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In re Glenn Robinson, Esq.

Supreme Court of Vermont

February 22, 2019

In re Glenn Robinson, Esq. (Office of Disciplinary Counsel)

          Original Jurisdiction Professional Responsibility Board Sheila Ware, Chair

          Sarah Katz, Disciplinary Counsel, Burlington, for Petitioner-Appellant.

          P. Scott McGee of Hershenson, Carter, Scott & McGee, P.C., Norwich, for Respondent-Appellee.

          PRESENT: Reiber, C.J., Robinson, Eaton and Carroll, JJ., and Pearson, Supr. J. (Ret.), Specially Assigned

          PER CURIAM.

         ¶ 1. A hearing panel of the Professional Responsibility Board concluded that respondent, Glenn Robinson, Esq., violated several of the Vermont Rules of Professional Conduct-Rules 1.7, 4.3, 8.4(d), and 8.4(g)-based on his relationships with two former clients. The panel imposed a sanction suspending respondent from the practice of law for two years and placed several conditions on respondent's ability to resume practice. This Court ordered review of the hearing panel's decision, pursuant to Administrative Order 9, designating the Office of Disciplinary Counsel as appellant. A.O. 9 § 11(E). Disciplinary counsel argues that the panel erred in applying the presumptive standards for attorney discipline and asks this Court to modify the panel's sanction and disbar respondent. While accepting the recommended sanction, respondent argues that several of the panel's findings of fact were clearly erroneous, the panel incorrectly determined respondent acted knowingly in violating Rule 1.7, and the panel erred in concluding that respondent violated Rules 4.3, 8.4(d), and 8.4(g) and applying the standards for attorney discipline. We adopt the hearing panel's conclusions that respondent violated Rules 1.7, 4.3, and 8.4(g) of the Vermont Rules of Professional Conduct; reverse the panel's conclusion that respondent violated Rule 8.4(d); and conclude that respondent's actions warrant disbarment.

         I. Hearing Panel's Findings of Fact

         ¶ 2. The relevant facts as found by the hearing panel are as follows. Respondent was admitted to the Vermont bar and has practiced as a licensed attorney in Vermont since 1999. In 2005, respondent began business as a solo practitioner in Newport, Vermont. Most of respondent's practice related to family, criminal, and probate law. During the time period at issue, from December 2010 until approximately April 2013, respondent provided legal services for several female clients relevant to this appeal-C.M., P.B., and A.P. Respondent later employed and engaged in sexual behavior with these former clients. The hearing panel concluded that respondent violated the Rules of Professional Conduct based on his interactions with two of these individuals, C.M. and P.B. The hearing panel found no violations with related to respondent's conduct with A.P. On appeal, we address whether the panel correctly concluded that respondent's conduct with C.M. and P.B. violated the Rules of Professional Conduct and, if so, what sanctions are appropriate. We do not consider the allegations with respect to A.P.

         A. Respondent's Conduct with C.M.

         ¶ 3. Respondent represented C.M. in her divorce proceedings from December 2010 until June 2012. At the time, C.M. was a thirty-nine-year-old mother of five children who had recently separated from her husband of sixteen years. She had left the family farm and was living in a trailer in Newport Center, Vermont. Respondent engaged in a sexual relationship with C.M. from February 2011 until June 2012, while he was representing her in the divorce action.

         ¶ 4. Prior to entering the sexual relationship with C.M., respondent discussed with C.M. whether he could ethically enter a sexual relationship with her while representing her in the divorce action, and he told her he believed he could do so. However, respondent did not request or receive a signed written waiver from C.M. acknowledging that she was aware of the risks of engaging in a sexual relationship with respondent while he represented her or authorizing him to do so. Respondent also took steps not to be seen with C.M. in the area of the state where he practiced.

         ¶ 5. During the pendency of the divorce action, C.M. was under considerable financial strain; she struggled to make her monthly car and rent payments. C.M. paid respondent an initial "retainer" of approximately $2000 by cashing in a retirement account, but she stopped making monthly payments to respondent at some point over the course of his representation of her in the divorce proceedings. To alleviate C.M.'s financial burden, respondent made several offers to C.M. that she could stay with him at his condominium and hired C.M. as an employee of a tanning salon business that he owned.

         ¶ 6. Respondent ended the relationship with C.M. very shortly after the final merits hearing in her divorce proceedings in June 2012. They had sexual relations on one occasion during the week following the divorce settlement and one final time in the fall of 2012. The panel found that C.M.:

believes-rightly or wrongly-that [r]espondent failed to devote sufficient time to representing her interests in the divorce proceedings; that he did not take sufficient actions to protect and advance her financial interests in the proceeding; that he misled her into agreeing to the final settlement; and that he abandoned her after convincing her to agree to a settlement in the divorce proceeding.[1]

         The panel further noted that C.M. "felt that she was being abandoned by [r]espondent both personally and in connection with her expectations as to receiving ongoing support from [r]espondent on divorce-related issues going forward."

         B. Respondent's Conduct with P.B.

         ¶ 7. In December 2011, P.B. contacted respondent's office seeking legal advice. Respondent assisted her in connection with several matters, including a pending criminal proceeding in which respondent helped P.B. obtain temporary relief from the conditions of release imposed at her arraignment. He did not charge P.B. for his legal services. In January 2012, respondent contacted P.B. and offered her a job as an administrative assistant at his law firm. At the time, P.B. was twenty-nine years old, living with her parents, and aspiring to gain admission to a training program to work as a border-patrol agent. Because P.B. did not have a college degree, she needed to demonstrate law-related employment for a minimum of one year to qualify for admission to the training program-employment with respondent appealed to her to satisfy that requirement, and she had an incentive to remain employed with respondent for at least one year. P.B. had no experience or training as an administrative assistant.

         ¶ 8. P.B. suffers from mental-health issues. In 2005, P.B. was diagnosed with attention deficit hyperactivity disorder (ADHD) and post-traumatic stress disorder (PTSD). Over the course of her treatment for these disorders, P.B. utilized a variety of coping mechanisms in response to exacerbation of her PTSD, which included, at times, self-harm via cutting behaviors, avoidance of social engagements, agoraphobia, withdrawal, and counterphobia-engaging in behavior that makes the individual feel threatened.

         ¶ 9. P.B. began working for respondent in January 2012 and received her last paycheck in January 2013. Over the course of her employment, P.B. experienced various difficulties relating to respondent. Relevant to the panel's analysis and the issues on appeal are incidents where respondent tossed paperclips at P.B.'s cleavage, masturbated in her presence, and requested that she sign a contract in September 2012 indicating their relationship was "mutually welcome" and waiving any future claims against respondent. The panel's findings regarding these events are as follows.

         ¶ 10. The panel found that respondent encouraged a "relaxed atmosphere" at the office and often engaged in verbal banter, teasing, and flirtatious conduct with P.B. In April or May 2012, respondent's common practice of "joking" with P.B. escalated when he-on more than one occasion-threw paperclips at her in a manner that intentionally "targeted her breasts and cleavage" so that the paperclips would slip down her shirt and between her breasts. The panel found that, at various times throughout April and July 2012, P.B. told her psychiatrist "that her boss was making unwanted advances towards her or otherwise causing her stress." The psychiatrist noted that P.B.'s PTSD symptoms "surfaced" and were "being exacerbated" due to the "unwanted sexual advances from [respondent]."

         ¶ 11. The panel made further findings that, in late July 2012, while respondent and P.B. were together in the law office, an incident occurred during which, at respondent's request, P.B. unbuttoned her shirt, exposed her bra, and lowered her bra strap while respondent proceeded to masturbate to ejaculation in his pants. Respondent asked her to pull on his tie while he masturbated; P.B. did so. That evening, after the incident, P.B. went home and "broke down" in front of her mother while explaining what had happened with respondent. On August 7, 2012, P.B. sent an email to respondent stating that she felt disrespected and planned to stop coming to work due to respondent's actions. Respondent replied that he never intended to make P.B. uncomfortable and that he would be happy to speak with her about her concerns. Following this exchange, P.B. and respondent revisited signing a contract to outline the boundaries of their personal and professional relationships-an issue that had been developing for several months.

         ¶ 12. The panel made the following findings regarding the contract agreement between P.B. and respondent. In May or early June 2012, respondent told his step-father about his interest in pursuing a romantic relationship with P.B. and was encouraged to "get something in writing" indicating that the relationship was consensual. Soon thereafter, respondent and P.B. participated in a conference call with respondent's step-brother, who is also an attorney. During the call, respondent asked his step-brother to draft an agreement reflecting that the relationship was "mutual and welcoming" and containing a release of any sexual-harassment or gender-discrimination claim, preventing P.B. from alleging either claim in the future. Respondent's step-brother drafted the agreement entitled "Notice of Intent to Engage in Mutually Welcomed Romantic Relationship and Waiver of Claims" and provided it to respondent, who gave a copy of the agreement to P.B. Notably, the contract provided a waiver by P.B. of "any and all" state and federal law claims of sexual harassment or gender discrimination against respondent-apparently including future as well as past claims. The panel found that P.B. "was confused and intimidated by the conference call, had a hard time following the discussion and understanding the issues, and did not understand the need for a written agreement." Neither party signed the agreement at this point; no further action was taken regarding the agreement until the fall of 2012, following the masturbation incident.

         ¶ 13. After the masturbation incident and email exchange between respondent and P.B., respondent asked his step-brother to revise the contract. In September 2012, respondent and P.B. discussed and signed the contract. No witnesses were present, and P.B. did not have an attorney. The panel found that P.B. "believed from her discussion with respondent that they needed to sign the agreement to satisfy [r]espondent's father and that it was required of her to continue working for [r]espondent." The panel further found that "[r]espondent did not advise [P.B.] to obtain independent legal advice with respect to the agreement."

         ¶ 14. Other relevant facts found by the panel regarding the relationship between respondent and P.B. include the following. At some point during the fall of 2012, respondent began counseling, which P.B. perceived to have a positive effect on respondent. In December 2012 or January 2013, respondent began to indicate that he was displeased with P.B.'s absences from work due to her agoraphobia and informed her that he wanted to hire another former client, A.P., as his new assistant and to have P.B. help train her for the position. P.B. and respondent were still engaged in a sexual relationship at this point. In January 2013, P.B. ceased working for respondent-it is unclear whether P.B. quit or she was fired-and A.P. began working in his office. From the time P.B. stopped working with respondent in January 2013 until the panel's hearing, P.B. was unemployed, lived at home with her parents, and continued to suffer from agoraphobia and other symptoms related to her PTSD and ADHD conditions. In the spring of 2013, P.B. sought legal help from an attorney regarding respondent's behavior toward her, but she did not initiate a claim against respondent.

         ¶ 15. In May 2013, P.B. was interviewed by a state police officer because of a complaint of sexual harassment filed against respondent by A.P. This complaint ultimately led to the disciplinary hearing at issue here. When interviewed, P.B. made allegations of sexual harassment against respondent. Although the relationship between P.B. and respondent was complicated, and the parties gave conflicting testimony, the hearing panel ultimately found that respondent's sexual attentions toward P.B. involving the paperclip incident and the masturbation incident were "unwanted" by P.B. and caused her harm.[2]

         II. Disciplinary Proceedings

         ¶ 16. As noted above, in April 2013, A.P. filed a sexual-harassment claim against respondent. This claim triggered an investigation into respondent's behavior with C.M., P.B., and A.P. and led to the disciplinary hearing at issue here.

         ¶ 17. Following the investigation, no criminal charges were filed against respondent, and the matter was referred to the Professional Responsibility Program in 2013. The panel held a hearing over a five-day period in November 2017 and January 2018.[3] In March 2018, the panel issued an order setting forth the findings of fact, conclusions of law, and sanctions. Based on the facts outlined above, the panel concluded that respondent violated Rules 1.7, 4.3, 8.4(d), and 8.4(g) due to his misconduct with C.M. and P.B.[4] The panel further determined that respondent acted "knowingly" regarding each violation; that each of the violations resulted in harm (potential or actual) to C.M., P.B., or the public's perception of the legal profession; and that the presumptive sanction for each violation should be suspension. The panel's consideration of the aggravating and mitigating factors did not alter the presumptive sanction, and the panel ultimately suspended respondent from the practice of law for two years. The panel also ordered:

In the event that [r]espondent files a motion seeking permission to resume the practice of law, . . . he shall be required to submit as part of his application (1) an independent . . . evaluation of his mental health . . . to be performed no earlier than 90 days prior to the filing of any motion; and (2) a certificate of his participation in and completion of a sexual harassment education program that meets with the prior approval of Bar Counsel.

         ¶ 18. On appeal, disciplinary counsel asks this Court to adopt the factual findings and conclusions of law as set forth in the hearing panel's order, but to modify the sanction and disbar respondent from the practice of law. Respondent does not contest the imposition of a two-year suspension but challenges several of the hearing panel's findings.

         III. Standard of Review

         ¶ 19. We review "a disciplinary hearing panel's findings of fact under a clearly erroneous standard." In re Strouse, 2011 VT 77, ¶ 8, 190 Vt. 170, 34 A.3d 329 (per curiam). We will uphold the panel's findings "if clearly and reasonably supported by the evidence, whether the findings are purely factual or mixed law and fact." Id. (quotation omitted). We review the panel's legal conclusions, including its violations determinations, de novo. See In re Sinnott, 2004 VT 16, ¶ 11, 176 Vt. 596, 845 A.2d 373 (mem.) (citing Graham v. Town of Duxbury, 173 Vt. 498, 499, 787 A.2d 1229, 1232 (2001) (mem.) for proposition that "this Court's review of conclusions of law is plenary and nondeferential"). Our standard of review regarding the level of deference we afford the panel's sanction recommendation has been unclear; we clarify that standard here.

         ¶ 20. In the past, we have stated that the Court defers to the disciplinary panel's recommendations on the issue of sanctions, yet retains discretion to determine which sanctions are appropriate for violations of the Rules of Professional Conduct. Strouse, 2011 VT 77, ¶ 8 ("We give deference to the recommendations of a disciplinary panel but use our own discretion and make our own determinations as to which sanctions are appropriate for violations of the Rules of Professional Conduct."); see also In re Fink, 2011 VT 42, ¶ 16, 189 Vt. 470, 22 A.3d 461 ("As to sanctions, we accord the panel's recommendation deference, but this Court renders the ultimate decision." (quotation omitted)). This standard is contradictory-it suggests that we simultaneously defer and, yet, do not defer to the disciplinary panel's exercise of discretion. As explained below, there is no basis for this Court to defer to the panel's sanction recommendation. To the extent that our caselaw has indicated such deference is appropriate, we reject that proposition now.

         ¶ 21. Under the Vermont Constitution, the Supreme Court exercises "administrative control of all the courts of the state, and disciplinary authority concerning all judicial officers and attorneys at law in the State." Vt. Const. ch. II, § 30. Pursuant to that authority, this Court has promulgated the Vermont Rules of Professional Conduct, setting forth the ethical rules and responsibilities governing attorneys in the State, and has established a program to enforce the Rules of Professional Conduct and provide for attorney discipline, known as the Permanent Rules Governing Establishment and Operation of the Professional Responsibility Program, which are set forth in Administrative Order 9. The disciplinary program is administered by the Professional Responsibility Board. Notably, "the [Board] acts on behalf of this Court and pursuant to rules adopted by this Court." In re Berk, 157 Vt. 524, 527, 602 A.2d 946, 948 (1991) (per curiam); see A.O. 9 Preamble to Permanent Rules (explaining Board was created by this Court pursuant to its "constitutional authority. . . to structure and administer the lawyer discipline and disability system"). However, "[t]his Court retains inherent power to dispose of individual cases of lawyer discipline." Berk, 157 Vt. at 527, 602 A.2d at 948 (quotation and alteration omitted); see also Vt. Const. ch. II, § 30 (stating Supreme Court has "disciplinary authority concerning all . . . attorneys at law in the State"). Decisions by hearing panels of the Board are appealable to this Court under Rule 11(E) of the Permanent Rules. Although these decisions come to this Court on appeal, we have stated that "this Court does not 'review' [Board] recommendations on sanctions; rather, it makes its own ultimate decisions on discipline." Berk, 157 Vt. at 527-28, 602 A.2d at 948. While the rules provide that the Board's findings of fact "shall not be set aside unless clearly erroneous," A.O. 9 § 11(D), the rules do not provide standards of review for the Board's conclusions in mixed findings of fact and law or its recommendations on sanctions. As such, the rules provide no basis for this Court's deference to the Board's sanction recommendations.

         ¶ 22. When this Court gives deference to another body's decisions, such as in the context of deference to agency determinations within the agency's area of expertise, such "[d]ecisions . . . are presumed correct, valid, and reasonable." In re Korrow Real Estate, LLC Act 250 Permit Amendment Application, 2018 VT 39, ¶ 21, Vt., 187 A.3d 1125. We apply this deferential standard in limited circumstances. Id. ¶ 20 (explaining that this Court "owes deference to agency interpretations of policy or terms when: (1) that agency is statutorily authorized to provide such guidance; (2) complex methodologies are applied; or (3) such decisions are within the agency's 'area of expertise' "). Even then, such deference is limited-we do not defer to a legal conclusion or interpretation of law if it is unreasonable, irrational, arbitrary, or capricious because it would violate due process principles. Id. Importantly, "where we are not reviewing a decision by an agency charged with promulgating and interpreting its own rules, we employ the familiar de novo standard of review for matters of law." In re Confluence Behavioral Health, LLC, 2017 VT 112, ¶ 12, __ Vt.__, 180 A.3d 867 (quotation omitted).

         ¶ 23. Here, the Board is not akin to an agency. First, this Court, not the Legislature, tasked the Board with administering the disciplinary program. As such, there is no separation of powers concern that would invite this Court's deference to the Board. Cf. Town of Victory v. State, 2004 VT 110, ¶ 16, 177 Vt. 383, 865 A.2d 373 ("To preserve the appropriate separation of judicial and executive powers, we presume that judicial review of administrative decisions is deferential absent a clear [legislative] statement of contrary intent.") Second, this Court, not the Board, promulgated the Rules of Professional Conduct. Therefore the Court, not the Board, is uniquely positioned to interpret and administer its own rules-again, deference to the Board is not the standard here. See Confluence Behavioral Health, LLC, 2017 VT 112, ¶ 12 (explaining that we apply de novo standard of review when reviewing matters of law not within agency's charge, such as interpreting its own promulgated rules).

         ¶ 24. As we have repeatedly affirmed, "it is upon this Court that the responsibility for regulation and discipline of the legal profession falls." In re Harrington, 134 Vt. 549, 552, 367 A.2d 161, 163 (1976) (per curiam) (citing Vt. Const. ch. II, § 30). In Harrington, we explained:

[T]his Court is the true final arbiter in [a disciplinary] matter. It is not the function of this Court . . . to "review" actions taken below. The only final and ultimate decision is made here, on the responsibility of this Court. The Professional Conduct Board functions as a collator of the facts and an advisor to the Court, assembling and evaluating the presented material so that it will be in manageable form for the Court. The findings and recommendations of the Board, both as an arm of the Court and as a body representation of the profession, carry great weight. But they are not binding.

Id. (emphases added). While we have long recognized the Board's role as an advisor, giving "great weight" to their recommendations, id., the application of deference to a disciplinary hearing panel's recommendation seems to have appeared in this Court's decision in Berk, 157 Vt. at 527-28, 602 A.2d at 947-48. The Berk Court used "deference" as a synonym for "great weight," noting that other courts applied a similar standard. Id. However, the cases cited by the Court show that courts in other states at the time gave "great weight"-not "deference"-to Board recommendations. See Hawkins v. State Bar, 591 P.2d 524, 526 (Cal. 1979) (en banc) ("[W]e note that despite our undoubted power of review of disciplinary matters, the disciplinary board's recommendation is given great weight . . . ."); In re Discipline of Gubbins, 380 N.W.2d 810, 812 (Minn. 1986) (per curiam) (referring to board as "referee" when stating "[w]hile we alone are responsible for determining appropriate discipline, we place 'great weight' on the referee's recommendations"); In re Kushner, 502 A.2d 32, 35 (N.J. 1986) (per curiam) (explaining court gave "great weight" to board recommendations but would "not hesitate to impose a more severe sanction than that recommended by the Board when circumstances warrant"). We note that contemporary courts similarly give weight to panel conclusions and recommended sanctions, but do not give them deference. In re Wyatt's Case, 982 A.2d 396, 406 (N.H. 2009) (deferring to board's "factual findings if supported by the record, but retain[ing] ultimate authority to determine whether, on the facts found, a violation of the rules governing attorney conduct has occurred and, if so, the appropriate sanction"); In re Richmond's Case, 872 A.2d 1023, 1028 (N.H. 2005) ("We review the referee's factual findings to determine whether a reasonable person could reach the same conclusion as the referee based upon the evidence presented. However, we review de novo to determine whether the referee committed errors of law." (citation omitted)); In re Disciplinary Proceeding Against Eugster, 209 P.3d 435, 444 (Wash. 2009) (en banc) ("This court bears the ultimate responsibility for lawyer discipline . . . . We give considerable weight to the hearing officer's findings of fact, especially with regard to the credibility of the witnesses, and we will uphold those findings so long as they are supported by substantial evidence. We give great weight to a hearing officer's determination of an attorney's state of mind because it is a factual finding. However, we review a hearing officer's conclusions of law de novo." (quotations omitted)).

         ¶ 25. Giving "great weight" to an advisor's recommendation, Harrington, 134 Vt. at 552, 367 A.2d at 163, is distinct from "presum[ing]" that decisions made by a disciplinary hearing panel are "correct, valid, and reasonable." Korrow, 2018 VT 39, ¶ 21. Therefore, we determine that the "great weight" afforded to panel recommendations is more appropriately characterized as giving consideration to the panel in light of this Court's role as plenary authority, rather than giving the panel "deference" as that term is used in our broader caselaw.

         ¶ 26. Our disciplinary-hearing caselaw supports this version of our standard. This Court has routinely conducted its own legal analysis of the issues present and reached its own conclusions regarding the violations and appropriate sanctions in a given matter. See, e.g., Strouse, 2011 VT 77, ¶ 9 (agreeing with panel's conclusion regarding violation of Rule 8.4(c) but applying alternate sanction); Fink, 2011 VT 42, ¶ 16 (reciting deference standard but conducting independent review to determine whether evidence was sufficient to prove violation); Sinnott, 2004 VT 16, ¶¶ 10-11 (conducting independent analysis of legal issues but ultimately finding panel's reasoning persuasive and agreeing with panel's recommendations). This practice is consistent with a de novo standard and our role as the ultimate authority for attorney discipline.

         ¶ 27. Thus, the standard of review that we will apply upon review of a disciplinary proceeding will be as follows: we review the panel's findings of fact for clear error and review de novo its conclusions of law, including the panel's violation determinations and sanction recommendations. In doing so, we will give consideration to the panel's sanction recommendation, but we will treat it as just that-a recommendation. If our analysis comports with the recommendation of ...

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