Pressly, In re, 92-135

• Decision Date: 04 June 1993
• Docket Number: No. 92-135,92-135
• Court: Vermont Supreme Court
• Parties: In re Thomas PRESSLY.

Page 927

628 A.2d 927

160 Vt. 319

In re Thomas PRESSLY.

No. 92-135.

Supreme Court of Vermont.

June 4, 1993.

A. Jeffrey Taylor, Rutland, for appellant.

Wendy S. Collins, Sp. Bar Counsel, Montpelier, for appellee.

Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

PER CURIAM.

Respondent Thomas Pressly appeals from a decision of the Professional Conduct Board recommending a public reprimand as discipline for his misconduct in violating Disciplinary Rule (DR) 4-101(B)(1) ("a lawyer shall not knowingly ... [r]eveal a confidence or secret of his client"). DR 1-102(A)(1); A.O. 9, Rule 7A(4). We affirm and impose the recommended sanction.

In 1989, respondent, a member of the Vermont bar since 1975, represented complainant in connection with relief from abuse and divorce proceedings. Complainant informed respondent that her husband had a history of alcoholism, battering, and abuse. After a hearing at which she was represented by respondent, complainant was granted a temporary order requiring her husband to refrain from abusing her, and, by stipulation of the parties, temporary custody of the couple's two children with supervised visitation by the father. About a month later, respondent filed a divorce complaint on his client's behalf. The parties negotiated an agreement under which complainant would retain temporary custody of the children and her husband would be allowed unsupervised visitation. Complainant, on respondent's advice, reluctantly agreed to the visitation provision.

At that time, complainant told respondent that she was being harassed by her husband, that his alcoholism was a continuing problem, and that she wanted the children's visits with their father to be supervised. Respondent advised her, however, that there were insufficient legal grounds to require supervised visits. Complainant continued to press respondent to help her prevent her husband from continuing unsupervised visitation, but no motion was filed seeking supervised visitation.

Near the end of August 1989, complainant told respondent her suspicions, based on consultation with a counselor, that her nine-year-old daughter had been sexually abused by the father. According to the counselor, a "yellow flag" went up when she observed several symptoms of abuse. Complainant told respondent her suspicions, the basis for them, and her plan to arrange for a doctor's appointment for the daughter, which she thought might provide needed evidence against the father. She asked that respondent not discuss her suspicions or plans with her husband's lawyer.

In response to opposing counsel's question as to why the wife continued to request supervised visitation and whether sexual abuse was an issue in the case, respondent, notwithstanding his client's request, revealed to him the suspicions of sexual abuse. Respondent then asked the husband's lawyer not to communicate this information to the husband. ^* The next day, opposing counsel wrote respondent stating, "I mentioned to [my client] the representation [your client] had made to you about their daughter making statements to her counselor about sexual abuse.... [They] are totally unfounded and he views them to be a blatant attempt on the part of [your client] to manufacture evidence to keep him away from his children."

Complainant confronted her attorney about the disclosure, and was told by respondent that he provided the information in response to questions from opposing counsel. She discharged respondent and retained new counsel. After the disclosure, complainant perceived that her husband became increasingly uncooperative, which heightened her sense of fear and anxiety and created emotional distress.

The report of the panel appointed to hear the wife's complaint was adopted verbatim by the Board, which agreed that respondent had violated Disciplinary Rule 4-101 of the Code of Professional Responsibility. In approving a public reprimand, the Board agreed that respondent, although he did not intend to harm his client, knew the disclosure he made was confidential.

Respondent raises numerous claims of error in the Board's determination and recommendation. He argues that the panel's findings that he acted "knowingly" and that complainant was injured by his conduct were not supported by the evidence; the Board's failure to find any additional mitigating factors was clearly erroneous; the sanction recommended was disproportionate when viewed in relation to other cases involving public reprimands; the Board's approval of the panel's findings, without issuing a separate written decision, violated Rule 8D of A.O. 9; and he was deprived of his due process rights because not all members of the Board received his brief prior to the issuance of the Board's decision. Respondent's basic claim is that the discipline does not fit the infraction and that under the circumstances only a private admonition is warranted.

Findings of the Professional Conduct Board "shall not be set aside unless clearly erroneous." A.O. 9, Rule 8E. This Court also gives deference to the Board's recommendations on sanctions. In re Berk, 157 Vt. 524, 528, 602 A.2d 946, 948 (1991) (citing A.O. 9).

In recommending public reprimand, the Board looked to the American Bar Association's Standards for Imposing Lawyer Sanctions (ABA Standards). The standards are a model for imposing sanctions on attorneys based on the ethical duty involved, the party to whom the duty is owed, the lawyer's motives and intentions, and the injury caused by the misconduct. Preface to ABA Standards. Section 4.2 of the ABA Standards provides guidance as to what sanctions are appropriate for failing to preserve a client's confidences. Absent aggravating or mitigating circumstances, Standard 4.22 generally recommends suspension when an attorney violates DR 4-101(B)(2) and the disclosure causes "injury or potential injury to a client." Standard 4.23 generally recommends a public reprimand when the lawyer negligently reveals a client confidence and "injury or potential injury to a client" results. Standard 4.24 recommends a private admonition when the lawyer negligently reveals a client confidence and "little or no actual or potential injury to a client" results.

The Board found that respondent acted knowingly, not negligently. The Board, however, looked to Standards 4.23 and 4.24 for guidance in determining what sanction was appropriate even though those standards refer to a lawyer acting "negligently." It believed a suspension would be "too draconian" under the facts of this case. The Board considered discipline to be a "close question" between a private or public reprimand. Respondent argues that his actions were in fact negligent and contends that the sanction should be reduced to a private admonition.

Whatever mental state we ascribe to respondent's conduct, he should have known not to disclose his client's confidence. He testified before the panel that he knew the information was to be held in confidence, but felt that when pressured as to why his client wanted supervised visitation, informing opposing counsel was best. When asked whether he had thought of ending the conversation with counsel by stating that an attorney-client privilege precluded him from revealing anything further, he stated "If I say that, I think I'm letting the cat out of the bag also." He understood that he should not have revealed what his client had requested him to hold in confidence; therefore, his conduct satisfied the "knowingly" element of DR 1-102(A)(1).

"Knowingly" has two connotations, however. In addition to the knowledge respondent had that his conversations with his client were protected under the attorney-client privilege, the Board may consider in fashioning a remedy the degree and quality of the lawyer's knowledge in committing the violation; for example, whether respondent actually considered the repercussions...