source: Caselaw Access Project

author: KNOLL, Justice. TRAYLOR, Justice, WEIMER, J.,

license: Public Domain

text:
    Michael A. TEAGUE, M.D. v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY, St. Paul Insurance Company, Seale, Smith, Zuber, and Barnette, Donald Zuber, Catherine Nobile, Catherine Lauffer, and ABC Insurance Agency.
    No. 2007-C-1384.
    Supreme Court of Louisiana.
    Feb. 1, 2008.
    Rehearing Denied March 7, 2008.

      Nelson & Hammons, John Layne Ham-mons, Shreveport, for applicant.
    Keogh, Cox & Wilson, Stephen R. Wilson, Baton Rouge, for respondent.
   KNOLL, Justice.

I iThis legal malpractice action presents the question of whether knowledge of an undesirable result is sufficient to trigger the running of peremption under La.Rev. Stat. § 9:5605. The plaintiff, a physician who was sued by his patient for medical malpractice, filed the instant suit against his defense attorneys for legal malpractice in effecting the settlement of his patient’s case against him. Plaintiff filed suit over one year after learning of the negative result of their representation in the underlying medical malpractice suit, but well within one year from the alleged date of the discovery of the legal malpractice. After trial by jury, which resulted in a favorable judgment for the plaintiff, defendants filed a peremptory exception of peremption, which the district court denied. On appeal, the defendants again filed a peremptory exception of peremption, which the court of appeal sustained, reversing the district court’s judgment and dismissing the plaintiffs action with prejudice. We granted this writ to determine whether plaintiffs action was perempted. Michael A. Teague v. St. Paul Fire and Marine Ins. Co., et al, 07-1384 (La.10/5/07), 964 So.2d 375. For the following reasons, we reverse the court of appeal’s judgment, finding knowledge alone of a bad result is not sufficient to trigger the running of peremption under LajRev.Stat.2 § 9:5605. More evidence is required to show that the client knew or should have known through the exercise of reasonable diligence that his problem may have been caused by acts of legal malpractice.

FACTS AND PROCEDURAL HISTORY

The plaintiff, Michael A. Teague, M.D., was sued in 1997 by a former patient for medical malpractice after a medical review panel had unanimously concluded that no breach of professional standards occurred in the course of his treatment. Dr. Teag-ue’s malpractice insurer, St. Paul Insurance Company (“StPaul”), assigned the defense of the suit to the law firm of Seale, Smith, Zuber & Barnette, L.L.P. Donald Zuber, one of the firm’s partners, answered the suit on behalf of Dr. Teague, denying liability and requesting trial by jury. Mr. Zuber subsequently delegated the handling of the litigation to an associate, Catherine Nobile.

On April 19, 1999, the district court issued a case management schedule order, setting a three-day jury trial beginning on January 25, 2000. The order also fixed a deadline of August 1,1999, for the filing of a jury bond by the defendants. It is undisputed that Ms. Nobile failed to file the required jury bond by the deadline established in the order, thus resulting in the loss of the right to a jury as the trier of fact. The record clearly shows defense counsel never informed Dr. Teague of the failure to post the jury bond and, indeed, decidedly withheld that information from him, even though St. Paul was promptly informed.

On Friday, October 29,1999, the parties’ attorneys participated in the mediation of the case. It is undisputed that Dr. Teague was never informed that mediation would take place. As the result of the mediation, a settlement agreement was reached that day, whereby St. Paul agreed to pay the plaintiff $50,000 to compromise her claim against Dr. Teague. Notably, Dr. Teag-ue’s policy with St. | sPaul did not contain a “consent to settle” clause, which would have required the insurer to obtain Dr. Teague’s consent to any proposed compromise of a malpractice claim covered by the policy. That afternoon, Ms. Nobile telephoned Dr. Teague’s office and left a message for him, advising that the case had been settled. Dr. Teague returned Ms. Nobile’s call that same afternoon and confirmed that the case had been settled as the result of the mediation.

On Monday, November 1, 1999, Dr. Teague telephoned Mr. Zuber, discussed the settlement, and expressed his dissatisfaction that the case was settled rather than tried. The formal settlement release was executed by the plaintiff on November 5, 1999, and the lawsuit was subsequently dismissed.

Dr. Teague instituted the present litigation against Mr. Zuber, Ms. Nobile, and Seale, Smith, Zuber & Barnette, L.L.P. (“defendants”) on November 3, 2000. In his petition, Dr. Teague alleged that an attorney-client relationship existed between him and the defendants in the prior medical malpractice action, that the defendants failed to properly investigate and defend that action, that they failed to keep him informed of significant developments affecting his interests, that they negligently forfeited his right to trial by jury, and that they engaged in a conspiracy to conceal their professional neglect by effecting the settlement of the medical malpractice claim. Dr. Teague further alleged that “as a direct consequence of the settlement,” St. Paul reported that settlement to the National Practitioner Data Bank (“NPDB”). Notably, |4St. Paul initially reported the settlement was for operating on the wrong body part. Dr. Teague’s dissatisfaction with this report prompted him to seek other counsel, which in turn led to his discovery of the defendant’s legal malpractice. Finally, he claimed that as the direct result of the defendants’ negligence and breach of professional duties, he sustained damages consisting of “injury to business reputation, unwarranted expense associated with obtaining malpractice insurance at a higher premium, loss of income, past and future embarrassment, humiliation, and mental anguish.” While admitting certain facts alleged in the petition, such as the failure to post the jury bond, the defendants denied any liability.

Dr. Teague subsequently amended his petition to allege that the defendants violated Rule 1.4 of the Louisiana State Bar Association Rules of Professional Conduct “by failing to keep [him] advised of all pertinent developments in his case and by intentionally concealing from him the fact that they had waived his constitutional right to trial by jury through their negligence in failing to post the required jury bond in a timely manner.”

The case was subsequently tried before a jury over the course of three days. The jury found the defendants liable to Dr. Teague, assessing 70% fault to Ms. Nobile and 30% fault to Mr. Zuber, and awarded plaintiff $138,500 in damages. The district court’s judgment incorporating the jury’s verdict was signed on November 29, 2005. On December 6, 2005, the defendants filed a post-trial peremptory exception of | ^peremption and prescription, arguing that based upon the evidence at trial, including Dr. Teague’s own testimony, his cause of action was perempted prior to the date he filed suit pursuant to the provisions of La.Rev.Stat. § 9:5605. The defendants also filed a motion for judgment notwithstanding the verdict on various alternative grounds. The exception and motion were both denied in separate judgments signed on March 10, 2006.

The defendants thereafter suspensively appealed all the judgments of the district court, and on August 21, 2006, they filed another peremptory exception of peremption in the court of appeal, reasserting that defense. While the appellate court acknowledged the importance of the substantive legal and ethical issues presented in the appeal, it found it unnecessary and inappropriate to reach those issues, for the simple reason that the matter had to be resolved on the procedural basis of per-emption. Teague v. St Paul Fire and Marine Ins. Co., 06-1266 (La.App. 1 Cir. 6/8/07), 964 So.2d 1015. Finding plaintiffs action was perempted, the court reasoned:

Upon receiving notice that the supposedly “specious” suit against him had been settled at mediation, Dr. Teague certainly had notice “enough to excite attention and put [him] on guard and call for inquiry.” And such notice was “tantamount to knowledge or notice of everything to which a reasonable inquiry may lead,” including any predicate events or prior acts which supposedly prompted the settlement. Thus, the fact that Dr. Teague was unaware at the time he was informed of the settlement of the defendants’ earlier failure to file the jury bond does not serve to stop the “peremption clock,” or to reset it upon his acquiring that information. (Citations omitted).

Teague, 06-1266 at p. 6, 964 So.2d at. p. 1021. The court of appeal concluded that the peremptive period of Dr. Teague’s cause of action commenced on October 29, 1999, the day he learned of the settlement. Because his action was indisputably filed over a year after that date, the court of appeal sustained the exception of peremption, reversed the district court’s judgment, and dismissed plaintiffs cause of action with prejudice and at his cost.

|fiLAW AND ANALYSIS

In no other agency relationship is a greater duty of trust imposed than in that involving an attorney’s duty to his client. Scheffler v. Adams and Reese, LLP, 06-1774, p. 13 (La.2/22/07), 950 So.2d 641, 652. “Louisiana law recognizes that an attorney’s paramount duty is, and must be, to his client.” Id. This fiduciary duty obligates the attorney to exercise at least that degree of care, skill, and diligence exercised by prudent attorneys practicing in his community or locality. Ramp v. St. Paul Fire & Marine Ins. Co., 263 La. 774, 786, 269 So.2d 239, 244(1972); Morgan v. Campbell, Campbell & Johnson, 561 So.2d 926, 929 (La.App. 2d Cir.1990). Though he is not required to exercise perfect judgment in every instance, his license to practice and his contract for employment hold out to his client that he possesses certain minimal skills, knowledge, and abilities. Ramp, 263 La. at 786, 269 So.2d at 244; Morgan, 561 So.2d at 929. It so follows that “any professional misconduct, unreasonable lack of skill or fidelity in professional or fiduciary duties” constitutes malpractice. See Black’s Law Dictionary “Malpractice” (6th ed.1997).

The law leaves no uncertainty in defining the character of duty which an attorney owes to his client. The relation of attorney and client is more than a contract. It superinduces a trust status of the highest order and devolves upon the attorney the imperative duty of dealing with the client only on the basis of the strictest fidelity and honor.

Scheffler, 06-1774 at p. 13, 950 So.2d at 651, quoting Searcy v. Novo, 188 So. 490 (La.App. 2d Cir.1939).

Significantly, this principle of strictest fidelity and honor is firmly embedded in the Rules of Professional Conduct (RPC), adopted by this court pursuant to our exclusive and plenary power to regulate the practice of law. La. Const. Art. II, §§ 1, 2. See also, Scheffler, 06-1774 at p. 13, 950 So.2d at 651. Recognizing fidelity and honor as essential elements of the lawyer’s relationship to a client, Rules 1.1 and 1.3 |7require a lawyer to “provide competent representation to a client” and to “act with reasonable diligence and promptness in representing a client.” Rule 1.4 of the RPC mandates that a lawyer “keep his client reasonably informed about the status of the matter” and “give the client sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued.” Rule 2.1 of the RPC imposes an affirmative obligation upon a lawyer to “exercise independent professional judgment and render candid advice” to his or her client. This rule also underscores the importance of avoiding any divided loyalties that might cloud that independent judgment. Scheffler, 06-1774 at p. 14, 950 So.2d at 652

“As we have frankly acknowledged: Tn no relationship is the maxim that “no man can serve two masters” more rigidly enforced than in the attorney-client relationship.’ ” Scheffler, 06-1774 at p. 13, 950 So.2d at 651, quoting Plaquemines Parish Commission Council v. Delta Development Company, Inc., 502 So.2d 1034, 1040 (La.1987). Indeed, this principle of undivided loyalty is also firmly embedded in Rule 1.7 of the RPC which generally prohibits a lawyer from representing a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests. Scheffler, 06-1774 at pp. 13-14, 950 So.2d at 651-52.

In a dual representation situation, the goal is full and equal representation of each client. State v. Baker, 288 So.2d 52 (La.1973). Accordingly, the attorney owes to each client equally the imperative duty of dealing with his or her client only on the basis of the strictest fidelity and honor, and breach of this duty would constitute legal malpractice.

IsBefore we address the issue of peremption under legal malpractice, we must first determine if defendants’ conduct constituted legal malpractice. Louisiana jurisprudence provides that to establish a claim for legal malpractice, a plaintiff must prove: 1) the existence of an attorney-client relationship; 2) negligent representation by the attorney; and 3) loss caused by that negligence. Costello v. Hardy, 03-1146, p. 10 (La.1/21/04), 864 So.2d 129, 138.

Defendants admit they failed to post the jury bond timely and that while they informed St. Paul of this omission, they decided not to tell Dr. Teague. Defendants admit they did not inform Dr. Teague that because of the loss of a jury trial, they were going to attempt to mediate and settle the case. They admit it was not until after the case had settled that they informed Dr. Teague the case was mediated and settled. Notwithstanding these admissions, defendants claim they are not guilty of malpractice primarily because under St. Paul’s policy, they did not need Dr. Teague’s consent to settle his ease.

It is undisputed that an attorney-client relationship existed between Dr. Teague and the defendants. Thus, it cannot be disputed that defendants owed Dr. Teague a fiduciary duty to legally represent him with integrity, skill, and due diligence, which encompassed keeping Dr. Teague reasonably informed about the status of his case. We fail to see how the ability to settle the case under the policy without Dr. Teague’s consent lessens the obligations owed by the attorneys to their client. Indeed, it does not. It is most telling that defendants did keep St. Paul apprised of their omission, but yet decided not to inform Dr. Teague of their course of conduct and strategy in his case. Clearly, defendants breached a fiduciary duty they owed to their client by failing to keep him reasonably informed.

RThis same issue arose in Illinois wherein the Supreme Court there held that the attorneys who were employed by the insurer to represent both the insurer and the insured in a medical malpractice action against the insured, had a duty to make full disclosure to the insured in regard to their intent to settle the litigation without the insured’s consent and contrary to his express instructions, regardless of the extent of the insurer’s authority to settle without the insured’s consent. Rogers v. Robson, Masters, Ryan, Brumund and Belom, 81 Ill.2d 201, 40 Ill.Dec. 816, 407 N.E.2d 47, 49 (1980). The plaintiff in Rogers was a physician who was sued for medical malpractice arising out of a postoperative wound infection, which the patient alleged was due to the negligence and carelessness of the plaintiff. At the time of the alleged malpractice, Dr. Rogers was insured by Employer’s Fire Insurance Company, and attorneys representing both the company and Dr. Rogers negotiated a settlement of the malpractice claim. The policy under which Dr. Rogers was insured provided that the written consent of a former insured was not required before the insurer made any settlement of any claim or suit “even if such claim or suit was made, preferred or alleged while such former insured was an insured under this policy.” Dr. Rogers, however, stated that during the pendency of the malpractice action, he repeatedly informed one of the partners in the defending law firm that he would not consent to the settlement of the action, that he was assured that the action would be defended, and that at no time was he advised that his attorneys intended to settle the malpractice suit. Although the attorneys argued before the Illinois Supreme Court that they did not breach an independent duty owed to the insured and that because the insurer was authorized to settle the malpractice litigation without insured’s consent, no conflict of interest arose between the parties to the insurance contract, the Court held:

Although defendants were employed by the insurer, plaintiff, as well as the insurer, was their client and was entitled to full disclosure of the |inintent to settle the litigation without his consent and contrary to his express instructions. Defendants’ duty to make such disclosure stemmed from their attorney-client relationship with plaintiff and was not affected by the extent of the insurer’s authority to settle without plaintiffs consent. (Citations omitted).

Rogers, 40 Ill.Dec. 816, 407 N.E.2d at 49.

While the doctor in Illinois told the defendants not to settle the case, that distinction from the present case is of no moment. Here, Dr. Teague was led to believe that his case would not be settled because the claim against him was very defendable. The issue of settling the case was never discussed. We find this a compelling factor in Dr. Teague’s claim of legal malpractice.

In the present case, it is apparent defendants felt more loyalty to St. Paul than they did for Dr. Teague. If divided loyalties arise during dual representation of two or more clients, it must be disclosed in order to avoid injury to a client. Here, by failing to inform Dr. Teague of the loss of a jury trial, which in turn led to the mediation and settlement of his case, defendants deprived Dr. Teague of the opportunity of hiring independent counsel to defend him in the malpractice claim against him. This clearly constitutes a claim for legal malpractice, subject to the peremptive limitations for filing a legal malpractice claim.

Having established that Dr. Teague’s claim falls within legal malpractice, we turn now to the seminal issue in this case of whether knowledge of a bad result is sufficient to trigger the running of per-emption in a legal malpractice action. La. Rev.Stat. § 9:5605 governs the peremption of legal malpractice claims and provides, in pertinent part:

A. No action for damages against any attorney at law duly admitted to practice in this state, any partnership of such attorneys at Inlaw, or any professional corporation, company, organization, association, enterprise, or other commercial business or professional combination authorized by the laws of this state to engage in the practice of law, whether based upon tort, or breach of contract, or otherwise, arising out of an engagement to provide legal services shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered; however, even as to actions filed within one year from the date of such discovery, in all events such actions shall be filed at the latest within three years from the date of the alleged act, omission, or neglect.
B. The provisions of this Section are remedial and apply to all causes of action without regard to the date when the alleged act, omission, or neglect occurred. However, with respect to any alleged act, omission, or neglect occurring prior to September 7, 1990, actions must, in all events, be filed in a court of competent jurisdiction and proper venue on or before September 7, 1993, without regard to the date of discovery of the alleged act, omission, or neglect. The one-year and three-year periods of limitation provided in Subsection A of this Section are peremptive periods within the meaning of Civil Code Article 3458 and, in accordance with Civil Code Article 3461, may not be renounced, interrupted, or suspended.

A straightforward reading of the statute clearly shows that the statute sets forth two peremptive limits within which to bring a legal malpractice action, namely one year from the date of the alleged act or one year from the date of discovery with a three-year limitation from the date of the alleged act, omission, or neglect to bring such claims. La.Rev.Stat. 9:5605; see also Reeder v. North, 97-0239, p. 6 (La.10/21/97), 701 So.2d 1291, 1295; Jennifer Thornton, Comment: Louisiana Revised Statute Section 9:5605: A Louisiana Lawyer’s Best Friend, 74 Tul.L.Rev. 659, 661 (1999-2000). The latter period clearly carves out an equitable exception to the commencement of peremption that resembles the discovery exception of our jurisprudential doctrine of contra non valen-tem with an additional qualification that the statutory discovery exception is expressly made inapplicable after three years from the act, omission, or neglect. La.Rev.Stat. § 9:5605. The discovery rule, which our jurisprudence delineates as the fourth category of contra non valen-tem, is an | ^equitable pronouncement that statutes of limitation do not begin to run against a person whose cause of action is not reasonably known or discoverable by him, even though his ignorance is not induced by the defendant. Hendrick v. ABC Ins. Co., 00-2403 (La.5/15/01), 787 So.2d 283(applying law predating the enactment of La.Rev.Stat. § 9:5605); Thornton, supra, at p. 666-67. Given the resemblance between the statutory discovery rule and our jurisprudential one, it logically follows that we interpret the statutory rule in accordance with the jurisprudential one, but within the statutory limitations. Thus, under the provisions of La.Rev.Stat. § 9:5605, an action should not be found perempted if it is brought within one year of the date of discovery and the record shows that the claimant was reasonably unaware of malpractice prior to the date of discovery and the delay in filing suit was not due to willful, negligent, or unreasonable action of the client. See generally, Campo v. Correa, 01-2707 (La.6/21/02), 828 So.2d 502(interpreting the discovery rule as contained in the Louisiana Medical Malpractice Act); Bailey v. Khoury, 04-0620 (La.1/20/05), 891 So.2d 1268(interpreting the discovery rule as contained in the Louisiana Medical Malpractice Act). Although Dr. Teague’s petition was filed more than one year after the date of malpractice, ie., the failure to post the jury bond, the plaintiff asserts that he filed his petition within one year from the date of discovery and well within a period of three years from the date of the alleged act, omission, or neglect. The question, therefore, becomes whether the date of discovery alleged by Dr. 113Teague, as well as his actions following such discovery, were reasonable, with the burden placed squarely on the exceptor to prove otherwise and to establish the action perempted.

The “date of discovery” from which prescription or peremption begins to run is the date on which a reasonable man in the position of the plaintiff has, or should have, either actual or constructive knowledge of the damage, the delict, and the relationship between them sufficient to indicate to a reasonable person he is the victim of a tort and to state a cause of action against the defendant. See Bailey, 04-0620 at p. 9, 891 So.2d at 1275. Put more simply, the date of discovery is the date the negligence was discovered or should have been discovered by a reasonable person in the plaintiffs position. Thornton, supra. In Campo v. Correa, 01-2707, pp. 11-12 (La.6/21/02), 828 So.2d 502, 510-11, this Court explained the reasonableness of the date of discovery under the prescriptive provisions of the Louisiana Medical Malpractice Act:

Prescription commences when a plaintiff obtains actual or constructive knowledge of facts indicating to a reasonable person that he or she is the victim of a tort. Percy v. State, E.A. Conway Memorial Hosp., 478 So.2d 570 (La.App. 2 Cir.1985). A prescriptive period will begin to run even if the injured party does not have actual knowledge of facts that would entitle him to bring a suit as long as there is constructive knowledge of same. Constructive knowledge is whatever notice is enough to excite attention and put the injured party on guard and call for inquiry. Such notice is tantamount to knowledge or notice of everything to which a reasonable inquiry may lead. Such information or knowledge as ought to reasonably put the alleged victim on inquiry is sufficient to start running of prescription. Ledet v. Miller, 459 So.2d 202 (La.App. 3 Cir.1984), writ denied, 463 So.2d 603 (La.1985); Bayonne v. Hartford Insurance Co., 353 So.2d 1051 (La.App. 2 Cir.1977); Opelousas General Hospital v. Guillory, 429 So.2d 550 (La.App. 3 Cir.1983). Nevertheless, a plaintiffs mere apprehension that something may be wrong is insufficient to commence the running of prescription unless the plaintiff knew or should have known through the exercise of reasonable diligence that his problem may have been caused by acts of malpractice. Gunter v. Plauche, 439 So.2d 437, 439 (La.1983). Even if a malpractice victim is aware that an undesirable condition has developed after the medical treatment, prescription will | unot run as long as it was reasonable for the plaintiff not to recognize that the condition might be treatment related. Griffin v. Kinberger, 507 So.2d 821 (La.1987). The ultimate issue is the reasonableness of the patient’s action or inaction, in light of his education, intelligence, the severity of the symptoms, and the nature of the defendant’s conduct. See Griffin, 507 So.2d at 821.

Because the provisions on prescription governing computation of time apply to peremption, the principles applicable in the computation of time under the discovery rule in the medical malpractice provisions, although prescriptive in nature, nevertheless should apply to the computation of time under the discovery rule of the peremptive period for legal malpractice. See La. Civ.Code art. 3459 (“The provisions on prescription governing computation of time apply to peremption.”). Accordingly, peremption commences to run in legal malpractice cases when a claimant knew or should have known of the existence of facts that would have enabled him to state a cause of action for legal malpractice. See generally, Campo, 01-2707 at p. 12, 828 So.2d at 511. Notwithstanding, a claimant’s mere apprehension that something may be wrong is insufficient to commence the running of peremption unless the claimant knew or should have known through the exercise of reasonable diligence that his problem may have been caused by acts of malpractice. Id.; see also Gunter v. Plauche, 439 So.2d 437, 439 (La.1983). Therefore, even if the client is aware that an undesirable result has developed arising out of the representation, per-emption will not run as long as it was reasonable for the plaintiff not to recognize that the result might be due to malpractice. See generally, Campo, 01-2707 at p. 12, 828 So.2d at 511; see also, Griffin v. Kinberger, 507 So.2d 821 (La.1987).

The underlying action of malpractice that precipitated the settlement, was the failure by Dr. Teague’s attorneys to post the jury bond. This occurred in August 1999. Thus, the question for this Court is the appropriate date of discovery of the malpractice by Dr. Teague from which peremption commenced to run. The | ^defendants argued and the court of appeal agreed that peremption ran from the date Dr. Teague learned of the settlement of the underlying medical malpractice case, October 29, 1999, as knowledge of the settlement was sufficient to excite attention and to put Dr. Teague on guard and call for inquiry. The plaintiff eontrarily argues, with which the district court agreed, that while he did become aware on October 29, 1999, that the medical malpractice case against him had been mediated and settled, he was unaware of any acts of legal malpractice by defendants that precipitated the settlement. He argues the acts of malpractice were not reasonably discoverable until he retained new counsel, who obtained his file and disclosed to him the acts of legal malpractice committed by defendants. After careful review of the record, we find it was reasonable for Dr. Teague not to recognize what prompted the defendants to mediate and settle the medical malpractice claim.

At trial, Dr. Teague testified to his shock and confusion upon learning of the settlement of the underlying medical malpractice case. All previous correspondence with his attorney indicated the suit was defendable and was proceeding to trial by jury. The subsequent submission of the erroneous settlement specifics to the NPDB was especially unnerving. He then sought other legal counsel, primarily to contest the erroneous information submitted to the NPDB by St. Paul. He explained that

[i]n that process I had to have some legal counsel because I didn’t know how to do that. We were able to change at least the data bank entry to operating without consent. So during this process, this took several months if I recall, I got all the documentation from Mr. Zuber’s office on what went on, and the attorney who was helping me with this said there are some things in here that just don’t look like your attorneys were doing what needed to be done for you to defend this case, and that’s how we kind of grew to this day.

What Dr. Teague actually knew on October 29, 1999, was that an undesirable result had occurred, at least from his perspective, i.e., the settlement. He did not know about the lost opportunity for a jury trial and the corresponding failure to post l^the jury bond, because of the defendants’ conscious decision not to inform him of such. Nothing at that time was apparent to Dr. Teague. Moreover, the record is void of any indicators which would have been apparent to a reasonable person on that date that the jury trial had been lost due to the failure by his attorneys to post a jury bond and that the loss of the jury served as the motivation for the mediation and settlement.

Because the actions of mediating and settling the case were not negligent acts in and of themselves, a fortiori, Dr. Teague should not be held to have reasonably known that legal malpractice had occurred and had precipitated the mediation and settlement. To the contrary, we find it was reasonable for Dr. Teague not to recognize that the undesirable result might be due in part to malpractice because his insurance policy did not contain a “consent to settle” clause. Both St. Paul and the defendants were well within their contractual rights in effecting the mediation and subsequent settlement without his consent, notwithstanding the blatant omission by the defendants in never informing him of the loss of the jury trial due to their own negligence in failing to post the jury bond, which prompted defendants’ settlement of the case.

Furthermore, we find, at all times, Dr. Teague acted with due diligence and in an appropriate and reasonable manner. Shortly after learning of the bad result, he retained new counsel. Significantly, it would have been imprudent for Dr. Teague to simply act out of passion and sue his lawyers based upon what he perceived as a bad result without first taking reasonable steps to investigate and discover the underlying facts and circumstances.

Sound policy reasons support such a conclusion. Knowledge of a bad result does not necessarily include knowledge of the cause or reason for the bad result. |17Although the bad result is part of the overall malpractice equation, most often the reason or cause of the bad result constitutes the actual act of malpractice. To hold that peremption commences from the date of knowledge of a bad result would precipitate lawsuits unnecessarily to preserve rights. An investigation might prove the absence of any malpractice or that the result was not caused by the defendant’s negligence. Rather, we find it is the knowledge of the cause or reason for the undesirable result that commences the running of peremption when such knowledge is not self evident from the bad result. In the present case, an investigation was necessary for Dr. Teague to reasonably learn of the malpractice. Moreover, had Dr. Teague not taken exception to the submission of erroneous information to the NPDB and sought other counsel, the malpractice in this case may never have been discovered.

On October 29, 1999, Dr. Teague had neither actual nor constructive knowledge of the existence of any substandard legal practice and had no evidence to connect the adverse outcome, the settlement, with the acts of legal malpractice by his attorneys, because defendants never informed him of their failure to post the jury bond, a fact they knowingly withheld from him. Once those acts of malpractice were revealed to him by virtue of an investigation into the matter by another attorney, then he did promptly file a legal malpractice suit.' Because the bad result was not self evident of the malpractice involved, we find peremption could not have begun to run until several weeks after October 29, 1999, when Dr. Teague first discovered the malpractice. Dr. Teague’s petition was filed on November 3, 2000, and was thus timely pursuant to the provisions of La. Rev.Stat. § 9:5605. Accordingly, the judgment of the court of appeal is reversed, and this matter is remanded to the court of appeal for consideration of defendants’ assignments of error on appeal.

1 ^DECREE

For the foregoing reasons, the judgment of the court of appeal is reversed and this matter is remanded to the court of appeal for consideration of defendants’ assignments of error on appeal.

REVERSED AND REMANDED.

JOHNSON and VICTORY, JJ„ dissent.

TRAYLOR, J., dissents and assigns reasons.

WEIMER, J., concurs with reasons.

TRAYLOR, Justice,

dissenting.

11While I agree with the majority’s statements about the operation of peremption, I find such a discussion irrelevant in this case, and thus, dicta. St. Paul Insurance Company (“St. Paul”), Dr. Teague’s malpractice insurer, assigned the defense of the medical malpractice suit to the law firm. There is no disagreement that Dr. Teague’s policy with St. Paul did not contain a “consent to settle” clause, which means that the insurer did not have to obtain Dr. Teague’s consent to any proposed compromise of a malpractice claim covered by the policy.

Thus, whether the law firm properly filed a jury bond is without effect in this context. The law firm could have filed the jury bond timely and yet subsequently settled the medical malpractice law suit with the same consequences of which Dr. Teag-ue complains in his legal malpractice suit. Due to the clear language of Dr. Teague’s malpractice insurance policy with St. Paul, he is without authority to contest the compromise of his malpractice claim. Moreover, the damages which Dr. Teague claims in his legal malpractice suit stem solely from St. Paul’s reporting of the settlement to the National Practitioner Data Bank, rather than the actions of the attorneys.

| pThe majority opinion implies that Dr. Teague had an arguable claim against his attorneys, when he clearly had none. Although the opinion correctly asserts the necessary elements of a legal malpractice claim, ie. the existence of an attorney-client relationship, negligent representation by the attorney, and loss caused by that negligence, the majority finds only that an attorney-client relationship existed and that there was a negligent representation by the attorneys to their client, Dr. Teague. The opinion is silent as to how the loss or damages claimed by Dr. Teague were caused by the asserted negligent representation. It bears repeating that the loss and/or damages claimed stemmed solely from St. Paul’s reporting of the settlement, rather than the actions or inac-tions of the attorneys in timely filing a jury bond.

While Dr. Teague may have grounds to file a bar complaint, he did not assert, and certainly did not prove, a claim in legal malpractice. Consequently, I believe this court should find, on its own motion, that Dr. Teague has neither a right of action (based on the language of the insurance contract) nor a cause of action (because there are no damages which can be attributable to the actions of the attorneys) against the law firm or the individual lawyers who were assigned to work on his medical malpractice case. See La. C.C.P. art. 927(B). To remand the matter to the court of appeal so that the appellate court may first act upon the attorneys’ claims on appeal is a waste of judicial resources when the matter should be disposed of here.

Accordingly, I respectfully dissent.

WEIMER, J.,

concurring.

hi concur in the result which determines that this matter is not perempted. All other issues previously raised in the court of appeal remain for resolution on remand.

      . St. Paul and its claims adjuster, Catherine Laufer, were also named as defendants, but were subsequently dismissed from the suit.

      . The NPDB was established through Title IV of Public Law 99-660, the Healthcare Quality Improvement Act of 1986. Practitioner Data Bank Page. U.S. Department of Health and Human Services Health Resources and Services Administration. December 11, 2007 <http://bhpr.hrsa.gov/dqa>. The NPDB contains reports of paid medical malpractice judgments and settlements, among other actions, against physicians, dentists, and other health care practitioners. The law specifies that the NPDB make reported information available to hospitals, health care entities with formal peer review, professional societies with formal peer review, State licensing authorities, health care practitioners (self-query), researchers (statistics only), and in limited circumstances, plaintiffs’ attorneys. Id. The NPDB is specifically prohibited from disclosing specific information on practitioners to the general public. Id. The intent of the NPDB is to improve the quality of health care by encouraging State licensing boards, hospitals, and other health care entities, and professional societies to identify and discipline those who engage in unprofessional behavior; and to restrict the ability of incompetent physicians, dentists, and other health care practitioners to move from State to State without disclosure or discovery of previous medical malpractice payment and adverse action history. National Practitioner Data Bank Page. National Practitioner Data Bank and Healthcare Integrity and Protection Data Bank. December 10, 2007 <http.//www.npdb-hipdb.hrsa.gov/npdb.html>. The NPDB is primarily an alert or flagging system intended to facilitate a comprehensive review of health care practitioners' professional credentials. Id. The information contained in the NPDB is intended to direct discrete inquiry into, and scrutiny of, specific areas of a practitioner’s licensure, professional society memberships, medical malpractice payment history, and record of clinical privileges. Id.

      . We will not discuss the issue of Dr. Teague’s damages as we granted this writ to address only the issue of peremption. We are remanding this case to the court of appeal to dispose of the defendants’ assignments of error that were pretermitted by the court of appeal.

      . Our jurisprudence provides that the doctrine of contra non valentem does not apply to peremption. Reeder, 97-0239 at p. 12, 701 So.2d at 1298. The Legislature, on the other hand, codified this discovery exception. La. Rev.Stat. § 9:5605. So although the doctrine of contra non valentem does not apply, we are bound to apply the exception provided by law as clearly and unambiguously written by the Legislature. La. Civ.Code art. 9; La.Rev.Stat. § 1:4. Notably, the discovery exception contained in La.Rev.Stat. § 9:5605 replicates the discovery exception contained in La.Rev.Stat. § 9:5628 of the Louisiana Medical Malpractice Act, which this Court has interpreted in accordance with our contra non jurisprudence. See Campo, 01-2707, p. 9 (La.6/21/02), 828 So.2d 502, 509. It logically follows, therefore, that we interpret the discovery exception at issue by analogy with our jurisprudence on the discovery rule in medical malpractice actions, but within the limitations provided by the Legislature in the relevant statutory provisions.

      . The record does not show the exact date he retained new counsel.

      . Majority Opinion, p. 1269.

      . The majority opinion notes that St. Paul and its claims adjuster were initially named as defendants, but were subsequently dismissed from the suit. Majority Opinion, p. 1269, fn. 1.


author: JOHNSON, Justice,

text:
    Sharon BROWN v. KTBS, INC. & CNA Insurance Companies.
    No. 2008-C-0353.
    Supreme Court of Louisiana.
    Feb. 15, 2008.
   In re KTBS Inc. et ah; CNA Insurance Companies; — Defendant(s); Applying for Writ of Certiorari and/or Review Office of Workers’ Comp. Dist. 1W, No. 06-01625; to the Court of Appeal, Second Circuit, No. 42,847-WCA.

|! Writ denied.

JOHNSON, J., concurs in denial of the writ application and assigns reasons.

JOHNSON, Justice,

concurring in denial of the writ application.

| Additionally, I would require that defendants, KTBS, Inc. and CNA Insurance Companies, issue a guarantee of payment to Plaintiffs choice of vendor for the wheelchair within ten (10) days.


text:
    In re Attlah Deniece BURRELL.
    No. 2008-B-0327.
    Supreme Court of Louisiana.
    Feb. 20, 2008.
   ORDER

Considering the Petition for Interim Suspension for Threat of Harm filed by the Office of Disciplinary Counsel, and the response thereto filed by respondent,

IT IS ORDERED that respondent, Att-lah Deniece Burrell, Louisiana Bar Roll number 24764, be and she hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.2, pending further orders of this court. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.

/s/ Pascal F. Calogero, Jr. Justice, Supreme Court of Louisiana

KNOLL, J., recused.


text:
    In re Gregory VAN JUDICE.
    No. 2008-B-0340.
    Supreme Court of Louisiana.
    Feb. 20, 2008.
   ORDER

Considering the Petition for Interim Suspension for Threat of Harm filed by the Office of Disciplinary Counsel,

IT IS ORDERED that respondent, Gregory Van Judice, Louisiana Bar Roll number 24481, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.2, pending further orders of this court. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.

/s/ Catherine D. Kimball Justice, Supreme Court of Louisiana


author: PER CURIAM.

text:
    In re Edwin DeAundra HAWKINS.
    No. 2007-B-1619.
    Supreme Court of Louisiana.
    Feb. 22, 2008.
   | ¶ ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

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

FORMAL CHARGES

Count I — The Hams Matter

In June 2003, Ruth Baker Harris retained respondent to represent her in a civil damage claim and an ongoing workers’ compensation claim, paying respondent $1,500 toward an agreed $2,500 fee ($500 of which was non-refundable). After numerous attempts to contact respondent, Ms. Harris was advised that respondent was in settlement negotiations with opposing counsel. Subsequent numerous efforts to contact respondent about her claims were unsuccessful, and in September 2003, respondent’s telephone was disconnected. Ms. Harris learned from opposing counsel that although respondent had called him once or twice, respondent had not enrolled as counsel on her behalf, and that she was being served with a motion to compel for delinquent discovery responses. Ms. Harris filed a disciplinary complaint against respondent in September 2003, requesting return of the $1,500.

After numerous attempts by the ODC to contact respondent, he was subpoenaed to appear on July 9, 2004. Respondent admitted he had not responded 12to the complaint, agreed to provide a written response to the complaint, and further agreed to refund $400 to Ms. Harris while initiating the fee dispute arbitration process for the balance. Although respondent requested the fee arbitration application form from the Louisiana State Bar Association (“LSBA”), no further action was taken, nor did he provide evidence of the $400 refund. Ms. Harris later received a certified letter from respondent stating he believed the entire fee was earned.

The ODC alleges that respondent’s conduct in the Harris matter violated the following provisions of the Rules of Professional Conduct: Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.5 (fee arrangements), 1.5(f)(6) (failure to refund an unearned fee), 1.16(d) (failure to comply with obligations upon termination of the representation), and 8.1(c) (failure to cooperate with the ODC in its investigation).

Count II — The Johnson Matter

In June 2003, Sonya Jones Johnson retained respondent to handle a dispute which had arisen over the boundaries of a tract of land she had agreed to purchase. Ms. Johnson paid respondent $1,250 toward an agreed $2,000 fee ($175 filing fees; $500 non-refundable). During a chance meeting at the courthouse, respondent advised Ms. Johnson he was filing the petition and had scheduled a meeting with the opposing party. After learning the petition had not been filed, Ms. Johnson scheduled a meeting with respondent, but he failed to appear. Ms. Johnson asked her cousin (Ms. Harris in Count I) to request a refund from respondent, and she was told her money would be refunded. Ms. Johnson filed a disciplinary complaint in October 2003.

13After numerous attempts by the ODC to contact respondent, he was subpoenaed to appear on July 9, 2004. Respondent admitted he had not responded to the complaint, but testified he had performed work on Ms. Johnson’s case and that they were involved in a fee dispute. Respondent agreed on the record to initiate the fee arbitration process, but the ODC later learned that respondent did not make application to the LSBA.

The ODC alleges that respondent’s conduct in the Johnson matter violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.5, 1.5(f)(6), 1.16(d), and 8.1(c).

DISCIPLINARY PROCEEDINGS

Respondent failed to answer or otherwise reply to the formal charges. Accordingly, the factual allegations of the formal charges were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the hearing committee’s consideration.

Hearing Committee Report

The hearing committee determined that the factual allegations of the formal charges were deemed admitted and proven by clear and convincing evidence pursuant to Rule XIX, § 11(E)(3). The committee also determined that respondent violated the Rules of Professional Conduct as alleged in the formal charges.

14As a sanction, the committee recommended that respondent be suspended from the practice of law for a minimum of two years, and be assessed with all costs of this proceeding. Neither respondent nor the ODC filed an objection to the hearing committee’s recommendation.

Disciplinary Board Recommendation

The disciplinary board concurred in the findings of the hearing committee that respondent violated the Rules of Professional Conduct as set forth in the formal charges, and that the charges were deemed admitted and proven by clear and convincing evidence.

The board determined that respondent violated duties owed to his clients and to the legal profession. The board further noted respondent’s actions appeared to be knowing, and the misconduct caused actual injury to his clients in failing to return their legal fees or complete their legal matters. The board also recognized harm to the disciplinary system, in that the ODC was forced to utilize its limited resources in its numerous attempts to contact respondent to obtain information for its investigation.

In determining an appropriate sanction, the board applied the finding of the following aggravating factors: prior disciplinary offenses, dishonest or selfish motive, a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding, refusal to acknowledge the wrongful nature of the conduct, vulnerability of the victims, substantial experience in the practice of law (admitted 1996), and indifference to making restitution. The board found no mitigating factors.

|fiBased on its review of the facts and the court’s prior jurisprudence, the board found that the baseline sanction for similar misconduct is a one-year suspension However, given the numerous aggravating factors, in particular the prior discipline for similar misconduct, the board adopted the hearing committee’s recommended sanction of a two-year suspension from the practice of law.

Based on this reasoning, the board recommended that respondent be suspended from the practice of law for two years. The board also recommended that respondent be ordered to provide an accounting and make restitution to his clients, and that he be assessed with all costs and expenses of these proceedings.

Neither respondent nor the ODC filed an objection to the disciplinary board’s recommendation.

DISCUSSION

Bar disciplinary matters come within the original jurisdiction of this court. La. Const, art. V, § 5(B). 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, 348; Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444, 445 (La.1992). While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee’s factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

The deemed admitted facts in this case establish that respondent failed to act with reasonable diligence and promptness in representing his clients, failed to | ficommunicate with his clients, failed to refund unearned fees, charged excessive fees due to impermissible non-refundable language in his contract, failed to comply with obligations upon termination of the representation, and failed to cooperate with the ODC in its investigation.

Having found professional misconduct, we now turn to a discussion of an appropriate sanction. 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).

The record demonstrates that respondent knowingly and intentionally violated duties owed, and caused harm to his clients and the legal profession. We find the following aggravating factors present: prior disciplinary offenses, dishonest or selfish motive, a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, refusal to acknowledge the wrongful nature of the conduct, vulnerability of the victims, substantial experience in the practice of law, and indifference to making restitution. No mitigating factors are evident in the record.

When applying the aggravating factors to the baseline sanction of a suspension warranted for similar misconduct, we agree with the hearing committee and disciplinary board that a two-year suspension from the practice of law is appropriate. Accordingly, we will accept the disciplinary board’s recommendation and suspend respondent from the practice of law for a period of two years.

IvDECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Edwin DeAundra Hawkins, Louisiana Bar Roll number 24448, be suspended from the practice of law for two years. It is further ordered that respondent shall provide accountings to his clients subject of the formal charges, and make full restitution of any unearned legal fees. 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 2002, respondent was publicly reprimanded by the disciplinary board for lack of diligence, failure to communicate with clients, and failure to cooperate in disciplinary investigations.


text:
    In re Desmond E. McGINN.
    No. 2007-B-1546.
    Supreme Court of Louisiana.
    Feb. 22, 2008.
   | ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

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

UNDERLYING FACTS AND PROCEDURAL HISTORY

The ODC filed two sets of formal charges against respondent, consisting of a total of eight counts of misconduct. The charges were considered by separate hearing committees, then consolidated by order of the disciplinary board. The board then filed in this court a single recommendation of discipline encompassing both sets of formal charges.

FORMAL CHARGES

0I-DB-02I

Count I — The Irvin Matter

In January 2002, Christopher Irvin paid respondent $850 to handle a divorce, including the appointment of a curator. Respondent ceased his efforts to have the curator appointed when he received information concerning the domicile of Mr. Irvin’s wife; however, respondent was subsequently unsuccessful in obtaining a waiver of service from the wife. Thereafter, respondent abandoned any further efforts |⅞⅛ the divorce proceeding. Mr. Irvin repeatedly e-mailed respondent from his military position overseas to learn the status of the divorce. On February 26, 2002, respondent answered one e-mail stating the papers had been filed, explaining the service process, and saying there were “a couple months to go.” Respondent did not respond to any further emails and did not communicate again with Mr. Irvin in any way. In June 2002, Mr. Irvin filed a disciplinary complaint against respondent. Respondent responded to the complaint and admitted that he had not filed any pleadings or taken any action on Mr. Irvin’s behalf, nor refunded any fees.

The ODC alleges that respondent’s conduct violates the following provisions of the Rules of Professional Conduct: Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.5(f)(6) (failure to refund an unearned fee), and 1.16(d) (obligations upon termination of the representation).

Count II — The Mullinax Matter

In February 2002, Jim Mullinax retained respondent to handle a “lemon law” claim on his new vehicle. Mr. Mullinax paid respondent $500 toward the agreed $1,000 fee, with the remaining $500 to be paid at the time of filing suit. Upon contacting respondent about the status of his case, Mr. Mullinax was twice advised that respondent mailed a certified letter to the vehicle manufacturer. Mr. Mullinax then asked respondent for a copy of the letter and the certified mail receipt, but he was told that the documents had been lost by the post office. Mr. Mullinax later learned that respondent had not communicated with the vehicle manufacturer as he claimed. In August 2002, Mr. Mullinax filed a disciplinary complaint against respondent. Respondent responded to the complaint and admitted that he had not | afiled any pleadings or taken any action on Mr. Mullinax’s behalf, nor refunded any fees.

The ODC alleges that respondent’s conduct violates the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.5(f)(6), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation).

Count III — The Porter Matter

In May 2003, Peggy Porter paid respondent $500 to complete a community property settlement incidental to her prior divorce. Respondent told Ms. Porter that the matter would be completed within two weeks. For the next five months, however, Ms. Porter heard nothing from respondent, despite her repeated efforts to reach him. Furthermore, during this period, Ms. Porter learned that her former husband had sold some of the community assets. In October 2003, Ms. Porter traveled from her home in Illinois to meet with respondent at his office in Shreveport. During the meeting, respondent admitted to neglecting the case, but prepared documents for Ms. Porter to approve, and stated the documents would be revised and mailed the next day. The documents were not mailed, however, and respondent did not take any further action, nor did he communicate with his client regarding the status of the matter. In November 2003, Ms. Porter filed a complaint against respondent with the ODC. Respondent failed to reply to the complaint, and he has not refunded any portion of the fee Ms. Porter paid.

The ODC alleges that respondent’s conduct violates the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.5(f)(6), and 8.1(c)/8.4(g) (failure to cooperate with the ODC in its investigation).

\ACount TV — The Little Matter

In February 2002, Jason Little paid respondent $750 to defend him in a civil suit. Respondent failed to contest the lawsuit or otherwise protect his client’s interest, and as a result, an unopposed judgment was rendered against Mr. Little in the amount of $3,307.77, plus expert witness fees and court costs. In February 2003, Mr. Little filed a complaint against respondent with the ODC. Respondent failed to reply to the complaint, and he has not refunded any portion of the fee Mr. Little paid.

The ODC alleges that respondent’s conduct violates the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.5(f)(6), and 8.1(c)/8.4(g) (failure to cooperate with the ODC in its investigation).

06-DB-008

Count I — The Bradley Matter

In March 2003, Albert Bradley retained respondent to assume his representation in a community property partition and disavowal of paternity matter. Mr. Bradley made payments to respondent totaling $1,300 for attorney’s fees and court costs. Respondent did not enroll on Mr. Bradley’s behalf or file any pleadings in the case. During Mr. Bradley’s repeated attempts to communicate with respondent, only one e-mail was received from respondent with a note that he “was working on it.” In April 2004, Mr. Bradley filed a complaint against respondent with the ODC. Respondent failed to reply to the complaint, and he has not refunded any portion of the fee Mr. Bradley paid.

The ODC alleges that respondent’s conduct violates the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4,1.5(f)(6), and 8.1(c).

| BCount II — The Sexton Matter

In May 2002, Mr. and Mrs. Jackie Sexton paid respondent $1,300 to pursue a redhibitory action for alleged defects in their mobile home. During the initial interview, respondent drafted a petition for the Sextons to sign, and he later advised them that he had filed the suit. However, no lawsuit was ever filed on behalf of the Sextons. Respondent did not respond to repeated requests for information, and in June 2004, the Sextons filed a complaint against respondent with the ODC. Respondent failed to reply to the complaint, and he has not refunded any portion of the fee the Sextons paid.

The ODC alleges that respondent’s conduct violates the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4,1.5(f)(6), 1.16(d), 8.1(c), and 8.4(c).

Count III — The Bachman Matter

In October 2003, Danette Bachman paid respondent $675 to file a bankruptcy proceeding. Despite over fifty phone calls to respondent’s office by Ms. Bachman requesting that he file the petition, respondent failed to take any action and Ms. Bachman was forced to hire other counsel.

In July 2004, the United States Trustee contacted respondent concerning the fee paid by Ms. Bachman. Respondent sent an e-mail response stating Ms. Bachman had disappeared after hiring him, and that he had not received a phone call or letter from her in almost a year. Respondent then proceeded to file his own personal bankruptcy proceeding, and listed the $675 fee as a creditor claim. Respondent’s bankruptcy case was dismissed with prejudice in September 2004.

IfiOn February 2, 2005, the bankruptcy trustee set a hearing to examine and void the transaction between Ms. Bachman and respondent to recoup the funds for the bankruptcy estate. Respondent was notified of the hearing in advance, but failed to attend. Respondent also did not answer the trustee’s requests for admissions, which were then deemed admitted, and respondent was ordered to refund $675 to the debtor, Ms. Bachman. Respondent has not refunded the fee as ordered by the bankruptcy court.

In February 2005, United States Bankruptcy Judge Henley Hunter filed a complaint with the ODC, reporting respondent’s false statement to the trustee that Ms. Bachman had disappeared. Respondent failed to cooperate with the ODC in the investigation of Judge Hunter’s complaint.

The ODC alleges that respondent’s conduct violates the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.5(f)(6), 8.1(c), 8.4(c), and 8.4(d) (engaging in conduct prejudicial to the administration of justice).

Count TV — The Beck Matter

In February 2002, Ralph Beck retained respondent to handle a child custody dispute, making payments totaling $1,300 toward respondent’s fee. Respondent filed the initial petition for change of custody on behalf of Mr. Beck, but failed to take any further action. When Mr. Beck asked for the status of the matter, respondent advised he was working on getting a court date. In August 2004, after no progress and no further contact, Mr. Beck filed a complaint against respondent with the ODC. Respondent failed to reply to the complaint, and he has not refunded any portion of the fee Mr. Beck paid.

|7The ODC alleges that respondent’s conduct violates the following provisions of the Rules of Professional Conduct: Rules 1.3,1.4,1.5(f)(6), and 8.1(c).

DISCIPLINARY PROCEEDINGS

Respondent failed to answer or otherwise reply to either set of formal charges. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the hearing committee’s consideration in either matter.

Hearing Committee Reports Oh-DB-OU

The hearing committee determined that the factual allegations of the formal charges were deemed admitted and proven by clear and convincing evidence and that respondent violated the Rules of Professional Conduct as alleged in the formal charges. For his misconduct, the committee recommended that respondent be suspended from the practice of law for two years.

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

06-DB-008

The hearing committee determined that the factual allegations of the formal charges were deemed admitted and proven by clear and convincing evidence and that | ¿respondent violated the Rules of Professional Conduct as alleged in the formal charges. For his misconduct, the committee recommended that respondent be suspended from the practice of law for three years.

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

Disciplinary Board Recommendation

After reviewing the consolidated matters, the disciplinary board agreed that respondent violated the Rules of Professional Conduct as charged in both sets of formal charges. The board determined that respondent violated duties owed to his clients and to the profession, that his pattern of misconduct was knowing and intentional, and his clients were harmed. The board further noted that respondent knowingly failed to perform services, knowingly deceived his clients and made false statements, failed to refund fees, and failed to cooperate with the ODC in its investigation. The baseline sanction for these acts is disbarment.

The board found the record supports the following aggravating factors: prior disciplinary offenses, dishonest or selfish motive, a pattern of misconduct, multiple offenses, substantial experience in the practice of law (admitted 1982), and indifference to making restitution. In mitigation, the board found that respondent’s prior discipline was remote in time, and that he became overwhelmed when he accepted a part-time position as a misdemeanor indigent defender.

Based on the above findings and this court’s prior jurisprudence, the board recommended that ^respondent be disbarred. The board also recommended that respondent be ordered to account for and refund all unearned fees, and that he be assessed with all costs and expenses of these proceedings.

Neither respondent nor the ODC filed an objection to the disciplinary board’s recommendation.

DISCUSSION

Bar disciplinary matters come within the original jurisdiction of this court. La. Const, art. V, § 5(B). 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, 348; Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444, 445 (La.1992). While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee’s factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

The deemed admitted facts in this case establish that respondent failed to communicate with his clients, neglected the legal matters he was retained to handle, failed to refund unearned legal fees, failed to comply with his obligations upon termination of representation, made false statements and misrepresentations to clients and the judiciary, and failed to cooperate with the ODC in its investigation.

Having found professional misconduct, we now turn to a discussion of an appropriate sanction. 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).

The record supports numerous aggravating factors, including a pattern of misconduct, prior disciplinary offenses, dishonest or selfish motive, multiple offenses, substantial experience in the practice of law, and indifference to making restitution. We also apply the two mitigating factors noted by the board. Respondent’s misconduct caused actual harm, if not serious injury to his clients, and his total disregard for his professional obligations indicates that he poses a substantial danger to the public. Respondent’s continued indifference to rectifying the consequences of his misconduct is evident in his lack of response in the disciplinary proceedings. Based on this reasoning, we conclude that the disciplinary board’s recommendation of disbarment is appropriate.

Accordingly, we will accept the disciplinary board’s recommendation and disbar respondent.

DECREE

Upon review of the findings and recommendations of the hearing committees and disciplinary board, and considering the record, it is ordered that Desmond Eugene McGinn, Louisiana Bar Roll number 9311, be disbarred. His name shall be stricken from the roll of attorneys and his license to practice law in the State of Louisiana shall be revoked. It is further ordered that respondent shall provide accountings to all persons subject of the formal charges, and make full restitution of any unearned legal fees. Ml costs and expenses in the matter are assessed against respondent in | ¶ accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

JOHNSON, J., would impose a 3 year suspension.

      . By this time, Ms. Bachman had produced telephone records to the court evidencing her more than fifty unsuccessful attempts to contact respondent.

      . Respondent was privately reprimanded in 1989, and in 1994, he was admonished by the disciplinary board for failing to cooperate with the ODC in a disciplinary investigation.


text:
    STATE of Louisiana v. John Michael MURPHY.
    No. 2007-OK-2032.
    Supreme Court of Louisiana.
    Feb. 22, 2008.
   PER CURIAM.

Granted. La.C.Cr.P. art. 914(A) provides in part that “A motion for an appeal may be made orally in open court or by filing a written motion with the clerk.” (emphasis added). The article should be construed liberally to effectuate a defendant’s constitutional right of appeal in Louisiana. La. Const, art. I, § 19; State v. Goodley, 423 So.2d 648, 651 (La.1982) (“Appeals have always been favored in the law of this state.”) (citation omitted). Defendant’s oral motion made by counsel in open court following sentencing constituted an oral motion for an appeal as authorized by La. C.Cr.P. art. 914(A), and the court of appeal therefore erred in dismissing the appeal on grounds that defendant did not timely file a subsequent written motion for an appeal. The decision below is reversed and the matter remanded to the court of appeal to hear the merits of the defendant’s appeal.

TRAYLOR, J., would deny.


text:
    In re Melissa H. TALLON.
    No. 2008-B-0179.
    Supreme Court of Louisiana.
    Feb. 22, 2008.
   |,ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent was convicted of operating a motor vehicle while under the influence of alcohol. Prior to the institution of formal charges, respondent and the ODC submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Melissa H. Tallón, Louisiana Bar Roll number 27454, be suspended from the practice of law for a period of one year and one day. It is farther ordered that this suspension shall be deferred in its entirety and that respondent shall be placed on probation for a period of five years, subject to the conditions set forth in the petition for consent discipline.

IT IS FURTHER ORDERED that in the event respondent violates any of the conditions of probation set forth in the petition for consent discipline, probation may be summarily revoked and the deferred suspension made executory, or other discipline imposed, as appropriate.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

JOHNSON, J., would reject the consent discipline and assigns reasons.

JOHNSON, J., rejecting the consent discipline and assigning reasons.

| í Respondent entered a plea of no contest to Driving While Intoxicated (2nd offense). The court sentenced defendant to six (6) months in the Parish Jail, but deferred imposition of the sentence, and placed her on two (2) years supervised probation. The State opted to nolle prose-qui three (3) additional charges.

Respondent has violated Rule 8.4(b) of the Rules of Professional Conduct (committed a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer), and I would reject the consent discipline (suspension for 1 year and 1 day, fully deferred) and impose an actual period of suspension.


author: DAVID S. GORBATY, Judge. LOMBARD, J., BELSOME, J.,

text:
    Debra L. SIMMONS v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, Office of Motor Vehicles.
    No. 2007-CA-0572.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 12, 2007.
    Rehearing Denied Jan. 23, 2008.
    Stephen A. Quidd, Dept, of Public Safety & Corrections, Baton Rouge, LA, for Defendant/Appellant.
   (Court composed of Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE, Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME).

DAVID S. GORBATY, Judge.

| j Debra L. Simmons sought judicial review in the district court of an order suspending her driver’s license for 545 days as a result of her second reported refusal to submit to a chemical test for suspected intoxication while driving. The district court granted her motion for summary judgment, vacating the order of suspension. The Department of Public Safety and Corrections, Office of Motor Vehicles (hereinafter DPS) appeals that judgment.

FACTS and PROCEDURAL HISTORY:

Debra L. Simmons was arrested on November 4, 2005, for DWI and obstructing a public passage. After being transported to the Jefferson Parish Correctional Center, she refused to sign the form acknowledging that she understood her rights, and refused to submit to either a breath or urine test.

Ms. Simmons timely requested an administrative hearing to challenge the proposed suspension of her driving privileges pursuant to La.R.S. 32:667 E, sometimes referred to as the Implied Consent Hearing statute. The hearing was not held until April 6, 2006, more than 90 days after the date of her arrest.

| gAt the hearing, Ms. Simmons argued that La. R.S. 32:667 E mandates that a hearing shall be had within 90 days of arrest, and, therefore, if a hearing does not take place timely, the Implied Consent Hearing must be abandoned. The administrative law judge indicated that she would be inclined to agree with this argument, but for a recent ruling of the Louisiana Supreme Court, Hamilton v. Royal Internat’l Petroleum Corp., 05-846 (La.2/22/06), 934 So.2d 25. Relying on language in that opinion, she affirmed the proposed suspension of Ms. Simmons’ driving privileges.

Ms. Simmons appealed the order to the district court. That court agreed that the mandatory language contained in the statute must be enforced. It granted Ms. Simmons’ motion for summary judgment, ■overruled the decision of the administrative law judge, and vacated the order affirming the proposed suspension of Ms. Simmons’ license.

DISCUSSION:

On appeal, Ms. Simmons argues that the language of La.R.S. 32:667 E is clear and unambiguous, and does not lead to absurd results; thus, the law should be applied as written.

Louisiana Revised Statute 32:667 E provides:

The department shall provide a hearing to determine suspension or revocation of driving privileges, and said hearing shall be held within ninety days of the date of arrest in all cases, unless continued at the request of the driver.

|aThe administrative law judge agreed that the statutory language did mandate a hearing be held within 90 days of arrest; however, she pointed out that the statute did not provide for a penalty if the hearing did not take place. Relying on Hamilton, supra, she declined to read into the statute a penalty not provided by the legislature.

In Hamilton, supra, a case involving sale of property for failure to pay taxes, the Supreme Court noted that “[cjourts are not free to rewrite laws to effect a purpose that is not otherwise expressed.” Id. 05-846, p. 10, 934 So.2d at 33. The Court further stated:

A plain reading of La.Rev.Stat. 47:2180 does not provide any penalty or remedy should the tax collector fail to perform his mandatory duty to provide the post-tax sale notice. We are not unmindful that the word “shall”, for purposes of statutory construction, denotes a mandatory duty. However, statutes classified as mandatory prescribe, in addition to requiring the doing of the thing specified, the result that will follow if they are not done.... [I]t is not the function of the judicial branch in a civilian legal system to legislate by inserting penalty provisions into statutes where the legislature has chosen not to do so.

Id., 05-846, p. 11, 934 So.2d at 34 (citations omitted).

We agree with the administrative law judge. It is not our function as a court of appeal to legislate. Further, we do not agree with the district court’s conclusion that not enforcing the mandatory language of the statute leaves a driver awaiting a hearing with “Damocles’ sword hanging above [his] head.” Ms. Simmons requested a hearing and one was had. While awaiting the hearing, she could continue to drive; therefore, she suffered no hardship as a result of the delay.

^Accordingly, we reverse the decision of the district court and reinstate the order issued April 7, 2006, affirming the proposed suspension of Ms. Simmons’ license.

REVERSED AND RENDERED.

LOMBARD, J., concurs and assigns additional reasons.

BELSOME, J., dissents with reasons.

LOMBARD, J.,

concurs and assigns additional reason.

pThe Louisiana Supreme Court has determined that “[if] the terms of the statute are limited to what is required to be done, i.e., procedural rules, then the statute is considered directory even though mandatory language is used.” Marks v. New Orleans Police Dept., 2006-0575, p. 10 (La.11/29/06), 943 So.2d 1028, 1035, abrogating Davis v. New Orleans Police Dept., 2004-1023 (La.App. 4 Cir. 2/2/05), 899 So.2d 37, (citation omitted).

BELSOME, J.,

dissents with reasons.

hi respectfully dissent. The majority focuses on the absence of a written penalty for the violation of La. R.S. 32:667 E; I find that focus misplaced. I agree that “[cjourts are not free to rewrite laws to effect a purpose that is not otherwise expressed.” Hamilton v. Royal International Petroleum Corp., 05-846, p. 11 (La.2/22/06), 934 So.2d 25, 34 citing Richard v. Hall, 03-1488, p. 22 (La.4/23/04), 874 So.2d 131, 148. However, I also recognize that “the word ‘shall’, for purposes of statutory construction, denotes a mandatory duty.” Id.

La. R.S. 32:667 E states that in all cases the department has a mandatory duty to conduct a hearing within ninety days to determine suspension or revocation of driving privileges. Mandating that the hearing be held in a specific amount of time equates to a prescriptive period for the department to bring its action. Thus, if the hearing is not heard within that time, it shall not be heard. Accordingly the failure to comply with the statutory requirement relieves the department of the authority to revoke or suspend driving privileges; to find otherwise renders the statute meaningless.