In re Phyllis McCoy Jacien, Esq. , 186 A.3d 626 ( 2018 )

ENTRY ORDER
2018 VT 35SUPREME COURT DOCKET NO. 2018-075
MARCH TERM, 2018
In re Phyllis McCoy Jacien, Esq. } ORIGINAL JURISDICTION
}
} Professional Responsibility Board
}
} DOCKET NO. 2018-024
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
1
Rule 11(D)(3) states as follow:
[R]espondent shall serve his or her answer upon disciplinary counsel and
file the original with the Board within 20 days after the service of the petition, unless
the time is extended by the chair of the hearing panel. In the event the respondent
fails to answer within the prescribed time, the charges shall be deemed to admitted,
unless good cause is shown.
2
Disciplinary Counsel certified that the Motion to Deem Charges Admitted was served on
Respondent on October 11, 2017 by U.S. Mail sent to the address shown on Respondent’s attorney licensing
statement, in accordance with A.O. 9., Rule 14(B) and V.R.C.P. 5.
3
The Panel’s decision granting the motion to deem the charges admitted and notice of hearing was
mailed to Respondent with a return receipt and Respondent signed the delivery box of the return receipt on
December 24, 2017. Exhibit DC-11.
2
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
3
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.
4
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
4
Without question, Disciplinary Counsel explored every possible means of contacting Respondent
before proceeding with charges in this matter and is to be commended for her efforts.
5
While the Department’s inability to certify “good standing” does not necessarily confirm that
Respondent has failed to file her income tax returns – it could in theory indicate that while returns were
filed the payment of taxes are delinquent – a certification of “good standing” would have called into
question whether Respondent had failed to file the returns. Moreover, the absence of good standing may
be the result of a failure to file tax returns. Section 3102 of Title 32 of the Vermont Statutes Annotated
renders tax returns and related information confidential, subject to certain exceptions. Section 3102(e)(10)
provides for limited disclosures of tax information, in the discretion of the Commissioner, for purposes of
investigating whether a licensee is “in good standing with respect to or in full compliance with a plan to
pay any and all taxes due.” In addition, section 3113(b) requires that licensees certify that they are in good
standing as a condition of licensure. Section 3113(g) provides, in pertinent part, that “[f]or purposes of this
section, a person is in good standing with respect to any and all taxes payable if . . . no taxes are due and
payable and all returns have been filed.” 32 V.S.A. § 3113(g)(1) (emphasis added). Thus, a failure to file
a tax return, by itself, can result in a declaration by the Department of Taxes that a taxpayer is not in good
standing.
5
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.
6
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 . . . knowingly
fail to respond to a lawful demand for information from [a] . . . disciplinary authority . . . .”
V.R.Pr.C. 8.1(b).
Disciplinary Counsel repeatedly communicated with Respondent seeking documentation
that Respondent had filed the requisite tax returns or, alternatively, an explanation for why
Respondent had not done so and a proposed schedule to complete the filings. These demands for
information were made using contact information that Respondent provided to the Court
Administrator’s Office and the Family Division of the court system. Respondent was obligated to
respond to these requests. See, e.g., Attorney Grievance Commission v. Lewis, 85 A.3d 865, 874
6
The Panel notes that when a respondent is defending against a charge of violation of probation it
is necessary for Disciplinary Counsel to demonstrate the violation by clear and convincing evidence. See
A.O. 9, Rule 8(A)(6)(c). But where the charges have been deemed admitted based on Respondent’s default
there is no need for the Panel to evaluate the relative probative value of the factual material presented by
Disciplinary Counsel in support of the charges. In any event, if the Panel were required to assess the relative
strength of the factual basis for the charges, the Panel would conclude that there was sufficient evidence
presented, consisting of: (1) the inability of the Department of Taxes to certify that Respondent is in good
standing with respect to her obligations as a taxpayer; and (2) the absence of any affidavit from Respondent
indicating compliance with the terms of probation. See A.O. 9, Rule 8(A)(6)(b) (“Probation shall be
terminated upon the filing of an affidavit by the respondent showing compliance with the conditions and
an affidavit by the probation monitor stating that probation is no longer necessary . . .”).
7
(Md. Ct. App. 2014) (respondent violated Rule 8.1(b) each time he failed to respond to letters,
emails, and voice mail messages from disciplinary counsel and investigator).
The Panel concludes that Respondent knowingly failed to respond to these inquiries.
Disciplinary Counsel was able to confirm Respondent’s mailing address and phone number
through the successful contact made by the docket clerk of the Family Division. Moreover, the
certified return receipt accompanying the Panel’s Decision on the Motion to Deem Charges
Admitted and Notice of Hearing, which bears Respondent’s name and signature, further confirms
that the mailing address used repeatedly by Disciplinary Counsel in her attempt to contact
Respondent was accurate.
Under Vermont law, “when a letter, properly addressed, is mailed there is a presumption of
its receipt in due course.” Mary Fletcher Hosp. v. City of Barre, 117 Vt. 430, 431, 94 A.2d 226,
228 (1953). Thus, even assuming Respondent did not actually receive the voice mail messages
left for her by Disciplinary Counsel, there is a presumption that the April 10, 2017 letter was
received by Respondent.
In addition, Respondent failed to respond to Disciplinary Counsel even after having been
served personally by the sheriff with the Petition of Misconduct – which included allegations that
she had failed to respond to requests for information – and after acknowledging delivery on
December 24, 2017 of the Panel’s decision deeming the charges admitted and scheduling the
sanctions hearing. Simply put, Respondent could not claim that she acted without knowledge.
And, in any event, Respondent admitted the violation of Rule 8.1(b) by failing to contest the
Petition.
In sum, Respondent has repeatedly violated Rule 8.1(b) and continues to be in violation of
Rule 8.1(b) at this time.
SANCTIONS DETERMINATION
The Vermont Rules of Professional Conduct “are ‘intended to protect the public from
persons unfit to serve as attorneys and to maintain public confidence in the bar.’” In re PRB
8
Docket No. 2006-167, 2007 VT 50, ¶ 9, 181 Vt. 625, 925 A.2d 1026 (quoting In re Berk, 157 Vt.
524, 532, 602 A.2d 946, 950 (1991)). The purpose of sanctions is not “to punish attorneys, but
rather to protect the public from harm and to maintain confidence in our legal institutions by
deterring future misconduct.” In re Obregon, 2016 VT 32, ¶ 19, 201 Vt. 463, 145 A.3d 226(quoting In re Hunter, 167 Vt. 219, 226, 704 A.2d 1154, 1158 (1997)); see also ABA Center for
Professional Responsibility, Standards For Imposing Lawyer Sanctions (1986) (amended 1992)
(“ABA Standards”), Purpose and Nature of Sanctions, § 1.1 at 19 (“The purpose of lawyer
discipline proceedings is to protect the public and the administration of justice from lawyers who
have not discharged, will not discharge, or are unlikely properly to discharge their professional
duties to clients, the public, the legal system, and the legal profession.”).
Applicability of the ABA Standards for Imposing Lawyer Sanctions
Hearing Panels are guided by the ABA Standards when determining appropriate sanctions
for violation of the Vermont Rules of Professional Conduct:
When sanctioning attorney misconduct, we have adopted the ABA Standards
for Imposing Lawyer Discipline which requires us to weigh the duty violated,
the attorney’s mental state, the actual or potential injury caused by the
misconduct, and the existence of aggravating or mitigating factors.
In re Andres, 2004 VT 71, ¶ 14, 177 Vt. 511, 857 A.2d 803 (mem.).
Depending on the importance of the duty violated, the level of the attorney's culpability,
and the extent of the harm caused, the standards provide a presumptive sanction. See V.R.Pr.C.,
Scope, ¶ 19 (explaining that severity of sanction “depend[s] on all the circumstances, such as the
willfulness and seriousness of the violation, extenuating factors and whether there have been
previous violations”). The presumptive sanction can then be altered depending on the existence
of aggravating or mitigating factors.” In re Fink, 2011 VT 42, ¶ 35, 189 Vt. 470, 22 A.3d 461.
The Duty Violated
The nature of the duty violated by a lawyer helps to inform the applicable sanctions
standard. The ABA Standards “assume that the most important ethical duties are those obligations
9
which a lawyer owes to clients.” ABA Standards, Part II, Theoretical Framework, at 5. Other
duties recognized by the ABA Standards are owed to the general public, the legal system, and the
legal profession. Id.Respondent’s continuing failure to file her income tax returns, as required by PRB Decision
196, is a violation of Respondent’s duty owed to the public. As the hearing panel observed when
it concluded in PRB Decision 196 that Respondent had violated Rule 8.4(c) of the Vermont Rules
of Professional Conduct, the failure to file income tax returns is a crime under 32 V.S.A. § 5894(b)
and reflects adversely on a lawyer’s fitness to practice law. Respondent’s violation of Rule 8.4(c)
breached a duty to the public to maintain the highest standard of integrity. See PRB Decision 196,
7/18/16, at 13; see also ABA Standards, Part II, Theoretical Framework, at 5 (duties to the general
public encompass the expectation that lawyers “exhibit the highest standards of honesty and
integrity”). Respondent’s violation of the terms of the condition of probation that was designed to
correct Respondent’s violation essentially continues the same violation under Rule 8.4(c) and,
therefore, breaches the same duty to the public.
Respondent’s failure to respond to Disciplinary Counsel’s inquiries violated a duty to the
legal profession. See id. at 6 (the duties associated with Model Rule 8.1 “are not inherent in the
relationship between the professional and the community,” but rather implicate an ethical concern
for “maintaining the integrity of the profession”).
Mental State
The second factor to be considered is the lawyer’s mental state. “The lawyer’s mental state
may be one of intent, knowledge, or negligence.” ABA Standards, § 3.0, Commentary, at 27.
“[W]hen assessing a lawyer's mental state for purposes of imposing sanctions, we look to his state
of mind relative to the consequences of his misconduct rather than the duty violated.” See, e.g.,
In re Disciplinary Proceeding Against Eugster, 209 P.3d 435, 448 (Wa. 2009).
For purposes of the sanctions inquiry, “[a lawyer’s] mental state is [one] of intent, when
the lawyer acts with the conscious objective or purpose to accomplish a particular result.” ABA
10
Standards, Part II, Theoretical Framework, at 6. The mental state of “knowledge” is present “when
the lawyer acts with conscious awareness of the nature or attendant circumstances of his or her
conduct [but] without the conscious objective or purpose to accomplish a particular result.” Id.The mental state of “negligence” is present “when a lawyer fails to be aware of a substantial risk
that circumstances exist or that a result will follow, which failure is a deviation from the standard
of care that a reasonable lawyer would exercise in the situation.” Id.; see also id., Part III, Black
Letter Rules and Commentary, Definitions, at 19 (definitions of “intent,” “knowledge,” and
“negligence”).
The distinction between “knowing” and “negligent” misconduct has been explained as
follows: “[W]as the lawyer aware of the circumstances that formed the basis for the violation? If
so, the conduct was done knowingly. If the lawyer instead acted without awareness, but below the
accepted standard of care, then he acted negligently. Application of these definitions is fact-
dependent.” In re Fink, 2011 VT 42, ¶ 38.7
The Panel concludes that Respondent’s mental state was that of “knowledge.” Respondent
stipulated to the entry of the order in PRB Decision 196 and, therefore, was aware of her obligation
under the order to file the tax returns and failed to take action.
Moreover, as described above, Respondent was reminded of her obligation to file the tax
returns by her receipt of the April 10, 2017 letter from Disciplinary Counsel, as well as by the
personal service on her of the Petition of Misconduct and her receipt in December 2017 by certified
mail of the Panel’s ruling that granted the motion to deem the charges admitted and that scheduled
the sanctions hearing. For all these reasons, the Panel concludes that Respondent knew that she
was failing to file the requisite tax returns and knowingly failed to respond to Disciplinary
Counsel’s demands for information.
7
Moreover, “[t]he line between negligent acts and acts with knowledge can be fine and difficult to
discern . . . .” Id.11
Injury and Potential Injury
The ABA Standards require the Hearing Panel to consider “the actual or potential injury
caused by the lawyer’s misconduct.” ABA Standards, § 3.0(c), at 26. The term “injury” is defined
as “harm to a client, the public, the legal system, or the profession which results from a lawyer’s
misconduct. The level of injury can range from ‘serious’ injury to ‘little or no’ injury.” Id., Part
III, Definitions, at 9. The term “potential injury” refers to harm that is “reasonably foreseeable at
the time of the lawyer’s misconduct, and which, but for some intervening factor or event, would
probably have resulted from the lawyer’s misconduct.” Id. Under the ABA Standards, “[t]he
extent of the injury is defined by the type of duty violated and the extent of actual or potential
harm.” Id., Part II, Theoretical Framework, at 6.
This case does not involve any injury to a client. Moreover, it is not known whether or not
Respondent owes any taxes and, if so, in what amount.8 Nevertheless, the general public and the
profession have been harmed by Respondent’s conduct and continue to be harmed while these
violations continue. A lawyer’s failure to file income tax returns calls into question the integrity
of the offending attorney and the profession at large in the eyes of the public. Likewise,
Respondent’s failure to cooperate with Disciplinary Counsel’s investigation “injured 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.
Presumptive Standard under the ABA Standards
The Panel concludes that § 7.2 of the ABA Standards is applicable in this case. It states as
follows: “Suspension is generally appropriate when a lawyer knowingly engages in conduct that
is a violation of a duty owed as a professional and causes injury or potential injury to a client, the
8
Because of Respondent’s failure to file the tax returns in question, the general confidentiality
provisions surrounding tax-related information, and the limitation on information available from the
Department of Taxes, it is not possible to determine whether Respondent owes any taxes or not.
12
public or the legal system.” ABA Standards, § 7.2. Respondent has knowingly engaged in conduct
that violates her duty to maintain personal integrity by continuing her failure to file the requisite
income tax returns while also failing to respond to inquiries from Disciplinary Counsel and, as a
result, has caused injury to the public.9
Although Disciplinary Counsel does not address § 8.2 of the ABA Standards, the Panel
concludes that it is also pertinent. It provides as follows:
Suspension is generally appropriate when a lawyer has been reprimanded for
the same or similar misconduct and engages in further similar acts of
misconduct that cause injury or potential injury to a client, the public, the
legal system, or the profession.
Id. § 8.2.
Respondent has disregarded her obligation under the prior disciplinary decision that
directed her to file her income tax returns as a condition of her probation, thereby engaging in
further violations that harm the public. She was publicly reprimanded for her conduct in the prior
decision. Her disregard of the prior decision now justifies a suspension.
On its face, the standard that provides for the more severe sanction of disbarment might be
considered applicable in this case. It provides, in pertinent part, as follows:
Disbarment is generally appropriate when a lawyer intentionally or
knowingly violates the terms of a prior disciplinary order and such violation
causes injury or potential injury to a client, the public, the legal system, or
the profession . . . .
Id. § 8.1(a) (emphasis added).
Here, the Panel has concluded that Respondent knowingly violated the express terms of a
prior disciplinary order with resulting injury to the public. However, the Panel concludes that the
less severe sanction of suspension under § 8.2 is more appropriate in this case. Various
jurisdictions have recognized the principle of “gradual gradation” that favors the imposition of
9
The Panel concludes that it should not apply the standard in § 7.1 that provides for disbarment
when the lawyer engages in such conduct “with the intent to obtain a benefit for the lawyer or another, and
causes serious or potentially serious injury to a client, the public, or the legal system.” Even leaving aside
the question of the degree of injury caused by Respondent, there is no evidence in this case that Respondent
has sought to benefit herself through her conduct.
13
graduated sanctions over successive disciplinary actions in cases under § 8.0, depending on the
severity of the conduct and provided the public is protected. See, e.g., In re Davis, 889 P.2d 621,
624 (Ariz. 1995) (“Regarding the discipline of a lawyer previously sanctioned, we have determined
that a graded response from reprimand, to suspension, to disbarment is sometimes appropriate,
depending on the severity of the subsequent conduct.”) (quotation omitted). In Davis, the
respondent had been previously reprimanded for misconduct and subsequently violated the terms
of her probation and failed to cooperate with the disciplinary authorities. Citing the “graded
response” principle, the Court imposed a suspension under the standard in
§ 8.2. Id. at 624.
The Panel concludes that a graduated sanction of suspension, as opposed to disbarment, is
more appropriate in this case in light of the fact that the misconduct involves a term of probation
and does not involve any harm to any client. Respondent was previously reprimanded. Her
continued violation of the probation order merits a suspension. In sum, § 8.2 is pertinent and calls
for suspension as a presumptive standard.10
The ABA Standards state that when there are multiple instances of misconduct, “[t]he
ultimate sanction imposed should at least be consistent with the sanction for the most serious
instance of misconduct among a number of violations . . . .” ABA Standards, Part II, Theoretical
Framework, at 7. In sum, the Panel concludes that suspension is the appropriate presumptive
sanction.
Aggravating and Mitigating Factors Analysis
Having concluded that suspension is the presumptive sanction that applies in this case, the
Panel must consider any aggravating and mitigating factors and whether they call for a lesser or
10
It should be noted that in Davis the Court rejected, even in the absence of any harm to a client,
the respondent’s request for extension of the probationary terms as an alternative to suspension, reasoning
as follows: “Merely extending the probation or adding additional terms would not provide her or other
lawyers with a meaningful indication of the seriousness of violating probationary terms and ignoring the
State Bar's information requests.” Id. The Panel endorses this same reasoning in concluding that a lesser
sanction would not be appropriate in this case and that a suspension is the appropriate presumptive standard.
14
greater sanction than is presumed under the applicable standards. Aggravating standards are “any
considerations, or factors that may justify an increase in the degree of discipline to be imposed.”
ABA Standards, § 9.21, at 50. Mitigating factors are “any considerations or factors that may justify
a reduction in the degree of discipline to be imposed.” Id. § 9.31, at 50-51. Following this analysis,
the Panel must decide on the ultimate sanction that will be imposed in this proceeding.
(a) Aggravating Factors
Section 9.22 of the ABA Standards sets forth a list of aggravating factors. Id. § 9.22, at
50. The following aggravating factors are present:
• § 9.22(a) (prior disciplinary offense) – Respondent was previously disciplined in PRB
Decision 196.
• § 9.22(c) (a pattern of misconduct) – Respondent has engaged in a pattern of
misconduct by repeatedly disregarding Disciplinary Counsel’s requests for information
and failing over an extended period of time to file her income tax returns with the
Vermont Department of Taxes.
• § 9.22(i) (substantial experience in the practice of law) – Respondent was admitted to
practice in 1989 and therefore has substantial experience in the practice of law.
• § 9.22(k) (illegal conduct) – The failure to file income tax returns is a crime under
Vermont law. See 32 V.S.A. § 5894(b).
(b) Mitigating Factors
Section 9.32 of the ABA Standards sets forth a list of mitigating factors. ABA Standards,
§ 9.32, at 51. Because Respondent did not participate in this proceeding, the Panel does not have
the benefit of any evidence Respondent might have presented and there is no other evidence in the
record in support of any mitigating factor.11
11
The hearing panel in PRB Decision 196 found that a highly contentious divorce proceeding had
contributed to Respondent’s emotional stress and recognized a mitigating factor under § 9.32(c) on that
basis. See PRB Decision 196, at 10-11. However, due to the passage of time since that decision issued in
July 2016 – and the continuation of Respondent’s failure to file the income tax returns and the subsequent
15
(c) Weighing the Aggravating Mitigating Factors
The Panel concludes that the aggravating factors outweigh the mitigating factors.
Therefore, there is no basis for imposing a less severe sanction. Suspension is appropriate. At the
same time, the Panel does not view the disproportionate balance as justifying an upward
adjustment to the sanction of disbarment. In sum, the Panel believes that a graduated response is
appropriate in this case.
* * *
The ABA Standards state that “[g]enerally, suspension should be for a period of time equal
to or greater than six months, but in no event should the time period prior to application for
reinstatement be more than three years.” ABA Standards, Part IV, Standards for Imposing
Sanctions, at 20. The recommendation of a minimum length of suspension is persuasive but not
binding on the Panel. See, e.g., In re McCarty, 164 Vt. 604, 605, 665 A.2d 885, 887 (1995)
(“periods of suspension of less than six months are appropriate in some circumstances”); In re
Blais, 174 Vt. 628, 631, 817 A.2d 1266, 1270 (2002) (five-month suspension plus probation
imposed).
The Panel must ultimately determine the length of the suspension that will be imposed
based on all the considerations presented. Having in mind that “[i]n general, meaningful
comparisons of attorney sanction cases are difficult as the behavior that leads to sanction varies so
widely between cases,” In re Strouse, 2011 VT 77, ¶ 43, 190 Vt. 170, 34 A.3d 329 (Dooley, J.,
dissenting), the Panel has considered prior disciplinary determinations to inform its ultimate
determination. The Court has imposed substantial suspensions in cases involving the failure to
failure to respond to Disciplinary Counsel’s inquiries – the Panel cannot rely on the findings and
conclusions in PRB Decision 196 to assess mitigating factors in this proceeding. The Panel also notes that
Respondent was involved in a more recent dispute with her ex-husband in the Family Division, which
commenced in April of 2017 and concluded with a merits decision in September 2017. See Exhibit DC-8
(redacted docket entries in McCoy-Jacien v. Jacien, Docket No. 455-11-16 Rdfa, Relief from Abuse
Proceeding). However, in the absence of any testimony from Respondent, the Panel cannot draw any
conclusion as to whether the dispute caused Respondent emotional problems that impacted the misconduct
adjudicated in this disciplinary proceeding.
16
file income tax returns. See, e.g., In re Free, 159 Vt. 625, 625, 616 A.2d 1140, 1140 (1992) (six-
month suspension); In re Massucco, 159 Vt. 617, 617, 613 A.2d 718, 718 (1992) (four-month
suspension). More recently, in In re Obregon, 2016 VT 32, ¶ 26, 201 Vt. 463, 145 A.3d 226(2016), the Court accepted a recommended sanction of a public reprimand for an attorney who
failed to file income tax returns.
Obregon is readily distinguishable. That case did not involve a violation of probation. In
addition, the panel relied heavily on the presence of compelling mitigating factors in selecting the
lesser sanction. Id. Indeed, the Court deferred to the panel on that basis while at the same time
noting that the respondent’s conduct “could [have] warrant[ed] a suspension, especially because
the conduct could have been charged as a crime and prior cases involved suspensions for similar
conduct.” Id.The decisions in Free and Massucco involved less egregious behavior than is presented
here. The respondents in those cases had come into compliance with their tax obligations at the
time the sanction was imposed. See In re Free, 159 Vt. at 626 (panel finding that respondent had
subsequently “paid all back taxes due, including all penalties and interest, and met all his current
tax obligations under the laws of Vermont”); In re Massucco, 159 Vt. at 617 (same). In addition,
those cases did not involve any failure to respond to requests for information from Disciplinary
Counsel.
Based on the circumstances presented in this case, the Panel concludes that a longer
suspension is appropriate. Respondent has violated the terms of probation set forth in an earlier
disciplinary order and those violations are continuing. Moreover, Respondent has repeatedly
disregarded Disciplinary Counsel’s requests for information designed to ensure that she timely file
her income tax returns. And those requests currently remain outstanding. The fact that the conduct
in question – failure to file income tax returns – is a crime under Vermont law compounds these
continuing violations. Under these circumstances a longer suspension than the ones imposed in
Free and Masucco is appropriate.
17
Based on all of the foregoing considerations, the Panel will impose a nine-month
suspension as a sanction. In addition, because Respondent will be required to apply for
reinstatement if she wants to resume the practice of law, see A.O. 9, Rule 22(B) (“A lawyer who
has been suspended for six months or longer shall comply with paragraph D of this rule.”); id.,
Rule 22(D) (requiring motions for reinstatement to be filed and specifying related procedures and
standards for reinstatement); id., the Panel will impose two additional conditions that will apply in
the event of any application by Respondent for reinstatement: First, Respondent will have to
demonstrate that she has fully complied with the terms of the July 18, 2016 Order issued in PRB
Decision 196; and, second, because of her failure to appear and participate in this disciplinary
proceeding, Respondent will also be required to provide a detailed explanation for her lack of
participation. See In re Hongisto, 2010 VT 51, ¶ 19, 188 Vt. 553, 998 A.2d 1065 (requiring
“detailed explanation” as a condition in connection with any application for reinstatement due to
“failure to participate in any of these proceedings”).12
ORDER
It is hereby ORDERED, ADJUDGED and DECREED as follows:
1. Respondent, Phyllis McCoy-Jacien, Esq., has violated A.O. 9, Rule 8(a)(6)(C) and
V.R.Pr.C. Rule 8.1(b), as set forth above;
12
During the sanctions hearing, Disciplinary Counsel requested for the first time that the Panel
award costs against Respondent as a further sanction, as provided in A.O. 9, Rule 8(A)(8). Rule 8 lists the
assessment of costs along with other potential sanctions that may be considered by the hearing panel. Cf.
V.R.C.P. 54(d)(1) (costs “shall be allowed as of course to the prevailing party . . . unless the court otherwise
specifically directs”). Thus, an award of costs is discretionary under Rule 8(A)(8). In the typical civil case,
requests for costs are submitted after a merits decision has been rendered, with an itemized list of costs and
sufficient supporting documentation to allow the trier to evaluate the relevance and reasonableness of each
item with respect to the litigation and to furnish proof that the cost was incurred. The Panel concludes that
a post-decision motion is the best procedure to utilize when requesting costs. The Panel also wishes to
point out that “costs” do not encompass “attorney’s fees,” see State v. Whitingham School Board, 140 Vt.
405, 409, 438 A.2d 394, 397 (1981), and that because Respondent did not defend against the charges any
costs awarded in this proceeding would likely be limited. The Panel requests that, before deciding whether
to proceed with a motion for costs, Disciplinary Counsel consider whether any likely recovery of costs
would justify the time and effort (and related cost to the Professional Responsibility Program) that would
be required to assemble a proper motion and to obtain an adjudication from the Panel.
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2. Respondent is suspended from the office of attorney and counselor at law for a period
of nine (9) months effective from the date of this decision;
3. In the event that Respondent files a motion seeking permission to resume the practice
of law, she shall be required to demonstrate, as part of the proceeding under A.O. 9, Rule 22(D),
that she has fully complied with the terms of the July 18, 2016 Order issued in In re Phyllis McCoy-
Jacien, PRB Decision No. 196 (PRB File No. 2016-023); and
4. In the event that Respondent files a motion seeking permission to resume the practice
of law, she shall be required to provide, as part of the proceeding under A.O. 9, Rule 22(D), a
detailed explanation for her lack of participation in this disciplinary proceeding.
BY THE COURT:
Paul L. Reiber, Chief Justice
Publish
Marilyn S. Skoglund, Associate Justice
Do Not Publish
Beth Robinson, Associate Justice
Harold E. Eaton, Jr., Associate Justice
Karen R. Carroll, Associate Justice
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