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In re Gadbois9/21/2001
Original Jurisdiction from Professional Conduct Board January Term, 2001
Respondent, Richard Gadbois, Esq., appeals the Professional Conduct Board's decision that he violated the Code of Professional Responsibility: DR 4-101(B)(3) (using a confidence or secret of a client for the advantage of another); DR 5-105(A) (accepting employment even though it would likely involve him in representing differing interests); and DR 1-102(A)(7) (engaging in conduct adversely reflecting upon fitness to practice law). Respondent argues on appeal that the Board erred in finding he violated any disciplinary rule and committed a number of procedural errors. We reach the merits and reverse.
Respondent represented Richard Rainville in his divorce from his first wife in 1980 and 1981. Rainville's first wife accused him of verbally and mentally abusing her during the marriage. During this representation, Rainville discussed various aspects of his life with Respondent. In the divorce proceedings the Franklin Superior Court found Rainville to be more at fault for the marriage ending because of his temper and assaultive behavior. Shortly after the completion of the divorce, respondent represented Rainville in connection with a property tax abatement. In the years since the representation was completed, respondent has had only limited contact with Rainville: in connection with a will respondent drafted for Rainville's father, and in connection with Rainville's purchase of property from an estate for which respondent was the administrator.
In 1994, Rainville's second wife filed for divorce citing verbal and mental abuse, using respondent to represent her. Rainville was shocked that respondent appeared as his wife's lawyer because he believed respondent "knew him 'from all ends.'" In response, Rainville asked his lawyer to request that respondent withdraw, which the lawyer did by letter. When respondent refused to withdraw, Rainville's lawyer moved to disqualify him alleging that respondent gained confidential information from the former representation of Rainville "which information is now likely to be detrimental to defendant in the instant case." The court denied the motion, indicating that ethical complaints should go to the Professional Conduct Board (the Board).
Rainville then changed counsel, and on June 2, 1995, his new lawyer filed a complaint with the Board. The lawyer also renewed the motion to disqualify respondent, relying on an affidavit from Rainville which stated that he gave respondent confidential information about "many aspects of my background, my marriage and my personal life" and "about me and my former wife's family life, life styles, habits, personalities and characters." Rainville indicated that he feared that respondent would use against him some of the information. Concluding that Rainville had demonstrated an "appearance of conflict, and thus the appearance of impropriety," after first denying the motion to disqualify respondent again, pending submission of supporting authority, the court granted the motion, and respondent withdrew.
A hearing panel for the Board then went forward on the complaint. Recognizing that "the Code of Professional Responsibility does not have a specific provision outlining the circumstances under which an attorney may accept representation which is adverse to a former client," the panel analyzed the facts under the American Bar Association, Model Rules of Professional Conduct Rule 1.9, which were not then in effect in Vermont, and under this Court's decision in State v. Crepeault, 167 Vt. 209, 704 A.2d 778 (1997). It concluded that respondent violated DRs 1-102(A)(7), 4-101(B)(3), and 5-105(A) of the Code of Professional Respon
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