Themelis, In re, 1786
| Decision Date | 02 October 1951 |
| Docket Number | No. 1786,1786 |
| Citation | 117 Vt. 19,83 A.2d 507 |
| Court | Vermont Supreme Court |
| Parties | In re THEMELIS. |
Clifton G. Parker, Atty. Gen., for plaintiff.
Franklin P. Jones, Bennington, for defendant.
Before SHERBURNE, C. J., and JEFFORDS, CLEARY, ADAMS and BLACKMER, JJ.
This is a presentment by the Attorney General charging the respondent, an attorney of this Court, with unethical and unprofessional practice of the law and seeking his disbarment because he represented adverse interests in seven separate actions for divorce, the first two involving one married couple and the last five involving another married couple.
In October, 1947, the respondent acted as attorney for one Robinson in a divorce action brought by his wife charging intolerable severity, non-support an desertion; that case was discontinued. Two years later the respondent brought a similar divorce action for Mrs. Robinson, charging the same grounds for divorce. The respondent's answer in this proceeding for disbarment states that both of the Robinsons knew of the prior employment and consented to the bringing of the second action; that all facts and conduct relevant to the first action were condoned by reconciliation of the parties; that the second libel mentioned that the prior action had been brought and subsequently discontinued; that no hearing was ever had and that no harm came to either party as a result of the respondent's conduct.
The other five cases are more involved and it is necessary to give the details. On June 21, 1947, the respondent brought a divorce action for Mary Squiers against Robert Squiers charging adultery, intolerable severity, non-support and desertion. On August 12, 1947, the respondent, as attorney for Mrs. Squiers, requested that said action be entered 'Discontinued' on 'the ground of reconciliation' and that was done. On July 9, 1947, Robert Squiers brought a divorce action against Mary Squiers charging intolerable severity and seeking a temporary custody order relating to the children of the parties. Temporary hearing was had on July 12, 1947. The respondent acted as attorney for Mrs. Squiers and on July 14, 1947, he filed a written motion to reopen the case. That case was discontinued on August 26, 1947. On August 15, 1947, Mrs. Squiers brought a divorce action charging Mr. Squiers with intolerable severity, non-support and desertion. The libel mentioned the action brought on June 21, 1947, but did not mention the action brought on July 9, 1947. No apearance of record was made by the libellee or any attorney in his behalf in the case brought on August 15, 1947, but on August 25, 1947, a stipulation was made and filed relative to matters of support, custody of children and disposition of property. The respondent acted as attorney for Mrs. Squiers in all matters relating to that case and it was entered 'Discontinued' on February 18, 1948. On February 19, 1949, Mrs. Squiers brought an action for support against Mr. Squiers and alleged the prior stipulation of the parties in the divorce action brought by her on August 15, 1947. After hearing a temporary order was issued on March 5, 1949, and the case was entered 'Discontinued' on December 6, 1949. The respondent acted as attorney for Mr. Squiers in all matters relating to that petition for support. On June 11, 1949, Mr. Squiers brought an action for divorce against Mr. Squiers charging intolerable severity, non-support and desertion and referred only to the two prior proceedings between the parties brought on August 15, 1947, and February 19, 1949. The respondent acted as attorney for Mr. Squiers in all matters relating to the action brought on June 11, 1949, and on April 3, 1950, filed a written motion for discontinuance. That entry was made on April 8, 1950.
The respondent's answer states that the failure to mention the action of July 9 1947, in the case brought on August 15, 1947, was by inadvertence and not intentional; that before appearing for Mr. Squiers in the action for support, brought by Mrs. Squiers on February 19, 1949, the respondent disclosed to the court his prior retainer by Mrs. Squiers and continued to act for Mr. Squiers in the action of February 19, 1949, only after the court expressed its willingness that he appear; that no objection was made by Mrs. Squiers or her attorney, both of whom were present at the time he made said disclosure to the court; that said appearance followed a reconciliation of the parties subsequent to the action of August 15, 1947, condoning all conduct prior to the reconciliation, including the facts on which the cases brought on June 21, 1947, July 9, 1947, and August 15, 1947, were based; that no material fact was concealed from the parties or the court; that no trial was ever had and that no harm came to either party as a result of his conduct.
At the time the action of February 19, 1949, was pending the respondent did tell the court of his prior employment by Mrs. Squiers. The presiding judge then told the respondent 'that it was a matter for the respondent to decide, that he knew what the ethics of the situation were and what it would require of him to be released by one side and to be hired by the other, and that he should be governed by the dictates of his conscience and do what is right; that he was not barred from going ahead with the matter if he so desired.'
The presiding judge erred when he said that the respondent was not barred from going ahead with the matter if he so desired. The matter then pending and to be heard by the court was the temporary support and custody of the minor children of the parties. The respondent was allowed to appear for the husband although he had previously appeared for the wife in a previous action brought by her which involved the identical question. There was a clear conflict of interest and the court below had not only the right but the duty to prohibit the respondent from acting as attorney in the case.
Section 22 of the former Code of Ethics of the Vermont Bar...
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