Original Jurisdiction From Professional Responsibility Board, Jean Brewster Giddings, Chair.
Kimberly Rubin, Disciplinary Counsel, Burlington, for Petitioner-Appellant.
Christopher L. Davis and Andrew J. Kestner of Langrock Sperry & Wool, LLP, Burlington, for Respondent-Appellee.
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.
¶ 1. This is an attorney disciplinary matter relating to licensee Christena Obregon's failure to timely file personal Vermont income tax returns for tax years 2006, 2008, 2009, and 2010. The Office of Disciplinary Counsel requests that we impose a sanction of a suspension because of licensee's allegedly false averments on her attorney licensing renewal statements for 2009 and 2011 that she was in good standing with respect to all taxes owed. We conclude that licensee made no misrepresentations on her attorney licensing renewal statement and that a public reprimand is a sufficient sanction for her failure to timely file her tax returns.
¶ 2. The following facts of this case are undisputed. Licensee is an attorney licensed to practice in Vermont. She has admitted that she failed to timely file her Vermont income tax returns for the years 2006, 2008, 2009, and 2010. Starting in 2007, she received repeated notices from the Vermont Department of Taxes informing her that she was not "in good standing" on account of her failure to file Vermont income tax returns. She did not respond to these notices and eventually the Department of Taxes notified the Court Administrator that licensee was not in good standing with respect to taxes under the definition in 32 V.S.A. § 3113(g). The Court Administrator referred the matter to the Office of Disciplinary Counsel, which advised licensee that the notice from the Department of Taxes "clearly and convincingly establish[ed] that [she] did not file income tax returns with the State of Vermont for the tax years 2008 and 2009."
¶ 3. Licensee eventually replied to disciplinary counsel that she had paid all Vermont taxes that she owed, both personally and on behalf of her business, and contested all allegations of the Department of Taxes. She asserted that until she received the letter from disciplinary counsel she was unaware that she was not in good standing. She acknowledged the delays in filing her tax returns, but explained that due to two computer crashes, she had to reconstruct financial data from bank records. Additionally, because of a car accident in 2011, she alleged that she had suffered from post-concussion syndrome, which resulted in her taking a medical leave from work and affected her ability to properly manage her administrative responsibilities. She alleged that all these issues contributed to her delay in filing her tax returns. She also alleged that she had a satisfactory plan in place with the Department of Taxes to get her returns filed.
¶ 4. The Department of Taxes continued to believe that licensee was not in good standing with respect to her tax obligations. They brought a civil collection action against her in the Chittenden Superior Court in April 2012. The action was settled and dismissed on February 12, 2013, but the Department of Taxes continued to declare that licensee was not in good standing with respect to her taxes.
¶ 5. Notwithstanding the ongoing allegations that she had not filed her tax returns, on both June 30, 2009 and June 30, 2011, licensee electronically renewed her attorney license, certifying that she was in good standing with respect to "any and all taxes due to the State of Vermont." See A.O. 41, § 7.
¶ 6. In March 2013, disciplinary counsel filed with the Professional Responsibility Board (Board) a request for a finding of probable cause in connection with licensee's failure to file Vermont personal income tax returns for the years 2006, 2008, 2009, and 2010. Disciplinary counsel alleged that this failure constituted a violation of Vermont Rules of Professional Conduct 8.4(b), (c)(1) and (d) by her failure to do so and separately alleged that she had violated Rule 8.4(c) by wrongly certifying in her licensing statement that she was in good standing with respect to her Vermont tax obligations in 2009 and 2011. The assigned panel of the Board did not find probable cause with respect to licensee's alleged misrepresentation on her attorney licensing renewal statements, noting that the good standing issue "may have been more clear if specific reference to 32 V.S.A. § 3113(g) had been included on the attorney licensing statement." However, the panel did find probable cause that licensee violated Rule 8.4(c) of the Rules of Professional Conduct, which states that it is professional misconduct for a lawyer to "engage in conduct involving dishonesty, fraud, deceit or misrepresentation, " with respect to her failure to timely file her Vermont income tax returns for 2006, 2008, 2009, and 2010.
¶ 7. In April 2013, disciplinary counsel resubmitted a request for a finding of probable cause pertaining to licensee's alleged misrepresentation on her license renewal statement, and the panel once again voted not to find probable cause. Disciplinary counsel went forward to a formal proceeding based on a violation of Rule 8.4(c) for which the panel had found probable cause.
¶ 8. In February 2015, the parties entered into a stipulation of facts, and a joint recommendation that the panel find that licensee had violated Rule 8.4(c) by failing to timely file her tax returns and that a public reprimand was warranted. The stipulation of facts contained the following paragraph:
For each of the tax years in question, Respondent did not owe any taxes, and in some years she was entitled to a refund. Any monies paid were the result of ...