author: PER CURIAM.

text:
    STATE of Louisiana v. Aubrey BROWN.
    No. 2011-K-1044.
    Supreme Court of Louisiana.
    March 13, 2012.
    James D. Caldwell, Attorney General, Scott M. Perrilloux, District Attorney, Patricia Dale Parker, Assistant District Attorney, for Applicant.
    Mary E. Roper, Baton Rouge, LA, for Respondent.
   PER CURIAM.

LThe state charged defendant/respondent by bill of information with one count of simple burglary of a religious building, La.R.S. 14:62.6, and one count of simple burglary in violation of La.R.S. 14:62. The two crimes were apparently unrelated and the state ultimately severed the second count before bringing respondent to trial on March 16, 2010. A jury of 12 persons convicted respondent as charged of simple burglary of a religious building by a non-unanimous, 10-2 vote. The trial court sentenced respondent to 12 years imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. On appeal, the First Circuit conducted an error patent review of the record and noted respondent’s conviction stemmed from a proceeding in which a six-person jury offense had been mistakenly tried in a 12-person jury forum. Accordingly, the court of appeal pretermitted consideration of respondent’s two assignments of error, reversed his conviction and sentence, and remanded the case to the district court for further proceedings. State v. Brown, 10-2107 (La.App. 1 Cir. 5/6/11), 66 So.3d 81 (unpub’d) (Kuhn, J., dissenting). We granted the state’s writ application to consider the decision below. State v. Brown, 11-1044 (La.11/14/11), 75 So.3d 439. We now reverse the court of appeal’s judgment, after finding that respondent acquiesced in 1 ¡¡the error by actively participating in the selection of a 12-person jury without objection at any stage of the proceedings and thereby waived any relief on appeal on grounds that the panel selected was composed of a greater number of jurors than required by law.

There is no doubt that an error with respect to the size of the selected jury occurred in the present case. Because it is punished by a maximum sentence of 12 years imprisonment with or without hard labor, at least two years of which are without benefit of probation, parole, or suspension of sentence, simple burglary of a religious building is a relative felony ordinarily tried before a jury of six persons, all of whom must concur to render a verdict. La. Const, art. I, § 17 (“A case in which the punishment may be confinement at hard labor or confinement without hard labor for more than six months shall be tried before a jury of six persons, all of whom must concur to render a verdict.”); see also La.C.Cr.P. art. 782 (same). Longstanding jurisprudence of this Court had considered errors involving trials conducted in the wrong jury forum, whether the selected panel included a greater or lesser number of jurors than required by law, non-waivable jurisdictional defects which rendered any verdict returned absolutely null. See, e.g., State v. Nedds, 364 So.2d 588, 589 (La.1978)(“We have consistently held that, in cases tried by a jury composed of either more than or less than the correct number of jurors, the verdict is null.”)(collecting cases). However, under present law, trial of a six-person jury offense in a 12-person jury forum may take place if the offense is joined in a single proceeding with a 12-person jury offense, ie., with an absolute felony necessarily punishable at hard labor. La. Const, art. I, § 17(B)(“Notwithstanding any provision of law to the contrary, offenses in which punishment is necessarily confinement at hard labor may be charged in the same indictment or information with offenses in which the punishment may be confinement at hard labor; provided ... that cases so joined shall be tried by a jury composed of twelve jurors, ten of whom must concur lato render a verdict.”); La.C.Cr.P. art. 493.2 (implementing Art. I, § 17(B)). Thus, trial of a relative felony before a jury of 12 persons is no longer an absolute constitutional outlier that it once was in Louisiana. We addressed the impact of the change in the law in State v. Jones, 05-0226, p. 3 (La.2/22/06), 922 So.2d 508, 511, and held that the error in trying a six-person jury offense in a 12-person jury forum no longer constitutes a non-waivable structural defect in the proceedings but “falls within the vast category of trial errors which are subject to harmless error analysis and which warrant reversal only where the defendant is actually prejudiced.” Jones specifically cautioned that: “Our holding here today does not guarantee the same result would be reached if a lesser number of jurors had been empaneled than required by law, or if there was not unanimity of verdict.” Id., 05-0226 at 7, n. 9, 922 So.2d at 513.

In the present case, the court of appeal acknowledged the holding in Jones but also noted that in Jones, the verdict was unanimous and that this Court had therefore found the error harmless. Brown, 10-2107 at 4, 66 So.3d 81. On the other hand, respondent’s jury returned a non-unanimous verdict and a majority on the court of appeal panel therefore reasoned that the error in jury composition did not appear harmless and required reversal of defendant’s conviction and sentence. Brown, 10-2107 at 4, 66 So.3d 81 (“The absence in this case of a unanimous verdict was fatally prejudicial to the defendant’s jury trial right.”). Although he did not make the argument below, in this Court, respondent underscores the prejudicial nature of the error by pointing out that in the first panel of 14 prospective jurors called for voir dire examination, Laishima Taylor became the sixth juror selected after the state and defense exercised their peremptory and cause challenges. Polling of the jury at the end of the case indicated that Taylor was one of two jurors dissenting from the verdict of guilty as charged. Respondent argues that in a six-person jury trial, Taylor’s vote would have prevented a unanimous guilty verdict and thereby forced 14a mistrial of the case and forestalled his conviction on evidence that Judge Kuhn, dissenting from the majority decision, deemed so overwhelming that it rendered the error in jury composition harmless for that reason alone. Brown, 10-2107 at 1, 66 So.3d 81 (Kuhn, J., dissenting).

However, we need not address the question of whether the error in jury composition actually prejudiced respondent’s case. The record demonstrates that defense counsel did not object to the selection of a 12-person jury, but instead counsel actively participated in constituting the wrong jury forum. In post-verdict motions for a new trial, arrest of judgment, and judgment of acquittal, respondent attacked the sufficiency of the evidence supporting his conviction, but he did not raise the error with respect to jury composition, although La.C.Cr.P. art. 859(4) specifically provides, as one ground for arresting judgment, that “[t]he tribunal that tried the case did not conform with the requirements of Articles 779, 780 and 782 of this code.” Even in the court of appeal, respondent, who questioned the validity of a non-unanimous verdict on Sixth Amendment grounds, did not address the error in jury composition as a matter of Louisiana law. As in Jones, the court of appeal noted the error ex proprio motu in conducting an error patent review of the record.

However, because Jones made clear that the error of trying a six-person jury offense before a 12-person jury falls within the “vast numbers” of trial errors subject to harmless-error analysis, as opposed to errors interjecting a structural or jurisdictional defect in the proceedings, a necessary corollary of the decision is that the error also falls within the scope of Louisiana’s procedural default rules which generally require a defendant to timely preserve trial errors in the trial court for later appellate review. See, e.g., La.C.Cr.P. art. 841(A)(“An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.”). Grounds for arresting judgment as a matter of La.C.Cr.P. art. 859, | ^including jury composition errors under La.C.Cr.P. art. 782, may provide narrow exceptions to Louisiana’s general contemporaneous objection rule. See State v. Thomas, 427 So.2d 428, 433 (La.1982) (on reh’g)(al-though Louisiana does not have the equivalent of “plain error,” “[cjertain rights are so basic that the Code of Criminal Procedure provides that they may be raised for the first time in arrest of judgment.”); State v. Gardner, 351 So.2d 105, 107 (La.1977)(“Defendant properly raised this error [in jury composition] in his motion in arrest of judgment ... no objection was necessary at the time of the jury selection, nor was a showing of prejudice required.”). However, in the present case, respondent neither objected at the time of jury selection, nor moved in the trial court in arrest of judgment, on grounds that the composition of his jury violated the terms of La. C.Cr.P. art. 782. In the latter case, and even assuming that a defendant may participate actively in constituting the wrong jury forum and then complain after verdict about the error in the district court, a motion in arrest of judgment on those grounds “must be filed and disposed of before sentence.” La.C.Cr.P. art. 861.

Under these circumstances, Jones has modified our former rule that “an error in the size of the jury is discoverable on the face of the record and therefore we may note it ex proprio motu without formal objection or an assignment of error” as a basis for reversing a defendant’s conviction and sentence. State v. Smith, 367 So.2d 857, 858 (La.1979). That rule was based on the now discarded supposition that errors in jury composition are invariably jurisdictional or structural in nature. In the present case, to the extent that respondent failed altogether to employ the procedural vehicles provided by law for preserving the error for review, he waived any entitlement to reversal on appeal on grounds that he was tried by a jury panel which did not conform to the requirements of La. Const. art. I, § 17 and La.C.Cr.P. art. 782 because it included a greater number of jurors than required by law, although the error is patent on the face of the record. See Jones, 05-0226 at 5, 922 |6So.2d at 516 (Weimer, J., concurring) (“[The state correctly argues that] Louisiana’s established procedural default rules should govern because the rule barring trial of a six-person jury offense in a twelve-person forum no longer applies in all instances and hence has lost its jurisdictional aspect.... A defendant should not have the opportunity of gambling on a favorable verdict from the larger jury and then resorting on appeal to an error that easily could have been corrected in the trial court at the outset of jury selection.”).

Accordingly, the decision of the court of appeal is reversed and this case is remanded for consideration of the assignments of error pretermitted on original appeal.

REVERSED; CASE REMANDED

      . As in Jones, we have no occasion to consider here whether trial before a panel composed of fewer jurors than required by law, i.e., trial of a 12-person jury offense in a six-person jury forum, constitutes more than trial error and retains its jurisdictional character as a structural defect in the proceedings. We also have no occasion to consider here whether, in a postconviction claim of ineffective assistance of counsel, the failure of counsel to object to the error in jury composition, which may constitute counsel error for purposes of the two-part test of ineffective assistance claims set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), may also satisfy Strickland’s second prong, that the error prejudiced respondent, i.e., "so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686, 104 S.Ct. at 2064. Cf. Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 844, 122 L.Ed.2d 180 (1993) (the test of prejudice under Strickland “focuses on the question whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair.”).


source: Caselaw Access Project

license: Public Domain

text:
    In re Claude C. LIGHTFOOT, Jr.
    No. 2011-B-1950.
    Supreme Court of Louisiana.
    March 13, 2012.

      Charles Bennett Plattsmier, Chief Disciplinary Counsel, for Applicant.
    Claude C. Lightfoot, Jr., PC, Claude C. Lightfoot, Jr., New Orleans, LA, Dane S. Ciolino, for Respondent.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

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

UNDERLYING FACTS

The underlying facts of this matter are largely undisputed. At all times relevant to this proceeding, respondent maintained a law office in New Orleans, where his practice was almost exclusively confined to bankruptcy matters. In the summer of 2000, United States District Judge G. Thomas Porteous, Jr. contacted respondent to discuss the significant financial difficulties he and his wife, Carmella, were then experiencing. Respondent met with Judge and Mrs. Porteous and recommended they attempt a non-bankruptcy “workout” of their debt. This effort ultimately proved fruitless.

As a result, in March 2001, respondent recommended that Judge and Mrs. Porteous file for bankruptcy protection under Chapter 13 of the Bankruptcy Code. However, respondent was aware that at that time the local newspaper, The Times-Picayune, published each Sunday a list of the names of individuals who had filed for bankruptcy protection during the preceding week. This list was compiled based solely upon the information in the initial bankruptcy petition. Accordingly, to protect his clients from the public “embarrassment” of having their bankruptcy | ¡.filing published in the newspaper, respondent recommended that Judge and Mrs. Porteous allow him to purposely misspell their names on the petition. Respondent also recommended to his clients that they obtain a temporary post office box, the address of which could be used on the bankruptcy petition in place of their home address. Respondent told Judge and Mrs. Porteous that once the information regarding the inaccurate filing was reported in The Times-Picayune, he would amend their petition to provide the proper names and address to the Bankruptcy Court.

Judge and Mrs. Porteous agreed to this plan, and on March 28, 2001, respondent filed a Chapter 13 bankruptcy petition in the United States Bankruptcy Court for the Eastern District of Louisiana on behalf of his clients. The petition listed the debtors as “G.T. Ortous” and “C.A. Ortous,” and gave the debtors’ street address as a post office box in Harvey, Louisiana, rather than listing the address of the home where Judge and Mrs. Porteous resided in Metairie. The remainder of the information included in the filing was correct. Judge and Mrs. Porteous each signed the petition, attesting under penalty of perjury that “the information provided in this petition is true and correct.” Respondent also signed the petition as attorney for the debtors.

On Sunday, April 8, 2001, The Times-Picayune published the weekly list of local bankruptcy filings, including that of “C.A. and G.T. Ortous, Post Office Box 1723, Harvey.” On April 9, 2001, respondent filed an amended bankruptcy petition on behalf of his clients, listing the debtors as Gabriel T. Porteous, Jr. and Carmella A. Porteous, and correcting the street address to their residence in Metairie. Following this filing, the bankruptcy proceeded in the usual and | P,customary fashion. In July 2004, Judge and Mrs. Porteous were discharged in bankruptcy. During the three years that the Porteous case was pending, none of the creditors objected to the error in the initial petition, and none of the creditors objected to the discharge that was ultimately granted to Judge and Mrs. Porteous.

DISCIPLINARY PROCEEDINGS

In October 2008, the ODC opened an investigation into respondent’s conduct in the Porteous bankruptcy matter. In October 2010, the ODC filed one count of formal charges against respondent, alleging that by his actions as set forth above he has violated the following provisions of the Rules of Professional Conduct: Rules 1.2(d) (a lawyer shall not counsel a client to engage in conduct that the lawyer knows is criminal or fraudulent), 3.3(a)(1) (a lawyer shall not knowingly make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer), 3.3(a)(3) (a lawyer shall not offer evidence that the lawyer knows to be false), 3.3(b) (a lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging, or has engaged in fraudulent conduct related to the proceeding shall take reasonable remedial measures, including disclosure to the tribunal), 8.4(a) (violation of the Rules of Professional Conduct), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) (engaging in conduct prejudicial to the administration of justice).

Respondent answered the formal charges and admitted his violation of Rules 3.3(a)(1) and 8.4(a), but he denied he violated any other Rules of Professional Conduct. Specifically, respondent admitted that he counseled Judge and Mrs. |4Porteous to file their bankruptcy petition using fictitious names, and counseled them to secure a temporary post office box and to list that address on the petition. Respondent acknowledged that discipline is appropriate for this conduct. In mitigation, respondent denied that his actions were designed to mislead a creditor, the bankruptcy trustee, or the tribunal, or to assist his clients in any criminal or fraudulent conduct; rather, he contended he acted solely in a “misguided effort” to help Judge Porteous “avoid adverse publicity in the local press.” He also pointed out that less than two weeks later, he amended the petition to include the correct information. As no proceedings took place in the bankruptcy case during this time, respondent suggested he caused no harm to the court or to any of the creditors of Judge and Mrs. Porteous.

Formal Hearing

Following the filing of respondent’s answer, this matter was set for a hearing before the hearing committee. Respondent testified at the hearing on his own behalf and on cross-examination by the ODC. S.J. Beaulieu, Jr., the Chapter 13 Trustee in the Eastern District of Louisiana, also appeared as a witness, as did two experienced practitioners in the field of bankruptcy law.

Both parties introduced documentary evidence, including the transcripts of the testimony given by respondent and Mr. Beaulieu during the impeachment trial of Judge Porteous in the United States Senate. Respondent also introduced numerous letters from colleagues and friends attesting to his good character and reputation.

During his testimony before the committee, respondent explained that he first met Judge Porteous in the summer of 2000, when the judge contacted him to discuss the difficulty he and his wife were having in repaying a significant amount of credit card debt. Because Mrs. Porteous was “completely distraught” over the |Bidea of filing for bankruptcy, respondent agreed to attempt to negotiate a voluntary “workout” with the creditors outside of bankruptcy. However, despite respondent’s best efforts, this proposal was not successful.

By March of 2001, respondent knew that Judge and Mrs. Porteous would have no choice but to declare bankruptcy. On March 28, 2011, respondent prepared and filed a bankruptcy petition on behalf of his clients. Respondent admitted he purposely misspelled his clients’ surname on the petition, and provided a post office box address instead of their correct residential address. Respondent testified that he has never done this “ever in my whole career as a lawyer,” but that he proposed the course of action to Judge and Mrs. Porteous out of “compassion” and to “avoid the splash in the newspaper” that would come from the publication of their bankruptcy filing.

After the newspaper published the incorrect information obtained from the initial bankruptcy petition filed by Judge and Mrs. Porteous, respondent immediately sought to file an amended petition with the correct names and address. At that time, respondent telephoned the bankruptcy trustee, S.J. Beaulieu, Jr., to alert him that there was “an error” in the names on the original petition, necessitating the amendment. Respondent testified that he “chose [his] words very carefully” when speaking to Mr. Beaulieu because he “didn’t want to lie to him.” However, Mr. Beaulieu testified that respondent told him that there was a “typographical error” in the bankruptcy petition. Having found respondent to be a competent and trustworthy practitioner over many years, Mr. Beaulieu had no reason to disbelieve what he had been told, so he suggested that respondent would be able to correct the petition before the notices were sent out to the creditors by the Bankruptcy Court. Mr. Beaulieu testified that had he been truthfully advised by respondent of the intentional misstatement in the initial petition, he would have filed a motion to dismiss the Porteous bankruptcy as having been filed in bad faith.

| ^Hearing Committee Report

After reviewing the testimony and the evidence presented at the hearing, the hearing committee made factual findings consistent with the underlying facts set forth above. The committee noted that-without any prodding from Judge Porteous or his wife, respondent concocted a plan to purposely falsify the initial bankruptcy petition, have the newspaper publish the false names, and then amend the petition to properly name Judge and Mrs. Porteous and put their proper address. This plan, which respondent reasoned would protect the identities of Judge and Mrs. Porteous from the press and the public, worked flawlessly. The falsified initial petition was filed, and after The Times-Picayune published the “alias” created by respondent, he sought to amend the petition the next day to provide the proper names and address. As to the question of whether respondent lied to the bankruptcy trustee when he filed the amended petition, the committee found more credible Mr. Beau-lieu’s testimony that respondent indicated the amendment was necessary because “typos” needed to be corrected. Based upon these factual findings, the committee concluded respondent violated Rules 1.2(d), 3.3(a)(1), 3.3(a)(3), 3.3(b), and 8.4(c) of the Rules of Professional Conduct.

The committee found that respondent’s conduct did not cause harm to his clients or to the bankruptcy proceeding, but nevertheless, found respondent caused significant harm to the reputation and sanctity of the legal profession. The committee therefore determined that the applicable baseline sanction in this matter is suspension. In mitigation, the committee found the following factors present: absence of a prior disciplinary record and full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings. The committee made no findings regarding aggravating factors.

^Considering the mitigating factors present in this matter, the committee recommended respondent be suspended from the practice of law for six months, with all but thirty days deferred.

The ODC filed an objection to the hearing committee’s report, arguing the sanction recommended by the committee is too lenient.

Disciplinary Board Recommendation

After review, the disciplinary board determined the hearing committee’s factual findings are supported by the record and are not manifestly erroneous. Accordingly, the board adopted the factual findings contained in the committee’s report. Based on these facts, the board agreed with the committee that respondent violated Rules 1.2(d), 3.3(a)(1), 3.3(a)(3), 3.3(b), and 8.4(c) of the Rules of Professional Conduct. The board also determined that respondent’s conduct was prejudicial to the administration of justice, in violation of Rule 8.4(d), and that he violated the Rules of Professional Conduct, thereby violating Rule 8.4(a).

The board determined that respondent knowingly violated duties owed to his clients, the public, the legal system, and the profession. Respondent counseled his clients to provide false and deceptive information on their bankruptcy petition regarding their names and address. This petition was executed under penalty of perjury, but nonetheless, respondent filed the petition with the Bankruptcy Court, knowing the information was false. He thereafter continued the deception by providing inaccurate and incorrect information to the bankruptcy trustee regarding the necessity of amending the petition. While this conduct did not monetarily harm respondent’s clients or their bankruptcy ease, there was actual harm to the legal system and the profession, the integrity of which is called into question whenever a lawyer is the source of misconduct. Additionally, because the bankruptcy case was an issue in the impeachment proceedings of Judge Porteous, | ^respondent was required to testify before the United States Senate. These proceedings were publicly broadcast and closely followed, casting a negative light on Louisiana’s legal profession. The board determined that under these circumstances, the applicable baseline sanction in this matter is suspension.

The board found the following mitigating factors present: absence of a prior disciplinary record, personal problems, full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, character or reputation, and remorse. In aggravation, the board acknowledged that respondent has substantial experience in the practice of law (admitted 1987). The board rejected the ODC’s argument that respondent also possessed a dishonest and selfish motive, reasoning that respondent’s “misguided effort to help his clients was motivated by compassion for his clients,” who were distraught over the prospect of having to file for bankruptcy. The board likewise rejected the ODC’s argument for the aggravating factor of a pattern of misconduct, as respondent’s conduct was but “a single blemish on an otherwise reputable and meaningful 24 year law career.”

Based upon the overwhelming mitigating factors present in this ease, and because respondent’s misconduct “was not motivated by financial gain, or the desire to gain an advantage in litigation, or any ulterior motive other than his desire to protect his client from humiliating circumstances,” the board recommended respondent be suspended from the practice of law for six months, with all but thirty days deferred.

l9The ODC filed an objection to the disciplinary board’s report and recommendation. Accordingly, the case was docketed for oral argument pursuant to Supreme Court Rule XIX, § 11(G)(1)(b).

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks, 09-1212 (La.10/2/09), 18 So.3d 57. 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.

There is no dispute in this matter that respondent deliberately filed a false bankruptcy pleading. He admits that he counseled his clients to use fictitious names on their bankruptcy petition and counseled them to secure a temporary post office box and to list that address on the petition. As found by the disciplinary board, respondent’s conduct violated Rules 1.2(d), 8.3(a)(1), 3.3(a)(8), 3.3(b), 8.4(a), 8.4(c), and 8.4(d) of the Rules of Professional Conduct.

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

Respondent knowingly violated duties owed to his clients, the public, the legal system, and the profession. His conduct caused potential injury to his clients and actual harm to the legal system and the profession. The applicable baseline sanction is suspension.

In aggravation, respondent possesses substantial experience in the practice of law. In mitigation, the following factors are present: absence of a prior disciplinary record, full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, character or reputation, imposition of other penalties or sanctions, and remorse.

Under these circumstances, we find the appropriate sanction for respondent’s misconduct is a six-month suspension from the practice of law, with all but thirty days deferred.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, briefs, and oral argument, it is ordered that Claude C. Lightfoot, Jr., Louisiana Bar Roll number 17989, be and he hereby is suspended from the practice of law for six months, with all but thirty days deferred. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . For lying on his bankruptcy petition as well as other serious misconduct, Judge Porteous was impeached, removed from his office as a federal judge, and forever disqualified "to hold and enjoy any Office of honor, Trust, or Profit under the United States.” He subsequently resigned from the practice of law in lieu of discipline in In re: Porteous, 11-0078 (La.1/12/11), 52 So.3d 874.

      . Respondent was not charged with any crime in connection with the Porteous bankruptcy proceeding. His conduct came to the ODC's attention as a result of the federal investigation into the conduct of Judge Porteous

      . In determining a baseline sanction, the board agreed with the hearing committee that respondent’s conduct falls most closely within Standard 6.12 of the ABA’s Standards for Imposing Lawyer Sanctions, which provides for a baseline sanction of suspension when "a lawyer knows that false statements or documents are being submitted to the court or that material information is improperly being withheld, and takes no remedial action, and causes injury or potential injury to a party to the legal proceeding, or causes an adverse or potentially adverse effect on the legal proceeding."

      . Respondent testified that he suffered a heart attack in 2003 and that his first wife died of cancer in 2008. However, we note that at the hearing, respondent acknowledged it was not his intent to suggest these unfortunate occurrences caused his misconduct in 2001.

      . At oral argument, the ODC advised this court that respondent has been suspended in federal court for the conduct forming the basis of the instant matter.


text:
    In re John CUCCI, Jr.
    No. 2011-B-2202.
    Supreme Court of Louisiana.
    March 13, 2012.

      Charles Bennett Plattsmier, Baton Rouge, LA, Robert Samuel Kennedy, Jr., for Applicant.
    John Cucci, Jr., Shreveport, LA, for Respondent.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

11 This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, John Cucci, Jr., an attorney licensed to practice law in Louisiana, but currently ineligible to practice.

UNDERLYING FACTS

Count I

In 2004, Jason Wenk hired respondent to represent him in four separate criminal cases. Respondent charged Mr. Wenk $10,000 for pre-trial preparation and motions and an additional $2,500 for each case when it went to trial. The retainer agreement also established that the services of any experts would require additional fees. Between September 2004 and January 19, 2007, Mr. Wenk’s mother paid respondent a total of $20,075 in fees and expenses for the four cases. However, only one case went to trial before Mr. Wenk terminated respondent’s services on January 30, 2007. At that time, Mr. Wenk requested that respondent provide him with an accounting and a refund. When respondent did not comply with this request, Mr. Wenk filed a complaint with the ODC in February 2007, alleging respondent failed to refund the unearned portion of the fees and again | ¡.requesting an accounting. In response to the complaint, respondent asserted he earned the entire fee. However, he did not provide an accounting. Accordingly, the ODC directed respondent to appear for a sworn statement on December 12, 2007 and to produce the accounting and other financial documents. Respondent appeared for the sworn statement on that date but did not produce the accounting and documents. Furthermore, during his sworn statement, respondent falsely stated that he had returned Mr. Wenk’s file to his mother.

In February 2010, respondent and Mr. Wenk participated in the Louisiana State Bar Association’s (“LSBA”) Fee Dispute Resolution Program, following which the arbitrator determined that respondent owed Mr. Wenk a refund in the amount of $4,910.11, plus legal interest from the date of the award until paid. As of December 2010, respondent had refunded $4,000 to Mr. Wenk.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.5(f)(5) (failure to refund an unearned fee), 1.15 (safekeeping property of clients or third persons), 8.1(c) (failure to cooperate with the ODC in its investigation), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation).

Count II

In 2005, respondent represented Jeffery Winn in a criminal case. Mr. Winn and respondent agreed to a $30,000 fixed fee for the representation, which sum Mr. Winn authorized respondent to deduct from a $36,000 insurance settlement he had collected. However, respondent did not disburse the remaining $6,000 to Mr. Winn, nor did he account for the funds.

Thereafter, the criminal case proceeded to a jury trial, and Mr. Winn was convicted of second degree murder. The court of appeal affirmed the conviction. State v. Winn, 43,114 (La.App. 2nd Cir.3/19/08), 978 So.2d 1239. Respondent |sthen filed a writ application with this court, which was denied as untimely. State v. Winn, 08-0858 (La.6/26/09), 11 So.3d 495.

Respondent also collected $8,041 for Mr. Winn from a forfeiture proceeding which he had agreed to handle on a contingent fee basis. However, Mr. Winn never received any of the proceeds, and respondent never provided him with an accounting of the funds. Respondent also failed to provide the ODC with an accounting, despite requests to do so.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.5 (fee arrangements) and 1.15.

Count III

This count relates to a criminal charge against respondent and alleges he failed to cooperate with the ODC by giving false and misleading testimony in a sworn statement concerning the status of the criminal charge. The hearing committee concluded that the ODC did not prove the alleged misconduct by clear and convincing evidence, and the disciplinary board agreed with this finding. The ODC’s brief in this court does not object to this portion of the board’s recommendation, and accordingly, Count III is not discussed herein.

Count TV

In January 2007, Patricia Hunter Crow paid respondent $756 to visit her son, Tony Hunter, in jail and determine if he could handle Mr. Hunter’s post-conviction relief application. Thereafter, respondent failed to visit Mr. Hunter in jail, failed to communicate with Ms. Crow, and failed to refund the fee.

The ODC alleged respondent’s conduct 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), and 1.5(f)(5).

Count V

Doris and Roosevelt Whitty hired respondent in November 2005 to represent their son, John Floyd, in connection with a post-conviction relief claim, paying him $3,500. On March 21, 2006, respondent filed an untimely application for post-conviction relief, alleging the same grounds for relief that Mr. Floyd had alleged in a previous pro se filing that was denied on August 15, 2005. The trial court denied the application without a hearing on March 23, 2006.

Thereafter, respondent and the Whittys participated in the LSBA’s Fee Dispute Resolution Program. On April 24, 2007, the arbitrator ordered respondent to refund the entire fee paid by the Whittys, plus $100 to compensate them for having to appear at the arbitration. Respondent only paid $700 toward the award before he ceased making payments. He also refused to respond to the Whittys’ inquiries concerning the matter.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.4, 1.5, 1.5(f)(5), 3.1 (meritorious claims and contentions), and 8.4(c).

Count VI

Respondent was appointed to represent Charles Gillespie in a criminal matter pending in the United States Court of Appeals for the Fifth Circuit. Respondent failed to review the complete trial record and did not file a brief pursuant to a court order. He also failed to respond to a show cause order from the clerk’s office and did not respond to voicemail messages left by the clerk’s office. Accordingly, on April 2, 2008, the chief judge of the Fifth Circuit removed ^respondent as Mr. Gillespie’s counsel and ordered that any funds payable to him be forfeited. The chief judge also ordered respondent to show cause within fifteen days why he should not be disciplined. Respondent did not respond to the show cause order, and on June 3, 2008, he was suspended from practicing law in the Fifth Circuit for one year.

The ODC forwarded notice of the related disciplinary complaint to respondent at his last known address. However, the notice was returned marked “unclaimed unable to forward.”

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 3.4(c) (knowing disobedience of an obligation under the rules of the tribunal), 8.1(c), and 8.4(d) (engaging in conduct prejudicial to the administration of justice).

Counts VII and VIII

In 2008, two of respondent’s clients filed disciplinary complaints against him. The ODC sent respondent notice of the complaints via certified mail. However, the notices were returned unclaimed.

The ODC alleged respondent’s conduct in both counts violated Rule 8.1(c) of the Rules of Professional Conduct.

Count IX

By way of background, in April 2004, Anthony Boult filed a pro se application for post-conviction relief. Based on one of the claims in the | r,application, an evidentiary hearing was set on the issue of whether the prosecution had failed to disclosure allegedly exculpatory evidence (Brady material).

In December 2004, Adrian Lee, Mr. Boult’s half-brother, hired respondent to represent Mr. Boult at the evidentiary hearing. Respondent charged, and Mr. Lee paid, a fee of $2,500 for the representation. However, before respondent could file pleadings or present any evidence at the hearing, the prosecution submitted an affidavit from Mr. Boult’s trial counsel stating that he had been provided a copy of the alleged Brady material prior to trial. Accordingly, the trial court rejected the Brady claim, and the evidentiary hearing was canceled.

Thereafter, respondent and Mr. Lee agreed respondent would apply the $2,500 to the filing of an application for post-conviction relief based on a claim of newly-discovered evidence, which claim had already been raised and denied in Mr. Boult’s 2004 pro se application for post-conviction relief. Respondent also requested and was paid an additional $1,500 to investigate and develop newly-discovered eyewitness evidence to be included in the application. However, he failed to inform Mr. Lee or Mr. Boult that an application based on previously-asserted claims would almost certainly be rejected as repetitive.

In December 2005, respondent filed the agreed-upon application for post-conviction relief. In March 2006, the trial judge dismissed the application as repetitive and untimely, observing that the newly-discovered evidence claim had been raised in the earlier application and rejected.

Respondent then agreed to file a writ of review on Mr. Boult’s behalf with the Court of Appeal, Second Circuit, and in April 2006, he was paid $1,000 for this service. Respondent falsely told Mr. Boult that there was no time limit to file the writ despite the fact that the trial judge had fixed a deadline of July 26, 2006. Concerned that respondent would not file the writ timely, on June 1, 2006, Mr. Boult sent respondent a letter terminating his services and requesting a refund of 17the $1,000 fee. He also requested a refund of the first $2,500 fee for the evidentiary hearing that never took place. After receiving no response from respondent, Mr. Boult resent the letter two more times before the end of June 2006. Mr. Lee sent a similar letter to respondent on June 8, 2006. Respondent did not respond to these requests and did not refund any portion of the fees he was paid.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.4, 1.5(f)(5), 3.1, and 8.4(c).

DISCIPLINARY PROCEEDINGS

In March 2009, the ODC filed formal charges against respondent. In March 2010, the ODC amended the formal charges. Thereafter, respondent answered the formal charges. While not expressly admitting any misconduct, respondent did offer an apology to the complainants and the disciplinary board. He also asserted that his personal problems during his divorce were a factor in mitigation.

Hearing Committee Report

This matter proceeded to a formal hearing on the merits. After considering the testimony and evidence presented at the hearing, the hearing committee made the following general factual findings:

1. Respondent was playing fast and loose with the funds he received. His accounting to the ODC of expenditures of client funds was unacceptable. His lack of cooperation with arbitrators and the ODC, as well as his testimony at the hearing, indicated a general disregard for the intent and spirit of the guidelines imposed upon an attorney regarding client funds. Respondent blamed his problems on external factors, including his divorce, his secretaries, and the judiciary. He admitted that he is a bad businessman and that the “escrow thing” is a “new animal” for him.

|r2. Respondent was a sole practitioner and primarily responsible for the trust account. He failed to deposit client funds into the trust account and/or made improper transfers from the trust account.

3. Respondent had written agreements with clients that were unclear, confusing, and misleading to the clients. If the clients are to be believed, respondent made promises that were far beyond reasonable for an experienced practicing attorney.

4. Respondent engaged in the practice of criminal law and had repeated encounters with clients and their relatives whose consistent statements were that respondent claimed he could deliver positive results that were, in truth, beyond reasonable expectations. These same clients and relatives paid fees that may border on unreasonable and for which there were not proper accountings. The funds also have not been repaid pursuant to arbitration.

Additionally, the committee made the following factual findings specific to each count of the formal charges:

Count I — Mr. Wenk’s mother signed a fee agreement prepared by respondent and paid him $20,075. Apparently, the funds were placed directly in respondent’s operating account, and there was no accounting as to the funds that were supposed to be placed in respondent’s trust account for medical experts and expenses. Respondent took the position that he was entitled to a $2,500 fee for each of the cases that were set for trial, whether or not the cases actually went to trial, and four separate cases against Mr. Wenk were set for the same day. Respondent acknowledged his poor accounting practices but claimed his conduct was not unethical.

Based on these facts, the committee determined respondent violated Rules 1.15(a)(b) & (c) and 1.5(f)(3)(4) & (5) of the Rules of Professional Conduct in that he failed to deposit client funds into a trust account, failed to properly account for 19client funds, failed to refund unearned fees following termination prior to completion of cases, and failed to refund fees as found by neutral arbitrators.

Count II — Mr. Winn hired respondent to represent him in three separate matters. The first was a forfeiture matter in which respondent recovered $8,041 for Mr. Winn. Respondent kept one-third as a contingency fee but retained the remaining funds, claiming they were used to pay his fees and expenses in Mr. Winn’s criminal matter. Respondent was paid a $30,000 fee for the criminal matter. He obtained the $30,000 from the settlement of an insurance claim he handled for Mr. Winn. Respondent claimed some of the funds were used to pay a non-licensed private investigator, LaBruce Snow. Respondent testified that Mr. Snow was his employee and was paid $75 per hour. Mr. Snow testified that he was paid $12 per hour. There was no accurate accounting of the expenditures and funds due to Mr. Winn. Additionally, an untimely writ was filed with the Louisiana Supreme Court.

Based on these facts, the committee determined respondent collected an unreasonable fee for the filing of a writ deemed untimely and useless to the client, in violation of Rule 1.5(a). Respondent also failed to deposit client funds into a trust account, failed to remit funds to a client, and failed to provide an accounting of funds in violation of Rule 1.5(f).

Count IV — Ms. Crow testified that she paid respondent $756 to visit her son in jail. She complained that, after paying the funds, she repeatedly tried to contact respondent without success. She also claimed that respondent never visited her son. Respondent’s response was that the $756 was a partial payment of a $1,000 fee to visit Mr. Hunter in jail. Respondent claimed that, after receiving the $756, he spoke with Mr. Hunter on at least two occasions and began preliminary research on his case. Respondent asserted that Mr. Hunter decided the $756 would be better spent on a full review of his file in lieu of having respondent visit him at jail. | ^Respondent reviewed the file and told Mr. Hunter and Ms. Crow that the fee for filing an appeal or petition for post-conviction relief would start at $2,500. According to respondent, Mr. Hunter and Ms. Crow made no further payments.

Based on these facts, the committee determined respondent failed to properly communicate with his client, in violation of Rule 1.4. Additionally, respondent failed to account for funds paid in advance, in violation of Rule 1.5(f)(4).

Count V — Mr. Floyd asked his parents to contact respondent for assistance with an application for post-conviction relief. Mr. Floyd had previously filed such an application pro se, which was denied, and stated that he was aware of the prohibition regarding repetitive applications. Mr. Floyd testified that he only met respondent for a few minutes at the jail and was told, “I am going to get you out.” Notwithstanding the previous denial of Mr. Floyd’s pro se application for post-conviction relief, respondent informed Mr. Floyd’s parents that he could be of assistance. While respondent claimed he made no guarantees, the Whittys both testified that respondent told them at the initial consultation that, for a $3,500 fee, he could “get [Mr. Floyd] out” and specifically used the term “guarantee.” Mr. Whitty testified that respondent told them nothing about the possibility of losing and that he would not have paid the fee if respondent had informed him that failure was possible. According to the Whittys, following the denial of respondent’s application for post-conviction relief, respondent told them he would handle an appeal for $4,000. They refused. Respondent and his investigator, LaBruce Snow, both testified that they never gave guarantees, and Mr. Snow testified that it was not unusual for clients to be very irritated and blame respondent when his legal efforts were unsuccessful. The Whittys pursued arbitration regarding the fee dispute with respondent, and the arbitrator awarded them a return of all their funds ($3,500) plus the cost of appearing at the arbitration ($100). Between February |1;2008 and February 2011, respondent repaid a total of $700, leaving a $2,900 balance.

Based on these facts, the committee determined respondent charged an unreasonable fee, failed to account for funds, failed to cooperate in dispute resolution, and failed to refund fees as ordered, in violation of Rule 1.5(a).

Count VI — On April 2, 2008, the United States Court of Appeals for the Fifth Circuit issued an order removing respondent for cause as counsel for Charles Gillespie. The order also required that any funds payable to respondent be forfeited. The court then ordered respondent to show cause within fifteen days why he should not be disciplined. A subsequent order, issued June 8, 2008, indicated that respondent had not responded, and the court suspended respondent from practicing before the court for one year. As a result of the order, the ODC issued a letter to respondent and learned that he had relocated to New York but had failed to update his address. Respondent testified that he never got the briefing notice from the Fifth Circuit, blaming his secretary and her drug problem. Respondent testified that he was not paid to represent Mr. Gillespie and that his client was not harmed. He also stated that there was a problem with his New York address that was not his fault.

The committee found that respondent did not act diligently in this matter, but that he did not knowingly and intentionally fail to comply with a court order. Based on these facts, the committee determined the ODC did not meet its burden of proof in this count.

Counts VII and VIII — The ODC alleged respondent failed to cooperate by failing to respond to two complaints and failing to claim the certified mail notifications of the complaints at his primary and secondary addresses. Respondent admitted he left Louisiana in 2008 and failed to notify the LSBA of his | ^correct address. Based on these facts, the committee determined respondent failed to cooperate with the ODC in its investigation, in violation of Rule 8.1(c).

Count IX — In April 2004, Mr. Boult filed a pro se application for post-conviction relief, which eventually resulted in the trial court scheduling a hearing to consider whether the district attorney’s office had withheld exculpatory evidence. However, after Mr. Boult’s trial counsel signed an affidavit stating that he had been in possession of the evidence at issue, the application for post-conviction relief was denied in January 2005.

Between December 1, 2004 and April 28, 2006, respondent received a total of $4,050 to represent Mr. Boult. Respondent filed another application for post-conviction relief on December 5, 2005. Respondent denied that this application was repetitive and testified that the application had a factual basis. According to respondent, it was his intent to show that witnesses who had testified against Mr. Boult at his murder trial had been in fear of their lives from the actual shooter (who was now dead) and were prepared to testify that Mr. Boult was not the shooter. Respondent claimed that, while there were no new witnesses, the new evidence was that the testimony of the witnesses had changed. Nevertheless, the application for post-conviction relief was denied as repetitive on March 31, 2006.

Thereafter, Mr. Boult filed a pro se writ application to the Second Circuit Court of Appeal, which application was denied. Mr. Boult and Mr. Lee then terminated respondent’s services in writing on May 28, 2006, June 1, 2006, June 6, 2006, and June 22, 2006. Both expressed dissatisfaction with his services. Mr. Lee sought a refund of $3,500. Respondent claimed he was entitled to the funds he received, plus an additional fee of $1,400.

113Based on these facts, the committee found that in filing the application for post-conviction relief on behalf of Mr. Boult, respondent made a creative, if novel, argument on behalf of his client. Therefore, he did not violate Rule 3.1. However, respondent did engage in conduct involving dishonesty, fraud, deceit, and misrepresentation with respect to his fee and the client’s funds, in violation of Rule 8.4(c).

Based on the above findings, the committee determined respondent violated duties owed to his clients, the public, the legal system, and the legal profession. In some instances, respondent acted intentionally. In other instances, he acted knowingly and, very often, with great negligence. The committee found as a fact that respondent cannot be trusted in a fiduciary capacity. Respondent’s repeated acts of conversion of funds, his failure to acknowledge responsibility for past actions, and his failure to make concerted efforts to repay losses caused and continue to cause substantial harm to his clients. Without identifying specific aggravating and mitigating factors, the committee stated that the aggravating factors far outweigh any mitigating factors.

Under these circumstances, the committee recommended respondent be suspended from the practice of law for five years. The committee further recommended respondent be required to complete the LSBA’s Trust Accounting School prior to returning to the practice of law and that he be supervised by a practice monitor. Finally, the committee recommended that respondent provide a full accounting to each of the complainants and that he refund all fees, as determined by an arbitrator.

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

_jj^Disciplinary Board Recommendation

After review, the disciplinary board determined that the hearing committee’s factual findings are not manifestly erroneous. The board also determined that the record supports a finding that respondent violated the Rules of Professional Conduct as follows:

Count I — Respondent violated Rules 1.5(f)(5), 1.15, and 8.1(c). To date, he has only paid $4,000 towards the arbitrator’s award. He failed to deposit a $2,500 expense payment from his client into a trust account as required. He admitted he was sloppy with some of his bookkeeping and could not explain why he was unable to provide a written accounting for the funds paid by Mr. Wenk’s mother. He also failed to provide the ODC with canceled checks and other financial documents that he was required to maintain, forcing the ODC to subpoena his trust account records to determine how the client’s funds were handled.

Count II — Respondent violated Rules 1.5 and 1.15. He collected excessive fees for the services provided to Mr. Winn. He was paid for filing a writ to the Louisiana Supreme Court, but the writ was denied as untimely. In October 2005, he was given a $86,000 insurance settlement check on Mr. Winn’s behalf, and $80,000 of the check was designated as an agreed-upon fee. However, respondent retained and was unable to account for the remaining $6,000.

Count IV — Respondent violated Rules 1.4 and 1.5(f)(4). He was paid a partial payment of $756 to visit Mr. Hunter in jail. Respondent did not visit Mr. Hunter in jail, nor did he communicate to Mr. Hunter his reasons for failing to visit the jail. Ms. Crow testified that she made repeated unsuccessful attempts to communicate with respondent. Ms. Crow also testified that respondent failed to provide an accounting of the work he performed on Mr. Hunter’s behalf.

Count V — Respondent violated Rules 1.5(a), 1.5(f)(5), and 8.4(c). The arbitrator ordered respondent to refund the full $3,500 fee paid by the Whittys, plus 11S$100 to compensate the Whittys for having to travel to the arbitration, noting that “[njothing in the work done by Mr. Cucci appeared to be more than the re-filing of the original objection to the trial judge’s first ruling.” To date, respondent has only paid the Whittys $700.

Count VI — Respondent failed to keep his address current with the LSBA, in violation of Rule 8.1(c). The board agreed with the committee that the ODC did not meet its burden of proof with respect to Rules 3.4(c) and 8.4(d).

Counts VII and VIII — Respondent violated Rule 8.1(c) in each matter by failing to keep his address current with the LSBA and, in turn, failing to respond to complaints and to claim certified mail sent to his primary and secondary addresses.

Count IX — The ODC failed to prove by clear and convincing evidence that respondent was not in good faith when he filed an application for post-conviction relief based on eyewitness testimony he believed was new. An exhibit attached to respondent’s application for post-conviction relief contained interviews of eyewitnesses, one of whom was a newly-identified witness to the underlying crime. Therefore, respondent did not violate Rule 3.1. However, respondent did engage in dishonest conduct with respect to the fee arrangement and the accounting of the client’s funds. Accordingly, respondent violated Rule 8.4(c).

The board determined respondent violated duties owed to his clients and the legal profession. At a minimum, he acted knowingly, and he harmed multiple clients by failing to account for funds, failing to properly maintain his client trust account, and failing to refund unearned fees. Respondent’s failure to update his registration address with the LSBA caused him to appear unresponsive to the ODC during these proceedings. After considering the ABA’s Standards for Imposing Lawyer Sanctions, the board determined the baseline sanction is suspension.

In aggravation, the board found multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or 11f,orders of the disciplinary agency, vulnerability of the victims, and substantial experience in the practice of law (admitted 1997). In mitigation, the board found the following factors: absence of a prior disciplinary record, personal or emotional problems, and remorse.

In addressing the issue of an appropriate sanction, the board noted that respondent has no prior disciplinary history, is a zealous criminal defense attorney, and struggled through a difficult divorce during the period of misconduct. Considering the record as a whole, the ABA Standards, and case law involving similar misconduct, the board recommended respondent be suspended from the practice of law for three years, with six months deferred. The board further recommended respondent be ordered to provide a full accounting to each of the complainants and that he refund all unearned fees, as determined by an arbitrator.

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

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks, 09-1212 (La.10/2/09), 18 So.3d 57. 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.

|i7In this matter, respondent is charged with multiple counts of misconduct. The record supports a finding that respondent made dishonest or misleading statements to his clients by guaranteeing a particular outcome in their cases. Respondent also failed to disburse client funds, failed to refund unearned fees and charged excessive fees, and failed to provide his clients with requested accountings. Finally, he failed to cooperate with the ODC in several investigations. Accordingly, respondent has violated the Rules of Professional Conduct as found by the disciplinary board. In addition, in Count IX, we find respondent violated Rule 1.5(f)(5) by failing to refund the $1,000 fee he was paid to file a writ application with the court of appeal on behalf of Mr. Boult, as the record reflects respondent did not file the writ application.

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

We find respondent acted knowingly, if not intentionally. He violated duties owed to his clients, the legal system, and the legal profession, causing actual and potential harm. The baseline sanction for this type of misconduct is suspension.

Aggravating factors are a pattern of misconduct, multiple offenses, vulnerability of the victims, and substantial experience in the practice of law. Mitigating factors are the absence of a prior disciplinary record, personal or emotional problems, and remorse.

| ^Considering the record of this matter in light of the aggravating and mitigating factors present, we find the appropriate sanction for respondent’s misconduct is a three-year suspension from the practice of law. We will also order respondent to provide an accounting to each of his clients, and make full restitution to the clients, as appropriate.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, briefs, and oral argument, it is ordered that John Cucci, Jr., Louisiana Bar Roll number 25016, be and he hereby is suspended from the practice of law for three years. It is further ordered that respondent provide an accounting to each of his clients subject of the formal charges, and make full restitution, 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.

      . Respondent is ineligible to practice law in Louisiana due to his failure to pay bar dues, pay the disciplinary assessment, and comply with mandatory continuing legal education requirements. He is also admitted to the bar of Texas and of New York, where he presently resides.

      . During the formal hearing, the ODC dismissed the substantive allegations of Counts VII and VIII based on the complainants’ failure to cooperate in the disciplinary process. As such, this opinion only addresses the allegation that respondent failed to cooperate with the ODC in its investigation.

      . The receipts in the record indicate that respondent actually received $5,050 in the Boult matter: $50 for a consultation on December 1, 2004; $2,500 on December 9, 2004; $1,500 on November 21, 2005; and $1,000 on April 28, 2006.

      . This court’s rules do not permit a suspension in excess of three years. Supreme Court Rule XIX, § 10(A)(2).


text:
    In re Kevin L. HANCHEY.
    No. 2012-B-0696.
    Supreme Court of Louisiana.
    April 4, 2012.
   ORDER

| T Considering the Joint Petition for Interim Suspension filed by respondent, Kevin L. Hanchey, and the Office of Disciplinary Counsel,

IT IS ORDERED that Kevin L. Han-chey, Louisiana Bar Roll number 26320, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.3, pending further orders of this court. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.

FOR THE COURT:

/s/ Greg G. Guidry /s/ Justice, Supreme Court of Louisiana


author: PER CURIAM. WEIMER, J.,

text:
    Geraldine OUBRE and Linda Gentry on their behalf, as well as others similarly situated v. LOUISIANA CITIZENS FAIR PLAN.
    No. 2012-OC-0642.
    Supreme Court of Louisiana.
    April 9, 2012.
   PER CURIAM.

|TOn December 16, 2011, this court rendered judgment reversing the judgment of the court of appeal, and reinstating the March 26, 2009 judgment of the district court against the Louisiana Citizens Property Insurance Company (“LCPIC”), for penalties and attorney fees under La. R.S. 22:658(A)(3) and La. R.S. 22:1220. Oubre v. Louisiana Citizens Fair Plan, 11-0097 (La.12/16/11), 79 So.3d 987. We denied rehearing on January 20, 2012. After rehearing was denied, LCPIC petitioned this court for a stay of execution of judgment, pending its application to the United States Supreme Court. In its application. LCPIC asserted that plaintiffs agreed not to seek execution of the judgment pending appellate review, in exchange for a $6 million non-refundable payment. On January 27, 2012, this court denied the motion, stating: “Motion to Stay Execution is denied.” The United States Supreme Court similarly denied LCPIC’s motion to stay on January 31, 2012.

Thereafter, LCPIC filed a motion in the trial court seeking to enforce an August 24, 2009 Stipulation and Forbearance Agreement (“the Stipulation”), entered into by plaintiffs and LCPIC. According to LCPIC, this Stipulation precluded plaintiffs from seeking to enforce the judgment, pending resolution of all appellate review in the case, including LCPIC’s application for writ of certiorari to the United States Supreme Court. The district court denied the motion, but the court of appeal | ¿reversed. Plaintiffs now seek review of the court of appeal’s judgment.

The clear language of this stipulation provides plaintiffs will not attempt to execute “until such time as any such money judgment against La. Citizens becomes final after completion of an appeal” [emphasis added]. As discussed above, this court rendered its judgment on December 16, 2011, and denied rehearing on January 20, 2012. La.Code Civ. P. art. 2167 provides: “[w]hen an application for rehearing has been applied for timely, a judgment of the supreme court becomes final and definitive when the application is denied” [emphasis added]. La.Code Civ. P. art. 2167 further provides: “[t]he supreme court may stay the execution of the judgment pending a timely application for cer-tiorari or an appeal to the United States Supreme Court.” On January 27, 2012, we denied LCPIC’s request for stay of the execution of the judgment against it, and on January 31, 2012, the United States Supreme Court denied LCPIC’s motion to stay. Therefore, the judgment became final no later than January 31, 2012, when the United States Supreme Court refused to stay the effect of this court’s judgment. By operation of the Stipulation, plaintiffs could execute on the final judgment any time after that date.

Accordingly, the writ is granted. The judgment of the court of appeal is reversed, and the judgment of the district court denying LCPIC’s motion to enforce is reinstated.

WEIMER and GUIDRY, JJ., would deny.

WEIMER, J.,

dissenting.

_jjl would deny the writ application.

      . We further take issue with the court of appeal's statement that the "petition filed by Citizens in the United States Supreme Court is considered as part of the process of appellate review of the state court's judgment....” 28 U.S.C. § 1257 expressly provides a decision by the United States Supreme Court from a state supreme court is reviewable through a discretionary writ of certiorari.


text:
    In re Kimuel Wayne LEE.
    No. 2011-B-2530.
    Supreme Court of Louisiana.
    April 13, 2012.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

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

UNDERLYING FACTS

Count I — The Ridley Succession Matter

By way of background, Theron Ridley, a resident of Minden, Louisiana, passed away on October 31, 1999. In his will, Mr. Ridley named his step-daughter Marsha Laws and his niece Brenda Ridley as the co-executrixes. In total, there were six heirs, including Ms. Laws and Ms. Ridley. Ms. Laws and Ms. Ridley were both residents of California where respondent is also licensed to practice law.

In early 2000, Ms. Laws hired respondent to handle Mr. Ridley’s succession. Despite his lack of competency in succession law, respondent accepted the representation. In a February 12, 2000 letter addressed to Ms. Laws, respondent stated that he would charge $300 per hour not to exceed 15% of the total value of the estate’s assets. Neither Ms. Laws nor Ms. Ridley ever received this letter or agreed to this fee arrangement.

l2When the estate’s assets and liabilities were distributed, respondent claimed to have worked 171.4 hours on the succession, which at $300 per hour amounted to $51,420. In an itemization of the hours worked, respondent itemized only 73.4 hours, noting that the 171.4 hours was the total of the 73.4 itemized hours plus estimated time and charges not included in the itemization. The itemization also indicated that 28.8 hours were spent researching succession law and 9.2 hours were spent compiling the itemization. The court record of the Ridley succession also showed numerous mistakes in the pleadings respondent filed, causing delays in the sale of Mr. Ridley’s house.

The estate’s assets totaled $89,547.46. On the distribution list, respondent indicated that his fee was $13,819.68, which was approximately 15% of the total assets. However, respondent only collected $6,909.84 in fees, noting that he had provided the estate with a “gratuitous refund of 50%” of his fee.

As part of the distribution of the estate’s assets and liabilities, on December 5, 2000, respondent issued a check payable to LSU Shreveport Hospital in the amount of $16,168.60. Thereafter, a collection agency contacted respondent, claiming the hospital had not received the payment. Respondent then negotiated a reduction of the bill to $15,000, which he paid by check dated January 22, 2001, keeping the $1,168.60 reduction for himself. When Ms. Laws and Ms. Ridley learned of the reduction, respondent agreed to refund $768.60 but kept $400 for himself. To that end, on May 20, 2001, respondent issued checks to the Ridley heirs totaling $768.60. One year later, and after Ms. Laws filed a disciplinary complaint against him, respondent refunded the remaining $400 to the heirs on May 24, 2002. In addition to the dispute over the $1,168.60, the complaint alleged the $6,909.84 fee respondent charged was excessive considering his lack of experience in succession law.

|sThe ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.1(a) (failure to provide competent representation to a client), 1.5(a) (charging an unreasonable fee), 1.15(b) (failure to timely remit funds to clients or third persons), and 8.4(a) (violation of the Rules of Professional Conduct).

Count II — The Used Car Bid Card Matter

By way of background, respondent’s wife, Janet Lee, is the owner of Foreign Car Sales, LLC, which is authorized to buy and sell used cars. The Louisiana Recreational and Used Motor Vehicle Commission (“Commission”) issued Ms. Lee a bid card that allowed her to purchase used cars at auction. Ms. Lee’s bid card was registered with Insurance Auto Auction (“IAA”), allowing her to bid on cars auctioned by IAA. No one other than Ms. Lee was authorized to bid on cars at the IAA auctions using her bid card identification number.

On January 6, 2005, someone claiming to be respondent called IAA and inquired why his online bidding account with IAA was inactive. Dewanna Wells, an employee of IAA, informed the caller that the only bid card they had on file was for Ms. Lee, and without his own bid card, he would not be allowed to purchase cars from IAA. On January 23, 2005, a bid card under respondent’s name was faxed to IAA. Employees of IAA found the appearance of the bid card to be suspicious and faxed it to the Commission the next day. Upon further investigation, it was determined that the bid card bearing respondent’s name contained Ms. Lee’s bid card identification number.

Thereafter, the Commission brought charges against respondent in the case of Louisiana Recreational and Used Motor Vehicle Commission versus Janet Lee |4D/B/A Foreign Car Sales, LLC and Kimuel Lee, Docket No. 2005-32. Following an August 16, 2005 hearing before the Commission, respondent was found to have committed a fraudulent act by placing his name on his wife’s bid card and holding himself out as the vehicle salesperson to whom the bid card was licensed, in violation of La. R.S. 32:775(A)(6)(d). The Commission also found that respondent was acting as a used motor vehicle salesperson without a license, in violation of La. R.S. 32:775(A)(1). The Commission fined respondent a total of $750 and assessed him with hearing costs, including $753.68 in attorney’s fees, $171.50 in court reporter fees, and $32.98 for witness subpoenas.

Respondent appealed the Commission’s findings to the 19th Judicial District Court for the Parish of East Baton Rouge. Following a September 5, 2006 hearing, the district court rendered judgment in favor of the Commission. Respondent then appealed the matter to the First Circuit Court of Appeal, which affirmed the district court’s ruling in an unpublished opinion dated November 2, 2007. Respondent’s writ application to this court was denied on April 4, 2008, and consequently, the judgment against him is final. Foreign Car Sales, L.L.C. v. Louisiana Recreational & Used Motor Vehicle Comm’n, 08-0366 (La.4/4/08), 978 So.2d 330.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 8.4(a) and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation).

Count III — The Nell Matter

On April 18, 2005, John Nell of A.J. Auto Group purchased a 2001 Dodge 3500 truck from Foreign Car Sales, LLC for $7,500. According to an affidavit signed by Mr. Nell on August 29, 2005, respondent showed the vehicle to Mr. Nell and negotiated the sales price on behalf of Foreign Car Sales, LLC. Mr. Nell’s | .^affidavit also indicated that respondent signed Janet Lee’s name to the bill of sale as the salesperson for Foreign Car Sales, LLC and then notarized the document.

After examining several documents containing both respondent’s handwriting and signature and Ms. Lee’s handwriting and signature, Robert Foley, a handwriting expert, eliminated Ms. Lee as the signer of her name to the bill of sale. Mr. Foley also determined there were indications that respondent signed Ms. Lee’s name to the bill of sale. Additionally, Mr. Foley determined respondent filled out the bill of sale.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 8.4(a) and 8.4(c).

DISCIPLINARY PROCEEDINGS

In July 2009, the ODC filed formal charges against respondent. Respondent did not answer the formal charges but instead filed a motion to dismiss based on (1) the ten-year delay in the filing of the formal charges and (2) the ODC’s failure to align the charges with the facts. The disciplinary board chair denied the motion, having found that the motion was “not well founded in law or in fact.” Respondent then responded to the formal charges with a general denial of the factual allegations and rule violations. This response also included a peremptory exception of vagueness, an exception of insufficiency of allegations, and a motion to strike. Thereafter, respondent obtained counsel and filed a supplemental response to the formal charges, again denying any misconduct. This matter proceeded to a formal hearing on the merits, conducted by the hearing committee in June and August 2010.

| (¡Hearing Committee Report

Before addressing the merits of this case, the hearing committee addressed respondent’s exceptions and motion to strike. After determining that the formal charges were sufficiently detailed to put respondent on notice of the conduct and alleged rule violations at issue, the committee concluded the charges contained no insufficient demands or impertinent, redundant, immaterial, or scandalous matter that should be stricken. Accordingly, the committee overruled the exceptions and denied the motion to strike.

Turning to the merits, after considering the testimony and evidence presented at the hearing, the committee made the following factual findings:

The Ridley Succession Matter — Respondent’s hourly fee rate did not accurately reflect the level of his experience practicing succession law. Respondent also lacked the proper documentation for the work he claimed to have done. For example, respondent purportedly wrote a letter to Ms. Laws on February 12, 2000, in which he informed her that his hourly rate was $300. However, both Ms. Laws and Ms. Ridley testified that respondent never discussed the fee arrangement with them, and both claimed to have never received this letter. Furthermore, respondent did not include the letter in his itemized billing statement. Finally, the committee noted that the font in which the letter was typed did not match the font of letters sent during 2000 and 2001 but did match the font of letters sent after the disciplinary complaint was filed. Based on these facts, the committee concluded the letter was generated after the disciplinary complaint was filed to bolster respondent’s contention that he disclosed his hourly rate to his clients in advance and that they agreed to the fee.

With respect to Rule 1.1(a) of the Rules of Professional Conduct, the committee found that respondent did not possess the requisite knowledge and skill necessary to handle the succession. Respondent’s filings showed his failure to 17grasp even the basics of succession law. The filings also lacked thoroughness, preparation, and attention to detail. Accordingly, the committee determined respondent violated Rule 1.1(a).

With respect to Rule 1.5(a), the committee found that, despite respondent’s assertions to the contrary, the succession was not complex. There were no novel or difficult questions involved, the succession did not require administration, and the will was not contested. Based on the pleadings in the record, respondent did not devote an inordinate amount of time to this representation. The fee for handling an uncontested succession without administration would likely be between 3% and 5% of the estate’s assets. Interestingly, at 3%, the fee for the succession would have been roughly $2,600, which is very close to what Ms. Laws testified was the fee quoted by the attorney who prepared Mr. Ridley’s will. Ms. Laws was a credible witness, and her version of events and testimony were consistent over time. In actuality, respondent collected a fee that was approximately 7.8% of the estate’s assets, which seems unreasonable given the quality of the representation. Accordingly, the committee determined respondent violated Rule 1.5(a).

With respect to Rule 1.15(b), respondent issued a trust account check in the amount of $16,168.60 to LSU Shreveport Hospital on December 5, 2000. On or before January 22, 2001, respondent negotiated a reduction of the amount due to the hospital from $16,168.60 to $15,000, a difference of $1,168.60. He did not disclose the reduction to his clients. On April 3, 2001, Ms. Ridley was still unaware of the details of the reduction and was still questioning respondent about it. Respondent initially intended to keep the $1,168.60 as a fee; however, when he learned that Ms. Ridley and Ms. Laws had sought the assistance'of counsel, he reduced his fee to $400.' No agreement was ever reached between the heirs and respondent as to the additional compensation that respondent felt he was owed. Respondent refunded the $400 to the heirs on May 24, 2002. Respondent did not |snotify his clients promptly of the reduction. Respondent’s argument that he did not notify his clients because the funds were his earned fee is without merit. The committee believes respondent knew the funds were not his but simply did not think he would get caught. Accordingly, the committee determined respondent violated Rule 1.15(b).

The Used Car Bid Card Matter — The committee found there was no question that the bid card was altered. Respondent’s defense was that he did not alter the bid card. Instead, he contended that Simon Grant, who was authorized to pick up and pay for cars bought by Foreign Car Sales, LLC, altered it using information previously provided by respondent and his wife. Mr. Grant admitted he called IAA claiming to be respondent, falsified the bid card, and faxed the altered bid card to IAA. While the committee found Mr. Grant to not be a very credible witness, it acknowledged that he admitted altering the bid card without respondent’s knowledge, and the ODC had no way to counter Mr. Grant’s testimony. The Commission did not have the benefit of Mr. Grant’s admission. In light of Mr. Grant’s admission, the committee found that respondent did not alter the bid card. Mr. Grant also explained that the information necessary to make the alteration to the bid card was in his possession for legitimate reasons and that he used this information to alter the bid card without respondent’s knowledge or concurrence. Since the ODC did not rebut Mr. Grant’s testimony, it failed to carry its burden of proving that respondent violated Rule 8.4(c) with respect to the bid card.

The Nell Matter — By his own admission, respondent negotiated the sale with Mr. Nell. Robert Foley, an expert forensic document examiner, testified that Janet Lee did not sign her name to the bill of sale. Ms. Lee testified that she did sign her name to the bill of sale, but her testimony completely lacked any semblance of credibility. Based on this evidence, the committee found that Ms. |9Lee’s purported signature on the bill of sale, which was notarized by respondent, was in fact not her signature. The salesperson was not Ms. Lee but respondent, who was not a licensed salesperson at the time. As such, the bill of sale was substantively false on this point. Furthermore, respondent’s notarial attestation was false as to who signed the document as the salesperson. Accordingly, the committee determined respondent violated Rule 8.4(c) in this count.

Turning to the issue of an appropriate sanction, the committee determined the baseline sanction is suspension based on the ABA’s Standards for Imposing Lawyer Sanctions. In aggravation, the committee found the following factors: a dishonest or selfish motive, a pattern of misconduct, multiple offenses, submission of false evidence, false statements, or other deceptive practices during the disciplinary process, refusal to acknowledge the wrongful nature of the conduct, and substantial experience in the practice of law (admitted 1989). In mitigation, the committee found only the absence of a prior disciplinary record.

After further considering this court’s prior jurisprudence involving similar misconduct, the committee recommended respondent be suspended from the practice of law for two years, followed by probation. The committee further recommended respondent be ordered to make restitution to the Ridley estate in the amount of $4,409.84, plus legal interest from the date of distribution.

Both respondent and the ODC objected to the hearing committee’s report and recommendation. Specifically, in the Used Car Bid Card matter, the ODC argued that the committee should not have based its findings on Mr. Grant’s testimony after he was found not to be credible. Respondent objected to the committee’s findings with respect to the Ridley Succession matter and the Nell matter, and argued that the appropriate sanction is a public reprimand.

11(VDisciplinary Board Recommendation

After review, the disciplinary board determined the hearing committee’s factual findings are not manifestly erroneous and adopted same. The board also determined the committee correctly applied the Rules of Professional Conduct.

The board determined respondent violated Rule 1.1(a) in that he lacked the legal knowledge and skill necessary to handle the Ridley succession. His filings were riddled with errors and clearly illustrated his inexperience, and his lack of knowledge and skill contributed to the excessive accumulation of fees.

The board also determined respondent violated Rule 1.5(a) in that he was trying to learn the law as he worked on the case, which caused him to spend an extraordinary amount of time on the case, accumulating excessive fees. His ultimate fee amounted to 7.5% of the total estate, which was considerably higher than what was customarily charged in the locality for similar legal services. Furthermore, based on respondent’s itemization of his time, he charged $300 per hour whether he drafted a motion or spent time visiting the law library to get up to speed on the law, which hardly seems reasonable.

The board further determined respondent violated Rule 1.15(b). Respondent’s assertion that he immediately communicated the LSU Shreveport Hospital bill reduction to his clients is not supported by any evidence in the record and was specifically refuted by the testimony of his clients. Respondent also would not have been entitled to the $1,168.60 reduction as his fee because his fee was based on the estate’s value, which was not affected by the reduction. Furthermore, any discrepancy between the distribution schedule and the amount actually disbursed cannot be said to accrue in favor of the attorney.

Finally, the board determined respondent violated Rule 8.4(c) in the Nell matter. The board found it difficult to accept respondent’s contention that the bill of sale was not an actual bill of sale given the warranty disclaimer language |n contained in the document and the fact that respondent received a cash payment from Mr. Nell when he provided Mr. Nell with the document. Furthermore, a substantial risk of harm to Mr. Nell existed if the bill of sale was challenged because of a forged signature.

The board determined respondent knowingly violated a duty owed to the Ridley heirs, causing them actual harm. He also violated duties owed to the public and the legal system by notarizing a document he knew contained false information, causing a substantial risk of harm. After considering the ABA’s Standards for Imposing Lawyer Sanctions, the board determined the baseline sanction is suspension.

The board adopted the aggravating and mitigating factors found by the committee. Additionally, the board found the mitigating factor of delay in the disciplinary proceedings.

After further considering this court’s prior jurisprudence involving similar misconduct, the board recommended respondent be suspended from the practice of law for two years. The board further recommended respondent be ordered to submit the fee dispute with the Ridley heirs to the Louisiana State Bar Association’s Fee Dispute Resolution Program. Finally, the board recommended respondent be assessed with all costs and expenses of these proceedings.

Neither respondent nor the ODC filed a timely objection in this court to the disciplinary board’s recommendation. However, after the expiration of the time for filing objections under Supreme Court Rule XIX, § 11(G)(1), respondent sought to file a “late” objection. On February 8, 2012, we issued an order rejecting respondent’s objection as untimely and therefore procedurally improper, but | ^permitting the filing of briefs, without oral argument. Respondent and the ODC both filed briefs in response to the court’s order.

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: Banks, 09-1212 (La.10/2/09), 18 So.3d 57.

The record in this matter supports the hearing committee’s factual findings. In the Ridley Succession matter, respondent failed to provide competent representation, charged and collected an excessive fee, and failed to promptly remit funds to the heirs. In the Nell matter, respondent engaged in dishonest conduct by notarizing his wife’s forged signature on the bill of sale when he was the actual salesperson for the transaction. Based on these facts, we agree with the rule violations found by the committee and the disciplinary board. We also agree that the ODC failed to prove by clear and convincing evidence that respondent violated the Rules of Professional Conduct in the Used Car Bid Card matter, given its failure to refute Mr. Grant’s testimony.

Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent’s actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 |13So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

Respondent knowingly violated duties owed to his clients, the public, the legal system, and the legal profession. He caused actual harm in the Ridley Succession matter and potentially significant harm in the Nell matter. The baseline sanction for this type of misconduct is suspension. The record supports the aggravating and mitigating factors found by the board.

Turning to the issue of an appropriate sanction, we find guidance from the case of In re: Arbour, 05-1189 (La.11/29/05), 915 So.2d 345. In Arbour, an attorney mishandled a succession, including collecting an excessive fee, and we suspended him from the practice of law for two years. Given that respondent’s misconduct in the Ridley Succession matter was not as egregious as the misconduct found in Arbour and that his notarial misconduct did not result in actual harm, we find the two-year suspension recommended by the board is the appropriate sanction in this case.

Accordingly, we will adopt the board’s recommendation and suspend respondent from the practice of law for two years. We will further order respondent to submit the fee dispute with the Ridley heirs to the Louisiana State Bar Association’s Fee Dispute Resolution Program.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record and the briefs filed by the parties, it is ordered that Kimuel Wayne Lee, Louisiana Bar Roll number 19682, be and he hereby is suspended from.the practice of law for two years. It is further 114ordered that respondent submit the fee dispute with the Ridley heirs to the Louisiana State Bar Association’s Fee Dispute Resolution Program. 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,

       Chief Justice Kimball not participating in the opinion.

      . This provision was applicable at the time of respondent’s alleged misconduct. An attorney’s duty to timely remit funds to clients and third persons is now set forth in Rule 1.15(d).

      . The document was not labeled as a bill of sale but, nevertheless, served the same purpose as a bill of sale.

      . The restitution amount is the difference between what respondent actually charged the Estate of Theron Ridley less the amount the committee felt would have been an appropriate fee under the circumstances.

      . Among other arguments raised in his brief, respondent asserted that the costs and expenses assessed against him should be reduced by one-third since he was found not to have engaged in misconduct in one of the three counts. In this regard, respondent should follow the procedures for objecting to costs as set forth in Supreme Court Rule XIX, Appendix A, Rule 7.


text:
    STATE ex rel. Ronald E. COLEMAN v. STATE of Louisiana.
    No. 2011-KH-1393.
    Supreme Court of Louisiana.
    March 23, 2012.
   In re Coleman, Ronald E.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. G, No. 231,988; to the Court of Appeal, Third Circuit, No. KH 10-00820.

Denied.


text:
    STATE ex rel. Terrence BENOIT v. STATE of Louisiana.
    No. 2011-KH-1407.
    Supreme Court of Louisiana.
    March 23, 2012.
   In re Benoit, Terrence; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Iberia, 16th Judicial District Court Div. A, No. CR-04-1005; to the Court of Appeal, Third Circuit, Nos. KH 10-01016, KH 10-01312.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Toby MATEN v. STATE of Louisiana.
    No. 2011-KH-1408.
    Supreme Court of Louisiana.
    March 23, 2012.
   In re Maten, Toby; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. L, No. 10-00-0572; to the Court of Appeal, First Circuit, No. 2010 KW 1586.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694; La.C.Cr.P. art. 930.3; State ex rel Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE ex rel. Bobby Lee HAMPTON v. Burl CAIN, Warden.
    No. 2011-KP-1478.
    Supreme Court of Louisiana.
    March 23, 2012.
   In re Hampton, Bobby Lee; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. A, No. 176627-C.

Denied.


text:
    STATE of Louisiana v. Joshua SADLER.
    No. 2011-KO-1528.
    Supreme Court of Louisiana.
    March 23, 2012.
   In re Sadler, Joshua; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. G, No. 03-09-0274; to the Court of Appeal, First Circuit, No. 2011 KA 0240.

Denied.


text:
    STATE ex rel. Christopher ARMSTEAD v. STATE of Louisiana.
    No. 2011-KH-1565.
    Supreme Court of Louisiana.
    March 23, 2012.
   In re Armstead, Christopher; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. J, No. 08-10-0315; to the Court of Appeal, First Circuit, No. 2011 KW 1040.

Denied.


text:
    STATE of Louisiana v. Steven CAMPBELL.
    No. 2011-KP-1717.
    Supreme Court of Louisiana.
    March 23, 2012.
   In re Campbell, Steven; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. F, No. 05-578; to the Court of Appeal, Fifth Circuit, No. 11-KH-565.

Denied.


text:
    STATE of Louisiana v. Walter J. COPELAND, Jr.
    No. 2011-KP-1739.
    Supreme Court of Louisiana.
    March 23, 2012.
   In re Copeland Jr., Walter J.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. G, No. 397,655; to the Court of Appeal, First Circuit, No. 2011 KW 0794.

Denied.


text:
    STATE ex rel. Robert C. LETELL v. STATE of Louisiana.
    No. 2011-KH-1746.
    Supreme Court of Louisiana.
    March 23, 2012.
   In re Letell, Robert C.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Lafourche, 17th Judicial District Court Div. B, No. 482950; to the Court of Appeal, First Circuit, No. 2011 KW 0746.

Denied.

WEIMER, J., recused.


text:
    STATE of Louisiana v. Christopher Lane FRANCOIS, Sr.
    No. 2011-KP-1767.
    Supreme Court of Louisiana.
    March 23, 2012.
   In re Francois Sr., Christopher Lane;— Defendant; Applying For Supervisory and/or Remedial Writs, Parish of St. Martin, 16th Judicial District Court Div. C, No. 03-226,844; to the Court of Appeal, Third Circuit, No. KW 10-00831.

Denied.


text:
    STATE ex rel. Bobby Lee HAMPTON v. Burl CAIN, Warden.
    No. 2011-KP-1796.
    Supreme Court of Louisiana.
    March 23, 2012.
   In re Hampton, Bobby Lee; — Plaintiff; Applying For Supervisory and/or Remedíal Writs, Parish of Caddo, 1st Judicial District Court Div. A, No. 176627-C.

Denied.


text:
    Phillip LANDE v. Lynn COOPER, Warden, Avoyelles Correctional Center.
    No. 2011-KP-1857.
    Supreme Court of Louisiana.
    March 23, 2012.
   In re Lande, Phillip; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. L, No. 03-4759; to the Court of Appeal, Fifth Circuit, No. 11-KH-695.

Denied.


text:
    STATE of Louisiana v. Marcus WILLIAMS.
    No. 2011-KP-1877.
    Supreme Court of Louisiana.
    March 23, 2012.
   In re Williams, Marcus; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. G, No. 04-4093; to the Court of Appeal, Fifth Circuit, No. 11-KH-701.

Denied.


text:
    STATE of Louisiana v. Kendall MILTON.
    No. 2011-KP-2055.
    Supreme Court of Louisiana.
    March 23, 2012.
   In re Milton, Kendall; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of St. Landry, 27th Judicial District Court Div. D, No. 04-K-4454-D; to the Court of Appeal, Third Circuit, No. KW10-01193.

Denied.