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Orange County Judge Faulted for Handling of Guardianship Case

Valley News Staff Writer
Published: 1/23/2019 9:43:43 PM
Modified: 1/23/2019 9:43:51 PM

Newbury, Vt. — An investigator for the Judicial Conduct Board has found that an Orange County probate judge failed to act “impartially and diligently” in a long-running guardianship dispute involving the adult children of a 94-year-old Newbury, Vt., woman.

Judge Bernard Lewis violated Vermont’s Code of Judicial Conduct in the guardianship case that has pitted siblings Elizabeth Guest and Bruce and Bryce Thomas against their brother Paul Thomas, according to the Jan. 7 formal complaint filed by John Kennelly, a Rutland, Vt., attorney acting as investigative counsel in the case for the Judicial Conduct Board. The three petitioners say their brother overpaid himself and mishandled assets belonging to their mother, Miriam Thomas, while serving as her legal guardian from 2010-18.

“The court (Lewis) repeatedly noted its frustration with the pace of proceedings and the guardian’s failure to comply with the orders of the court, but did nothing to require that its orders be followed and that the guardian follow the law,” Kennelly wrote in his complaint.

“The judge did not do everything a judge should and could have done to dispose of the matters before the court promptly, efficiently, and fairly. The guardian paid himself enormous amounts of money during the seven and a half years he was in control of the estate. Those payments were obviously of little benefit to the ward.”

Kennelly’s complaint asserts that Lewis violated two provisions of a judicial canon that states “a judge shall perform the duties of judicial office impartially and diligently.”

Lewis, who has served as a probate court judge since 2002 and is retiring, has 21 days to respond to the allegations. He is being represented by Burlington-based attorney Christopher Davis, the former chairman of the Judicial Conduct Board.

Davis declined to comment on the matter.

Lewis also practices law in Randolph and previously worked for Vermont’s Department of Banking, Insurance and Securities as a market conduct chief examiner, according to his law firm’s website.

The current chairman of the Judicial Conduct Board, Rutland-based attorney Andrew Maass, said that after Lewis responds to the complaint, a public hearing would be held to determine whether a finding of judicial misconduct is merited. If the board finds misconduct, the penalty could lead to a reprimand or other sanction, said Maass, who noted that such hearings are rare in the state.

Asked whether Lewis’ pending retirement — he did not run again in November for the part-time probate judgeship, which in Orange County pays about $51,000, and his term expires at the end of this month — would have an impact on the case, Maass said, “the jurisdiction of the board remains the same whether a judge remains in office.”

The investigation into Lewis’ actions took place after three of Paul Thomas’ siblings filed a complaint to the conduct board in January 2018, alleging Lewis engaged in a “pattern of inaction” that undermined Vermont laws, prevented a disposition in the case and wasted tens of thousands of dollars in legal fees, among several other things, according to Bruce Thomas.

Miriam Thomas, who has dementia, has lived in the memory care area of Valley Terrace since 2009. The three siblings filed a guardianship petition late that year, but Paul Thomas and another sister, Mary Thomas, filed a counterpetition seeking to appoint Paul as the guardian. Lewis subsequently appointed him as financial and medical guardian in 2010.

The sibling trio objected every year to accounting reports Paul Thomas filed late, saying he had paid himself prior to filing the report without seeking court approval for the payments, a violation of state law, Kennelly wrote.

Over the years, the siblings brought forward other alleged flaws in how the guardian handled aspects of his mother’s $2.4 million estate, including an incident where Paul Thomas followed an improper process to sell property, Kennelly wrote.

Miriam Thomas and her late husband, Fredrick Bryce Thomas, owned several pieces of real estate, including a tree farm. Together they ran their 21-room Pulaski Street home as the Newbury Inn.

Lewis advised Paul Thomas of problems with his actions as guardian and expressed concerns and “displeasure” with his ability to comply with court orders, Kennelly wrote. However, Lewis didn’t issue an order to remove Paul Thomas as financial guardian until last March; the probate court judge has since recused himself from the case.

By the time Paul Thomas, 61, was removed, he had paid himself more than $250,000 from his mother’s assets for serving as guardian, according to Kennelly’s filing.

Bruce Thomas has long campaigned to strengthen Vermont’s guardianship laws, saying the state doesn’t do enough to hold guardians accountable.

“Sadly, it is hard to feel very good about any of this,” he said this week. “We commend John Kennelly’s professionalism and integrity, but this case is far from over and it is unlikely that Judge Lewis will suffer any serious sanction, especially in light of the serious harm that his judicial inaction has caused our mother and our family in general.”

Some of his proposed changes to state law would give interested parties the right to view an estate’s financial records in a timely fashion; mandate that the records be kept for a certain length of time and, if they aren’t, order the guardian be replaced; and instruct judges to approve a guardian’s annual accounting within one year of the filing date, or remove the guardian.

Making the changes would provide increased oversight and help prevent abuse of the system and the estate, he said.

“The state has good guardianship laws, but without having any ability for oversight or challenges, they are all sort of nullified,” Bruce Thomas said. “And it’s sad. Our mother can’t speak for herself.”

Attempts to reach Paul Thomas were unsuccessful. His former attorney, Norwich-based Frank Olmstead, has since retired, his law firm said this week. It wasn’t immediately clear if Paul Thomas had new representation in the matter.

The three siblings opposed to Paul Thomas’ guardianship actions have spent about $100,000 in attorneys’ fees in the case, while he has spent about $60,000, according to Kennelly’s complaint.

There is no timeline for when Lewis’ hearing before the Judicial Conduct Board will take place.

Jordan Cuddemi can be reached at jcuddemi@vnews.com or 603-727-3248.




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