122 PRB
[Filed 17-Jun-2009]
In
re Hongisto
2010
VT 51
[Filed
03-Jun-2010]
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ENTRY ORDER |
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2010 VT 51 |
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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 |
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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 (
¶ 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 (
¶ 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 (
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
¶ 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, ___
¶ 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
¶ 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
¶ 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.
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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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Geoffrey W. Crawford, Superior Judge, Specially Assigned |
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In re Hongisto (2009-196)
[Filed 07-Jul-2009]
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ENTRY ORDER |
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APPEALED FROM: |
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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 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 law. Vt. 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/
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Stephen Dardeck, Esq., Chair
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Shannon Bertrand, Esq.
/s/
______________________________ Barbara Carris