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
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.
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
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).
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.
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. 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
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.
2 through 4.
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 ...