Attorney Registration No. 35665
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
Office of Disciplinary Counsel filed a Petition for Discipline against Vivian Sye-Payne, Respondent. The Petition charged Respondent with numerous violations of the Rules of Professional Conduct in four domestic relations matters, including failing to appear in court on clients' behalf, failing to communicate with clients, failing to return unearned fees and related misconduct. Respondent filed an Answer to Petition for Discipline on October 19, 2004.
A disciplinary hearing was held on March 29, 2005, before a District I Hearing Committee comprised of Chair Michael D. Schaff, Esquire, and Members Alexander B. Giacobetti, Esquire, and Thomas M. Gallagher, Esquire. Respondent was represented by Samuel C. Stretton, Esquire.
Following the submission of briefs by the parties, the Hearing Committee filed a Report on August 15, 2005, finding that Respondent engaged in professional misconduct and recommending that she receive a suspension of three months followed by one year of probation.
Respondent filed a Brief on Exceptions on September 8, 2005, and requested oral argument.
Petitioner filed a Brief on Exceptions on September 13, 2005.
Oral argument was held on October 31, 2005, before a three member panel of the Disciplinary Board chaired by Min S. Suh, Esquire, with Marc S. Raspanti, Esquire, and Louis N. Teti, Esquire.
This matter was adjudicated by the Disciplinary Board at the meeting on November 9, 2005.
The Board makes the following findings of fact:
1. Petitioner, whose principal office is located at Suite 1400, 200 North Third Street, Harrisburg, Pennsylvania, is invested, pursuant to Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement, with the power and duty to investigate all matters involving alleged misconduct of an 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 of Disciplinary Enforcement.
2. Respondent, Vivian Sye-Payne, was born in 1947 and was admitted to practice law in the Commonwealth in 1981. She maintains an office for the practice of law at 21 South 12th Street, Suite 1001, Philadelphia PA 19107. She is subject to the disciplinary jurisdiction of the Disciplinary Board of the Supreme Court of Pennsylvania.
3. Respondent has a prior record of discipline consisting of an informal admonition in 1993, and private reprimands in 1994 and 1999.
Charge I - Stephanie D. Starling Matter
Stephanie D. Starling consulted with Respondent about representing her in a child support matter pending in the Family Court Division of the Court of Common Pleas of Philadelphia County.
5. Respondent gave Ms. Starling a fee agreement to review that set forth the basis and rate of her fee; and Respondent explained that the fee would be $1,500 because she anticipated a one-day hearing. Ms. Starling gave Respondent a check for $1,000 and agreed to pay Respondent the remaining portion of the fee the following day.
6. On March 3, 2004, Respondent appeared in court on behalf of Ms. Starling, at which time Respondent received $500 in cash from her client and the court continued the case for opposing counsel to file a motion for a semi-protracted support hearing.
7. On March 8, 2004, opposing counsel filed a motion for a semi-protracted hearing.
8. On March 25, 2004, oral argument was heard before Judge Nina Wright-Padilla on the motion.
9. Respondent attended the oral argument.
10. Judge Wright-Padilla granted the motion and scheduled the hearing for June 23, 2004.
11. Respondent received a distribution cover letter attaching a copy of the Judge's Order for a semi-protracted hearing on June 23, 2004.
12. From time to time Ms. Starling would call Respondent's office and send correspondence regarding the June 23, 2004 hearing.
13. Ms. Starling left Respondent voice messages and sent faxes reminding Respondent of the support hearing scheduled for 9:00 a.m. on June 23, 2004.
14. Ms. Starling sent Respondent her current 2003 income and expense information ordered for the scheduled hearing.
15. Ms. Starling visited Respondent's office on the afternoon of June 22, 2004, but the office was not open.
16. Ms. Starling left a copy of the proposed Settlement Agreement at Respondent's office.
17. On the morning of June 23, 2004, Ms. Starling left voice messages and text messages on Respondent's cellular telephone requesting that Respondent contact her as soon as possible about the hearing.
18. Respondent failed to appear in Family Court on June 23, 2004 to represent Ms. Starling.
19. Ms. Starling proceeded without any legal representation.
20. The Family Court judge entered a final child support order.
21. Respondent failed to communicate with Ms. Starling after the child support hearing.
22. On September 17, 2004, Ms. Starling sent a certified letter to Respondent wherein she:
a. explained that she paid Respondent $1,500 to represent her in an interstate child support case;
b. stated that on numerous occasions prior to and including June 23, 2004, Ms. Starling left messages and Respondent failed to return her calls; and,
c. requested a refund of the unearned portion of the fee.
23. On three occasions the U.S. Postal Service attempted to deliver the certified letter to Respondent, but Respondent failed to claim the letter.
24. Respondent did not return any portion of the fee to Ms. Starling.
Charge II -- Mazie Wood Matter
25. On July 25, 2000, the Family Court of Philadelphia County awarded temporary physical and legal custody of Gregory, Geoffrey and Brittany Daniels to their paternal grandmother, Cora Bell Daniels-Everette.
26. In April 2002, Mazie Wood, maternal grandmother of the Daniels children, requested that Respondent represent her in ...