In Re Melvin Fink, Esq.

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made
before this opinion goes to press.


                                           

                                          No. 22-AP-001

In re Melvin Fink, Esq.                                         Original Jurisdiction

                                                                Professional Responsibility Board

                                                                September Term, 2022

Hearing Panel No. 3
Gary F. Karnedy, Chair
Ashley W. Taylor, Esq., Member
Peter Zuk, Public Member


David C. Sleigh of Sleigh Law, St. Johnsbury, for Appellant.

Sarah Katz, Disciplinary Counsel, and Benjamin D. Battles of Pollock Cohen LLP, Special
 Disciplinary Counsel, Burlington, for Appellee.


PRESENT: Reiber, C.J., Eaton, Carroll, Cohen and Waples, JJ.


       ¶ 1.    COHEN, J.       Respondent appeals from the Professional Responsibility Board

hearing panel’s determination that he violated Vermont Rule of Professional Conduct 4.2, and

from its imposition of a thirty-day suspension. We agree with the hearing panel and suspend

respondent for thirty days from the practice of law.

                                 I. Facts and Procedural History

       ¶ 2.    The panel made the following factual findings, which are uncontested on appeal.

Respondent is an attorney and solo practitioner in Vermont who has been practicing law for



        Chief Justice Reiber was present for oral argument but did not participate in this decision.
approximately fifty years.     Relevant to this matter, he began representing wife in 2019 in

connection with her separation from husband.

       ¶ 3.    In May 2020, respondent sent husband two written communications regarding a

settlement proposal. These communications each included a statement indicating that husband

should deliver the information to his attorney if he were to hire one. That same month, husband

hired a local lawyer, who emailed respondent on June 1 stating that she was representing husband

in the divorce matter and asking that all future correspondence to husband be sent through her.

The respective attorneys engaged in continued communication and negotiations, and respondent

ultimately filed a divorce complaint on wife’s behalf on June 26. Service of the complaint was

not completed on husband until July 20, and husband filed a notice of appearance on July 29.

       ¶ 4.    Husband’s notice of appearance used a form from the family division, which

included the following language: “I intend to represent myself and hereby enter my appearance

with the [c]ourt. No attorney will represent me in this case unless an attorney or I notify the [c]ourt

otherwise.” Husband’s lawyer notarized the filing and did not enter an appearance on his behalf;

however, husband’s lawyer continued to provide him with legal advice, and husband authorized

her to continue representing him in negotiations with respondent. The family division received

husband’s notice of appearance on August 3.

       ¶ 5.    In the interim, on July 31, respondent communicated with husband’s lawyer on two

issues related to the divorce, and husband’s lawyer responded by email indicating husband’s stance

on the two issues. Respondent did not reply to husband’s lawyer’s July 31 email, and there were

no further communications between the attorneys until August 17. The parties did not discuss

husband’s representation in this timeframe. Husband’s lawyer did not indicate whether she would

continue to represent husband notwithstanding the self-represented notice of appearance, and

respondent did not ask her.



                                                  2
       ¶ 6.    On August 17, respondent called husband on the telephone and left a voice

message; husband called respondent back later that day and spoke with respondent for about six

minutes. Respondent asked husband to “sit down and talk” in respondent’s office to reach an

agreement regarding the divorce. Husband stated, “let me get a hold of my lawyer,” to which

respondent replied, “technically she doesn’t have to be here” and “I see you filed a pro se

appearance.” Husband and respondent agreed on a date and time for the meeting but did not

discuss any substantive issues related to the divorce during the telephone call.

       ¶ 7.    Husband felt uncomfortable with respondent’s assertion that husband’s lawyer

would not need to be present for the meeting, and he promptly called his lawyer to inform her of

the call. Husband’s lawyer emailed respondent that same day proposing a settlement conference

with both parties and their respective counsel present and objecting to respondent speaking with

her client without her permission. Respondent replied to husband’s lawyer by email on August

21, writing, “Don’t pontificate to me. [Husband] filed a pro se appearance. He represents himself,

period.” Respondent did not explicitly agree to not contact husband directly again. On August

24, husband’s lawyer replied, stating:

               Your email implies that you are still not accepting that [husband] is
               represented. He is, period. You are not to have any more direct
               contact with him, period. You are fully aware that I am representing
               [husband]. We have been exchang[ing] settlement proposals and
               other communications, even after the divorce action was filed. You
               are fully aware that I do not have to enter an appearance in court to
               be representing [husband].

Responded did not reply to this email and made no further attempts to contact husband directly.

Husband’s lawyer filed a notice of appearance on husband’s behalf in the divorce proceeding on

October 6.

       ¶ 8.    The Professional Responsibility Program received a complaint about the above-

described interactions, and Disciplinary Counsel formally charged respondent with violating

Vermont Rules of Professional Conduct 4.2 and 8.4(a) in January 2021, alleging that respondent,

                                                 3
“who represented wife in a divorce matter, communicated or attempted to communicate about the

subject of the representation with husband, a person he knew was represented by another attorney,

without the consent of the other attorney or authorization by law or a court order.” In his written

answer to the complaint and subsequent hearing memo, respondent admitted to most of the asserted

facts, including the conversation with husband on August 17 and the content of the conversation

as described above, but denied having the requisite knowledge of husband’s representation and

argued that he did not discuss any substantive matters during the call. The hearing panel held a

merits hearing in September 2021, during which both respondent and Disciplinary Counsel

presented evidence.

       ¶ 9.    The hearing panel determined that respondent violated Rule 4.2, which reads in

relevant part, “[i]n representing a client, a lawyer shall not communicate about the subject of the

representation with a person the lawyer knows to be represented by another lawyer in the matter,

unless the lawyer has the consent of the other lawyer or is authorized to do so by law.” The panel

subsequently imposed a thirty-day suspension. The rule’s state-of-mind requirement necessitates

“actual knowledge” of representation by another attorney, and the hearing panel acknowledged

that it could not find “by the exacting clear and convincing evidence standard that respondent had

actual knowledge of the representation at the outset of the phone call.” However, the panel noted

that husband later told respondent during the call that husband wanted to “get a hold” of his lawyer,

thus providing respondent with actual knowledge of the representation. As a result, the panel

determined that respondent violated Rule 4.2 during the call by failing to immediately end the call

upon being informed that husband was still represented in the matter and instead telling husband

that his lawyer did not need to be present at the meeting.

       ¶ 10.   The panel noted that Rule 4.2 does not distinguish between substantive and

nonsubstantive discussions and instead prohibits “communicat[ing] about the subject of the

representation,” including, as relevant here, the suggestion that a party can meet to discuss the

                                                 4
matter without the party’s lawyer. It therefore rejected respondent’s attempts to minimize the

violation through his assertion there was no harm both because Rule 4.2 does not contain a “no

harm” exception and because the severity of harm is relevant to the sanctions analysis rather than

the analysis of whether a violation occurred.

       ¶ 11.   In determining the appropriate sanction, the hearing panel considered the American

Bar Association (ABA) Standards for Imposing Lawyer Discipline, including the duty violated,

respondent’s mental state, the injury and potential injury to husband, and any aggravating and

mitigating factors. It concluded that a suspension was warranted and that thirty days would be

appropriate “to ensure that respondent pays greater attention to the ethical rules going forward.”

       ¶ 12.   On appeal, respondent challenges the hearing panel’s violation determination and

its imposition of a thirty-day suspension; he does not challenge the panel’s findings of fact recited

above. He argues that the panel’s conclusions were not supported by adequate evidence and makes

the following assertions: (1) he did not substantively discuss the divorce with husband on the call;

(2) he continued talking to husband on the call because immediately hanging up would have been

rude and an unnatural way to end the conversation; and (3) nothing he said could be construed as

an attempt to coerce husband to forego future legal representation. Respondent further and

alternatively argues that even if there was a de minimis violation, the thirty-day suspension was a

disproportionate sanction. He notes that the purpose of a sanction is to protect the public from

harm, deter future misconduct, and maintain confidence in the legal system, not to punish

attorneys, and asserts that a private admonition would adequately serve these goals.

       ¶ 13.   Disciplinary Counsel argues that respondent violated Rule 4.2 at the outset of the

call as well as during the call. Disciplinary Counsel further asserts that suspension is the

appropriate sanction and that this Court may increase the length of suspension due to the

aggravating factors and the scope of the injury and potential injury.



                                                 5
                                           II. Analysis

                                     A. Standard of Review

       ¶ 14.   Respondent does not challenge the panel’s factual findings. This Court reviews the

hearing panel’s legal conclusions de novo. In re Wysolmerski, 

, ¶ 22, 

,

. The panel’s legal conclusions include its violation determination and its sanction.

In re Robinson, 

, 

, 

 (per curiam). While we do not give

deference to the panel’s sanction recommendation “as that term is used in our broader caselaw,”

we “giv[e] consideration to the panel[’s recommendations] in light of this Court’s role as plenary

authority.” Id. ¶ 25.

                                      B. Rule 4.2 Violations

       ¶ 15.   Rule 4.2 requires a lawyer to “immediately terminate communication” upon

learning that an individual is represented as covered under the rule. V.R.Pr.C. 4.2 cmt. [3]. The

rule applies when “the lawyer has actual knowledge of the fact of the representation, but such

actual knowledge may be inferred from the circumstances.” V.R.Pr.C. 4.2 cmt. [8]. The standard

of proof for formal charges of misconduct is clear and convincing evidence. A.O. 9, Rule 20(C).

       ¶ 16.   We agree with the hearing panel’s conclusion that although respondent did not have

actual knowledge that husband was represented at the outset of the call, respondent gained such

knowledge during the call. See V.R.Pr.C. 4.2 cmt. [3]. Respondent’s blame-shifting assertion that

the root of the problem is the concept of “unbundled” representation is unpersuasive. Regardless

of the legitimate ethical and procedural concerns associated with partial representation, the facts

of this case do not support a claim of factual or ethical ambiguity. The notice of appearance, in

which husband stated that he would be representing himself, did reasonably suggest that husband

was no longer represented by counsel in the divorce matter writ large. However, husband clarified

the issue of representation, and respondent was no longer entitled to rely upon the pro se notice of

appearance as soon as husband told him, “let me get a hold of my lawyer.” Respondent was

                                                 6
required to immediately end the call upon this statement, but he instead told husband that his

lawyer need not be present for the meeting. This was a violation of Rule 4.2.

       ¶ 17.   Respondent first asserts that he did not violate Rule 4.2 because “nothing of

substance related to the divorce was discussed.” However, the rule prohibits “communications

with any person who is represented by counsel concerning the matter to which the communication

relates.” V.R.Pr.C. 4.2 cmt. [2]. We agree with the hearing panel that Rule 4.2 does not on its

face distinguish between substantive and nonsubstantive content in its prohibition of

communicating with a represented party. The conduct at issue here is the communication about

the divorce after respondent was told that husband wanted to talk with his lawyer, not respondent’s

initial placing of the call. Respondent’s argument therefore fails.

       ¶ 18.   Next, respondent argues that ending the call after husband’s statement “would have

been both a rude and an unnatural way to conclude the conversation.” We are unpersuaded by this

argument. Respondent would have been well within the confines of Rule 4.2 to express surprise

at husband’s representation status, inform husband that the conversation must end due to

respondent’s ethical obligations, and indicate that respondent would thereafter communicate

through husband’s lawyer. Suddenly hanging up the phone without reason might be considered

rude and unnatural, but respondent had both a valid reason and the inherent convenience of laying

the blame for any perceived slight upon the professional conduct rules. Respondent’s stated desire

to avoid rudeness simply does not outweigh his ethical obligations.

       ¶ 19.   Also unpersuasive is respondent’s final claim that he did not violate Rule 4.2

because nothing he said during the call “could be construed as an attempt to coerce [h]usband to

forego representation as the divorce issues moved on.” Attempted coercion is not an element of a

Rule 4.2 violation. The express purpose of Rule 4.2 is to “contribute[] to the proper functioning

of the legal system by protecting a person who has chosen to be represented by a lawyer in a matter

against possible overreaching by other lawyers who are participating in the matter.” V.R.Pr.C. 4.2

                                                 7
cmt. [1]. Respondent told husband, “technically [your lawyer] doesn’t have to be here” for a

meeting after being told that husband wanted to contact his lawyer. Respondent then proceeded

to arrange the meeting without said lawyer. Therefore, even if respondent did not act coercively

(an issue not addressed by the hearing panel), respondent overreached and violated Rule 4.2 by

continuing to communicate with husband about the divorce once he learned husband wished to

speak with his lawyer.

                                           C. Sanction

       ¶ 20.   “The American Bar Association’s Standards for Imposing Lawyer Sanctions guide

our sanctions determination.” In re Fink, 

, 

, 

; see Ctr.

for Pro. Resp., Am. Bar Ass’n, Standards for Imposing Lawyer Sanctions (1986) (amended 1992)

[hereinafter ABA Standards]. We impose sanctions “to protect the public and the administration

of justice” but not to punish the lawyer. ABA Standards § 1.1.

                                    1. Presumptive Sanction

       ¶ 21.   The ABA Standards ask us to consider: (1) “the duty violated”; (2) “the lawyer’s

mental state”; (3) “the potential or actual injury caused by the lawyer’s misconduct; and” (4) “the

existence of aggravating or mitigating factors.” ABA Standards § 3.0. We address the first three

in conjunction with each other as set out in the ABA Standards’ presumptive guidelines, which

recommend tiers of sanctions for violations of each duty depending on the lawyer’s associated

mental state and the resulting injury. See In re Neisner, 

, 

, 

 (analyzing these factors together).

       ¶ 22.   Here, respondent violated his duty owed to the legal system by engaging in

improper communications with an individual in the legal system. ABA Standards §§ 6.0, 6.3. The

ABA Standards state that “[s]uspension is generally appropriate when a lawyer engages in

communication with an individual in the legal system when the lawyer knows that such

communication is improper, and causes injury or potential injury to a party.”          Id. § 6.32.

                                                8
Alternatively, a “[r]eprimand is generally appropriate when a lawyer is negligent in determining

whether it is proper to engage in communication with an individual, and causes injury or potential

injury to a party,” id. § 6.33, and an “[a]dmonition is generally appropriate when a lawyer engages

in an isolated instance of negligence in improperly communicating with an individual in the legal

system, and causes little or no actual or potential injury to a party,” id. § 6.34.

        ¶ 23.   As we concluded above, respondent gained actual knowledge of husband’s

continued representation during the call and therefore knew that continuing to communicate with

husband was improper. Further, respondent’s actions caused potential injury. After the call,

husband felt uncomfortable with respondent’s words—so uncomfortable that he immediately

called his lawyer to inform her of the conversation. Had husband not vocalized his feelings of

unease to his lawyer, he could have attended the settlement meeting without his attorney present

and been without the assistance of counsel. This potential injury is of the exact nature that Rule

4.2 attempts to prevent. See V.R.Pr.C. 4.2 cmt. [1] (“This rule contributes to the proper functioning

of the legal system by protecting . . . against possible overreaching by other lawyers who are

participating in the matter . . . and the uncounseled disclosure of information relating to the

representation.”).

        ¶ 24.   While, as noted above, respondent may have been justified in relying upon the self-

represented notice of appearance in making the call, he was not justified in continuing the call and

continuing to discuss issues related to the divorce after learning that husband was represented.

Respondent knew the communication was improper because he gained knowledge during the call

that husband was represented, and his actions caused potential injury. We therefore note the

presumptive standard of a suspension and turn to the aggravating and mitigating factors to assess

whether this sanction should be increased or reduced.




                                                   9
                             2. Aggravating and Mitigating Factors

       ¶ 25.   Relevant aggravating factors include: “prior disciplinary offenses,” “refusal to

acknowledge wrongful nature of conduct,” and “substantial experience in the practice of law.”

ABA Standards § 9.22. Relevant mitigating factors include: “absence of a dishonest or selfish

motive,” “full and free disclosure to disciplinary board or cooperative attitude toward

proceedings,” and “remoteness of prior offenses.” Id. § 9.32.

       ¶ 26.   In 2011, respondent was publicly reprimanded and placed on probation after this

Court concluded that he violated two Vermont Rules of Professional Conduct “for failing to put a

contingent fee agreement in writing and for attempting to charge an unreasonable fee.” Fink, 

. The 2011 decision acknowledged “respondent’s prior public censure in 1987 for

charging an excessive fee” but did not give it much weight due to its temporal remoteness, despite

its substantive relevance. Id. ¶¶ 44-45. The fact that respondent has committed two prior

disciplinary offenses is concerning, particularly in light of respondent’s substantial experience in

the law due to his roughly fifty years of practice. See Neisner, 

 (determining

respondent had “substantial experience” as aggravating factor from practicing for around twenty

years). However, the prior offenses were unrelated to the conduct at issue here and occurred eleven

and thirty-five years ago. We therefore do not consider these prior offenses to be significant

aggravating factors. Compare In re PRB Docket No. 2013.153, 

, 

, 

 (mem.) (“These [prior offenses] are both remote in time to the present case and the

violations are unrelated to the present charges, and we do not give them much weight as

aggravating factors . . . .”), with Wysolmerski, 

, ¶ 42 (concluding that gravity and

similarity of prior misconduct required that “passage of time d[id] not blunt its significance as an

aggravating factor”).

       ¶ 27.   More significant is respondent’s refusal to acknowledge the wrongful nature of his

conduct. In his response to husband’s lawyer’s email objecting to the phone call, respondent sent

                                                10
a curt email denying wrongdoing, insisting that husband was representing himself, and refusing to

agree not to contact husband directly again. He continues to argue on appeal that he did nothing

that violated the professional conduct rules in communicating with husband after gaining actual

knowledge of husband’s representation status, misconstruing the Vermont Rules of Professional

Conduct to allow “natural, non-threatening, non-coercive” communications when in fact all

communications with represented parties must immediately end upon learning that the party is

represented by counsel. Respondent further lays blame on the concept of “unbundled” legal

services rather than his own actions.

       ¶ 28.   To respondent’s credit, there was no evidence presented to the panel that respondent

had a dishonest or selfish motive. This absence of motive weighs in respondent’s favor. We also

acknowledge that respondent did not contact husband again after the phone call. The misconduct

in question is strictly limited to a portion of one conversation. Respondent’s strongly worded

email reply to husband’s lawyer reflected his belief that the ethical rules would have permitted his

continued contact with husband, but his actions demonstrated his compliance with husband’s

lawyer’s directive.

       ¶ 29.   Additionally, respondent was compliant with the proceedings and engaged in full

and free disclosure during these proceedings. His initial answer to Disciplinary Counsel’s

misconduct petition acknowledges most of the facts as alleged, and he participated in and

cooperated with the proceedings before the hearing panel. However, cooperation with an after-

the-fact ethics proceeding does not outweigh the aggravating factors or otherwise change the

presumptive sanction. See In re Bowen, 

, 

, 

 (“[B]ecause

attorneys have an independent professional duty to cooperate with disciplinary investigations

under Rule 8.1(b), [the cooperation mitigation] factor is afforded little weight”).

       ¶ 30.   The foregoing considerations support respondent’s suspension from the practice of

law without deviating upwards to disbarment or downwards to a reprimand or admonition.

                                                 11
                                     3. Length of Suspension

       ¶ 31.   Where suspension is the appropriate sanction, the ABA Standards recommend it be

for six or more months. ABA Standards § 2.3. But this recommendation is not binding on the

hearing panel or this Court, which have both imposed shorter sanctions when appropriate. In re

Kulig, 

, __ Vt. __, 

; see 

 (deeming five-month suspension

appropriate to adequately protect public without requiring application for readmission as necessary

with six-month suspension); In re Adamski, 

, ¶ 1, 

, 

 (per curiam)

(imposing fifteen-day suspension against attorney who intentionally concealed settlement check

from firm’s partners). As indicated above, we give consideration rather than deference to the

hearing panel’s sanction recommendation. Robinson, 

. “In the past, we have

looked to sanctions imposed in other cases to aid us in measuring out a sanction. However, we

recognize that meaningful comparisons of attorney sanction cases are difficult as the behavior that

leads to sanction varies so widely between cases.” Id. ¶ 74 (quotations omitted) (citation omitted).

       ¶ 32.   The panel noted four examples of disciplinary cases in which this Court suspended

a lawyer for fewer than six months. See In re Doherty, 

, 

 (1994)

(mem.) (approving two-month suspension for lawyer convicted of misdemeanor cultivation of

marijuana in violation of ethics rule prohibiting “engaging in conduct adversely reflecting upon

fitness to practice law”); In re Blais, 

, 

 (2002)

(adopting hearing panel’s imposition of five-month suspension and probation for lawyer who

neglected client matters and committed three instances of misrepresentation in violation of ethics

rules prohibiting “neglecting a matter entrusted to the lawyer” and “engaging in conduct involving

dishonesty”); In re McCarty, 

, 

, 

 (lowering six-month

suspension to three months for lawyer who participated in wrongful eviction by engaging in

fraudulent behavior in violation of six ethics rules); Adamski, 

, ¶ 1 (increasing sanction



                                                12
from reprimand to fifteen-day suspension for lawyer who intentionally concealed settlement check

from law firm in violation of ethics rule prohibiting dishonest and deceitful conduct).

       ¶ 33.   The panel then turned to consider a no-contact rule-violation case, In re Illuzzi, 

, 

 (1993) (per curiam), in which we suspended the respondent for six months

for repeatedly communicating directly with represented parties in two separate cases. In Illuzzi,

the respondent “purposely bypassed opposing counsel” to contact insurance companies the

respondent knew were represented in the matter. 

, 

. The respondent had

also previously received a public reprimand and three private admonitions for a total of four prior

sanctions. 

, 

.

       ¶ 34.   The panel in the present case noted that respondent here and the respondent in

Illuzzi both knowingly communicated directly with a represented party, though it acknowledged

that husband here was not “a relatively sophisticated client” in contrast with the insurance

company in Illuzzi. The hearing panel also acknowledged that respondent here violated the no-

contact rule once compared to Illuzzi’s multiple violations, and that the prior disciplinary record

in Illuzzi was significantly more extensive and involved a similar violation. Upon drawing these

distinctions, the panel determined that “while a suspension is appropriate, it should be of shorter

duration.”

       ¶ 35.   The panel concluded that a thirty-day suspension was necessary to “encourage

respondent to take his ethical obligations more seriously” and appropriate in light of the potential

injury and respondent’s defiant email reply to husband’s lawyer. We see no reason to depart from

the panel’s decision. Respondent’s conduct, although certainly deserving of a suspension, was not

so egregious as to warrant a longer one, especially in light of the mitigating factors and the absence

of the more severe aggravating factors noted in Illuzzi.




                                                 13
                                          III. Conclusion

       ¶ 36.   Respondent violated Rule 4.2 by failing to immediately terminate the call upon

learning that husband was represented and instead communicating to husband that his lawyer need

not be present for a meeting to discuss the divorce matter. Applying the ABA Standards, we agree

with the panel that a thirty-day suspension is appropriate.

       Respondent is suspended from the practice of law for thirty days; his suspension will begin
when the mandate executes under V.R.A.P. 41.


                                                FOR THE COURT:



                                                Associate Justice




                                                14