author: APTE, A.S., Associate Judge.

text:
    William P. McCLOSKEY, Appellant, v. DEPARTMENT OF FINANCIAL SERVICES, Appellee.
    No. 5D12-2872.
    District Court of Appeal of Florida, Fifth District.
    June 21, 2013.

      H. Richard Bisbee and Dannie L. Hart, of H. Richard Bisbee P.A., Tallahassee, for Appellant.
    James A. Bossart, Senior Attorney, Department of Financial Services, Division of Legal Services, Tallahassee, for Appellee.
   APTE, A.S., Associate Judge.

William McCloskey seeks review of a final order of the Department of Financial Services (“the Department”), which suspended his insurance licenses for six months for selling viatical settlement purchase agreements that were not registered as securities. We reverse and remand.

In 2011, the Department filed a three-count administrative complaint against McCloskey alleging he violated various sections of chapter 626, Florida Statutes (2003), which regulate the conduct of insurance agents. Specifically, the complaint alleged that between December 2003 and March 2004, McCloskey solicited three individuals to invest in viatical settlements issued by Mutual Benefits Corporation (“Mutual Benefits”). The complaint further alleged that the viatical settlements were securities and that neither Mutual Benefits nor McCloskey was registered to sell securities in Florida.

Following a formal hearing, an administrative law judge (“ALJ”) issued a recommended order concluding that McCloskey violated section 626.611(16), Florida Statutes, by selling an unregistered security that was required to be registered pursuant to chapter 517. Consequently, the ALJ proposed a two-month suspension for each of the three violations. After both parties filed exceptions, the Department adopted the recommended order and, in addition, found that McCloskey violated section 626.611(7). The Department also approved the proposed penalty and suspended all of McCloskey’s insurance licenses for six months.

On appeal, McCloskey argues that the Department erred as a matter of law in concluding the viatical settlement contracts sold in 2003 and 2004 were securities under Florida law that had to be registered under chapter 517. He also contends that the ALJ’s factual findings were not supported by the evidence and that the ALJ erred in concluding that insurance agents had to possess securities licenses to sell viatical settlements in 2003 and 2004.

We review an administrative agency’s adjudicative findings for competent substantial evidence. Keen v. Dep’t of Bus. & Prof'l Regulation, 920 So.2d 805, 807 (Fla. 5th DCA 2006). In addition, we review the ALJ’s interpretation of the law de novo and the agency’s interpretation of the law for clear error. Matteini v. Fla. Birth-Related, Neurological, 946 So.2d 1092, 1094 (Fla. 5th DCA 2006).

The record evidence shows McCloskey began selling insurance in 1987. In 2002 and 2003, McCloskey held a life and health insurance license allowing him to sell life, disability income, long-term care and annuity products, as well as a property and casualty license. Prior to this case, he was never the subject of a disciplinary action.

In late 2003, McCloskey became an appointed agent for Mutual Benefits which, as far as he knew, was licensed by the Office of Insurance Regulation (“OIR”). McCloskey was not familiar with viatical settlements and was informed by Mutual Benefits that they were an insurance product. McCloskey called the Department of Banking and asked if viatical settlements were considered an insurance product or security, and was told they were regulated as insurance. The information he gathered from the Department of Banking’s website also led him to believe the settlements were regulated as insurance. McCloskey used viatical settlement agreement forms that were approved by the OIR. He never represented that viatical settlements were securities or made any guarantees concerning the outcome of their purchase.

In its recommended order, the ALJ noted that when McCloskey sold the viatical settlements in 2003 and 2004, the settlements were regulated by the Viatical Settlement Act. Nevertheless, the ALJ also found that the issue of whether a viatical settlement was a security requiring registration was not settled. Applying the definition of “investment contract” set forth in Securities & Exchange Commission v. W.J. Howey Co., 328 U.S. 293, 66 S.Ct. 1100, 90 L.Ed. 1244 (1946), the ALJ concluded that the viatical settlements McCloskey sold constituted investment contracts, which, pursuant to section 517.021(19)(q), Florida Statutes (2003), were listed as securities. The ALJ then relied on Kligfeld v. State, Office of Financial Regulation, 876 So.2d 36 (Fla. 4th DCA 2004), which held that chapter 626 did not expressly preempt chapter 517, to determine that viatical settlements were investment contracts requiring registration. The ALJ further relied on the fact that in 2005, the Legislature amended chapter 517 to include viatical settlements in the list of transactions which constitute a security and chapter 626 to provide a grace period to sell unregistered securities.

However, the ALJ’s reliance on Kligfeld and the amendments is misplaced. McCloskey sold the viatical settlements prior to both the June 2004 Kligfeld ruling and the Legislature’s 2005 statutory amendments. Based on the law in effect at the time the viatical settlements were sold, they were not securities that required registration. Even if the -viatical settlements constituted investment contracts under the Howey definition, the regulation of viatical settlements as securities was not settled until 2005. In addition, the Legislature enacted a grace period to allow individuals to conclude all -viatical settlement sales in progress that were not registered pursuant to chapter 517.

Where a statute imposes sanctions and penalties in the nature of denial or revocation of a license to practice for violating its proscriptions, such a statute “must be strictly construed and no conduct is to be regarded as included within it that is not reasonably proscribed by it. Furthermore, if there are any ambiguities included such must be construed in favor of the applicant or licensee.” Lester v. Dep’t of Prof'l & Occupational Regulations, 348 So.2d 923, 925 (Fla. 1st DCA 1977). Construing the statute in favor of McCloskey, based on the law in effect at the time the viatical settlements were sold, McCloskey did not sell unregistered securities that were required to be registered pursuant to chapter 517, in violation of section 626.611(16). Consequently, McCloskey did not demonstrate a lack of fitness or trustworthiness to engage in the business of insurance in violation of section 626.611(7). Given the plain meaning of the law, since all of the viatical settlements at issue here were sold prior to the grace period, there is no record evidence that McCloskey violated the law. Accordingly, we reverse the final order and remand to the Department for dismissal of the complaint.

REVERSED and REMANDED.

SAWAYA and PALMER, JJ., concur.

      .A viatical settlement has been described as follows:
      In the typical viatical settlement, a terminally-ill policyholder, known as a viator, sells the right to receive the proceeds of his or her life insurance policy to an investor usually through a viatical settlement provider. The viator is paid an amount equal to the discounted value of the death benefits under the insurance policy, which funds are usually required to provide for the viator’s medical and living expenses. The investor is responsible for the payment of the premiums under the policy. The investor obtains a return based upon the difference between the death benefits ultimately paid under the policy and the discounted amount paid to the viator, less the costs of any premiums and administrative fees paid by the investor. The viatical settlement company receives a fee or commission depending upon the structure of the transaction.

        Accelerated Benefits Corp. v. Dep’t of Ins., 813 So.2d 117, 118-19 (Fla. 1st DCA 2002).

      . Section 626.611, Florida Statutes (2003), provides:
      The department shall deny an application for, suspend, revoke, or refuse to renew or continue the license or appointment of any applicant, agent, title agency, adjuster, customer representative, service representative, or managing general agent, and it shall suspend or revoke the eligibility to hold a license or appointment of any such person, if it finds that as to the applicant, licensee, or appointee any one or more of the following applicable grounds exist:

      (16) Sale of an unregistered security that was required to be registered, pursuant to chapter 517.

      . Section 626.611(7), Florida Statutes (2003), provides for the suspension of an insurance agent's license based on "[djemonstrated lack of fitness or trustworthiness to engage in the business of insurance.”

      . This department is now known as the Office of Financial Regulation.

      . §§ 626.991-.99295, Fla. Stat.

      . Florida courts have adopted the definition of "investment contract” set forth in Howey. See Farag v. Nat'l Databank Subscriptions, Inc., 448 So.2d 1098, 1100-01 (Fla. 2d DCA 1984) ("First, there must be an investment of money; second, the investment must be in a common enterprise; and third, there must be an expectation of profits to be derived solely from the efforts of another.”).

        .See Ch. 2005-237, § 1, at 2165, Laws of Fla.

      . See Ch. 2005-237, § 32, at 2186-87, Laws of Fla.
      Any person who, on July 1, 2005, is effectuating a viatical settlement purchase agreement made before July 1, 2005, under provisions of law in effect before such date, which viatical settlement purchase agreement was not registered pursuant to chapter 517, must proceed within 30 days after July 1, 2005, to conclude all viatical settlement purchase transactions in progress....
      (Emphasis added).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Aurelle HERARD, Petitioner, v. Michael D. CREWS, Secretary, Florida Department of Corrections, Respondent.
    No. 1D13-2621.
    District Court of Appeal of Florida, First District.
    June 21, 2013.
    Aurelle Herard, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DISMISSED. Baker v. State, 878 So.2d 1236 (Fla.2004).

PADOVANO, WETHERELL, and SWANSON, JJ., concur.


text:
    Carneri Fred SHINE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-2615.
    District Court of Appeal of Florida, First District.
    June 21, 2013.
    Carneri Fred Shine, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. Baker v. State, 878 So.2d 1236 (Fla.2004).

PADOVANO, WETHERELL, and SWANSON, JJ., concur.


text:
    Timothy A. HAMPTON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-2496.
    District Court of Appeal of Florida, First District.
    June 21, 2013.
    Timothy A. Hampton, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. Baker v. State, 878 So.2d 1236 (Fla.2004).

PADOVANO, WETHERELL, and SWANSON, JJ., concur.


author: PER CURIAM. MAKAR, J.,

text:
    Jesse Lee WAYBRIGHT, Appellant, v. Ya’Lonni Ayeesha JOHNSON-SMITH, Appellee.
    No. 1D12-3376.
    District Court of Appeal of Florida, First District.
    June 24, 2013.

      Jesse Lee Waybright, pro se, Appellant.
    No appearance, for Appellee.
   PER CURIAM.

Jesse Lee Waybright appeals a final order which establishes visitation and residential custody of S.L.W., the child he fathered with appellee. Because the trial court erred in excluding certain evidence offered by Waybright and in ordering rotating custody when neither party requested it, we reverse and remand for further proceedings.

S.L.W. was born on May 16, 2008, and the appellee, Ya’Lonni Ayeesha Johnson-Smith, does not deny that Waybright is the natural father; the parties to this appeal have never been married. In January 2012, Waybright, pro se, filed a pleading styled “petition to establish paternity and other relief.” By this petition, Waybright sought sole physical custody of the child with Johnson-Smith allowed only supervised visitation. Waybright alleged that the mother had engaged in criminal activity, was unable to financially support the child as she rarely worked, and had a transient life-style.

At the subsequent hearing on the petition, both parties appeared pro se. Way-bright offered police reports detailing the acts of violence committed by Johnson-Smith, including domestic violence against him. The trial court, without objection from Johnson-Smith, refused to consider these reports, classifying the reports as hearsay. The court also refused to consider certain written statements without first inquiring as to whether they were admissible as affidavits. Thereafter, the trial court ordered rotating custody on a weekly basis with the onus of transportation falling upon Waybright.

The trial court erred in categorically excluding the police reports, as such records may have been admissible pursuant to section 90.803(8), Florida Statutes (2012). Similarly, concerning the statements offered by Waybright, the trial court erred in failing to even consider their admissibility, especially in view of the lack of objection from Johnson-Smith. See Tallahassee Furniture Co. v. Harrison, 588 So.2d 744 (Fla. 1st DCA 1991) (unob-jected to hearsay is probative as non-hearsay evidence).

Domestic violence and other forms of violent behavior are probative matters in a child custody case. See § 61.13(3)(m), Fla. Stat. (2012). In establishing residential placement of a child, the trial court is to consider at least twenty factors pertaining to the best interests of a child listed in section 61.13(3), even when the parents are unmarried. See A.L.G. v. J.F.D., 85 So.3d 527 (Fla. 2d DCA 2012). In the order under review, there are no findings to support the weekly rotating custody schedule set by the trial court. Further, neither party requested rotating custody. Moore v. Wilson, 16 So.3d 222 (Fla. 5th DCA 2009) (the trial court erred in ordering rotating custody when neither party requested it).

REVERSE and REMANDED for further proceedings consistent with this opinion.

VAN NORTWICK and ROWE, JJ„ Concur and MAKAR, J., Concurs With Written Opinion.

MAKAR, J.,

concurring.

I agree that the order establishing residential custody and visitation should be reversed and remanded for consideration for the reasons stated.' Three additional points warrant mention, each weighing in favor of the relief the father seeks. First, the mother’s brother is a registered sexual offender (lewd or lascivious battery; victim age 12-15) with whom S.L.W. sometimes stays. The father raised this as a concern in support of the relief sought. The mother countered that the father was aware of the brother’s status yet dropped off S.L.W. with him occasionally; the father explained, however, that he initially thought the brother’s status was based on the victim and the brother being 17 and 18 years old, respectively, but that discovery in this case showed a greater age difference. For unknown reasons, the trial court gave no weight to the father’s concern — but should on remand. Second, the trial court’s consideration of the police reports on remand is important because of the closeness in time of the incidents with the mother’s care of S.L.W. See McCann v. Daniels, 650 So.2d 205, 206 (Fla. 4th DCA 1995) (incidents occurring while parent in custody of child more relevant than those remote in time when child not in parent’s custody). Because the record reflects a more stable home environment surrounding the father, the proximity in time of the incidents involving S.L.W. when in the care of the mother becomes more relevant. Finally, it is inequitable to make the mother’s current residence the “home base” while placing the burden of transportation solely on the father; the equities appear to weigh far more heavily in the father’s favor on this facet of the dispute.

On the current record, it is a close case whether to simply reverse and remand, ordering that the father be given full custody on a temporary basis. Given that the trial judge must establish specific conditions that a parent must satisfy in order to re-establish time-sharing with the child, see Grigsby v. Grigsby, 39 So.3d 453, 455 (Fla. 2d DCA 2010), the better course for now is to reverse and remand, allowing the trial court to make these determinations.


text:
    Karen MARCUS, Shelley Vana, Priscilla A. Taylor, Burt Aaronson, Jess R. Santamaria, and Palm Beach County, Appellants, v. STATE SENATE FOR THE STATE of Florida, et al., Appellees.
    No. 1D12-5591.
    District Court of Appeal of Florida, First District.
    June 27, 2013.
    Amy Taylor Petrick, Senior Assistant County Attorney, Palm Beach County Attorney’s Office, West Palm Beach, for Appellants.
    Pamela Jo Bondi, Attorney General, and Allen Winsor, Chief Deputy Solicitor General, Tallahassee, for Appellees.
   PER CURIAM.

Appellants, Palm Beach County Commissioners and Palm Beach County, appeal a partial final judgment in which the trial court dismissed with prejudice their claims for declaratory and injunctive relief against Appellees, the Florida Senate and the Florida House of Representatives, on the basis that neither was a proper defendant. We affirm. Neither legislative body has been designated as the enforcing authority of section 790.33, the statute at issue. See Atwater v. City of Weston, 64 So.3d 701, 703 (Fla. 1st DCA 2011) (“The proper defendant in a lawsuit challenging a statute’s constitutionality is the state official designated to enforce the statute.”). Nor does the declaratory action at issue in this ease involve a duty or responsibility of the State implicating specific responsibilities of Appellees. See id. at 704 (holding that the trial court erred in not dismissing the Senate President and House Speaker from the lawsuit seeking to invalidate an act relating to growth management because the declaratory action did not involve a broad constitutional duty of the State implicating specific responsibilities of the appellants). Cf. Coal. for Adequacy & Fairness in Sch. Funding, Inc. v. Chiles, 680 So.2d 400, 402-03 (Fla.1996) (holding that the Florida Senate and Florida House, acting through their respective presiding officers, were proper parties in the action seeking a declaration that the State failed to provide its students the fundamental right to an adequate education by not allocating adequate resources); Brown v. Butterworth, 831 So.2d 683, 684-90 (Fla. 4th DCA 2002) (noting that three members of Congress and a qualified voter filed a declaratory judgment action challenging the Florida Legislature’s reapportionment of their Congressional districts and explaining that “[wjhile we agree that the President of the Florida Senate is not an indispensable party to this gerrymandering claim, we nevertheless do hold that he is a proper party, one certainly with a cognizable interest in the action”).

AFFIRMED.

LEWIS, ROBERTS, and ROWE, JJ., concur.

      . In 1987, the Legislature declared in section 790.33 that it was "occupying the whole field of regulation of firearms and ammunition” in Florida to the exclusion of all existing and future county, city, town, or municipal ordinances. In 2011, the Legislature amended the statute to include various penalties for any person or entity violating its occupation of the field of regulation of firearms and ammunition. See § 790.33(3), Fla. Stat. (2011).


text:
    Martha Cesery TAYLOR, Appellant, v. The BEACH HOUSE RESIDENCES OF THE BEACH HOUSE RESIDENCES OF SOUTH BEACH, INC., a Florida corporation, f/k/a, Southern Waterview Development, Inc., a Florida corporation, Walter Q. Taylor, an individual, State Bank and Trust Company, a Georgia banking corporation, Hathaway & Reynolds, P.A., f/k/a, Richard G. Hathaway, P.A., a Florida corporation, Meredith M. Lord, an individual, Buyer’s Broker Realty Consultants, Inc., a Florida corporation, and Beach House of Jacksonville Association, Inc., a Florida corporation, The Jacksonville Bank, a Florida banking corporation, Appellees.
    No. 1D12-6001.
    District Court of Appeal of Florida, First District.
    June 27, 2013.
    Martha Cesery Taylor, pro se, Appellant.
    Nancy M. Wallace of Akerman Senter-fitt, Tallahassee; and Jacob A. Brown of Akerman Senterfitt, Jacksonville, for Ap-pellee The Jacksonville Bank.
   PER CURIAM.

Appellant has failed to demonstrate that the court’s jurisdiction to review the lower tribunal’s final judgment of foreclosure was invoked in a timely fashion. Accordingly, the appeal is dismissed for lack of jurisdiction.

MARSTILLER, RAY, and SWANSON, JJ., concur.


text:
    Bradley G. SMITH, Esquire and Smith, Feddeler & Smith, P.A., Appellants, v. Kirk SCHRYVER, Appellee.
    No. 1D12-4137.
    District Court of Appeal of Florida, First District.
    July 1, 2013.
    Bradley G. Smith of Smith, Feddeler & Smith, P.A., Lakeland, for Appellants.
    Laurie Thrower Miles of Miles & Parrish, P.A., Lakeland, for Appellee.
    Hinda Klein and Thomas G. Regnier of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Hollywood, for Yowell’s Roofing and USIS.
   PER CURIAM.

In this workers’ compensation case, the Judge of Compensation Claims (JCC) denied Claimant’s former counsel’s motion to compel production of hours billed by Claimant’s successor counsel in working toward Claimant’s lump-sum settlement, and then valued former counsel’s attorney’s fee lien based only upon the number of former counsel’s hours at an hourly rate. The discovery would result in evidence that could be relevant to valuation of former counsel’s fee lien under Rosenthal, Levy & Simon, P.A., v. Scott, 17 So.3d 872, 876 (Fla. 1st DCA 2009) (“In cases where the discharged attorney successfully proves entitlement to a charging lien, the JCC is required to apportion the fee between the discharged attorney and the successor attorney.”), Law Office of James E. Dusek, P.A. v. T.R. Enterprises, 644 So.2d 509, 510 (Fla. 1st DCA 1994) (stating quantum meruit fee will be “the reasonable value1 of the services which he [the former attorney] performed prior to discharge”), and Searcy, Denney, Scarola, Barnhart & Shipley, P.A. v. Poletz, 652 So.2d 366, 368 (Fla.1995) (reversing award of quantum meruit fee calculated as straight hourly fee, and remanding for consideration of “the totality of the circumstances surrounding the professional relationship between the attorney and client,” and holding “[f]actors such as time, the recovery sought, the skill demanded, the results obtained, and the attorney-client contract itself will necessarily be relevant considerations”). Accordingly, we REVERSE the order, and REMAND for further proceedings.

WOLF, ROBERTS, and RAY, JJ., concur.


text:
    Marcus David BEASLEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-1777.
    District Court of Appeal of Florida, First District.
    July 1, 2013.
    Bruce A. Miller, Public Defender, and Gary Bostick, Assistant Public Defender, Pensacola, for Petitioner.

      Pamela Jo Bondi, Attorney General, and Meredith Hinshelwood, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the November 9, 2012, judgments and sentences in Escambia County Circuit Court case numbers 08^075-CFB, 08^076-CFB, 08^077-CFB, 08-4078-CFB, 08-4079-CFB and 08-4537-CFB. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(6)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

PETITION GRANTED.

PADOYANO, WETHERELL, and SWANSON, JJ., concur.


text:
    In re Thomas L. CRABSON.
    No. 2013-B-0312.
    Supreme Court of Louisiana.
    April 12, 2013.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

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

FORMAL CHARGES

In June 2011, Alfonso Belloso was backing his car out of a parking space at a Walmart store in Pompano Beach, Florida when he heard a car horn behind him. Unsure whether he had hit another vehicle, Mr. Belloso got out of his car and walked around to check for damage. As he did so, a man later identified as respondent exited his own vehicle and began screaming profanities at Mr. Belloso. Respondent then approached Mr. Belloso and threw several punches at him, striking him once and leaving a bruise on his cheek. When Mr. Belloso’s wife tried to separate the two men, respondent pushed her away. Mr. Belloso’s wife called the police, at which time respondent fled the scene. Mr. Belloso pursued respondent until law enforcement officers were able to detain him. Respondent was arrested and charged with simple battery, a misdemeanor.

In August 2011, in proceedings in the Broward County district court, respondent entered a plea of no contest to the battery charge. He was sentenced to six months of supervised probation and ordered to undergo a substance abuse Revaluation, com-píete recommended treatment, and participate in an eight-hour anger management course.

In November 2011, respondent submitted a reply to the ODC’s inquiry concerning the altercation. In his response, respondent claimed that Mr. Belloso had been the aggressor in the incident; however, according to respondent, “[r]ather than turn this minor incident into a full blown trial, I elected to plead no contest....” Respondent also stated that pursuant to the terms of his probation, he was undergoing a substance abuse evaluation and attending an anger management program.

The ODC subsequently mailed respondent two letters requesting that he provide a copy of the records of his probation-related evaluation and treatment. At the time of the filing of the formal charges, respondent had failed to provide the requested records.

DISCIPLINARY PROCEEDINGS

In May 2012, the ODC filed formal charges against respondent, alleging that his conduct as set forth above violated Rules 4-8.1(b) (knowing failure to respond to a lawful demand for information from a disciplinary authority), 4-8.4(a) (violation of the Rules of Professional Conduct), and 4-8.4(b) (commission of a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer) of the Florida Rules of Professional Conduct.

^Respondent was served with the formal charges via certified mail but failed to answer. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions.

Both the ODC and respondent filed submissions for the hearing committee’s consideration. In respondent’s submission, he explained that he had not responded to the formal charges because most of the factual allegations were “fairly accurate.” However, respondent did dispute the assertion that Mr. Belloso’s wife had been involved in the altercation, and he again maintained that Mr. Belloso was the aggressor in the incident:

[Mr. Belloso’s wife] was a guest passenger in Belloso’s vehicle and did not leave the vehicle during this altercation. She was never pushed or shoved by either myself or ... my guest passenger.
I was a 61 year old male trying to defend myself against a 27 year old male charging at me as though he was going to tackle me....

Respondent further explained that he had cooperated with the ODC during these proceedings with the exception of providing his treatment records, which he initially thought were privileged and confidential. Respondent stated that once he learned otherwise, he supplied the records to the ODC “as soon as they were made available to me.” Finally, respondent confirmed that after he completed the required substance abuse evaluation and anger management counseling, his probation was satisfactorily terminated and the battery charge was dismissed.

_|¿Hearing Committee Report

After considering the submissions of the parties, the hearing committee found that all facts as set forth in the formal charges are deemed admitted and proven. Based on these facts, the committee determined that respondent violated the Rules of Professional Conduct as alleged in the formal charges.

The committee further determined that suspension is the applicable baseline sanction in this matter. As aggravating factors, the committee found the following: a prior disciplinary record, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, refusal to acknowledge the wrongful nature of the conduct, and substantial experience in the practice of law (admitted 1981). In mitigation, the committee acknowledged that other penalties or sanctions have been imposed against respondent in connection with his criminal conviction.

Considering these factors, and the prior jurisprudence of this court, the committee recommended that respondent be suspended from the practice of law for one year and one day.

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

Disciplinary Board Recommendation

After review, the disciplinary board agreed with the hearing committee that the factual allegations of the formal charges are deemed admitted and proven by clear and convincing evidence. The board also agreed with the committee that respondent violated the Rules of Professional Conduct as charged.

|fiThe board determined that respondent knowingly violated duties owed to the public and to the profession. The physical altercation caused actual injury to Mr. Bel-loso. Likewise, the reputation of the legal profession is harmed whenever a lawyer commits a crime of violence. The applicable baseline sanction in this matter is suspension.

As aggravating factors, the board found the following: a prior disciplinary record, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, refusal to acknowledge the wrongful nature of the conduct, substantial experience in the practice of law, and illegal conduct. The board found the only mitigating factor supported by the record is the imposition of other penalties or sanctions.

The board observed that sanctions in cases concerning attorneys who have engaged in violent conduct range from suspension to disbarment. Considering respondent’s misconduct in light of this prior jurisprudence, the board concluded:

|fiThe misconduct exhibited in Estiveme and Redd appears to be more egregious than Respondent’s behavior. The level of violence perpetuated by Respondent seems to be similar to that exhibited by Mr. Greenburg, who was similarly convicted of a simple battery misdemeanor. The In re Cardenas matter is also similar in that it likewise involved a single incident resulting in a misdemeanor domestic abuse charge. Like Mr. Cardenas, Respondent’s violent act did not occur within the context of practicing law. Nevertheless, Mr. Crabson’s seemingly unprovoked act of violence occurred in a public "place against an unsuspecting member of the public. Mr. Crabson’s extreme reaction to what appears to be a relatively minor incident calls into question his fitness to practice law. Unfortunately the practice of law is often contentious and requires that members of the Bar remain calm and professional as they contend daily with trying and challenging circumstances. Mr. Crabson’s exhibited violence in this matter is a likely indicator of his inability to handle himself professionally in stressful or difficult circumstances while practicing law. Therefore, Mr. Crabson must go through the reinstatement process to ensure that he is fit to practice law.

Accordingly, the board recommended that respondent be suspended from the practice of law for one year and one day. The board also recommended that respondent be assessed with all costs and expenses of these proceedings.

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

IvDISCUSSION

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

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

The record in this deemed admitted matter supports a finding that respondent was convicted of the crime of battery, and subsequently failed to cooperate with the ODC in its investigation. Based on these facts, respondent has violated the Rules of Professional Conduct as charged by the ODC.

Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent’s actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any 18aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

By its very nature, respondent’s criminal conduct was intentional. He violated duties owed to the public and the legal profession, causing actual harm. Considering Standard 5.12 of the ABA’s Standards for Imposing Lawyer Sanctions, the baseline sanction in this matter is suspension.

The record supports the following aggravating factors: a prior disciplinary record, refusal to acknowledge the wrongful nature of the conduct, substantial experience in the practice of law, and illegal conduct. The only mitigating factor present is the imposition of other penalties or sanctions in connection with the criminal proceeding.

As the board noted, sanctions in cases dealing with attorneys who have engaged in violent conduct range from a period of suspension to disbarment. While we do not believe respondent’s conduct was serious enough to warrant a sanction on the higher end of this range, we agree with the board that respondent should be required to prove his fitness to practice law prior to seeking reinstatement. Accordingly, we will accept the board’s recommendation and suspend respondent from the practice of law for one year and one day.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Thomas L. IsCrabson, Louisiana Bar Roll number 4538, be and he hereby is suspended from the practice of law for a period of one year and one day. 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.

      . Rule 8.5(a) of the Louisiana Rules of Professional Conduct provides that a lawyer admitted to practice in Louisiana "is subject to the disciplinary authority of this jurisdiction, regardless of where the lawyer’s conduct occurs.” As to the choice of which jurisdiction's rules of professional conduct are to be applied in such circumstances, Rule 8.5(b)(2) states that the rules of the jurisdiction in which the lawyer’s conduct occurred shall apply ”[i]n any exercise of the disciplinary authority of this jurisdiction.”
      In this case, respondent is admitted to practice in Louisiana, while his misconduct occurred in Florida. Therefore, respondent is subject to the disciplinary authority of this court, but the Florida Rules of Professional Conduct apply.

      . In 2002, respondent was admonished by the disciplinary board for practicing law while ineligible to do so.

      . For example, in In re: Cardenas, 11-0031 (La.5/6/11), 60 So.3d 609, Mr. Cardenas struck his estranged wife in the presence of their minor child. He was subsequently convicted of domestic abuse battery (child endangerment), a misdemeanor, and placed on probation. For this conduct, the court suspended Mr. Cardenas for one year, with six months deferred, followed by a two-year period of probation.
      In In re: Willis, 09-0211 (La.5/13/09), 8 So.3d 548, Mr. Willis was waiting with his girlfriend in a vehicle at the drive-up window of a fast food restaurant. Before their food arrived, Mr. Willis and his girlfriend began arguing. This led to a physical altercation between them wherein Mr. Willis hit and grabbed his girlfriend. He also poured beer on her and hit her over the head with the empty beer bottle. Mr. Willis was ultimately charged with two counts of simple battery, which charges were still pending at the time of the disciplinary matter. He was also charged with other professional misconduct, including neglecting a client's bankruptcy matter, failing to refund an unearned fee and unused costs, failing to return the client's documents upon the termination of the representation, and practicing law while ineligible to do so. For this misconduct, Mr. Willis was disbarred.
      In In re: Greenburg and Lewis, 08-2878 (La.5/5/09), 9 So.3d 802, Mr. Lewis and Mr. Greenburg represented opposing parties in a bitterly contested succession matter pending in Terrebonne Parish. While appearing in open court for a motion hearing, Messrs. Lewis and Greenburg exchanged vulgarities, following which Mr. Greenburg grabbed Mr. Lewis’s suit jacket, and both men fell to the floor. Mr. Greenburg was subsequently convicted of the misdemeanor offense of simple battery arising out of this altercation. In response to the formal charges filed against both lawyers, the court suspended Mr. Green-burg from the practice of law for a period of six months, with all but thirty days deferred, subject to the condition that he complete an anger management counseling program. The court publicly reprimanded Mr. Lewis.
      In In re: Sterling, 08-2399 (La. 1/30/09), 2 So.3d 408, Mr. Sterling kicked in the door of his girlfriend’s apartment and then pushed and shoved her around the apartment. He was subsequently convicted of unauthorized entry of an inhabited dwelling, a felony, and placed on probation. Mr. Sterling was also charged with other professional misconduct, including failure to properly notify his clients of the interim suspension that followed his criminal conviction, failure to return a client’s file after he was placed on interim suspension, and transferring a client matter to another attorney without the consent of the client. For this misconduct, the court imposed a two-year suspension from the practice of law.
      In In re: Estiverne, 99-0949 (La.9/24/99), 741 So.2d 649, Mr. Estiveme became involved in an altercation with opposing counsel during a deposition. At some point, opposing counsel suggested to Mr. Estiveme that the two of them "step outside" and settle the matter “man to man." Mr. Estiveme left the office and reappeared a few minutes later with an unloaded gun, allegedly threatening to kill opposing counsel. Finding Mr. Esti-verne’s use of a dangerous weapon created a clear potential for harm, the court suspended him for one year and one day.

        In In re: Redd, 95-1472 (La.9/15/95), 660 So.2d 839, Mr. Redd was suspended for one year and one day following his conviction of simple battery. Mr. Redd was employed as the legal advisor to the Baton Rouge Police Department, and his position involved issuing permits to exotic dancers. The conviction arose when he touched the breasts of permit applicants and photographed them without their consent.

      . Under Standard 5.12, suspension is generally appropriate when a lawyer knowingly engages in criminal conduct which does not contain the elements listed in Standard 5.11 and that seriously adversely reflects on the lawyer’s fitness to practice law. Cf. Standard 5.11, which provides for disbarment when: (a) a lawyer engages in serious criminal conduct, a necessary element of which includes intentional interference with the administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft; or the sale, distribution or importation of controlled substances; or the intentional killing of another; or an attempt or conspiracy or solicitation of another to commit any of these offenses; or (b) a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer’s fitness to practice law.


text:
    In re Joseph W. BAILEY.
    No. 2012-B-2536.
    Supreme Court of Louisiana.
    April 12, 2013.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

|, This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Joseph W. Bailey, an attorney licensed to practice law in Louisiana and Texas. In 2010, we imposed a fully deferred six-year suspension upon respondent based on discipline imposed by the State Bar of Texas for his failure to safeguard client funds in a matter unrelated to the instant matter. In re: Bailey, 10-0426 (La.5/7/10), 41 So.3d 436 (hereinafter referred to as “Bailey I ”).

UNDERLYING FACTS

By way of background, in 1991, Royce Morris suffered severe head trauma in a gas pipeline explosion, resulting in permanent disabilities, including seizures, post-traumatic stress disorder, impulse control issues, and anger issues. A class action lawsuit against the pipeline company resulted in a settlement of more than $2,000,000 for Mr. Morris in December 1999.

Soon thereafter, Mr. Morris hired respondent to provide him with estate and tax planning services, and they signed a retainer agreement to that effect on December 28,1999. Respondent assisted Mr. Morris in setting up an irrevocable trust to receive and manage the settlement funds. On December 30, 1999, Mr. |2Morris signed a trust agreement creating the Royce Morris Irrevocable Trust (“the trust”) and naming the Trust Company of Louisiana, through Patrick Nelson, as the trustee. The trust agreement also named respondent as the attorney for the trust, to be compensated pursuant to the December 28,1999 retainer agreement.

Pursuant to the retainer agreement, respondent received a $10,000 retainer fee to be billed at the rate of $150 per hour. By the end of February 2000, respondent had billed Mr. Morris a total of $9,255, and requested an additional $5,000 retainer from the trustee. In June 2000, respondent informed the trustee that he had also begun to represent Mr. Morris in criminal matters.

On August 25, 2000, the Trust Company of Louisiana resigned as the trustee due to hostility between Mr. Nelson and Mr. Morris. Respondent’s wife, Judith Bailey, who worked in respondent’s law office performing administrative and paralegal duties, was appointed as the successor trustee.

During this same time period, Mr. Morris’ mother initiated judicial commitment proceedings against him based on his drug problems. Respondent was not involved in representing Mr. Morris in these proceedings, but he knew of the proceedings when he requested that the judge appoint Mrs. Bailey as the successor trustee.

|sAfter Mrs. Bailey became trustee, respondent defended Mr. Morris against numerous criminal charges. On January 13, 2003, respondent resigned as attorney for the trust. Nevertheless, Mrs. Bailey continued to make payments from the trust to respondent for work not performed. Additionally, Mrs. Bailey also breached her trustee duties as follows:

1. She allowed Mr. Morris’ vehicle insurance to lapse numerous times for nonpayment of premiums, thus incurring late fees and other penalties;
2. She failed to pay property taxes on property owned by the trust;
3. She failed to maintain insurance on immovable property owned by the trust;
4. She failed to file tax returns on behalf of the trust as required by law, incurring interest, penalties, and a tax levy;
5. She failed to pay bills timely, incurring numerous late charges and/or penalties;
6. She failed to provide annual and quarterly accountings as required by law and the trust agreement;
7. She failed to open mail containing important insurance information for the trust;
8. She paid huge amounts of money out of the trust for bar tabs and cash loans for Mr. Morris;
9. She made excessive distributions of income and principal to Mr. Morris despite knowing of Mr. Morris’ illegal substance (crystal methamphetamine and cocaine) abuse problems; and
|410. She failed to take into account the long term interest of Mr. Morris in connection with the administration, management of assets, distribution of assets, and termination of the trust.

In March 2006, Mrs. Bailey formally withdrew as trustee and informed Mr. Morris that the trust funds had been depleted. When Mrs. Bailey failed to respond to Mr. Morris’ requests for an accounting, he obtained new counsel and filed a petition for an accounting on January 24, 2007. Mrs. Bailey did not render the accounting until April 16, 2007.

On July 31, 2007, Mr. Morris, through his new attorney, filed a petition for damages against respondent and Mrs. Bailey. The lawsuit alleged that Mrs. Bailey breached her fiduciary duties to Mr. Morris and breached the trust agreement. The lawsuit also alleged legal malpractice and overbilling by respondent.

On February 12, 2009, after a two-day trial, the judge found that Mrs. Bailey violated multiple sections of the trust agreement and the trust code, stating:

The evidence is undisputed that between August 25, 2000 and March 2006 the Trust was drained to the point of becoming insolvent. It is important to note that during this entire time Mr. and Mrs. Bailey worked in the same law office ... [T]he Court believes that in addition to serving as Trustee in this matter she had a number of other administrative and paralegal duties, in the Bailey law office, including billing for her husband. She therefore knew well of Royce Morris’ drug arrests and convictions, serious alcohol abuse, and other legal matters handled by Mr. Bailey.

Regarding Mr. Morris’ mental state, the judge indicated that,

[although not interdicted, Royce has been disabled and judgment-impaired since the 1991 accident; he has seizures; he suffers from post traumatic stress disorder and has what has been described as an uncontrollable temper. He is not employable and is permanent ly disabled. Moreover, it is clear from the evidence and his in-court testimony that he is permanently judgment impaired and unable to make reasoned decisions about his finances or general welfare. The testimony and evidence reveals that the Baileys have taken different positions at different times regarding the competence Rlevel of Royce Morris. On the one hand, Joseph Bailey seemed to suggest in court testimony that there should not be a trust because (1) Royce was never interdicted; (2) Royce was not otherwise judicially declared incompetent; and (8) there was no court order in the class action matter requiring a trust. Yet, on the other hand, he assisted in the preparation of the 12/30/99 Trust Agreement and his wife, Judith, signed as a witness. Further, in a June 19, 2000 letter to John Madison [attorney for the Trust Company of Louisiana], Mr. Bailey wrote of Morris’ “diminished capacity” and in his October 21, 2001 Motion For Appointment of Sanity Commission [filed in one of Mr. Morris’ criminal cases], Joe Bailey wrote that Morris was “unable to assist in his defense” and that a psychiatrist should be appointed “to determine mental capacity.”

Additionally, the judge stated that, for all of her acts of negligence and misconduct, Mrs. Bailey paid herself a sizable fee, three to four times the amount charged by the Trust Company of Louisiana, without any written authorization from Mr. Morris. Given the circumstances, the judge concluded that, “the huge problem with all of this is that there are no checks and balances on either Mr. or Mrs. Bailey, who are married to each other and work in tandem in the Bailey law office.”

With respect to the allegations of legal malpractice and overbilling against respondent, the judge found the following:

1) While serving as legal representative for the trust, respondent recommended that Judith Bailey, his wife and an agent of his law firm, be appointed as trustee. Respondent created the climate for self-dealing and multiple conflicts without any checks and balances. Moreover, because there was no CPA involved in the preparation of state and federal income tax returns and because no accounting was ever rendered, there was no way for Mr. Morris to have knowledge of any financial issues;
|fi2) Respondent failed to disclose to Mr. Morris any information regarding the fees to be charged to the trust for Mrs. Bailey’s services as trustee;
3) Respondent represented to Mr. Morris that he was no longer representing the trust. Yet he continued to represent and bill the trust, including for conversations with his wife about trust matters, mailing items, etc.;
4) Payments were made to respondent’s personal credit card account out of the trust account. While some were legitimate reimbursements, some were not. In fact, respondent and Mrs. Bailey only produced documentation showing proof of reimbursement on two payments on the personal credit card; and
5) The trust appears to have been charged for services not performed by respondent.

On May 11, 2009, the judge rendered judgment against respondent and Mrs. Bailey, in solido, in the total amount of $226,545. The judge also rendered an additional judgment against respondent in the amount of $16,131.55.

Respondent and Mrs. Bailey did not appeal the judgment. Instead, respondent and Mrs. Bailey jointly filed for bankruptcy protection and sought to discharge Mr. Morris’ judgment against them. However, by judgment dated June 23, 2010, the bankruptcy judge ruled that Mr. Morris’ judgment was non-dischargeable on the grounds that the claim resulted from “ ‘defalcation while acting in a fiduciary capacity’ under 11 U.S.C. § 523(a)(4).”

DISCIPLINARY PROCEEDINGS

In September 2011, the ODC filed formal charges against respondent, alleging that his conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.5 (fee arrangements), 1.7 (conflict of | interest), 1.15 (safekeeping property of clients or third persons), 5.3 (failure to properly supervise a non-lawyer assistant), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation). Respondent answered the formal charges, denying any misconduct. This matter then proceeding to a formal hearing on the merits, conducted by the hearing committee in March 2012.

Hearing Committee Report

After considering the testimony and evidence presented at the hearing, the hearing committee made the following factual findings:

Mr. Morris, severely injured in an accident, had a trust set up due to his inability to manage his settlement proceeds. His pride and injuries caused him to engage in a destructive course, and he hired respondent to break the trust. Respondent had his wife appointed trustee. Thereafter, respondent represented the conflicting interests of the trust and Mr. Morris. He also intermingled his own finances with those of Mr. Morris, so that, over the course of six years, the trust was entirely depleted. Mr. Morris attempted to obtain an accounting and to recover from respondent and his wife for excessive billing, malpractice, and damages. He obtained a favorable judgment against them but, nevertheless, died destitute.

The committee determined that most of the witnesses, except respondent, were credible. The committee did not make a specific credibility determination regarding Mrs. Bailey.

With respect to respondent, the committee determined he does not seem to grasp that the trust is a separate legal entity from Mr. Morris. Respondent refused 18to acknowledge even the potential for a conflict. Furthermore, while he was having Mrs. Bailey appointed as the trustee, he did not disclose to the judge that Mr. Morris was in the process of being judicially committed. Mrs. Bailey worked at respondent’s office during all pertinent times, and his attempt to parse words by claiming that she was not a paid employee seemed very disingenuous to the committee. Respondent maintained that the lack of documentation, including the failure to file annual accountings, was due to Mr. Morris’ wish that he did not want to leave a paper trail. Respondent also showed no remorse and, at one point, blamed this matter on Mr. Morris’ mother. Respondent’s testimony made it clear that, if Mr. Morris were ever denied a disbursement, the Baileys might lose control over the trust.

With respect to Mrs. Bailey, the committee determined that she wrote checks to or for Mr. Morris almost daily. She also disbursed the trust funds to Mr. Morris and various creditors, including respondent, pursuant to what she claimed were Mr. Morris’ wishes.

Based on these findings, the committee then determined that respondent violated the Rules of Professional Conduct as follows: He violated Rule 1.5 by charging excessive fees for estate and tax planning when he admitted doing little work on either. He charged excessive fees for criminal defense when the matters were essentially resolved through guilty pleas, and he overcharged for the judicial commitment matter. The documentary evidence also reflects that respondent charged for depositing checks, transporting vehicles, and for services not performed. Respondent also violated Rules 1.7 and 1.15, which were facilitated by his violation of Rule 5.8. The committee specifically found that respondent’s representation and Mrs. Bailey’s work as trustee were a joint effort by both, as Mrs. Bailey was at all times acting as agent, employee, wife, and co-conspirator with respondent. Finally the committee found that respondent violated Rule 8.4(c), | resulting in the overall depletion of $2,000,000 in five years. The committee further noted that, because there were no checks and balances, the trust became an ATM machine from which respondent, Mrs. Bailey, and Mr. Morris made withdrawals on a whim. Nevertheless, the committee did not find a violation of Rule 1.3 because respondent’s failures to require Mrs. Bailey to file annual accountings and income tax returns were not a result of lack of diligence but the result of the conflict of interest and failure to supervise Mrs. Bailey.

The committee then determined that the baseline sanction for respondent’s misconduct is disbarment. In aggravation, the committee found the following: a prior disciplinary record, a dishonest or selfish motive, a pattern of misconduct, multiple offenses, refusal to acknowledge the wrongful nature of the conduct, vulnerability of the victim, substantial experience in the practice of law (admitted 1988), and indifference to making restitution. In mitigation, the committee found full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings and imposition of other penalties or sanctions. The committee also determined that respondent’s pattern of failing to supervise Mrs. Bailey caused extensive harm.

Under these circumstances, and in light of the aggravating factors, the committee recommended that respondent be disbarred.

Respondent objected to the hearing committee’s report and recommendation, arguing that Mr. Morris was determined to have his money and concocted one scheme after another to deplete the trust.

Disciplinary Board Recommendation

After review, the disciplinary board determined that the hearing committee’s factual findings do not appear to be manifestly erroneous as they are supported by 11()the testimony and documentary evidence. The board also determined that the committee correctly applied the Rules of Professional Conduct.

Specifically, the board found that respondent violated Rule 1.5 by charging the trust unreasonable fees on several occasions. For example, he billed the trust $9,255 from January 5, 2000 to February 9, 2000 without producing documentation to show what services he provided. Although he testified that he spent this time on Mr. Morris’ criminal matters, he was not able to identify any criminal charges filed prior to May 2000. The record also reflects that respondent billed the trust more than $11,000 for legal services after he withdrew as attorney for the trust on January 13, 2003, but his billing statements only account for 3.1 hours of work after his resignation. The record also does not corroborate or confirm respondent’s suggestion that this money was repayment for legitimate expenditures on Mr. Morris’ behalf. Additionally, respondent overcharged the trust for 10 hours of work for attending Mr. Morris’ judicial commitment hearing on December 11, 2000 when all he did was wait outside in the hall.

The board further found that respondent violated Rule 1.7 because, while he was the attorney for the trust and Mr. Morris, he had his wife appointed trustee of Mr. Morris’ trust. While Mrs. Bailey was trustee, she worked in respondent’s law office. Respondent never reviewed the bills Mrs. Bailey submitted to the trust for payment of her services as trustee, and she charged three to four times the amount charged by the Trust Company of Louisiana. Respondent billed the trust monthly for his services, and his wife, as trustee, was entrusted with reviewing those bills to ensure they were reasonable, fair, and in the best interest of Mr. Morris. Based upon the evidence in the record and respondent’s testimony, it is clear that respondent’s personal interests materially limited his representation of Mr. Morris.

With respect to Rule 1.15, the board found that respondent was not able to credibly explain why more than $4,000 in trust funds was used to pay his personal | ncredit card bill. Respondent’s documentary evidence fails to corroborate his story that the charges on his credit card were for Mr. Morris’ sole benefit. Additionally, respondent appears to have retained all of the funds paid to him for legal services that he is only partially able to prove he provided. For these reasons, the board determined that respondent violated Rule 1.15.

The board further found that respondent did not appropriately supervise Mrs. Bailey’s work as trustee. Mrs. Bailey charged the trust three or four times the amount charged by the Trust Company of Louisiana for her trustee services, and respondent never reviewed the bills she submitted for her services. Respondent should have been aware that Mrs. Bailey’s job as trustee was to preserve the trust in an effort to provide an income stream for the rest of Mr. Morris’ life. Instead, Mrs. Bailey knowingly allowed Mr. Morris to raid the principal of the trust until it was defunct. Respondent did not review his wife’s management of the trust, nor did he attempt to stop her mismanagement of the funds. Furthermore, respondent failed to advise Mrs. Bailey of her duty to file an annual accounting of the trust. As a result, there is no documentation accurately reflecting the disbursements made from the trust. Thus, the board determined that respondent violated Rule 5.3.

Finally, the board additionally found that respondent violated Rule 8.4(c) because his overall conduct was dishonest, resulting in the depletion of a large trust fund belonging to an essentially disabled young man. Nevertheless, the board agreed with the committee that respondent did not violate Rule 1.3 because nothing in the record indicates he was not diligent or prompt in his representation of Mr. Morris.

The board then determined that respondent knowingly and intentionally violated duties owed to Mr. Morris. Respondent’s conduct caused substantial injury as Mr. Morris died destitute upon depleting his entire trust fund under the supervision of respondent and his wife. The board agreed with the committee that | ,2the baseline sanction is disbarment. Other than the aggravating factor of a pattern of misconduct, the board also agreed with the aggravating and mitigating factors found by the committee.

Turning to the issue of an appropriate sanction, the board determined that the heartland of respondent’s misconduct was his failure to understand and avoid the conflict of interest inherent in his representation of Mr. Morris and the trust while his wife (and employee) was trustee. Respondent essentially set up a triangular relationship between his wife, Mr. Morris, and himself, disallowing external checks and balances and failing to report to taxing authorities, accountants, Mr. Morris, or Mr. Morris’ mother. Without an accountant involved in preparing state and federal tax returns and because no accounting was rendered until after the trust was depleted, there was no way for Mr. Morris to understand the financial consequences of his actions.

Under these circumstances, and after considering case law addressing similar misconduct, the board recommended that respondent be disbarred.

Neither respondent nor the ODC filed a timely objection in this court to the disciplinary board’s recommendation. However, after the expiration of the time for filing objections under Supreme Court Rule XIX, § 11(G)(1), respondent sought to file a “late” objection. On January 25, 2013, the court issued an order rejecting respondent’s objection as untimely and, therefore, proeedurally improper but permitting the filing of briefs, without oral argument. Respondent and the ODC both filed briefs in response to the court’s order.

DISCUSSION

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

In this matter, the record supports a finding that respondent charged excessive fees to Mr. Morris’ trust, engaged in a conflict of interest, failed to properly supervise his wife in her duties as both his non-lawyer assistant and the trustee of the trust, converted client funds to his own use by allowing trust funds to be used to pay his personal credit card bills, and engaged in conduct involving dishonesty. Additionally, when faced with the sizeable money judgment Mr. Morris obtained against him, respondent and his wife filed for bankruptcy protection. However, the bankruptcy court determined that the judgment was non-dischargeable because respondent and Mrs. Bailey misappropriated Mr. Morris’ trust funds. Based on these facts, respondent has violated the Rules of Professional Conduct as found by the hearing committee and the disciplinaiy 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).

Respondent knowingly and intentionally violated duties owed to Mr. Morris, causing significant actual harm, as Mr. Morris was left destitute. The baseline sanction for this type of misconduct is disbarment. The record supports the aggravating and mitigating factors found by the committee.

| ^Considering the weight of the aggravating circumstances present, there is no justification for any downward deviation from the applicable baseline sanction. Accordingly, we conclude the disciplinary board’s recommendation is appropriate, and we will order that respondent be disbarred.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record and the briefs filed by the parties, it is ordered that Joseph W. Bailey, Louisiana Bar Roll number 18773, 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. 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.

      . Mr. Morris was not interdicted, but he was not employable because of his injuries. Therefore, the attorney who represented him in the class action lawsuit believed putting the settlement funds into a trust would be the best way to preserve them to ensure that Mr. Morris had a source of income for the remainder of his life.

      . The trust agreement specifically names respondent as Mr. Morris’ legal representative. However, during his testimony at the formal hearing of this matter, respondent indicated this section of the trust agreement was meant to designate him as the attorney for the trust.

      . During his testimony at the formal hearing of this matter, Mr. Nelson described Mr. Morris as having "very low functionality, although, he was smart enough to be very manipulative.” Mr. Nelson also indicated that Mr. Morris had anger issues and "couldn't take anybody telling him what to do.” He further stated that Mr. Morris made it clear within thirty days of the creation of the trust that his goal was to break the trust because he wanted access to all of his money. In fact, Mr. Morris informed him that respondent’s legal services were intended "to help him bust the trust.” At one point, Mr. Morris told Mr. Nelson that he was going to "run his truck through the front of our building and take us all out.” Finally, Mr. Nelson stated that Mr. Morris had issues with drug addiction.

      . Respondent resigned after Mr. Morris’ ex-wife filed a disciplinary complaint against him in April 2002, alleging a conflict of interest. The record does not indicate what became of this complaint, but after resigning as the attorney for the trust, respondent continued to represent Mr. Morris in criminal matters.

      . The formal charges allege a violation of Rule 5.5 (engaging in the unauthorized practice of law) but describe the rule violation as "failure to supervise a non-lawyer employee.” Given the factual allegations of the formal charges and the ODC's description of the violation in the formal charges, we believe this was a typographical error, and that the ODC intended to charge respondent with a violation of Rule 5.3.


text:
    In re Lisa Jeanenne THOMAS.
    No. 2013-B-0311.
    Supreme Court of Louisiana.
    April 12, 2013.
    See also 74 So.3d 695.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

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

PRIOR DISCIPLINARY HISTORY

Before we address the current charges, we find it helpful to review respondent’s prior disciplinary history. Respondent was admitted to the practice of law in Louisiana in 2001. In 2011, this court considered a proceeding involving two sets of formal charges against respondent for misconduct that occurred between 2005 and 2008. These charges alleged that respondent practiced law while ineligible to do so, failed to promptly refund unearned fees, and converted third-party funds to her own use. After considering the record, the court suspended respondent from the practice of law for two years, with one year deferred, followed by a two-year period of supervised probation with conditions. In re: Thomas, 11-2012 (La.11/18/11), 74 So.3d 695 (“Thomas I ”). Respondent has not yet filed an application for reinstatement from Thomas I. Accordingly, she remains suspended from the practice of law.

Against this backdrop, we now turn to a consideration of the misconduct at issue in the present proceeding.

UNDERLYING FACTS

Count I — The Pitcher Matter

In September 2008, Byron Pitcher hired respondent to represent him in a custody matter, for which his mother, Leslie Pitcher, paid respondent a total of $1,230. Although this sum included an advance payment for court costs and filing fees, respondent did not deposit these funds into a trust account. On October 1, 2008, respondent was declared ineligible to practice law for failure to pay her bar dues and the disciplinary assessment. Shortly thereafter, respondent’s representation was terminated. Respondent refunded the unearned portion of her fee and unused costs, but did not do so until March 2010. She also failed to provide an accounting until these disciplinary proceedings commenced.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.5(f)(4) (failure to deposit advanced payment of costs into a trust account), 1.5(f)(5) (failure to refund an unearned fee), 1.15(c) (a lawyer shall deposit into a client trust account legal fees and expenses that have been paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred), 1.16(d) (obligations upon termination of the representation), 5.5 (engaging in the unauthorized practice of law), and 8.4(a) (violation of the Rules of Professional Conduct).

Count II — The Whitelaw Matter

On November 30, 2007, Gloria Whitelaw hired respondent to write a letter to the Salvation Army on her behalf. On the same day, respondent was declared ineligible to practice law for failure to file a trust account registration statement. Several months later, Ms. Wdiitelaw retained respondent to draft and file a petition |afor damages, pursuant to which she paid respondent a $500 flat fee. Although the fee included an advance payment for filing costs, respondent failed to deposit these funds into a trust account. Respondent drafted the petition, but never filed same. She also failed to provide Ms. Whitelaw with a refund of the unearned portion of her fee or the unused costs.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.5(f)(4), 1.5(f)(5), 1.15(a) (safekeeping property of clients or third persons), 1.15(c), 1.15(g) (failure to create and maintain a client trust account), 1.16(a) (a lawyer shall not represent a client or, when representation has commenced, shall withdraw from the representation of a client if the representation will result in a violation of the Rules of Professional Conduct or other law), 1.16(d), 5.5, and 8.4(a).

Count III — The Ineligibility Matter

Pursuant to its investigation in other disciplinary matters, the ODC discovered that respondent has a history of ineligibility to practice law for failing to comply with her professional obligations. During these periods of ineligibility, respondent provided legal services in twelve proceedings.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.16(a), 5.5, and 8.4(a).

\ ¿Count IV— The Joseph Matter

In September 2007, Larry Joseph hired respondent to handle his divorce, paying her a total of $970. Respondent was ineligible to practice law when she was hired and when she filed the petition for divorce in January 2008. Respondent accepted payment of court costs in advance, but failed to deposit the funds into a trust account. She never completed the representation and failed to refund the unearned portion of her fee.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.5(f)(4), 1.5(f)(5), 1.15(c), 1.16(a), 1.16(d), 5.5, and 8.4(a).

Count V — The Ricks Matter

In May 2007, Joan Ricks hired respondent to handle her divorce. Respondent was ineligible to practice law when she was hired, when she accepted payment for her services, and when she filed the petition for divorce.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.16(a), 5.5, and 8.4(a).

Count VI — The Wilson Matter

In August 2007, Jasmine Wilson hired respondent to represent her in a family matter, paying her $970. Respondent was ineligible to practice law when she was hired and when she accepted payment for her services. She did not complete the representation and failed to refund the unearned portion of her fee.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.5(f)(5), 1.16(a), 1.16(d), 5.5, and 8.4(a).

|sCount VII — The Ellis Matter

In December 2006, Cathrina Ellis hired respondent to represent her in a family matter, paying her approximately $1,800. Respondent was ineligible to practice law when she accepted payment for her services. She did not complete the representation and failed to refund the unearned portion of her fee. She also failed to communicate with Ms. Ellis in a timely manner.

In August 2010, Ms. Ellis filed a disciplinary complaint against respondent. The ODC attempted to notify respondent of the complaint via certified mail on two occasions. Both letters were returned unclaimed, necessitating the issuance of a subpoena to obtain respondent’s sworn statement. The ODC’s investigator was unable to affect service of the subpoena upon respondent, but respondent, through counsel, ultimately provided a written response to Ms. Ellis’ complaint.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.4 (failure to communicate with a client), 1.5(f)(5), 1.16(a), 1.16(d), 5.5, 8.1(b) (knowing failure to respond to a lawful demand for information from a disciplinary authority), 8.1(c) (failure to cooperate with the ODC in its investigation), and 8.4(a).

Count VIII — The Jolla Matter

In August 2007, Bettye Jolla hired respondent to represent her in a family matter. Respondent was ineligible to practice law when she was hired, when she accepted payment for her services, and when she filed a rule on Ms. Jolla’s behalf.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.16(a), 5.5, and 8.4(a).

| fiCount IX — The Woodard Matter

In May 2007, Kenyon Woodard hired respondent to represent him in a family matter, for which he paid respondent a $2,000 flat fee plus costs. While ineligible to practice law, respondent accepted Mr. Woodard as a client, accepted payment for her services, and filed a petition for custody on Mr. Woodard’s behalf. Respondent did not deposit the advance payment of costs in a trust account. She did not complete the representation and failed to refund the unearned portion of her fee or the unused costs. In July 2011, following the filing of a disciplinary complaint by Mr. Woodard, respondent made a $100 payment to him and offered to participate in the Louisiana State Bar Association’s Lawyer Fee Dispute Resolution Program.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.5(f)(4), 1.5(f)(5), 1.15(c), 1.16(a), 1.16(d), 5.5, and 8.4(a).

Count X — The Domino Matter

In December 2008, Walton Domino hired respondent to represent him in a succession matter, for which he paid her approximately $3,000. While ineligible to practice law, respondent accepted Mr. Domino as a client and accepted payment for her services. When respondent did not complete the representation, she agreed in writing to refund $2,000, but ultimately refunded only $1,000 to Mr. Domino. Respondent also failed to provide the ODC with a written response to Mr. Domino’s complaint.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.5(f)(4), 1.5(f)(5), 1.15(c), 1.16(a), 1.16(d), 5.5, 8.1(b), 8.1(c), and 8.4(a).

^DISCIPLINARY PROCEEDINGS

In December 2011, the ODC filed ten counts of formal charges against respondent, as set forth above. Respondent answered the formal charges with a general denial of the factual allegations and rule violations. This matter then proceeded to a formal hearing on the merits.

Hearing Committee Report

After considering the testimony and evidence presented at the hearing, the hearing committee adopted factual findings consistent with the underlying facts described above. Based on those facts, the committee determined respondent violated Rules 1.4, 1.5(f)(4)(5), 1.15(a), 1.15(c), 1.15(g), 1.16(a), 1.16(d), 5.5, 8.1(b), and 8.1(c) of the Rules of Professional Conduct.

Turning to the issue of an appropriate sanction, the committee did not discuss in its report the duties violated by respondent, her mental state, or the injury caused, nor did the committee assess the applicable baseline sanction. The committee also did not address the aggravating or mitigating factors present.

The committee found that all of the infractions of which respondent is guilty were committed during the same general time frame as the infractions in Thomas I. For this reason, the committee recommended that the sanction imposed in Thomas I be deemed sufficient to address the misconduct in this proceeding. However, the committee also recommended respondent be ordered to make restitution to her clients.

IsThe ODC filed an objection to the hearing committee’s report, noting the recommended sanction appears to be based upon a misinterpretation of Louisiana State Bar Ass’n v. Chatelain, 573 So.2d 470 (La.1991).

Disciplinary Board Recommendation

After review, the disciplinary board agreed with the factual findings and legal conclusions of the hearing committee, with some exceptions:

The Pitcher matter — Respondent was declared ineligible to practice law on October 1, 2008, which appears to be near the time the representation was terminated. As such, there is insufficient evidence in the record to support a finding that respondent practiced law while ineligible in violation of Rule 5.5.

The Joseph matter — The record is unclear as to whether any portion of the fee paid by Mr. Joseph was for advance costs, which would be required to be deposited in a trust account. As such, there is not clear and convincing evidence that respondent violated Rules 1.5(f)(4) and 1.15(c).

The Ellis matter — While the evidence suggests there was some delay in respondent filing a response to the complaint, the record does not indicate that she intentionally failed to respond or avoided service, rising to the level of a violation of Rules 8.1(b) and (c).

The Domino matter — The record is not clear as to what portion of the fee, if any, was for an advance payment of costs and/or fees. As such, there is not clear and convincing evidence that respondent violated Rules 1.5(f)(4) and 1.15(c). In addition, the delayed response to the complaint is attributable to an oversight by respondent’s counsel. Because respondent has been otherwise cooperative in this 19matter, the circumstances do not suggest that the facts rise to the level of a violation of Rules 8.1(b) and (c).

Rule 8.1(a) — By violating the Rules discussed above, respondent violated Rule 8.4(a).

The board determined that respondent knowingly violated duties owed to her clients and the legal profession. She caused actual harm to numerous clients by failing to return unearned legal fees and advanced costs. She caused harm to the legal profession by failing to fulfill her professional obligations and by practicing law while deemed ineligible. Citing the ABA’s Standards for Imposing Lawyer Sanctions, the board determined that the applicable baseline sanction in this matter is suspension.

The board found the following aggravating factors are present: a pattern of misconduct and multiple offenses. The board found the following mitigating factors are present: absence of a prior disciplinary record, absence of a dishonest or selfish motive, full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, character and reputation, delay in the disciplinary proceedings, and remorse.

Considering the prior jurisprudence of this court, and in light of the aggravating factors present, the board determined that the sanction recommended by the committee too lenient. Accordingly, the board recommended that respondent be suspended from the practice of law for two years, to run concurrently with the suspension imposed in Thomas I. The board also recommended that respondent pay restitution as determined by a neutral arbiter and that she be assessed with the costs and expenses of this proceeding.

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

| ^DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks, 09-1212 (La.10/2/09), 18 So.3d 57. 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), 688 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

The record in this matter supports the hearing committee’s factual findings,' as modified by the disciplinary board. Essentially, respondent was ineligible to practice law due to her failure to fulfill her annual professional obligations, but nevertheless, she continued to practice law during this period. Respondent also failed to refund unearned fees and unused costs to her clients. Based on these facts, respondent violated the Rules of Professional Conduct as found by the 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).

| r. Respondent knowingly violated duties owed to her clients and the legal profession. Her misconduct caused actual harm. The baseline sanction for this type of misconduct is suspension. The record supports the aggravating and mitigating factors found by the board.

Turning to the issue of an appropriate sanction, we note the substantive misconduct in Thomas I occurred between February 2005 and June 2008, during the general time period in which the substantive misconduct in these matters occurred. Based upon our decision in Chatelain, we agree that the substantive misconduct in these matters should be considered along with the misconduct in Thomas I.

In prior cases involving the practice of law by attorneys who are ineligible to do so for failure to comply with professional obligations, we have imposed sanctions ranging from suspension to disbarment, with the baseline sanction generally being a suspension for a period of one year and one day. In re: Hardy, 03-0443 (La.5/2/03), 848 So.2d 511. Respondent was found to have practiced law while certified ineligible on six occasions in Thomas I and on at least fifteen occasions in the instant proceeding. In total, she has engaged in the unauthorized practice of law on at least twenty separate occasions. In light of the court’s jurisprudence and the facts presented, we see no reason to deviate downward from the applicable baseline sanction.

In prior cases involving attorneys with multiple instances of failing to refund unearned fees, among other misconduct, we have imposed moderate-length suspensions. The board cited In re: Ramsey, 07-0006 (La.3/16/07), 951 So.2d 1077, wherein we suspended an attorney for one year and one day for six counts of misconduct that involved failing to provide ac-countings and/or refund unearned fees to four clients, failing to communicate with clients, failing to refund an excessive fee, failing to return client files, practicing law while ineligible, and | ^failing to cooperate with the ODC in its investigation. Numerous aggravating factors were present and the only mitigating factor was the absence of a prior disciplinary record. While the present matter does not contain the numerous aggravating factors that were present in Ramsey, the scope of respondent’s misconduct is no less problematic in that it affected nine clients.

Based on the jurisprudence, a two-year suspension is in the range of appropriate discipline for respondent’s misconduct. Accordingly, we will adopt the board’s recommendation and suspend respondent from the practice of law for two years, to run concurrently with her previous suspension so that the overall discipline takes into account all of her misconduct. We will also order respondent to refund the unearned portion of fees paid by her clients, or alternatively, submit the matters to fee dispute arbitration.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary' board, and considering the record, it is ordered that Lisa Jeanenne Thomas, Louisiana Bar Roll number 27306, be and she hereby is suspended from the practice of law for a period of two years, which suspension shall run concurrently to the suspension imposed in In re: Thomas, 11-2012 (La.11/18/11), 74 So.3d 695. It is further ordered that respondent either return unearned fees to her clients subject to these proceedings or voluntarily participate in the Louisiana State Bar Association’s Fee Dispute Resolution Program regarding her fees. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      .Respondent’s eligibility was not restored until April 29, 2009.

      .On this occasion, respondent’s eligibility was not restored until January 31, 2008.

      .The records of the Louisiana State Bar Association reflect that respondent has been declared ineligible to practice law as follows:
      September 4, 2001-January 14, 2003 Failure to pay bar dues and disciplinary assessment
      November 7, 2004-November 8, 2004 Failure to pay bar dues and disciplinary assessment
      February 4, 2005-September 26, 2007 Failure to attend mandatory CLE

        October 31, 2005-September 26, 2007 Failure to pay bar dues and disciplinary assessment
      November 30, 2007-January 31, 2008 Failure to file a trust account registration statement
      October 1, 2008-April 29, 2009 Failure to pay bar dues and disciplinary assessment
      September 9, 2009-September 10, 2009 Failure to pay bar dues and disciplinary assessment

      . The formal charges identify twelve separate client matters wherein respondent is alleged to have practiced law while ineligible. The Ellis matter, which is addressed in Count VII, is among the twelve matters mentioned. However, none of the matters that are listed in these formal charges were included in the Thomas I proceedings.

      . Specifically, the committee recommended that respondent make restitution in the following amounts: $250 to Leslie Pitcher, $800 to Gloria Whitelaw, $750 to Larry Joseph, $970 to Jasmine Wilson, $225 to Cathrina Ellis, $2,430 to Kenyon Woodard, and $1,000 to Idora Domino.

      . In Chatelain, this court observed that when a second attorney disciplinary proceeding involves conduct which occurred during the same time period as the first proceeding, the overall discipline to be imposed should be determined as if both proceedings were before the court simultaneously.

      . The record indicates that the ODC was aware of several of the complaints comprising this matter prior to the filing of the formal charges subject of Thomas I.


text:
    In re E. Lynn SINGLETON.
    No. 2013-OB-0876.
    Supreme Court of Louisiana.
    May 1, 2013.
   ORDER

Considering the Petition for Transfer to Disability Inactive Status filed by the Office of Disciplinary Counsel,

IT IS ORDERED that E. Lynn Singleton, Louisiana Bar Roll number 12102, be and he hereby is transferred to interim disability inactive status pending a hearing to determine the validity of his claim of inability to assist in his defense due to mental or physical incapacity, pursuant to Supreme Court Rule XIX, § 22(C). All disciplinary proceedings shall be stayed pending this determination.

Pursuant to Supreme Court Rule XIX, § 26(E), this order shall be effective immediately.

KNOLL, J., recused.

FOR THE COURT:

/s/ John L. Weimer Justice, Supreme Court of Louisiana


author: JOHNSON, C.J.,

text:
    STATE ex rel. Derrick Wayne DOUGLAS v. STATE of Louisiana.
    No. 2012-KH-2508.
    Supreme Court of Louisiana.
    May 3, 2013.
   In re Douglas, Derrick Wayne; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. L, No. 03-07-0882; to the Court of Appeal, First Circuit, No. 2010 KA 2039.

Prior report: La.App., 72 So.3d 392.

Denied.

JOHNSON, C.J., would grant and remand the case to the court of appeal. See written reasons.

HUGHES, J., would grant.

JOHNSON, C.J.,

would grant the writ and remand the case to the court of appeal.

I would order the court of appeal to consider the merits of the claims raised in relator’s supplemental appellate brief. To the extent relator has shown that he deposited his supplemental brief with prison authorities on April 12, 2001, he filed timely. See Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988).