Saturday, October 4, 2014

A Question of Character

In re Katherine Pope, 2014 VT 94

By Timothy Fair

How important is the character of the individual representing your legal interests?

When most people think about the arduous journey of becoming an attorney, the first hurdle that leaps to mind is the dreaded bar exam. Lesser known to the general public are the understated, but arguably more important, requirements of character and fitness. While each state has its own ideas as to what constitutes “good character,” honesty, integrity, and candor to the tribunal are pretty much universally accepted as essential personality traits for any would-be barrister. In this case, we have a unique opportunity to see precisely why this is. As an added bonus, we also get the chance to see firsthand that what constitutes really bad decisions for an attorney in New York also constitutes really bad decisions for the same attorney in Vermont.

At issue is whether the Vermont Supreme Court should impose the identical two-year suspension from the practice of law that was levied against the respondent by the State of New York. Before we can address this question, however, a little background is necessary.

Prior to 2014, respondent was a practicing attorney licensed in both New York and Vermont. In April 2014, the Vermont Supreme Court was notified by disciplinary counsel of the Professional Responsibility Board that respondent had been suspended from the practice of law in New York for a two-year period. The suspension was a direct result of Ms. Pope having been convicted of Identity Theft in the Third Degree (The New York penal code creates umpteen degrees for every crime imaginable).  According to respondent, this conviction arose out of her attempt to "help" an elderly friend liquidate various stock holdings, in order to "help" her pay for needed medical care. Apparently, this "help" also involved respondent making phone calls to various financial institutions and falsely identifying herself as her friend. These representations were made by respondent in order to obtain information necessary to facilitate the financial transactions. According to respondent's own statement, this "help" also included liquidating enough of her friend's assets to make herself and her husband a $750,000 loan to purchase real estate, secured by a promissory note.

Apparently failing to recognize these actions as the altruistic acts they were professed to be, New York authorities instead charged respondent with Grand Larceny and Identity Theft in the First Degree, both felonies. Despite respondent's adamant denial of any wrongdoing or ill intent, she eventually pled guilty to the amended charge of Identity Theft in the Third Degree, a misdemeanor, in exchange for the dropping of the felony counts. Although the plea required her to admit to the court that she had assumed another's identity "with intent to defraud" and by so doing "obtained property that belonged to another,” our misunderstood good Samaritan continued to profess her innocence and insisted that the only reasons she accepted the plea were her husband's failing health and mounting legal fees. Following the suspension of her license to practice law in the State of New York, respondent appeared in front of the Vermont Supreme Court to learn the fate of her privilege to practice law here.

The Vermont Supreme Court has attempted to bring some state-to-state uniformity within the legal profession. Simply put, the rule says that if a Vermont attorney is disciplined in another jurisdiction, that attorney will receive the same discipline here. The rule does, however, provide the attorney a chance to demonstrate why the Supreme Court should not blindly follow the imposed discipline of another jurisdiction. In order to win this argument, the attorney must make a showing that they were denied due process in the original hearing, that there was a lack of adequate proof in the original hearing, that the misconduct warranted significantly different punishment in Vermont, or that the imposition of the same punishment would result in "grave injustice" (however one defines that).

Once back in Vermont, and facing a reciprocal two-year suspension under the rule, respondent challenged the imposition of identical discipline. In her pleading, and in a hearing before the Court, respondent reiterated the facts above and argued that the evidence produced at trial and the dismissal of the felony charges largely exonerated her from the more-serious criminal charges. Thus. Vermont was not required to impose identical discipline. Disciplinary counsel agreed with respondent and, based upon its finding that the misconduct warranted significant different punishment here in Vermont, recommended that the Court issue a public reprimand.

Now, how does this type of behavior reflect on the profession as a whole? And as a consumer of legal services, how can one be sure of the integrity and character of any given attorney? These are the questions considered by the Vermont Supreme Court in its opinion.

The Court disagreed with disciplinary counsel, and imposed the identical two-year suspension on respondent. In making its decision, the SCOV found that the admissions made to the New York court by respondent as part of her guilty plea, taken in consideration with her statements about misrepresenting her identity, clearly indicate deceptive behavior that seriously adversely reflects on her ability to practice law. 

 Early in its opinion, the Court makes clear that issues of attorney misconduct command more concern and attention than any other. "The subject raises issues of the most serious nature regarding the integrity of the bar, the safeguarding of client interests, and the preservation of public confidence in the legal profession, its commitment to the maintenance of high ethical standards, and its capacity to respond to ethical transgressions."

 In other words, it is cases like these that define the way the legal profession is viewed by the rest of society. Attorneys, by nature of the job, often find themselves operating outside of the normal system of checks and balances that keep the rest of the world honest. Opportunities to take advantage of others for personal gain are greater in the legal profession than in many others. As a result, it is essential for an attorney to maintain the utmost levels of professionalism and integrity whether it is in the course of representing a client, or while helping a friend with a financial transaction. The actions of respondent indicate a willingness to break the law and deceive others to reach a desired result. 

The SCOV thus imposes an identical suspension.   

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