Thursday, August 22, 2013

Out from Beneath the Sword


In re McCarty, 2013 VT 47

Cicero did not specify how long the proverbial sword hung by a thread of a single horse-hair over the head of Damocles, but it surely was not the nearly 12 years it took to resolve today’s case.

On the other hand, Damocles was just an obsequious courtier in ancient Syracuse who thought it would be fun to occupy the king’s throne, in all its sybaritic glory, regardless of what dangled overhead.  In contrast, this is a disciplinary proceeding involving an attorney whose conduct of August 17, 2001 produced enduring misery for all involved.

The underlying events involved a landlord-tenant dispute.  But regardless of the nature of the controversy, from a purely literary standpoint you know you are in for an unusually compelling read when a quick scan of an appellate opinion reveals this concise sentence:  “Chaos ensued.”


Indeed it did.  In July of 2001, a homeowner with an extra bedroom agreed to take on a tenant.  It was strictly an oral agreement but, as the opinion notes, such arrangements are enforceable under Vermont law.  Tenant moved in but, within weeks, landlord was hospitalized with bipolar disorder.

Landlord’s adult daughter, who lived in Massachusetts, grew “uncomfortable” with tenant continuing to live at the house in these circumstances, particularly because daughter suspected tenant of making unauthorized use of landlord’s ATM card.  So, daughter told tenant she had 30 days to get out of her mother’s house—making the deadline September 9, 2001.

Then and only then did daughter ring up her mom’s longtime attorney—a veteran practitioner who was first admitted to the bar in 1967 and who, as we shall see, apparently enjoyed good relations with the local sheriff’s office.

On August 16, 2001, tenant received a letter from lawyer informing her that she had until September 9, 2001 to vacate the premises.  But then he wrote a second letter, this one telling her vacate immediately—and to it he appended a document bearing the title “Notice to Vacate” and ginned it up to look like a court order in a suit brought by landlord against tenant.  Then lawyer got one of the local deputy sheriffs to serve both documents on tenant on August 17, telling her she had to get out at once.  When tenant protested that she had the right to stay until September 9, the deputy sheriff threatened to handcuff her and take her into custody.

Here, according to the SCOV, is where the chaos truly began.  Tenant became hysterical because she had nowhere to go and no one to care for her dog.  The pet ended up with animal control and the tenant ended up at the local emergency room.  Tenant thereafter suffered from post-traumatic stress disorder, intermittent homelessness and a resurgence of substance abuse problems.

 Landlord didn’t fare too well either.  When tenant sued her for wrongful eviction, a jury awarded $290,000 in damages—plus attorney fees and court costs.

Though lawyer was dismissed from the wrongful eviction litigation, the law eventually caught up with him in the form of proceedings before the Professional Responsibility Board alleging that he violated the Vermont Rules of Professional Conduct by engaging in fraudulent behavior, making false statements, and violating the rights of others.  The Board imposed a six-month suspension from the practice of law, and lawyer appealed to the SCOV.

A notable lack of success on appeal ensued.  In particular, the SCOV rejected lawyer’s laches argument—“laches” being one of those legal terms that nobody can pronounce correctly because it floated over to England, and found its way into the common law, as a result of the Norman Conquest.  Basically, when you argue “laches” (rhymes with “[door] latches”) you are claiming that the other side waited too long to go after you.  

The SCOV professed zero sympathy for lawyer even though nothing happened for five years after disciplinary counsel first determined in 2005 that there was probable cause to find a rules violation.  For laches, to succeed as a defense, requires prejudice—and the Court said there was none, even though the passage of time left the deputy sheriff unavailable and the landlord dead, thus attenuating their ability to contribute meaningfully to the factual record.  The SCOV also brushed aside several other arguments challenging the disciplinary panel’s factual determinations.

Still, the SCOV’s opinion leaves the impression that the passage of time does indeed have everything to do with not costing this attorney his license altogether.  The proceedings at issue here were but the most recent of six disciplinary actions ranging from neglect of client matters to lying to the court.  Thus bar counsel—i.e., the prosecutor—sought disbarment whereas the SCOV ended up cutting the originally imposed six-month suspension in half.  The SCOV highlighted the fact that attorney appears to have overcome “previous chemical dependency” and has had no known violations of the disciplinary rules since his fateful decision to draft and serve a fake court order more than eleven years ago.


According to Cicero, Damocles got out from beneath the sword by giving the real king his throne back—and the tyrant who devised this trial taught his courtier a symbolic lesson about risk and reward—and the price of luxury and excess.  

Here, the SCOV disclaims any intention to impart wisdom to attorney and insists that the sole purpose of sanctioning lawyers is “to protect the public and the profession.”  But the story’s denouement gives one hope that the protagonist might have learned the same lesson that Damocles did about the risk of indulgence and the ability to walk away.

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