In re Shepperson (95-133); 164 Vt 636; 674 A.

2d 1273
[Filed 24-Jan-1996]
SUPREME COURT DOCKET NO. 95-133
NOVEMBER TERM, 1995

In re Carlyle Shepperson
APPEALED FROM: Professional Conduct Board

In the above-entitled cause, the Clerk will enter:

Respondent Carlyle Shepperson appeals the Professional

Conduct Board's recommendation that he be disbarred for violating
DR 6 101(A)(1) (lawyer shall not handle legal matter that lawyer is
incompetent to handle) and DR 6-101(A)(2) (lawyer shall not handle
legal matter without adequate preparation). We suspend respondent
indefinitely until he can demonstrate that he is fit to practice law.

In June 1991, a justice of this Court not taking part in this

decision filed a complaint with the Board concerning the quality of
respondent's legal submissions. In March 1993, the Board and
respondent entered into a remedial stipulation in which respondent
agreed not to engage in the practice of law while he completed a legal
writing tutorial. The stipulation provided that respondent would
participate in periodic tutoring sessions to develop skills in legal
analysis, persuasive writing techniques, writing organization, and use
of legal authority, proper citation form, and proper formatting for
memoranda and briefs. At the end of the tutorial program, which was
to last for a minimum of six months, respondent was to prepare a ten-
page legal writing sample and a self-written evaluation of his progress.
Respondent was given until September 1, 1993 to report on his
progress with the tutor. On September 15, 1993, respondent wrote
bar counsel that he would not be completing the tutorial, and that he
had left the United States for an indefinite period of time.

Bar counsel filed a petition of misconduct in June 1994,

charging respondent with violating DR 6-101(A)(1) & (2). Respondent
filed memoranda with the Board but did not appear for the disciplinary
hearing held in December 1994. A majority of the Board adopted the
hearing panel's recommendation that respondent be disbarred, with
two dissenting members stating that they would suspend respondent
indefinitely until he proved he was fit to practice law.

All members of the Board agreed with the hearing panel's

findings that between 1985 and 1992 respondent repeatedly submitted
legal briefs to this Court that were generally incomprehensible, made
arguments without explaining the claimed legal errors, presented no
substantiated legal structure to the arguments, and devoted large
portions of the narrative to irrelevant philosophical rhetoric. The
briefs contained numerous citation errors that made identification of
the cases difficult, cited cases for irrelevant or incomprehensible
reasons, made legal arguments without citation to authority, and
inaccurately represented the law contained in the cited cases. All
members of the Board also agreed with the hearing panel's
conclusions that (1) respondent's briefs were not competently prepared
and fell below the minimum standard for brief-writing expected of a
practicing attorney in this state; (2) respondent failed to prepare
adequately or give appropriate attention to his legal work; and (3)
respondent did not use proper care to safeguard the interests of his
clients.

A review of the exhibits in this case supports the Board's

findings that respondent disserved his clients by preparing inadequate
and incomprehensible legal briefs, in violation of DR 6-101(A)(1) & (2).
Respondent's brief in this matter is a further example of the
deficiencies noted by the Board. In over ninety pages, respondent fails
to raise a legitimate legal issue or cite a single authority in support of
his arguments. The gist of his harangue against the legal system is
that the Board and this Court have violated his freedoms of speech
and religion and limited his ability to think in diverse ways by
dictating what is and what is not a proper legal argument. If we were
to accept this argument, it would preclude any oversight of attorney
competence in representing members of the public. Respondent may
represent himself as he pleases, but he cannot be permitted to
represent others in a manner that, under reasonable and accepted
standards, fails to safeguard his clients' interests. Indeed, the primary
purpose of the attorney disciplinary system is to protect the public. In
re Berk, 157 Vt. 524, 532, 602 A.2d 946, 950 (1991); ABA Standards
for Imposing Lawyer Sanctions, Standard 1.1, Commentary (1991).

The only real issue on appeal is whether respondent should be

disbarred or suspended indefinitely.(FN1) According to the American
Bar Association Standards, which we have found helpful in
determining appropriate sanctions, see Berk, 157 Vt. at 532, 602 A.2d
at 950, "Disbarment should be imposed on lawyers who are found to
have engaged in multiple instances of incompetent behavior . . . [or]
whose course of conduct demonstrates that they cannot or will not
master the knowledge and skills necessary for minimally competent
practice." Standard 4.51, Commentary. Here, respondent's course of
conduct in filing several incomprehensible briefs over a period of seven
years and his failure to follow through with the stipulated tutorial
program designed to improve his skills demonstrate his inability or
refusal to understand and apply fundamental legal doctrines and
procedures. Id. Standard 4.51. Nevertheless, because there is no
indication that respondent's conduct was intentional or based on
corrupt motives, we adopt the minority position of the Board and
suspend respondent until he can prove that he is fit to practice law.
See ABA Standard 9.32(b) (absence of dishonest or selfish motive is
mitigating factor); cf. In re Hogan, 490 N.E.2d 1280, 1281-82 (Ill.
1986) (attorney's inability to draft comprehensible briefs, which does
not involve corrupt motive or moral turpitude, warrants placement on
inactive status during period of rehabilitation until competence to
engage in practice of law is demonstrated). In no event, however, shall
respondent's suspension be less than six months. See A.O. 9, Rule
7(2); id. Rule 20B, D.

Judgment that Carlyle Shepperson be suspended, effective

upon issuance of this order, for not less than six months and until he
has demonstrated to the satisfaction of this Court, via motion to the
Professional Conduct Board, that he is fit to practice law in this state.
The Board is empowered to require such further study and
examination, oral or written, as it deems appropriate to the
circumstances.

BY THE COURT:

_______________________________________
Frederic W. Allen, Chief Justice

_______________________________________
Ernest W. Gibson III, Associate Justice

_______________________________________
Albert W. Barney, Chief Justice (Ret.)
Specially Assigned

_______________________________________
Louis P. Peck, Associate Justice (Ret.)
Specially Assigned

_______________________________________
Wynn Underwood, Associate Justice (Ret.)
Specially Assigned
 ------------------------------------------------------------------------
Footnotes

FN1. We grant respondent's motion to file an enlarged brief, but deny

his motion to dismiss for lack of jurisdiction, which is without merit.
------------------------------------------------------------------------

84.PCB
[03-Mar-1995]

STATE OF VERMONT
PROFESSIONAL CONDUCT BOARD

In re: Carlyle Shepperson, Respondent

PCB File 91.40

FINAL REPORT & RECOMMENDATION TO THE SUPREME COURT

DECISION NO. 84

Pursuant to A.O. 9, Rule 8E, the Professional Conduct Board

hereby reports to the Supreme Court its findings of fact, conclusions of
law and recommended disposition.

The Board has reviewed the report of the hearing panel dated
January 6, 1995, and adopts as its own the findings of fact and
conclusions of law contained therein. We also held a hearing on this
matter pursuant to Rule 8(D) on March 3, 1995. Although
Respondent submitted a brief, he did not appear.

We further adopt as our own the hearing panel's recommended

sanction. For the reasons contained in the panel's report, we
recommend that Respondent be disbarred.

Dated at Montpelier, Vermont this 3rd day of March, 1995.

PROFESSIONAL CONDUCT BOARD

___________________________
Deborah S. Banse, Chair
___________________________ ___________________________
George Crosby Donald Marsh

___________________________ ___________________________
Joseph F. Cahill, Esq. Karen Miller, Esq.

___________________________ ___________________________
Nancy Corsones, Esq. Garvan Murtha, Esq.

___________________________ ___________________________
Paul S. Ferber, Esq. Edward Zuccaro, Esq.

___________________________ ___________________________
Nancy Foster Ruth Stokes

___________________________ ___________________________
Rosalyn L. Hunneman Jane Woodruff, Esq.

DISSENT

We agree with the findings of facts and conclusions of law, but

would recommend that Respondent be suspended indefinitely until he
can prove that he is fit to practice law.

___________________________ __________________________
Robert P. Keiner, Esq. Robert O'Neill, Esq.

--------------------------------------------------------------------------------

PROFESSIONAL CONDUCT BOARD

IN RE: Carlyle Shepperson

PCB File No. 91-40

HEARING PANEL'S FINDINGS OF FACT, RECOMMENDED

CONCLUSIONS OF LAW AND RECOMMENDED SANCTION

PROCEDURAL HISTORY

In a Petition Of Misconduct dated June 28, 1994, respondent

was charged by Bar Counsel with violations of DR 6-101(A)(7) and DR
6 101(A)(2) of the Code of Professional Responsibility. On August 9,
1994, the Petition Of Misconduct was amended by charging that the
violation was of DR 6-101(A)(1) instead of (7) which was a misprint.

The matter was heard before a Hearing Panel on December 9,

1994 in the Vermont District Court, Brattleboro, Vermont. The
Hearing Panel consisted of J. Garvan Murtha, Esq., who served as
Chair; Deborah S. Banse, Esq. and Ms. Rosalyn Hunneman. Present
at the hearing was Shelley A. Hill, Esq., Bar Counsel. Respondent did
not appear for the hearing. The Board was advised by Kerry B.
DeWolfe, Esq. by correspondence dated November 21, 1994 that Mr.
Shepperson was aware of the hearing of December 9, 1994, but would
not be present. Cathryn Nunlist, Esq. was the only witness appearing
at the hearing.

Respondent filed several pre-hearing motions, including a

Motion to Dismiss for Lack of Jurisdiction, a Motion for Summary
Judgment, a Motion to Strike, all of which were denied by an Order
dated November 23, 1994.

Subsequent to November 23, 1994, respondent filed numerous

additional motions, including a Motion to Dismiss, Motion to Transfer,
Motion to amend or Reconsider, Notice of Appeal, Motion to Amend,
Motion for Summary Judgment and Motion to Transfer to a Legal and
Impartial Court. The most recent motion filed by the respondent prior
to the hearing on December 9, 1994 was entitled "Motion for
Permission to File Motions" and "Notice to Objection

To And Appeal of Order 23 November". These motions were

received by the Board on December 7, 1994.

The Hearing Panel considered all of respondents pending

motions at the hearing and they were DENIED.

FINDINGS OF FACT

1. Carlyle Shepperson was admitted to the Vermont Bar in 1982.

He is a graduate of Vermont Law School.

2. Between 1985 and 1992 respondent submitted nine (9) legal

briefs to the Vermont Supreme Court (Exhibits 1 through 9).

3. All of the briefs were written and signed by the respondent.

4. All but two (2) briefs submitted by the respondent to the
Vermont Supreme Court fell below the minimum standard for
brief writing expected of a practicing attorney in the State of
Vermont.

5. The brief filed in the Supreme Court in the matter of State of

Vermont vs. Aaron Johnson dated October 19, 1991 and the
reply brief filed by respondent in the matter of "State of Vermont
vs. Aaron Johnson" dated January 9, 1992 were appropriate and
competently prepared.

6. However, the remaining briefs prepared and filed by the

respondent were, in general, incomprehensible, did not aid the
Court and did not meet the standard of what is expected of
a reasonably qualified attorney.

7. The briefs in question consistently failed to identify the issues or

the rules by which the issues should be resolved; made
arguments without explanation as to what constituted the legal
error; presented no substantiated legal structure to the
argument; and devoted large portions of the narrative to
philosophical rhetoric.

8. In addition, on a technical basis, the briefs in question contained

many citation errors; legal propositions were not often cited at
all; citations were so incomplete or inaccurate that identification
of the cases was difficult or impossible; cases were inaccurately
represented; cases were cited for reasons that were
incomprehensible; cases were cited from other jurisdictions
that were neither binding, persuasive nor relevant. Further,
the briefs were so filled with spelling and grammatical errors
as to cast a doubt on the credibility of the respondent.

9. DR 6-101 of the Code of Professional Responsibility entitled

"Failing To Act Competently" states in part:

(A) A lawyer shall not:

a. Handle a legal matter which he knows or should know

that he is not competent to handle, without associating
with him a lawyer who is competent to handle it.

b. Handle a legal matter without preparation adequate in

the circumstances.
10. In February, 1993 and April, 1993, the respondent and the
Professional Conduct Board entered into a Stipulation
whereby the respondent agreed not to engage in the practice
of law whatsoever until he completed the requirements for
an advanced degree and, subsequent thereto, retained a legal
writing expert, Janis M. Murcic, Esq., to develop respondent's
skills in legal analysis, persuasive writing techniques, etc.
(Exhibit 10).

11. On September 27, 1993, respondent wrote Bar Counsel

indicating

"........I will be unable to complete the stipulation at the present

time." (Exhibit 13).

Thereafter, Bar Counsel initiated a Petition of Misconduct.

CONCLUSIONS OF LAW

1. Seven of nine briefs filed with the Vermont Supreme Court by

the respondent between 1985 and 1992 were not
competently prepared.

2. The preparation of the briefs in question fall below the minimum

standards expected of a practicing attorney in the State of
Vermont.

3. Respondent did not use proper care to safeguard the interests of

his clients. He did not diligently undertake the work and study
necessary to qualify himself as a competent preparer of
briefs submitted to the Vermont Supreme Court.

4. He failed to prepare adequately for and give appropriate attention

to his legal work.

5. As a result of his actions respondent failed to act

competently and violated DR 6-101(A)(1) and DR 6-101(A)(2).
 RECOMMENDED SANCTION

Respondent repeatedly violated the duties owed to his clients, to

the Court and to the legal system. Over a period of seven years
respondent submitted seven briefs to the Vermont Supreme Court
which indicated he did not understand the most fundamental legal
doctrines or procedures.

The American Bar Association Standards For Imposing Lawyer

Sanctions states:

Disbarment is generally appropriate when a lawyer's course

of conduct demonstrates that the lawyer does not understand the
most fundamental legal doctrines or procedures, and the lawyer's
conduct causes injury or potential injury to a client".

(Section 4.51 of the Standards).

The respondent received a private admonition on April 5,

1991, for a violation of DR 7-106(C)(6).

The respondent engaged in multiple instances of incompetent

behavior. Seven briefs submitted to the Vermont Supreme Court
demonstrate that Mr. Shepperson cannot or will not master the
knowledge and skills necessary for minimally competent practice.

The Hearing Panel is convinced the respondents unethical

conduct is so significant and wide-ranging that he is a threat to the
public, the profession, the courts and his clients. The Hearing Panel
recommends he be disbarred from the practice of law.

DATED: January 6, 1995

Respectfully submitted:

J. Garvan Murtha, Esq.

Deborah S. Banse,Esq.

Rosalyn Hunneman