In re Mccarty

• Decision Date: 05 July 2013
• Docket Number: No. 12–156.,12–156.
• Citation: 75 A.3d 589,2013 VT 47
• Court: Vermont Supreme Court
• Parties: In re William J. McCARTY, Jr.

75 A.3d 589

2013 VT 47

In re William J. McCARTY, Jr.

No. 12–156.

Supreme Court of Vermont.

June 28, 2013.

Motion to Defer Suspension Date Denied July 5, 2013.

Beth DeBernardi, Disciplinary Counsel, Burlington, for Petitioner.

Gary D. McQuesten of Valsangiacomo, Detora & McQuesten, PC, Barre, for Respondent.

Present: REIBER, C.J., DOOLEY, SKOGLUND, BURGESS and ROBINSON, JJ.

SKOGLUND, J.

¶ 1. A panel of the Professional Responsibility Board (PRB) concluded that respondent William McCarty violated Vermont Rules of Professional Conduct for his participation in the wrongful eviction of Denise Brennan. The panel recommended that respondent be suspended from the practice of law for six months. Respondent contends that the panel had insufficient evidence to support a finding that he violated the rules; that laches should bar the disciplinary action; and that the resulting sanctions were excessive. We conclude that respondent violated the rules and find the defense of laches inapplicable in this case. However, we find a three-month suspension to be a more appropriate sanction.

¶ 2. Admitted to the Vermont Bar in 1967, respondent established his law practice in Brattleboro. For a number of years, respondent represented Sandra Glick in various legal matters. Sandra Glick owned a home in Brattleboro. In July 2001, she entered into an oral agreement with Denise Brennan to rent Brennan a room in her home with access to most of the property. Brennan moved in days later. Shortly thereafter, on August 8, 2001, Sandra Glick was hospitalized for several weeks as a result of her bipolar disorder. With Sandra Glick hospitalized, Gabrielle Glick, Sandra Glick's adult daughter, became uncomfortable with Brennan living in her mother's home, as she had suspicions that Brennan had impermissibly used Sandra Glick's ATM card.

¶ 3. On August 10, 2001, Gabrielle Glick informed Brennan that she must vacate the premises in thirty days, or by September 9, 2001. Brennan began packing her belongings to comply with Gabrielle's request. Gabrielle then hired respondent to assist with the eviction process, as Gabrielle lived and worked in Massachusetts. On August 13, 2001, respondent sent a letter to Brennan, notifying her that he represented Gabrielle Glick and reiterating that she must leave the premises immediately, no later than September 9. Brennan received the letter on August 16, 2011.

¶ 4. Respondent then composed a second letter to Brennan, which was identical in all respects, except that it did not contain the date by which Brennan was to vacate the property (September 9) and stated that “[t]he desire is that you vacate immediately.” Along with the second letter, respondent drafted another document entitled “Notice to Vacate,” styled to look like a formalized court order in a suit brought by Sandra Glick, Landlord/Plaintiff against Brennan, Tenant/Defendant. The Notice was signed by respondent on behalf of Sandra Glick. The text of the Notice provided:

Pursuant to the provisions of 9 V.S.A. § 4468, you, Denise Brennan are hereby notified to vacate the premises and to restore the premises to its condition at the beginning of the rental term.

....

If you remain in possession after August 17, 2001, Landlord Sandra Glick will be compelled to bring an action for possession as authorized by 9 V.S.A. § 4468, et. al. ¶ 5. On August 17, 2001, Deputy Sheriff Lavalla, a longtime acquaintance of respondent, met Gabrielle Glick at respondent's office and picked up the second letter and the Notice to Vacate with the intention of serving Brennan.¹ Deputy Sheriff Lavalla and Gabrielle Glick went to Sandra Glick's home and served the papers on Brennan and informed her that she was to vacate the premises immediately.² Brennan tried to discuss the matter with Deputy Sheriff Lavalla, showing him previous documents which stated that she was not required to vacate the premises until September 9, 2001. Deputy Sheriff Lavalla refused to look at the papers and insisted that she leave immediately. He threatened to handcuff and arrest her if she did not leave.

¶ 6. Chaos ensued. Unable to reach respondent to make sense of the matter, Brennan became hysterical. She had nowhere to go and no one to care for her dog. After locking her belongings in a room in the house, Deputy Sheriff Lavalla took Brennan to the Brattleboro Hospital Emergency Room, at her request. Animal control took the dog. As a result of the sudden eviction, Brennan suffered serious emotional and physical consequences, including post traumatic stress disorder and intermittent homelessness. The circumstances also exacerbated her substance abuse issues.

¶ 7. Oral rental agreements, such as between Brennan and Sandra Glick, are legally enforceable. See 9 V.S.A. § 4451(8). The landlord must provide adequate notice to terminate a tenancy. See generally 9 V.S.A. § 4467(h) ( “A rental arrangement whereby a person rents to another individual one or more rooms in his or her personal residence that includes the shared use of any of the common living spaces ... may be terminated by either party by providing actual notice to the other of the date the rental agreement shall terminate, which shall be at least 15 days after the date of actual notice if the rent is payable monthly ....”). It is only when the tenant does not vacate by the specified date that the landlord may commence a civil action in the superior court. The landlord must prove entitlement to possession and obtain a judgment from the court awarding possession to the landlord. 12 V.S.A. § 4761. The judgment must be served on the tenant, and if the tenant does not leave, the landlord may then apply to the superior court for a writ of possession. Id. § 4854. Once the writ is served on the tenant, the tenant then has five business days to vacate the premises. Only if the tenant does not vacate within that time may a sheriff forcibly remove the tenant. Id.

¶ 8. Respondent had done landlord-tenant work for previous clients. Respondent knew that Brennan was legally entitled to stay on the premises until September 9. Nonetheless, “he was anxious to have Ms. Brennan leave the property as soon as possible in order to protect ... and safeguard”his client's property. Based on his testimony and the testimony of others, the hearing panel concluded that respondent intentionally removed the date of termination from the second letter to deceive Brennan and effectuate an immediate eviction.

¶ 9. The panel also found that respondent instructed Deputy Sheriff Lavalla to remove Brennan on August 17, 2001, even though Lavalla did not recall being informed by respondent himself. Lavalla testified that the office manager handled the matter. Nevertheless, he understood from the papers that Brennan was to vacate the premises that day.

¶ 10. Respondent did not express any surprise that Brennan left on August 17, but instead testified that he was “relieved” she vacated the premises. Thereafter, respondent made no attempt to inform Glick, Brennan, or Deputy Sheriff Lavalla that Brennan was not legally required to leave the premises. Nor did he make any further inquiry regarding Brennan's remaining property in Glick's home.

¶ 11. Accordingly, the panel found that respondent violated Rules 1.2(d), 4.1, 4.4, 8.4(c), 8.4(d), and 8.4(h) of the Vermont Rules of Professional Conduct. All told, his acts of deception in drafting misleading correspondence and making false statements violated rules prohibiting a lawyer from engaging in fraudulent behavior, making false statements, and violating others' rights. As a result of respondent's violations concerning this incident, past infractions, public concern, and respondent's personal circumstances, the panel recommended that respondent be suspended from the practice of law for six months. On appeal, respondent argues that the panel failed to use the proper standard of proof; that there is insufficient evidence to support its factual findings; that laches should bar the disciplinary action; and that the resulting sanction is excessive. Respondent, however, does not dispute that the facts, if found to be true, would support the underlying violations.

¶ 12. Respondent first argues that the panel was required to employ a higher standard of proof to prove his alleged fraudulent activity. He contends that the hearing panel did not acknowledge the higher standard of proof associated with fraud and that disciplinary counsel did not meet its burden in showing that he committed fraud. However, respondent is not charged with common-law fraud. See Estate of Alden v. Dee, 2011 VT 64, ¶ 32, 190 Vt. 401, 35 A.3d 950 (proving common-law fraud must be done by clear and convincing evidence). Rather, he is alleged to have conducted dishonest, fraudulent, or deceitful activity in violation of Professional Conduct Rule 8.4(c). All formal charges of misconduct “shall be established by clear and convincing evidence.” A.O. 9, Rule 16(C). Without evidence to the contrary, we presume the panel employed the appropriate standard of review.

¶ 13. Respondent next asserts that the evidence does not support the panel's findings of fact. Specifically, respondent alleges that the panel improperly concluded that he colluded with Deputy Sheriff Lavalla to evict Brennan on the basis that they had known one another for thirty years, they both belong to the Vermont Chapter of the Marine Corps League, and their wives worked together for the hospital auxiliary.

¶ 14. Findings of fact shall not be set aside unless clearly erroneous. On review, we will uphold the panel's findings unless they are clearly in error. A.O. 9, Rule 11(E); In re Pressly, 160 Vt. 319, 322, 628 A.2d 927, 929 (1993). Based on respondent's testimony, the panel found that respondent “desired to have Ms. Brennan leave immediately” and was “relieved” when she was removed. The panel concluded that respondent drafted the second eviction letter and the Notice to Vacate to compel Brennan to...