Board of Overseers of the Bar v. Mary Huynh Thomas, Esq.
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Docket No.: GCF# 11-227; 11-250
Issued by: Grievance Commission
Date: August 2, 2012
Respondent: Mary Huynh Thomas, Esq.
Bar Number: 004115
Order: Dismissal Dismissal with Warning
Disposition/Conduct: Diligence; Candor to the Tribunal
REPORT OF FINDINGS AND ORDER OF PANEL E OF THE GRIEVANCE COMMISSION
On July 24, 2012 with due notice, Panel E of the Grievance Commission conducted a public disciplinary hearing, open to the public, pursuant to Maine Bar Rule 7.1(e)(2). The disciplinary proceeding was commenced by the filing of a consolidated Disciplinary Petition by the Board of Overseers of the Bar (the Board) on April 12, 2012. These petitions remained consolidated for hearing. The petitions allege violations of M. Bar Rules, 1.3; 3.3(a)(l); 4.2(a); 4.4(a); 5.3(b) and (c); 7.5(a) and (b) and 8.4(a), (c) and (d).
At the hearing, the Board was represented by Assistant Bar Counsel Aria Eee and the Respondent, Mary Huynh Thomas, Esq. was represented by Phillip E. Johnson, Esq. The complainant in GCF# 11-227, Attorney John Wilson was present as was Ryan R. Morneault, the complainant in GCF# 11- 250. The Respondent, Attorney John Wilson, Mr. Morneault, Attorneys Kari A. Wells-Puckett (KWP). Jeanine M. Dumont, Rita M. Farry, and David P. Florio testified. The Panel accepted into evidence Board Exhibits 1-34 Respondent Exhibits 8, 8a, 9, 9a, 16 and 17.
Respondent Mary Huynh Thomas of Portland, Maine, has been at all times relevant to the petitions an attorney admitted to and engaged in the practice of law in the State of Maine and subject to the Maine Bar Rules. Attorney Thomas was admitted to practice in 2007 and she is an associate with the law firm of Howard Lee Shiff, P.C. (the firm). Ms. Thomas is the only firm attorney licensed to practice in Maine.
Attorney Wilson filed a complaint on July 12, 2011 against the law firm of Howard Lee Shiff alleging that the firm had continued to directly contact his ninety-one year old client after the firm had received notice that his client was represented by Attorney Wilson. In early November, Attorney Wilson had sent a letter to HSBC Card Services (HSCB) outlining the facts which supported a finding that his client was "judgment proof' and requested that all further communication regarding the account be sent to him as counsel for the debtor. In late December 2010, HSBC contacted the law firm of Howard Lee Schiff, P.C. for representation. Jeanine Dumont, a principal in the firm testified that the firm is based in Rhode Island and all initial contact to attempt to collect from debtors is done through the Rhode Island office. She testified that there was no letter from Attorney Wilson forwarded from HSBC with the file.
Initial steps taken to collect the debt included sending a letter to the debtor requesting information to validate the debt. These letters are subcontracted out to an outside vendor for creation and mailing. The firm's protocol is to have the validation of the debt letter sent out under the letterhead of the corresponding state of the debtor. Due to an error on the part of the subcontractor, the letters to the debtor were inconsistent and were sent initially under the Portland, Maine letterhead but the second letter dated May 25, 2011 was on the Nashua, New Hampshire letterhead. Accordingly, on May 28, 2011 Attorney Wilson sent a letter to the Nashua office because it was the address of the last letter received by the debtor. He again reiterated his client's status and advised that the debtor was represented by his firm.
Attorney Florio, an associate in the Nashua office testified that he collects all of the mail that is delivered to his one person office in Nashua. He then removes the junk mail and sends the rest onto Rhode Island for central processing. He also occasionally opens mail that is from an attorney but has no memory of opening a letter from Attorney Wilson. All of the lawyers from the firm testified that when a letter is received from an attorney the first thing that all employees of the firm do is mark in the electronic file that the debtor is represented. In this case, such a notation was never made in the file until the bar complaint was filed.
It is unfortunate that Attorney Wilson's letter did not get delivered properly or more likely, processed correctly when received by the firm. There is no way, however, to conclusively determine which happened in this case.
Attorney Thomas was never personally responsible for sending any letters to the debtor. She testified that her involvement is only when a collection is sent to be collected through civil litigation. Since the debtor's file was never sent to the Maine office initially, the first time she knew of the debtor was upon receipt of the the bar complaint. Based on these findings, the Panel finds no misconduct on the part of Attorney Thomas and dismisses Count I.
The Board also alleges that the validation of debt letters sent to the debtor by the law firm violate Rule 7.5(a) and (b) because the letters are unsigned and did not identify a particular lawyer. The letters do provide the name of the firm and the many offices of the firm. The letters sent in this case were inconsistent in the identification of the proper office but that alone does not constitute a violation. Nor does the failure to designate an attorney associated with the office constitute a violation. The Panel does, however, recommend that the principals in the law firm of Howard Lee Schiff pay closer attention to the administrative processes involved in the mailing of the letters to debtors from its offices. The Panel was not persuaded that these types of scrivener's errors are simply the byproduct of a "high volume" practice. Every communication from a lawyer's office should be clear, consistent and preferably giving the proper address of the office handling the matter and a signature of the lawyer or assistant responsible for sending the letter.
On June 27, 2011 Mr. Morneault settled a credit card debt which was being collected by the firm of Howard Lee Schiff, P.C. He was told at that time that it would take twenty days before a satisfaction of judgment would be filed with the court. A disclosure hearing had been set for August 2, 2011 in Caribou District Court. Prior to the hearing, Attorney Thomas sent to Caribou District Court a "Notice of Satisfaction of Judgment" on July 19, 2011. This was received by the court on July 25, 2011.
Because the hearing was geographically distant, Attorney Thomas contracted with another law firm to provide coverage at the disclosure hearing. Attorney KWP was hired to provide coverage for Attorney Thomas. As part of their agreement Attorney Thomas sent to Attorney KWP a list of cases and the corresponding documentation related to each case. While Attorney Thomas testified that she reviewed the packet before it went to Attorney KWP, she did not notice that Mr. Morneault's paperwork was being provided to Attorney KWP. She believed that the removal of Mr. Morneault's name from the requested list of cases to be covered was sufficient notice that Attorney KWP did not need to cover the matter.
During the hearing process the Judge called the case of Midland Funding, Inc. v. Ryan Morneault. Attorney KWP noted that while he was not on her list of cases, his corresponding paperwork had been provided by Attorney Thomas and so she appeared that day on behalf of Midland Funding. Since the judgment debtor did not appear, the Judge provided relief to the creditor in the form of allowing the creditor to file at a future date a request for a civil order of arrest. Testimony from Attorney KWP was that this is the practice of this District Court judge and that although she did not affirmatively request such an order, she did note that it is the only option available to a creditor if the debtor does not appear.
Mr. Morneault is a flight paramedic and a respected member of his community. He is also known personally by members of the court personnel. Following the disclosure hearing he received a call from a friend in law enforcement who told him that the court had issued a civil order of arrest because he did not show up at court (although this is not technically true, this was Mr. Moreault’s understanding regarding the disposition of the matter). Given the fact that Mr. Moreault had paid the debt and had received confirmation from Attorney Thomas that the Notice of Satisfaction had been filed with the court, he was understandably upset. He feared that his reputation had been negatively impacted and that he could even lose his job if he was arrested. He went directly to the District Court Clerk and showed her the letter he had received from Attorney Thomas. The Clerk was sympathetic, but for some reason did not realize that the "Notice of Satisfaction of Judgment" had been filed a week earlier but had not made it to the Court's paper file.
Mr. Morneault then spoke directly with an administrative assistant from Attorney Thomas's firm who explained the situation. The clerk's office provided Mr. Morneault with the number for the Portland Office of the Schiff firm. There was conflicting testimony as to how Mr. Morneault was treated during this telephone call to the firm. After the call, Attorney Thomas filed a second "Notice of Satisfaction of Judgment" on August 9, 2011. She did not call the court to investigate the whereabouts of the earlier filing as she and her supervisor thought it would be a fruitless request. Attorney Thomas did not call Attorney KWP to discuss this issue until much later. As far as Attorneys Thomas and Dumont were concerned there was nothing more to do other than file a second Notice. No thought was given to filing a motion to vacate the Disclosure Hearing Order.
Respondent's defense, once again, emphasized the high volume nature of work in the practice of collection law. There was also a great deal of testimony regarding the import of the Disclosure Hearing Order. All of the lawyers testified that it is very rare that a civil order of arrest is ever requested, but nonetheless, whether such a request is ever made is not the relevant point. The fact remains that there is an Order against Mr. Morneault which is based upon a false statement of material fact. This is not an inconsequential result. By not filing a motion to vacate the Order Attorney Thomas has violated Rules 1.3 and 3.3 (a)(1) of the Maine Rule of Professional conduct. The Panel strongly suggests that Attorney Thomas file such a motion to correct the record.
The Code of Professional Responsibility requires attorneys to uphold their responsibilities to their clients, to the legal system, and to the courts at all times. The Panel concludes that Attorney Thomas' failure to properly prepare the attorney covering for her at Caribou District Court led to the misrepresentation of the status of the Morneault matter and caused an Order to be entered against Mr. Morneault which has not been vacated. However, because the Panel is persuaded that this misrepresentation was indeed an "honest error" we deem it to constitute an instance of only minor misconduct. The Panel finds that this misconduct occasioned minimal injury to Mr. Mornault, the public, the legal system, and to the profession. We believe that this misconduct is unlikely to be repeated by Respondent Attorney Thomas.
Accordingly, pursuant to Maine Bar Rule 7.1(e)(3)(B), the Panel hereby finds that the appropriate disposition of Count II is a Dismissal with a Warning.
For the Grievance Commission
Victoria Powers, Esq., Chair of Panel E
David S. Abramson, Esq.
Marjorie M. Medd