Vermont: Lawyers Reprimanded for Falsely Denying Recording Telephone Conversation

Link for opinion: http://scholar.google.com/scholar_case?case=1249575276007621696&q=989+A.2d+523&hl=en&as_sdt=100000002&as_ylo=2009

In In Re PRB Docket No. 2007-046, 2009 VT 115, 989 A.2d 523, the Vermont Supreme Court privately reprimanded two attorneys for falsely denying to a witness that the telephone conversation was being recorded.

Respondent attorneys were partners in a law practice and represented a client in a criminal matter. A potential witness contacted the attorneys, claiming to have information showing the client’s innocence. The attorneys arranged an interview by telephone and to record the call. During the call, the potential witness asked the attorneys whether they were recording the conversation. One attorney said “No,” and the other attorney added “She’s on speaker phone, so I can hear you.” The witness later filed complaints with the Office of Disciplinary Counsel against both attorneys.

The Vermont Supreme Court affirmed the hearing panel’s decision that the attorneys had violated Rule 4.1 which states "[i]n the course of representing a client a lawyer shall not knowingly make a false statement of material fact or law to a third person", but had not violated Rule 8.4(c) which establishes that it is professional misconduct for a lawyer to "engage in conduct involving dishonesty, fraud, deceit or misrepresentation."

In flatly denying to the witness that the call was being recorded, the attorney knowingly made a false statement. The other attorney then attempted to distract the witness from the issue with a statement about using a speaker phone. See V.R.Pr.C. 4.1 cmt. ("A misrepresentation can occur if the lawyer incorporates or affirms a statement of another person that the lawyer knows is false. Misrepresentations can also occur by failure to act."). See also Miss. Bar v. Att'y ST, 621 So.2d 229, 233 (Miss.1993).

Rule 8.4(c) is to be interpreted to reach only conduct that calls into question an attorney's fitness to practice law. Because the attorneys’ dishonesty does not reflect on their fitness to practice law, the Court affirms the decision of the hearing panel.