author: liPER CURIAM.

text:
    In re Edward L. HENDERSON.
    No. 2003-B-0876.
    Supreme Court of Louisiana.
    Sept. 25, 2003.
   ATTORNEY DISCIPLINARY PROCEEDINGS

liPER CURIAM.

This disciplinary matter arises from two counts of formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Edward L. Henderson. Respondent has been disbarred since 2002. In re: Henderson, 02-0903 (La.6/6/02), 819 So.2d 296 (“Henderson I ”).

UNDERLYING FACTS

In February 1997, McArthur Schales and Calvin Moss retained respondent to represent them in a personal injury matter arising out of an automobile accident. Respondent filed suit in state court on October 2, 1997, but the defendants subsequently removed the case to federal court. On January 30, 1998, defendant Mark Jones (the driver of the vehicle that struck Mr. Schales and Mr. Moss) was dismissed without prejudice due to respondent’s failure to serve Mr. Jones properly. On November 4, 1998, the case was dismissed without prejudice as to the remaining defendants due to respondent’s failure to comply with court orders relating to pretrial matters. Respondent failed to inform his clients of the dismissal, and over the following year, he misled them about the status of the case.

In November 2000, Mr. Schales and Mr. Moss filed a complaint against respondent with the ODC. On November 30, 2000, the ODC forwarded a copy of the complaint to respondent by certified mail. Respondent failed to reply to the | ¡.complaint. The ODC thereafter served respondent with a subpoena compelling him to appear on January 30, 2001 and answer the complaint under oath. Respondent failed to appear, and he failed to produce the records that had been requested in conjunction with the ODC’s investigation of the complaint.

DISCIPLINARY PROCEEDINGS

Formal Charges

After investigation, the ODC filed two counts of formal charges against respondent, alleging that his conduct in the Schales/Moss matter violates the following provisions of the Louisiana Rules of Professional Conduct: Rules 1.1(a) (failure to provide competent representation to a client), 1.3 (failure to act with diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.7(b) (representing a client when the representation is materially limited by the lawyer’s own interests), 3.4(a) (unlawfully obstructing another party’s access to evidence), 3.4(c) (knowing disobedience of an obligation under the rules of a tribunal), 8.1(b) (knowing failure to respond to a lawful demand for information from a disciplinary authority), 8.1(c) (failure to cooperate with the ODC in its investigation), 8.4(a) (violation of the Rules of Professional Conduct), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), 8.4(d) (engaging in conduct prejudicial to the administration of justice), and 8.4(g) (failure to cooperate with the ODC in its investigation). In addition, the ODC alleged that respondent violated Supreme Court Rule XIX, § 9(c) by failing to appear pursuant to a subpoena.

[.■¡Respondent answered the formal charges and generally denied any misconduct. Accordingly, this matter proceeded to a formal hearing on the merits.

Hearing Committee Recommendation

After reviewing the record of this matter, the hearing committee made a factual finding that the lawsuit filed by respondent on behalf of Mr. Schales and Mr. Moss was dismissed by the federal court on November 4, 1998; respondent failed to timely and adequately communicate to his clients the fact of the dismissal and its significance; respondent advanced funds to his clients after the lawsuit was dismissed; respondent did not respond to a subpoena from the ODC; and respondent did not cooperate with the ODC in its investigation. Based on these factual findings, the committee determined respondent violated the Rules of Professional Conduct. However, the committee noted that respondent’s misconduct occurred in the same time frame as the misconduct at issue in respondent’s disbarment in Henderson I. Accordingly, the committee recommended that respondent be adjudged guilty of additional violations warranting disbarment, to be considered in the event respondent makes a future application for readmission.

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

Disciplinary Board Recommendation

After reviewing the record of this matter, the disciplinary board agreed the hearing committee’s factual findings are not manifestly erroneous, and generally concurred in the committee’s application of the Rules of Professional Conduct. The board found that respondent knowingly and intentionally violated duties owed to his clients when he failed to adhere to the federal court’s order, failed to seek reinstatement of his clients’ case after it was dismissed, failed to advise his clients of the dismissal, and failed to cooperate with the ODC. Mr. Schales and Mr. Moss were harmed by the loss of their day in court and the disciplinary system’s resources were expended for a subpoena which resulted in a proces verbal disposition. The board concluded the baseline sanction for respondent’s misconduct is disbarment.

As aggravating factors, the board recognized respondent’s prior disciplinary offenses, pattern of misconduct, bad faith obstruction of the disciplinary process, refusal to acknowledge the wrongful nature of the conduct, and substantial experience in the practice of law (admitted 1981). The board found no mitigating factors are present.

The board agreed with the hearing committee that respondent’s misconduct occurred in the same time frame as the misconduct at issue in respondent’s 2002 | ^disbarment. Accordingly, the board recommended that respondent be adjudged guilty of additional violations warranting disbarment, to be considered in the event respondent makes a future application for readmission.

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

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, 94-1816 (La.11/80/94), 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.

The record supports a finding of professional misconduct that is unquestionably serious in nature. Respondent failed to comply with pre-trial orders issued by a federal court, and as a consequence, his clients’ case was dismissed. Thereafter, respondent failed to take any steps to have the case reinstated, and he failed to advise his clients of the dismissal. No less serious is the fact that respondent failed to cooperate with the ODC in its investigation and failed to appear for a sworn statement in response to a subpoena.

| fiHavmg found evidence of professional misconduct, the sole issue presented for our consideration is the appropriate sanction for respondent’s actions. 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).

Respondent’s conduct caused his clients to suffer actual harm in the loss of their cause of action. There are no mitigating factors present; however, numerous aggravating factors exist. Under these circumstances, we conclude disbarment is the proper sanction.

As the hearing committee and disciplinary board correctly noted, the substantive misconduct at issue in this case occurred in the same time frame as the misconduct forming the basis of respondent’s disbarment in Henderson I. In Louisiana State Bar Ass’n v. Chatelain, 573 So.2d 470 (La.1991), we observed that when the underlying conduct occurs within the same period as the misconduct forming the basis of a previous disbarment, the discipline imposed should be determined as if both proceedings were before the court simultaneously. Applying this procedure in Cha-telain, we declined to extend the minimum period for readmission. Instead, we adjudged the respondent guilty of additional violations warranting disbarment which were added to his record for consideration in the event he applied for readmission after becoming eligible to do so. See also In re: Patrick, 01-1419 (La.3/15/02), 815 So.2d 804; In re: Gros, 98-0772 (La.3/15/02), 815 So.2d 799; In re: Parker, 00-3532 (La.3/15/02), 815 So.2d 794.

In determining an appropriate sanction in the instant case, we believe the approach of Chatelain is instructive. Ac-eordingly, our determination of a sanction will be based upon the appropriate sanction we would have imposed if these charges had been before the court at the same time as the charges in respondent’s previous disciplinary proceeding.

Had the instant charges been filed simultaneously with those charges forming the basis of respondent’s earlier disbarment, they would have only reinforced our view that respondent lacks the moral fitness to practice law and must be disbarred, both as a sanction for his misconduct and to protect the public. Therefore, as in Chatelain, we will adjudge respondent guilty of additional violations which warrant disbarment and which will be added to his record for consideration in the event he applies for readmission after becoming eligible to do so. We further emphasize that although respondent may have a procedural right to apply for readmission, this court retains absolute discretion to grant or deny such an application. In light of respondent’s lengthy history of egregious misconduct, this court will carefully scrutinize any application for readmission with a critical eye.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Edward L. Henderson be adjudged guilty of additional violations which warrant disbarment and which may be considered in the event he applies for readmission from his disbarment in In re: Henderson, 02-0903 (La.6/6/02), 819 So.2d 296, after becoming eligible to do so. |SA11 costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . Respondent admitted that he was retained to represent Mr. Schales and Mr. Moss, and that one of the defendants in the case was dismissed without prejudice by the court. Respondent also admitted he failed to appear at the ODC’s offices on January 10, 2001. The remaining allegations of the formal charges were denied.

      . The committee found the ODC proved the formal charges by clear and convincing evidence, but refused to find a violation of Rule 8.4(c), relating to conduct involving dishonesty, fraud, deceit, or misrepresentation. At the formal hearing, the ODC had suggested respondent did not inform his clients of the dismissal of their suit because he was attempting to "string them along” until the delay for filing a malpractice suit had passed. While conceding it was "possible to so conclude,” the committee ultimately did not find clear and convincing evidence to support the ODC's assertion.

      . The disbarment in Henderson I involved misconduct occurring between November 1992 and December 1999. The substantive misconduct at issue in the instant matter occurred between 1997 and 1999.

      . The board added additional factual findings with respect to the cause for the federal court’s dismissal of the Schales/Moss personal injury case. On April 8, 1998, the court entered a minute entry noting that respondent, as counsel for the plaintiffs, had failed to initiate the process by which the parties schedule pre-trial deadlines. The court cautioned that respondent's failure to abide by the "plan of work” order could lead to the dismissal of the case. On November 5, 1998, the court entered judgment dismissing the case without prejudice due to respondent's failure to abide by the April 8, 1998 order.

      . In addition to the 2002 disbarment, respondent was suspended by this court for a period of two years in May 2000. In re: Henderson, 99-3593 (La.5/26/00), 761 So.2d 523.


source: Caselaw Access Project

author: hPER CURIAM.

license: Public Domain

text:
    In re Linda Marie MEYER.
    No. 2003-B-1960.
    Supreme Court of Louisiana.
    Sept. 26, 2003.
   ATTORNEY DISCIPLINARY PROCEEDINGS

hPER CURIAM.

This matter arises from a joint petition for consent discipline filed by the Office of Disciplinary Counsel (“ODC”) and respondent, Linda Marie Meyer, an attorney licensed to practice law in the State of Louisiana.

UNDERLYING FACTS

Roberts Firm Matter

In October 2001, Bradford R. Roberts and Michael Katz of the firm of Roberts, Katz & Baudier (“Roberts firm”) filed a complaint with the ODC against respondent, a former associate of the firm. They alleged that when respondent left their law firm for other employment, she took case files involving clients Elroy James and Leroy Jackson, Sr. The Roberts firm had advanced large sums in costs and expenses in connection with these files. Respondent assured Mr. Roberts in written correspondence that the files would not be closed and no fees or expenses would be paid before the Roberts firm’s interests had been adequately protected.

Subsequently, respondent settled the Elroy James matter. Following settlement, there were insufficient funds to satisfy the outstanding medical liens, as well as costs and fees claimed by respondent and the Roberts firm. As a result, respondent took no action concerning the distribution of the funds. After an extended period of time | shad passed, the settlement funds were placed in the registry of the court pending disposition by the presiding judge in the case.

Respondent also settled the Leo Jackson matter. Because Mr. Jackson’s medical bills and the claims of his prior attorneys exceeded the amount of the settlement, respondent attempted to negotiate with the health care providers and attorneys for a reduction of them claims. She was unsuccessful. The settlement check was never cashed, even after it had been reissued on two occasions. As a result, the tortfea-sor’s insurance carrier deposited the check in the registry of the court, and the matter is currently under negotiation among those parties claiming an interest.

Ultimately, the Roberts firm filed a civil suit against respondent alleging respondent faded to take adequate measures to protect the firm’s monetary interests in the James and Jackson settlements.

Smith Matter

In October 2001, Larry Smith, a former client of respondent, filed a complaint with the ODC alleging respondent did not provide him with his case file following respondent’s withdrawal from the representation. Respondent did eventually return the file to Mr. Smith, after having been subpoenaed to give a sworn statement to the ODC.

DISCIPLINARY PROCEEDINGS

Petition for Consent Discipline

Prior to the institution of formal charges, respondent submitted a petition for consent discipline and stipulation of facts with the disciplinary board. In the petition, [¡¡respondent concedes, although she did not have primary responsibility at all times for the James and Jackson cases, her actions relative to the handling of the settlement checks and proceedings constituted violations of Rules 1.3 (lack of due diligence), 3.2 (failure to expedite litigation) and 1.15 (failure to protect interests of a third party having a rightful interest in a client matter) of the Rules of Professional Conduct. As to the Smith matter, respondent admits her actions violated Rule 1.16(d) (failure to protect client interests upon termination of representation) of the Rules of Professional Conduct.

As mitigating factors, the parties stipulated to an absence of a prior disciplinary record, full and free disclosure to the disciplinary board and cooperative attitude toward proceedings, character and reputation, absence of a dishonest or selfish motive and remorse. Additionally, the parties agreed respondent’s misconduct took place while she was experiencing personal and emotional problems. In connection with the consent petition, the parties produced current medical documentation to indicate these concerns have been stabilized with treatment and ongoing medical supervision, and that respondent is competent to engage in the practice law. For respondent’s professional misconduct, the parties propose a one year and one day suspension, fully deferred, followed by a two-year period of supervised probation with conditions.

_[¿Disciplinary Board Recommendation

Based on respondent’s admission of misconduct, the board determined respondent knowingly violated a duty owed to Mr. Smith by failing to return his file upon her discharge, and to her profession by failing to expedite litigation and to protect the Roberts firm’s interests in the James and Jackson matters.

Relying on jurisprudence from this court, the ABA’s Standards for Imposing Lawyer Sanctions and the mitigating factors cited in the consent petition, the board recommended the consent discipline be adopted.

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).

The record reveals that respondent failed to adequately protect the interest of a third party in two client matters and failed to return client property at the termination of the representation. The baseline sanction for such misconduct is a suspension.

In mitigation, we recognize several factors, including respondent’s lack of a prior disciplinary record and full cooperation with the ODC. Most significantly, we find respondent’s misconduct was not based on a dishonest or selfish motive. Rather, it stemmed in large part from her personal and emotional problems during the time period in question. The record demonstrates respondent has taken adequate steps to address these problems and prevent a reoccurrence of the misconduct in the future.

Under similar circumstances, we have held a fully-deferred suspension, combined with probation, is an adequate sanction. See, e.g., In re Laurent, 02-2163 (La.1/14/03), 835 So.2d 430 (six-month suspension, fully deferred, conditioned upon two-year probationary period imposed on attorney who commingled funds, where misconduct resulted from poor office management skills rather than from intentional or selfish motive); In re Lucas, 02-1624 (La.8/30/02), 825 So.2d 1090 (two-year | (¡suspension, fully deferred, conditioned upon two-year probationary period imposed on attorney who failed to properly disburse client or third party funds, where attorney promptly rectified consequences of his actions and had no dishonest or selfish motives); In re: Crooks, 00-1359 (La.6/23/00), 762 So.2d 1077 (one-year and one day suspension, fully deferred, conditioned upon a two-year probationary period imposed on attorney who misused trust account and failed to supervise his non-lawyer assistants, where there was little if any harm to clients and no dishonest or selfish motive). Such an approach gives the lawyer an opportunity to address the problems which caused the past misconduct, while at the same time protecting the public from future misconduct.

Accordingly, we will accept the petition for consent discipline, and impose a fully deferred suspension, subject to probation with conditions.

DECREE

Upon review of the findings and recommendation of the disciplinary board, and considering the record filed herein, it is ordered that Linda Marie Meyer, Louisiana Bar Roll No. 19060, be suspended from the practice of law for a period of one year and one day. It is further ordered that this suspension shall be fully deferred and respondent shall be placed on supervised probation for a period of two years, subject to the conditions set forth in the petition for consent discipline. Any violation of the conditions of probation or any other misconduct during the probationary period may be grounds for making the deferred portion of the suspension execu-tory, or imposing 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 |7interest to commence thirty days from the date of finality of this court’s judgment until paid.

TRAYLOR, J., dissents and would reject the consent discipline.

      . The parties propose the following probationary conditions:
      A. If the ODC determines, at the conclusion of the second year of probation monitoring, that an additional year of probation monitoring is required, respondent agrees in advance to that condition. If at the conclusion of the first year of probation the ODC determines that further probation is unnecessary, the ODC may notify respondent and the probation monitor of that fact, and the probation monitor may satisfactorily terminate the probation if he concurs.
      B. Respondent shall submit to whatever medical treatment is deemed appropriate by her treating physician and take all medications as prescribed by her physician. She will execute a waiver in favor of the ODC permitting her treating physician to provide the ODC with quarterly reports on respondent’s condition and treatment. Respondent shall pay her physician’s fees for the preparation and rendering of said quarterly reports. Any failure of respondent to do so will be a violation of her probation. Any failure of respondent to timely request said quarterly report from the physician shall be considered a violation of respondent’s probation. In the event that ODC has to subpoena respondent and/or her physician to obtain a report, respondent agrees to immediately pay all costs attendant thereto. Her failure to do so shall constitute a violation of her probation.
      C. Respondent may participate in hearings on motions, rules and any other preliminary court proceedings. She may assist lead counsel at trials on the merits during the period of probation, but she shall not participate as lead counsel in any trials, nor shall she appear at trial unaccompanied by lead counsel.
      D. Each individual case respondent retains shall be by either a contingency fee contract or an engagement letter. If the engagement is on an hourly basis, then time records shall be completed.
      E. Respondent’s probation monitor shall submit a report to the ODC on a quarterly basis outlining the client names and descriptions of any new cases undertaken, including the names of lead counsel in any cases which went to trial.
      F. Respondent shall continue to comply with the mandatory continuing legal education requirements of the Louisiana State Bar Association.
      G. Respondent shall pay all costs of these disciplinary proceedings.

        H. Respondent shall provide full and com-píete cooperation to the ODC.


author: JjPER CURIAM.

text:
    In re Karl Jan KIRCHBERG.
    No. 2003-B-0957.
    Supreme Court of Louisiana.
    Sept. 26, 2003.
   ATTORNEY DISCIPLINARY PROCEEDINGS

JjPER CURIAM.

This disciplinary matter arises from one count of formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Karl J. Kirchberg, an attorney licensed to practice law in Louisiana, but currently on interim suspension.

UNDERLYING FACTS

On June 29, 2000, the United States Attorney for the Eastern District of Louisiana filed a bill of information against respondent, charging him with one count of violating 18 U.S.C. § 1341, mail fraud, in the amount of at least $40,000. According to the bill of information, during a 3^-year period between January 1996 and August 1999, respondent used persons known as “runners” to solicit personal injury clients for his law practice. Respondent paid the runners approximately $200 in cash per client referred. As a means to defray the cost of paying the runners, respondent entered into an arrangement with certain medical providers whereby the medical providers paid respondent a sum of money in exchange for respondent’s referral of his clients to the providers for medical treatment. Respondent did not disclose to his clients that he had received these “kickback” payments from the medical providers, and the clients did not share in nor were they offered a share in the kickback proceeds. Likewise, respondent did not disclose to any insurance | ¡.companies that he had used runners to solicit clients, nor did he disclose the kickback arrangement with the medical providers, thereby making it less likely that the insurers would question the validity or the amount of the claims submitted to them.

On August 23, 2000, respondent pleaded guilty to mail fraud as charged in the bill of information, a felony under federal law. The factual basis for respondent’s guilty plea, which is signed by two Assistant United States Attorneys and respondent and his counsel of record, states that were the matter brought to trial, the United States would prove the following beyond a reasonable doubt:

Karl J. Kirchberg was an attorney licensed to practice law in the State of Louisiana. Beginning on or about January 11, 1996, and continuing to on or about August 19, 1999, Karl J. Kirch-berg in connection with his law practice used individuals known as “runners” to solicit personal injury clients for his law practice. The runners were paid approximately between $200.00 and $500.00 cash per client referred.
At some later date, and as a means to partially defray the cost of the runners, Kirchberg entered into an arrangement with certain medical providers pursuant to which those medical providers would pay Kirchberg an amount in exchange for a client of Mr. Kirchberg that saw the medical provider for treatment. These medical provider payments to Kirchberg were not disclosed to the clients who saw the medical provider for treatment and the client was not credited with the amount of the proceeds Kirchberg received from the medical provider. Kirchberg also did not disclose to any insurance company that may be liable to Kirchberg’s client for indemnity that he had received the case by means of solicitation with the assistance of a runner. Likewise, Kirchberg did not disclose that in certain cases he had received a payment from the medical provider in connection with a case, with the knowledge and intent that such a disclosure would have made it more likely that the client may have questioned the amount they received in settlement or that an affected insurance company may have questioned the amount paid in settlement. These non-disclosures, considered as a whole, effected a fraud as described hereinabove. To carry out the conduct described above, Kirchberg caused settlement statements and checks issued in 1 ^connection with personal injury settlements to be mailed through the United States Postal Service during the relevant time period.

On January 18, 2001, the district court sentenced respondent to serve four months in a halfway house, followed by three years of supervised release. Respondent was also fined $20,000.

DISCIPLINARY PROCEEDINGS

On October 4, 2000, we placed respondent on interim suspension based upon his conviction of a serious crime and ordered that disciplinary proceedings be instituted. In re: Kirchberg, 00-2699 (La.10/4/00), 769 So.2d 1179. Thereafter, respondent and the ODC filed a petition for consent discipline in this court, proposing that respondent be disbarred. On September 21, 2001, we rejected the proposed consent discipline and remanded the case for further proceedings, with the instruction that the hearing committee and disciplinary board “may consider recommendation of the sanction of permanent disbarment, if appropriate, pursuant to Supreme Court Rule XIX, § 10(a) and § 24, as amended effective August 1, 2001.” In re: Kirchberg, 01-1935 (La.9/21/01), 794 So.2d 774.

On remand, the ODC filed one count of formal charges against respondent, alleging that his conviction constituted a violation of Rule 8.4(b) (commission of a criminal act reflecting adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer) of the Louisiana Rules of Professional Conduct. Respondent answered the formal charges and admitted his conviction, but denied that permanent disbarment is appropriate in this case.

\ ¿Hearing Committee Recommendation

Based on the record of the federal criminal proceedings, the hearing committee found respondent admitted to having paid runners to solicit personal injury clients and to having entered into an arrangement with medical providers whereby he was paid for referring clients to the medical provider for treatment. Finding such conduct fits Guideline 6 of the permanent disbarment guidelines set forth in Appendix E to the Rules of Lawyer Disciplinary Enforcement, the committee recommended he be permanently disbarred.

Neither respondent nor the ODC filed an objection to the hearing committee’s recommendation.

Disciplinary Board Recommendation

After reviewing the record, the disciplinary board found respondent violated Rule 8.4(b) of the Rules of Professional Conduct as evidenced by his felony conviction for mail fraud, runner-based solicitation, and illegal payments from physicians. The board found respondent intentionally violated duties owed to the public, causing serious injury to the public’s perception of the legal profession and those who practice it. The board concluded disbarment is the baseline sanction for respondent’s misconduct.

In aggravation, the board recognized respondent’s prior disciplinary offenses, dishonest or selfish motive, refusal to acknowledge the wrongful nature of the conduct, substantial experience in the practice of law (admitted 1961), and illegal | .^conduct. The only mitigating factor found by the board is the imposition of other penalties or sanctions.

The board agreed with the hearing committee that Guideline 6 of the permanent disbarment guidelines is applicable to respondent’s conduct. Specifically, the board found respondent’s guilty plea encompasses fraud and runner-based solicitation. Accordingly, the board recommended respondent be permanently disbarred. The board also 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 filed a timely objection to the disciplinary board’s recommendation.

DISCUSSION

Bar disciplinary matters come within the original jurisdiction of this court. La. Const, art. V, § 5(B). When the disciplinary proceedings involve an attorney who has been convicted of a crime, the conviction is conclusive evidence of guilt and the sole issue presented is whether respondent’s crimes warrant discipline, and if so, the extent thereof. Supreme Court Rule XIX, § 19(E); In re: Boudreau, 02-0007 (La.4/12/02), 815 So.2d 76; Louisiana State Bar Ass’n v. Wilkinson, 562 So.2d 902 (La.1990). The discipline to be imposed depends on the seriousness of the offense and the extent of the aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Perez, 550 So.2d 188 (La.1989).

Respondent was convicted of one count of mail fraud, a felony, in violation of 18 U.S.C. § 1341. The record before us demonstrates that respondent engaged in a pattern of fraudulent and deceitful conduct spanning a period of more than three years. |fiWe have not hesitated to disbar attorneys convicted of similar crimes. See, e.g., In re: Nevitte, 02-1962 (La.9/30/02), 827 So.2d 1135 (conspiracy to commit bank fraud and mail fraud); In re: Schneider, 97-2457 (La.1/30/98), 707 So.2d 38 (mail fraud, conspiracy to commit mail fraud, intentionally submitting false statements to a banking institution, and tax fraud); In re: Naccari, 97-1546 (La.12/19/97), 705 So.2d 734 (wire fraud); In re: King, 94-0686 (La.11/30/94), 646 So.2d 326 (aiding and abetting mad fraud). Numerous aggravating factors are present, including prior disciplinary offenses, dishonest or selfish motive, refusal to acknowledge the wrongful nature of the conduct, substantial experience in the practice of law, and illegal conduct. Under these circumstances, we conclude disbarment is unquestionably the proper sanction.

The sole remaining issue presented for our consideration is whether respondent’s conduct is so egregious that he should be permanently prohibited from being readmitted to the practice of law.

In Appendix E to Supreme Court Rule XIX, we set forth guidelines illustrating the types of conduct which might warrant permanent disbarment. While these guidelines are not intended to bind this court in its decision-making process, they present useful examples of the types of conduct we might consider worthy of permanent disbarment. Guideline 6 provides as follows:

The following guidelines illustrate the types of conduct which might warrant permanent disbarment....
GUIDELINE 6. Insurance fraud, including but not limited to staged accidents or widespread runner-based solicitation.

Respondent maintains this guideline does not apply to him, as he was convicted of mail fraud, not insurance fraud. However, as explained above, the guidelines are illustrative in nature and do not constitute an exclusive list of conduct for which an attorney may be permanently disbarred. Moreover, in assessing discipline in the case |7of an attorney who has been convicted of a crime, we have often looked beyond the title of the offense to the facts of the conviction to determine the appropriate sanction. For example, in In re: Huckaby, 96-2643 (La.5/20/97), 694 So.2d 906, the attorney was convicted of one count of misdemeanor failure to file his federal tax return for 1987. However, the record demonstrated the attorney had also failed to file his tax returns in a prompt fashion for twelve other years. We concluded these facts evidenced a pattern of misconduct and dishonest motive, justifying a more serious disciplinary sanction than might ordinarily be imposed for a single misdemeanor conviction.

In the same way, the underlying facts of respondent’s conviction demonstrate his conduct represents a very serious ethical breach. Respondent admitted that he paid runners to solicit personal injury clients for his law practice and that he received illegal payments from medical providers in exchange for referring his clients to the providers for medical treatment. Respondent did not disclose to any insurance companies involved in his clients’ personal injury cases that he had used runners to solicit the clients, nor did he disclose the arrangement with the medical providers, thereby making it less likely that the insurers would question the validity or the amount of the claims submitted to them. This conduct is precisely the type of reprehensible conduct we sought to address in Guideline 6.

In the final analysis, we must conclude respondent’s willful attempt to corrupt the administration of justice convincingly demonstrates his lack of good moral character and fitness to practice law in this state. Given this indisputable evidence of a fundamental lack of moral fitness, we can conceive of no circumstance under which we would grant readmission to respondent. Accordingly, he must be permanently disbarred.

| «DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that the name of Karl Jan Kirchberg, Louisiana Bar Roll number 7414, be stricken from the roll of attorneys and that his license to practice law in the State of Louisiana be revoked. Pursuant to Supreme Court Rule XIX, § 24(A), it is further ordered that respondent be permanently prohibited from being readmitted to the practice of law in this state. 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.

      . In a brief filed in this court, respondent described his arrangement with the medical providers as merely “discounting" medical bills.

      . Guideline 6 provides that “Insurance fraud, including but not limited to staged accidents or widespread runner-based solicitation,” is a ground for permanent disbarment.

      . Respondent was admonished by the disciplinary board in 1998 for providing financial assistance to a client (98-ADB-026). He also received a formal private reprimand in 1987, though the nature of the underlying violation is not clear from the record.


author: | .PER CURIAM.

text:
    In re Gerald A. ROME.
    Nos. 2001-B-2942, 2003-B-0744.
    Supreme Court of Louisiana.
    Sept. 26, 2003.
   ATTORNEY DISCIPLINARY PROCEEDINGS

| .PER CURIAM.

These consolidated disciplinary matters arise from two sets of formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Gerald A. Rome, an attorney licensed to practice law in the State of Louisiana, but currently on interim suspension. For the reasons assigned, we now permanently disbar respondent.

UNDERLYING FACTS AND PROCEDURAL HISTORY

Ol-B-2942

Facts

On January 6, 1999, respondent entered a guilty plea to the offense of driving while intoxicated, a violation of La. R.S. 14:98. During the course of the ODC’s disciplinary investigation into the matter, respondent promised that he would “become actively involved with the Lawyers Assistance Program, sign a contract of sobriety with them and honor the terms of the contract.” Relying on these representations, the ODC recommended an admonition be imposed in the disciplinary matter. On October 21, 1999, the disciplinary board rendered an order in 99-ADB-062 admonishing respondent for his violation of Rule 8.4(b) (commission of a criminal act reflecting adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer) of the | ¡.Louisiana Rules of Professional Conduct, and requiring him to pay $848 as the costs of the proceedings. Respondent subsequently failed to enroll in LAP, and he failed to pay the outstanding disciplinary costs assessed to him.

Formal Charges

The ODC filed one count of formal charges against respondent, alleging his conduct violated the following Rules of Professional Conduct: Rules 3.3(a)(1) (making a false statement of material fact or law to a tribunal), 3.4(c) (knowing disobedience of an obligation under the rules of a tribunal), 4.1(a) (making a false statement of material fact or law to a third person), 8.1(a) (making a false statement of material fact in connection with a disciplinary matter), 8.1(c) (failure to cooperate with the ODC in its investigation), 8.4(a) (violation of the Rules of Professional Conduct), 8.4(b), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), 8.4(d) (engaging in conduct prejudicial to the administration of justice), and 8.4(g) (failure to cooperate with the ODC in its investigation).

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. Respondent filed nothing for the hearing committee’s consideration.

Recommendation of the Hearing Committee

Based on the deemed admitted facts and the documentary evidence, the hearing committee determined that the ODC had proven by clear and convincing evidence | ¿violations of Rules 8.1(a), 8.1(c), 8.4(a), 8.4(c), 8.4(d), and 8.4(g). However, the committee found no violations of Rules 3.3(a)(1) or 3.4(c), reasoning that these provisions require the involvement of a tribunal and respondent’s statements and representations to the ODC did not qualify. The committee also found no violation of Rule 4.1(a) because respondent’s actions did not occur in the course of a client representation. Finally, the committee concluded that because respondent had already been disciplined for his criminal misconduct (ie., the imposition of the admonition in his previous disciplinary proceeding), no violation of Rule 8.4(b) occurred in this case.

In addressing the issue of sanctions, the healing committee recognized respondent’s conduct violated duties owed to the legal system and the legal profession. It noted the presence of a prior disciplinary offense as an aggravating factor. Based on these considerations, the hearing committee recommended that respondent be suspended from the practice of law for one year and one day, to be fully deferred upon respondent’s compliance with certain conditions.

Recommendation of the Disciplinary Board

The disciplinary board concluded the hearing committee’s findings of fact were not manifestly erroneous. Applying the Rules of Professional Conduct, the board determined the formal charges were proven by clear and convincing evidence, with the exception of Rules 3.3(a)(1), 4.1(a), 8.1(a), 8.4(b), and 8.4(c). The board concluded that respondent’s failure to abide by the conditions of the prior admonition did not necessarily establish that respondent knowingly made false statements or engaged in dishonest conduct. Furthermore, the board agreed with the hearing committee that | respondent did not violate Rule 8.4(b) because he had already been sanctioned for the DWI conviction.

The board noted respondent violated duties owed to the legal system and as a professional. It determined his knowing, if not intentional, misconduct demonstrated his lack of respect for the disciplinary system and the disciplinary board. The board found respondent’s actions damaged the reputation of the profession, and wasted the disciplinary system’s time and resources to obtain meaningless promises.

The board found no mitigating factors are present, and recognized respondent’s prior disciplinary record and failure to cooperate as aggravating factors. Relying on the ABA’s Standards for Imposing Lawyer Sanctions and the prior jurisprudence of this court, the board recommended that respondent be suspended from the practice of law for six months. However, it proposed the suspension be fully deferred if respondent enrolled in and completed the LAP and paid the prior disciplinary assessment within 30 days of the final judgment. It further proposed respondent be assessed with the costs and expenses of the instant proceedings.

The ODC filed an objection in this court to the disciplinary board’s recommendation. Accordingly, the matter was docketed for briefing and argument in accordance with Supreme Court Rule XIX, § 11(G)(1)(b). However, as explained in more detail later in this opinion, the ODC ultimately withdrew its objection.

03-B-0744

Facts

On February 14, 2002, shortly before oral argument was to take place in 01-B-2942, respondent entered a plea of guilty in the 29th Judicial District Court for the Parish of St. Charles to one count of malfeasance in office, a felony, in violation of La. IrR.S. 14:134(2). The criminal offense was committed while respondent was employed as an Assistant District Attorney for St. Charles Parish, and involved the conversion of funds he received from the public for payment of traffic fines. The investigation of the matter revealed that as part of his regular duties with the District Attorney’s Office, respondent would often act as the “duty assistant,” responding to inquiries from members of the public concerning notices to appear in court, traffic citations, and the like. During respondent’s employment, there was at all times an office policy in effect prohibiting Assistant District Attorneys from accepting payments from offenders in connection with any offense, and a policy that no payments for traffic fines or court costs were to be made to the District Attorney’s Office. Nevertheless, on six to eight occasions, respondent accepted cash from individuals in payment of outstanding traffic fines and/or court costs. Respondent kept these funds for himself, totaling approximately $3,000, and did not remit the payments to the appropriate authority.

For his crime, respondent was sentenced to serve three years in prison, suspended, and placed on three years active probation. He was fined $5,000 and ordered to make restitution of $3,000; however, the fine and restitution were converted to 100 weeks of community service at the rate of one eight-hour day per week. Respondent was also ordered to satisfactorily complete treatment for substance abuse and addictive disorders; was ordered to refrain from consuming alcohol and to avoid any gambling venues; to attend Gamblers Anonymous for one year; and to attend family/group therapy.

| (¡Following the guilty plea, respondent and the ODC filed a joint motion for interim suspension, which we granted on February 20, 2002. In re: Rome, 02-0551 (La.2/20/02), 811 So.2d 874. Meanwhile, we deferred action on Ol-B-2942 pending further proceedings against respondent.

Formal Charges

After investigation, the ODC filed one count of formal charges against respondent arising out of his conviction. The ODC alleged that respondent’s conduct violated numerous provisions of the Louisiana Rules of Professional Conduct, including Rules 8.4(a) (violation of the Rules of Professional Conduct), 8.4(b) (commission of a criminal act reflecting adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer), 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) (conduct prejudicial to the administration of justice).

Respondent failed to answer or otherwise reply to the formal charges. Accordingly, the factual allegations contained therein were deemed admitted and 17proven 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. Respondent filed nothing for the hearing committee’s consideration.

In its submission, the ODC argued that respondent was a corrupt assistant district attorney whose conduct struck at the heart of the criminal justice system, causing injury to the State of Louisiana, the public, the legal system, and the profession. The ODC suggested disbarment is the baseline sanction for respondent’s misconduct, pursuant to the ABA’s Standards for Imposing Lawyer Sanctions. The ODC pointed out that several aggravating factors are present in this case, including dishonest or-selfish motive, pattern of misconduct, multiple offenses, vulnerability of the victim, substantial experience in the practice of law (admitted 1991), indifference to making court-ordered restitution, and illegal conduct. In mitigation, the ODC suggested respondent’s chemical dependency may be an applicable factor, as well as the imposition of other penalties or sanctions and respondent’s expression of remorse during sentencing in the criminal case. Notwithstanding the mitigating factors, the ODC concluded there is no reason to deviate below the baseline sanction of disbarment, and urged the committee to consider permanent disbarment.

Recommendation of the Hearing Committee

The hearing committee found the factual allegations of the formal charges were deemed admitted and proven by clear and convincing evidence pursuant to Rule XIX, § 11(E)(3). The committee also generally agreed that respondent violated the Rules of Professional Conduct as charged. The committee adopted the aggravating factors cited by the ODC, with the exception of indifference to making restitution. In | ^mitigation, the committee recognized the imposition of other penalties or sanctions and respondent’s expression of remorse for his misconduct. Based on all these factors, the committee recommended that respondent be disbarred.

The ODC filed an objection to the hearing committee’s failure to recommend permanent disbarment.

Recommendation of the Disciplinary Board

After reviewing this matter, the disciplinary board found the formal charges were deemed admitted and proven by clear and convincing evidence pursuant to Rule XIX, § 11(E)(8). The board also generally agreed that respondent violated the Rules of Professional Conduct as charged. The board determined respondent violated duties owed to his client, to the legal system, to the public, and as a professional. The board further determined that respondent’s conduct was intentional and caused actual harm. The baseline sanction for this conduct is disbarment.

The board concurred in the aggravating and mitigating factors cited by the committee, and recognized the additional aggravating factor of prior discipline.

In light of these considerations, the ABA’s Standards for Imposing Lawyer Sanctions, and the prior jurisprudence, the board concluded that permanent disbarment is appropriate. The board also 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 filed an objection to the disciplinary board’s recommendation. Additionally, the ODC filed a motion to withdraw its objection in Ol-B-2942 and to consolidate the two matters.

| .DISCUSSION

Although respondent’s actions in Ol-B-2942 are troubling, it is clear the most serious charges are those in 03-B-0744 arising from his conviction of malfeasance in office while he was an assistant district attorney. When the disciplinary proceedings involve an attorney who has been convicted of a crime, the conviction is conclusive evidence of guilt and the sole issue presented is whether respondent’s crimes warrant discipline and, if so, the extent thereof. Supreme Court Rule XIX, § 19(E); In re: Boudreau, 02-0007 (La.4/12/02), 815 So.2d 76; Louisiana State Bar Ass’n v. Wilkinson, 562 So.2d 902 (La.1990). The discipline to be imposed depends on the seriousness of the offense and the extent of the aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Perez, 550 So.2d 188 (La.1989).

Clearly, malfeasance in office while serving as an assistant district attorney is among the most serious misconduct an attorney can commit. It requires no citation of authority to conclude the baseline sanction for such misconduct is unquestionably disbarment. While we accept the mitigating factors found by the hearing committee, we find these mitigating factors are insufficient to justify any lesser sanction. Thus, the sole remaining question is whether respondent’s conduct is so egregious that he should be permanently prohibited from seeking readmission to the practice of law.

In Appendix E to Supreme Court Rule XIX, we set forth guidelines illustrating the types of conduct which might warrant permanent disbarment. While these guidelines are not intended to bind this court in its decision-making process, they present useful information concerning the types of conduct we might consider worthy of permanent disbarment. In Guideline 7, we referred to an attorney’s “malfeasance in office which results in a felony conviction, and which involves fraud.”

l1ftThe undisputed facts demonstrate respondent’s conduct falls within the scope of this guideline. While employed by the State of Louisiana as an assistant district attorney, respondent received funds from members of the public in payment of traffic fines and court costs (conduct which itself violated the policies of the St. Charles Parish District Attorney’s Office) and then intentionally converted these funds to his own use. In addition to constituting malfeasance in office, respondent’s actions involved fraud.

We do not lightly impose the sanction of permanent disbarment. In re: Morphis, 01-2803 (La.12/4/02), 831 So.2d 934. Nonetheless, we are firmly convinced that we would be remiss in our constitutional duty to regulate the practice of law if we did not impose that sanction here. This court cannot and will not tolerate such conduct by an attorney, particularly one who occupies a position of public trust. Respondent’s actions convincingly demonstrate he does not possess the requisite moral fitness to practice law in this state. He must be permanently disbarred.

Accordingly, we will accept the disciplinary board’s recommendation and impose permanent disbarment.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that the name of Gerald Anthony Rome, Louisiana Bar Roll number 20601, be stricken from the roll of attorneys and that his license to practice law in the State of Louisiana be revoked. Pursuant to Supreme Court Rule XIX, § 24(A), it is further ordered that respondent be permanently prohibited from being readmitted to the practice of law in this state. All costs and expenses in the matter are assessed against respondent in accordance In 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.

      . In addition to the admonition arising from his DWI conviction, respondent was admonished in 1997 for failing to cooperate with the ODC in a disciplinary investigation (97-ADB-040).

      . Such payments were required to be made at the Bonds and Fines Department of the St. Charles Parish Sheriffs Office.

      . The bill of information filed against respondent charges that the offense occurred during the period January 1, 2001 through April 19, 2001.

      . The formal charges allege that respondent’s conduct resulting in the criminal conviction violated Rules 8.4(a)-(d) of the Rules of Professional Conduct, as well as the following additional provisions: Rules 1.2(a) (scope of the representation) (because respondent "exceeded his client’s authority as to his responsibilities and objectives in representing his client, the State of Louisiana”); 1.3 (failure to act with reasonable diligence and promptness in representing a client) (because respondent failed to promptly turn over the funds he received in payment of traffic fines); 1.8(b) (prohibited transactions between a lawyer and client) (when respondent received funds in payment of traffic fines, "he obtained information involving his client’s interest, and without his client’s consent used that information to the disadvantage of his client”); 1.15 (safekeeping property of a client or third person) (because respondent failed to promptly turn over the funds he received in payment of traffic fines); 4.1(a) (making a false statement of material fact or law to a third person) (because respondent accepted funds from members of the public for the purpose of paying fines, when he "fully intended to pocket that money for his own use”); 4.1(b) (failing to disclose a material fact to a third person) (because respondent failed to disclose that he was not the proper individual to accept payment of traffic fines); and 4.3 (dealing with unrepresented persons) (because respondent received funds from members of the public in payment of traffic fines, leading those persons “to believe that this would constitute payment of the fine”). We find this represents gross "overcharging” on the part of the ODC, given that the "heartland” of respondent’s misconduct is his conviction of the criminal offense of malfeasance in office.


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    In re Floyd M. GIBSON.
    No. 2003-B-0582.
    Supreme Court of Louisiana.
    Sept. 26, 2003.
   ATTORNEY DISCIPLINARY PROCEEDINGS

JjPER CURIAM.

This disciplinary matter arises from nineteen counts of formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Floyd M. Gibson. Respondent was disbarred by this court in 2000. In re: Gibson, 00-2658 (La.11/27/00), 773 So.2d 691 (“Gibson /”). For the reasons assigned, we now permanently disbar respondent.

FORMAL CHARGES

Count I — The Weiner Matter

On June 29, 1999, Jessica Weiner retained respondent to represent her in a criminal matter. On July 1, 1999, Ms. Weiner paid respondent $4,000. On July 2,1999, Ms. Weiner decided to retain other counsel, who informed respondent of their representation the same day. Though he had performed no services on his client’s behalf, respondent failed to promptly refund the legal fee he was paid.

On July 15, 1999, Ms. Weiner filed a complaint against respondent with the ODC. On August 2, 1999, the ODC forwarded a copy of the complaint to respondent by certified mail. Respondent failed to timely reply to the complaint, necessitating the issuance of a subpoena to compel his response.

The ODC alleges that respondent’s conduct in this matter violates the following provisions of the Louisiana Rules of Professional Conduct: Rules 1.3 (failure to act | ¡.with diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.5 (fee arrangements), 1.16(d) (termination of the representation), 8.1(c) (failure to cooperate with the ODC in its investigation), 8.4(a) (violation of the Rules of Professional Conduct), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), 8.4(d) (engaging in conduct prejudicial to the administration of justice), and 8.4(g) (failure to cooperate with the ODC in its investigation).

Count II — The Hudson Matter

On January 23, 1996, Thebia Hudson paid respondent $300 to handle a criminal matter on her behalf. Respondent failed to complete the representation and failed to communicate with his client concerning the matter. He also failed to account for any earned portion of the legal fee and failed to refund the unearned portion of the fee.

In December 1999, Ms. Hudson filed a complaint against respondent with the ODC. On January 12, 2000, the ODC forwarded a copy of the complaint to respondent by certified mail. Respondent failed to reply to the complaint. The ODC thereafter served respondent with a subpoena compelling him to appear and answer the complaint under oath. Respondent failed to appear.

The ODC alleges that respondent’s conduct in this matter violates the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.5, 1.16(d), 8.1(c), 8.4(a), 8.4(c), and 8.4(g).

Count III — The Gaudet/'Chenier Matter

Keith Gaudet and Keith Chenier were arrested in New Orleans on December 30, 1999. On January 2, 2000, respondent visited the men in jail and solicited their | ¡¡representation. Respondent also sought and obtained permission from the men to withdraw $15,000 in cash from their bank safety deposit box, and he did so on January 4, 2000. On January 12, 2000, respondent visited Mr. Gaudet in jail, at which time he terminated respondent’s representation. Mr. Gaudet also requested that respondent return the $15,000 he had received a week earlier. Respondent returned $10,000 to Mr. Gaudet on February 1, 2000, but though he had done little work in the criminal matter, claimed the remaining $5,000 was his legal fee. Respondent has failed to account for any earned portion of the legal fee and failed to refund the unearned portion of the fee.

On January 18, 2000, Mr. Gaudet and Mr. Chenier filed a complaint against respondent with the ODC. On February 3, 2000, the ODC forwarded a copy of the complaint to respondent by certified mail. Respondent faded to reply to the complaint. The ODC thereafter served respondent with a subpoena compelling him to appear and answer the complaint under oath. Respondent failed to appear.

The ODC alleges that respondent’s conduct in this matter violates the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.5, 1.16(d), 7.2 (direct contact with prospective clients), 8.1(c), 8.4(a), 8.4(b) (commission of a criminal act reflecting adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer), 8.4(c), 8.4(d), and 8.4(g).

\ ¿Count IV — The Cefdlu-Pfajf Matter

In February 1999, Christine Cefalu-Pfaff paid respondent $400 to represent her husband, Walter Pfaff, in a criminal matter. Respondent failed to complete the representation and failed to communicate with his client concerning the matter. He also failed to account for any earned portion of the legal fee and failed to refund the unearned portion of the fee.

In January 2000, Ms. Cefalu-Pfaff filed a complaint against respondent with the ODC. On February 9, 2000, the ODC forwarded a copy of the complaint to respondent by certified mail. Respondent failed to reply to the complaint. The ODC thereafter served respondent with a subpoena compelling him to appear and answer the complaint under oath. Respondent failed to appear.

The ODC alleges that respondent’s conduct in this matter violates the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.5, 1.16(d), 8.1(c), 8.4(a), 8.4(d), and 8.4(g).

Count V — The Battle Matter

Larry Battle filed a complaint against respondent with the ODC in February 2000. On March 14, 2000, the ODC forwarded a copy of the complaint to respondent by certified mail. Respondent failed to reply to the complaint. The ODC thereafter served respondent with a subpoena compelling him to appear and answer the complaint under oath. Respondent failed to appear.

The ODC alleges that respondent’s conduct in this matter violates the following provisions of the Rules of Professional Conduct: Rules 8.1(c), 8.4(a), and 8.4(g).

| ¡¡Count VI — The Ussin Matter

In February 2000, Karen Ussin paid respondent $200 to represent her son, Allen Ussin, in a criminal matter. Respondent failed to complete the representation and failed to communicate with his client concerning the matter. Respondent also failed to account for any earned portion of the legal fee and failed to refund the unearned portion of the fee.

In March 2000, Ms. Ussin filed a complaint against respondent with the ODC. On April 10, 2000, the ODC forwarded a copy of the complaint to respondent by certified mail. Respondent failed to reply to the complaint. The ODC thereafter served respondent with a subpoena compelling him to appear and answer the complaint under oath. Respondent failed to appear.

The ODC alleges that respondent’s conduct in this matter violates the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.16(d), 8.1(c), 8.4(a), 8.4(d), and 8.4(g).

Count VII — The Francis Matter

In August 1996, Lona Francis retained respondent to obtain a divorce on her behalf. Ms. Francis paid respondent $50 on August 3, 1996 and $100 on December 31, 1997. However, respondent failed to complete the representation. He also failed to account for any earned portion of the legal fee and failed to refund the unearned portion of the fee.

In April 2000, Ms. Ussin filed a complaint against respondent with the ODC. On April 25, 2000, the ODC forwarded a copy of the complaint to respondent by certified-mail. Respondent failed to reply to the complaint. The ODC thereafter ^served respondent with a subpoena compelling him to appear and answer the complaint under oath. Respondent failed to appear.

The ODC alleges that respondent’s conduct in this matter violates the following provisions of the Rules of Professional Conduct: Rules 1.8, 1.5(f), 1.16(d), 8.1(c), 8.4(a), and 8.4(g).

Count VIII — The Minor Matter

On January 31, 2000, Willie May Minor paid respondent $7,166 to represent her son, Alvin Green, in a criminal matter. Respondent failed to complete the representation, failed to account for any earned portion of the legal fee, and failed to refund the unearned portion of the fee.

In April 2000, Ms. Minor filed a complaint against respondent with the ODC. On April 25, 2000, the ODC forwarded a copy of the complaint to respondent by certified mail. Respondent failed to reply to the complaint. The ODC thereafter served respondent with a subpoena compelling him to appear and answer the complaint under oath. Respondent failed to appear.

The ODC alleges that respondent’s conduct in this matter violates the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.5(f), 1.16(d), 8.1(c), 8.4(a), and 8.4(g).

Count IX — The Smith Matter

In April 1996, Patricia Smith retained respondent to obtain a divorce on her behalf. Ms. Smith paid respondent $290 on April 4, 1996 and an additional $200 on October 23, 1997. However, respondent failed to complete the representation. He 17also failed to account for any earned portion of the legal fee and failed to refund the unearned portion of the fee.

In June 2000, Ms. Smith filed a complaint against respondent with the ODC. On July 13, 2000, the ODC forwarded a copy of the complaint to respondent by certified mail. Respondent failed to reply to the complaint. The ODC thereafter served respondent with a subpoena compelling him to appear and answer the complaint under oath. Respondent failed to appear.

The ODC alleges that respondent’s conduct in this matter violates the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.5(f), 1.16(d), 8.1(c), 8.4(a), and 8.4(g).

Count X — The Harrell Matter

Darryl Harrell filed a complaint against respondent with the ODC in July 2000. On August 1, 2000, the ODC forwarded a copy of the complaint to respondent by certified mail. Respondent failed to reply to the complaint. The ODC thereafter served respondent with a subpoena compelling him to appear and answer the complaint under oath. Respondent failed to appear.

The ODC alleges that respondent’s conduct in this matter violates the following provisions of the Rules of Professional Conduct: Rules 8.1(c), 8.4(a), and 8.4(g).

| sCount XI — The Webber Matter

In December 1997, Richard Webber retained respondent to represent him in a criminal matter. Respondent represented Mr. Webber at trial and filed an appeal on his behalf after he was found guilty. The court of appeal affirmed Mr. Webber’s conviction and sentence. State v. Webber, 99-23 (La.App. 5th Cir.7/27/99), 742 So.2d 952. However, Mr. Webber was unaware that respondent had filed the appeal in the first instance, and respondent never informed his client of the court of appeal’s ruling. Furthermore, respondent failed to turn over to Mr. Webber the trial and sentencing transcripts he used to prepare the appeal, thereby hindering Mr. Web-ber’s efforts in filing an application for post-conviction relief.

In July 2000, Mr. Webber filed a complaint against respondent with the ODC. On August 18, 2000, the ODC forwarded a copy of the complaint to respondent by certified mail. Respondent failed to reply to the complaint. The ODC thereafter served respondent with a subpoena compelling him to appear and answer the complaint under oath. Respondent failed to appear.

The ODC alleges that respondent’s conduct in this matter violates the following, provisions of the Rules of Professional Conduct: Rules 1.4, 8.1(c), 8.4(a), 8.4(d), and 8.4(g).

Count XII — The Armbruster/Pucel Matter

In March 2000, respondent was paid $1,200 to represent Louise Armbruster and Larry Pucel in a criminal matter. Respondent failed to complete the representation and failed to communicate with his clients concerning the matter. He also failed to account |9for any earned portion of the legal fee and failed to refund the unearned portion of the fee.

In July 2000, Ms. Armbruster filed a complaint against respondent with the ODC. On August 29, 2000, the ODC forwarded a copy of the complaint to respondent by certified mail. Respondent failed to reply to the complaint. The ODC thereafter served respondent with a subpoena compelling him to appear and answer the complaint under oath. Respondent failed to appear.

The ODC alleges that respondent’s conduct in this matter violates the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.5(f), 8.1(c), 8.4(a), and 8.4(g).

Count XIII — The Price Matter

On September 10, 2000, Julie Ann Price paid respondent $400 to represent Jamaal Morris in a criminal matter. Respondent failed to complete the representation and failed to communicate with his client concerning the matter. He also failed to account for any earned portion of the legal fee and failed to refund the unearned portion of the fee.

On September 22, 2000, Ms. Price filed a complaint against respondent with the ODC. On October 6, 2000, the ODC forwarded a copy of the complaint to respondent by certified mail. Respondent failed to reply to the complaint. The ODC thereafter served respondent with a subpoena compelling him to appear and answer the complaint under oath. Respondent failed to appear.

|1f)The ODC alleges that respondent’s conduct in this matter violates the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.5(f), 1.16(d), 8.1(c), 8.4(a), and 8.4(g).

Count XIV — The Davis Matter

In October 2000, Ruth Davis paid respondent $250 to represent her son, Tyrone Rogers, in a criminal matter. Respondent faded to complete the representation and failed to communicate with his client concerning the matter. He also failed to account for any earned portion of the legal fee and failed to refund the unearned portion of the fee.

In November 2000, Ms. Davis filed a complaint against respondent with the ODC. On November 29, 2000, the ODC forwarded a copy of the complaint to respondent by certified mail. Respondent failed to reply to the complaint. The ODC thereafter served respondent with a subpoena compelling him to appear and answer the complaint under oath. Respondent failed to appear.

The ODC alleges that respondent’s conduct in this matter violates the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.5(f), 1.16(d), 8.1(c), 8.4(a), and 8.4(g).

Count XV— The Hughes Matter

On September 1, 2000, Freddie L. Hughes, Jr. paid respondent $500 to represent his son, Terrance Brown, in a criminal matter. Respondent failed to complete the representation and failed to communicate with his client concerning the Inmatter. He also failed to account for any earned portion of the legal fee and failed to refund the unearned portion of the fee.

In November 2000, Mr. Hughes filed a complaint against respondent with the ODC. On December 6, 2000, the ODC forwarded a copy of the complaint to respondent by certified mail. Respondent failed to reply to the complaint. The ODC thereafter served respondent with a subpoena compelling him to appear and answer the complaint under oath. Respondent failed to appear.

The ODC alleges that respondent’s conduct in this matter violates the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.5(f), 1.16(d), 8.1(c), 8.4(a), and 8.4(g).

Count XVI — The Swinney Matter

On November 19, 2000, Curtis Swinney paid respondent $500 to represent Stephanie Matthews in a criminal matter. Respondent failed to complete the representation and failed to communicate with his client concerning the matter. He also failed to account for any earned portion of the legal fee and failed to refund the unearned portion of the fee.

In December 2000, Mr. Swinney filed a complaint against respondent with the ODC. On January 2, 2001, the ODC forwarded a copy of the complaint to respondent by certified mail. Respondent failed to reply to the complaint. The ODC thereafter served respondent with a subpoena compelling him to appear and answer the complaint under oath. Respondent failed to appear.

11PThe ODC alleges that respondent’s conduct in this matter violates the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.5(f), 1.16(d), 8.1(c), 8.4(a), and 8.4(g).

Count XVII — The Rogers Matter

On October 16, 2000, Vernice Rogers paid respondent $250.52 to represent him in a criminal matter. Respondent failed to complete the representation and failed to communicate with his client concerning the matter. He also failed to account for any earned portion of the legal fee and failed to refund the unearned portion of the fee.

In December 2000, Mr. Rogers filed a complaint against respondent with the ODC. On January 9, 2001, the ODC forwarded a copy of the complaint to respondent by certified mail. Respondent failed to reply to the complaint. The ODC thereafter served respondent with a subpoena compelling him to appear and answer the complaint under oath. Respondent failed to appear.

The ODC alleges that respondent’s conduct in this matter violates the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.5(f), 1.16(d), 8.1(c), 8.4(a), and 8.4(g).

Count XVIII — The Howard Matter

Respondent’s disbarment in Gibson I became final on December 11, 2000. Nevertheless, on January 22, 2001, respondent accepted $450 from Dianne Howard to represent her son, Dennis Darby, in a criminal matter. Respondent failed to complete the representation and failed to communicate with his client concerning the |13matter. He also failed to account for any earned portion of the legal fee and failed to refund the unearned portion of the fee.

In January 2001, Ms. Howard filed a complaint against respondent with the ODC. On February 5, 2001, the ODC forwarded a copy of the complaint to respondent by certified mail. Respondent failed to reply to the complaint. The ODC thereafter served respondent with a subpoena compelling him to appear and answer the complaint under oath. Respondent failed to appear.

The ODC alleges that respondent’s conduct in this matter violates the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.5(f), 1.16(d), 5.5 (engaging in the unauthorized practice of law), 8.1(c), 8.4(a), and 8.4(g).

Count XIX — The Elabed Matter

On December 11, 2000, Nael Elabed paid respondent $1,000 to represent his brother, Thair Elabed, in a criminal matter. Respondent failed to complete the representation and failed to communicate with his client concerning the matter. He also failed to account for any earned portion of the legal fee and failed to refund the unearned portion of the fee.

In March 2001, Mr. Elabed filed a complaint against respondent with the ODC. On March 29, 2001, the ODC forwarded a copy of the complaint to respondent by certified mail. Respondent failed to reply to the complaint. The ODC thereafter served respondent with a subpoena compelling him to appear and answer the complaint under oath. Respondent failed to appear.

The ODC alleges that respondent’s conduct in this matter violates the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.5(f), 1.16(d), 8.1(c), 8.4(a), and 8.4(g).

^DISCIPLINARY PROCEEDINGS

On October 22, 2001, the ODC filed nineteen counts of formal charges against respondent. Respondent answered the formal charges and generally denied any misconduct. Accordingly, the matter proceeded to a formal hearing on the merits. At the hearing, the ODC called thirteen witnesses to testify in person and submitted the deposition testimony of three other witnesses. The ODC also introduced some 138 exhibits. However, despite notice, respondent did not appear at the hearing.

Hearing Committee Recommendation

After reviewing the record, the hearing committee determined the ODC proved by clear and convincing evidence a violation of each professional rule cited in the formal charges (though not in every instance where the rule was cited). The committee found sufficient evidence to support most of the allegations subject of each count, with the exception of Count XVII (the Rogers matter), where it found no evidence to support any of the rule violations alleged because Mr. Rogers did not testify. Specifically, the committee concluded respondent assumed the representation of numerous clients, was paid a fee, failed to communicate with his clients, failed to do the work for which he was paid, failed to account for earned fees and return unearned fees, and failed to cooperate with the ODC in its investigation of the complaints filed against him. The committee also pointed out that respondent improperly solicited the representation of one of his clients, and in connection with Count XVIII (the Howard matter), engaged in the practice of law after he was disbarred by this court. The committee concluded the baseline sanction for respondent’s conduct is disbarment.

11BIn aggravation, the committee recognized respondent’s prior disciplinary record, dishonest or selfish motive, pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding, refusal to acknowledge the wrongful nature of the conduct, vulnerability of the victims, and substantial experience in the practice of law (admitted 1987). The committee found no mitigating factors are present.

Given the extensive pattern of misconduct, in particular respondent’s engaging in the unauthorized practice of law after being disbarred, the committee recommended that he be permanently disbarred.

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

Disciplinary Board Recommendation

The disciplinary board generally concurred in the hearing committee’s factual findings and its application of the Rules of Professional Conduct, though it rejected the committee’s findings with respect to Count XVII, the Rogers matter. The board found respondent violated duties owed to his clients, the public, and as a professional. | ^Respondent’s conduct is both knowing and intentional in failing to provide legal services for which he had been paid. He failed to protect clients’ property and account for and refund unearned fees. Respondent also continued to engage in the practice of law after being disbarred in November 2000. Clients have been harmed by respondent’s failure to timely handle their legal matters, and multiple clients are owed refunds of legal fees.

The board concurred in the aggravating factors cited by the hearing committee, and found the record also supports a finding that respondent is indifferent to making restitution. The board found no mitigating factors are present. Considering the weight of the aggravating factors present, and the absence of mitigating factors, the board recommended respondent be permanently disbarred. The board further 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 disciplinary board’s recommendation.

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 117applicable 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 review, we conclude the record supports the committee’s findings that respondent engaged in multiple instances of serious misconduct. Specifically, he neglected his clients’ legal matters, failed to communicate with his clients, failed to account for and refund unearned fees, failed to cooperate with the ODC in its investigation, engaged in the unauthorized practice of law after being disbarred by this court, and improperly solicited the representation of a client in a criminal matter.

Having found evidence of professional misconduct, the sole issue presented for our consideration is the appropriate sanction for respondent’s actions. 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).

Respondent’s misconduct represents a serious breach of his professional duties. Numerous aggravating factors are present, including respondent’s prior disciplinary record, dishonest or selfish motive, pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding, refusal to acknowledge the wrongful nature of the conduct, vulnerability of the victims, and substantial experience in the practice of law. We are unable to discern any mitigating factors from the record.

11sThe appropriate sanction for this misconduct is clearly disbarment. Thus, the sole remaining question is whether respondent’s conduct is so egregious that he should be permanently prohibited from seeking readmission to the practice of law.

In Appendix E to Supreme Court Rule XIX, we set forth guidelines illustrating the types of conduct which might warrant permanent disbarment. While these guidelines are not intended to bind this court in its decision-making process, they present useful information concerning the types of conduct we might consider worthy of permanent disbarment.

For purposes of the instant case, Guidelines 8 and 9 are relevant. Those guidelines provide:

GUIDELINE 8. Following notice, engaging in the unauthorized practice of law subsequent to resigning from the Bar Association, or during the period of time in which the lawyer is suspended from the practice of law or disbarred.
GUIDELINE 9. Instances of serious attorney misconduct or conviction of a serious crime, when the misconduct or conviction is preceded by suspension or disbarment for prior instances of serious attorney misconduct or conviction of a serious crime. Serious crime is defined in Rule XIX, Section 19. Serious attorney misconduct is defined for purposes of these guidelines as any misconduct which results in a suspension of more than one year.

Guideline 8 is clearly applicable to this case, as the undisputed evidence shows respondent continued to represent clients after his license to practice law was revoked by this court in Gibson I. Likewise, Guideline 9 is implicated, as the instant misconduct, which is unquestionably serious attorney misconduct, was preceded by respondent’s disbarment for prior instances of serious attorney misconduct.

We do not lightly impose the sanction of permanent disbarment. In re: Morphis, 01-2803 (La.12/4/02), 831 So.2d 934. Nonetheless, we are firmly |1flconvinced that we would be remiss in our constitutional duty to regulate the practice of law if we did not impose that sanction here. Respondent’s actions convincingly demonstrate he does not possess the requisite moral fitness to practice law in this state. He must be permanently disbarred.

Accordingly, we will accept the disciplinary board’s recommendation and impose permanent disbarment.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Floyd M. Gibson be permanently disbarred. Pursuant to Supreme Court Rule XIX, § 24(A), it is further ordered that respondent be permanently prohibited from being readmitted to the practice of law in this state. Respondent is ordered to furnish complete ac-countings and full restitution of all unearned legal fees to his clients subject of the formal charges. 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.

      . It is unclear whether this sum represented bond money or respondent's legal fee.

      . The records of the Orleans Parish Criminal District Court indicate that respondent filed a motion to reduce bond on behalf of Mr. Gau-det and Mr. Chenier; a motion to be recognized as attorney of record; and a motion for preliminary examination.

      . The complaint arose from respondent's representation of Mr. Battle in a criminal case. The ODC did not charge respondent with any substantive misconduct in connection with this complaint.

      . This sum represented both bond money and respondent’s legal fee.

      . In June 2001, respondent sent the ODC a money order in the amount of $300, which he requested be forwarded to Ms. Smith.

      .The complaint arose from respondent’s representation of Mr. Harrell in a criminal case. The ODC did not charge respondent with any substantive misconduct in connection with this complaint.

      .In August 2000, Mr. Webber filed a motion requesting that the trial court provide him a copy of the trial and sentencing transcripts. The trial court denied the motion because the transcripts were provided to respondent in conjunction with the appeal.

      . In June 2001, respondent sent the ODC a money order in the amount of $300, which he requested be forwarded to Ms. Armbruster.

      . In June 2001, respondent sent the ODC a money order in the amount of $300, which he requested be forwarded to Ms. Price.

      . In June 2001, Ms. Davis received a $250 refund directly from respondent.

      . In June 2001, respondent sent the ODC two money orders totaling $400, which he requested be forwarded to Mr. Hughes.

      . It is unclear whether this sum represented bond money or respondent's legal fee.

      . In addition to the 2000 disbarment in Gibson I, respondent was twice admonished by the disciplinary board in 1999, once for engaging in the unauthorized practice of law and once for failing to cooperate with the ODC in its investigation. Respondent has also been declared ineligible to practice law on three occasions for failing to comply with his professional obligations.

      . The committee acknowledged that respondent made restitution to some of his victims, but because "such restitution was not made until well after formal ethical complaints were filed and in many instances full restitution was not made,” the committee declined to consider this in mitigation.

      .The committee had found the ODC did not meet its burden of proof because the complainant did not testify at the hearing. However, the board pointed out that
      The disciplinary system has, as a matter of course, accepted unsworn complaints as sufficient evidence when a respondent does not counter with sworn testimony or evidence. In the Rogers matter, the record is bare of evidence that Respondent refunded the client any money.... The Board finds the Committee’s finding that Count 17 had not been proven is manifestly erroneous.


author: LPER CURIAM.

text:
    In re Melinda Kay TURNAGE.
    No. 2003-B-0456.
    Supreme Court of Louisiana.
    Sept. 26, 2003.
   ATTORNEY DISCIPLINARY PROCEEDINGS

LPER CURIAM.

This disciplinary matter arises from one count of formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Melinda Kay Turnage, an attorney licensed to practice law in Louisiana, but currently suspended. In re: Turnage, 01-1240 (La.6/22/01), 790 So.2d 620 (“Turnage I”). For the reasons assigned, we now suspend respondent from the practice of law for a period of three years, to run concurrently with the suspension imposed in Turnage I.

UNDERLYING FACTS

Sometime prior to 1995, Dorothy Bernard retained respondent to handle a personal injury matter on behalf of her minor daughter. Respondent thereafter failed to communicate with Ms. Bernard, and she failed to file suit on the minor’s behalf. In 1998, respondent left her law office without completing the representation and without prior notice to her client.

In November 2000, the ODC received a complaint against respondent from Ms. Bernard. Respondent failed to reply to the complaint. The ODC thereafter served respondent with a subpoena compelling her to appear on March 1, 2001 and answer the complaint under oath. Respondent failed to appear.

| .DISCIPLINARY PROCEEDINGS

Formal Charges

Following investigation, the ODC filed one count of formal charges against respondent, alleging that her conduct in the Bernard matter violated the following provisions of the Louisiana Rules of Professional Conduct: Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.16(d) (termination of the representation), 3.4(c) (knowing disobedience of an obligation under the rules of a tribunal), 8.1(c) (failure to cooperate with the ODC in its investigation), 8.4(a) (violation of the Rules of Professional Conduct), 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.

Hearing Committee Recommendation

Noting the factual allegations of the formal charges were deemed admitted and proven by clear and convincing evidence pursuant to Rule XIX, § 11(E)(3), the hearing committee agreed that respondent violated the Rules of Professional Conduct as charged. After consideration of the ODC’s submission in response to the deemed admitted order, the committee concluded that respondent violated duties owed to her client by abandoning her client’s claim and failing to maintain any communication with | .her. She has failed to cooperate with the ODC by refusing to appear in response to an investigatory subpoena and has failed to address the complaint made against her. The committee recognized no mitigating factors, but determined the aggravating factors present include respondent’s prior disciplinary offenses, a pattern of misconduct, bad faith obstruction of the disciplinary proceeding, and indifference to making restitution. Under these circumstances, the committee recommended that respondent be suspended from the practice of law for one year and one day, to run consecutively to the suspension imposed in Tumage I.

The ODC filed an objection to the leniency of the hearing committee’s recommendation.

Disciplinary Board Recommendation

The disciplinary board determined that respondent violated duties owed to her clients, to the legal system, and as a professional. The board further determined that respondent’s conduct was knowing, and she caused injury to her client when she failed to communicate with her and essentially abandoned her practice without notification. Respondent failed to file suit on her client’s behalf and Ms. Bernard was damaged by the loss of her personal injury claim. Respondent also caused harm to the legal system, particularly the disciplinary process, by her failure to cooperate in the investigation of the matter. She caused needless delay and expense to the system. The baseline sanction for this conduct is a suspension from the practice of law.

The board agreed the record does not support a finding of any mitigating factors, and generally concurred in the aggravating factors cited by the committee. However, the board refused to consider respondent’s prior discipline in Tumage I as an aggravating factor, because the offensive conduct in that matter occurred during the Usame time frame, and involved the same type of misconduct, as the instant matter. The board recognized that under such circumstances, the overall discipline to be imposed should be determined as if both proceedings were being considered simultaneously. Considering the misconduct at issue in Tumage I together with the instant matter, the board concluded the appropriate sanction is a three-year suspension from the practice of law, to run concurrently with the suspension imposed in Tumage I. The board also 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 filed an objection to the disciplinary board’s recommendation.

DISCUSSION

The deemed admitted facts in this case establish that respondent has neglected Ms. Bernard’s legal matter, failed to communicate with her client, failed to properly terminate the representation of her client, and failed to cooperate with the ODC in its investigation. Therefore, the sole issue presented for our consideration is the appropriate sanction for respondent’s misconduct.

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 |Rin light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

As the disciplinary board observed, the misconduct forming the basis of the instant disciplinary proceeding occurred during the same time period as the misconduct at issue in Turnage I. In In re: Vaughan, 01-1948 (La.10/26/01), 801 So.2d 1058, we explained that when a second disciplinary proceeding against an attorney involves misconduct which occurred during the same time period as the first proceeding, the overall discipline to be imposed should be determined as if both proceedings were before the court simultaneously. See also Louisiana State Bar Ass’n v. Chatelain, 573 So.2d 470 (La.1991).

Applying this reasoning, we will consider respondent’s actions in the instant case together with her actions in Tumage I. The misconduct in Tumage I essentially involved neglect of two client matters, as well as failure to cooperate with the ODC. The instant misconduct is similar in nature, revealing a disturbing pattern of disregard by respondent for the welfare of her clients. Under similar circumstances, we have imposed lengthy suspensions. See, e.g., In re: Boudreau, 00-3158 (La.1/5/01), 776 So.2d 428 (three-year suspension imposed on an attorney who neglected three client matters, failed to communicate with the clients, failed to account for and return unearned fees, failed to repay student loans, withheld client property, and failed to cooperate with the ODC).

Accordingly, we will suspend respondent from the practice of law for a period of three years, with the provision that this suspension run concurrently with the suspension in Tumage I

_JjjDECREE

Upon review of the findings and recommendation of the hearing committee and disciplinary board, and considering the record, it is ordered that Melinda Kay Turnage, Louisiana Bar Roll number 22879, be suspended from the practice of law for a period of three years. The suspension shall run concurrently with the suspension imposed in In re: Turnage, 01-1240 (La.6/22/01), 790 So.2d 620. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . Respondent was suspended by this court for one year and one day in June 2001 for neglecting a client matter, failing to communicate with her client, failing to properly terminate the representation of her client, and failing to cooperate with the ODC in its investigation. Respondent did not seek reinstatement following her suspension, and accordingly, she remains suspended from the practice of law.

      . Respondent filed nothing for the hearing committee’s consideration.

      . Tumage I involved complaints arising out of respondent’s representation of two clients in 1998.

      . As noted, respondent has completed her one year and one day suspension in Tumage I. The effect of our judgment is that respondent may not file an application for reinstatement until two years from the finality of the instant judgment.


author: PER CURIAM.

text:
    In re Timothy Baucum BURNHAM.
    No. 2003-B-2037.
    Supreme Court of Louisiana.
    Sept. 26, 2003.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

IT IS ORDERED that the Petition for Consent Discipline be accepted and that the name of Timothy Baucum Burnham, Louisiana Bar Roll number 14114, be stricken from the roll of attorneys and that his license to practice law in the State of Louisiana be revoked.

IT IS FURTHER ORDERED that 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.

KNOLL, J., would reject the current discipline and impose permanent disbarment.