122 PRB
[Filed 17-Jun-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 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
/s/
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Shannon Bertrand, Esq.
/s/
______________________________ Barbara Carris