In re Vogel

• Decision Date: 04 February 2016
• Docket Number: No. M2015-00350-SC-BAR-BP,M2015-00350-SC-BAR-BP
• Citation: 482 S.W.3d 520
• Parties: In re: Robert Lee Vogel, BPR #023374
• Court: Tennessee Supreme Court

482 S.W.3d 520

In re: Robert Lee Vogel, BPR #023374

No. M2015-00350-SC-BAR-BP

Supreme Court of Tennessee, AT NASHVILLE.

September 9, 2015 Session Heard at Knoxville

Filed February 4, 2016

Julie A. Rice, Knoxville, Tennessee, for the appellant, Robert Lee Vogel.

William C. Moody, Brentwood, Tennessee, for the appellee, Board of Professional Responsibility of the Supreme Court of Tennessee.

JEFFREY S. BIVINS, J., delivered the opinion of the Court, in which CORNELIA A. CLARK and HOLLY KIRBY, JJ., and CHARLES D. SUSANO, JR., Sp.J., joined. SHARON G. LEE, C.J., not participating.

OPINION

JEFFREY S. BIVINS, J.

The Board of Professional Responsibility ("Board") initiated disciplinary proceedings against attorney Robert Lee Vogel based upon two unrelated complaints of professional misconduct. A hearing panel ("Panel") determined that Mr. Vogel had violated the Rules of Professional Conduct ("RPC")¹ and entered a judgment suspending Mr. Vogel from the practice of law. The Panel subsequently clarified the sanction in an "Agreed Order Amending the Hearing Panel's Findings of Fact and Conclusions of Law" ("Agreed Order"). The Agreed Order provided that Mr. Vogel would be suspended from the practice of law for one year, with all but thirty days of the suspension to be served on probation. Mr. Vogel's probation would be conditioned upon his compliance with the terms of his Tennessee Lawyer's Assistance Program ("TLAP") agreement, completion of his treatment and counseling program, and weekly attendance at two twelve-step meetings. The Board petitioned this Court for an order enforcing the Panel's judgment and the Agreed Order. Pursuant to Tennessee Supreme Court Rule 9, section 8.4,² we determined that the punishment imposed by the Panel appeared inadequate and proposed that it be increased. Mr. Vogel subsequently requested oral argument, which we granted. The issue before the Court is whether the punishment imposed by the Panel is in uniformity with prior disciplinary decisions in this state and appropriate under the circumstances of this case. Upon a thorough review of the record and the applicable law, we hold that it is not. Accordingly, we modify the Panel's judgment to impose a one-year suspension from the practice of law, with the entire suspension to be served on active suspension.

Factual and Procedural Background

On July 14, 2014, the Board filed a Petition for Discipline against attorney Robert Lee Vogel based upon two unrelated complaints of professional misconduct. On December 18, 2014, a hearing panel appointed by the Board pursuant to Tennessee Supreme Court Rule 9, section 8.2, convened a hearing on the matter. The Board's proof consisted of four exhibits, while Mr. Vogel's proof consisted of ten exhibits, his personal testimony, and the testimony of four witnesses: Karen Vogel, Mr. Vogel's wife; Cashauna Lattimore, an attorney licensed to practice law in Tennessee; Ted Rice, the Deputy Director of TLAP; and Guy Blackwell, a former Assistant U.S. Attorney. The record with regard to each complaint of misconduct may be summarized as follows:

The Horn–Brichetto Matter

Mr. Vogel served as court-appointed counsel for Lisa Horn–Brichetto in a criminal case in Morgan County, Tennessee. On June 13, 2013, while Ms. Horn–Brichetto was free on bond, Mr. Vogel moved to withdraw as counsel based on an alleged conflict of interest with Ms. Horn–Brichetto. In his motion to withdraw, Mr. Vogel maintained that, pursuant to RPC 1.6, he could not disclose the specific nature of the conflict of interest without violating the privilege of confidentiality. The trial court granted Mr. Vogel's motion without conducting a hearing on the matter.

Ms. Horn–Brichetto learned of Mr. Vogel's motion to withdraw through an email sent to her from Mr. Vogel's law office on approximately June 14, 2013. She subsequently wrote a letter to Mr. Vogel asking him to explain his reasons for seeking to withdraw from the representation. Six weeks later, after receiving no response from Mr. Vogel, Ms. Horn–Brichetto sent Mr. Vogel a second letter and sent a copy of this second letter to Judge E. Eugene Eblen, the judge assigned to hear her criminal case. Judge Eblen verbally instructed Mr. Vogel to respond to the second letter. In a letter sent to Ms. Horn– Brichetto, dated August 26, 2013, Mr. Vogel explained his reasons for withdrawing as counsel. Mr. Vogel also sent a copy of this letter to Judge Eblen.

With regard to the August 26, 2013 letter, the Panel stated in its Findings of Fact and Conclusions of Law:

Mr. Vogel's letter contained assertions that cast Ms. Horn–Brichetto in a negative light. He provided a copy of this letter to Judge Eblen. Ms. Horn–Brichetto's case was still pending before Judge Eblen at the time Judge Eblen received Mr. Vogel's correspondence. As a result of Judge Eblen reading Mr. Vogel's correspondence that included negative assertions made by Mr. Vogel about Ms. Horn–Brichetto, successor counsel moved to recuse Judge Eblen from her case. Judge Eblen granted successor counsel's Motion to Recuse and removed himself from Ms. Horn–Brichetto's case.

The parties to this proceeding agree that the communication between Mr. Vogel and Judge Eblen contained confidential information. Further, the parties agree that Ms. Horn–Brichetto did not explicitly consent to Mr. Vogel releasing the otherwise confidential information to Judge Eblen.

In its Petition for Discipline, the Board alleged that Mr. Vogel violated RPCs 1.6(a),³ 1.9(c),⁴ and 8.4(a)⁵ by divulging information related to his representation of Ms. Horn–Brichetto without Ms. Horn–Brichetto's informed consent and to her disadvantage. In its Findings of Fact and Conclusions of Law, entered on January 15, 2015, the Panel determined that "Mr. Vogel revealed otherwise confidential information of a former client to a third party (Judge Eblen) without his former client's informed consent, and without authority under Rule 1.6 of the Rules of Profession [sic] Conduct, to otherwise disclose this information."⁶

In reaching its conclusion, the Panel found that, by sending Judge Eblen a copy of her second letter to Mr. Vogel, Ms. Horn–Brichetto did not give Mr. Vogel her informed consent to reveal confidential information to a third party. The Panel reasoned that "Mr. Vogel recognized that revealing the specific nature of the conflict existing between he and Ms. Horn–Brichetto would require that he reveal confidential—protected—information," noting that "Mr. Vogel affirmatively acknowledged the confidential nature of the information and that Rule 1.6 precluded him from revealing that information in his Motion to Withdraw." The Panel stated that Mr. Vogel could have explained his reasons for withdrawing as counsel to Ms. Horn–Brichetto while also "assuring Judge Eblen that he had fully communicated with [Ms. Horn–Brichetto]." The Panel further stated that Mr. Vogel knew that disclosing client confidences to Judge Eblen was not appropriate or necessary under the RPCs and that Mr. Vogel "understood—but chose to disregard—that prohibition."

The Panel also found that Ms. Horn–Brichetto's second letter to Mr. Vogel did not constitute "allegations in any proceeding concerning a lawyer's representation of the client," which would have permitted Mr. Vogel to reveal information related to his representation of Ms. Horn–Brichetto pursuant to RPC 1.6(b)(5).⁷ The Panel reasoned that Ms. Horn–Brichetto's criminal case was not a proceeding concerning Mr. Vogel's representation of her and that "Ms. Horn–Brichetto made no allegations against Mr. Vogel, but instead made an inquiry as to why he had moved to withdraw, an inquiry that Mr. Vogel had for weeks ignored." Additionally, the Panel found that "Mr. Vogel's disclosures caused Ms. Horn–Brichetto injury in that as a direct consequence of Mr. Vogel's disclosure of confidential information, the trial judge presiding over her case was forced to recuse himself and his recusal caused delay in the ultimate disposition of her case."

The Alford Matter

On August 13, 2012, Mr. Vogel was appointed to represent Ashley Alford in a criminal case in the United States District Court for the Eastern District of Tennessee. After his appointment in Ms. Alford's criminal case, Mr. Vogel also was retained as her counsel in an unrelated civil case arising out of an automobile accident.

In Ms. Alford's deposition, which the Board admitted into evidence at the disciplinary hearing, Ms. Alford explained that she first met Mr. Vogel when he was appointed as her attorney in her criminal case pending in federal court. While Ms. Alford was on pretrial release, which was conditioned on her securing employment, Mr. Vogel hired her to work in his law office. Ms. Alford's duties included filing, cleaning, and "[running] the front when [Mrs. Vogel] ... would go out of town." She noted that her work schedule varied, but that she tried to work approximately six hours each week.

Mr. Vogel and Ms. Alford engaged in a sexual relationship during the course of Ms. Alford's employment at Mr. Vogel's law office. When asked how the relationship developed, Ms. Alford testified that she began "feeling awkward" with Mr. Vogel from the beginning of the representation but that "it wasn't until [Mr. Vogel] got into the new office that he [ ] more approached [her] and would tell [her] don't let his feelings towards [her] interfere with him being [her] lawyer because he was just a man and stuff." During her employment at Mr. Vogel's law office, Mr. Vogel would "constantly call[ ][her] into his office," where he would pull her into a "blind spot" between the doors and ask for a kiss. Ms. Alford acknowledged that, although she was not attracted to Mr. Vogel, she would kiss him.

Ms. Alford then described how the relationship progressed. Mr. Vogel would ask her to sit on his lap and to work until 8:00 p.m. Ms. Alford began working later hours, but she testified that "it was just ... so [Mr. Vogel] could hang out with [her] ......