JURISDICTION Professional Responsibility Board
above-entitled cause, the Clerk will enter:
1. Upon review of the hearing panel decision in this matter,
the Court concludes as follows: The decision presents a
well-reasoned discussion. Accordingly, the Court orders
review of the decision on its own motion, adopts the hearing
panel decision in its entirety as a final order of this
Court, waives briefing and oral argument, and orders that the
decision be published in the Vermont Reports.
2. Pursuant to Administrative Order 9, Rule 24, the Court
appoints attorney Jess
"to inventory the files of the respondent, and to take
action as seems indicated to protect the interests of . . .
OF VERMONT PROFESSIONAL RESPONSIBILITY BOARD
Phyllis McCoy Jacien, Esq. PRB File No. 2018-024
Panel No. 5
Gilmore, Esq., Chair
about September 12, 2017, Disciplinary Counsel filed a
Petition of Misconduct with the Professional Responsibility
Board alleging that Respondent, Phyllis McCoy-Jacien,
violated Rule 8(A)(6)(c) of Administrative Order
("A.O.") and Rule 8.1(b) of the Vermont Rules of
Professional Conduct. On or about September 15, 2017, the
Petition was served on Respondent in person by the Rutland
County Sheriff. Exhibit DC-10. The Petition included a notice
of Respondent's obligation under A.O. 9, Rule 11(D)(3) to
file an Answer to the Petition within 20 days. The Petition
also included a notice, in accordance with Rule 11(D)(3),
that failure to file a timely answer may result in the
charges being admitted.
Respondent failed to file a timely answer or to request an
extension of time to file an answer, Disciplinary Counsel
moved to have the charges admitted based on Respondent's
failure to answer. See Motion to Deem Charges
Admitted, 10/11/18. Respondent did not file any response to
the motion. Accordingly, the Hearing Panel granted the
Motion to Deem Charges Admitted and scheduled a hearing on
the issue of sanctions.
January 29, 2018, the Panel held a hearing to receive any
evidence and oral argument on the issue of sanctions.
Disciplinary Counsel, Sarah Katz, attended the hearing and
presented both testimonial and documentary evidence.
Respondent did not attend the hearing.
on the allegations of the Petition and the evidence admitted
at the sanctions hearing, the Panel issues the following
findings of fact, conclusions of law, and order.
18, 2016, a hearing panel of the Professional Responsibility
Board determined that Respondent had violated Rule 8.4(c) of
the Vermont Rules of Professional Conduct by failing to file
Vermont income tax returns for calendar years 2011, 2012,
2013, and 2014. In re McCoy-Jacien, Esq., PRB File
No. 2016-023, Decision No. 196, 7/18/16 ("PRB Decision
196"). The panel issued a public reprimand and further
ordered that Respondent be placed on probation status for a
period of six months, during which time she was required to
"timely file her 2015 tax return and file her 2011,
2012, 2013 and 2014 tax returns with the Vermont Tax
Department." Exhibit DC-1, at 13. The Panel's order
appointed Disciplinary Counsel to serve as the probation
monitor and further stated that "[o]nce the aforesaid
tax returns are completed and filed with the Tax Department,
the purposes of probation shall have been satisfied."
Panel's decision was based on a stipulation of facts and
a joint recommendation as to conclusions of law filed by
Disciplinary Counsel and Respondent. In addition, the parties
jointly requested the public reprimand and probationary
conditions that were imposed by the Panel. Id. at 1.
absence of any communication from Respondent confirming that
she had filed the requisite tax returns with the Vermont
Department of Taxes, Disciplinary Counsel made several
attempts to communicate with Respondent. On April 7, 2017,
Disciplinary Counsel attached a letter addressed to
Respondent to an email and attempted to send the email to the
email address for Respondent that is on file in the Court
Administrator's Office in connection with
Respondent's attorney licensing records. See
Exhibit DC-9. When the email was returned as undeliverable
due to "[o]ver quota, " Exhibit DC-2, Disciplinary
Counsel sent the same letter by first-class mail to
Respondent's last known mailing address on file in the
Court Administrator's Office. Exhibit DC-3 (letter dated
4/10/17). The letter requested that Respondent provide
documentation that she had filed the requisite tax returns
or, alternatively, that she provide a date certain by which
she would file the returns and an explanation for the delay.
The letter further requested that Respondent provide her
current mailing address, phone number, and email address. No
response to the letter was received by Disciplinary Counsel.
25, 2017, Disciplinary Counsel attempted to contact
Respondent by telephone at the last known Vermont phone
number used by Respondent. Disciplinary Counsel received an
automated message without any identifying information and
left a voice message requesting a call back. Disciplinary
Counsel did not receive a call back from anyone in response
to the voice mail message. An attempt that same day to
contact Respondent through a phone number for
Respondent's Whitehall, New York law office was also
unsuccessful. There was no response to the phone call or
opportunity to leave a message.
addition, Disciplinary Counsel contacted an individual who
she understood had performed Certified Public Accountant
services in the past for Respondent and asked him whether he
could advise her to contact Disciplinary Counsel. This
individual told Disciplinary Counsel that he would reach out
6, 2017, having received no communication from Respondent,
Disciplinary Counsel sent a letter to Respondent, by
certified mail, using the Respondent's mailing address on
file at the Court Administrator's Office. Exhibit DC-6.
The letter identified Respondent's obligations under the
July 18, 2016 Order in PRB Decision 196, summarized
Disciplinary Counsel's prior attempts to contact
Respondent, and advised Respondent that Disciplinary Counsel
would proceed to present charges for a probable cause
determination unless Respondent contacted Disciplinary
Counsel by June 30, 2017. The certified letter was returned
with a marking by the post office of "unclaimed"
and "unable to forward." Exhibit DC-7.
the summer of 2017, Respondent was a party in a proceeding
that was pending in Rutland Family Division entitled
Phillis McCoy Jacien v. Charles Jacien, Docket No.
455-11-16 Rdfa. In connection with that proceeding,
Respondent submitted to the Rutland Family Division, for
purposes of receiving rulings and notices, the same mailing
address that was - and continues to be - on file at the Court
Administrator's Office and the Vermont phone number that
Disciplinary Counsel used previously in attempting to contact
Respondent. At the request of Disciplinary Counsel, the
docket clerk in the Family Division telephoned Respondent on
July 11, 2017 using the Vermont telephone number; spoke to
Respondent on the telephone; and in the course of the
conversation confirmed that Respondent's mailing address
remained the same as the one on file with the Family Division
and Court Administrator's Office.
11, 2017, immediately following the phone conversation
between the Family Division docket clerk and Respondent,
Disciplinary Counsel placed a telephone call to the same
phone number that the docket clerk had just utilized; spoke
to a young child who answered the phone; and left a message
with Disciplinary Counsel's name and phone number,
advising that Respondent should call back. Disciplinary
Counsel did not receive any call back or written
communication of any kind in response to her
capacity as the probation monitor under the order in PRB
Decision 196, Disciplinary Counsel has also endeavored to
obtain information from the Department of Taxes that would
shed light on whether Respondent has filed her Vermont tax
returns. Disciplinary Counsel has only been able to obtain
limited information from the Tax Department. On May 26, 2017
and December 12, 2017, respectively, in response to inquiries
from Disciplinary Counsel, the Department of Taxes advised
Disciplinary Counsel, pursuant to 32 V.S.A. §§
3102(e)(10) and 3113(f), that it was "unable to issue a
letter of good standing with respect to [Phyllis McCoy
Jacien] at this time." Exhibits DC-4 & DC-5. A
Department of Taxes representative also testified at the
sanctions hearing that as of the date of the hearing -
January 29, 2018 - the Department continued to be unable to
issue a letter of good standing for Respondent, and the Panel
so finds. No other information was provided. In sum,
Disciplinary Counsel has not been able to confirm that
Respondent was in good standing with respect to her tax
Counsel proceeded to file two charges of misconduct against
Respondent in September 2017. One charge alleged that
Respondent violated A.O. 9, Rule 8(A)(6)(c) by
"fail[ing] to file Vermont tax returns as directed under
PRB Order 196." Petition of Misconduct at 1. The second
charge alleged that Respondent violated Rule of Professional
Conduct 8.1(b) by "fail[ing] to respond to numerous
written and oral requests for information regarding
compliance with probation conditions." Id.
Disciplinary Counsel subsequently moved to have the charges
deemed admitted for failure to respond. In the absence of any
response to the motion, the Panel issued an order deeming the
two charges admitted and scheduled a sanctions hearing.
Accordingly, the Panel finds that Respondent did in fact
commit the two violations alleged in the Petition.
December 24, 2017, Respondent signed a return receipt
acknowledging delivery to her of a copy of this Panel's
December 14, 2017 Decision on Motion to Deem Charges Admitted
and Notice of Hearing. The certified mail return indicates
that Respondent signed for the delivery on December 24, 2017.
See Exhibit DC-11.
Counsel has not received any telephone call or written
communication of any kind in response to the various attempts
that have been made to communicate with Respondent.
Respondent has not appeared in this disciplinary proceeding.
Respondent has not provided to the Professional
Responsibility Program any affidavit pursuant to A.O. 9, Rule
8(A)(6)(b) demonstrating compliance with the conditions of
probation that were imposed in PRB Decision 196 - namely, the
requirement to file income tax returns with the Vermont
Department of Taxes.
was notified of the charges against her and has not contested
them. Accordingly, the Panel deems the charges to have been
provides that "[d]iscipline may be imposed for . . .
[v]iolation of any . . . order of a hearing panel . . .
." A.O. 9, Rule 7(C). The Rules further provide that a
probation violation "may be the basis for . . .
independent disciplinary charges, " and that
"[u]pon proof of a probation violation, any sanction
under these rules may be imposed." A.O. 9, Rule
8(A)(6)(c). Respondent has committed a violation of a
condition of her probation imposed in PRB Decision 196 by
failing to file her income tax returns with the Vermont
Department of Taxes. Moreover, the violation is not isolated
but, rather, continuing in nature.
addition, Respondent committed multiple violations of Rule
8.1(b) of the Vermont Rules of Professional Conduct by
failing to respond to numerous written and oral requests for
information regarding compliance with the probation condition
in PRB Decision 196 that required Respondent to file tax
returns with the Vermont Department of Taxes. Rule 8.1
provides, in pertinent part, that "a lawyer . . . in
connection with a disciplinary matter shall not . . .