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In re Gadbois9/21/2001
espondent . . . and that subjective or idiosyncratic considerations could influence a hearing panel or reviewing court in resolving a charge based only on it"). We find appropriate statements in the decisions of the highest courts of other states. For example, the New York Court of Appeals has held that the standard "must be whether a reasonable attorney, familiar with the Code and its ethical strictures, would have notice of what conduct is prescribed." In re Holtzman, 577 N.E.2d 30, 33 (N.Y. 1991). The Massachusetts and New Jersey Courts have held that violation of a general rule is shown only by "conduct flagrantly violative of accepted professional norms." In re Discipline of Two Attorneys, 660 N.E.2d 1093, 1099 (Mass. 1996); Matter of Hinds, 449 A.2d 483, 498 (N.J. 1982). We believe that the Massachusetts and New Jersey standard captures the essence of the line we attempted to draw in McCarty and explains our application of DR 1-102(A)(7) in the cases in which we have employed it.
We cannot, consistent with that standard, conclude that respondent violated DR 1-102(A)(7) here. The Code of Professional Responsibility purported to fully regulate lawyer conflicts of interest and did not prohibit side-switching as reflected in this case. As the Comment to the Restatement states: "a specific lawyer code provision that states the elements of an offense should not, in effect, be extended beyond its stated terms through supplemental application of a general provision to conduct that is similar to but falls outside the explicitly stated ground for a violation." Restatement (Third) of the Law Governing Lawyers at ยง 5, cmt. c. We would be doing exactly what the Restatement comment advises against if we disciplined respondent for side-switching under DR 1-102(A)(7).
We are also mindful that there was an alternative remedy in this case, and that remedy worked. We believe that both Rainville and respondent were entitled to rely on that remedy. Vermont Rule of Professional Conduct 8.4 is the general rule defining misconduct, similar in purpose to DR 1-102(A) of the Code of Professional Responsibility. The comment to that rule notes: "A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists." At the time the issue arose in the family court, this Court had not determined the law applicable to motions to disqualify counsel because of side-switching. Respondent resisted the motion to disqualify in apparent good faith and then complied once the court made a definitive ruling disqualifying him. We are concerned that under the Board's rationale a lawyer who loses a contested motion to disqualify will be automatically subject to discipline irrespective of whether the applicable law is clear.
We cannot find that respondent flagrantly violated accepted professional norms such that his conduct adversely reflects on his fitness to practice law. Accordingly, we reverse the Board's finding that respondent violated DR 1-102(A)(7), as well as the other disciplinary rules as discussed above. Because of our disposition, we do not reach the procedural issues raised by respondent.
Reversed.
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