author: POLEN, J. WARNER, J.,

text:
    Kenneth WILLIAMS, Appellant, v. STATE of Florida, Appellee.

      No. 4D06-1160.
    District Court of Appeal of Florida, Fourth District.
    July 11, 2007.
    Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    .. Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

Appellant Kenneth B. Williams was sentenced to 33.15 months in Florida State Prison with credit for 229 days time served after pleading no contest to delivery of cocaine and battery on a law enforcement officer. He subsequently filed a motion to withdraw his plea and appoint special public defender for purposes of arguing the motion pursuant to Florida Rule of Criminal Procedure 3.170(Z). The motion asserted ineffective assistance of trial counsel, an irreconcilable conflict of interest with counsel, and other grounds to be argued ore tewus. After a brief hearing where Williams was not present, the trial court summarily denied the motion based on its facial insufficiency, but did so without prejudice to Williams filing a pro se motion to withdraw plea, hire counsel to file an amended motion, or request the trial court appoint a special public defender to file such motion. Given the allegations, this was error. See Rivera v. State, 954 So.2d 695 (Fla. 4th DCA 2007) (citation omitted); see also Mattia v. State, 907 So.2d 683, 683 (Fla. 2d DCA 2005) (“A motion to withdraw plea filed pursuant to rule 3.170 is a critical stage of the proceedings in the trial court, and a defendant is entitled to be present at the hearing on his motion.”) (citations omitted); Scippio v. State, 855 So.2d 202, 203 (Fla. 1st DCA 2003) (“A defendant has the right to conflict-free counsel to argue his motion to withdraw plea.”).

We therefore reverse Williams’ convictions and remand for further proceedings in the trial court. Upon remand, conflict-free counsel shall be appointed to assist Williams in this cause. The trial court in its discretion may either accept an amended motion to withdraw plea, or hold an evidentiary hearing to further address any issues raised in the original motion. In either event, Williams is entitled to be present.

Reversed and Remanded tuith Instructions.

HAZOURI, J., concurs.

WARNER, J., concurs specially with opinion.

WARNER, J.,

concurring specially.

I concur because our prior precedent requires the result we reach. However, I have come to the conclusion that Florida Rule of Criminal Procedure 3.170(Z) has not achieved its intended purpose of resolving issues at the trial level. Instead, it creates issues and expense. This issue has been studied by the District Court of Appeal Performance and Accountability Commission and the Trial Court Performance and Accountability Commission through a joint postconviction rules workgroup chaired by Judge Altenbernd. In the final report, Judge Altenbernd discusses Rule 3.170(0:

Rule 8.170(1). This rule was created by the court in 1996 in response to the Criminal Appeal Reform Act. See In re Amendments to Florida Rules of Criminal Procedure, 685 So.2d 1253 (Fla.1996). It permits defendants to file motions to withdraw pleas after sentencing and before appeal. Such a motion stays rendition of judgments for appeal under Florida Rule of Appellate Procedure 9.020(h).
This rule was intended to give a defendant the benefit of counsel when filing a motion to withdraw plea and to give the defendant an opportunity to preserve an issue for direct appeal. At least from anecdotal information, attorneys rarely use this rule. When defendants file these motions pro se while still technically represented by trial counsel, substantial confusions arises. Often the lawyers proceed with an appeal without realizing that the judgment has not yet been legally rendered. The Second and the Fifth District Courts of Appeal have both held that pro se motions under this rule cannot be filed absent a conflict involving trial counsel. See Mourra v. State, 884 So.2d 316 (Fla. 2d DCA 2004); Whiting v. State, 929 So.2d 673 (Fla. 5th DCA 2006). This distinction is not easy to enforce. See Bermudez v. State, 901 So.2d 981 (Fla. 4th DCA 2005). The motion often requires the appointment of new, conflict-free counsel. See Mosley v. State, 932 So.2d 1239 (Fla. 1st DCA 2006). The rule does not contain the procedural specificity of rule 3.850 and has generated a number of reversals on appeal for failure to fulfill all procedural requirements.
Although rule 3.850 does not expressly state that a motion under that rule challenging a plea must be presented as a motion to withdraw a plea, that requirement is well-established in the case law. If rule 3.850 cannot be used to challenge issues that could and should have been raised on direct appeal, and if a motion under rule 3.170(Z) can be used to raise on direct appeal all issues arising from a plea, then rule 3.170(J) has completely supplanted rule 3.850 for issues related to pleas and movants no longer have two years to raise these issues. The district courts have generally declined to take this logical position, see Gidney v. State, 925 So.2d 1076 (Fla. 4th DCA 2006); Dooley v. State, 789 So.2d 1082 (Fla. 1st DCA 2001), but it is difficult to reconcile the language of these two rules. Courts have, however, sometimes held that a motion under 3.850 was successive because of an earlier motion under 3.170(Z). See Harris v. State, 801 So.2d 973 (Fla. 2d DCA 2001). Although a movant cannot allege ineffective assistance of counsel concerning representation on a motion under rule 3.850, see Lambrix v. State, 698 So.2d 247 (Fla.1996), since rule 3.170(Z) is a critical stage of proceedings prior to direct appeal, presumably it can support a claim of ineffective assistance of counsel.
The Workgroup believes that the benefit of rule 3.170(Z) is outweighed by the confusion it has created. It might be feasible to amend statutes to permit public defenders to have the discretion in rare cases to file postconviction motions when they believe defendants have a clear right to relief, but the current approach of supplying a lawyer for 30 days to provide this assistance in every case involving a plea is elusory.

Id. (Report on file with the supreme court).

At the Fourth District, we are seeing more and more cases where the defendant files a motion to withdraw a plea after sentencing occurs, vaguely indicating coercion by counsel or misrepresentation as to the sentence, even though these matters were fully reviewed at sentencing. Because of this conflict with counsel, new counsel must be appointed, increasing the cost of the proceedings. However, these motions are routinely denied after an evi-dentiary hearing, because there was no coercion or misrepresentation and the plea colloquy fully explored these issues. We have even received pro se motions claiming ineffective assistance of counsel, because the defendant has learned in prison that he had the “right” to move to withdraw his plea within thirty days of sentencing, and his lawyer did not inform him of this “right.” As far as I can tell, many defendants are abusing the use of rule 3.170(Z).

If I were writing on a clean slate, I would conclude that a motion to withdraw the plea after sentencing is not a critical stage of the proceedings, as the defendant has already pled and been sentenced. Therefore, the “proceedings” are in fact at an end with sentencing. Rule 3.170(Z) is a collateral, judicially-created proceeding which is not essential to due process. I fully concur with the workgroup’s recommendation to delete this rule. It has proved costly with little, if any, benefit.


source: Caselaw Access Project

author: PER CURIAM. STONE, J.,

license: Public Domain

text:
    J.R., a child, Petitioner, v. STATE of Florida, Respondent.
    No. 4D07-1361.
    District Court of Appeal of Florida, Fourth District.
    July 11, 2007.
    Howard Finkelstein, Public Defender, and Sarah W. Sandler, Assistant Public Defender, Fort Lauderdale, for petitioner.
    Bill McCollum, Attorney General, Tallahassee, and Thomas A. Palmer, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

J.R. files a petition for writ of prohibition to bar the circuit court from continuing to preside over his delinquency proceeding. We grant the writ.

At an adjudicatory hearing, the court found fourteen year old J.R. guilty of possessing a razor blade on middle school property. In a written statement, the juvenile explained that he had forgotten to remove the razor blade from his pants from the day before.

The motion for disqualification was based on the judge’s comments about J.R.’s attire during the adjudicatory hearing, which focused on J.R. wearing all black clothing, having black fingernails, and sporting a pierced ear. The judge asked J.R. if he was “wearing all black that day too?.... Is that the color you like going with? Black all the time?” The child then named several other colors that he also wore.

After a case manager told the judge that the child was not a danger to society, the judge appeared to question that assessment:

Well, you’re all telling me no; he’s walking around with a razor in his pocket; he’s wearing black; his fingernails are black; he’s got that thing in his ear ... I think if you look around at all the kids that are doing things in school, they’re dressing this way.

The child’s mother told the judge that the child had never been in a fight or hurt himself or anyone else. Defense counsel argued that the child’s manner of dress should not be taken into account; counsel reminded the judge that the child had no criminal or violent history. Counsel argued that the fact that the child “dresses in a certain way or that he has a piercing should not be taken into consideration at all with regards to sentencing ...”

The state disagreed, as did the judge, who further commented:

I mean, I’m no expert. I just know what I read in the papers, but it’s like Columbine, right? He’s dressed in black ... He’s depressed.

When defense counsel told the judge that the events of Columbine should not be taken into account, the judge replied, “Well, I don’t agree with you.”

The sentencing was set for a later date.

Florida Rule of Judicial Administration 2.330(f) requires a trial judge to “determine only the legal sufficiency” of a motion to disqualify. If a motion is “legally sufficient,” the judge “shall immediately enter an order granting disqualification and proceed no further in the action.” Id. A motion is “legally sufficient” if it shows the party’s well-grounded fear that the party will not receive a fair trial. See Livingston v. State, 441 So.2d 1083, 1087 (Fla.1983). Ruling on a disqualification motion “ ⅛ not a question of how the judge feels; it is a question of what feeling resides in the [movant’s] mind and the basis for such feeling.’ ” Wargo v. Wargo, 669 So.2d 1123, 1124 (Fla. 4th DCA 1996) (quoting State ex rel. Brown v. Dewell, 131 Fla. 566, 573, 179 So. 695, 697-98 (1938)). Whether a motion is legally sufficient is a question of law that is reviewed by an appellate court de novo. See Arbelaez v. State, 898 So.2d 25, 41 (Fla.2005).

Rucks v. State, 692 So.2d 976 (Fla. 2d DCA 1997), is similar to this case in that it involves a judge’s comments about a defendant’s lifestyle that would put a reasonable person in fear of not receiving a fair and impartial hearing. The judge in Rucks found that a female defendant violated conditions of probation by committing a battery on the daughter of the defendant’s live-in, female companion. The only aspect of the case that distinguished it from an ordinary domestic dispute was that the case involved a same-sex couple. After the close of the testimony, the judge’s comments reasonably put the defendant in fear that he was prejudiced against her because of her sexual orientation. The judge said: “I’ll tell you, ma’am. This is a sick situation;” “I’ve seen a lot of sick situations since I’ve been in this court. I’ve been in this profession for 27 years and this ranks at the top;” “If this is the family of 1997, heaven help us.” Id. at 977. The second district granted the defendant’s petition for writ of prohibition, finding that the defendant reasonably believed “that the judge was not offended by her violation of probation, or by the underlying crime for which it was originally imposed, but by her homosexual lifestyle in which she shared her live-in companion’s child-rearing responsibilities.” Id.

J.R.’s case is similar to many cases in juvenile court. The judge’s comments comparing his dress to students who create trouble in school, particularly those who caused the tragedy at Columbine, made it reasonable for J.R. to fear that he would be more harshly sentenced due to his appearance, apart from the facts of his case.

The writ of prohibition is granted.

KLEIN and GROSS, JJ., concur.

STONE, J., dissents with opinion.

STONE, J.,

dissenting.

I would deny the writ. In my judgment, the trial court’s comments do not reflect personal bias. It appears to me that the trial court was under the impression that Petitioner’s dress and conduct, causing concern, was a proper consideration in weighing disposition terms. Whether these factors, individually or combined, are proper considerations in this case would be a proper subject for appeal. I note that the court also expressed a willingness to abide by the recommendations of the child’s doctor or a psychiatric evaluation.

      . We assume that the judge was referring to the 1999 incident at Columbine High School in Littleton, Colorado, where two students shot to death twelve students and a teacher and wounded twenty-four others before committing suicide themselves.


author: PER CURIAM.

text:
    ROBERT DECK, INC., d/b/a, Labor Finders and Ace USA/ESIS, Appellants, v. Jimmie JOHNSON, Appellee.
    No. 1D07-2659.
    District Court of Appeal of Florida, First District.
    July 16, 2007.
    Jeffrey M. Novell of Hinshaw & Culbertson, LLP, Tampa, for Appellants.
    Sage Morris-Webster of Stump Webster Law, Orlando, for Appellee.
   PER CURIAM.

DISMISSED. Cadco Builders, Inc. v. Roberts, 712 So.2d 457 (Fla. 1st DCA 1998).

BROWNING, C.J., BENTON, and VAN NORTWICK, JJ., concur.


text:
    In re Joseph H. SIMPSON.
    No. 2007-B-0070.
    Supreme Court of Louisiana.
    June 29, 2007.

      Charles Bennett Plattsmier, Baton Rouge, Robert Samuel Kennedy, Jr., Shreveport, for applicant.
    Schiff Law Corporation, Leslie J. Sehiff, Opelousas, Simpson & Simpson, Joseph H. Simpson, Amite, Elizabeth A. Alston, New Orleans, for respondent.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

11This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Joseph H. Simpson, an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

Respondent is the subject of two separate sets of formal charges, consisting of a total of three counts, which were consolidated for hearing before the hearing committee. All of the charges arise out of the same operative facts, and many of these facts have been stipulated to by respondent and the ODC.

By way of background, Mrs. Betty Kin-chen Bankston died in Tangipahoa Parish in May 2000. Mrs. Bankston was a widow with no children of her own, but she was survived by numerous nieces and nephews who were the children of her eight siblings, all of whom predeceased her. Mrs. Bankston’s estate consisted of approximately $200,000 in cash as well as several hundred acres of timbered real estate initially valued at between $1.6 million and $2.6 million.

On July 3, 2000, Amite attorney Keith Rowe filed a petition to probate a statutory will which Mrs. Bankston had purportedly executed in November 1996. Succession of Betty Kinchen Bankston, No. 2000-030211 on the docket of the 21st Judicial District Court for the Parish of Tangipahoa. Mr. Rowe represented El-ston Sidney (E.S.) Bankston, who was one of Mrs. Bankston’s nephews and the sole residual legatee under the will. On the same day, the trial court ordered the will probated and appointed E.S. Bankston as executor of the succession.

During this time, some of the family members began to suspect that Mrs. Bankston’s signature on the probated will was a forgery or, alternatively, that she signed with the aid of others. There was also some question whether Mrs. Bank-ston was of sound mind when the testament was signed. On July 5, 2000, four heirs approached respondent to inquire about retaining his services to attack the probate of the will. After discussion, respondent informed the heirs that he would accept the representation only on a contingency fee basis and only if a handwriting expert could confirm that the will was a forgery. On the same day, respondent wrote to Robert Foley, a forensic document examiner, and asked him to review Mrs. Bankston’s will. On July 24, 2000, Mr. Foley sent respondent a written report in which he concluded that the signature on the will exhibited differences not observed in the other documents sent to him for comparison. Mr. Foley noted that these differences “may or may not be due to deterioration of health,” and he requested additional, more contemporaneous examples of Mrs. Bankston’s signature for review so that he could confirm his findings. On July 26, 2000, respondent telephoned Mr. Rowe and informed him that the will was a forgery. On July 28, 2000, respondent signed a one-third contingency fee agreement with twenty of Mrs. Bank-ston’s heirs.

|aOn August 2, 2000, respondent filed a two-page document styled “Petition to Set Aside Will” on behalf of his twenty clients, alleging that Mrs. Bankston’s will was invalid. Five days later, on August 7, 2000, Mr. Rowe informed respondent that he was withdrawing the will from probate and that Mrs. Bankston’s estate would be distributed in accordance with the law of intestate successions, as respondent’s clients had sought. Respondent, in turn, notified the handwriting expert that no further work would be required on his part because “[t]he defendant in this matter has ‘caved.’ ”

In the weeks following the unexpected capitulation by Mr. Rowe’s client, respondent’s clients made contact with other family members who were asked to join in the “contest” of Mrs. Bankston’s will. Ultimately, fourteen more heirs signed respondent’s contingency fee contract after the will contest was resolved on August 7, 2000. Respondent did not inform these fourteen clients that the will contest had already been abandoned, nor did he advise them that they were otherwise entitled to receive their portion of the estate without paying any attorney’s fees.

In early September 2000, respondent received from Mr. Rowe a check in the amount of $123,145, representing the portion of the cash assets of the succession owed to respondent’s 34 clients. Respondent deposited Mr. Rowe’s check into his client trust account and immediately wrote himself a check for attorney’s fees in the amount of $41,044.12, despite having performed minimal work in the matter to that point. Respondent did not obtain court approval for the fee disbursement, nor did he provide an accounting to his clients when he distributed the remainder of the funds to them in accordance with their respective interests in the succession.

|4On September 12, 2000, respondent filed an “Amended Judgment of Possession” which specifically recognized his fee interest in the case. The amended Judgment of Possession awarded respondent’s law firm “an undivided one-third (1/3) interest of the percentage interest of [respondent’s 34 clients] ... in and to all property comprising the assets of the estate of decedent, Betty Kinchen Bankston, including but not limited to the real estate, improvements and timber thereon, ...” Upon learning of respondent’s actions, Jeannette Rose Kinchen Perry, one of Mrs. Bankston’s nieces, filed a pleading seeking to annul the amended Judgment of Possession and challenging the amount of the attorney’s fee sought by respondent as unreasonably excessive. In August 2001, Ms. Perry filed a disciplinary complaint against respondent on the same grounds.The trial court subsequently granted summary judgment in favor of respondent dismissing the excessive fee claim. This judgment was reversed by the First Circuit Court of Appeal and the matter was remanded for trial on the issue of the reasonableness of the attorney’s fee sought by respondent. Succession of Bankston, 02-0548 (La.App. 1st Cir.2/14/03), 844 So.2d 61, unit denied, 03-0710 (La.5/9/03), 843 So.2d 400. Following remand, respondent and Ms. Perry reached a confidential settlement, and thus no trial was ever conducted.

On July 31, 2002, while the Bankston succession was still pending, respondent filed a petition for damages against Ms. Perry, alleging that various statements she made in the pleadings filed in the succession proceeding constituted defamation per se and false light invasion of privacy. Joseph H. Simpson v. Jeannette Rose Kinchen Perry, No. 2002-002580 on the docket of the 21st Judicial District Court for the Parish of Tangipahoa. On September 10, 2002, the trial court confirmed a $50,000 default | ¡judgment against Ms. Perry and in favor of respondent. Thereafter, Ms. Perry filed a motion for new trial, asserting that she had not been served with the petition for damages prior to the entry of the judgment against her. The trial court denied the motion, finding credible the testimony of a St. Tammany Parish sheriffs deputy who asserted that he had personally served the petition upon Ms. Perry at her home. On February 21, 2003, Ms. Perry filed a petition for nullity, on the ground that the same sheriffs deputy had been dismissed from the sheriffs office and arrested on multiple counts of malfeasance in office and injuring public records for “falsely claiming to have served at least two dozen court documents and trying to hide hundreds more in the woods,” Respondent opposed Ms. Perry’s petition, and the trial court refused to set aside the default judgment.

Ms. Perry suspensively appealed the trial court’s ruling. In résponse, respondent brought a motion to traverse the appeal bond as insufficient. The trial court granted the motion and rejected Ms. Perry’s bond. The court of appeal subsequently vacated the $50,000 default judgment and dismissed respondent’s suit. Simpson v. Perry, 03-0116 (La.App. 1st Cir.7/14/04), 887 So.2d 14.

DISCIPLINARY PROCEEDINGS

As previously noted, the ODC filed two separate sets of formal charges against respondent which were ultimately consolidated for hearing purposes. The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.4 (failure to communicate with a client), 1.5 (fee arrangements), 1.8 (conflict of interest), 1.15 (safekeeping property of clients or third persons), 4.4 (respect for rights of third persons), 7.2(a) (direct contact with prospective clients), and 8.4(c) (engaging in conduct involving dishonesty, fraud, | fjdeceit, or misrepresentation). The ODC further alleged that respondent violated the immunity provisions of Supreme Court Rule XIX, § 12(A) when he filed suit against the complainant, Jeannette Perry. Respondent answered the formal charges and denied any misconduct. In particular, respondent asserted that his attorney’s fees were not excessive and were fully earned under the contingent fee contracts signed by the various heirs.

Hearing Committee Recommendation

Following the hearing on the merits of the formal charges, the hearing committee submitted its report to the disciplinary board. The committee adopted the stipulated facts and made additional factual findings based upon the evidence in the record. The committee noted that respondent did little meaningful legal work in the short time that the succession proceeding was contested, but nevertheless he sought to “became the owner of a one-third interest in a 2 million dollar estate.” With regard to the litigation involving Ms. Perry, the committee found that her lawsuit contesting respondent’s fee interest in the succession “did not call for the response visited upon her by Respondent.” The committee noted that the allegations of Ms. Perry’s petition were not libelous, and commented that “there is absolutely no way a reasonable mind could believe” otherwise. Ms. Perry had to appeal the defective default judgment entered against her before the issues between the parties were eventually compromised.

Considering the ABA’s Standards for Imposing Lauryer Sanctions, the committee found that the baseline sanction for respondent’s misconduct is disbarment. The committee cited ABA Standard 4.31(a), which provides that disbarment is generally appropriate when a lawyer, without the informed consent of |7his client, engages in the representation of the client knowing that the lawyer’s interests are adverse to the client’s with the intent to benefit the lawyer or another, and causes serious or potentially serious injury to the client. The committee also cited ABA Standard 4.62, which provides that suspension is generally appropriate when a lawyer knowingly deceives a client and causes injury or potential injury to the client.

The committee observed that this court has in the past suspended lawyers for misconduct similar to respondent’s. In In re: Comish, 04-1453 (La.12/13/04), 889 So.2d 236, the lawyer failed to adequately supervise his paralegal, allowing him to meet with clients, handle legal fees, correspond with attorneys and insurance adjusters, render legal opinions, and negotiate settlements. Cornish also failed to act with competence and diligence in preparing a will, neglected his client’s legal matter, and failed to adequately communicate with his client. For this misconduct, Cornish was suspended from the practice of law for a period of three years; however, in consideration of the significant mitigating factors, the court deferred all but one year and one day of the suspension. In In re: Boydell, 00-0086 (La.5/26/00), 760 So.2d 326, the lawyer was suspended for three years for charging an excessive legal fee and then engaging his client in nearly ten years of lengthy and protracted litigation over the fee. Finally, in Louisiana State Bar Ass’n v. Alker, 530 So.2d 1138 (La.1988), the lawyer engaged in an extensive pattern of misconduct, including charging excessive legal fees, failing to account for his clients’ funds, and converting the funds to his own use. Because Alker was already disbarred, the court extended the minimum period within which he could apply for readmission for an additional five years from the finality of its judgment.

Is As aggravating factors, the committee found the following: dishonest or selfish motive, a pattern of misconduct, multiple offenses, refusal to acknowledge the wrongful nature of the conduct, vulnerability of the victim, and substantial experience in the practice of law (admitted 1961). In mitigation, the committee recognized the following: absence of a prior disciplinary record and a cooperative attitude toward the disciplinary proceeding.

Under these circumstances, the committee recommended that respondent be suspended from the practice of law for one year and one day. In addition, the committee recommended that respondent “should forego any contingency interest in the succession and should be paid strictly reflecting the amount of time he invested in this suit which, according to him, constituted thirty hours and he should also be reimbursed for any costs expended. A condition should be imposed upon the Respondent to pay restitution to the heirs of any unearned fees.”

After the committee issued its report, respondent filed a motion seeking reconsideration and/or rehearing by the committee. Specifically, respondent sought reconsideration of the committee’s finding that he should forfeit the fees stemming from his representation of the first twenty heirs. The hearing committee chair denied respondent’s motion. Respondent then filed an objection to the hearing committee’s report and recommendation, likewise raising the forfeiture issue. Respondent also asserted that he should be exonerated from any finding of misconduct, and that the committee’s recommendation of suspension should be rejected.

| ¿Disciplinary Board Recommendation

The disciplinary board generally accepted the hearing committee’s factual findings, with the exception of a statement by the committee that respondent “had evidence from his handwriting expert that the will was indeed a forgery....” The board noted that the handwriting expert merely suspected the will was a forgery, and he had requested further writing samples be provided to him before he could be certain.

After reviewing the evidence in the record, the board made the following determinations regarding rule violations:

Rule 1.4: Respondent never personally met or talked with the fourteen heirs who agreed to retain him after August 7, 2000, the date when he learned from Mr. Rowe that the succession would not be contested. Respondent failed to give these fourteen clients basic and essential information concerning the succession, particularly the fact that the will had been "withdrawn from probate and that there was no longer an active will contest. Violations of Rule 1.4(a) and Rule 1.4(b) are clearly present.

Rule 1.5: Respondent contends that he is owed a fee of approximately $130,000 under his contingency fee contract dated June 28, 2000. The board determined that this fee is clearly unreasonable, given respondent’s admission that he worked only twenty to thirty hours on this matter. Moreover, respondent filed only one pleading in the succession matter, namely a two page, five-paragraph pleading entitled “Petition to Set Aside Will.” A violation of Rule 1.5(a) has been established by the ODC.

ImRule 1.8: As previously noted, respondent allowed the fourteen heirs to retain him as their attorney without informing them that Mr. Rowe’s client had withdrawn the will from probate. By doing so, respondent used information that he received during his representation of the other heirs to the disadvantage of these clients. The fourteen heirs would have received more in their initial settlement checks had respondent not been retained and his attorney’s fee not been taken out of their initial inheritance amounts. Moreover, had Ms. Perry not filed a complaint, respondent may have never been required to return these fees to these fourteen heirs. A violation of Rule 1.8(b) has been established by the ODC.

Rule 1.15: Respondent received $123,145 in succession funds from Mr. Rowe, deducted his fee of $41,044.12 from that amount, and then distributed the balance to his 34 clients. The disbursement sheet provided to the clients showed only the total amount of cash available for distribution, the percentage of the amount to which the heir was entitled, and the statement that “your check represents your interest, minus my attorney fee of 1/3.” No specific information concerning the exact amount of the inheritance sum and the exact amount of the attorney’s fee was given to the client. Respondent has now admitted that he improperly withheld his attorney’s fee from the initial inheritance checks paid to the fourteen heirs. By doing so, respondent failed to promptly deliver to his clients the funds that the client was entitled to receive, thus violating Rule 1.15(b).

Rule 4.4 and Supreme Court Rule XIX, § 12(A): By opposing Ms. Perry’s lawsuit, which was filed in an attempt to forestall respondent’s efforts to collect an excessive fee, respondent engaged in conduct that has burdened her with unnecessary litigation. Respondent also filed a meritless defamation suit against Ms. Perry, obtained a $50,000 default judgment against her, and opposed her appeal through the lnFirst Circuit Court of Appeal. As a result, Ms. Perry incurred over $63,000 in legal fees. Given respondent’s concession that the fee should have been returned to Ms. Perry, the litigation he conducted following the filing of her Petition to Annul the Amended Judgment can be described as nothing short of vexatious and contrary to Rule 4.4 and Rule XIX, § 12(A).

Rule 7.2(a): Respondent has admitted that he provided contingency fee contracts to several of the clients who initially contacted him regarding Mrs. Bankston’s will. These clients “took those contracts out and had different ones sign them.” Respondent did not speak with those individuals and was not present when the contracts were signed, and in at least three cases, he had no prior personal or professional relationship with the family members who signed the contracts. Respondent sought to gain monetarily by “signing up” as many heirs as possible. Under these facts, a violation of Rule 7.2(a) has been established by the ODC.

Rule 8.4(c): Respondent failed to give the fourteen heirs basic and essential information concerning the succession; he was dishonest by not telling the clients that there was no longer a will contest. He tricked the clients into signing contingency contracts when no contingency existed. The net result was that a fraud was committed upon the unsuspecting clients. When one client later protested by suing, respondent used the court system to hammer the client into submission by making the pursuit of justice economically impossible. Because of his lack of candor with his clients, he also initially charged and collected a one-third legal fee as to each client’s inheritance. Such conduct is dishonest and deceitful. A violation of Rule 8.4(c) has been established by the ODC.

The board found respondent violated duties owed to his clients, the public, and the profession. His conduct was knowing and intentional, and caused significant |iainjury. First, he deprived the fourteen heirs of their proceeds, which he unjustly withheld in September 2000. He also failed to tell these individuals that Mr. Rowe’s client had withdrawn the will, thus engaging them in needless litigation concerning the will. He also caused Ms. Perry to expend over $63,000 in legal fees to litigate her claim over his excessive fee and to defend against his merit-less defamation suit. These legal fees remain unpaid, and at the hearing Ms. Perry’s attorney expressed her doubt that the obligation will ever be satisfied. Finally, the legal profession has been harmed by respondent’s use of heirs to “sign up” other clients.

Turning to the issue of an appropriate sanction, the board determined that the baseline sanction for respondent’s misconduct is disbarment. ABA Standard 4.61 provides that disbarment is generally appropriate when a lawyer knowingly deceives a client with the intent to benefit the lawyer or another, and causes serious or potentially serious injury to the client. Respondent knowingly failed to inform the fourteen heirs of the basic information that the will had been withdrawn by Mr. Rowe’s client and that there was no longer an active will contest. Because of his lack of candor with his clients, he initially charged and collected a one-third legal fee as to each client’s inheritance. Such conduct caused actual, serious injury to these clients. Respondent then attempted to have his fee interest recognized in the judgment of possession without authority to do so and without consent of the parties. This conduct amounts to fraud by an attorney using the legal system for his personal gain. Had Ms. Perry not filed a complaint against respondent, these fourteen heirs may have permanently lost the legal fee they paid to respondent.

ABA Standard 5.11 permits disbarment when a lawyer engages in intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer’s fitness to practice. By failing to give the fourteen | theirs truthful information concerning the will contest, respondent acted dishonestly and misrepresented the status of the case to these unsuspecting clients. When questioned, he used the court system in an attempt to intimidate and financially burden Ms. Perry into submission. Such conduct is completely reprehensible and seriously adversely reflects on respondent’s fitness to practice law.

Likewise, Standard 7.1 provides that disbarment is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional, with the intent to benefit the lawyer or another, and causes serious or potentially serious injury to a client, the public, or the legal system. By failing to be truthful with all of his clients, and by causing others to improperly solicit clients on his behalf, respondent violated duties he owes as a professional. Such conduct has the potential to cause serious injury not only to clients, but also to the legal system.

Finally, Standard 4.31 permits disbarment when a lawyer, without the informed consent of clients, engages in the representation of a client knowing that the lawyer’s interests are adverse to the client’s with the intent to benefit the lawyer or another, and causes serious or potentially serious injury to the client. Respondent engaged in a conflict of interest when he did not inform the fourteen heirs that the will had been withdrawn from probate and when he allowed them to retain him as their attorney. By doing so, respondent used information that he received during his representation of the other heirs to the disadvantage of these clients; these fourteen heirs would initially have received more inheritance funds had respondent not been retained and had his attorney’s fee not been taken from their initial settlement cheeks. Again, potentially serious injury was present. Had Ms. Perry not filed her complaint, respondent may have never returned the fees paid by these fourteen heirs.

[ t4In mitigation, the board recognized that respondent has no prior disciplinary record and that he demonstrated a cooperative attitude toward the disciplinary proceeding. The board found the record supports the following aggravating factors: dishonest or selfish motive, a pattern of misconduct, multiple offenses, refusal to acknowledge the wrongful nature of the conduct, vulnerability of the victim, and substantial experience in the practice of law.

Considering the prior cases involving misconduct similar to respondent’s, the board found that the one year and one day suspension recommended by the hearing committee is too lenient. As to the excessive fee issue, the board considered In re: Levingston, 00-0161 (La.2/25/00), 755 So.2d 874, a consent discipline matter in which this court imposed a three-year suspension upon a lawyer who charged a grossly excessive legal fee in a succession matter. As to the vindictive litigation brought against Ms. Perry by respondent, the board looked to the Boydell case cited by the committee. Finally, as to the solicitation issue, the board found that In re: Sledge, 03-1148 (La.10/21/03), 859 So.2d 671, is instructive. In Sledge, the attorney was disbarred for paying money to current and former clients for referring prospective clients to him, as well as for neglecting legal matters and failing to adequately supervise his non-lawyer staff. The board noted the instant matter is similar to Lev-ingston in that respondent contends he is owed a large fee, approximately $130,000, for twenty to thirty hours of legal work, which included the filing of only one pleading in the court record. The case is also akin to Boydell in that respondent engaged in harassing and malicious litigation against Ms. Perry, causing her to incur legal fees of over $63,000. Further, like the respondent in Sledge, respondent has engaged in the improper practice of solicitation of clients by using other persons in 11Bviolation of former rule 7.2(a). Unlike Mr. Sledge, however, there is no evidence in the record to suggest that respondent gave monetary or non-monetary compensation to these individuals for “signing up” the clients for him. Further, no allegations have been made that respondent neglected legal matters or failed to supervise his non-lawyer employees.

Considering all of the circumstances of this matter, the board found there is no reason to deviate from the baseline sanction of disbarment. Accordingly, the board recommended that respondent be disbarred. The board also recommended that respondent forego any contingency interest in the Bankston succession; that he be paid a reasonable attorney’s fee which strictly reflects the amount of time he invested in the succession matter, which the board found was thirty hours; that he be required to pay restitution to the heirs of any unearned fees; and that he be reimbursed for any costs he expended in the succession matter. Finally, the board recommended that respondent be assessed with all costs of these proceedings.

Both respondent and the ODC filed objections to the disciplinary board’s recommendation. Accordingly, the case was docketed for oral argument pursuant to Supreme Court Rule XIX, § 11(G)(1)(b).

DISCUSSION

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

Based upon our review of the record, we conclude that respondent’s misconduct in this matter falls into two principal categories: (1) charging an excessive legal fee and (2) engaging in harassing litigation with his client.

As to the issue of the legal fee, the record reveals that respondent has entered into one-third contingency fee contracts with his 34 clients. Respondent collected $41,044.12 in fees in September 2000 when he distributed the cash funds of the succession to his clients. Moreover, while respondent has agreed to forego any contingency fee from the second group of fourteen clients, he contends that he is still owed approximately $130,000 under his contingency fee contract with the first group of twenty clients. Considering respondent’s admission that he worked only twenty to thirty hours on the succession matter before it was resolved, we find these attorney’s fees are clearly excessive.

Turning to the issue of the harassing litigation, we agree with the hearing committee and the disciplinary board that respondent’s conduct in the litigation against his client, Jeannette Perry, was nothing short of abusive. Respondent opposed Ms. Perry’s lawsuit which she filed in an effort to foreclose his assertion of an improper ownership interest in her aunt’s succession, and he filed a meritless defamation suit against her. Respondent even opposed his client when it came to light that she was not served with the suit prior to the entry of the default judgment against her. As a result of this vexatious litigation, Ms. Perry incurred substantial Illegal fees and suffered needless worry and distress. Respondent’s actions caused actual and substantial harm to Ms. Perry, as well as to the legal system.

Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent’s actions. In considering that issue, 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 violated duties owed to his clients, the public, and the profession. His conduct was knowing and intentional, and caused substantial harm. The applicable baseline sanction ranges from a lengthy suspension to disbarment.

In mitigation, we recognize that respondent has practiced law in Louisiana for more than forty-five years, with only one minor blemish on his disciplinary record during that time. He also enjoys a good reputation in the legal community in which he practices. Considering these facts, we will impose a three-year suspension from the practice of law, but defer all but one year and one day of the suspension, subject to the following conditions: (1) respondent must make restitution of all excessive fees to his clients; (2) respondent must relinquish all claims to the fees being held by the Tangipahoa Parish Clerk of Court; (3) respondent must make restitution to Jeannette Rose Kinchen Perry and her attorney for any fees incurred in defense of the vexatious litigation filed by respondent.

hsDECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, briefs, and oral argument, it is ordered that Joseph H. Simpson, Louisiana Bar Roll number 8259, be and he hereby is suspended from the practice of law for three years. It is further ordered that all but one year and one day of the suspension shall be deferred, subject to the conditions set forth in this opinion. 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 December 2004, the real estate was sold at a sheriff's sale for $1.37 million. The funds were placed into the registry of the court and were to be divided after an audit and the payment of taxes, fees, and expenses.

      . Respondent required that his clients advance all court costs and the expenses of the handwriting expert because "he did not believe that this was the kind of case in which he would be willing [to] invest his personal funds." See Joint Stipulation of Facts, ¶ 13. Moreover, respondent included a clause in the contingency fee agreement which provided that "[i]f the handwriting expert cannot testify that the will is a forgery, suit will be discontinued.”

      . Respondent did not keep timesheets or other records reflecting the amount of time he actually spent working on this matter; however, he has estimated that prior to the resolution of the will contest on August 7, 2000, he worked on the matter for approximately twenty to thirty hours. See Joint Stipulation of Facts, ¶ 30. Notably, the hearing committee made a factual finding that “[t]here is very little evidence that Respondent did much more, if in fact he spent that much time.”

      .Ms. Perry was not one of respondent's twenty original clients; rather, she was one of the group of fourteen clients who signed the contingency fee agreement after the will contest was resolved on August 7, 2000.

      . This finding is in error. As respondent admits in his brief filed with this court, he was previously admonished by the disciplinary board for “an illegal campaign contribution.”

      . The board made a finding that respondent entered into a valid contingency fee agreement with the twenty clients who signed the agreement on June 28, 2000. The board reasoned that "the ‘risk’ of whether or not the will was valid was still in existence at the time the contract was signed by [the] first group of twenty heirs.... ”

      . Again, this finding is in error. See note 5, supra.

      . Respondent testified at the disciplinary hearing that he has agreed to abandon any claim for attorney's fees paid by the second group of fourteen clients; however, he admitted that he had not yet actually returned funds to any of those clients, with the exception of Ms. Perry, because "she had brought a lawsuit.”


author:
PER CURIAM.
      KNOLL, J.,

text:
    In re Stephen K. PETERS.
    No. 2007-B-0349.
    Supreme Court of Louisiana.
    June 29, 2007.

      Charles Bennett Plattsmier, Baton Rouge, Damon Shawn Manning, for applicant.
    Stephen King Peters, Baton Rouge, for respondent.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

1 iThis disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Stephen K. Peters, an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

The Kibby Matter

In 1991, Eloise Kibby paid respondent $1,200 to represent her in a divorce, child custody, and child support matter. In April 1991, respondent filed a petition for divorce on behalf of Ms. Kibby. In July 1991, the judge signed a stipulated judgment which resolved the custody and support issues. Thereafter, respondent abandoned the case without obtaining a judgment of divorce. Ms. Kibby was unaware that respondent had not obtained a judgment of divorce until several years later, when this fact was brought to her attention by another lawyer.

The Osborne Matter

The facts of this matter are not in dispute, as they have been stipulated to by the parties.

In August 1999, Mary Osborne hired respondent to represent her in a Chapter 13 bankruptcy. Respondent’s $1,000 fee was paid from the bankruptcy plan. Ms. | ¡.Osborne’s bankruptcy was filed on August 30, 1999 and confirmed on December 1, 1999. In February 2000, Ms. Osborne’s mortgage company moved to lift the automatic bankruptcy stay on her home, to which motion respondent filed an objection. The hearing on the motion was continued twice in order to allow Ms. Osborne time to modify her bankruptcy plan to cure the arrearage pertaining to her mortgage. Copies of certain documents which were to be used in support of the modified plan were hand-delivered by Ms. Osborne to respondent’s office on March 3, 2000. Because respondent’s office misplaced the copies, she hand-delivered a second set on April 18, 2000. Nonetheless, respondent did not modify the bankruptcy plan. Consequently, on April 19, 2000, the automatic stay was lifted and the mortgage company was allowed to proceed with foreclosure.

The Modeliste Matter

The facts of this matter are not in dispute, as they have been stipulated to by the parties.

In early 2003, Samantha Modeliste hired respondent to represent her in a Chapter 13 bankruptcy. Respondent required that Ms. Modeliste pay $600 in advance legal fees plus $185 for filing fees. The remainder of respondent’s $1,200 fee was to be paid through the bankruptcy plan. On January 13, 2003, Ms. Modeliste paid respondent $600 plus the $185 earmarked for the filing fee. On January 14, 2003, before signing the bankruptcy documents, Ms. Modeliste notified respondent that she had changed her mind about fifing bankruptcy. Although she requested a full refund, respondent claimed that he had already completed the bankruptcy documents, thereby earning the $600 retainer. On January 16, 2003, respondent refunded the |⅞$185 fifing fee to Ms. Modeliste. However, for the three days the $185 was in his possession, respondent failed to maintain those funds in his trust account and instead commingled the funds with his own funds.

The King Matter

The facts of this matter are not in dispute, as they have been stipulated to by the parties.

In June 2003, Charlella King hired respondent to represent her in a Chapter 13 bankruptcy. Respondent required that Ms. King pay $600 in advance legal fees plus $185 for fifing fees. The remainder of respondent’s $1,200 fee was to be paid through the bankruptcy plan. In July 2003, Ms. King paid respondent $600 plus the $185 earmarked for the fifing fee. Approximately three weeks later, before signing the bankruptcy documents, Ms. King notified respondent that she had changed her mind about fifing bankruptcy. Although she requested a full refund, respondent claimed that he had already completed the bankruptcy documents, thereby earning the $600 retainer. On August 28, 2003, respondent refunded the $185 fifing fee to Ms. King. However, for the approximately two months- the $185 was in his possession, respondent failed to maintain those funds in his trust account and instead commingled the funds with his own funds.

The First Commingling Matter

The facts of this matter are not in dispute, as they have been stipulated to by the parties.

|40n December 26, 2002, respondent deposited $1,584.66 in personal funds into his client trust account. He commingled these personal funds in his trust account for approximately one year, until December 4, 2003. Furthermore, between December 2003 and July 2004, there was no activity in respondent’s client trust account. The balance in the trust account during this period was $2,638.72, of which $1,735 was disputed fees maintained in trust. However, the remaining $903.72 represented respondent’s personal funds commingled in the trust account.

The Cummings Matter

In 2001, Daniel and Janet Cummings filed for Chapter 13 bankruptcy, which was later converted to a Chapter 7 bankruptcy. On September 15, 2003, the Cummings hired respondent to represent them in filing another Chapter 13 bankruptcy. After the Cummings disclosed to respondent the details of their prior bankruptcy, he agreed to handle their case for $1,200. Respondent required that the Cummings pay $600 in advance legal fees plus $185 for filing fees. On the same date, the Cummings paid respondent $750, leaving a $35 balance owed toward the required advance payments. The Cummings understood that respondent would not start working on their case until they paid the balance due.

The next day, the Cummings notified respondent that they had decided not to file bankruptcy. Although they requested a full refund, respondent claimed that he had already begun working on their case; therefore, he only refunded $375.

In October 2003, the Cummings returned to respondent for help filing a Chapter 7 bankruptcy. Respondent’s fee was $700; however, since he had previously retained $375 paid by the Cummings, he agreed to handle the Chapter 7 bankruptcy for an additional $325. The Cummings paid respondent $325 on October 6, 2003. Approximately one week later, respondent advised the Cummings that they were not | ^eligible for Chapter 7 relief because they had previously filed a Chapter 7 bankruptcy in 2001. Despite this fact, respondent only refunded $100 to the Cummings.

The Cummings disputed that respondent earned any of the $600 fee he kept. Nonetheless, respondent failed to deposit the disputed fee into his client trust account and failed to provide the Cummings with an accounting. The disputed fee issue has been referred to the LSBA’s fee dispute resolution program.

The Vance Matter

In March 2000, Ida Vance hired respondent to represent her in filing Chapter 7 bankruptcy. Ms. Vance paid $400 towards respondent’s $700 fee and understood that respondent would not begin working on her case until she paid the $300 balance.

Subsequently, Ms. Vance contacted respondent and requested a full refund because she was unable to pay the $300 and did not wish to proceed with the bankruptcy. However, respondent claimed he had already begun working on her case; therefore, he only agreed to refund $200. Ms. Vance refused to accept anything less than a full refund, and no refund was provided at that time.

Some time later, Ms. Vance contacted respondent again to request a refund of the $400 she paid. By this time, respondent was only willing to refund $100 and forwarded a check in that amount to Ms. Vance in January 2004. Ms. Vance returned the check to respondent with a written request for a full refund. Respondent failed to comply with this request. Furthermore, despite the existence of the fee dispute, respondent failed to deposit the disputed funds into his client trust account and failed to provide Ms. Vance with an accounting. The disputed fee issue has been referred to the LSBA’s fee dispute resolution program.

| RThe Bessie Matter

In March 2004, Charley Bessie consulted with respondent about filing a Chapter 13 bankruptcy. Respondent agreed to handle the case for $1,500. Respondent required that Mr. Bessie pay $600 in advance legal fees plus $194 for filing fees. On April 1, 2004, Mr. Bessie paid respondent $794. Respondent then provided him with documents to review and sign. However, later that same day, before Mr. Bessie signed the documents, he terminated the representation and requested a refund. Respondent claimed to have earned the $600 advance fee and agreed only to refund the $194 in filing costs. Respondent issued a check to Mr. Bessie from his operating account in that amount. Respondent failed to deposit the disputed fee into his client trust account and failed to provide Mr. Bessie with an accounting. The disputed fee issue has been referred to the LSBA’s fee dispute resolution program.

The Melanie Williams Matter

Melanie Williams Sinclair worked as respondent’s secretary from approximately 1989 to 1994. In December 1995, Melanie separated from her husband, Dorman Sinclair, and instituted divorce proceedings in the East Baton Rouge Parish Family Court. Sometime after the petition was filed, respondent began to pursue a romantic relationship with Melanie.

In February 1996, respondent began representing Melanie in her divorce proceeding. On May 29, 1996, respondent prepared and notarized a motion to proceed in forma pauperis on Melanie’s behalf. Notably, in response to the question |7“Po you have any income or asset which is not shown above?,” respondent did not disclose to the Family Court that he was personally providing Melanie with substantial financial assistance. Specifically, between April 28, 1996 and May 27, 1997, respondent gave Melanie a total of $82,781.00 in checks payable to her or to third parties on her behalf.

In October 1996, a judgment of divorce was granted in Melanie’s divorce proceeding. Respondent continued to represent Melanie in settlement efforts regarding community property and other matters. In February, March, and April 1997, Dor-man’s attorney forwarded written settlement offers to respondent; however, respondent failed to convey the offers to Melanie.

In June 1997, Melanie terminated respondent’s representation. The community property issues were ultimately resolved through a consent judgment prepared by Dorman’s attorney.

The Neinstedt Matter

In 1998, respondent represented Vernon Neinstedt in a Chapter 7 bankruptcy. Mr. Neinstedt owned a boat that he planned to relinquish through the bankruptcy. Respondent wanted to purchase the boat as a gift for Warren Williams (Melanie Williams’ brother) and his nephew, so he arranged for Warren to buy the boat from the bankruptcy trustee. Respondent misled both his client and the bankruptcy trustee |8into believing that Warren was the actual purchaser when, in fact, respondent funded the transaction.

The Warren Williams Matter

In July 1998, respondent used his own money to form GZP, Inc., a Louisiana corporation. Through GZP, Inc., respondent then purchased a video store for the purpose of giving the store as a gift to Warren Williams to own and operate. In mid-2000, when respondent’s relationship with Warren and his sisters, Melanie Williams and Johanna Porche, soured, respondent sought monetary reimbursement from Warren for his “interest” in GZP, Inc. and the video store. On June 23, 2000, respondent wrote to Warren and demanded $7,412.99 in reimbursement. Three days later, he wrote to Warren again and demanded $48,420 in reimbursement.

On June 26, 2000, attorney Jeff Seaver wrote to respondent advising him that he represented Warren and GZP, Inc. Mr. Seaver also demanded that respondent cease and desist all communication with his clients. On June 28, 2000, respondent communicated with Mr. Seaver in writing about the GZP dispute, and thus he was aware that Warren and GZP were represented by counsel. Nevertheless, on June 29, 2000, respondent communicated in writing directly with Warren.

On June 30, 2000, respondent filed a lawsuit against GZP, Inc., seeking to have himself appointed temporary receiver and ultimately appointed permanent receiver 19of GZP, Inc. In furtherance of this objec-five, respondent mischaracterized himself to the court as a 50% shareholder, director, and officer of GZP, Inc. Based on this mischaracterization, the judge appointed respondent temporary receiver.

The Tax Matters

The facts of these matters are not in dispute, as they have been stipulated to by the parties.

State Income Taxes: Respondent failed to timely pay personal and/or business income taxes to the State of Louisiana in 1994, 1995, and 1996. As a result, the Louisiana Department of Revenue and Taxation garnished respondent’s personal checking account, as well as his fees from bankruptcy cases, which were garnished directly from the Chapter 13 Trustee. In 2001, respondent’s Chapter 13 fees were once again garnished for tax years 1997 and 1998.

Unemployment Taxes: From approximately the fourth quarter of 1994 through the fourth quarter of 2003, respondent failed to file unemployment tax returns and failed to remit unemployment tax payments to the Louisiana Department of Labor with respect to his employees. The State filed a lawsuit against him, seeking to have a $7,630.01 unpaid assessment made executory. More recent records indicate the unemployment tax assessment owed by respondent has grown to $14,630.28.

Federal Taxes: From at least the first quarter of 1998 through the first quarter of 2004, respondent withheld federal income tax and/or FICA from his employees’ paychecks. However, he failed to timely file his employer’s quarterly federal tax returns and further failed to remit to the federal government those funds withheld from his employees’ paychecks. Respondent also failed to maintain the funds owed |into the federal government and, instead, used the funds for his own benefit. Respondent owes approximately $33,500 to the federal government.

The Porche Matter

The facts of this matter are not in dispute, as they have been stipulated to by the parties.

Between February 1996 and May 1998, Johanna Porche worked for respondent as a contract employee. Respondent paid Johanna $300 a week, and he routinely issued her two checks — one for $200 from his operating account and one for $100 from his client trust account. Respondent did not convert client funds in making these payments from his trust account; however, he did make the payments with personal funds commingled in the account. Furthermore, although respondent’s financial records indicate he paid Johanna at least $13,352.23 in 1997, he reported her non-employee compensation on Form 1099 as only $10,000.

The Second Commingling Matter

The facts of this matter are not in dispute, as they have been stipulated to by the parties.

From approximately 1996 through 2004, respondent made payments from his client trust account for personal and business expenses and gifts. Respondent did not convert client funds in making these payments from his trust account; however, he did make the payments with personal funds commingled in the account. By way of example, in June 1996, respondent paid a total of $7,600 to Melanie Williams Sinclair and a total of $1,500 to Johanna Porche. In August 1997, respondent paid $270 to Pied Piper Apartments; $4,529.95 to Cavins for auto repair services; $99.14 to Entergy; $4,000 to Barbara Dufour; $3,000 to Benny’s Automotive; $1,000 to InPhilip Porche for a loan; and $15,000 to Patrick McGrew for a loan. In July 2001, respondent paid a total of $28,000 to Wendell Blount to fund a joint venture.

DISCIPLINARY PROCEEDINGS

In March 2005, the ODC filed sixteen counts of formal charges against respondent, alleging that his conduct violated Rules 1.2 (scope of the representation), 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.5(f)(6) (failure to refund an unearned fee), 1.7(b) (conflict of interest), 1.15(a) (safekeeping property of clients or third persons), 3.3 (lack of candor toward the tribunal), 4.2 (communication with a person represented by counsel), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation) of the Rules of Professional Conduct. Respondent answered the formal charges and denied any misconduct. This matter then proceeded to a formal hearing.

Hearing Committee Report

After considering the evidence and testimony presented at the hearing, the hearing committee filed its report with the disciplinary board.

In the Kibby matter, the committee found that Ms. Kibby paid respondent to represent her in a divorce. A stipulated judgment resolved child custody and support issues; however, respondent never obtained the divorce for Ms. Kibby. She did not learn that she was not divorced for approximately ten years. Thereafter, she did not obtain a divorce and testified that she did not want a divorce. Respondent testified that Ms. Kibby did not keep in contact with him. There is no evidence to indicate it was not Ms. Kibby who failed to communicate with respondent in order for him to | ^obtain the divorce. Based on these factual findings, the committee determined that respondent did not violate Rules 1.3 and 1.4 of the Rules of Professional Conduct.

In the Osborne matter, the committee found that after assisting Ms. Osborne in filing bankruptcy, respondent filed an objection for her to the mortgage company’s motion to lift stay. Respondent appeared at the hearing on the motion, but his client did not. There was no convincing testimony as to why Ms. Osborne was not at the hearing. Thereafter, on her own, Ms. Osborne modified her bankruptcy plan and resolved the issue with her mortgage company. Ms. Osborne admitted that there may have been some miscommunieation with respondent about the missing mortgage payments; however, she reiterated her claim that respondent did not assist her in appealing the bankruptcy ruling lifting the stay. Respondent testified that he believed he dropped the ball in this matter; he showed remorse and apologized. The committee determined that respondent violated Rule 1.3 but did not violate Rule 1.4.

In both the Modeliste and King matters, the committee found that respondent did not maintain the $185 advance filing fees in his client trust account. Nevertheless, the committee found no violation of Rule 1.15(a).

In both the first and second commingling matters, the committee found that respondent deposited his own funds in his client trust account and maintained those funds with client funds, in violation of Rule 1.15(a).

In the Cummings matter, the committee found that on September 15, 2003, the Cummings paid respondent $750 towards a $785 advance fee to handle their Chapter 13 bankruptcy. The next day the Cummings informed respondent that they did not want to file the bankruptcy and requested a refund. The Cummings alleged that respondent informed them he would not begin working on their matter until they paid the entire fee. However, respondent alleged he explained to the Cummings that he would not file the bankruptcy until the entire fee was paid. Respondent refunded | ia$375. Although the Cummings were not satisfied with this refund, they returned to respondent a month later asking him to file a Chapter 7 bankruptcy instead of the original Chapter 13. Respondent agreed to apply the funds he retained in the Chapter 13 bankruptcy to the Chapter 7. Respondent did not recall that the Cummings were not eligible to file a Chapter 7 bankruptcy and additional work was performed by respondent’s office prior to his recalling that fact. Therefore, respondent only refunded $100 of the total $700 fee paid by the Cummings. The committee determined that respondent did not violate Rules 1.2 and 8.4(c) but did violate Rule 1.5(f)(6).

In the Vance matter, the committee found that Ms. Vance paid respondent $400 towards a $700 fee to handle her bankruptcy matter. She understood that respondent would not work on her bankruptcy until she paid the balance. However, respondent alleged that he told Ms. Vance he would not file the bankruptcy until she paid the balance. She was unable to pay the balance and requested a refund. Respondent had begun work on the case and agreed to refund only $200, which Ms. Vance rejected. Some time passed, and Ms. Vance again requested a refund. Respondent was only willing to refund $100, which Ms. Vance again rejected. The committee determined that respondent did not violate Rules 1.2 and 8.4(c) but did violate Rule 1.5(f)(6).

In the Bessie matter, the committee found that on April 1, 2004, Mr. Bessie paid respondent $794 in advance fees to handle his bankruptcy. At that time, respondent provided Mr. Bessie with bankruptcy documents to review and sign. Later that day, Mr. Bessie returned the documents to respondent and requested a full refund because he found another attorney to handle his bankruptcy. Respondent obviously had performed some work and agreed only to refund the $194 filing fee. The committee determined that respondent violated Rule 1.5(f)(6).

[14In the Melanie Williams matter, the committee found that respondent did not have an intimate relationship with Melanie while representing her in her divorce. However, he did have personal feelings for her during this time. The committee believed Dorman’s and Melanie’s testimony that respondent failed to communicate Dorman’s desire to reconcile to Melanie, obviously because of his feelings for Melanie and his desire to complete her divorce. Respondent’s feelings for Melanie clouded his judgment with respect to communications to be transmitted between the parties. Respondent was also providing Melanie with financial assistance when he filed the pauper motion on her behalf. However, this did not mean that she could not proceed in forma pauperis. The committee determined that respondent violated Rule 1.7(b) but did not violate Rule 3.8.

In the Neinstedt matter, respondent represented Mr. Neinstedt in a bankruptcy proceeding. Warren Williams purchased Mr. Neinstedt’s boat for $1,500 through the bankruptcy trustee. Respondent put up the money for the boat purchase, but the boat was titled in Warren’s name. According to Warren, the boat was his boat that was purchased with a gift of money from respondent. The bankruptcy trustee, Martin Schott, testified that he knew of no restriction on an attorney acquiring an asset out of a bankruptcy client’s estate or funding such a purchase. Mr. Neinstedt testified that he was pleased with respondent’s services and satisfied with the boat’s purchase price. The committee determined that respondent did not violate Rule 8.4(c).

In the Warren Williams matter, Warren and respondent entered into an agreement to start a company called GZP, Inc. to acquire, own, and operate a video store. Respondent provided the funds to purchase the store and for cash flow for its first few months of operation. The articles of incorporation, which respondent prepared, named Warren as an officer of the company. There were no notes or other agreements executed to reflect the type of arrangement that existed between 1^respondent and Warren. When their relationship deteriorated, respondent filed a lawsuit seeking to exercise his rights as part owner of the business. Because of the substantial amount of money that respondent put into the business, respondent believed he would be repaid if the store operation became profitable. Respondent ultimately dismissed the lawsuit, and true ownership was never proven. During the litigation process, respondent communicated directly with Warren on one occasion even though he was aware Warren was represented by counsel. The committee determined that respondent violated Rule 4.2 but did not violate Rule 8.4(c).

In the tax matters, the committee found that respondent failed to timely pay personal income taxes; failed to timely file employment tax returns and to remit unemployment tax payments to the State of Louisiana; and failed to remit withholding and FICA taxes withheld from his employees. Respondent admitted that he had trouble paying his taxes and his accounts were garnished for the payment of those taxes. However, there was no testimony to prove dishonesty, fraud, deceit, or misrepresentation by respondent. The committee determined that respondent did not violate Rule 8.4(c) in the tax matters.

In the Porche matter, the committee found that respondent paid Ms. Porche with checks from his client trust account, using his personal funds that he placed in the account. There is no allegation or proof that respondent converted client funds in making these payments. However, respondent did commingle personal funds with client funds in his client trust account, in violation of Rule 1.15(a).

The committee determined that respondent acted negligently and knowingly. Relying upon the ABA’s Standards for Imposing Lawyer Sanctions, the committee determined the baseline sanction to be a period of suspension. Aggravating factors are a dishonest or selfish motive, a pattern of misconduct, multiple offenses, refusal to acknowledge the wrongful nature of the conduct, vulnerability of the victims, and | ^substantial experience in the practice of law (admitted 1976). The committee found no mitigating factors.

Under all the circumstances, the committee recommended that respondent be suspended from the practice of law for one year and one day.

Both respondent and the ODC objected to the hearing committee’s report and recommendation.

Disciplinary Board Recommendation

Upon review of the record, the disciplinary board made the following findings:

In the Kibby matter, the board accepted the hearing committee’s factual findings. Based on those findings, the board determined that respondent violated Rules 1.3 and 1.4 of the Rules of Professional Conduct.

In the Osborne matter, the board agreed with the committee’s findings that respondent violated Rule 1.3 by failing to modify Ms. Osborne’s bankruptcy plan but did not violate Rule 1.4.

In both the Modeliste and King matters, the board determined that respondent violated Rule 1.15(a) by failing to deposit the advance filing fees in his client trust account.

In both the first and second commingling matters, the board agreed with the committee that respondent violated Rule 1.15(a) by depositing personal funds into his client trust account.

In the Cummings, Vance, and Bessie matters, the board adopted the committee’s factual findings and agreed that in each instance, respondent violated Rule 1.5(f)(6) by failing to place disputed funds into his client trust account and failing to provide his clients with an accounting.

li7In the Melanie Williams matter, the board agreed with the committee that respondent engaged in a conflict of interest in violation of Rule 1.7(b) but also determined that respondent violated Rule 3.3 by failing to act with candor toward a tribunal when he provided incomplete information to the court in the motion to proceed in forma pauperis.

In the Neinstedt matter, the board found no error in the committee’s findings and conclusions, agreeing that respondent did not violate Rule 8.4(c).

In the Warren Williams matter, the board found that the committee’s findings and conclusions are not manifestly erroneous. Accordingly, the board agreed that respondent violated Rule 4.2 but did not violate Rule 8.4(c).

In the tax matters, the board determined that the committee erred in finding no proof of dishonesty, fraud, deceit, or misrepresentation by respondent. Citing In re: Wittenbrink, 03-0425 (La.6/27/03), 849 So.2d 18, the board observed that this court has found a lawyer’s failure to remit funds withheld from employees and failure to pay personal taxes involve elements of dishonesty, fraud, deceit, and misrepresentation in violation of Rule 8.4(c).

In the Porche matter, the board agreed with the committee that respondent violated Rule 1.15(a) by placing his personal funds into his client trust account to pay Ms. Porche. The ■ board also found that respondent violated Rule 8.4(c) when he underreported Ms. Porehe’s income for the year 1997.

Based on the above findings, the board determined that respondent violated duties owed to his clients, the legal system, the public, and the profession. His conduct was negligent in some instances and knowing in others. He caused potential harm to many of his clients and actual harm to Melanie Williams. Relying on the ABA’s Standards for Imposing Lawyer Sanctions, the board determined that the applicable baseline sanction is a period of suspension. The board also agreed with|1sthe aggravating factors found by the committee and found the sole mitigating factor to be the absence of a prior disciplinary record.

Indicating that “when all of the various acts of misconduct are considered together, in particular, respondent’s pattern of misuse of his trust account and his pattern of failing to meet fiscal obligations, along with the aggravating factors, an upward deviation to disbarment is appropriate,” the board recommended that respondent be disbarred.

Both respondent and the ODC filed objections to the disciplinary board’s recommendation. Accordingly, the case was docketed for oral argument pursuant to Supreme Court Rule XIX, § 11(G)(1)(b).

DISCUSSION

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

We find the hearing committee’s factual findings, as modified by the disciplinary board, are supported by the record. These findings establish that respondent neglected legal matters, failed to communicate with his clients, failed to refund unearned fees, failed to place disputed funds in trust, failed to provide account-ings to his clients, engaged in conduct constituting a conflict of interest, | ^commingled client funds with his own personal funds, demonstrated a lack of candor toward a tribunal, communicated with a person he knew to be represented by counsel, and engaged in dishonest and deceitful conduct, all in violation of Rules 1.3, 1.4, 1.5(f)(6), 1.7(b), 1.15(a), 3.3, 4.2, and 8.4(c) of the Rules of Professional Conduct.

Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent’s actions. In considering that issue, 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 violated duties owed to his clients, to the public, to the legal system, and as a professional. His conduct was negligent in some instances and knowing in others, and caused both actual and potential harm. The applicable baseline sanction is a period of suspension.

The record supports the following aggravating factors: dishonest or selfish motive, a pattern of misconduct, multiple offenses, refusal to acknowledge the wrongful nature of the conduct, vulnerability of the victims, and substantial experience in the practice of law (admitted 1976). In mitigation, we recognize that respondent has no prior disciplinary record.

As ably noted by the disciplinary board in its report, our prior jurisprudence indicates that each of respondent’s acts of misconduct, standing alone, would not generally warrant discipline greater than a suspension from the practice of law. Indeed, in some instances, most notably in the case of a lawyer’s failure to attend to 12phis tax obligations, we have been inclined to impose a relatively short period of suspension, with all or part deferred. While these cases persuade us that respondent’s misconduct as a whole simply does not warrant the harsh sanction of disbarment which was recommended by the board, the significant aggravating factors present in this case likewise convince us that the year and a day suspension recommended by the hearing committee is too lenient. Rather, we believe the appropriate sanction in this case lies between these two extremes.

Based on this reasoning, we will impose upon respondent a suspension from the practice of law for three years. We will also require that respondent furnish complete accountings to his clients subject of the formal charges, and make full restitution of all unearned legal fees.

DECREE

Upon review of the findings and recommendations of the hearing committee and the disciplinary board, and considering the record, briefs, and oral argument, it is ordered that Stephen King Peters, Louisiana Bar Roll number 10471, be and he hereby is suspended from the practice of law for a period of three years. 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.

KIMBALL and VICTORY, JJ., dissent and would disbar respondent.

KNOLL, J., dissents and assigns reasons.

KNOLL, J.,

dissenting in part.

pin my view, respondent’s conduct merits, at the very minimum, disbarment because his conduct in the Melanie Williams matter concerns fundamentally immoral violations. He used the legal profession to cover up and assist him in his prurient interests with a client to advance his sexual fantasy of romance outside of his marriage to the extent of secreting substantial sums of money in his trust account, which in turn led to misrepresenting the accountability of those funds, thus committing further fundamentally immoral violations. Respondent’s immoral conduct had a domino effect of furthering immoral conduct that directly involved the legal profession.

Such conduct approaches the sanction of permanent disbarment, as the trustworthiness of the lawyer is severely diminished, if not totally obliterated. The harm to our time-honored profession is great. Indeed, this conduct provides the fodder for and is the brunt end of disdainful jokes about our profession.

It cannot be gainsaid that respondent has the right to be a fool, but when he voluntarily exercises such stupidity involving our time-honored profession, he disgraces his license to practice law. At a minimum, he is worthy of being disbarred.

For these reasons, I respectfully dissent.

      . Respondent stipulated to the facts during his testimony at the formal hearing.

      . On January 31, 2003, respondent deposited the $600 disputed fee into his client trust account. The ODC has since referred the fee issue to the Louisiana State Bar Association’s ("LSBA”) fee dispute resolution program.

      . On August 29, 2003, respondent deposited the $600 disputed fee into his client trust account. The ODC has since referred the fee issue to the LSBA’s fee dispute resolution program.

      . The extent of the relationship between respondent and Melanie is unclear. At oral argument, respondent denied that the relationship was sexual in nature; however, during his sworn statement, respondent testified that on one occasion there was “a sexual encounter” which was "physical in a sexual sense.” For her part, Melanie denied that her relationship with respondent went beyond kissing at a Christmas party in 1995.

      . Respondent filtered all of these monetary gifts through his client trust account, apparently to keep them hidden from his wife and because his personal accounts were subject to seizure to satisfy the substantial tax liabilities he owed to the state and federal governments. Respondent also prepared and executed a will dated May 10, 1996 in which he bequeathed his "entire disposable estate” to his "dear friend” Melanie, and wrote her a letter on May 13, 1996 in which he promised to send her "a check every month.”

      .Respondent had Warren’s other sister, Johanna Porche, who worked for respondent at the time, contact the bankruptcy trustee to negotiate a purchase price. Ms. Porche negotiated a price of $1,500 but made the trustee believe she was negotiating on behalf of her brother and not respondent.

      .Martin Schott, the bankruptcy trustee, testified that he did not think respondent had violated any bankruptcy laws or regulations if he, in fact, was the actual purchaser. However, had it been disclosed that respondent was the actual purchaser, Mr. Schott would have evaluated the sales price more closely because respondent, as Mr. Neinstedt's attorney, was involved in listing the value of the boat on the bankruptcy schedules.

      . Respondent was never listed as an incorpo-rator, owner, registered agent, director, or officer of GZP, Inc.

      . As previously noted, Johanna also worked for respondent. She claimed that respondent became obsessed with her during the time she worked for him, and consequently, she left his employment. She claimed that thereafter respondent stalked and harassed both her and her family.

      . Respondent regularly maintained a staff of two to four employees in his law practice.