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In re Westerfield

Supreme Court of Indiana

December 6, 2016

In the Matter of: Divina K. Westerfield, Respondent.

          Attorney Discipline Action Hearing Officer Gary L. Miller

          Respondent Pro Se Divina K. Westerfield

          Attorneys for the Indiana Supreme Court Disciplinary Commission G. Michael Witte, Executive Secretary Angie Ordway, Staff Attorney Indianapolis, Indiana

          Per Curiam.

         We find that Respondent, Divina K. Westerfield, committed attorney misconduct by improperly soliciting employment, failing to refund unearned fees, and engaging in the unauthorized practice of law in Florida. For this misconduct, we conclude that Respondent should be suspended for at least eighteen months without automatic reinstatement.

         This matter is before the Court on the report of the hearing officer appointed by this Court to hear evidence on the Indiana Supreme Court Disciplinary Commission's "Verified Complaint for Disciplinary Action." Respondent's 1984 admission to this state's bar subjects her to this Court's disciplinary jurisdiction. See Ind. Const. art. 7, § 4.

          Procedural Background and Facts

         The Commission filed a four-count "Verified Complaint for Disciplinary Action" against Respondent on May 21, 2015. Following a hearing, the hearing officer filed his report on September 28, 2016. No petition for review of the hearing officer's report or brief on sanction has been filed. When neither party challenges the findings of the hearing officer, "we accept and adopt those findings but reserve final judgment as to misconduct and sanction." Matter of Levy, 726 N.E.2d 1257, 1258 (Ind. 2000).

         Count 1.

         During relevant times, Respondent was admitted to practice law in Indiana. However, she was not licensed to practice law in Florida, where the conduct at issue occurred. In 2011, Respondent began associating herself with a non-lawyer marketing representative named Wayne Tope, who advertised quiet title actions as a strategy for homeowners to gain leverage against mortgage holders and/or to obtain "free and clear title" of a house. On behalf of Respondent, Tope signed up several homeowners for legal representation by Respondent. Through Tope, those homeowners executed flat fee contracts for legal representation and paid the entire fee up front by providing Tope with a series of post-dated monthly installment checks payable to Respondent, which Respondent deposited into an IOLTA account that she alone controlled.

         For several months, Respondent was the only attorney associated with her law firm, which was located in Indianapolis. In February 2012, Respondent registered her firm as a limited liability company with the Florida Secretary of State, and thereafter Respondent entered into a series of successive partnership agreements with various attorneys licensed in Florida, under which Respondent would retain 90% of profits from fees billed to Florida clients and the partner would retain 10% of profits from those fees.[1] None of those partnership agreements complied with the dictates of Florida law governing the operation of an interstate law firm. See Florida Bar v. Savitt, 363 So.2d 559 (Fla. 1978). Respondent also hired a suspended Florida attorney to work as a paralegal. Each of these successive partners left the firm in short order after having performed little or no work.

         In November 2012, Respondent notified her clients she was closing the Florida office of her firm and that, for the clients who had paid a flat fee, she would pay another attorney to perform the work. However, about two months later, that attorney decided to discontinue work on the cases referred to him by Respondent.

         Counts 2 through 4.

          Each of these counts addresses substantially similar facts involving three different clients. In each case, the client (who did not have a prior relationship with Respondent or Tope) met Tope through a seminar or similar event. With Tope's facilitation, each client signed a flat fee representation agreement with Respondent's firm and provided Tope a series of post-dated installment checks. Thereafter, Respondent's firm did little or no work for the clients and never pursued a quiet title action or loan reduction as promised. In each case, the ...


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