[R]UTLAND — Former Windham County Assistant Judge Paul Kane either should receive the harshest sanction for a judicial officer in the state or has already been punished enough by resigning his seat on the bench.
The Vermont Judicial Conduct Board heard the competing views from attorneys regarding unprofessional conduct allegations leveled at Kane over his actions involving the finances and estate of a woman who died at age 86 in April 2014.
“We expect judges to be honest, we expect them to understand the law, we expect them to act with integrity in their public and private lives,” Ian Carleton, a Burlington attorney the board appointed as special counsel to investigate Kane, told the panel Wednesday.
“We expect judges to be the walking personification of the rule of laws,” Carleton added. “That’s what judges are. It’s an incredibly powerful position, symbolically and in fact.”
Carleton, who said Kane still doesn’t appear to “get it,” asked the panel to impose a lifetime ban on Kane from ever seeking a judicial office again, in addition to a public reprimand. Carleton said the board also should be clear that if Kane had not resigned last month, it would have immediately barred him from the bench.
“Anything less,” he said, “than a categorical repudiation of what we saw here doesn’t send the message that this board needs to send going into the future of what we expect from judges.”
Melvin Fink, representing Kane, wasted no time in his closing statement firing back at Carleton.
“How really crass of counsel to suggest that Mr. Kane doesn’t get it,” Fink told the board. “Does a person voluntarily resign from an office that he holds in very high regard and cherishes if he doesn’t get it?”
Fink said his client acknowledges that “mistakes were made” and that Kane submitted his resignation on his own, due to the “perception” that others may think he did not do the right thing.
“That mere perception is sufficient for him to say, ‘I resign,’” Fink said, adding that Kane did not want to tarnish the state’s judiciary and accepted responsibility for his actions.
“The board counsel asked for the most stringent and extensive sanctions,” Fink said. “I cannot think of a more burdensome, or heavier sanction, to impose on Paul Kane than the voluntary resignation that he has already undertaken.”
Steven Adler, chairman of the Judicial Conduct Board at the time the case against Kane started, presided over the proceeding and said a decision is likely within 30 days.
The board asked Carleton to investigate Kane’s action after questions were raised about his handling of Catherine Tolaro’s estate, which at one time contained more than $800,000, according to filings. The Bellows Falls woman had granted power of attorney over her affairs to Kane four years before her death.
The unprofessional conduct allegations do not stem from a case he was presiding over, but rather his dealings with Tolaro’s estate as a private citizen after his election as a judge.
Kane, elected to a four-year term in November 2014, resigned last month.
The three-day Judicial Conduct Board proceeding, at times combative, took place this week in a state courtroom in Rutland.
Fink rose several times to voice objections, while Carleton did as well, but to a lesser extent.
“I appreciate the jousting of cross-examination, but this is getting tedious,” Carleton said at one point.
“It’s a yes-or-no question,” Fink repeatedly said as he interrogated witnesses and they tried to offer greater explanation.
Through his investigation, Carleton contends that Kane improperly used his power of attorney standing to benefit himself with annuities he took out using funds from Tolaro’s account, and naming him and his now late wife as beneficiaries.
Also, Kane provided loans using Tolaro’s money to acquaintances, Carleton said, and those loans were later defaulted on and some of the debt forgiven by Kane.
At one point, when asked about one of the annuities he took out, Kane, on the witness stand this week, said Tolaro told him that “whatever I felt was appropriate, I should do.”
Carleton, who pressed Kane about Tolaro’s mental condition and memory, then asked Kane if Tolaro understood what he planned to do with the money.
“She seemed to understand what I was talking about,” Kane said. “She had good days and bad days.”
Kane also submitted an $833,000 claim on Tolaro’s estate, seeking payment for care he said he and his wife provided Tolaro for the roughly two years she lived with them prior to her placement in Ascutney House in Windsor.
Carleton called that claim “implausible,” saying that based on the calculation of hours worked at the stated rate of $18 an hour, it left almost no time for Kane and his wife to do anything else but provide care to Tolaro.
An amended claim was later submitted cutting the figure in half. Kane testified this week the claim should have accounted only for one person providing care at a time. He said he should have looked more closely at the filing before it was submitted to the court by an attorney who no longer represents him.
Fink, in his closing statement, said he doesn’t believe Kane intended to deceive anyone.
Fink said in court that although the claim in the amended filing is still a large amount, it will ultimately be decided in a separate proceeding currently underway in probate court.
Tolaro’s relatives and several local nonprofit organizations are battling Kane in probate court over the estate’s assets.
Carleton contended in his closing statement that he learned more during the hearing than he knew prior to its start.
“I do think,” he said, “that there were a number of revelations over the last few days that were more troubling than I ever expected.”
Adler, the conduct board’s chairman, thanked both attorneys for their work as the proceeding drew to a close.
“I appreciate the zealous advocacy that you both brought your positions,” he said.
