In re Manby
| Docket Number | 22-AP-265 |
| Decision Date | 04 August 2023 |
| Citation | 2023 VT 45 |
| Parties | In re C. Robert Manby, Jr., Esq. (Office of Disciplinary Counsel) |
| Court | Vermont Supreme Court |
Original Jurisdiction Professional Responsibility Board
Edward G. Adrian of Monaghan Safar Ducham PLLC, Special Disciplinary Counsel, Burlington, for Appellant. [1]
Harry R. Ryan of Facey Goss & McPhee P.C., Rutland, for Appellee. PRESENT: Eaton, Carroll, Cohen and Waples, JJ., and Tomasi, Supr. J., Specially Assigned
¶ 1. In this case, a Professional Responsibility Board (PRB) hearing panel determined that respondent violated three ethical rules in handling certain estate planning matters on behalf of an elderly client. It imposed a five-month suspension as a sanction. The Court ordered review of this decision on its own motion. We agree with the panel that respondent violated the rules in question but conclude that a one-year suspension is appropriate given the totality of circumstances.
¶ 2. In August 2020, Disciplinary Counsel filed a petition of misconduct, alleging that respondent had violated Rules 1.1, 1.4(b), and 1.14(a) of the Vermont Rules of Professional Conduct. Respondent filed an answer to the petition, including admissions or denials to the alleged violations and averments of fact. He denied violating Rule 1.14(a) (Count 1) but admitted to violating Rules 1.1 (Count 2) and 1.4(b) (Count 3). Respondent specifically stated that he "negligently" violated Rules 1.1 and 1.4(b), even though Disciplinary Counsel's allegations did not mention respondent's state of mind.
¶ 3. Respondent subsequently moved to narrow the scope of issues. Respondent argued that because he filed an answer admitting to negligently violating Rules 1.1 and 1.4(b), i.e., Counts 2 and 3 of the petition, the panel was bound to accept his admissions as facts and should immediately rule that Disciplinary Counsel's burden was satisfied as to Counts 2 and 3 and that no further discovery or evidence was necessary for those counts except regarding the issue of sanctions. He thus requested that the panel limit the scope of discovery to Count 1-the alleged violation of Rule 1.14(a)-and the appropriate sanctions for Counts 2 and 3. Disciplinary Counsel did not oppose this motion.
¶ 4. The panel denied the motion. It reasoned that a respondent's admissions to allegations in the petition are not necessarily dispositive and that Administrative Order 9 does not allow the parties to stipulate to legal conclusions-for example, that a violation of the Rules of Professional Conduct has occurred. It explained that the panel has an independent duty in every case to determine whether the evidence presented at the hearing proves the violations alleged in the petition. The panel declined to restrict the scope of discovery, leaving it to the parties to confer and agree upon any limitations.
¶ 5. The panel held a two-day merits hearing in October 2021. In October 2022, following post-hearing briefing, motion practice, and delays due to issues not relevant to this appeal, the panel issued an order including findings of fact, conclusions of law, and sanctions.
¶ 6. The panel made the following findings. Respondent has been licensed in Vermont since 1980. He has a solo practice in White River Junction focused on real property and probate matters. In February 2015, respondent was contacted by J.M who respondent had represented in real estate matters twenty to thirty years earlier. J.M. told respondent he was helping his elderly mother, E.M., transfer title to her home and wanted to avoid probate. Respondent knew that at the time, E.M. was ninety-one years old and living in her own home in Burlington with J.M. Respondent also knew that E.M.'s two daughters visited her regularly. Without communicating directly with E.M., respondent agreed to represent her and prepare documents transferring her home to a joint tenancy with right of survivorship to J.M., despite knowing that such a transfer might affect E.M.'s eligibility for Medicaid. Respondent never discussed this issue with E.M. and relied on representations by J.M. as to E.M.'s wishes. He prepared a deed and sent it to J.M. only.
¶ 7. In June 2015, at J.M.'s request, respondent drove from White River Junction to Burlington and met E.M. and J.M. in a supermarket parking lot off the highway to notarize the deed that respondent had mailed to J.M., purportedly because there was no convenient way to have the document notarized in Burlington. This was the first time respondent met or spoke with E.M. Respondent got into the car with J.M. and E.M. and rode with them to the parking lot of E.M.'s church nearby. Respondent then got out of the car and crouched down near the passenger side of the car where E.M. was sitting. E.M. was elderly, physically feeble to the point of being unable to turn or twist to face respondent, and hard-of-hearing. Respondent provided E.M. with a brief explanation of what the deed did and asked if she wished to convey her home to J.M. and herself jointly. E.M. said "yes." J.M. was in the car for most of this conversation. Respondent notarized E.M.'s signature on the deed after she again said "yes" when asked if it was her free act and deed. Respondent did not recall that E.M. said anything other than "yes" during this encounter. He did not recall discussing other estate planning options with E.M. or explaining the advantages or disadvantages of the transfer. He did not discuss with her the possible waiver of attorney-client privilege that might occur when confidential matters were discussed in J.M.'s presence. In short, the panel explained, respondent never met with or spoke to E.M. alone. He never engaged her in conversation or asked her questions to which more than a single word response of "yes" was required. He did not make even basic inquiry, such as asking her the names of her children, her health status, or asking her to summarize the nature and extent of her assets.
¶ 8. During this parking-lot meeting, J.M. produced two other documents that respondent had never seen. The first gave J.M. ownership of an account belonging to E.M. that contained approximately $14,000; the second established or modified a trust to make J.M. the beneficiary of E.M.'s major assets. With J.M. sitting in the car next to E.M. for most of the time, respondent notarized these two additional documents, attesting that E.M. understood the paperwork and that she was signing as her free act and deed.
¶ 9. Respondent had a second meeting with E.M. in late September 2015. Respondent had not spoken to E.M., attempted to communicate with her, or interacted with her in any way since their previous meeting in June 2015. By contrast, during that period respondent spoke regularly to J.M., who called him often. J.M. told respondent that E.M. had changed her mind and now wanted to convey her home solely to him and also wanted him to have greater control over any remaining assets. Respondent was surprised to learn that J.M. had not recorded the prior deed. Acting on J.M.'s instructions and without contacting E.M., respondent prepared a new deed and power of attorney. The parties again met in J.M.'s car, this time in a White River Junction parking lot. J.M. was present during the entire meeting, sitting next to E.M. Respondent did not ask E.M. if she understood the documents; he simply "explained what the document[s] did." Respondent thought E.M. recognized him from the prior meeting because she smiled at him, but he did not ask E.M. if she remembered him. Again, respondent did not discuss with E.M. the possible adverse consequences, for Medicaid purposes, of transferring her property to J.M. Nor did he ask her about her long-term care plans or discuss alternatives to the transfer in question. Respondent followed J.M.'s instructions because J.M. was "insistent" that title to the house be transferred immediately, despite the potential adverse consequences for E.M.
¶ 10. Respondent did not communicate with E.M. further until February 2016, when J.M. drove E.M. to White River Junction to have respondent witness an Advanced Health Care Directive. Respondent did not meet with E.M. privately or ask why she needed a ride to White River Junction just to get a document witnessed.
¶ 11. Shortly thereafter, J.M. called respondent asking about how to revoke a power of attorney. In late March 2016, J.M. came to respondent's office with E.M. and asked him to notarize a document respondent had never seen. This document revoked E.M.'s 2009 durable power of attorney, which had appointed one of her daughters as her agent. E.M. said "yes" when respondent asked if this was her wish. J.M. was present throughout the meeting. Respondent did not engage in any conversation with E.M. to see if she understood how this series of documents had changed her estate plan and he did not obtain or review a copy of her prior estate-planning documents with her. This was respondent's last meeting with E.M.
¶ 12. Respondent sent three invoices in total for his work. The first two, in March and May of 2015, were addressed to J.M. The third invoice was directed to E.M. At some point during respondent's representation of E.M., J.M. provided respondent with an envelope that contained $1000 in cash, which J.M. said was a gift. Respondent kept the money and did not credit it to E.M.'s account.
¶ 13. Around the time of respondent's final meeting with E.M., J.M. attempted to bar his sisters from visiting E.M. His sisters obtained an emergency...
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