Court: Supreme Court of Vermont; June 18, 1998; Vermont; State Supreme Court
R. Peter Decato, Esq. is publicly reprimanded as ordered by the Vermont Supreme Court, following a recommendation from the Professional Conduct Board dated April 7, 1998. The reprimand arises from a case involving Decato's representation of Stuart Kellogg, a truck driver injured in an accident due to improper safety mechanisms on the truck. After being referred to Decato for potential civil action in July 1986, he identified three defendants: Stanley Boyce (supervisor), Robert MacNeil (owner of the trucking company), and "Loadmaster" (alleged manufacturer). Decato filed a lawsuit on April 8, 1987, citing product liability against Loadmaster and negligence against Boyce and MacNeil. Legal complexities arose since MacNeil, as an employer, typically held statutory defenses against negligence claims. Decato's complaint included a claim against MacNeil as a co-employee. Loadmaster later denied involvement in the design or manufacture of the packer, with MacNeil admitting to this fact by December 17, 1987. Notably, Decato failed to respond to Loadmaster's request for admissions. The Board concluded that while a joint recommendation for admonition was presented, a public reprimand was deemed appropriate.
On December 24, 1987, Loadmaster clarified its denial of responsibility for a defective packer, attributing potential liability to Hagen Industries, Inc. or its subsidiaries. Loadmaster renewed its motion for judgment on the pleadings on December 28, 1987, which the court granted on April 12, 1988, after Mr. Decato failed to respond to requests for admissions. Mr. Decato discovered that the subsidiaries had dissolved, but Hagen Industries, Inc. remained in good standing, and he did not pursue further inquiries regarding the packer's manufacturer.
In a claim against MacNeil, Mr. Decato learned from Kellogg that MacNeil was heavily involved in company management. MacNeil filed for summary judgment on December 15, 1987, asserting he had no direct negligence and was protected by workers' compensation laws, supported by his affidavit denying involvement in truck maintenance. There was conflicting testimony about MacNeil’s duties, but Mr. Decato did not depose him or submit interrogatories, believing he could not counter MacNeil’s claims. Summary judgment for MacNeil was granted on April 12, 1988.
In the case against Boyce, he submitted an answer denying liability on March 2, 1988, and due to limited resources, Kellogg considered suing Boyce if insurance coverage was available, which was denied as employees were not included. On July 28, 1988, Boyce’s attorney filed a stipulation for his dismissal, which Mr. Decato signed.
Post-dismissal, Mr. Decato advised Kellogg to seek new counsel to pursue a claim against Hagen Industries, Inc. In 1993, Kellogg consulted a new attorney regarding his SSI benefits, leading to a malpractice action against Mr. Decato, which was resolved satisfactorily by late 1995. Kellogg filed a complaint with bar counsel on October 27, 1993, about Mr. Decato's failure to transfer his file to the new attorney, which Decato rectified promptly.
Mr. Decato exhibited negligence, had prior disciplinary actions, and no dishonest intent. He cooperated fully with disciplinary proceedings, which experienced delays not caused by him. The events occurred ten years prior.
Mr. Decato demonstrated cooperation during the mediation of a malpractice action against him. He has had one previous disciplinary offense that is considered remote in time, and only one complaint was filed against him since this case began, which was dismissed as meritless. Legally, an attorney must diligently pursue facts and law to protect a client's rights, a duty Mr. Decato failed to meet in several ways: he neglected to pursue a claim against the correct corporate defendant, failed to assist his client in finding substitute counsel, did not research the legal basis for the claim against co-worker Mr. MacNeil, and neglected to investigate Mr. MacNeil’s claims regarding his involvement in the case. This lack of diligence is particularly concerning given the severity of the client’s injuries from defective equipment. Mr. Decato’s minimal effort suggested disinterest in the case, abandoning his client without proper representation. The conclusions indicate he violated disciplinary rules concerning competent representation and neglect of the client's cause of action.
In terms of sanctions, a public reprimand is recommended based on ABA Standards, considering Mr. Decato's negligence and the injury suffered by his client, Mr. Kellogg, who lost opportunities to pursue responsible parties. Mr. Kellogg only received financial recovery after nearly ten years due to another attorney recognizing a legal malpractice case. Aggravating factors include prior disciplinary offenses and the victim's vulnerability, while mitigating factors include the absence of dishonest motives and full cooperation in the disciplinary process. Additional mitigating circumstances suggested by Mr. Decato and bar counsel are not accepted.
The malpractice case settlement occurred two years after the initiation of the disciplinary investigation, failing to qualify as a "timely good faith effort to make restitution" under Standard 9.32(d). Factors such as the remoteness of past events and the absence of other complaints are not recognized as mitigating circumstances by the Board, the Vermont Supreme Court, or ABA Lawyer Standards. A prior offense from 1987, coinciding with the neglect of Mr. Kellogg's case, is viewed as an aggravating factor rather than a mitigation. The stipulated delay in the disciplinary proceedings, although not caused by the respondent, was insufficiently lengthy to be considered mitigating. The conclusion recommends a public reprimand for the respondent for neglecting Mr. Kellogg’s case, in violation of DR 6-101, and the motion for reconsideration was denied on June 26, 1998. The delay in file production was primarily due to individuals other than Mr. Decato.
