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In re Brittain

Supreme Court of Vermont

May 5, 2017

In re Eric S. Brittain, Esq.

         Original Jurisdiction From Character and Fitness Committee

          Neal Rodar, David E. Tartter, Esq. and Herbert J. Downing, Esq., Panel Members Robert Appel, Burlington, for Petitioner-Applicant.

          William H. Sorrell, Attorney General, and Benjamin D. Battles, Assistant Attorney General, Montpelier, for Respondent-Appellee.

          PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.

          ROBINSON, J.

         ¶ 1. Applicant appeals the decision of the Vermont Character and Fitness Committee to decline to certify his good moral character and fitness, which prevented his admission to the Vermont Bar. We affirm.

         ¶ 2. Applicant applied for admission to the Vermont Bar in March 2015. Pursuant to what was then Vermont Rule of Admission to the Bar 11(d), the Character and Fitness Committee appointed a member of the Committee to investigate applicant's moral character and fitness and to decide whether to certify applicant's admission. The member assigned to applicant's application reported in July that he could not recommend applicant's admission. The member noted three areas of concern: applicant's disciplinary history in Wisconsin, including multiple contempt charges and a public reprimand; other "inappropriate past activity, " including speeding tickets, a conflict with a previous employer, and applicant's failure to take responsibility for those occurrences; and his record of financial difficulties.

         ¶ 3. Pursuant to Rule 11(g), the Committee convened a three-member panel to hold an evidentiary hearing to allow applicant the chance to present additional information to support his application. At that December 2015 hearing, applicant and the panel agreed that the record to be considered by the Committee consisted of his application to the Vermont Bar, including attachments, the written record of his application to practice law in the State of Washington, and correspondence between applicant and the Committee. Applicant testified under oath and answered questions from members of the panel.

         ¶ 4. In a written decision issued in January 2016, the hearing panel acting on behalf of the Committee declined to certify applicant's good moral character and fitness. Such certification is a prerequisite to admission to the Vermont Bar. The panel's written findings include the following.

• Applicant graduated from the University of Wisconsin Law School in 2002 and was admitted to practice in Wisconsin in 2003.
• He is an attorney in good standing in Wisconsin, the U.S. District Courts in Wisconsin, and the U.S. Court of Appeals for the Seventh Circuit.
• From 2003 to 2006, he was employed as a lawyer with the Wisconsin State Public Defender's. In 2005, friction developed between applicant and his employer concerning a policy issue involving juvenile defendants. Applicant expressed his views on the issue publicly, was suspended for insubordination, and resigned in July 2006 to go into private practice. Applicant does not regret his vigorous advocacy in connection with the policy question.
• From July 2006 through May 2012, applicant was self-employed as a lawyer in Wisconsin, specializing in representing indigent criminal defendants.
• In November 2008, in the matter of State v. Kostopoulos, applicant was held in contempt of court for insubordination to the court.
• In November 2009, in the matter of State v. Carter, applicant suggested in the course of a hearing on a routine discovery motion that the judge suffered from a physical health issue that affected her "ability to be appropriate."
• As a result of the two above incidents, the Wisconsin Office of Lawyer Regulation filed a disciplinary complaint against applicant in June 2012. Applicant ultimately admitted the allegations of the complaint, did not oppose the imposition of a public reprimand, and agreed to pay specified costs. Applicant did not contest the proceedings because litigation would have interfered with his family's travel plans and because his lawyer told him it was a "set up, " that he had little chance of success, and that he faced greater financial exposure if he contested the charges.
• In July 2010, applicant was held in contempt in the case of State v. Echols for ignoring instructions of the court, insisting on referring to his client by first name, and injecting his personal views.
• In April 2011, applicant was held in contempt twice in the same proceeding, State v. Donald-once for a personal attack on the prosecutor, and once for inappropriate behavior during voir dire.
• In August 2011, applicant was charged with violating a municipal ordinance relating to airport security. Applicant had gotten into a dispute with a TSA officer after he refused to present identification as part of the pat-down process.
• In December 2011, a bank initiated foreclosure proceedings against applicant and his wife for a condominium property. The condominium had been damaged by high water and was partly uninhabitable. The applicant did not have adequate insurance to cover the loss. Applicant abandoned his home to the bank. He is unaware of any deficiency liability claimed by the mortgagees.
• Applicant closed his law practice at the end of May 2012. He maintains that he cannot practice law in Wisconsin because of unfair treatment by Wisconsin judges in retaliation for his efforts to uncover the racially motivated illegal activities of the Milwaukee Police Department and District Attorney's office.
• In October 2012 applicant wrote an open letter to the United States Department of Justice stating that his contempt citations in the State v. Echols and State v. Donald cases and his problems in State v. Carter were the result of his attempts to expose corruption in the Milwaukee Police Department and District Attorney's office. The applicant submitted this letter to the Character and Fitness Committee to support his contention that the initial reviewer of his application was not treating him fairly.
• From June 2012 to January 2014 applicant lived in New Zealand. He has lived in the State of Washington since January 2014.
• Applicant is repaying approximately $260, 000 in student loans.
• In May 2013, applicant applied for admission to the bar of the State of Washington. After a day-long hearing on his application, including numerous witnesses regarding the above incidents, the Character and Fitness Board voted eight to one to grant his application for admission. The Washington Supreme Court denied the application in November 2014.
• In the Vermont proceeding, applicant has registered his concern that he is not being treated fairly and that he is being punished for being a whistleblower against illegal state action. He was not able to show any direct causal link between his zealous advocacy on behalf of indigent, minority clients in Wisconsin and his disciplinary issues, but argued that denying his application to practice in Vermont would be tantamount to "aiding and abetting" the unjust treatment he received at the hands of the authorities in Wisconsin.

         ¶ 5. On the basis of these facts, the Committee concluded that there was nothing in the record to suggest that applicant was dishonest or could not be trusted to carry out his responsibilities as a lawyer. It further concluded that the bankruptcy was fourteen years ago and not relevant to his present fitness, the foreclosure of his property was a result of a natural disaster and not necessarily any fiscal mismanagement, and applicant was current on his student loans.

         ¶ 6. However, citing his four contempt citations by three different judges, and his stipulated violations of the rules of professional conduct on two occasions, the Committee concluded that the applicant's past professional conduct "demonstrates a lack of restraint in the courtroom and a disturbing tendency to imprudently challenge those he perceives as obstacles to his zealous advocacy." The Committee acknowledged that taken individually the incidents might be dismissed as petty squabbles between an overly zealous lawyer and an unsympathetic judge. But it concluded, "[a]s a whole, they demonstrate a disturbingly self-destructive pattern of behavior that has plagued the applicant since he was first licensed." The Committee noted that applicant's employment dispute and his difficulties with the TSA "further demonstrate a lack of respect for persons in authority and refusal to follow orders and instructions that contradict his personal code of ethics."

         ¶ 7. The Committee concluded that applicant's "undignified and discourteous conduct over several years . . . is directly contrary to the state's legitimate interest in protecting prospective clients and the system of justice." The panel cited commentary to the Vermont Rules of Professional Conduct that advises that a lawyer should refrain from abusive or obstreperous conduct. V.R.Pr.C. 3.5(d) cmt. 4. The comment explains that a lawyer may "stand firm against abuse by a judge, " but should not reciprocate: "An advocate can present the cause, protect the record for subsequent review, and preserve professional integrity by patient firmness no less effectively than by belligerence or theatrics." Id. The panel concluded that applicant had repeatedly "chosen belligerence and theatrics over protecting the record for subsequent review."

         ¶ 8. Finally, in concluding that there is nothing in the record to suggest that applicant's character traits will not result in future violations of the Rules of Professional Conduct if he is permitted to practice in Vermont, the Committee put great weight on the fact that applicant has not taken responsibility for his actions. Although he testified in vague terms about plans to adjust his approach in the future to find ways to reduce friction with judges, the gist of his testimony before the Committee was that his contempt citations and disciplinary investigation were acts of retribution in response to his successful advocacy for indigent minority clients.

         ¶ 9. Following the hearing, the Committee issued a decision in January 2016 concluding that applicant does not possess the necessary character and fitness to be admitted to the Bar. A certification of applicant's fitness is a prerequisite to admission. V.R.A.B. § 11(a).

         ¶ 10. Emphasizing applicant's past disciplinary record and his failure to take responsibility for his misconduct, the Committee determined that applicant's prior conduct was "directly contrary to the state's legitimate interest in protecting prospective clients and the system of justice." Applicant appealed the decision to this Court. V.R.A.B. § 11(h).

         ¶ 11. The applicable rule requires each applicant to "possess good moral character and fitness." V.R.A.B. § 11(a) (Supp. 2013).[1] "Good moral character" is a "functional assessment." V.R.A.B. § 11(b)(1) (Supp. 2013). The purpose of the character requirement is "to exclude from the practice of law those persons possessing character traits that are likely to result in injury to future clients, in the obstruction of the administration of justice, or in a violation of the Rules of Professional Conduct." Id. These character traits typically involve "dishonesty or lack of trustworthiness in carrying out responsibilities." Id. Other traits may be relevant, but "such traits must have a rational connection with the applicant's present fitness or capacity to practice law and accordingly must relate to the state's legitimate interests in protecting ...

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