 |
| Four in one, get it? |
By Elizabeth Kruska
Lawyers are licensed professionals, and we answer to our Professional Responsibility Board (PRB). There are things we’re supposed to do, and not do, and if it comes about that we do (or don’t do) things consistent with our Rules of Professional Conduct, we can be brought before the Professional Responsibility Board. The Board is able to hold hearings and make determinations about whether the lawyer in question violated certain rules, and if so, what the sanction ought to be. The American Bar Association has set forth sanction standards, and Vermont uses those standards for guidance in determining what an appropriate sanction should be if a violation is found.
The Vermont Supreme Court may always review a PRB decision, either by appeal of one of the parties, or on its own motion. The latter is how these 4 connected opinions came to be.
Act I
The attorney in question is Phyllis McCoy-Jacien (Attorney). From what I can gather from the opinion, Attorney was already on probation with the PRB for having not filed her tax returns for several years. She was ordered to “timely file her 2015 tax return” and also file her outstanding returns. Once she did that and showed proof, she would be done with her probationary status.
Some time went by, and Disciplinary Counsel (DC) never got word that the taxes had been filed. DC tried to reach Attorney by email and by US Mail and didn’t get responses. As attorneys, we are required to keep current email and postal mail addresses and phone numbers on file with the Court Administrator’s Office. That’s how courts know how to reach us.
A month or so went by after the email and US Mail attempts with no response, so DC tried to call Attorney. She got an automated outgoing voicemail message and left a message. I’d bet a nickel it was one of those, “you have reached” outgoing messages that comes with the phone, but somehow betting on a fact in an ethics opinion seems like a bad plan. Regardless, DC never got a call back. DC also knew Attorney had an office in Whitehall, New York, so she tried calling there and couldn’t reach Attorney or leave a message. DC also contacted a Certified Public Accountant who had worked with Attorney in the past to see if that person could reach Attorney.
A week or two passed and DC sent a certified letter to Attorney. It was returned as “unclaimed” and “unable to forward.” Around this time DC also found out Attorney was involved in a personal court case of her own. DC confirmed Attorney’s contact information through documents in that court file and used that information to try to contact Attorney but got no response.
Finally, DC tried to contact the Department of Taxes to see if Attorney had filed her taxes and received back information that only said they were unable to issue a letter of good standing. Maybe this means she didn’t file her taxes. Maybe it means she owed money. It’s unclear, but it does suggest there was some tax-related issue.
So, Disciplinary Counsel filed two misconduct charges. One was based on Attorney’s not filing tax returns. The other was that Attorney didn’t respond to any of the attempts to communicate about compliance with her probation.
Attorney didn’t respond to the charge. A hearing was set, and Attorney didn’t appear. DC went ahead and put on some evidence and the panel decided based on the evidence before it that the violations occurred and that a 9-month license suspension was an appropriate sanction.
On review, SCOV says this was entirely fine. The fact that Attorney didn’t file her tax returns was a violation of her duty to the public. Her unresponsiveness to Disciplinary Counsel violated her duty to the profession. She had a mental state of “knowing” because she was aware she was supposed to file her tax returns and didn’t do that. “Knowing” is more conscious than “negligent.” The one thing nobody knows is whether Attorney did file her taxes or not, or if she owes money (or doesn’t), since she didn’t participate in the disciplinary process. Even though a client wasn’t harmed by this action, it does call her integrity into question in the eyes of the profession and the general public.
Based on all this, and the applicable ABA standards, SCOV says the 9-month sanction was appropriate, and upholds the PRB hearing panel’s decision, along with some conditions for being able to practice again.
You’d think we’re done. We’re not.
Act II
When a Supreme Court order ends with an all-caps, all-bold paragraph that says, “a party who fails to comply with a court order risks a sanction of incarceration” you know this isn’t a good sign.
The original order upholding Attorney’s suspension issued on March 29, 2018. Another attorney was appointed to act as a trustee (Trustee) to inventory Attorney’s files and take any steps needed to protect her clients. Trustee wrote a letter on May 8, 2018 and had Attorney personally served with it. It said she needed to comply within 2 weeks, or that contempt proceedings might be initiated. On September 7, 2018 Trustee sent a letter to SCOV saying that Attorney had not participated with the trustee process. On September 12, SCOV issued another order, ordering Attorney to comply within 2 weeks, or that she may be held in contempt. On October 1, 2018, Trustee filed a letter saying Attorney still hadn’t complied.
SCOV held a show-cause hearing on October 18, 2018. Attorney didn’t appear. SCOV found Attorney in contempt, and gave her until November 30, 2018 to purge the contempt. If someone is found in contempt, they must be given the opportunity to undo, or purge, the problem. Here, the purge requirement was to comply with the Trustee’s demand. There was to be a further hearing on December 4, 2018 to determine compliance. Attorney was warned that sanctions could be imposed at that hearing, including incarceration.
Are we done? No. No we are not.
Act III
This one is short and doesn’t have a lot of details. This order required Attorney to meet Trustee at her office in Whitehall, New York on December 11, 2018. The Trustee was ordered to give SCOV an affidavit of compliance as soon as possible thereafter.
Act IV
The final opinion gives some additional details. Attorney went to the courthouse in Rutland on December 10, 2018, pursuant to an arrest warrant. Did you know the Supreme Court can issue an arrest warrant? Apparently it can. A hearing was held by phone right then, and Attorney provided some information to SCOV. SCOV ordered her to be released from custody, and issued the order noted above in Act III. It appears she met with Trustee on December 11 as ordered, because Trustee filed an affidavit with SCOV providing necessary and helpful information.
It appears that by that point, Attorney didn’t have any clients in Vermont anymore. She did have some files and client property, and was able to provide Trustee with information about those particular clients so their files and property could be returned to them. She also said she’d look in her old records to determine whether there was anything else that needed to be returned, or any addresses to be updated. It also didn’t appear that Attorney had any client money held in trust anymore.
Given this, SCOV was satisfied that she complied with the Trustee process, and found she was no longer in contempt of the earlier order.
Comments
Post a Comment