In re Eric S. Brittain, 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.
2017 VT 31
No. 2016-012
In re Eric S. Brittain, Esq. Supreme Court
Original Jurisdiction
From
Character and Fitness Committee
October Term, 2016
Neal Rodar, David E. Tartter, Esq. and Herbert J. Downing, Esq., Panel Members
Robert Appel, Burlington, for Petitioner-Applicant.
William H. Sorrell, Attorney General, and Benjamin D. Battles, Assistant Attorney General,
Montpelier, for Respondent-Appellee.
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.
¶ 1. ROBINSON, J. Applicant appeals the decision of the Vermont Character and
Fitness Committee to decline to certify his good moral character and fitness, which prevented his
admission to the Vermont Bar. We affirm.
¶ 2. Applicant applied for admission to the Vermont Bar in March 2015. Pursuant to
what was then Vermont Rule of Admission to the Bar 11(d), the Character and Fitness Committee
appointed a member of the Committee to investigate applicant’s moral character and fitness and
to decide whether to certify applicant’s admission. The member assigned to applicant’s
application reported in July that he could not recommend applicant’s admission. The member
noted three areas of concern: applicant’s disciplinary history in Wisconsin, including multiple
contempt charges and a public reprimand; other “inappropriate past activity,” including speeding
tickets, a conflict with a previous employer, and applicant’s failure to take responsibility for those
occurrences; and his record of financial difficulties.
¶ 3. Pursuant to Rule 11(g), the Committee convened a three-member panel to hold an
evidentiary hearing to allow applicant the chance to present additional information to support his
application. At that December 2015 hearing, applicant and the panel agreed that the record to be
considered by the Committee consisted of his application to the Vermont Bar, including
attachments, the written record of his application to practice law in the State of Washington, and
correspondence between applicant and the Committee. Applicant testified under oath and
answered questions from members of the panel.
¶ 4. In a written decision issued in January 2016, the hearing panel acting on behalf of
the Committee declined to certify applicant’s good moral character and fitness. Such certification
is a prerequisite to admission to the Vermont Bar. The panel’s written findings include the
following.
• Applicant graduated from the University of Wisconsin Law
School in 2002 and was admitted to practice in Wisconsin in
2003.
• He is an attorney in good standing in Wisconsin, the U.S.
District Courts in Wisconsin, and the U.S. Court of Appeals for
the Seventh Circuit.
• From 2003 to 2006, he was employed as a lawyer with the
Wisconsin State Public Defender’s. In 2005, friction developed
between applicant and his employer concerning a policy issue
involving juvenile defendants. Applicant expressed his views
on the issue publicly, was suspended for insubordination, and
resigned in July 2006 to go into private practice. Applicant does
not regret his vigorous advocacy in connection with the policy
question.
• From July 2006 through May 2012, applicant was self-employed
as a lawyer in Wisconsin, specializing in representing indigent
criminal defendants.
• In November 2008, in the matter of State v. Kostopoulos,
applicant was held in contempt of court for insubordination to
the court.
2
• In November 2009, in the matter of State v. Carter, applicant
suggested in the course of a hearing on a routine discovery
motion that the judge suffered from a physical health issue that
affected her “ability to be appropriate.”
• As a result of the two above incidents, the Wisconsin Office of
Lawyer Regulation filed a disciplinary complaint against
applicant in June 2012. Applicant ultimately admitted the
allegations of the complaint, did not oppose the imposition of a
public reprimand, and agreed to pay specified costs. Applicant
did not contest the proceedings because litigation would have
interfered with his family’s travel plans and because his lawyer
told him it was a “set up,” that he had little chance of success,
and that he faced greater financial exposure if he contested the
charges.
• In July 2010, applicant was held in contempt in the case of State
v. Echols for ignoring instructions of the court, insisting on
referring to his client by first name, and injecting his personal
views.
• In April 2011, applicant was held in contempt twice in the same
proceeding, State v. Donald—once for a personal attack on the
prosecutor, and once for inappropriate behavior during voir dire.
• In August 2011, applicant was charged with violating a
municipal ordinance relating to airport security. Applicant had
gotten into a dispute with a TSA officer after he refused to
present identification as part of the pat-down process.
• In December 2011, a bank initiated foreclosure proceedings
against applicant and his wife for a condominium property. The
condominium had been damaged by high water and was partly
uninhabitable. The applicant did not have adequate insurance to
cover the loss. Applicant abandoned his home to the bank. He
is unaware of any deficiency liability claimed by the
mortgagees.
• Applicant closed his law practice at the end of May 2012. He
maintains that he cannot practice law in Wisconsin because of
unfair treatment by Wisconsin judges in retaliation for his efforts
to uncover the racially motivated illegal activities of the
Milwaukee Police Department and District Attorney’s office.
• In October 2012 applicant wrote an open letter to the United
States Department of Justice stating that his contempt citations
in the State v. Echols and State v. Donald cases and his problems
in State v. Carter were the result of his attempts to expose
corruption in the Milwaukee Police Department and District
3
Attorney’s office. The applicant submitted this letter to the
Character and Fitness Committee to support his contention that
the initial reviewer of his application was not treating him fairly.
• From June 2012 to January 2014 applicant lived in New
Zealand. He has lived in the State of Washington since January
2014.
• Applicant is repaying approximately $260,000 in student loans.
• In May 2013, applicant applied for admission to the bar of the
State of Washington. After a day-long hearing on his
application, including numerous witnesses regarding the above
incidents, the Character and Fitness Board voted eight to one to
grant his application for admission. The Washington Supreme
Court denied the application in November 2014.
• In the Vermont proceeding, applicant has registered his concern
that he is not being treated fairly and that he is being punished
for being a whistleblower against illegal state action. He was
not able to show any direct causal link between his zealous
advocacy on behalf of indigent, minority clients in Wisconsin
and his disciplinary issues, but argued that denying his
application to practice in Vermont would be tantamount to
“aiding and abetting” the unjust treatment he received at the
hands of the authorities in Wisconsin.
¶ 5. On the basis of these facts, the Committee concluded that there was nothing in the
record to suggest that applicant was dishonest or could not be trusted to carry out his
responsibilities as a lawyer. It further concluded that the bankruptcy was fourteen years ago and
not relevant to his present fitness, the foreclosure of his property was a result of a natural disaster
and not necessarily any fiscal mismanagement, and applicant was current on his student loans.
¶ 6. However, citing his four contempt citations by three different judges, and his
stipulated violations of the rules of professional conduct on two occasions, the Committee
concluded that the applicant’s past professional conduct “demonstrates a lack of restraint in the
courtroom and a disturbing tendency to imprudently challenge those he perceives as obstacles to
his zealous advocacy.” The Committee acknowledged that taken individually the incidents might
be dismissed as petty squabbles between an overly zealous lawyer and an unsympathetic judge.
But it concluded, “[a]s a whole, they demonstrate a disturbingly self-destructive pattern of
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behavior that has plagued the applicant since he was first licensed.” The Committee noted that
applicant’s employment dispute and his difficulties with the TSA “further demonstrate a lack of
respect for persons in authority and refusal to follow orders and instructions that contradict his
personal code of ethics.”
¶ 7. The Committee concluded that applicant’s “undignified and discourteous conduct
over several years . . . is directly contrary to the state’s legitimate interest in protecting prospective
clients and the system of justice.” The panel cited commentary to the Vermont Rules of
Professional Conduct that advises that a lawyer should refrain from abusive or obstreperous
conduct. V.R.Pr.C. 3.5(d) cmt. 4. The comment explains that a lawyer may “stand firm against
abuse by a judge,” but should not reciprocate: “An advocate can present the cause, protect the
record for subsequent review, and preserve professional integrity by patient firmness no less
effectively than by belligerence or theatrics.” Id. The panel concluded that applicant had
repeatedly “chosen belligerence and theatrics over protecting the record for subsequent review.”
¶ 8. Finally, in concluding that there is nothing in the record to suggest that applicant’s
character traits will not result in future violations of the Rules of Professional Conduct if he is
permitted to practice in Vermont, the Committee put great weight on the fact that applicant has not
taken responsibility for his actions. Although he testified in vague terms about plans to adjust his
approach in the future to find ways to reduce friction with judges, the gist of his testimony before
the Committee was that his contempt citations and disciplinary investigation were acts of
retribution in response to his successful advocacy for indigent minority clients.
¶ 9. Following the hearing, the Committee issued a decision in January 2016 concluding
that applicant does not possess the necessary character and fitness to be admitted to the Bar. A
certification of applicant’s fitness is a prerequisite to admission. V.R.A.B. § 11(a).
¶ 10. Emphasizing applicant’s past disciplinary record and his failure to take
responsibility for his misconduct, the Committee determined that applicant’s prior conduct was
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“directly contrary to the state’s legitimate interest in protecting prospective clients and the system
of justice.” Applicant appealed the decision to this Court. V.R.A.B. § 11(h).
¶ 11. The applicable rule requires each applicant to “possess good moral character and
fitness.” V.R.A.B. § 11(a) (Supp. 2013).1 “Good moral character” is a “functional assessment.”
V.R.A.B. § 11(b)(1) (Supp. 2013). The purpose of the character requirement is “to exclude from
the practice of law those persons possessing character traits that are likely to result in injury to
future clients, in the obstruction of the administration of justice, or in a violation of the Rules of
Professional Conduct.” Id. These character traits typically involve “dishonesty or lack of
trustworthiness in carrying out responsibilities.” Id. Other traits may be relevant, but “such traits
must have a rational connection with the applicant’s present fitness or capacity to practice law and
accordingly must relate to the state’s legitimate interests in protecting prospective clients and the
system of justice.” Id. “The burden of proof of good moral character and fitness is upon the
applicant.” V.R.A.B. § 11(c) (Supp. 2013).
¶ 12. On appeal, applicant argues generally that the record does not support a conclusion
that he lacks the requisite character or fitness for admission to the Vermont Bar. He also argues
more specifically that the panel erred in considering his past conflict with a former employer as
relevant to his present moral fitness, in concluding that he had not accepted responsibility, and in
describing his detention at the airport as an arrest, rather than a civil violation. We consider these
various contentions together.2 Considering the applicable standard of review and the evidence in
1
As discussed more fully below, we are applying the rule in effect throughout the course
of applicant’s application process, rather than the amended version that took effect in April 2016.
2
Applicant also argues that the panel erroneously considered the Washington Supreme
Court’s denial of his admission to the Washington State Bar and his past debt in reaching its
conclusion. We reject both of these arguments summarily. The Committee’s decision did not in
any way rely on the fact that applicant had been denied admission in Washington. To the extent
the Committee relied on the extensive record from the proceeding in Washington, it did so pursuant
to applicant’s request. The Committee’s analysis below turned on the content of that record, not
the outcome of that proceeding. Moreover, the Committee expressly stated in its decision that
applicant’s various financial challenges were not relevant to its analysis. Likewise, in this appeal
6
the record, we conclude that applicant has not demonstrated the requisite character to practice law
in Vermont.
I. Standard of Review
¶ 13. Our decision in this case does not rise or fall with the applicable standard of review.
However, because we have not articulated our standard of review since we amended V.R.A.B.
§ 11 in 2011, we consider it here.
¶ 14. Prior to 2011, a different process, with a potentially distinct standard of review,
applied to appeals from the Character and Fitness Committee. Then-Rule 11 provided that, upon
petition by an applicant denied admission on the basis of a determination by the Committee, the
Court would appoint a commissioner to conduct an evidentiary hearing and issue a report of
findings and conclusions. If the commissioner issued an unfavorable decision, the applicant could
then appeal that decision to this Court. The Rule authorized this Court to “take any action
consistent with its constitutional authority.” V.R.A.B. § 11(l)(2) (amended 2011).
¶ 15. Pursuant to this standard, our review of the commissioner’s factual findings was
apparently less deferential than our typical review of a lower tribunal’s findings. See In re Bitter,
2008 VT 132, ¶ 18, 185 Vt. 151, 969 A.2d 71 (“ ‘The facts reported by the commissioner do not
have the same standing as findings of fact made by a master or auditor. It is the responsibility of
this court to take appropriate action on those facts we find are supported by competent and material
evidence and then arrive at a decision.’ Thus, although we are aided by the Commissioner’s
findings, we are not bound by them . . . .” (quoting In re Monaghan, 126 Vt. 53, 57, 222 A.2d 665,
669 (1966))). Moreover, our review of the ultimate question of character and fitness was plenary,
with no deference to the recommendation of the commissioner below. See id. ¶ 18 (“[U]ltimately,
it is this Court that ‘must be convinced of the applicant’s good moral character and fitness.’ ”
(citing Monaghan, 126 Vt. at 57, 222 A.2d at 679)).
we attribute no significance to the ruling of the Washington Supreme Court or applicant’s financial
history.
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¶ 16. In 2011, we amended Rule 11 to eliminate the requirement of a hearing before a
commissioner and instead provided for direct review by the Court of the Committee’s findings and
conclusions. V.R.A.B. § 11(i) (Supp. 2013). Like its predecessor, the amended Rule 11 provided
that the Court “may take any action consistent with its constitutional authority” in connection with
that review. But after the amendment, the Court was directly reviewing the Committee’s
determination.3
¶ 17. We conclude that the amendment does not affect our standard of review, either as
to factual findings or legal conclusions. Our conclusion on this point is dictated by this Court’s
unique constitutional responsibility with respect to the regulation of the practice of law. See Vt.
Const. ch. II, § 30 (“The Supreme Court shall have . . . disciplinary authority concerning
all . . . attorneys at law in the State”); 4 V.S.A. § 901 (assigning to the Supreme Court the authority
and responsibility for regulating practice of law); see also In re Morse, 98 Vt. 85, 92-94, 126 A.
550, 552-53 (1924) (recognizing Court’s plenary authority to regulate admission and practice of
law before Vermont courts). This authority and associated responsibility underlay the broadly
nondeferential standard of review we articulated in Monaghan and Bitter. The consideration
applies with the same force whether we are reviewing a report from a commissioner or a written
decision from the Committee. Like a commissioner, the Committee in this setting serves as an
initial factfinder on behalf of the Court. It is not analogous to a trial court or administrative agency.
Our recognition of the limits of a cold paper record will generally, in practice, lead us to defer to
the Committee’s credibility determinations and assessment of the evidence. See Gravel v. Gravel,
2009 VT 77, ¶ 13, 186 Vt. 250, 980 A.2d 242 (recognizing that factfinder “is in a unique position
3
Subsequently, effective April 2016, the Court adopted a global rewrite of the Rules of
Admission. The provisions governing this Court’s review of the Committee’s decision now appear
in Rule 18. Because the proceedings below and appellant’s notice of appeal precede the effective
date of the newest version of the rule, we apply the version in effect prior to April 2016. However,
we see no substantive difference between the newest version of the Rule and the post-2011, pre-
April-2016 version with respect to the court’s standard of review. As before, the present rule
provides, “[t]he Court may take any action consistent with its constitutional authority.” V.R.A.B.
Rule 18(d).
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to assess the credibility of witnesses and weigh the persuasiveness of the evidence”) (quotation
omitted). But we are not bound to do so. Our constitutional authority and responsibility for
regulating the practice of law require that we consider the Committee’s findings in the context of
our own searching review of the record.
II. Conduct at Issue
¶ 18. The Committee’s decision, applicant’s arguments on appeal, and our analysis
center on a number of specific events, including applicant’s suspension by the Wisconsin Public
Defender’s; conduct leading to multiple contempt charges and a stipulated public reprimand by
the Wisconsin Supreme Court for professional misconduct; and violation of a municipal ordinance
after applicant failed to follow TSA security procedures. The record evidence surrounding each
of these instances is as follows.
1. Suspension from the Wisconsin Public Defender’s Office
¶ 19. Applicant graduated from law school in 2002 and began working for the Wisconsin
Public Defender’s in 2003. In July 2005, applicant had a disagreement with his employer about
the treatment of juvenile clients in the Wisconsin court system and the Public Defender’s stance
on a specific juvenile offender program. Applicant opposed a policy requiring juveniles to be
shackled when taken to court, and wanted to file a court action challenging the policy. He also
urged his supervisors to take a legal stand against a particular juvenile justice program. He
expressed his views in multiple strongly worded emails. After applicant’s supervisor informed
him that he would no longer be working on the shackling policy, applicant sent an email to the
members of the Board of Directors for the Wisconsin Public Defender’s. In the email, he laid out
his objections to his employer’s positions on the two issues. The Public Defender’s appears to
have suspended applicant in December 2005, and he resigned in June 2006 to enter private
practice.
¶ 20. On applicant’s Vermont Bar application, he disclosed that he was suspended from
the Public Defender’s and provided the following explanation: “Already on leave due to
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disagreement with employer over legality of ACE program.” When the National Conference of
Bar Examiners contacted one of applicant’s supervisors at the Public Defender’s, the supervisor
noted that applicant’s description of the suspension was incorrect because “other issues were under
investigation.” The supervisor marked that he would not rehire applicant and that he had no
opinion regarding whether applicant possessed the character and fitness necessary to practice law.
2. Misconduct in State v. Kostopoulos (2008) and Resulting Disciplinary Action (2012)
¶ 21. Applicant was first held in contempt in 2008 during a criminal jury trial. At the
beginning of applicant’s opening statement, the court interrupted him twice to warn him against
referencing personal experiences and vouching for his client:
[APPLICANT]: . . . I want to talk about violence. And, well, what
it is like to be in an environment where people yell and scream. And
I know that environment because I grew up in one, and my mom
was very erratic, very emotionally unstable.
THE COURT: Counsel, this is inappropriate argument. You’re not
allowed to reflect on personal items like that. Plus it is argument,
not opening statement. Please refocus your remarks at this time.
Applicant then approached his client, put his hands on his client’s shoulders, and told the jury, “I
know . . . a brave man when I see one.” The Court again interrupted, admonishing him for
inappropriate conduct and instructing that he was not allowed to vouch for his client. Applicant
continued his opening statement, but was again interrupted by the court:
[APPLICANT]: . . . I’m going to tell you what happened that day.
I’m going to tell you about Bill. I’m going to do it in the first person
narrative as if I am Bill so that you can know what happened.
THE COURT: I’m not going to allow that, Counsel, that could be
confusing. You’re the lawyer, you’re the advocate, you need to
speak as such.
¶ 22. At that point, applicant said he would renew his earlier motion seeking the judge’s
recusal from the case, stating that the judge was biased. The judge then excused the jury to speak
with the lawyers about applicant’s actions. During the exchange, applicant challenged the court’s
rulings and denied that his statements were inappropriate. Applicant also asserted that the judge
10
was acting as a prosecutor in interrupting his opening statement and argued that he was preventing
the defendant from having a fair trial. The judge asked applicant to not raise his voice or to “stick
[his] finger in [the prosecutor’s] face.” Before allowing the jury to come back into the courtroom,
applicant and the judge had the following exchange:
THE COURT: . . . It is for the [c]ourt, consistent with the statutes
and the law, to determine how a trial is to proceed . . . . I’m trying
to make sure this is fair. You’ll not be giving any first person
remarks. You’ll not be vouching for credibility, or giving personal
opinions. You’ll not be talking about your personal life experiences.
Do you understand?
[APPLICANT]: Your Honor, I will advocate for my client in a way
that I believe I have to.
¶ 23. The jury returned, and applicant continued his opening statement. Before long, he
stated, “And so, [l]adies and [g]entlemen, under a lot of—a lot of obstacles, we are here today.”
The judge again excused the jury. The court subsequently found on the record that while referring
to the obstacles his client was facing, applicant stopped his statement to the jury, turned more than
ninety degrees to look back at the judge, and paused for three to five seconds. The court concluded
that applicant was trying to suggest to the jury that the court was interfering with his client’s fair
trial rights. After some back and forth with applicant, who said he was only trying to give an
opening statement, the judge held applicant in contempt of the court on the basis of the “obstacles”
remark and surrounding conduct and imposed a fine. The appellate court upheld the contempt
order. See In re Contempt in State v. Kostopoulos, No. 2009AP1253-FT, 2009 WL 3837368, at
*11 (Wis. Ct. App. Nov. 18, 2009).4
¶ 24. Based in part on the above incident, the Wisconsin Office of Lawyer Regulation
(OLR) pursued disciplinary charges against applicant in 2012. Applicant and the OLR entered
4
The Court of Appeals’ decision affirming the contempt citation quotes more extensively
from the transcript, including a number of additional examples of objectionable conduct by
applicant that led to admonishment from the court prior to his “obstacles” statement.
11
into a stipulated resolution whereby applicant admitted the allegations in the OLR complaint and
assumed the costs of that proceeding, and the court publicly reprimand him.
3. Misconduct in State v. Carter (2009) and Resulting Disciplinary Action (2012)
¶ 25. Applicant represented another criminal defendant in 2009. This case involved a
different judge from the one in State v. Kostopoulos. After the judge accepted the defendant’s not
guilty plea and prepared to adjourn the proceeding, applicant initiated a further exchange with the
court regarding discovery demands. Because the matter was disputed, the judge told applicant that
he should file a motion. The judge closed the proceeding for the day. At that point, applicant
raised his voice, continued to try to address the court about discovery matters, and said, “You[r]
Honor, I believe your behavior is inappropriate.”
¶ 26. The matter subsequently came before the same judge at a final pretrial conference.
At the outset of the hearing, the judge systematically listed all of the outstanding motions and
issues to be addressed. Applicant interjected throughout the judge’s list, interrupting her. When
the judge finished reading her list, she asked applicant whether she missed any open issues.
Applicant began reading his own list of matters to be addressed, listing first one that the judge had
included and emphasized as a priority in reviewing her own list. When the judge asked applicant
to simply list the things she missed, he said he wished he had that “super a memory.” After a brief
back and forth the judge terminated the hearing and left the bench.
¶ 27. When the court reconvened the hearing in the afternoon, the judge stated the time
the court had adjourned the hearing in the morning. Applicant objected to the court’s
characterization of the end of the morning’s proceedings as an adjournment and filed a motion to
recuse the judge. The judge explained that she left the bench because she had grown frustrated by
applicant’s shouting, interruptions, failure to directly answer her questions, and failure to listen
when she reviewed all of the outstanding issues. During the ensuing back and forth between
applicant and the judge about the propriety of their respective conduct, applicant called the judge’s
statements about his conduct “ridiculous.” With respect to the judge’s conduct, he said:
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[APPLICANT]: I believe that you made physical gestures with your
head and your eyes. You had your arms outstretched. You walked
quickly off the bench. You raised your voice—behavior I have
never seen before and I hope to never see again by any judge in any
courtroom. I do not know if there is a physical issue that you were
having or some other health issue that has affected your ability to be
appropriate, but at this point, I don’t think it should affect my
client’s right to a fair trial.
Applicant also later stipulated that during this hearing he described the court’s description of his
behavior as “ridiculous.”
¶ 28. This incident, and the above exchanges in particular, were the second basis for the
2012 OLR disciplinary action. As with the prior incident, applicant stipulated to the factual
allegations, agreed to a public reprimand for professional misconduct, and assumed the costs of
the proceeding.
4. Misconduct in State v. Echols (2010)
¶ 29. Applicant was held in contempt a second time in 2010, during another criminal jury
trial. The court listed three reasons for its contempt citation. First, the court asserted that applicant
ignored the judge’s repeated orders to not refer to the defendant by his first name. In fact, the
judge did order applicant not to use the defendant’s first name multiple times but applicant failed
to heed the orders. On one of these occasions, the judge and applicant had the following exchange:
THE COURT: Okay. And I don’t know what it’s going to take, Mr.
[Applicant], I really don’t. His name in this courtroom is Mr. Echols.
I have gone over this with you so many times that I know you’re
consciously purposely doing this and [it] is against what I’ve ruled
and I don’t know how many other ways to say it . . . .
[APPLICANT]: And, Your Honor, I’m meaning no disrespect. I
have gotten to know him very well, very well.
THE COURT: Well, clearly that’s what you’re trying to tell the jury
and that’s also why it’s Mr. Echols.
[APPLICANT]: I don’t think there’s anything wrong with caring
about your client.
THE COURT: I didn’t say you couldn’t care about him. You just
have to listen to the [c]ourt, Mr. [Applicant].
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[APPLICANT]: I am.
THE COURT: You haven’t been and everything I say you take issue
with. You have been disrespectful with me.
¶ 30. Second, the court stated that applicant claimed in front of the jury that the court was
biased against him. Applicant had stated in front of the jury that he felt an “inappropriate bias”
during the trial. Lastly, the court said that applicant acted disrespectfully when applicant received
an unfavorable ruling from the court. When explaining the ruling, the judge had asked applicant
to “stop storming around” and stated that applicant had slammed his book.
¶ 31. After the court provided these three reasons for holding applicant in contempt,
applicant argued that the ruling was not justified. Applicant explained that he was only being a
zealous advocate:
[APPLICANT]: What I would like to say is that I think that
sometimes, you know, I have been doing this for several years, that
I have been criticized maybe too harshly for being a zealous
advocate. . . . I think sometimes people see what I’m doing in court
and think that I personally am invested in it as if I’m trying to
personally offend you or offend somebody. I’m not. I am really
playing a role that I was taught was the right thing to do.
Before imposing a fine, the judge reminded him that lawyers can be zealous advocates and be
respectful of the court.
5. Misconduct in State v. Donald, 2011
¶ 32. Applicant was held in contempt a third and fourth time while representing the
defendant in State v. Donald in April 2011. First, in the course of arguing a motion, applicant
noted that he “would expect a prosecutor of [fifteen] years to know” a tenet of his argument. The
Court interrupted applicant to admonish him for personally attacking the prosecutor. Rather than
apologize, applicant argued with the judge, denying that his attack was personal and invoking his
“First Amendment Rights.” In the ensuing exchange, the court described applicant’s conduct as
follows:
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THE COURT: [Applicant] was making argument on his
[motion]. . . and said a few things that I was interjecting to simply
ask [applicant] to refrain from because I thought he was out of line.
At least as far as some personal attack on the assistant district
attorney at this point. [Applicant] in my judgment became
argumentative with the [c]ourt. I tried a second time to ask
[applicant] to allow me to speak and [applicant] again in my
judgment cut me off and continued to be argumentative with the
[c]ourt.
¶ 33. The transcript in the record supports the trial judge’s description of events. In
response, applicant emphasized his role as a zealous advocate and the need to support his motion
with argument. He accused the court of being biased and acting as an “advocate for the State”
several times and asked the judge to recuse himself. The court then found applicant to be in
contempt of the court, but did not impose a fine.
¶ 34. Later in that same hearing, applicant was held in contempt during voir dire. After
the prosecution objected to applicant’s use of an unrelated newspaper headline as a “pedagogical
device” during voir dire, the judge called for a sidebar. The judge apparently sustained the
prosecution’s objection and instructed applicant to proceed without it. After returning from the
sidebar, applicant stated to the potential jury members, “I’m sorry, folks. I guess I’ve been—It’s
been ruled that I can’t use that. I’ve been doing this ten years, and this is the most trouble I’ve
ever had talking to a group.” The judge immediately excused the jury and held a summary
contempt proceeding. The judge said that he viewed applicant’s statement as an “indictment of
the [c]ourt.” In his defense, applicant claimed that his actions were permissible before stating that
“it appears the [c]ourt during sidebar was acting as an advocate for the State, rather than a neutral
magistrate.” He went on to say that, “the fact that you’re even looking at the line of contempt
shows that there’s bias from the [c]ourt.”
¶ 35. The judge concluded that applicant’s statement to the potential jury suggested that
the court was acting improperly and thus invited disrespect toward the court. The court
emphasized applicant’s repeated misbehaviors, stating that he “repeatedly, insistently, loudly
fail[ed] to comply with the [c]ourt’s orders,” and determined that he “impair[ed] the dignity of the
15
[c]ourt and the proceedings.” Accordingly, the judge held applicant in contempt and imposed a
fine.
6. Applicant’s Detention at the Milwaukee Airport
¶ 36. On his application, applicant disclosed an incident at the Milwaukee airport in 2011
when he was detained for failing to comply with airport security directives, in violation of a
municipal ordinance. It appears that applicant refused to follow TSA protocols. He pled no contest
and paid a fine.
III. Analysis
¶ 37. On the basis of the above record, and additional factors noted in this analysis, this
Court agrees with the Committee’s conclusion that applicant’s prior history shows that he does not
possess the necessary moral character to be admitted to the Vermont Bar. We are primarily
concerned with applicant’s repeated misconduct in court and his failure to take responsibility for
that misconduct. Applicant has demonstrated a pattern of disrespect and insubordination toward
the courts which is “likely to result in injury to future clients, in the obstruction of the
administration of justice, or in a violation of the Rules of Professional Conduct.” V.R.A.B.
§ 11(b)(1) (Supp. 2013).
¶ 38. Taken alone, each of applicant’s instances of misconduct would not lead to the
same result we reach today. However, the instances described above together establish a
problematic pattern of misbehavior involving different cases and different judges spanning
between 2008 and 2012. See In re Bitter, 2008 VT 132, ¶ 20 (“Perhaps in isolation each of
applicant’s incomplete answers or failures to disclose would not raise alarms, but his repeated
nondisclosure reveals a pattern of behavior that is particularly troubling . . . .”). In each of the
cases described above, applicant demonstrated disrespect toward the court by willfully
disregarding court orders or interrupting or inappropriately arguing with the judge about those
orders; he showed very little understanding of the bounds of proper courtroom demeanor,
particularly in the presence of a jury; and he frequently responded to the court’s admonitions by
16
asserting that the judge was biased against him. Moreover, these incidents do not appear to be
isolated. In reviewing the record relating to the specific instances at the center of this case, we
saw in the transcripts multiple other instances of improper conduct in the courtroom.
¶ 39. Applicant has not shown that this pattern of insubordination will not continue in
Vermont if he is admitted to practice here. He has not offered any evidence of remedial
coursework, work with a mentor, counseling, or other steps he has taken to learn about proper
courtroom behavior and improve his conduct. He has not shown that since the time of these
incidents he has successfully practiced law within the bounds of decorum; he has not practiced law
since 2012.
¶ 40. Most important, compounding applicant’s disturbing history of misconduct in
court, is his apparent inability to take responsibility for his actions. Although he contends that he
has taken responsibility for his actions, the record reflects otherwise. He has shown a persistent
lack of accountability both in his testimony at the hearing before the Committee, and more recently
in his appeal letter to this Court.
¶ 41. During the hearing below, applicant stated, “I do take [responsibility] for the
actions which led to the contempt and OLR charges, but in many ways I’m proud of those actions.”
Although applicant initially appears to take responsibility for his misconduct, the statement that
he was proud of his behavior calls that claim into question.
¶ 42. Later, applicant expressed some regret for his actions in the Kostopoulos case,
stating, “I am very responsible for the foolishness and stupidity of the Kostopoulos case. I should
have been held in contempt.” However, applicant goes on to deny the behavior behind the
contempt charge, essentially rearguing the judge’s conclusion that his reference to the obstacles
he was facing was intended to refer to the court’s rulings. His discussion of his conduct during
that case focused on the poor quality of his lawyering, rather than the impropriety of his conduct.
¶ 43. In addition, applicant’s discussion of his contempt charges and public reprimand
during the hearing before the Committee shows his ongoing failure to acknowledge his own
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misconduct. Multiple times during the hearing below, he writes off the courts’ disciplinary actions
as “silly” and repeatedly claims that the judges were biased and retaliating against him for exposing
police and prosecutor wrongdoing. In doing so, applicant dismisses the seriousness of his actions
and places the blame for his own misconduct on the courts that disciplined him instead of
acknowledging that he did anything wrong.
¶ 44. More recently, applicant failed to take responsibility in his appeal letter to this
Court. He again challenged the Wisconsin courts’ reasons for disciplining him. And he
mischaracterizes the Committee decision by stating, “[s]adly, the record shows that my advocacy
on behalf of minority clients is at the heart of Vermont’s decision not to admit me.” Applicant’s
explanation of the Committee’s reason for denying applicant admission to the Vermont Bar
ironically only reinforces the Committee’s concerns about applicant’s inability to take
responsibility for his actions.
¶ 45. Applicant’s focus on claimed retaliation by various judges misses the point. Our
decision is not based on other courts’ findings of contempt or disciplinary sanctions; it is based on
applicant’s underlying conduct giving rise to those consequences. That conduct is evidenced by
the transcripts in the record that demonstrate applicant’s repeated inappropriate conduct in court.
His conduct was out of bounds whether or not any judge found him in contempt, and regardless of
whether any individual judge was predisposed to find him in contempt. His behavior was
inappropriate whether or not he had ruffled feathers by advocating for indigent minorities. And
he should have but did not learn to conform his behavior to professional standards regardless of
the merits of each individual sanction imposed. Applicant should recognize this, but has not.
¶ 46. Applicant’s history of misconduct and his refusal through this entire process to
recognize that he acted inappropriately is concerning because it suggests that he will continue to
misbehave in Vermont courts. Although the conduct that led to applicant’s disciplinary sanctions
does not “involve either dishonesty or lack of trustworthiness in carrying out responsibilities,” they
do “have a rational connection with [his] present fitness or capacity to practice law” and “relate to
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the state’s legitimate interests in protecting prospective clients and the system of justice.”
V.R.A.B. § 11(b)(1) (Supp. 2013). Applicant has shown a clear pattern of disrespecting the court
when he receives an unfavorable ruling, and then accusing the court of bias for calling out that
misconduct. He has continued that pattern in this very appeal. Applicant’s inadequacy may be
remediable, but his failure to demonstrate a genuine understanding of his problem, and to truly
accept responsibility for his actions suggests that he learned little from his prior sanctions and is
likely to continue to act inappropriately in Vermont courts.5
Affirmed.
FOR THE COURT:
Associate Justice
¶ 47. DOOLEY, J., dissenting. While I acknowledge that this case is close, and the
Board performed a thorough and comprehensive analysis of applicant’s eligibility for admission,
I would reverse the Board’s decision that applicant does not have the good moral character and
fitness to be admitted to the Vermont bar. Four factors primarily prompt this dissent.
¶ 48. The first is what this case does not involve. While there are allusions to potential
injuries to clients in the Board and majority decisions, this is not a case where applicant has failed
to fulfill his professional obligations to his clients. Indeed, applicant represented a high volume
of clients in Wisconsin with no apparent indication of client complaints. Nor, as the majority
states, is there any indication that applicant is dishonest or untrustworthy. See ante, ¶ 46. Nor is
there any indication that applicant is an incompetent lawyer. The cases in which applicant was
found in contempt involve overzealous representation rather than inadequate representation. I
5
Applicant argues that the Committee erred in relying on his suspension from the
Wisconsin Public Defender’s and his altercation with TSA agents. We need not and do not rely
on these additional instances documented in the record in reaching our own conclusion.
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emphasize this because I believe that the traits that are not in issue are generally more important
than a risk of overzealous representation.
¶ 49. Second, the disciplinary body in Wisconsin imposed a relatively light sanction of a
public reprimand for the conduct that led to the contempt citation in two of the cases. I do not
condone contemptuous conduct, but we have only a limited understanding of the culture and
circumstances in which the contempt citations arose. I am concerned that we are weighing the
instances of misconduct more heavily than the evaluative body of the Wisconsin Judiciary which
is much closer to the events and circumstances.
¶ 50. Third, my review of the record indicates that applicant has taken responsibility for
the inappropriate tactics he employed that led to the contempt citations but continues to assert that
the unfair treatment of his clients and the circumstances with which he was confronted required
passionate zealous advocacy. This is a fine line, and in my view the difficulty in walking it has
caused much of the Board’s and majority’s view that applicant continues to assert that what he did
was proper.6
¶ 51. I am more persuaded by the Washington Character and Fitness Board’s conclusion
that: “Mr. Brittain seems to have better insight into his past and ways to avoid such misconduct in
the future. He is maturing and accepting responsibility for his actions. Mr. Brittain and his
witnesses have indicated he will no longer return to the behavior exhibited in 2008 through 2011.”
There is some risk that applicant will again engage in the conduct that caused the contempt
citations, but I do not believe he is “likely” to do so, the standard for determining good moral
character. See V.R.A.B. 11(b)(1).
6
The majority found that he offered no evidence of work with a mentor or counseling, and
I note no such evidence. See ante, ¶ 39. Evidence of this type was presented to the Washington
Board and relied upon by it. The Washington Board found that applicant “seems to have better
mentors who are candid with him about his behavior” and that he has taken “professional growth
seminars with Dr. O’Donnell.” If this evidence is important I would remand to the Board to allow
applicant to present it there.
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¶ 52. Finally, I am influenced by applicant’s passion for justice in an area of the law
where we need more zealous and skilled advocates. In saying this, I am not endorsing professional
misconduct or suggesting that we should lower character and fitness admission standards to admit
passionate advocates. I am suggesting that we not confuse passion and zealous advocacy with
character flaws.
Associate Justice
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