Opinion
2777 Disciplinary Docket 3 215 DB 2019
08-23-2022
OFFICE OF DISCIPLINARY COUNSEL, Petitioner v. VALERIE ANDRINE HIBBERT, Respondent
Attorney Registration No. 76306 (Delaware County)
ORDER
PER CURIAM.
AND NOW, this 23rd day of August, 2022, upon consideration of the Verified Statement of Resignation, Valerie Andrine Hibbert is disbarred on consent from the Bar of this Commonwealth. See Pa.R.D.E. 215. Respondent shall comply with all of the provisions of Pa.R.D.E. 217 and pay costs to the Disciplinary Board pursuant to Pa.R.D.E. 208(g).
RESIGNATION UNDER Pa.R.D.E. 215
VALERIE ANDRINE HIBBERT, JUDGE
VALERIE ANDRINE HIBBERT, hereby Lenders par unconditional resignation from the practice of law in the Commonwealth of Pennsylvania in conformity with Pa.R.D.E. 215 and further states as follows;
1. She was admitted to tho bar of the Commonwealth of Pennsylvania on or about November 28, 1995. Her attorney registration number is 76306.
2. Following a disciplinary investigation and hearing, by Order dated April 27, 2021 ("Suspension Order”), the Supremo Court or Pennsylvania:
a. suspended her law license for a period of one year and one day.
and
b. expressly directed her to comply with "all the provisions of Pa.R.D.E. 217.”
3. As of the suspension affective date, May 27, 2021, she became a 'formerly admitted attorney' pursuant to Pa.R.D.E. 102(a).
4. She failed lo comply with alt provisions of Pa.R.D.E. 217 as directed by the Suspension Order.
5. On May 4, 2022, the Office of Disciplinary Counsel filed a Petition for Rule to Show cause why she should not be held in Contempt ("Contempt Petition") for failing to comply with her Suspension Order and all provisions of Pa.R.D.E. 217, a copy of which with Exhibits is attached hereto and made apart hereof as Exhibit A.
6. On May 12, 2022, the Supremo Court issued an Order and Rule to Show Cause, which, inter alia, directed her to file a response to the Contempt Petition and comply with Pa.R.D.E. 217.
7. She foiled to file a response to the Contempt Petition and comply with Pa.R.D.E. 217 as directed.
8. On June 15, 2022. the Supreme Court issued an Order holding her in contempt ("Contempt Order”) and directed tho Disciplinary Board to schedule a disciplinary hearing on tho contempt finding, a copy of which is attached hereto and made apart hereof as Exhibit B.
9. In accordance with tho Contempt Order, by separate Order, the Disciplinary Board scheduled a disciplinary hearing ("Disciplinary Hearing") for August 9, 2022.
10. In light of the Contempt Order, she desires to submit her resignation.
11. Her resignation Is freely and voluntarily rendered; she is not being subjected to coercion or duress and she is fully aware of tho implications of submitting this resignation.
12. She acknowledges that she is fully aware of her right to consult and employ counsel lo represent her in the instant proceeding. She has not retained. consulted with and acted upon the advice of counsel in connection with her decision to execute the within resignation.
13. She is aware that there is presently pending an Investigation into the appropriate disciplinary action and sanction following entry of the Supreme Court's Contempt Order, the nature of which allegations have been mode known to her by service of the following documents, which contain tho material facts, upon which the Supreme Court found her in contempt and ordered the August 9, 2022 Disciplinary Hearing:
a. tho Contempt Petition with all Exhibits, attached hereto as Exhibit. A; and
b. the Contempt Order, attached hereto as Exhibit B.
14. She acknowledges that tho material facts contained In Exhibit A and Exhibit B are true.
15. She submits tho within resignation because she knows that she could not Successfully defend herself against the charges of professional misconduct sol forth in the attached Exhibits.
8. She is fully aware that the submission of this Resignation Statement is irrevocable and that she can only apply for reinstatement to tho practice of law pursuant to the provisions of Pa.R.D.E. 218(b) and (c).
9. She is aware that pursuant to Pa.R.D.E. 215(c) tho fact that she has tendered his resignation shall become a matter of public record immediately upon delivery of the resignation statement to Disciplinary Counsel or the Secretary of the Board
10. Upon entry of the order disbarring her on consent, she will promptly comply with the notice, withdrawal, resignation, trust account, and cease-and-desist provisions of Pa.R.D.E. 217 (a), (b), (c) and (d).
11. Alter entry of the order disbarring her on consent, she will file a verified statement of compliance as required by Pa.R.D.E. 217(e)(1).
12. She is aware that tho waiting period for eligibility to apply for reinstatement to the practice of law under Pa.R.D.E. 218(b) shall not begin until she files the verified statement of compliance required by Pa.R.D.E. 217(e)(1), and if tho order of disbarment contains a provision that makes the disbarment retroactive to an earlier date, then the waiting period will be deemed to have begin on that earlier date.
It is understood that the statements made herein are subject lo the penalties of 18 Pa.C.S., Section 4904 (relating to unsworn falsification to authorities).
EXHIBIT A
OFFICE OF DISCIPLINARY COUNSEL
PERSONAL AND CONFIDENTIAL Via First-Class Mail Prothonotary Supreme Court of Pennsylvania Western District Office 801 City-County Building 414 Grant Street Pittsburgh, PA 15219
Attention: John A. Vaskov, Esquire Deputy Prothonotary
Re: In the Matter of VALERIE ANDRINE HIBBERT No. 2777 DD No. 3 No. 215 DB 2019 Attorney Registration No. 76306 (Delaware County)
Dear Mr. Vaskov:
Enclosed please find for filing an original Petition for Rule to Show Cause Why Respondent Should Not Be Held in Contempt in the above matter, which has been PAC-filed on this date.
Very truly yours, Marie C. Dooley Disciplinary Counsel District II Office
Valerie Andrine Hibbert, Respondent
Marcee D. Sloan, Disciplinary Board Prothonotary
Thomas J. Farrell, Chief Disciplinary Counsel
Raymond S. Wierciszewski, Deputy Chief Disciplinary Counsel
Harold E. Ciampoli, Counsel-in-Charge, District II
PETITION FOR RULE TO SHOW CAUSE WHY RESPONDENT SHOULD NOT BE HELD IN CONTEMPT
Petitioner, Office of Disciplinary Counsel, by and through Thomas J. Farrell, Chief Disciplinary Counsel, and Marie C. Dooley, Disciplinary Counsel (hereinafter "ODC"), files the within Petition for Rule to Show Cause Why Respondent Should Not Be Held in Contempt and in support thereof avers as follows:
1. Petitioner, whose principal office is situated at Pennsylvania Judicial Center, 601 Commonwealth Avenue, Suite 2700, P.O. Box 62485, Harrisburg, Pennsylvania 17106, is invested, pursuant to Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement (hereinafter "Pa.R.D.E.), with the power and duty to investigate all matters involving alleged misconduct of any attorney admitted to practice law in the Commonwealth of Pennsylvania and to prosecute all disciplinary proceedings brought in accordance with the various provisions of said Rules.
2. Valerie Andrine Hibbert ("Respondent") was born on September 25, 1963.
3. Respondent was admitted to the practice of law in Pennsylvania on November 28, 1995.
4. By Order dated April 27, 2021, this Honorable Court:
a. suspended Respondent's law license for a period of one year and one day; and
b. expressly directed Respondent to comply with "all the provisions of Pa.R.D.E. 217."
A true and correct copy of the Suspension Order is attached hereto and made a part hereof as Exhibit A.
5. Pursuant to Pa.R.D.E. 217(d)(1), Respondent's suspension became effective on May 27, 2021.
6. On the effective date of Respondent's suspension, Respondent became a "formerly admitted attorney." Pa.R.D.E. 102(a).
7. This Honorable Court retains jurisdiction over Respondent. Jurisdiction arises from your Honorable Supreme Court's inherent and exclusive power to supervise the conduct of attorneys who are its officers pursuant to Pa.R.D.E. 103. The exclusive disciplinary jurisdiction of your Honorable Supreme Court extends to "[a]ny formerly admitted attorney, with respect to acts prior to suspension, . . ., or with respect to acts subsequent thereto which amount to the practice of law or constitute the violation of the Disciplinary Rules, these rules [the Rules of Disciplinary Enforcement] or rules of the Board adopted pursuant hereto." Pa.R.D.E. 201(a)(3). Emphasis added.
8. Pursuant to this Court's specific directive that Respondent "shall comply with all provisions of Pa.R.D.E. 217", the Order suspending Respondent required her to, inter alia:
a. promptly notify clients of her suspension and consequent inability to act as an attorney after the effective date of her suspension;
b. take all steps, as permitted during the 30-day period of the entry of the order and its effective date, to wind up and complete, on behalf of her clients, all matters which were pending on the entry date;
c. immediately refrain from accepting any new retainer or engaging as an attorney for another in any new case or legal matter of any nature;
d. close every IOLTA, trust, client and fiduciary account;
e. properly disburse or otherwise transfer all client and fiduciary funds in her possession, custody or control;
f. file with the Disciplinary Board within ten days of the effective date of her suspension a verified statement demonstrating that the provisions of the Suspension Order and the Pennsylvania Rules of Disciplinary Enforcement have been fully complied with; and
g. cooperate with ODC and respond completely to questions by Disciplinary Counsel regarding compliance with provisions of Pa.R.D.E. 217.
9. Under cover of letter dated April 27, 2021, Disciplinary Board Prothonotary Marcee D. Sloan provided Respondent with copies of inter alia:
a. the Suspension Order;
b. Pa.R.D.E. 217 and corresponding Board Rules;
c. Standard Guidance of the Disciplinary Board to Lawyers who have been Suspended Over One Year;
d. Non-Litigation (Form DB-23) and Litigation (Form DB-24) Notices of Disbarment, Suspension or Transfer to Inactive Status; and
e. Statement of Compliance (Form DB-25).
10. The April 27, 2021 correspondence was sent by certified and first-class mail to Respondent's Lansdowne office address, which remains her preferred address of record as identified in her 2020-2021 PA Attorney's Annual Fee Form pursuant to Pa.R.D.E. 219(d)(2)(ii) and was not returned to the Disciplinary Board Prothonotary's office as undeliverable.
11. A true and correct copy of the April 27, 2021 correspondence without enclosures is attached hereto and made a part hereof as Exhibit B.
12. Pa.R.D.E. 217(a) and (b) collectively require Respondent as a formerly admitted attorney to promptly notify all clients (litigation and nonlitigation alike) of her suspension, and her consequent inability to act as an attorney after the effective date of her suspension.
13. Pa.R.D.E. 217(c) requires Respondent as a formerly admitted attorney to promptly notify various third parties and the courts of her suspension.
14. The responsibility of Respondent as a formerly admitted attorney to provide the required notices continues for as long as she is suspended.
15. Pa.R.D.E. 217(d)(3) requires Respondent to, inter alia, close every IOLTA, Trust, client and fiduciary account and properly disburse or otherwise transfer all client and fiduciary funds in her possession, custody or control.
16. Pa.R.D.E. 217(e)(1) required Respondent, as a formerly admitted attorney, within ten days after the effective date of her suspension, on or before June 7, 2021, to file with the Disciplinary Board a verified statement averring and providing proof that she has fully complied with Pa.R.D.E. 217.
17. Under Pa.R.D.E. 217(e)(2), Respondent, as a formerly admitted attorney," . . . shall cooperate with Disciplinary Counsel and respond completely to questions by Disciplinary Counsel regarding compliance with the provisions of this Rule." Emphasis added.
18. This Honorable Supreme Court has stated that "[a]s a general matter, the disobedience of a court order, in the absence of the inability to comply with that order, constitutes contempt." ODC v. Marcone, 579 Pa. 1, 855 A.2d 654, fn. 4 (2004)(citing In re Kenneth Charles Jones, 572 Pa. 23, No. 531 DD No. 3 (Nov. 25, 2002).
19. To establish the failure to comply with a court order, the burden is on the complaining party, here, the ODC, to prove noncompliance by a preponderance of the evidence. Id. (citing Barrett v. Barrett, 368 A.2d 616 (Pa. 1977)).
I. RESPONDENT IS IN WILLFUL VIOLATION OF THE APRIL 27, 2021 ORDER REQUIRING HER TO COMPLY WITH ALL PROVISIONS OF PA.R.D.E. 217
20. Since May 27, 2021, pursuant to Pa.R.D.E. 102(a), Respondent remains a "formerly admitted attorney."
21. Respondent has not filed with the Disciplinary Board Prothonotary her Statement of Compliance as required by Pa.R.D.E. 217(e)(1).
22. By cover letter dated June 17, 2021, the Disciplinary Board Prothonotary:
a. attached a copy of the April 27, 2021 letter previously sent to Respondent;
b. advised it had not received the verified statement required by Pa.R.D.E. 217; and
c. stressed that Respondent's obligation to file the statement was a specific requirement of the order entered by this Honorable Court and her failure to file the statement had serious consequences.
23. The June 17, 2021 correspondence was sent by first-class mail to Respondent's office address, which remains her preferred address of record and was not returned to the Disciplinary Board Prothonotary's office as undeliverable.
24. A true and correct copy of the June 17, 2021 letter without enclosures is attached hereto and made a part hereof as Exhibit C.
25. On December 8, 2021, in connection with ODC files C2-21-353 (Complaint of Anthony Lamina-Lawrence) and C2-21-787 (Complaint of Alicia Burrell) ODC sent to Respondent by certified, first-class mail and email to vah963@gmail.com, her email address of record, a DB-7 Request for Statement of Respondent's Position ("December 8, 2021 DB-7"), which alleged, inter alia, Respondent had failed to:
a. notify Mr. Lamina-Lawrence and Ms. Burrell of her suspension and consequent inability to handle their legal matters;
b. promptly withdraw as counsel of record from Mr. Lamina Lawrence's legal matter and Ms. Burrell's divorce action; and
c. file a verified Statement of Compliance as required by Pa.R.D.E 217(e)(1).
26. A true and correct copy of the December 8, 2021 DB-7 is attached hereto and made a part hereof as Exhibit D.
27. The December 8, 2021 DB-7 additionally advised Respondent that regardless of whether she submitted a Statement of Position, she was required to produce any and all documentation evidencing her compliance with Pa.R.D.E. 217(d)(3).
28. On December 14, 2021, ODC sent to Respondent by certified, first-class mail and email to vah963@gmail.com, her email address of record, a letter dated December 14, 2021 ("ODC Demand Letter"), which:
a. included a copy of the December 8, 2021 DB-7;
b. reiterated ODC's request that Respondent provide ODC with any and all documentation evidencing her compliance with Pa.R.D.E. 217(d)(3);
c. advised that ODC had information Respondent had failed to close her Bryn Mawr Trust Company (n/k/a WSFS Bank) IOLTA, Account No. xxxxxx5565 ("BMT IOLTA"), holding approximately $10,000.00 of fiduciary funds;
d. reminded Respondent that Pa.R.D.E. 217(e)(1) required her to file with the Disciplinary Board a verified statement of compliance that included inter alia, evidence of the
closing of fiduciary accounts and documentation demonstrating the proper distribution of client and fiduciary funds;
e. advised she was required under Pa.R.D.E. 217(e)(2) to provide ODC by January 7, 2022:
i. documentation to demonstrate that she had filed her Statement of Compliance;
ii. evidence she had taken proper steps to close her fiduciary accounts; and
iii. proof she had properly distributed client and fiduciary funds;
f. notified Respondent that her continued failure to fulfill all Respondent's obligations under Pa.R.D.E. 217 and the Suspension Order may necessitate a filing with this Honorable Supreme Court to hold Respondent in Contempt of Court; and
g. enclosed copies of the December 8, 2021 DB-7 and the April 27, 2021 Suspension Order.
29. A true and correct copy of the ODC Demand Letter excluding enclosures is attached hereto and made a part hereof as Exhibit E.
30. From December 15, 2021 through December 21, 2021, Robert McHugh, ODC Investigator, made numerous attempts to personally serve Respondent with the December 8, 2021 DB-7 Letter, ODC Demand Letter and the April 27, 2021 Suspension Order.
31. Respondent was evasive and failed to cooperate with ODC regarding service.
32. A true and correct copy of Investigator McHugh's Affidavit regarding his service attempts on Respondent is attached hereto and made a part hereof as Exhibit F.
33. On December 21, 2021, Investigator McHugh personally served Respondent at her designated preferred address with copies of the:
a. December 8, 2021 DB-7;
b. ODC Demand Letter; and
c. April 27, 2021 Suspension Order.
34. A true and correct copy of the McHugh Affidavit of Service is attached as Exhibit G.
35. In response to the issuance of a subpoena, Bryn Mawr Trust provided to ODC on January 7, 2022 copies of Respondent's IOLTA bank records, which reveal Respondent failed to close her IOLTA and continues to hold $10,000.12 in fiduciary funds.
36. A copy of Respondent's November 30, 2021 bank statement is attached hereto and made a part hereof as Exhibit H.
37. Subsequent to being personally served on December 21, 2021 by Investigator McHugh, Respondent has not communicated in any manner with ODC.
38. To date, Respondent has failed to respond to:
a. the December 8, 2021 DB-7; and
b. the ODC Demand Letter regarding her compliance with Pa.R.D.E. 217.
39. Due to the unambiguous, mandatory language of the Rules and the Suspension Order, Respondent knew or should have known of her obligation to close all fiduciary financial accounts, notify clients/third parties of her suspension and duty to file the Statement of Compliance.
40. Notably, at Respondent's 2021 disciplinary hearing, Respondent's failure to properly disburse the BMT IOLTA funds was addressed at length on the record and directly contributed to her one year and one day suspension. A copy of the Report and Recommendations of the Disciplinary Board of the Supreme Court of Pennsylvania, dated February 17, 2021, is attached hereto and made a part here of as Exhibit I.
41. To date, Respondent has failed to fulfill her obligations under Pa.R.D.E. 217 including disbursing the fiduciary funds, closing her BMT IOLTA and filing her Statement of Compliance.
42. In addition to files C2-21-353 and C2-21-787, ODC has received and is investigating additional complaints from clients of Respondent alleging that she failed to notify them of her suspension and properly withdraw from representation.
43. In file C2-21-1003 (Complainant Ryan Drake) it is believed and therefore averred that:
a. Mr. Drake retained Respondent on September 28, 2020 to represent him in a criminal matter in the Philadelphia County Municipal Court, Case No. MC-51-CR-0017543-2020 (Com. v. Drake);
b. Respondent entered her appearance in Com. v. Drake on October 8, 2020;
c. On October 15, 2020, the Municipal Court continued Com. v. Drake due to a COVID related court closure;
d. On December 30, 2020, Respondent replied by email to an inquiry by Mr. Drake, attached a copy of the current
docket report and advised there had been no activity in Mr. Drake's case since October 15, 2020;
e. On April 15, 2021, the Municipal Court scheduled a status hearing in Com. v. Drake for December 30, 2021;
f. Following her suspension on April 27, 2021, Respondent failed to notify Mr. Drake and the Municipal Court of her suspension and failed to withdraw her representation of Mr. Drake;
g. On November 15, 2021, unaware of Respondent's suspension and inability to represent him, Mr. Drake unsuccessfully attempted to contact Respondent by phone and email regarding the status of Com. v. Drake;
h. In or around December 2021, Mr. Drake retained new counsel, Kevin Mincey, to represent him; and
i. On December 8, 2021, Mr. Mincey entered his appearance on behalf of Mr. Drake in Com. v. Drake.
44. In file C2-22-248 (Complainant Tabia S. Guytan-Myers) it is believed and therefore averred:
a. On March 18, 2019, Steven Myers filed a complaint in divorce against Tabia Guytan-Myers in the First Judicial District of Pennsylvania, Case No. D19038490;
b. In June 2020, Ms. Guytan-Myers retained Respondent to complete and finalize her divorce proceedings;
c. Ms. Guytan paid Respondent's requested retainer of $735.76 that included Respondent's legal fees, filing fees and administration fees;
d. On April 16, 2021, Respondent entered her appearance in the Myers v. Guytan-Myers divorce proceeding;
e. Subsequent to April 16, 2021, Respondent failed to respond to Ms. Guytan-Myers' multiple attempts to communicate with Respondent and obtain a status report of her divorce proceeding;
f. Ms. Guytan-Myers finally met with Respondent at Respondent's office sometime in August 2021;
g. At her August 2021 meeting with Ms. Guytan-Myers, Respondent advised she was having "complications" with Ms. Guytan-Myers' case, needed to consult with another attorney and would get back to Ms. Guytan-Myers;
h. After not hearing further from Respondent, Ms. Guytan-Myers emailed Respondent on October 4, 2021 and resent the email on March 13, 2022, "pleading with [Respondent] to take some form of action to resolve [Ms. Guytan-Myers' divorce proceeding]" or in the alternative provide Ms. Guytan-Myers a refund so that she could contact another lawyer to assist her; and
i. After not receiving a response to her October 4, 2021 and March 13, 2022 emails, Ms. Guytan-Myers independently learned of Respondent's suspension and then filed a complaint with ODC.
II. Summary of Respondent's Pa.R.D.E. 217 Obligations
45. Pursuant to Pa.R.D.E. 217, Respondent had the obligation to properly distribute all fiduciary funds, close her BMT IOLTA, provide notice of her suspension to clients and third parties and to file her Statement of Compliance.
46. The filing of the Statement of Compliance and all supporting documentation provide the basis for ODC to confirm whether Respondent complied with all Pa.R.D.E. 217 obligations, which are designed to protect clients and the public at large.
47. ODC and the Disciplinary Board rely on full and complete disclosure by formerly admitted attorneys regarding compliance with Pa.R.D.E. 217 obligations.
48. Respondent has failed to fulfill her obligations under Pa.R.D.E. 217 and is in willful violation of this Honorable Court's Suspension Order.
III. BASIS FOR CONTEMPT
49. From May 27, 2021 until the present Respondent has been prohibited from holding any fiduciary accounts including her BMT IOLTA.
50. ODC has obtained evidence that Respondent failed to:
a. communicate to her clients and required third parties and courts that Respondent was suspended from the practice of law as of May 27, 2021;
b. properly withdraw as counsel in several client matters; and;
c. properly disburse fiduciary funds and close her BMT IOLTA.
51. To date, Respondent:
a. has not been reinstated to the practice of law; and
b. remains suspended and ineligible for reinstatement as her waiting period pursuant to Pa.R.D.E. 217(e)(3) has not
begun due to her failure to file the requisite Statement of Compliance pursuant to Pa.R.D.E. 217(e)(1).
52. Respondent's flagrant disregard of her obligations under Pa.R.D.E. 217 and this Honorable Court's Suspension Order and failure to cooperate with ODC in accordance with Pa.R.D.E. 217(e)(2) as requested in the ODC Demand Letter require entry of an Order of Contempt and the imposition of additional discipline.
53. In ODC v. James A. Hickey, 829 DD No. 3, (Pa. Jan. 18, 2007), ODC filed a Petition for Adjudication of Contempt with the Court. Hickey was a suspended attorney who engaged in the practice of law while under suspension. The Petition alleged that Hickey failed to comply with Pa.R.D.E. 217. This Honorable Supreme Court issued a Rule to Show Cause why Hickey should not be held in contempt for willful violation of Hickey's suspension Order. Hickey failed to respond, and the Rule was made absolute. Ultimately, this Honorable Supreme Court held Hickey in contempt and referred the matter to the Disciplinary Board for sanctions. The Disciplinary Board recommended disbarment, which this Honorable Supreme Court imposed.
54. In ODC v. Kenneth C. Jones, No. 531 DD No. 3, No. 71 DB 1999 and No. 126 DB 1999, by Order dated November 25, 2002 ("Jones Contempt Order"), this Honorable Supreme Court granted ODC's petition and adjudicated Jones in contempt for a willful violation of Jones' suspension Order, dated August 15, 2001, which suspended Jones for two years; and among other things ordered Jones' law office to be padlocked. On or about November 27, 2002, the Montgomery County Sheriff's Department padlocked Jones' law office, and posted the Jones Contempt Order. Subsequently, Jones submitted to disbarment by consent.
RULES VIOLATED
55. Petitioner believes and therefore avers that Respondent's conduct as described in paragraphs 4 through 48, supra, is a willful, continuing and direct violation of, inter alia, this Honorable Court's Suspension Order and conclusively established that Respondent is a danger to the public.
56. The aforementioned averments establish that:
a. Respondent had knowledge of the Suspension Order;
b. Respondent had notice of her responsibilities under Pa.R.D.E. 217 including her mandatory duty to close her BMT IOLTA, notify clients and third parties of her suspension; and file her Statement of Compliance;
c. Respondent has repeatedly and continuously violated Pa.R.D.E. 217(a); Pa.R.D.E. 217(b); Pa.R.D.E. 217(c), Pa.R.D.E. (d)(3)(ii); Pa.R.D.E. (d)(3)(iii); Pa.R.D.E. 217(e)(1); Pa.R.D.E. 217(e)(2); Pa.R.D.E. 217(h); and Pa.R.D.E. 217(j)(4)(v); and
d. Respondent has knowingly violated this Honorable Court's Suspension Order and continues to do so in an open and contemptuous manner.
PRAYER FOR RELIEF
WHEREFORE, Petitioner respectfully requests that your Honorable Court:
1. Order that Respondent immediately comply with all provisions of Pa.R.D.E. 217, including disbursing all fiduciary funds, closing of all fiduciary financial accounts, including her Bryn Mawr Trust Company (n/k/a WSFS Bank) IOLTA, notifying all clients, courts and relevant third parties of her suspension, and immediately filing a Statement of Compliance in accordance with Pa.R.D.E. 217(e); and
2. Issue a Rule on Respondent, Valerie Andrine Hibbert, to Show Cause Why She Should Not Be Held in Contempt of this Honorable Supreme Court by reason of her willful violation of this Court's April 27, 2021 Suspension Order, returnable at a date, time, and place certain, and with a response to the allegations herein; and
AND FURTHER, that after consideration of any response made by Respondent, your Honorable Court grant the following additional relief:
3. Order that Respondent, Valerie Andrine Hibbert, be held in contempt of this Honorable Court by reason of her willful violation of this Court's April 27, 2021 Order;
4. Order that Respondent shall:
a. fully comply with the provisions of Pa.R.D.E. 217;
b. be subject to a fine of $100 a day for each day from the date of this Court's Contempt Order that she continues to be non-compliant with Pa.R.D.E. 217; and c. comply with any such other relief as the Court deems just and proper; and
5. Refer this matter to the Disciplinary Board for a hearing to recommend the appropriate sanction including but not limited to additional discipline.
Thomas J. Farrell, Chief Disciplinary Counsel
Attorney Reg. No. 48976
Marie C. Dooley, Disciplinary Counsel Attorney Reg. No. 203681 Office of Disciplinary Counsel District II Office 820 Adams Avenue, Suite 170 Trooper, PA 19403 (610) 650-8210
VERIFICATION
I, Marie C. Dooley, Disciplinary Counsel, state under the penalties provided in 18 Pa.C.S. §4904 (unsworn falsification to authorities) that:
I am a Disciplinary Counsel of the Office of Disciplinary Counsel of the Supreme Court of Pennsylvania assigned to prosecute this matter pursuant to the Pennsylvania Rules of Disciplinary Enforcement;
I am authorized to make this verified statement; and
The facts contained in the attached Petition for Rule To Show Cause Why Respondent Should Not Be Held in Contempt are true and correct to the best of my knowledge, information and belief.
Date May 4, 2022
Marie C. Dooley Disciplinary Counsel District II Office
ORDER AND RULE TO SHOW CAUSE
PER CURIAM.
AND NOW, this __ day of __, 2022, the Office of Disciplinary Counsel's Petition for Rule to Show Cause Why Respondent Should Not Be Held in Contempt is GRANTED, and a Rule is hereby entered upon Respondent to show cause why she should not be held in contempt for willful violation of this Honorable Supreme Court's Order dated April 27, 2021.
Respondent is ordered to immediately close any and all fiduciary accountings including her IOLTA held at Bryn Mawr Trust Company (n/k/a WSFS Bank) and properly disburse all fiduciary funds.
Respondent is further ordered to comply with all provisions of with Pa.R.D.E. 217, and within ten (10) days of the date hereof, file a Statement of Compliance in accordance with Pa.R.D.E. 217(e).
Respondent is further directed to file any Response to the Petition and to this Rule within ten (10) days of the date hereof and to timely serve a copy of said response upon the Office of Disciplinary Counsel.
ORDER
PER CURIAM.
AND NOW, this __ day of __, 2022, an Order and Rule to Show Cause having been entered by this Honorable Supreme Court on Valerie Andrine Hibbert, formerly admitted attorney, suspended for one year and one day by Order entered April 27, 2021 (effective as of May 27, 2021) ("Suspension Order"), and upon consideration of the responses filed, it is hereby ORDERED that:
A. Respondent, Valerie Andrine Hibbert, be held in contempt of this Honorable Supreme Court by reason of her willful violation of the Suspension Order;
It is further Ordered that Respondent shall:
1. fully comply with the provisions of Pa.R.D.E. 217 pertaining to suspended attorneys;
2. file a Statement of Compliance in accordance with Pa.R.D.E. 217(e) within ten (10) days of the date hereof; and
3. be subject to a fine of $100 a day for each day that she continues to be non-compliant with Pa.R.D.E. 217.
It is further Ordered that this matter be referred to the Disciplinary Board for a hearing to recommend the appropriate sanction.
CERTIFICATE OF COMPLIANCE
I certify that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania: Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than nonconfidential information and documents.
PROOF OF SERVICE
I hereby certify that I am this day serving a copy of the Petition for Rule to Show Cause Why Respondent Should Not Be Held In Contempt and all accompanying documents upon the person and in the manner indicated below, which service satisfies the requirements of Pa.RAP. 121:
Service by Certified and First-Class Mail on:
Valerie Andrine Hibbert 22 North Lansdowne Avenue Lansdowne, PA 19050
Valerie Andrine Hibbert 206 Lacarra Drive Lansdowne, PA 19050
ORDER
PER CURIAM.
AND NOW, this 27th day of April, 2021, upon consideration of the Report and Recommendations of the Disciplinary Board, Valerie Andrine Hibbert is suspended from the Bar of this Commonwealth for a period of one year and one day. Respondent shall comply with all the provisions of Pa.R.D.E. 217 and pay costs to the Disciplinary Board. See Pa.R.D.E. 208(g).
Exhibit A
Valerie Andrine Hibbert Hibbert & Associates PC 22 N. Lansdowne Avenue Lansdowne, PA 19050
RE: Office of Disciplinary Counsel v. VALERIE ANDRINE HIBBERT (Delaware County)
Dear Ms. Hibbert:
The Prothonotary of the Supreme Court of Pennsylvania has forwarded to us a certified copy of the Order of that Court dated April 26, 2021 (copy enclosed), that"... Valerie Andrine Hibbert is suspended from the Bar of this Commonwealth for a period of one year and one day. Respondent shall comply with all the provisions of Pa.R.D.E. 217..." such action to take effect 30 days from the date of the Order.
For your guidance, compliance and information, I am enclosing the following:
1. Standard Guidance of the Disciplinary Board to Lawyers who have been Suspended Over One Year.
2. Rule 217 of the Pa.R.D.E. Your attention is called to Rule 217(h) concerning indicia of licensure.
3. Form DB-23, Nonlitigation Notice of Disbarment, Suspension or Transfer to Inactive Status.
4. Form DB-24, Litigation Notice of Disbarment, Suspension or Transfer to Inactive Status.
5. Form DB-25, Statement of Compliance.
You are now required to comply with the Pennsylvania Rules of Disciplinary Enforcement and Disciplinary Board Rules as enclosed herewith.
Very truly yours, Marcee D. Sloan Enclosures Board Prothonotary
Exhibit B
Valerie Andrine Hibbert Hibbert & Associates PC 22 N Lansdowne Ave. Lansdowne, PA 19050
RE: Office of Disciplinary Counsel v. VALERIE ANDRINE HIBBERT No. 2777 Disciplinary Docket No. 3 No. 215 DB 2019 Attorney Registration No. 76306 (Delaware County)
Dear Ms. Hibbert:
Please refer to the letter to you dated April 27, 2021 (copy attached).
You have not complied with a specific requirement of the Order entered by the Supreme Court. We have not received the verified statement required by Rule 217, Pa.R.D.E. It is important for you to understand that failure to file the statement required by Rule 217 has serious consequences on any future reinstatement petition you may want to file.
Rule 217(e)(3) specifically states that the waiting period for eligibility to apply for reinstatement to the practice of law shall not begin until the formerly admitted attorney files the verified statement required by that Rule. As a result, your failure to file this statement will hinder any future reinstatement efforts you may make.
Very truly yours, Marcee D. Sloan Board Prothonotary
Exhibit C
Valerie Andrine Hibbert 22 N. Lansdowne Avenue Lansdowne, PA 19050
Valerie Andrine Hibbert 206 Lacarra Drive Lansdowne, PA 19050
RE: Complaints of Anthony Lamina-Lawrence, File No. C2-21-353; and Alicia Burrell, C2-21-787
DB-7 REQUEST FOR STATEMENT OF RESPONDENT'S POSITION
Dear Ms. Hibbert:
Please be advised that this office has received and is currently considering complaints against you from Anthony Lamina-Lawrence, 168 W. Waugh Street, North Wilkesboro, NC 28659; and Alicia Burrell, 6019 North Water Street, Philadelphia, PA 19120. It is important for you to understand that issuance of this letter means that these complaints against you have survived this office's initial screening process and that, based upon the information currently available to us, it appears that your alleged conduct may have violated the Pennsylvania Rules of Professional Conduct, the Pennsylvania Rules of Disciplinary Enforcement and provisions of the Code of Federal Regulations.
Exhibit D
It is also important for you to understand that it is the obligation of our office to develop all information relevant to a complaint, including that information, which may justify or exonerate the alleged actions of the respondent-attorney or mitigate the seriousness of any violations that may have occurred. Since these complaints have survived our initial screening process you should retain or consult with counsel before submitting a statement of your position.
The alleged facts presently under consideration are as follows:
Lamina-Lawrence matter
1. In or around 2008, you assisted Mr. Lamina-Lawrence, a naturalized United States citizen, petition the U.S. Citizenship and Immigration Services ("USCIS") on behalf of his wife, Victoria and his three children, Timothy, Leonard and Dorothy for immigrant visas.
2. In or around 2012, you successfully obtained immigrant visas for Leonard and Dorothy.
3. USCIS suspended the immigrant visa processes for your spouse, Victoria and son, Timothy because they both had prior residence in Ghana.
4. In or around May of 2017, Mr. Lamina-Lawrence again engaged you to represent him in obtaining immigrant visas for Victoria and Timothy.
5. Upon information and belief, you failed to provide Mr. Lamina-Lawrence a written fee agreement that explained the fee arrangement.
6. On January 31, 2019, your paralegal, Shadiara Gales, sent Mr. Lamina-Lawrence an email that stated he owed a balance of $1,000 to the firm for legal fees.
7. By check number 1411 dated February 10, 2019 made payable to you, Mr. Lamina-Lawrence paid you $1,000.00 for your legal fee.
8. On February 26, 2019, Mr. Lamina-Lawrence sent an email to Ms. Gales requesting that your office handle the application fees due to a credit card issue.
9. By check number 510 dated March 15, 2019 made payable to you, Mr. Lamina-Lawrence paid you an $1,780.00 for the filing fees and costs associated with pursuit of immigrant visas for Victoria and Timothy.
10. On March 19, 2019, Ms. Gales requested that Mr. Lamina-Lawrence contact her via the What's App application.
11. On March 26, 2019, Ms. Gales: a. changed the payee name on the check number 510 to her own; and b. cashed the check and absconded with the $1,780.
12. You failed to:
a. supervise Ms. Gales;
b. monitor your firm's receipt of all client payments;
c. maintain timely and accurate financial records for your clients in accordance with RPC 1.15(c) and Pa.R.D.E. 221(e); and/or d. perform accurate three-way reconciliation for all client accounts.
13. On May 13, 2019, you filed your 2019-2020 attorney registration form, which identified two IOLTA accounts:
a. TD Bank, NA, xxxxxx6245; and
b. Bryn Mawr Trust Company (The), xxxx5565.
14. In or around July of 2019, you terminated Ms. Gales as an employee of your firm.
15. On July 30, 2019, Mr. Lamina-Lawrence sent you an email that
a. stated he had reached out directly to Ms. Gales to no avail; and
b. requested an update on his matters.
16. In a reply email, you advised Mr. Lamina-Lawrence that Ms. Gales was no longer with your office.
17. On August 6, 2019, Mr. Lamina-Lawrence sent you an email that stated you should confirm with Ms. Gales receipt of the checks.
18. You sent a reply email to Mr. Lamina-Lawrence that requested copies from him of his bank statement or cancelled check.
19. By email to you dated August 7, 2019, Mr. Lamina-Lawrence explained he had limited access to his bank records.
20. By email to you dated August 8, 2019, Mr. Lamina-Lawrence inquired and stated as follows:
Please can you let me know the outcome of your meeting with Shadiara [sic] Gales? . . . Your response will be very helpful because I feel so much worried because I don't know what is happening to the monies I paid to your office for my Visa Application.
21. You failed to promptly reimburse Mr. Lamina-Lawrence for the stolen funds.
22. By check number 1520 dated August 11, 2019 made payable to your firm, Hibbert & Associates, Mr. Lamina-Lawrence again paid you $1,000.00 in legal fees.
23. You deposited or caused to be deposited the $1,000 into your IOLTA.
24. You again failed to keep and/or supervise nonlawyer staff in keeping accurate records reflecting receipt of the funds.
25. By email to you dated August 12, 2019, at 1:36 p.m., Mr. Lamina-Lawrence stated as follows:
"In your last email, you indicated that Shay was going to identify my payments to you but I have not heard from you for a while now whether you were able to get her to that [sic] for you or not. I have made several calls and emails to follow up but all have been ignored. This is frustrating especially when all payments due to your outfit [sic]. I really do not understand the impasse between you and Shadaira. I spoke to your new legal assistant in your office and she told me she was going to relay my message to you to respond to me; and I should expect a reply from you today, Monday 08/12/19. But I have not received any response yet. As it stands now, I need to know what to do since it is delaying the interview time.
Please keep in mind that the [sic] there is a limited period for us to apply; otherwise it will be cancelled. We need first to pay the fees in order to complete the immigrant Visa application form DS-260 and submit required financial and civil documents for processing. All these need to be done before an interview date will be scheduled. Approval [sic] immigrant visa will be cancelled if we fail to pay the necessary fees.
Your urgent attention and prompt action is greatly appreciated in this matter. I have copied my son and given him your information to follow up. If you have any further information, do not hesitate to call me.
Looking forward to hearing from you very soon."
26. You were aware that the immigrant visa matter was time sensitive.
27. You failed to take prompt action in the matter and communicate to Mr. Lamina-Lawrence your receipt of funds and/or plan of action to obtain the visas.
28. On August 12, 2019, at 11:44 p.m., you sent an email in reply to Mr. Lamina-Lawrence's that stated:
"I have no documentation of this payment. I cannot say it is not in the account but other funds are also in the account. Can you send a copy of the cancelled check."
29. By email to Mr. Lamina-Lawrence dated August 12, 2019, at 11:47 p.m., you sent another reply that stated:
"How much did you pay. $770? I see a notation of that in July 2019."
30. By email to you dated August 13, 2019, Mr. Lamina-Lawrence, sent a reply that stated, in part:
"I can only get a statement of my accounts from the bank to confirm these payments when i am in the U.S.; probably around January 2020."
31. You failed to maintain an individual client ledger for Mr. Lamina-Lawrence that reflected accurate record of when legal fees were received and deposited.
32. On August 19, 2019, you paid the following amounts to the United States Department of State on Timothy's behalf:
a. $120.00 for an affidavit of support fee; and
b. $325.00 for an immigrant visa fee.
33. On August 19, 2019, you paid the following amounts to the United States Department of State on Victoria's behalf
a. $120.00 for an affidavit of support fee; and
b. $325.00 for an immigrant visa fee.
34. By email dated August 21, 2019 sent to Mr. Lamina-Lawrence you stated, in part:
"[w]e are in need of your 2016 2017 and 2018 tax returns to complete the Affidavit of Support."
35. On August 22, 2019, your new legal assistant, Shawnna Roberson, sent Mr. Lamina-Lawrence an email that confirmed that your office had copies of his 2008, 2015 and 2016 tax documents.
36. By email to Ms. Roberson dated August 23, 2019, Mr. Lamina-Lawrence provided copies of his:
a. 2016 tax return, which was encrypted and required a password; and
b. 2017 tax return, which was not encrypted and did not required a password.
37. USCIS does not accept encrypted documentation.
38. You knew or should have known that the encrypted password-protected tax document was unacceptable.
39. You failed to promptly review your internal files and records and/or promptly review the records recently provided and request that Mr. Lamina-Lawrence obtain an unencrypted copy of his 2016 tax return and/or personally print and rescan the document as a regular pdf.
40. By email to you dated August 28, 2019, Mr. Lamina-Lawrence provided an unencrypted copy of his 2018 tax return.
41. On September 3, 2019, Mr. Lamina-Lawrence sent you an email that again provided the 2016 password.
42. You and/or your staff failed to advise Mr. Lamina-Lawrence that his encrypted document was unacceptable.
43. By email to both you and Ms. Roberson dated September 20, 2019, Mr. Lamina-Lawrence requested as follows:
"Greetings. Could you please confirm the receipt of Mr. Rigg Afranie's 2018 tax returns. According to him, he mailed his 2018 tax information to you on Monday. Is the income sufficient to cover my family? This information will be helpful to determine whether we need another tax returns [sic] with higher income."
44. You and your nonlawyer staff member, Ms. Roberson, both failed to respond to Mr. Lamina-Lawrence's email query regarding his reference's documentation.
45. By email to you dated November 18, 2019, Mr. Lamina-Lawrence requested a status update on the immigrant visas for Victoria and Timothy.
46. You failed to respond to his email inquiry.
47. In or around the same time, Ms. Roberson left your employment.
48. By email to you dated November 21, 2019, Mr. Lamina-Lawrence stated:
"I understand Shawna Robertson [sic] is no more working with you. I would like to find out if Shawna was able to complete the immigrant visa (IV) application form (DS-260) and the Affidavit of Support? The last time I spoke to her, she told me that all were in progress. Please could you update me on this matter? I think it is taking too long to receive response [sic] from your office."
49. You failed to respond to this email.
50. Despite the September 20, 2019 email regarding Mr. Afernie, by email to Mr. Lamina-Lawrence dated December 7, 2019, Aliyah King, your new legal assistant, stated:
Mr. Lamina, we are preparing your documents and need to know if you are still using Mr. Rigg Afernie [sic] as your sponsor or another sponsor? If you are still going with Rigg Afernie [sic] we would need his phone number and email address.
51. By email to you dated December 8, 2019, Mr. Lamina-Lawrence:
a. forwarded Ms. King's December 7, 2019 email; and
b. stated, in part:
"This is the third time three different persons have been handling my family documents. I remember Shadaira Gales started working on it and left your office without notifying me, Shawna Robertson [sic] also continued and asked series of questions on the documents as well as documents from my sponsor Mr. Rigg Afanie who is my brother -In- Law. Shawna confirmed that she has received the tax returns from my sponsor and they were good for my paper work. My last communication with Shawna was that all documents were complete and will be submitted.
Through follow up email to check on the document status, I got to know that Shawna, has also left your office. I am surprised that your new assistant is asking for the same information that has already been forwarded to your office. Can you please let me know exactly what is delaying my document? I have called your office several times just to have conversation with you but to no avail. Since you are my principal attorney, you will be the only one to explain this long delay to me. In addition, you are to ensure that due diligence is paid to the successful completion and submission of my document."
52. You failed to respond to this email.
53. By email to you dated December 10, 2019, Mr. Lamina-Lawrence:
a. forwarded his August 23, 2019 email to Ms. Roberson and related tax documentation;
b. requested that you cross-check all documentation received; and
c. advised that, inter alia, "[y]our urgent attention is needed to complete the documentation. I am really disappointed in your secretaries [sic] performance."
54. By email to you dated December 19, 2019, Mr. Lamina-Lawrence stated:
"This is to let you know that we have received the immigration [sic] visa application confirmation notice from U.S. Department of States [sic] for Victoria Lamina but my son Timothy K. Lamina confirmation application notice is not included.
Could you please let us know Timothy's confirmation status?"
55. You failed to respond to this email.
56. By email to you dated January 8, 2020, Mr. Lamina-Lawrence forwarded his December 19, 2019 email inquiring about his son's visa.
57. You failed to respond to this email.
58. By email to Mr. Lamina-Lawrence dated January 8, 2020, at 4:05 p.m., Ms. King stated:
"I just spoke with Mr. Afranie [sic] about contacting the NVC [i.e., National Visa Center] for Timothy Lamina, they have his account on hold until someone from the NVC office reaches back to our office. Their Summary Information is attached. As soon as we speak with NVC we will file his forms immediately. I have been contacting them daily so should be hearing back from them very soon."
59. By email to you dated January 8, 2020, at 4:52 p.m., Mr. Lamina-Lawrence stated:
It is rather unfortunate to hear this from you as well as the NVC Office. I remember writing to you about the confirmation of Victoria's application; and Timothy's one was not received. You never replied to the mail. Can you please explain exactly what the hitches are. In view of this, what is our position in this issue?
Please let me hear from you as soon as possible."
60. You failed to respond to this email.
61. On January 9, 2020, you sent an email to the NVC that stated you were attempting to file an application for Timothy Lamina but were unable to upload the required documentation.
62. You failed to follow-up with the NVC on Timothy Lamina's filing.
63. On or about January 11, 2020, you submitted or caused to be submitted a Form I-864, Affidavit of Support, to the United States Department of State on Victoria's behalf via the Consular Electronic Application Center website.
64. You attached to the I-864 Affidavit the password-protected version of Mr. Lamina-Lawrence's 2016 tax return.
65. The Department of State rejected the I-864 Affidavit because it included a password-protected document.
66. You failed to take any corrective steps.
67. By email to Mr. Lamina-Lawrence dated February 4, 2020, Ms. King stated:
"The 2016 Tax document we have on file for you will not be accepted by NVC because it is password protected. Please at your earliest convenience send over your tax information and documents with out [sic] password protection. If you have any questions or concerns please contact our office."
68. By email to you dated February 5, 2020, Mr. Lamina-Lawrence provided a version of his 2016 tax return that was not password-protected.
69. You failed to resubmit the I-864 Affidavit on Victoria's behalf or take any other action to remediate the rejection of the I-864 Affidavit.
70. By letter dated February 13, 2020, Mr. Lamina-Lawrence provided you a copy of the cancelled check and requested that you continue work on Victoria's application.
71. By email to you dated February 13, 2020, Mr. Lamina-Lawrence stated:
"I still have had not [sic] response from you. I need you to call me asap . . . I notified you yesterday that I am in the states now, staying in North Carolina.
I have decided to contact the police regarding the funds taken by Ms Gales. She contacted me yesterday regarding repayment but she did not come through as promised.
You need to contact me with the status of my paperwork on my son Timothy."
72. You failed to take responsibility for the missing funds and provide Mr. Lamina-Lawrence credit against the amounts stolen by your subordinate staff member.
73. By email to Mr. Lamina-Lawrence dated February 19, 2020, you stated:
"After numerous calls to the visa center at different times I was not able to speak with anyone. I am attaching a copy of a letter which I am sending to the National Visa Center requesting the reopening of the case
# 2 I received a copy of the letter and check sent by your POA. As I told the police. I did not see the check prior today [sic]. However, Ms. Gales told me that the check was shredded per your instructions. I told the police I was not aware a check was sent to the office and I had not seen a copy of the check. The police has [sic] spoken to her and I support any actions you choose to take. I see that my name or the name of the law firm was removed and she wrote in her name. I am not sure if you have a copy of the original check you sent, you could send that to the police. I did advised [sic] the officer that I will cooperate with his investigation. I will turn over my paper work to the police."
74. By email to you dated February 21, 2020, Mr. Lamina-Lawrence stated:
"I do have a question to you. Since you received funds from Ms Gales on what she had stole [sic], Why did you not start immediately to finish the paper work? You then asked me to send another $1000 (which you received). So you had the funds given to you, why did the forms not get completed.
I mailed the check for 1780.00, she stole the whole check, she paid you 770.00 to the companies account, so this make [sic] you aware something was wrong and that they money had actually been paid, but still made me send another 1000.00 and yet the paperwork has not been done.
You were aware the girl stole the money, but you did not follow through on you [sic] contractual promise of filing. We need this completed as soon as possible."
75. By email to Mr. Lamina-Lawrence dated February 22, 2020, at 9:23 a.m., you stated:
"Mr Lamina I did not receive the funds from Ms. Gales. What she did was put $770 in the account without telling me. I assume she was trying to put the money back with [sic] letting me know. Remember I did not know you sent money to the office. When I found out about the deposit I asked her where the cash came from. She told me she met your cousin at 69th Street in Upper Darby and he gave her money. This is after she was no longer employed by the office. I knew that was not true, because she should not be collecting funds when she is no longer working for the office. That is why I kept asking you to send me a copy of the cancelled check. I wanted to see the check for myself. I actually thought she signed my name and the [sic] endorsed the check to herself. Now seeing the check, I believe she took off either my name or the office name and add
[sic] her name to the check. Also, she did not put the money in my company account, she put in the escrow account where funds are held for client. She did not give me a copy of the deposit slip. As I was look [sic] for documentation of your payment, I found the funds deposited without documentation. I did not know she stole the money. I had no verification of theft. Her story was that you told her to destroy the check since it was missing info. Without the copy of cancelled check I had no conformation [sic] of what occurred.
76. Mr. Lamina-Lawrence sent you a reply email on the same day that stated:
a. he provided you proof of the payment and cancelled check;
b. he expected that work on his matter would be promptly handled; c. he decided not to prosecute Ms. Gale for the theft; and
d. he would travel to Pennsylvania in a scheduled business trip.
77. On February 23, 2020, you responded that you terminated Ms. Gales employment and that Mr. Lamina-Lawrence's issues made you aware that you had to "change [your] control system."
78. You failed to take prompt action on Mr. Lamina-Lawrence's matters.
79. On June 6, 2020, you submitted your 2020-2021 PA Attorney's Annual Fee Form, which:
a. identified your address of record as 22 N Lansdowne Ave, Lansdowne, PA 19050; and
b. reported no IOLTA and/or client trust account.
80. You failed to properly maintain an IOLTA/client trust account and/or properly report the information on your registration form.
81. By email to you dated November 25, 2020, Mr. Lamina-Lawrence stated, in part:
"please may I know my immigrant visa status for my wife and my son?"
82. You failed to respond to this email.
83. You failed to take prompt action on Mr. Lamina-Lawrence's matters and/or communicate with Mr. Lamina-Lawrence regarding any impediments to filing his immigration documentation.
84. By email to you dated March 29, 2021, Mr. Lamina-Lawrence stated:
"This is a quick email to find out the current status of the immigration application process for my wife, Victoria Lamina, and my son, Timothy Lamina.
It is my understanding that due to Covid, the U.S. immigration process had been put on hold. We are in 2021 and at this point I am wondering as to how and whether Covid is still affecting the immigrant applications for Victoria and Timothy.
Since I have not heard from you for a long while regarding their status I am asking for an update. Kindly inform me an [sic] their status. I appreciate your time and am looking forward to hearing back from you regarding this issue."
85. You failed to respond to this email.
86. You failed to take prompt action on Mr. Lamina-Lawrence's matters and/or communicate with Mr. Lamina-Lawrence regarding any impediments to filing his immigration documentation.
87. By email to you dated April 14, 2021, Mr. Lamina-Lawrence:
a. complained of "[y]our lack of communication and irresponsible handling of the applications" and "several documents and requirements for both Victoria and Timothy's application accounts - which should and could have been fulfilled long ago in 2020 by you, regardless of COVID - are yet to be fulfilled;"
b. stated that "unfortunately, there has been very little evidence to suggest that you have worked on [his] applications in a diligent and timely manner;"
c. questioned why "Timothy's Form DS-260 (Immigrant Visa and Alien Registration) has not been completed and submitted. Why has this not been completed?;" and
d. stated as follows:
"Why is it that as of April 15, 2021, today, these things have not been attended to? Overall, these issues indicate to me that you have scarcely been working diligently on the applications as you had agreed to. I am thus compelled to act urgently as I do not want to waste your time or my time any more. I want to know from you as soon as possible whether you want to continue working on the applications and if so, how you intend to rectify the upstanding [sic] errors and complete the aforementioned issues as quickly as possible, or whether I need to find someone else to continue. You have two options: 1) Refund my money if you do not want to work on them any longer (even though you were supposed to), or get to me as soon as possible and clearly and honestly explain to me how you intend to move forward with the applications, if you actually intend to."
88. You failed to:
a. respond to Mr. Lamina-Lawrence's email and/or provide a refund of his fees; and/or
b. take prompt action to complete and file the Form DS-260, Immigrant Visa Electronic Application on Timothy's behalf.
89. By Order dated April 27, 2021 (the "Suspension Order"), effective as of May 27, 2021, the Supreme Court:
a. suspended your law license for a period of one year and one day; and
b. directed you to "comply with all the provisions of Pa.R.D.E. 217".
90. On April 27, 2021, Prothonotary Disciplinary Board sent a letter to you, which enclosed the Suspension Order and directed you to comply with all the provisions of Pa.R.D.E. 217.
91. You received the April 27, 2021 correspondence and Suspension Order.
92. Following entry of the Suspension Order, you failed to:
a. withdraw as counsel of record with the NVC for Victoria's and Timothy's applications;
b. refund any portion of Mr. Lamina-Lawrence's payments;
c. notify Mr. Lamina-Lawrence of your law license suspension and his need to obtain replacement counsel for his legal matters; and
d. file a verified Statement of Compliance with the Disciplinary Board in which you, inter alia, aver that you had fully complied with the provisions of Pa.R.D.E. 217; and
e. surrender the relevant certificates pursuant to Pa.R.D.E. 217(h).
93. Upon information and belief, you failed to notify all clients you represented in all pending litigation and non-litigation matters and/or administrative proceedings of your suspension and your consequent inability to act as an attorney after the effective date of the suspension.
94. On May 27, 2021, your suspension became effective and your were obligated to cease all law related activity.
95. You failed to update your contact information with the Attorney Registration Office within 30 days of the change.
96. On June 17, 2021, the Disciplinary Board issued a second notice advising you of your obligations to submit a Statement of Compliance.
97. You received the June 17, 2021 cost balance correspondence.
98. On July 10, 2021, the Disciplinary Board issued an outstanding cost balance of $6,872.45.
99. You received the July 10, 2021 cost balance correspondence.
100. On July 22, 2021, Mr. Lamina-Lawrence sent you an email that stated he terminated your role as counsel in his immigration matters and requested that you provide his legal file.
101. You received the July 22, 2021 cost balance correspondence.
102. You failed to provide his legal file or issue a refund of his fees.
103. On November 1, 2021, the Disciplinary Board issued a letter advising your outstanding balance had increased to $7,092.37.
104. You received the November 1, 2021 cost balance correspondence.
105. You have failed to pay the outstanding fees and submit the required Statement of Compliance.
If the above allegations are true, we are concerned that you may have violated the following Rules of Professional Conduct, Pennsylvania Rules of Disciplinary Enforcement and provisions of the Code of Federal Regulations:
RPC 1.1; RPC 1.2(a); RPC 1.3; RPC 1.4(a)(2); RPC 1.4(a)(3); RPC 1.4(a)(4); RPC 1.4(a)(5); RPC 1.4(b); RPC 1.5(a); RPC 1.5(b); RPC 1.15(b); RPC 1.15(c)(2); RPC 1.16(a)(1); RPC 1.16(d); RPC 3.2; RPC 5.3(a); RPC 5.3(b);
Pa.R.D.E. 217(a); Pa.R.D.E. 217(b); Pa.R.D.E. 217(e)(1); Pa.R.D.E. 217(g); and Pa.R.D.E. 221(h)
8 C.F.R. § 1003.102(a)(1); 8 C.F.R. § 1003.102(o); 8 C.F.R. § 1003.102(p); 8 C.F.R. § 1003.102(q); 8 C.F.R. § 1003.102(r)(2), 8 C.F.R. § 1003.102(r)(3), and 8 C.F.R. § 1003.102(r)(4).
Burrell Matter
1. Ms. Burrell retained you to represent her in a divorce action against her spouse, Jermaine Burrell.
2. On March 16, 2021, you had a verbal discussion with Ms. Burrell regarding fees and the necessary documentation for the divorce action.
3. On March 19, 2021, you provided Ms. Burrell a Retainer Agreement for the legal representation, which identified a nonrefundable retainer of $500 and additional costs of $415.75 for a total fee of $915.75.
4. You failed to specify that the retainer funds and advanced costs would not be deposited in your IOLTA.
5. On March 19, 2021, Ms. Burrell sent you:
a. $500 via CashApp; and
b. an email with the requested documentation.
6. On March 24, 2021, Ms. Burrell paid the remaining balance for the advanced costs of $415.75 by CashApp.
7. You failed to identify the CashApp account as a trust account on your attorney registration forms.
8. Upon information and belief, you failed to deposit the $415.75 advance costs in your IOLTA.
9. As of June 6, 2020, you reported on your attorney registration form for 2020-2021 that you no longer had any IOLTA.
10. On March 26, 2021, you sent an email to Ms. Burrell, which requested personal information including her social security number.
11. On April 7, 2021, Ms. Burrell signed an Affidavit under § 3301(d) of the Divorce Code, which stated that the marriage was irretrievably broken.
12. On April 15, 2021, you filed the § 3301(d) Affidavit, Complaint in Divorce and other related documents with the Philadelphia Common Pleas Court.
13. On May 13, 2021:
a. Ms. Burrell sent an email to you requesting an update on the divorce process.
b. you sent a reply email to Ms. Burrell that stated, in part:
"I sent out your divorce to the Court in Phila. . . . I have not received a copy of the filed complaint. I will keep you posted."
c. in response, Ms. Burrell thanked you for the update.
14. On April 15, 2021, you filed or caused to be filed in Philadelphia County:
a. the Burrell Complaint in Divorce;
b. the signed Burrell Affidavit; and
c. the blank Counter-Affidavit for Mr. Burrell.
15. You failed to provide copies of the divorce filings to Ms. Burrell.
16. By Order dated April 27, 2021 (the "Suspension Order"), effective as of May 27, 2021, you were suspended from the Bar of the Commonwealth of Pennsylvania for a period of one year and one day and directed to, inter alia, "comply with all the provisions of Pa.R.D.E. 217."
17.You failed to:
a. notify Ms. Burrell of your suspension and explain that you could not handle any aspect of the divorce including monitoring service process issues;
b. clearly explain to Ms. Burrell that she was required to obtain replacement counsel to handle her divorce matter; and
c. file a verified statement with the Disciplinary Board in which you, inter alia, aver that you had fully complied with the Suspension Order and the requirements of Pa.R.D.E. 217.
18. Upon information and belief, you failed to notify all clients you represented in all pending litigation and nonlitigation matters and/or administrative proceedings, of your suspension and your consequent inability to act as an attorney after the effective date of the suspension.
19. You failed to promptly withdraw from the Burrell divorce action.
20. You failed to update your contact information with the Attorney Registration Office within 30 days of the change as required.
21. On May 27, 2021, your suspension became effective, and you were obligated to cease all law related activity.
22. On June 10, 2021, the Disciplinary Board issued a letter notifying you of an outstanding cost balance of $6,872.45.
23. On June 11, 2021, Ms. Burrell sent you an email with specific questions regarding her divorce and whether her husband could also file his own divorce complaint.
24. On the same day, despite your suspension, in a reply email you stated:
"I am waiting for proof of service for a process server in Washington. Once he serves him, I will just move forward. If you have his number, please send it so I can give it to the process server."
25. Your email signature block no longer stated that you were an Esquire or identified your law office.
26. Ms. Burrell is a former client who was represented by you prior to your law license suspension.
27. The response you provided to Ms. Burrell, your former client, improperly represented to Ms. Burrell that you continued to be her attorney and represented her in the divorce matter.
28. Such communication reflected your unauthorized practice of law following your law license suspension.
29. You improperly:
a. performed law-related services for Ms. Burrell;
b. contacted with Ms. Burrell through the written email correspondence; and
c. rendered legal consultation and/or advice to Ms. Burrell;
30. You failed to engage a licensed Pennsylvania attorney to supervise your law related activity and notify ODC of same.
31. On June 17, 2021, the Disciplinary Board issued a second notice to you, which again advised you of your obligations to submit a Statement of Compliance.
32. On August 2, 2021, the Disciplinary Board sent you a letter to your address of record advising that your costs balance had increased to $6,927.43.
33. On September 1, 2021, the Disciplinary Board sent you a letter to your address of record advising that your costs balance had increased to $6,982.41.
34. On September 2, 2021, Ms. Burrell sent an email to your former assistant Shaidara Gales at OfficeassistantSLG@gmail.com requesting information about her divorce.
35. Ms. Burrell did not receive a response from her September 2, 2021 email request to Ms. Gales.
36. On September 7, 2021, Ms. Burrell attempted to reach you by phone to your mobile number but was unable to leave a message.
37. You replied by text:
"May I ask who this is?"
38. On September 7, 2021, Ms. Burrell sent you a text that:
a. identified Ms. Burrell as your client;
b. stated she had learned of your law license suspension;
c. indicated that she was advised to file a complaint with the Office of Disciplinary Counsel;
d. requested information about her divorce matter; and
e. questioned whether you would refund her retainer and refer her to another attorney.
39. Ms. Burrell did not receive an unsent message notification.
40. You received the text message from Ms. Burrell.
41. You failed to:
a. respond to the text;
b. provide the requested refund;
c. provide a copy of Ms. Burrell's client file;
d. provide an accounting to Ms. Burrell; and/or
e. refund any unused advance fees/costs.
42. On September 8, 2021, Ms. Burrell sent a final text to you which stated, in part, she would not contact you again.
43. Thereafter, the Disciplinary Board sent additional cost balance letters as follows:
a. October 1, 2021 with an increased cost balance of $7,037.39;
b. November 1, 2021 with an increased cost balance of $7,092.37; and
c. December 1, 2021 with an increased cost balance of $7,147.35.
44. None of the Disciplinary Board cost letters sent to your address of record returned as undeliverable.
If the above allegations are true, we are concerned that you may have violated the following Rules of Professional Conduct, Pennsylvania Rules of Disciplinary Enforcement and provisions of the Code of Federal Regulations:
RPC 1.4(a)(3); RPC 1.4(a)(4); RPC 1.4(a)(5); RPC 1.4(b), RPC 1.15(b); RPC 1.15(c)(4); RPC 1.15(e); RPC 1.15(i); RPC 1.15(j); RPC 1.16(a)(1); RPC 1.16(d); RPC 5.5(a); RPC 5.5(b); and RPC 8.4(b)
Pa.R.D.E. 217(d); Pa.R.D.E. 217 (j)(4)(ii), (iii), (v) and (vi); Pa.R.D.E. 221(c); Pa.R.D.E. 221(d); and Pa.R.D.E. 221(g).
The Office of Disciplinary Counsel will make no recommendation for the disposition of this complaint until you have been afforded an opportunity to state your position with respect thereto within thirty (30) days of the date of this letter. Please note that failure to respond to this request for your statement of position without good cause is an independent ground for discipline pursuant to Rule 203(b)(7) of the Pennsylvania Rules of Disciplinary Enforcement. The Office of Disciplinary Counsel will only agree to a limited extension of the thirty-day deadline when the request is made for specific reasons constituting good cause. If you do not respond or provide good cause for failing to respond within thirty (30) days, the Office of Disciplinary Counsel may seek to impose discipline for your violation of Pa.R.D.E. 203(b)(7).
In addition to your DB-7 response, or even if you choose not to respond to this DB-7 letter of inquiry, you are required to produce the following information or documentation within thirty (30) days:
any and all documentation evidencing compliance of Pa.R.D.E. 217(d)(3).
Please be assured that we are not prejudging the alleged facts and charges nor are we an advocate on behalf of the complainant. Rather we are conducting an impartial and unbiased investigation with regard to this complaint. In that regard, we will attempt to verify the statements in your answer just as we do with the statements made to us by the complainant. For this reason, and because a lawyer can be subject to discipline for making a materially false statement or deliberately failing to disclose a material fact in connection with a disciplinary matter, you should be careful to be accurate in your factual statements. Additionally as previously stated, you may wish to consult with counsel before replying to the allegations.
In any reply that you make, please chronologically and specifically state your account of the events and include copies of any particularly pertinent documents to which you refer. Generally, it is most helpful if your response deals item-by-item with the allegations contained in the numbered paragraphs in this letter, as well as with the cited Rules.
Please be advised that §85.13 of the Disciplinary Board Rules requires that any response to this letter:
… that contains an averment of fact not appearing of record or a denial of fact shall include or be accompanied by a verified statement signed by the respondent-attorney that the averment or denial is true based upon knowledge or information and belief. The respondent-attorney need not aver the source of the information or expectation of ability to prove the averment or denial. The verified statement may be based upon personal knowledge as to a part and upon information and belief as to the remainder.
If we do not hear from you within thirty (30) days, we will assume that you do not desire to submit your position with respect to this complaint and can proceed to make our recommendation for an appropriate disposition on the basis of the information and material contained in our file, including your failure to respond in violation of Rule 203(b)(7), Pa.R.D.E.. However, we would certainly prefer to have the benefit of your position before making our recommendation.
Keep in mind that we may provide the complainant with a copy of your statement of position or a summary of it for the express purpose of obtaining a replication, unless you request that the content of your answer, either in total or in part, not be revealed and state reasons therefor which represent good cause. If we do provide the complainant with a copy or summary of your position, we will remind the complainant of the confidentiality of our inquiry.
If you have any questions, you or your counsel should not hesitate to contact this office. Thank you for your anticipated cooperation and assistance in this important matter. We look forward to receiving your response.
Very truly yours, Marie C. Dooley Disciplinary Counsel
Valerie Andrine Hibbert 22 N. Lansdowne Avenue Lansdowne, PA 19050
Valerie Andrine Hibbert 206 Lacarra Drive Lansdowne, PA 19050
Re: Violation of Pa.R.D-E. 217 and April 27, 2021 Suspension Order -2777 DD No. 3 (215 DB 2019); C2-21-353 and C2-21-787, Dear Ms. Hibbert:
Under separate cover, by DB-7 Request for Statement of Respondent's Position dated December 8, 2021 (a copy enclosed), this office has requested you, inter alia, to provide us with any and all documentation evidencing compliance with Pa.R.D.E. 217(d)(3). This correspondence will serve to reiterate that request and make clear to you your obligations under Pa.R.D.E. 217 to close your fiduciary accounts, properly and promptly disburse the client funds, and to file with the Disciplinary Board a verified statement demonstrating your compliance with Pa.R.D.E. 217.
Our office has received information that you may have failed to close your Bryn Mawr Trust Interest on Lawyer Trust Account ("IOLTA"), ending in #5565, as required by Pa.RD.E. 217. It appears such account currently remains open with a balance in excess of $10,000.
Exhibit E
As you are aware, the Pennsylvania Supreme Court ("Supreme Court") Order dated April 27, 2021 ("Suspension Order") (a copy enclosed), suspended you from the practice of law for one year and one day effective May 27, 2021. The Suspension Order expressly stated that you "shall comply with all the provisions of Pa.R.D.E. 217." Emphasis added. Thus, it appears that you are in violation of both Pa.R.D.E. 217 and the Suspension Order.
Pursuant to the mandatory language of Pa.R.D.E. 217(d)(3), all formerly admitted attorneys are required to take all steps to promptly windup their law practice including pursuant to subsection (ii)-(iii), close every IOLTA, Trust, client and fiduciary account; and properly disburse or otherwise transfer all client and fiduciary funds in his or her possession, custody or control. Further, pursuant to Pa.R.D.E. 217(e)(1)," [w]ithin ten days after the effective date of the ... suspension ..., the formerly admitted attorney shall file with the Board a verified statement and serve a copy on Disciplinary Counsel." Emphasis added. Such verified statement of compliance shall include, pursuant to Pa.R.D.E. 217(e)(1)(vi), evidence of, among other things, the closing of accounts, including copies of cancelled checks and other instruments demonstrating the proper distribution of client and fiduciary funds.
Pursuant to Pa.R.D.E. 217(e)(2), "[a] formerly admitted attorney shall cooperate with Disciplinary Counsel and respond completely to questions by Disciplinary Counsel regarding compliance with the provisions of this Rule." Emphasis added.
Be advised that you are required to demonstrate to this office by January 7, 2022 that you have taken all steps to close any and all fiduciary accounts including your Bryn Mawr Trust IOLTA ending in #5565. Further, you are required to provide this office with evidence that you have complied with all provisions of Pa.R.D.E. 217, filed the verified statement of compliance, and provided the requisite evidence of such compliance, including but not limited to, evidence of the closing of accounts, copies of cancelled checks and other instruments demonstrating the proper distribution of client and fiduciary funds.
YOUR CONTINUED NON-COMPLIANCE WITH THE SUSPENSION ORDER AND PA.R.D.E. 217 MAY NECESSITATE THIS OFFICE TO FILE A PETITION WITH THE SUPREME COURT TO FIND YOU HELD IN CONTEMPT.
Very truly yours, Marie C. Dooley Disciplinary Counsel
Affidavit Regarding Attempted Personal Service on Valerie Andrine Hibbert
I, Robert McHugh, Auditor/Investigator, Office of Disciplinary Counsel ("ODC"), 820 Adams Avenue, Trooper, Pennsylvania, being duly sworn according to law, depose and say that, I took the following actions to personally serve Valerie A. Hibbert ("Respondent") with the following three (3) documents:
a. the Supreme Court Order, dated April 17, 2021, suspending Respondent from the practice of law;
b. the December 14, 2021 letter from ODC to Respondent demanding compliance with Pa.R.D.E 217; and
c. the December 8, 2021 DB-7 Request for Statement of Respondent's Position.
On December 15, 2021, I attempted to serve Respondent at her home address located at 206 Le Carra Drive, Lansdowne, PA 19050. Respondent did not answer the door any of the times that I knocked and rang the doorbell.
On December 16, 2021, I attempted to serve Respondent at her home address. Respondent did not answer the door any of the times that I knocked and rang the doorbell. Further, I attempted to serve Respondent at her former office located at 22 N Lansdowne Avenue, Lansdowne, PA 19050, which was her preferred address of service. The office now has a sign for Shay's Nursing Home Health Aid Agency. An internet search revealed that Respondent is currently the Administrator for Shay's Nursing. Respondent did not answer the door any of the times that I knocked and/or rang the doorbell. Additionally, on December 16, 2021, I sent Respondent an email, which requested that she contact me to schedule a time and place for me to provide her with paperwork. The December 16, 2021 email was sent to her email address of record (vah963@gmail.com) and the email address of Shay's Nursing (info@shaynursing.com). Respondent failed to respond to either email. Finally, on December 16, 2021, I attempted to contact Respondent via phone. I placed calls to the following telephone numbers and left voicemails when available identifying who I was and explained that I had documents to personally deliver to Respondent:
Exhibit F
a. 610-622-3660, her phone number of record;
b. 267-971-0894, the phone number listed for Respondent as Administrator of Shay's Nursing; and
c. 610-622-4425, the phone number listed for Shay's Nursing.
On December 17, 2021, I attempted to serve Respondent at her home address. Respondent did not answer the door any of the times that I knocked and rang the doorbell. However, on my last attempt knocking on Respondent's front door, I heard noise from within the residence. As I was walking back to my car, Respondent left from the rear of her residence in a vehicle with numerous Shay's Nursing advertisements on it. I attempted to follow Respondent but was ultimately separated in traffic.
On December 20, 2021, I attempted to serve Respondent at both her home and former office. Respondent did not answer the door any of the times that I knocked and/or rang the doorbell.
On December 21, 2021, at approximately 9:48 AM, I personally served Respondent outside of her former office address. Respondent was provided an envelope which contained the above listed documents. I informed Respondent that she was being served with these documents and Respondent accepted the envelope.
AFFIDAVIT OF SERVICE.
I, Robert McHugh, Auditor/Investigator, Office of Disciplinary Counsel, 820 Adams Avenue, Trooper, Pennsylvania, being duly sworn according to law, depose and say that on Tuesday, the 21st day of December, 2021, at approximately 9:48 AM, I personally served Valerie A. Hibbert at 22 N Lansdowne Avenue, Lansdowne, PA 19050 with the following: a DB-7 Request for Statement of Respondent's Position and a cover letter from Disciplinary Counsel Marie C. Dooley dated DECEMBER 8, 2021; an Office of Disciplinary Counsel Demand Letter dated DECEMBER 14, 2021 and a Supreme Court of Pennsylvania Order Suspending Hibbert dated APRIL 27, 2021.
Summary of Accounts
Account Type
Account Number
Ending Balance
Business NOW IOLTA
XXXXXXXX5565
$10,000.12
Total Current Value
$10,000.12
Business NOW IOLTA - XXXXXXXX5565
Account Summary
Interest Summary
Date
Description
Description
11/01/2021
Beginning Balance
$10,000.12
Interest Earned From 11/01/2021 Through 11/30/2021
0 Debit(s) this period
$0.00
Annual Percentage Yield Earned
0.03%
0 Credit(s) this period
$0.00
Interest Days
30
Service Charges
$0.00
Interest Earned
$0.25
11/30/2021
Ending Balance
$10,000.12
Interest Paid Year-to-Date
$3.25
Interest Withheld Year-to-Date
$0.00
Service Charge Summary
Description
Amount
Total Service Charge
$0.00
IN CASE OF ERRORS OR QUESTIONS ABOUT YOUR ELECTRONIC TRANSACTIONS ON THIS STATEMENT
Notify us as soon as you can if you think your statement or receipt is wrong or if you need more information about any of the electronic transfers or transactions listed on the statement, acknowledgement or receipt. Please call 610.687.4BMT (4268) for more information regarding ATM or purchase transactions OR call 610.525.1700 if you think there is an error on this statement or if you need more information about a telephone transfer, non-ATM electronic payment, or non-ATM electronic deposit on your statement or receipt. You may also write to us at
The Bryn Mawr Trust Company, Telephone Banking, 801 Lancaster Avenue, Bryn Mawr, PA 19010-3396. We must hear from you no later than 60 days after we sent the FIRST statement on which the problem or error appeared. You must provide us with the following:
1. Your name and account number and your Banking Card, VISA® Debit Card, or Telephone Banker Account Number, if applicable.
2. A description of the error, transfer, or transaction you are unsure about. Clearly explain why you believe it is an error or why you need more information.
3. The dollar amount of the suspected error.
If you tell us orally, we may require that you send us your complaint or question in writing within 10 business days. We will tell you the results of our investigation within 10 business days (20 business days for an electronic fund transfer made to or from a new account within 30 days after the initial deposit) after we hear from you and will correct any error promptly. If we need more time, however, we may take up to 45 days (90 days for Purchase Transactions or a notice of error that involves an electronic fund transfer made to or from a new account within 30 days after the initial deposit) to investigate your complaint or question. If we decide to do this, we will re-credit your account within 10 business days (20 business days for an electronic fund transfer made to or from a new account within 30 days after the initial deposit) for the amount you think is in error, so that you will have the use of the money during the time it takes us to complete our investigation. If we ask you to put your complaint or questions in writing and we do not receive it within 10 business days, we will not re-credit your account. For VISA® Debit Card transactions we will provisionally credit your account for the amount you think is in error within 5 days of your notification to us. If we determine that there was no error, we will send you a written explanation within three business days after we finish our investigation. You may ask for copies of the documents that we used in our investigation. If we credit your account with funds while investigating an error, you must repay those funds to us if we determine that no error has occurred.
If you believe your Banking Card, VISA® Debit Card or PIN has been lost or stolen, please call us at 610.525.1700 (Monday-Friday 7:00 a.m.- 7:00 p.m. Saturday 9:00 a.m. - 2:00 p.m. and Sunday 11:00 a.m.- 2:00 p.m.) or 1.800.554.8969 (all other times).
PLEASE RECONCILE THIS STATEMENT PROMPTLY
FOLLOW THESE STEPS TO BALANCE YOUR ACCOUNT
1. UPDATE YOUR ACCOUNT REGISTER. ADD: Any deposits, other credits, interest payments of Automatic Teller Machine credits listed on the statement that you have not already entered. (A credit is an amount added to your account.) SUBTRACT: Any checks/withdrawals, other debits, charges, fees or Automatic Teller Machine debits that you have not already subtracted. (A debit is an amount subtracted from your account.)
2. In your register, mark off all deposits and credits listed on this statement. Below, list any deposits or credits not marked off.
3. In your register, mark off all checks and/or withdrawals and other debits listed on this statement. Below, list any checks or debits not marked off.
4. To prove the balance of your account, complete the calculation below. The Statement Balance is your balance as of the date of this statement (as shown under the Account Summary section at the beginning of your statement).
(Image Omitted)
Enter your account register balance
Add Check/Withdrawals outstanding (Total B)
+
SUBTOTAL
Subtract deposits/credits not yet credited (Total A)
-
Your ending statement balance should be
=
If this figure does not agree with your statement balance, review all of your entries and calculations for accuracy and completeness.
REPORT AND RECOMMENDATIONS OF THE DISCIPLINARY BOARD OF THE SUPREME COURT OF PENNSYLVANIA
TO THE HONORABLE CHIEF JUSTICE AND JUSTICES OF THE SUPREME COURT OF PENNSYLVANIA:
Pursuant to Rule 208(d)(2)(iii) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania ("Board") herewith submits its findings and recommendations to your Honorable Court with respect to the above-captioned Petition for Discipline.
I. HISTORY OF PROCEEDINGS
By Petition for Discipline filed on December 23, 2019, Petitioner, Office of Disciplinary Counsel, charged Respondent, Valerie Andrine Hibbert, with violations of the Rules of Professional Conduct and Pennsylvania Rules of Disciplinary Enforcement. Respondent failed to file a timely Answer to Petition.
Following the appointment of a District II Hearing Committee ("Committee"), the Committee Chair held a prehearing conference on February 28, 2020. Respondent failed to appear. Due to concerns arising from the COVID-19 pandemic, the disciplinary hearing scheduled for April 3, 2020 was continued.
On June 4, 2020, the Committee Chair conducted a telephone conference with the parties, at which time Respondent's then counsel advised of his intention to file an untimely Answer to Petition for Discipline. By Order dated June 4, 2020, Respondent was directed to file a response to the Petition for Discipline by June 8, 2020. Respondent failed to file an Answer to Petition on or before June 8, 2020. On June 17, 2020, Respondent submitted an untimely Answer to Petition and failed to serve the untimely Answer on Petitioner. On June 18, 2020, Petitioner filed a motion to strike the untimely Answer. By Order dated June 24, 2020, the Committee Chair accepted the filing but struck 28 paragraphs where Respondent denied allegations contained in the Petition.
The Committee conducted a disciplinary hearing on July 31, 2020. Petitioner offered into evidence exhibits ODC-1 through ODC-66, which were admitted without objection, and offered the testimony of one witness. Respondent, represented by counsel, testified on her own behalf and presented the testimony of six witnesses. Respondent offered into evidence exhibits R-1 through R-4, which were admitted over Petitioner's objections. Another hearing was scheduled for August 6, 2020, but technical difficulties prevented that hearing from taking place. This matter was concluded on August 18, 2020 by videotape and stenographic deposition.
On September 11, 2020, Petitioner filed a brief to the Committee and recommended that Respondent be suspended for a period of two years. On October 1, 2020, Respondent filed a brief to the Committee and recommended a public censure with or without probation as appropriate discipline.
By Report filed on November 12, 2020, the Committee concluded that Respondent violated the rules as charged in the Petition for Discipline and recommended that she be suspended for a period of one year and one day.
On December 3, 2020, Respondent filed a Brief on Exceptions and adjusted her recommended discipline to a public reprimand or stayed suspension with a period of probation. Respondent requested oral argument before the Board. Petitioner filed a Brief Opposing Exceptions on December 17, 2020.
A three-member Board panel heard oral argument on January 11, 2021.
The Board adjudicated this matter at the meeting on January 21, 2021.
II. FINDINGS OF FACT
The Board makes the following findings:
1. Petitioner, whose principal office is situated at Pennsylvania Judicial Center, 601 Commonwealth Avenue, Suite 2700, P.O. Box 62485, Harrisburg, Pennsylvania 17106 is invested, pursuant to Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement (hereinafter "Pa.R.D.E."), with the power and duty to investigate all matters involving alleged misconduct of any attorney admitted to practice law in the Commonwealth of Pennsylvania and to prosecute all disciplinary proceedings brought in accordance with the various provisions of said rules.
2. Respondent is Valerie Andrine Hibbert, born in 1963 and admitted to practice law in the Commonwealth of Pennsylvania in 1995. Respondent maintains her office at Hibbert & Associates PC, 22 N. Lansdowne Avenue, Lansdowne, Delaware County, Pennsylvania 19050.
3. Respondent is subject to the disciplinary jurisdiction of the Disciplinary Board of the Supreme Court of Pennsylvania.
4. Respondent has no prior history of discipline.
5. On January 7, 2020, Daniel G. Richer, an auditor/investigator with the Office of Disciplinary Counsel, personally served the Petition for Discipline on Respondent. ODC-1.
6. Respondent failed to timely file an Answer to the Petition for Discipline.
7. All allegations in the Petition for Discipline are deemed admitted. N.T. 7/31/20 at 9; Pa.R.D.E. 208(b)(3).
8. Paragraphs 1-39 and 41-141 of the Petition for Discipline are set forth below and incorporated as Findings of Fact 9-44, 47-81, 86-100, 105-115, 117-118, 120-130, 132-157.
Misuse of IOLTA Accounts
9. During the time frame in question, Respondent maintained an IOLTA at TD Bank ("TD Bank IOLTA").
10. Respondent failed to maintain individual ledgers for each client whose funds she held in the TD Bank IOLTA, showing the source, amount and nature of all funds received from or on behalf of the client, the description and amounts of charges or withdrawals, the names of all persons or entities to whom such funds were disbursed, and the dates of all deposits, transfers, withdrawals and disbursements.
11. Respondent failed to maintain a regular trial balance of individual client ledgers and failed to conduct a reconciliation for the TD Bank IOLTA on a monthly basis, reconciling the total cash balance with the total of the client balance listing.
12. During the time frame in question, Respondent maintained an IOLTA at Royal Bank America (hereinafter the "RBA IOLTA").
G.D.
13. In or before December of 2016, Respondent resolved a personal injury claim on behalf of G.D. for fifteen thousand dollars ($15,000.00).
14. On December 23, 2016, Respondent deposited into the TD Bank IOLTA a check in the amount of five thousand dollars ($5,000.00) from GEICO General Insurance Company, in partial satisfaction of Ms. D.'s claim.
15. On December 23, 2016, Respondent deposited into the TD Bank IOLTA a check in the amount of five thousand dollars ($5,000.00) from Progressive, in partial satisfaction of Ms. D.'s claim.
16. By letter to Ms. D. dated December 27, 2016, Respondent, inter alia, enclosed a check dated January 10, 2017, made payable to Ms. D. in the amount of seven thousand six hundred forty-six dollars and seventy-one cents ($7,646.71), drawn against the TD Bank IOLTA, which represented the portion of the settlement proceeds to which Ms. D. was entitled.
17. By check dated December 27, 2016, Respondent withdrew two thousand dollars ($2,000.00) of Ms. D.'s settlement proceeds from the TD Bank IOLTA.
18. By check dated December 27, 2016, Respondent withdrew two thousand one hundred and sixty-three dollars ($2,163.00) of Ms. D.'s settlement proceeds from the TD Bank IOLTA.
19. On December 29, 2016, Respondent deposited into the TD Bank IOLTA a check in the amount of five thousand dollars ($5,000.00) from The Hartford - Eastern Auto Litigation Center, in satisfaction of Ms. D.'s claim.
20. By check dated January 10, 2017, made payable to Allied Medical in the amount of four hundred twenty-seven dollars and sixty-six cents ($427.66), drawn against the TD Bank IOLTA, Respondent satisfied Ms. D.'s account with Allied Medical.
21. By check dated January 10, 2017, made payable to Nextgen Reporting in the amount of eight hundred forty dollars and fifty cents ($840.50), drawn against the TD Bank IOLTA, Respondent satisfied costs associated with Ms. D.'s claim.
22. By check dated January 10, 2017, made payable to UPHS HUP Patient Pay in the amount of one hundred dollars ($100.00), drawn against the TD Bank IOLTA, Respondent satisfied Ms. D.'s account with the University of Pennsylvania Health System.
23. By check dated January 10, 2017, Respondent withdrew five hundred fifteen dollars and thirteen cents ($515.13) of Ms. D.'s settlement proceeds from the TD Bank IOLTA.
24. By check dated January 10, 2017, Respondent withdrew two hundred and twenty dollars ($220.00) of Ms. D.'s settlement proceeds from the TD Bank IOLTA.
25. Respondent failed to promptly withdraw from the TD Bank IOLTA funds from Ms. D.'s settlement to which Respondent was entitled in the amount of one thousand eighty-seven dollars ($1,087.00).
M.B.
26. In or before January of 2017, Respondent settled a personal injury claim on behalf of M.B. for sixty thousand dollars ($60,000.00).
27. On January 20, 2017, Respondent deposited into the TD Bank IOLTA a check in the amount of sixty thousand dollars ($60,000.00) from Allstate, in satisfaction of Ms. B.'s claim.
28. By check dated January 24, 2017, Respondent withdrew five thousand dollars ($5,000.00) of Ms. B.'s settlement proceeds from the TD Bank IOLTA.
29. By check dated January 24, 2017, Respondent withdrew five thousand dollars ($5,000.00) of Ms. B.'s settlement proceeds from the TD Bank IOLTA.
30. By check dated January 24, 2017, made payable to National Liability and Fire in the amount of seventeen thousand dollars ($17,000.00), drawn against the TD Bank IOLTA, Respondent satisfied Ms. B.'s account with National Liability and Fire.
31. By check dated January 24, 2017, made payable to Ms. B. in the amount of nineteen thousand dollars ($19,000.00), drawn against the TD Bank IOLTA, Respondent distributed to Ms. B. the portion of the settlement proceeds to which she was entitled.
32. By check dated February 7, 2017, Respondent withdrew six thousand dollars ($6,000.00) of Ms. B.'s settlement proceeds from the TD Bank IOLTA.
33. By check dated February 7, 2017, Respondent withdrew one thousand dollars ($1,000.00) of Ms. B.'s settlement proceeds from the TD Bank IOLTA.
34. By check dated April 18, 2017, Respondent withdrew six thousand dollars ($6,000.00) of Ms. B.'s settlement proceeds from the TD Bank IOLTA.
35. Respondent failed to promptly withdraw from the TD Bank IOLTA funds from Ms. B.'s settlement to which Respondent was entitled in the amount of one thousand dollars ($1,000.00).
J.Y.
36. In or before March of 2016, Respondent was retained by J.Y. to represent him in a dispute with his tenant, Halia Home & Community Services, Inc., docketed at Case ID: 16-1942 (Court of Common Pleas of Delaware County).
37. Between March of 2016 and September of 2016, Halia Home & Community Services, Inc. paid ten thousand four hundred dollars ($10,400.00) into escrow with the Delaware County Court of Common Pleas.
38. On November 28, 2016, a panel of arbitrators found in favor of Mr. Y. in the amount of eleven thousand three hundred dollars ($11,300.00).
39. On January 12, 2017, Hugh P. McElhenney, Esquire, filed a Petition for Release of Escrow on behalf of Halia Home & Community Services, Inc., seeking the release of all funds held in escrow to Respondent and Mr. Y.
40. By Order dated March 6, 2017, all funds held in escrow were released to Respondent and Mr. Y.
41. On March 27, 2017, Respondent deposited into the TD Bank IOLTA a check in the amount of ten thousand four hundred dollars ($10,400.00) from the Treasurer of Delaware County.
42. By check dated March 27, 2017, made payable to J.Y. and drawn against the TD Bank IOLTA, Respondent distributed to Mr. Y. the funds to which he was entitled.
43. By check dated April 18, 2017, Respondent withdrew two hundred dollars ($200.00) from the TD Bank IOLTA.
44. By check dated April 27, 2017, Respondent withdrew one thousand dollars ($1,000.00) from the TD Bank IOLTA.
45. By check dated May 26, 2017, drawn on the TD Bank IOLTA, Respondent paid Mr. McElhenney $400.00 for "Settlement Payment in Full CCP No. 1942-2016." ODC-2; N.T. 8/18/20 at 179-180.
46. Respondent failed to promptly withdraw from the TD Bank IOLTA funds to which she was entitled in connection with Mr. Y's matter in the amount of $800.00. Ans. at ¶¶ 31-39; ODC-2 at 29; ODC-13 - ODC-15.
A.A.
47. In or before March 2017, Respondent resolved a claim against State Farm Mutual Automobile Insurance Company on behalf of A.A. for ten thousand dollars ($10,000.00).
48. On April 6, 2017, Respondent deposited into the TD Bank IOLTA a check in the amount of ten thousand dollars ($10,000.00) from State Farm Mutual Automobile Insurance Company, in satisfaction of Ms. A.'s claim.
49. By check dated April 13, 2017, Respondent withdrew one thousand five hundred dollars ($1,500.00) of Ms. A.'s settlement funds from the TD Bank IOLTA.
50. By check dated April 18, 2017, made payable to Oxford Rehabilitation Center in the amount of eight hundred ninety-eight dollars and eighty-four cents ($898.84), drawn against the TD Bank IOLTA, Respondent settled Ms. A.'s account with Oxford Rehabilitation Center.
51. By check dated April 18, 2017, made payable to Ms. A. in the amount of five thousand one hundred one dollars and sixteen cents ($5,101.16), drawn against the TD Bank IOLTA, Respondent distributed to Ms. A. the funds to which she was entitled.
52. Respondent failed to promptly withdraw from the TD Bank IOLTA funds from the resolution of Ms. A.'s claim to which Respondent was entitled in the amount of two thousand five hundred dollars ($2,500.00).
Robert Wilson
53. By Order of the Supreme Court of Pennsylvania dated October 5, 2016, Robert Arnold Wilson, Esquire was administratively suspended.
54. In or before January 2017, Respondent agreed to assist Mr. Wilson in resuming active status.
55. Mr. Wilson provided nine hundred dollars ($900.00) in cash to Respondent for fees related to his resumption of active status.
56. Respondent did not deposit these funds into the TD Bank IOLTA.
57. By letter to the Attorney Registration Office dated January 3, 2017, Mr. Wilson submitted a 2016-17 PA Administrative Change in Status Form and a check in the amount of nine hundred dollars ($900.00), made payable to "PA Attorney Registration" and drawn against the TD Bank IOLTA.
58. By letter to Respondent dated January 17, 2017, Disciplinary Counsel:
a. requested Respondent's Statement of Position regarding allegations that she either misapplied entrusted funds or impermissibly commingled personal funds with entrusted funds in the TD Bank IOLTA; and
b. directed Respondent to produce copies of the records that she is required to maintain pursuant to RPC 1.15(c) for the TD Bank IOLTA for the period of December 1, 2016, through the present (hereinafter the "Requested Records").
59. By letter to Disciplinary Counsel dated January 27, 2017, Respondent, inter alia, advised that she had assisted Mr. Wilson with opening a personal account at TD Bank in early January 2017 and that "[a]lthough Mr. Wilson is not a client, [she] thought it was best not to put his funds in [her] business account."
60. Respondent failed to produce the requested records.
61. By letter to Respondent dated February 23, 2017, Disciplinary Counsel directed Respondent to produce the requested records on or before March 6, 2017.
62. By letter to Disciplinary Counsel dated March 21, 2017, Respondent, inter alia, advised that:
a. Mr. Wilson had received three (3) starter checks with his TD Bank account, but that she "did not believe that sending a starter check [to Attorney Registration] would be the right course of action"; and
b. while Mr. Wilson gave her nine hundred dollars ($900.00) cash, she never deposited these funds into the TD Bank IOLTA because there were funds in the account that were "due to Hibbert & Associates, P.C., from [a personal injury] settlement."
63. Respondent failed to produce the requested records.
64. By letter to Respondent dated March 30, 2017, Disciplinary Counsel, pursuant to Pa.R.D.E. 221(g)(1) and D.Bd. Rules § 91.178(b), directed Respondent to produce the requested records within 10 business days after personal service of the letter.
65. On March 31, 2017, Auditor/Investigator Richer personally served this letter on Respondent.
66. Respondent failed to produce the requested records or otherwise respond to Disciplinary Counsel's March 30, 2017 letter.
67. By letter to Respondent dated August 18, 2017, Disciplinary Counsel requested Respondent's Statement of Position regarding allegations that she, inter alia, failed to comply with repeated requests to produce the requested records and maintained personal funds in the TD Bank IOLTA.
68. By letter to Disciplinary Counsel dated September 21, 2017, Respondent advised that "[a]t this time, [she is] reserving [her] rights to respond after [Disciplinary Counsel] complete[s] [their] investigation."
69. By letter to Respondent dated September 27, 2017, Disciplinary Counsel advised that Respondent's failure to respond to the August 18, 2017 letter was an independent ground for discipline pursuant to Pa.R.D.E. 203(b)(7) and directed Respondent to respond to the allegations of misconduct by October 9, 2017.
70. Respondent failed to respond to Disciplinary Counsel's September 27, 2017 letter.
3609 North Lawrence Street
71. On March 30, 2010, E.S. entered into an Agreement of Sale with J.R. and N.V. regarding real property located at 3609 North Lawrence Street in Philadelphia, Pennsylvania (hereinafter the "Agreement of Sale").
72. Respondent served as escrow agent for this transaction.
73. On March 30, 2010, Mr. R. and Ms. V. provided Respondent with ten thousand dollars ($10,000.00) in cash, to be held in escrow pursuant to the terms of the Agreement of Sale.
74. Respondent deposited Mr. R. and Ms. V.'s ten thousand dollar ($10,000.00) payment into the RBA IOLTA.
75. Pursuant to the terms of the Agreement of Sale, Mr. R. and Ms. V. were obligated to make monthly payments in the amount of four hundred sixty-four dollars and twenty-four cents ($464.24) until the entire purchase price of eighteen thousand dollars ($18,000.00) was paid in full.
76. Ms. S. was unable to deliver clear title for the real property located at 3609 North Lawrence Street in Philadelphia, Pennsylvania, and, accordingly, the transaction outlined in the Agreement of Sale was never completed.
77. Between March 2010 and April 2017, Respondent failed to maintain ten thousand dollars ($10,000.00) in the RBA IOLTA. Accordingly, the RBA IOLTA was out of trust.
78. Respondent failed to hold Mr. R. and Ms. V.'s ten thousand dollar ($10,000.00) payment inviolate.
79. On April 19, 2017, Respondent deposited a check into the RBA IOLTA, creating a balance in that account of ten thousand three hundred twenty-one dollars and ninety-four cents ($10,321.94).
80. By check dated May 31, 2017, Respondent withdrew three hundred twenty-one dollars and ninety-four cents ($321.94) from the RBA IOLTA.
81. From April 2017 through the present Respondent has maintained at least $10,000.00 in the RBA IOLTA pending the resolution of a dispute regarding Mr. R. and Ms. V.'s monthly payments.
82. Respondent admitted to maintaining $10,000 in her escrow account related to her representation of the seller in connection with the real estate transaction at 3609 North Lawrence Street, which was to have occurred in March 2010. N.T. 8/18/20 at 182-183, 187.
83. Respondent does not dispute that these client funds were invaded at some unspecified point and thereafter replenished from a separate settlement. N.T. 8/18/20 at 185-186.
84. Respondent conceded that she held the $10,000 for over a decade, and that the funds remained in her account as of 2020. N.T. 8/18/20 at 188-189.
85. Respondent made no meaningful effort to discern which party had a valid claim to these funds and return them, even though she acknowledged the terms of the property sale agreement entitled the buyers of the property to those funds, and she only very recently sought advice to deposit the funds with the City of Philadelphia. N.T. 8/18/2020 at 57, 190, 195-198.
Howard Taylor
86. On or about January 23, 2016, Glenn Ross slipped and fell at the NT Corner Store on Kingsessing Avenue in Philadelphia (hereinafter the "January 23, 2016 Slip and Fall").
87. Mr. Ross engaged Respondent to represent him in a personal injury action arising out of the January 23, 2016 Slip and Fall.
88. Respondent failed to inform Mr. Ross in writing that she did not maintain professional liability insurance.
89. In or about February 2017, Mr. Ross was assaulted by an employee of Unique Pizza in Suburban Station (hereinafter the "February 2017 Assault").
90. Mr. Ross engaged Respondent to represent him in a personal injury action arising out of the February 2017 Assault.
91. Respondent failed to inform Mr. Ross in writing that she did not maintain professional liability insurance.
92. By letter to Respondent dated February 15, 2018, Howard Taylor, Esquire inter alia, advised that Mr. Ross no longer wanted Respondent to represent him regarding the February 2017 Assault and requested that Respondent forward a copy of her case file to Mr. Taylor.
93. Respondent failed to respond to Mr. Taylor's February 15, 2018 letter.
94. By letter to Respondent dated February 27, 2018, Mr. Taylor again requested that Respondent provide him with a copy of the case file regarding the February 2017 Assault.
95. In or about March of 2018, Respondent provided Mr. Taylor with her case file for the January 23, 2016 Slip and Fall.
96. Respondent failed to provide Mr. Taylor with a copy of her case file regarding the February 2017 Assault.
97. By letter to Respondent dated June 18, 2018, Disciplinary Counsel requested Respondent's Statement of Position regarding allegations that she, inter alia, failed to advise Mr. Ross in writing that she did not maintain professional liability insurance and failed to provide Mr. Taylor with a copy of the case file regarding the February 2017 Assault.
98. By letter to Disciplinary Counsel dated October 31, 2018, Respondent, through counsel, provided her Statement of Position and represented, inter alia, that her counsel would "make arrangements with Mr. Taylor to review the file [Respondent's counsel] ha[s] received."
99. Respondent conceded that she failed to advise Mr. Ross in writing that she did not maintain professional liability insurance.
100. In or before November of 2018, Respondent's counsel provided Respondent's case file regarding the February 2017 Assault to Mr. Taylor.
101. At the disciplinary hearing Respondent testified that Mr. Ross "wasn't [her] client," and that she "never signed an agreement with him or anything." N.T. 8/18/20 at 28-29.
102. This testimony is not credible in light of the documents from Respondent's own file, including a March 29, 2017 signed contingency fee agreement and a March 30, 2017 letter over Respondent's signature to SEPTA stating "[p]lease be informed of my representation of Glenn Ross who sustained disabling personal injuries by reason of assault at Unique Pizza Suburban Station." ODC-58.
103. Respondent's testimony that she has been advising clients in her fee agreements "since approximately 2015 or a little bit earlier" that she does not maintain professional liability insurance was not corroborated. N.T. 8/18/2020 at 77, 125-127; ODC-58 at 44.
104. In her testimony, Respondent admitted that her retainer agreement with Mr. Ross did not advise him that she did not carry malpractice insurance, nor did she otherwise advise him in writing. N.T. 8/18/20 at 126-127.
Abdullah Dukuly
105. In or about April of 2016, Abdullah Dukuly on behalf of God's Divine Favor Ministries, hired Respondent to prepare and file Articles of Incorporation and a Form 1023, Application for Recognition of Exemption Under Section 501(c)(3) of the Internal Revenue Code (hereinafter "Form 1023"). 106. On or about June 3, 2016, Mr. Dukuly paid Respondent three hundred and forty dollars ($340.00). 107. Respondent failed to deposit this advance payment into a trust account or IOLTA.
108. Respondent failed to obtain Mr. Dukuly's informed consent, confirmed in writing, to not maintain this advance payment in a trust account or IOLTA.
109. On July 1, 2016, Mr. Dukuly paid Respondent two hundred and fifty dollars ($250.00). 110. Respondent failed to deposit this advance payment into a trust account or IOLTA.
111. Respondent failed to obtain Mr. Dukuly's informed consent, confirmed in writing, to not maintain this advance payment in a trust account or IOLTA.
112. On or about August 23, 2016, Respondent filed Articles of Incorporation-NonProfit with the Pennsylvania Department of State, Bureau of Corporations and Charitable Organizations, on behalf of God's Divine Favor Ministries.
113. By letter to Mr. Dukuly dated September 7, 2016, Respondent advised that the next step for God's Divine Favor Ministries would be "to obtain a 501(c)(3)," and that the "cost of this filing is Eight Hundred and Fifty Dollars ($850.00)" (emphasis in original).
114. By email to Respondent dated January 25, 2017, Mr. Dukuly, inter alia, asked Respondent to provide "a clear understanding" of the 501(c)(3) certification.
115. Respondent failed to respond to this email.
116. By letter dated May 19, 2017, Respondent submitted a Form 1023 to the IRS on behalf of God's Divine Favor Ministries, and also submitted a Form 2848, Power of Attorney and Declaration of Representative, indicating that she was God's Divine Favor Ministries' representative. N.T. 8/18/20 at 139-140; ODC-47 at 2.
117. By letter to God's Divine Favor Ministries dated August 24, 2017, the IRS enclosed an Information Request and indicated that a response was due by September 21, 2017.
118. Respondent received a copy of this letter from the IRS.
119. Respondent's testimony that the IRS' August 24, 2017 Information Request "did not come to [her] office" was not credible. N.T. 8/18/20 at 42, 138-140; Ans. at § 104; ODC-51 at 5; ODC-58 at 4.
120. By letter to Mr. Dukuly dated September 15, 2017, Respondent advised that God's Divine Favor Ministries' Articles of Incorporation would need to be amended, at a "total cost" of three hundred dollars ($300.00) and that Mr. Dukuly had an outstanding balance of one hundred and eighty dollars ($180.00). Respondent further advised that "[t]he total balance of Four Hundred and Eighty Dollars ($480.00) will need to be paid in full prior to use [sic] completing the IRS's [sic] request for additional information" (emphasis in original).
121. By check dated September 24, 2017, Mr. Dukuly paid Respondent four hundred and eighty dollars ($480.00).
122. Respondent failed to deposit this advance payment into a trust account or IOLTA.
123. Respondent failed to obtain Mr. Dukuly's informed consent, confirmed in writing, to not maintain this advance payment in a trust account or IOLTA.
124. In September 2017, Mr. Dukuly called Respondent several times regarding the IRS' Information Request.
125. Respondent failed to answer or return Mr. Dukuly's calls. 126. On October 23, 2017, Respondent faxed an untimely response to the IRS' Information Request.
127. By letter to God's Divine Favor Ministries dated November 3, 2017, the IRS advised that they "didn't receive the additional information [they] requested," and that they had "closed [the] case without making a determination."
128. By letter to Respondent dated June 18, 2018, Disciplinary Counsel requested Respondent's Statement of Position regarding allegations that she, inter alia, failed to deposit Mr. Dukuly's advance payments into a trust account or IOLTA.
129. By letter to Disciplinary Counsel dated October 31, 2018, Respondent, through counsel, provided her Statement of Position.
130. Respondent conceded in her Statement of Position that she failed to deposit Mr. Dukuly's advance payments into a trust account or IOLTA.
131. Respondent testified that she returned "some" of Mr. Dukuly's legal fees to him. N.T. 8/18/20 at 50, 51.
James Webb/Peter Tecco
132. On June 16, 2017, Chhay Laim filed a Landlord/Tenant Complaint against James Webb and Peter V. Tecco, Sr., in Magisterial District Court 32-2-40 (Delaware County) (hereinafter the "Eviction Proceedings").
133. On June 22, 2017, JW Hot Heads-Peter V. Tecco, Sr., filed a civil complaint against Mr. Laim in Magisterial District Court 32-2-40 (Delaware County) (hereinafter the "Civil Proceedings").
134. On July 19, 2017, judgment was entered in Mr. Laim's favor in the Eviction Proceedings and in the Civil Proceedings.
135. Mr. Webb and Mr. Tecco hired Respondent to represent JW Hot Heads, a business that they were operating out of the property that was the subject of the Eviction Proceedings.
136. By check dated July 31, 2017, Mr. Tecco paid Respondent one thousand five hundred dollars ($1,500.00).
137. Respondent failed to deposit this advance payment into a trust account or IOLTA.
138. Respondent failed to obtain Mr. Tecco's informed consent, confirmed in writing, to not maintain this advance payment in a trust account or IOLTA.
139. Respondent failed to obtain Mr. Webb's informed consent, confirmed in writing, to not maintain this advance payment in a trust account or IOLTA.
140. Mr. Webb paid Respondent an additional one hundred dollars ($100.00) in cash.
141. Respondent failed to deposit this advance payment into a trust account or IOLTA.
142. Respondent failed to obtain Mr. Webb's informed consent, confirmed in writing, to not maintain this advance payment in a trust account or IOLTA.
143. Respondent failed to obtain Mr. Tecco's informed consent, confirmed in writing, to not maintain this advance payment in a trust account or IOLTA.
144. On August 17, 2017, Respondent filed a Notice of Appeal from Magisterial District Judge Judgment on behalf of Mr. Tecco and Mr. Webb (hereinafter the "Notice of Appeal"), appealing the July 19, 2017 judgments entered in the Eviction Proceedings and the Civil Proceedings to the Court of Common Pleas of Delaware County (hereinafter the "Common Pleas Proceedings").
145. Respondent failed to file a proof of service with the Office of Judicial Support demonstrating that the Notice of Appeal and accompanying rule to file complaint had been served on Mr. Laim.
146. On September 1, 2017, Andrew Goldberg, Esquire filed a Praecipe to Strike Appeal from District Justice Judgment in the Common Pleas Proceedings, asserting that Respondent had failed to comply with Pa.R.C.P.M.D.J. 1005B.
147. On September 1, 2017, the appeal was stricken. 148. Respondent failed to advise Mr. Tecco or Mr. Webb that the appeal had been stricken. 149. Respondent made no attempt to reinstate the Common Pleas Proceedings.
150. By letter to Respondent dated July 12, 2018, Mr. Webb requested a refund of Mr. Tecco's one thousand five hundred dollar ($1,500.00) payment.
151. Respondent failed to respond to this letter.
152. Respondent failed to refund any portion of the advance payment.
153. By letter to Respondent dated September 17, 2018, Disciplinary Counsel requested Respondent's Statement of Position regarding allegations that she, inter alia, failed to refund any portion of Mr. Webb's and Mr. Tecco's advance payments.
154. By letter to Disciplinary Counsel dated October 31, 2018, Respondent, through counsel, provided her Statement of Position and asserted, inter alia, that she was "addressing the refund at this time."
155. Respondent conceded that she failed to deposit Mr. Tecco's and Mr. Webb's advance payments into a trust account or IOLTA.
156. By letter to Mr. Webb and Mr. Tecco dated November 8, 2018, Respondent through counsel provided a refund check in the amount of one thousand five hundred dollars ($1,500.00), drawn against the TD Bank IOLTA. N.T. 7/31/20 at 27.
157. On or before November 8, 2018, Respondent deposited one thousand five hundred dollars ($1,500.00) into the TD Bank IOLTA.
158. On November 19, 2018, James Webb filed a civil complaint against Respondent in Magisterial District Court 32-3-54 (Delaware County), alleging that Respondent "failed to provide competent and skillful representation." ODC-60A at 2; ODC-61C at 1.
159. On March 20, 2019, judgment was entered in Mr. Webb's favor and against Respondent in the amount of twelve thousand one hundred seventy-one dollars and seventy-five cents ($12,171.75). ODC-60B.
160. On April 17, 2019, Respondent filed a Notice of Appeal from Magisterial District Judge Judgment in the Court of Common Pleas of Delaware County, docketed at CV-2019-003420. ODC-61A; ODC-61B. This action remains pending. ODC-61A.
161. Mr. Webb testified at the disciplinary hearing that the adverse decision in the landlord/tenant matter had a substantial adverse impact on his business and finances. N.T. 7/31/20 at 28-29.
Additional Findings
162. Respondent failed to appear for the February 28, 2020 prehearing conference.
163. Respondent failed to provide Petitioner with the financial net worth statement set forth in Disciplinary Board Rules § 89.151(b)(6) on or before March 13, 2020, as directed by the March 2, 2020 Pre-Hearing Order. Pre-Hearing Order I at ¶ 9; ODC-66 (July 24, 2020 Personal Net Worth Statement).
164. Respondent failed to provide Petitioner with the financial net worth statement set forth in Disciplinary Board Rules § 89.151(b)(6) on or before June 18, 2020, as directed by the June 4, 2020 Pre-Hearing Order. Pre-Hearing Order II at ¶ 10; ODC-66 (July 24, 2020 Personal Net Worth Statement).
165. Respondent failed to disclose in her July 24, 2020 verified Personal Net Worth Statement an outstanding fine in the amount of $2,000.00 imposed by the Municipal Court of Philadelphia County. ODC-64; ODC-66.
166. During the relevant time frame, Respondent was assisting in the care of senior citizens in her community with various health issues and limitations. N.T. 8/18/20 at 93-95.
167. During the relevant time frame, Respondent was the custodian of a foreign exchange student from Taiwan. This student made threats to perpetrate shootings at various schools in Delaware County, resulting in widespread media attention, involvement by the Upper Darby, Pennsylvania police and the Federal Bureau of Investigation, and Respondent's arrest at an airport in Atlanta, Georgia. N.T. 8/18/20 at 97-98.
168. The exchange student was determined to have stockpiled ammunition in Respondent's home, unbeknownst to Respondent, resulting in the student's arrest and eventual deportation to Taiwan. N.T. 8/18/20 at 98-99.
169. Respondent was not charged with any criminal conduct as a result of the incident involving the foreign exchange student. Id.
170. Respondent attributes her failure to properly comply with her professional obligations to being overwhelmed:
Q. And one of the big questions, perhaps. Why did you - why didn't you take your money out of the IOLTA account when you earned the money?
A. Again, if you notice, most of that happened in 2016, 2017. And, again, that was when my plate was just filled. And once the distribution was done, I left my funds there and used it to operate my office in a way of a control mechanism. So I would take what I need when I didn't need it. (Sic) We no -- I no longer do that. Like I said, we have the new IOLTA ledger that's created. So it's just taken out. The file is closed. The ledger is complete. And we just move on, and I don't go back and forth and do that anymore.
Because that can lead to problems. So I should not be doing that, and I don't do it anymore. But that's why. There was just so much on my plate at that time, and I used that as a gauge in terms of running the office, just taking the money when I needed, to make sure things were taken care of. Because I was always being called to do something for someone outside of the office.N.T. 8/18/20 at 101, 108-09.
171. Respondent admits that she did not respond to the March 30, 2017 letter from Disciplinary Counsel requesting that she produce records and ledgers; her explanation for failing to respond in any way is that she did not have the ledgers requested. N.T. 8/18/20 at 146-49.
172. Respondent introduced the testimony of five character witnesses.
173. Betty Simon, Esquire has been an attorney in Pennsylvania since 1983 and is the director of program operations for Northwest Counseling Services. N.T. 7/31/20 at 69.
174. Ms. Simon has known Respondent for approximately 15 years and has both consulted with Respondent and observed her legal work. N.T. 7/31/20 at 70.
175. Ms. Simon testified that Respondent enjoys a positive reputation in the legal community. N.T. 7/31/20 at 71-73.
176. Ms. Simon had a general awareness of most of the allegations of misconduct against Respondent and testified that isolated incidents "may give [her] pause, but it would not change my whole opinion of [Respondent's] reputation." N.T. 7/31/20 at 78.
177. Kenneth Robinson, Esquire has known Petitioner since the 1990s and practiced law in the same office building during the mid-1990s. N.T. 7/31/20 at 84.
178. Mr. Robinson testified that Respondent has a reputation for being law-abiding, truthful and "a very good lawyer." N.T. 7/31/20 at 85.
179. Mr. Robinson acknowledged that he was not aware of a number of the factual allegations against Respondent and noted that Respondent tends to be "careless.' N.T. 7/31/20 at 89-91.
180. Jerry Yogboh is Respondent's former client. He testified that Respondent has a "great" reputation in the community, including in her capacity as advisor to the Liberian Association in Pennsylvania. N.T. 7/31/20 at 144, 149.
181. Mr. Yogboh testified to a lack of knowledge of most of the misconduct allegations in the instant matter. N.T. 7/31/20 at 152.
182. Ayiesha Eldemire has been Respondent's legal assistant since approximately February or March 2020. N.T. 7/31/20 at 124, 126.
183. Ms. Eldemire created documents and spreadsheets to assist Respondent's office to operate smoothly, including ledgers pertaining to the IOLTA account. N.T. 7/31/20 at 125, 130.
184. Ms. Eldemire acknowledged that she had not reviewed the Petition for Discipline and was unaware of the allegations of misconduct against Respondent. N.T. 7/31/20 at 137-138.
185. Mariam Ives testified on Respondent's behalf and has known Respondent since 2010. Ms. Ives testified that Respondent has a reputation in the community as being loyal, truthful and honest. N.T. 7/31/20 at 114-115.
186. Ms. Ives was aware of some but not all of the allegations of misconduct against Respondent and testified that even in light of those allegations, she would still refer a legal matter to Respondent. N.T. 7/31/20 at 118 -121.
187. Respondent's character witnesses testified sincerely and credibly, although most were unaware of the extent of Respondent's disciplinary issues.
188. Respondent presented the testimony of Dr. Fatima Hafz as a purported expert.
189. Dr. Hafz described herself as an "expert" in providing "support," which she stated was "listening to people, and supporting them around challenges they're having with their work-related environment, with the personal environment, personal life." N.T. 7/31/20 at 48.
190. Dr. Hafz is not licensed to practice psychiatry or psychology and admitted that she is not a mental health expert and is not qualified to diagnose psychiatric disorders. N.T. 7/31/20 at 56-57, 59-62, 65-66.
191. The Committee ruled that Dr. Hafz could not be qualified as an expert, but her testimony would be received only "as it relates to support determination." N.T. 7/31/20 at 66.
192. The essence of Dr. Hafz's testimony was that Respondent had "personal issues happening that didn't allow her to be focused." The most Dr. Hafz could state was that she believed Respondent could benefit from clinical mental health support. N.T. 7/31/20 at 100, 102.
193. Dr. Hafz refused to answer questions on cross-examination regarding the services she provided to Respondent and the fees charged for same. N.T. 7/31/20 at 108-109.
194. The Committee found that Dr. Hafz's credibility was "seriously undermined" by her "unjustified" refusal to answer a relevant question in the absence of any objection. HC Report pp. 20-21, n. 9.
195. Respondent testified on her own behalf.
196. Respondent was not credible in all instances, particularly with respect to her denial of serving as counsel for Glenn Ross, her denial of receiving notification from the IRS, and her explanation for the presence of $10,000 in escrowed funds in her account for more than a decade.
197. Respondent, while not credible on these points, did not intentionally provide false testimony or intentionally mislead the Committee.
198. Respondent failed to demonstrate sufficient recognition of wrongdoing and contrition for her acts of misconduct.
III. CONCLUSIONS OF LAW
1. All allegations in the Petition for Discipline are deemed admitted due to Respondent's failure to file a timely response. Pa.R.D.E. 208(b)(3).
2. Respondent failed to establish by clear and convincing evidence that she suffers from a psychiatric disorder that was a causal factor in her misconduct. Office of Disciplinary Counsel v. Seymour Braun, 553 A.2d 894 (Pa. 1989).
3. By her conduct as set forth above, Respondent violated the following Rules of Professional Conduct and Pennsylvania Rules of Disciplinary Enforcement:
a. RPC 1.1 - A lawyer shall provide competent representation to a client. (Dukuly, Webb/Tecco)
b. RPC 1.2(a) - A lawyer shall abide by a client's decision concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer shall abide by the
client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify. (Webb/Tecco)
c. RPC 1.3 - A lawyer shall act with reasonable diligence and promptness in representing a client. (Dukuly, Webb/Tecco)
d. RPC 1.4(a)(2) - A lawyer shall reasonably consult with the client about the means by which the client's objectives are to be accomplished. (Webb/Tecco)
e. RPC 1.4(a)(3) - A lawyer shall keep the client reasonably informed about the status of the matter. (Webb/Tecco)
f. RPC 1.4(a)(4) - A lawyer shall promptly comply with reasonable requests for information. (Dukuly)
g. RPC 1.4(b) - A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. (Webb/Tecco)
h. RPC 1.4(c) - A lawyer in private practice shall inform a new client in writing if the lawyer does not have professional liability insurance of at least $100,000 per occurrence and $300,000 in the aggregate per year, subject to commercially reasonable deductibles, retention or co-insurance, and shall inform existing clients in writing at any time the lawyer's professional liability insurance drops below either of those amounts or the lawyer's professional liability insurance is terminated. A lawyer shall maintain a record of these disclosures for six years after the termination of the representation of a client. (Taylor)
i. RPC 1.15(b) - A lawyer shall hold all Rule 1.15 Funds and property separate from the lawyer's own property. Such property shall be identified and appropriately safeguarded. (IOLTA Accounts, Dukuly, Webb/Tecco)
j. RPC 1.15(c)(2) and (4) - Complete records of the receipt, maintenance and disposition of Rule 1.15 Funds and property shall be preserved for a period of five years after termination of the client-lawyer or Fiduciary relationship or after distribution or disposition of the property, whichever is later. A lawyer shall retain books and records for each Trust Account and for any other account in which Fiduciary Funds are held as set forth in this rule. (IOLTA Accounts)
k. RPC 1.15(e) - Except as stated in this Rule or otherwise permitted by law or by agreement with the client or third party, a lawyer shall promptly deliver to the client or third person any property, including but not limited to Rule 1.15 Funds, that the client or third person is entitled to receive. (Webb/Tecco)
l. RPC 1.15(h) - A lawyer shall not deposit the lawyer's own funds in a Trust Account except for the sole purpose of paying service charges on that account, and only in an amount necessary for that purpose. (IOLTA Accounts)
m. RPC 1.15(i) - A lawyer shall deposit into a trust account legal fees and expenses that have been paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred, unless the client gives informed consent, confirmed in writing, to the handling of fees and expenses in a difference manner. (Dukuly, Webb/Tecco)
n. RPC 1.16(d) - Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. (Taylor, Webb/Tecco)
o. Pa.R.D.E. 203(b)(3) - Willful violation of any other provisions of the Enforcement Rules shall be grounds for discipline. (IOLTA Accounts)
p. Pa.R.D.E. 203(b)(7) - Failure by a respondent-attorney without good cause to respond to Disciplinary Counsel's request or supplemental request under Disciplinary Board Rules § 87.7(b) for a statement of the respondent-attorney's position shall be grounds for discipline. (IOLTA Accounts)
q. Pa.R.D.E. 222(g)(1) - The records required to be maintained by RPC 1.15 shall be readily accessible to the lawyer and available for production to the Pennsylvania Lawyers Fund for Client Security and Office of Disciplinary Counsel in a timely manner upon request or demand by either agency, made pursuant to the rules. (IOLTA Accounts)
IV. DISCUSSION
In this matter, the Board considers the Committee's unanimous recommendation to suspend Respondent for a period of one year and one day. Respondent takes exception to this recommendation, contending that the Committee erred in concluding that Respondent's misconduct warrants a sanction requiring suspension of her license to practice law. Petitioner advocates for the Board's adoption of the Committee's recommended discipline.
Petitioner bears the burden of proving ethical misconduct by a preponderance of the evidence that is clear and satisfactory. Office of Disciplinary Counsel v. John T. Grigsby, III, 425 A.2d 730, 732 (Pa. 1981). Petitioner personally served Respondent with the Petition for Discipline; however, Respondent failed to file a timely Answer to the Petition for Discipline. Pursuant to Pa.R.D.E. 208(b)(3), factual allegations in the Petition are deemed admitted if an answer is not timely filed. Further, from the evidence adduced at the hearing, sufficient factual support exists to establish by clear and satisfactory evidence that Respondent committed professional misconduct. Upon this record, we conclude that Petitioner met its burden as to each rule violation charged in the Petition. For the following reasons, we recommend that Respondent be suspended for a period of one year and one day.
The record demonstrates that Respondent's misconduct may be categorized as a pattern of deficient representation in client matters, and a pattern of nonconformance to the financial recordkeeping and accounting requirements imposed by the rules with respect to handling the funds of others and safekeeping property.
Respondent exhibited incompetence, lack of diligence, and lack of communication in her representation of clients. Respondent's inattention needlessly delayed the IRS' determination of God's Divine Favor Ministries' claim for tax-exempt status. In May 2017, Respondent filed a Form 1023 with the IRS on behalf of her client. She simultaneously filed a form indicating that she was God's Divine Favor Ministries' representative. In August 2017, the IRS issued an Information Request regarding the Form 1023, a copy of which was sent directly to Respondent, requiring a response by September 21, 2017. Respondent disregarded several requests for information from Mr. Dukuly, on behalf of God's Divine Favor Ministries, including calls in September 2017 when the response to the IRS' Information Request was due. Despite Mr. Dukuly's calls, Respondent failed to respond timely to the Information Request, instead submitting a response more than a month after it was due. As a result of Respondent's failure to respond timely to this Information Request, the IRS closed God's Divine Favor Ministries' case. Respondent claimed that she did not receive the Information Request from the IRS, but the evidence established that she did.
Respondent's deficient representation of James Webb and Peter Tecco put her clients out of court. Mr. Webb and Mr. Tecco retained Respondent to appeal a magistrate judgment granting their landlord possession of the property from which they operated their barber shop. Respondent filed a Notice of Appeal from that judgment in the Court of Common Pleas of Delaware County, but thereafter failed to serve a copy on the landlord or file the necessary proof of service. The appeal was stricken due to Respondent's laxness and thereafter, Respondent failed to take any action to reinstate the appeal, nor did she advise her clients that the appeal had been stricken.
In both the Dukuly and Webb/Tecco matters, Respondent accepted advance payments of legal fees that she failed to maintain in a trust account or IOLTA until earned. At the hearing, Respondent attempted to classify the payments as nonrefundable retainers, but she was not able to corroborate this position. Respondent belatedly refunded the full amount of the monies to her clients in the Webb/Tecco matter after she was notified of Petitioner's investigation of the complaint filed against her. As to the Dukuly matter, Respondent testified that she believed "some of [Dukuly's] legal fees were returned to him." N.T. 8/18/20 at 51. Respondent did not offer documentary evidence corroborating her testimony.
Respondent issued the refund against the TD Bank IOLTA, even though she had never deposited the Webb/Tecco advance payments into a trust account or IOLTA.
In the Glenn Ross matter, Respondent failed to communicate to her client in writing that she did not maintain professional liability insurance and failed to promptly turn over Mr. Ross' file to Attorney Taylor when her representation was terminated. Although Respondent claimed she never represented Mr. Ross, her own files demonstrated otherwise.
Respondent's inattention and carelessness had serious consequences in the administration of her practice and was at the heart of her fiduciary and recordkeeping misconduct. The evidence established that Respondent failed to comply fully with her duties under RPC 1.15 and engaged in a pattern of failure to conform to financial recordkeeping and accounting obligations imposed by the rules. She admitted that she failed to withdraw promptly from the TD Bank IOLTA, funds to which she was entitled in connection with several client matters, testifying that "I didn't take all my money at once, because sometimes I would just leave it there." N.T. 8/18/20 at 169-170. Respondent's failure to withdraw earned funds resulted in her personal funds being commingled with the funds of others. As discussed above, in another instance of inattention to her fiduciary duties, Respondent accepted advance payments of legal fees and improperly failed to maintain them in trust until earned.
Respondent failed to maintain individual client ledgers or conduct monthly reconciliations, in violation of RPC 1.15. These failures contributed to Respondent's woes, as she had no way to determine with any accuracy what funds belonged to which client. Troublingly, in a real estate matter where Respondent served as an escrow agent, she has continued to hold $10,000 for more than a decade. The transaction was never completed because the seller was unable to deliver clear title. However, over the course of the decade, Respondent has never distributed the funds, or any portion thereof. Although Respondent explained her confusion as to who was entitled to the funds, the record was devoid of evidence to establish that she made a good faith effort during the ten year period to dispel that confusion. While acknowledging that she still holds the $10,000, Respondent indicated that recently she had received advice from legal counsel regarding disposition of the monies and planned to turn over the monies to the City of Philadelphia.
Even though Respondent knew she was responsible for holding $10,000 inviolate until settlement, she conceded that at some point in time, "the money became less than it was supposed to be" and she replenished it after realizing her accounting was "off" and "At some point, I screwed up the account, yes." Respondent testified that she always knew "in my head" that $10,000 was supposed to be in trust. N.T. 8/18/20 at 184-186. As Petitioner correctly points out, if Respondent had been maintaining her records as required pursuant to RPC 1.15(c), she would have been in a better position to ascertain why her IOLTA was out of trust.
As relates to Respondent's records, Respondent was put on notice by Petitioner on five occasions between January 2017 and September 2017 that she was under investigation for apparent IOLTA misuse and was directed to produce her financial records. During that time frame, Respondent replied to three of Petitioner's letters, but failed to produce RPC 1.15 records in accordance with Petitioner's directives. The August 2017 letter requested a statement of Respondent's position with regard to her failure to comply with Petitioner's repeated demands for her financial records. While Respondent replied to that letter, she did not respond to the allegations contained therein, stating that she wanted to "reserve her rights to respond." Respondent continued to frustrate Petitioner's efforts to review her records by simply ignoring two of the five letters. In fact, Respondent never produced any records until subpoenaed in October 2017, which records contained inaccuracies. ODC-30; ODC-31. At the hearing, Respondent and her legal assistant testified that Respondent now maintains records that purportedly comply with RPC 1.15(c). However, despite knowing that Petitioner had sought these records since 2017 and had been dissatisfied with the records that were eventually produced, Respondent unaccountably did not introduce the purported compliant records into evidence.
The record demonstrates that the inattention and carelessness exhibited by Respondent in her legal practice seeped into her handling of the instant disciplinary matter. As described above, she failed to produce records in response to Petitioner's multiple requests until subpoenaed to do so, failed to respond consistently to Petitioner's correspondence, and failed to provide a reply to Petitioner's request for a statement of position, which failure resulted in her violation of Pa.R.D.E. 203(b)(7). Respondent also failed to file a timely reply to the Petition for Discipline and failed to appear at the prehearing conference. Notwithstanding these acts that served to hamper Petitioner's investigation of her misconduct, Respondent has the temerity to request mitigation for cooperation, which request we reject based on Respondent's dismal history of noncompliance with her professional responsibilities in this disciplinary matter.
Petitioner raised the issue of Respondent's credibility as an aggravating factor, arguing that her sworn testimony was false and that she resorted to lying, particularly with regard to whether she had represented Glenn Ross, whether the IRS' Information Request pertaining to God's Divine Favor Ministries had been sent to her, and her reasons for holding $10,000 in escrowed funds for more than a decade. While finding that Respondent's testimony on the above issues "strained credulity," the Committee refrained from finding that Respondent engaged in falsities during her sworn testimony. We rely on the Committee's findings as to Respondent's credibility and upon review of the record, will not disturb these findings.
In mitigation, Respondent recognized that she committed misconduct, although we find as did the Committee, that her acknowledgement of wrongdoing and remorse for her acts is somewhat tempered by assertions in her brief that she has been unfairly treated in the disciplinary process. To the contrary, it appears that Respondent has been afforded ample opportunity to present her case.
In further mitigation, we consider Respondent's blemish free record of discipline in the Commonwealth since her admission in 1995. We also give partial weight to Respondent's evidence that during the relevant time period, she was overwhelmed by personal circumstances that diverted her attention from her law practice. Respondent dealt with a bizarre situation where the foreign exchange student she hosted in her home stockpiled ammunition in the home, unbeknownst to Respondent, and made threats to perpetrate shootings at Delaware County schools. This event triggered widespread media attention, involvement by the authorities, and Respondent's arrest. Respondent was not charged with any criminal conduct. Additionally, Respondent related that she was the caretaker for three senior citizens with various health issues.
Respondent attempted to present the expert testimony of Dr. Hafz with regard to the stressors in her life; however, the Committee determined that Dr. Hafz was not qualified to offer expert testimony in the mental health field. Nevertheless, over Petitioner's objection, the Committee allowed Dr. Hafz's testimony as it related to providing support to Respondent. Viewing this testimony, it does no more than reiterate Respondent's contention that she was overwhelmed and could not focus on her practice, and does not approach the requisite legal standard to establish a causal factor in the misconduct at issue. Office of Disciplinary Counsel v. Seymour Braun, 553 A.2d 894 (Pa. 1989).
Respondent called a series of witnesses to testify as to her reputation. These witnesses were sincere and credible, but each conceded their lack of awareness of some or most of Respondent's professional difficulties. This lack of knowledge undermines the weight of the character testimony. When Petitioner brought the allegations of misconduct to the witnesses' attention, Attorney Robinson noted that Respondent tended to be "careless," while Attorney Simon stated that isolated incidents might give her pause, although she further testified such incidents would not change her overall opinion of Respondent's reputation. N.T. 7/31/20 at 78, 89-91.
Having concluded that Respondent engaged in professional misconduct, this matter is ripe for the determination of discipline. It is well-established that in evaluating professional discipline, each case must be decided on the totality of its particular facts and circumstances. Office of Disciplinary Counsel v. Robert Lucarini, 472 A.2d 186 (Pa. 1983). In order to "strive for consistency so that similar misconduct is not punished in radically different ways," Office of Disciplinary Counsel v. Anthony Cappuccio, 48 A.3d 1231, 1238 (Pa. 2012) (quoting Lucarini, 472 A.2d at 190), the Board is guided by precedent for the purpose of measuring "the respondent's conduct against other similar transgressions."
An examination of prior similar matters reveals that a suspension for one year and one day is appropriate where an attorney engages in incompetent representation in client matters, fails to communicate, fails to promptly return unearned fees and return client files, disregards fiduciary obligations and recordkeeping requirements, and fails to respond to Office of Disciplinary Counsel's request for statement of position. See Office of Disciplinary Counsel v. Tangie Marie Boston, 99 DB 2018 (D. Bd. Rpt. 12/10/2019) (S.Ct. Order 2/12/2020) (suspended for one year and one day for multiple instances of client neglect, failure to communicate, failure to protect a client's interests, and conduct prejudicial to the administration of justice, no prior discipline); Office of Disciplinary Counsel v. Douglas Andrew Grannan, No. 197 DB 2016 (D. Bd. Rpt. 4/3/2019) (S.Ct. Order 7/9/2019) (suspended for one year and one day for neglect of seven client matters, incompetence, lack of diligence, failure to communicate, failure to return client files, and conduct prejudicial to the administration of justice, no prior discipline, no remorse or acceptance of responsibility); Office of Disciplinary Counsel v. Sterling Artist, No. 153 DB 2005 (D. Bd. Rpt. 4/27/2007) (S. Ct. Order 7/18/2007) (suspended for one year and one day for neglect and incompetence in three client matters, lack of communication, failure to return client files, misrepresentation, admitted wrongdoing, no prior discipline).
Respondent's contention that a public reprimand is appropriate discipline is not consistent with the case precedent. A comprehensive review of prior matters indicates that standing alone, attorneys who have engaged in IOLTA misuse have been publicly reprimanded for those acts, See, Office of Disciplinary Counsel v. Richard Patrick Gainey, No. 160 DB 2018 (D. Bd. Order 4/15/2020) (public reprimand to address mishandling of IOLTA account for one year and failure to maintain required RPC 1.15 records, sincere remorse, credible evidence of remedial steps to address future mismanagement, no prior discipline); Office of Disciplinary Counsel v. Clair Michelle Stewart, No. 228 DB 2018 (D. Bd. Order 12/21/2018) (public reprimand imposed for mishandling estate funds and mishandling IOLTA and failure to comply with RPC 1.15, cooperated with Office of Disciplinary Counsel, no prior discipline).
Here, the circumstances of Respondent's misconduct include not only IOLTA deficiencies, but multiple acts of client neglect that reflect Respondent's insufficient grasp on the necessity of proper attention to client matters, failure to promptly refund unearned fees and return client files, and failure to respond to Petitioner's request for a statement of position. This misconduct, aggravated by Respondent's incredible testimony regarding certain aspects of her culpability, lack of cooperation in the early stages of this disciplinary proceeding, and underwhelming expressions of remorse, requires discipline more severe than a reprimand.
Likewise, Respondent's recommendation of a stayed suspension with probation must be rejected as inappropriate to address the circumstances of the instant matter. Probation allows an attorney to continue practicing law and holding herself out to the public for the provision of legal services, while adhering to specific conditions set forth in the probation order. See, Disciplinary Board Rules § 89.291. Before recommending that the Court impose probation, the Board must be satisfied that a respondent-attorney will comply with conditions attached to probation; otherwise, the public may be at risk of deficient representation. See, Office of Disciplinary Counsel v. Anthony Charles Mengine, No. 66 DB 2017 (D. Bd. Rpt. 9/24/2019) (S.Ct. Order 11/26/2019) (Mengine suspended for a period of two years, nine months stayed and fifteen months on probation for financial improprieties including misuse of his IOLTA account; Mengine made "concerted efforts" to organize his law firm to provide oversight and accountability of financial matters, and he "exhibited a full understanding of the steps he needed to take to align his conduct with professional standards." Board Report at p. 56.)
Respondent's interactions with the disciplinary system in this matter do not inspire confidence that she will adhere to the detailed requirements of probation. Respondent has a demonstrated record of noncompliance, in that she failed to produce requested financial records, failed to respond to Petitioner's request for a statement of her position vis á vis the allegations of misconduct, failed to file a timely answer to Petition for Discipline, and failed to appear at the prehearing conference. Respondent's testimony as to steps she has taken to remediate her recordkeeping issues was underwhelming and did little to establish that she has a full understanding of how to comply with RPC 1.15. Given this background, we conclude that probation is not appropriate. See, Office of Disciplinary Counsel v. John A. Gallagher, No. 65 DB 2019 (D. Bd. Rpt. 9/29/2020) (S.Ct. Order 1/22/2021) (recommendation for probation rejected based on respondent- attorney's pattern of noncompliance with ethical rules and regulations and lack of compelling evidence demonstrating that he had remediated his practice problems).
Respondent has displayed her unfitness to practice law by her deficient representation of clients, mismanagement of her IOLTA, lackadaisical recordkeeping and lack of cooperation in these disciplinary proceedings. Application of the precedent to the totality of the facts and circumstances leads the Board to conclude that a one year and one day period of suspension, as recommended by the Committee, is consistent and appropriate. This sanction fulfills the predominant mission of the disciplinary system to protect the public, as it requires Respondent to undergo the reinstatement process to ensure her fitness to practice.
V. RECOMMENDATION
The Disciplinary Board of the Supreme Court of Pennsylvania unanimously recommends that the Respondent, Valerie Andrine Hibbert, be suspended for one year and one day from the practice of law in this Commonwealth.
It is further recommended that the expenses incurred in the investigation and prosecution of this matter are to be paid by the Respondent.
Respectfully submitted, THE DISCIPLINARY BOARD OF THE SUPREME COURT OF PENNSYLVANIA
Hon. Eugene F. Scanlon, Jr., Member
EXHIBIT B
ORDER
PER CURIAM
AND NOW, this 15th day of June, 2022, having failed to respond to an Order and Rule to Show Cause Why Respondent Should Not Be Held in Contempt, the Rule is made absolute, and it is ORDERED that:
1. Respondent, Valerie Andrine Hibbert, is held in contempt for willful violation of this Court's Order dated April 27, 2021.
2. Respondent shall:
a. fully comply with the provisions of Pa.R.D.E. 217 pertaining to suspended attorneys; and
b. file a Statement of Compliance in accordance with Pa.R.D.E. 217(e) within ten (10) days of the date hereof.
The matter is REFERRED to the Disciplinary Board for accelerated proceedings, including a hearing, to recommend the appropriate sanction within 90 days.
Petitioner's request for an imposition of a daily fine is DENIED WITHOUT PREJUDICE to seek such relief before the Disciplinary Board