In re Christena Obregon, Esq. , 201 Vt. 463 ( 2016 )

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court,
109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may
be made before this opinion goes to press.
2016 VT 32No. 2015-250
In re Christena Obregon, Esq. Supreme Court
Original Jurisdiction
From
Professional Responsibility Board
January Term, 2016
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. DOOLEY, J. 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).1 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 counsel2 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
1
The consequences of such a determination are discussed beginning at infra ¶ 12.
2
The case was actually prosecuted by the Deputy Disciplinary Counsel, who appeared in
this Court as the representative for the Office of Disciplinary Counsel.
2
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.
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¶ 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 penalties, late fees and interest on those
fees.
¶ 9. The panel accepted both the stipulation and recommendation in July 2015 and
imposed a public reprimand.
¶ 10. This Court ordered review of the panel’s decision on its own motion. See A.O. 9,
Rule 11(E). We requested briefing on two issues: (1) the effect in this case of filing an attorney
license renewal form certifying that a licensee is in good standing with respect to the payment of
all state taxes; and (2) whether, in this case, a suspension of licensee, as urged by the Office of
Disciplinary Counsel, is appropriate. We affirm the panel’s determination that disciplinary
counsel did not show probable cause to find that licensee wrongfully certified she was in good
standing with respect to her tax obligations and further conclude that a public reprimand, rather
than a suspension, is the appropriate sanction.
¶ 11. On review, we must accept “the Panel’s findings unless they are clearly
erroneous.” In re Farrar, 2008 VT 31, ¶ 5, 183 Vt. 592, 949 A.2d 438; A.O. 9, Rule 11(E). In
this case, because of the stipulation of facts, there is no conflict as to the applicable facts on
which the panel’s decision was made.3 The panel’s findings, “whether purely factual or mixed
legal and factual, are upheld if they [are] clearly and reasonably supported by the evidence. ” In
3
The panel’s probable cause decision was made ex parte based on facts presented by the
prosecutor. Nevertheless where, as here, the parties have entered into a stipulation of facts that
controls the decision on the merits, the probable cause determination has been overtaken by later
events. Even if the panel’s decision on probable cause with respect to the license renewal
statements was erroneous, the stipulation of facts and the admissions of the prosecutor establish
that disciplinary counsel cannot prove that licensee misrepresented her tax status on the licensing
statements. In essence, we are reaching the same result as the panel but on different grounds.
4
re Berk, 157 Vt. 524, 527, 602 A.2d 946, 947 (1991) (quotation omitted). We make our own
determination as to which sanctions are appropriate, but we nevertheless “give deference to the
Board’s recommendation.” In re Anderson, 171 Vt. 632, 634, 769 A.2d 1282, 1284 (2000)
(mem.); see also In re Karpin, 162 Vt. 163, 173, 647 A.2d 700, 706 (1993) (“Although the
Board’s recommended sanction of disbarment is not binding upon this Court, it is accorded
deference.”).
¶ 12. We begin by examining Administrative Order 41, which governs the licensing of
attorneys. Section 7 states that the attorney licensing statement shall include “a certification that
the attorney is in good standing with respect to any and all taxes due to the State of Vermont.”
A.O. 41, § 7. An individual is authorized to certify and sign the statement if the individual meets
any of the following conditions in § 8:
An attorney is in good standing with respect to any and all taxes
due to the State of Vermont if the attorney:
(a) has paid all taxes due to the State of Vermont;
(b) has entered into an agreement with the Commissioner
of Taxes for becoming current on an unpaid tax obligation;
(c) has appealed the alleged obligation;
(d) has requested the Commissioner of Taxes to abate the
unpaid tax claim for good cause; or
(e) has filed a court challenge to the claim.
¶ 13. The provision with respect to taxes on the licensing statement was adopted to
implement 32 V.S.A. § 3113. See Vt. Supreme Court Order, adopted Jan.19, 1993, effective
Mar. 1, 1993 (adopting amendment to Rule on Licensing of Attorneys). Section 3113(b)
provides in the pertinent part:
No agency of the State shall grant, issue, or renew any license or
other authority to conduct a trade or business (including a license
to practice a profession) . . . unless such person shall first sign a
written declaration under the pains and penalties of perjury that the
person is in good standing with respect to or in full compliance
with a plan to pay any and all taxes due as of the date such
declaration is made.
Subsection (f) provides:
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Upon written request by the Commissioner and after notice and
hearing to the licensee as required under any applicable provision
of law, an agency shall revoke or suspend any license or other
authority to conduct a trade or business (including a license to
practice a profession) issued to any person if the agency finds that
taxes administered by the Commissioner have not been paid and
that the taxpayer’s liability for such taxes is not under appeal. For
purposes of such findings, the written representation to that effect
by the Commissioner to the agency shall constitute prima facie
evidence thereof.
In 1991, the Legislature added subsection (h), which made a statement subscribed to under the
section and not “true and correct as to every material matter” a felony. See 1991, No. 67, § 2.
¶ 14. When originally enacted, § 3113(g) contained the definition of good standing
contained in § 8 of Administrative Order 41, as quoted above. See 1985, No. 263 (Adj. Sess.),
§ 4. In 1997, however, the Legislature amended § 3113(g)(1) to read: “(1) no taxes are due and
payable and all returns have been filed” (emphasis added); 1997, No. 50, § 9. Administrative
Order 41 was not updated to capture this addition.4
¶ 15. The parties agreed at oral argument that the definition of “in good standing” in
Administrative Order 41, rather than in 32 V.S.A. § 3113(g), governs this case. By its plain text,
Administrative Order 41 contains no requirement that an attorney timely file all returns to be
considered in good standing with respect to taxes. If a statute or other judicial or legislative
directive is unambiguously clear on its face, then it is not construed, but “enforced in accordance
with its express terms.” Sanders v. St. Paul Mercury Ins. Co., 148 Vt. 496, 504, 536 A.2d 914,
918 (1987) (quotation omitted); see also Smith v. Town of St. Johnsbury, 150 Vt. 351, 355, 554
A.2d 233, 237 (1988) (“Where the meaning of the words chosen is plain, we must give effect to
the words chosen.”). The disciplinary counsel urges that we read the requirement to timely file
tax returns into the good standing definition in § 8 of Administrative Order 41, but we find no
room in the plain meaning of the text for such an addition. Indeed, the Legislature’s addition of
4
Given the purpose to implement 32 V.S.A. § 3113, the failure to capture the change in
the definition of good standing was apparently an oversight.
6
the timely filing requirement to the definition of good standing in § 3113(g) is strong evidence
that the concept was not in the preexisting text.
¶ 16. In light of the wording of § 8 of Administrative Order 41, licensee committed no
violation. The parties stipulated that although licensee failed to make timely filings of returns,
she “did not owe any taxes” and in fact, for some of the tax years, was “entitled to a refund.”5
To that end, at the moment licensee made the certifications in question, she had in fact “paid all
taxes due to the State of Vermont.” It is irrelevant, as disciplinary counsel suggested at oral
argument, that licensee did not know if she owed taxes when she made the certifications because
she had not filed any returns. The order contains no language suggesting that an attorney’s
mental state is determinative of whether or not they are in good standing, and we see no reason
to impose such a requirement here.
¶ 17. We therefore conclude that under the plain language of Administrative Order 41
licensee was in good standing with respect to all taxes owed to Vermont in 2009 and 2011.
Because she made no misrepresentation when electronically renewing her attorney license, we
affirm the panel’s finding of no probable cause on the charge arising from her certification on the
licensing renewal.
¶ 18. We next consider whether the sanction imposed by the panel—a public
reprimand—is the appropriate sanction. The parties agreed to that sanction, and the panel
imposed it, but our order of review specified that the parties should address whether suspension
is a more appropriate sanction. In reaching the stipulation, the parties agreed to two mitigating
factors—personal problems and remorse—and three aggravating factors—a prior disciplinary
offense, a pattern of misconduct, and substantial experience in the practice of law. Disciplinary
counsel has taken the position that suspension is the appropriate sanction if licensee
misrepresented her tax standing on her licensing statement but has otherwise supported the
5
Disciplinary counsel conceded at oral argument that penalties, late fees, or interest
should not be considered taxes for purposes of § 8 of Administrative Order 41.
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stipulation. Because we find that licensee made no misrepresentations and in consideration of
the mitigating factors licensee has presented, we agree with the parties that a public reprimand is
sufficient in this case.
¶ 19. In 1999, the Vermont Supreme Court adopted the Rules of Professional Conduct,
which were based upon the American Bar Association’s Model Rules of Professional Conduct.
The American Bar Association’s Standards for Imposing Lawyer Sanctions (ABA Standards)
guide our disciplinary sanctions. In re Fink, 2011 VT 42, ¶ 35, 189 Vt. 470, 22 A.3d 461. 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 Hunter, 167
Vt. 219, 226, 704 A.2d 1154, 1158 (1997); see also In re Warren, 167 Vt. 259, 263, 704 A.2d
789, 792 (1997) (“Sanctions are intended to protect the public from lawyers who have not
properly discharged their professional duties and to maintain public confidence in the bar.”).
¶ 20. The Vermont Rules of Professional Conduct specifically provide that “[e]very
lawyer is responsible for observance of the Rules of Professional Conduct.” V.R.Pr.C.,
Preamble. Rule 8.4(c) prohibits lawyers from “engag[ing] in conduct involving dishonesty,
fraud, deceit and/or misrepresentation.” Generally, the rule prohibits lawyers from engaging in
unethical conduct “that calls into question an attorney’s fitness to practice law.” In re PRB
Docket No. 2007-046, 2009 VT 115, ¶ 9, 187 Vt. 35, 989 A.2d 523. We added in PRB Docket
No. 2007-046 that “many kinds of illegal conduct reflect adversely on fitness to practice law,
such as . . . the offense of willful failure to file an income tax return.” Id. ¶ 13 (quotation and
citation omitted).
¶ 21. Failure to file an income tax return is a crime. 32 V.S.A. § 5894(b). In In re
Calhoun, we noted that the failure to file income tax returns is professional misconduct because
“not only [is it] a failure to perform a duty imposed by law on income-earning citizens generally,
it is a breach of responsibility that tends to discredit the legal profession which the respondent, as
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a member of the bar, is obligated to uphold with strict fidelity.” 127 Vt. 220, 220, 245 A.2d 560,
560 (1968) (per curiam).
¶ 22. We turn to the ABA Standards. ABA Standard § 5.1 provides that sanctions are
generally appropriate in cases involving conduct “that reflects adversely on the lawyer’s honesty,
trustworthiness, or fitness as a lawyer.” Section 5.12 states that suspension is appropriate when a
lawyer knowingly engages in non-serious conduct that “seriously adversely reflects on the
lawyer’s fitness to practice.” Further, § 7.2 notes that suspension is also an appropriate sanction
“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 . . . the legal system.”
¶ 23. The ABA Standards provide four factors for a court to consider in determining the
discipline to impose in the individual case: (a) the duty violated; (b) the lawyer’s mental state; (c)
the potential or actual injury caused by the lawyer’s misconduct; and (d) the existence of any
aggravating or mitigating factors. ABA Standards § 3.0(a)–(d). The ABA Standards generally
impose a duty upon attorneys to maintain personal integrity. ABA Standard § 5.1. The specific
duty violated is expressed in Calhoun above. Licensee stipulated that she intentionally and/or
knowingly failed to timely file her personal income tax returns, a fact evidenced by her seeking
an extension for filing of a return in 2007. There is no indication that licensee’s conduct caused
any injury or potential injury to any client. Under the Calhoun standard, her actions injured the
legal profession.
¶ 24. With regard to the fourth factor, we evaluate all aggravating and mitigating
factors before imposing any sanctions. Aggravating factors may include “prior disciplinary
offenses, dishonest or selfish motive, a pattern of misconduct, multiple offenses, refusal to
acknowledge wrongful nature of conduct, vulnerability of [the] victim, and substantial
experience in the practice of law.” ABA Standard § 9.22; see also In re Warren, 167 Vt. at 261,
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704 A.2d at 791; In re Blais, 174 Vt. 628, 630, 817 A.2d 1266, 1269 (2002). As stated above,
licensee stipulated to three aggravating factors. See ABA Standard § 9.22(a).
¶ 25. Mitigating factors may include “absence of prior disciplinary record, absence of
dishonest or selfish motive, personal or emotional problem, timely effort to rectify consequences
of the misconduct, character or reputation, remorse, and inexperience in the practice of law.”
ABA Standard § 9.32(c). The parties stipulated that in addition to expressing remorse for her
failure to file, licensee faced multiple personal and technological setbacks, including a serious
car accident and a series of computer crashes.
¶ 26. The panel acknowledged that licensee’s conduct could warrant a suspension,
especially because the conduct could have been charged as a crime and prior cases involved
suspensions for similar conduct. It accepted the recommendation of a public reprimand because
of the weight of the mitigating factors concerning licensee’s health and computer problems. In
accordance with the deference we extend to the panel’s sanction and our own acknowledgement
of the relevant factors, we agree with the stipulated recommendation of a public reprimand.
Affirmed.
FOR THE COURT:
Associate Justice
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