author: | .PER CURIAM.

text:
    In re Greer E. GOFF.
    No. 2002-B-1899.
    Supreme Court of Louisiana.
    Jan. 28, 2003.

      Charles B. Plattsmier, Baton Rouge, for applicant.
    Greer E. Goff, pro se.
    Vernon P. Thomas, New Orleans, for respondent.
   ATTORNEY DISCIPLINARY PROCEEDINGS

| .PER CURIAM.

This disciplinary proceeding involves formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Greer E. Goff, an attorney licensed to practice law in the State of Louisiana.

UNDERLYING FACTS

In 1989, respondent obtained employment as a law clerk with the firm of O’Keefe, O’Keefe and Bernstein (the “O’Keefe Firm”). Upon her bar admission in October, 1989, respondent was promoted to a salaried associate’s position. In 1992 or 1993, respondent was approached by the head of the firm, former State Senator Michael O’Keefe, and asked to work with Mike Palmisano and Ernie Aviolasti. He described these individuals as “paralegals with their own clientele” and having “their own practice,” even though they were clearly not lawyers. The principal nature of the pair’s “client base” was personal injury claims. According to Mr. O’Keefe, respondent’s role would be to handle only those cases that could not be settled and had to be tried. Mr. O’Keefe explained to respondent that a separate law firm in her name would be established for Mr. Palmisano and Mr. Aviolasti to conduct their | ^activities.

As a result, the law firm of Greer Goff and Associates was created. However, this law firm was totally contained within the building and operations of the O’Keefe Firm. Respondent was given offices located on the second floor, while the offices of Mr. Palmisano and Mr. Aviolasti were located on the third floor. Although Mr. Palmisano and Mr. Aviolasti were theoretically considered respondent’s employees, respondent exercised no supervision or control over their activities and conduct. She occasionally signed a settlement check or document, but never tried a case for them.

About one year after Mr. Palmisano and Mr. Aviolasti joined the firm, respondent realized they were engaging in the unauthorized practice of law with the permission of Mr. O’Keefe. She became aware the pair were acquiring new cases and using her name and law firm to do so when persons in the community that she had never met on a professional basis approached her and advised her that her law firm was representing them in a legal matter. Respondent confronted Mr. O’Keefe when she became concerned over the events, advising it was her impression Mr. Palmisano and Mr. Aviolasti would be exclusively working on the cases they had brought with them and not new cases. She advised Mr. O’Keefe that she was no longer comfortable with their arrangement and that she “didn’t want them to use [her] name.” Respondent also advised that she had secured employment with the New Orleans City Attorney’s Office. During the meeting, Mr. O’Keefe summoned the pair to try to convince respondent to proceed in their scheme. When respondent refused, Mr. O’Keefe assured her the misconduct would stop. He further encouraged her to take the job with the City of New Orleans, sharing time between the two jobs, which she did.

1 aShortly thereafter, Mr. O’Keefe formed the Law Offices of Stephen Bernstein to conduct his illegal solicitation practices out of the same building. Mr. Bernstein was a partner in the O’Keefe Firm and respondent, at some point, was aware his firm was engaged in illegal activities utilizing runners. In fact, respondent tried cases for the new firm at the direction of Mr. O’Keefe.

Approximately three years later, respondent learned from Charles Plattsmier, Chief Disciplinary Counsel, that Mr. Pal-misano and Mr. Aviolasti had continued to acquire cases under the veil of her law firm and supervision, as well as under the Law Offices of Stephen Bernstein. Respondent also learned that several persons often on the building’s premises were paid “runners” charged with the responsibility of bringing in new personal injury business to them. Respondent went to Mr. O’Keefe, who had advised he would retain counsel for her. Mr. O’Keefe hired Camille Gravel to represent respondent. Unbeknownst to respondent, Mr. Gravel was also representing Mr. O’Keefe in unrelated disciplinary proceedings. At the direction of Mr. Gravel, respondent refused to disclose anything to the ODC, asserting her Fifth Amendment privilege against self-incrimination. Approximately one year later, after the ODC had entered into consent negotiations with Mr. Bernstein and this court approved the consent discipline, Mr. Plattsmier advised respondent the ODC would institute formal charges against her. With this in mind, respondent resigned from the O’Keefe Firm and retained new counsel. She and her new attorney immediately met with Mr. Platts-mier. At the time, the ODC was attempting to address the widespread problem of runner-based solicitation in the New Orleans area. According to Mr. Plattsmier’s formal hearing statement, respondent’s cooperation provided a “significant milestone in [the ODC’s] education process of understanding runnerjbased4 solicitation in the City of New Orleans and around the state.”

DISCIPLINARY PROCEEDINGS

Petition for Consent Discipline

Prior to the filing of any formal charges, respondent tendered a petition for consent discipline, admitting to violating the Rules of Professional Conduct through her failure to supervise the non-lawyers, aiding-in the unauthorized practice of law, and failing to report the professional misconduct. In exchange for her admission, respondent proposed she be suspended from the practice of law for a period of nine months, deferred in full, followed by a two year period of probation with, among others, conditions of cooperation in all related disciplinary and law enforcement proceedings and successful completion of the LSBA’s ethics school. The ODC filed a concurrence to the petition and the disciplinary board recommended it be accepted.

Upon review, this court rejected the proposed consent discipline. One member of the court concurred in the rejection of consent discipline “primarily because the nine months suspension is totally deferred.” In re: Goff, 00-3173 (La.1/12/01), 778 So.2d 1151.

Formal Charges

As a result of this court’s rejection of consent discipline, the ODC instituted formal charges against respondent alleging violations of Rules 5.3(a) (failure for law firm partner to take reasonable efforts to ensure firm has in effect measures to assure non-lawyer conduct complies with professional obligations), 5.3(b) (failure of supervising lawyer to take reasonable efforts to ensure non-lawyer’s conduct complies with professional obligations), 5.3(c) (supervising attorney’s inaction regarding direct knowledge of non-lawyer’s professional misconduct), 5.5(b) (aiding non-lawyer in | (¡engaging in unauthorized legal practice), 7.2(b) (unauthorized client solicitation), 8.3 (failure to report professional misconduct) and 8.4(a) (violating the Rules of Professional Conduct) of the Rules of Professional Conduct.

Respondent filed an answer. While she admitted to the allegations of misconduct, she requested a hearing for the purpose of presenting mitigating evidence, which she claimed would merit a lesser sanction.

Hearing Committee Recommendation

After a hearing, the hearing committee determined the ODC proved allegations of professional misconduct by clear and convincing evidence based on respondent’s admission to the allegations of misconduct. It noted that respondent’s actions were both knowing and grossly negligent. The committee stated respondent violated her duty as a professional, causing injury to the profession, which had a substantial interest in eliminating runner-based solicitation.

Relying on jurisprudence from this court, the committee found the baseline sanction for respondent’s misconduct is disbarment. In deviating downward from disbarment, the committee recognized that respondent was “neither the originator of the scheme nor an active participant.” Further, it found respondent “evidenced extreme remorse at her unknowing participation in the scheme and anger directed by those who involved her in the scheme.” The committee further stated respondent was |fi“obviously naive, impressed by former Senator O’Keefe’s style and demeanor and obviously unprepared to deal with or understand the implications of the activities in which she was unknowingly becoming involved.” Last, it pointed out respondent was cooperative with the ODC and furthered the investigative process in the area of runner-based solicitation in the Greater New Orleans area.

Accordingly, the committee recommended that respondent be suspended from the practice of law for a period of nine months, totally deferred, subject to a two-year period of probation subject to several conditions.

Disciplinary Board Recommendation

The disciplinary board concluded respondent violated the professional rules as charged. It noted she breached her duties owed to the legal system and the profession. The board recognized that respondent’s actions were both knowing and negligent and resulted in damage to the public’s confidence in the legal system.

In addressing the issue of sanctions, the board recognized the presence of several mitigating factors: absence of a prior disciplinary record, absence of dishonest 17or selfish motive, full and free disclosure to the disciplinary board, cooperative attitude toward the proceedings and remorse. No aggravating factors were cited. The board relied on Standards 5.12 and 7.2 of ABA’s Standards for Imposing Lawyer Sanctions to determine suspension is the baseline sanction. Specifically, the board noted respondent’s conduct “of unwittingly enabling a runner-based solicitation scheme is suggestive of criminal conduct and sul lies the reputation of the profession.” The board pointed out that the majority of case law concerning runner-based solicitation has resulted in disbarment. Finding these cases to be much more factually egregious than the instant matter, the board looked to cases involving runner-based solicitation which resulted in suspension rather than disbarment, citing In re: Lockhart, 01-1645 (La.9/21/01), 795 So.2d 309 (three-year suspension, followed by a two-year probation, imposed by consent on a newly admitted solo practitioner suffering from severe economic problems, who made a few payments to “investigators” to refer cases to the attorney, but cooperated extensively with federal authorities and self-reported his misconduct); In re: Bernstein, 98-3207 (La.1/29/99), 725 So.2d 483 (three year suspension, with one year deferred, subject to a two year probation imposed on attorney for participating in the same runner-based solicitation scheme involving the instant respondent); and In re: Brass, 97-0947 (La.6/30/97), R696 So.2d 967 (two and one-half year suspension, with one year deferred, subject to two years of conditional probation imposed on an attorney who mishandled his client trust account and paid a runner to solicit cases).

The board acknowledged the proposed sanction was the same as that which was rejected earlier by this court in the consent petition. However, the board noted that, unlike the consent discipline, a record had been developed with the formal charges, a formal hearing and respondent’s sworn testimony. In accepting the proposed discipline of a fully deferred nine month suspension, subject to a two year period of conditional probation, the board stated that “[t]he instant matter is highly unusual in that the respondent, although she should have known, did not know she was facilitating a runner operation and received no financial benefit, directly or indirectly, from such operation.” Accordingly, it recommended the proposed discipline be adopted.

One board member dissented. He rejected the board’s factual findings that respondent’s conduct was unknowing and unwitting. Moreover, he noted respondent did reap financial gain through her retention of her job and receipt of indirect financial gain. He stated “[i]t was only after the disciplinary process against her had commenced that respondent had her epiphany and cooperated with ODC.”

Neither respondent nor the ODC filed objections in this court to the board’s recommendation. However, this court, on its motion, set the matter for oral argument.

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), |9646 So.2d 343; Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444 (La.1992).

In the instant matter, respondent has conceded that her conduct facilitated a runner-based solicitation scheme, although she maintains that she was an unwitting participant. Based on respondent’s admissions and other evidence in the record, we conclude the charges against her have been proven by clear and convincing evidence. Therefore, we now turn to a discussion of the appropriate sanction.

The purpose of disciplinary proceedings is not primarily to punish the lawyer, but rather to maintain the appropriate standards of professional conduct, to preserve the integrity of the legal profession and to deter other lawyers from engaging in violations of the standards of the profession. In re: Vaughan, 00-1892 (La.10/27/00), 772 So.2d 87; In re: Lain, 00-0148 (La.5/26/00), 760 So.2d 1152; Louisiana State Bar Ass’n v. Levy, 400 So.2d 1355 (La.1981). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved, considered in light of any aggravating and mitigating circumstances. In re: Redd, 95-1472 (La.9/15/95), 660 So.2d 839; Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

Unquestionably, engaging in runner-based solicitation is one of the most serious professional violations an attorney may commit. We have not hesitated to disbar attorneys who have engaged in such practices. See In re: Go-and, 01-0131 (La.2/9/01), 778 So.2d 580 (disbarment imposed for using runners to solicit personal injury clients and conviction of misprision of felony); In re: Cuccia, 99-3041 (La.12/17/99), 752 So.2d 796 (newly licensed attorney disbarred for hiring runners to solicit cases and for hiring secretaries, legal assistants and clerical help to assist him in “processing” volumes of personal injury claims resulting in their unauthorized practice of law and his failure to properly supervise); In re: Tolchinsky, 99-1742 (La.9/3/99), 740 So.2d 109 (attorney entered consent disbarment for failure to supervise_[^and report actions of his employee, a disbarred attorney who engaged in the unauthorized practice of law and improperly solicited clients by the use of runners).

In formulating a sanction, we recognize that there are significant mitigating factors in this case. As the board observed, respondent was not the originator of the scheme, nor was she an active participant. Additionally, respondent cooperated in the ODC’s investigation and prosecution of runner-based solicitation.

Nonetheless, we would denigrate the seriousness of runner-based solicitation if we were to adopt a fully deferred suspension under the facts of this case. While respondent’s sin may have been one of omission rather than commission, the fact remains that by failing to properly monitor her practice, she facilitated others who engaged in unauthorized practice of law.

Under these circumstances, we conclude the proper discipline is a nine-month suspension from the practice of law, with six months deferred.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Greer E. Goff be suspended from the practice of law for a period of nine months. It is further ordered that six months of this suspension shall be deferred. 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, a New Orleans attorney, is 46 years of age and was admitted to the practice of law in Louisiana on 10/6/89. She has no prior disciplinary record.

      . According to respondent, Mr. O’Keefe sought to create a separate law firm for the personal injury business because the O'Keefe Firm was primarily a defense firm.

      . It appears respondent may have been counseled to do so in order to protect Mr. Gravel's other client, Mr. O’Keefe, who was facing allegations of misconduct that if proven would warrant disbarment.

      . These are the same professional violations respondent admitted to in her consent petition.

      . The hearing committee relied on the following cases: In re: Grand, 01-0131 (La.2/9/01), 778 So.2d 580 (disbarment stemming from use of runners to solicit personal injury clients and conviction of misprision of felony); In re: Cuccia, 99-3041 (La. 12/17199), 752 So.2d 796 (newly licensed attorney disbarred for hiring runners to solicit cases and for hiring secretaries, legal assistants and clerical help to assist him in "processing” volumes of personal injury claims resulting in their unauthorized practice of law); In re: Castro, 99-0707 (La.6/18/99), 737 So.2d 701 (five year extension of minimum period for readmission of disbarred attorney was warranted for attorney who, among other things, used runners to solicit business and held himself out to be a lawyer while on suspension or disbarred).

      .The committee recommended the following probationary conditions:
      a. Full, complete and truthful testimony and cooperation with the ODC in any pending or contemplated disciplinary investigations or proceedings;

        fa. Full, complete and truthful testimony and cooperation with any and all state and federal law enforcement agencies;
      c. Enrollment in and successful completion of, within the two year period of probation, ethics school as sponsored by the Louisiana State Bar Association’s Practice Assistance and Improvement Committee;
      d. No violations of the Louisiana Rules of Professional Conduct within the two year period of probation;
      e. Prompt and full cooperation in any disciplinary investigation which may be prompted by complaints which may be filed against respondent during the period of probation; and
      f. Full and prompt payment, or satisfactory arrangements for the payment of, all disciplinary costs within thirty days of a final order of the Louisiana Supreme Court.

      .The board noted respondent's tax returns for the period in question indicated she had not reaped any financial gain from the solicitation scheme.

      . Standard 5.12 provides suspension is generally appropriate when a lawyer knowingly engages in criminal conduct which does not contain the elements listed in Standard 5.11, which are intentional interference with the administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft, and that seriously adversely reflects on the lawyer’s fitness to practice.
      Standard 7.2 provides suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed to the profession, and causes serious or potentially serious injury to a client, the public, or the legal system.

      . In addition to the disbarment cases cited by the committee, the board also relied on the case of In re: Tolchinsky, 99-1742 (La.9/3/99), 740 So.2d 109 (attorney entered consent disbarment for failure to supervise and report actions of his employee, a disbarred attorney who engaged in the unauthorized practice of law and improperly solicited clients by the use of runners).


source: Caselaw Access Project

author: pCALOGERO, Chief Justice. KIMBALL, Justice,

license: Public Domain

text:
    INDUSTRIAL COMPANIES, INC. v. James E. DURBIN, Berkley R. Durbin, Durbin & Durbin, L.L.C., and All South Title, Inc.
    No. 2002-C-0665.
    Supreme Court of Louisiana.
    Jan. 28, 2003.

      Samuel B. Rhorer, Counsel for Applicant.
    Michael L. Cave, Counsel for Respondent.
   pCALOGERO, Chief Justice.

We granted writs of certiorari in this case in order to review two claims asserted by the defendants, Louisiana attorneys and a corporation they apparently own or control. First, the defendants claim that the appellate court decision improperly allows the plaintiff, a non-attorney who earlier was their client, to seek a portion of the defendants’ attorney fees. The plaintiff responds by making a strong assertion that the monies it seeks are not attorney fees, as the defendants claim, but money flowing from the proceeds of promissory notes and collateral mortgage notes to which plaintiff is entitled as holder in due course of the notes. The record evidence, however, is inconclusive concerning the nature of the disputed funds. In fact, the defendants have failed to present any record evidence to support their claim that the disputed funds are attorney fees. Although we question the reasons stated by the court of appeal, we will nonetheless affirm the court of appeal decision, which, favorably to the plaintiff, reversed the district court’s dismissal of the plaintiffs case on peremptory exceptions of no cause of action and no right of action. Our reasons therefor follow.

^Second, the defendants challenge the appellate court’s resolution of the difficult problems presented by this case by commanding the joinder of third parties to the action, the defendants in the foreclosure proceeding, who, according to the court of appeal, actually paid the disputed funds. The defendants in the foreclosure proceeding, however, have not made any claims concerning the funds in this litigation. Because we are not convinced on the face of the present record that it is essential that the third parties be brought into the case, we will reverse the court of appeal’s decision to order joinder of the defendants in the foreclosure action.

FACTS AND PROCEDURAL HISTORY

The following facts are set forth in the petition of plaintiff, Industrial Companies, Inc. (“Industrial”). Industrial asserts that it was the holder in due course of “two certain promissory notes” and “three certain collateral mortgage notes” executed by Albert and Lillian Connell. When the Connells’ indebtedness became overdue, Industrial retained the legal services of defendants, James E. Durbin and Berkley R. Durbin, practicing law as defendant Durbin, Durbin & Durbin, L.L.C., (hereinafter referred to collectively as “Durbin”), to foreclose on the indebtedness. Industrial claims that Durbin agreed to perform legal services related to the foreclosure for a fee not to exceed $2,000. Durbin filed a petition for executory process on Industrial’s behalf, which resulted in the seizure of the property. Industrial claims that it paid Durbin $1,650 in connection with the agreement for Durbin to perform the foreclosure for not more than $2,000.

^Before a sheriffs sale could take place, a third party purchased the property for the sum of $335,169. Industrial alleged that checks totaling that amount were issued by the Connells, and that Industrial endorsed the checks over to Durbin, who deposited the funds into an account belonging to defendant, All South Title, Inc., a company controlled by or somehow affiliated with the Durbins. Thereafter, according to Industrial’s petition, the defendants paid Industrial $255,793.49, which Industrial admits was the amount of principal and interest due on the indebtedness. Industrial alleged that the defendants retained approximately $40,000, claiming that amount was attorney fees.

On January 1, 2000, Industrial filed a “Petition for Unjust Enrichment and Return of Monies Due,” against Durbin and All South. Industrial alleged that the defendants were indebted to it for “all sums retained by defendants ... in excess of $1,650.” Because Durbin had agreed to represent Industrial in the foreclosure proceedings for a total legal fee not to exceed $2,000, Industrial alleged that the defendants were unjustly enriched when they retained approximately $40,000 from the funds paid by the purchaser. As holder in due course of collateral mortgage notes |4and promissory notes executed by the previous owners of the property, Industrial alleged it was entitled to all sums owed under the instruments.

The defendants responded by filing exceptions of no cause of action and no right of action. In support of its exception of no cause of action, the defendants argued that the funds they retained from the foreclosure proceeding were “by their very nature attorney fees” that could not belong to Industrial, a non-attorney. In support of its exception of no right of action, the defendants asserted that the only party that could bring an action to recover the monies was the party that actually paid the alleged attorney fees, the Connells.

At the hearing on the defendants’ exceptions, counsel for the defendants stated that the only issue before the district court was whether Mr. Durbin, an attorney, can share attorney fees with a non-attorney, Industrial. The district court sustained the exceptions of no cause of action and no right of action and dismissed Industrial’s suit with prejudice at Industrial’s cost. Although the district judge did not issue reasons for judgment, the transcript of the hearing reveals that the judge focused primarily on the admission of Industrial’s attorney that Industrial received all the money it was owed under the promissory notes and collateral mortgage agreements, including accrued interest.

The court of appeal reversed the judgment of the district court. The appellate court agreed with the district court’s finding that Industrial, which had received the full amount due and owing on the promissory notes, “ordinarily would not be the appropriate party to bring an action contesting an amount paid out of sums received by the Connells from a third party purchaser.” Industrial Companies, Inc. v. Durbin, 2000-2170, p. 3 (La.App. 1 Cir. 12/28/01), 806 So.2d 106, 109. However, the court then found that Industrial had a real and actual interest in the suit because the | ¡/‘existence of the dual payment of attorney fees related to collection by Dur-bin on the same promissory notes changes the procedural specter of Industrial’s right to present a claim for overpayment of attorney fees.” Id. at 4, 806 So.2d at 109. Thus, the court reversed the district court judgment that had granted the defendants’ exception of no right of action.

After finding that Industrial has a right of action, the appellate court cited the compulsory joinder articles, La.Code of Civ. Proc. arts. 641 and 645, and found that “the instant action cannot proceed, and complete relief cannot be accorded, without the joinder of the Connells.” Id., citing La.Code of Civ. Proc. art. 641(1). The appellate court then remanded the case to the district court for joinder of the Connells. Id.

Finally, the court of appeal found that Industrial “presents a claim for which the law affords a remedy” because it is entitled to “inquire into the reasonableness of attorney fees,” even if the fees are stipulated in a contract. Id. at 5, 806 So.2d at 110. Accordingly, the appellate court reversed the district court judgment granting the defendants’ exception of no cause of action.

IfiAs a preliminary matter, we note that, although they are often confused and/or improperly combined in the same exception, the peremptory exceptions of no cause of action and no right of action are separate and distinct. La.Code of Civ. Proc. art. 927(4) and (5). This court has recognized that one of the primary differ-enees between the two exceptions lies in the fact that a frequent focus in an exception of no cause of action is on whether the law provides a remedy against the particular defendant, while the focus in an exception of no right of action is on whether the particular plaintiff has a right to bring the suit. Benoit v. Allstate Ins., 2000-0424, p. 10 (La.11/28/00), 773 So.2d 702, 708 (emphasis added).

EXCEPTION OF NO CAUSE OF ACTION

First, we focus on whether the law provides a remedy against the particular defendant in this case. Id. The function of the peremptory exception of no cause of action is to question whether the law extends a remedy against the defendant to anyone under the factual allegations of the petition. Cleco Corp. v. Johnson, 2001-0175, p. 3 (La.9/18/01), 795 So.2d 302, 304. The peremptory exception of no cause of action is designed to test the legal sufficiency of the petition by determining whether the particular plaintiff is afforded a remedy in law based on the facts alleged in the pleading. Fink v. Bryant, 2001-0987, p. 3 (La.11/29/01), 801 So.2d 346, 348. The exception is triable on the face of the petition and, for the purpose of determining the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true. Cleco Corp., 2001-0175 at p. 3, 795 So.2d at 304; Fink, 2001-0987 at p. 4, 801 So.2d at 349. In reviewing a trial court’s ruling sustaining an 1 exception of no cause of action, the appellate court and this court should conduct a de novo review because the exception raises a question of law and the trial court’s decision is based only on the sufficiency of the petition. Cleco Corp., 2001-0175 at p. 3, 795 So.2d at 304; Fink, 2001-0987 at p. 4, 801 So.2d at 349. Simply stated, a petition should not be dismissed for failure to state a cause of action unless it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim which would entitle him to relief. Fink, 2001-0987 at p. 4, 801 So.2d at 349. Every reasonable interpretation must be accorded the language of the petition in favor of maintaining its sufficiency and affording the plaintiff the opportunity of presenting evidence at trial. Jackson v. State ex rel. Dept. of Corrections, 2000-2882, p. 4 (La.5/15/01), 785 So.2d 803, 806.

In its petition in the instant case, Industrial asserts an action for unjust enrichment. A cause of action for “enrichment without cause” was adopted by the 1995 Louisiana Legislature as La. Civ.Code art. 2298, and provides as follows:

A person who has been enriched without cause at the expense of another person is bound to compensate that person. The term “without cause” is used in this context to exclude cases in which the enrichment results from a valid juridical act or the law. The remedy declared here is subsidiary and shall not be available if the law provides another remedy for the impoverishment or declares a contrary rule.
The amount of compensation due is measured by the extent to which one has been enriched or the other has been impoverished, whichever is less.
The extent of the enrichment or impoverishment is measured as of the time the suit is brought or, according to the circumstances, as of the time the judgment is rendered.

Prior to the enactment of the above article, which codified the existing law, this court established five requirements for proving unjust enrichment, as follows: “(1) there must be an enrichment; (2) there must be an impoverishment; (3) there must be a connection between the enrichment and the resulting impoverishment; (4) there must |sbe an absence of ‘justification’ or ‘cause’ for the enrichment and impoverishment; and (5) there must be no other remedy at law available to plaintiff.” Corriere v. Bank of Louisiana, 95-3058, p. 17 (La.12/13/96), 702 So.2d 648, 651.

As summarized above, Industrial’s petition in the instant case sets forth the alleged facts of the case, including the fact that the checks were deposited into All South’s account. Industrial then asserts that “petitioner herein has no idea why the alleged services of defendant, All South Title, Inc., were utilized by the other defendants, as no. title work or sale was done as part of the services rendered to petitioner.” Industrial also alleges that Durbin agreed to charge a legal fee not exceeding $2,000 for handling the foreclosure, and that Industrial “never consented in any way to the retention by defendants of any sums or fees above a maximum of ... $2,000, and the retention of funds ... by defendants was unauthorized by petitioner and concealed from petitioner by defendants.” Finally, Industrial alleged as follows:

10
Petitioner herein shows that the defendants did not even have to attend a sheriffs sale on behalf of petitioner in connection with the above-specified foreclosure, as the then-defendants (Con-nells) paid the indebtedness owed prior to foreclosure by the sheriff of the parish of Livingston. The retention of the fees referred to above by the defendants herein amounted to unjust enrichment ... as the services rendered by the defendants were minimal, the fees to be charged for the services rendered were stipulated in advance, the outcome of the litigation was never in doubt, and petitioner never authorized the retention of the fees retained by defendants, nor were said fees ever accounted for to your petitioner.
11.
Petitioner herein shows that he only discovered the retention of the fees retained by defendants in late February, 1999 when he learned of the total amount collected from the Connells by defendants herein.

A de novo review of Industrial’s allegations, conducted in light of the legal principles governing exceptions of no cause of action, reveals that Industrial’s petition does state a cause of action for unjust enrichment because all five of the requirements |9for that cause of action are present. First, Industrial asserted that the defendants had been enriched by the retention of almost $40,000 from the funds tendered by the third-party purchaser of the property. Second, Industrial asserted that it had been impoverished by the defendant’s retention of the monies by virtue of the fact that Industrial, not the defendants, was entitled to all of the funds collected by Durbin in satisfaction of Industrial’s notes. According to the petition, those funds represent the gross recovery on the notes that belong to Industrial. Third, Industrial alleged a connection between the defendants’ enrichment and its resulting impoverishment, claiming that the defendants retained monies it was entitled to receive by virtue of its status as holder in due course of the notes. Fourth, Industrial asserted an absence of “justification” or “cause” for the enrichment and impoverishment, arguing that it had already paid the defendants the amount Durbin agreed to accept in return for its services in handling the foreclosure proee-dure. Fifth, Industrial’s petition indicates that no other remedy at law is available to redress the defendants’ improper retention of monies that should have been paid to Industrial.

The district court decision granting the defendants’ exception of no cause of action is apparently based on its belief that Industrial cannot recover under the theory of unjust enrichment because it will not be able to prove the second requirement discussed above — that it was impoverished as a result of the defendants’ retention of the funds. The transcript of the hearing on the defendants’ exceptions indicates that the trial judge focused primarily on the admission by Industrial’s attorney that the amount collected by Industrial was equal to the amount of principal and interest due under the notes. In fact, Industrial admits in its petition that it received that amount. |in Industrial nevertheless asserts that it was the rightful owner of all sums flowing from the notes because it was holder in due course of those notes, and that, to the extent Industrial did not get all the money collected in satisfaction of the notes, Industrial was impoverished.

We find that the district court’s decision to grant the exception of no cause of action on the basis of Industrial’s admission that it received all the principal and interest due under the promissory and collateral mortgage notes, including interest, was in error. On consideration of the defendants’ peremptory exception of no cause of action, the trial court’s only concern should have been whether the allegations in Industrial’s petition were sufficient to state a cause of action against the defendants for recovery of the funds. Acceptance of all the factual allegations of Industrial’s petition as true, as required on a trial of an exception of no cause of action, compels denial of the defendants’ exception.

We also find that the defendants’ only argument in support of the exception of no cause of action is not meritorious. The defendants claim that Industrial has no cause of action in unjust enrichment because Industrial cannot prove the fourth requirement of a cause of action in unjust enrichment — “an absence of ‘justification’ or ‘cause.’ ” The defendants asserted in the memorandum accompanying their exceptions that the amounts they retained were attorney fees that were stipulated under the promissory and collateral mortgage notes in question, and that Industrial, a non-attorney, cannot, under Louisiana law, be entitled to any attorney fees. However, as noted above, Industrial’s petition, while acknowledging that the defendants claim that the monies are attorney fees, asserts that the monies were “liquidated damages,” not attorney fees. Because an exception of no cause of action must be tried on the face In of the papers, the defendants’ argument in memorandum that the monies were actually attorney fees cannot form the basis for granting the exception.

As noted above, the well-pleaded facts of the plaintiffs petition must be accepted as true by a court deciding an exception of no cause of action. Cleco Corp., 01-0175 at p. 3, 795 So.2d at 304; Fink, 01-0987 at p. 4, 801 So.2d at 349. Thus, for purposes of this exception, this court accepts all of Industrial’s well-pleaded factual allegations, unaffected by the defendants’ contentions in pleadings, memoranda, and oral argument. Following our de novo review of Industrial’s petition in the instant case, we cannot say “beyond doubt that the plaintiff can prove no set of facts in support of any claim which would entitle him to relief.” Fink, 01-0987 at p. 4, 801 So.2d at 349. Considering only the allegations of Industrial’s petition, we find that the law does provide a remedy against these defendants in this case, if the well-pleaded allegations are borne out at trial. Benoit, 2000-0424 at p. 10, 773 So.2d at 708. Accordingly, the court of appeal properly reversed the district court’s judgment granting the exception of no cause of action.

EXCEPTION OF NO RIGHT OF ACTION

Second, we consider whether this particular plaintiff has a right to bring the suit in this case. Benoit, 00-0424 at p. 10, 773 So.2d at 708. Generally, an action can only be brought by a person having a real and actual interest which he asserts. La.Code Civ. Proc. art. 681. The exception of no right of action is designed to test whether the plaintiff has a real and actual interest in the action. La.Code Civ. Proc. art. 927(5). The function of the exception of no right of action is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit. Louisiana Paddlewheels v. Louisiana Riverboat Gaming Com’n, | ,¡>94-2015, p. 5 (La.11/30/94), 646 So.2d 885, 888. The exception of no right of action assumes that the petition states a valid cause of action for some person and questions whether the plaintiff in the particular case is a member of the class that has a legal interest in the subject matter of the litigation. Id.

Unlike the trial of an exception of no cause of action, evidence is admissible on the trial of an exception of no right of action to “support or controvert any of the objections pleaded, when the grounds therefor do not appear from the petition.” La.Code Civ. Proc. art. 931. No evidence was presented by defendants at the hearing on the exception of no right of action to support their claim that the funds they retained were attorney fees under the notes. Not even the promissory and collateral mortgage notes, which the defendants allege contain the stipulated attorney fee provisions, were introduced. In the absence of such evidence or any other evidence that supports their exceptions, the trial court erred in granting the exception of no right of action.

Because the defendants failed to present any evidence on the exception of no right of action, this court must decide, on the basis of Industrial’s allegations alone, whether Industrial belongs to the class of persons to whom the law grants the cause of action asserted in the suit. Industrial’s primary claims in this case are based on its contention that it was entitled to the monies retained by the defendants because of its status as holder in due course of the promissory notes and collateral mortgage notes. As holder in due course of the promissory notes secured by the collateral mortgage notes, Industrial asserts that it is the only party that has a right to receive all amounts collected by Durbin in satisfaction of the notes. On the basis of those assertions, we find that Industrial has a “real and actual interest” in the suit under La.Code of Civ. Proc. art. 927, and that Industrial belongs to a particular class to which the law grants |1sa remedy for the particular harm claimed. Louisiana Pad-dlewheels, 94-2015 at p. 5, 646 So.2d at 888. Accordingly, Industrial has a right of action against the defendants.

Alternatively, Industrial’s petition sets forth additional claims directed toward contradicting the defendants’ assertion that the monies they retained were attorney fees. First, Industrial asserts that defendant All South Title Inc. is not an attorney, and therefore is not entitled to receive attorney fees. Furthermore, according to Industrial’s petition, the checks from the Connells were deposited into All South’s account, an allegation that seems to call into question defendants’ assertions that the monies are attorney fees. Second, Industrial argues that the funds retained by the defendants could not have been attorney fees because Durbin represented Industrial and had already been paid $1,650 attorney fees, which was the total amount Durbin had agreed to charge for its involvement in this case. Third, Industrial claims that, if the monies were attorney fees, the defendants received dual payment for their legal services related to the foreclosure on the property and subsequent events.

Industrial hired Durbin to conduct the foreclosure and collect the proceeds of the note. Thus, Industrial has “a real and actual interest” in the action to recover the monies that the defendants retained. Industrial is a party to whom the law grants the cause of action asserted in the suit; therefore, Industrial has a right of action. Accordingly, the court of appeal properly reversed the district court judgment granting the exception of no right of action.

J^COMPULSORY JOINDER OF PARTIES

On its own motion, as allowed by La.Code of Civ. Proc. art. 645, the court of appeal found that the Connells were indispensable parties to this action under La.Code of Civ. Proc. arts. 641 through 647. It remanded the case for joinder of the Connells. La.Code of Civ. Proc. art. 641, which governs “Joinder of parties needed for just adjudication,” provides as follows:

A person shall be joined as a party in the action when either:
(1) In his absence complete relief cannot be accorded among those already parties.
(2) He claims an interest relating to the subject matter of the action and is so situated that the adjudication of the action in his absence may either:
(a) As a practical matter, impair or impede his ability to protect that interest.
(b) leave any of the persons already parties subject to a substantial risk of incurring multiple or inconsistent obligations.

A person should be deemed needed for just adjudication only when absolutely necessary to protect substantial rights. Pecoraro v. The Napoleon Room, Inc., 95-00511, p. 6 (La.App. 5 Cir. 12/13/95), 666 So.2d 1151, 1154, citing State Dept. of Highways v. Lamar Advertising Co. of Louisiana, 279 So.2d 671 (La.1973).

La.Code of Civ. Proc. art. 641 establishes two sets of circumstance under which a third-party may be considered a party needed for just adjudication. A person may be considered indispensable only if one of the two circumstances listed therein exists. First, under La.Code of Civ. Proc. Art. 641(1), a person may be considered a party needed for just adjudication if, absent his presence, “complete relief cannot be accorded among those already parties.” Second, under La.Code of Civ. Proc. art. 641(2), a person may be considered a party needed for just adjudication if that person |1Kclaims an interest relating to the subject matter of the suit and if the other conditions specified in that subpart are present.

Applying La. Code of Civ. Proc. art. 641(1), the appellate court specifically found that the Connells, as the makers of the note and payors of the funds, were indispensable parties under La. Code of Civ. Proc. Art. 641(1). The appellate court’s finding is premised on its assumption that the monies that Industrial claims the defendants improperly retained were stipulated attorney fees, a fact that has not been demonstrated on the record of this case, although, following a trial on the merits, that fact may well be established. Moreover, the Connells clearly do not qualify as a party needed for just adjudication under La.Code of Civ. Proc. art. 641(2) because they have not claimed an interest in recovery of the monies retained by the defendants and sought by Industrial.

Because the appellate court’s decision to order the joinder of the Connells is premised on a fact that has not been proven in the record of this case, the decision is premature at best. Given the facts that no exception of non-joinder of parties has been filed in this case and that it is not evident on the face of the record that the Connells qualify as parties needed for just adjudication, the court of appeal should not have ordered their joinder. Accordingly, the court of appeal’s decision to remand the case to the trial court for joinder of the Connells is reversed. When the case is remanded for trial, the district court judge can determine the nature of the disputed funds, after which the joinder issue may arise again.

I ? .DECREE

In summary, we find that the district court improperly granted the peremptory exceptions of no cause of action and no right of action filed by the defendants, and that the appellate court properly reversed the district court’s judgment granting the exceptions. Accordingly, the court of appeal decision reversing the district court is affirmed on those issues. For the reasons explained above, Industrial has stated both a cause of action and a right of action against the defendants.

However, the appellate court erred in granting the exception of non-joinder of an indispensable party. The judgment concerning that issue is reversed. The case is remanded to the district court for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; REMANDED TO DISTRICT COURT.

KIMBALL, J., dissents and assigns reasons.

JOHNSON, J., dissents.

KNOLL, J., dissents for reasons assigned by Justice KIMBALL.

KIMBALL, Justice,

dissenting.

I dissent from the majority’s ruling that the court of appeal property reversed the district court’s judgment granting defendants’ peremptory exception of no right of action. In my view, the district court properly found that plaintiff has asserted no real and actual interest in the instant action.

At the hearing on defendants’ exception of no right of action, plaintiffs attorney admitted that plaintiff had received the entire amount of principal and interest due on the indebtedness. Because plaintiff admitted that the Connells had satisfied then-obligations represented by the notes, plaintiff has no interest in contesting the reasonableness of the attorney fee paid to Durbin by the Connells. Plaintiff is not requesting return of the $1,650.00 it apparently paid to Durbin as an attorney fee. Plaintiff has received all monies due to it under the notes. Thus, in my view, plaintiff has no right to complain about attorney fees paid by another to Mr. Durbin. I would therefore reverse the judgment of the court of appeal and reinstate the district court’s judgment sustaining defendants’ peremptory exception of no right of action and dismissing plaintiffs suit with prejudice.

      . According to Durbin, the third-party purchasers contacted Durbin concerning their interest in purchasing the property. Durbin contends that it sent the prospective purchaser to another attorney, in order to avoid a conflict of interest.

      . Durbin admits that it retained certain funds from the sale of the property, but asserts that the funds represent attorney fees stipulated in the promissory and/or collateral mortgage notes in question. In fact, Durbin claims that the amount it received was less than the amount it was entitled to receive under the terms of the notes, which allegedly provided for a 40 percent attorney fee. Durbin stated in oral argument before this court that its decision to accept less than the 40 percent stipulated in the notes was motivated by the desire of the property owners to receive some part of the money from the sale. However, Durbin apparently did not discuss with its client. Industrial, its intention to retain these funds.
      Further, Industrial attached to its opposition brief filed in this court an interesting document entitled “Disbursement Sheet” for "Durbin v. Connell; Industrial Companies." A number of persons and entities to whom the $335,169.10 was disbursed is listed on the document. The document indicates that Industrial received $255,793.49, just as Industrial alleged. Moreover, the document indicates $34,778.41 was disbursed to All South as "profit.” The document does not mention either one of the Durbins or Durbin, Durbin & Durbin; nor does it refer to attorney fees. However, because the document was not offered into evidence, it does not control our decision in this case.

      . This is a difficult case to decide for a number of reasons. Although the defendants argue strenuously that their actions were appropriate because they were simply collecting attorney fees stipulated in the notes, the facts are clear that the defendants became involved in this case only because they agreed to represent Industrial in the foreclosure proceedings, for a certain specified legal fee. However, when the third-party purchasers surfaced, it appears that the defendants immediately allowed themselves to become involved in a possible conflict situation, despite their stated desire to avoid this result. The possible conflict to which we refer is a conflict between the interests of Industrial, who the defendants represented, and the personal interests of the defendants. It appears that the defendant attorneys might have diverted their attention from the client’s interest to their own. The bottom line in this case is that it may be that neither Industrial nor the defendants are entitled to the disputed funds, but it is impossible for this court to approve the court of appeal’s solution on the face of the record before us. The defendants elected to defend against Industrial’s unjust enrichment suit by filing peremptory exceptions of no cause of action and no right of action, then failed to present any record evidence to support those exceptions, not even the notes that are purportedly the foundation for their claim that the monies are attorney fees. Moreover, although Industrial’s petition alludes to the existence of promissory and collateral mortgage notes, it contains no assertion that the notes make provision for attorney fees, and, that assuming they are attorney fees, that the Durbins are entitled to all the funds. The defendants have not presented any theory for dismissing this case other than their unsupported contention that the amounts they retained are attorney fees. Under the circumstances, Industrial must be allowed the opportunity to pursue its claims against the defendants, at least until the nature of the disputed funds has been determined, and/or a showing has been made that the defendants' claim is better than Industrial's.

      . Industrial loosely characterizes the funds flowing from the notes that are not needed to pay specified parties as "liquidated damages.” However, as we do not believe that the funds fit that description, we have interpreted Industrial's allegations, as they were intended, to refer to rights flowing out of Industrial’s status as holder in due course of the notes.

      . Industrial claims also that, if the monies were attorney fees, the approximately $40,000 in attorney fees collected by the defendant attorneys for the insignificant work they performed in this case were unreasonably excessive. Although the court of appeal placed great significance on this argument, we note that Industrial would have no standing to challenge attorney fees paid by a party other than Industrial. It is clear that this expense was borne by the Connells out of monies that otherwise would have been profits from the sale of the property.

      . The 1995 amendments to Louisiana’s join-der articles, La.Code of Civ. Proc. Art. 641 et seq. eliminated the categories of "indispensable parties” and "necessary parties” in favor of a single category of "parties needed for just adjudication.”