In re Bowen

• Decision Date: 12 February 2021
• Docket Number: No. 2020-137,2020-137
• Citation: 2021 VT 7
• Court: Vermont Supreme Court
• Parties: In re Richard Bowen, Esq.

2021 VT 7

In re Richard Bowen, Esq.

No. 2020-137

Supreme Court of Vermont

November Term, 2020

February 12, 2021

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 by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.

Original Jurisdiction

Professional Responsibility Board

Hearing Panel No. 10

Jonathan Cohen, Esq, Chair

Mary Welford, Esq.

Kelley Legacy, Public Member

Christopher D. Ekman of Heilmann, Ekman, Cooley & Gagnon, Inc., Burlington, for Appellant.

Sarah Katz, Disciplinary Counsel, Burlington, for Appellee.

PRESENT: Reiber, C.J., Robinson, Eaton, Carroll and Cohen, JJ.

¶ 1. EATON, J. Respondent, Richard Bowen, Esq., appeals from the Professional Responsibility Board's determination that he violated two Vermont Rules of Professional Conduct in his practice as an attorney and its resulting recommendation that his license be suspended for three months. He does not challenge the panel's conclusion that he violated Rule 1.9(c)(2), but argues that it erred in holding that his behavior contravened Rule 1.8(b). Respondent further contends that, regardless of whether he violated one Professional Conduct Rule or two, a three-month license suspension represents a disproportionate sanction. We affirm.

I. Background

¶ 2. In June 2019, Disciplinary Counsel filed a petition of misconduct alleging that respondent violated Rules of Professional Conduct 1.8(b) and 1.9(c)(2). See V.R.Pr.C. 1.8(b) (providing, absent narrow exceptions, that "[a] lawyer shall not use information relating to representation of a client to the disadvantage of the client"); V.R.Pr.C. 1.9(c)(2) (prohibiting, absent narrow exceptions, lawyer from revealing information relating to representation of former client). After an evidentiary hearing on the petition, the panel made the following findings of fact.

¶ 3. Respondent was first admitted to the bar of the Vermont Supreme Court in 1986. He initially worked in a small firm before opening his solo practice about twenty years ago. Respondent's primary area of practice is real-estate law, but he also offers additional services "typical of small-town Vermont lawyers."

¶ 4. At the center of this case sits a small, undeveloped plot of land in Springfield, Vermont. Respondent's first involvement with it came some years ago, when he defended its owners—then a married couple—against an action to foreclose on the property's mortgage. Following the couple's subsequent divorce, respondent agreed to represent the ex-husband (hereinafter "former client") in post-judgment divorce proceedings. He did not obtain the ex-wife's informed consent to do so.¹

¶ 5. Former client sought respondent's assistance in reopening the divorce on the theory that his ex-wife had made misleading disclosures about her assets constituting fraud on the court. Both the pre- and post-judgment litigation resulted in multiple publicly available decisions issuedby the trial court and this Court. But the claims respondent filed on former client's behalf were not met with success, and his representation of former client in connection with the domestic matter ended in 2017. Thereafter, respondent billed former client approximately $11,000 for his legal services. Respondent's office sent monthly invoices to former client and, on at least a few occasions, former client and respondent discussed the outstanding bill over the telephone. Nonetheless, the fee remained unpaid, a matter which was of significant concern and impact to respondent as a sole practitioner with three employees.

¶ 6. In the divorce, former client was awarded the undeveloped Springfield lot that he and his ex-wife purchased during their marriage. He listed it for sale in 2018, drawing the interest of a married couple (hereinafter "husband" and "wife") who own and reside on an adjacent parcel. They enjoyed living next to an empty lot and were concerned by the possibility that another purchaser might build there. They decided to make an offer on the property, which former client accepted. A purchase-and-sale agreement was drawn up, contemplating a closing date of November 15, 2018.

¶ 7. For reasons irrelevant to this appeal, wife alone entered the purchase-and-sale agreement. However, husband took the lead in coordinating the transaction on the couple's behalf. In September 2018, he secured respondent's agreement to represent wife in connection with the purchase and to serve as the couple's title-insurance agent. With wife's agreement, husband was respondent's "principal contact" throughout the representation concerning their purchase of the lot. Respondent did not inform wife and husband that he had previously represented the seller in a post-judgment divorce proceeding, or that he previously represented former client and his ex-wife in an action to foreclose upon a mortgage on that same property. Nor did respondent obtain former client's informed consent to represent the prospective buyer of his land.

¶ 8. The closing was postponed several times for various reasons. By late December 2018, husband and wife had secured the necessary funding for a cash sale, and the closing wasrescheduled for February 7, 2019. In anticipation thereof, respondent conducted a title search on the Springfield property. He discovered several ex parte liens filed by former client's ex-wife, and learned that there was no deed quitclaiming her interest in the property to former client in the wake of their divorce. The title-insurance company informed respondent that the want of a quitclaim deed raised concerns that the ex-wife's interest in the property had not been extinguished; as a result, the company declined to insure the title.

¶ 9. Respondent informed husband and wife of this development in late January or early February and explained the benefits and drawbacks of proceeding with the purchase in the absence of title insurance. Drawing on information acquired in his post-divorce representation of former client, respondent advised his current clients that he doubted former client's ex-wife would seek to enforce any interest she might have in the property because she had inherited a substantial sum of money. Former client had not authorized respondent to disclose this information to anyone else, but respondent mistakenly believed it had been divested of confidentiality by the public availability of court records related to the divorce. This was the first time the buyers learned that the seller was their attorney's former client, and that the seller's ex-wife had allegedly inherited millions of dollars. Following this discussion, husband and wife agreed to respondent's suggestion that they ask former client to agree to indemnify them from any claims his ex-wife might make regarding the Springfield property, deciding to proceed with the purchase without title insurance.

¶ 10. Meanwhile, former client had retained Attorney Barry Polidor to represent him in connection with the sale. Beginning in late January, respondent and Attorney Polidor engaged in a series of negotiations on behalf of their respective clients, including discussions about marketability of title and the proposed indemnity agreement. At some point, respondent informed Attorney Polidor that former client owed him approximately $11,000 in unpaid legal fees and indicated that respondent intended to withhold this amount from the sale proceeds earmarked for former client. Attorney Polidor expressed concern to respondent about this proposal.

¶ 11. Undeterred, on February 5, just two days before the scheduled closing, respondent emailed Attorney Polidor a copy of the unpaid bill, again insisting he would withhold the amount of the bill from the sale proceeds. Former client had not consented to respondent disclosing the amount of the bill—or indeed, anything about his prior representation—to Attorney Polidor. Later that day, Attorney Polidor and respondent discussed respondent's email by telephone. Attorney Polidor told respondent that there was no lien on the Springfield property and expressed his doubt that respondent could withhold the funds absent former client's consent.

¶ 12. The next day, respondent filed an action in civil court seeking recovery of former client's unpaid bill and moved for an ex parte writ of attachment on former client's anticipated proceeds from the sale of the Springfield property to husband and wife. The court granted respondent's request for an attachment the same day, issuing a writ in the amount of $11,792.26 to be satisfied if that amount was either paid to respondent at the closing or placed in escrow. Respondent promptly recorded the lien in the Springfield land records. He neither consulted nor communicated with wife and husband before taking these steps, and they did not consent to his encumbrance of the property they sought to close on the very next day.

¶ 13. While respondent was taking these steps, one of his employees contacted husband to request that he or wife drop off $3000 to be used at the closing. Husband went to respondent's office with a check for that amount. There, an employee advised husband that he needed to call respondent. The panel credited husband's testimony that, in the ensuing telephone conversation, respondent told husband that "someone" had filed a lien against the proceeds of the contemplated sale of the property.² Husband was upset and concerned that the transaction he and wife had worked to arrange could be imperiled.

¶ 14. On February 7, as the day of the closing dawned, respondent sent relevant documents to Attorney Polidor, including the writ of attachment he had just obtained. Respondent also deducted the amount of the unpaid bill on the proposed settlement statement. This was...