The Vermont Supreme Court reviewed and agreed with the Professional Responsibility Board decision that an attorney violated three ethical rules in handling estate planning matters on behalf of an elderly woman and imposed on him a one-year suspension from law practice. In re C. Robert Manby, Jr., Esq. (Office of Disciplinary Counsel) (Vt. No. 22-AP-265, 2023 VT 45, August 4, 2023).
In August 2020, disciplinary counsel filed a petition of misconduct against Robert Manby, Jr., Esq. related to his representation of an elderly client in estate planning matters. It was alleged that he violated Rules 1.1, 1.4(b), and 1.14(a) of the Vermont Rules of Professional Conduct.
Mr. Manby answered and moved to narrow the scope of issues decided on the basis that he had admitted to negligently violating Rules 1.1 and 1.4(b) and the panel was bound to accept his admissions as facts requiring no further inquiry except regarding sanctions. The panel disagreed and denied his motion because it believed it had an independent duty in every case to review evidence at a hearing to see if it proved the alleged misconduct.
After a two-day hearing in 2021, the Professional Responsibility Board panel concluded that Mr. Manby violated Vermont Rules of Professional Conduct 1.1, 1.14(a) and 1.4(b).
Regarding Rule 1.14(a), the panel found that Mr. Manby did not assess his client’s competence reasonably. He ignored red flags indicating her diminished competency, never met with her alone, and relied on representations from her son that she was competent and understood major estate planning decisions while knowing that her son was the sole beneficiary of these decisions. He also didn’t engage the client in conversation, ask her questions, or discuss estate planning in any detail with her, among many other issues.
He violated Rule 1.14(a) because he failed to make a reasonable effort to assess the client’s cognitive abilities and failed to maintain a normal client-lawyer relationship with her as required by the rule.
Next, the panel found Mr. Manby violated Rule 1.1 because he did not provide competent representation to his client. For example, he failed to meet with her privately, determine what her wishes were, and confirm the changes to her estate plan served these wishes. Nor did he discuss how these changes could impact her long-term care. The panel concluded that he violated his duty to his client knowingly rather than negligently. As a result of this conduct, the panel also concluded that he caused actual injury in the form of expensive and costly family litigation and personal harm.
Finally, the panel found he violated Rule 1.4(b) because he violated his duty of communication to his client when he did not explain to her what she was signing and allow her to make an informed decision rather than taking directions from her son. Furthermore, if he had complied with this rule, the panel believed it would have revealed his client’s inability to make informed decisions about her estate planning and he may have been able to take further steps to protect her.
As a result of the foregoing, the panel imposed a five-month suspension from law practice on Mr. Manby. Mr. Manby appealed the decision because he claimed he was denied due process regarding each of the panel’s findings. He argued that the panel unfairly held him to a standard whereby he needed to determine his client’s specific medical conditions.
The Supreme Court reviewed each of the panel’s findings and did not agree with Mr. Manby’s arguments that he had been denied due process or that the panel had adjudicated violations against him based on uncharged conduct.
The Court found the panel had not made any clear errors and each finding was warranted based on evidence presented regarding the nature of ethical duties violated, Mr. Manby’s intentional or knowing state of mind, the resulting injury to the client and her family members, and a pattern of misconduct by Mr. Manby for over a year and more.
The Court also determined that a suspension of one year from law practice was warranted, and not a five-month suspension. The harm in this case was significant and lasting. It caused his client’s family to have to be involved in more than five years of litigation involving multiple different proceedings to get back what was rightfully theirs. The harm was also personal and created major rifts within the family and the potential for further personal and economic harm was immense. Due to the gravity of Mr. Manby’s actions, his conduct warranted more serious sanctions.
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