Wednesday, January 12, 2011

Supreme Court Shows Soft Spot for Liar with a Heart of Gold

In re Melvin B. Neiser, 2010 VT. 102

Stop me if you have heard this one before.  Attorney attends two weddings in one day, has a few dips in the champagne fountain at each, and then rolls over to his office.  On his way there, he gets behind a couple of out-of-state choppers on the Killington Access Road who are going way too slow for someone who has seen it all before.  In a bold move, our protagonist darts around them and speeds up, just to let them know how frustrated he was with their driving choices.  To put a fine point on the gesture, Attorney slams on the brakes and then keeps jamming to the office, barely looking back.  What the Attorney later claims not to realize is that his sudden stop resulted in a chopper down and a driver in critical condition. 

But not for long. As he heads back down the Access Road, Attorney gets an eyeful.  Then he does what anyone would do—he scurries home, quaffs a few drinks, (let us speculate that the first one was for his nerves, but the next four were to throw off any breathalyzer), waits, and uses some of that law school intellect to think his way out of this predicament.  Enter the Trooper sent to investigate (as Chekhov might have imagined it).

Trooper:           Sir, there has been an accident, is that your car in garage?

Defendant:        Yes, my wife was just driving it.

Trooper:           Your wife?

Defendant:        Of course.  As you can plainly see, I am far too intoxicated to operate a motor vehicle.  I hope she has not done anything wrong.

Trooper:           To the contrary, Sir, I believe she has hit a motorcycle and fled the scene of an accident.

Defendant:        Oh no!  I am sure the driver was going way too slow, and she hit him out of sheer innocent frustration.  In fact, I am sure he did.

Trooper:           He?

Defendant:        Slip of the tongue.  I was with her you know.  I just forgot, being as intoxicated as I am.  Well, you know. . . Dear?  There is a man here who wants to see you.

And so Attorney allows the Trooper to cart his wife off to jail in his stead.  Not that it does not weigh heavy on his soul, as that very night he checks himself into rehab.  And 30 days later, he boldly confesses to the Trooper that when he said, “my wife was driving us, and she must have hit the motorcyclist,” he forgot to add the all important phrase, “everything I am about to tell you is not true.”

While Defendant Attorney’s criminal adventures are recorded elsewhere, the present appeal lies with the Professional Conduct Board’s decision. 

Making one of his easier choices of 2009, Disciplinary Counsel sought charges against Defendant for violating Professional Rule of Conduct 8.4(b), which prevents attorneys from engaging in a crime involving lying and deceit.  Defendant does not dispute this violation.  For the record, telling a Trooper that your wife struck down a motorist when you actually did it yourself is an ethical violation.  Not an issue that comes up too often in a professionalism seminar, but one that is nevertheless nice to have nailed down by the SCOV.

The dispute below and on appeal is one of punishment.  At the Board’s hearing, Defendant regaled the Board with his success in regaining sobriety, his public service (including swinging the Moderator gavel at Town Meeting), and his otherwise clean record of professional service.  The Board agreed that these factors were mitigating and granted Defendant a reprieve from disbarment.  Instead, the Board sentenced Defendant, who had voluntarily surrendered his license to practice law, to time served plus an additional year of license suspension, followed by a year of probation plus 500 hours of community service. 

The presumptive punishment for violating 8.4(b) is disbarment, so Defendant clearly became a winner in this case from the moment SCOV ruled it out.  (Keep in mind that appealing the Board’s decision to SCOV hits the re-set button on any disciplinary outcomes.)

On appeal, the SCOV looks to the standard of what “protect the public from persons unfit to serve as attorneys and to maintain public confidence in the bar.”  The SCOV determines that a two years license suspension, including time served, a year’s probation, and 200 hours of pro bono service will fit the need.  This constitutes a slight reduction/modification to the Professional Conduct Board’s sentence since the Board had in late 2009 sentenced Defendant to a two-year suspension with credit for one year served, an additional year’s probation, and 500 hours of pro bono service.  The basis of the reduction appears to come from a simple weighing of aggravating and mitigating factors.  In the SCOV’s judgment, the mitigating factors (his previously clean record, his past and continuing public service, his otherwise good character, his alcohol problem, his acknowledgment of the wrong, and his cooperation with the Board) outweigh the aggravating factors (Defendant’s inherently dishonest motive, his lengthy experience as a lawyer, and the illegal conduct motivating the action).  We could parse through these factors further and offer our own outcome, but it is essentially a judgment call for the SCOV and by the unanimous decision, one that all five members felt was appropriate. 

As a final issue, Defendant argues that the Board took too long to issue its decision, per the 60 days allocated by rule, but SCOV notes that the Rule carries no penalties. Hence, the no harm, no foul doctrine.  Despite, this final setback Defendant will back to commuting on the Killington Access Road in no time. 

With this case and the accompanying State v. Neiser, we are just a Neiser v. Neiser away from a SCOV trifecta.  

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