Ruminations
| Publication year | 2013 |
| Pages | 8 |
Fall, 2013
THE GREAT FALLS: A SURVEY OF THE REGULATION OF THE PROFESSION OF LAW 1778-2013
Paul S. Gillies, Esq.
In Adam's Fall, We Sinned All.
Isaac Watts, The New England Primer (1777)[1]
Aristotle, in his Poetics, measured tragedy by the depth of the fall. The fall of an utter villain is "neither pitiful nor terrible." The tragic figure is one who is "highly renowned and prosperous, " brought down by "some great error or frailty."[2]
The profession of law elevates those who are licensed, giving them special powers, beyond those inherent in the general population. Once elevated, the licensees become responsible for their acts. Justice Allen Sturtevant explained why the law should punish those who act as lawyers without credentials, and why we license lawyers: "The office of an attorney is an important one. He represents the interests and stands in the place of his clients. Great matters are entrusted to his care, and it is necessary that sufficient regulations be had with reference to them. An unqualified person in his practice is not under oath, nor has he ever satisfied the court of his qualifications and ability to practice. He is not learned in the law. He is not under the supervision or control of the courts, nor can he be reprimanded or disbarred for any unprofessional conduct. The public has a right to be protected against the unauthorized practice of the law by unqualified persons."[3] Lawyers are licensed so they can be regulated, and disbarred, if necessary.
We regulate for various purposes—to punish the respondent, to provide notice to others of what wrongs are actionable, to protect the public, and to protect the reputation of the profession. Bad lawyers are bad business for everyone, and from the beginning, the reputation of lawyers has always been bad. "No one born in Ripton, " wrote Samuel Damon, its historian, "has had the misfortune to be a doctor, lawyer, judge, or member of any of the learned professions."[4] Ira K. Batchelder was the only lawyer in Peru for many years, something which Nancy M. Haynes explained "is at once a credit to the town as well as to him."[5] "Lawyers have never thrived in this locality, " wrote Gay H. Naramore, historian of Underhill. "Cheese making or horse raising is usually esteemed more honorable as well as lucrative."[6]
By 1869, there had been about twenty-five lawyers who had practiced in Lyndon. George Cahoon, an early historian of the town, wrote, "It is lucky that they were not all here together, for it would have been dry pickings, and some might have obtained a bad name; but spreading them over a space of nearly 60 years, they all had had opportunities to make themselves useful. Some look upon a lawyer as a sort of harbinger of evil, but this is illiberal, his duty is to suppress evil; and if governed by principle, he will endeavor to do it."[7] Before Orion W Butler came to Stowe in 1826 to practice law, there was a strong local prejudice against lawyers, who were considered, if not an absolute nuisance, "certainly no better than a necessary evil."[8]The first two lawyers in Benson stayed only a few months, were "held in poor repute" and "went elsewhere, or absconded."[9] When Concord attorney David Hibbard, Jr., died, they said the community had lost an "honest lawyer, " as if that were an anomaly.[10]
Lawyers are not all alike, even as they are held to the same high standards. Their relative strengths and weaknesses reflect those in the general population. Augustus Young, Stowe's first lawyer, lacked the tact and "shrewd knowledge of human nature, so necessary to successful practice as a lawyer. The world seemed to be a little too fast for him, and he was often behind time in fulfilling his purposes."[11] How familiar that sounds. We wrestle with priorities, deadlines, and demands, leaving no time for deliberation. We take shortcuts. We forget things. We make mistakes.
"No rogue e'er felt the halter drawn. With good opinion of the law."[12] When people lose lawsuits, go to jail, fail to achieve their expectations in court, lawyers are among the first to be blamed. Some clients will complain. Some will file professional conduct complaints. Some complaints will sting, and some will be fatal (at least, to a career).
A very small percentage of attorneys fall so far that their licenses are affected. In our history, at least forty lawyers have been disbarred, sixty-nine have been suspended, seventy-two have received public reprimands, and 141 have received private admonishments. Eight have been reinstated, after disbarment.[13] It is an incomplete record, however. There are voids in the reporting. Relying on what can be found in published reports of actions of the various systems of lawyer discipline over the history of Vermont, this survey attempts to sum up what lawyers have done wrong and how they have been sanctioned for those acts or failures to act, and to reflect on why it happens.[14]
Lawyers have been sanctioned for their behaviors from the beginning, but not always by the Court.[15] Charles Phelps moved to Marlboro in 1764 and opened a law office. He was the third settler of that place. As a Tory, his property was seized by the Court of Confiscation in 1784, including his law library, which became the foundation of the first Vermont State Law Library.[16] There was an attorney in Concord named Richardson, who, "becoming obnoxious to the people, was rode out of town upon a blacksmith's bellows."[17]
Professional regulation is distinct from the criminal law.[18] Some lawyers have been convicted of crime, but the most a lawyer can suffer from the disciplinary process is the loss of a license. You are demoted, returned to non-privileged status, defrocked, stricken from the rolls. A license is not a right, and not every due process advantage is given to lawyer-respondents.[19] Convictions of a civil and criminal nature can have an effect on the Court's decision to disbar an attorney. Through the power of contempt, or some power akin to it, lawyers are regularly sanctioned in situ, by trial judges.[20] And there is always a legal malpractice claim, waiting in the wings.[21] But in the regulation of lawyers, the standards are different.
Those standards changed over time. Before the adoption of the Code of Professional Responsibility in 1971 and the Rules of Professional Conduct in 1999, the Supreme Court had no adopted, formal set of standards by which to measure the conduct of lawyers, except by reference to the Vermont Bar Association Code of Ethics and later the ABA Canons. Earlier still, there was only discretion to guide the Court, applying the oath that attorneys took upon admission as the guide. A chart of sane- t ions over time would show that what began very slowly and tentatively at the end of the nineteenth century has grown into a mature system today, with the resources and administrative support necessary to ensure its own integrity.
Before we get to integrity, let's start with authority. Although early laws gave the Court the right to admit attorneys to practice, and impliedly to delicense them. Justice Sherman Moulton noted in 1932 that "The Court's inherent power of discipline is not derived from the Constitution, or, necessarily, from the statutes of the State. It has existed from time immemorial."[22] In 1988, Chief Justice Frederic Allen refined that idea, explaining, "The inherent power of discipline exists in the trial courts as well, albeit their powers are less than those of this Court."[23]
Authority to Regulate
The 1974 Constitutional amendments gave the Vermont Supreme Court the express constitutional power to discipline attorneys.[24] "The Supreme Court shall have administrative control of all the courts of the state, and disciplinary authority concerning all judicial officers and attorneys at law in this State."[25] Prior to 1974, the power was described by legislation. The first act of the first legislature was to regulate attorneys, in 1778.[26] This law authorized the superior and county courts to "approve of, nominate and appoint" attorneys who would take the oath:
You ___________solemnly swear by the everliving God, that you will do no falsehood, nor consent to any to be done in the court; and if you know of any to be done, you shall give knowledge thereof to the judges, or justices of this court, or some of them, that it may be reformed: you shall not, wittingly and willingly, or knowingly, promote, sue or procure to be sued, any false or unlawful suit, nor give aid or consent to the same: you shall demean yourself in the office of an attorney within the court, according to the best of your learning and discretion, and with good fidelity, as well to the court, as to the client. So help you God.[27]
The statute ordered that "whosoever shall transgress rules of pleading appointed by any court, shall be liable to suffer such fine for every such offense as the said courts shall impose, not exceeding the sum of five pounds."[28] Attorneys were obliged to charge no more than a schedule of fees, and added, "the party that shall recover judgment shall have his attorney's fees according to the above regulations, allowed as part of cost of trial." The fee for each case in the superior or county court was six pounds, as compared with the county surveyor's per diem fee of six pounds, ten shillings.[29] Surveyors enjoyed a better income than attorneys at that time.
The law was amended in 1787 to give the Supreme Court of Judicature—renamed from the Superior Court—the exclusive right to appoint and admit attorneys at "their bar, " and county courts to admit attorneys to their venues. The 1787 act also required attorneys to have at least three years of study with a Vermont licensed attorney or have earned a B.A. at a university or college and studied two years, and to pass an examination, to show "competent knowledge...
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