In Re Shepperson

Supreme Court of Vermont
164 Vt. 636, 1996 Vt. LEXIS 14, 674 A.2d 1273 (1996)

ELI5:

Sections

Rule of Law:

Repeated failure to draft comprehensible legal briefs and refusal to improve professional skills constitutes incompetence warranting indefinite suspension, rather than disbarment, provided there is no evidence of dishonest or selfish motive.

Facts:

Between 1985 and 1992, Shepperson repeatedly submitted legal briefs to the state Supreme Court that were generally incomprehensible and lacked substantiated legal structure.
His filings contained numerous citation errors, cited cases for irrelevant reasons, and devoted large sections to irrelevant philosophical rhetoric.
In March 1993, Shepperson entered into a remedial stipulation agreeing to complete a legal writing tutorial and to cease practicing law until finished.
On September 15, 1993, Shepperson informed bar counsel that he would not complete the tutorial and had left the United States.
In his defense against disciplinary action, Shepperson submitted a ninety-page brief lacking legal authority, arguing that the Board's requirements for proper legal argument violated his freedoms of speech and religion.

Procedural Posture:

A justice of the Supreme Court filed a complaint with the Professional Conduct Board concerning the quality of the respondent's submissions.
Bar counsel filed a petition of misconduct charging the respondent with violations of disciplinary rules regarding competence and preparation.
A disciplinary hearing was held where the respondent failed to appear.
The hearing panel recommended that the respondent be disbarred.
The Professional Conduct Board adopted the hearing panel's findings and the majority recommended disbarment, while a minority recommended indefinite suspension.
The respondent appealed the Board's recommendation to the Supreme Court of Vermont.

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Issue:

Does an attorney's persistent failure to prepare comprehensible legal briefs and refusal to complete a remedial writing program warrant disbarment when the misconduct lacks corrupt intent?

Opinions:

Majority - Per Curiam

No to disbarment, but yes to indefinite suspension. The Court reasoned that Shepperson's conduct violated disciplinary rules regarding competence (DR 6-101(A)(1)) and preparation (DR 6-101(A)(2)) because his briefs fell below the minimum standards expected of a practicing attorney, thereby failing to safeguard client interests. While the ABA Standards suggest disbarment for a lawyer who refuses to master necessary skills, the Court emphasized that Shepperson's conduct was not intentional or based on corrupt motives. Therefore, adopting the minority position of the Board, the Court determined that indefinite suspension is the appropriate sanction, allowing for potential reinstatement if the respondent can prove fitness to practice.

Analysis:

This case highlights the judiciary's role as a gatekeeper of professional competence, distinguishing between incompetence and malevolence. By choosing indefinite suspension over disbarment, the court affirms that while technical incompetence harms the public and cannot be tolerated, the permanent revocation of a license (disbarment) is typically reserved for cases involving moral turpitude or dishonesty. The decision reinforces that attorneys have a duty to the court and clients to write clearly and follow legal standards, and that 'freedom of speech' is not a valid defense for professional ineptitude.

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