Vermont lawyer Melvin Neisner Jr. has been suspended but not disbarred after he caused a car accident in September 2007 and then had his wife falsely claim that she was the driver — even watching as she was arrested and charged with the accident.
Here are the facts from the Vermont Supreme Court:
While driving alone from his home to his office on the evening of September 22, 2007, respondent found himself behind two motorcycles. Because he believed they were traveling under the speed limit, respondent then passed the motorcycles. As he did so, he thought he saw one of the motorcyclists glare at him. After he began driving in front of the motorcycles, respondent thought that the motorcycle drivers had begun tailgating him. Respondent first accelerated and then quickly braked. Respondent felt an impact on his car but did not think it seemed very hard. He neither saw an accident nor thought that one had occurred, so he continued driving to his office. He did notice that one of the motorcycles followed him briefly.
After arriving at his office, respondent turned around to drive home and get something for his daughter. As he once again passed the location where he had accelerated and braked, respondent saw cars on the side of the road. He did not stop. When respondent arrived home, he left a telephone message for his attorney. He also drank several alcoholic drinks and convinced his wife to lie on his behalf. To explain this behavior, respondent testified that he had panicked when he had arrived home after the accident: he feared that he would lose his license to practice, his family, and his status in the community. He also worried about the consequences if it were discovered that he had consumed alcoholic beverages at two wedding receptions before driving and causing the accident.
Shortly after respondent drove to his home, a state trooper received a report of a vehicle that had left the scene of an accident in Killington. While at the accident scene—where he found an ambulance, a person on a backboard, and a damaged motorcycle, as well as skid marks—the trooper heard that a Killington constable had recognized a description of the car that left the accident scene as belonging to respondent. When the trooper went to the home of respondent, respondent told him that his wife had been in a car accident. Respondent went on to tell the trooper that he had been in the passenger seat as his wife drove and that they had felt something hit the car after she tapped the breaks to deal with two motorcycles tailgating them. He also explained that, acting on his advice, his wife did not stop and, instead, drove home. When the officer asked respondent how close the motorcycles had been to their car, respondent replied that he could not see them when he turned. To demonstrate, respondent turned his head over his left shoulder, suggesting that he had been in the passenger seat of the car. Based on respondent’s statements, the trooper arrested respondent’s wife for leaving the scene of an accident, took her to the Vermont State Police Barracks in Rutland, processed and cited her, and released her to her attorney.
The following morning, respondent sought counseling for alcoholism. He testified that he also began attending meetings of Alcoholics Anonymous that evening. During the month following the accident, however, respondent did not tell any law enforcement authorities that he had falsely accused his wife or that he himself had been driving alone at the time of the accident.
The State scheduled an inquest for November 2, 2007, in the case against respondent’s wife. On October 29, 2007, the state trooper who had interviewed respondent and arrested his wife served subpoenas directing respondent’s wife, their two children, and another witness to appear at the inquest. The following day, respondent’s attorney called the investigating trooper to schedule a meeting. At the meeting on October 31, 2007, respondent arrived with his attorney. The trooper advised respondent of his rights. Respondent told the trooper that he had falsely implicated his wife on the evening of the accident. He confessed that he, not his wife, had been driving at the time of accident and submitted a written statement to this effect.
The Supreme Court, however, concluded that the mitigating factors outweighed the aggravating factors in this case:
Respondent asks us to weigh heavily his alcoholism and subsequent rehabilitation. The ABA Standards state that a respondent’s alcoholism may serve as a mitigating factor when alcoholism caused the misconduct, the respondent’s recovery has been demonstrated by a successful rehabilitation, and a recurrence of the misconduct is unlikely because the recovery halted the misconduct. Id. § 9.32(i), at 51. In this case, it is not clear that respondent’s alcoholism was the primary cause of his misconduct. Respondent acknowledged that he had felt panicked about the consequences of leaving the scene of the accident. This suggests that, whatever the impact of the alcohol on his decision-making, respondent’s fear led him to give false information to the police officer in an attempt to protect himself. Respondent concedes that his false statements to the state trooper implicating his wife were “self-serving.” In addition, respondent first acknowledged his alcoholism and sought treatment the day after the accident, but he let another month pass before confessing his misrepresentations to the authorities. While we consider respondent’s alcoholism and recovery to be mitigating factors, we weigh them equally with the other mitigating factors.
We conclude that, on balance, the many mitigating factors outweigh the few aggravating factors present in this case. Because of the range of mitigating factors, we agree with respondent and disciplinary counsel that the presumptive sanction of disbarment is too severe. We determine that a sanction of suspension is appropriate for respondent. See In re van Aelstyn, PRB Decision No. 112, Vt. Prof’l Responsibility Bd., available at http://info.libraries.vermont.gov/PRB/112prb.htm (imposing suspension rather than disbarment otherwise appropriate for respondent attorney convicted of felony involving extortion where significant mitigating factors existed).
This is an interesting conclusion since the court did not find alcoholism to be the cause of the conduct and he did not seek such assistance until after the police investigation. Moreover, his criminal conviction was upheld as a hit and run.
In that opinion, the facts are a bit more damning and certainly less “mitigating” in his post-accident conduct, including his false statement to police and blaming his wife. Moreover, he is reported as driving by the accident “a few minutes later.” That makes the suggestion of just returning to get something for his daughter less plausible:
The operative facts in this case are largely uncontested and are laid out below with additional facts following in the body of the opinion. Defendant, a lawyer in Rutland County, was driving to his office alone one Saturday evening in September 2007. Turning north onto the Killington Access Road, a three-lane road with two north-bound lanes, he approached two motorcycles, which were traveling slowly and occupying both north-bound lanes. Defendant moved to pass the motorcycles, pulling into the left lane directly behind one of the riders—testimony conflicts as to how close to that motorcycle he came, possibly within eighteen inches. The rider in the left lane merged to the right, ahead of the second motorcycle, allowing defendant to pass. Defendant proceeded past both riders and pulled into the right lane ahead of the lead motorcycle, the rider who had been in the left lane. Less than ten seconds later, and without any clear provocation, defendant hit his brakes. The lead motorcycle braked and skidded before colliding with the rear of defendant’s SUV. The rider struck defendant’s vehicle and was thrown from his motorcycle. Defendant heard and felt the collision but continued to drive up the road and away from the accident without stopping. The second motorcycle rider continued after defendant’s vehicle, approaching close enough to obtain the license plate number. A few minutes later, defendant drove back past the accident scene, headed in the opposite direction. Again, he did not stop.
¶ 3. Shortly after the accident, a constable of the Town of Killington arrived at the scene and spoke with the motorcyclists. Recognizing defendant’s license plate number—the two had known each other for years—he waited until the state police trooper who had been assigned the case arrived at the accident, then the constable drove to defendant’s home. There, he met defendant’s wife and defendant, who looked nervous and disheveled. The constable asked to examine their car and noted that there was damage to the left rear. At one point when the constable was alone with defendant’s wife, she told him, “I swear to God I wasn’t driving.” The constable eventually stepped outside to wait for the investigating state police trooper. When the trooper arrived, testimony conflicts as to whether the constable informed the trooper of defendant’s wife’s denial or failed to tell him about it for several more weeks.
¶ 4. Defendant let the trooper into the home and, in front of his wife and the constable, immediately told the trooper that his wife had been involved in an accident. Defendant’s wife remained silent. The trooper went to view defendant’s vehicle in the garage and took photographs of it. In response to questioning about what happened, defendant indicated that his wife had been driving them both in the vehicle that evening, and they had been tailgated by two motorcycles. He explained that the motorcycles were close enough behind their car that he could not see them in the rearview mirror. He then corrected himself and said that he could not see them when he turned around, suggesting that he was in the passenger’s seat, not the driver’s seat. Defendant said his wife had “stepped on the brakes, perhaps a bit too hard,” and they had felt something hit them from behind. The trooper asked him, “She stepped on the brakes too hard, or the brakes were stepped on too hard?” to which defendant responded, grinning, “they were stepped on too hard” without indicating who had done it. Defendant also explained that he had told his wife not to stop at the accident scene and to drive home in violation of the law, even though he was a practicing attorney.
¶ 5. In speaking with defendant, the trooper noticed that defendant’s eyes were glassy or watery, and defendant indicated that he had been drinking alcohol earlier in the day, but not immediately before the crash. When the trooper asked if he could speak with defendant’s wife, defendant stated that she was not going to make any statements. The trooper then asked both defendant and his wife to take a preliminary breath test. They both submitted to the test. Defendant registered a .123% alcohol concentration and his wife registered a .00%. The trooper then asked defendant to swear that what he had told the trooper that evening was true. Defendant declined. Based on defendant’s accusation and the absence of clear conflicting evidence, the trooper took defendant’s wife into custody, brought her to the state police barracks in Rutland, and cited her for leaving the scene of an accident. She was released later that night.
¶ 6. The trooper then returned to the accident scene and met with an eyewitness to the crash who had initially reported it to emergency services. The witness, an employee at a local tavern, said he had watched defendant’s car attempt to pass and then finally pass the two motorcycles before cutting in front of them, breaking “roughly,” coming to a complete stop, and causing the lead motorcycle to strike the vehicle’s rear end. Defendant then sped away. The witness stated that the driver of the vehicle was a man, who he saw drive back past the accident scene heading in the opposite direction a few minutes after the crash. Over the following days, the trooper took photographs of the roadway and made other physical observations about the accident, which he put in his official report.
¶ 7. Five weeks later, following subpoenas for an inquest into the accident served on defendant and members of his family, defendant appeared at the police station with his attorney and gave a formal statement to the investigating trooper. In the statement defendant admitted to driving the car involved in the crash, contrary to his earlier statement falsely identifying his wife as the driver. He described a tense interaction between himself and the motorcyclists leading up to the crash. He explained that he felt threatened and decided to “touch” his breaks when the two motorcycles were tailgating him. He said he felt an impact in the rear of the vehicle but “saw no accident, no motorcycle or car in the road, and . . . felt as if [he] had slowed them down.” He then turned around at his office having “th[ought] better of the situation” and upon approaching the accident scene and seeing “two or three vehicles on the side of the road” he “panicked at that point” and drove home. He said he feared for his safety, thinking that the motorcyclists were “road-raged” and “would hurt [him] if [he] stopped.” He was subsequently charged with the aforementioned crimes.
To make matters worse, Neisner is a former traffic court judge.