text:
    In re Donald Ray PRYOR.
    No. 2003-B-2376.
    Supreme Court of Louisiana.
    Jan. 21, 2004.
    Charles B. Plattsmier, Chief Disciplinary Counsel, James T. Daly, Deputy Disciplinary Counsel, for Applicant.
    Robert C. Jenkins, Jr., Sheila C. Myers, Donald R. Pryor, New Orleans, for Respondent.
   ATTORNEY DISCIPLINARY PROCEEDINGS

hPER CURIAM.

This disciplinary matter arises from two sets of fprmal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Donald Ray Pryor, an attorney licensed to practice law in Louisiana. The first set of charges, 99-DB-116, alleges eighteen counts of misconduct arising from ten disciplinary complaints filed against respondent between 1996 through 1998. The second set of charges, 01-DB-011, alleges four counts of misconduct based on complaints filed between 1998 through 1999.

UNDERLYING FACTS 99-DB-116

Counts 1 & 2 — Calloway Matter

In November 1995, Philip Calloway retained respondent for $300 to represent him at a probation revocation hearing in the United States District Court for the Eastern District of Louisiana. At the time he was retained, respondent had not taken the necessary steps to be admitted to practice before the federal court. Nonetheless, respondent attended one hearing on behalf of his client to obtain a continuance. At the time of the retention and the scheduled hearing, respondent was not licensed to practice law in federal court and neglected to take any action to become licensed. 12Thereafter, respondent took no further steps on behalf of his client and did not communicate with him.

In January 1996, Donis Calloway, Mr. Calloway’s wife, filed a complaint with the ODC. The ODC forwarded a copy of the complaint to respondent, but he failed to reply to the ODC’s request for information. As a result, the ODC was required to issue a subpoena compelling respondent to appear and produce documents at a scheduled deposition.

In April 1998, over two years after the complaint was filed, respondent refunded the entire legal fee to his former client.

Counts S & k — Cummings Matter

In December 1995, Adell Cummings retained respondent for $250 to represent her son, Jimmie Cummings, who had been arrested and incarcerated in Orleans Parish Prison for theft of goods valued under $500. After being retained, respondent took little or no action on behalf of his client, failed to communicate with his client and failed to return or account for the unearned fee.

In November 1998, Ms. Cummings filed a complaint with the ODC. The ODC forwarded a copy of the complaint to respondent, but he failed to reply to the ODC’s request for information. As a result, the ODC was required to issue a subpoena compelling respondent to appear and produce documents at a scheduled deposition.

Counts 5 cfe 6 — Expose Matter

On March 5, 1998, Charles Expose retained respondent for the sum of $500 to represent his grandsons, Corey and Antonio Expose, in connection with their arrest |3for possession with the intent to distribute crack cocaine. According to Mr. Expose, respondent guaranteed he would get them released within twenty-four hours. However, respondent took little or no action on behalf of his clients and failed to obtain their release. Additionally, respondent neglected to communicate with Mr. Expose or with his clients, and failed to return or account for the unearned fee.

In April 1998, Mr. Expose filed a complaint with the ODC. The ODC forwarded a copy of the complaint to respondent, but he failed to reply to the ODC’s request for information. As a result, the ODC was required to issue a subpoena compelling respondent to appear and produce documents at a scheduled deposition.

Respondent appeared for deposition in July 1998. At that time, he agreed to promptly provide restitution to Mr. Expose. However, he did not refund Mr. Expose’s fee until nine months later.

Count 7 — Banks Matter

In early 1998, Carolyn Banks filed a disciplinary complaint against respondent. The ODC forwarded a copy of the complaint to respondent, but he failed to reply to the ODC’s request for information. As a result, the ODC was required to issue a subpoena compelling respondent to appear and produce documents at a scheduled deposition. Respondent neglected to appear, requiring the ODC to issue a second subpoena.

Counts 8 & 9 — King/Belt Matter

In January 1998, Cora Lee Belt King contacted respondent for the purpose of having a bond set for the release of her son, James Belt,' who was incarcerated on a | ¿charge of burglary. Ms. King paid respondent a fee of $400. After being retained, respondent met with Ms. King on four occasions, but did not obtain the release of her son. Dissatisfied with his handling of the matter, Ms. King discharged respondent and demanded a refund of the unearned fee. Respondent neglected to account for or return the unearned fee upon request.

In May 1998, Ms. King filed a complaint with the ODC. The ODC forwarded a copy of the complaint to respondent, but he failed to reply to the ODC’s request for information. As a result, the ODC was required to issue a subpoena compelling respondent to appear and produce documents at a scheduled deposition.

Counts 10 & 11 — Pugh Matter

In April 1998, Velma Louis Pugh contacted respondent for the purpose of having a bond set for the release of her son, Corey Pugh, who was incarcerated based on a charge of possession of stolen property. Ms. Pugh paid respondent $350, with $300 representing the legal fee and $50 representing the processing fee. Respondent took little or no action in the matter, and neglected to communicate with Ms. Pugh or her son. As a result, Ms.' Pugh discharged respondent and obtained other counsel. After being discharged, respondent did not account for or return the unearned fee.

In May 1998, Ms. Pugh filed a complaint with the ODC. The ODC forwarded a copy of the complaint to respondent, but he failed to reply to the ODC’s request for information. As a result, the ODC was required to issue a subpoena compelling respondent to appear and produce documents at a scheduled deposition. Respondent appeared at the deposition, at which time he testified he was unable to recall the specifics of the case, but agreed to provide information in writing to the ODC. He failed to do so.

| sCounts 12 & 13 — Tillery Matter

In February 1998, Elizabeth Caffery retained respondent to represent Darrin Tillery in a criminal matter. Ms. Caffery, with the assistance of Mr. Tillery’s sister, paid respondent $650 of a $750 fee seeking the immediate release of Mr. Tillery, who had been as incarcerated following his arrest for possession with the intent to distribute crack cocaine and marijuana. Respondent visited Mr. Tillery on one occasion. Thereafter, he failed to take any further action on behalf of Mr. Tillery, failed to communicate with Mr. Tillery, Mr. Tillery’s family or Ms. Caffery and failed to appear in court on Mr. Tillery’s behalf. Subsequently, respondent was discharged. After being discharged, he failed to refund the unearned fee.

In July 1998, Ms. Caffery filed a complaint with the ODC. The ODC forwarded a copy of the complaint to respondent, but he failed to reply to the ODC’s request for information. As a result, the ODC was required to issue a subpoena compelling respondent to appear and produce documents at a- scheduled deposition. Respondent neglected to appear. Subsequently, the ODC made two additional formal requests for information from respondent regarding the complaint. He finally responded in February 1999.

Count Ik — Julian Matter

In April 1998, Demitri and Gregory Julian filed a disciplinary complaint with the ODC against respondent. The ODC forwarded a copy of the complaint to respondent, but he failed to reply to the ODC’s request for information. As a result, the ODC was required to issue, a subpoena compelling respondent to appear and produce documents at a scheduled deposition. On the day of the scheduled ^deposition, respondent’s secretary contacted the ODC seeking to reschedule the deposition due to a death in the family. The ODC rescheduled the deposition for November 30, 1999. Subsequently, respondent failed to appear on the rescheduled date.

Count 15 & 16 — Brown Matter

In April 1998, Lorenzo Brown Williams retained respondent to represent her son, Preston Brown, who was arrested for possession of crack cocaine. ■ She paid respondent $375 towards a $1,500 ■ fee. Subsequently, respondent took little or no action on behalf of his client, failed to communicate with his client and failed to return or account for the unearned fee.

In October 1998, Ms. Williams filed a complaint with the ODC. The ODC forwarded a copy of the complaint to respondent, but he failed to reply to the ODC’s request for information. As a result, the QDC was required to issue a subpoena compelling respondent to appear and produce documents at a scheduled deposition.

On the morning of the scheduled deposition, respondent contacted the ODC to advise he had to be in court and sought a three-day continuance. The ODC rescheduled the deposition to accommodate. respondent. Subsequently, respondent failed to appear on the rescheduled date.

Count 17 & 18 — Moses Matter

In September 1998, Tressie Moses retained respondent for $450 to represent her son, Piase J. Moses, who was charged with armed robbery. Thereafter, respondent took.little or no action on behalf of Mr. Moses. Respondent did not appear at Mr. Moses’ arraignment, and Mr. Moses eventually pled guilty to a lesser 17charge in order to obtain his own release. Subsequently, Ms. Moses discharged respondent and sought a return of the unearned fee. Respondent did not account for or return the unearned fee.

In December 1998, Ms. Moses filed a complaint with the ODC. The ODC forwarded a copy of the complaint to respondent, but he failed to reply to the ODC’s request for information. As a result, the ODC was required to issue a subpoena compelling respondent to appear and produce documents at a scheduled deposition. Respondent appeared at the deposition, but testified that he was unable to recall the specifics of the casé.

01-DB-011

Count 1 — Brown Matter

In early November 1998,' Dannette Brown, a Texas resident, retained respondent to represent her sister, Joyce Johnson, in a criminal matter. On November 9, 1998, Ms. Brown wired respondent $600 for his legal fee. Between November 10 and 12, 1998, Ms. Brown made numerous attempts to communicate with respondent by telephone, but was unable to reach him. She spoke with his office staff, who advised on each occasion that her sister would be released that night. However, Ms. Brown became concerned with respondent’s progress in the matter and failure to communicate with her. As a result, she rented a vehicle and traveled from Texas to meet with respondent personally. When she finally met with him on November 23, 1999, she learned that he had not taken any action on her sister’s behalf. Ms. Brown then discharged respondent and retained other counsel, who successfully obtained the release of her sister on December 3, 1998. After being discharged, respondent failed to refund the unearned fee to Ms. Brown.

| ^Thereafter, Ms. Brown filed a complaint with the ODC. The ODC forwarded a copy of the complaint to respondent, but he failed to reply to the ODC’s request for information. As a result, the ODC was required to issue a subpoena compelling respondent to appear and produce documents at a scheduled deposition. Respondent eventually filed an untimely response, alleging he earned the entire fee by communicating with the trial judge about the matter.

Count 2 — LeBlanc Matter

In March 1998, Eurine LeBlanc retained respondent for $1,050 to represent his sons, Wayne and Stanley LeBlanc, in their criminal matters. Respondent took little action on behalf of his clients, and neglected to communicate with his clients and their family. In fact, the minutes from the criminal proceeding involving Wayne Le-Blanc, who was incarcerated on charges of simple burglary, indicate he was represented by other counsel in court appearances from May 14 to September 24,1998.

Approximately one year after retaining respondent, Eurine LeBlanc discharged him and requested a refund of the unearned fee. Respondent failed to comply with the request.

In February 1999, Patricia Andrew, on behalf of her father, Eurine LeBlanc, filed a complaint with the ODC. The ODC forwarded a copy of the complaint to respondent, but he failed to reply to the ODC’s request for information. As a result, the ODC was required to issue a subpoena compelling respondent to appear and produce documents at a scheduled deposition. Respondent eventually provided an accounting, but failed to return the unearned fee.

\ ¡¡Count 3 — Loggins Matter

On May 26, 1999, Duane M. Loggins retained respondent to obtain his release from jail on bond. Mr. Loggins paid respondent a total of $1,200, $200 of which represented the “processing fee.” Shortly after retaining respondent, Mr. Loggins was released due to prison overcrowding. After Mr. Loggins was released, respondent failed to communicate with him, as well as refused to account for or refund the funds paid to him.

In July 1999, Mr. Loggins filed a complaint with the ODC. The ODC forwarded a copy of the complaint to respondent, but he failed to reply to the ODC’s request for information. As a result, the ODC was required to issue a subpoena compelling respondent to appear and produce documents at a scheduled deposition. Respondent ultimately provided an accounting to Mr. Loggins and refunded $350 of his fee.

Count k — Payton Matter

On October 14, 1999, Perry Payton retained respondent for $500 to represent him in criminal trial proceedings which were scheduled to commence five days later in Plaquemines Parish. After being retained, respondent neglected to communicate with Mr. Payton and his client’s family. On October 18, 1999, the day before the scheduled trial, respondent formally enrolled as counsel. On the morning of trial, respondent contacted the court to advise that he would be late due to a previously scheduled matter in New Orleans. He also faxed a motion for continuance to the trial court, but neglected to ascertain whether or not it had been granted. The trial proceeded in respondent’s absence. Mr. Payton entered a plea of guilty with the |inassistance of court-appointed counsel. Later, Mr. Payton rejected respondent’s offer to represent him in the sentencing phase of his criminal proceedings, and requested a refund of the unearned fee. Respondent failed to comply-

In November 1999, Mr. Payton filed a complaint with the ODC advising of respondent’s misconduct and seeking a return of the unearned fee. Respondent ultimately refunded $250 of the $500 fee.

DISCIPLINARY PROCEEDINGS 99-DB-116

Formal Charges

Following its investigation, the ODC filed eighteen counts of formal charges against respondent alleging that his conduct violated Rules 1.1 (incompetence), 1.3 (lack of due diligence and promptness), 1.4 (failure to communicate with a client), 1.5 (failure to account for and refund unearned fees), 1.16(d) (improper termination of representation), 3.4(c) (failure to comply with tribunal orders), 5.5 (violating disciplinary regulation of another jurisdiction through unauthorized practice of law in that jurisdiction), 8.1 (failure to comply with ODC’s requests for information), 8.4(a) (violation of Rules of Professional Conduct), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), 8.4(d) (engaging in conduct prejudicial to the administration of justice) and 8.4(g) (failure to cooperate with the ODC in its investigation) of the Rules of Professional Conduct. Respondent filed an answer generally denying any wrongdoing.

[ ^Formal Hearing

Immediately prior to the formal hearing, respondent stipulated to the allegations of the formal charges. Accordingly, the formal hearing was limited to the presentation of mitigating evidence. Respondent did not testify at the hearing, but presented witnesses who testified as to his good character and reputation.

01-DB-lll

Formal Charges

On November 2, 2001, after the hearing had been conducted on the charges in 99-DB-116, the ODC filed four counts of formal charges against respondent alleging violations of Rules 1.3 (lack of due diligence and promptness), 1.4 (failure to communicate with a client), 1.4(a) (failure to keep client reasonably informed about the status of legal matter and failure to comply with reasonable requests for information), 1.5(f)(6) (failure to account for or refund unearned fee, and/or place disputed funds in trust), 1.16(d) (improper termination of representation), 8.1(c)(violating disciplinary regulation of another jurisdiction through unauthorized practice of law in that jurisdiction) and 8.4(g) (failure to cooperate with the ODC in its investigation) of the Rules of Professional Conduct.

Respondent neglected to respond to the formal charges, and they were deemed admitted. Subsequently, respondent retained counsel and moved to recall the deemed admitted order, which was granted by the hearing committee chairman. Respondent then answered the formal charges, generally denying any wrongdoing.

| isFormal Hearing

Subsequently, a formal hearing was scheduled. Prior to the hearing, the parties entered into a joint stipulation in which respondent admitted to most of the allegations of the formal charges. As mitigating evidence, the parties stipulated that, had respondent called the witnesses who testified at the hearing in 99-DB-116, these witnesses would testify in accordance with their earlier testimony. Respondent also produced character letters which had been submitted at the hearing in 99-DB-116.

Recommendations of the Hearing Committees

99-DB-116

In light of respondent’s stipulation to the allegations of the formal charges, the hearing committee limited its consideration to an appropriate sanction for his misconduct.

As to the Calloway matter subject of Court 1, the committee observed that, although respondent may have engaged in the unauthorized practice of law in federal court, any violation was only technical in nature. In support, it found the length of respondent’s representation was brief and no injury was caused by his actions.

As to respondent’s neglect of client matters, the committee found respondent’s actions stemmed in some respects from his lack of managerial skills and failure to sufficient communicate with his clients relative to his progress on their respective cases.

The committee expressed concern over respondent’s repeated failures to cooperate with the ODC. It observed the ODC “bent over backwards” to accommodate respondent’s schedule, yet respondent still failed to appear for depositions. The committee rejected respondent’s argument that he did not 1 ^understand the seriousness of his failure to cooperate, citing his prior disciplinary record consisting of, among other things, seven admonitions for a failure to cooperate.

Relying on the ABA’s Standards for Imposing Laioyer Sanctions and jurisprudence from this court, the committee concluded the baseline sanction is disbarment or suspension for cases involving multiple counts of neglect and the failure to cooperate, and multiple instances of prior discipline. As aggravating factors, the committee recognized respondent’s prior disciplinary offenses, pattern of misconduct, and, in some cases, late restitution.

Based on its findings, the committee recommended imposition of a two-year suspension with eleven months deferred, subject to a one-year supervised probation with conditions to be suggested by the probation monitor.

01-DB-lll

A separate hearing committee heard the charges in 01-DB-lll. This committee concluded respondent neglected two clients’ matters, failed to communicate with a client, failed to return an unearned fee and failed to cooperate with the ODC in three matters, in violation of Rules 1.3, 1.4(a), 1.5(f)(6), 8.1(c), 8.4(c) and 8.4(g), respectively.

Relying on the ABA’s Standards for Imposing Lawyer Sanctions and jurisprudence from this court, the committee concluded the baseline sanction is | ^suspension. In aggravation, it recognized respondent’s prior disciplinary record, pattern of misconduct, multiple offenses and substantial experience in the practice of law. As mitigating factors, the committee observed respondent had overcome financial adversity to become a lawyer, that he is dedicated to the majority of his clients, and acted as a zealous advocate for his clients’ interests.

In imposing sanctions, the committee stated that it was in agreement that respondent’s misconduct appears to arise from respondent’s inability to properly manage his case load. However, it concluded respondent’s inability to manage his practice did not fully explain his failure to cooperate.

Based on these considerations, the committee recommended respondent be suspended from the practice of law for a period of sixty days, fully-deferred, subject to a six-month period of supervised probation.

Recommendation of the Disciplinary Board

The recommendations of the hearing committees in 99-DB-116 and 01-DB-lll were consolidated for review by the disciplinary board. Based on its review of the record, the disciplinary board concluded the committees’ findings of fact were not manifestly erroneous. It found respondent incompetently handled and neglected client matters, failed to communicate with his clients, failed to return unearned fees and failed to cooperate with the ODC, in violation of Rules 1.1, 1.3, 1.4, 1.5, 1.16(d), 3.4(c), 5.5, 8.1(c), 8.4(a), 8.4(c), 8.4(d) and 8.4(g) of the Rules of Professional Conduct, respectively.

11fiAddressing the issue of sanctions, the board found respondent knowingly violated duties to his clients and the legal system, and as a professional. It noted respondent’s clients were harmed by his failure to diligently pursue their cases, failure to appear on their behalf at court, failure to communicate and failure to refund unearned fees on a timely basis. The board recognized the disciplinary system was harmed by respondent’s repeated failure to cooperate in the numerous disciplinary complaints against him.

As aggravating factors, the board recognized respondent’s prior disciplinary record, pattern of misconduct, multiple offenses, failure to cooperate and substantial experience in the practice of law. The board found remorse to be the only mitigating factor.

Relying on the ABA’s Standards for Imposing Lawyer Sanctions and jurisprudence from this court, the board recommended that respondent “be suspended for thirty-six months, with eleven months deferred, an additional twelve months deferred if respondent works in a supervised office setting such as the indigent defenders program for the deferred twelve months, twenty-three months of probation with a practice monitor, attend Ethics School and pay all costs associated with the proceedings.”

The ODC filed an objection to the disciplinary board’s recommendation. Accordingly, the matter was docketed for briefing and argument in accordance with Supreme Court Rule XIX, § 11(G).

DISCUSSION

Bar disciplinary matters come within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an | ^independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Quaid, 94-1316 (La.11/30/94), 646 So.2d 343; Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444 (La.1992). In light of respondent’s stipulations and other evidence in the record, we conclude the ODC has proven the allegations of professional misconduct. Accordingly, we now turn to a discussion of the appropriate sanction.

In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved, considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

Taken as a whole, the record demonstrates that respondent’s misconduct is negligent rather than intentional and stemmed in large measure from poor office management skills. In most instances, respondent performed the services for which he was retained, but neglected to promptly and adequately communicate with his clients concerning the status of their matters. While respondent’s actions may have delayed the resolution of his clients’ legal matters, there is no evidence in the record that his misconduct caused serious harm to his clients.

In aggravation, we recognize respondent’s prior disciplinary record, pattern of misconduct, multiple offenses, failure to cooperate and substantial experience in the practice of law. However, we find several significant mitigating factors are present, including the absence of any dishonest or selfish motive, payment of restitution and demonstration of sincere remorse. We further recognize respondent’s good character |17and reputation in the community, as the record is replete with testimony from respected clergy, judges and attorneys who attest to respondent’s zealous advocacy in favor of his criminal clients, who are often incarcerated and of limited means.

Under these circumstances, we believe a two-year suspension from the practice of law is warranted. However, in light of the significant mitigating circumstances, we will defer eighteen months of this suspension and place respondent on supervised probation following the completion of the active portion of his suspension.

DECREE

Upon review of the findings and recommendations of the hearing committees and disciplinary board, and considering the record, and briefs filed by the parties, it is ordered that Donald Ray Pryor, Louisiana Bar Roll number 18389, be suspended from the practice of law for a period of two years, with eighteen months of the suspension deferred. Following the completion of the active portion of his suspension, respondent shall be placed on probation for a period of two years under the supervision of a practice monitor. Any misconduct during the period of probation may be grounds for making the deferred portion of the suspension executory or imposing other discipline, as appropriate. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . Interestingly, Ms. Cummings drafted and signed the complaint in February 1996, but it was not filed until November 1998, almost three years later.

      . The underlying facts of the complaint are not relevant, as the ODC did not pursue the merits of the complaint.

      . The facts of this complaint are not relevant, as the ODC ultimately did not pursue the complaint on the merits.

      . Respondent’s name does not appear on any of the court dockets as representing counsel in either of the LeBlanc criminal matters.

      . There is some dispute as to whether $1,000 of this amount was to be used for bail. The receipt for the payment states the $1,000 was for "legal services.”

      . Respondent was admonished for failure to cooperate on seven prior occasions between 1991 to 1995. Additionally, he was admonished four times for incompetence, neglect and failure to communicate.

      . The committee made a finding of fact that respondent was engaged for limited purposes for each of the bond clients and performed services that entitled him to fees in most of the cases. It found respondent issued some refunds “in an apparent effort to stem the tide of complaints.” However, it found no further restitution was due to the complainants.

      . In addition to the seven admonitions imposed between 1991 to 1995, which were identified by the hearing committee in 99-DB-116, respondent was also admonished on two additional occasions following the compilation of the record in the earlier proceeding. In 1999, he was admonished for engaging in conduct prejudicial to the administration of justice stemming from the failure to pay a third party medical provider. Subsequently, he was admonished in 2001 for neglect of a legal matter.

      . Respondent was admitted to the practice of law in 1987.


source: Caselaw Access Project

author: hPER CURIAM.

license: Public Domain

text:
    In re Barry E. EDWARDS.
    No. 2003-B-2190.
    Supreme Court of Louisiana.
    Jan. 21, 2004.

      Charles B. Plattsmier, Chief Disciplinary Counsel, Robert S. Kennedy, Jr., Deputy Disciplinary Counsel, Counsel for Applicant.
    Barry E. Edwards, Esq., W. James Singleton, Esq., Shreveport, Counsel for Respondent.
   ATTORNEY DISCIPLINARY PROCEEDINGS

hPER CURIAM.

This disciplinary matter arises from six counts of formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Barry E. Edwards, an attorney licensed to practice law in Louisiana, but currently on suspension.

PRIOR DISCIPLINARY RECORD

Before addressing the instant charges, a review of respondent’s prior disciplinary history is helpful. On June 13, 1997, this court placed respondent on interim suspension based on a felony drug conviction and ordered disciplinary proceedings to be instituted. In re: Edwards, 97-0624 (La.6/13/97), 695 So.2d 1325 (“Edwards I”).

The ODC filed formal charges based on respondent’s conviction and other professional misconduct. After proceedings, the disciplinary board recommended respondent be disciplined. On December 17, 1999, this court suspended respondent for a period of three years, retroactive to the date of his interim suspension, followed by a two-year period of supervised probation, based upon misconduct involving his substance abuse conviction, failure to return unearned fees, failure to act with diligence and failure to cooperate in disciplinary proceedings. In re: Edwards, 99-1783 (La.12/17/99), 752 So.2d 801 (“Edwards II”). Although respondent has been eligible to seek reinstatement from this suspension as of June 13, 2000, he has not done so.

| .FORMAL CHARGES

Count I — Everett Matter

The ODC alleges that, sometime in September 1996, Billy R. Everett retained respondent for $2,500 to represent him in the criminal proceedings stemming from an arrest for aggravated battery. It claims, although respondent enrolled as counsel of record for Mr. Everett on December 16, 1996, respondent failed to attend any scheduled court appearances on behalf of Mr. Everett and failed to communicate with him. On January 22,1997, less than five weeks after respondent enrolled as counsel, Mr. Everett filed a motion seeking to have respondent removed as his counsel.

Based on these facts, the ODC alleges respondent’s conduct violates Rules 1.3 (lack of diligence), 1.4 (failure to communicate), 1.5 (failure to account for and refund unearned fees), Rule 1.15 (failure to safeguard client property), 1.16(d) (failure to protect client interests upon termination of representation), 8.4(a) (violating or attempting to violate the Rules of Professional Conduct), 8.4(c) (engaging in conduct involving deceit, dishonesty, fraud, or misrepresentation) and 8.4(d) (engaging in conduct prejudicial to the administration of justice) of the Rules of Professional Conduct.

Count II — Guiden Matter

The ODC alleges that, on June 16, 1997, Michael Guiden retained respondent for $2,500. Mr. Guiden, who had pled guilty to distribution of drugs and had been sentenced to five years incarceration, sought to withdraw his guilty plea and to obtain a lesser sentence of probation. It claims respondent performed little or no work on Mr. Guiden’s behalf, failed to inform him he had been suspended on June 13, 1997 by |3order of this court in Edwards I, failed to account for his fee and failed to refund the unearned portion of the fee.

Based on these facts, the ODC alleges respondent’s conduct violates Rules 1.3 (lack of diligence), 1.4 (failure to communicate), 1.5 (failure to account for and refund unearned fees), 1.15 (failure to safeguard client property), 1.16(d) (failure to protect client interests upon termination of representation), 8.4(a) (violating or attempting to violate the Rules of Professional Conduct), 8.4(c) (engaging in conduct involving deceit, dishonesty, fraud, or misrepresentation) and 8.4(d) (engaging in conduct prejudicial to the administration of justice) of the Rules of Professional Conduct.

Count III — Brown Matter

The ODC alleges that, on or about July 1, 1997, Jesse Brown paid respondent $2,000 in cash to represent Mr. Brown’s brother, D arrien Brown, in criminal proceedings. It claims, at the time respondent accepted the- representation, he had been on interim suspension in Edwards I since June 13, 1997 and notice of this interim suspension had been published in respondent’s local newspaper on June 25, 1997. According to the ODC, respondent failed to advise Mr. Brown of his suspension, performed little or no work on his client’s behalf, failed to account for his fee or refund the unearned portion of his fee.

The ODC alleges respondent’s conduct violates Rules 1.1 (incompetence), 1.3 (lack of diligence), 1.4 (failure to communicate), 1.5 (failure to account for and refund unearned fees), 1.15 (failure to safeguard client property), 1.16(d) (failure to protect client interests upon termination of representation), 8.4(a) (violating or attempting to ^violate the Rules of Professional Conduct), 8.4(b) (commission of a criminal act adversely reflecting on a lawyer’s honesty, trustworthiness, or fitness as a lawyer), 8.4(c) (engaging in conduct involving deceit, dishonesty, fraud, or misrepresentation) and 8.4(d) (engaging in conduct prejudicial to the administration of justice) of the Rules of Professional Conduct.

Count IV — Hill Matter

The ODC alleges that, on June 25, 1997, Alma Hill paid respondent $700 of a $2,000 fee to represent her daughter, Monica Hill, in a criminal matter. It claims, after receiving the fee, respondent did little or nothing on his client’s behalf and abandoned her. Further, the ODC asserts respondent failed to communicate with Ms. Hill or his client, failed to inform them of his interim suspension in Edwards I, failed to account for his fee and failed to return the unearned portion of the fee.

The ODC alleges respondent’s conduct violates Rules 1.4 (failure to communicate), 1.5 (failure to account for and refund unearned fees), 1.15 (failure to safeguard client property; i.e., commingling and conversion), 1.16(d) (failure to protect client interests upon termination of representation), 8.4(a) (violating or attempting to violate the Rules of Professional Conduct), 8.4(b) (commission of a criminal act adversely reflecting on a lawyer’s honesty, trustworthiness, or fitness as a lawyer), 8.4(c) (engaging in conduct involving deceit, dishonesty, fraud, or misrepresentation) and 8.4(d) (engaging in conduct prejudicial to the administration of justice) of the Rules of the Professional Conduct.

1 fPount V — Giles Matter

The ODC alleges that, in February 1997, Frederick D. Giles paid respondent $1,000 to represent him in criminal proceedings. Respondent enrolled as Mr. Giles’ counsel of record. Subsequently, on June 1, 1997, respondent was placed on interim suspension in Edwards I. Further, the ODC claims respondent failed to advise Mr. Giles of the interim suspension, failed to appear at court on his behalf, failed to account for his fee and failed to return the unearned portion of his fee.

The ODC alleges respondent’s conduct violates Rules 1.4 (failure to communicate), 1.5 (failure to account for and refund unearned fees), 1.15 (failure to safeguard client property), 1.16(d) (failure to protect client interests upon termination of representation), 8.4(a) (violating or attempting to violate the Rules of Professional Conduct) and 8.4(d) (engaging in conduct prejudicial to the administration of justice) of the Rules of Professional Conduct.

Count VI — Failure to Cooperate Matters

The ODC alleges that, in each of the matters charged in Counts I through V, the ODC forwarded copies of the complaints to respondent by certified mail and asked that he address the allegations made by the complainants. Respondent failed to reply to this request. As a result, the ODC alleges it was required to issue a subpoena compelling respondent’s appearance and production of documents at a scheduled deposition. The ODC recognizes respondent eventually appeared on October 21,1997 to give a sworn statement in these matters.

The ODC alleges respondent’s actions violates Rules 8.1 and 8.4(g) of the Rules of Professional Conduct, which set forth the obligation of an attorney to cooperate in a disciplinary investigation.

I fiFACTUAL FINDINGS AND RECOMMENDATION OF THE HEARING COMMITTEE

After the ODC instituted formal charges, respondent filed an answer denying the misconduct and the matter proceeded to a formal hearing before the committee. Respondent appeared at the hearing and was represented by counsel. The ODC presented testimony from the complainants, as well as documentary evidence. Respondent testified on his own behalf and called witnesses.

"In the Everett matter, the committee found respondent received a fee of $2,500 on behalf of Mr. Everett. After receiving the fee, respondent made one court appearance on behalf of Mr. Everett, made no filings whatsoever on his behalf and was discharged several weeks later. The committee found respondent made no effort to refund the unearned fee at the time of his discharge, although he testified a refund was made at a later date. The committee also determined that respondent failed to reply to the ODC’s request for information concerning Mr. Everett’s complaint.

Regarding the Guiden matter, the committee determined respondent received a fee of $2,500 to perform certain criminal work for Mr. Guiden, but performed little or no work and did not refund the unearned portion of the fee. The committee rejected respondent’s testimony that he earned the fee by spending over twenty hours reviewing the record, finding this testimony was not credible. The committee also found respondent failed to reply to the ODC’s letter requesting information about Mr. Guiden’s complaint.

|7As to the Brown matter, the committee determined respondent received a fee in the sum of $2,000, did little or no work on behalf of his client and failed to refund the unearned portion of the fee he received. The committee further made a finding of fact, based on testimony from Jessie Brown, Jr., that respondent received the fee on July 1, 1997, after respondent received notice of his interim suspension in Edwards 7. Additionally, it found he failed to respond to the ODC’s requests for information.

In the Hill matter, the committee found respondent received $700 of a $2,000 fee, did little or no work for his client and failed to refund the unearned portion of his fee. The committee also found respondent failed to notify his client that he had been suspended from the practice of law and failed to respond to the ODC’s request for information about the complaint.

As to the Giles matter, the committee found respondent received a fee in the amount of $1,000 from Mr. Giles. It determined he made two appearances in the matter, namely, one to enroll as counsel and one to waive the preliminary examination and enter a plea of not guilty on behalf of Mr. Giles. It found respondent made no effort to refund the unearned portion of the fee to Mr. Giles, nor did he respond to the letter from the ODC requesting information about the complaint. However, it concluded respondent notified Mr. Giles of his suspension from the practice of law.

In determining an appropriate sanction, the committee discussed the issue of whether respondent made restitution to his clients. The committee observed respondent made no restitution in the Hill and Giles matters. It found there was [ ¿‘uncorroborated testimony” from respondent that he returned some or all of the fee in the Everett and Guiden matters and had refunded the fee in the Brown matter the week prior to the hearing. However, the committee gave little weight to the payment of restitution, concluding the refunds of the fees “were prompted not by a sense of duty on part of the respondent but rather he was responding to the pressure of the disciplinary proceeding.”

It found respondent’s decision to accept representation of thé Brown matter on July 1, 1997, eighteen days after he had been placed on interim suspension in Edwards I, constituted “egregious misconduct.” Additionally, the committee found respondent’s misconduct demonstrated a pattern of misconduct, which the committee found disturbing in light of his prior disciplinary record.

The only mitigating factor found by the committee was that respondent suffered from “certain personal difficulties” during the time frame of the misconduct. However, the committee did not elaborate on the nature of these “personal difficulties.”

Based on its consideration of the case, the committee recommended that respondent be disbarred from the practice of law.

RECOMMENDATION OF THE DISCIPLINARY BOARD

The disciplinary board found most of the hearing committee’s factual findings were supported by the record. However, it determined the committee’s conclusion that respondent failed to make restitution in the Giles matter was manifestly erroneous. In support, the board relied on respondent’s testimony that he refunded $500 to Mr. Giles prior to the hearing, and the fact his statement was not challenged by the ODC during its cross-examination of respondent.

|9The board also found no error in the legal conclusions of the committee. It pointed out the hearing committee did not find specific violations of the Rules of Professional Conduct. However, it concluded the committee’s findings supported a violation of Rule 1.3, based on respondent’s lack of diligence in the Everett, Guiden, Brown and Hill matters. The board also found he failed to communicate with his clients in the Guiden, Brown, Hill and Giles matters in violation of Rule 1.4, as he failed to advise them of his suspension. It determined respondent’s failure to provide any meaningful services for his clients in the Brown and Hill matters demonstrated he lacked competence, in violation of Rule 1.1. The board asserted respondent violated Rule 1.5(f)(6) and Rule 1.16(d) by failing to return the unearned fees until after disciplinary proceedings had been commenced. It concluded his practice of law while suspended constituted a criminal act in violation of Rule 8.4(b). The board noted respondent’s acts as a whole constituted dishonest or deceitful conduct and conduct prejudicial to the administration of justice under Rule 8.4(c) and (d). Finally, it recognized respondent’s failure to cooperate violated Rules 8.1 and 8.4(g).

Addressing the issue of sanctions, the board determined that respondent’s conduct was knowing and intentional, and that he violated duties owed to his clients, the profession, the public and the legal system. It noted that respondent delayed his clients’ legal matters by repeatedly failing to perform legal services for them. The board also recognized that respondent deprived his clients of their funds for substantial periods of time, and had still not made restitution to Alma Hill.

|inAs aggravating factors, the board recognized respondent’s prior disciplinary record, dishonest or selfish motive, pattern of misconduct, bad faith obstruction of the disciplinary process by intentionally failing to comply with the rules or orders of a disciplinary authority, refusal to acknowledge wrongful nature of misconduct, vulnerability of the victims and substantial experience in the practice of law. In mitigation, the board acknowledged the death of respondent’s mother and his problems with his son. However, without citing reasons, it declined to recognize his problems stemming from his criminal charges and financial difficulties.

Relying on the ABA’s Standards for Imposing Lawyer Sanctions and jurisprudence from this court, the board recommended respondent be disbarred from the practice of law. Further, it proposed respondent make restitution in the Hill matter and provide accountings to those clients who did not receive full refunds. One board member filed a concurrence.

Respondent filed an objection to the recommendation of the disciplinary board. Accordingly, the matter was docketed for briefing and argument in accordance with Supreme Court Rule XIX, § 11(G).

DISCUSSION

Bar disciplinary matters come within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Quaid, 94-1316 (La.11/30/94), 646 So.2d 343; Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444 (La.1992). While we are not bound in any way by the findings and recommendations of the Inhearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee’s factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

The record supports the hearing committee’s factual findings that respondent neglected his clients’ legal matters, failed to communicate with his clients, failed to account for and refund the unearned fees in a timely fashion and failed to cooperate with the ODC. Additionally, we find respondent engaged in the unauthorized practice of law by accepting representation in the Brown matter after he had notice he had been placed on interim suspension in Edwards I.

Having found professional misconduct, we now turn to a discussion of the appropriate discipline. We are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 518 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved, considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

As stated earlier, in Edwards II, we suspended respondent for a period of three years, which was made retroactive to the June 13, 1997 interim suspension imposed in Edwards I. The instant charges arise in the same general time frame as the misconduct which formed the basis for Edwards II. In Louisiana State Bar Ass’n v. Chatelain, 573 So.2d 470 (La.1991), we explained that, when a second disciplinary proceeding against an attorney involves misconduct which occurred during the same |12time period as the first proceeding, the overall discipline to be imposed should be determined as if both proceedings were before the court simultaneously.

Had the instant misconduct been considered together with the misconduct at issue in Edwards II, it is likely that we would have disbarred respondent. However, the difficulty of applying the Chatelain approach is readily apparent under the facts of this case. It is logically impossible for us to impose a “retroactive” disbarment on respondent, especially considering respondent has served his suspension in Edwards II and has been eligible to seek reinstatement from that suspension since June 13, 2000. On the other hand, imposing a “new” disbarment on respondent at this time would be offensive to the principles of Chatelain, as it would expose respondent to a greater sanction based on the timing of the ODC’s filing of formal charges.

Under these unique circumstances, we must fashion a sanction which is responsive to the instant misconduct, giving due consideration to the fact that respondent should hot be unfairly penalized due to the timing of the filing of the formal charges. We conclude the appropriate sanction is a three-year suspension from the practice of law. Two years of this suspension shall run concurrent to the suspension |13imposed in Edwards II and one year shall run consecutively to the suspension imposed in Edwards II, to commence upon the finality of the instant judgment.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, briefs, and oral argument, it is ordered that Barry E. Edwards, Louisiana Bar Roll number 5281, be suspended from the practice of law for a period of three years. Two years of this suspension shall run concurrently to the suspension imposed in In re: Edwards, 99-1783 (La.12/17/99), 752 So.2d 801, and one year shall run consecutively, to commence upon finality of the judgment rendered this day. It is further ordered that respondent shall render accountings to his clients and refund any unearned fees due to them. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . Respondent maintains Mr. Brown retained him on June 1, 1997, rather than July 1, 1997. However, the hearing committee made a finding of fact, based on Mr. Brown’s bank records, that respondent was retained on July 1, 1997.

      . Prior to a formal hearing in the case, respondent filed a petition for consent discipline, admitting he engaged in the alleged misconduct. For his misconduct, respondent proposed a two-year suspension, with fifteen months deferred, followed by a two-year period of probation. This court rejected the petition for consent discipline. In re: Edwards, 00-1751 (La.8/31/00), 766 So.2d 1269. Accordingly, the matter proceeded to a formal hearing.

      . The committee indicated it was "concerned” that the complainant in this matter was Jessie Brown, rather than the client, Dar-rien Brown.

      . Respondent maintained he received the fee on June 1, 1997, prior to receiving notice of his suspension on June 25, 1997. However, Mr. Brown testified he retained respondent on July 1, 1997. In support of Mr. Brown's testimony, the ODC produced bank records reflecting that Mr. Brown withdrew $2,000 on July 1, 1997.

      . The board discussed the committee’s concern that the complaint in the Brown matter was made by Jesse Brown Jr. rather than the client, Darrien Brown. See note 3, supra. The board found the Rules of Professional Conduct provided several instances where a client could have a professional obligation to a person other than the client. The board also suggested that fairness dictated that Jesse Brown, the person who paid the fee, would be entitled to the refund when the representation ended prematurely.

      . The board observed that La. R.S. 37:213 made the unauthorized practice of law a criminal offense.

      . Respondent was admitted to the practice of law in 1974.

      . In Louisiana State Bar Ass’n v. Chatelain, 573 So.2d 470 (La.1991), we declined to impose an additional disbarment on a previously-disbarred attorney based on conduct which occurred during the same time frame as the earlier disbarment. We observed:
      Since the attorney-respondent cannot control the timing of the institution of disciplinary proceedings, it is generally inappropriate to disbar a previously disbarred attorney an additional time when the violations at issue occurred before or concurrently with the violations which resulted in the initial disbarment. When a second disciplinary proceeding against an attorney involves misconduct which occurred during the same time period as the first proceeding, the overall discipline to be imposed should be determined as if both proceedings were before the court simultaneously. See 1 Lawyers’ Manual on Professional Conduct 466 (1984); Matter of Thompson, 492 A.2d 866 (D.C.App.1985).

      . While we ascribe no improper motive to the ODC with regard to the timing of the filing of the formal charges, we observe that the underlying facts of the instant charges should have been known to the ODC during the time Edwards II was pending. In support, we note that respondent gave his sworn statement in the instant case in October 1997. Approximately five months later, in March 1998, the ODC amended its formal charges in Edwards II.

      . The effect of our judgment is that respondent must serve a one-year actual suspension prior to seeking reinstatement from the suspension imposed in Edwards II.


author: LPER CURIAM.

text:
    In re Hilliard C. FAZANDE, II.
    No. 2003-B-2210.
    Supreme Court of Louisiana.
    Jan. 21, 2004.

      Charles B. Plattsmier, Chief Disciplinary Counsel, Shana M. Broussard, Deputy Disciplinary Counsel, for Applicant.
    Hilliard C. Fazande, III, New Orleans, James A. Gray, II, for Respondent.
   ATTORNEY DISCIPLINARY PROCEEDINGS

LPER CURIAM.

This disciplinary matter arises from two counts of formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Hilliard C. Fazande, II, an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

Count I — Batiste Matter

In July 1996, John Batiste, Jr., retained respondent to institute an action against the Department of the Army. Respondent filed suit on behalf of Mr. Batiste against the Secretary of the Department of the Army and others in the United States District Court for the Eastern District of Louisiana. In March 1997, the defendants filed a motion to dismiss or, alternatively, a motion for summary judgment. Upon respondent’s motion, the court continued the hearing for two weeks so as to give respondent time to file an opposition. Respondent failed to submit a timely opposition. By minute entry dated April 23, 1997, the court granted the defendants’ motion and dismissed Mr. Batiste’s suit. Respondent did not move for | ^reconsideration or file an appeal. Mr. Batiste discharged respondent on June 23, 1998 and filed a legal malpractice action against respondent on July 28,1999.

The facts are disputed with regard to events which occurred between the dismissal of the suit and the discharge of respondent by Mr. Batiste. Respondent testified at the formal hearing that he realized at the time of the dismissal that he believed he filed the petition in the wrong court and needed to file in the Court of Claims in Washington D.C. He contended that he advised Mr. Batiste of the dismissal approximately one week after it occurred and discussed the need to file in the new venue. Respondent testified he obtained information on the appropriate procedure to file in the Court of Claims and met with his client after receiving the information. Based on the information he received, respondent believed he had four years (until the summer of 2001) to file the action in the Court of Claims. As a result, he simply conducted periodic legal research for the first year following the dismissal and tried to become familiar with the procedures in the Court of Claims. Respondent testified Mr. Batiste discharged him in June 1998, without giving him the opportunity to file the suit in the new venue.

In contrast, Mr. Batiste testified that respondent did not advise him of the dismissal of his suit, and that he did not learn of the dismissal until June 1998, one year after the case had been dismissed. Upon learning of the dismissal, Mr. Batiste testified he discharged respondent by letter dated June 23, 1998 based on neglect. Additionally, he sent a letter in proper person to the trial court advising the court he was unaware of the dismissal and urging the court to “reopen” his case. Mr. Batiste also testified he filed a complaint with the ODC advising of respondent’s neglect of |3his legal matter and failure to communicate, filed a legal malpractice suit in proper person against respondent and retained new counsel to pursue his case against the Department of the Army.

Count II — Jackson/Davis Matters

On February 13, 1998, Bernadette Jackson and her children, 21-year old Patrick Davis and 12-year old Monica Davis, were involved in an automobile accident. Six days later, they retained respondent to represent their interests and pursue their personal injury claims. Initially, respondent communicated with his clients frequently and assured them he was protecting their interests. However, after several months, respondent began to communicate with his clients less often. Ultimately, respondent failed to file suit on behalf of his clients and their claims prescribed.

Approximately one month after the case had prescribed, Ms. Jackson and Mr. Davis met with respondent. Mr. Davis later testified that, at that meeting, respondent “apologized and everything, saying that he was sorry that he didn’t file and all this and [then] he said it would come out of his pocket for like whatever it was that he was supposed to do ...”

At this point, it is unclear whether respondent orally advised his clients to seek outside counsel to discuss their potential malpractice claims against him, but it is undisputed that respondent did not subsequently advise his clients in writing to do so. In any event, respondent’s clients, on their own, consulted Harold Bartholomew, Ms. [4Jackson’s friend and fellow board member on New Orleans Legal Assistance Corporation (“NOLAC”). Eventually, respondent settled his professional liability directly with Mr. Davis with the consent of Mr. Bartholomew.

In May 1999, Ms. Jackson filed a disciplinary complaint with the ODC on her own behalf and that of her minor daughter. Mr. Davis instituted a separate complaint with the ODC.

DISCIPLINARY PROCEEDINGS

Formal Charges

Following its investigation, the ODC filed two counts of formal charges against respondent. As to the Batiste matter, the ODC alleged violations of Rules 1.3 (lack of diligence), 1.4(a) (failure to keep client reasonably informed about the status of legal matter and failure to comply with reasonable requests for information), 8.4(a) (violating or attempting to violate the Rules of Professional Conduct) and 8.4(d) (engaging in conduct prejudicial to the administration of justice) of the Rules of Professional Conduct. As to the Jackson/Davis matter, the ODC alleged respondent’s conduct violated Rules 1.3 (lack of diligence), 1.4(a) (failure to keep client reasonably informed about the status of legal matter and failure to comply with reasonable requests for information) and 1.8(h) (making an agreement prospectively limiting lawyer’s malpractice liability).

| .^Respondent filed an answer denying the allegations of misconduct, reiterating his defenses raised in connection with the investigations of the complaints. Accordingly, the matter was scheduled for a formal hearing before the committee.

At the hearing, the complainants testified on behalf of the ODC. Respondent was present at the hearing and testified on his own behalf.

Recommendation of the Hearing Committee

As to the Batiste matter, the committee found respondent failed to promptly notify Mr. Batiste that his complaint had been dismissed, failed to quickly pursue the filing in the Court of Claims and failed to notify his client of options available to him to further pursue his legal matter.

Regarding the Jackson/Davis matter, the committee concluded respondent failed to provide his clients with specific information regarding any action he was taking on their case, and permitted their claims to prescribe due to respondent’s failure to obtain the necessary documentation to pursue them. The committee pointed out Ms. Jackson and Mr. Davis did ultimately obtain independent counsel on their own volition prior to Mr. Davis entering into an agreement to settle with respondent for his malpractice. Nevertheless, it found respondent attempted to settle his legal malpractice claims without advising them in writing that they should seek independent counsel.

Based on these factual findings, the committee concluded respondent violated Rules 1.3, 1.4 and 8.4(a) in the Batiste and Jackson/Davis matters by neglecting his clients’ legal matters and failing to communicate with them. It also determined there was a “de minimis violation” of Rule 1.8(h) in the Jackson/Davis matter based on [ (¡respondent’s failure to advise in writing Ms. Jackson and Mr. Davis to seek independent counsel prior to attempting to settle his legal malpractice.

The committee found respondent knowingly violated duties owed to his clients, and that his failure to diligently pursue his clients’ legal matters and to communicate with them resulted in actual injury. It determined Mr. Batiste suffered actual harm as a result of the unnecessary delay of his legal matter caused by respondent’s actions, as well as the expense of having to retain new counsel. Further, the committee recognized that, although respondent settled his malpractice liability with Mr. Davis, the record indicated Ms. Jackson and her daughter had suffered some damages, albeit a minimal amount.

In determining an appropriate sanction, the committee found several aggravating factors: respondent’s prior disciplinary record for similar misconduct, substantial legal experience, pattern of misconduct and multiple offenses. The only mitigating factor recognized was respondent’s cooperative attitude toward the proceedings.

Citing the ABA’s Standards for Imposing Lawyer Sanctions, the committee found a one-year suspension to be appropriate under'the facts. Relying on the existence of respondent’s prior disciplinary offenses, the committee determined that no portion of the suspension should be deferred.

| tRecommendation of the Disciplinary Board

The disciplinary board adopted the factual findings of the hearing committee. However, the board disagreed with the committee’s legal finding that respondent’s actions in the Jackson/Davis matter violated Rule 1.8(h), which prohibits the settling of such a claim unless the client has been advised in writing that independent representation is appropriate. The board noted that the committee correctly found, and there is no dispute, that Mr. Davis was represented by Mr. Bartholomew at the time the settlement was reached. Because Mr. Davis was represented at the time, the board concluded respondent did not violate Rule 1.8(h).

In determining the sanction for respondent’s misconduct, the board found that some of respondent’s conduct was knowing, such as his failure to adequately communicate with Ms. Jackson and Mr. Davis. However, it observed the damage caused by respondent appeared to be minimal. In the Batiste matter, it noted Mr. Batiste was able to locate another attorney to pursue his lawsuit in the Court of Claims. In the Jackson/Davis matter, it concluded that, although respondent allowed his clients’ actions to prescribe, they suffered little harm. In support, it pointed out Mr. Davis entered into a monetary settlement with respondent, and the record indicated that the value of the claims of Ms. Jackson and her daughter were “minimal.”

The board adopted the aggravating and mitigating factors cited by the committee, as well as found the mitigating factor of absence of dishonest or selfish motive. Further, while it pointed out respondent had a prior disciplinary record, it also | snoted that a considerable amount of time has passed since respondent’s prior misconduct. Relying on jurisprudence from this court, the board recommended that respondent be suspended from the practice of law for a period of six months, with three months deferred.

The ODC filed an objection to the board’s recommendation. Accordingly, the matter was docketed for briefing and argument in accordance with Supreme Court Rule XIX, § 11(G).

DISCUSSION

Bar disciplinary matters come within the original jurisdiction of this court. La. Const, art. Y, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Quaid, 94-1316 (La.11/30/94), 646 So.2d 343; Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444 (La.1992). While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee’s factual findings. In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

The record clearly supports the hearing committee’s finding that respondent’s actions in the Batiste and Jackson/Davis matters violated Rules 1.3 and 1.4. In both instances, respondent failed to communicate with his clients about the status of their cases and neglected their cases.

Like the board, however, we find legal error in the hearing committee’s conclusion that respondent’s actions in the Jackson/Davis matter violated Rule 1.8(h). There is not much jurisprudence from this court interpreting Rule 1.8(h). A review of 13this provision indicates it contains two distinct sections. In the first section, the rule prohibits a lawyer from making an agreement “prospectively limiting the lawyer’s liability to a client for malpractice unless permitted by law and the client is independently represented in making the agreement.” The prospective agreement contemplated by this section of the rule refers to an agreement made at the beginning of the representation, such as a hold harmless clause. See ABA/BNA’s Lawyers Manual on Professional Conduct § 51:1104. Clearly, this section of the rule is not implicated in the instant case.

The second section of the rule prohibits a lawyer from settling a malpractice claim with an unrepresented client or former client “without first advising that person in writing that independent representation is appropriate in connection therewith.” The language used in this section of the rule suggests the requirement of written notice is triggered upon the actual settlement of the malpractice liability, as opposed to mere negotiations toward a settlement.

In the instant case, respondent’s discussions with Mr. Davis and Ms. Jackson arguably constituted the earliest stages of a negotiation toward a settlement, but more likely consisted of an admission of fault and a willingness to pay compensation. There was no discussion of a dollar amount for settlement purposes. The discussions never progressed to the point of a formal offer of settlement by respondent, nor was there acceptance of any offer by his clients. Under these circumstances, we conclude the requirement of Rule 1.8(h), that respondent advise his clients in writing that independent counsel is appropriate, was never triggered.

Having found violations of Rules 1.3 and 1.4, we now turn to consideration of an appropriate sanction. In doing so, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the | ^integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La. 1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved, considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

The baseline sanction for misconduct involving multiple instances of neglect and failure to communicate is generally a suspension, which is sometimes deferred in part. See In re: Jackson, 02-2764 (La.4/9/03), 842 So.2d 359 (six-month suspension imposed on attorney who neglected and permitted two clients’ cases to prescribe); In re: Whitehead, 01-3071 (La.4/12/02), 816 So.2d 284 (one-year suspension, with six months deferred, subject to a six-month probation, imposed on an attorney with a minor prior disciplinary record who neglected three client matters, failed to communicate with the three clients, failed to refund unearned fees to two clients and failed to cooperate with the ODC in two investigations); In re: Holley, 01-1876 (La.10/5/01), 797 So.2d 46 (six-month suspension, with all but sixty days deferred, subject to a one-year period of probation imposed on an attorney who neglected three legal matters, negligently failed to communicate with the clients and negligently failed to refund unearned fees, but provided restitution prior to the complaints being filed); In re: Colwart, 98-2303 (La.11/6/98), 721 So.2d 848 (six-month suspension imposed on an attorney with a prior disciplinary record who failed to communicate with a client, failed to return unearned fees for one year and failed to cooperate with the ODC).

As aggravating factors, we recognize respondent’s prior disciplinary record (although we find his prior suspension is fairly remote in time), substantial legal experience, pattern of misconduct and multiple offenses. As mitigating factors, we find respondent has demonstrated a cooperative attitude toward the proceedings and In did not act with a dishonest or selfish motive. Additionally, we note respondent made a prompt effort to rectify the consequences of his misconduct in the Jackson/Davis matter and intended to take action ,to protect his client’s interests in the Batiste matter, but was discharged before he could do so.

Under these circumstances, we find the appropriate sanction for respondent’s misconduct is a suspension from the practice of law for six months, with three months deferred, followed by one-year period of probation.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and -considering the record, briefs, and oral argument, it is ordered that Hilliard C. Fazande, II, Louisiana Bar Roll number 9953, be suspended from the practice of law for a period of six months. Three months of the suspension shall be deferred, and respondent shall be placed on unsupervised probation for a period, of one year. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, ,§ 10.1, with legal interest to commence thirty days from the date of finality of this, court’s judgment until paid.

      . The original formal charges involved three counts of misconduct. The hearing committee found insufficient evidence to support Count III, relative to respondent’s alleged neglect of a legal matter. The disciplinary board concurred in the committee’s findings and dismissed the charge. The ODC has not objected to the dismissal of this count; accordingly, we will not discuss it further.

      . While serving in the Army, Mr. Batiste was found guilty of misconduct by a military court-martial, resulting in a reduction in rank and pay. He sought to file suit against the Army to have his military record amended to show that his demotion would have been suspended if the convening authority had been made aware of a recommendation by the court-martial that the reduction in rank be suspended.

      . The court construed the letter as a motion for relief from judgment and set the motion for hearing. Ultimately, the court denied Mr. Batiste's motion, essentially on the grounds that it was untimely, but noted the proper relief for Mr. Batiste was to seek malpractice damages.

      .According to respondent, he did not file the suit because his clients had failed to provide him with their medical records, despite his many requests. Specifically, he contends that in December 1998, two months before the prescriptive date, he had a telephone conversation with Ms. Jackson and Mr. Davis instructing them to forward their medical records to him, and followed, up by forwarding two letters by certified mail, return receipt requested. He claims neither forwarded the records or responded in any regard and, based on such, assumed they abandoned their claims. In contrast, Ms. Jackson and her son each testified they did not receive any correspondence from respondent, and that respondent stopped communicating with them several months before the case prescribed.

      . NOLAC is a nonprofit civil legal aid program which has served the Greater New Orleans community for 36 years.

      . Ms. Jackson and her minor daughter had only one medical visit resulting from the accident. While respondent offered to settle his malpractice liability with them, the parties were unable to agree on an amount.

      . Notably, the committee stated that the evidence at the hearing was inadequate to allow the committee to reach a definitive answer regarding whether respondent entered into settlement negotiations with his clients before or after they obtained independent representation.

      . In 1983, we suspended respondent from the practice of law for a period of two and one-half years stemming from his neglect of four legal matters and misrepresenting facts to his clients relative to the status of their matters when they had been dismissed or compromised in some other respect. Louisiana State Bar Ass'n v. Fazande, 436 So.2d 549 (La.1983). Additionally, in 1988, respondent received a formal private reprimand for filing pleadings while on suspension. COPR # 9322 (3/17/88). He was also admonished in 1997 for failing to cooperate with the ODC in connection with the investigation of a disciplinary complaint. 98-ADB-067 (5/3/97).

      .Respondent was admitted to the practice of law in Louisiana in 1971.

      . Rule 1.8(h) provides:
      A lawyer shall not make an agreement prospectively limiting the lawyer’s liability to a client to a client for malpractice unless permitted by law and the client is independently represented in making the agreement, or settle a claim for such liability with an unrepresented client or former client without first advising that person in writing that independent representation is appropriate in connection therewith.