In Re Eileen Hongisto.

Decision Date03 June 2010
Docket Number09-196.,No. 08-202,08-202
Citation2010 VT 51,998 A.2d 1065
PartiesIn re Eileen HONGISTO.
CourtVermont Supreme Court

Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND, JJ. and CRAWFORD, Superior Judge, Specially Assigned.

ENTRY ORDER

¶ 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 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 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 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 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 preconference 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 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, 177 Vt. 511, 857 A.2d 803 (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...

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8 cases
  • In re Strouse
    • United States
    • United States State Supreme Court of Vermont
    • July 15, 2011
    ...¶ 29. This Court generally has ordered suspension only in cases involving behavior more egregious than the conduct in this case. In In re Hongisto, the respondent received two six-month suspensions, to run concurrently, for failing to cooperate with investigations of a client-trust-account ......
  • In re Strouse
    • United States
    • United States State Supreme Court of Vermont
    • July 15, 2011
    ...¶ 29. This Court generally has ordered suspension only in cases involving behavior more egregious than the conduct in this case. In In re Hongisto, the respondent received two six-month suspensions, to run concurrently, for failing to cooperate with investigations of a client-trust-account ......
  • In re Fink
    • United States
    • United States State Supreme Court of Vermont
    • April 15, 2011
    ...was a requirement of the rules and that he did not have one with complainant. These findings are supported by the evidence. See In re Hongisto, 2010 VT 51, ¶¶ 10–11, 188 Vt. ––––, 998 A.2d 1065 (mem.) (panel's findings will be affirmed unless clearly erroneous). Respondent does not really d......
  • In re McCoy-Jacien
    • United States
    • United States State Supreme Court of Vermont
    • March 29, 2018
    ...the disciplinary system itself by consuming scarce resources and eroding the public's confidence in the legal profession." In re Hongisto , 2010 VT 51, ¶ 11, 188 Vt. 553, 998 A.2d 1065 (mem.).Presumptive Standard under the ABA StandardsThe Panel concludes that § 7.2 of the ABA Standards is ......
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