In re Anderson

• Decision Date: 26 December 2000
• Docket Number: No. 99-550.,99-550.
• Citation: 769 A.2d 1282
• Parties: In re J. Eric ANDERSON.
• Court: Vermont Supreme Court

769 A.2d 1282

In re J. Eric ANDERSON.

No. 99-550.

Supreme Court of Vermont.

December 26, 2000.

Present AMESTOY, C.J., DOOLEY, MORSE and JOHNSON, JJ.

ENTRY ORDER

Respondent J. Eric Anderson appeals from the conclusion of the Professional Conduct Board that he violated the Vermont Code of Professional Responsibility:¹ DR 9-102(B)(3) (maintain and render complete records and accounts of all client funds and property), 9-102(C) (maintain trust accounting system), and 1-103(A) (disclose unprivileged knowledge of disciplinary rules violation). He also appeals the Board's recommendation that he be publicly reprimanded. Respondent claims that the Board erred in (1) concluding that he took too long to report the mishandling of client trust accounts by a partner; (2) concluding that he did not investigate these allegations thoroughly enough; and (3) holding him to a higher standard because he was a past member of the Board. We affirm and impose the recommended sanction.

The facts were stipulated to by the parties. Respondent is licensed to practice law in Vermont, and he was a member of the Board from 1983 to 1993, acting as chair from 1989 to 1993. He shared operating and trust accounts with attorney Gerald P. Cantini and another lawyer from 1991 until February 1994. The shared trust account had a joint ledger and was the only trust account used by these lawyers. The office used printed letterhead that read "Law Office of Cantini, Anderson & Oakman" and later just "Law Offices of Cantini & Anderson." These attorneys were listed as a partnership in Martindale-Hubbel's directory and obtained liability insurance as a partnership between 1991 and 1993. In March 1994, the notice "Not a Partnership" was added to the letterhead.

Just prior to Thanksgiving 1993, the office's secretary and the bookkeeper informed respondent that there were irregularities in Cantini's handling of the operating and trust accounts. The staff recalls informing respondent that Cantini had removed moneys from the trust account for expenses that never occurred, and that Cantini was not depositing fee checks in the operating account. Respondent recalled being told about the fee checks, but he did not recall being told about the trust fund irregularities at this time. Respondent did check his own client trust account records for accuracy but did not check Cantini's records, even though they used the same account. Respondent spoke with Cantini, who assured him there was no need for concern.

Later, in July 1994, a new associate informed respondent that Cantini had improperly taken money from the trust account for travel expenses that were never incurred, and that there were other irregularities in Cantini's handling of funds. On July 21, 1994, respondent admitted to another attorney that the account did not balance and that he was trying to determine what should be done. Respondent filed an ethics complaint against Cantini on August 30, 1994, stating that he believed Cantini was taking money from the client trust account without proper accounting.

Based on the foregoing facts, a three-member hearing panel concluded that respondent had violated DR 2-102(D) (lawyers may state or imply a partnership only when there is one in fact) because he had implied a partnership and yet claimed, in his defense, that there was none. The panel also concluded that respondent violated DR 9-102(B)(3), 9-102(C), and 1-103(A) due to the irregularities in the trust account and his failure to report Cantini earlier. Moreover, the panel found a violation of DR 9-101 (lawyers must avoid even the appearance of impropriety) because there had been an appearance of impropriety in his handling of the Cantini matter while chair of the Board. The panel recommend a public reprimand. Pursuant to A.O. 9, Rule 8(D),² the Board then reviewed and modified the panel's recommendations, finding no violation of DR 9-101 or DR 2-102(D), but otherwise agreeing with the panel's conclusions and recommending the sanction of a public reprimand. This appeal followed pursuant to A.O. 9, Rule 8(E) and V.R.A.P. 3.

It is only this Court that may impose a public reprimand. A.O. 9, Rule 7(A)(4). The Board's findings, whether purely factual or mixed law and fact, are upheld if they are "clearly and reasonably supported by the evidence." In re Berk, 157 Vt. 524, 527, 602 A.2d 946, 947 (1991); accord In re Karpin, 162 Vt. 163, 165, 647 A.2d 700, 701 (1993) (Court accepts Board's findings unless clearly erroneous). In addition, although this Court does not "review" Board recommendations on sanctions, but rather makes its own determination as to which sanctions are appropriate, we nevertheless give deference to the Board's recommendation. Berk, 157 Vt. at 527-28, 602 A.2d at 948; In re Pressly, 160 Vt. 319, 322, 628 A.2d 927, 929 (1993).

Respondent first argues that the Board erred in concluding that he took too long to report the mishandling of the client trust account by Cantini. He claims that the stipulation of facts does not support a finding that he learned of the trust account misconduct before July 1994. We disagree. The stipulation of facts disclosed a conflict between the recollection of respondent and that of his secretary and bookkeeper, and the Board was necessarily required to resolve the conflict. Indeed, the stipulation states that respondent "was again told about trust account irregularities" (emphasis added) in 1994, making it clear that respondent had notice of trust account irregularities earlier, but does not now recall that notice. Thus, there was evidence to support the Board's finding that respondent was warned that there was a problem with the trust account nine months before he reported the irregularities to the Board. On this point, we discern no error.

Respondent's second argument is related to his first; he argues that the Board erred in concluding that he had a duty to investigate the irregularities in the trust account in November 1993. Consistent with the Board's finding, however, it could conclude that respondent knew or should have known that there were...