Petition of Harrington, 21-76

Citation134 Vt. 549,367 A.2d 161
Decision Date02 December 1976
Docket NumberNo. 21-76,21-76
CourtUnited States State Supreme Court of Vermont
PartiesPetition of John B. HARRINGTON.

Harold C. Sylvester, Burlington, for plaintiff.

Ronald C. Schmucker, Burlington, for defendant.

Before BARNEY, C. J., DALEY, LARROW and BILLINGS, JJ., and SHANGRAW, C.J. (Ret.) specially assigned.

PER CURIAM.

The petitioner seeks readmission to the Bar of Vermont after disbarment. He was removed from practice after conviction of the felony of extortion reported in State v. Harrington, 128 Vt. 242, 260 A.2d 692 (1969). See 128 Vt. 445, 266 A.2d 433 (1970). The petition was filed with the Professional Conduct Board under the provisions of Section XVII of Administrative Order No. 30. A panel was appointed, hearings held and a report filed with the Professional Conduct Board. The Board adopted that report and recommended denial of the petition for readmission.

Before consideration of the matter could be had in this Court, several affidavits and exhibits were mislaid and a taped transcript of one of the hearings inadvertently erased. As a result the petition was resubmitted to a new panel by direction of this Court.

The new five-man panel held hearings and made its report, together with findings. A majority of the panel recommended denial of the petition, with one member concurring in the findings but recommending a probationary arrangement, and one member who dissented, filing a detailed written statement. Some members of the Board disqualified themselves, but by a seven to two vote, the recommendation of the majority of the hearing panel was accepted. The matter is now for final decision by this Court.

This Court agrees with the statement of the petitioner that this Court is the true final arbiter in this matter. It is not the function of this Court, in matters of this kind, to 'review' actions taken below. The only final and ultimate decision is made here, on the responsibility of this Court. The Professional Conduct Board functions as a collator of the facts and an advisor to the Court, assembling and evaluating the presented material so that it will be in manageable form for the Court. The findings and recommendations of the Board, both as an arm of the Court and as a body representation of the profession, carry great weight. But they are not binding. In re Monaghan, 126 Vt. 53, 57, 222 A.2d 665 (1966).

This position is not based on any shortcomings in the Board or its members, but on the plain fact that it is upon this Court that the responsibility for regulation and discipline of the legal profession falls. Chapter II, section 30, Vermont Constitution. These are judgment matters and not susceptible to the automatic application of rules. For this reason each case must be resolved in the light of all of its own circumstances and, except in the broadest sorts of policy concerns, there is no precedential value as between cases.

In view of the duty of this Court to shield the public, as far as it can, from practitioners who would prey upon clients or misuse their training, and the concomitant responsibility to do all possible to maintain public confidence in the practicing Bar, our responses to petitions for reinstatement are thereby necessarily restricted. It is not enough that we are moved to sympathetic concern for a truly repentant former member of the profession. It is not enough that we believe a sufficient, or more than sufficient, penalty has already been exacted for his misbehavior. Disbarment is a protective device, not an additional punishment. In re Enright, 69 Vt. 317, 319, 37 A. 1046 (1897). The concern of the Court is required to be limited to issues relating to moral qualifications, competency and legal learning appropriate to the practice of law in Vermont, and to the determination of whether readmission will be detrimental to the administration of justice or to the integrity and standing of the Bar or that such readmission will be contrary to or inconsistent with the public interest. See Section XVII(d) of Administrative Order No. 30 of this Court.

The provisions of that order put the burden on the petitioning attorney to establish its favorable aspect of those just-stated concerns by the measure of 'clear and convincing evidence'. The majority of the Professional Conduct Board was not convinced that this petitioner did so, and we are required to make our evaluation from the record presented to them.

That record extensively reviews the entire professional history of the petitioner, both before and after his disbarment. Up until the events leading to the criminal prosecution, he had never been the subject of any disciplinary action. He was an active trial lawyer in his home county and had been a member of the Bar for sixteen years at the time of his trial.

Without detailing the circumstances of the criminal case, reported in 128 Vt. 242, 260 A.2d 692, it should be pointed out that the activities underlying the criminal charge were personally advantageous to him only insofar as they benefitted his client and were not the conventional extortion situation. He was sentenced to serve ten to fifteen months at the state prison, the maximum penalty for the crime being limited to twenty-four months or a five hundred dollar fine. He in fact served four months at Windsor State Prison, then was transferred to the Burlington Correctional Center and put in a work release status. After six months he was paroled until the expiration of his term in March, 1971.

In 1972 the petitioner was convicted of driving while intoxicated. Later that same year he was issued a full pardon by Governor Davis for his felony conviction, subject to the condition to which he agreed that he never petition this Court for reinstatement to the practice of law in Vermont.

The petitioner had voluntarily ceased the practice of law when he came under investigation on the extortion charge and has not since engaged in the practice of law. He has worked and supported his family, ultimately doing legal research and brief writing under the supervision of members of the Bar. The...

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19 cases
  • In re Kelton Motors, Inc.
    • United States
    • United States Bankruptcy Courts. Second Circuit. U.S. Bankruptcy Court —District of Vermont
    • December 8, 1989
    ...concerning all judicial officers and attorneys at law in the State. Vermont Constitution, Chapter II, § 30. In re Harrington, 134 Vt. 549, 552, 367 A.2d 161 (1976). Compare, In re Haddad, 106 Vt. 322, 325-26, 173 A. 103, 104 (1934) ("The Court's inherent power of discipline is not derived f......
  • In re Smith
    • United States
    • Supreme Court of West Virginia
    • November 25, 1980
    ...In re Hiss, 368 Mass. 447, 333 N.E.2d 429 (1975); In The Matter of Freedman, 406 Mich. 256, 277 N.W.2d 635 (1979); Petition of Harrington, 134 Vt. 549, 367 A.2d 161 (1976). The rule has been stated in this fashion in In re Hiss, supra: "In any disciplinary proceeding the findings and recomm......
  • Brown, In re
    • United States
    • Supreme Court of West Virginia
    • December 19, 1980
    ...Cal.Rptr. 829 (1980); Petition of Wolf, 257 So.2d 547 (Fla.1972); In re Hiss, 368 Mass. 447, 333 N.E.2d 429 (1975); Petition of Harrington, 134 Vt. 549, 367 A.2d 161 (1976). Finally, most courts will give some weight to the recommendations of the Ethics Committee that conducts the reinstate......
  • State v. Radcliff
    • United States
    • United States Court of Appeals (Ohio)
    • October 11, 2012
    ...141, 146, 342 N.E.2d 611 (1976), quoting In re Lavine, 2 Cal.2d 324, 329, 41 P.2d 161 (1935); Abrams at 15, quoting In re Harrington, 134 Vt. 549, 555, 367 A.2d 161 (1976). {¶ 36} Cases concerning other types of professional licenses similarly conclude that a pardon will not erase the histo......
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