Ramifications of Responsibility

By Andy Delaney

One of the first things we learn as hatchling lawyers is that relabeling an argument, while tempting, rarely leads to a different result. 

I'm covering one of the opinions (criminal) this week and the entry order (professional responsibility). Kruska has the other two.   

We'll start with the opinion. 

In appellant's latest SCOV trip, he tries to repackage a challenge to his conviction as an "illegal sentence" under the rules of criminal procedure. The rules, however (specifically Rule 35), presuppose a valid conviction and lets the trial court fix only sentences that are not authorized by law. 

Appellant was convicted of felony lewd and lascivious conduct. In his first appeal, he challenged the conviction as unconstitutional in that the same conduct could be a felony or misdemeanor—lewd and lascivious conduct v. lewdness—but that went nowhere because "lascivious" kicks it up a bit. 

He then filed a motion to "correct" his sentence, which the trial court denied.  

So, he appeals and tries to shoehorn the unconstitutional argument into a different package, arguing that the sentence was grossly disproportionate for the conduct convicted of.  

The problem here is that correcting a sentence is a "narrow function"—it's only available to correct an illegal sentence, and can't be used as a vehicle to relitigate trial errors or raise the constitutional issue again. Appellant's whole pitch depends entirely on his view that the evidence showed only "misdemeanor-level conduct" or at least conduct that could just as well fit the misdemeanor statute. Sound familiar? Because the sentence here falls within the acceptable range, it's not "illegal," so the trial court power doesn't have to vacate it. SCOV appears to leave the door open for a post-conviction relief challenge.  

On the abuse-of-discretion-in-imposing-the-sentence front, appellant fares no better. SCOV takes a look but doesn't see anything particularly out of order on the sentence.

This one gets affirmed. State v. Smith, 2026 VT 22. 

Next up, we have a reciprocal-discipline case. The basic rule is that when a lawyer is disciplined in another state, and they're licensed in Vermont, SCOV will impose the same discipline unless there's a good reason not to. 

A Connecticut board found that respondent committed violations of the (Connecticut) rules of professional conduct (and also committed misconduct when she failed to timely respond to the grievance against her. "It publicly reprimanded respondent and, based on its conclusion that respondent engaged in unethical conduct, directed her to engage in continuing legal education in legal ethics within a certain timeframe."

When a Vermont-licensed lawyer is disciplined in a different jurisdiction, they're supposed to tell disciplinary counsel. Respondent did not. 

So, SCOV put respondent and disciplinary counsel on notice that they had 30 days to tell SCOV if there was some reason reciprocal discipline shouldn't be imposed. 

Respondent had reasons. Unfortunately, they were not the reasons that get the job done. SCOV says: "her response essentially attempts to relitigate the merits of the Connecticut decision. She raises arguments that the Connecticut Statewide Grievance Committee considered and rejected. Respondent also suggests that she has been punished enough, and it would be 'entirely unwarranted' to impose reciprocal discipline in Vermont." Do I even need to explain how SCOV rules?

SCOV imposes reciprocal discipline and publicly reprimands respondent. One point I will note is that this entry order contains little detail of respondent's underlying offenses, other than the brief procedural history above.  

I've said it plenty of times before, but I'll say it again: professional responsibility is a different animal. The lawyer that treats it like a criminal prosecution and defends it in that vein is asking for (more) trouble. Nobody's perfect. And that's kind of where you have to start with these types of cases. 

I always think of a parent saying, "And what did we learn?" to a kid that has just felt the consequences of a poor choice. (My mom said this to me a lot as a kid.) And that's really what the bar wants to know—did you learn a lesson or is this likely to happen again without some intervention? In re Wilson, 2026 VT 23 (mem.)