text:
    In re Sherman Gerald RUTH.
    No. 2012-B-0620.
    Supreme Court of Louisiana.
    June 15, 2012.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

_JjThis disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Sherman Gerald Ruth, an attorney licensed to practice law in Louisiana but currently on interim suspension pursuant to a joint motion of the parties filed in March 2005. In re: Ruth, 05-0676 (La.3/30/05), 898 So.2d 318.

FORMAL CHARGES

08-DB-079

Count I — The Coley Matter

In March 2002, Caren Coley hired respondent to represent her in a pending divorce matter, paying him $750 for his services. Respondent still had not completed the divorce when Ms. Coley filed a disciplinary complaint against him in June 2002.

In February 2003, the ODC requested that respondent provide an accounting of the fee Ms. Coley paid. Respondent did not respond to this request, necessitating the issuance of a subpoena to obtain his sworn statement. During his sworn statement, respondent presented an accounting of the work performed and time spent on Ms. Coley’s matter; however, he failed to produce copies of the | ^documents he supposedly prepared. Therefore, he failed to account for the fee paid.

Respondent did not enroll as Ms. Coley’s counsel and did not file a petition on her behalf. He also did not request that a curator be appointed, despite informing the ODC that he was at that point in the divorce proceeding.

Because respondent failed to complete the divorce, Ms. Coley eventually hired another attorney, who filed an amended petition for divorce and a motion to appoint a curator in September 2003. Ms. Coley’s divorce was granted in December 2003.

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), 8.4(a) (violation of the Rules of Professional Conduct), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation).

| zCount II — The Milow Matter

Between late January and early February 2002, Adrian Milow paid respondent a total of $1,000 to represent him in a child support matter pending in California. At the time respondent was paid these legal fees, he was not licensed to practice law in Louisiana or California. Thereafter, respondent failed to perform any work on the matter, and Mr. Milow hired an attorney in California to represent him.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 5.5 (engaging in the unauthorized practice of law), 8.4(a), and 8.4(c).

Count III — The Noyel/Brown Matter

In July 2002, Lovenia Noyel paid respondent $4,000 to represent her grandson, DeBrandon Brown, in a criminal appeal. On August 2, 2002, respondent appeared in court at Mr. Brown’s sentencing as his attorney of record. Respondent filed a motion to appeal and received a return date from the court of appeal.

Thereafter, he was granted two extensions of time to file an appellate brief. Nevertheless, he failed to file the brief on time and was advised to file a motion requesting permission to file the brief. Respondent claimed he then instructed his law clerk to file the brief and did not become aware that the brief had not been filed until he spoke to Ms. Noyel in September 2003.

Ms. Noyel hired a new attorney to represent Mr. Brown and requested a full refund from respondent. Despite failing to timely file the appellate brief or submit evidence that he actually prepared the brief, respondent did not refund any portion of the fee. He also did not provide Ms. Noyel with an accounting to determine the unearned portion of the fee.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4 (failure to communicate with a client), 1.5 (fee arrangements), 1.15(d) (failure to timely remit funds to a client or third person), 1.16 (declining or terminating representation), 5.3(b) (failure to properly supervise a non-lawyer assistant), 8.4(a), and 8.4(c).

Count IV — The Ennis Matter

In January 2004, James Ennis, Jr. paid respondent $1,000 to represent him in a child custody and support matter. Thereafter, respondent obtained a copy of the relevant court case record for review in preparation for the representation.

In May 2004, Mr. Ennis filed a disciplinary complaint against respondent, alleging that respondent failed to complete the matter and failed to communicate |4with him. In October 2004, respondent admitted that he failed to perform any work on Mr. Ennis’ matter after obtaining the ease record. Respondent also admitted that he owed Mr. Ennis a refund of most, if not all, of the $1,000 fee. Nevertheless, respondent failed to refund any portion of the fee and failed to provide an accounting of the hours he expended and the work he performed.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.5(a) (charging an unreasonable fee), 1.15(d), 1.16, 8.4(a), and 8.4(c).

Count V — The Rathmann-Keogh Matter

During the course of respondent’s personal injury practice, he referred numerous clients to the Rathmann-Keogh Chiropractic Clinic (“RKCC”) for medical treatment. Respondent admitted that $28,000 in medical bills owed to RKCC as a result of treatment provided to his clients was not paid. Respondent claimed he learned of the unpaid accounts in August 2004 and further claimed his assistant at the time, who was responsible for paying third-party medical providers from settlement funds, had stolen the funds instead. According to RKCC, respondent did not report his assistant to the authorities. Respondent also failed to submit evidence to the ODC to substantiate his claim that his assistant converted the funds. As of September 2004, when RKCC filed its disciplinary complaint, it had not received any of the sums due from respondent.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.15(d), 5.3(b), 8.4(a), 8.4(b) (commission of a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer), and 8.4(c).

1 ¿Count VI — The Credit Matter

In October 2002, Jean Nicole Credit hired respondent to represent her in a personal injury matter stemming from an automobile accident. In July 2004, Ms. Credit learned that another victim of the accident had received settlement proceeds in February 2004. When Ms. Credit asked respondent what the status of her claim was, he advised her that he had received funds on her behalf and would provide her with a check within a week. Over the next several weeks, Ms. Credit tried to contact respondent numerous times, to no avail. In November 2004, respondent contacted Ms. Credit and informed her that his assistant had stolen her settlement proceeds. He also informed her that he was securing a loan to disburse the funds owed her.

In February 2005, Ms. Credit filed a disciplinary complaint against respondent because she had still not received her portion of the settlement proceeds. After failing to respond to the ODC’s written notices of the complaint, respondent was subpoenaed to provide a sworn statement. Respondent appeared for the sworn statement but did not bring Ms. Credit’s file because he had been denied access to the storage unit where it was located for failing to pay the storage fees.

Respondent settled Ms. Credit’s claim for $5,000 but never disbursed funds to her or to her medical providers. He also failed to submit evidence to substantiate his claim that his assistant converted the funds.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.4, 1.15(d), 8.1(c) (failure to cooperate with the ODC in its investigation), 8.4(a), 8.4(b), and 8.4(c).

1 fíCount VII — The Escort Matter

Yolanda Escort hired respondent to represent her and her minor nephew in a personal injury matter stemming from an automobile accident that occurred on November 15, 2002. On July 15, 2004, Ms. Escort was contacted by the doctor’s office where she and her nephew had received treatment for the injuries they sustained in the accident. The doctor’s office was attempting to collect payment from Ms. Escort because the staff claimed they had been unable to contact respondent about the debt.

Ms. Escort learned that the personal injury matter had been settled in August 2003 and that her signature had been forged on the settlement check. Respondent failed to respond to Ms. Escort’s request for her file. She hired a new attorney, who also requested her file from respondent, to no avail.

In April 2005, Ms. Escort filed a disciplinary complaint against respondent. Respondent failed to respond to three notices of the complaint sent via certified mail, necessitating the issuance of a subpoena to obtain his sworn statement. However, service attempts made by the East Baton Rouge Parish Sheriffs Office in January 2006 were unsuccessful.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.15(d), 8.1(c), 8.4(a), 8.4(b), and 8.4(c).

Count VIII — The Major Matter

On April 26, 2002, Doris Major hired respondent to defend her in a civil lawsuit, paying him a total of $2,000. On August 10, 2002, Ms. Major was served |7with court documents informing her that respondent had failed to appear for a hearing.

In August 2005, Ms. Major filed a disciplinary complaint against respondent. Via letter dated May 14, 2007, respondent advised the ODC that, after researching the details of Ms. Major’s case, he had decided he would not be able to assist her. Therefore, he instructed his staff to prepare a withdrawal letter and refund Ms. Major’s retainer fee. Respondent indicated that he would find out if the refund check he instructed his staff to send to Ms. Major was ever negotiated, and, if not, he would refund the fee. On September 23, 2007, Ms. Major informed the ODC that she had not yet received a refund.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.4, 1.5(a), 1.15(d), 1.16(d) (obligations upon termination of the representation), 8.4(a), 8.4(b), and 8.4(c).

Count IX — The Goff Matter

Respondent referred eighteen of his clients to Dr. Michael Goff for chiropractic treatment. However, after settling the clients’ cases, respondent did not remit payment for the treatment Dr. Goff provided to the clients. Dr. Goff has been trying to collect these funds since 2003, and he met with respondent in 2005 to make him aware of the $52,595.50 balance that remains on eighteen accounts.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.15(d), 8.4(a), 8.4(b), and 8.4(c).

09-DB-OÍ0

Count I — The LeBlanc Matter

In October 2003, respondent re-eeived a $13,000 fee to represent Lawrence Lance LeBlanc and his wife, Tawanna Le-Blanc, in a criminal matter. In an effort I «to ensure adequate representation, Mr. LeBlanc hired another attorney to act as respondent’s co-counsel.

During the course of the representation, respondent was interimly suspended from the practice of law. Nevertheless, respondent failed to inform the LeBlancs of his suspension and, approximately two months later, failed to appear for a scheduled hearing in the LeBlancs’ legal matter. Instead, without consulting with the Le-Blancs, respondent arranged for another attorney to appear on their behalf.

In June 2006, Mr. LeBlanc filed a disciplinary complaint against respondent. The complaint alleged that respondent was not punctual for scheduled court appearances, failed to return telephone calls, failed to complete the representation, and failed to refund the unearned fee.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4,1.15(d), 1.16(d), 8.4(a), and 8.4(c).

Count II — The Bernard, Matter

In February 2004, John Bernard paid respondent $2,000 to answer a lawsuit filed against him and file a counter suit on his behalf. Respondent failed to perform any work on Mr. Bernard’s legal matter 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, 1.4,1.15(d), 8.4(a), and 8.4(c).

Count III — The Clark Matter

In January 2005, Dianne Clark paid respondent $1,500 to represent her son in a criminal matter. During the course of the representation, respondent was interimly suspended from the practice of law. Respondent failed to inform Ms. Clark of his suspension and failed to appear for a scheduled hearing in her son’s | ncase. In May 2007, respondent informed the ODC that he was willing to refund the fee. However, he failed to do so.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4,1.15(d), 1.16(d), 8.4(a), and 8.4(c).

Count IV — The Hays/Phillips Matter

In November 2004, Davell Hays paid respondent $2,000 to represent his son, Davell Phillips, in a criminal matter in West Baton Rouge Parish. However, respondent failed to enroll as counsel of record, and the court appointed the Indigent Defender Board to represent Mr. Phillips at his arraignment.

Mr. Phillips was transferred to the custody of the United States Marshal in a separate criminal matter. Despite being listed as Mr. Phillips’ counsel of record in the federal criminal matter, respondent failed to appear for a show cause hearing. In March 2005, respondent was allowed to withdraw as counsel of record. However, he did so without consulting with Mr. Phillips or refunding any portion of the fee paid by Mr. Hays.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4,1.15(d), 8.4(a), and 8.4(c).

Count V — The Kelly Matter

Respondent was retained to represent Wilbert Kelly, Jr. in a criminal matter. On December 8, 2003, the day of Mr. Kelly’s trial, respondent telephoned the trial judge and informed him that he was too ill to appear in court. The judge ordered respondent to file a written motion for continuance and attach a doctor’s note verifying he was not able to appear in court. Because the doctor’s note indicated | ^respondent could return to work the next day, the judge rescheduled the trial for December 9, 2003.

Respondent was notified of the new trial date but advised the clerk’s office that he would not be able to appear. When he, in fact, failed to appear in court on December 9, 2003, the judge issued a warrant for his arrest and continued the trial until April 26, 2004. Eventually the warrant was recalled, and respondent was ordered to show cause why he should not be held in contempt for his failure to appear. On June 15, 2004, after considering the testimony presented, the judge found respondent in contempt of court and sentenced him to serve two days in jail.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 3.5(d) (a lawyer shall not engage in conduct intended to disrupt a tribunal), 8.4(a), and 8.4(c).

Count VI — The Scott Matter

Warren and Debra Scott hired respondent to defend their son against several criminal charges. The Scotts became dissatisfied with respondent’s defense strategy and accused him of being dishonest. They alleged that respondent provided ineffective assistance of counsel and, consequently, requested a refund of the $6,000 fee they paid.

Although respondent performed work in the matter, he failed to provide an accounting of payments received from the Scotts or documentation of the specific work he performed. Therefore, the question of whether respondent charged an excessive fee cannot be resolved.

Respondent failed to submit a written response to the disciplinary complaint the Scotts filed against him in June 2005, necessitating the issuance of a subpoena to obtain his sworn statement.

lnThe ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.5(f)(4) (failure to render an accounting of client funds), 8.1(c), and 8.4(a).

09-DB-Oil

Count I — The Franklin Matter

In September 2003, Pamela Franklin hired respondent to represent her in a personal injury matter stemming from a slip and fall that occurred in Biloxi, Mississippi. Although respondent was not licensed to practice law in Mississippi, he represented Ms. Franklin and eventually settled her claim.

According to Ms. Franklin, respondent settled the claim without her knowledge or authority. Respondent admitted that he endorsed the signatures of both Ms. Franklin and her husband on the settlement check, asserting that he had power of attorney authorizing him to do so. However, Ms. Franklin’s husband was not respondent’s client, and the Franklins claimed they did not grant respondent the authority to sign either of their names to the check. Respondent failed to comply with the ODC’s request to produce documentation supporting his contention that he had the authority to sign the Franklins’ names.

Respondent admitted that he had not performed a monthly reconciliation of his client trust account. He also indicated that Ms. Franklin’s funds and the funds owed to her medical providers were misappropriated by his secretary; however, he did not report this alleged criminal conduct to law enforcement.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.2 (scope of the representation), 1.3, 1.4, 1.15(d), 1.16(d), 8.4(a), and 8.4(c).

I ^DISCIPLINARY PROCEEDINGS

In October 2008, the ODC filed formal charges against respondent in 08-DB-0790. In June 2009, the ODC filed formal charges against respondent in 09-DB-040 and in 09-DB-041. Respondent failed to answer all three sets of formal charges. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). The three matters were then consolidated for consideration by one hearing committee. No formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the hearing committee’s consideration.

Hearing Committee Report

After considering the ODC’s deemed admitted submission, the hearing committee acknowledged that the factual allegations of the formal charges have been deemed admitted and, thus, proven by clear and convincing evidence. Nevertheless, in all but the Goff matter, the committee made detailed factual findings that were, in essence, consistent with the deemed admitted factual allegations. Based on these facts, the committee concluded that respondent violated the Rules of Professional Conduct as charged in each count of the formal charges.

The committee determined that respondent violated duties owed to his clients, the legal system, and the legal profession. The committee further determined that respondent acted knowingly. However, the committee did not find respondent’s explanation about his assistant stealing client funds to be credible because he did not report his assistant to law enforcement or produce documentation supporting his claim. Therefore, the committee found that he acted 11sintentionally in settling cases and converting client funds. His actions, whether converting client funds or failing to refund unearned fees, resulted in a monetary loss for each of his clients. After considering the ABA’s Standards for Imposing Lawyer Sanctions, the committee determined that the baseline sanction is disbarment.

In aggravation, the committee found the following factors: a dishonest or selfish motive, a pattern of misconduct, multiple offenses, vulnerability of the victims, substantial experience in the practice of law (admitted 2002), indifference to making restitution, and illegal conduct. In mitigation, the committee found only the absence of a prior disciplinary record.

After further considering respondent’s conduct in light of the permanent disbarment guidelines set forth in Supreme Court Rule XIX, Appendix E, the committee recommended that respondent be permanently disbarred.

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

Disciplinary Board Recommendation

After review, the disciplinary board determined that the factual allegations of the formal charges have been deemed admitted and proven by clear and convincing evidence, with some exceptions. The board also determined that the hearing committee correctly applied the Rules of Professional Conduct, again with some exceptions. The board’s determinations and exceptions are as follows:

The Coley Matter — The record supports the committee’s conclusion that respondent violated the Rules of Professional Conduct as alleged in the formal | Hcharges. Additionally, the board determined that respondent violated Rule 1.5(f)(5) (failure to refund an unearned fee).

The Milow Matter — The record supports the committee’s conclusion that respondent violated the Rules of Professional Conduct as alleged in the formal charges.

The Noyel/Brown Matter — The board found violations of the Rules of Professional Conduct as alleged in the formal charges, with the exception of Rules 1.4 and 1.15(d). The board found insufficient evidence to support a violation of Rule 1.4 because the sworn statements of respondent and Ms. Noyel indicate that a factual dispute exists regarding respondent’s failure to communicate. The board also determined that respondent’s failure to refund unearned fees was a violation of Rule 1.5(f)(5) rather than Rule 1.15(d).

The Ennis Matter — The board found violations of the Rules of Professional Conduct as alleged in the formal charges, with the exception of Rules 1.5(a) and 1.15(d). The board determined that nothing in the deemed admitted facts or in the record supports a finding that respondent charged an unreasonable fee in violation of Rule 1.5(a). The board also determined that respondent’s failure to refund unearned fees was a violation of Rule 1.5(f)(5) rather than Rule 1.15(d).

The Rathmann-Keogh Matter — The board found violations of the Rules of Professional Conduct as alleged in the formal charges, with the exception of Rule 8.4(b). The board declined to find a violation of Rule 8.4(b) because it was not readily apparent from the deemed admitted facts or the record that respondent’s misconduct amounted to a criminal act.

\KThe Credit Matter — The record supports the committee’s conclusion that respondent violated the Rules of Professional Conduct as alleged in the formal charges.

The Escort Matter — The record supports the committee’s conclusion that respondent violated the Rules of Professional Conduct as alleged in the formal charges.

The Major Matter — The board found violations of the Rules of Professional Conduct as alleged in the formal charges, with the exception of Rules 1.5(a) and 1.15(d). The board determined that nothing in the deemed admitted facts or in the record supports a finding that respondent charged an unreasonable fee in violation of Rule 1.5(a). The board also determined that respondent’s failure to refund unearned fees was a violation of Rule 1.5(f)(5) rather than Rule 1.15(d).

The Goff Matter — The record supports the committee’s conclusion that respondent violated the Rules of Professional Conduct as alleged in the formal charges.

The LeBlanc Matter — The board found violations of the Rules of Professional Conduct as alleged in the formal charges, with the exception of Rules 1.16(d) and 1.15(d). The board determined there is no clear and convincing evidence of a Rule 1.16(d) violation because the deemed admitted factual allegations and the record only show a factual dispute between respondent and the LeBlancs as to how the other attorney became involved in the case. The board also determined that respondent’s failure to refund unearned fees was a violation of Rule 1.5(f)(5) rather than Rule 1.15(d).

The Bernard Matter — The board found violations of the Rules of Professional Conduct as alleged in the formal charges, with the exception of Rule 1.15(d). The board determined that respondent’s failure to refund unearned fees was a violation of Rule 1.5(f)(5) rather than Rule 1.15(d).

| mThe Clark Matter — The board found violations of the Rules of Professional Conduct as alleged in the formal charges, with the exception of Rule 1.15(d). The board determined that respondent’s failure to refund unearned fees was a violation of Rule 1.5(f)(5) rather than Rule 1.15(d).

The Hayes/Phillips Matter — The board found violations of the Rules of Professional Conduct as alleged in the formal charges, with the exception of Rule 1.15(d). The board determined that respondent’s failure to refund unearned fees was a violation of Rule 1.5(f)(5) rather than Rule 1.15(d).

The Kelly Matter — The record supports the committee’s conclusion that respondent violated the Rules of Professional Conduct as alleged in the formal charges.

The Scott Matter — The record supports the committee’s conclusion that respondent violated the Rules of Professional Conduct as alleged in the formal charges.

The Franklin Matter — The board found violations of the Rules of Professional Conduct as alleged in the formal charges, with the exception of Rule 1.16(d). The board determined there is no clear and convincing evidence of a Rule 1.16(d) violation because the deemed admitted factual allegations and the record do not support the allegation that respondent failed to properly withdraw from the representation.

Based on these findings, the board determined that respondent knowingly and intentionally violated duties owed to his clients, the public, the legal system, and the legal profession. Respondent’s misconduct caused actual harm to his clients. After considering the ABA’s Standards for Imposing Lawyer Sanctions, the board determined that the applicable baseline sanction is disbarment.

In aggravation, the board found the following factors: a dishonest or selfish motive, submission of false evidence, false statements, or other deceptive practices li7during the disciplinary process, refusal to acknowledge the wrongful nature of the conduct, and indifference to making restitution. The only mitigating factor found by the board was the absence of a prior disciplinary record.

After further considering respondent’s misconduct in light of the permanent disbarment guidelines set forth in Supreme Court Rule XIX, Appendix E, as well as case law involving similar misconduct, the board recommended that respondent be permanently disbarred. The board further recommended that respondent pay restitution to his clients and the aggrieved third parties.

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

DISCUSSION

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

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

|1sThe record in this deemed admitted matter supports a finding that respondent, among other things, neglected legal matters, failed to communicate with clients, failed to refund unearned fees, failed to timely remit funds to clients and third parties, and failed to cooperate with the ODC in its investigations. Based on these facts, respondent has violated the Rules of Professional Conduct as found by the disciplinary board, with the following exceptions:

In the Coley matter, the formal charges do not allege respondent failed to refund an unearned fee, nor do they give respondent sufficient notice of this violation; therefore, we do not find that respondent violated Rule 1.5(f)(5) of the Rules of Professional Conduct. However, the formal charges do allege that respondent failed to account for the fee paid by Ms. Coley; thus, we find that respondent violated Rule 1.5(f)(4). In the Credit matter, as in the Rathmann-Keogh matter, it is not readily apparent from the deemed admitted facts or the record that respondent’s misconduct amounted to a criminal act; therefore, we do not find respondent violated Rule 8.4(b). In the LeBlanc matter, respondent did not inform his clients of his interim suspension and resulting inability to continue representing them; thus, we find that respondent did, in fact, violate Rule 1.16(d). Additionally, the deemed admitted factual allegations indicate only that respondent’s clients alleged he failed to refund the unearned fee. Without a definitive deemed admitted factual allegation that respondent actually failed to refund an unearned fee, we find respondent did not violate Rule 1.5(f)(5). Finally, in the Bernard matter, the formal charges do not allege respondent failed to communicate with his client; therefore, we do not find that he violated Rule 1.4.

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 11flprofession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

We find that respondent knowingly and intentionally violated duties owed to his clients, the public, the legal system, and the legal profession. His misconduct caused significant actual harm. The baseline sanction for this type of misconduct is disbarment.

The record supports the following aggravating factors: a dishonest or selfish motive, a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, vulnerability of the victims, and indifference to making restitution. We agree with the hearing committee and the board that the only mitigating factor present is the absence of a prior disciplinary record.

In their reports, both the committee and the board concluded respondent’s offenses are so egregious that he should be permanently prohibited from applying for readmission to the bar. We agree. Respondent settled personal injury cases and then failed to remit approximately $100,000 to his clients and/or the third-party medical providers. Additionally, respondent failed to refund approximately $12,500 in unearned fees, effectively converting those funds to his own use. Under these circumstances, we find that respondent engaged in repeated or multiple instances of intentional conversion of client funds with substantial harm, as required by Guideline 1 of the permanent disbarment guidelines set forth in Supreme Court Rule XIX, Appendix E.

12qAccordingly, we will adopt the disciplinary board’s recommendation and permanently disbar respondent. We will also order respondent to make restitution to his victims.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that the name of Sherman Gerald Ruth, Louisiana Bar Roll number 27759, be stricken from the roll of attorneys and that his license to practice law in the State of Louisiana be revoked. Pursuant to Supreme Court Rule XIX, § 24(A), it is further ordered that respondent be permanently prohibited from being readmitted to the practice of law in this state. It is further ordered that respondent make restitution to his victims. 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.

      . Respondent was not admitted to the practice of law in Louisiana until February 28, 2002.

      . The record indicates that respondent settled Ms. Escort’s claim for $4,502 and her nephew's claim for $3,577.

      . The record indicates that respondent settled Ms. Franklin's claim for $6,500.

      . The board noted that it may find a violation of a provision of the Rules of Professional Conduct, even when the provision is not specifically enumerated in the formal charges, if the factual allegations have provided respondent with sufficient notice of the potential violation. See Supreme Court Rule XIX, § 11(E), In re: Ashy, 98-0662 (La. 12/1/98), 721 So.2d 859, and Louisiana State Bar Ass’n v. Keys, 567 So.2d 588 (La. 1990).

      . Additionally, the formal charges do not allege that respondent failed to communicate with his client.


source: Caselaw Access Project

author: PER CURIAM

license: Public Domain

text:
    In re Kathleen M. WILSON.
    No. 2012-B-0579.
    Supreme Court of Louisiana.
    June 15, 2012.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM

| ]This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Kathleen M. Wilson, an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

In June 2009, respondent’s client trust account was overdrawn in the amount of $186.54. In response to the ODC’s inquiry regarding the account, respondent indicated that in March 2009 she wrote a $250 check to a client, representing a refund of fees for an expert. The client did not negotiate the check until June 18, 2009, by which time respondent no longer had sufficient funds in her trust account to cover the check. The bank nevertheless paid the check, and the next day, respondent made a deposit of personal funds to the account.

In the meantime, on May 29, 2009, respondent wrote a $93 check from her trust account for the filing fees in a divorce matter for another client. However, respondent did not receive funds from the client for the filing fees until the next day, and she made no deposits into her trust account until June 19, 2009.

In connection with its investigation, the ODC requested copies of the bank records for respondent’s trust account. The records revealed that in May 2009, two 12debit card transactions were posted to the trust account. One transaction was made in connection with a client matter, but respondent acknowledged that a $706.10 debit represented payment to her husband’s cellular telephone provider. Respondent did not authorize this transaction but indicated that her husband (a non-lawyer) had inadvertently used the trust account debit card to pay his cell phone bill. Respondent also indicated that the error was corrected immediately.

Thereafter, the ODC’s audit consultant, Ronald White, performed an audit of respondent’s trust account. Following his review, Mr. White found that respondent commingled her personal funds with client funds in the trust account on numerous occasions over the ten-month period between January and October 2009. Mr. White also noted that respondent failed to deposit client funds into her trust account, failed to maintain sufficient funds in the account to cover checks written to her clients or to third parties on their behalf, and failed to promptly pay Dr. Marvin Clifton for medical treatment provided to three clients.

DISCIPLINARY PROCEEDINGS

In July 2010, the ODC filed formal charges against respondent, alleging that she violated the following provisions of the Rules of Professional Conduct: Rules 1.5(f)(4) (advance deposit for costs and expenses must be placed in the lawyer’s trust account), 1.15(a) (a lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the [ ¡¡lawyer's own property), 1.15(d) (upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person and promptly deliver any funds or other property that the client or third person is entitled to receive), 1.15(f) (an electronic, telephone, or wire transfer from a client trust account must be directed by a lawyer), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation).

Respondent answered the formal charges and essentially denied any misconduct. In particular, respondent denied that her failure to promptly pay Dr. Clifton constituted misconduct, as she had an agreement with Dr. Clifton that the funds owed him could be paid “at a later time” and that he “would not pursue any of the clients personally for payment.”

Hearing Committee Report

Following the filing of respondent’s answer, the hearing committee conducted a formal hearing. After considering the testimony and evidence presented at the hearing, the committee adopted Mr. White’s audit findings and made the following factual findings:

Respondent routinely failed to reconcile her trust account. Additionally, she commingled her personal funds with her clients’ funds, and converted client and third-party funds on several occasions. No harm was caused to respondent’s clients by her misconduct.

Based on these facts, the committee determined respondent violated Rules 1.5(f)(4), 1.15(a), 1.15(f), and 8.4(c) of the Rules of Professional Conduct. The committee determined respondent did not violate Rule 1.15(d) (failure to timely remit funds to a client or third person) because Dr. Clifton agreed to delay payment of the funds due to him for an indeterminate period of time.

|/The committee found respondent’s conduct was negligent, knowing, and intentional. After considering the ABA’s Standards for Imposing Lawyer Sanctions, the committee determined the baseline sanction for respondent’s misconduct is a suspension from the practice of law.

The committee found as aggravating factors a pattern of misconduct, multiple offenses, refusal to acknowledge the wrongful nature of the conduct, and substantial experience in the practice of law (admitted 2003). The committee found as mitigating factors the absence of a prior disciplinary record, absence of a dishonest or selfish motive, timely good faith effort to rectify the consequences of the misconduct, and a cooperative attitude toward the proceedings.

Based on this court’s prior jurisprudence involving similar misconduct, the facts of this case, and the nature of the aggravating factors balanced with the factors in mitigation, the committee recommended that respondent be suspended from the practice of law for three years, fully deferred, subject to a two-year period of supervised probation with conditions.

Respondent filed an objection to the hearing committee’s report, arguing that the sanction recommended by the committee is too harsh. The ODC objected to the committee’s conclusion that respondent’s conduct did not amount to a violation of Rule 1.15(d).

Disciplinary Board Recommendation

After review, the disciplinary board determined that the hearing committee’s factual findings are not manifestly erroneous. The board also determined the committee correctly applied the Rules of Professional Conduct, except the board disagreed with the committee that respondent did not violate Rule 1.15(d).

laThe board found respondent violated Rule 1.5(f)(4) by failing to deposit advanced costs into her client trust account. She violated Rule 1.15(a) by regularly leaving her earned attorney’s fees in her trust account, by paying filing costs out of her trust account prior to receiving the funds from her clients, by allowing the balance of her trust account to drop below the amount she was holding for clients and third parties, and by depositing client funds into her operating account before transferring the funds to her trust account. The board noted that there was no evidence in the record that respondent’s violation of Rule 1.15(a) resulted in actual client harm or was the result of a selfish motive. Respondent violated Rule 1.15(d) by delaying payment of funds to a third party, Dr. Clifton, without obtaining the consent of her clients. Respondent violated Rule 1.15(f) by using a debit card to withdraw funds from her trust account and by failing to adequately safeguard the debit card, which resulted in an unauthorized transaction by her husband for a personal expense. Finally, the board found respondent violated Rule 8.4(c), as she knew or should have known that her actions regarding her trust account were improper.

Respondent violated duties owed to her clients. She knowingly commingled and converted client and third-party funds, which created the potential for harm. Respondent’s conduct was negligent with regard to her violation of Rules 1.15(d) and 1.15(f). After considering the ABA’s Standards for Imposing Lawyer Sanctions, the board determined the applicable baseline sanction is suspension.

Rln aggravation, the board found a pattern of misconduct and multiple offenses. The board agreed with the mitigating factors found by the committee.

Turning to the issue of an appropriate sanction, the board determined that the three-year suspension recommended by the hearing committee was too harsh. Instead, the board recommended respondent be suspended from the practice of law for one year and one day, fully deferred, subject to a two-year period of supervised probation with conditions. The board also recommended that respondent be assessed with the costs and expenses of this proceeding.

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

DISCUSSION

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

The record in this matter establishes that respondent grossly mismanaged her client trust account. She failed to deposit advanced costs and other client funds 17into the account, commingled her funds with client funds by regularly leaving her attorney’s fees in the account, allowed the balance of the account to drop below the amount she was holding for clients and third parties, and failed to promptly deliver to Dr. Clifton funds withheld from her clients’ settlements for medical treatment. This conduct violated Rules 1.5(f)(4), 1.15(a), 1.15(d), 1.15(f), and 8.4(c) of the Rules of Professional Conduct.

Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent’s actions. In 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 1178 (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).

Although respondent’s conduct caused no actual harm, her improper use of her trust account created the potential for harm. Accepting the aggravating and mitigating factors found by the disciplinary board, we find the appropriate sanction for respondent’s misconduct is a suspension from the practice of law for a period of one year and one day. However, our jurisprudence has recognized that in cases where the commingling causes no actual harm, a fully-deferred suspension coupled with supervised probation will afford respondent the opportunity to correct the problems which caused her misconduct, while at the same time protecting the public from future misconduct. See, e.g., In re: Cicardo, 04-0828 (La.7/2/04), 877 So.2d 980 (fully deferred one-year suspension, subject to a two-year period of probation, imposed upon an attorney who kept personal funds in his client trust account, which he then borrowed on occasion to fund his operating account; no actual harm to clients or third parties). Consistent with this jurisprudence, we will fully defer the suspension and place respondent on supervised probation for two years subject to the conditions recommended by the board.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Kathleen M. Wilson, Louisiana Bar Roll number 28836, be and she hereby is suspended from the practice of law for a period of one year and one day, fully deferred, followed by a two-year period of supervised probation governed by the terms and conditions set forth in the disciplinary board’s report. The probationary period shall commence from the date respondent, the ODC, and the probation monitor execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

       Chief Justice Kimball not participating in the opinion.

      . At present, Rule 1.15(f) of the Rules of Professional Conduct prohibits a lawyer from using a debit card (or ATM card) to withdraw funds from a client trust account. However, this provision was not added to the rule until January 2010, after the transactions at issue in the formal charges.

      . Respondent settled the Theron Morris case on December 5, 2007 and withheld $1,216.67 to pay Dr. Clifton, but he did not receive the funds until March 30, 2009. In the Tony Colar case, respondent settled the matter on March 20, 2008 and withheld $1,200 to pay Dr. Clifton, but he did not receive the funds until April 27, 2009. In the Henry Gardner case, respondent settled the matter on March 26, 2008 and withheld $1,298 to pay Dr. Clifton, but he did not receive the funds until April 13, 2009. The clients in all three matters promptly received their portion of the settlement funds.

      . The board noted that in one client matter, respondent was paid $1,500 for attorney's fees and filing fees; however, there was no corresponding deposit into her trust account for the filing fees, which were paid by a check drawn on the trust account.

      . Although respondent had reached an agreement with Dr. Clifton that she could delay payment of the funds, the board noted that only the client, not a third party, is able to agree to something other than prompt payment of third-party funds under Rule 1.15(d).

      . The board rejected the committee's conclusion that refusal to acknowledge the wrongful nature of the conduct and substantial experience in the practice of law are applicable as aggravating factors. First, the board explained that there is no evidence in the record showing respondent refused to concede that her conduct was wrong. Second, the board noted that at the time of the misconduct, respondent had been practicing law for approximately six years (admitted 2003). The board explained that while this does not qualify respondent for the mitigating factor of "inexperience in the practice of law,” it does not establish she had "substantial” experience.

      . These conditions are as follows: (1) Regular quarterly audits of respondent's IOLTA account shall be submitted to the ODC during the period of probation to be performed by a CPA of respondent's choosing, approved by the ODC, with the costs and expenses of the audits to be paid by respondent; (2) At least six hours of respondent's mandatory CLE requirements during the probationary period shall be in the area of law practice management/client trust account management; (3) Respondent must successfully complete both the Louisiana State Bar Association’s Ethics School and Trust Accounting Program during the probationary period; and (4) Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.

      .Respondent violated this rule by allowing her husband, a non-lawyer, to authorize a debit card transaction from her client trust account. However, the May 2009 debit card transactions did not otherwise violate Rule 1.15(f) as it was in effect at the time of the misconduct. See note 1, supra.


author: PER CURIAM.

text:
    In re Sheridan X. COOPER.
    No. 2012-B-0599.
    Supreme Court of Louisiana.
    June 15, 2012.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

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

FORMAL CHARGES

Respondent represented two clients in a personal injury matter arising out of an automobile accident. In December 2007, respondent referred the clients to Dr. George Van Wormer for treatment of their injuries, and she provided him with letters guaranteeing payment of the medical expenses upon settlement of the pending claims. Nevertheless, upon receiving the clients’ settlement funds in the summer of 2008, respondent failed to promptly pay the medical expenses to Dr. Van Wormer, totaling $6,400. Respondent also failed to maintain the funds due to Dr. Van Wormer in a client trust account, and instead commingled those funds with her personal funds. Respondent thereafter made various promises of 12payment to Dr. Van Wormer, but as of April 2010, he had not received any of the sums due him.

DISCIPLINARY PROCEEDINGS

In August 2010, the ODC filed one count of formal charges against respondent, alleging that her conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.15(a) (safekeeping property of clients or third persons), 1.15(d) (failure to timely remit funds to a client or third person), 1.15(g) (failure to create and maintain a client trust account), 8.4(a) (violation of the Rules of Professional Conduct), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation).

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

Hearing Committee Report

After considering the ODC’s deemed admitted submission, the hearing committee adopted the deemed admitted factual allegations of the formal charges as its factual findings. Based on those facts, the committee determined respondent violated the Rules of Professional Conduct as charged.

The committee further determined that respondent violated duties owed to her clients, the public, and the profession, and that she acted knowingly and intentionally. Her conduct has caused and continues to cause actual injury to Dr, RVan Wormer, who has been deprived of a significant amount of money for a period of nearly three years.

In mitigation, the committee recognized that respondent has no prior disciplinary record and that she was inexperienced in the practice of law at the time of her misconduct (admitted 2005). The committee also noted that respondent has expressed a desire to pay restitution, but that her continuing failure to do so constitutes the aggravating factor of indifference to making restitution.

In determining an appropriate sanction, the committee looked to Louisiana State Bar Ass’n v. Hinrichs, 486 So.2d 116 (La. 1986), which sets forth general guidelines for evaluating disciplinary cases involving conversion and commingling of funds entrusted to a lawyer. The committee observed that respondent had not displayed the degree of bad faith for which disbarment is typically reserved under Hinrichs, but that her continuing failure to pay a third-party medical provider places the baseline sanction in the range of a three-year suspension.

Considering Hinrichs, the prior jurisprudence of this court discussing similar misconduct, and the aggravating and mitigating circumstances, the committee found that a downward deviation from the baseline is warranted in this matter. Accordingly, the committee recommended that respondent be suspended from the practice of law for eighteen months. The committee also recommended that respondent be required to make full restitution to Dr. Van Wormer.

Neither respondent nor the ODC filed an objection to the hearing committee’s report. However, in its brief submitted to the disciplinary board, the ODC asserted that the eighteen-month suspension recommended by the committee “should be revised upward to a two year suspension.”

\ADisciplinary Board Recommendation

After review, the disciplinary board determined the factual allegations of the formal charges were deemed admitted and proven by clear and convincing evidence. Based on the deemed admitted facts, the board determined respondent violated the Rules of Professional Conduct as alleged in the formal charges.

The board further determined respondent violated duties owed to her clients and the profession. Respondent knowingly converted $6,400 owed to a third-party medical provider and for three years has intentionally failed to remit the funds to the provider, causing actual injury. Based on the ABA’s Standards for Imposing Lawyer Sanctions, the board determined the baseline sanction is disbarment.

In aggravation, the board found that respondent is indifferent to making restitution to Dr. Van Wormer. The board found the following mitigating factors are applicable: absence of a prior disciplinary record and inexperience in the practice of law.

Turning to the issue of an appropriate sanction, the board noted that in prior cases involving the commingling or conversion of funds owed to a third party, this court has imposed suspensions in the range of thirteen months, fully deferred, to three years, with no portion deferred. In light of these cases, the board determined that a two-year suspension is warranted for respondent’s failure to pay Dr. Van Wormer the $6,400 he is owed. Respondent has withheld these funds for nearly three years, and she has made no efforts at restitution other than promising to pay.

Under the circumstances, and considering the aggravating and mitigating factors present, the board recommended that respondent be suspended from the practice of law for two years. The board also recommended that respondent be required to make full restitution to Dr. Van Worm-er, and that she be assessed with the costs and expenses of this proceeding.

|fiNeither respondent nor the ODC filed an objection to the disciplinary board’s recommendation.

DISCUSSION

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

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

The record in this deemed admitted matter supports a finding that respondent commingled client and third-party funds with her personal funds and failed to timely pay $6,400 owed to her clients’ medical provider. Based on these facts, respondent has violated the Rules of Professional Conduct as charged by the ODC.

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).

In Louisiana State Bar Ass’n v. Hinrichs, 486 So.2d 116 (La.1986), we set forth guidelines for imposing discipline in a conversion case:

In a typical case of disbarment for violation of DR 9-102 [now Rule 1.15], one or more of the following elements are usually present: the lawyer acts in bad faith and intends a result inconsistent with his client’s interest; the lawyer commits forgery or other fraudulent acts in connection with the violation; the magnitude or the duration of the deprivation is extensive; the magnitude of the damage or risk of damage, expense and inconvenience caused the client is great; the lawyer either fails to make full restitution or does so tardily after extended pressure of disciplinary or legal proceedings.
A three year suspension from practice typically results in cases involving similar but less aggravated factors. In such cases the lawyer is guilty of at least a high degree of negligence in causing his client’s funds to be withdrawn or retained in violation of the disciplinary rule. He usually does not commit other fraudulent acts in connection therewith.
The attorney usually benefits from the infraction but, in contrast with disbarment cases, the client may not be greatly harmed or exposed to great risk of harm. The attorney fully reimburses or pays his client the funds due without the necessity of extensive disciplinary or legal proceedings.
A suspension from practice of eighteen months or two years will typically result where the facts are appropriate for a three-year suspension, except that there are significant mitigating circumstances; or where the facts are appropriate for a one-year suspension, except that there are significant aggravating circumstances.
A suspension from practice of one year or less will typically result where the negligence in withdrawing or retaining client funds is not gross or of a high degree. No other fraudulent acts are committed in connection with the violation of the disciplinary rule. There is no serious harm or threat of harm to the client. Full restitution is |7made promptly, usually before any legal proceeding or disciplinary complaint is made.

Hinrichs, 486 So.2d at 122-123 (citations omitted).

The deemed admitted facts in this case establish that respondent received settlement funds on behalf of two clients in the summer of 2008. She deposited these funds into her personal checking account because she did not have a client trust account. Thereafter, she disbursed her clients’ portion of the funds to them and withdrew from her account in cash the sum of $6,400 owed to the clients’ medical provider, Dr. Van Wormer. As of May 2011, Dr. Van Wormer’s bill has not been paid.

Given these facts, we find this case falls on the higher end of the Hinrichs range, i.e., disbarment or a three-year suspension. Nevertheless, considering that there are substantial mitigating factors present, as compared to a single aggravating factor, we agree with the board that a downward deviation to a two-year suspension is appropriate.

Accordingly, we will accept the recommendation of the disciplinary board and suspend respondent from the practice of law for two years. We will also order respondent to pay full restitution to Dr. Van Wormer.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Sheridan X. Cooper, Louisiana Bar Roll number 30184, be and she hereby is suspended from the practice of law for a period of two years. It is further ordered that respondent shall pay restitution to Dr. George Van Wormer in the amount of $6,400 plus legal interest. 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.

      . Respondent admitted in her sworn statement that she did not actually have a client trust account in 2008. Rather, she deposited the settlement checks into her personal checking account, disbursed the settlement funds due to her clients, and withdrew the $6,400 due to Dr. Van Wormer in cash. Respondent testified that she intended to open a trust account with the cash, and in turn write a check to Dr. Van Wormer drawn on that account; however, she was unable to do so before she was forced to evacuate New Orleans ahead of Hurricane Gustav. Respondent further claims that she took the cash with her when she left the city and that the money was either lost or stolen by a family member during the evacuation.

      . In its deemed admitted submission on sanctions, the ODC noted that in May 2011, Dr. Van Wormer confirmed that he had still not received any payments from respondent.


text:
    In re Joseph F. LaHATTE, Jr.
    No. 2012-OB-1060.
    Supreme Court of Louisiana.
    June 15, 2012.
   ORDER

_JjThe Office of Disciplinary Counsel (“ODC”) has filed formal charges against respondent alleging that he engaged in the unauthorized practice of law after he was suspended by this court and engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation. Respondent now seeks to permanently resign from the practice of law in lieu of discipline. The ODC has concurred in respondent’s petition.

Having considered the Petition for Permanent Resignation from the Practice of Law filed by Joseph F. LaHatte, Jr., Louisiana Bar Roll number 8102, and the concurrence thereto filed by the ODC,

IT IS ORDERED that the request of Joseph F. LaHatte, Jr. for permanent resignation in lieu of discipline be and is hereby granted, pursuant to Supreme Court Rule XIX, § 20.1 and Rule 5.5 of the Rules of Professional Conduct.

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

FOR THE COURT:

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


text:
    STATE of Louisiana in the Interest of A.M., L.M., and M.M.
    No. 2012-CJ-0799.
    Supreme Court of Louisiana.
    June 15, 2012.
   PER CURIAM.

_JjIn this matter, relator, the Mental Health Advocacy Service/Child Advocacy Program, seeks review of a judgment of the court of appeal affirming a judgment of the juvenile court dismissing relator’s petition to terminate the parental rights of C.M. and S.M., the parents of A.M., L.M., and M.M. Based on our review of the record, and considering the unique circumstances of this case, we conclude relator produced sufficient evidence to establish that C.M. and S.M. failed to substantially comply with their case plans for purposes of La. Ch.Code art. 1015(5). In light of the parents’ history of limited compliance with their case plans, and given their current incarcerated status, we find the formulation of additional case plans would not further the goal of reunification, and would result in the children remaining in foster care for an indefinite period of time, contrary to their best interests. See State ex rel. J.M., 02-2089, p. 9 (La.1/28/03), 837 So.2d 1247, 1257 (“[fjorcing children to remain in foster care indefinitely, when there is no hope of reuniting them with their families, runs afoul of the state and federal mandates to further the best interests of the child”).

Accordingly, the writ is granted. The judgment of the court of appeal is reversed. Judgment is hereby rendered terminating the parental rights of S.M. and C.M., and freeing A.M., L.M., and M.M. for adoption.

WEIMER, J., dissents and would deny.


text:
    In re Bernadette Rocco LEE.
    No. 2012-OB-0862.
    Supreme Court of Louisiana.
    June 15, 2012.
   PER CURIAM.

11 This matter arises from a pending disciplinary proceeding against respondent arising in part from her actions in a domestic relations case. In connection with the hearing in this matter, the hearing committee, upon joint motion of the parties, issued a protective order to seal the reports of certain experts in the domestic suit. The protective order was subsequently deemed to include the entire hearing transcript, all of the exhibits introduced by the parties, and a significant portion of the report issued by the hearing committee. Warren Treme, a non-party to the disciplinary proceeding but a party to the underlying domestic matter, now seeks review of the protective order, arguing it is overbroad and unduly impedes the public’s access to the record. In the exercise of our original jurisdiction over bar discipline matters, we ordered the disci-plinaiy board to file a response to Mr. Treme’s pleading and directed that the disputed portions of the record be filed under seal in this court for in camera review.

DISCUSSION

Supreme Court Rule XIX, § 16(B) provides that upon the filing and service of formal charges, as in the instant case, “the proceeding is public.” However, Supreme Court Rule XIX, § 16(C) provides that “[i]n order to protect the interests 12of a complainant, witness, third party, or respondent, the hearing committee to which a matter is assigned may, upon application of any person and for good cause shown, issue a protective order prohibiting the disclosure of specific information otherwise privileged or confidential and direct that the proceedings be conducted so as to implement the order, including requiring that the hearing be conducted in such a way as to preserve the confidentiality of the information that is the subject of the application.”

Viewing these two provisions together, it is obvious that there is some tension between the desire for public disciplinary proceedings and the need to keep certain sensitive information confidential. This court has never addressed that delicate balance in the context of a disciplinary proceeding. However, our opinions in other contexts have emphasized the importance of narrowly tailoring the protective order to ensure that the impact of public access is minimized. See Copeland v. Copeland, 07-0177 (La.10/16/07), 966 So.2d 1040 (holding that the entire record of a custody matter must be unsealed, with only very limited and specific information redacted for the safety and protection of the parties’ minor children); Copeland v. Copeland, 06-1023 (La.6/2/06), 930 So.2d 940 (holding that a court entering a protective order “must ensure that its order is narrowly tailored to cause the least interference possible with the right of public access”); see also State v. Birdsong, 422 So.2d 1135 (La.l982)(explaining that there “is a strong societal interest in public trials”).

Applying this reasoning to the instant case, we find the protective order entered by the hearing committee (and enlarged by the disciplinary board) is over-broad. While there is justification for sealing certain portions of the record directly addressing sensitive information in the underlying domestic proceeding, our in camera review reveals that the protective order in this matter seals large portions of the record which have little relation to this sensitive information. We | sfind the privacy interests of the parties to the domestic proceeding can be protected in a less restrictive manner which will not unduly impede the public’s access to the record. Accordingly, we hereby order that the record of these proceedings shall be unsealed, with the exception of the reports of the reunification counselor and the court-appointed custodial evaluator in the domestic suit. Any references to the reports in the recommendations prepared by the hearing committee and the disciplinary board, or in the transcripts, pleadings, and exhibits, shall remain unsealed.

DECREE

For the reasons assigned, the protective order issued in this matter is maintained insofar as it seals the reports of the reunification counselor and the court-appointed custodial evaluator in the domestic suit. In all other respects, the protective order is vacated.

       Chief Justice Kimball not participating in the opinion.

      . The hearing committee has recommended that the formal charges against respondent be dismissed. The matter is currently under review by the disciplinary board.

      . On March 1, 2012, the disciplinary board further enlarged the protective order to include numerous pages (or portions of pages) of the pre-hearing memoranda filed by respondent and the ODC.


text:
    Patricia BOURQUE v. ESSEX INSURANCE CO., et al.
    No. 2012-C-0810.
    Supreme Court of Louisiana.
    June 15, 2012.
   PER CURIAM.

|!After a trial by jury, the jury responded in the negative to the following interrogatory: “[d]o you find, by a preponderance of the evidence, that an accident occurred on or about August 19, 2002, injuring the plaintiff, Patricia Bo-urque?” Plaintiff appealed. Although plaintiff did not object to the jury interrogatory in the trial court, or assign it as error in the court of appeal, a majority of the court of appeal, over dissents from two judges, concluded the jury instruction contained a “plain and fundamental error,” necessitating de novo review of the record. Based on its de novo review, the court of appeal rendered judgment in favor of plaintiff. Defendants now seek relief in this court.

We see nothing in the jury interrogatory which is ambiguous, misleading, confusing, or legally incorrect. Cf. Wegener v. Lafayette Ins. Co., 10-0810, p. 14, n. 10 (La.3/15/11), 60 So.3d 1220, 1230 (finding jury interrogatories misstated the law, and thus constituted plain and fundamental error). Rather, the jury’s answer to the interrogatory clearly reveals the jury concluded plaintiff did not satisfy her burden of establishing that an injury-producing accident occurred. This conclusion is not manifestly erroneous.

Accordingly, the writ is granted. The judgment of the court of appeal is reversed, and the jury verdict is' reinstated.

JOHNSON, J., dissents.


author:
PER CURIAM.
     CLARK, Justice,

text:
    In re Kimberly Marie RICHARDSON.
    No. 2012-B-1213.
    Supreme Court of Louisiana.
    June 15, 2012.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

hThe Office of Disciplinary Counsel (“ODC”) commenced, an investigation into allegations that respondent signed the name of another lawyer as notary on two affidavits. Following the institution of formal charges, respondent and the ODC submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Kimberly Marie Richardson, Louisiana Bar Roll number 23552, be suspended from the practice of law for a period of one year and one day. It is further ordered that this suspension shall be deferred in its entirety and that respondent shall be placed on probation for a period of five years, subject to the conditions set forth in the petition for consent discipline. Any failure of respondent to comply with the conditions of probation may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.

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

CLARK, J., dissents and assigns reasons.

CLARK, Justice,

dissents and assigns reasons.

U would reject the petition for consent discipline. Respondent was not merely negligent in improperly notarizing the affidavit; rather, she intended to defraud by committing two counts of felony forgery. This conduct warrants a harsher sentence than a suspension that is deferred in its entirety.

       Chief Justice Kimball not participating in the opinion.


text:
    In re Benjamin D. JAMES, II.
    No. 2012-OB-1304.
    Supreme Court of Louisiana.
    June 20, 2012.
   ON APPLICATION FOR ADMISSION TO THE BAR

PER CURIAM.

|, After reviewing the evidence and considering the law, we conclude petitioner, Benjamin D. James, II, is eligible to be conditionally admitted to the practice of law in Louisiana, subject to the following conditions:

1. Petitioner must execute a new five-year recovery agreement with the Lawyers Assistance Program (“LAP”).

2. The period of this conditional admission shall coincide with the period of petitioner’s LAP agreement. However, petitioner’s conditional admission status shall not be terminated until this court so orders.

3. Petitioner shall be responsible for ensuring that monthly reports of his progress and participation in LAP are forwarded to the Office of Disciplinary Counsel (“ODC”).

4. Upon the expiration of the term of petitioner’s LAP agreement, the Executive Director of LAP shall forward to the ODC (a) a final report of petitioner’s progress and participation in LAP, and (b) a recommendation regarding the need for petitioner’s continued participation in LAP.

5. Following receipt of the report from LAP, the ODC shall file a report in this court in which it shall recommend whether the conditional admission shall be allowed to terminate or shall be extended.

|26. Petitioner shall cooperate with LAP and the ODC, and shall comply with any and all requirements imposed upon him by LAP and the ODC.

Should petitioner fail to make a good faith effort to satisfy these conditions, or should he commit any misconduct during the period of probation, his conditional right to practice may be terminated or he may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement.

CONDITIONAL ADMISSION GRANTED.

       Chief Justice Kimball not participating in the opinion.


text:
    William ODDO, Jr. v. ASBESTOS CORPORATION LTD., et al.
    No. 2012-CC-1398.
    Supreme Court of Louisiana.
    June 20, 2012.
   PER CURIAM.

11 Considering the unique facts of this case, we find the district court abused its discretion in denying relator’s motion for continuance. Accordingly, the writ is granted, the judgment of the district court is reversed, and the case is remanded to the district court, which is instructed to grant relator’s motion for continuance.

KNOLL, J., would deny.


text:
    In re Lewis B. BLANCHE.
    No. 2012-B-0552.
    Supreme Court of Louisiana.
    June 22, 2012.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

| j This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Lewis B. Blanche, an attorney licensed to practice law in Louisiana but currently on interim suspension based upon his conviction of a serious crime. In re: Blanche, 10-2256 (La.11/9/10), 47 So.3d 406.

FORMAL CHARGES

Count I

On April 21, 2010, respondent was charged by bill of information, filed in the 19th Judicial District Court for the Parish of East Baton Rouge under docket number 04-10-0595, with creating and operating a clandestine laboratory for the unlawful manufacture of a controlled dangerous substance, a felony, in violation of La. R.S. 40:983. He was also charged with possession of methamphetamine, a felony, in violation of La. R.S. 40:967(C). On June 3, 2010, respondent was charged in a separate bill of information, filed in the same court under docket number 06-10-0155, with an additional charge of creating or operating a | clandestine laboratory for the unlawful manufacture of a controlled dangerous substance.

On June 3, 2010, respondent pleaded guilty to all charges in both 04-10-0595 and 06-10-0155. On August 18, 2010, in docket number 04-10-0595, respondent was sentenced to serve fifteen years at hard labor for the first charge to run consecutive with five years at hard labor for the second charge. The court suspended execution of the sentence and placed respondent on active, supervised probation for five years with special conditions, including the requirement that he enter the Right Turn of Maryland Alcohol and Drug Treatment Facility by August 20, 2010 and successfully complete the program. In docket number 06-10-0155, respondent was sentenced to serve fifteen years at hard labor to run consecutive with the sentence in docket number 04-10-0595. Again, the court suspended execution of the sentence and placed respondent on active, supervised probation for five years, to run concurrent with the probationary period in docket number 04-10-0595.

The ODC alleged respondent’s conduct violated Rule 8.4(b) (commission of a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer) of the Rules of Professional Conduct.

Count II

As a result of an incident that occurred on or about March 5, 2004, respondent was charged with speeding and first offense DWI. On August 31, 2004, respondent pleaded guilty to the DWI charge, and the speeding charge was dismissed. The court deferred sentencing for one year and, instead, placed respondent on bench probation with special conditions, including fines, the requirement that he refrain from other criminal conduct, and community service.

| ¡¡Respondent was given notice to return to court on December 7, 2004 to show proof of payment of court costs and fines and compliance with the conditions of his probation. However, respondent failed to appear, and a bench warrant was issued for his arrest. The next day, respondent appeared in court to answer the bench warrant, and the warrant was recalled. The court then changed respondent’s probation from unsupervised to active supervised with the following special conditions: 1) respondent must obtain a substance abuse evaluation; 2) respondent must be drug tested that day; 3) respondent must submit to random drug testing; 4) respondent must not change addresses without the approval of his probation officer or the court; and 5) respondent must refrain from any mood altering substances and alcohol.

On December 21, 2004, respondent appeared in court for a probation review and was ordered to immediately submit to drug testing. When the test came back positive for drug use, the court added more special conditions to respondent’s probation, including the requirement that he enroll in a detoxification center and undergo inpatient substance abuse treatment.

The ODC alleged respondent’s conduct violated Rule 8.4(b) of the Rules of Professional Conduct.

Count III — The Cross Matter

In November 2003, Andrew Gross hired respondent to defend his company, Radiation Technical Services (“RTS”), against a civil lawsuit in which Temco Temporaries, Inc. (“TTI”) claimed that RTS owed it approximately $4,000 for work performed by its temporary laborers. Respondent failed to timely or properly file a response to TTI’s request for admissions. He also failed to appear for a hearing, resulting in the granting of TTI’s motion for summary judgment, and failed to timely appeal the judgment.

[¿Subsequently, TTI’s petition for garnishment of RTS’s bank account was served on respondent. However, respondent failed to notify Mr. Gross of the petition and failed to file a timely answer. Consequently, in April 2004, the amount of $5,884.67 was garnished from RTS’s bank account, causing various checks drawn on the account to be dishonored. In July 2004, a second garnishment citation was served on RTS through respondent, and respondent again failed to answer or inform Mr. Gross of the situation.

Respondent admitted the allegations of misconduct and informed the ODC that he attempted to mitigate the damage to RTS and Mr. Gross by offering to pay Mr. Gross the amount of TTI’s judgment that he felt was reasonably contested.

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) and 1.4 (failure to communicate with a client).

DISCIPLINARY PROCEEDINGS

In January 2011, the ODC filed formal charges against respondent. Respondent failed to answer the formal charges. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the hearing committee’s consideration.

Hearing Committee Report

After considering the ODC’s deemed admitted submission, the hearing committee found that respondent, on two separate occasions, violated felony | .^provisions of Title 40 of the Louisiana Revised Statutes. Respondent pleaded guilty to all charges, conclusively establishing his guilt. But for respondent’s apparent willingness to participate in an inpatient drug rehabilitation program, he likely would be incarcerated today. Respondent also pleaded guilty to a DWI charge, conclusively establishing his guilt in that matter.

In the Gross matter, respondent admitted that he violated a duty owed to Mr. Gross by failing to diligently represent Mr. Gross or keep him informed about the status of his legal matter. The complaint and supporting documents in the Gross matter, along with respondent’s admission, establish a violation of the Rules of Professional Conduct by clear and convincing evidence.

Based on these facts, the committee determined that respondent violated the Rules of Professional Conduct as alleged in the formal charges. The committee further determined that respondent violated duties owed to his client, the public, the legal system, and the legal profession. Respondent acted intentionally with respect to the felony drug convictions; he acted knowingly with respect to the DWI conviction; and he acted negligently with respect to the Gross matter. After reviewing the ABA’s Standards for Imposing Lawyer Sanctions, the committee determined that the applicable baseline sanction in this matter is disbarment.

In aggravation, the committee found multiple offenses and illegal conduct, including that involving the use of controlled substances. In mitigation, the committee found only the absence of a prior disciplinary record. The committee noted that it did not find the mitigating factor of chemical dependency because it had “no information upon which to conclude that [respondent] has been successfully rehabilitated from any chemical dependency or that the recurrence of the misconduct is unlikely.”

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

lfiIn response to the committee’s report, respondent submitted documentation to the disciplinary board evidencing his successful completion of the 28-day inpatient treatment program and the halfway house program at the Right Turn of Maryland. The documentation further indicated that respondent was diagnosed with opiate dependence and cocaine abuse, but that he had been drug-free since his admission to the Right Turn of Maryland on August 20, 2010.

Respondent thereafter appeared at oral argument conducted in this matter by a panel of the disciplinary board. There, he spoke to his past misconduct and his current path to recovery. Respondent also explained that he had recently completed more than a year of in-house substance abuse treatment.

Disciplinary Board Recommendation

After reviewing the record of this deemed admitted matter, the disciplinary board found that respondent violated the Rules of Professional Conduct as charged in the formal charges. The board determined that respondent knowingly and intentionally violated duties owed to the legal system and the legal profession. His misconduct caused actual harm to the legal profession and serious potential harm to the public. The board agreed with the committee that the applicable baseline sanction is disbarment.

In aggravation, the board found multiple offenses and illegal conduct, including that involving the use of controlled substances. In mitigation, the board found the following factors: absence of a prior disciplinary record, personal or emotional problems, full and free disclosure to the disciplinary board and a 17cooperative attitude toward the proceedings, imposition of other penalties or sanctions, and remorse. In addition, considering respondent’s testimony before the board panel, which was found to be “compelling and credible,” the board agreed that the mitigating factor of chemical dependency is present, and that respondent “is well on his way to living a healthy and productive life.”

Based upon the weight of the mitigating factors, most notably respondent’s successful recovery from chemical dependency and his ongoing treatment, the board recommended that respondent be suspended from the practice of law for three years, retroactive to November 9, 2010, the date of his interim suspension. The board further recommended that respondent be required to execute a recovery agreement with the Lawyers Assistance Program (“LAP”).

Although neither respondent nor the ODC filed an objection to the board’s recommendation, on May 23, 2012, we ordered briefing addressing the issue of an appropriate sanction. Both respondent and the ODC 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.

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

The record reveals that respondent was convicted of three drug- and alcohol-related criminal offenses and that he neglected a legal matter and failed to communicate with his client. Based on these facts, respondent has violated the Rules of Professional Conduct as alleged in the formal charges.

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).

Respondent knowingly violated duties owed to his client, the public, the legal system, and the profession. His misconduct caused actual harm to his client and the legal profession. Considering the pri- or eases of this court, as well as the ABA’s Standards for Imposing Lawyer Sanctions, the baseline sanction in this matter is disbarment.

The only aggravating factors present are multiple offenses and illegal conduct. The record supports the following mitigating factors: absence of a prior disciplinary record, personal or emotional problems, timely good faith effort to make restitution or to rectify the consequences of the misconduct, full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, mental disability or chemical dependency, including alcoholism or drug abuse, imposition of other penalties or sanctions, and remorse.

lain determining the appropriate sanction in this case, we begin with the well-recognized proposition that chemical dependency may cause a lawyer to commit acts of professional misconduct that would not have occurred but for his impairment. Louisiana State Bar Ass’n v. Longenecker, 538 So.2d 156,163 (La.1988) (on rehearing). When there is an obvious causal connection between the substance abuse and the misconduct, and the lawyer has made meaningful efforts to address his problem, we have often chosen to impose a more lenient sanction than would otherwise be called for. See, e.g., In re: Williams, 10-1972 (La.1/7/11), 52 So.3d 864 (lawyer suspended from the practice of law for three years, with eighteen months deferred, for misconduct including his conviction of possession of cocaine; the lawyer’s drug addiction contributed to his misconduct, but he sought treatment and signed a LAP contract); In re: Steinhardt, 04-0011 (La.9/9/04), 883 So.2d 404 (lawyer suspended for three years, with two years deferred, following her conviction of possession of marijuana; the mitigating circumstances included her successful recovery from her marijuana addiction and her entry into a recovery agreement with LAP); In re: Doyle, 07-2015 (La.4/4/08), 978 So.2d 904 (baseline sanction for the lawyer’s misconduct, including conversion of client and third-party funds, was unquestionably disbarment, but the mitigating circumstances surrounding his successful recovery from an addiction to drugs and alcohol warranted a downward deviation from the baseline to a three-year suspension).

Here, it is abundantly clear that respondent’s misconduct (his drug- and alcohol-related criminal convictions as well as his neglect of a client matter) is directly related to his substance dependence. However, we find that respondent has demonstrated a meaningful and sustained period of successful rehabilitation from his chemical dependency, and that his recovery has made a recurrence of his misconduct very unlikely. Notably, since completing the treatment and aftercare | mprograms at the Right Turn of Maryland, respondent has been drug-free for nearly two years. Respondent has also voluntarily entered into a recovery agreement with the Maryland LAP program, and the director of the program reports that respondent’s performance under the agreement has been exemplary to date.

Under these circumstances, the ABA’s Standards for Imposing Lawyer Sanctions emphasizes that “the greatest weight” should be assigned to the mitigating factor of chemical dependency. We conclude that this mitigating factor, along with the other such factors present in this case, justifies a lengthy suspension, rather than disbarment.

Accordingly, we will accept the disciplinary board’s recommendation and suspend respondent from the practice of law for three years, retroactive to the date of his interim suspension.

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 Lewis B. Blanche, Louisiana Bar Roll number 27383, be and he hereby is suspended from the practice of law for three years, retroactive to November 9, 2010, the date of his interim suspension. 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.

      . In 2005, this court transferred respondent to disability inactive status. In re: Blanche, 05-0116 (La. 1/26/05), 892 So.2d 580. In 2010, the court transferred respondent back to active status and simultaneously interimly suspended him from the practice of law. In re: Blanche, 10-2255 (La.11/9/10), 47 So.3d 405.

      . Respondent completed the inpatient treatment program on September 16, 2010, and completed the halfway house program on September 19, 2011. At present, respondent still resides at the Right Turn facilities.

      . The board additionally found an uncharged violation of Rule 8.4(a) (violation of the Rules of Professional Conduct) as a result of respondent’s violation of Rules 1.3, 1.4, and 8.4(b) of the Rules of Professional Conduct. While the board is correct that respondent’s violation of the rules charged in the formal charges also means that he violated Rule 8.4(a), we note that such a finding adds nothing to the analysis of this matter.

      . In response to the board's recommendation that he be required to enter into a LAP contract, respondent has attached documentation to his brief filed in this court evidencing his participation in the LAP program in Maryland, where he currently resides. We encourage respondent to continue to avail himself of the resources of the Maryland LAP, or to contact the Louisiana LAP director if he decides to return to Louisiana. In either event, this court will carefully review respondent's efforts at rehabilitation if and when he applies for reinstatement after serving his suspension. See Supreme Court Rule XIX, § 24(E)(3).


text:
    STATE of Louisiana v. Walter D. SOLOMON.
    No. 2012-K-0202.
    Supreme Court of Louisiana.
    June 22, 2012.
   PER CURIAM.

11 Granted in part. The court of appeal correctly found that defendant was not entitled to withdraw his guilty plea on the basis of the present record which does not adequately explain what defendant meant when he inquired whether he was entering his guilty plea and admission to his habitual offender status “under the 572.” However, given the ambiguity, defendant’s claim that a misunderstanding with respect to his eligibility for early release on good time credits even after he was adjudicated and sentenced as a habitual offender under La.R.S. 15:529.1, is referred to post-conviction proceedings in which the district court may conduct evidentiary proceedings with respect to what the parties understood at the time defendant entered his guilty plea and whether any misunderstanding with respect to eligibility for early release on good time credits vitiated the voluntariness of the guilty plea. See State ex rel. Miles v. State, 02-1843 (La.9/5/03), 855 So.2d 732 (“The district court is ordered to appoint counsel | ¡.for relator and to hold a hearing at which it will determine whether misinformation with regard to relator’s eligibility for diminution of sentence pursuant to La.R.S. 15:571.3 (‘good time’) constituted a material inducement for his guilty plea ... which precluded relator from entering a knowing and voluntary guilty plea with eyes open ... and entitles him to withdraw that plea.”) (citations and internal quotation marks omitted); cf. State v. Watson, 00-1580, p. 5 (La.5/14/02), 817 So.2d 81, 84 (reinstating defendant’s conviction and sentence reversed by court of appeal and referring claim of ineffective assistance to post-conviction proceedings in which “[a] hearing in the trial court on a properly filed petition for post-conviction relief can illuminate the record and allow the court to hear evidence relating to defendant’s claim of ineffective assistance.”).