BENNINGTON — Defense attorney and conflict counsel Richard Burgoon, who recently filed a motion asking to extend one of his most current cases indefinitely, with his employer filing another in a separate case on his behalf, has signaled an abrupt end to his current role as conflict counsel in the Bennington County legal arena.
Last week, Burgoon was the subject of a Banner article that highlighted a long-strained relationship between the attorney and Erica Marthage, Bennington County’s elected state’s attorney. In an angry email to Vermont Attorney General Charity Clark, Burgoon accused Bennington Marthage and others in her office of using bullying tactics to remove him from cases. Burgoon complained that Marthage filed both formal and anonymous complaints with the Professional Responsibility Board over perceived unreported ethics violations in cases where they felt there was a conflict of interest between some of Burgoon’s clients and possible witnesses and victims.
In the email to Clark and forwarded to the Banner, Burgoon insisted that the perceived conflicts were either inflated out of proportion, already reported, or simply oversights and that the real reason behind the complaints was personal in that they couldn’t compete in the courthouse.
“Alexander Burke (one of Marthage’s deputy State’s Attorneys) has literally accused me of two felony crimes. But on his way to apparently hoping to see me arrested and placed in jail, I suppose he forgot something that we see down here quite often with Bennington State charges – facts,” Burgoon wrote in his email.
Burgoon went on to say that in his 40 years of professional experience, he has never before witnessed such “professional mediocrity” and “overt sense of faux-confidence manifested by fear in the form of grade-school bullying.”
“It is truly something to behold — coming from ‘your team,’” he wrote Clark. “Enough is now enough, and as you are the ultimate prosecutor in our State, this is now formally brought to your attention. Enough is now enough.”
None of the complaints, either formally filed or anonymously forwarded, have led to disciplinary actions against him or his Bar license.
Marthage, at the time of the original story, fired back, stating that the State’s attorney’s office has the absolute responsibility to make sure there are no representation issues that might affect the outcome of a trial after someone is convicted of a crime at trial, but that, under Vermont statute, an attorney is required to ask to be replaced as soon as they become aware of any conflicts.
One issue that could overturn a conviction might be that a defense lawyer had a conflict never revealed.
Marthage listed four incidents over the past several years where she and her office filed official complaints with the Professional Responsibility Board because they felt Burgoon failed to recuse himself from a particular case where he had “obvious conflicts.”
In the most recent case, an assault with a deadly weapon against a Bennington resident named Johnathan Bell, Marthage said that at the same time he was representing Bell, Burgoon was assigned to represent the actual victim of the crime. Allegedly, Burgoon never recused himself until it became known to others.
“That’s an outrageous conflict,” Marthage said.
In the most recent cases expected to come before the Bennington Superior Court, according to court documents, Burgoon filed a motion to continue in a kidnapping case due to a “personal emergency.” A separate motion was filed a few days later by Burgoon’s employer, Furlan & Associates of Rutland. In the second motion, Mark Furlan asked the judge for a continuation of 60 days, as the attorney in the matter is not “currently available.”
In both cases, the motion to extend, or continue, was granted.
Burgoon worked directly for the private law firm under contract with the state of Vermont’s Defender General’s Office. Vermont’s Defender General oversees contracts to law firms in anticipation of public defender needs because of lawyer conflict. Over the past two years, Burgoon became the number one go-to position as Bennington’s Conflict Counsel.
A recent post in Vermont’s Bar Association classified section dated Feb. 6 listed an opening for a full-time attorney for Furlan & Associates to handle a criminal defense caseload in Southwestern Vermont. It was unclear at the time whether the job listing was related to Burgoon’s departure. A phone message and email to the firm were left unanswered Tuesday evening.
However, a source in the Bennington courthouse confirmed that Burgoon has been missing since last week and that no one seems to know where he is, when or if he’s coming back.
“It seems to me his departure was of a permanent nature,” someone with knowledge of the situation told the Banner.
When asked whether this will have any impact on Bennington’s courts or has the potential to delay cases in Bennington, they responded, “Sure. Depending on how quickly he can be replaced.”
The Banner reached out to Erica Marthage and Richard Burgoon directly. Burgoon answered an email seeking comment by saying, “No thanks. Everything is good.” Marthage told us she knows what the Banner has been told, adding that it’s “interesting.” Neither returned follow-up calls or emails.
When reached for comment, Vermont Defender General Matt Valerio was forthcoming about the situation.
“I am aware of the situation,” Valerio told us. “I understand the firm will switch Burgoon up to Rutland, and Mark Furlan will now be handling Bennington. There’s no point in having the clients suffer because Burgoon and Eric Marthage are having a battle.”
Valerio, who contracts law firms statewide to cover conflict counsel, thinks Furlan made the move to “take the wind out of the sails of this.” He also confirmed that Furlan’s law office is looking for another attorney but feels it doesn’t have anything to do with Burgoon. Valerio stated he directly talked with Furlan about the issues, with Furlan saying the new hiring is unrelated.
“Just because I know that we’re looking at all kinds of needs around the state, caseload relief contracts and conflict counsels, other sorts of things,” Valerio said. “His firm tends to do this kind of work, as we have other openings we might be able to fill. He was going to hire somebody anyway.”
“Obviously, you don’t want this sideshow to have some impact on the clients, right? So, the best thing to do is to have him work up in Rutland, and that’s Furlan’s decision,” Valerio said.
Valerio called back several minutes later, confirming the Banner’s initial reporting that Burgoon was, in fact, not going to Rutland after all. “After talking with Mark Furlan again, it is still very up in the air as far as Mr. Burgoon still being employed in Rutland or anywhere else by Furlan and Associates. This might be more permanent than I originally thought.”
Valerio went on to say, “I’m aware that Marthage filed a number of complaints against Burgoon, and every single one of them was dismissed. I do think there’s obviously something going on there. It’s remarkable the number of complaints being filed all at once against one person by a prosecutor and that they all end up being dismissed. I don’t think that it reflects well on the whole situation.”
Valerio does, however, think that writing an email to the Attorney General, then making that email public, is “unusual,” at best.
“The bottom line is I do think it’s very unusual to write to the Attorney General’s office. I don’t know what Burgoon had in mind. I guess these things happen on occasion, but I don’t think it’s good for the administration of justice. I don’t think it’s good for the clients. I do think it ends up being a distraction and a sideshow,” he said. “I’m glad it’s coming to a close.”
The Banner found over a hundred pending cases in Bennington County listing Burgoon as the defense lawyer of record. None of the other cases were found to have any filed motions to continue, either by Burgoon or anyone else. It is still unclear whether those cases will be delayed as a result of the representation changes or who will represent those clients through their legal cases.