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In re Jacien

Supreme Court of Vermont

March 29, 2018

In re Phyllis McCoy Jacien, Esq.

         ORIGINAL JURISDICTION Professional Responsibility Board

          ENTRY ORDER

         In the 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

         Schwidde "to inventory the files of the respondent, and to take action as seems indicated to protect the interests of . . . respondent's clients."

         STATE OF VERMONT PROFESSIONAL RESPONSIBILITY BOARD

         In Re: Phyllis McCoy Jacien, Esq. PRB File No. 2018-024

         Hearing Panel No. 5

         Erin J. Gilmore, Esq., Chair

         Michele Patton, Esq.

         Christopher Bray

         Decision No. 212

         On or 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.

         When 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.[1] See Motion to Deem Charges Admitted, 10/11/18. Respondent did not file any response to the motion.[2] Accordingly, the Hearing Panel granted the Motion to Deem Charges Admitted and scheduled a hearing on the issue of sanctions.

         On 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.[3]

         Based 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.

         FINDINGS OF FACT

         On July 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." Id.

         The 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.

         In the 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.

         On May 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.

         In 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 to Respondent.

         On June 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.

         Over 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.

         On July 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 message.[4]

         In 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.[5] 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 obligations.

         Disciplinary 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.

         On 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.

         Disciplinary 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.

         CONCLUSIONS OF LAW

         Respondent was notified of the charges against her and has not contested them. Accordingly, the Panel deems the charges to have been admitted.

         A.O. 9 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.[6] Moreover, the violation is not isolated but, rather, continuing in nature.

         In 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 . . . ...


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