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FIA Card Servs., N.A. v. Pichette

Supreme Court of Rhode Island

June 8, 2015

FIA Card Services, N.A.
James D. Pichette. HSBC Bank Nevada, N.A.
Robert L. Cournoyer. Discover Bank
Diana L. O'Brien-Auty

Providence County Superior Court. (PC 11-2911), (PC 11-194), (PC 11-449). Associate Justice Sarah Taft-Carter, Associate Justice Brian Van Couyghen.

For Appellants: Lauren E. Jones, Esq., John A. McFadyen, Esq.

For Amicus State of Rhode Island: Rebecca T. Partington, Department of Attorney General.

Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.


Page 771

Paul A. Suttell, Chief Justice

The appeals before us emanate from the activities of three attorneys who authored pleadings, but did not disclose their respective identities, on behalf of pro se defendants in three separate debt collection cases, a practice colloquially known as ghostwriting.[1] These appeals present two issues of first impression in Rhode Island: (1) whether Rule 11 of the Superior Court Rules of Civil Procedure applies to an attorney who authored a pleading but neither signed it nor entered his or her appearance in the case; and (2) whether the anonymous preparation of pleadings for self-represented litigants is a permissible practice pursuant to the Supreme Court Rules of Professional Conduct. The attorneys in question appeal from three separate orders entered by two hearing justices sanctioning them for their ghostwriting conduct. The hearing justices imposed sanctions on each attorney for drafting, but not signing, answers and objections to dispositive motions on behalf of the three pro se defendants. All three attorneys argue that Rule 11 does not apply because none had either signed the pleadings or entered an appearance,

Page 772

and that their conduct was a permissible form of limited-scope representation pursuant to Article V, Rule 1.2(c) of the Supreme Court Rules of Professional Conduct. We hold that the conduct of the three attorneys did not violate Rule 11 and, accordingly, we vacate the sanctions imposed by the three Superior Court orders.


Facts and Procedural History


Attorney Charles M. Vacca, Jr. (the FIA Action)

In May 2011, FIA Card Services, N.A. (FIA) initiated a credit card debt collection action against James D. Pichette. Pichette signed and filed an answer to FIA's complaint, denying FIA's allegation of outstanding debt and, in a two-count counterclaim, claimed breach of contract and violation of the " Fair Debt Collections Act." No attorney either signed the pleadings or entered an appearance on Pichette's behalf. FIA filed a motion to dismiss both counts of Pichette's counterclaim pursuant to Rule 12(b)(6) of the Superior Court Rules of Civil Procedure, to which Pichette filed an objection and memorandum in support of his objection. At the first hearing on the motion in January 2012, FIA's counsel told the hearing justice that Pichette's pleadings had been drafted, but not signed, by an attorney licensed in Rhode Island. When the hearing justice inquired, Pichette stated that he was involved with a debt consolidation company called Morgan Drexen. Pichette testified that, through this company, he was referred to attorney Charles M. Vacca, Jr., who had drafted the documents that Pichette subsequently filed pro se with the court. The hearing justice continued the motion and then issued a notice to Vacca to appear before the court:

" to conclusively determine [Vacca's] representation of Mr. Pichette[,] * * * whether or not preparation of pleadings without formally entering [Vacca's] appearance on behalf of the litigant [wa]s allowed by Rhode Island law[,] whether or not Rules of Professional Conduct ha[d] been violated[,] whether or not [Rule 11] ha[d] been violated[,] and whether or not sanctions should be imposed."

At the hearing, Vacca testified that he was " of counsel to an attorney who is an engagement attorney that's hired by Morgan Drexen and [he] advise[d] clients that [we]re under the jurisdiction of Rhode Island courts," that he had prepared the pleadings Pichette had subsequently filed pro se, and that he had prepared pleadings for other litigants who had come before the court. Pichette testified that he contacted Morgan Drexen regarding some credit card debt and that Kimberly Pisinski, Morgan Drexen's representative, had referred him to Vacca. Both Vacca and Pichette represented to the court that Pichette had declined full representation but had entered into a limited-representation agreement with Vacca. Pichette also testified, however, that he had not understood the affirmative defenses pled in his answer, the basis or substance of the counterclaims alleged, or the content of the objection to the motion to dismiss and the memorandum in support thereof. Vacca's counsel objected several times to the hearing justice's questions regarding Vacca and Pichette's relationship with Morgan Drexen, but the hearing justice overruled all of the objections.

The hearing justice issued a written decision on July 26, 2012, finding that ghostwriting was in direct conflict with Supreme Court Rules of Professional

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Conduct and violated Rule 11 and that, even though representation that was reasonably limited in scope was allowed pursuant to Rule 1.2, Vacca had clearly provided only partial and inadequate representation. The hearing justice entered an order on the same day to the effect that Vacca " shall cease and desist the anonymous preparation of pleadings for self[-]represented litigants[,] * * * [and] provide written notice to each and every pending file in the Rhode Island Superior Court in which he ha[d] prepared such pleadings." The hearing justice referred the matter to: (1) Disciplinary Counsel for review of whether Vacca's conduct violated the Supreme Court Rules of Professional Conduct; and (2) the Rhode Island Attorney General " to determine whether or not Attorney Kimberly Pisinski [and] Morgan Drexen * * * are illegally practicing law in this state." Vacca timely appealed from the order.


Attorney Wendy Taylor Humphrey (the HSBC Action)

In January 2011, HSBC Bank Nevada, N.A. (HSBC) initiated a debt collection action against Robert L. Cournoyer, and Cournoyer signed and filed an answer denying HSBC's allegations. Three months later, HSBC filed a motion for summary judgment, to which Cournoyer filed a pro se objection and memorandum in support thereof. At the June 3, 2011 hearing on HSBC's motion, HSBC presented the hearing justice with a stipulation. When the hearing justice inquired whether Cournoyer understood the consequences of stipulating to a judgment against him and in favor of HSBC, Cournoyer began talking about " an agreement to pay the lawyer from California" and stated that Wendy Taylor Humphrey was the lawyer who had prepared the pleadings that he had filed with the court. Cournoyer also testified that he had not yet met Taylor Humphrey and thought she was going to be in court for the hearing that day to represent him. In response to the hearing justice's inquiries, Cournoyer also testified that he had called Morgan Drexen after seeing an advertisement on television, and his friend Carmen Martinez--who had accompanied him to court that day--testified that Kimberly Pisinski, an attorney with Morgan Drexen, was the one who paid Taylor Humphrey. During a brief recess, the hearing justice telephoned Taylor Humphrey. The hearing justice then continued the motion for summary judgment to June 6, 2011, told Cournoyer that Taylor Humphrey would be ordered to appear at the June 6 hearing, and asked Cournoyer to also return to court on that day so he could meet Taylor Humphrey.

At the June 6, 2011 hearing, Taylor Humphrey testified that Morgan Drexen had asked her " to act as an advisor of sorts" to put together pleadings on behalf of its clients because Cournoyer's actual attorney, Kimberly Pisinski, was not licensed to practice in Rhode Island. Taylor Humphrey testified that she had spoken with Rhode Island's Chief Disciplinary Counsel " multiple" times before she had agreed to engage in any work for Morgan Drexen and had received " his blessing * * * to be able to assist these people." The hearing justice entered an order finding that Taylor Humphrey had ghostwritten pleadings for Cournoyer, further finding that this behavior was unethical and violated Rule 11, and imposing sanctions in the amount of $750.

Taylor Humphrey promptly sought review from this Court by filing a petition for writ of certiorari. After issuing the writ of certiorari, we quashed the hearing justice's order imposing sanctions because

Page 774

Taylor Humphrey had not been provided with an adequate notice and opportunity to be heard prior to the imposition of Rule 11 sanctions. We ordered that Taylor Humphrey be afforded a new hearing with proper notice and an opportunity to be heard, and that the hearing justice address the applicability of Rule 11 to the circumstances of the case, as well as make findings as to whether Taylor Humphrey had violated Rule 11. The hearing justice subsequently ordered Taylor Humphrey to appear and " [s]how [c]ause as to whether sanctions should be imposed against you by this [c]ourt for violation of Rule 11 * * *." In the notice, the hearing justice specifically defined four issues that would be addressed at the hearing.[2] Prior to the hearing, Taylor Humphrey submitted a prehearing memorandum of law addressing these issues. At the show-cause hearing held on November 2, 2012, the hearing justice heard oral argument from Taylor Humphrey's counsel, but did not receive any additional testimony from Taylor Humphrey.

The hearing justice issued a written decision on January 17, 2013, finding that an attorney-client relationship existed between Cournoyer and Taylor Humphrey as a matter of fact and law, that Taylor Humphrey's conduct in this case violated Article V, Rule 8.4 of the Supreme Court Rules of Professional Conduct, and that Rule 1.2(c) did not preclude a finding of Rule 11 violations. The hearing justice subsequently entered an order finding that Rule 11 applied to Taylor Humphrey's " practice of preparing pleadings for pro se litigants without disclosing her identity" and that Taylor Humphrey's ...

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