VT: Underlying criminal defense
Facts: Lawyer represented client in a criminal matter and after a jury convicted client, the court imposed a prison sentence. Client then asked lawyer to file an appeal. Lawyer filed the appeal five days after the deadline, and the court dismissed the appeal as untimely. Thereafter, the Prisoners’ Rights Division of the Defender General’s office filed a petition for post-conviction relief alleging that lawyer’s untimely filing of the appeal constituted ineffective assistance of counsel. Lawyer cooperated in that proceeding as a potential witness. Client received another chance to file an appeal and did so. Nevertheless, the court denied client’s appeal on the merits. Client then filed a professional conduct complaint against lawyer, alleging that in filing the appeal, he failed to act diligently and promptly, as per Vermont Rules of Professional Conduct. The Hearing Panel of the Professional Responsibility Board held that missing the deadline to file the appeal did not violate the applicable rule of professional conduct. After the Board dismissed the complaint, the Disciplinary Counsel appealed.
Issue: Did lawyer’s failure to file a timely appeal constitute a violation of the rules of professional conduct?
Ruling: No. The court agreed with the Hearing Panel, which found that “a single isolated act of negligence did not constitute misconduct under the rules.” In re PRB Docket No. 2006-167, 925 A.2d 1026, 1028. Further, the rules are “intended to protect the public from persons unfit to serve as attorneys and to maintain public confidence in the bar.” Id. (quoting In re Berk, 602 A.2d 946, 950 (Vt. 1991)). Here, after realizing he missed an important deadline, lawyer worked to remedy his error with client and subsequent counsel. Eventually, client was afforded his appellate rights. The court took note of lawyer’s efforts to fix his mistake and the availability of remedies to correct the error. Although, depending on the seriousness of the error, a single negligent act or omission may constitute misconduct, the court held that the totality of the circumstances in this case did not raise lawyer’s act to misconduct under the rules. “Attorneys are held to a high standard of conduct, but absent injury or other factors, a single mistake does not show a lack of reasonable diligence or promptness.” Id. at 1029.
Lesson: Everyone makes mistakes, even/especially attorneys. However, if the attorney makes an effort to correct the error and the client does not suffer irreparable harm, the attorney is likely to avoid a violation of misconduct under the rules of professional responsibility.