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In re Gadbois9/21/2001
conclusion that a lawyer violated DR 1-102(A)(7), along with two other disciplinary rules, by counseling a client to violate a court order. In In re Berk, 157 Vt. at 530-31, 602 A.2d at 950-51 (1991), we upheld the Board's conclusion that a lawyer violated DR 1-102(A)(7) when he purchased cocaine for his own use and to distribute to friends and an associate in his firm. In reaching the latter decision we noted that attorneys have "a duty to the profession and the administration of justice especially to uphold the laws of the state in which he practices." Id. at 531, 602 A.2d at 949. We found that the lawyer's actions "reflect negatively on his professional judgment and detract from public confidence in the legal profession" and were "even more reprehensible because he encouraged and facilitated his associate's participation in the criminal act." Id.
In In re Illuzzi, 160 Vt. 474, 482, 632 A.2d 346, 350 (1993), we upheld the application of DR 1-102(A)(7) to a case in which a plaintiff's personal injury lawyer had disparaged opposing insurance defense counsel through a number of unauthorized direct communications with the insurance carrier. This holding dovetailed with a finding that the lawyer had also violated a specific disciplinary rule prohibiting direct, unauthorized contact with a represented client. As discussed below, Illuzzi is also significant because we upheld DR 1-102(A)(7) against a challenge that it was void for vagueness. Id. at 480-82, 632 A.2d at 349-50.
Finally, in In re McCarty, 162 Vt. 535, 542, 649 A.2d 764, 768 (1994), we reversed a Board finding that a lawyer had violated DR 1-102(A)(7) when he neglected a client's legal matter and acted in an undignified manner to the client in a telephone conversation. We held that neglect of a client's legal matter is covered by a specific rule, DR 6-101(A)(3), and therefore should not be sanctioned under DR 1-102(A)(7), and that the lawyer's rudeness to the client "does not rise to the level as to adversely reflect upon his fitness to practice law." Id.
As indicated above, we upheld DR 1-102(A)(7) against a challenge that it is void for vagueness. We acknowledged that the "generality of the phrase" in the rule "does make the rule susceptible to varying subjective interpretations." Illuzzi, 160 Vt. at 481, 632 A.2d at 349-50. Nevertheless, we upheld the rule because of the "impossibility of enumerating every act that might constitute a violation of professional standards" and because "'the everyday realities of the profession and its overall code of conduct provide definition for this type of phrase and thus give adequate notice of which behavior constitutes proscribed conduct.'" Id. (quoting ABA/BNA Lawyer's Manual on Professional Conduct 101:1001 (1987)); see also Ex Parte Secombe, 60 U.S. 9, 14 (1856) ("it is difficult, if not impossible, to enumerate and define, with legal precision, every offense for which an attorney or counselor ought to be removed").
Although broad standards are not unconstitutional in the context of lawyer disciplinary proceedings, we must be careful to adequately define a threshold to give lawyers some warning of what kind of conduct can give rise to sanctions. As reflected in McCarty, " nnecessary breadth is to be regretted in professional rules that can be used to deprive a person of his or her means of livelihood through sanctions that are universally regarded as stigmatizing." C. Wolfram, Modern Legal Ethics § 3.3.1, at 87 (1986); see also Restatement (Third) of the Law Governing Lawyers § 5 cmt. c. (1998) (the breadth of provisions like DR 1-102(A)(7) "creates the risk that a charge using only such language would fail to give fair warning of the nature of the charges to the lawyer r
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