author: KELLY, Judge.

text:
    Gloria J. FRANKLIN, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION and Discount Auto Parts, Inc., Appellees.
    No. 2D02-1486.
    District Court of Appeal of Florida, Second District.
    April 11, 2003.

      Wanda J. Davis, Tampa, for Appellant.
    John D. Maher, Tallahassee, for Appel-lee Unemployment Appeals Commission.
    No appearance for Appellee Discount Auto Parts, Inc.
   KELLY, Judge.

Gloria J. Franklin challenges an order of the Florida Unemployment Appeals Commission (UAC) affirming the finding of an appeals referee that she was not entitled to receive unemployment compensation benefits due to misconduct connected with work. Franklin contends that the referee’s decision was not supported by competent, substantial evidence. We agree and reverse.

Franklin was employed as a production worker by a wholesale automotive parts distributor from February 28, 2000, until her discharge on December 8, 2000. When she was hired, Franklin received a handbook containing the company’s attendance policy. That policy requires employees to call in at least thirty minutes before a scheduled shift if the employee is going to be absent from work. The policy does not specify how many absences an employee may have before being subject to discipline or termination. The employer’s human resource manager testified that after each absence employees attend a counseling session. Following the session, a form is generated indicating the reason for the session and what action was taken. In addition, the employer periodically reviews its employees’ job performance. On June 23, 2000, Franklin’s employer reviewed her performance. The Team Member Evaluation Form states that Franklin was always on time for her shift, was rarely absent, and called within guidelines if she was going to be late or absent.

On July 24, 2000, Franklin sustained an injury while at work. Between July 24 and October 26, 2000, Franklin was absent from work twelve times. Franklin testified that those absences were due to illness or were related to the injury she sustained in July. The employer’s records do not classify any of these absences as unexcused, and the employer offered no testimony that any of these absences were unauthorized.

On October 27, 2000, Franklin was absent from work due to illness. As a result of this absence, on October 31, 2000, Franklin’s employer held a counseling session with Franklin to discuss her absences. The employer directed her to review the employer’s attendance policy and issued a written “final warning” stating that she could be terminated if she had any further absences. The employer did not list the October 27 absence as unexcused on the counseling session form. It appears from the record that this was the first time the employer had counseled Franklin after an absence and the first time a counseling form was generated regarding Franklin’s absences.

On November 3, 2000, Franklin received a verbal warning because she left work early to take her elderly father to the doctor. When questioned about this at the hearing, Franklin stated that she had received permission to leave early. The employer offered no testimony to refute Franklin’s statement, and it did not record the partial absence as unexcused on the attendance counseling form. On November 15, 2000, Franklin was absent from work due to illness and was once again counseled regarding her attendance. This absence was not listed as unexcused on the attendance counseling form. On December 7, 2000, Franklin was absent from work because of illness. This absence was recorded as unexcused because Franklin did not call to report her absence within the time frame set forth by the employer. At the hearing, Franklin explained that she was two or three minutes late in placing the call because she got no response from the first number she dialed and had to call again. This testimony was unrefut-ed. On December 8, 2000, Franklin was terminated from her employment due to “excessive attendance violations.”

Franklin was initially awarded unemployment compensation benefits following a hearing and the employer appealed to the UAC. Due to the inaudibility of the tape of the proceeding, the UAC vacated the finding of the referee and ordered that a new hearing be conducted. After a second evidentiary hearing, the referee concluded that Franklin was disqualified from receiving benefits because of misconduct connected with work. The referee found that Franklin’s employer had met its burden of establishing misconduct by presenting competent, substantial evidence of Franklin’s excessive unauthorized absenteeism. The referee further found that Franklin “continued to have absences following her final warning which were not the result of illness.” Franklin appealed the referee’s decision, and the UAC affirmed finding that the referee’s decision was supported by competent, substantial evidence.

Section 443.036(29), Florida Statutes (2000), defines “misconduct” to include:

(a) Conduct evincing such willful or wanton disregard of an employer’s interests as is found in deliberate violation or disregard of standards of behavior which the employer has the right to expect of his or her employee; or
(b) Carelessness or negligence of such a degree or recurrence as to manifest culpability, wrongful intent, or evil design or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his or her employer.

A finding of misconduct is justified when an employer presents substantial, competent evidence of an employee’s excessive unauthorized absences. Tallahassee Housing Auth. v. Unemployment Appeals Comm’n, 483 So.2d 413 (Fla.1986). In order to prove misconduct under Tallahassee Housing Authority, employers have the burden of demonstrating both excessiveness and wilfulness in the employee’s actions. Mason v. Load King Mfg. Co., 758 So.2d 649 (Fla.2000). The term “unauthorized” as used in Tallahassee Housing Authority “implicitly connotes an element of wilfulness because it means that the absences were unexcused and without the permission of the employer.” Id. at 654-55. An “unauthorized absence” generally refers to “those absences where the employee has wilfully chosen to violate her fundamental obligation to an employer to come to work and carry out her assigned duties.” Id.

Based on our review of the record, we conclude that the UAC erred in affirming the referee because there is no competent, substantial evidence to support the referee’s findings. While the record indicates that Franklin was absent from work a number of times before she was counseled regarding her attendance, Franklin testified that these absences were due to illness or her injury. Franklin’s employer offered no evidence to the contrary. After Franklin received the “final warning” and before her termination, Franklin had two more absences. Contrary to the referee’s finding, the record indicates that both were due to illness. Absences that are properly reported to the employer and are for compelling reasons, such as illness, do not constitute misconduct connected with work. Cargill, Inc. v. Hill, 503 So.2d 1340 (Fla. 1st DCA 1987). Further, although Franklin’s employer classified one of these absences as unexcused because Franklin called in a few minutes late, in light of Franklin’s uncon-tradicted explanation for her conduct, there is no basis in the record to find that her conduct on that one occasion was willful and therefore unauthorized. Accordingly, we reverse the UAC’s order affirming the referee’s decision that Franklin was guilty of misconduct within the meaning of section 443.036(29) and remand with directions to award Franklin unemployment compensation benefits.

Reversed and remanded with directions.

ALTENBERND, C.J., and SALCINES, J., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    David N. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1300.
    District Court of Appeal of Florida, Fifth District.
    April 11, 2003.

      James B. Gibson, Public Defender and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

David Williams (defendant) appeals his sentence which was entered by the trial court after he pled guilty to the charge of violating his probation. Concluding that the evidence of record fails to demonstrate that the defendant is entitled to receive any relief, we affirm.

The defendant was charged with violating the terms of his probation. He subsequently entered a no contest plea to the charge. The trial court accepted the plea, revoked the defendant’s probation, and sentenced him in accordance with the sentencing guidelines to a term of six years imprisonment.

The defendant challenges his sentence, arguing that the trial court lacked the authority to sentence him to a term of incarceration longer than 364 days because he completed a Department of Corrections “boot camp” for youthful offenders. See Bloodworth v. State, 769 So.2d 1117 (Fla. 2d DCA 2000)(holding that a youthful offender can only receive a term of up to 364 days incarceration upon a violation of probation if he has previously successfully completed DOC boot camp for that offense). However, the defendant has not sustained his burden of proving this claim.

At the sentencing hearing, both the prosecutor and defense counsel acknowledged the defendant had previously been sentenced as a youthful offender and, as a result, there was a six year incarceration cap available for sentencing. However, no party raised the contention that the defendant had completed a boot camp program, and no argument was made that the defendant’s sentence must be limited to 364 days. Post-sentencing, the defendant sought rule 3.800 relief by filing with the trial court a letter from the Department of Corrections indicating that he had completed a boot camp program. See Fla. R.Crim. P. 3.800(b)(2). However, the letter failed to establish that the defendant successfully completed the boot camp program in connection with the convictions at issue here.

While we have determined that the defendant is not entitled to receive any relief on direct appeal we note that, if the defendant is later able to obtain documentation which properly supports his claim of sentencing error, then he may be entitled to obtain post-conviction relief. See Thomas v. State, 825 So.2d 1032 (Fla. 1st DCA 2002).

AFFIRMED.

GRIFFIN, PALMER and TORPY, JJ., concur.


author: FULMER, Judge.

text:
    B.B.P., Appellant, v. STATE of Florida, Appellee.
    No. 2D01-4656.
    District Court of Appeal of Florida, Second District.
    April 11, 2003.
    James Marion Moorman, Public Defender, and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Deena DeGenova, Assistant Attorney General, Tampa, for Appel-lee.
   FULMER, Judge.

B.B.P. was charged by a petition for juvenile delinquency with being a principal to the offense of dealing in stolen property in violation of sections 812.019(1) and 777.011, Florida Statutes (2001). After an adjudicatory hearing, the trial court announced that it was finding B.B.P. guilty of “possession of recently stolen property.” The trial court subsequently signed an order, however, which stated that B.B.P. was found guilty of dealing in stolen property. Because possession of stolen property is a nonexistent offense, we reverse the disposition order and remand for the trial court to enter an order of dismissal.

At the adjudicatory hearing, Lisa Sikor-ski testified to events surrounding the theft and recovery of her large audio speakers. Two days after her vehicle was burglarized and the speakers were stolen, she observed B.B.P. and Jose Rodriguez parked on the side of the road next to a large palm tree. Within minutes, she saw them driving down the street with the large speakers protruding from the trunk of their car. Sikorski tried to follow B.B.P. but lost sight of his car. She later saw B.B.P. and Rodriguez at a gas station without the speakers in their car. Sikor-ski confronted them and called the police from her cellular telephone. B.B.P. and Rodriguez waited for the police to arrive. They were arrested, and the speakers were later located at their residence.

B.B.P., who did not speak English, testified through an interpreter that on the same day he was arrested, he had purchased the speakers from two men he did not know. He paid $200 for the speakers, and the men told him where the speakers were located. They were located, according to B.B.P., “on a lonely street.... Off from a palm.” B.B.P. testified that he did not know the speakers were stolen.

On appeal, B.B.P. argues that the evidence was insufficient to prove the charge of dealing in stolen property because there was no showing that he intended to dispose of the speakers. The State concedes that the evidence was insufficient but argues that this court should remand for entry of an order finding B.B.P. guilty of grand theft pursuant to section 924.34, Florida Statutes (2001).

We agree that the evidence was insufficient to support the charge of dealing in stolen property because it was not shown that B.B.P. intended to traffic in the stolen property. See § 812.019(1), Fla. Stat. (2001). However, we do not agree that a finding of guilt may be directed for the crime of grand theft. Section 924.34 provides:

When the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish guilt of a lesser statutory degree of the offense or a lesser offense necessarily included in offense charged, the appellate court shall reverse the judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense.

B.B.P. was found guilty of the nonexistent crime of possession of stolen property, which of course has no lesser-included offenses. Therefore, section 924.34 has no application in this case. Furthermore, because possession of stolen property is not the equivalent of dealing in stolen property or theft, double jeopardy bars reprosecution. Cf. Achin v. State, 436 So.2d 30, 31-32 (Fla.1982) (discussing when a defendant convicted of a nonexistent lesser-included offense may be retried for the main offense). Therefore, we reverse. On remand, the delinquency petition shall be dismissed and B.B.P. shall be discharged.

Reversed and remanded with directions.

WHATLEY and SILBERMAN, JJ., Concur.


author: ALTENBERND, Chief Judge.

text:
    George YOUNG, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-1025.
    District Court of Appeal of Florida, Second District.
    April 11, 2003.
    James Marion Moorman, Public Defender, and Jeffrey M. Pearlman, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Chief Judge.

George Young appeals his judgment and sentence for possession of methamphetamine, contending that his motion to suppress should have been granted. We agree and reverse. This case demonstrates that, in light of the United States Supreme Court’s opinion in Florida v. J. L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000), it may now be important for a law enforcement dispatcher to explain to patrol officers whether a BOLO or dispatch is based on an anonymous tip or on information received from a more reliable source.

On June 14, 2001, a Polk County deputy sheriff received a call from his dispatcher that there was a disturbance at a specific mobile home park. The dispatcher told the deputy that the disturbance involved a man who was armed with a gun. The man was described as a white male in jean shorts and a black tank-top, carrying a white t-shirt. The deputy immediately drove toward the mobile home park. Before he arrived at the mobile home park or obtained any additional information, the deputy observed Mr. Young walking along the side of the road near the mobile home park. Mr. Young fit the description provided by the dispatcher. Mr. Young was not acting suspiciously in any manner, and the deputy saw no evidence of a firearm.

The deputy stopped his car and immediately conducted a Terry stop. Because he had been informed that Mr. Young might be armed, the deputy performed a pat-down search for officer safety. He did not find a gun, but he found a hard object that he thought might be a knife. When he reached into Mr. Young’s pocket to retrieve the hard object, a piece of aluminum foil came out with the hard object. The object turned out to be a cigarette lighter. Inside the aluminum foil, the officer found methamphetamine. Mr. Young was arrested for possession of this illegal substance.

We do not reach any issue associated with the legality of the search because the initial Terry stop was impermissible under the rule announced in J.L. In J.L., the Supreme Court held that a similar anonymous tip, reporting the existence of an armed man at a bus stop, lacked sufficient indicia of reliability to justify a Terry stop. 529 U.S. at 271-72, 120 S.Ct. 1375. Because the report to law enforcement in this case came from an anonymous tipster over the telephone, the motion to suppress in this case should have been granted and the case dismissed.

We would emphasize that we do not fault the deputy for his actions in this case. There is nothing in the record to suggest that the deputy realized, at the time of these events, that the dispatch information had come from an anonymous tipster. He may have assumed that the information was obtained from a reliable citizen informant. In order to comply with the dictates of J.L., law enforcement agencies may need to modify the procedures they use to dispatch officers and issue BOLOs so that patrol officers know the nature of the source of the information received by the dispatcher. Likewise, occasionally it may be necessary for the State to call witnesses in addition to the arresting officer in order to establish the reliability of the information upon which the law enforcement agency acted when initiating a Terry stop.

Reversed and remanded.

FULMER and COVINGTON, JJ„ concur.

      . See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).


author: SILBERMAN, Judge.

text:
    Johnnie A. PITTMAN, Appellant, v. STATE of Florida, Appellee.
    No. 2D00-5100.
    District Court of Appeal of Florida, Second District.
    April 11, 2003.

      James Marion Moorman, Public Defender, and Brad Permar, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Judge.

Johnnie A. Pittman appeals his conviction for second-degree murder. He argues that the trial court erred by not giving a requested jury instruction concerning an independent act causing the victim’s death. We agree and reverse. Pittman also argues that the trial court erred by not advising the jury of the possible sentences that Pittman might receive if convicted. We find no reversible error as to this issue. See Broughton v. State, 790 So.2d 1118, 1119 (Fla. 2d DCA 2001).

In September 1999 James Harsaghy, a white man, went to a bar where he bought drinks for different people. The bar was described as serving a primarily African-American clientele, and there was testimony that it was unusual for a white person to be in that area at that time of night. Harsaghy offered a beer to Pittman, who took it, and they began talking. After the bar closed, Harsaghy, Pittman, and another person went next door to a barbecue restaurant to get take-out food. As the three individuals walked back across the parking lot, several young black men surrounded Harsaghy and demanded money from him. When Harsaghy refused, one of the men hit him on the head, knocking him to the ground. The men who accosted Harsaghy attacked him, kicking and beating him. There was evidence that others also participated in the beating. Witnesses gave different estimates as to how many individuals participated, ranging from under ten to perhaps fifty. Harsa-ghy died from his injuries.

There was conflicting evidence as to whether Pittman participated in planning the robbery or in beating Harsaghy. One person testified that Pittman was not even in the area when the beating occurred, although he returned and took money from Harsaghy’s pockets after the crowd dispersed. Others also went through Harsa-ghy’s pockets after he was beaten.

In a statement made to police that was admitted into evidence, Pittman claimed that before the beating he heard one of the men tell Harsaghy that they wanted his money. Pittman told the men to just ask Harsaghy for money and Har-saghy would give it to them because he had a good heart. Pittman stated that one of the men hit Harsaghy, knocking him down, and then the others kicked and stomped on Harsaghy. Pittman admitted that after Harsaghy was beaten, he went through Harsaghy’s pockets and took his money. Pittman kept some of the money and gave some to the others.

The State sought to prove that Pittman committed first-degree murder while robbing or attempting to rob Harsaghy. Pittman presented a two-pronged defense. First, he claimed that he did not participate in planning or committing the robbery or in beating Harsaghy, but instead he simply committed a theft by taking Harsaghy’s money as an afterthought to the beating that others inflicted on Harsa-ghy. Second, he claimed that even if the jury believed that he had participated in planning the robbery, he did not participate in beating Harsaghy; he had separated himself from the crowd that beat Har-saghy; and the beating was a distinct criminal act committed by others. Based on the evidence and the defense’s theories, Pittman requested that the trial court give an independent act instruction to the jury.

“The ‘independent act’ doctrine arises when one cofelon, who previously participated in a common plan, does not participate in acts committed by his cofel-on, ‘which fall outside of, and are foreign to, the common design of the original collaboration.’ ” Ray v. State, 755 So.2d 604, 609 (Fla.2000) (quoting Dell v. State, 661 So.2d 1305, 1306 (Fla. 3d DCA 1995)). When a cofelon takes acts exceeding the scope of the original plan, the defendant is exonerated from any punishment that is imposed as a result of the independent act. But if a murder is committed in furtherance of an initial criminal scheme, then the doctrine does not apply. Id.

The determination of whether the independent act instruction should be given depends on the evidence. If any evidence is introduced at trial which supports the defense’s theory, the jury must be instructed on the law applicable to the theory when requested by the defendant. Bryant v. State, 412 So.2d 347, 350 (Fla.1982); Thomas v. State, 787 So.2d 27, 29 (Fla. 2d DCA 2001).

In Thomas, the defendant and two others planned to rob the victim. There was evidence suggesting that the robbery scheme specified the use of nonlethal force, that Thomas was unaware that one of the men possessed a gun, and that Thomas and another participant tried to call off the robbery. Thomas, 787 So.2d at 28-29. The court noted that although there was contradictory evidence and the facts did not fit neatly within the typical scenario for giving the independent act instruction, because there was evidence supporting a theory of the defense the independent act instruction should have been given. Id. at 30.

In Bryant, there was evidence of a robbery, a sexual assault, and a murder. Bryant was convicted of killing the victim by strangulation from either a premeditated design or while engaged in the perpetration or attempted perpetration of a robbery. Bryant’s theory of defense was that his cofelon or some other person committed a sexual assault after the robbery, and the jury could have determined that the sexual assault was an independent act that Bryant did not participate in and which was outside of, and foreign to, the common design to rob the victim. The supreme court held that because there was evidence supporting the defense’s theory, the requested independent act instruction should have been given. Bryant, 412 So.2d at 349-50. See also Rodriguez v. State, 571 So.2d 1356, 1357 (Fla. 2d DCA 1990) (concluding that the defendant was entitled to an independent act instruction because evidence existed from which the jury could determine that the acts resulting in murder were independent and were not committed to further, or in the course of, the joint felony).

Although there was substantial evidence implicating Pittman, there was also conflicting evidence that supported the theo-ríes presented by the defense. Under these circumstances, the jury should have been given the independent act instruction. Accordingly, we reverse Pittman’s conviction and remand for a new trial for second-degree murder.

NORTHCUTT and STRINGER, JJ„ concur.

      . Although not a specific theory of the defense, there is at least some suggestion that the beating may have been racially motivated or that it occurred due to an out-of-control crowd.


author: NORTHCUTT, Judge.

text:
    In re GUARDIANSHIP OF Josephine COSIO, an incapacitated person. Carl W. Cosio, Appellant, v. LeRoy H. Merkle, Jr., Appellee.
    No. 2D01-5756.
    District Court of Appeal of Florida, Second District.
    April 11, 2003.
    Carl W. Cosío, pro se.
    LeRoy H. Merkle, Jr., of LeRoy H. Merkle, Jr., P.A., Tampa, for Appellee.
   NORTHCUTT, Judge.

The order under review sealed Carl Co-sio’s response to his former attorney’s motion to withdraw as his counsel. We reverse.

While the court in this guardianship proceeding was considering the guardian’s petition for compensation and attorney’s fees filed through her counsel, LeRoy Merkle, Cosio’s counsel, George Kickliter, filed a motion to withdraw from Cosio’s representation. In turn, Cosio filed a lengthy response that disparaged his counsel, the guardian’s counsel, and several members of the judiciary. The guardian moved to strike the response. Following a hearing, the court instead ordered the response sealed.

Under certain circumstances, a court may exclude the public from its proceedings, but such authority must be cautiously exercised. News-Press Publ’g Co. v. State, 345 So.2d 865, 867 (Fla. 2d DCA 1977) (citation omitted). Court records may be sealed only for compelling reasons, which should be set forth by the court in order to facilitate review. Id. Access to court records may be restricted to protect the interests of litigants only after a showing that the following three-prong test has been met: (1) the measure limiting or denying access (closure or sealing of records or both) is necessary to prevent a serious and imminent threat to the administration of justice; (2) no less restrictive alternative measures are available which would mitigate the danger; and (3) the measure being considered will in fact achieve the court’s protective purpose. Bundy v. State, 455 So.2d 330, 337 (Fla.1984).

The order in this case contains no findings, nor does the record generally, that would permit us to determine the propriety of the order. Therefore, we reverse and remand for further consideration of the motion to strike. If the court again determines that Cosio’s filing should be sealed, it shall enter written findings specifying its reasons for such.

Reversed and remanded with directions.

SILBERMAN, J., and THREADGILL, EDWARD F. (Senior) Judge, concur.


author: DAVIS, Judge.

text:
    William Ray WILLIAMSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-332.
    District Court of Appeal of Florida, Second District.
    April 11, 2003.
   DAVIS, Judge.

William Ray Williamson appeals the summary denial of his motion for postcon-viction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm without discussion as to his second and third claims, but we reverse and remand as to his first claim.

On March 11, 1994, a jury convicted Williamson of grand theft (count one) and arson (count two). The court sentenced him on count one to sixty months in prison to be suspended after forty-two months with the last eighteen months to be served on probation. On count two, the court sentenced him to a concurrent sentence of sixty months in prison to be suspended after forty-two months followed by ten years’ probation. Williamson subsequently violated his probation, and the trial court sentenced him on both counts to sixty months in prison to be suspended after fifty-five months with credit for time previously served in prison.

In his motion, Williamson claims that he entered his plea to the violation of probation with the understanding that he would only serve thirteen months in prison. He claims that the Department of Corrections (DOC) informed him that, even with credit for time previously served in prison, he will end up serving thirty months in prison due to forfeited gain-time. The record provided by the trial court does not refute Williamson’s claim but actually confirms that the court and Williamson contemplated that he would only serve thirteen months in prison. Therefore, we reverse and remand for the trial court to either resentence Williamson in a manner that effectuates the intent of the plea agreement after considering the DOC’s forfeiture of gain-time or allow him to withdraw his plea. See Wallace v. State, 793 So.2d 78 (Fla. 2d DCA 2001); Dellahoy v. State, 816 So.2d 1253 (Fla. 5th DCA 2002).

Affirmed in part, reversed in part, and remanded.

SILBERMAN and CANADY, JJ„ Concur.


text:
    Jeffrey J. HOFFMAN, Appellant, v. Elizabeth C. HOFFMAN, Appellee.
    No. 4D01-2115.
    District Court of Appeal of Florida, Fourth District.
    April 16, 2003.
    Russell S. Bohn of Caruso, Burlington, Bohn & Compiani, P.A., West Palm Beach, for appellant.
    Jane Kreusler-Walsh and Rebecca J. Mercier of Jane Kreusler-Walsh, P.A., West Palm Beach, and W. Jay Hunston, Jr. of Boose, Casey, Ciklin, Lubitz, Martens, McBane & O’Connell, West Palm Beach, for appellee.
   ON MOTIONS FOR REHEARING, REHEARING EN BANC AND CLARIFICATION

PER CURIAM.

This cause is before us on appellee’s motions for rehearing, rehearing en banc, and clarification. We deny the motion for rehearing en banc, but grant the motion for rehearing. Accordingly, we withdraw our former opinion of December 11, 2002 and substitute the following in lieu thereof.

This is an appeal from an amended qualified domestic relations order (Amended QDRO). We have previously approved the Hoffmans’ final judgment of dissolution of marriage. See Hoffman v. Hoffman, 793 So.2d 128 (Fla. 4th DCA 2001). Although we reject the Former Husband’s argument that the Second Amended QDRO granted Former Wife an impermissible post-judgment interest in his assets, we remand for further proceedings on this issue to determine whether any assets have been added to the account that may impact an appropriate distribution under the order.

The final judgment of dissolution awarded the Former Wife a specific dollar amount, based on the value of the IRA on the date of dissolution. The trial court has entered three QDROs in an attempt to divide this asset accordingly. The most recent, the Second Amended QDRO, gave the Former Wife in part 3.a., “One Hundred Ninety Three Thousand Two Hundred Fifty-five Dollars and Seventy-Five Cents ($193,255.75), which constitutes 30.22% of the existing account balance as of January 11, 2000, such amounts to be increased by the proportionate share of any account gains, interest, dividends and other earnings and reduced by the proportionate share of any account losses from January 11, 2000, through the date of distribution.”

Later, the order stated, “The Plan Administrator shall determine the total amount awarded to the Alternate Payee pursuant to paragraph 3.a. by allocating to her 30.22% of each asset in the account as of the close of business on the day prior to the date of distribution.” The order went on to state that the Plan Administrator shall roll over the said portion into a separate IRA account established for the Former Wife’s benefit.

A former spouse may not have an interest in the other spouse’s assets or earnings after the final judgment of dissolution. See DeSantis v. DeSantis, 714 So.2d 637, 638 (Fla. 4th DCA 1998). The Former Husband contends that the language giving the Wife any gains or losses amounts to an impermissible post-judgment interest. Further, he argues that the gains and losses language is not consistent with the final judgment because the final judgment divided the IRA into flat sums. We do not agree with either contention. The final judgment awarded the Wife a portion of a fluctuating asset with the value reflected in a dollar amount. She is entitled to the gains or losses that accrue on her portion of the asset due to market fluctuations. This does not amount to an impermissible post-judgment interest and it is not inconsistent with the final judgment. Such wording merely recognizes that an IRA is a fluctuating asset.

We express concern, however, that the wording of the second quoted portion would give the Wife 30.22 percent of the entire account at the time of distribution, including any assets added to the account between the judgment and the dissolution. The record does not reflect whether assets have been added to the account or not.

Therefore, we remand for the trial court to determine whether assets have been added to the account after January 11, 2000. If no assets have been added, then the order may be executed as is. If the trial court determines that assets have been added, it should clarify its order so that distribution will give the Wife the gains and losses which have accrued on her portion only.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

POLEN, C.J., GUNTHER and MAY, JJ., concur.


text:
    Steven YOUNG, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-4891.
    District Court of Appeal of Florida, Fourth District.
    April 16, 2003.
    Carey Haughwout, Public Defender, and Dea Abramsehmitt, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, Richard Valuntas and Celia Terenzio, Assistant Attorneys General, West Palm Beach, for appellee.
   ON MOTION FOR CLARIFICATION

PER CURIAM.

We grant appellant’s motion for clarification, withdraw our previous opinion and substitute this opinion in its place.

We affirm on all issues except for one, involving appellant’s two convictions of aggravated battery. The trial court erred by reclassifying appellant’s two convictions to first-degree felonies under section 775.087(l)(b), Florida Statutes (2000). As charged and established at trial, the aggravated battery charges included a weapon or a firearm as “an essential element” within the meaning of section 775.087(1). See Lareau v. State, 573 So.2d 813, 815 (Fla.1991) (finding that aggravated battery predicated on use of a deadly weapon is not subject to reclassification pursuant to section 775.087(1) because the use of the weapon is an essential element of the crime); Osorio v. State, 746 So.2d 490, 491 (Fla. 2d DCA 1999) (holding that reclassification was error because the information and jury instructions established that the use of a firearm was an essential element of aggravated assault); McCormack v. State, 728 So.2d 335 (Fla. 2d DCA 1999) (holding that aggravated battery charge should not be reclassified when use of a deadly weapon is an essential element of the offense).

This case is remanded to the circuit court for resentencing on the two aggravated batteries, with those counts classified as second-degree felonies.

GROSS, MAY, JJ., and DAMOORGIAN, DORIAN, Associate Judge, concur.


text:
    Derrek Carnell DOUGLAS, Appellant, v. The STATE of FLORIDA, Appellee.
    No. 3D002-506.
    District Court of Appeal of Florida, Third District.
    April 16, 2003.

      Bennett H. Brummer, Public Defender, and Ada Manzano Avallone, Special Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and John D. Barker, Assistant Attorney General, for appellee.
    Before LEVY, FLETCHER and SHEVIN, JJ.
   PER CURIAM.

CONFESSION OF ERROR

Based on the state’s proper confession of error, we reverse Derrek C. Douglas’s convictions and remand for a new trial. The State correctly concedes that the conviction for aggravated battery cannot stand because the information charging Douglas with sexual battery does not allege the essential elements of aggravated battery: That defendant intentionally or knowingly caused great bodily harm. Tolbert v. State, 474 So.2d 5 (Fla. 3d DCA 1985); Mateo v. State, 757 So.2d 1229 (Fla. 2d DCA 2000).

Moreover, the court erred in denying Douglas’s peremptory challenge of juror Towne. The reasons offered for the challenge were race neutral, Melbourne v. State, 679 So.2d 759, 764 (Fla.1996), and legitimate. Cobb v. State, 825 So.2d 1080, 1084 (Fla. 4th DCA 2002).

This disposition makes it unnecessary to reach the remaining point raised on appeal.

Reversed and remanded.


author: hPER CURIAM.

text:
    In re Philip LAWRENCE.
    No. 2002-B-2791.
    Supreme Court of Louisiana.
    Jan. 31, 2003.
   ATTORNEY DISCIPLINARY PROCEEDINGS.

hPER CURIAM.

In this matter, the Office of Disciplinary Counsel (“ODC”) seeks review of a recommendation of the disciplinary board dismissing a portion of the formal charges against respondent, Philip Lawrence, an attorney licensed to practice law in Louisiana. In addition, the ODC seeks review of the. disciplinary board’s order that respondent be publicly reprimanded for the misconduct proven in the remaining counts of the formal charges.

PROCEDURAL HISTORY

On November 10, 2000, the ODC filed six counts of formal charges against respondent. The ODC alleged that respondent failed to provide competent representation to one client, in violation of Rule 1.1 of the Rules of Professional Conduct; neglected the legal matters of three clients, in violation of Rule 1.3; failed to communicate with six clients, in violation of Rule 1.4; failed to safeguard the property of one client, in violation of Rule 1.15; and failed to make reasonable efforts to expedite the litigation matters of two clients, a violation of Rule 3.2. Respondent answered the formal charges and denied any misconduct. The matter then proceeded to a formal hearing on the merits.

Following the hearing, the hearing committee issued its report and recommendation, finding that respondent failed to communicate with two clients and failed to safeguard the property of one client. The committee recommended that the | ¡remainder of the formal charges be dismissed. As discipline, the committee recommended respondent be suspended from the practice of law for three months, fully deferred, subject to a one-year period of probation.

Both respondent and the ODC filed objections to the hearing committee’s recommendation. Respondent objected to the committee’s factual findings and legal conclusions, and argued that he should receive no more than a public reprimand for his misconduct. The ODC objected to the committee’s dismissal of ten of thirteen alleged violations of the Rules of Professional Conduct and to the leniency of the proposed sanction, arguing that respondent should receive an unspecified period of actual suspension, followed by probation with special conditions to protect the public.

Following its review, the disciplinary board generally adopted the hearing committee’s factual findings, and agreed that the committee correctly applied the Rules of Professional Conduct in connection with Counts I through VI. However, the board, with one dissenting member, concluded the appropriate sanction for respondent’s misconduct is a public reprimand.

The ODC sought review of the board’s ruling in this court. On December 16, 2002, the court ordered the parties to submit briefs (without oral argument) addressing the issue of whether the record supports the disciplinary board’s report. Respondent and the ODC both timely filed briefs in response to the court’s order.

DISCUSSION

This matter is presented to the court in an unusual procedural context. Ordinarily, a reprimand is a sanction which may be imposed by the disciplinary board itself, without the necessity of a recommendation to this court. Supreme Court Rule XIX, § 10(A)(4). However, under Supreme Court Rule XIX, § 11(G), the board is | ¡¡mandated to file in this court a report containing its findings and recommendations in the event the reprimand is “appealed.”

The use of the word “appeal” in Supreme Court Rule XIX, § 11(G) is something of a misnomer, as bar disciplinary matters come within the original jurisdiction of this court. La. Const, art. V, § 5(B). Therefore, we do not consider this matter in the capacity of an appellate court; instead, 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). Nonetheless, we generally accept the credibility evaluations made by those hearing committee members “who were present during respondent’s testimony and who act as the eyes and ears of this court.” In re: Bolton, 02-0257 (La.6/21/02), 820 So.2d 548. With this standard in mind, we now turn to a review of the record.

REVIEW OF THE RECORD

Count I — The Douglas Matter

Jerald Douglas retained respondent to handle a child support matter that was scheduled for hearing on August 24, 1998. The ODC alleges that on August 22, 1998, respondent accepted $150 from Mr. Douglas, with the understanding that respondent would have the hearing rescheduled because he had a conflict and could not appear on that date. Nevertheless, respondent neither filed for a continuance nor appeared |4at the hearing, and a ruling adverse to Mr. Douglas was issued in the case. Respondent subsequently filed pleadings on Mr. Douglas’ behalf, but they were rejected in light of his non-appearance at the August 24 hearing. The ODC alleges respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3 (failure to act with diligence and promptness in representing a client) and 1.4 (failure to communicate with a client).

Mr. Douglas did not testify at the disciplinary hearing. Testifying on his own behalf, respondent explained that he was not aware that a hearing was set in the child support matter on August 24, 1998, and testified that he did not tell Mr. Douglas that he had a conflict on that date and would have the hearing continued. Respondent did not attend the hearing, but he later filed a motion objecting to the recommendation made by the hearing officer concerning the child support issue.

The hearing committee found the ODC failed to prove that respondent was aware of the August 24 hearing. Noting that Mr. Douglas was not available to testify regarding his conversation with respondent, the committee accepted respondent’s testimony that had he been aware of the hearing and if he had a conflict, he would have filed a timely motion to continue the hearing, rather than file the motion for disagreement hearing that he subsequently filed. Based on this reasoning, the committee recommended that Count I of the formal charges be dismissed. We find no error in this conclusion.

Count II — The Hubert Matter

On January 14, 1999, Brian Hubert, a U.S. Navy seaman, died in an accident aboard a naval vessel docked in Virginia. Earl and Marie Hubert, Brian’s parents, subsequently retained respondent to file a wrongful death claim on their behalf. Respondent failed to communicate with his clients and failed to update them on the |fistatus of the case. Respondent also lost his clients’ file, which contained, among other things, original photographs of the ship where Brian died. The ODC alleges respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.1 (failure to provide competent representation to a client), 1.3, 1.4, and 1.15 (safekeeping property of clients or third persons).

Mr. and Mrs. Hubert testified that they first met with respondent on January 27, 1999 for an initial consultation concerning the accidental death of their son. The Huberts chose to discuss the matter with respondent because his telephone book advertisement noted his experience in military law and wrongful death cases. At this meeting, the Huberts gave respondent the original photographs of the ship where their son died. Respondent informed the Huberts that he would contact individuals in Virginia, the state where the accident occurred, to investigate the matter.

The Huberts testified that they did not hear from respondent after the initial consultation, although they made numerous telephone calls (some two to five per day) to him seeking information as to the status of their case. The Huberts testified that respondent did not return these calls, so they resorted to visiting his office in person in order to speak with him. On March 3,1999, one occasion on which the Huberts were able to meet with respondent, the parties entered into a formal retainer agreement. At this meeting, the Huberts apparently asked respondent why he would not return their telephone calls; he apologized and promised to speak with them “once a week.” Nevertheless, the pattern of non-communication continued. On March 17, 1999, respondent mailed a certified letter to the Huberts declining their representation, stating that he is not licensed to practice law in the Commonwealth of Virginia, the state which had jurisdiction over Brian Hubert’s wrongful death. The Huberts had not [¿received this letter when Mr. Hubert made one of his regular visits to respondent’s office on March 22, 1999. At that time, respondent informed Mr. Hubert that he could not handle the wrongful death case. Although Mr. Hubert was apparently shocked by this news, he agreed to find another attorney and asked respondent to return the original photographs that had been left with him in January. Respondent said that he could not locate the pictures, but that he would mail them to the Huberts as soon as they were located. On March 23, Mrs. Hubert left a message for respondent that she wanted the photographs and would pick them up the following day. On March 24, the Huberts appeared in respondent’s office, and after waiting for him for several hours, he informed them that he could not locate the pictures. At that point, a frustrated Mrs. Hubert threatened respondent and then called the police. The Huberts testified that to this day, respondent has never returned the original photographs they gave him.

In a sworn statement given by respondent in connection with the ODC’s investigation of the Huberts’ complaint, respondent asserted that he returned telephone calls from the Huberts once or twice a week. He also admitted that he has been unable to locate the original pictures the Huberts gave him, but stated that he believed the Huberts still had possession of the negatives.

The hearing committee found the ODC failed to prove that respondent was not competent to handle the Huberts’ wrongful death claim. The committee further found that no attorney-client relationship existed between respondent and the Huberts until March 3, 1999, when the formal retainer agreement was executed; and that after |7March 3, respondent did not communicate with his clients until March 17, when he mailed the letter to them terminating his representation. Notwithstanding this finding, the committee concluded that a two-week period of no communication was not unreasonable on respondent’s part. Finally, the committee found that respondent misplaced the Huberts’ file and the photographs they had entrusted to him. Based on this reasoning, the committee found that respondent violated Rule 1.15 by failing to safeguard the property of his clients. The committee recommended that the alleged violations of Rules 1.1, 1.3, and 1.4 be dismissed. We find no error in this conclusion.

Count III — The Williams Matter

In November 1998, Charles and Diana Williams retained respondent to handle a real estate matter. Respondent failed to communicate with his clients and failed to update them on the status of their case. Specifically, the ODC alleges that respondent failed to respond to his clients’ telephone calls, and that when he did speak with them, he simply gave vague responses and assurances without any detail as to what would happen next. After Mr. and Mrs. Williams terminated respondent’s representation, respondent failed to return their file or to communicate with their new counsel. The ODC alleges respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3 and 1.4.

In September 1998, Mr. and Mrs. Williams purchased a home in Mandeville, Louisiana. Mr. and Mrs. Williams later became involved in a dispute with their real estate agent arising out of the transaction, and in November 1998, they retained respondent and instructed him to obtain a rescission of the sale. Mr. Williams testified at the disciplinary hearing that he tried to call respondent on numerous occasions, but that respondent was very slow to return the calls, if he did so at all. Mr. Williams further complained that when he and his wife gave depositions in the case, respondent | «appeared unprepared and did nothing to protect their interests. Finally, Mr. Williams expressed his dissatisfaction with the pace of the litigation, particularly with respect to the delay by respondent in setting the case for trial. Mr. Williams testified that when he called the clerk of court’s office to confirm that respondent had followed through with filing a motion to set the case for trial, he learned that respondent had not used the proper form and that filing fees were still owed. At that point, Mr. Williams terminated respondent’s representation and retained another attorney to handle the case.

The documentary evidence in the record reveals that on November 18, 1998, respondent sent a demand letter to the Williams’ real estate agent in an attempt to resolve the parties’ dispute amicably. This attempt was ultimately unsuccessful, and respondent filed suit against the agent and his real estate firm on February 26, 1999. After the answer was filed, the parties exchanged written discovery requests. Respondent propounded discovery on behalf of his clients on April 14, 1999 and filed an answer to defendants’ discovery on May 14,1999.

On June 8, 1999, respondent sent Mr. Williams a bill for the time he had worked on the case. The invoice included charges for client telephone conversations on December 14, 1998; January 6 and 12, 1999; February 1, 9, 24, and 25, 1999; March 1, 5, 17, 24, 29, and 30, 1999; April 2, 6, and 12, 1999; May 4 and 14, 1999; and June 7, 1999.

Defense counsel conducted depositions of the plaintiffs and the real estate agent on June 14, 1999. Respondent met with his clients before the depositions and participated in the depositions as counsel for the plaintiffs.

On July 2, 1999, respondent filed a motion to set the case for trial. When respondent sent a copy of the motion to Mr. and Mrs. Williams, he included another bill for services rendered. This invoice included charges for client telephone 19conversations on June 14 and July 2, 1999. On August 5, 1999, Mr. and Mrs. Williams terminated respondent’s representation and requested that their file be forwarded to their new attorney. On August 20, 1999, respondent filed a motion to withdraw as counsel of record.

The hearing committee concluded the ODC failed to prove that respondent neglected the Williams’ case or failed to communicate with his clients. The committee found that no more than eight months passed from the time respondent first met with his clients until the time he filed the motion to set the case for trial. Moreover, during that time, respondent attempted to resolve the matter without the necessity of filing suit, filed the necessary pleadings once those attempts failed, conducted and responded to written discovery, and participated in the depositions of the parties. The committee concluded respondent’s efforts were diligent, and that Mr. and Mrs. Williams were aware of these efforts through frequent telephone calls and letters. Based on this reasoning, the committee recommended that Count III of the formal charges be dismissed. We find no error in this conclusion.

Count IV — The Bell Matter

Sharon Bell retained respondent to assist her in recovering several thousand dollars paid out of her checking account on a forged check. Respondent neglected the matter and failed to communicate with his client. The ODC alleges respondent’s conduct violated Rule 1.4 of the Rules of Professional Conduct.

Ms. Bell testified that after she retained respondent, she met with him on one occasion and gave him a $500 retainer fee. Thereafter, she left numerous messages with respondent’s secretary, but he never returned her calls. On one occasion, in an attempt to reach respondent by telephone, Ms. Bell gave a false name, Lisa Morgan. Respondent accepted the call from “Lisa Morgan,” and when he discovered the caller linwas Ms. Bell, he told her simply that he was “taking care of it.” Respondent later billed Ms. Bell for several client telephone consultations which she denied ever occurred. After becoming dissatisfied with respondent’s representation, and considering her need for the money that had been stolen from her, Ms. Bell eventually retained new counsel to handle the matter.

According to respondent’s billing records, Ms. Bell first consulted with him on July 12, 1999. After several further conversations with Ms. Bell, respondent contacted her bank on July 30. Respondent subsequently forwarded the bank paperwork completed by Ms. Bell in connection with her forgery claim. Respondent’s records indicate that he returned Ms. Bell’s file to her on August 28,1999.

Finding Ms. Bell’s testimony credible, the hearing committee concluded that respondent failed to keep his client reasonably informed concerning the status of her legal matter. The committee found that during the short period of time respondent represented Ms. Bell, he failed to respond to her reasonable requests for information and that Ms. Bell had to resort to using a false name to ensure that respondent would take her call. Based on this reasoning, the committee found that respondent violated Rule 1.4 of the Rules of Professional Conduct. We find no error in this conclusion.

Count V — The Mack Matter

In July 1999, Chalena Mack retained respondent to handle a civil matter involving the Louisiana Air National Guard. Respondent failed to expedite the matter, although there was some exigency, and failed to communicate with his client. The ODC alleges respondent’s conduct violated the following provisions of the Rules of ^^Professional Conduct: Rules 1.4 and 3.2 (failure to make reasonable efforts to expedite litigation).

While Ms. Mack was on active duty with the Louisiana Air National Guard, a military-owned notebook computer turned up missing. Ms. Mack was accused of failing to adequately secure the computer, and her commanding officer determined that several thousand dollars would be withheld from her paycheck to pay for it. On July 29, 1999, Ms. Mack retained respondent to represent her in a claim against the National Guard for falsely accusing her of losing the computer. Ms. Mack also wanted to enjoin the National Guard from taking any money from her paycheck. She explained to respondent that she was “under a time crunch” because the military wanted to take the funds out of her paycheck almost immediately. On August 2, 1999, Ms. Mack met with respondent and gave him a $1,000 retainer fee, but thereafter, she was unable to reach respondent. Ms. Mack testified that between August 24 and September 13,1999, she called respondent twenty-nine times; these calls were not returned. However, Ms. Mack’s husband (who does not share the same last name as Ms. Mack) was able to reach respondent by telephone, as were friends of Ms. Mack’s (who called within minutes of Ms. Mack’s doing so and being told that he was not in). In the interim, on September 2, Ms. Mack visited respondent’s office and requested the return of her file and her retainer fee. She received neither, so she returned on September 13, at which time respondent returned her file, but not the retainer. When Ms. Mack returned the following day, September 14, respondent complained that she was verbally abusive, so he summoned security officers to escort her from the budding. Ultimately, it was not until March 2000, long after Ms. Mack hpfiled a complaint against respondent with the ODC, that he refunded the $1,000 retainer fee.

In his sworn statement, respondent admitted that Ms. Mack called him numerous times, perhaps even more than the twenty-nine times she asserted. He stated that he returned her call one day in August when his receptionist reported that Ms. Mack had called fifteen times in approximately fifteen minutes.

The hearing committee found there was no evidence presented demonstrating that respondent failed to make reasonable efforts to expedite Ms. Mack’s legal matter. Ms. Mack told respondent that he had until August 31, 1999 to handle the pay-cheek issue, then she discharged him on September 2. Nevertheless, the committee found that respondent failed to keep his client reasonably informed concerning the status of her legal matter. The committee found that respondent did not return the numerous calls made to him by Ms. Mack seeking information. Based on this reasoning, the committee found that respondent violated Rule 1.4 by failing to communicate with his client. The committee recommended that the alleged violation of Rule 3.2 be dismissed. We find no error in this conclusion.

Count VI — The Tucker Matter

In April 1999, Edward Tucker retained respondent to handle his divorce. Respondent neglected the matter and failed to communicate with his client. Specifically, the ODC alleges that even though respondent was unable to serve the opposing party, he did not attempt to use a special process server or other methods to facilitate movement in the case. Respondent failed to complete the divorce and failed to return the unearned portion of the legal fee Mr. Tucker paid. The ODC alleges respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.4 and 3.2.

l13On April 5, 1999, respondent filed a petition for divorce on behalf of Mr. Tucker, based on La. Civ.Code art. 102. Respondent amended the petition on October 27, 1999 to seek a divorce based on La. Civ.Code art. 103. Service of the petitions upon Mrs. Ursula Tucker was attempted without success. On January 19, 2000, respondent requested service a second time after obtaining a new address for Mrs. Tucker from his client. When Mr. Tucker terminated respondent’s representation in March 2000, Mrs. Tucker still had not been served. Furthermore, Mr. Tucker testified that he attempted to contact respondent during this period, but respondent did not return the calls.

Testifying on his own behalf, respondent asserted that he did return Mr. Tucker’s telephone calls. Respondent also contended that in his judgment, the two-month period between the time he requested service at Mrs. Tucker’s new address and the time he was discharged by his client was not sufficient to allow the sheriff to make a diligent attempt to serve Mrs. Tucker. Respondent testified that had three or four months passed, then he would have taken additional steps to obtain service. Respondent stated that given the additional costs of appointing a special process server, he thought Mr. Tucker would best be served by allowing the sheriff additional time to make service.

The hearing committee concluded that without more to substantiate Mr. Tucker’s testimony concerning the telephone calls, the ODC failed to meet its burden of proving that respondent failed to communicate with his client. Moreover, the committee found there was no evidence presented demonstrating that respondent failed to make reasonable efforts to expedite Mr. Tucker’s legal matter. No evidence was submitted to suggest that respondent’s judgment was unreasonable or inconsistent with his client’s interests. Based on this reasoning, the committee recommended that Count VI of the formal charges be dismissed. We find no error in this conclusion.

luSANCTION

Having found no error in the hearing committee’s factual findings, we now consider the proper sanction to be imposed for respondent’s failure to communicate with his clients in the Bell and Mack matters and failure to safeguard the property of his clients in the Hubert matter.

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).

The baseline sanction for conduct similar to respondent’s has generally been in the range of a suspension of one year or less, which may be deferred. See In re: Parker-Davis, 99-2953 (La.1/7/00), 763 So.2d 569 (fully deferred three-month suspension imposed upon an attorney who failed to communicate with her client and allowed the client’s case to prescribe); In re: Broussard, 95-1454 (La.9/15/95), 660 So.2d 818 (fully deferred one year and one day suspension imposed upon an attorney who allowed a personal injury claim to prescribe and misled the client into believing a settlement had occurred); In re: Crawford, 94-2960 (La.3/10/95), 651 So.2d 1338 (six-month suspension imposed upon an attorney who neglected a legal matter, failed to communicate with his client, and commingled client funds; substantial mitigating factors noted); and In re: Durusau, 94-1412 (La.7/1/94), 638 So.2d 644 (a one year and one day suspension imposed upon an attorney who accepted advance payments from two clients and failed to perform any legal services).

115As aggravating factors, we recognize a pattern of misconduct, multiple offenses, and vulnerability of the victims. In mitigation, we find an absence of a prior disciplinary record, absence of a dishonest or selfish motive, cooperative attitude, and relative inexperience in the practice of law (admitted 1996).

Considering the record as a whole, we find the sanction recommended by the hearing committee, a deferred three-month suspension subject to a one-year period of probation, to be appropriate and responsive to the misconduct.

DECREE

Upon review of the findings and recommendation of the hearing committee and the disciplinary board, and considering the record, it is ordered that Philip Lawrence be suspended from the practice of law in Louisiana for a period of three months. It is further ordered that this suspension be deferred, subject to a one-year period of probation. Any misconduct by respondent during the period of probation shall be grounds for imposition of the deferred portion of the suspension, or additional 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.

JOHNSON, J., dissents and would impose a period of suspension.

      . Supreme Court Rule XIX, § 11(G) provides, in pertinent part:
      The board shall promptly submit to the court a report containing its findings and recommendations on each matter heard other than those that have been remanded, dismissed and not appealed, or concluded by probation or a reprimand that is not appealed, [emphasis added].
      While this rule is perhaps not a model of clarity, the clear implication is that if the board's reprimand is appealed, it must file its findings and recommendation in this court.

      . Respondent served in the U.S. Marines for six years as an intelligence officer and is currently a major in the Marine Corps Reserve. The Hubert matter was respondent’s first wrongful death case.

      . Mrs. Hubert testified that she told respondent “I know where you live,” at which point, respondent "got very hostile and said that we were no longer welcomed in his office.”

      . Although the Huberts believed respondent was their attorney from their initial meeting on January 27, the committee found their belief was not reasonable because respondent informed the Huberts that he would have to investigate the jurisdictional issues raised by the fact that the accident had occurred in Virginia. See Louisiana State Bar Ass’n v. Bosworth, 481 So.2d 567 (La.1986) (holding that the existence of an attorney-client relationship "turns largely on the client’s subjective belief that it exists.”).

      . Respondent’s excuse to Ms. Bell for not responding to her calls was that he was busy running his political campaign for State Representative.

      . As had the Huberts, Ms. Mack retained respondent because his telephone book advertisement noted his experience in military law.

      . The money for the computer was originally scheduled to be withheld from Ms. Mack's paycheck on August 31, 1999, but the money was not actually withheld until November 1999.


text:
    In re Felicia Nicole GRAHAM.
    No. 2002-B-2789.
    Supreme Court of Louisiana.
    Jan. 31, 2003.
   ATTORNEY DISCIPLINARY PROCEEDINGS.

hPER CURIAM.

This disciplinary matter arises from one count of formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Felicia Nicole Graham, a currently suspended attorney.

UNDERLYING FACTS

Respondent represented several personal injury clients whom she referred to Metropolitan Health Group and Canal Radiology Laboratory (collectively, the “medical providers”) for evaluation and treatment. The charges for the medical services were to have been paid from the proceeds of settlements obtained by respondent in the personal injury cases. On October 18, 2000, respondent wrote nine checks on her client trust account in payment of the medical expenses incurred by five of her clients to the medical providers. These checks totaled $3,739.25. However, the checks were subsequently returned unpaid by the drawee bank, marked “account closed.”

| {.Upon receiving the unpaid checks, the medical providers contacted respondent in an attempt to resolve the matter. Respondent informed a representative of the medical providers that she would take care of the situation “in a couple of days,” but after three weeks with no response, the medical providers filed a complaint against respondent with the ODC.

On February 20, 2001, the ODC forwarded a copy of the complaint to respondent by certified mail, but she failed to reply to the complaint. The ODC thereafter served respondent with a subpoena compelling her to appear on April 20, 2001 and answer the complaint under oath. Respondent failed to appear.

DISCIPLINARY PROCEEDINGS

After investigation, the ODC filed one count of formal charges against respondent, alleging that her conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.15(a) and 1.15(b) (safekeeping property of clients or third persons), and 8.1(c) and 8.4(g) (failure to cooperate with the ODC in its investigation).

Respondent failed to answer or otherwise reply to the formal charges. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions.

|3In its submission, the ODC argued that respondent’s conduct was negligent and caused injury to her clients and a third party. The ODC also argued that a suspension is the baseline sanction for respondent’s misconduct, pursuant to Standard 4.12 of the ABA’s Standards for Imposing Lawyer Sanctions. The ODC suggested several aggravating factors are present in this case, including respondent’s prior disciplinary offenses, pattern of misconduct, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the orders of the disciplinary agency, and substantial experience in the practice of law (admitted 1995). The ODC identified no mitigating factors. Concluding there is no reason to deviate downward from the baseline sanction, the ODC recommended respondent be suspended from the practice of law.

Respondent filed nothing for the hearing committee’s consideration.

Hearing Committee Recommendation

After reviewing the record, the hearing committee concluded that respondent committed the substantive misconduct charged in the formal charges. While recognizing that there is no specific evidence in the record to conclusively show that respondent converted her clients’ funds to her personal use or commingled those funds with her own, the committee found “the very fact that there was insufficient money to pay these charges available in the trust account requires a finding that the money was put to another purpose.” The committee also found respondent failed to pay third parties and failed to cooperate with the ODC in its investigation.

The committee found no mitigating factors exist in this case. In aggravation, the committee considered respondent’s failure to cooperate with the ODC in a | ¿disciplinary proceeding. The committee refused to find that prior discipline or substantial experience in the practice of law are aggravating factors in this case, on the ground there is no evidence in the record to support such a finding. Moreover, the committee refused to recognize a pattern of misconduct as an aggravating factor. The committee noted there is little guidance in the jurisprudence on the issue of whether a series of nine checks written on the same day to the same payees, albeit on behalf of different clients, constitutes a “pattern” of misconduct as intended by the ABA Standards. Therefore, the committee looked to a recent decision of the Delaware Supreme Court which held that a pattern of lawyer misconduct involves “identifiably similar instances of repeated misconduct over a period of time” or “multiple acts of intentional or knowing misconduct.” See In re: Reardon, 759 A.2d 568 (Del.2000). Applying this definition to the instant case, the committee determined no pattern of misconduct is present:

While the conduct at issue here falls under the heading of “multiple acts” of misconduct as discussed in Reardon, the Respondent’s conduct here is characterized by the ODC in its “submission on sanctions” as “negligent,” not “intentional or knowing,” as required in Reardon. The fact that there seems to have been enough money in the account when the checks were written also requires a finding of negligent rather than intentional misconduct. Therefore, since the misconduct did not occur over a period of time and did not involve multiple acts of “intentional or knowing” misconduct, the Committee will not find a “pattern of misconduct” as an aggravating factor.

Turning to the issue of an appropriate sanction, the committee first considered the applicable ABA Standards. The committee noted that under Standard 4.12, suspension is the appropriate baseline sanction for the lawyer’s violation of her duties to her clients and to third parties; by contrast, under Standard 4.13, reprimand is generally appropriate when the lawyer is negligent in dealing with client property and causes injury to the client. Noting the ODC’s assessment of respondent’s mishandling |Rof trust account funds as merely negligent conduct, the committee found respondent’s conduct caused actual harm to her clients and to the medical providers and rose to the level of an intentional disregard of her duties when she did not reimburse the medical providers for the returned checks after she had promised to do so. Accordingly, the committee found Standard 4.12 is the more appropriate standard to be applied in this case, and that suspension is the appropriate baseline sanction under Standard 4.12 and the applicable jurisprudence dealing with similar misconduct.

Considering all of these factors, in particular “the significant amounts involved ($3,739.25), the fact that five clients were harmed because their bills remained unpaid even though their attorney received money to pay the bills, the intentional and/or deliberate disregard by the attorney of the harm which has been caused to both her clients and to third-party providers, and the complete failure of Respondent to cooperate with the ODC’s investigation,” the committee recommended that respondent be suspended from the practice of law for three years. The committee further recommended that the suspension commence to run from the date respondent provides documentation that she has paid restitution to Metropolitan Health Group and Canal Radiology Laboratory.

Neither respondent nor the ODC objected to the hearing committee’s recommendation.

IsDisciplinary Board Recommendation

The disciplinary board generally agreed with the hearing committee’s factual findings and its application of the Rules of Professional Conduct. After reviewing the record in its entirety, the board determined that respondent failed to remit funds to the medical providers and converted those funds, but found there is no evidence she commingled her own money with money belonging to a client or third person. The board also found that respondent failed to cooperate with the ODC in its investigation. Accordingly, the board determined respondent violated Rules 1.15(a) and (b) and 8.1(c) and 8.4(g) of the Rules of Professional Conduct.

The board found that respondent knowingly violated duties owed to her clients and to a third party when she knowingly mishandled her trust account funds. Furthermore, when the medical providers notified respondent of the dishonored checks, she promised to remedy the situation but then failed to do so. The board suggested this conduct is at least knowing because the returned checks and the subsequent promise made by respondent to remedy the situation indicate that she had knowledge of her failure to pay. This conduct caused injury to five clients and two medical providers. In aggravation, the board recognized respondent’s prior discipline in Graham I, pattern of misconduct, and failure to cooperate in the disciplinary process. The board found the record does not support any mitigating factors.

Turning to the issue of an appropriate sanction, the board agreed that the baseline for respondent’s misconduct is a suspension from the practice of law. Considering the cases cited by the hearing committee, and due to the serious injury |7to clients and the medical providers, and the presence of prior misconduct and pattern of misconduct, the board agreed a three-year suspension is appropriate.

Accordingly, the board recommended that respondent be suspended from the practice of law for three years. The board further recommended that respondent be ordered to make full restitution to Metropolitan Health Group and Canal Radiology Laboratory. Finally, the board recommended that respondent be assessed with all costs and expenses of these proceedings, with legal interest to commence running thirty days from the date of finality of the court’s judgment until paid.

Neither respondent nor the ODC objected to the recommendation of the disciplinary board.

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 hearing 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.

Based on our independent review, we conclude the findings of the hearing committee, as modified by the disciplinary board, are supported by the record. The undisputed evidence reveals respondent failed to remit funds to the medical providers, converted those funds, and failed to cooperate with the ODC in its investigation.

| ^Having found violations of the Rules of Professional Conduct, we now turn to a determination of an appropriate sanction for this misconduct. The purpose of disciplinary proceedings is not primarily to punish the lawyer, but rather to maintain the appropriate standards of professional conduct, to preserve the integrity of the legal profession, and to deter other lawyers from engaging in violations of the standards of the profession. In re: Vaughan, 00-1892 (La.10/27/00), 772 So.2d 87; In re: Lain, 00-0148 (La.5/26/00), 760 So.2d 1152; Louisiana State Bar Ass’n v. Levy, 400 So.2d 1355 (La.1981). 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. In re: Redd, 95-1472 (La.9/15/95), 660 So.2d 839; Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

Respondent’s misconduct is clearly serious in nature, with the most egregious violation relating to her conversion of funds owed to the medical providers. In Louisiana State Bar Ass’n v. Hinrichs, 486 So.2d 116 (La.1986), we set forth guidelines for imposing discipline in a conversion case:

In a typical case of disbarment for violation of DR 9-102 [now Rule 1.15], one or more of the following elements are usually present: the lawyer acts in bad faith and intends a result inconsistent with his client’s interest; the lawyer commits forgery or other fraudulent acts in connection with the violation; the magnitude or the duration of the deprivation is extensive; the magnitude of the damage or risk of damage, expense and inconvenience caused the client is great; the lawyer either fails to make full restitution or does so tardily after extended pressure of disciplinary or legal proceedings.
A three year suspension from practice typically results in cases involving similar but less aggravated factors. In such cases the lawyer is guilty of at least a high degree of negligence in causing his client’s funds to be withdrawn or retained in violation of the disciplinary rule. He usually does not commit other fraudulent acts in connection therewith. The attorney usually benefits from the infraction but, in contrast with disbarment cases, the client may not be greatly harmed or exposed to great risk of harm. The ^attorney fully reimburses or pays his client the funds due without the necessity of extensive disciplinary or legal proceedings.
A suspension from practice of eighteen months or two years will typically result where the facts are appropriate for a three-year suspension, except that there are significant mitigating circumstances; or where the facts are appropriate for a one-year suspension, except that there are significant aggravating circumstances.
A suspension from practice of one year or less will typically result where the negligence in withdrawing or retaining client funds is not gross or of a high degree. No other fraudulent acts are committed in connection with the violation of the disciplinary rule. There is no serious harm or threat of harm to the client. Full restitution is made promptly, usually before any legal proceeding or disciplinary complaint is made.
Hinrichs, 486 So.2d at 122-123 (citations omitted).

The deemed admitted facts in this case establish that respondent failed to pay the third-party medical providers and retained for her own use the funds she had received for that purpose. It appears from the record that these funds have not yet been repaid. Given such facts — particularly considering respondent’s failure to pay restitution — this case falls on the higher end of the Hinrichs range. Considering the aggravating factors present, and the absence of mitigating factors, the three-year suspension recommended by the disciplinary board is appropriate.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Felicia Nicole Graham be suspended from the practice of law in Louisiana for a period of three years. Respondent is ordered to make full restitution to Metropolitan Health Group and Canal Radiology Laboratory. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal |ininterest to commence thirty days from the date of finality of this court’s judgment until paid.

      . See In re: Graham, 01-2930 (La.2/8/02), 807 So.2d 829 ("Graham I”).

      . It appears that Metropolitan Health Group and Canal Radiology Laboratory are jointly operated.

      . The ODC obtained copies of respondent’s bank records in the course of its investigation. The records reveal that on October 18, 2000, the day the nine checks at issue were written, the balance of respondent’s client trust account was $11,202.05. The balance then dropped below zero on several occasions in November and December 2000; the account was finally closed on January 2, 2001. The records do not indicate when the medical providers presented the nine checks for payment, but it was apparently sometime after that date.

      . The formal charges were sent by certified mail to respondent's primary and secondary registration statement addresses, both of which are in New Orleans. Those letters were returned unclaimed. The formal charges were also sent by certified mail to respondent’s last known business address at the Third Circuit Court of Appeal in Lake Charles. That letter was signed for by an employee of the Third Circuit’s clerk's office. Pursuant to Supreme Court Rule XIX, §§ 8(C) and 13(A), respondent received adequate notice of the formal charges.

      . Under Standard 4.12, suspension is appropriate when a lawyer knows or should know that she is dealing improperly with client property and causes injury or potential injury to a client.

      . The committee relied upon In re: Henderson, 99-3593 (La.5/26/00), 761 So.2d 523, and In re: Cannizzaro, 00-0413 (La.3/17/00), 758 So.2d 780. In Henderson, the respondent was charged with failing to maintain settlement funds in a trust account, failing to remit payment to a third-party provider, failing to cooperate with the ODC, and commingling and conversion of client funds. The disciplinary board recommended a three-year suspension, but this court imposed a two-year suspension because of the absence of prior discipline and the payment of restitution. In Cannizzaro, the respondent failed to promptly pay $660 to a third-party provider and failed to safeguard the funds he had received for that purpose. This court accepted a petition for consent discipline and, based upon compelling mitigating factors, imposed a ten-month suspension. By contrast, in the instant case, respondent has paid no restitution to the medical providers, no mitigating factors are present, and the sum of money involved is fairly large.

      . Although the committee refused to find a pattern of misconduct based on the issuance of nine checks dated the same day, the board suggested this reluctance was premised upon the committee's lack of knowledge of Graham I. The board found a pattern of misconduct exists in this case because Graham I involved, among other violations, respondent's conversion of client funds and failure to pay a third „ party.


author: JjPER CURIAM.

text:
    In re Rhea H. WOODS.
    No. 2002-B-2615.
    Supreme Court of Louisiana.
    Jan. 31, 2003.
   ATTORNEY DISCIPLINARY PROCEEDINGS

JjPER CURIAM.

This matter arises from a petition for consent discipline filed jointly by the Office of Disciplinary Counsel (“ODC”) and respondent, Rhea H. Woods, an attorney licensed to practice law in the State of Louisiana, but currently on interim suspension.

UNDERLYING FACTS

These proceedings are based on two separate sets of formal charges, as well as separate files investigated by the ODC. The facts, as stipulated to by respondent and the ODC, are as follows:

Case No. 00-DB-095

Count I-Butler Matter

Respondent was retained to represent a succession estate involved in pending litigation. Subsequently, respondent failed to communicate with her clients, as well as refused to respond to her clients’ written requests for information.

After receiving a complaint in the matter, the ODC requested respondent provide information regarding the matter. Respondent failed to answer to the ODC’s requests for information, requiring it to issue a subpoena compelling her to appear at a deposition.

| ?Pount II-Lombard Matter

In February, 1997, Wanda Lombard retained respondent for $600 to represent her in a civil matter. Respondent neglected the legal matter and failed to communicate with her client.

After receiving a complaint in the matter, the ODC requested respondent provide information regarding the matter. Respondent failed to answer to the ODC’s requests for information, requiring it to issue a subpoena compelling her to appear at a deposition.

Count Ill-Hunter Matter

Respondent had provided Dr. Michael S. Hunter with letters of guarantee for payment, in exchange for the rendering of medical treatment to several of her clients. Later, respondent settled many of the clients’ cases, but neglected to provide payment to Dr. Hunter.

After receiving a complaint in the matter, the ODC requested respondent provide information regarding the matter. Respondent failed to answer to the ODC’s requests for information, requiring it to issue a subpoena compelling her to appear at a deposition.

Count IV-Robinson Matter

Respondent settled a case on behalf of her client, Terri Lynn Robinson. Although respondent withheld funds to pay one of her client’s medical providers, respondent deposited the funds in her office operating account and neglected to provide payment.

IsAfter receiving a complaint in the matter, the ODC requested respondent provide information regarding the matter. Respondent failed to answer to the ODC’s requests for information, requiring it to issue a subpoena compelling her to appear at a deposition.

Count V-Broum Matter

Respondent permitted her husband, Dwayne Lockett, who is not an attorney, to meet in her office with potential clients seeking attorney representation. In one instance, Inga Washington Brown and her husband met with Mr. Lockett in July, 1997. At that time, Mr. Lockett misrepresented he was an attorney and respondent’s associate. Relying on Mr. Lockett’s misrepresentation, Mrs. Brown signed a retainer agreement hiring respondent and paid Mr. Lockett a $265 retainer fee.

Subsequently, respondent failed to undertake any action on behalf of Mrs. Brown, nor did she communicate with her. In January, 1999, respondent forwarded a letter to Mrs. Brown terminating the representation. Although respondent enclosed pleadings she had drafted on Mrs. Brown’s behalf (but had never filed), she neglected to return the remainder of Mrs. Brown’s file.

Case No. 01-DB-ll

Count I-McMillon Matter

Lloyd McMillon retained respondent for $750 to institute bankruptcy proceedings on his behalf. Over the course of the following year, respondent neglected to take any legal action and failed to communicate with her client. Eventually, respondent turned the matter over to another attorney to handle, but retained the fee.

\ t/Count II-Howard Matter

Donald and Jeanne Howard gave respondent a check for $30,000 to purchase property from a succession. Rather than purchasing the property as instructed, respondent converted the funds after forging signatures on the cash sale and the endorsement on the check. As a result, the property was seized and sold.

■ The Howards retained new counsel, who filed a complaint with the ODC regarding the matter. Ultimately, respondent provided full restitution to the Howards.

Count Ill-Espadron Matter

Linda Espadron retained respondent to represent her interests in a matter which involved the sale of succession property. Specifically, $52,000 from an auction of succession property had been placed in the registry of the court. Subsequently, respondent and her husband withdrew the funds without her client’s knowledge or permission, forged the client’s signature and converted the funds. Ms. Espadron filed a complaint with the ODC advising of respondent’s misconduct.

Investigative Files

Investigative File No. 13501-Parker Matter

In 1995, Estelle Marie Parker retained respondent to represent her in a civil matter. Subsequently, respondent neglected to communicate with her client.

\ investigative File No. 0013667-Cruse Matter

Respondent represented Archie and Margaret Cruse in a civil matter. Subsequently, respondent failed to account for and turn over $38,000 in settlement funds owed to her clients.

DISCIPLINARY PROCEEDINGS

Formal Charges/Petition for Consent Discipline

After investigation, the ODC filed five counts of formal charges in case no. 00-DB-095.' Respondent filed a response denying the allegations of misconduct. While that matter was pending, the ODC file a second set of three counts of formal charges in case no. 01-DB-011..

Prior to a hearing on these charges, respondent and the ODC entered into a joint petition for consent discipline. In the petition, respondent stipulated to the allegations of the formal charges, as well as the other matters which were the subject of the ODC’s investigative files. Respondent conceded her actions violated the Rules of Professional Conduct, namely, Rules 1.3 (lack of diligence), 1.4(a) (failure to communicate), 1.5(f)(6) (failure to refund earned fees or place funds in trust when dispute arises), 1.15(a) (failure to keep client and third party funds separate from the lawyer’s own property), 1.15(b) (failure to promptly deliver funds or property owed to a client or third party and failure to render a full accounting upon request), 1.16(d) (failure to protect client interests upon termination of representation), 5.5(b) (assisting a nonmember of the bar engage in the unauthorized practice of law), 8.1(c) (failure to cooperate with the ODC in its investigation), 8.3 (failure to report professional misconduct), 8.4(c) (engaging in conduct involving deceit, dishonesty, fraud, or misrepresentation) and 8.4(g) (failure to cooperate with the ODC).

|fiAs aggravating factors, the parties alleged dishonest motive, multiple offenses, bad faith obstruction of the disciplinary process and substantial experience in the practice of law. In mitigation, the parties stipulated that, although respondent accepts responsibility for her misconduct, some of the events subject of the proceedings arose from the conduct of respondent’s husband. The parties alleged Mr. Lockett betrayed respondent’s trust both personally and professionally on numerous occasions, including but not limited to, the forging of respondent’s name. The parties contend, after learning the extent of her husband’s misconduct, respondent filed for divorce alleging severe mental and physical abuse.

As a sanction for her misconduct, respondent and the ODC proposed respondent be disbarred from the practice of law.

Recommendation of the Disciplinary Board

Because the parties stipulated to the facts and misconduct, the board’s sole focus was whether disbarment was an appropriate sanction. The board found that respondent knowingly and intentionally violated duties owed to her clients, the public, the legal system and the profession, which resulted in significant injury. Specifically, it pointed out that respondent converted $30,000 from the Howards, $52,000 from Ms. Espadron and $38,000 from the Cruses. It noted that only the Howards were repaid and, even in their case, they lost the property they had intended to purchase. The board maintained respondent’s misconduct relative to the Lombard, Hunter, Robinson, Brown, McMillon and Parker matters established a pattern of neglect, and that her failure to act delayed the resolution of her clients’ cases. Moreover, it stated that her failure to pay third party medical providers placed her clients at financial risk. The board found respondent’s failure to properly supervise her staff enabled her non-lawyer husband to engage in the unauthorized practice of law.

17As aggravating factors, the board recognized multiple offenses, dishonest motive and pattern of misconduct. In mitigation, the board noted respondent’s personal problems are supported by the stipulation of facts, insofar as her husband deceived her and betrayed her trust for his own personal gain.

Relying on the ABA’s Standards for Imposing Lawyer Sanctions and jurisprudence from this court, the board concluded disbarment was appropriate for the various types of misconduct committed by respondent. Accordingly, the board recommended the proposed consent discipline be adopted and that respondent be disbarred from the practice of law.

Neither respondent nor the ODC objected to the disciplinary board’s recommendation.

DISCUSSION

Although this matter arises from a petition for consent discipline, Supreme Court Rule XIX, § 20(B) provides that the extent of discipline to be imposed is subject to review. In determining an appropriate 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).

^Respondent's actions are serious in nature. Her neglect of her clients’ legal matters and failure to communicate with them resulted in undue delays and the loss of property interests. Most disturbing, however, is respondent’s conversion of client funds. In Louisiana State Bar Ass’n v. Hinrichs, 486 So.2d 116 (La.1986), we set forth the elements which make disbarment appropriate in a conversion case:

In a typical case of disbarment for violation of DR 9-102 [now Rule 1.15], one or more of the following elements are usually present: the lawyer acts in bad faith and intends a result inconsistent with his client’s interest; the lawyer commits forgery or other fraudulent acts in connection with the violation; the magnitude or the duration of the deprivation is extensive; the magnitude of the damage or risk of damage, expense and inconvenience caused the client is great; the lawyer either fails to make full restitution or does so tardily after extended pressure of disciplinary or legal proceedings. She has deprived her clients of their funds for a significant period of time. These actions convincingly demonstrate respondent lacks the moral fitness to engage in the practice of law.

All of these elements are present in the instant case. Respondent clearly acted in bad faith and intended a result inconsistent with her clients’ interests. She committed forgery in connection with the conversion. The magnitude of the deprivation of funds, and resulting inconvenience to respondent’s clients is great. Finally, respondent has only made restitution to one client, leaving her other victims uncompensated.

Thus, the baseline sanction for respondent’s misconduct is clearly disbarment. Several aggravating factors are present, including a pattern of misconduct, multiple offenses, dishonest and selfish motive and substantial experience in the practice of law. The sole mitigating factor, personal problems, is insufficient to justify a deviation from the sanction of disbarment.

19Under these circumstances, we find disbarment is the only appropriate sanction. Accordingly, we will accept the board’s recommendation and disbar respondent from the practice of law.

DECREE

Upon review of the findings and recommendation of the disciplinary board, and considering the record filed herein, it is ordered that the name of Rhea H. Woods be stricken from the roll of attorneys and that her license to practice law in the State of Louisiana be revoked, retroactive to the date of her interim suspension. Respondent is ordered to make full restitution to her victims. 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.

TRAYLOR, J., would reject consent discipline.

      . On August 29, 2001, this court placed respondent on interim suspension for the misconduct which is the subject of the instant disciplinary proceeding. In re: Woods, 01-2396 (La.8/29/01), 795 So.2d 1152.

      . In the record, Ms. Robinson is also referred to as Terri Robinson Prevost.

      . While not subject of formal charges, the ODC also received a disciplinary complaint from a licensed attorney advising of respondent’s misconduct relative to the Espadron matter.

      . Standard 4.41 provides disbarment is generally appropriate when a lawyer knowingly fails to perform services for a client or engages in a pattern of neglect with respect to client matters and causes serious or potentially serious injury to a client. Standard 7.1 provides disbarment is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional with the intent to obtain benefit for the lawyer or another, and causes serious or potentially serious injury to a client, the public, or the legal system.

      . While we recognize some of the misconduct may have resulted from activities of respondent’s husband, the fact remains that respondent bears the ultimate responsibility for actions affecting her clients. Moreover, much of respondent’s misconduct, including her neglect of her clients’ cases, failure to communicate with them and failure to properly terminate the representations, occurred independent of her husband’s actions.