond to requests from disciplinary authorities.  Id.  The
  Court ordered the disciplinary probation to commence on March 1, 2000, and
  to run for two years.  Id., at 616.

  III  The Respondent's Disciplinary Probation

       6.  As a condition of his disciplinary probation, the Respondent
  was required to associate with a mentoring attorney and to provide that
  attorney with a monthly status report on each of his files.  The Respondent
  also was required to refrain from violating the applicable rules governing
  attorney conduct in Vermont. 
   
       7.  Attorney Ted Kenney associated with the Respondent and served
  as his mentoring attorney.  Initially, Respondent met with Attorney Kenney
  on a periodic basis and provided with status reports outlining how his
  practice was operating.  In 2001, the Respondent stopped meeting with
  Attorney Kenney and stopped providing him with monthly status reports.  By
  letter dated November 28, 2001, Attorney Kenney informed Disciplinary
  Counsel that he had not heard from the Respondent in several months and, as
  a result, was no longer willing to serve as his mentor.

       8.  By letter dated January 16, 2002, Disciplinary Counsel asked
  the Respondent to contact him to discuss, among other things, Attorney
  Kenney's letter.  The Respondent did not respond to the letter.

  IV  The Respondent's Representation of Scott Miller

       9.  In July of 1998, Scott Miller was involved in a multi-car
  accident.  Mr. Miller suffered physical injury in the accident.  Mr. Miller
  incurred financial loss and expense as a result of the accident.

       10.  In July of 1998, Mr. Miller retained the Respondent to
  represent him in an action that he intended to pursue against the other two
  drivers who were involved in the accident.

       11.  Between July of 1998 and the fall of 2000, the Respondent had
  little contact with Mr. Miller.  In the fall of 2000, Mr. Miller called the
  Respondent and told him that he was going to report him to the Bar
  Association for neglecting his case.  The Respondent told Mr. Miller that
  he was ready to file a lawsuit in Chittenden Superior Court against the
  other drivers who were involved in the 1998 accident.  The Respondent told
  Mr. Miller that the process could take up to four months.  The Respondent
  told Mr. Miller that he would call to update him on the progress of the
  case.  The Respondent asked Mr. Miller not to report him to bar
  authorities.   As a result of the Respondent's statements, Mr. Miller did
  not file an ethics complaint against him.

       12.  By June of 2001, the Respondent had not contacted Mr. Miller. 
  In June of 2001, Mr. Miller expressed to the Respondent his concerns that
  the time to pursue his claims was running out.  The Respondent told Mr.
  Miller that his concerns were baseless because he (the Respondent) had
  filed a complaint against the other drivers in the Chittenden Superior
  Court.  In fact, the Respondent had not filed suit on behalf of Mr. Miller.

       13.  Since they spoke in June of 2001, the Respondent has not
  contacted Mr. Miller.   In November of 2001, Mr. Miller contacted the
  Chittenden Superior Court. He was informed that the Court did not have any
  record of a complaint filed on his behalf.

       14.  Mr. Miller consulted Attorney William Congleton.  Attorney
  Congleton  determined that the statute of limitations had run on Mr.
  Miller's claims against the drivers who were involved in the 1998 auto
  accident.  Attorney Congleton has filed a malpractice action against the
  Respondent on behalf of Mr. Miller.  The complaint was served upon the
  Respondent.  The Respondent did not answer the complaint within the
  requisite time period.  Attorney Congleton intends to move for a default
  judgment.  At this point, it is unclear whether Mr. Miller will be able to
  recover any damages from the Respondent.

       15.  In November of 2001, Mr. Miller filed an ethics complaint
  against the Respondent.  By letter dated November 16, 2001, Bar Counsel
  Wendy Collins instructed the Respondent to provide Disciplinary Counsel
  with an answer to Mr. Miller's complaint.  By letter dated January 16,
  2002, Disciplinary Counsel asked the Respondent to respond to Mr. Miller's
  complaint.  To date, the Respondent has not done so.

  DATED at Burlington, Vermont, on June 6, 2002.

       Respectfully submitted,
           
       _________________________________
       Michael Kennedy
       Disciplinary Counsel
       32 Cherry Street, Suite 213
       Burlington, Vermont 05401
       (802) 859-3000

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                              STATE OF VERMONT
                     PROFESSIONAL RESPONSIBILITY PROGRAM

       In re:  PRB File No. 2002.118
       Thomas B. Bailey, Esq. - Respondent

                     AFFIDAVIT IN SUPPORT OF RESIGNATION

                          FROM THE PRACTICE OF LAW

       Pursuant to Rule 19, Administrative Order No. 9 of the Administrative
  Orders of the Vermont Supreme Court, the undersigned, Thomas B. Bailey, in
  the resolution of the above matter, do hereby depose and state:

            1.  During July, 1998, Scott Miller was injured in a
       three car accident and then contacted me to represent him in
       pursing a claim against the drivers and owners of the other
       two vehicles.  I agreed, on numerous occasions, to pursue the
       claims for Scott Miller but I failed to do so.  The statute
       of limitations ran out on Mr. Miller's claim before I filed
       suit.  Then Mr. Miller complained to the Professional Conduct
       Board in November, 2001.

            2.  The terms of my probation dated October 1, 1999
       provided that I be mentored by an attorney approved by the
       Office of Bar Counsel.  During the beginning of 2001, I was
       mentored by Edward Kenney, Esq.  However, I failed to
       cooperate with the mentoring program requirements set forth
       in the terms of my probation in that I did not supply Mr.
       Kenney with enough information concerning my cases and I did
       not provide him with the required monthly status reports.  As
       a result Mr. Kenney appropriately resigned as my mentor by
       letter dated November 1, 2001, and I failed to find a
       replacement Mentor as the terms of my probation required.

            3.  This resignation is freely and voluntarily rendered. 
       I am not being subjected to coercion or duress in submitting
       my resignation.  I am fully aware that my resignation will
       result in my disbarment and that I am not eligible to apply
       for readmission to practice law for at least 5 years.

            4.  The facts set forth in paragraphs 1 and 2 above
       constitute provable misconduct and, since they are true, can
       not be successfully defended against.

            Dated at Burlington, Vermont this 6th day of May, 2002.

            IN THE PRESENCE OF:

  /s/ Beth DeBernardi              /s/
  __________________________      _____________________________
                                  Thomas B. Bailey
  CHITTENDEN COUNTY, SS.
  STATE OF VERMONT

       At Burlington, this 6th day of May, 2002, Thomas B. Bailey personally
  appeared avowing the truth of the facts set forth above and acknowledged
  this instrument, by him sealed and subscribed, to be his free act and deed.

       Before me, s/s Beth A. DeBernardi, Notary Public 
       My commission expires 2/10/03