In re Wysolmerski

• Decision Date: 26 June 2020
• Docket Number: No. 19-247,19-247
• Court: Vermont Supreme Court
• Parties: IN RE Sigismund WYSOLMERSKI, Esq. (Office of Disciplinary Counsel, Appellant)

237 A.3d 706

IN RE Sigismund WYSOLMERSKI, Esq. (Office of Disciplinary Counsel, Appellant)

No. 19-247

Supreme Court of Vermont.

February Term, 2020

June 26, 2020

Sarah Katz, Disciplinary Counsel, Burlington, for Petitioner-Appellant.

Sigismund J. Wysolmerski, Pro Se, Rutland, Respondent-Appellee.

PRESENT: Robinson, Eaton and Carroll, JJ., and Grearson and Tomasi, Supr. JJ., Specially Assigned

EATON, J.

¶ 1. This appeal concerns review of a determination by a hearing panel of the Professional Responsibility Board that respondent, Sigismund Wysolmerski, committed several violations of the Vermont Rules of Professional Conduct in his practice as an attorney. As a result, the hearing panel suspended respondent from the practice of law for twelve months. This Court ordered review of the hearing panel's determination on its own motion pursuant to Administrative Order 9, Rule 11(E) and designated the Office of Disciplinary Counsel as appellant. Disciplinary counsel argues the sanction imposed by the hearing panel should be increased to an eighteen-month suspension because of respondent's repeated dishonesty. Respondent seeks a decreased sanction to a reprimand or suspension for less than six months because he believes a longer suspension is unnecessary and would serve no purpose in preserving public confidence in the legal profession. We disagree with both recommendations and order respondent disbarred from the practice of law.

¶ 2. The hearing panel's extensive factual findings—which, with two exceptions, are not in dispute—are summarized as follows. Respondent has been an attorney primarily involved in civil practice in Rutland since 1980. In 1997, respondent received a three-year suspension from the practice of law as a result of multiple violations of the Rules of Professional Conduct taking place over an eight-year period. See In re Wysolmerski, 167 Vt. 562, 702 A.2d 73 (1997) (mem.). These violations included making false statements to attorneys and to the courts, failing to keep in contact with clients, and failing to file a promised lawsuit. Respondent was reinstated to the Vermont bar and the suspension lifted in 2001. Respondent received a private admonition in 2012 for misconduct not related to the conduct at issue in this case.

¶ 3. This disciplinary matter arises out of respondent's representation of T.L., on a contingent-fee basis, in connection with T.L.’s claims against his mortgage lender seeking a mortgage modification and claiming deceptive lending practices. Respondent's representation of T.L. began in 2008. Ultimately, respondent filed a civil action in December 2014 on T.L.’s behalf against multiple entities, including West Star Mortgage Inc. Throughout the pendency of the lawsuit, T.L. lived in Maine.

¶ 4. The complaint alleged that West Star Mortgage Inc.’s predecessor, CFIC, had assigned T.L.’s loan to others. Respondent had obtained information concerning West Star's potential involvement from a phone number on T.L.’s loan paperwork. Respondent called the number and reached a person in Virginia who claimed to be working for "West Star Mortgage." Based on that call, respondent concluded that West Star Mortgage Inc. was the successor-corporation to T.L.’s original lender. Respondent had the complaint served on the registered agent of "West Star Mortgage Inc." It was identified only as "West Star" in the sheriff's return of service.

¶ 5. It turned out that there were two West Star Mortgage entities, a "West Star Mortgage, Inc.," based in Virginia, and a "West Star Mortgage Corporation" located in the southwestern United States. General counsel of West Star Mortgage Inc., Jeremy Martin, who received the complaint, called respondent and told him that his company had no record of lending to T.L., and that respondent had probably served the wrong entity. Respondent told Martin he would look into the issue and get back to him. Respondent agreed that no answer was required by Martin's company in the interim. Martin sent an email to respondent the same day confirming respondent's agreement granting an extension of time to answer if one became necessary. Respondent never got back to Martin and never responded to the email.

¶ 6. In the meantime, respondent filed a motion to amend his complaint by changing "West Star Mortgage Inc." to "West Star Mortgage" without the suffix.¹ The court granted his motion a few days later. He did not serve the first amended complaint on West Star Mortgage Co. or on West Star Mortgage Inc.

¶ 7. In late January 2015, Martin sent another email to respondent, again confirming counsel's understanding that respondent had agreed to an extension of time to answer and requesting an update on respondent's efforts to identify the proper West Star Mortgage entity. Respondent did not reply to this email either.

¶ 8. The hearing panel found respondent verbally agreed to give Martin's company an indefinite extension of time to answer the complaint, subject to further communication between respondent and corporate counsel. Attorneys entered appearances for the other defendants named in the suit, including in the second amended complaint, which also was not served on either West Star Mortgage entity. No one appeared on behalf of West Star Mortgage Co. or West Star Mortgage Inc.

¶ 9. As the lawsuit progressed, respondent filed three affidavits with the court which had purportedly been signed by T.L. Each of these affidavits was notarized by respondent and stated, "Signed and subscribed under oath by [T.L.] a person known to me." The first was dated in August 2015 and filed in opposition to a motion to dismiss by a defendant. The second was dated in October 2016 and filed in opposition to a motion for summary judgment filed by another defendant. The third was dated in January 2017 and filed in support of a motion for entry of default judgment by T.L. against West Star Mortgage. The hearing panel concluded that none of the affidavits had been signed by T.L. The panel was unable, however, to determine who signed T.L.’s name to the affidavits, whether the affidavits had been signed with T.L.’s authorization or consent, or whether respondent was aware that T.L. had not signed them. The hearing panel found the content of the affidavits were consistent with the guidance T.L. had provided to respondent in pursuit of his claim. Respondent asserted that the affidavits were signed remotely and returned to him, and when he notarized them he believed they bore T.L.’s signature.² The panel was unable to conclude otherwise.

¶ 10. In connection with T.L.’s motion for default judgment against West Star Mortgage, respondent filed his own affidavit in which he asserted West Star Mortgage was the successor to CFIC, and that service had been accomplished on West Star Mortgage. Respondent also filed a copy of the return of service made by the sheriff on "West Star." The caption of the motion listed "West Star Mortgage" as the defendant, but the body of the motion and the affidavit referenced "West Star Mortgage Inc." Respondent did not explain why he continued to use "West Star Mortgage Inc." after he had moved to amend the complaint to eliminate the "Inc."

¶ 11. Neither the motion for default nor respondent's affidavit in support made any mention of the extension of time that had been given by respondent to West Star Mortgage Inc. Likewise, they did not mention that West Star Mortgage Inc. asserted that the wrong entity had been sued, that West Star Mortgage Corporation might be the appropriate party, or give any indication that respondent had investigated this assertion. Respondent was aware of the previous communications with West Star Mortgage Inc. and knowingly chose to make no mention of them to the court. He also did not provide West Star Mortgage Inc. with a copy of the motion for default.

¶ 12. The motion for default was granted against West Star Mortgage in May 2017 with judgment for $325,000. Respondent made no effort to execute on the judgment against West Star Mortgage Inc.

¶ 13. In June 2017, respondent filed an appeal with this Court from the trial court's decision granting summary judgment in favor of two other defendants in the suit. While the appeal was pending, respondent requested and received an extension of time to file an appellant's brief on behalf of T.L. The order granting the extension warned that the appeal might be dismissed without further notice if the brief was not timely filed. Subsequently, respondent failed to file a brief and the appeal was dismissed.

¶ 14. During the pendency of the appeal, respondent and T.L. had several conversations. Respondent had doubts about the possibility of success concerning T.L.’s appeal, which he communicated to T.L. Despite those concerns, respondent at no time told T.L. that he wanted to withdraw as his attorney or that he would be filing a motion to withdraw. Respondent also failed to tell T.L. that he would not be filing a brief on his behalf.

¶ 15. On September 14, 2017, before the appeal was dismissed, T.L. sent an email to respondent advising him that T.L. understood respondent had sent documents concerning the appeal to him but that T.L. had not yet gotten them. Respondent did not reply to the email. T.L. sent a follow-up email on September 25, 2017, again informing respondent that T.L. had not received any documents and expressing his concern. Respondent did not reply to this email either.

¶ 16. About three weeks after T.L.’s second email, he traveled to Rutland to meet with respondent. At that time, respondent told T.L. the appeal had been dismissed by the Court. Respondent had not told T.L. of the dismissal at the time it occurred.³ Following that meeting, T.L. contacted the Court directly and learned the appeal had been dismissed because respondent missed the filing deadline. T.L. then emailed respondent expressing his surprise, anger, and disappointment. Respondent did not reply to the email.

¶ 17. In 2017, respondent's sister became ill with a...