author: PER CURIAM.

text:
    In re Michael L. HYMAN.
    No. 2007-B-0636.
    Supreme Court of Louisiana.
    June 1, 2007.
   PER CURIAM.

_|jThis disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Michael L. Hyman, an attorney licensed to practice law in Louisiana, but currently ineligible to practice.

UNDERLYING FACTS

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

The Smith Matter

Chester Smith retained respondent to represent him after he was injured in a June 1998 work-related accident. In June 1999, respondent filed a personal injury-lawsuit on behalf of his client and instituted a worker’s compensation claim. Several years later, Mr. Smith retained attorneys Mark Boyer and Charles Duhe to represent him. On March 26, 2002, Mr. Smith terminated the attorney-client relationship with respondent via letter and requested his file. Respondent received the letter but failed to provide Mr. Smith with his file as requested.

On April 11, 2002, July 16, 2002, August 6, 2002, and September 24, 2002, Mr. Boyer wrote to respondent requesting Mr. Smith’s file. Respondent did not provide the file.

On January 15, 2003, Mr. Boyer and Mr. Duhe filed a motion to substitute counsel of record and to compel production of Mr. Smith’s file in the personal injury |¡>suit. On or about that same day, Mr. Boyer filed a similar motion in the worker’s compensation proceeding, which matter was set for hearing on January 31, 2003. Respondent did not appear at the hearing. The judge ordered respondent to produce the file within fifteen days of the signing of the judgment on February 10, 2003. Respondent did not return the file. However, there were no documents in the suit record to show that respondent was served with notice of the hearing date or notice of the judgment.

In July 2003, Mr. Smith retained attorney Richard Guidry to represent him in the personal injury suit. On July 7, 2003, Mr. Guidry sent respondent a letter requesting Mr. Smith’s file. On July 9, 2003, Mr. Guidry filed a motion to substitute counsel, which was granted. In September 2003, he filed a motion to compel production of Mr. Smith’s file, which matter was heard on October 6, 2003. Respondent failed to appear for the hearing, despite being personally served with notice of the hearing date. On November 3, 2003, the judge signed an order requiring respondent to produce Mr. Smith’s entire file to Mr. Guidry within ten days and pay the costs and attorney’s fee incurred in the filing of the motion. Respondent again failed to return the file, despite being personally served with notice of the order.

On September 9, 2003, the ODC forwarded respondent notice of the initial complaint in this matter. Respondent failed to respond to the complaint, necessitating the issuance of a subpoena to obtain his sworn statement. Despite being personally served with notice to appear for the sworn statement on December 11, 2003, respondent failed to appear.

On August 6, 2004, respondent finally delivered Mr. Smith’s file to Mr. Guidry.

Respondent stipulated that his conduct in this matter violated Rules 1.16(d) (obligations upon termination of the representation), 8.1(c) (failure to cooperate with lathe ODC in its investigation), 8.4(a) (violation of the Rules of Professional Conduct), 8.4(d) (engaging in conduct prejudicial to the administration of justice), and 8.4(g) (failure to cooperate with the ODC in its investigation) of the Rules of Professional Conduct.

The Barcia Matter

In December 2000, Angela Barcia retained respondent to represent her in a personal injury matter. At the time, respondent was located in Baton Rouge. Thereafter, he relocated to Lafayette without notifying Ms. Barcia. Ms. Barcia terminated respondent’s services and verbally requested the return of her file. Respondent failed to provide the file to her.

Thereafter, Ms. Barcia retained attorney E. Wade Shows to represent her. Mr. Shows also requested that respondent return Ms. Bareia’s file. Respondent failed to comply with this request until August 6, 2004.

On April 22, 2004 and May 5, 2004, the ODC forwarded respondent notice of the initial complaint in this matter. Respondent failed to respond to the complaint, necessitating the issuance of a subpoena to obtain his sworn statement, which took place on July 27, 2004.

Respondent stipulated that his conduct in this matter violated Rules 1.16(d), 8.1(c), 8.4(a), and 8.4(g) of the Rules of Professional Conduct.

The Causey Matter

In the latter part of 2001, Christon Cau-sey hired respondent to represent her in a civil matter. On June 2, 2004, Ms. Causey made a written request for her file in order to obtain additional counsel. Respondent failed to provide the file to her.

|4On September 9, 2004, the ODC forwarded respondent notice of the initial complaint in this matter. In response to the complaint, respondent asserted that he mailed Ms. Causey’s file to her on October 6, 2004. On October 9, 2004, Ms. Causey informed the ODC that she had not received her file.

On December 15, 2004, respondent provided the ODC with a sworn statement. As of that date, Ms. Causey still had not received her file. Therefore, the ODC obtained the file on her behalf.

Respondent stipulated that his conduct in this matter violated Rules 1.16(d) and 8.4(a) of the Rules of Professional Conduct.

DISCIPLINARY PROCEEDINGS

. On April 25, 2005, the ODC filed three counts of formal charges against respondent. Respondent answered the formal charges and denied any misconduct. Thereafter, respondent and the ODC entered into a joint stipulation of facts and rule violations. In this document, respondent stipulated to the facts as alleged by the ODC and admitted that he violated the Rules of Professional Conduct as charged. In February 2006, the hearing committee conducted a hearing which was limited to the issue of mitigation.

Hearing Committee Recommendation

After considering the evidence and testimony presented at the hearing, the hearing committee accepted the rule violations as stipulated to by the parties. The committee determined that respondent knowingly, but with no intent to cause harm, engaged in conduct that caused potential harm to his clients, the public, and the legal Issystem. The committee also found that respondent has made great strides in gaining control over his life, both personally and professionally, and he can therefore engage in the practice of law at this time without danger of harm to his clients, the public, or the legal system. However, oversight of respondent’s practice for a limited period of time would be extremely helpful and would prevent further harm.

Based on this reasoning, the committee recommended that respondent be suspended for nine months, with all but ninety days deferred, followed by two years of probation with the conditions that he complete Ethics School and be assigned a Practice Assistance monitor from the Louisiana State Bar Association.

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

Disciplinary Board Recommendation

After review, the disciplinary board determined that the stipulated facts are not manifestly erroneous. The board also determined that respondent violated the Rules of Professional Conduct as stipulated to by the parties.

The board found that respondent knowingly violated duties owed to his clients and to the legal profession. The potential for harm was significant; however, there is no evidence in the record of actual harm to respondent’s clients beyond the delay in returning the files. According to the ABA’s Standards for Imposing Lawyer Sanctions, the baseline sanction is a period of suspension.

The board found the following aggravating factors present: multiple offenses, bad faith obstruction of the disciplinary system by intentionally failing to comply with the disciplinary investigation, and substantial experience in the practice of law (admitted 1989). In mitigation, the board found the absence of a prior disciplinary | ^record, absence of a dishonest or selfish motive, personal or emotional problems, and remorse.

In light of the lack of actual harm, the lack of a prior disciplinary record, and respondent’s personal and emotional problems, the board recommended that respondent be suspended for nine months, with all but ninety days deferred, followed by two years of supervised probation with the conditions that he complete Ethics School and be assigned a Practice Assistance monitor from the Louisiana State Bar Association. The board also recommended that respondent be assessed with all costs of these proceedings.

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

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const, art. Y, § 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).

The stipulations in this matter indicate that respondent failed to return the files of three clients upon termination of the representation and failed to cooperate with the ODC in two separate investigations. Respondent has stipulated that his conduct violated Rules 1.16(d), 8.1(c), 8.4(a), 8.4(d), and 8.4(g) of the Rules of Professional Conduct.

Having found professional misconduct, the sole remaining issue presented for our consideration is the appropriate sanction for respondent’s misconduct. In imposing a sanction, we are mindful that disciplinary proceedings are designed to ^maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved, considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

In acting as he did, respondent violated duties owed to his clients and to the legal profession. He acted knowingly, and the potential for harm was significant. The baseline sanction is a period of suspension.

Aggravating factors are a pattern of misconduct, multiple offenses, and substantial experience in the practice of law. In mitigation, we note that respondent has no prior disciplinary record. He also lacked a dishonest or selfish motive, suffered from personal problems during the time frame in question, and has expressed remorse.

Under all the circumstances of this case, we find that the disciplinary board’s recommendation is appropriate. Accordingly, we will suspend respondent from the practice of law for nine months, with all but ninety days deferred, followed by two years of supervised probation governed by the conditions recommended by the disciplinary board. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred portion of the suspension execu-tory, or imposing additional discipline, as appropriate.

IsDECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Michael Lea Hy-man, Louisiana Bar Roll number 19347, be suspended from the practice of law in Louisiana for a period of nine months. It is further ordered that all but ninety days of the suspension shall be deferred. Following the active portion of the suspension, respondent shall be placed on two years of supervised probation governed by the conditions recommended by the board. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred portion of the suspension executory, or imposing additional discipline, as appropriate. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . The committee determined that the root cause of respondent's misconduct was his abrupt separation from his wife and the ensuing divorce and custody issues. The acrimony existing between respondent and his estranged wife caused his law practice to fall into disarray. He is also the father of triplet daughters, who are in his care approximately one-half of the time.

      . The two-year probationary period shall commence from the date petitioner, the ODC, and the probation monitor execute a formal probation plan.


source: Caselaw Access Project

license: Public Domain

text:
    In re Mark J. ARMATO.
    No. 2007-B-0500.
    Supreme Court of Louisiana.
    June 1, 2007.
   PER CURIAM.

_JjThis disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Mark J. Armato, an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

The Griffin Matter

In August 1996, Allen Griffin retained respondent to represent him in a criminal matter in which he was charged with DWI and related traffic offenses. Mr. Griffin paid respondent $2,500. In October 1996, Mr. Griffin appeared in court for trial; however, respondent could not appear because of a schedule conflict. Respondent informed Mr. Griffin that he would request a continuance of the trial date. In turn, Mr. Griffin advised respondent of his frequent work-related overseas travel and provided respondent with his work schedule so that a new trial date could be requested.

When Mr. Griffin last spoke with respondent, respondent informed him that he had made six court appearances, at which Mr. Griffin failed to appear. However, respondent never advised Mr. Griffin of any further court appearances and failed to keep him advised of the status of the case. As a result, in June 2003, Mr. Griffin terminated respondent’s representation and requested an accounting. Respondent failed to respond to Mr. Griffin’s letter and phone calls and never provided an ^accounting of the $2,500 paid by Mr. Griffin. Respondent also failed to fully cooperate with the ODC in its investigation of the disciplinary complaint filed by Mr. Griffin.

The Couvillion Matter

In March 2002, Albert Couvillion retained respondent to represent him in a personal injury case. Mr. Couvillion also paid respondent $1,200 to represent him in a criminal matter in which he was charged with DWI and related traffic offenses. Thereafter, Mr. Couvillion attempted to contact respondent many times, but to no avail. After several months, Mr. Couvil-lion finally spoke to respondent, who stated that he was moving to Tennessee. Respondent then failed to appear in court on Mr. Couvillion’s behalf in February 2003. Eventually, Mr. Couvillion found another attorney to handle his legal matters and terminated respondent’s representation. Respondent also failed to fully cooperate with the ODC in its investigation of the disciplinary complaint filed by Mr. Couvil-lion.

DISCIPLINARY PROCEEDINGS

On March 17, 2005, the ODC filed two counts of formal charges against respondent, alleging his conduct violated the following Rules of Professional Conduct: Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.16(d) (obligations upon termination of the representation), and 8.1(c) (failure to cooperate with the ODC in its investigation).

Respondent was served with the formal charges via certified mail delivered on May 17, 2005. Respondent failed to answer or otherwise reply to the formal charges. Accordingly, the factual allegations contained therein were deemed admitted and | ^proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the hearing committee’s consideration.

Hearing Committee Recommendation

After reviewing the ODC’s deemed admitted submission, the hearing committee made the following factual findings:

In the Griffin matter, Mr. Griffin paid respondent $2,500 to represent him in a DWI matter. Respondent failed to appear in court for Mr. Griffin. Respondent also failed to promptly notify Mr. Griffin of court dates. Mr. Griffin properly terminated the attorney-client relationship with respondent. Respondent failed to promptly respond to Mr. Griffin’s letters and phone calls. Respondent also failed to provide Mr. Griffin with an accounting. Respondent did not earn the $2,500 “flat fee” for handling the DWI charge since he did not complete the representation and Mr. Griffin hired new counsel.

In the Couvillion matter, Mr. Couvillion paid respondent $1,200 to represent him in a DWI matter. He also hired respondent in March 2002 to represent him in a personal injury case. Mr. Couvillion tried to contact respondent. Respondent failed to appear in court for Mr. Couvillion in February 2003. Respondent also failed to provide Mr. Couvillion with an accounting. He did not earn the $1,200 “flat fee” for handling the DWI charge since he did not complete the representation and Mr. Cou-villion hired new counsel.

Based on these factual findings, the committee determined that respondent violated the Rules of Professional Conduct as alleged in the formal charges. The | ¿committee also determined that respondent knowingly and intentionally violated duties owed to his clients and to the legal profession. He caused actual injury to his clients in the amount of thousands of dollars. According to the ABA’s Standards for Imposing Lawyer Sanctions, the baseline sanction is a period of suspension.

In aggravation, the committee found 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 (admitted 1986), and indifference to making restitution. The committee found no mitigating factors.

Turning to the issue of an appropriate sanction, the committee noted that this court has imposed one year and one day suspensions for misconduct similar to respondent’s. See, e.g., In re: Vaughan, 00-1892 (La.10/27/00), 772 So.2d 87; In re: Powers, 98-2826 (La.1/29/99), 731 So.2d 185; and In re: Kendrick, 98-0623 (La.4/3/98), 710 So.2d 236.

Based on this reasoning, the committee recommended that respondent be suspended from the practice of law for one year and one day. The committee also recommended that respondent make restitution of any unearned fees to his clients. Finally, the committee recommended that respondent be assessed with all costs and expenses of these proceedings.

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

Disciplinary Board Recommendation

After reviewing this matter, the disciplinary board determined that the deemed admitted facts are not manifestly erroneous and adopted same. The board also | .-.determined that respondent violated the Rules of Professional Conduct as alleged in the formal charges.

The board found that respondent knowingly and intentionally violated duties owed to his clients, the legal profession, and the disciplinary system. The baseline sanction for similar misconduct is a one year and one day suspension. See In re: Wyatt, 02-0053 (La.4/12/02), 814 So.2d 1265.

The aggravating factors found by the board are 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, substantial experience in the practice of law, and indifference to making restitution. Like the committee, the board found no mitigating factors.

Noting that one year and one day suspensions are consistently imposed in cases in which neglect is combined with a failure to cooperate with the ODC in its investigation, the board recommended that respondent be suspended from the practice of law for one year and one day and that he be ordered to provide his clients with account-ings and a refund of any unearned fees. The board also recommended that respondent be assessed with all costs associated with these proceedings.

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

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).

|fiIn cases in which the lawyer does not answer the formal charges, the factual allegations of those charges are deemed admitted. Supreme Court Rule XIX, § 11(E)(3). Thus, the ODC bears no additional burden to prove the factual allegations contained in the formal charges after those charges have been deemed admitted. However, the language of § 11(E)(3) does not encompass legal conclusions that flow from the factual allegations. If the legal conclusion the ODC seeks to prove (i.e., a violation of a specific rule) is not readily apparent from the deemed admitted facts, additional evidence may need to be submitted in order to prove the legal conclusions that flow from the admitted factual allegations. In re: Donnan, 01-3058 (La.1/10/03), 838 So.2d 715.

In this matter, the record supports a finding that respondent neglected two legal matters, failed to communicate with his clients, failed to protect his clients’ interests upon termination of the representation, and failed to cooperate with the ODC in its investigation.

Having found professional misconduct, the sole remaining issue presented for our consideration is the appropriate sanction for respondent’s misconduct. In imposing a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved, considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

We find that respondent knowingly, if not intentionally, violated duties owed to his clients, the legal profession, and the legal system. His actions caused actual harm to his clients. The baseline sanction for this type of misconduct is a period of 17suspension. The aggravating factors present are 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. The sole mitigating factor is the absence of a prior disciplinary record.

In In re: Schnyder, 05-1463 (La.1/13/06), 918 So.2d 455, we suspended a lawyer for one year and one day for neglecting the legal matters of two clients, failing to communicate with those clients, and failing to cooperate with the ODC in its investigation. We find a similar sanction is appropriate in the instant case. Accordingly, we will accept the disciplinary board’s recommendation and suspend respondent from the practice of law for one year and one day.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Mark J. Armato, Louisiana Bar Roll number 17445, be suspended from the practice of law in Louisiana for a period of one year and one day. It is further ordered that respondent render an accounting to his clients and make restitution of any unearned 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.


text:
    In re Clifford L. WILLIAMS.
    No. 2007-OB-0287.
    Supreme Court of Louisiana.
    June 13, 2007.
   ORDER

On October 1, 1996, respondent was declared ineligible to practice law for failure to pay his bar dues and the disciplinary assessment. Respondent has not been reinstated to practice since that time. Nevertheless, respondent continued to practice law and handled at least seventeen civil and criminal cases during the period of his ineligibility. In 2005, the Office of Disciplinary Counsel (“ODC”) filed formal charges against respondent arising out of his misconduct. Respondent now seeks to permanently resign from the practice of law in lieu of discipline. The ODC has concurred in respondent’s petition.

Having considered the Petition for Voluntary Permanent Resignation from the Practice of Law filed by Clifford Lee Williams, Louisiana Bar Roll number 17398, and the concurrence thereto filed by the ODC,

IT IS ORDERED that the request of Clifford Lee Williams for permanent resignation in lieu of discipline be and is hereby granted, pursuant to Supreme Court Rule XIX, § 20.1 and Rule 5.5(c) of the Rules of Professional Conduct, as amended March 24, 2004.

IT IS FURTHER ORDERED that Clifford Lee Williams shall be permanently prohibited from practicing law in Louisiana or in any other jurisdiction in which he is admitted to the practice of law; shall be permanently prohibited from seeking readmission to the practice of law in this state or in any other jurisdiction in which he is admitted; and shall be permanently prohibited from seeking admission to the practice of law in any jurisdiction.

IT IS FURTHER ORDERED that the proceedings in 07-B-0287 be dismissed as moot.

/s/ Chet D. Traylor

Justice, Supreme Court of Louisiana


text:
    In re Keith D. THORNTON.
    No. 2007-B-0204.
    Supreme Court of Louisiana.
    June 15, 2007.
   PER CURIAM.

1This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Keith D. Thornton, an attorney licensed to practice law in Louisiana, but currently suspended from practice.

PRIOR DISCIPLINARY HISTORY

Before we address the current charges, we find it helpful to review respondent’s prior disciplinary history. Respondent was admitted to the practice of law in Louisiana in 1990. In 2000, respondent was admonished by the disciplinary board for failing to cooperate with the ODC in a disciplinary investigation. In 2004, this court considered a proceeding involving two sets of formal charges against respondent for misconduct that occurred between 2000 and 2002. These charges alleged that respondent neglected a legal matter, failed to communicate with a client, and failed to cooperate with the ODC in three separate disciplinary investigations. After considering the record, we suspended respondent for one year and one day. In re: Thornton, 04-0488 (La.7/2/04), 876 So.2d 781 (“Thornton I ”). Respondent has not sought reinstatement from this suspension; accordingly, he remains suspended from the practice of law.

| ¡.UNDERLYING FACTS

In April 1997, respondent filed a personal injury suit on behalf of the plaintiff in the matter captioned Charles Seiss, Jr. v. First Pentecostal Church of Alexandria, Louisiana, Inc., No. 187,631 on the docket of the Ninth Judicial District Court. After filing suit, respondent hampered discovery by canceling his client’s deposition on several occasions, failing to respond to written discovery requests, and failing to appear for his client’s deposition. As a result, in February 1998, defense counsel, attorney Lawrence S. Searcy, Jr., filed motions to compel discovery and for sanctions. The trial judge subsequently ordered the plaintiff to respond to discovery before March 13, 1998. Thereafter, Mr. Searcy was finally able to take the plaintiffs deposition, and the matter began to proceed towards trial.

On July 10, 2000, respondent requested that the matter be set for a status conference so that a trial date could be selected. On July 27, 2000, the matter was set for a jury trial (third setting) on September 18, 2001.

Thereafter, Mr. Searcy sent respondent additional discovery requests. Respondent failed to respond to the discovery, notwithstanding that Mr. Searcy sent him reminder letters in July and August 2001 requesting that he answer the discovery before the September trial date. That trial date was eventually continued because another matter went forward. The trial court reset the case for trial as a first setting on July 23, 2002, and new deadlines were set for submitting witness and exhibit lists, subpoenas, pretrial memoranda, and discovery of exhibits.

Respondent appeared for the trial in July 2002 but did not submit witness and exhibit lists or a pretrial memorandum, as required by the pretrial order. Accordingly, the trial court dismissed the case at the plaintiffs costs plus $1,200 as attorney’s fees to the defendant.

1 ^Respondent did not make arrangements to pay the costs despite numerous requests by the clerk of court, and the clerk of court would not dismiss the suit until the costs were paid. In response, Mr. Searcy filed a motion to enforce payment of costs. On May 9, 2003, the judge signed another judgment ordering the plaintiff to pay all court costs and $1,200 in attorney’s fees to the defendant. Respondent still failed to pay the costs despite receiving a letter from Mr. Searcy dated September 11, 2003 informing him that if he paid the costs within fifteen days he would not have to pay the $1,200 attorney’s fee.

On November 21, 2003, Mr. Searcy filed a motion and judgment for contempt of court and for sanctions against respondent personally for failing to pay the costs. On January 26, 2004, the trial court held respondent in contempt of court and ordered him to pay an additional $1,000 to the defendant for his failure to properly pay the costs. On February 18, 2004, a civil warrant was issued for respondent’s arrest for failing to comply with the order to pay the costs.

Respondent’s client, Mr. Seiss, alleged that his suit was dismissed because of respondent’s actions. He telephoned respondent repeatedly throughout the representation, but his phone calls were not answered or returned. Furthermore, respondent never informed Mr. Seiss of the numerous court dates or the status of the case.

Mr. Searcy filed a complaint against respondent with the ODC in February 2004. The ODC sent respondent two notices of the complaint via certified mail; however, he failed to respond, necessitating the issuance of a subpoena for his sworn statement.

I ¿DISCIPLINARY PROCEEDINGS

In 2005, the ODC filed one count of formal charges against respondent, alleging his conduct violated the following 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), 3.2 (failure to make reasonable efforts to expedite litigation), 8.1(c) (failure to cooperate with the ODC in its investigation), 8.4(d) (engaging in conduct prejudicial to the administration of justice), and 8.4(g) (failure to cooperate with the ODC in its investigation).

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

Hearing Committee Recommendation

After reviewing the ODC’s deemed admitted submission, the hearing committee found that respondent hampered the discovery process in Mr. Seiss’ case by canceling his client’s deposition on several occasions, failing to return written discovery, and failing to appear for his client’s deposition. Mr. Searcy, the opposing counsel, was required to file a motion for sanctions for respondent’s failure to appear at his client’s deposition. The judge ordered respondent to respond to outstanding discovery. Respondent appeared for the trial but had failed to comply with the judge’s pretrial order. As such, the judge dismissed Mr. Seiss’ case and ordered respondent to pay all court costs and $1,200 in attorney’s fees to the defendant, j RRespondent failed to pay the costs and fees, and as a result, the judge held him in contempt of court and issued a warrant for his arrest. Respondent also failed to return his client’s phone calls or keep him informed of the numerous court dates or the status of the case. The ODC mailed a copy of Mr. Searcy’s complaint to respondent via certified mail. Despite the fact that the mail was signed for, respondent failed to respond to the complaint, and the ODC had to subpoena him to provide a sworn statement.

Based on these factual findings, the committee determined that respondent violated the Rules of Professional Conduct as alleged in the formal charges. The committee found that respondent violated duties owed to his client and to the legal profession. He acted knowingly and caused potential injury to his client. Based on the ABA’s Standards for Imposing Lawyer Sanctions, the committee determined that the baseline sanction is a period of suspension.

The committee found the following aggravating factors are present: prior disciplinary offenses, a pattern of misconduct, bad faith obstruction of the disciplináry proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, and substantial experience in the practice of law. The committee found no mitigating factors.

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

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

Disciplinary Board Recommendation

After reviewing this matter, the disciplinary board determined that the hearing committee’s factual findings are supported by the record. The board also determined |fithat the committee properly found respondent violated the Rules of Professional Conduct as charged.

The board found that respondent knowingly violated duties owed to his client, causing actual harm. In aggravation, the board recognized the following factors: prior disciplinary offenses, a pattern of misconduct, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, and substantial experience in the practice of law. The board found that no mitigating factors are present. Relying on the ABA’s Standards for Imposing Lawyer Sanctions, the board determined that the baseline sanction is a period of suspension.

Finding that the instant misconduct occurred during the same time frame as the misconduct in Thornton I, the board applied the approach established in Louisiana State Bar Ass’n v. Chatelain, 573 So.2d 470 (La.1991), wherein this court held that “[w]hen a second disciplinary proceeding against an attorney involves misconduct which occurred during the same time period as the first proceeding, the overall discipline to be imposed should be determined as if both proceedings were before the court simultaneously.” The board determined that had the instant matter been considered simultaneously with Thornton I, a two-year suspension would have been appropriate.

Accordingly, the board recommended that respondent be suspended from the practice of law for two years, to run concurrently with the suspension imposed in Thornton I. The board also recommended that respondent be assessed with all costs of these proceedings.

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

|7DISCUSSION

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).

In cases in which the lawyer does not answer the formal charges, the factual allegations of those charges are deemed admitted. Supreme Court Rule XIX, § 11(E)(3). Thus, the ODC bears no additional burden to prove the factual allegations contained in the formal charges after those charges have been deemed admitted. However, the language of § 11(E)(3) does not encompass legal conclusions that flow from the factual allegations. If the legal conclusion the ODC seeks to prove (i.e., a violation of a specific rule) is not readily apparent from the deemed admitted facts, additional evidence may need to be submitted in order to prove the legal conclusions that flow from the admitted factual allegations. In re: Donnan, 01-3058 (La.1/10/03), 838 So.2d 715.

The deemed admitted facts in this matter indicate that respondent neglected his client’s personal injury case, causing it to be dismissed, failed to communicate with his client and keep him informed of the status of his case, failed to make reasonable efforts to expedite the litigation by hampering the discovery process, engaged in conduct that was prejudicial to the administration of justice by failing to comply with a court order to pay costs and attorney’s fees, and failed to fully cooperate with the ODC in its investigation. In acting as he did, respondent violated the Rules of Professional Conduct as alleged in the formal charges.

Having found professional misconduct, the sole remaining issue presented for our consideration is the appropriate sanction for respondent’s misconduct. In imposing a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved, considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

We find that respondent acted knowingly, if not intentionally, and violated a duty owed to his client. Respondent caused actual harm to his client, whose lawsuit was dismissed by the trial court. The baseline sanction for respondent’s misconduct is a period of suspension.

The following aggravating factors are present in this matter: prior disciplinary offenses, a pattern of misconduct, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, and substantial experience in the practice of law. No mitigating factors are supported by the record.

Considering the aggravating factors present in this case, in particular respondent’s lengthy prior disciplinary record for misconduct similar to that at issue here, we find the appropriate sanction is a two-year period of suspension. In its report, the disciplinary board recommended that this suspension run concurrently with the suspension in Thornton I. We disagree. A close review of the record reveals that the misconduct in this case began as early as 1997 and lasted until 2004. The misconduct at issue in Thornton I occurred between 2000 and 2002. While there is some overlap in these time periods, the instant misconduct extended well beyond the misconduct in Thornton I. Therefore, the Chatelain approach is not appropriately | napplied in this matter. Rather, the two-year period of suspension we now impose will commence from the finality of judgment.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record and the brief filed by the ODC, it is ordered that Keith David Thornton, Louisiana Bar Roll number 20392, be suspended from the practice of law in Louisiana for a period of two years. 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.


text:
    In re Gary W. SHEFFIELD.
    No. 2007-B-0288.
    Supreme Court of Louisiana.
    June 15, 2007.
   PER CURIAM.

1 ,This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Gary W. Sheffield, an attorney licensed to practice law in Louisiana but currently on interim suspension pursuant to our order in In re: Sheffield, 00-1632 (La.6/30/00), 765 So.2d 334.

UNDERLYING FACTS

Count I — Respondent’s Federal Conviction

On November 22, 1999, a one count bill of information was filed against respondent in the United States District Court for the Western District of Louisiana. The bill of information charged that between August 14, 1997 and January 22, 1999, respondent violated 21 U.S.C. § 843(a)(2) by using the Drug Enforcement Administration (DEA) registration number that was issued to another person, Dr. John Denser, for the purpose of obtaining Hydrocodone, a Schedule III controlled dangerous substance. On February 25, 2000, respondent pleaded guilty to the charge set forth in the bill of information. He was subsequently fined $5,000 and sentenced to serve four months in prison, followed by one year of supervised release.

Count II — Respondent’s State Conviction

0n Jnl^ 31’ 2001> respondent pleaded guilty in the 19th Judicial District Court for the Parish of East Baton RouSe to five felony counts of Medicaid fraud, a _b™lation of La. R.S. U:70. Respondent’s conviction stemmed from his submission of false and fraudulent claims to the Louisiana Medicaid program for services not rendered but billed to the Medicaid program during the period of November 20, 1997 through September 9, 1998. Respondent was sentenced to serve five years at hard labor on each count to run concurrently. Pursuant to La.Code Crim. P. art. 893, the court deferred the imposition of sentence for five years and placed respondent on active supervised probation for that period, with one year retroactive to the date of sentencing. As special conditions of probation, the court ordered respondent to pay $105,593.07 in restitution, $35,000 in civil monetary penalties, and $25,000 for the costs of investigation and prosecution. Respondent was also required to execute a promissory note in favor of the State of Louisiana Department of Health and Hospitals in the amount of $134,406.93, representing a civil settlement of additional overbillings he made to the Louisiana Medicaid program during the time frame at issue.

Count III — The Riley Matter

In 1990, respondent was retained to handle a personal injury matter for an elderly client, Perry Riley, who suffered from advanced dementia. Respondent also handled certain of Mr. Riley’s personal financial affairs. During the course of the representation, respondent withdrew from various banks a total of $16,089.24 in funds belonging to Mr. Riley and deposited the funds into his client trust account. Respondent then wrote himself a check from the trust account in the amount of $12,503.14 for “repayment [of] advances, investigative fees and expenses.” When respondent was later called upon to account for this payment, he was unable to do so.

|sOn February 12, 1992, respondent settled Mr. Riley’s personal injury matter. However, he failed to prepare a written disbursement sheet identifying the payment of fees and expenses associated with the case, making it impossible to determine whether the client’s funds were handled properly. Respondent also maintained his attorney’s fees in his trust account for several months, thereby commingling his personal funds with funds belonging to his clients.

Count TV — The Harris Matter

In July 1996, Ethel Harris paid respondent $1,000 to handle a real estate dispute. Respondent performed little or no work in the matter and failed to complete the representation. Respondent also failed to refund the unearned portion of the fee paid by his client until October 1999, one year after Mrs. Harris filed a complaint with the ODC.

Count V — The Simmons Matter

In March 1998, Frances Simmons paid respondent $850 to handle a simple succession matter. Respondent performed little or no work in the matter and failed to complete the representation. Respondent also failed to refund the unearned portion of the fee paid by his client.

Count VI — The Coats Matter

In November 1999, Lloyd Coats paid respondent $7,500 to handle a criminal matter. Respondent performed little or no work in the matter and failed to complete the representation, yet he refunded only $3,500 of the fee Mr. Coats paid.

\ ¿Count VII — The Beauregard Matter

In April 1998, Matilda Beauregard paid respondent $1,600 to handle a property transfer in a succession proceeding. Respondent performed little or no work in the matter and failed to complete the representation. Respondent also failed to refund the unearned portion of the fee paid by his clients until April 1999, four months after Ms. Beauregard filed a complaint with the ODC.

Count VIII — The McConathy Matter

In August 1999, James McConathy paid respondent $3,500 to handle a divorce matter. Respondent performed little or no work in the matter and failed to complete the representation. Respondent also failed to refund the unearned portion of the fee paid by his client.

DISCIPLINARY PROCEEDINGS

On December 30, 2003, the ODC filed eight counts of formal charges against respondent, alleging that his conduct as set forth above constituted a violation of 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), 1.15 (safekeeping property of clients or third persons), 1.16(d) (obligations upon termination of the representation), 8.4(b) (commission of a criminal act reflecting adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer), 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 admitted his misconduct, but requested a hearing in mitigation.

Hearing Committee Recommendation

The hearing committee noted that Counts I through VIII above were admitted pursuant to respondent’s answer to the formal charges. After consideration of the evidence and testimony presented at the mitigation hearing, the committee made the following factual findings with respect to the aggravating and mitigating circumstances present:

Counts I & II (Respondent’s federal and state criminal convictions} — These counts arose out of respondent’s ownership of a medical clinic during what was clearly a stressful and troubled period in his life. Respondent practiced law for many years with his father until his death in 1994. Over the several years that followed, respondent and his wife developed problems and ultimately divorced. Respondent began taking pain pills, sleeping pills in order to sleep and speed in order to work. He developed a physical addiction to one of the medications. He used the DEA registration number of a physician associated with the medical clinic to illegally order controlled dangerous substances for his use.

A whistle-blower lawsuit by a business partner of respondent’s former wife subsequently revealed medical billing improprieties. Records were seized and respondent’s improper ordering of controlled dangerous substances was discovered. Ultimately, respondent pled guilty to illegally using a DEA registration number (Count I) and Medicaid fraud (Count II).

| ^Respondent jointly petitioned for his interim suspension from the practice of law in 2000 and closed his law practice. In connection with the conviction in Count I, respondent served four months in a federal prison in Florida, followed by supervised probation for one year. He paid a $5,000 fine. For his Medicaid fraud conviction, respondent was placed on probation for five years, with one year waived because he was already on supervised probation for the federal charge. Respondent agreed to pay to the State of Louisiana $105,593.07 in criminal restitution, $35,000 in civil monetary penalties, and $25,000 in costs of investigation and prosecution. Respondent has completed both state and federal probation.

The evidence clearly shows that respondent’s family, personal, and professional life has forever changed. Respondent described this as the worst period of his life, and the committee accepted that characterization. Respondent acknowledges that he made many wrong decisions and admits his fault. The committee found him to be remorseful and noted that his criminal convictions, although serious, did not arise out of his practice of law.

In each of Counts I and II, the committee determined that respondent violated Rules 8.4(b) and 8.4(c) of the Rules of Professional Conduct.

Count III (the Riley matter) — Respondent’s representation of Perry Riley resulted in a personal injury recovery, but respondent was unable to provide a comprehensive accounting of the funds after Mr. Riley’s death. Respondent admits today with the benefit of hindsight that he exercised poor judgment when he agreed to his chent’s request to oversee the disbursement and use of the settlement funds for the purpose of protecting them from the client’s adopted son. Respondent eventually accounted for the funds in March 1997, in response to requests for production of documents in a lawsuit that was filed against him by Mr. Riley’s daughter, who was also the executrix of Mr. Riley’s succession.

|7The committee determined that respondent violated Rules 1.5(c) and 1.15(b) of the Rules of Professional Conduct.

Count IV (the Harris matter) — Ethel Harris did not testify at the hearing, but documentary evidence submitted by the ODC shows that she and her sister retained respondent to assist them with a real estate problem their mother was experiencing. Their mother was 98 years old, blind, and suffering from Alzheimer’s Disease. Mrs. Harris quickly experienced difficulty contacting respondent. When the desired legal services were not performed, she continued to have difficulty contacting respondent and was unable to obtain a refund of her mother’s money. From October 1996 through August 1998, Mrs. Harris made numerous attempts to contact respondent and obtain information about the progress of the legal matter; however, her attempts were unsuccessful. On August 6,1998, Mrs. Harris wrote respondent asking “for the last time” that he refund her mother’s money so she could retain another attorney to handle the matter. This effort was likewise unsuccessful, and ten days later, Mrs. Harris filed a complaint against respondent with the ODC.

Respondent’s subsequent contact with Mrs. Harris was clearly untimely. Indeed, it was two years and ten months after being discharged when respondent finally wrote to his former client advising of the services he had rendered. This was approximately seven months after Mrs. Harris’ complaint was filed. It was not until October 21, 1999 when respondent refunded the fee Mrs. Harris had paid.

The committee determined that respondent violated Rule 1.5(f)(6) of the Rules of Professional Conduct.

Count v. (the Simmons matter) — Frances Simmons did not testify at the hearing. Her complaint and related documentary evidence was submitted by the |sODC. Respondent offered testimony regarding the work he performed in the Simmons matter, which he described as “extensive.” The succession was opened, the client was placed into possession, and the property was advertised twice. An appraiser was hired to appraise the property. The entire file maintained by respondent in the matter was introduced into evidence at the hearing.

Nevertheless, the committee found that respondent clearly failed to properly corn-municate with Ms. Simmons. Additionally, timing was important to accomplish the client’s desired sale of the property. This was clearly communicated by Ms. Simmons to respondent, yet he was not diligent in performing the services or advising his client of his progress. Ms. Simmons resides in Brownsville, Texas. She was greatly inconvenienced and incurred unnecessary expense in trying to contact respondent and in traveling to his office in Alexandria in attempts to see him. The property was eventually sold but not without obvious inconvenience and unnecessary stress to Ms. Simmons.

Respondent admitted at the hearing that he did not return any portion of the fee Ms. Simmons paid. He maintains the fee was earned. While he submitted evidence at the hearing of the services rendered, he never placed the disputed funds in a trust account or suggested to Ms. Simmons that the matter be submitted to fee arbitration or other alternative method of resolution. It was not proven to the committee that this fee dispute was ever properly resolved.

The committee determined that respondent violated Rules 1.3 and 1.5(f)(6) of the Rules of Professional Conduct.

Count VI (the Coats matter) — The events surrounding the Coats complaint occurred near the time respondent was surrendering his license to practice law. He could not complete the intended legal work because he was no longer practicing; however, he was financially unable to return the unearned fee and Mr. Coats filed 1 flsuit. Respondent filed an exception of prescription but then later agreed to repay his former client in monthly installments.

The committee found that the evidence offered by respondent regarding his repayment to Mr. Coats was vague and incomplete. Respondent testified that he had arranged with Mr. Coats to repay him at the rate of $100 per month. Receipts of payment were referenced by respondent at the hearing, but he did not submit them to the ODC or to the committee as required by the pre-hearing order. Nevertheless, the ODC agreed and the committee permitted respondent to submit a stipulation after the hearing detailing the “hundreds of dollars” respondent paid to Mr. Coats in restitution. No such stipulation was ever received. Accordingly, the committee determined that no evidence was offered to prove the extent to which payments were made by respondent to Mr. Coats.

The committee determined that respondent violated Rules 1.3, 1.15, and 8.4(c) of the Rules of Professional Conduct.

Count VII (the Beauregard matter)■ — • Respondent represented the family of Matilda Beauregard Harvey in several earlier actions. The instant matter relates to rights of ownership and damage of property to which the client claimed an inherited ownership interest but for which no succession had ever been opened. The extensive testimony adduced at the hearing convinced the committee that despite discussions between respondent, Ms. Beauregard, and her husband, Lewis Gill, there was never a clear understanding between respondent and his client regarding the payment received by respondent, the basis for computing his fee, or the extent of the work he agreed to perform.

|10The committee found it is clear that respondent received $1,150 from Mr. Gill on April 20, 1998. The funds included $150 for the advance deposit of court costs which were paid to the clerk of court, leaving $1,000 for fees. That is where any clear agreement between the parties ends. Respondent maintains that the payment was a deposit and that this fee arrangement was on an hourly basis. Neither Ms. Beauregard nor Mr. Gill understood the payment to be a deposit but believed instead that the payment was of a fixed fee.

Credible testimony by all three individuals revealed there was also a lack of agreement between respondent and the client as to the scope of the work respondent agreed to perform. It is undisputed that respondent rendered services on behalf of his clients. He went to the clerk of court’s office and obtained information and background regarding the property and its purchase. He recommended that a succession be opened and that Ms. Beauregard be recognized as the administra-trix in order to have legal authority to challenge actions taken by another heir. Respondent also recommended that a lawsuit be filed against the succession in order to recover funds expended on the succession and to resolve the issue of ownership. Respondent opened a succession and Ms. Beauregard was named ad-ministratrix; however, respondent recommended that separate counsel be retained to bring the action against the succession. Mr. Gill paid respondent an additional $450 on May 11, 1998 and respondent contacted another attorney to institute what respondent described as a “friendly action.” After having met with several family members, separate counsel advised respondent that it was doubtful the other family members would agree to asserting the claim and that they would not be filing a lawsuit. When respondent so informed Ms. Beauregard and Mr. Gill, they were unhappy and eventually sought other legal advice.

J^jRespondent’s belief that the payment was a deposit is supported by the receipt given to the client at the time of the payment which contains the description “Deposit Succession of Ethel and Rufus Beauregard.” He provided Ms. Beauregard with copies of time sheets but not until after she discharged him. Respondent explained in correspondence and at the hearing that if the case had proceeded to trial, his fee would have been $1,000 per day which he urges demonstrates that the payment was not sufficient to be a fixed fee. However, the money was not deposited into a trust account and respondent did not provide the client with routine or other billing invoices. Respondent acknowledged that he did not comply with the applicable rules in this regard.

After a complaint was filed, respondent refunded $430 of the initial payment and returned $450 he received for separate counsel to bring suit against the succession.

The committee determined that respondent violated Rules 1.4 and 1.5.

Count VIII (the McConathy matter)— Respondent testified that he searched for but could not find Mr. McConathy’s file. Documentation submitted by the ODC establishes that the Louisiana State Bar Association’s Client Assistance Fund paid Mr. McConathy $2,500 on October 31, 2001. Respondent, through counsel then representing him, agreed in July 2004 to reimburse the Fund at the rate of $100 per month until the debt and any accrued interest was paid in full. The record shows that from August 2004 until June 2005, respondent made monthly payments to the Fund of $100 each, for a total of $1,200. No explanation was given for the apparent cessation in reimbursements as of July 2005.

The committee determined that respondent violated Rules 1.3, 1.4, 1.5, and 1.16(d).

| ^Considering these findings, the committee determined that respondent violated duties owed to his clients, the public, and the legal system. Respondent acted knowingly and intentionally in some instances (Counts I, II, and VI), but negligently in others (Counts III, IV, V, VII, and VIII). The conduct underlying respondent’s state conviction caused significant actual injury to the State of Louisiana. Furthermore, respondent caused actual injury to his clients in Counts III through VHI. The applicable baseline sanction for respondent’s misconduct is disbarment.

The committee found that the following aggravating circumstances are present: dishonest or selfish motive, a pattern of misconduct, multiple offenses (as to Counts I & II only), vulnerability of the victims (as to Counts III through VIII only), and substantial experience in the practice of law (admitted 1981). In mitigation, the committee recognized the following factors: absence of a prior disciplinary record, personal or emotional problems, and imposition of other penalties or sanctions (as to Counts I & II only).

Under these circumstances, the committee recommended that respondent be disbarred.

The ODC objected to the leniency of the sanction recommended by the committee, urging that permanent disbarment is appropriate.

Disciplinary Board Recommendation

After reviewing the record of this matter, the disciplinary board determined that the hearing committee’s factual findings are not manifestly erroneous and adopted same. The board applied the Rules of Professional Conduct as follows:

Counts I & II (Respondent’s federal and state criminal convictions) — Respondent violated Rules 8.4(b) and 8.4(c) of the Rules of Professional Conduct in | ^connection with his guilty pleas for violations of 21 U.S.C. § 843(a)(2), illegal use of a DEA number, and La. R.S. 14:70.1, Medicaid fraud.

Count III (the Riley matter) — Respondent violated Rules 1.5(c) and 1.15(b) when he failed to timely provide a written accounting to Mr. Riley’s family of how Mr. Riley’s settlement funds and other personal funds were disbursed and used for Mr. Riley’s care.

Count TV (the Harris matter) — Respondent violated Rule 1.5(f)(6) in this matter. Despite Ms. Harris’ demand that respondent return her $1,000 fee, he failed to place the money in his trust account during the pendency of the fee dispute, and did not actually return the fee until October 1999, over two years after her first request that the fee be returned. However, respondent did not violate Rule 1.5(f)(2) as charged. Rule 1.5(f)(2) generally provides that upon payment of a fixed or minimum fee, the funds become the property of the lawyer and may be placed in an operating account. This is the procedure that respondent apparently followed.

Count V (the Simmons matter) — Respondent violated Rule 1.5(f)(6) in this matter by failing to place disputed funds in his trust account when a fee dispute arose with Ms. Simmons. He also violated Rule 1.3 when he failed to act with diligence in representing Ms. Simmons, causing delay in both her succession matter and the accompanying sale of succession property. However, respondent did not violate Rule 1.5(f)(2) as charged. The funds initially received from Ms. Simmons were part of a fixed fee for services to be rendered in the future; as such, the funds became the property of respondent when paid. Respondent apparently placed these fees in an account other than a trust account, which complies with Rule 1.5(f)(2).

Count VI (the Coats matter) — Respondent violated Rules 1.3, 1.15, and 8.4(c) in failing to diligently represent Mr. Coats in his criminal matter and by dishonestly converting at least $4,000 of Mr. Coats’ funds to his own use. Although respondent |14claims that he has made partial restitution to Mr. Coats, no such evidence is in the record. Respondent also violated Rule 1.5(a) by charging and retaining a fee of $4,000 for work he never performed.

Count VII (the Beauregard matter)— Respondent violated Rule 1.4 in this matter by failing to properly communicate with the Beauregard/Gill family concerning the scope of his legal representation and the manner in which his fee would be calculated. He also violated Rule 1.5(f)(6) by failing to properly address the fee dispute with the family.

Count VIII (the McConathy matter)— Respondent violated Rules 1.3, 1.4, 1.5(f)(6), and 1.16(d) in this matter. Mr. McConathy paid respondent $3,500 to obtain a divorce. However, respondent did little work in the matter and failed to properly communicate with Mr. McCona-thy. Respondent also failed to provide Mr. McConathy with an accounting and initially failed to return his unearned fee. Eventually, respondent did make some restitution ($1,200) through the LSBA’s Client Assistance Fund (which had paid Mr. McConathy $2,500), but after June 2005, respondent stopped making payments to the Fund.

The board found that respondent violated duties owed to his clients, the public, the legal system, and the profession. His conduct was negligent in some instances and intentional in other instances. In Count II, injury to the State of Louisiana was significant as the amount of funds respondent fraudulently obtained from the State totaled at least $105,593.07, which is the amount of his court-ordered restitution. The harm caused by respondent to his clients and other individuals was also significant. In Count III, respondent harmed his client’s heirs by failing to promptly provide them with an accounting of the client’s settlement and personal funds. In Count IV, respondent harmed Ms. Harris by failing to return her $1,000 fee for over two years after she requested that the fee be returned. In Count V, respondent harmed Ms. 1-^Simmons by failing to diligently pursue her legal matter, and in Count VI, respondent greatly harmed Mr. Coats by failing to refund $4,000 in unearned fees to him and by failing to diligently represent him in his criminal matter. Respondent’s conduct as outlined in Count VII shows that he failed to properly communicate with the Beauregard/Gill family and failed to properly handle the fee dispute that arose with those clients. Finally, as to Count VIII, respondent harmed Mr. McConathy by failing to diligently pursue his divorce and by failing to account to him for his fee and promptly returning the unearned fee. The board agreed with the hearing committee that the baseline sanction for respondent’s misconduct is disbarment.

In mitigation, the board acknowledged the following factors: absence of a prior disciplinary record, personal or emotional problems, and the imposition of other penalties or sanctions in the criminal cases. The board found the following aggravating factors are present: dishonest or selfish motive, a pattern of misconduct, multiple offenses, vulnerability of the victims, substantial experience in the practice of law, and illegal conduct.

Turning to the issue of an appropriate sanction, the board found respondent’s conduct fits within Guideline 6 of the permanent disbarment guidelines (insurance fraud, including but not limited to staged accidents or widespread runner-based solicitation). Respondent engaged in insurance fraud during his tenure as an owner of a neighborhood Medicaid clinic. He pled guilty to five counts of Medicaid fraud, based upon his submission of false claims to the Louisiana Medicaid program for services not rendered but billed to Medicaid during the period of November 20, 1997 through September 9, 1998. As a special condition of probation, respondent agreed to pay $105,593.07 in restitution to the Louisiana Medicaid program.

| ^Finding this matter is similar to In re: Stoller, 04-2758 (La.5/24/05), 902 So.2d 981, the board concluded that permanent disbarment is appropriate for respondent’s fraudulent insurance transactions, which “caused substantial financial loss to the State Medicaid program and also caused grave harm upon the reputation of the legal profession.”

Based on this reasoning, the board recommended respondent be permanently disbarred. The board also recommended that respondent be ordered to make restitution of unearned fees to Mr. Coats and to the LSBA’s Client Assistance Fund for monies paid to Mr. McConathy. Finally, the board recommended that respondent 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). When the disciplinary proceedings involve an attorney who has been convicted of a crime, the conviction is conclusive evidence of guilt and the sole issue presented is whether respondent’s crimes warrant discipline, and if so, the extent thereof. Supreme Court Rule XIX, § 19(E); In re: Boudreau, 02-0007 (La.4/12/02), 815 So.2d 76; Louisiana State Bar Ass’n v. Wilkinson, 562 So.2d 902 (La.1990). The discipline to be imposed depends on the seriousness of the offense and the extent of the aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Perez, 550 So.2d 188 (La.1989).

117In the instant case, respondent stands convicted of Medicaid fraud as well as illegally using a doctor’s DEA registration number for the purpose of obtaining Hydrocodone, a Schedule III controlled dangerous substance. These crimes are felonies under state and federal law, respectively, and clearly warrant serious discipline. The only issue to be resolved by this court is the appropriate sanction for respondent’s misconduct.

The documentary evidence submitted by the ODC in this case reflects that between November 1997 and September 1998, respondent submitted false and fraudulent claims to the Louisiana Medicaid program for services that were not rendered. Under these circumstances, disbarment is clearly appropriate. However, the disciplinary board has recommended to us that respondent’s offenses are so egregious that he should be permanently prohibited from applying for readmission to the bar.

We agree. In Appendix E to Supreme Court Rule XIX, we set forth guidelines illustrating the types of conduct which might result in permanent disbarment. Respondent’s submission of fraudulent Medicaid claims is clearly encompassed by Guideline 6, which pertains to insurance fraud. Considering respondent’s calculated and dishonest conduct, we find that the mitigating factors present here do not justify the imposition of a sanction less than permanent disbarment.

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

|1SDECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that the name of Gary W. Sheffield, Louisiana Bar Roll number 11998, be stricken from the roll of attorneys and that his license to practice law in the State of Louisiana be revoked. Pursuant to Supreme Court Rule XIX, § 24(A), it is further ordered that respondent be permanently prohibited from being readmitted to the practice of law in this state. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . Respondent was originally charged with 57 counts of Medicaid fraud and one count of felony theft; however, pursuant to a plea agreement with the State, the theft charge and 52 counts of Medicaid fraud were dismissed in exchange for respondent’s guilty plea.

      . In 2002, prior to the filing of formal charges, respondent filed a petition for consent discipline, proposing that he be disbarred for his criminal convictions as well as for the misconduct at issue in some seven disciplinary investigations that were then pending. The ODC concurred in the proposed discipline, and the disciplinary board recommended that the petition for consent discipline be accepted. On May 2, 2002, we rejected the proposed consent discipline and remanded the matter for the institution of formal charges, with the instruction that on remand “the hearing committee and disciplinary board may consider recommendation of the sanction of permanent disbarment, if appropriate, pursuant to Supreme Court Rule XIX, §§ 10(a) and 24, as amended effective August 1, 2001.” In re: Sheffield, 02-0781 (La.5/2/02), 814 So.2d 1293.

      . Respondent conceded in his answer that "his conduct is demonstrative of severe lapses in moral judgment, and further acknowledges that his conduct justifies the imposition of a sanction of disbarment.” However, respondent specifically denied that permanent disbarment is appropriate.

      . The committee also found a violation of Rule 1.5(b), which was not charged in the formal charges.

      . A copy of correspondence dated September 15, 2004 from respondent to Lloyd Ray Coats states in pertinent part that respondent was not interested in "taking advantage” of his prescription defense and offered to pay Mr. Coats $100 per month.

      . The board noted that respondent has completed his probated sentence, however, the record does not indicate whether he has finished paying the fines and penalties that are owed to the State.

      . In Stoller, the lawyer was permanently disbarred for assisting another attorney in a fraudulent insurance scheme by posing as counsel for fictitious clients and negotiating two fraudulent settlement checks. The court specifically commented that the lawyer’s actions, designed to fraudulently obtain funds from a self-insured entity, were encompassed by Guideline 6 of the permanent disbarment guidelines.

      . Because the imposition of permanent disbarment is the most severe sanction that can be imposed on respondent, having the effect of forever removing him from the bar of this state, we find it is not necessary to discuss the misconduct charged in the remaining counts of the formal charges. In re: Stephens, 07-0180 (La.4/27/07), 955 So.2d 140, citing In re: O’Keefe, 03-3195, pp. 11-12 (La.7/2/04), 877 So.2d 79, 86.


text:
    In re Michael Chris AGUILLARD.
    No. 2007-B-0351.
    Supreme Court of Louisiana.
    June 15, 2007.
   PER CURIAM.

| iThis disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Michael Chris Aguillard, an attorney licensed to practice law in Louisiana but currently on interim suspension pursuant to our order in In re: Aguillard, 05-2237 (La.9/19/05), 913 So.2d 114.

UNDERLYING FACTS

In September 2005, in the aftermath of Hurricane Katrina, respondent made Internet contact with a person whom he believed to be a thirteen-year old evacuee from New Orleans. Respondent arranged to meet the girl in a park in Broussard, Louisiana for the purpose of engaging in sexual relations. In reality, the “girl” was an investigator from the Louisiana Attorney General’s Office, which had been conducting an online undercover operation in cooperation with the Lafayette Police Department. When respondent arrived at the park on September 13, 2005 to meet the girl, he was arrested and charged in East Baton Rouge Parish with one count of computer-aided solicitation of a minor.

| ^Subsequent investigation of information found on respondent’s computer hard drive revealed that he had previously engaged in sexual intercourse with a fifteen-year old girl from Arnaudville, Louisiana. On September 16, 2005, respondent was rearrested in St. Landry Parish and charged with carnal knowledge of a juvenile and indecent behavior with a juvenile.

On April 24, 2006, respondent pleaded guilty in East Baton Rouge Parish to one felony count of computer-aided solicitation of a minor. Respondent was sentenced to serve three years at hard labor without benefit of parole, probation, or suspension of sentence. He was also required to register as a sex offender. On May 2, 2006, respondent pleaded guilty in St. Landry Parish to two felony counts of carnal knowledge of a juvenile. Respondent was sentenced to serve nine years at hard labor on each count to run concurrently, but consecutive with the sentence imposed in East Baton Rouge Parish. All but one year of the sentence was suspended and respondent was placed on five years active supervised probation, to commence upon his release from prison. Respondent is currently in the custody of the Louisiana Department of Corrections.

DISCIPLINARY PROCEEDINGS

On May 3, 2006, the ODC filed two counts of formal charges against respondent, alleging that his conduct constituted a violation of Rules 8.4(a) (violation of the Rules of Professional Conduct) and 8.4(b) (commission of a criminal act reflecting adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer) |3of the Rules of Professional Conduct. Respondent was personally served with the formal charges on May 4, 2006.

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

Hearing Committee Recommendation

After consideration of the ODC’s submission in response to the deemed admitted order, the hearing committee determined that respondent violated Rule 8.4(b) of the Rules of Professional Conduct. The committee found that respondent knowingly and intentionally violated duties owed to the public, the legal system, and as a professional. Respondent’s conduct in taking advantage of minors, particularly in the aftermath of Hurricane Katrina, caused both actual and potential injury to the victims. The applicable baseline sanction is disbarment.

Finding that no mitigating circumstances are present, and considering the permanent disbarment guidelines set forth in Appendix E to the Rules for Lawyer Disciplinary Enforcement, the committee recommended that respondent be permanently disbarred.

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

| ¿Disciplinary Board Recommendation

Noting the factual allegations of the formal charges were deemed admitted and proven by clear and convincing evidence, the disciplinary board agreed that respondent violated the Rules of Professional Conduct as charged in the formal charges. The board found that respondent intentionally violated duties owed to the public, causing irreversible actual harm to the juvenile victim and to the public’s confidence in the profession. The board agreed that disbarment is the baseline sanction for respondent’s misconduct.

In mitigation, the board acknowledged the following factors: absence of a prior disciplinary record and the imposition of other penalties or sanctions in the criminal cases. The board found the following aggravating factors are present: a pattern of misconduct, multiple offenses, vulnerability of the victim, and illegal conduct.

Turning to the issue of an appropriate sanction, the board found respondent’s conduct fits within Guideline 4 of the permanent disbarment guidelines (sexual misconduct which results in a felony criminal conviction, such as rape or child molestation). Respondent believed that he was soliciting a thirteen-year old girl and arranged to meet her at a park when instead he was greeted by law enforcement officials. This arrest resulted in the discovery of respondent’s involvement with a fifteen-year old girl, which resulted in his conviction of two counts of carnal knowledge of a juvenile. Respondent plainly meets the criteria for permanent disbarment.

Based on this reasoning, the board recommended respondent be permanently disbarred. The board also recommended that respondent be assessed with all costs and expenses of these proceedings.

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

^DISCUSSION

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

In the instant case, respondent stands convicted of computer-aided solicitation of a minor and carnal knowledge of a juvenile. These crimes are felonies under state law and clearly warrant serious discipline. The only issue to be resolved by this court is the appropriate sanction for respondent’s misconduct.

The documentary evidence submitted by the ODC in this case reflects that respondent attempted to arrange a sexual encounter with a thirteen-year old girl via the Internet. However, when he showed up to meet the “girl,” respondent was arrested by law enforcement officials who had posed as teenage evacuees from New Orleans in the aftermath of Hurricane Katrina. It was later discovered that respondent had met another underage girl on the Internet and actually had sexual intercourse with her on two occasions. Under these circumstances, disbarment is clearly appropriate. However, in their respective reports, the hearing committee and the disciplinary board have concluded that respondent’s offenses are so egregious that he should be permanently prohibited from applying for readmission to the bar.

We agree. In Appendix E to Supreme Court Rule XIX, we set forth guidelines illustrating the types of conduct which might warrant permanent disbarment. While | (¡these guidelines are not intended to bind this court in its decision-making process, they present useful information concerning the types of conduct we might consider worthy of permanent disbarment. For purposes of the instant case, Guideline 4 is relevant. That guideline provides:

GUIDELINE 4. Sexual misconduct which results in a felony criminal conviction, such as rape or child molestation.

Respondent’s conduct clearly falls within the scope of this guideline, as he has pleaded guilty to two felony sexual offenses involving minors.

Under the circumstances of this case, the imposition of any sanction less than permanent disbarment would require us to ignore the seriousness of respondent’s conduct and the grave harm he has done to his juvenile victim and to the public’s confidence in the legal profession. We will therefore accept the disciplinary board’s recommendation and permanently disbar respondent.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that the name of Michael Chris Aguillard, Louisiana Bar Roll number 28863, be stricken from the roll of attorneys and that his license to practice law in the State of Louisiana be revoked. Pursuant to Supreme Court Rule XIX, § 24(A), it is further ordered that respondent be permanently prohibited from being readmitted to the practice of law in this state. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . La. R.S. 14:81.3(A) defines computer-aided solicitation of a minor as follows:
      Computer-aided solicitation of a minor is committed when a person eighteen years of age or older knowingly contacts or communicates, through the use of electronic textual communication, with a person who has not yet attained the age of eighteen or a person reasonably believed to have not yet attained the age of eighteen, for the purpose of or with the intent to persuade, induce, entice, or coerce the person to engage or participate in sexual conduct or a crime of violence as defined in R.S. 14:2(B), or with the intent to engage or participate in sexual conduct in the presence of the person who has not yet attained the age of eighteen, or person reasonably believed to have not yet attained the age of eighteen.


text:
    In re Paul S. MINOR.
    No. 2007-B-1184.
    Supreme Court of Louisiana.
    June 20, 2007.
   ORDER

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

IT IS ORDERED that Paul Stephen Minor, Louisiana Bar Roll Number 9629, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately-

IT IS FURTHER ORDERED that necessary disciplinary proceedings be instituted in accordance with Supreme Court Rule XIX, §§ 11 and 19.

/s/ Jeannette Theriot Knoll

Justice, Supreme Court of Louisiana


text:
    In re Dustin Paul VIDRINE.
    No. 2007-OB-0793.
    Supreme Court of Louisiana.
    June 22, 2007.
   ON APPLICATION FOR ADMISSION TO THE BAR

PER CURIAM.

After reviewing the evidence and considering the law, we conclude petitioner, Dustin Paul Vidrine, is immediately eligible to be conditionally admitted to the practice of law in Louisiana, subject to a probationary period of five years. The probationary period may be extended upon recommendation of the Executive Director of the Lawyers Assistance Program. During the probationary period, petitioner shall comply with all of the terms and conditions of the contract(s) executed by him with the Lawyers Assistance Program, and such other conditions as may be imposed upon him by the Executive Director of the Lawyers Assistance Program. Should petitioner fail to make a good faith effort to satisfy these conditions, or should he commit any misconduct during the period of probation, his conditional right to practice may be terminated or he may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement.

CONDITIONAL ADMISSION GRANTED.


text:
    In re Robert E. CLARK.
    No. 2007-B-1221.
    Supreme Court of Louisiana.
    June 22, 2007.
   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 Robert E. Clark, Louisiana Bar Roll number 1766, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.2. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.

IT IS FURTHER ORDERED that pursuant to Supreme Court Rule XIX, § 19.2(D), respondent show cause before a hearing committee panel appointed by the disciplinary board why this court should not maintain the interim suspension. The hearing shall be conducted on an expedited basis, and within ten days of the date thereof, the hearing committee shall file its report and recommendation in this court.

/&/ Pascal F. Calogero, Jr.

Justice, Supreme Court of Louisiana