author: MAKAR, J.

text:
    James KOSHENINA, In re Guardianship of, et al., Appellant, v. John L. BUVENS, Jr. and Carole Ann Buvens Draper, Appellee.
    No. 1D13-53.
    District Court of Appeal of Florida, First District.
    Jan. 29, 2014.

      Bryan S. Gowdy and Jessie L. Harrell of Creed & Gowdy, P.A., Jacksonville, for Appellant.
    Guy Victor Murray, Jacksonville; D. Craig Calley, Jacksonville; Krista A. Parry, Jacksonville; Jeffery A. Cramer and Amelia Hough Henderson of Cramer Law Center, P.L., Jacksonville, for Appellee.
   MAKAR, J.

At issue is whether the trial court made a definitive ruling regarding the competency of Linda Koshenina (Linda) to make a designation declaring her husband, James Koshenina (James), her preneed guardian, and whether the trial court correctly determined it was appropriate for John L. Buvens and Carole Ann Buvens Draper, Linda’s brother and sister (Siblings), to be appointed her plenary co-guardians rather than her husband. For the reasons that follow, we remand for a determination of whether Linda was competent when she designated her husband as her preneed guardian and, if so, whether the statutory presumption in favor of this appointment “is contrary to the best interests of’ Linda under the existing circumstances.

I.

Sometime in 2010 at age fifty-seven, Linda began showing signs of mental deterioration and was subsequently diagnosed with Pick’s Disease — a rapidly progressive and terminal form of dementia. Because of the disease, Linda lost the ability to care for herself, interact socially, or control her behavior. She is unable to live independently and all parties — including James, Linda’s husband — agree that Linda needs care in a twenty-four hour, seven-days a week facility thereby excluding any arrangement where she would return to her home with her husband, even temporarily.

In January 2012, the Siblings successfully petitioned for appointment of themselves as emergency temporary guardians of Linda, alleging she was being abused, neglected, or exploited. The allegations stemmed, in large part, from injuries Linda sustained from a fall while she was at Emeritus, a twenty-four hour care facility. On the first day of her stay at Emeritus, Linda fell and injured her eye; she also sustained bruises on her body that were not immediately noticeable, but which later became apparent the morning after James returned Linda to Emeritus (he initially would take her home some nights so she could sleep in her own bed). The resulting bruises prompted Emeritus staff to contact the Department of Children and Families (DCF), which launched an investigation. The case was eventually turned over to the State’s Attorney Office, but no charges were ever filed and DCF later closed the case when the Siblings were appointed emergency co-guardians of Linda. No evidence exists that her injuries resulted from anything other than Linda’s falls at Emeritus.

In response to the Siblings’ petition, James filed a notice of Designation of Pre-need Guardian (Designation), which Linda had executed on November 29, 2010, designating him as her preneed guardian. The attorney who drafted the Designation testified that prior to having her sign the document, Linda successfully completed a routine competency test that he administered. He testified that it was his practice to ensure that clients such as Linda understood what they were doing, and that he would not have allowed her to execute the document if he felt she failed the test.

Approximately four weeks before executing the Designation, however, Linda failed certain medical cognitive tests during a neuropsychological consultation. Dr. Glen, her consulting neurologist, indicated that Linda was “extremely impaired” on some tasks (such as responding “I don’t know” to many tasks, even when given very specific cues and “yes” or “no” instructions), but not on others. Dr. Glen was also concerned about Linda’s behavior (such as her unprompted statements regarding her love for James); he also was concerned about James’s sometimes “erratic” and disruptive behavior.

Dr. Doty, the neurologist who began treating Linda a year after she executed the Designation, also expressed doubts as to whether Linda knew what she was signing at the time, but she acknowledged that patients such as Linda experienced “lucid intervals” in which they were able to function normally.

At the two-day evidentiary hearing on their petition, the Siblings sought to prove the Designation was invalid either because Linda was incompetent when she made it or because of James’s undue influence on her. Except for Dr. Doty’s testimony expressing doubt that Linda could have understood what she was signing (a year before Dr. Doty first began treating her), the Siblings offered no expert testimony that Linda was incompetent or incapacitated at the time she executed the Designation.

The evidence at the evidentiary hearing generally established that James was contentious at times and that he failed — in the initial stages of her care — to provide proper hygiene for Linda and did not fully follow her doctor’s medical instructions. For instance, James' would meddle with Linda’s medical and caregiving team about her care including creating a ruckus at Emeritus and at Dr. Doty’s office. According to nursing staff documentation, he was found once kicking Linda’s bed, which agitated her, resulting in the medical staff calling security to get him to leave. Dr. Doty testified that James would over- or under-medicate Linda — which included, for example, giving her aspirin, something he thought was a “cure all.” Before Linda was placed in the twenty-four hour care facility at Emeritus, James infrequently washed Linda’s hair, allowing it to become “oily” and would let her toenails go un-dipped for long periods of time. Despite his boisterous and somewhat contrarian persona and caregiving flaws, however, everyone agreed that James loves Linda, that he and Linda were affectionate with each other, and that Linda looked forward to James seeing when he came to visit her. To counter the Siblings’ petition and their' claim they were better suited to care for Linda, James introduced evidence that pri- or to Linda’s illness the Siblings made infrequent contact with her. Of the thirteen years James and Linda were married, Linda skipped Thanksgiving with her family for nine of those years.

Thereafter, trial court found that Linda suffered no abuse at the hands of James and that all her injuries were a result of her progressing disease. The trial court further found, however, that Linda had done better in the care of the Siblings as emergency temporary guardians than she had done in James’s care and that James’s personality and social skills were not conducive to making appropriate decisions for the care of Linda. Further, although Linda executed the Designation naming James her preneed guardian, it was executed only “after the dementia process had seriously compromised her ability to understand what she was doing” and the trial court “seriously questioned” — despite possible lucid intervals that Linda may have experienced — whether Linda understood what she was doing when she executed the document. The trial court stopped short, however, of finding Linda incompetent at the time she executed the Designation. It went on to conclude that it was not in Linda’s “best interest” to honor Linda’s preference expressed in the designation “because of the [cjourt’s findings regarding events subsequent to the execution of this document.” The trial court named the Siblings as plenary co-guardians of Linda, but prevented them from removing her from the Sunrise facility and restricted James’s visitation.

Both parties moved for rehearing, James making an as-applied constitutional challenge to the guardianship statute. The trial court modified its order to allow the Siblings to take Linda to doctor’s appointments outside of the Sunrise facility, but denied both motions for rehearing, finding that neither the guardianship laws nor the court’s order violated James’s and Linda’s fundamental privacy rights, and that the Siblings’ motion was meritless. This appeal followed.

II.

We review the probate court’s appointment of a guardian for abuse of discretion. Acuna v. Dresner, 41 So.3d 997, 999 (Fla. 3d DCA 2010); In re Guardianship of Schiavo, 851 So.2d 182, 186 (Fla. 2d DCA 2003), rev. denied, 855 So.2d 621 (Fla.2003). . “The appointment of guardian is a discretionary act of the trial court, which must be supported by logic and justification and founded on substantial competent evidence.” Morris v. Knight, 1 So.3d 1236, 1238 (Fla. 4th DCA 2009) (a. “trial court’s decision should be reviewed for reasonableness.”). The trial court’s discretion in appointing a guardian is limited, however, by the requirement that it must be exercised consistent with the law. Wilson v. Robinson, 917 So.2d 312, 313 (Fla. 5th DCA 2005).

A.

We begin by observing that the trial court failed to rule on the core question of whether Linda was competent at the time she executed the Designation that James act on her behalf as preneed guardian. Remand is necessary for the trial court to rule on this fundamental issue. See Mason v. State, 489 So.2d 734, 737 (Fla.1986) (no per se rule in Florida forbidding a nunc pro tunc competency determination); State v. Williams, 477 So.2d 356 (Fla. 1st DCA 1984) (same). During oral argument, James urged this Court to hold that in the context of guardianship proceedings, determining a ward’s competency requires only a finding that the ward is capable of understanding that she is selecting a person she trusts. We reject this approach, however, because it would not require the ward to understand the implications of the document she is signing, something we believe is critical to making an informed decision.

Rather, we hold that the appropriate test for determining whether a ward was competent to make a decision regarding who will be her preneed guardian, is whether the ward had the capacity to generally understand the nature of the decision she is making and its implications. This test is analogous to that used in the context of testamentary capacity cases, which requires that a testator understand in a general way the nature and extent of his property to be disposed of, the testator’s relation to those who would naturally claim a substantial benefit from his will, and the effect his disposition will have. See, e.g., In re Estate of Edwards, 433 So.2d 1349, 1350 (Fla. 5th DCA 1983).

On remand, the trial court must weigh the competing testimony and evidence and come to a definitive ruling on this issue using this standard. The evidence below on this issue can be harmonized or perhaps viewed as conflicting. On one hand, the testimony of the attorney who helped Linda execute the Designation indicated that Linda was able to pass a routine competency exam immediately before she signed the document. On the other hand, weeks before she executed the Designation, Linda failed medical cognitive tests with Dr. Glen. It could be that she exhibited cognitive failures on her visit with Dr.- Glen, only to have a period of lucidity weeks later at the attorney’s office. Or the trial court could credit entirely the doctor’s/lawyer’s testimony, finding she lacked/retained the mental competence to execute the designation. In light of this equivocal evidence, the trial court did not make a ruling, but strongly intimated that Linda may not have been competent to execute the Designation when she did. While it is understandable, if not human nature, to avoid making a difficult judgment call in an emotionally-charged guardianship proceeding, it must be done for the benefit of clarity in determining whether the statutory requirements are met. If, on remand, Linda is deemed to have been competent to execute the designation of her husband as preneed guardian, this designation is entitled to a rebuttable presumption, which leads next to our consideration of the appropriate legal standard that would apply.

B.

The trial court did not rule on Linda’s competency, but it appears to have assumed that even if she had been competent when executing the designation, her husband was not the best choice in light of evidence showing his sometimes obstreperous conduct. In doing so, the trial court ruled that it was “in the best interest of the Linda for her brother and sister to be appointed plenary co-guardians of her person.” We conclude, however, that this ruling applied an incorrect legal standard.

Section 744.3045(4), Florida Statutes (2010), provides in pertinent part that “[production of the declaration in a proceeding for incapacity shall constitute a rebuttable presumption that the preneed guardian is entitled to serve.” But a trial court “shall not be bound to appoint the preneed guardian if the preneed guardian is found disqualified[] to serve as guardian.” Id. Furthermore,

if the person designated is qualified to serve ..., the court shall appoint any standby guardian or preneed guardian, unless the court determines that appointing such person is contrary to the best interests of the ward.

§ 744.312(4), Fla. Stat. (2010) (emphasis supplied). Here, the trial court was required to apply this statutory standard, meaning that the rebuttable presumption of James’s entitlement to serve as his wife’s preneed guardian could' only be overcome by a specific, factually-supportable finding that appointing James was “contrary to the best interests of’ his wife. See, e.g., Miller v. Goodell, 958 So.2d 952 (Fla. 4th DCA 2007) (rebuttable presumption that ward’s sister, who was designated as alternate preneed guardian, was entitled to serve as guardian was overcome with trial court finding that appointment was contrary to ward’s best interest.) Instead, the trial court made an independent determination of what it believed was in Linda’s best interest.

Had section 744.312(4) been written to say that trial courts could simply apply a generalized “best interest” analysis— without consideration of whether the appointment of the preneed guardian “is contrary to the best interests of the ward”— the trial court’s analysis would be appropriate. But context and language matter. Once a determination is made that a ward competently designated a preneed guardian, that determination is entitled to deference and respect else the now-incompetent ward’s desires be too easily impeded, if not thwarted entirely. This designation is one of life’s most intimate and important decisions involving highly personal and private judgments about who will provide care, love, and support when persons are unable to do so for themselves. It is why the legislature established a rebuttable presumption that the preneed guardian is “entitled to serve” absent disqualification or a finding that appointment “is contrary to the best interests of the ward.”

The linguistic distinction between what “is contrary to the best interest of the ward” and what may be in the “best interests” of a ward is subtle, but its legal ramifications are potentially life-altering, particularly in the context of overriding a ward’s personal designation of whom she wants to act on her behalf on private, personal health matters. This designation can be said to reflect what the ward believed was — and would be — in her long-run best interest. Overriding the statutory presumption in favor of the ward’s appointment of the designated preneed guardian is thereby no minor matter. It cannot be overcome with a generalized “best interest” approach; instead, the judicial mind must ask how is the appointment of the ward’s chosen guardian sufficiently “contrary” to her best interests that the court should disregard the ward’s choice and appoint someone else?

Admittedly, little judicial analysis exists on how the statutory standard at issue in section 744.312(4) (i.e., “is contrary to the best interests”) contrasts with a generalized “best interest” approach. At a minimum, that another relative might be a better caregiver is not enough under section 744.313(4) to unseat the designated preneed guardian; the ward’s designation of the preneed guardian — instead of the relative — reflects the ward’s preference on the matter. Similarly, the statutory standard requires more than a finding that a designated preneed guardian is lacking in interpersonal and social skills. For instance, in this case the record is bereft of any finding that James — and his bull-in-the-china-closet approach to caring for Linda — is anything other than his persona as Linda understood him to be. She may have dearly wanted a loving husband (no one disputes they love each other) aggressively advocating for her as she enters a life/health care environment that can be daunting to those unaccustomed to protocols and expectations within the walls of the medical community. Contrarily, a ward’s designation does not provide a guardian license to ignore medical directives and create disorder within a facility or office. Likewise, that James allowed Linda’s hair to get oily and her nails lengthy weighs against him. But at the time of the hearing below it was undisputed by everyone that Linda would not be going home again; instead, her hygienic and medical care was to be provided by the facility, not by James.

Accordingly, given the inherent flexibility of and lack of definitive caselaw on what constitutes a ward’s “best interest,” the standard in section 744.312(4) is best understood as creating a hurdle to show that specific actions/inactions of the designee are sufficiently egregious as to be “contrary to” the “best interests” of the ward thereby justifying a change in the status quo (or here, rebutting the presumption that a preneed guardian should be appointed). General examples exist, though not in this specific context. Should the trial court on remand determine that Linda was competent when executing the Designation, and that James is her presumptive preneed guardian, the plain reading of section 744.312(4) requires an approach that gives greater deference to Linda’s designation and requires a showing that — based on Linda’s expected residence in a total care facility — her husband should not serve as her preneed guardian because his appointment “is contrary to” her “best interests.”

REVERSED and REMANDED for proceedings consistent with this opinion.

WOLF, and ROBERTS JJ., concur.

      . On April 19, 2012, in a related proceeding, the trial court found Linda totally incapacitated.

      . After they were appointed emergency temporary co-guardians, the Siblings refused, over the course of seven months, James's many requests to move Linda from Emeritus. They eventually consented to moving her into a new facility called Sunrise after Linda fell two more times at Emeritus and broke her collar bone, nose, and a rib, bruised her brain, and received stitches above her eye.

      . Section 744.309(3), Florida Statutes, specifies grounds for disqualification such as conviction of certain felonies. No contention was made below that James is disqualified under this provision.

      . In light of our decision, we need not address the possible constitutional dimension of this type of personal decision under the state constitution’s provision that “Every natural person has the right to be let alone and free from governmental intrusion into the person's private life except as otherwise provided herein.” Art. I, § 23, Fla. Const.

      . See, e.g., Whitton, et. al., Surrogate Decision-Making Standards for Guardians: Theory and Reality, 2012 Utah L. Rev. 1491, 1498 (2012) ("The lack of statutory guidance on the meaning of “best interest” may explain, in part, why there is so little case law on the meaning of the standard. Typically, best interest issues arise in judicial opinions only when the guardian has egregiously breached the standard by neglecting the incapacitated person, or by engaging in self-dealing”) (citing specific examples from Delaware, Ohio, Pennsylvania, Iowa, and New York).

        . See, e.g., Morris, 1 So.3d 1236 (affirming trial court’s finding that a ward’s minimally involved family members were not appropriate persons to appoint as guardians); Davis v. King, 686 So.2d 763 (Fla. 5th DCA 1997) (finding conflict of interest rebutted the statutory presumption that a preneed guardian entitled to serve as guardian); In re Guardianship of Stephens, 965 So.2d 847, 851-52 (Fla. 2d DCA 2007) (reasoning it was contrary to a ward’s best interest to appoint any member of the ward’s dysfunctional family as guardians). See also Duke v. Duke, 522 So.2d 258 (Ala.1988) (reversing trial court decision that appointment of son as guardian of incapacitated mother was contrary to mother’s best interest where there was no evidence son was dishonest, financially irresponsible or self-dealing, or uncaring and did not tend to her needs); In re Moses, 273 Ga.App. 501, 615 S.E.2d 573 (2005) (affirming trial court's decision to appoint ward’s sister rather than daughter as guardian of the person where although there was statutory preference for children over siblings, evidence showed ward expressed preference for sister and daughter was neglectful and abusive to ward); In re Hodgman, 269 Ga.App. 34, 602 S.E.2d 925 (2004) (finding no abuse of discretion for trial court to depart from statutory preference in appointing guardians where evidence demonstrated son mismanaged ward's assets, acting in a manner contrary to the ward's best interest); Brown v. Storz, 710 S.W.2d 402 (Mo. App. E.D.1986) (holding evidence supported appointment of mother as guardian of incompetent ward where substantial evidence demonstrated ward’s spouse was a habitual drunkard); see also Whitton, supra note 5, at 13.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Paul C. MOYER, Appellant, v. FLORIDA DEPARTMENT OF TRANSPORTATION, Appellee.
    No. 1D13-0795.
    District Court of Appeal of Florida, First District.
    Jan. 29, 2014.

      C. Vincent LoCurto, Tallahassee, for Appellant.
    Susan Schwartz and Gregory G. Costas, Assistants General Counsel, Tallahassee, for Appellee.
   PER CURIAM.

Paul C. Moyer, appellant, seeks review of the Public Employee Relations Commission’s (the Commission) order upholding his dismissal from the employ of the Florida Department of Transportation (the Department). We find no error in Moyer’s dismissal for conduct unbecoming a public employee, in violation of Rule 60L-36.005(3)(f), Florida Administrative Code (2012). However, we conclude that the Department failed to comply with the pre-dismissal notice requirements provided by statute, and reverse and remand on that basis.

Florida law provides:

In extraordinary situations such as when the retention of a career service employee who has satisfactorily completed at least a 1-year probationary period in his or her current position would result in damage to state property, would be detrimental to the best interest of the state, or would result in injury to the employee, a fellow employee, or some other person, such employee may be suspended or dismissed without 10 days’ prior notice, provided that written or oral notice of such action, evidence of the reasons therefor, and an opportunity to rebut the charges are furnished to the employee prior to such dismissal or suspension. Such notice may be delivered to the employee personally or may be sent by certified mail with return receipt requested. Agency compliance with the foregoing procedure requiring notice, evidence, and an opportunity for rebuttal must be substantiated.

§ 110.227(5)(b), Fla. Stat. (2012) (emphasis added).

Moyer’s dismissal stemmed from two voicemails he left two of his co-workers, Ken and Krista Shooltz, in the early morning hours of September 10, 2012. The voicemails asserted that someone was harassing Moyer at his residence; that the Shooltzs were somehow connected to the harassment; that Moyer was no longer going to tolerate the behavior; and that he was prepared to use his firearms. After arriving at work, the Shooltzs played the voicemails for their supervisors. David Robertson, the Department’s Chief District Counsel, spoke with Moyer over the telephone later that day, asking Moyer to provide his version of what prompted him to leave the voicemails.

Subsequent to the telephone conversation, Moyer was dismissed. Moyer appealed his dismissal to the Commission, which granted an evidentiary hearing before a hearing officer. Following the hearing, the hearing officer issued a recommended order, which was later adopted by the Commission, in which the officer found that the Department had appropriately utilized the extraordinary situation procedure described in section 110.227(5)(b). This finding was based on the conversation between Moyer and Robertson.

At the evidentiary hearing concerning Moyer’s dismissal, Robertson testified that he never told Moyer that he was facing disciplinary action or that he was under investigation for any wrongdoing. Further, there is no indication that Moyer knew that his conversation with Robertson was his opportunity to rebut the charges levelled against him. Considering that Moyer did not know he was facing charges, it is unclear how he could have known that his telephone call with Robertson was his statutorily required rebuttal opportunity. Thus, the Moyer-Robertson conversation cannot qualify as the notice contemplated by section 110.227(5)(b). Moreover, the Department presented no other evidence that it complied with the extraordinary situation procedure before it took action against Moyer. Therefore, we reverse with instructions that Moyer be awarded ten days’ back pay. See Hooker v. Dep’t Mgmt. Servs., 27 FCSR 171, 173 (PERC 2012) (remanding for award of ten days’ back pay where agency failed to properly implement the extraordinary dismissal procedures of section 110.227(5)(b)).

Finally, Moyer requested attorney’s fees in his initial brief. Because he failed to file a motion in accordance with Rule 9.400(b), Florida Rules of Appellate Procedure, Moyer has waived any entitlement to appellate attorney’s fees. See, e.g., Sch. Bd. of Alachua County v. Rhea, 661 So.2d 331 (Fla. 1st DCA 1995), reh’g denied. Furthermore, the recovery of attorney’s fees at any level requires a substantive legal basis for the award. See Westinghouse Elec. v. Widlan, 623 So.2d 511, 514 (Fla. 1st DCA 1993). Moyer has presented this court with no legal basis supporting an award for his attorney’s fees incurred below; consequently, no attorney’s fees will be awarded.

Accordingly, we AFFIRM in part, and REVERSE and REMAND in part.

WOLF, VAN NORTWICK, and CLARK, JJ., concur.


author: BENTON, J.

text:
    TRISHA’S ONE STOP, INC., Appellant, v. OFFICE OF FINANCIAL REGULATION, Appellee.
    No. 1D13-0846.
    District Court of Appeal of Florida, First District.
    Jan. 29, 2014.

      Todd M. Ladouceur and Courtney F. Smith of Galloway, Johnson, Tompkins, Burr & Smith, P.L.C., Pensacola, for Appellant.
    Colin M. Roopnarine, General Counsel, and Tobi C. Pam, Assistant General Counsel, Tallahassee, for Appellee.
   BENTON, J.

Trisha’s One Stop, Inc. appeals a final order of the Office of Financial Regulation that imposed a fine of $15,000 and revoked its license to operate a “money services business” pursuant to Chapter 560, Part III, Florida Statutes (2010). We affirm the final order.

Proceedings below began when the Office of Financial Regulation filed an administrative complaint that alleged multiple violations of Chapter 560 and proposed to enter a final order “imposing an administrative fíne of $15,000, the entry of a Cease and Desist Order, and taking any other appropriate action against Respondent’s license issued pursuant to Chapter 560.” See §§ 560.114, 560.1285, 560.810, Fla. Stat. (2010); Fla. Admin. Code R. 69V-560.704. The administrative complaint gave clear notice of a point of entry, stating that failure to respond within twenty-one days of receipt would be deemed a waiver of all rights to a hearing “and Final Order will be entered without further notice.”

Trisha’s One Stop failed to file a petition for hearing in response to the administrative complaint, which it received by certified mail on December 5, 2012. Accordingly, on January 25, 2013, the final order under review was entered without a hearing. As the basis for administrative action, the final order incorporated the facts alleged in the complaint by reference, and adopted them as the facts supporting the agency’s action. The Office of Financial Regulation ordered Trisha’s One Stop to pay a $15,000 fine and revoked its license.

The cases are clear that “[w]hen a party waives the right to challenge the factual allegations of an administrative complaint, ... the facts of the complaint are deemed to be admitted.” Nicks v. Dep’t of Bus. & Prof’l Regulation, 957 So.2d 65, 67 n. 1 (Fla. 5th DCA 2007). Because Trisha’s One Stop failed to file a petition for a hearing in response to the administrative complaint within the time allowed, the facts alleged in the complaint were deemed the facts of the case. See Fla. Admin. Code R. 28-106.111(2) & (4); Wojnowski v. State, Office of Fin. Regulation, 98 So.3d 189, 191 (Fla. 1st DCA 2012) (holding that when Wojnowski “failed to timely seek an administrative hearing to challenge the facts supporting OFR’s intended action, he waived any further opportunity to do so,” citing Florida Administrative Code Rule 28-106.111(4)); Diaz v. State, Dep’t of Bus. & Prof’l Regulation, 21 So.3d 919, 920 (Fla. 3d DCA 2009) (holding that any person who receives written notice of an agency decision that does or may determine substantial interests and who fails to file a written request for a hearing within 21 days waives the right to request a hearing, quoting Florida Administrative Code Rule 28-106.111(4)); Aleong v. Fla. Dep’t of Bus. & Prof’l Regulation, 963 So.2d 799, 801-02 (Fla. 4th DCA 2007) (upholding the Board of Veterinary Medicine’s order granting the Department’s Motion for Waiver of Rights filed after Dr. Aleong failed to make a timely request for a hearing to dispute the Department’s allegations, relying on Florida Administrative Code Rule 28-106.111); Autoworld of Am. Corp. v. Dep’t of Highway Safety, 754 So.2d 76, 77 (Fla. 3d DCA 2000) (“In order to challenge the factual basis of the complaint, it would have been necessary for Autoworld to request a formal hearing under subsection 120.57(1).”). Trisha’s One Stop’s failure to request a hearing was a “green light” for the agency to decide the case on the basis of the facts alleged in the complaint, and to impose any appropriate penalty.

Trisha’s One Stop’s reliance on Scott v. Department of Professional Regulation, 603 So.2d 519 (Fla. 1st DCA 1992), is misplaced. There we did say that Ms. Scott’s failure to appear or respond did not relieve the Department of its obligation to substantiate the charges against her, citing Florida State Board of Medical Examiners v. James, 175 So.2d 815 (Fla. 3d DCA 1965). But, as we noted in Giordano v. Department of Banking & Finance, 596 So.2d 712, 714 (Fla. 1st DCA 1992), James “was decided prior to the implementation of the Administrative Procedures Act” and “involved the entry of an administrative default order based on respondent’s failure to appear, without notice to the respondent that a result of such a failure could be default.” The Scott court itself clarified on rehearing that the decision did not require the Department to convene a section 120.57(1) hearing “in such circumstances” — i.e., when a licensee does not “respond to the» complaint against her.” Scott, 603 So.2d at 520.

In the present case, the administrative complaint alleged four distinct violations, advised Trisha’s One Stop that section 560.114(7), Florida Statutes, authorized imposition of a fine of up to $10,000 per violation and suspension or revocation of a license, and that “the Office will enter a FINAL ORDER imposing any statutory penalties authorized by Chapter 560, Florida Statutes, which may include revocation or suspension of Respondent’s license as a money services business in this state and imposition of an administrative fine.” This is not a case where the agency relied on facts not pleaded in the complaint. The administrative complaint also notified Trisha’s One Stop that failure to respond within twenty-one days of receipt of the administrative complaint “shall be deemed a waiver of all rights to a hearing, and Final Order will be entered without further notice.” Despite this, Trisha’s One Stop failed to file a timely petition for a hearing, and so forfeited its right to an evidentiary hearing.

Affirmed.

PADOVANO and RAY, JJ., concur.

      . The administrative complaint alleged that an examination of the business records for Trisha’s One Stop, for the period of August 8, 2010 through August 7, 2011, revealed Trisha's One Stop’s failure to: (1) maintain a copy of the photographic identification presented by the customer for payment instruments accepted having a face value of $1,000.00 or more; (2) maintain thumbprints of customers who cashed checks in amounts over $1,000.00; (3) have an independent review of its anti-money laundering program; and (4) maintain corporate files on all customers who cashed corporate or third-party payment instruments exceeding $1,000.00. The facts alleged in the administrative complaint are sufficient to establish the alleged violations of Chapter 560 and to justify the penalties imposed.

      . Ms. Scott, a registered nurse, challenged an administrative order that suspended her license "after a hearing before the Board of Nursing.” Scott v. Department of Professional Regulation, 603 So.2d 519, 520 (Fla. 1st DCA 1992). She did not appear at the hearing and did not respond otherwise to the complaint against her.

      . Because the only evidence presented at the hearing was a hearsay report which would not have been admissible over objection in a civil action, the Scott panel determined there was insufficient evidence to support the findings and reversed the order suspending the license. Id.

      . In contrast, the administrative complaint informed Giordano, just as it informed appellant in the present case, that the failure to timely request a hearing constituted a waiver of the right to do so and that a final order would be entered, so that there was "no error in the failure to hold an evidentiary proceeding on the allegations of the complaint prior to entry of the final order.” Giordano v. Dep’t of Banking & Fin., 596 So.2d 712, 714 (Fla. 1st DCA 1992).

      .We reject appellant’s argument that the doctrine of equitable tolling applies here. Trisha’s One Stop does not assert it was prevented from filing a petition or misled by the agency into inaction during the twenty-one day period. See, e.g., Riverwood Nursing Ctr., LLC v. Agency for Health Care Admin., 58 So.3d 907, 910 (Fla. 1st DCA 2011) (rejecting claim that the deadline for filing the request for hearing should have been equitably tolled because of representations by AHCA’s counsel made "after' the filing deadline had already expired,” not "before the deadline expired ”).


text:
    Leonard E. TUNSIL, Appellant, v. REEMPLOYMENT ASSISTANCE APPEALS COMMISSION and G4S Secure Solutions USA Inc., Appellee.
    No. 1D13-2920.
    District Court of Appeal of Florida, First District.
    Jan. 29, 2014.
    Leonard E. Tunsil, pro se, Appellant.
    Norman A. Blessing, General Counsel, and Louis A. Gutierrez, Senior Attorney, Reemployment Assistance Appeals Commission, for Appellee.
   PER CURIAM.

In this case, Leonard E. Tunsil appealed the denial of unemployment compensation benefits in Reemployment Assistance Appeals Commission case number 13-03468. We affirmed the Commission in a per cu-riam decision on December 16, 2013. Pri- or to the issuance of the decision in this case, Tunsil incessantly filed a series of motions — eleven at last count (not including other filings) — each making more outlandish assertions and hostile racist comments. The filings were unauthorized and frivolous; they seriously impeded this Court’s review and ability to dispose of the case. As a result, on December 11, 2013, we directed Tunsil to show cause why sanctions should not be imposed, to include a prohibition on any further pro se filings. See Order, No. 1D13-2920 (1st DCA Dec. 11, 2013) (citing Bolton v. SE Property Holdings, LLC, 127 So.3d 746, 2013 WL 6171280 (Fla. 1st DCA Nov.2013), and State v. Spencer, 751 So.2d 47 (Fla.1999)). Tunsil responded with more of the same outrageous racial recriminations. Based on his response, this Court concludes that Tunsil has failed to set forth a legal basis that precludes the imposition of sanctions and has failed to establish that the imposition of sanctions is not warranted.

Accordingly, Leonard E. Tunsil is prohibited from filing any further pro se papers in this Court related to the denial of unemployment compensation benefits in Reemployment Assistance Appeals Commission case number 13-03468. The Clerk of this Court is directed to no longer accept any future filings on his behalf concerning this case unless they are filed by a member in good standing with The Florida Bar. Tunsil is cautioned that any violation of this order may result in the imposition of additional sanctions. See Ardis v. Pensacola State College, 128 So.3d 260 (Fla. 1st DCA 2013).

SANCTIONS IMPOSED.

THOMAS, RAY, and MAKAR, JJ., concur.


text:
    Noel PLANK, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-4458.
    District Court of Appeal of Florida, First District.
    Jan. 29, 2014.

      Nancy A. Daniels, Public Defender, and Colleen D. Mullen, Assistant Public Defender, Tallahassee, for Appellant.
    William N. Meggs, State Attorney, and Charles Dewrell, Assistant State Attorney, Tallahassee, for Appellee.
   ON MOTION FOR REHEARING, CLARIFICATION, REQUEST FOR WRITTEN OPINION, AND CERTIFICATION OF CONFLICT

PER CURIAM.

We deny Appellant’s motion for rehearing, but grant his motion for a written opinion and substitute this opinion in place of our previously issued per curiam affir-mance.

Appellant was found guilty of direct criminal contempt and sentenced to 30 days in jail for arriving drunk to jury duty and disrupting the process of jury selection. He raises three issues in this direct appeal. We affirm two of the issues without further comment, and affirm the remaining issue for the reasons that follow.

Appellant argues that the trial court erred by not appointing him counsel or giving him an opportunity to seek counsel for the contempt proceeding. We affirm on the authority of Williams v. State, 698 So.2d 1350 (Fla. 1st DCA 1997), and Saunders v. State, 319 So.2d 118 (Fla. 1st DCA 1975), in which this court held that a defendant does not have a right to counsel under the Sixth Amendment or the Florida Rules of Criminal Procedure when charged with direct criminal contempt. Accord Searcy v. State, 971 So.2d 1008, 1014 (Fla. 3d DCA 2008); Forbes v. State, 933 So.2d 706, 711 (Fla. 4th DCA 2006); see also In re Oliver, 333 U.S. 257, 274-75, 68 S.Ct. 499, 92 L.Ed. 682 (1948) (explaining that the right to counsel and other due process requirements are not implicated in contempt cases involving “charges of misconduct, in open court, in the presence of the judge, which disturbs the court’s business, where all of the essential elements of the misconduct are under the eye of the court, are actually observed by the court, and where immediate punishment is essential to prevent demoralization of the court’s authority before the public”) (internal quotations and ellipses omitted); In re Terry, 128 U.S. 289, 313, 9 S.Ct. 77, 32 L.Ed. 405 (1888) (explaining that a court’s jurisdiction to punish direct contempt vests upon commission of the contemptuous act and that it is within the court’s discretion to punish the offense immediately or to postpone action until the defendant is afforded an opportunity to present a defense).

We recognize that the Second District held in Woods v. State, 987 So.2d 669 (Fla. 2d DCA 2007), and Al-Halkim v. State, 53 So.3d 1171 (Fla. 2d DCA 2011), that a defendant has a right to counsel under the Florida Rules of Criminal Procedure in direct criminal contempt proceedings. The Fourth District reached a similar conclusion in Hayes v. State, 592 So.2d 327 (Fla. 4th DCA 1992). But see Forbes, supra. Accordingly, we certify conflict with these cases.

AFFIRMED; CONFLICT CERTIFIED.

ROBERTS, WETHERELL, and MARSTILLER, JJ., concur.


author: PER CURIAM. CLARK, Justice.

text:
    In re Leslie R. LEAVOY, Jr.
    No. 2013-B-2006.
    Supreme Court of Louisiana.
    Nov. 1, 2013.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

_[jThis disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Leslie R. Leavoy, Jr., an attorney licensed to practice law in Louisiana. '

UNDERLYING FACTS

Count I

In October 2003, Mary McRae retained DeRidder attorney Tony Bennett to represent her in a suit against her former husband alleging that he had breached a confidentiality clause in their divorce agreement. Ms. McRae paid Mr. Bennett a $5,000 advance minimum fee to handle the matter. Several months later, Mr. Bennett determined that he could no longer represent Ms. McRae due to a conflict of interest, and respondent agreed to assume her representation. In May 2004, Mr. Bennett transferred the $5,000 advance fee.paid by Ms. McRae to respondent.

Respondent represented ‘ Ms. McRae through the fall of 2005, but failed to move her case forward and failed to communicate with her regarding the status of the matter. Indeed, when pressed by his client for information, respondent either ignored her inquiries or misled her by providing false information. For example, respondent told Ms. McRae that he had filed her breach of contract lawsuit, but she subsequently learned from the clerk of court’s office that no suit was pending. Thereafter, Ms. McRae recorded a telephone conversation with respondent in 12which he told her that her former husband had a “spy” in the clerk of court’s office and that the lawsuit he had prepared was either sitting on someone’s desk un-filed or it had been assigned a new docket number. Respondent then promised to file a new lawsuit for Ms. McRae the following day, but he failed to do so.

In October 2005, Ms. McRae discharged respondent and requested that her file and fees be returned. When respondent did not comply with this request, Ms. McRae lodged a complaint against him with the ODC in December 2005. Respondent ultimately did not refund Ms. McRae’s $5,000 fee until February 2006, and she did not receive her file until June 2006.

The ODC alleged that respondent’s conduct in the McRae matter violated the following provisions of the Rules of Professional Conduct: Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.16(d) (obligations upon termination of the representation), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation).

Count II

On January 7, 2010, respondent was arrested in Rapides Parish and charged with DWI, careless operation of a motor vehi-ele, and obstruction of a court order. On October 4, 2010, respondent voluntarily admitted himself to an inpatient substance abuse treatment program at the Palmetto Addiction Recovery Center in Rayville, Louisiana. Respondent was discharged from Palmetto on January 11, 2011 with a diagnosis of alcohol dependence. Following his discharge, the Palmetto staff recommended that respondent enter into a recovery agreement with the Lawyers Assistance Program (“LAP”); however, respondent “didn’t see any reason” to execute the contract and thus did not do so.

3In March 2011, respondent pleaded guilty to the DWI charge pursuant to the provisions of La.Code Crim. P. art. 894; the remaining charges were dismissed. Respondent was placed on unsupervised probation for one day and ordered to pay a fíne and court costs.

The ODC learned of respondent’s DWI conviction in April 2011 and commenced an investigation. In May 2011, the ODC notified respondent that a complaint had been opened against him, and instructed him to contact LAP to arrange for a substance abuse evaluation. On June 8, 2011, respondent and his counsel met with the Executive Director of LAP, J.E. “Buddy” Stockwell, III. On June 13, 2011, Mr. Stockwell advised respondent that he would be required to undergo a three-day inpatient professional assessment at Palmetto before entering into a LAP contract. Respondent did not schedule the evaluation with Palmetto at that time.

Approximately two weeks later, on July 1, 2011, respondent gave a sworn statement to the ODC. During the statement, respondent admitted that he had not been evaluated by Palmetto since receiving Mr. Stockwell’s June 13th letter, nor had he contacted Palmetto to arrange for an evaluation, as directed by Mr. Stockwell. Asked whether he had any intention of doing so, respondent replied, “I have no intentions what — one way or the other.” Later during the sworn statement, respondent testified he was willing to go to Palmetto for an evaluation. He thereafter scheduled the evaluation twice but can-celled both times, citing family emergencies.

Meanwhile, on August 15, 2011, the ODC received a letter from Judge C. Kerry Anderson of the 36th Judicial District Court for the Parish of Beauregard, where respondent was then a public defender, concerning respondent’s persistent abuse of alcohol. Judge Anderson reported that respondent was scheduled to appear in his court at 9:00 a.m. on August 5, 2011 for “felony pre-trial day.” There |4were 42 cases set for hearing on that day, and respondent was counsel of record in 11 of the cases. When court recessed shortly after 10:00 a.m., respondent still had not made an appearance, so Judge Anderson inquired of respondent’s secretary whether she knew his whereabouts. The secretary reported that she had spoken with respondent at 8:45 a.m., when he had said he was on his way to court, but that she had been unable to reach him since then. Concerned for respondent’s well-being, Judge Anderson dispatched the Chief Public Defender to check on respondent. A while later, Judge Anderson received a report that respondent had been located at his house, but that he was in no condition to appear in court that day because he was “in an intoxicated condition, passed out, partially-clothed, half-conscious in his bedroom.”

Judge Anderson also advised the ODC that there had been other occasions when he suspected respondent had been drinking when he appeared in court, and that such occurrences “have become more frequent over the last couple of months.” Judge Anderson stated that he had twice called respondent into his office to warn him “that his further appearance under the influence of alcohol would not be tolerated.” On August 10, 2011, Judge Anderson signed an order directing the Public Defender’s Office to reassign all pending criminal and juvenile cases assigned to respondent.

|sOn August 23, 2011, respondent was admitted to Palmetto for a three-day inpatient substance abuse evaluation. Following his evaluation, respondent was diagnosed as suffering from alcohol dependence with relapse. Respondent remained at Palmetto for relapse treatment until October 24, 2011. Subsequent to his discharge from treatment, respondent entered into a five-year LAP recovery agreement dated November 28, 2011. Respondent has been in full compliance with the requirements of his LAP agreement since that time.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 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(d) (engaging in conduct prejudicial to the administration of justice).

DISCIPLINARY PROCEEDINGS

In April 2012, the ODC filed two counts of formal charges against respondent. Respondent answered the formal charges, and the matter was set for a formal hearing before the hearing committee. Prior to the hearing, respondent and the ODC entered into a joint stipulation of facts and rule violations. In this document, respondent stipulated to the essential facts alleged by the ODC and admitted that he violated the Rules of Professional Conduct as charged, except that respondent did not stipulate to a violation of Rule 8.4(c) in the McRae matter.

Hearing Committee Report

The hearing committee conducted a hearing in October 2012. This was primarily a hearing in mitigation; however, the parties did present evidence and testimony concerning the few disputed issues which remain. In addition, respondent presented witnesses who confirmed that he is in full, sustained | (¡remission from chemical dependency and that he has been very compliant with his recovery.

Considering the evidence and testimony presented at the hearing, as well as the parties’ stipulations, the hearing committee made factual findings consistent with the underlying facts set forth above. In Count I of the formal charges, respondent misled Ms. McRae regarding the status of her case in order to conceal his lack of diligence in failing to file her lawsuit. Furthermore, after Ms. McRae dismissed respondent for failing to move her case forward, he did not promptly refund the fees she had paid or return her file in a timely manner. In connection with Count II, respondent was convicted of DWI and was too intoxicated to appear in court for a felony pre-trial hearing day. The committee found this conduct violated the Rules of Professional Conduct as charged in the formal charges.

Respondent stipulated that he violated duties owed to his clients, the public, and the legal system, causing potential harm. He also stipulated that he acted knowingly, if not intentionally, in Count I, and that he acted knowingly in Count II. The committee determined that the applicable baseline sanction in this matter is suspension.

In aggravation, the committee found multiple offenses and substantial experience in the practice of law (admitted 1979). The committee found the following mitigating factors are present: absence of a prior disciplinary record, full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, character or reputation, and chemical dependency.

The committee concluded:

|7Because of Respondent’s successful rehabilitation to date, his cooperation in the disciplinary proceeding, minimal harm to clients and no record of previous misconduct, this committee recommends that the Respondent be suspended from the practice of law for a period of 18 months with all but six months deferred, subject to Respondent’s successful completion of the following supervisions:
1. The completion of all terms and conditions of his contract with the Lawyers Assistance Program;
2. Respondent’s continued participation in Alcoholics Anonymous for the period of his Lawyers Assistance Program contract; and
3. Respondent successfully complying with the requirements of both programs and payment of all costs associated with this matter.

Respondent filed an objection to the hearing committee’s report and recommendation, asserting that the committee erred in failing to find certain mitigating factors and in its assessment of the weight to be given to the mitigating circumstances. Respondent also contended that the actual period of suspension recommended by the committee is too harsh, and that the appropriate sanction in this matter is a fully deferred period of suspension with probation and continued LAP monitoring. For its part, the ODC generally agreed with the hearing committee’s report, although it did take issue with some of the findings relating to aggravating and mitigating factors.

Disciplinary Board Recommendation

After review, the disciplinary board found that the hearing committee’s factual findings are not manifestly erroneous, as they are largely based upon respondent’s stipulations. The board also found respondent violated the Rules of Professional Conduct as alleged in the formal charges.

|sThe board determined that respondent knowingly and intentionally violated duties owed to his clients, the public, and the profession. Respondent caused actual injury, albeit minimal, and further there was a substantial risk of harm to the public and the profession if his alcoholism remained unchecked and his conduct continued. According to the ABA’s Standards for Imposing Lawyer Sanctions, the applicable baseline sanction in this matter is suspension.

In aggravation, the board found a dishonest or selfish motive, multiple offenses, and substantial experience in the practice of law. In mitigation, the board' found the following factors: absence of a prior disciplinary record, personal or emotional problems, character or reputation, chemical dependency, delay in the disciplinary proceedings (as to Count I only), and remorse.

Turning to the issue of an appropriate sanction, the board acknowledged that the sanction recommended by the hearing committee (an eighteen-month suspension with all but six months deferred) is within the range of appropriate sanctions for the misconduct at issue here. However, the board felt a lengthier but fully deferred suspension is warranted in this case based upon the mitigating circumstances present, most notably the “compelling” evidence of respondent’s rehabilitation from alcoholism.

Based on this reasoning, the board recommended that respondent be suspended from the practice of law for two years, fully deferred, subject to respondent’s successful completion of a period of probation coinciding with a new five-year LAP agreement. The board also recommended that respondent be assessed with the costs and expenses of this matter.

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.

The record supports a finding that respondent misled his client regarding the status of her case in order to conceal his lack of diligence in failing to file her lawsuit. Furthermore, after the client discharged respondent for failing to move her case forward, he did not promptly refund the fees she had paid or return her file in a timely manner. In connection with Count II, respondent was convicted of DWI and was too intoxicated to appear in court for a felony pre-trial hearing day. Based on these facts, respondent has violated the Rules of Professional Conduct as found by the disciplinary board.

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).

| inRespondent has stipulated that his conduct was both knowing and intentional and caused both actual and potential harm. The applicable baseline sanction in this matter is suspension.

The following aggravating factors are present: a dishonest or selfish motive, multiple offenses, and substantial experience in the practice of law (admitted 1979). The following mitigating factors are supported by the record: personal or emotional problems, character or reputation, chemical dependency, and remorse.

In 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 |n 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 alcohol-related criminal conviction and failure to appear for court as well as his neglect of a client matter) is directly related to his substance dependence. However, respondent has demonstrated a meaningful and sustained period of successful rehabilitation from his chemical dependency, and his recovery has made a recurrence of his misconduct very unlikely. Notably, respondent has been sober for more than two years since completing the treatment program at Palmetto. He has also been subject to a LAP agreement since November 2011, and the director of the program reports that respondent’s performance under the agreement has been exemplary to date.

Accordingly, we will accept the board’s recommendation and suspend respondent from the practice of law for two years, fully deferred, subject to his successful completion of a period of probation to coincide with a newly executed five-year LAP agreement. We caution respondent that any violation of 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.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Leslie R. Leavoy, Jr., Louisiana Bar Roll number 8186, be and he hereby is suspended from the practice of law for two years. This suspension shall be deferred in its entirety, subject to respondent’s successful completion of a period of probation governed by the conditions set forth in this opinion. All costs and expenses in the matter are 112assessed 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.

U respectfully dissent from the sanction imposed.

While I applaud the respondent’s successful rehabilitation from his substance dependency, I agree with the Hearing Committee’s recommendation for discipline in this matter. The Hearing Committee, which heard the evidence and reviewed all the exhibits, recommended that the baseline sanction of suspension should be imposed. Taking into account the cause of the attorney’s misconduct, the Hearing Committee recommended all but a small portion of that suspension should be deferred. However, the Hearing Committee found the respondent should serve a short term of suspension. I agree.

As found by the majority, it is abundantly clear the respondent’s alcohol-related criminal conviction and failure to appear for court, as well as his neglect of a client matter, is directly related to his former substance dependence. Respondent has stipulated his conduct was both knowing and intentional, and caused both actual and potential harm. The record additionally shows the respondent was twice warned that his conduct would not be tolerated.

Even the cases cited by the majority in support of greater leniency in sanctions where there has been a causal connection between substance abuse and attorney misconduct have required the attorneys to serve some term of suspension. See In re: Williams, 2010-1972 (La.1/7/11); 52 So.3d 864 (suspension of three years with eighteen months deferred); In re: Steinhardt, 2004-0011 (La.9/9/04); 888 So.2d 404 (three year suspension with two years deferred); and In re: Doyle, 2007-2015 (La.4/4/08); 978 So.2d 904 (downward deviation from baseline of |2disbarment to three years suspension).

Considering both the respondent’s conduct and his rehabilitation to date, I feel the proper sanction in this case was that recommended by the Hearing Committee, ie. suspension of the practice of law for eighteen months with all but six months deferred, followed by a period of probation with conditions.

      . Upon learning this information, Judge Anderson asked other attorneys from the Public Defender's Office to meet with respondent’s clients, and the defendants either proceeded to enter guilty pleas or had their cases re-fixed to a later date. As a result of these efforts by others, respondent's clients were not specifically harmed by his failure to appear in court on August 5, 2011, although respondent did stipulate that he had wasted the time and resources of the trial court.

      . On August 18, 2011, the ODC filed a petition for interim suspension for threat of harm to the public based upon the foregoing facts. After deferring consideration of the petition for several months to determine the progress of respondent’s treatment at Palmetto, we ultimately denied the petition on December 16, 2011. However, our order specifically instructed respondent to “fully and completely adhere to all terms of the recovery agreement he executed with the Lawyers Assistance Program, and such other conditions as may be imposed upon him by the Lawyers Assistance Program,” or face the possibility of further proceedings. In re: Leavoy, 11-1824 (La. 12/16/11), 76 So.3d 422.

      . Respondent was issued a formal private reprimand in 1990, and thus it cannot be said that he has no prior discipline for purposes of mitigation. Nevertheless, the ODC acknowledges that due to the remoteness of this disciplinary offense, it should not be considered an aggravating factor.

      . The committee was favorably impressed by respondent’s efforts at recovery from his alcoholism, and found in mitigation that he has demonstrated interim rehabilitation from chemical dependency. We note, however, that interim rehabilitation is no longer recognized as a mitigating factor in the ABA Standards.


text:
    STATE of Louisiana v. Vorris WHITE.
    No. 2013-KK-1525.
    Supreme Court of Louisiana.
    Nov. 8, 2013.

      See also, 74 So.3d 748.
   PER CURIAM.

_JjWe granted the State’s writ application in this criminal matter to review whether the State produced sufficient “competent evidence” to convict the defendant as a quadruple offender under La.Rev.Stat. § 15:529.1 (the “Habitual Offender Act”). After reviewing the transcript and the evidence presented at the habitual offender hearing, we conclude the District Court erred in finding the State’s evidence was insufficient to prove the defendant was the same person who pled guilty to three prior felony offenses. In a plurality decision, the Court of Appeal denied writs. For the following reasons, we reverse the District Court’s ruling and remand for the defendant to be sentenced as a fourth felony offender.

In this case, the defendant was convicted of one count of unauthorized use of a motor vehicle in violation of La.Rev.Stat. § 14:68.4. At the defendant’s sentencing, the State filed a bill of information alleging the defendant was a quadruple offender in violation of the Habitual Offender Act. Specifically, the State alleged the defendant had previously pled guilty to (1) possession of cocaine in violation of La.Rev. Stat. § 40:967(0(2) in Case Number 349-012 on January 27, 1992, (2) access device fraud in violation of La.Rev.Stat. § 14:70.4 in Case Number 368-994 on July 20, 1994, and (3) possession of heroin in violation of La.Rev.Stat. § 40:966(0(1) in Case Number 409-821 on October 20, 1999. After | ^conducting a habitual offender hearing, the District Court concluded the State failed to establish the defendant’s identity as the person who pled guilty to these three prior felonies. In reaching this conclusion, we find the District Court erred by failing to apply the appropriate standard when weighing the evidence presented.

To meet its burden under the Habitual Offender Act, the State must establish both the prior felony conviction and the defendant’s identity as the same person who committed that prior felony. State v. Payton, 00-2899, p. 6 (La.3/15/02), 810 So.2d 1127, 1130; State v. Neville, 96-0137, p. 7 (La.App. 4 Cir. 5/21/97), 695 So.2d 534, 539-40. This Court has repeatedly held the Habitual Offender Act does not require the State to use a specific type of evidence to carry its burden at á habitual offender hearing. Rather, pri- or convictions may be proved by any competent evidence. Payton, 00-2899 at p. 8, 810 So.2d at 1132; State v. Blackwell, 377 So.2d 110, 112 (La.1979); State v. Curtis, 338 So.2d 662, 664 (La.1976). After reviewing the record, we find the State produced sufficient competent evidence to establish the defendant’s identity as the person who committed each of the three prior felonies alleged.

First, to meet its burden with respect to the possession of heroin (Case Number “409-821”) conviction, the State introduced Exhibits S-2 and S-5. Exhibit S-2 contained an arrest register identifying the 409-821 defendant as “White, Vor-ris A. J” with a date of birth of January 28, 1958, and a social security number of XXX-XX-XXXX. The 409-821 defendant’s fingerprints appeared on the back of this arrest register. Likewise, Exhibit S-5 included, inter alia: (1) the 409-821 defendant’s fingerprints on the reverse side of a bill of information charging “Vor-ris White” with possession of heroin; (2) a screening action form listing “White, Vor-ris A. Jr.” with a date of birth of January 28, 1958, and a Bureau of Identification number of “185902”; and, (3) a docket master identifying the 409-821 defendant as “White, Vorris AJR” and indicating the 409-g21a defendant pled guilty to the offense on October 20, 1999. The State also introduced Exhibit S-l which contained the fingerprints of the defendant taken during a recess the morning of the habitual offender hearing. Additionally, the State called and the District Court certified Officer Jay Jacquet as a fingerprint expert. The District Court found the State failed to prove the defendant’s identity as the 409-821 defendant in part because Officer Jacquet never compared the fingerprints in Exhibits S-l, S-2, and S-5. The record reflects, however, Officer Jac-quet both compared the fingerprints contained in Exhibits S-l, S-2, and S-5, and testified the prints from Exhibits S-2 and S-5 matched the prints in Exhibit S-l taken from the defendant that very morning. Therefore, by eliciting this “expert opinion regarding the fingerprints of the defendant when compared with those in the prior record,” Payton, 00-2899 at p. 6, 810 So.2d 1130, the State presented competent evidence establishing the defendant as the same person who pled guilty in 409-821 of possession of heroin. The District Court further found each of the three prior felonies charged in the defendant’s multiple bill contain slightly different variations on the defendant’s name throughout, sometimes identifying him as “White, Vor-ris A. J,” “Vorris White,” “Vorris A. White,” “White, Vorris AJR,” and “White, Vorris A., Jr.” In light of the matching fingerprints on Exhibits S-l, S-2, S-4, and S-5, the other matching identifiers across the exhibits, and the docket master and a minute entry on the record for the instant case (Case Number “495-050”) refer to the defendant as “White, Vorris A Jr.,” we find these discrepancies are neither significant nor suggestive the defendant is a different person from the defendant convicted in 409-821, 368-994, or 349-012.

The State next introduced Exhibit S-4 to establish the defendant was the same person who pled guilty to unauthorized use of an access card (Case Number “368-994”). Exhibit S-4 contained, inter alia: (1) a docket master identifying the |4368-994 defendant as “White, Vorris AJR”; (2) an arrest register which also identified the 368-994 defendant as “White, Vorris A J” with a date of birth of January 28, 1958, a Bureau of Identification number of “185902P,” and a social security number of XXX-XX-XXXX; (3) a screening action form listing “White, Vorris A JR” with a date of birth of January 28, 1958, and a Bureau of Identification number of “185902”; and, (4) a bill of information charging ‘Vorris White” in 368-994 with the 368-994 defendant’s fingerprints on the reverse side. Comparing these fingerprints from S-4 to the defendant’s fingerprints in S-l, Officer Jacquet concluded the defendant and the person who pled guilty to access device fraud in 368-994 was the same person. The District Court found the State failed to meet its burden to establish the defendant’s identity as to 368-994 because the State produced no photographs of the defendant. This finding was error. The State is not required to produce any specific form of evidence but can meet its burden by producing any competent evidence. Payton, 00-2899 at p. 8, 810 So.2d at 1132. By producing the testimony of Officer Jacquet identifying the fingerprints in S-4 as matching the fingerprints of the defendant, we find the State produced competent evidence sufficient to meet its burden under La.Rev. Stat. § 15:529.1.

With respect to the possession of cocaine conviction (Case Number “349-012”), the State introduced Exhibit S-3. We find the District Court erred when it held the State failed to meet its burden because Exhibit S-3 did not contain fingerprints associated with this 349-012 guilty plea. As this Court has repeatedly held the expert fingerprint comparison is only one of many routes the State can take to meet its burden under the Habitual Offender Act. See Payton, 00-2899 at p. 6, 810 So.2d at 1130-31 (“In attempting [to meet its burden], the State may present: (1) testimony from witnesses; (2) expert opinion regarding the fingerprints of the defendant when compared with those in the prior record; (3) photographs in the duly authenticated record; or (4) evidence of identical drivers license number, sex, |5race and date of birth.”) (emphasis added); State v. Lee, 364 So.2d 1024, 1031-32 (La.1978); Curtis, 338 So.2d at 664. Here, the State met its burden of establishing the defendant’s identity by producing, inter alia: (1) a screening action form identifying the 349-012 defendant as “White, Vorris A Jr.” which listed the same date of birth (January 28, 1958) as did Exhibits S-2, S-4, and S-5 and the same Bureau of Identification number (“185902”) as appeared across Exhibits S-4 and S-5; and, (2) an arrest register identifying the 349-012 defendant as “White, Vorris AJ” and listing the same date of birth and social security number which appeared across Exhibits S-2, S-4, and S-5 and the same Bureau of Identification number appearing in Exhibits S-4 and S-5. Because Officer Jacquet’s expert testimony established the defendant as the same person who committed the crimes charged in 409-821 and in 368-994, the identifiers contained in those prior records establish the defendant was also the same person who committed the felony charged in 349-012. Therefore, based on this strong documentary evidence, we find the State produced competent evidence sufficient to meet its burden under the Habitual Offender Act.

For the foregoing reasons, we reverse the District Court’s ruling and remand for the defendant to be sentenced as a fourth felony offender.

JUDGMENT REVERSED; REMANDED TO DISTRICT COURT.

      . Although the defendant’s social security number is consistent throughout the exhibits presented by the State, we will not disclose the social security number in this opinion.


text:
    In re Robert David HAIRFORD.
    No. 2013-B-2280.
    Supreme Court of Louisiana.
    Dec. 2, 2013.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

| tThis disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Robert David Hairford, an attorney licensed to practice law in Louisiana, but currently ineligible to practice.

FORMAL CHARGES

Count I — The Marsch Matter

Frederick Marsch was terminated by the Department of Public Safety pursuant to a civil service hearing. He filed a timely appeal to the Civil Service Commission (“CSC”), which affirmed his termination on January 13, 2003. On January 15, 2003, Mr. Marsch hired respondent to represent him in an appeal of the CSC’s decision to the First Circuit Court of Appeal. Thereafter, respondent neglected the matter and failed to consult with Mr. Marsch despite numerous notices from the appeals division of the CSC and the clerk of the First Circuit. In 12his answer to the complaint, respondent indicated that he was only retained to perfect an appeal to the CSC, which Mr. Marsch had already completed.

The ODC alleged respondent violated the following provisions of the Rules of Professional Conduct: Rules 1.2(a) (scope of the representation), 1.2(b) (a lawyer may limit the objectives of the representation if the client consents after consultation), 1.3 (failure to act with reasonable diligence and promptness in representing a client), and 8.4(a) (violation of the Rules of Professional Conduct).

Count II — The Clabaugh Matter

In April 2009, James Michael Clabaugh retained respondent to represent him in an uncontested divorce matter, for which respondent received a total fee of $1,500. Mr. Clabaugh stated that respondent took no action in the matter, failed to communicate with him, and failed to keep him informed regarding the status of the matter. Mr. Clabaugh claimed that he made the last payment of $500 on July 9, 2009. Respondent was to prepare and forward divorce documents to Mr. Clabaugh’s wife for her to review, sign, and return. Mr. Clabaugh claimed that respondent failed to address his attempts to contact him and that he had no contact with respondent after July 9, 2009. The ODC sent notice of the related disciplinary complaint to respondent’s primary bar registration address via certified mail, but the notice was returned unclaimed.

The ODC alleged respondent violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4(a)(3) (failure to keep a client reasonably informed about the status of a matter), 1.4(a)(4) (failure to promptly comply with reasonable requests for information), 1.5 (fee arrangements), 1.16(d) (obligations upon termination of the representation), 8.1(c) (failure to cooperate with the ODC in its investigation), 8.4(a), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation).

_|jCount III — The Borne Matter

In 2006, Donna Gayle Borne hired respondent to represent her in a wrongful termination claim against her former employer. Respondent received $500 towards his fee. Ms. Borne claimed that, thereafter, respondent failed to address her attempts to contact him regarding the status of the matter. Ms. Borne stated that she made several attempts to contact respondent, to no avail. The ODC sent notice of the related disciplinary complaint to respondent’s primary bar registration address via certified mail. Although the return receipt card indicates the notice was received on February 26, 2010, respondent failed to provide a response to the complaint.

The ODC alleged respondent violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4(a)(3)(4), 1.5, 1.16(d), 8.1(c), 8.4(a), and 8.4(c).

Count IV — The Succession Matter

In February 2003, respondent was retained to complete the succession of Cornelius Hicks. The last action respondent took in the matter was in May 2006 when he petitioned the court to make Ethel Murphy administrator of the estate. Katie Primas, the initial complainant in the matter, stated that the letter she received from respondent on March 16, 2007 was the last communication any of the heirs have had with him. She also stated that since receiving that letter, the heirs have made numerous attempts to contact respondent regarding the status of the matter, to no avail. The ODC sent notice of the related disciplinary complaint to respondent’s primary bar registration address via certified mail, but the notice was returned undelivered.

The ODC alleged respondent violated the following provisions of the Rules of Professional Conduct: Rules 1.1(a) (failure to provide competent representation |4to a client), 1.4(a)(3)(4), 3.2 (failure to make reasonable efforts to expedite litigation), 1.16(d), 8.1(c), and 8.4(a).

Count V — The Williams Matter

In March 2005, Claude Edward Williams retained respondent to represent him in a claim before the United States Equal Employment Opportunity Commission (“EEOC”). The retainer agreement, which was executed on March 21, 2005, provides that respondent was to prepare and file the EEOC claim on Mr. Williams’ behalf, with additional contracts for legal representation to be completed at the conclusion of the EEOC proceedings. The agreement also called for a non-refundable $500 flat fee. Mr. Williams claimed that he paid respondent a total of $1,500 in cash. In February 2011, the ODC received a complaint initiated by Mr. Williams alleging that, despite his attempts, he had had no contact with respondent in over a year. The ODC sent notice of the related disciplinary complaint to respondent’s primary bar registration address via certified mail, but the notice was returned unclaimed.

The ODC alleged respondent violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4(a)(3)(4), 1.5, 1.16(d), 8.1(c), 8.4(a), and 8.4(c).

Count VI — The Child Suppoyt Matter

In a judgment dated December 10, 2003, respondent was ordered to pay child support in the amount of $795 per month, in addition to 100% of his minor child’s private school tuition and non-covered medical expenses. In August 2011, respondent appeared in court to address allegations that his obligations under the 2003 judgment were in arrears as follows: $46,980 for child support, $2,648.31 for tuition, $1,568.46 for non-covered medical expenses, and $17,800 for spousal |ssupport. Following the proceedings, respondent was held in contempt for failure to provide court-ordered discovery responses, for violation of a restraining order against the disposal of community assets, and for failure to pay monthly child support, monthly spousal .support, tuition fees, and non-covered medical expenses. As a result, he was sentenced to serve 420 days in jail. Respondent was ordered to serve seven days and advised that if he had not complied with the court’s order by the next scheduled hearing on September 12, 2011, the judge would impose a portion or the balance of the sentence.

The ODC alleged respondent violated the following provisions of the Rules of Professional Conduct: Rules 3.4(c) (knowing disobedience of an obligation under the rules of a tribunal), 3.4(d) (failing to make a reasonably diligent effort to comply with a legally proper discovery request by an opposing party), 3.5(d) (engaging in conduct intended to disrupt a tribunal), 8.4(a), and 8.4(c).

DISCIPLINARY PROCEEDINGS

In April 2012, 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 adopted the deemed admitted factual allegations of the formal charges [ fias its factual findings. Based on those facts, the committee determined respondent violated the Rules of Professional Conduct as charged.

The committee determined respondent violated duties owed to his clients, the public, the legal system, and the legal profession. He acted knowingly and intentionally, causing serious or potentially serious injury to his clients. He failed to communicate with his clients and failed to provide them with diligent representation. He then abandoned his practice, thereby leaving his clients without representation. After reviewing the ABA’s Standards'for Imposing Lawyer Sanctions, the committee determined the applicable baseline sanction is disbarment. The committee did not mention any aggravating factors and found no mitigating factors present. The committee therefore recommended respondent be disbarred.

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

Disciplinary Board Recommendation

After review, the disciplinary board determined that the hearing committee’s factual findings in this deemed admitted matter are supported by the factual allegations in the formal charges and/or by the evidence submitted in support of those allegations, with one exception relating to the Williams matter. The formal charges state that Mr. Williams paid respondent a total of $1,500 in cash. However, the handwriting in the initial complaint is not clear, and it is possible that Mr. Williams paid $500 in cash. Because there is nothing else in the record to verify the exact amount that Mr. Williams paid to respondent, the record must reflect that an “undetermined” fee was paid to respondent.

The board also determined respondent violated the Rules of Professional Conduct as alleged in the formal charges, with one exception relating to the [7Clabaugh matter. The board declined to find any rule violations in that matter because neither the language that the ODC used to describe the factual allegations in the formal charges, nor the record, provide clear and convincing evidence that respondent violated the rules as charged in that matter. The board noted that the only evidence submitted by the ODC in this matter is the initial complaint. There is nothing in the record to support the complaint, nor do the formal charges allude to conclusive investigative findings. In the formal charges, the ODC simply asserts that the complainant “states” or “claims” misconduct.

The board determined respondent violated duties owed to his clients, the legal system, and the legal profession. His conduct was both knowing and intentional as the record reflects that he has essentially abandoned his practice and later failed to cooperate with the ODC’s requests for information. He caused actual injury to multiple clients. After reviewing the ABA’s Standards for Imposing Lawyer Sanctions, the board determined the applicable baseline sanction is disbarment.

The board found the following aggravating factors present: 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, substantial experience in the practice of law (admitted 2001), and indifference to making restitution. The board determined the only mitigating factor present is the absence of a prior disciplinary record.

Turning to the issue of an appropriate sanction, the board noted that in prior cases involving similar misconduct, this court has imposed sanctions ranging, from three-year suspensions to disbarment. Considering these cases, and the aggravating and mitigating factors present, the board recommended that respondent be disbarred. The board also recommended he pay restitution to his | ^clients and that he refund all unearned fees. Finally, the board recommended respondent be assessed with the costs and expenses of this matter.

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 of this matter indicates that respondent neglected legal matters, failed to communicate with clients, failed to refund unearned fees, and failed to cooperate with the ODC in its investigations. Nevertheless, because of the language the ODC used to describe the factual allegations of the formal charges, the record does not provide clear and convincing evidence that respondent violated Rail of the Rules of Professional Conduct as alleged in the formal charges. Based on the deemed admitted facts, as written in the formal charges, and the other evidence in the record, we agree that respondent has violated the Rules of Professional Conduct as determined by the disciplinary board.

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 record supports a finding that respondent violated duties owed to his clients, the legal system, and the legal profession, causing actual harm. The applicable baseline sanction in this matter is disbarment. The aggravating and mitigating factors found by the disciplinary board are supported by the record.

Turning to the issue of an appropriate sanction, case law indicates that the sanction for misconduct similar to respondent’s is disbarment. In In re: Hatfield, 08-2632 (La.2/20/09), 2 So.3d 425, we imposed disbarment upon an attorney who neglected legal matters, failed to communicate with his clients, failed to refund unearned fees, and failed to cooperate with the ODC in its investigations. In In re: Williams, 06-2578 (La.2/2/07), 947 So.2d 710, we disbarred an attorney who neglected legal matters, failed to communicate with clients, failed to protect a | inclient’s interest upon termination of the representation, and failed to cooperate with the ODC in its investigations. In In re: Poirrier, 01-1116, 01-1118 (La.6/29/01), 791 So.2d 94, we imposed disbarment upon an attorney who abandoned his law practice and failed to cooperate with the ODC in its investigations.

Based on this jurisprudence, we will adopt the board’s recommendation and disbar respondent. We further order respondent to pay restitution to his clients and to refund all unearned fees.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Robert David Hairford, Louisiana Bar Roll number 27492, be and he hereby is disbarred. His name shall be stricken from the roll of attorneys and his license to practice law in the State of Louisiana shall be revoked. It is further ordered that respondent shall provide an accounting to each of his clients subject of the formal charges, and make full restitution, as appropriate. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . Respondent has been ineligible to practice law in Louisiana since June 1, 2012 for failure to comply with the mandatory continuing legal education requirements. He is also ineligible for failure to pay his bar dues and the disciplinary assessment and for failure to file a trust account disclosure form.

      . On February 28, 2003, respondent issued checks to the First Circuit and to the CSC. That same day, the appeals division of the CSC mailed a notice to respondent and to Mr. Marsch advising that the estimated cost was received and that the record was returnable to the First Circuit. On April 25, 2003, the appeals division of the CSC mailed notice to respondent extending the return date. On June 5, 2003, the First Circuit sent a Notice of Lodging to respondent, informing him that the brief to be filed on behalf of Mr. Marsch was due on June 30, 2003, or the case would be dismissed. Thereafter, respondent filed a request for an extension of time to file the brief, which the First Circuit denied on August 14, 2003. On August 18, 2003, the First Circuit issued an order dismissing Mr. Marsch’s appeal.

      . The record does not reflect whether respondent eventually complied with the court’s order.

      . In In re: Beauchamp, 11-1144 (La.9/23/11), 70 So.3d 781, we cautioned the ODC that alleged rule violations in a deemed admitted matter are not proven by clear and convincing evidence based solely upon statements that the client "claimed" or the client "advised” of misconduct. Nevertheless, the instant formal charges — filed more than six months after our opinion in Beauchamp— continue this ill-advised practice. We therefore again remind the ODC to use more definitive statements of the alleged facts in its formal charges.

      . ABA Standard 4.41 provides that disbarment is generally appropriate when (a) a lawyer abandons the practice and causes serious or potentially serious injury to a client; or (b) a lawyer knowingly fails to perform services for a client and causes serious or potentially serious injury to a client; or (c) a lawyer engages in a pattern of neglect with respect to client matters and causes serious or potentially serious injury to a client.