In re Mitiguy

ENTRY_ORDER.93-464; 161 Vt. 626; 641 A.2d 362

[Filed 17-Feb-1994]

                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 93-464

                             FEBRUARY TERM, 1994


 In re Arthur A. Mitiguy, Esq.     }          Original Jurisdiction
                                   }
                                   }          FROM
                                   }          Professional Conduct Board
                                   }
                                   }          DOCKET NO. 91.48


              In the above entitled cause the Clerk will enter:


      Pursuant to the recommendation of the Professional Conduct Board filed
 October 5, 1993, and approval thereof, it is hereby ordered that Arthur A.
 Mitiguy, Esq., is disbarred for the reasons set forth in the Board's Notice
 of Decision attached hereto for publication as part of the order of this
 Court.  A.O. 9, Rule 8E.






                                    BY THE COURT:



                                    Frederic W. Allen, Chief Justice


                                    Ernest W. Gibson III, Associate Justice


  [x]  Publish                      John A. Dooley, Associate Justice

  [ ]  Do Not Publish
                                    James L. Morse, Associate Justice

                                    _______________________________________
                                    Denise R. Johnson, Associate Justice

--------------------------------------------------------------------------------
 

                                   STATE OF VERMONT

                              PROFESSIONAL CONDUCT  BOARD


       Re:  Arthur A. Mitiguy, Esq.
                Respondent

            PCB File No. 91.48

                                  NOTICE OF DECISION
                                    DEC. #  59
            This matter came before the Professional Conduct Board on September
       10, 1993 by way of a stipulation between Respondent and Bar Counsel.
       Based upon that stipulation, the Board makes the following findings of
       fact, conclusions of law, and recommended sanction:
                                         FACTS
            1.  Respondent, Arthur A. Mitiguy, became a member of the Vermont
       bar in 1986.    On July 1, 1992, Mr. Mitiguy placed himself on inactive
       status.  Prior to that date, Respondent's most recent legal employment
       was as vice president/secretary, director and shareholder in the firm of
       McClallen, Ruggerio and Mitiguy, P.C. (now McClallen Ruggerio, P.C.).
            2.  Around August of 1991, John Ruggerio, Esq. discovered some
       unusual activity in a firm trust account.  He discovered that seventeen
       different checks, totalling $3,400.00, had been made out to Arthur
       Mitiguy and deposited to Mr. Mitiguy's personal account.  When
       confronted, Mr. Mitiguy admitted having taken the funds.  He had no
       authority to do so.
            3.  Mr. Mitiguy represented an elderly woman, Dorothy M. Gleason,
       who passed away December 1, 1990.  Mr. Mitiguy was her named executor.
       When Mrs. Gleason passed away, she had three bank accounts, one of which

 

 had been frozen by the bank.  On December 27, 1990, Mr. Mitiguy withdrew
 the entire sum from one account ($58,886.33) and did the same to the
 other account on January 7, 1991 ($2,548.62).  Of these monies, Mr.
 Mitiguy deposited into his personal account or cashed $26,298.62.  The
 balance was deposited into an estate account, with Mr. Mitiguy as
 executor and signatory.  Subsequently, Mr. Mitiguy deposited additional
 money from the estate account into his personal account in the amount of
 $5,022.22.

      4.  As executor of Mrs. Gleason's estate, Mr. Mitiguy filed a final
 accounting with the Rutland Probate Court.   The final accounting is sworn
 and subscribed to by the executor.  In the accounting, Mr. Mitiguy made
 materially false statements as to bills paid by the estate.   For example,
 a bill of $4,935.12 reported paid to the Rutland Medical Center had
 actually been paid by Medicare.

      5.  On November 17, 1992, Mr. Mitiguy was convicted of six felonies
 in Rutland County District Court.  The convictions were four counts of
 embezzlement and two counts of false swearing.


                                  CONCLUSIONS OF LAW

       6.  Mr. Mitiguy's conduct and the resulting convictions constitute
 violations of the following provisions of the Code of Professional

 Responsibility:

                 a.  DR 1-102(A)(3)(engage in conduct involving a serious
                 crime)(as defined in Definitions (5));

                 b.  DR 1-102(A)(4)(conduct involving dishonesty, fraud,
                 deceit, or misrepresentation);

                 c.  DR 1-102(A)(5)(conduct that is prejudicial to the
                 administration of justice);

                 d.  DR 7-102(A)(7)(conduct that adversely reflects on the


 

 lawyer's fitness to practice law); and

                  e.  DR 7-102(A)(5)(knowingly make a false statement of law or
                  fact).

                                  RECOMMENDED SANCTION

     7.  The following mitigating factors are present in this case:

                  a.  Absence of a prior disciplinary record;

                  b.  Imposition of other sanctions, i.e., a sentence in
                  district court of 3-5 years imprisonment, suspended except for
                  15 months to serve, and imposition of 500 hours of community
                  service; and

                  c.  Acceptance of full responsibility for his unethical and
                  criminal conduct.

      8.  The Board notes that Mr. Mitiguy was a substance abuser at the
 time he committed these criminal acts.  Once these acts came to light,
 Mr. Mitiguy entered a residential treatment program.  The fact that Mr.
 Mitiguy eventually took steps to address his substance abuse problem is
 laudable.  However, the Board does not consider substance abuse, and
 resulting personal problems, to be a mitigating factor in determining the
 appropriate sanction.

      9.  The following aggravating factors are present in this case:

                  a. A dishonest or selfish motive;

                  b.  A pattern of misconduct;

                  c.  Multiple offenses; and

                  d.  Vulnerability of the victim.

      10.  The duty violated here is the duty owed to the client to
 preserve the client's property.  Actual injury resulted to the client.
 Mr. Mitiguy acted knowingly and intentionally.

      11.  Theft of client funds is one of the most serious ethical
 violations which an attorney can commit.  It is an offense which demands

 
 
 imposition of the most serious sanction.  In re Wilson, 81 NJ 451, 409 A.2d 1153 (1979)("There are few more egregious acts of professional
 misconduct of which an attorney can be guilty than the misappropriation
 of client's funds held in trust ... Recognition of the nature and gravity
 of the offense suggests only one result - disbarment.")

      12.  Therefore, the Board recommends that Mr. Mitiguy be disbarred,
 effective immediately.

      Dated at Montpelier, Vermont this 30th day of September 1993.

                              PROFESSIONAL CONDUCT BOARD

                              Deborah S. Banse, Chair

    Anne K. Batten            Donald Marsh
    Joseph F. Cahill, Esq.    Karen Miller, Esq.
    Nancy Corsones, Esq.      J. Garvan Murtah, Esq.
    Paul  S. Ferber, Esq.     Robert F. O'Neill, Esq.
    Nancy Foster              Ruth Stokes
 
 

    Rosalyn L. Hunneman       Jane Woodruff, Esq.
    Robert P. Keiner, Esq.    Edward Zuccaro, Esq.








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