111 PRB
[Filed 8-May-2009]
In re Hongisto (2009-196)
[Filed 07-Jul-2009]
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ENTRY ORDER |
In the above-entitled cause, the Clerk will enter:
The Court orders review of this case on its own motion pursuant to Administrative Order 9, Rule 11.E. The matter is consolidated for review with the case currently pending before the Court in In re Eileen Hongisto, 2008-202. Appellant’s docketing statement and transcript order form shall be filed with the Court within ten days from the date of this entry order.
BY THE COURT:
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Paul L. Reiber, Chief Justice
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John A. Dooley, Associate Justice
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Denise R. Johnson, Associate Justice
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Marilyn S. Skoglund, Associate Justice
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Brian L. Burgess, Associate Justice
STATE OF VERMONT
PROFESSIONAL RESPONSIBILITY BOARD
In re: Eileen Hongisto, Esq.
PRB Docket Nos. 2007.082, 2007.096 & 2008.001
Decision No. 111
This matter was heard on the issue of sanctions before Hearing Panel No. 9 consisting of Stephen Dardeck, Esq., Shannon Bertrand, Esq. and Barbara Carris. Disciplinary Counsel Michael Kennedy was present. Respondent was not present and she was not represented by counsel. Respondent is suspended for a period of six months for failure to cooperate with Disciplinary Counsel in three separate professional conduct complaints in violation of Rule 8.4(d) of the Vermont Rules of Professional Conduct, and for neglect, failure to communicate and failure to return a client’s file in violation of Rules 1.3, 1.4(a) and 1.16(d).
Procedural History
PRB File No. 2007.082
In September of 2006, the Merchants bank notified Disciplinary Counsel that Respondent’s trust account was overdrawn. She failed to cooperate with the investigation of the overdraft, and in November of 2006, Disciplinary Counsel filed a petition of Misconduct charging Respondent with failure to cooperate in the investigation of the overdraft.
Respondent failed to respond to the Petition, and Disciplinary Counsel moved to deem the charges admitted pursuant to Rule 11(D)(3) of Administrative Order 9. The motion was granted and a sanctions hearing was scheduled for March of 2007.
PRB File No. 2007.096
In October of 2006, Benjamin Carr filed a complaint against Respondent. Again, she failed to cooperate. Again Disciplinary Counsel moved to deem the charges admitted. The motion was granted and this matter also scheduled for sanctions hearing in March of 2007.
The March 2007 Sanctions Hearing
In the course of preparing for the sanctions hearing, Respondent provided Disciplinary Counsel with an explanation of the overdraft to her trust account as well as a response to the complaint of Mr. Carr. Based on her responses, Disciplinary Counsel moved to dismiss both complaints of misconduct. The Panel denied the motion and scheduled a hearing on the charge of failure to cooperate with Disciplinary Counsel.
PRB File No.2008.001
While Disciplinary Counsel’s Motion to Dismiss was pending, Pheron Lawrence filed a complaint against Respondent. Mr. Lawrence had engaged Respondent in the summer of 2006 to assist him with a problem he was having with Green Mountain Modular Homes. Respondent failed to cooperate with Disciplinary Counsel’s investigation, and in September he filed a Petition of Misconduct charging Respondent with a violation relating to her representation of Mr. Lawrence as well as her failure to cooperate with the investigation. Respondent did not answer the Petition; Disciplinary Counsel moved to deem the charges admitted; the motion was granted and the case consolidated with the two other pending cases all of which were set for
sanctions hearing on February 27, 2008.
Postponements
The original sanctions hearing was cancelled due to illness of one the panel members. The matter was rescheduled for March 18, 2008; cancelled due to weather and rescheduled on May 13, 2007.
Request for Continuance
On May 12, 2008, Respondent contacted Disciplinary Counsel to request a continuance. He directed her to the Chair of the Hearing Panel. Later that day she faxed a request for continuance to the Chair who scheduled a telephone conference for the following morning.
The Conference Call
Present on the conference call were the three members of the Hearing Panel, Disciplinary Counsel, Respondent and Hearing Panel Counsel. In her request for continuance, Respondent alleged that she needed time to recover from surgery and other medical problems. Disciplinary Counsel took the position that the allegation of physical disability triggered Rule 21(B) of A.O.9 which requires a transfer to disability inactive status when a Respondent alleges that a physical disability prevents the attorney from assisting in his or her own defense. The Hearing Panel concluded that it had little, if any, discretion in the matter based upon Respondent’s allegations in her motion, and the scheduled hearing was cancelled.
Disability Inactive Status
Disciplinary Counsel immediately petitioned the Supreme Court to transfer Respondent to disability inactive status pending a determination of whether she suffered from an incapacity that prevented her from assisting in her own defense. On May 19, 2008, the Court issued an Order giving Respondent until May 23 to show cause why her license should not be transferred to disability inactive status. She did not respond and on June 3, 2008, the Court transferred Respondent to disability inactive status.
Rule 23 Compliance
An attorney transferred to disability inactive status is required to comply with Rule 23 of A.O.9 which requires among other things, notification to clients and opposing counsel as well as return of client files.
Respondent failed to comply with the rule, and on July 7, 2008, Disciplinary Counsel filed a petition with the Windsor Superior Court requesting that the Court appoint an attorney to inventory Respondent’s files. A hearing was scheduled on August 19, 2008. Respondent did not appear and the court appointed two lawyers to inventory her files. On October 7, 2008, the appointed counsel advised the court that they had been unsuccessful in their efforts to contact Respondent. The court then ordered Respondent to contact the appointed counsel no later that November 21, 2008. On January 6, 2009, the court ordered Respondent to appear on January 26, 2009, to show cause why she should not be held in contempt of court for failure to comply with the court’s prior orders. Respondent failed to appear, and in January of 2009, the Superior Court issued an order concluding that Respondent did not provide the appointed attorneys with access to her files and did not comply with the court’s orders.
Determination of Disability
After the Supreme Court transferred Respondent to disability inactive status, this panel was assigned to convene a hearing to determine whether Respondent suffered from a disability that prevented her from assisting in her own defense.
The issue was heard on September 4, 2008, and in an Order dated September 22, 2008, this Panel recommended that the Court return Respondent to active status and that the underlying matters be set for sanctions hearing. On October 28, 2008, the Court accepted the Panel’s recommendation and lifted the order transferring Respondent to disability inactive status.
Scheduling Sanctions Hearing
This Panel initially scheduled the sanctions hearing for January 21, 2009. Disciplinary Counsel requested a pre-hearing conference which was held by phone on January 12, 2009. Respondent had notice of the conference call but did not call in. Attempts to reach her during the call failed. The Panel was concerned that Respondent did not have actual notice of the sanctions hearing and rescheduled for February 26, 2009. Respondent was served with notice of the rescheduled hearing by sheriff.
Facts
PRB File No. 2007.082
As noted above, Merchants Bank notified Disciplinary Counsel in September of 2006 that Respondent’s trust account was overdrawn. Respondent failed to respond to inquiries from the office of Disciplinary Counsel, and this Panel granted Disciplinary Counsel’s Motion to Deem the Charges Admitted.
PRB File No. 2007.096
The complaint in this matter was filed in October of 2006. Disciplinary Counsel asked Respondent for a written response to the complaint. Despite additional requests for information, Respondent failed to communicate with Disciplinary Counsel and this Panel granted Disciplinary Counsel’s Motion to Deem Charges Admitted.
PRB File No 2008.001
In the summer of 2006, Pheron Lawrence engaged Respondent to assist him with a claim against Green Meadow Modular Homes for failure to complete the work. Mr. Lawrence met with Respondent and provided her with all the paperwork related to his dealings with Green Meadow including copes of certified checks that, in Mr. Lawrence’s opinion, proved that he had paid Green Meadows. Mr. Lawrence paid Respondent a $300.00 retainer and she agreed to represent him and to send a letter to Green Meadow. She apparently sent one letter to the builder but did not copy her client. Since that time Mr. Lawrence has called and left 40 to 50 messages on Respondent’s phone. The initial messages were requests for updates on his case. Beginning in June of 2007 he left messages that she was fired, and that he wanted his papers back. Respondent never contacted Mr. Lawrence and the paper work was not returned until February of 2008 when, with the assistance of Disciplinary Counsel, the papers were returned. He never pursued the case against the contractor because he was without his papers for two years. It is unknown whether or not Mr. Lawrence suffered actual financial harm, but he was frustrated and inconvenienced by Respondent’s failure to respond to his calls and her failure to return his paperwork.
Respondent is an attorney admitted to practice in Vermont in 1996.
Conclusions of Law
Rule 8.4(d) of the Vermont Rules of Professional Conduct prohibits attorneys from engaging in conduct that is prejudicial to the administration of justice. The disciplinary system relies on attorneys to cooperate with misconduct investigations. The failure to do so impedes the operation of the system and is prejudicial to the administration of justice. We find in each of these three cases that Respondent violated Rule 8.4(d).
In the case of Pheron Lawrence (PRB File No. 2008.001), Respondent also violated Rule 1.3 by failing to act with reasonable diligence in her representation. She violated Rule 1.4(a) by failing to keep him reasonably informed about the status of his case and to answer his reasonable requests for information, and she violated Rule 1.16(d) by failing to return his paperwork when her services were terminated.
Sanctions
We look to the ABA Standards for Imposing Lawyer Sanctions as well as case law to determine the appropriate sanction. See In re Andres, 177 Vt. 511 (2004); In re Warren, 167Vt. 259 (1977) and In re Berk, 157 Vt. 524 (1991).
Under the ABA Standards we consider the duty violated, the lawyer’s mental state and the actual or potential injury caused by the misconduct in order to arrive at a presumptive sanction. That sanction can then be modified by consideration of any aggravating or mitigating factors that may be present. See In re Harrington, PRB Decision No. 53 (April 2003).
The Duty Violated
Vermont lawyers have a duty to cooperate with the disciplinary system, and failure to do so is grounds for discipline. A.O. 9 Rule 7(D). The professional Responsibility Program “is essentially a system of self-regulation that requires the cooperation of all members of the bar if it is going to work fairly and effectively.” In re Blais, PCB Decision No. 118 (1997). An attorney’s “[f]ailure to comport with the duty of cooperation seriously impedes the efficient administration of justice and erodes the public’s confidence in the profession.” In re Griffin, PRB Decision No. 98 (April 2007). In each of the three cases before us Respondent failed to cooperate with the disciplinary investigation.
In addition, in the case of Mr. Lawrence, Respondent had the duty to represent him with reasonable diligence, to communicate with him when he requested information about his case and to return his documents when requested. Respondent failed in her duty to communicate with her client, did no work on his case and only returned his papers some years later with the help of Disciplinary Counsel.
Respondent’s State of Mind
The evidence before this panel clearly suggests that Respondent knew that she was not fulfilling the duties that she owed to her client and to the legal profession. She knew that she was not cooperating with Disciplinary Counsel, and she knew that she was not attending to Mr. Lawrence’s case.
Injury
Respondent’s failure to pursue Mr. Lawrence’s case and her failure to communicate with him meant that his case went unattended for over a year, and when Mr. Lawrence finally realized that his attorney had abandoned his case, he was further injured by her failure to return his file. There was clearly the potential for financial injury in this case. Mr. Lawrence believed that he had a case against the builder and wanted to pursue it. We do not know whether there was actual financial injury since Mr. Lawrence testified that he did not believe that he could pursue the case without his file, and that when the file was returned he felt too much time had elapsed. There was actual injury in the fact that Mr. Lawrence experienced frustration and aggravation from Respondent’s conduct.
The injury to be considered is not just that of clients, but also of the legal system. In this case there is actual injury to the disciplinary system The system is essentially one of self regulation and works only with the full cooperation of the members of the bar. Respondent’s failure to cooperate, in three separate cases over a period of more than two years is not only a strain on the resources of the Professional Responsibility Program, but also erodes the public confidence in the disciplinary system. In re Blais, PCB Decision No. 118 (1997), In re Griffin, PRB Decision No 98 (2007).
Presumptive Sanction
We now look at the presumptive sanction under the ABA Standards for each violation of the Rules.
1. Failure to Cooperate
The evidence establishes that Respondent failed to cooperate with three disciplinary investigations and that her failure caused injury. The ABA Standards provide that “[s]uspension is generally appropriate when a lawyer engages in conduct that is a violation of a duty owed as a professional and causes injury or potential injury to a client, the public, or the legal system.” ABA Standards §7.2.
2. Failure to act with reasonable diligence
Respondent failed to pursue Mr. Lawrence’s case and as a result he suffered injury. In this situation, the ABA Standards provide that “[s]uspension is generally appropriate when a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client. . . .” §4.42(a).
3. Failure to Communicate
Respondent failed to respond to Mr. Lawrence’s repeated requests for information and he suffered injury as a consequence. Under the ABA Standards, §4.42(a), “[s]uspension is generally appropriate when a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client . . . .”
4. Failure to Surrender File
Here again, the presumptive sanction is suspension for Respondent’s failure to promptly return Mr. Lawrence’s documents when requested. “Suspension is generally appropriate when a lawyer engages in conduct that is a violation of a duty owed as a professional, and causes injury or potential injury to a client, the public, or the legal system.” ABA Standards §7.2.
Aggravating and Mitigating Circumstances
Respondent has a prior disciplinary record. ABA Standards §9.22(a). In 2000, she was admonished by the former Professional Conduct Board for violating the earlier counterpart to Rule 1.3 of the present Rules which prohibits lawyers from neglecting their clients cases. In re RCB File No. 99.16, 99.89, & 99.56, PCB Decision No. 149 (2000).
Respondent has engaged in a pattern of misconduct. ABA Standards §9.22(c). For more than two years Respondent has refused to cooperate with disciplinary investigations in three separate cases, one of which includes multiple violations of the Rules of Professional Conduct.
Not only has she failed to cooperate with the investigation, she has failed to participate in almost every stage of these proceedings. She did not respond to any of the three petitions of misconduct, nor did she respond to the subsequent motions to have the charges admitted. She did not participate in the prehearing conference and delayed this sanctions hearing by refusing to sign for the notice of hearing requiring a postponement and service by sheriff.
Equally troubling is the fact that once she was transferred to disability inactive status, she failed to comply with Rule 23 of A.O. 9 which required her to notify courts and opposing attorneys of the transfer. Even when two attorneys were appointed by the Windsor Superior Court to undertake this work she failed to cooperate with them as well.
“[B]ad faith obstruction of the disciplinary proceedings by intentionally failing to comply with rules or orders of the disciplinary agency” is an aggravating factor to be considered. ABA Standards §9.22(e).
Finally, Respondent was admitted to the Vermont Bar in 1996 and thus has substantial experience in the practice of law. ABA Standards §9.22(i).
We find no mitigating factors. The fact that Respondent alleged in May of 2008 that she was suffering from a disability that this panel found not to exist in September of that year does not establish that she was suffering from a disability that would mitigate the sanction under §9.32(h) of the ABA Standards.
Thus, under the ABA Standards, the sanction would appear to be suspension. We now turn to Vermont case law to determine whether this sanction is consistent with prior decisions and to determine the appropriate length of the sanction.
In Griffin, surpa, there was a single instance of failure to cooperate with a disciplinary investigation. The panel found his failure to be “both willful and intentional,” Id at 4-5, and suspended him for thirty days.
In an earlier case, In re Bailey, 157 Vt, 424 (1991), the Court suspended Bailey for an indefinite period for what the Court termed his “unwillingness or inability” to provide information on the management of his trust account.
The recent case of In re Grady, PRB Decision No. 96 (2006), involved failure to cooperate with disciplinary Counsel. In this case the Panel reluctantly imposed a 45 day suspension with probation upon her return to practice. The panel found that “her failure to cooperate with the disciplinary counsel stemmed from medical problems, not from a cavalier attitude toward the disciplinary process.” Page. 5-6.
In Grady and Griffin the suspensions were for forty-five and thirty days respectively. Each case involved a single instance of failure to cooperate and in Grady there were substantial mitigating factors which are not present here.
The approach taken by the Court in the Bailey case is not available to us. We cannot suspend the present Respondent until such time as she cooperates with Disciplinary Counsel. The present rules require that suspension be for a time certain. A.O.9 Rule 8(A)(2). We can, however, achieve a similar result with a suspension of six months or longer. With a six months suspension, in order to return to the practice of law she “shall have the burden of demonstrating by clear and convincing evidence that … she has the moral qualifications, competency, and learning required for admission to practice law in the state, and the resumption of the practice of law will be neither detrimental to the integrity and standing of the bar or the administration of justice nor subversive of the public interest and that the respondent attorney has been rehabilitated.” A.O. 9 Rule 22(D).
We also believe that the six month suspension is appropriate without regard to the operation of A.O.9 Rule 22(D). Grady and Griffin each involved one instance of failure to cooperate. Griffin did not cause any of the long delays we find in the present case and in Grady it is clear that the delays were the result of medical problems rather that a conscious decision to ignore the disciplinary process.
In addition, we have the case involving the neglect of Mr. Lawrence and the failure to communicate with him and to return his files. As a general rule, Hearing Panels have not imposed suspension for a single instance of neglect of a client matter. These cases generally involve admonitions or occasionally public reprimand unless there are multiple cases or aggravating factors. See, e.g. In re PRB File No 2005.206, PRB Decision No 60 (20030, In re PRB File No 2003.183, PRB Decision No. 56 (2003). We do not, however, feel the need to distinguish these cases because we cannot look at the neglect of Mr. Lawrence outside the context of the three cases of failure to cooperate which we find to be a serious matter
We are persuaded that a six month suspension is appropriate in this matter. The self-regulation of the Bar is both a privilege and a responsibility, and every attorney has the responsibility to assure that the disciplinary system works effectively and efficiently so that clients are protected and so that there is no injury to the public or to the legal system. Respondent has totally failed in her obligations to her client, the public and to the legal system. She has ignored the system for a period in excess of two years and this cannot be allowed to continue.
We are fully aware that the purpose of lawyer discipline is not to punish the attorney but to protect the public and the system itself, In re Hunter, 167 Vt. 219, 226 (1997), and that is the basis of our decision.
We are also concerned that, should Respondent decide to apply for reinstatement and be readmitted, there be some supervisory probation imposed to insure protection of the public. We do not believe that we have enough information to craft probation conditions at this time and will leave that to the judgment of the Hearing Panel considering her reinstatement.
Order
Respondent, Eileen Hongisto, is hereby suspended from the practice of law for a period of six months commencing on the date that this decision becomes final. Respondent shall promptly comply with Rule 23 of A.O. 9.
Dated: MAY 8, 2009 Hearing Panel No. 9
/s/
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Stephen Dardeck, Esq., Chair
/s/
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Shannon Bertrand, Esq.
/s/
______________________________ Barbara Carris