In re Eric S. Brittain, Esq.
Jurisdiction From Character and Fitness Committee
Rodar, David E. Tartter, Esq. and Herbert J. Downing, Esq.,
Panel Members Robert Appel, Burlington, for
William H. Sorrell, Attorney General, and Benjamin D.
Battles, Assistant Attorney General, Montpelier, for
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton,
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
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
• 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
• 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
• From June 2012 to January 2014 applicant lived in New
Zealand. He has lived in the State of Washington since
• Applicant is repaying approximately $260, 000 in
• 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
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
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
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). "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 ...