author: SAWAYA, J.

text:
    Stephen W. HORNE, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-3157.
    District Court of Appeal of Florida, Fifth District.
    Dec. 6, 2013.

      Frank J. Bankowitz, Orlando, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   SAWAYA, J.

At the age of nineteen, Stephen Horne was interrogated by the police and became the confessed murderer of his father. Horne’s recorded (DVD) confession was played to the jury in his first-degree murder trial, and the confessed murderer became the convicted murderer. He was also convicted of robbery with a firearm and possession of a short-barreled shotgun. The question presented in this appeal is whether Horne, after he waived his Miranda rights, unambiguously reasserted his constitutional right of silence prior to making any incriminating statements. If he did, the trial court erred in denying his motion to suppress his confession, and if revealing the confession to the jury is not harmless error, then Horne is entitled to reversal of his convictions and a new trial.

In that confession, Horne revealed much about himself and his involvement with his father’s death. Horne considered his father to be a useless drug addict whom he hated because he long ago abandoned Horne and his mother. Horne’s mother was a convicted felon and had been recently released from prison. Horne lived a hardscrabble life, and although he resided with his grandmother, he was largely left to his own devices. His mode of transportation was a bicycle, he worked menial jobs, and with only an eighth-grade education, his future offered little hope for improvement. Like his father, Horne was an avid user of drugs. One day after receiving information that his father had obtained prescription narcotics, Horne lured his father from Tampa to Hernando County with the ruse that he would take his father to a place where his father would be able to sell the narcotics he had just obtained (the drugs were in pill form and had a street value of ten dollars per pill). Horne and an accomplice drove the father to an abandoned house in the accomplice’s car, and when the father got out, Horne shot him in the back with a short-barreled shotgun. As his father lay mortally wounded on the ground, Horne shot him three more times. Horne then removed $640 dollars and twenty-two pills containing narcotics from the pockets of his slain father and divided the pills and the money with the accomplice.

The confession was obtained by the police after Horne voluntarily went with them to the police station for questioning. After he waived his Miranda rights, Horne was interrogated by two detectives. Detective Loydgren began the interrogation while Detective Faulkingham monitored the proceeding from another room. The interrogation spans a time period of a little less than two and a half hours, including intermissions when Horne was left alone in the interrogation room. Horne claims he reasserted his right to remain silent prior to the first intermission, thus requiring the police to end the interrogation. We emphasize that at this point, Horne had not yet made incriminating statements about his involvement in his father’s murder. So with that introduction, we will present the pertinent part of the interrogation, supplying emphasis where appropriate:

Detective Loydgren: It doesn’t really— you know, if you’re a kid, I guess— unless you’re a convicted felon on paper. As a juvenile, I don’t know if it carries the same weight as an adult, so I’m— I’m just trying to figure out what you’re worried about with having a gun in the house. ‘Cause grandma also said she seen you with a handgun before, so that’s why I’m asking you. You’re telling me you don’t never — don’t have a gun ‘cause you’re worried about having felony charges. Well, we can — we can get past the felony charges on the gun. Obviously you had shotgun shells given to you. You have ammunition. You’ve got a shotgun that you had that was your buddy’s, you’re saying. I’m sure that we’re talking about the same shotgun.
Defendant: I’m done talking.
Detective Loydgren: Okay.
Defendant: I don’t know where this is leading to.
Detective Loydgren: You don’t know where it’s leading to?
Defendant: Um—
Detective Loydgren: Okay. Well, if I told you I had a few guys out at your house right now and we’re gonna execute a search warrant at your house—
Defendant: That’s fine.
Detective Loydgren: Okay. That’s fine. I’m just letting you know. You haven’t talked to your father, right?
Defendant: Last night I talked to him. I’m done talking.
Detective Loydgren: Okay.
Defendant: Can I go home now?
Detective Loydgren: Not right yet. You don’t want to talk to me anymore then? [At this point, Horne leaned back in his chair with his arms folded on his chest, looked directly at the Detective, and clearly shook his head no. But the Detective continued.] Okay. You know — you know what I find amazing, though? You haven’t once asked me about your father since you’ve been in here.
Defendant: I’ve been trying. You keep cutting me off.
Detective Loydgren: I haven’t cut you off. About that — I apologize if I cut you off about that. I just said you talk to him—
Defendant: I keep asking — why you keep asking me about my dad? I’m done.
Detective Loydgren: Okay. Well, I’ll let you sit here for a minute. [The detective leaves the interrogation room and Horne remains alone.]

After Detective Loydgren left the interrogation room, Horne was left alone for several minutes. Detective Faulkingham subsequently entered the room with Horne to commence part two of the interrogation. Remember that Detective Faulkingham had been watching the initial interrogation in another room, so he knew what had previously transpired regarding Horne’s repeated statements that he was “done talking” and wanted to go home. This appears to be part of a strategy where a switch of interrogators and some time alone for Horne to contemplate his crime might prompt him to change his mind about exercising his right to silence and yield a more forthcoming statement from him. The following pertinent discussion took place right after Detective Faulking-ham entered the room:

Detective Faulkingham: Hey, man. How you doing?
Defendant: (Indiscernible).
Detective Faulkingham: Huh?
Defendant: All right.
Detective Faulkingham: Tired? Yeah, me, too.
Defendant: I wanna go home.
Detective Faulkingham: Yeah. All right. Hey, obviously there — there’s some important things going on here. That’s why we asked you to come down here. That’s why I drove all the way out there, gave you a ride here. Detective Loyd-gren, the — the guy you were just talking to, has all the details, you know, about what’s going on, and we want to be able to discuss all that with you.
Defendant: I’m done talking.
Detective Faulkingham: Okay. Don’t you want to know what’s going on or anything like that? I mean—
Defendant: Hum?
Detective Faulkingham: Well, you’re not worried about your dad?
Defendant: I spent all day calling my father.

No sooner than Detective Faulkingham entered the room and greeted Horne, Horne stated, “I want to go home” and “I’m done talking.” Despite unambiguously reasserting his right to silence with Detective Faulkingham (who observed Horne’s prior reassertions to Detective Loydgren), Detective Faulkingham continued to interrogate Horne. Ultimately, Horne discussed the murder of his father and eventually admitted that he bought the shotgun and shot his father with it four times.

Horne contends that when he stated several times that he was “done talking” and wanted to go home, he unambiguously reasserted his right to remain silent, thus requiring the police to end the interrogation. The constitutional right to remain silent, as set forth in the Fifth Amendment to the United States Constitution and article I, section nine, of the Florida Constitution, is guaranteed to every citizen charged with a crime. Despite its constitutional status, this right may be waived, provided the waiver is “voluntarily, knowingly and intelligently” given. Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Horne properly waived his right of silence before the interrogation commenced and he does not contend otherwise. But waiver of that right does not mean that it completely vanishes, never again to reappear. Once waived, a defendant may reassert his right of silence at any time, even in the midst of a police interrogation, and bring a halt to the questioning. Deviney v. State, 112 So.3d 57, 74 (Fla.2013); Braddy v. State, 111 So.3d 810, 830 (Fla.2012); Martin v. State, 107 So.3d 281, 294-95 (Fla.2012); Cuervo v. State, 967 So.2d 155, 162 (Fla.2007).

An individual accused of a crime, especially an accused in the crucible of intense questioning by trained interrogators in the confínes of a police station interrogation room, is not required to reassert his right to remain silent with precise formulation of words or actions. See Deviney; Pierre v. State, 22 So.3d 759, 767 (Fla. 4th DCA 2009). The question that most often arises is how and when does an accused reassert his right to remain silent. The courts have told us. In Miranda, the Court explained that “[i]f the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.” Miranda, 384 U.S. at 473-74, 86 S.Ct. 1602 (footnote omitted). Despite the rather broad terminology “in any manner,” the court in Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994), declared, albeit in the context of the right to counsel, that reassertion of the right once waived must be unambiguous. Davis, 512 U.S. at 459, 114 S.Ct. 2350. Davis was followed by Berghuis v. Thompkins, 560 U.S. 370, 130 S.Ct. 2250, 176 L.Ed.2d 1098 (2010), where the Court extended the unambiguous requirement pronounced in Davis to instances where a defendant reasserts his right to remain silent, explaining that “[t]here is no principled reason to adopt different standards for determining when an accused has invoked the Miranda right to remain silent and the Miranda right to counsel .... ” Berghuis, 560 U.S. at 371, 130 S.Ct. 2250. We note that prior to Berghuis, the Florida Supreme Court in State v. Owen, 696 So.2d 715, 717-18 (Fla.1997), applied Davis and its unambiguous requirement to assertions of the right to remain silent. See also Martin, 107 So.3d at 293-94 (repeating that the Davis rationale equally applies to the right to remain silent).

In its most recent decisions, the Florida Supreme Court speaks in terms of “unequivocal or unambiguous” so that invocation of the right previously waived must constitute “an unequivocal or unambiguous request to terminate an interrogation in order to reassert those rights.” Braddy, 111 So.3d at 830 (citation omitted); see also Martin, 107 So.3d at 296 (“[A]n invocation of one’s right to remain silent must be made in clear and unequivocal terms if it follows a previous, knowing and voluntary waiver of one’s Miranda rights.” (citations omitted)). “Unequivocal or unambiguous” means that while a defendant need not “ ‘speak with the discrimination of an Oxford don,’ ” he must clearly state his intention so that a reasonable police officer would understand the defendant’s desire to reassert his right to remain silent. Davis, 512 U.S. at 459, 114 S.Ct. 2350 (quoting Souter, J., concurring in judgment); see also Braddy, 111 So.3d at 830 (“A revocation ‘is unambiguous if a reasonable police officer under the circumstances would understand that the suspect is invoking the right.’ ” (quoting Womack v. State, 42 So.3d 878, 883 (Fla. 4th DCA 2010))); Martin, 107 So.3d at 295 (explaining that the proper standard is whether “ ‘a reasonable police officer in the circumstances would understand the statement to be an assertion of the right to remain silent.’ ” (quoting Coleman v. Singletary, 30 F.3d 1420, 1424 (11th Cir.1994))). Once a defendant makes an unequivocal or unambiguous reassertion of his right to silence, the police must scrupulously honor that right and stop the interrogation. Miranda; Braddy; Martin.

When Horne told Detective Loyd-gren “I’m done talking” and asked “Can I go home now?,” Horne made an unequivocal and unambiguous assertion of his right to remain silent and to stop all questioning. It is also clear that Detective Loyd-gren understood Horne’s statement as an invocation of the right to remain silent, a fact demonstrated by Detective Loyd-gren’s query ‘You don’t want to talk to me anymore then?,” followed by Horne clearly shaking his head no, followed by the detective stating “Okay.” And within seconds Horne again stated, “I’m done.” It is also relevant that within seconds of Horne’s last statement “I’m done,” Detective Loyd-gren ceased questioning and left the room, leaving Horne alone in silence. Dixon v. State, 72 So.3d 171, 176 (Fla. 4th DCA 2011) (finding detective’s statement to “hear me out, since you don’t want to talk about the house I’ll talk about the house, so you just hear me out, I’m not gonna ask you any questions,” indicated detective’s understanding that defendant wanted questioning to cease after defendant expressed his desire not to talk anymore); Pierre, 22 So.3d at 767-68 (Fla. 4th DCA 2009) (stating that when a detective fell silent and discontinued questioning after the defendant stated he was not going to say anything and remained silent, “[t]he only interpretation ... is that, as a reasonable police officer, [the detective] understood [the defendant’s] statement to be a demand that questioning cease”). Detective Loydgren properly terminated the interrogation only to have Detective Faulk-ingham improperly start it again without obtaining a waiver of Horne’s reasserted right of silence. What is equally telling is that within seconds after Detective Faulk-ingham entered the room, Horne once again declared, “I want to go home” and “I’m done talking.”

We conclude that the police did not scrupulously honor Horne’s unambiguous and unequivocal assertion of his right to silence and to stop the interrogation. Therefore, the trial court erred in denying Horne’s motion to suppress. Analogous cases from other courts confirm this conclusion is correct. A case strikingly similar is Deviney, where the defendant was being questioned by the police after giving his Miranda waiver. During the interrogation, the defendant stated, “I’m done. I’m ready to go home. Can I leave?” He was told he could not leave and the defendant repeated his statement, “I’m done” and renewed his request to go home. At one point the defendant got up to leave, but the police officers told him that if he attempted to leave, he would be restrained. The defendant sat down and the interrogation continued until the defendant eventually confessed to the crime. In reversing the defendant’s conviction for first-degree murder, the Florida Supreme Court held that “Deviney’s six references to the fact that he was ‘done’ with questioning represented an unequivocal invocation of his right to remain silent and end questioning.” Deviney, 112 So.3d at 77. Addressing the State’s argument that the defendant did not unequivocally indicate his intention to assert his right to remain silent because he continued to talk to the police, the court stated that “Deviney dispelled any such argument by a subsequent reiteration of his wish to end the interrogation, Tm done. I’m ready to go home. Can I leave?’ ” Id. at 78. Similarly, Horne reiterated his statement “I’m done talking” or “I’m done” four times, shook his head no when asked whether he wanted to talk to the detective, and twice requested that he be allowed to go home.

The court in Deviney found the decision in Pierre closely analogous, as do we. In Pierre, a defendant being interrogated by two detectives stated, “I’m not saying anymore” and fell silent for approximately a minute. In reversing the defendant’s conviction, the court held that this statement and silence constituted an unequivocal assertion of the defendant’s right to remain silent necessitating an end to the interrogation. But the interrogation commenced again a minute or two later and the defendant confessed to the crime. Here, the facts are even more compelling. At one point when Horne states “I’m done talking,” the officer asks, “You don’t want to talk to me anymore then?,” and Horne clearly shakes his head no. Just seconds later, Horne repeats “I’m done,” and the detective stops the interrogation and leaves the room.

The conclusion that Horne’s confession should have been suppressed does not end our analysis. In an attempt to salvage its conviction, the State argues that it was harmless error to admit the confession and reveal it to the jury. Erroneous admission of a confession into evidence is subject to a harmless error analysis. Deviney; Ross v. State, 45 So.3d 403, 434 (Fla.2010); Caso v. State, 524 So.2d 422, 425 (Fla.1988). The beneficiary of this error is the State, so it must “ ‘prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.’” Ross, 45 So.3d at 434 (quoting State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986)). We emphasize that the harmless error test does not focus on the strength of the State’s case, but on the effect of the error on the jury. Johnson v. State, 53 So.3d 1003, 1007 (Fla.2010). So even in instances where the State has produced overwhelming evidence of guilt, and we do not think we would characterize the permissible evidence considered by the jury in the instant case as overwhelming, the State may still fail to meet its burden if we determine that there was a reasonable possibility that the error affected the verdict. Johnson; Ventura v. State, 29 So.3d 1086, 1089 (Fla.2010) (holding that the lower court applied the wrong harmless error analysis when it concluded that the detective’s comments on defendant’s silence were “harmless beyond a reasonable doubt given the overwhelming evidence of guilt” (citation omitted)); DiGuilio, 491 So.2d at 1139 (cautioning that the harmless error test is not “an overwhelming evidence test”); see also Cooper v. State, 43 So.3d 42, 43 (Fla.2010) (explaining that the harmless error test “is not a strong evidence test. Rather, the test is ‘whether there is a reasonable possibility that the error affected the verdict.’ ” (quoting DiGuilio, 491 So.2d at 1139)).

During our review of the entire record, we closely examined the permissible evidence the jury could have properly relied upon in reaching its verdict, and we more closely examined the impermissible evidence (the confession), focusing on the effect of the error on the jury. DiGuilio, 491 So.2d at 1138; see also Ventura, 29 So.3d at 1089-90 (quoting DiGuilio). Our analysis reveals that the error was not harmless. In that confession, Horne told several versions of the facts, pointed the finger of blame at a third party, and finally admitted that his previous stories were lies. He then admitted that he planned the murder from beginning to end and that he was the one who shot his father. He further admitted that he did it out of hate and for money. This was by far the most damaging evidence presented in the trial, and we cannot say that the State met its burden of proving that there is no reasonable possibility that the error contributed to Horne’s conviction.

We reverse the convictions for murder, robbery, and possession of a short-barreled shotgun and remand this case for a new trial.

REVERSED AND REMANDED.

EVANDER and BERGER, JJ., concur.

      . Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


source: Caselaw Access Project

license: Public Domain

text:
    In re Gregory J. AVERY.
    No. 2012-B-0598.
    Supreme Court of Louisiana.
    Jan. 25, 2013.
   _kORDER

Considering respondent’s request for transfer to disability inactive status, the findings and recommendation of the hearing committee and the responses thereto filed by the parties, and considering the record,

IT IS ORDERED that Gregory J. Avery, Louisiana Bar Roll number 2618, be and he hereby is reinstated to active status from interim disability inactive status, pursuant to Supreme Court Rule XIX, § 22(C)(3). This order shall be effective immediately.

IT IS FURTHER ORDERED that before the court considers the merits of this disciplinary proceeding, respondent and the Office of Disciplinary Counsel shall submit written briefs addressing whether the sanction recommended by the disciplinary board is appropriate. The briefs shall be filed in this court no later than twenty days from the date of this order.

FOR THE COURT:

/s/ Jeffrey P. Victory Justice, Supreme Court of Louisiana


text:
    In re Michael A. KENNEDY.
    No. 09-OB-0020.
    Supreme Court of Louisiana.
    Feb. 5, 2013.
   _L¡ORDER

Considering the “Termination of Conditional Admission” filed by the Office of Disciplinary Counsel,

IT IS ORDERED that the probationary period imposed by this court in In re: Kennedy, 09-0020 (La.4/24/09), 8 So.3d 547, be and hereby is terminated, as the court finds petitioner has made a good faith effort to comply with all terms of probation.

NEW ORLEANS, LOUISIANA, this _day of_, 2013.

FOR THE COURT:

/s/ Bernette J. Johnson /s/ Justice, Supreme Court of Louisiana


text:
    In re Edward L. BOUDREAUX, III.
    No. 2011-OB-0201.
    Supreme Court of Louisiana.
    June 21, 2013.
   ORDER

Considering the “Termination of Conditional Admission” filed by the Office of Disciplinary Counsel,

IT IS ORDERED that the probationary period imposed by this court in In re: Boudreaux, 11-0201 (La.2/2/11), 54 So.3d 649, be and hereby is terminated, as the court finds petitioner has made a good faith effort to comply with all terms of probation.

FOR THE COURT:-

/s/ Jeffrey P. Victory /s/ Justice, Supreme Court of Louisiana


author: HUGHES, J.,

text:
    Lange Walker ALLEN, II v. Susan Taylor MARTIN.
    No. 2013-CC-0596.
    Supreme Court of Louisiana.
    June 21, 2013.
   In re Allen II, Lange Walker; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. K, Nos. 2011-15433, 2011-14151; to the Court of Appeal, First Circuit, No. 2013 CW 0120.

Denied.

VICTORY, J., would grant.

HUGHES, J., would grant and assigns reasons.

HUGHES, J.,

assigning reasons.

Respectfully, I would grant the writ application. Applicant was found guilty of contempt of court and sentenced to 30 days jail time before his scheduled hearing date on that issue, and before the judgment upon which the contempt was based was reduced to writing and signed by the trial court. Applicant had been ordered to execute a vehicle title conveying ownership (not interim use) before the merits of the partition action were heard. Applicant was ordered to pay attorney’s fees; not authorized by La. R.S. 13:4611(d). Other procedural irregularities are alleged.

Criminal contempt of court must be strictly applied upon an unequivocal basis. Notice and due process are required.


text:
    STATE of Louisiana v. Shawn GILMORE.
    No. 2013-KK-1559.
    Supreme Court of Louisiana.
    Aug. 22, 2013.
   In re State of Louisiana; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Tangipahoa, 21st Judicial District Court Div. E, No. 1100494; to the Court of Appeal, First Circuit, No. 2013 KW 0575.

Writ granted. The ruling of the trial court is reversed. We agree with Judge Kuhn’s dissent that none of the trial court’s stated reasons show that injustice has been done the defendant. Neither collectively nor individually are any of the reasons cited by the trial court grounds for granting a new trial. Accordingly, the trial court abused its discretion in granting the defendant’s motion for new trial.

JOHNSON, C.J., and HUGHES, J., would deny.


text:
    STATE of Louisiana v. Rogers LACAZE.
    No. 2013-KP-2140.
    Supreme Court of Louisiana.
    Sept. 18, 2013.
   In re State of Louisiana; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court, No. 375-992, Michael E. Kirby, J.

Writ granted. The judgment of the trial court is reversed. The trial court abused its discretion in ordering witness contact information, including the witness’s address and telephone number, be supplied to defendant, where the witness legitimately fears for her safety and defendant has no constitutional right to the witness’s information.


text:
    STATE of Louisiana v. Cleveland ROSS.
    No. 2013-KK-2069.
    Supreme Court of Louisiana.
    Sept. 18, 2013.
   In re Ross, Cleveland; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. C, No. 515-956, Benedict J. Willard, J.; to the Court of Appeal, Fourth Circuit, No. 2013-K-1181.

ORDER

Writ granted. When a search is conducted for probation violations, the State’s burden is met when it establishes that there was a reasonable suspicion that criminal activity was occurring. State v. Marino, 00-1131 (La.App. 4 Cir. 6/27/01); 804 So.2d 47, 52. Also, when evidence is seized without a warrant, the State shall have the burden of proving admissibility at the hearing on the motion to suppress. La. C. Cr. Proc. art. 704(D). Here, the State did not put on evidence that the probation officer had such reasonable suspicion, nor did it put on any evidence that the Defendant consented to the warrant-less search or that the contraband was found in plain view. Thus, the State did not meet its burden, and the trial court erred in denying the motion to suppress. The trial court’s judgment is reversed and the motion is granted.

VICTORY, J., would grant and remand to the trial court.

KNOLL, J., would deny.


text:
    STATE of Louisiana v. Rogers LACAZE.
    No. 2013-KP-2364.
    Supreme Court of Louisiana.
    Oct. 9, 2013.
   In re State of Louisiana; — Plaintiff; Applying For Stay, Parish of Orleans, Criminal District Court, Mo. 375-992.

Writ granted. The ruling of the trial court granting the defense motion to subpoena the witness’ telephone records is reversed. The trial court abused its discretion in ordering the issuance of the subpoenas. The witness’ personal information, including the telephone numbers of her friends, family and coworkers, should not be supplied to defendant, without a showing of relevancy, admissibility, and specificity of the information sought, especially, as here, where the witness fears for her safety and defendant has no constitutional right to the post-conviction discovery of the information. See State v. Marcelin, 10-2036 (La.10/15/10), 46 So.3d 191 (addressing the prerequisites for pretrial discovery and holding, “[a] far greater particularized showing than the desire to comb through records in an attempt to find something useful for trial is required to justify the court-ordered production of documents outside the scope of the reciprocal discovery provisions of La.C.Cr.P. art. 716729.6”).


author: PER CURIAM.

text:
    In re Brandi Traylor BOUTWELL.
    No. 2013-B-1309.
    Supreme Court of Louisiana.
    Oct. 11, 2013.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

_[/This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Brandi Traylor Boutwell, an attorney licensed to practice law in Louisiana but currently on interim suspension for threat of harm to the public. In re: Boutwell, 12-0379 (La.2/16/12), 82 So.3d 263.

FORMAL CHARGES

Count I — The Valentine Matter

In June 2011, Ginger Valentine hired respondent to defend her against a lawsuit. Ms. Valentine indicated that she paid respondent a $3,500 advance.

Despite being granted at least one extension of time in which to file an answer on Ms. Valentine’s behalf, respondent allowed a default judgment to be obtained against her client, which proved problematic in Ms. Valentine’s attempts to refinance her home. When Ms. Valentine was served with notice of the default judgment in early August 2011, she fired respondent and hired another attorney to represent her. Thereafter, respondent failed to respond to requests for an accounting of the fees paid by Ms. Valentine and a refund of any unearned fees.

In October 2011, Ms. Valentine filed a disciplinary complaint against respondent. Respondent failed to respond to notice of the complaint, necessitating the issuance of a subpoena to obtain her sworn statement. Despite being 12personally served with the subpoena, respondent failed to appear or provide any of the requested documents.

Ms. Valentine’s new attorney indicated that, on November 10, 2011, respondent told him she would provide Ms. Valentine with a refund that week. He further indicated that, had respondent kept the funds in her trust account, as she should have, she should have been able to issue a refund check. However, as of the date of the filing of the formal charges against respondent, she still had not provided the refund.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.15 (safekeeping property of clients or third parties), 8.1(c) (failure to cooperate with the ODC in its investigation), and 8.4.

Count II — The Merritt Matter

In July 2011, Tina and Farris Merritt hired respondent to represent them in a child custody matter. The Merritts paid respondent $5,200 to file a request for an emergency hearing. However, according to the Merritts, nothing was ever filed, and respondent’s telephone was disconnected. Via a November 1, 2011 letter, the Mer-ritts fired respondent and requested a refund.

In December 2011, the Merritts filed a disciplinary complaint against respondent. Respondent failed to respond to notices of the complaint. As of February 2012, the Merritts had received no refund and no communication from respondent.

|aThe 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), 1.15, 8.1(c), and 8.4.

Count III — The Trust Account Overdraft Matter

The ODC received notices of overdrafts in respondent’s client trust account on September 14, 2011, September 29, 2011, and October 6, 2011. The ODC’s screening counsel requested that respondent address the issue, but she failed to respond. Accordingly, in December 2011, the ODC opened a formal investigation. The ODC sent respondent notice of the formal investigation on December 13, 2011. However, the ODC never received confirmation that respondent received the notice.

Nevertheless, the evidence received by the ODC indicated that respondent’s trust account was, in fact, overdrawn on the above dates. The overdraft notices specified that the checks were returned, indicating that client funds were probably compromised.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.15 and 8.1(c).

Count IV — The Beard Matter

In April 2011, Jason Beard hired respondent to represent him in a child custody matter. Mr. Beard indicated that he paid $1,900 toward a $3,000 fee. Respondent notified opposing counsel of her representation of Mr. Beard but, thereafter, informed Mr. Beard his case would be stronger in six months to a year.

At that point, respondent indicated the fee would now be $3,500. A disagreement over the final fee arose, and Mr. Beard requested a refund of the $1,900 paid. Respondent refused, claiming the funds had already been used. ^Nevertheless, she failed to provide Mr. Beard with an accounting or itemized statement.

In August 2011, Mr. Beard filed a disciplinary complaint against respondent. Respondent failed to respond to notices of the complaint.

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

Count v. — The Slater Matter

In November 2010, George Slater hired respondent to handle his divorce, paying her a total of $2,250. In September 2011, Mr. Slater filed a disciplinary complaint against respondent, requesting that she refund the $2,250 because she failed to perform the services for which she was paid. Respondent failed to respond to notice of the complaint. The ODC’s investigation revealed that, as of February 2012, no pleadings had been filed on Mr. Slater’s behalf.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.8, 1.4,1.15,8.1(c), and 8.4.

Count VI — The McDonald/Stewart Matter

In June 2011, Robby McDonald hired respondent to handle a collection matter. Mr. McDonald paid respondent a total of $3,300, but she never filed a lawsuit on his behalf. Furthermore, Mr. McDonald’s attempts to contact respondent were unsuccessful as it appears that her office is now closed and her telephone disconnected.

Eventually, Mr. McDonald hired attorney Arthur Stewart to assist him in the matter. Mr. Stewart attempted to obtain Mr. McDonald’s file from respondent, but he indicated his attempts were unsuccessful despite respondent’s assurances that she would provide the file. Additionally, requests for a refund of the fee paid to | .^respondent have been fruitless. Mr. Stewart’s secretary, who formerly worked as respondent’s secretary, indicated that she has personal knowledge of respondent’s failure to communicate with clients, neglect of legal matters, and operating her law practice without a trust account.

In January 2012, the ODC received disciplinary complaints against respondent from both Mr. McDonald and Mr. Stewart. Notices of the complaints were sent to respondent at numerous addresses. However, the ODC had not received delivery confirmation notices by the date of the filing of the formal charges.

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

Count VII — The Jarvis Matter

In June 2011, Angela Jarvis hired respondent to handle her divorce and custody matter. She paid respondent a total of $5,950. Respondent met with Ms. Jarvis three times and appeared at a hearing officer conference. However, respondent never filed any pleadings on Ms. Jarvis’ behalf or took any depositions. She also failed to provide an accounting of the fees paid, despite Ms. Jarvis’ requests. When Ms. Jarvis could not contact respondent, she hired another attorney, who confirmed that no pleadings had been filed on her behalf.

In March 2012, Ms. Jarvis filed a disciplinary complaint against respondent. Respondent failed to respond to notices of the complaint.

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

| ¡¿Count VIII — The' Spencer Matter

In August 2011, Sean Spencer hired respondent to handle his child custody matter. Mr. Spencer’s mother wired $8,900 to respondent on August 4, 2011. Thereafter, respondent failed to appear at three scheduled court hearings. Mr. Spencer indicated that, during the last hearing in January 2012, the judge called respondent, and respondent apparently informed the judge she was closing her law practice and would not be representing Mr. Spencer any longer.

Mr. Spencer further indicated that, despite respondent’s promises to refund the fee in full, he has not received a refund and respondent will not accept his telephone calls. Mr. Spencer also claimed that respondent did none of the work for which she was retained.

In March 2012, Mr. Spencer filed a disciplinary complaint against respondent. Respondent failed to respond to notice of the complaint.

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

Count IX — The Williams Matter

In August 2011, Ginney Williams hired respondent to represent her in a domestic matter. Ms. Williams paid respondent a total of $8,500. Respondent failed to forward the required documents to opposing counsel. Whenever Ms. Williams asked respondent about the documents, respondent assured her that she was working on the matter. At one point, Ms. Williams was unable to contact respondent for more than a month.

In January 2012, respondent finally replied to Ms. Williams, claiming that her former employee had stolen the money Ms. Williams had paid her, which was the reason for the delay. However, on January 13, 2012, respondent met Ms. Williams at the courthouse and informed her that she had actually loaned the [ 7money to a relative, who did not pay her back. Respondent stated that she was embarrassed by this, which was the reason for avoiding Ms. Williams’ calls and texts.

Via a certified letter dated February 8, 2012, Ms. Williams terminated respondent’s services and requested an accounting and refund of any unearned fees. According to Ms. Williams, respondent never replied to this request.

In March 2012, Ms. Williams filed a disciplinary complaint against respondent. Respondent failed to respond to notice of complaint.

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

Count X — The Curtin Matter

In May 2011, Richard Curtin hired respondent to represent his granddaughter in a child custody matter. Mr. Curtin paid respondent $3,200 to handle the matter, but the party seeking custody did not take any action to move the matter forward. Nevertheless, respondent did not refund the fee Mr. Curtin paid, despite receiving several requests for a refund. She also missed an appointment in October 2011.

In April 2012, Mr. Curtin filed a disciplinary complaint against respondent. Respondent failed to respond to notice of the complaint.

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

Count XI — The Heame Matter

On February 13, 2012, Aaron and Jessica Hearne hired respondent to represent them in two separate child custody matters. They paid respondent $5,000 and readied the requested paperwork by February 23, 2012. By that time, ^respondent had been placed on interim suspension from the practice of law, but she never advised the Hearnes of her status.

The Hearnes indicated that they attempted to meet with respondent but were given various excuses as to why they could not. However, on March 7, 2012, respondent contacted Ms. Hearne and advised that she had moved to Texas and would now be able to work on their custody matters. Respondent promised to have the petitions ready for review within two weeks. However, two weeks later, respondent indicated that an emergency had arisen in another case but that she would work on the Hearnes’ matters by March 29, 2012.

Ms. Hearne never received any further correspondence from respondent. In fact, respondent’s telephone number was no longer in service. Thereafter, Ms. Hearne learned of respondent’s interim suspension, but she stressed that respondent never told them about same.

In April 2012, the Hearnes filed a disciplinary complaint against respondent. Respondent failed to respond to notice of the complaint.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.15, 5.5 (engaging in the unauthorized practice of law), 8.1(c), and 8.4. The ODC further alleged that respondent violated Supreme Court Rule XIX, § 26, which requires an attorney placed on interim suspension to provide notice to all clients.

DISCIPLINARY PROCEEDINGS

In June 2010, 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 19 arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the hearing committee’s consideration.

Hearing Committee Report

Noting that the factual allegations of the formal charges were deemed admitted, and considering the ODC’s deemed admitted submission, the hearing committee determined the facts support a finding that respondent violated the Rules of Professional Conduct as charged. The committee further stated:

The nature of the multiple charges and findings of fact, together with the pattern of respondent in abusing trust/financial accounts with which she was entrusted, indicates that Respondent has serious and continuing flaws in judgment and character. In the opinion of the Committee, if the Respondent is allowed to continue the practice of law, and to exercise the responsibilities of an attorney, absent further change in attitude, professional practices, and ethics, she will continue to present a danger to her clients, to the public, [to] the legal system, and to the legal profession.

In light of the above findings, the committee recommended that respondent be disbarred.

The ODC filed an objection to the hearing committee’s report and recommendation, arguing that permanent disbarment is a more appropriate sanction in this case.

Disciplinary Board Recommendation

After review, the disciplinary board determined that the hearing committee’s factual findings are not manifestly erroneous. Additionally, the board determined that the committee correctly applied the Rules of Professional Conduct. As such, the board adopted the committee’s factual findings and legal conclusions. In considering each alleged rule violation, the board found the following:

11 (¡Rule 1.3 — In the Valentine matter, respondent allowed a default judgment to be entered against her client. In the Merritt matter, respondent failed to file a request for an emergency hearing concerning the custody of a minor. In the Slater matter, respondent failed to perform any work on the divorce and never filed any pleadings. In the McDonald/Stewart matter, respondent failed to perform any work after several months of representation. In the Jarvis matter, respondent failed to take any depositions or file any motions or pleadings, which necessitated the hiring of a new attorney who discovered her failures. In the Spencer matter, respondent did not perform any work and failed to appear at three scheduled court hearings; when the judge contacted her, respondent indicated she would no longer be representing Mr. Spencer or practicing law. In the Williams matter, respondent failed to forward documents to opposing counsel so they could be finalized and filed with the court. In the Curtin matter, respondent missed an appointment concerning her client’s custody case. And in the Hearne matter, respondent accepted her clients’ funds without any intention of performing the work she was hired to do.

Rule 14 — In the Merritt matter, respondent’s telephone was disconnected mid-representation. In the McDonald/Stewart matter, respondent failed to provide her former client’s file to his new attorney despite multiple requests and her assurances that she would do so. Additionally, her client was unable to contact her as her office appeared to be closed and her telephone disconnected. In the Spencer matter, respondent refused to answer Mr. Spencer’s telephone calls. In the Williams matter, respondent indicated that she was working on the matter but then refused to communicate for more than a month. And in the Hearne matter, respondent provided various excuses as to why she could not meet with her clients as requested. Additionally, she inadequately communicated with the Hearnes until she ceased communication altogether.

\uRule 1.15 — In the Valentine matter, respondent failed to provide an accounting and refund unearned fees. In the Merritt matter, respondent failed to refund the unearned fee, despite the client’s request. Additionally, the ODC received three client trust account overdraft notifications from respondent’s bank. In the Beard matter, a fee dispute developed; the client requested a refund, but respondent claimed the funds had been used. Nevertheless, respondent failed to provide an accounting. In the Slater and Curtin matters, respondent failed to refund the unearned fee. In the McDonald/Stewart matter, respondent failed to refund the unearned fee, and the funds were not placed into a client trust account. Finally, in the Jarvis, Spencer, and Williams matters, respondent converted client funds to her own use and failed to provide an accounting.

Rule 5.5 — In the Hearne matter, respondent failed to inform her clients of her interim suspension, and she held herself out as an attorney authorized to practice law after being placed on interim suspension.

Rule 8.1(c) — Despite being notified of the disciplinary complaints via certified mail in all matters except the McDonald/Stewart matter, respondent failed to respond to the notices.

Rule 84 — Respondent violated Rule 8.4(a) (violation of the Rules of Professional Conduct) by engaging in the misconduct addressed above. Rule 8.4(c) states that it is professional misconduct to “engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.” Respondent’s conversion of client funds in the Valentine, Beard, Slater, Jarvis, and Spencer matters constitutes a violation of Rule 8.4(c). In the McDonald/Stewart matter, it appears that respondent accepted fees without placing them into her client trust account, rendering them susceptible to commingling and conversion. In the Williams matter, respondent claimed her employee had stolen the money provided for representation, which caused a delay in the proceeding. However, respondent later 1^admitted that she loaned the money to a relative who did not repay the loan. Finally, in the Curtin matter, respondent refused to return the unearned fee.

Based on these findings, the board determined that respondent knowingly and intentionally violated duties owed to her clients, the public, and the legal profession. Her conduct caused serious injury to multiple clients. After considering the ABA’s Standards for Imposing Lawyer Sanctions, the board determined that disbarment is the baseline sanction. In further support of disbarment as the baseline sanction, the board stated:

In accepting fees from her clients and failing to provide services, Respondent has intentionally converted funds from numerous sources causing injury to multiple clients. By abandoning her law practice, she has caused serious injury to her clients. She has knowingly failed to perform services for her clients and has engaged in a clear pattern of neglect with respect to client matters. [Furthermore,] Respondent continued to operate as an attorney although she was placed on interim suspension from the practice of law on February 16, 2012.

The sole mitigating factor found by the board was the absence of a prior disciplinary record. In aggravation, the board found the following: 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, refusal to acknowledge the wrongful nature of the conduct, vulnerability of the victim, and indifference to making restitution.

Considering respondent’s misconduct in light of the permanent disbarment guidelines and the prior jurisprudence of this court, the board recommended that she be permanently disbarred. The board also recommended that respondent be ordered to make restitution to her victims.

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.

The record in this deemed admitted matter supports a finding that respondent neglected legal matters and failed to communicate with clients, essentially abandoning her law practice. She also failed to provide accountings of fees paid, failed to refund unearned fees, practiced law and held herself out as an attorney after being placed on interim suspension, and failed to cooperate with the ODC in its investigations. Based on these facts, respondent has violated Rules 1.3, 1.4, 1.15, 5.5, 8.1(c), 8.4(a), 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 | ,4profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

The record further supports a finding that respondent knowingly and intentionally violated duties owed to her clients, the public, the legal system, and the legal profession. Her misconduct caused significant actual harm to several vulnerable victims. The baseline sanction for this type of misconduct is disbarment.

In its report, the disciplinary board concluded that respondent’s offenses are so egregious that she should be permanently prohibited from applying for readmission to the bar. We agree. Respondent failed to refund approximately $43,000 in unearned fees paid by her clients, effectively converting those funds to her own use. As such, respondent’s conduct amounts to 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. Additionally, respondent practiced law and held herself out as an attorney after being placed on interim suspension, conduct that falls under Guideline 8 of the permanent disbarment guidelines (following notice, engaging in the unauthorized practice of law subsequent to resigning from the Bar Association, or during the period of time in which the lawyer is suspended from the practice of law or disbarred).

Respondent’s conduct demonstrates a disregard for her clients and for her duties as an attorney. In order to protect the public and maintain the high standards of the legal profession in this state, we find respondent should not be allowed the opportunity to return to the practice of law in the future.

| ^Accordingly, we will adopt the board’s recommendation and permanently disbar respondent. We will also order respondent to make restitution to her 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 Brandi Traylor Boutwell, Louisianá Bar Roll number 30767, be stricken from the roll of attorneys and that her 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 shall make restitution to her 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.

      . The formal charges did not specify which subsection of Rule 8.4 was applicable to respondent's alleged misconduct.


text:
    In re M. Randall DONALD.
    No. 2013-B-2056.
    Supreme Court of Louisiana.
    Nov. 1, 2013.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

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

UNDERLYING FACTS

By way of background, in 2003, Timothy Mims obtained an $18,800 judgment against Cynthia DeLaSalle, which resulted in a lien against her home. In 2004, Ms. DeLaSalle filed for bankruptcy, and Mr. Mims’ judgment was discharged in the bankruptcy proceedings. Nevertheless, the judgment was not canceled.

In February 2007, Ms. DeLaSalle and her husband attempted to refinance their home. Respondent, acting as the title attorney for the refinance, discovered Mr. Mims’ still-recorded judgment. He informed the DeLaSalles that he could have the judgment canceled for an additional fee of $600. The DeLaSalles agreed to pay the $600 as part of the refinance closing costs.

Following the closing, respondent contacted Mr. Mims’ attorney, Sam Henry, III, but Mr. Henry informed respondent that Mr. Mims would not voluntarily cancel the judgment, despite it having been discharged in Ms. DeLaSalle’s 2004 bankruptcy.

12Without consulting with the DeLa-Salles, respondent decided to take no action at that time, believing the judgment would prescribe in 2013 due to Mr. Mims’ failure to re-inscribe same. He never informed the DeLaSalles of his intention to wait out the judgment’s prescription and never informed them that they could file pleadings with the bankruptcy court to secure an order canceling the judgment.

Over the next two and a half years, the DeLaSalles made numerous attempts to obtain information from respondent about the cancellation of the judgment, to no avail. In August 2009, Ms. DeLaSalle sent respondent a letter requesting a refund of the $600 fee so she could hire another attorney to obtain a cancellation of the judgment. Respondent failed to respond to this request.

In September 2009, the DeLaSalles filed a disciplinary complaint against respondent. In response to the complaint, respondent indicated that he was “still working” on the matter. He also indicated that he would file pleadings with the bankruptcy court to start proceedings to have the judgment canceled, or he would refund the $600 to the DeLaSalles so they could hire another attorney, whichever they preferred. The DeLaSalles again expressed to the ODC their wish to obtain a refund and hire another attorney. Nevertheless, respondent did not provide the refund.

In March 2010, respondent gave a sworn statement to the ODC, during which he agreed to address the issue of a possible resolution with Ms. DeLaSalle. In April 2010, he wrote to the DeLaSalles, indicating that he could continue trying to cancel the judgment on their behalf or refund the $600 so they could hire another attorney. In response, Ms. DeLaSalle sent respondent a letter requesting the refund. Respondent never provided the refund.

^DISCIPLINARY PROCEEDINGS

In November 2011, the ODC filed formal charges against respondent, alleging that his conduct as set forth above violated the following, provisions of the Rules of Professional Conduct: Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.5(f)(5) (failure to refund an unearned fee), and 1.15 (safekeeping property of clients or third persons). Respondent, through counsel, answered the formal charges, denying any misconduct. He also indicated that he placed the $600 at issue in his client trust account. The matter then proceeded to a formal hearing on the merits.

Hearing Committee Report

After considering the testimony and evidence presented at the hearing, the hearing committee determined that the testimony of the DeLaSalles was credible. They both testified that they had no contact with respondent following the closing in February 2007 until after they filed the disciplinary complaint against him in September 2009. During this time period, they placed numerous calls to his office, none of which were returned. Mr. DeLa-Salle also testified that he attempted to speak with respondent at his office on several occasions. However, he was only able to speak with respondent once, at which time respondent informed him that he had misplaced their file and would get back to them after locating it. Respondent also did not respond to Ms. DeLa-Salle’s letter requesting a refund so she could hire another attorney.

The committee further determined, based on the testimony and evidence, that respondent designated $600 in his client trust account as “segregated for disputed fee” upon receiving the disciplinary complaint. He testified that he would happily return the $600 fee immediately only if the DeLaSalles hired another |4attorney who could seek cancellation of the judgment. Respondent admitted that this concern was, at least in part, self-serving.

After analyzing the testimony and evidence, the committee made the following factual findings:

When respondent accepted the $600 to have Mr. Mims’ judgment canceled, he anticipated a quick resolution via a telephone call to his friend, Mr. Henry. Upon learning that Mr. Mims would not agree to cancel the judgment, respondent was faced with a conflict. He needed to get the judgment canceled, but the only definite way to immediately accomplish this involved re-opening Ms. DeLaSalle’s bankruptcy, the cost of which would exceed the $600 fee. Assuming that the DeLaSalles would not want to pay for further legal services, and fearing for his business relationship with lenders and title insurance companies if the judgment was not canceled, respondent decided to do nothing with the hope that the judgment would prescribe. The DeLaSalles repeatedly indicated their wish to discharge respondent and to receive a refund of the $600 fee. Respondent ignored these requests and failed to offer them the option of the Louisiana State Bar Association’s Fee Dispute Resolution Program. He ultimately indicated he would refund the entire $600 but only if the DeLaSalles hired another attorney to pursue the cancellation of Mr. Mims’ judgment.

Based on these findings, the committee determined that respondent violated the Rules of Professional Conduct as alleged, with the exception of Rule 1.15. Specifically, the committee found that respondent violated Rule 1.4 by failing to keep the DeLaSalles apprised of the status of their matter and failing to communicate with them despite their repeated attempts to contact him. Respondent’s failure to communicate .deprived the DeLaSalles of a prompt resolution to their legal problem, resulting in a violation of Rule 1.3. Furthermore, by failing to either immediately refund the unearned fee upon his termination or | .¡suggest resolution of the fee dispute through the Fee Dispute Resolution Program, respondent violated Rule 1.5(f)(5). He also violated Rule 1.5(f)(5) by indicating he would only refund the $600 fee if the DeLaSalles hired another attorney to pursue cancellation of Mr. Mims’ judgment. However, the committee determined that respondent did not violate Rule 1.15 becausé he returned the disputed fee to his client trust account after receiving notice of the DeLaSalle’s disciplinary complaint.

The committee further determined that respondent knowingly and intentionally violated duties owed to his clients. However, the committee questioned whether the DeLaSalles suffered any true harm. At most, assuming that respondent earned none of the fee, the harm to the DeLa-Salles would be limited to the lost use of the $600. As such, the committee determined that the baseline sanction is suspension.

In aggravation, the committee found the following: a prior disciplinary record (2001 diversion), a dishonest or selfish motive, refusal to acknowledge the wrongful nature of the conduct, substantial experience in the practice of law (admitted 1984), and indifference to making restitution. In mitigation, the committee found personal or emotional problems, full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, and the remoteness of the prior disciplinary offense.

After further considering case law involving similar misconduct, the committee recommended that respondent be suspended from the practice of law for six months, fully deferred, subject to one year of supervised probation with the [^conditions that he attend the Louisiana State Bar Association’s Ethics School and refund the unearned fee.

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

Disciplinary Board Recommendation

After reviewing the record, the disciplinary board determined that the hearing committee’s factual findings are supported by the record and are not manifestly erroneous. The board also determined that the committee correctly applied the Rules of Professional Conduct. Specifically, the board found that respondent violated Rule 1.3 when he, without consulting his clients, took a “wait and see” approach to canceling Mr. Mims’ judgment when Mr. Mims refused to voluntarily cancel same. Respondent violated Rule 1.4 when he failed to return numerous telephone calls from his clients. Respondent also never discussed with his clients their options regarding the judgment or his planned course of action (to do nothing) with respect to its cancellation. The board further found that respondent violated Rule 1.5(f)(5) because the DeLaSalles tried fervently to dismiss respondent and receive a refund of the $600 fee, but respondent ignored their requests. Respondent eventually agreed to refund the entire $600 but only if the DeLaSalles hired another attorney to pursue the cancellation of Mr. Mims’ judgment. The board agreed with the committee that respondent did not violate Rule 1.15 because he designated $600 in his client trust account as “segregated for fee dispute” upon receiving notice of the disciplinary complaint.

The board determined that respondent knowingly violated duties owed to his clients. His conduct caused actual harm to the DeLaSalles by failing to refund the $600 fee so they could hire a new attorney to resolve their legal matter. After considering the ABA’s Standards for Imposing Lawyer Sanctions, the board 17determined that the baseline sanction is suspension. The board adopted the aggravating and mitigating factors found by the committee.

After further considering case law involving similar misconduct, the board recommended that respondent be suspended from the practice of law for six months, fully deferred, subject to one year of supervised probation with the conditions that he attend Ethics School and refund the $600 fee to the DeLaSalles.

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. While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee’s factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

In this matter, respondent was paid $600 to have a judgment canceled due to the fact that the debt was discharged in bankruptcy. The record reflects that, upon realizing it would be more difficult to have the judgment canceled than he originally believed it would be, respondent neglected the matter and failed to communicate with his clients. Respondent also ignored all of his clients’ requests for a refund of the fee. This misconduct amounts to a violation of the Rules of Professional Conduct as found by the hearing committee and the disciplinary board.

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

We find respondent knowingly, and possibly intentionally, violated duties owed to his clients. His actions caused harm to the DeLaSalles in that they were deprived of the use of the $600 while respondent did nothing to move their legal matter forward. The baseline sanction for this type of misconduct is suspension. The record supports the aggravating and mitigating factors found by the committee and the board.

Under all the circumstances, we will adopt the board’s recommended sanction and suspend respondent from the practice of law for six months, fully deferred, subject to one year of supervised probation with the conditions that he attend the Louisiana State Bar Association’s Ethics School and refund the $600 fee to the DeLaSalles.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that M. Randall Donald, Louisiana Bar Roll number 14222, be and he hereby is suspended from the practice of law for six months. This suspension shall be deferred in its entirety, subject to respondent’s successful completion of a one-year period of supervised | nprobation. During the probationary period, respondent shall attend the Louisiana State Bar Association’s Ethics School. It is further ordered that respondent refund the $600 fee to the DeLaSalles within thirty (30) days. The probationary period shall commence from the date respondent, the probation monitor, and the ODC 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.

      . In April 2012, respondent's wife died suddenly. Although her death occurred after formal charges were filed against respondent, the committee believes it likely had an impact on respondent’s current state of mind, particularly with respect to his refusal to acknowledge the wrongful nature of his conduct.