Aggravating Factor: Calling Disciplinary Proceedings A “Witch Hunt”

The Indiana Supreme Court imposed at least an 18-month suspension without automatic reinstatement

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.

Details

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. None of those partnership agreements complied with the dictates of Florida law governing the operation of an interstate law firm…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.

Aggravating factors

We also note several other aggravating factors found by the hearing officer. During her testimony in this matter Respondent was “disingenuous and evasive” about her relationship with Tope and attempted to distance herself from his actions despite ample evidence Tope was soliciting and signing up clients for legal representation at her behest. Further, in addition to the flat fees Respondent charged her clients, Respondent’s representation agreements also provided that the client would owe Respondent a 50% contingency fee of any reduction in mortgage principal, to be secured with a lien against the property. Finally, Respondent has not acknowledged any wrongdoing and described these disciplinary proceedings in her testimony as a “witch hunt.”

Justice David dissented and would impose a more severe sanction. (Mike Frisch)