In re Wysolmerski

In re Wysolmerski (2001-381); 172 Vt. 616; 783 A.2d 423

[Filed 29-Aug-2001]


                                 ENTRY ORDER

                      SUPREME COURT DOCKET NO. 2001-381

                              AUGUST TERM, 2001


In re Sigismund Wysolmerski, Esq.	}  Original Jurisdiction
                                        }
                                        }  FROM:
    	                                }  Professional Responsibility Board
                                        }	
                                        }  DOCKET NO. 2001-171


             In the above-entitled cause, the Clerk will enter:


       The Professional Responsibility Board's recommendation that petitioner
  be reinstated as a  member of the Vermont Bar is accepted.  The suspension
  is lifted as of the date of this order.




                                       BY THE COURT:



                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       James L. Morse, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice

-------------------------------------------------------------------------------
22 PRB

15-Aug-2001

                               DECISION NO. 22


                              STATE OF VERMONT
                      PROFESSIONAL RESPONSIBILITY BOARD

       IN RE: 	
       Sigismund J. Wysolmerski, Petitioner

                            PRB File No. 2001-171

       This matter is before the undersigned Hearing Panel Members pursuant
  to Rule 22(D) of  Administrative Order 9 ("A.O. 9"), on the Motion for
  Reinstatement of Petitioner Sigismund J. Wysolmerski dated April 27, 2001. 
  A hearing was held on June 19, 2001 at the offices of  Langrock, Sperry &
  Wool, LLP in Burlington, Vermont.  Present were Panel Members Mark L. 
  Sperry, Sara Gear Boyd, and Jane Woodruff, the Petitioner and his counsel,
  Peter W. Hall, and  Michael E. Kennedy, Disciplinary Counsel.  At the
  conclusion of the hearing, Disciplinary Counsel  was given until July 3,
  2001 to file a request for a further hearing.  In a letter to the Panel
  dated  June 29, 2001, Disciplinary Counsel indicated that he has not
  changed his previously stated  neutral position on the Petitioner's Motion,
  and that "I am leaving the Petitioner to his proof and  am neither opposing
  nor supporting the petition."  Accordingly, this matter is now ready for 
  decision.

       Findings of Fact

       Based on the testimony at the hearing, the Panel makes the following
  findings of fact:

       1.  Petitioner was suspended from the practice of law for three years,
  beginning September  8, 1997 pursuant to an order of the Vermont Supreme
  Court.  (In Re Sigismund Wysolmerski,  Esq., 169 Vt 562, 702 A.2d 73 (July
  25, 1997)).

       2.  The three year term of the suspension expired in September 2000,
  and Petitioner is  eligible to seek reinstatement pursuant to A.O. 9, Rule
  22(D).

       3.  Between mid 1993, when the last of Petitioner's ethical violations
  occurred, and the  beginning of his suspension term in September of 1997,
  Petitioner continued in the practice of  law, with no ethical violations or
  complaints of violations.

       4.  Petitioner closed his practice prior to the beginning of his
  suspension term in an   orderly fashion, in compliance with the Code of
  Professional Responsibility (which was then in  effect), referring his
  pending cases to other counsel and withdrawing of record in pending court 
  cases.

       5.  There are no outstanding or unresolved professional liability
  claims against Petitioner.   In an action instituted by the firm of
  Abatiell and Valerio, a counterclaim has been asserted arising  out of
  alleged occurrences while Petitioner was a partner.  The counterclaim is
  covered by  insurance, and Petitioner is cooperating in the defense. 
  Disciplinary Counsel has investigated this  matter, and it has not changed
  his stated neutral position on the reinstatement.

       6.  During his suspension term, Petitioner studied for and obtained a
  securities license  allowing him to sell securities based insurance
  products, mutual funds, and annuities.  He obtained  a "Series 66"
  certification encompassing multi-state, blue sky regulations, and
  registered  investment advisor representative status with the Securities
  and Exchange  Commission Self-Regulatory Agency NASDAQ.  Petitioner also
  became licensed with the  Vermont Department of Banking, Insurance,
  Securities, and Health Care Administration to act as  an agent in the sale
  of insurance products.  Petitioner fully disclosed his previous ethical
  violations  in obtaining such licenses, and as represented by Disciplinary
  Counsel at the hearing, was given a  "more intense scrutiny" than usual by
  that Department. In practicing pursuant to these licenses,  Petitioner
  acted in a position of trust with insurance companies and clients.  There
  have been no  complaints against Petitioner since he became so licensed.

       7.  In his practice as a licensed agent for the sale of securities
  based insurance products,  Petitioner has taken examinations and has become
  familiar with insurance regulations, the Internal Revenue Service Code, and
  IRS regulations pertaining to pensions, retirement plans, and  estate
  taxation, and Petitioner has become knowledgeable in the subject areas of
  medicare,  medicomp supplemental insurance, long term care, and medicaid,
  to the extent that he has become a "resource" on these subjects for members
  of the "agency group" of other agents of the  companies he represents.

       8.  During his suspension term, Petitioner has acted as a court
  appointed Guardian ad  Litem for children in family court, and thus
  maintained familiarity with the procedures, issues, and  law pertaining to
  family dissolution, child support, and related issues.  He has held
  approximately  one to three open contested Guardian ad Litem positions at
  all times since January, 1998.  One  witness, Robert P. McClallen, Esq.,
  testified to the outstanding sensitivity, diligence, and  competence of
  Petitioner in acting as Guardian ad Litem in Mr. McClallen's divorce cases. 
  If  reinstated, the Petitioner expects a significant portion of his
  pro-bono service will be performed in  this area.

       9.  Petitioner has attended various seminars relating to the insurance
  and securities  industry; and his seminars and practice in those areas have
  imparted several transferrable skills  which he will incorporate into his
  practice, if reinstated.

       10.  Petitioner has maintained his familiarity with the decisions of
  the Vermont Supreme  Court by reading the Vermont Reports on-line on a
  monthly basis.  Additionally, he has  periodically read the Vermont Lawyer
  and publications of the Vermont Bar Association and the  Vermont Trial
  Lawyers Association.

       11.  Petitioner has attended 36.5 hours of Continuing Legal Education
  approved seminars  since February 9, 2001, in the areas of Personal Injury
  Practice, Evidence, Elder Care Law,  Supreme Court Case Review, and Ethics.

       12.  Petitioner has maintained public service and community ties in
  the Rutland  community, just finishing nine years as vice president of
  First Night Rutland, and most recently as  a volunteer teacher with ELF
  (Environmental Learning for the Future), a Vermont Institute of  Natural
  Science Program for elementary grades.  He serves on the Christ the King
  School  (Rutland) crisis committee with the faculty and school principal. 
  He is also a member of the  Rutland Regional Chamber of Commerce and
  various lake associations at a regional and state  level.

       13.  Petitioner has remarried, has a young child with whom he spends
  substantial time, and  is now in a stable family relationship and has his
  personal life in order.

       14.  Petitioner testified candidly and extensively about his previous
  ethical difficulties, his  devastation in listening to the witnesses in his
  disciplinary proceedings, his previous mistakes in  practicing law, his
  stresses, both personal and professional, and what he characterized as his 
  "arrogance" in his client relationships.  The Panel is convinced of his
  immense remorse for his  prior conduct.  The Panel is also convinced that
  Petitioner has turned his life around to a  remarkable degree, and that he
  is fully committed to resuming the practice of law in a competent  and
  ethical fashion.  The Panel is so convinced not only by Petitioner's candid
  and convincing  testimony, but by the facts recited in the previous
  findings as to his conduct and activities during  his suspension.

       15.  Shelley R. Hill, Esq., who acted as Bar Counsel in Petitioner's
  disciplinary  proceedings, has written to the Panel on May 23, 2001 that
  she believes Petitioner has been  rehabilitated, and that "the purpose of
  the suspension and rehabilitation process is to provide  individuals an
  opportunity to reflect on their wrongdoings and demonstrate a renewed 
  commitment to the high ethical principles expected of members of the bar. 
  I believe Mr.  Wysolmerski has done so and urge his readmission to the
  bar."  

       16.  Petitioner has proposed a mentoring program (Petitioner's Exhibit
  2) with attorneys  Robert P. McClallen and John B. Webber, both of whom
  have agreed to participate.  The  mentoring program will have two aspects;
  (i) case and office management, and (ii) issues of a  personal nature which
  might have an impact on his practice.

       17. The Panel finds the proposed mentoring program, with certain
  procedural  modifications which are included below (herein the "Mentoring
  Program") to be appropriate.  The  Mentoring Program is as follows:

       A.  Dealing With Conflicts and Waivers.  Petitioner will, for the
  duration of the Mentoring  Program, use a client engagement letter with all
  his clients in order to disclose the mentoring  relationship, which in
  substance shall state:


            "I have agreed to represent you in this (lawsuit, claim,
       etc.)  I will personally  handle the case and will ensure
       that no client confidences are disclosed without  your
       specific authorization.  However, as I have advised you, I
       have established a  mentoring relationship with Attorneys
       McClallen and Webber of Rutland,  Vermont, to assist me in
       ensuring the highest quality of legal services will be 
       provided on your behalf.

            I have specifically requested and obtained your
       permission to discuss generally  your claim with one or
       another of my mentors without discussion of the specific 
       substantive bases of your claim.  I will limit these
       discussions with my mentors to  the general areas of client
       needs, client expectations, client communications,  deadlines
       and schedules and my administrative plan for prompt
       resolution of your  claim.  If, in my opinion, it becomes
       advisable to discuss the substantive basis of  your claim
       with either of my two mentors, I will request from you
       specific  permission to do so in writing, and will do so only
       after you have given me that  permission.

            You will not be billed or charged in any way for the
       time I spend in discussion with  my mentoring attorney."

  Petitioner will ensure that a mentor has no conflict in discussing the
  client's case with him.   Petitioner will not, for the duration of the
  Menitoring Program, accept clients who will not sign  the engagement
  letter.

       B.  Caseload/Substantive Legal Issue Monitoring.  For the first year
  following  reinstatement, Petitioner shall meet at least once a month with
  one of the mentors, at his expense,  to review substantive practice issues,
  including:

       Client needs
       Client expectations
       Quality of communications with client (no substantive issues)
       Status of the matter
       Deadlines and schedules
       Billing/payment issues

  If recommended by either of the mentors or Disciplinary Counsel, the one
  year period shall be  extended for an additional six months.

       C.  Personal Issues.  For the first six months following
  reinstatement, Petitioner will, at his  expense, meet with one of the
  mentors to discuss issues of a personal nature which might impact  his
  practice, including:

       Peer perception
       Family situations
       Mental status
       Stress in and out of office

  Such meetings shall occur monthly in the intervals between the monthly
  meetings required under (B) above. 

       D.  Implementing.  Petitioner will implement the recommendations of
  the mentors which  they or either of them deem necessary to ensure
  continued appropriate conduct of his practice.

       E.  Miscellaneous.  Petitioner shall permit and authorize Disciplinary
  Counsel to  communicate with the mentors as to compliance with the
  Mentoring Program and its progress,  and as to their recommendations for
  extension of the one year initial period.  Petitioner shall also  secure
  from each of the mentors and file with the Professional Responsibility
  Board, with copies  to the Panel members and Disciplinary Counsel, their
  reports as to the progress of the Mentoring  Program, their
  recommendations, if any, made to Petitioner under (D) above, and their 
  recommendations as to extension of the initial one (1) year period.  Such
  reports shall be filed on  a calendar quarterly basis, beginning with
  October 2001.  The recommendations as to extension of  the one (1) year
  period shall be filed at least thirty (30) days prior to the one (1) year
  period  expiring.

       18.  Petitioner has proposed a program of  risk management audits by
  the Risk  Management Division of "ALPS" (Attorney's Liability Protection
  Society), at his expense,  compassing conflict control, calendar
  management, caseload considerations, trust account  procedures, client
  communications, and general law office management practices, with a view 
  toward risk management and avoidance ("Risk Management Audits"). 
  Disciplinary Counsel has recommended two such audits, one when Petitioner
  first opens his office.  The Panel finds that the  second audit should be
  one year thereafter.

       Conclusions

       The Panel finds as follows by clear and convincing evidence:

       1.  Petitioner has been rehabilitated.

       2.  Petitioner has the moral qualifications, competency, and learning
  required for  admission to practice law in this state.

       3.  The resumption of the practice of law by Petitioner will be
  neither detrimental to the  integrity and standing of the bar or the
  administration of justice, nor subversive to the public  interest.

       Decision

       Based on the foregoing Findings and Conclusions, it is hereby ordered
  as follows:

       1.  Petitioner Sigismund J. Wysolmerski is hereby reinstated to the
  practice of law in this  state.

       2.  Petitioner shall implement and comply with the Mentoring Program
  (as defined in  Finding 17).

       3.  Petitioner shall implement a Risk Management Audit Program (as
  defined in Finding  18) when he first opens his office, and one year
  thereafter and shall in each instance report to  Disciplinary Counsel that
  he has done so.


       Dated this 14th day of August, 2001.


PROFESSIONAL RESPONSIBILITY PROGRAM

FILED AUGUST 15, 2001				

HEARING PANEL NO. 5

___________________________________
Mark L. Sperry, Chair

___________________________________
Jane Woodruff, Panel Member

____________________________________
Sara Gear Boyd, Panel Member