In re McGinn
Annotate this Case
In re McGinn (2005-237); 178 Vt. 604; 877 A.2d 688
[Filed 28-Jun-2005]
ENTRY ORDER
2005 VT 71
SUPREME COURT DOCKET NO. 2005-237
JUNE TERM, 2005
In re E. Michael McGinn, Esq. } Original Jurisdiction
}
} APPEALED FROM:
}
} Professional Responsibility Board
}
} PRB File Nos. 2005.069, 2005.080,
} 2005.094
In the above-entitled cause, the Clerk will enter:
¶ 1. The entry order issued on June 22, 2005, in the above-captioned
case is withdrawn, and the following is issued in its place:
¶ 2. Attorney E. Michael McGinn has filed an affidavit of
resignation pursuant to Rule 19(A) of Administrative Order No. 9.
Disciplinary counsel has submitted an additional Statement of Facts and
Memorandum of Law recommending acceptance of attorney McGinn's resignation.
Having reviewed the filings, the Court finds clear and convincing evidence
that attorney McGinn violated Rules 8.4(b), (c), (d), and (h) of the
Vermont Rules of Professional Conduct. Accordingly, attorney McGinn's
resignation from the Bar of the Vermont Supreme Court is accepted. We
hereby order that E. Michael McGinn is disbarred on consent from the office
of attorney and counselor at law.
¶ 3. Attorney McGinn shall comply with the requirements of A.O. 9,
Rule 23.
FOR THE COURT:
_______________________________________
Paul L. Reiber, Chief Justice
_______________________________________
John A. Dooley, Associate Justice
________________________________________
Denise R. Johnson, Associate Justice
________________________________________
Marilyn S. Skoglund, Associate Justice
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77 PRB
[Filed 16-Jun-2005]
STATE OF VERMONT
PROFESSIONAL RESPONSIBILITY BOARD
In re: E. Michael McGinn, Esq.
PRB Docket Nos. 2005.069, 2005.080, and 2005.094
Decision No. 77
Upon receipt of the Affidavit of Resignation submitted to the Board
and pursuant to Administrative Order No. 9, Rule 19, we recommend to the
Court that the above referenced Respondent be disbarred. Attached hereto
are the Affidavit of Resignation, Disciplinary Counsel's Statement of
Additional Facts, Disciplinary Counsel's Memorandum of Law and a Proposed
Entry Order.
Dated at Montpelier, Vermont this 16th day of June, 2005.
/s/
_________________________
Joan Loring Wing, Esq. - Chair
attachments
cc: Peter F. Langrock, Esq., counsel for E. Michael McGinn, Esq.
Michael Kennedy, Disciplinary Counsel
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STATE OF VERMONT
PROFESSIONAL RESPONSIBILITY BOARD
In Re: E. Michael McGinn, Esq., Respondent
PRB File Nos. 2005.069, 2005.080, and 2005.094
Statement of Additional Facts
NOW COMES Michael Kennedy and, pursuant to Rule 19B of Administrative
Order 9, submits this Statement of Additional Facts.
I. Criminal Conduct
1. The Respondent, E. Michael McGinn, is an attorney licensed to
practice law in the State of Vermont. Attorney McGinn's license to
practice law was suspended on an interim basis in October of 2004.
2. On May 4, 2005, the United States Attorney for the District of
Vermont filed an Information that charged Attorney McGinn with committing
mail fraud in violation of 18. U.S.C. § 341. The crime is a felony. A
copy of the
Information is attached as Exhibit A. 3. The Information alleged
that as "an attorney who represented clients in real estate transactions,
MCGINN frequently received funds that represented the proceeds of those
transactions." (Exhibit A, para. 2).
4. The Information goes on to allege that:
"Beginning in approximately 1998, and continuing until
October 2004, MCGINN misappropriated and diverted to his own
use and benefit a portion of the funds that were entrusted to
him in the course of his real estate practice. In an attempt
to cover up these embezzlements, MCGINN used funds he
received in connection with later transactions to pay out
moneys owed on earlier transactions. In the course of
executing this scheme, MCGINN used the United States mails
and commercial carriers." (Exhibit A, para. 3).
5. The Information concludes by alleging that when Attorney McGinn's
license to practice law was suspended on an interim basis, there was a
shortfall in hist trust account of approximately $650,000.00. (Exhibit A,
para. 4).
6. On May 4, 2005, Attorney McGinn filed a plea agreement in which
he pled guilty to the Information. A copy is attached as Exhibit B.
7. In entering into the agreement, Attorney McGinn acknowledged that
he understood that he was pleading guilty to mail fraud and, in addition,
that he was guilty of mail fraud. (Exhibit B, paras. 2-3).
8. Attorney McGinn has yet to be sentenced.
9. Each of the transactions described below took place in the course
of Attorney McGinn's scheme to misappropriate and divert funds that were
entrusted to him in the course of his real estate practice. Attorney
McGinn's misconduct is exemplified by, but not limited to, the transactions
described below.
A. The Dudley/Hebert Transaction
10. In 2004, William & Kathy Dudley agreed to purchase a home from
Chris and Daffney Hebert for approximately $234,000. The closing took
place on September 27, 2004. Attorney McGinn represented the Dudleys.
11. In advance of the closing, the Dudleys provided Attorney McGinn
with a check for $234,9000. Attorney McGinn deposited the check into an
account at the Peoples Trust Company. 12. At the time of the closing,
the Chittenden Bank held a mortgage on the Heberts' property. The Heberts
owed the bank approximately $103,000.
13. The closing was held on September 27, 2004. At the closing,
Attorney McGinn issued several trust account checks, including (1) a check
to Mr. Hebert in the amount of $58,160.19 (his net proceeds from the sale);
(2) a check to Mrs. Hebert in the amount of $58,160.19 (her net proceeds
from the sale); (3) a check to the Chittenden Bank in the amount of
$103,979.55 (intended to payoff the Dudleys' mortgage); and (4) a check to
Coldwell Banker Choice Properties for $9,004 (the amount owed to the real
estate broker).
14. Each of the checks was issued against Attorney McGinn's trust
account at Charter One Bank. That is, he did not issue the checks against
the same account into which he had deposited the Dudleys' funds.
15. Each check bounced and was not paid due to insufficient funds.
16. Attorney McGinn misappropriated the funds advanced to him by the
Dudleys. To date, Attorney McGinn has not accounted for the Dudleys' funds
and has not made good on any of the checks issued at the closing.
B. The Miner/Bailey Transaction
17. Attorney McGinn represented John Bailey in connection with three
real estate closings that took place on August 6, 2004. In the first two,
Mr. Bailey sold property, earning net proceeds of $76,000.
18. At the closing, Attorney McGinn issued Mr. Bailey a trust
account check for $35,000. Upon presentation, the check was honored. Mr.
Bailey left the remaining $41,000 with Attorney McGinn to use as a down
payment on a home that he was to purchase later that day from Rick Miner.
19. Mr. Bailey had agreed to purchase Mr. Miner's property for
$275,000. He intended to use $41,000 from the proceeds of the morning
sales as a down payment. Mr. Bailey took out a mortgage for the balance -
$234,000. Mr. Bailey caused his lender to wire $234,000 to Attorney
McGinn's trust account.
20. The closing on the Bailey/Miner transaction took place on August
6, 2004. At the time, Mr. Miner owed approximately $218,000 on the
property. Wells Fargo held a first mortgage in the amount of $193,000, and
a home equity loan in the amount of $25,000. Attorney McGinn was to pay
off each note with the funds advanced to him by Mr. Bailey, with the
balance to be paid to Mr. Miner.
21. At the closing, Attorney McGinn issued Mr. Miner a trust account
check in the amount of $39,000 - his net proceeds from the sale. The check
was honored. Attorney McGinn eventually issued trust account checks to
Wells Fargo that were intended to pay off Mr. Bailey's mortgage and home
equity loan. Each check bounced and was not paid due to insufficient
funds.
22. Attorney McGinn misappropriated the funds that had been advanced
to him by Mr. Bailey to pay off Mr. Miner's mortgage and home equity loan.
He has yet to make good on the funds.
C. Attorney McGinn's Representation of Jim Lewis
23. Attorney McGinn represented Jim Lewis in connection with Mr.
Lewis' purchase of real estate from Patricia and Steven O'Dell. A closing
was held on August 3, 2004.
24. In advance of the closing, Mr. Lewis issued a check made payable
to Attorney McGinn in the amount of $73,355.59. Attorney McGinn was to
use the funds to pay of the sellers' mortgage and other costs associated
with the closing. At the time of the closing, the United States Department
of Agriculture (hereinafter "USDA") held a mortgage on the O'Dells'
property in the amount of $69,301.98.
25. At the closing, Attorney McGinn issued a trust account check in
the amount of $69, 301.98 made payable to the USDA. The check was drawn on
Attorney McGinn's trust account at Charter One. The check bounced and was
not paid due to insufficient funds. 26. Attorney McGinn
misappropriated the funds that Mr. Lewis advanced to him. To date, Attorney
McGinn has not accounted for, or made good on, the funds that Mr. Lewis
advanced to him.
27. Eventually, the USDA threatened to foreclose on the property
that Mr. Lewis had purchased from the O'Dells. Despite having previously
advanced over $70,000 to Attorney McGinn, Mr. Lewis was forced to secure
additional financing in the amount of $69, 301.98 in order to pay off the
USDA and avoid foreclosure.
D. Tony Neyto & The Estate of Gabrielle Tynauer
28. Attorney McGinn represented Tony Neyto in connection with Mr.
Neyto's purchase of real estate from the Estate of Gabrielle Tynauer. In
anticipation of the purchase, Mr. Neyto took out a loan against property
that he owned in Massachusetts. Then, Mr. Neyto entrusted $144,253.00 to
Attorney McGinn. The funds were to be used to pay off an existing mortgage
held by Wendover Financial Services Corporation (hereinafter "Wendover")
and other costs associated with the closing. At the time of the closing,
the amount due to pay off Wendover's mortgage was $80,647.96.
29. The closing took place on August 11, 2004. At the closing,
Attorney McGinn issued several checks drawn on his account at Charter One
to pay certain costs associated with the transaction. With the exception
of a trust account check made payable to Wendover, each check was good.
However, a trust account issued to Wendover in the amount of $80,647.96
bounced and was not paid due to insufficient funds.
30. On September 21, 2004, Attorney McGinn issued another trust
account check made payable to Wendover in the amount of $80,647.96. The
check bounced and was not paid due to insufficient funds.
31. On October 15, 2004, Attorney McGinn issued yet another trust
account check made payable to Wendover in the amount of $80,647.96. The
check bounced and was not paid due to insufficient funds.
32. Of the funds entrusted to him by Mr. Neyto, Attorney McGinn
misappropriated the $80,647.96 that was intended to pay off the mortgage
that Wendover held on the property owned by the Estate of Gabrielle
Tynauer. To date, Attorney McGinn has neither accounted for nor made good
on the funds.
E. Smith/Smith Transaction
33. Attorney McGinn represented Terrence Smith in connection with
Mr. Smith's purchase of real estate from his sister, Fern Smith.
34. At closing, the parties agreed that $35,000 would be placed in
escrow. The parties agreed that Attorney McGinn would act as the escrow
agent and that the funds would be released to Ms. Smith upon such time as
she vacated the property and requested the funds. 35. Ms. Smith has
vacated the property and requested the funds. Attorney McGinn
misappropriated the $35,000 his own use. The entire amount has been
dissipated and is not available to be paid to Ms. Smith.
F. Gervais/Gendron Transaction
36. Attorney McGinn represented Marcel and Donna Gervais in
connection with their purchase of property from Armand and June Gendron.
37. At the closing, an issue arose relating to whether the Gendrons
owed money to the Vermont Department of Taxes.
38. The parties agreed that $5,000 would be placed in escrow and
would be held by Attorney McGinn pending resolution of the question as to
whether the Gendrons owed money to the Department of Taxes.
39. Attorney McGinn misappropriated the $5,000 for his own use. The
money is not available to be paid either to the Gendrons or the Department
of Taxes.
G. Shortfall in the Trust Account
40. At the time that Attorney McGinn's license to practice law was
suspended on an interim basis, there was a shortfall in his trust account
of approximately $650,000.
41. The shortfall resulted from the fact that Attorney McGinn
misappropriated approximately $650,000 in funds that had been entrusted to
him by clients or on their behalf.
DATED at Burlington, Vermont, on July 7, 2005
/s/
_________________________
Michael Kennedy
Disciplinary Counsel
32 Cherry Street, Suite 213
Burlington, Vermont 05403
(802) 859-3000
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STATE OF VERMONT
PROFESSIONAL RESPONSIBILITY BOARD
In Re: E. Michael McGinn, Esq., Respondent
PRB File Nos. 2005.069, 2005.080, and 2005.094
Memorandum of Law
NOW COMES Disciplinary Counsel Michael Kennedy and submits this
Memorandum of Law in support of his position that the Statement of
Additional Facts, which is incorporated by reference herein, supports a
finding that the Respondent violated the Vermont Rules of Professional
Conduct.
I Rule 8.4(b) of the Vermont Rules of Professional Conduct
Rule 8.4(b) prohibits attorneys from engaging in conduct involving a
serious crime. The Rule defines a "serious crime" as "illegal conduct
involving any felony", as well as certain types of lesser crimes. In May of
2005, the United States Attorney charged Attorney McGinn with committing
mail fraud mail fraud in violation of 18. U.S.C. § 1341. (Exhibit A). The
crime is punishable by up to twenty years in prison. 18 U.S.C. § 1341. As
such, mail fraud is a felony. See 18 U.S.C § 3559(a). Rule 8.4(b)
prohibits "conduct". As such, neither a conviction nor criminal charges
are necessary for there to be a violation of Rule 8.4(b). See People v.
Odom, 941 P.2d 919 (Colo. 1997); In re Hassenstab, 934 P.2d 1110 (Or.
1997).
Attorney McGinn recently pled guilty to violating 18 U.S.C. § 1341.
(Exhibit B). In other words, he pled guilty to a felony. In that the
crime to which he pled guilty is a felony, it is also a "serious crime".
Therefore, the facts support a finding that he violated Rule 8.4(b) by
engaging in conduct involving a serious crime.
II The Offense of Misappropriation & Additional Violations
At its heart, this case involves the offense of the massive
misappropriation, if not outright theft, client funds. That is, the facts
support a finding that from 1998 to 2004, Attorney McGinn embezzled client
funds and, then, misappropriated client funds to cover up his embezzlement.
In other words, he regularly engaged in the unauthorized use of client
funds.
Several jurisdictions have defined "misappropriation". For instance,
the Nebraska Supreme Court recently stated that
"[i]n the context of attorney discipline proceedings,
'misappropriation' is any unauthorized use of client funds
entrusted to an attorney, including not only stealing, but
also unauthorized temporary use for the attorney's own
purpose, whether or not the attorney derives any personal
gain or benefit therefrom."
State ex rel. Counsel for Dis. v. Wintroub, 678 N.W.2d 103, 112 (Neb. 2004)
(citing State ex rel. NSBA v. Malcolm, 561 N.W.2d 237 (Neb. 1997)).
Misappropriation is so serious that, in Nebraska, the presumptive response
thereto is disbarment. Wintroub, 678 N.W. 2d, at 112. Indeed, long before
it decided the Wintroub matter, the Nebraska Court touched on the serious
nature of the offense, stating that "[m]isappropriation of a client's funds
is more than a grievous breach of professional ethics. It violates the
basic notions of honesty and endangers public confidence in the legal
profession." State ex rel. NSBA v. Gridley, 545 N.W.2d 737 (Neb. 1996) (citations omitted). The Gridley Court noted
that the "fact that no client suffered any financial loss is no excuse for
a lawyer to misappropriate clients' funds nor any reason why a lawyer
should not receive a severe sanction." Id., at 740 (citing State ex rel.
NSBA v. Veith, 470 N.W.2d 549 Neb. 1991)).
Nebraska's view of the offense of misappropriation is consistent with
views taken by other jurisdictions. For instance, in the District of
Columbia, misappropriation "is defined as any 'unauthorized use by an
attorney of a client's funds entrusted to him or her, whether or not
temporary or for personal gain or benefit.' " In re Davenport, 794 A.2d 602, 603 (D.C. 2002) (quoting In re Choroszej, 624 A.2d 434, 436 (D.C.
1992)). The offense is considered so serious in the District that "in
virtually all cases of misappropriation, disbarment will be the only
appropriate sanction unless it appears that the misconduct resulted from
nothing more than simple negligence." In re Addams, 579 A.2d 190, 191
(D.C. 1990); See In re Thomas-Pinkney, 840 A.2d 700 (D.C. 2004) (Reckless
misappropriation of client funds warrants disbarment despite significant
mitigating factors that include the absence of a dishonest motive). As the
District's Board Professional Responsibility has stated, " '[t]he virtual
certainty of disbarment or a six-month suspension for acts of
misappropriation serves the public and the profession by providing a
powerful deterrent for any attorney who might contemplate engaging in this
most serious misconduct.'" Davenport, at 603.
Similar reasoning prevails across the Anacostia River. In Maryland,
"it is well settled that the sanction for misappropriation of
client funds or funds entrusted to a lawyer is, in the
absence of compelling extenuating circumstances justifying a
lesser sanction, disbarment, because misappropriation 'is an
act infected with deceit and dishonesty.' "
Attorney Grievance Comm'n v. Sperling, 844 A.2d 397, 404 (Md. 2003)
(quoting Attorney Grievance Comm'n v. Spery, 810 A.2d 487, 491-92 (Md.
2002)).
The New Jersey Supreme Court has also had occasion to consider
attorneys' misappropriation of client funds. In New Jersey,
misappropriation is "any unauthorized use by the lawyer of clients' funds
entrusted to him, including not only stealing, but also temporary use for
the lawyer's own purpose, whether or not he derives any potential gain or
benefit therefrom." In the Matter of Wilson, 409 A.2d 1153, 1155 n.1 (NJ
1979); See In the Matter of Barlow, 657 A.2d 1197, 1200 (NJ 1997). Since
it rendered the Wilson decision, the New Jersey Court "has not retreated
from the strict rule that knowing misappropriation of client funds almost
invariably warrants disbarment of an attorney." Barlow, 657 A.2d at 1200
(citations omitted). The Barlow Court went on to state that:
"Intent to deprive permanently a client of misappropriated
funds, however, is not an element of knowing
misappropriation. Nor is the intent to repay funds or
otherwise make restitution a defense to the charge of knowing
misappropriation. A lawyer who uses funds, knowing that the
funds belong to a client and that the client has not given
permission to invade them, is guilty of knowing
misrepresentation. The sanction is disbarment." Id., at
1201.
That disbarment should be routine in cases of knowing misappropriation
stems from the basic fact that "[w]hatever the need may be for the lawyer's
handling of clients' money, the client permits it because he trusts the
lawyer." Wilson, 409 A.2d at 1154. Furthermore, lawyers' "[a]buse of this
trust has always been recognized as particularly reprehensible:
'[T]here are few more egregious acts of professional
misconduct of which an attorney can be guilty than
misappropriation of a clients's funds held in trust.
Id., at 1155 (citing In re Beckman 400 A.2d 792, 793 (N.J. 1979)).
Indeed, citing Wilson, Vermont's Professional Conduct Board noted that the
"[t]heft of client funds is one of the most serious ethical
violations which an attorney can commit. It is an offense
which demands imposition of the most serious sanction." In
re Mitiguy, PCB No. 59 (September 30, 1993).
In sum, a lawyer commits an egregious breach of the ethics rules when
he or she uses client funds for anything other than a purpose authorized by
the client. The offense is so severe that only the most serious of
responses is warranted.
A. The facts support a finding that Attorney McGinn's misappropriation
of client funds violated the Vermont Rules of Professional Conduct.
Over the past seven years, Attorney McGinn regularly misappropriated
client funds. As the Statement of Additional Facts makes clear, Attorney
McGinn's misconduct resulted in the theft of approximately $650,000 that
belonged to those clients unfortunate enough to fall at the tail end of his
scheme.
1. Rule 8.4(c)
Rule 8.4(c) of the Vermont Rules of Professional Conduct prohibits
lawyers from engaging in conduct involving misrepresentation, dishonesty,
deceit, or fraud. Attorney McGinn's conduct is fraught with dishonesty and
deceit. Indeed, the facts support a finding that he outright stole from
several clients. Certainly, theft is deceitful, dishonest and fraudulent.
Moreover, each time that Attorney McGinn schemed to use funds intended to
fund a particular transaction to fund an earlier transaction, he engaged in
conduct "infected with deceit and dishonesty". Spery, 810 A.2d, at 491-92.
Finally, the facts support a finding that, on several occasions, Attorney
McGinn issued trust account checks when he knew that the funds intended to
cover those checks were not in his trust account. In sum, the evidence
supports a finding that Attorney McGinn violated Rule 8.4(c).
2. Rule 8.4(d)
Rule 8.4(d) of the Vermont Rules of Professional Conduct prohibits
attorneys from engaging in conduct that is prejudicial to the
administration of justice. This prohibition is typically applied to
misconduct that interferes with a judicial proceeding or compromises the
integrity of the legal profession. In re Andres, PRB Dec. No. 41, at 5
(Sept. 18, 2002) (citing Section 31.301 ABA/BNA Lawyers' Manual on
Professional Conduct, 2002 ABA BNA).
The Gridley case is instructive here. In concluding that Attorney
Gridley violated, among other rules, the rule that prohibited attorneys
from engaging in conduct that was prejudicial to the administration of
justice, the Nebraska Court stated:
"Misappropriation of a client's funds is more than a grievous
breach of professional ethics. It violates the basic notions
of honesty and endangers public confidence in the legal
profession. Misappropriation of client funds, as one of the
most serious violations of duty an attorney owes to his
client, the public, and the courts typically warrants
disbarment." Gridley, 545 N.W. 2d, at 739.
Attorney McGinn's misconduct impugned the integrity of the legal
profession. As did Attorney Gridley's, it represents such a betrayal of
the public's trust as to bring the bar into disrepute. Moreover, Attorney
McGinn's misconduct detracts from the public's confidence in the profession
and, as such, constitutes a breach of the most basic duty he owes to the
public and the bar. The facts support a finding that Attorney McGinn
violated Rule 8.4(d).
3. Rule 8.4(h)
Rule 8.4(h) of the Vermont Rules of Professional Conduct prohibits
lawyers from engaging in conduct that adversely reflects on their fitness
to practice law. Attorney McGinn's misappropriation of client funds
adversely reflects on his fitness to practice law.
III Conclusion
Wherefore, Disciplinary Counsel respectfully recommends that the Board
conclude that the facts support a finding that Attorney McGinn violated the
Vermont Rules of Professional Conduct. In addition, Disciplinary Counsel
respectfully recommends that the Board accept Attorney McGinn's Affidavit
of Resignation.
DATED at Burlington, Vermont, on July 7, 2005.
/s/
_________________________
Michael Kennedy
Disciplinary Counsel
32 Cherry Street, Suite 213
Burlington, Vermont 05403
(802) 859-3000
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EXHIBIT A
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF VERMONT
UNITED STATES OF AMERICA )
)
V. )
) Crim. No. 2:05-CR-58-1
E. MICHAEL MCGINN )
) (18 U.S.C. § 1341)
INFORMATION
The United States Attorney charges:
1. At all times relevant to this information, the defendant E. MICHAEL
MCGINN was an attorney licensed to practice law in the state of Vermont.
2. A substantial part of MCGINN'S law practice involved the purchase,
sale and refinancing of real property. As an attorney who represented
clients in real estate transactions, MCGINN frequently received funds that
represented the proceeds of those transactions. MCGINN typically deposited
those funds in his attorney trust account.
3. Beginning in approximately 1998, and continuing until October 2004,
MCGINN misappropriated and diverted to his own use and benefit a portion of
the funds that were entrusted to him in the course of his real estate
practice. In an attempt to cover up these embezzlements, MCGINN used funds
he received in connection with later transactions to pay out moneys owed on
earlier transactions. In the course of executing this scheme, MCGINN used
the United States mails and commercial interstate carriers.
4. When he stopped practicing law in October 2004, there was a
shortfall of approximately $650,000 in MCGINN'S attorney trust account.
(18 U.S.C. § 1341)
/s/
__________________________________
DAVID V. KIRBY (GLW)
United States Attorney
Burlington, Vermont
May 4, 2005
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EXHIBIT B
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF VERMONT
UNITED STATES OF AMERICA )
)
v. )
) Criminal No. 2:05-CR-58-1
E. MICHAEL MCGINN )
Defendent )
PLEA AGREEMENT
The United States of America, by and through the United States
Attorney for the District of Vermont (hereafter "the United States"), and
the defendant, E. MICHAEL MCGINN, agree to the following disposition of
potential criminal charges.
1. MCGINN agrees to waive indictment and to plead guilty to an
information which charges him with mail fraud, in violation of 18 U.S.C. §
1341.
2. MCGINN understands, agrees and has had explained to him by counsel
that the crime to which he will plead guilty is a felony for which the
Court may impose the following sentence on his plea: up to 20 years of
imprisonment, pursuant to 18 U.S.C. § 1341; a fine of up to $250,000 or
twice the gross gain or gross loss, whichever is greater, pursuant to 18
U.S.C. § 3571(b) and (d); a period of supervised release of not more
than three years, pursuant 20 18 U.S.C. § 3583(b); and a $100 special
assessment. Full restitution must also be ordered.
3. It is the understanding of the parties to this
agreement that the plea will be entered under oath and in accordance
with Rule 11 of the Federal Rules of Criminal Procedure. The defendant
represents that he intends to plead guilty because he is, in fact, guilty
of the crime to which he will enter a plea.
4. MCGINN understands that this agreement is conditioned upon his
providing the United States Attorney, at the time this plea agreement is
executed, a bank cashier's check payable to the Clerk, United States
District Court, in payment for the mandatory special assessment of $100 for
which he will be responsible when sentenced. The United States agrees to
safeguard and pay the special assessment imposed at sentencing to the Clerk
of the Court immediately after sentencing. In the event that this plea
agreement is for any reason terminated or the defendant's guilty plea is
not accepted by the Court, the special assessment shall be promptly
refunded. In the event that the tendered bank check is not honored for
whatever reason, the defendant understands that he will still be liable for
the amount of the special assessment which the Court imposes. MCGINN
understands and agrees that, if he fails to pay the special assessment in
full prior to sentencing, the United States' obligations under this plea
agreement will be terminated, the United States will have the right to
prosecute him for any other offenses he may have committed, and will have
the right to recommend the Court impose any
lawful sentence. Under such circumstances, MCGINN will have no right to
withdraw his plea of guilty.
5. MCGINN agrees and understands that it is a condition of thls
agreement that he refrain from committing any further crimes, whether
federal, state or local, and that he strictly abide by all conditions of
release if he is permitted to remain at liberty pending sentence.
6. The United States agrees that in the event that MCGINN fully and
completely abides by all conditions of this agreement, the United States
will:
(a) recommend to the sentencing Court that he be sentenced to
a term of imprisonment at the bottom of the advisory
Sentencing Guidelines range applied by the Court in imposing
the sentence. In the event the Court downwardly departs from
the applicable Guidelines range, the United States agrees
only to recommend a sentence at the bottom of the range found
to be applicable before departure.
(b) recommend that the defendant should receive credit for
acceptance of responsibility under U.S.S.G. § 3El.1, provided
that he cooperates truthfully and completely with Probation
during the present, once investigation and further provided
that no new information comes to the attention of the
United States Attorney's Office relative to the issue of
his receiving credit for acceptance of
responsibility.
(c) if MCGINN'S offense level is 16 or more, move
that MCGINN receive a 1-level additional credit
for acceptance of responsibility on grounds that
he timely notified authorities of his intention to
plead guilty.
(d) not prosecute MCGINN, in the District of Vermont,
for any additional offenses, known to the United
States Attorney at the time this agreement is
signed, which relate to his embezzlement of money
received in the course of his law practice.
7. If the United States determines, in its sole discretion that the
defendant has committed any offense after the date of this agreement, or
violated any condition of release, or has failed to cooperate fully with
the Probation Department regarding the offense of conviction, or has
provided any intentionally false, incomplete or misleading information to
Probation, the United States' obligations under paragraph 6 of this
agreement will be void; the United States will have the right to recommend
that the Court impose any sentence authorized by law; and will also have
the right to prosecute the defendant for any other offenses he may have
committed in the District of Vermont. The defendant understands and agrees
that, under such circumstances, he will have no right to withdraw his
previously entered plea of guilty.
8. MCGINN fully understands that the sentence to be imposed on him is
within the sole discretion of the Court. The defendant may not withdraw his
plea because the Court declines to follow any recommendation, motion or
stipulation of the parties to this agreement. The United States does not
make any promises or representations as to what sentence MCGINN will
receive. The United States specifically reserves the right to allocute at
sentencing. There shall be no limit on the information the United States
may present to the Court and the Probation Office relevant to sentencing
and the positions the United States may take regarding sentencing (except
as specifically provided elsewhere in this agreement). The United States
also reserves the right to correct any misstatement of fact made during the
sentencing process, to oppose any motion to withdraw a plea of guilty
previously entered and to support on appeal any decisions of the sentencing
Court whether in agreement or in conflict with recommendations and
stipulations of the parties.
9. Further MCGINN fully understands that any estimates or predictions
relative to the Guidelines calculations are not binding upon the Court, and
fully understands that the Guidelines are advisory and that the Court can
consider any and all information that it deems relevant to the sentencing
determlnation. Thus, the
defendant expressly acknowledges that in the event that any estimates or
predictions by his attorney (or anyone else) are erroneous, those erroneous
predictions will not provide grounds for withdrawal of his plea of guilty,
modification of his sentence, or for appellate or post-conviction relief.
10. It is further understood and agreed by the parties that should the
defendant's guilty plea not be accepted by the Court for whatever reason,
or later be withdrawn or vacated, this agreement may be voided at the
option of the United States and the defendant may be prosecuted for any and
all offenses otherwise permissible.
11. It is further understood that this agreement is limited to the
Office of the United States Attorney for the District of Vermont and cannot
bind other federal, state or local prosecuting authorities.
12. Both parties are free to move for a departure under the Guidelines
and to argue for a sentence outside the advisory sentencing range, except
as otherwise set forth in this agreement.
13. In voluntarily pleading guilty, MCGINN acknowledges that he
understands the nature of the charge to which the plea is offered. He also
acknowledges that he has the right to be indicted by a grand jury; that he
has the right to plead not guilty or to persist in a plea of not guilty;
that he has the right to be tried by a jury and at that trial a right to
the assistance of counsel; that he has
the right to confront and cross-examine adverse witnesses; that he has the
right against compelled self-incrimination; that if a plea of guilty is
accepted by the Court, there will be no further trial of any kind, so that
by pleading guilty he waives the right to a trial and the other rights
enumerated here.
14. MCGINN expressly states that he makes this agreement of his own
free will, with full knowledge and understanding of the agreement and with
the advice and assistance of his counsel, Peter Langrock, Esq. MCGINN
further states that his plea of guilty is not the result of any threats or
of any promises beyond the provisions of this agreement. Furthermore,
MCGINN expressly states that he is fully satisfied with the representation
provided to him by his attorney and has had full opportunity to consult
with his attorney concerning this agreement, concerning the applicability
and impact of the sentencing guidelines (including, but not limited to, the
relevant conduct provisions of U.S.S.G. § 1B1.3), and concerning the
potential terms and conditions of supervised release.
15. No agreements have been made by the parties or their counsel other
than those contained herein.
16. It is agreed that a copy of this agreement shall be filed with the
Court before the time of the defendant's change of plea.
Dated at Burlington, in the District of Vermont, this
4 day of May, 2005.
UNITED STATES OF AMERICA
DAVID V. KIRBY
United States Attorney
By: /S/
______________________________
GREGORY L. WAPLES
Assistant U.S. Attorney
/S/
______________________________
E. MICHAEL MCGINN
Defendant
4/28/2005
----------
DATE
I have read, fully reviewed and explained this agreement to my client,
E. MICHAEL MCGINN, and I hereby approve of it.
/S/
______________________________
PETER F . LANGROCK, ESQ.
Counsel for the Defendant
5/3/05
----------
DATE
CERTIFICATE OF SERVICE
I, Karen A. Arena-Leene, Legal Assistant for the United States
Attorney's Office for the District of Vermont, do hereby certify that I
have served a copy of the foregoing INFORMATION AND EXECUTED PLEA AGREEMENT
on the Defendant by mailing a copy thereof to the following:
Peter F. Langrock, Esq.
111 S. Pleasant Street
P.O. Drawer 351
Middlebury, VT 05753
Dated at Burlington, in the District of Vermont, this day, May 4,
2005.
/S/
______________________________
KAREN A. ARENA-LEENE
Legal Assistant
United States Attorney's Office
P.O. Box 570
Burlington, VT 05402
--------------------------------------------------------------------------
State of Vermont
Professional Responsibility Program
-----------------------------------------
In Re:E. Michael McGinn, Esq., Respondent
Supreme Court Dkt. No. 2005-505
PRB File Nos. 2005.069, 2005.080, and 2005.094
-----------------------------------------
Affidavit of Resignation
NOW COMES E. Michael McGinn, being duly sworn, and, pursuant to Rule 19(A)
of Administratative Ordcr 9, submits this Affidavit of Resignation.
1. I am an attorney licensed to practice law in Vermont.
2. I was admitted to the Vermont Bar on February 3, 1970,
3. I desire to resign from the Vermont Bar.
4 This resignation is freely and voluntarily rendered.
5. I was not subjected to coercion or duress in tendering this
resignation.
6. I have reviewed Administrative Order 9 and I am fully aware of the
implications of submitting this resignation.
7. I am aware that Disciplinary Counsel is presently investigating
allegations that I am guilty of misconduct that violates the Vermont Rules
of Professional Conduct.
8. I am aware that Disciplinary Counsel is presently investigating
whether I have misappropriated several hundred thousand dollars of
client funds.
9. I acknowledge that the materia1 facts upon which Disciplinary
Counsel's investigations are predicated are true.
10. I am submitting this resignation because I know that if
disciplinary charges were predicated upon the misconduct under
investigation by Disciplinary Counsel that I could not successfully defend
against them.
11. I am aware that, pursuant to Rule 19(B) of Administrative Order 9,
Disciplinary Counsel will file a statement of facts relating to the
misconduct under investigation.
12. The facts recited herein are based on my personal knowledge and I
believe them to be true.
Dated at St. Albans, Vermont on this 24th day of January, 2005.
Respectfully submitted,
/S/
______________________________
E. Michael McGinn, Esq.
10 South Main Street
P.O. Box 932
St. Albans, Vermont 05478
Subscribed and sworn before me
at St. Albans, Vermont, on this 24 day
of January, 2005
/S/
______________________________
Notary Public
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