In re Fink
| Decision Date | 30 December 2022 |
| Docket Number | 22-AP-001 |
| Citation | 2022 VT 63 |
| Parties | In re Melvin Fink, Esq. |
| Court | Vermont Supreme Court |
2022 VT 63
In re Melvin Fink, Esq.
No. 22-AP-001
Supreme Court of Vermont
December 30, 2022
Original Jurisdiction Professional Responsibility Board
Hearing Panel No. 3 Gary F. Karnedy, Chair Ashley W. Taylor, Esq., Member Peter Zuk, Public Member
David C. Sleigh of Sleigh Law, St. Johnsbury, for Appellant.
Sarah Katz, Disciplinary Counsel, and Benjamin D. Battles of Pollock Cohen LLP, Special Disciplinary Counsel, Burlington, for Appellee.
PRESENT: Reiber, C.J., [*] Eaton, Carroll, Cohen and Waples, JJ.
COHEN, J.
¶ 1. Respondent appeals from the Professional Responsibility Board hearing panel's determination that he violated Vermont Rule of Professional Conduct 4.2, and from its imposition of a thirty-day suspension. We agree with the hearing panel and suspend respondent for thirty days from the practice of law.
I. Facts and Procedural History
¶ 2. The panel made the following factual findings, which are uncontested on appeal. Respondent is an attorney and solo practitioner in Vermont who has been practicing law for
approximately fifty years. Relevant to this matter, he began representing wife in 2019 in connection with her separation from husband.
¶ 3. In May 2020, respondent sent husband two written communications regarding a settlement proposal. These communications each included a statement indicating that husband should deliver the information to his attorney if he were to hire one. That same month, husband hired a local lawyer, who emailed respondent on June 1 stating that she was representing husband in the divorce matter and asking that all future correspondence to husband be sent through her. The respective attorneys engaged in continued communication and negotiations, and respondent ultimately filed a divorce complaint on wife's behalf on June 26. Service of the complaint was not completed on husband until July 20, and husband filed a notice of appearance on July 29.
¶ 4. Husband's notice of appearance used a form from the family division, which included the following language: "I intend to represent myself and hereby enter my appearance with the [c]ourt. No attorney will represent me in this case unless an attorney or I notify the [c]ourt otherwise." Husband's lawyer notarized the filing and did not enter an appearance on his behalf; however, husband's lawyer continued to provide him with legal advice, and husband authorized her to continue representing him in negotiations with respondent. The family division received husband's notice of appearance on August 3.
¶ 5. In the interim, on July 31, respondent communicated with husband's lawyer on two issues related to the divorce, and husband's lawyer responded by email indicating husband's stance on the two issues. Respondent did not reply to husband's lawyer's July 31 email, and there were no further communications between the attorneys until August 17. The parties did not discuss husband's representation in this timeframe. Husband's lawyer did not indicate whether she would continue to represent husband notwithstanding the self-represented notice of appearance, and respondent did not ask her.
¶ 6. On August 17, respondent called husband on the telephone and left a voice message; husband called respondent back later that day and spoke with respondent for about six minutes. Respondent asked husband to "sit down and talk" in respondent's office to reach an agreement regarding the divorce. Husband stated, "let me get a hold of my lawyer," to which respondent replied, "technically she doesn't have to be here" and "I see you filed a pro se appearance." Husband and respondent agreed on a date and time for the meeting but did not discuss any substantive issues related to the divorce during the telephone call.
¶ 7. Husband felt uncomfortable with respondent's assertion that husband's lawyer would not need to be present for the meeting, and he promptly called his lawyer to inform her of the call. Husband's lawyer emailed respondent that same day proposing a settlement conference with both parties and their respective counsel present and objecting to respondent speaking with her client without her permission. Respondent replied to husband's lawyer by email on August 21, writing, "Don't pontificate to me. [Husband] filed a pro se appearance. He represents himself, period." Respondent did not explicitly agree to not contact husband directly again. On August 24, husband's lawyer replied, stating:
Your email implies that you are still not accepting that [husband] is represented. He is, period. You are not to have any more direct contact with him, period. You are fully aware that I am representing [husband]. We have been exchang[ing] settlement proposals and other communications, even after the divorce action was filed. You are fully aware that I do not have to enter an appearance in court to be representing [husband]
Responded did not reply to this email and made no further attempts to contact husband directly. Husband's lawyer filed a notice of appearance on husband's behalf in the divorce proceeding on October 6.
¶ 8. The Professional Responsibility Program received a complaint about the above- described interactions, and Disciplinary Counsel formally charged respondent with violating Vermont Rules of Professional Conduct 4.2 and 8.4(a) in January 2021, alleging that respondent,
"who represented wife in a divorce matter, communicated or attempted to communicate about the subject of the representation with husband, a person he knew was represented by another attorney, without the consent of the other attorney or authorization by law or a court order." In his written answer to the complaint and subsequent hearing memo, respondent admitted to most of the asserted facts, including the conversation with husband on August 17 and the content of the conversation as described above, but denied having the requisite knowledge of husband's representation and argued that he did not discuss any substantive matters during the call. The hearing panel held a merits hearing in September 2021, during which both respondent and Disciplinary Counsel presented evidence.
¶ 9. The hearing panel determined that respondent...
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