122 PRB

 

[Filed 17-Jun-2009]


 

In re Hongisto

 

2010 VT 51

 

[Filed 03-Jun-2010]

 

ENTRY ORDER

 

2010 VT 51

 

SUPREME COURT DOCKET NOS. 2008-202 & 2009-196

 

FEBRUARY TERM, 2010

 

In re Eileen Hongisto

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APPEALED FROM:

 

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Professional Responsibility Board

 

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DOCKET NOS. 2007-082, 2007-096,

                           2008-001 & 2009-107

 

 

 

In the above-entitled cause, the Clerk will enter:

 

¶ 1.             We granted review of two decisions from the Hearing Panel of the Professional Responsibility Board (PRB) concerning four complaints claiming violations of the Vermont Rules of Professional Conduct, which resulted in two concurrent six-month suspensions.  We affirm the decisions of the Panel suspending respondent Eileen Hongisto from the practice of law for two six-month periods to run concurrently.  Additionally, as a condition to her reinstatement, we require that, at the time that respondent applies for reinstatement, she must provide the Board with a detailed explanation for her lack of participation over the course of these proceedings.

¶ 2.             These two Panel decisions concern a series of events that began in 2006, when a representative of Merchants Bank notified disciplinary counsel that respondent’s trust account was overdrawn.  Shortly thereafter, disciplinary counsel received an ethics complaint from one of respondent’s clients.  In both cases, respondent failed to cooperate with disciplinary counsel’s investigation of the incidents, resulting in complaints claiming violations of Rule 8.4(d), which states that it is misconduct to “engage in conduct that is prejudicial to the administration of justice.”  After respondent failed to respond, the charges were deemed admitted.  A.O. 9, Rule 11(D)(3) (“In the event the respondent fails to answer within the prescribed time, the charges shall be deemed admitted, unless good cause is shown.”).  A hearing was scheduled for March 2007.  Immediately before the hearing, however, respondent provided disciplinary counsel with an explanation of the trust account overdraft and a response to the client complaint, and disciplinary counsel moved to dismiss both complaints.  The Panel, however, denied the motion, noting that practitioners and the public needed to understand that “an attorney’s personal problems” do not “excuse his or her obligation to cooperate with disciplinary investigations.”  The hearing was rescheduled.

¶ 3.             Before the rescheduled hearing took place, another of respondent’s clients contacted disciplinary counsel with an ethics complaint, resulting in a third disciplinary investigation.  The client alleged that he had paid respondent a retainer, but never heard anything from her.  He left between forty and fifty phone messages for respondent—all without any response.  He also requested that his papers relating to the case be returned to him, as he was unable to pursue the case without them.  Once again, respondent failed to respond to or acknowledge the charges, and, as a result, the charges were deemed admitted.  A.O. 9, Rule 11(D)(3).  These charges were consolidated with the others.

¶ 4.             The day before the hearing was scheduled to occur, respondent requested a continuance, and a conference call was scheduled to address the issue.  At the conclusion of the conference call, disciplinary counsel petitioned this Court to transfer respondent to disability inactive status, as is allowed under Administrative Order 9, Rule 21(B).  A one-justice panel for this Court issued an entry order giving respondent an opportunity to show cause as to why her license should not be transferred to disability inactive status.  In re Eileen Hongisto, No. 2008-202 (Vt. May 19, 2008) (unpub. mem.).  Respondent failed to respond.  On June 3, 2008, a three-justice panel transferred respondent’s license to disability inactive status, pending determination of incapacity by a PRB hearing panel.  In re Eileen Hongisto, No. 2008-202, 2008 WL 2486071 (Vt. June 3, 2008) (unpub. mem.).

¶ 5.             In September 2008, the Panel held a hearing to determine whether respondent was incapacitated such that she should be on disability inactive status.  The Panel concluded that respondent was not disabled at that time.  Following that decision, this Court allowed respondent the opportunity to file a memorandum to show why the Panel’s recommendation should not be adopted.  In re Eileen Hongisto, No. 2008-202 (Vt. Sept. 24, 2008) (unpub. mem.).  After respondent did not respond, we lifted the order transferring respondent to disability inactive status.  In re Eileen Hongisto, No. 2008-202 (Vt. Oct. 28, 2008) (unpub. mem.).  At that point, the underlying disciplinary hearings at issue in these cases were scheduled.

¶ 6.             In the meantime, respondent’s law license expired. Once respondent was reinstated from disability inactive status, the program administrator for the Attorney Licensing Office, sent respondent a letter informing her that her license had expired.  In the same letter, the administrator informed respondent that she was not at that time in good standing with the Vermont Department of Taxes and was therefore ineligible to relicense.  Respondent certified that she was in good standing with the Department of Taxes in a November 19, 2008 letter to the Attorney Licensing Office.  The next day, the administrator responded by email to respondent’s letter and informed her that the Department of Taxes had not confirmed her return to good standing.  Nevertheless, on December 8, 2008, respondent appeared at and participated in a status conference before the Windham Family Court.  This resulted in disciplinary counsel bringing additional charges against respondent—specifically for a violation of Rule 5.5(a) for practicing without a license and a violation of Rule 8.4(c) for deceit when renewing a law license.  Once again, respondent did not file any response, and the charges were deemed admitted.  See A.O. 9, Rule 11(D)(3).  

¶ 7.             The hearing for the first three alleged violations—the trust account overdraft and the two client ethics complaints—was scheduled for January 21, 2009.  After respondent did not call in to a pre-conference hearing and the Panel was unable to reach her, the Panel postponed the hearing to February 2009.  After the hearing, the Panel found that in each of the three alleged violations respondent had violated Rule 8.4(d), which states that it is professional misconduct for an attorney to “engage in conduct that is prejudicial to the administration of justice.”  Regarding the most recent client ethics complaint, the Panel additionally found that respondent had violated Rule 1.3 by “failing to act with reasonable diligence in her representation,” that she had violated Rule 1.4(a) “by failing to keep [her client] reasonably informed about the status of his case and [failing] to answer [her client’s] reasonable requests for information,” and that she had violated Rule 1.16(d) “by failing to return [her client’s] paperwork when her services were terminated.”  The Panel imposed a six-month suspension for these violations.  

¶ 8.             The following month, the Panel held the second hearing, which addressed the alleged violations of Rules 5.5(a) and 8.4(c) stemming from respondent’s appearance in family court despite the fact that she was ineligible to practice law at that time due to her expired license.  At the hearing, disciplinary counsel moved to dismiss the charge of violation of Rule 8.4(c), and respondent and disciplinary counsel recommended to the Panel that it impose a six-month suspension for the violation of Rule 5.5(a).  The Panel found that respondent had violated Rule 5.5(a) by engaging in the practice of law without a license.  The Panel accepted the parties’ recommendation and imposed a six-month suspension to run concurrently with the six-month suspension imposed in the previous decision.  

¶ 9.             This Court ordered review of both decisions.  In re Eileen Hongisto, No. 2009-196, 2009 WL 3019661 (Vt. July 7, 2009) (unpub. mem.); see generally A.O. 9, Rule 11(E) (“If no appeal or petition for review is filed with the Court, the Court may order review on its own motion within 30 days of the date the hearing panel decision is filed with the Court.”).  On appeal, disciplinary counsel argues that the Panel decisions were sound and should be upheld.  Respondent has at no point challenged any of the findings or conclusions of the Panel, nor has respondent submitted a brief to this Court or responded in any way to the arguments advanced by disciplinary counsel in its brief.

I. Violations

¶ 10.         When reviewing decisions of a PRB hearing panel, we apply a deferential standard of review, and we “must accept the Panel’s findings of fact unless they are clearly erroneous.”  In re Andres, 2004 VT 71, ¶ 9, 177 Vt. 511, 857 A.2d 803 (mem.) (quotation omitted); accord A.O. 9, Rule 11(E) (“Findings of fact shall not be set aside unless clearly erroneous.”).  Further, as we have previously stated, we “will uphold the Board’s findings—whether they are pure fact or mixed questions of law and fact—if they are clearly and reasonably supported by the evidence.”  Andres, 2004 VT 71, ¶ 9 (quotation omitted).

¶ 11.         In its first decision, the Panel found that, in addition to violating her duty under Rule 8.4(d) to cooperate with the disciplinary system in its investigations of the trust account overdraft and client ethics complaints, respondent violated her duty to represent her client with reasonable diligence.  See V.R.Pr.C. 1.3 (“A lawyer shall act with reasonable diligence and promptness in representing a client.”).  The Panel also found that respondent violated two other professional conduct rules by failing in her duties to communicate with her client when her client requested information about his case and to return his papers—respondent held on to her client’s papers for years until disciplinary counsel was able to retrieve them and return them to the client.  See V.R.Pr.C. 1.4(a)(3)-(4) (requiring a lawyer to “keep the client reasonably informed about the status of the matter” and “promptly comply with reasonable requests for information”); V.R.Pr.C. 1.16(d) (“Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as . . . surrendering papers and property to which the client is entitled . . . .”).  The Panel noted that “[r]espondent knew that she was not fulfilling the duties that she owed to her client and to the legal profession.”  The Panel found that respondent’s client had experienced actual and potential injuries—his actual injuries included frustration and aggravation from respondent’s failure to communicate with him and his potential injuries were financial in that, due to respondent not returning these files, her client did not and could not pursue a case that he thought he would have won.  Moreover, the Panel found that respondent’s failure to cooperate with disciplinary counsel in violation of Rule 8.4(d) further increased these injuries and additionally injured the disciplinary system itself by consuming scarce resources and eroding the public’s confidence in the legal profession.  We find no clear error here, and we therefore affirm the Panel’s decision regarding these violations.

¶ 12.         In its second decision, the Panel found a clear violation of the attorney licensing rules and therefore determined that respondent violated Rule 5.5(a), which prohibits lawyers from practicing law in jurisdictions where doing so violates the regulation of the legal profession.  This charge, like the others, was deemed admitted when respondent failed to respond to the charge.  See A.O. 9, Rule 11(D)(3).  Further, while at a later point respondent emphasized to the Panel that the violation was inadvertent, Rule 5.5(a) prohibits even the unintentional practice of law without a license.  It is ultimately each attorney’s duty to ensure that he or she is licensed to practice law before engaging in the practice of law.  Once more, we find no clear error and, therefore, affirm the Panel’s decision regarding the violation of Rule 5.5(a).

¶ 13.         In summary, we see no evidence of error regarding findings of fact or law in either of the Panel’s decisions.  We therefore affirm both of the Panel’s decisions and hold that respondent violated Rules 1.3, 1.4(a), 1.16(d), 5.5(a), and 8.4(d)

II. Sanctions

¶ 14.         Though this Court ultimately determines what sanctions are appropriate, the Panel’s recommendations are accorded deference.  In re PRB File No. 2007-003, 2009 VT 82A, ¶ 7, ___ Vt. ___, 987 A.2d 273 (mem.) (citing In re Berk, 157 Vt. 524, 528, 602 A.2d 946, 948 (1991) (per curiam)).  In determining an appropriate sanction, we consider “ ‘the duties violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and any aggravating or mitigating factors.’  In re Farrar, 2008 VT 31, ¶ 11, 183 Vt. 592, 949 A.2d 438 (mem.) (quoting In re Bucknam, 160 Vt. 355, 366, 628 A.2d 932, 938 (1993)).  This Court has stated previously, however, that “mitigating circumstances are in no sense a defense to the violations.”  In re PRB File No. 2007-003, 2009 VT 82A, ¶ 9.

¶ 15.         The Panel, relying on the American Bar Association’s Standards for Imposing Lawyer Sanctions (ABA Standards) §§ 4.42(a) and 7.2, determined in its first decision that a sanction was the appropriate response to respondent’s conduct, as respondent had “knowingly fail[ed] to perform services for a client.”  This was, like her other infractions, “conduct that [was] a violation of a duty owed as a professional and cause[d] injury or potential injury to a client, the public, or the legal system.”  Because the Panel found that respondent was not suffering from a disability, there were no mitigating circumstances in this instance.  There were, however, significant aggravating circumstances—specifically respondent’s “pattern” of misconduct.  Respondent has a disciplinary record for receiving an admonishment for neglecting two client cases in violation of the Vermont Code of Professional Responsibility.  Additionally, the Panel noted that respondent had failed to cooperate with the investigation at nearly every step in the process.  Based on Vermont case law and previous Panel determinations, the Panel concluded that a six-month suspension was the appropriate sanction for these violations.  In the Panel’s most recent decision, the six-month duration of the suspension resulted both from a recommendation from respondent and disciplinary counsel as well as from respondent’s pattern of misconduct, including “fail[ing] to attend to the details of renewing her license,” even though the Panel recognized the mitigating factor of respondent’s “significant medical and personal problems” in the time leading up to the case. 

¶ 16.         The Panel may order suspension for an “appropriate fixed period of time not in excess of three years.”  A.O. 9, Rule 8(A)(2).  A lawyer receiving a suspension for less than six months is allowed to resume practice after the period of suspension by “filing with the Court and serving upon disciplinary counsel an affidavit setting forth the manner in which the lawyer has complied with the requirements of the suspension order.”  A.O. 9, Rule 22(B).  A lawyer who is suspended for six months or more, however, must file a motion with the Board for reinstatement.  A.O. 9, Rule 22(B) & (D).  The Panel must then hold a hearing

at which the respondent-attorney shall have the burden of demonstrating by clear and convincing evidence that he or 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).  

¶ 17.         The Panel, in its first decision, found support for a six-month suspension (as opposed to a suspension of shorter duration) in Vermont case law, including In re Bailey, 157 Vt. 424, 599 A.2d 1049 (1991) (per curiam).  In Bailey, this Court suspended a lawyer until he complied with the Board’s order.  We also placed a number of prerequisites for reinstatement upon the lawyer—prerequisites that were similar to those required under Administrative Order 9, Rule 22(D).  We placed these conditions on the lawyer in Bailey even though we ultimately held that the suspension should be seen as “less than six months” under Administrative Order 9, Rule 20(B).  Bailey, 157 Vt. at 427, 599 A.2d at 1051.  Here, the Panel correctly noted that, based on Administrative Order 9, Rule 8(A)(2), suspensions must be for a specified time period.  The Panel then stated that it could “achieve a similar result” to that in Bailey with a six-month suspension, as respondent would then have to comply with Administrative Order 9, Rule 22(D), and demonstrate, by clear and convincing evidence, that she has been rehabilitated, that she is now qualified and competent to practice law, and that she will not practice law in a way that is detrimental to the bar, the administration of justice, or the public interest.  Disciplinary counsel agreed with the sentence and has stated in its brief that “the Court should suspend [respondent] for at least six months, thereby triggering the reinstatement provisions of Rules 22(B) and (D),” requiring respondent to demonstrate, like Bailey, that she is capable of fulfilling her duties.  The Panel stated that it “also believe[d] that the six month suspension [was] appropriate without regard to the operation of A.O. 9 Rule 22(D)” and proceeded with an analysis of other case law. 

¶ 18.         While we agree with the Panel that the six-month suspension is justified in each instance here based on the underlying conduct, we would like to clarify that a six-month suspension should not be applied for the sole purpose of triggering the reinstatement process—the individual’s violations must, on their own, merit a sanction of six months.  A six-month suspension is a serious sanction and should not be imposed solely to require a demonstration of rehabilitation and compliance before returning to practice.  Here, however, the Panel made it clear that each six-month suspension was justified on its own, and we agree.

¶ 19.         In each of these hearings, the Panel determined that a six-month suspension was an appropriate sanction based on the duties respondent violated, respondent’s mental state, the potential or actual injury caused by respondent’s misconduct, and aggravating and mitigating factors such as respondent’s current and previous history of misconduct and respondent’s medical and personal problems.  The Panel also based its decision on the results of and sanctions imposed by previous hearing panels in similar cases and the purpose served by the sanctions.  Respondent herself makes no argument as to why we should not affirm the Panel’s decisions.  We find no grounds to disturb the Panel’s sanctions, and we affirm the Panel’s decision to suspend respondent for a duration of six months in both instances, to run concurrently.  In addition, given respondent’s general failure to participate in any of these proceedings, including this appeal, we add the condition that, at the time that respondent applies for reinstatement, she must provide a detailed explanation for her lack of participation over the course of these proceedings.

            Affirmed, with the added condition that, at the time that respondent applies for reinstatement, she must provide the Professional Responsibility Board with a detailed explanation for her lack of participation over the course of these proceedings.

 

 

BY THE COURT:

 

 

 

 

 

 

 

Paul L. Reiber, Chief Justice

 

 

   Publish

 

 

John A. Dooley, Associate Justice

   Do Not Publish

 

 

 

 

Denise R. Johnson, Associate Justice

 

 

 

 

 

Marilyn S. Skoglund, Associate Justice

 

 

 

 

 

Geoffrey W. Crawford, Superior Judge,

Specially Assigned

 

 

 

 

 


In re Hongisto (2009-196)

 

[Filed 07-Jul-2009]

 

ENTRY ORDER

 

SUPREME COURT DOCKET NO. 2009-196

 

JUNE TERM, 2009

 

In re Eileen Hongisto, Esq.

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APPEALED FROM:

 

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Professional Responsibility Board

 

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PRB No. 2009.107

 

 

 

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:

 

 

                                                                   _______________________________________

                                                                   Paul L. Reiber, Chief Justice

 

                                                                   _______________________________________

                                                                   John A. Dooley, Associate Justice

                                                                  

                                                                   _______________________________________

                                                                   Denise R. Johnson, Associate Justice

 

                                                                   _______________________________________

                                                                   Marilyn S. Skoglund, Associate Justice

                                                                  

                                                                   _______________________________________

                                                                   Brian L. Burgess, Associate Justice


STATE OF VERMONT

PROFESSIONAL RESPONSIBILITY BOARD

 

 

In re:    Eileen Hongisto, Esq.

            PRB Docket No. 2009.107

 

Decision No. 122__

            This matter was heard on the issue of sanctions on May 18, 2009, before Hearing Panel No. 9 consisting of Stephen Dardeck, Esq., Shannon Bertrand, Esq. and Barbara Carris.  Disciplinary Counsel Michael Kennedy and Respondent were both present. 

Procedural History

In January of 2009, Disciplinary Counsel filed a Petition of Misconduct charging Respondent with violating Rules 5.5(a) and 8.4(c) of the Vermont Rules of Professional Conduct.  The petition was served on Respondent by sheriff.  She failed to answer the Petition, and Disciplinary Counsel moved to have the charges deemed admitted.  The motion was granted and a sanction's hearing was set for May 18, 2009.  Again, Respondent was served with notice of hearing by sheriff.

Facts

            On June 3, 2008, the Supreme Court transferred Respondent's license to disability inactive status. The Court ordered this Panel to determine whether Respondent suffered from a disability that prohibited her from assisting in the defense of disciplinary charges that had been filed against her.  After hearing, the Panel concluded that Respondent did not presently suffer from a disability and recommended that the Court return Respondent to active status and set the underlying disciplinary case for hearing. The Court adopted the Panel's recommendation and reinstated Respondent to active status on October 28, 2008.

            On November 3, 2008, both Disciplinary Counsel and Martha Hicks-Robinson, Program Administrator for the Attorney Licensing Office wrote to Respondent informing her that, despite the fact that the court had returned her to active status, she was not yet eligible to practice law because she was not in good standing with the Vermont Department of Taxes.

Respondent had not renewed her license when it expired in June of 2008.  On November 18, 2008, Respondent filed a Replacement Attorney Licensing Statement with the required fee of $500.  Above the signature block on the form is the following language:  "By my signature, I certify that I am in good standing with respect to any and all taxes due the state of Vermont. . . ."  In an email dated the next day, Ms. Hicks-Robinson acknowledged receipt of Respondent's licensing material, but informed her that she had not received confirmation that she was in good standing with respect to taxes owed to the State of Vermont.

            On December 8, 2008, Respondent appeared for a status conference in family court matter and stipulated to the resolution of various issues.  On December 10, 2008, Disciplinary Counsel again emailed Respondent informing her that her license to practice was not in good standing.

            At the sanctions hearing, Respondent testified that while she had an email address, she did not have internet access and did not check her email.  She acknowledged that the November 3, 2008, emails from Disciplinary Counsel and Ms. Hick-Robinson could have been received in her mailbox, but that she had not accessed her email.

            Respondent also testified that at the time that she appeared in Family Court on December 8, 2009, she believed that she owed no taxes, only penalties, to the state of Vermont and that her license would be reinstated.  On December 10, 2008, she received a telephone call from the tax department.  As soon as she realized the reality of the tax situation she told her client to find other counsel which he did.

            At present she owes penalties but no taxes, and is in the process of gathering information to deal with the tax department.  She has also taken a job with the Census Bureau in order to pay the penalties.

            At the hearing, Respondent and Disciplinary Counsel presented the Panel with a proposed resolution to the charges of misconduct.  Disciplinary Counsel moved to dismiss the charge of violation of Rule 8.4(c), informing the Panel that he did not believe, based on Respondent's testimony, that he could prove by clear and convincing evidence that Respondent engaged in "conduct involving dishonesty, fraud, deceit or misrepresentation."  The parties recommended to the Panel that it impose a six month's suspension on the charge of violating Rule 5.5(a).

Conclusion of Law

            Rule 5.5(a) of the Vermont Rules of Professional Conduct provides that "A lawyer shall not: (a) practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction. . . ."   The Vermont Supreme Court has the constitutional power to regulate the practice of  lawVt. Const. Chap. II, § 30.  The attorney licensing rules promulgated by the Court provide that a condition of the right to practice law is paying or making arrangements to pay all taxes due to the state of Vermont.  Administrative Order 41 § 8.

By appearing in Family Court on behalf of a client, and agreeing on his behalf to resolution of issues involved in the case, Respondent was clearly engaged in the practice of law and in violation of the attorney licensing rules.

Sanction

In making our determination to accept the recommended sanction of a six month suspension we have considered this case in light of our recent decision in In re Hongisto, PRB Decision No  111 (May 2009),*  in which we ordered a six month suspension. The suspension in this case will run concurrently with that in the previous case.  The reality is that with this decision falling so closely on the heels of Decision No. 111, the total suspension will not be substantially in excess of a total of six months.

We have also considered Respondent's testimony that she believes that it will take her six months to deal with her personal and tax issues before she is ready to apply to resume the practice of law.

We would add that were we presented with the facts of this case, absent any prior discipline or a recommended sanction, we would not have been inclined to impose such a lengthy suspension.  We believe that it is justified here due to the presence of several aggravating factors.  Respondent has prior discipline as noted. ABA Standards §9.22(a). 

In addition we see Respondent's conduct here as part of a pattern of misconduct.  The prior case involved neglect of a client's case and a pattern lasting approximately two years of failure to cooperate with the disciplinary process.  We see this same conduct here.  Respondent failed to attend to the details of renewing her license and keeping current with the tax department.  This pattern is a substantial aggravating factor. ABA Standards §9.22(c).

In mitigation, we acknowledge that Respondent had been dealing with significant medical and personal problems during the several years leading up to this case.  ABA Standards §9.32(c).

 

Order

            For the foregoing reasons EILEEN HONGISTO is suspended from the practice of law for a period of six months commencing on the date that this decision becomes final.  This suspension shall be concurrent with the suspension ordered in Decision 111 to the extent that the time periods overlap.

Dated:             June 17, 2009                                     Hearing Panel No. 9

                                                                                                /s/

                                                                                    ______________________________

                                                                                    Stephen Dardeck, Esq., Chair

 

                                                                                                /s/

                                                                                    ______________________________

                                                                                    Shannon Bertrand, Esq.

 

                                                                                                /s/

______________________________ Barbara Carris

 

 



* As of the date of this opinion, this case remains subject to review by the Supreme Court.