author: WEIMER, Justice. VICTORY, J.,

text:
    David and Demetria QUINN v. LOUISIANA CITIZENS PROPERTY INSURANCE CORPORATION.
    No. 2012-CC-0152.
    Supreme Court of Louisiana.
    Nov. 2, 2012.
    Rehearing Denied Jan. 25, 2013.

      Christovich & Kearney, Oscar McDuffie Gwin, IV, Hailey, McNamara, Hall, Lar-mann & Papale, LLP, Darren Albert Pa-tin, Christopher Marx G’sell, for applicant.
    Harry Cantrell Law Firm, Harry E. Cantrell, Jr., Thomas Keasler Foutz, Bruno & Bruno, LLP, Joseph Michael Bruno, Melissa A. DeBarbieris, for respondent.
   WEIMER, Justice.

hWe granted certiorari in this case to consider two separate, but related issues: (1) whether the suspension of prescription provided for in La. C.C.P. art. 596 extends to a putative class member who files an individual claim after a ruling on the class certification issue and, if so, (2) whether La. C.C.P. art. 596 suspends prescription when the putative class action is filed in another jurisdiction. After reviewing the relevant statutory provisions, we find that the filing of an individual lawsuit after a ruling on class certification does not operate as an “opt out” of a class action proceeding and a forfeiture of the benefits of suspension provided in La. C.C.P. art. 596, but that the provisions of La. C.C.P. art. 596 do not extend to suspend prescription on claims asserted in a putative class action filed in a federal court. As a result, we reverse the district court’s judgment denying the defendant’s exception of prescription, sustain the exception, and remand this matter to the district court to allow plaintiffs the opportunity to amend the petition, if they can, to allege facts to show their claims are not prescribed.

REACTS AND PROCEDURAL HISTORY

On October 28, 2009, plaintiffs David and Demetria Quinn (“the Quinns”) filed suit against Louisiana Citizens Property Insurance Corporation (“Citizens”) in the Twenty-fourth Judicial District Court for the Parish of Jefferson. In its preamble, the Quinns’ petition asserts that Citizens was a defendant in a “Class Action Claim” in the United States District Court for the Eastern District of Louisiana that was “recently dismissed” and, as a result, the Quinns seek to assert “their individual claims.”

According to the petition, the Quinns’ claims arise out of property they owned in Harvey, Louisiana. The petition alleges that on August 29, 2005, the property was insured under a homeowner’s policy issued by Citizens. During Hurricanes Katrina and Rita, the property sustained wind and rain damage (prior to any flooding) which rendered it uninhabitable. More than thirty days elapsed after satisfactory proof of loss was submitted to Citizens, but compensation for the loss, according to the terms of the policy, was not received. Damages were requested for the underpayment of amounts due under the terms and conditions of the Citizens policy and for all other general and equitable relief as may be appropriate.

Citizens responded to the petition by filing a peremptory exception of prescription. In that exception, Citizens argued the Quinns were putative members of two class actions filed on behalf of similarly-situated Citizens insureds, Buxton v. Louisiana Citizens Property Ins. Corp., No. 2006-8341 on the docket of the Civil District Court for the Parish of Orleans, and Chalona v. Louisiana Citizens Property Ins. Corp., 08-0257 (La.App. 4 Cir. 6/11/08), 8 So.3d 494, but their claims Rwere no longer represented in those proceedings. Citing Taranto v. Louisiana Citizens Property Ins. Corp., 10-0105 (La.3/15/11), 62 So.3d 721, Citizens argued that based on the April 24, 2008 notice of class restriction issued in Chalona, the latest date on which the Quinns could timely assert their claims was May 31, 2009, and the petition filed on October 28, 2009, was, therefore, prescribed. Alternatively, citing Lester v. Exxon Mobil Corp., 09-1105 (La.App. 5 Cir. 6/29/10), 42 So.3d 1071, writ denied, 10-2244 (La.12/17/10), 51 So.3d 14, Citizens argued that by filing an individual lawsuit, the Quinns “opted out” of all class actions and, in doing so, forfeited the benefit of the suspension of prescription afforded under La. C.C.P. art. 596, rendering their lawsuit untimely because it was filed long after the legislatively imposed deadline for filing claims for damages caused by Hurricanes Katrina and Rita.

The Quinns opposed the exception of prescription, alleging they were putative class members in the following class action proceedings: Orrill v. AIG, Inc., 09-0888 (La.App. 4 Cir. 4/21/10), 38 So.3d 457, writ denied, 10-0945 (La.9/17/10), 45 So.3d 1035; Oubre v. Louisiana Citizens Fair Plan, 09-620 (La.App. 5 Cir. 11/9/10), 53 So.3d 492, writ granted, 11-0097 (La.4/8/11), 61 So.3d 673; reversed, 11-0097 (La.12/16/11), 79 So.3d 987; In Re: Katrina Canal Breaches Consolidated Litigation, No. 05-4182 on the docket of the United States District Court for the Eastern District of Louisiana; State v. AAA Ins. Co., No. 07-5524 on the docket of the United States District Court for the Eastern District of Louisiana (the “Road Home” litigation); and Buxton. The Quinns argued that because Oubre, _JjOrrill, and the Road Home actions were then still pending, and because Buxton and In Re: Katrina Canal Breaches Consolidated Litigation were dismissed without notice to the Quinns, prescription on their individual claims remains suspended pursuant to La. C.C.P. art. 596. In addition, they argued that the filing of their individual claim was neither an “opt out” of any of the class actions, nor a forfeiture of the suspension of prescription provided under La. C.C.P. art. 596.

A hearing on the prescription exception was conducted on August 26, 2011. At that hearing, the district court entertained the arguments of counsel, but no evidence was offered or received. Instead, at the conclusion of argument, the district court ruled from the bench:

I’m going to deny the exception. The Taranto Court did not hold that all Plaintiffs who had claims against Citizen[s] had until May 31, 2009 to file. Whether a claim is prescribed for a putative member of a class depends on if the Plaintiff opts out of the class, and notice is given that the member has been excluded from the class or notice is given that the Court has denied certification of the class. In this case the Plaintiff has not received notice of any dismissals or restrictions on class action cases, which is a requirement to start the running of time of prescription. An[d] one or more of the cases is still pending, and so forth. This exception has to be denied.

Citizens applied for a supervisory writ from the adverse judgment. The Court of Appeal, Fifth Circuit, denied the writ. In written reasons accompanying the writ denial, the court of appeal reasoned:

In analyzing whether the plaintiffs in this case timely filed their claims, we must consider all class actions, which were timely filed, and whether the plaintiffs are putative members of any class. One class action, upon which the plaintiffs rely, Oubre v. Louisiana Citizens Fair Plan, 09-620, p. 28 (La.App. 5 Cir. 11/9/10), 53 So.3d 492, 508, writ granted, 11-0097 (La.4/8/11), 61 So.3d 673, writ denied, 11-0173 (La.4/8/11), 61 So.3d 687, defined the class as including insureds of Citizens who provided notification of loss but did not receive adjustment of the claims within 30 days, an allegation made here.
Oubre is pending on appeal. At this time, the current plaintiffs have received no notice that the Oubre court has denied certification of the 15class or excluded any member from the class. Thus, prescription has not yet run. La. C.C.P. art. 596.

Quinn v. Louisiana Citizens Property Ins. Corp., 11-C-937, p. 2 (La.App. 5 Cir. 9/23/11) (unpublished).

The court of appeal made short shrift of Citizens’ argument that the Quinns opted out of all respective classes by filing their individual lawsuits after the resolution of the class certification issue in each, distinguishing Lester on the grounds that “plaintiffs in this case, unlike the Lester case, filed suit after class certification,” as opposed to before. Id.

On Citizens’ application, we granted cer-tiorari to review the correctness of the lower courts’ rulings. Quinn v. Louisiana Citizens Property Ins. Corp., 12-CC-0152 (La.3/30/12), 85 So.3d 100.

LAW AND ANALYSIS

Our grants of certiorari in this case and in the case of Duckworth v. Louisiana Farm Bureau Mutual Ins. Co., 11-2835 (La.3/30/12), 85 So.3d 99, were directed to addressing the issue of whether a plaintiff who is a putative class member, but who elects to file an individual suit, effectively opts out of the class and loses the benefit of any suspension of prescription resulting from the filing of the class action. In Duckworth, the plaintiffs filed an individual lawsuit prior to the resolution of the class certification issue in the class action in which they were putative members. In the instant case, the individual lawsuit was filed after a determination on class certification. In both cases, the defendants argue that the filing of an individual lawsuit operates as an “opt out” of any class action proceeding in which a plaintiff is a putative class member and a forfeiture of the benefits of the suspension of prescription afforded by La. C.C.P. art. 596.

IfjFor the reasons assigned in the Duckworth opinion (released simultaneously with the opinion here), we hold that the filing of an individual lawsuit, regardless of its timing, is not an avenue for “opting out of’ or requesting exclusion from a class and, thus, not a trigger for recommencing the running of liberative prescription under La. C.C.P. art. 596 or for forfeiting the benefits of suspension provided thereunder. Duckworth, 11-2835 at 14-20, 85 So.3d at 100. Our conclusion in this regard is both constrained and defined by the express words of La. C.C.P. art. 596, which extends the benefits of suspension to the claims of all members of a class described in a class action petition and sets forth detailed provisions directing when prescription begins to run again once a ruling on class certification is made:

A. Liberative prescription on the claims arising out of the transactions or occurrences described in a petition brought on behalf of a class is suspended on the filing of the petition as to all members of the class as defined or described therein. Prescription which has been suspended as provided herein, begins to run again:
(1) As to any person electing to be excluded from the class, thirty days from the submission of that person’s election form;
(2) As to any person excluded from the class pursuant to Article 592, thirty days after mailing or other delivery or publication of a notice to such person that the class has been restricted or otherwise redefined so as to exclude him; or
(3) As to all members, thirty days after mailing or other delivery or publication of a notice to the class that the action has been dismissed, that the demand for class relief has been stricken pursuant to Article 592, or that the court has denied a motion to certify the class or has vacated a previous order certifying the class. .

In delineating three discrete events as the exclusive statutory triggers for re-commencing prescription, La. C.C.P. art. 596 illustrates and underscores that there are three means by which an individual achieves exclusion from a class action proceeding filed in Louisiana state court: (1) by submitting an election form; (2) by J^restriction or redefinition of the class to exclude that individual; or (3) by dismissal of the action, a judgment striking the demand for class relief, or a judgment denying the motion for class certification or vacating a previous order certifying the class. Filing an individual lawsuit in the absence of one of these statutory triggers is simply not one of the means contemplated by the statutes for “opting out of’ or achieving exclusion from a class action and, thus, for re-commencing the prescriptive clock or forfeiting the benefits of suspension afforded under La. C.C.P. art. 596. Duckworth, 11-2835 at 18-19, 85 So.3d at 100.

When the Code of Civil Procedure articles on class action proceedings in Louisiana are examined as a whole, and La. C.C.P. art. 596 is read in conjunction with La. C.C.P. art. 592, it becomes clear that when a class action is certified in Louisiana, all persons who fall within the class definition are class members. The only avenue for requesting exclusion from a class once it is certified is by the timely submission of an election form. La. C.C.P. art. 592(B)(2)(b); Duckworth, 11-2835 at 18, 85 So.3d at 100. In the absence of such a form, the class member is bound by the class action judgment. La. C.C.P. art. 592(B)(2)(c). In the event a timely election form is submitted electing exclusion from the class, prescription on an individual claim commences to run again thirty days from the submission of the form. La. C.C.P. art. 596(A)(1). In the event a class is redefined or restricted to exclude an individual, the class action is dismissed, the demand for class relief stricken, or certification of the class is denied or an order previously granted certification is vacated, prescription commences to run again thirty days “after mailing or other delivery or publication of a notice” of the action. La. C.C.P. art. 596(A)(2) & (3).

To paraphrase Duckworth, (and, again for the reasons expressed therein, which we find applicable here) the plain language of La. C.C.P. art. 596 provides for Rthe suspension of liberative prescription “on the claims arising out of the transactions or occurrences described in a petition brought on behalf of a class ... as to all members of the class as defined or described therein,” until such time as individuals cease to be members of the class. La. C.C.P. art. 596 provides a list of discrete, specific, and clear triggering events delineating when class membership ceases for prescription purposes. The filing of an individual lawsuit in the absence of one of these triggering events is not one of them. Duckworth, 11-2835 at 25, 85 So.3d at 100.

According to its plain terms, to receive the benefit of the suspension of prescription provided in La. C.C.P. art. 596, however, an individual filing an independent suit must establish three predicate facts: (1) the existence of a timely filed class action proceeding against the defendant, (2) that he or she is a member of the class described or defined in the identified class petition, and (3) that the claims asserted in the independent action arise “out of the transactions or occurrences described” in that petition.

| nBefore this court, Citizens argues the district court erred in denying its peremptory exception of prescription because the Quinns failed to satisfy their burden of proving they were putative members of a timely filed class action proceeding and, thus, entitled to the benefits of suspension of prescription provided in La. C.C.P. art. 596.

As a general rule, prescription statutes “are strictly construed against prescription and in favor of the obligation sought to be extinguished.” Taranto v. Louisiana Citizens Property Ins. Corp., 10-0105, p. 5 (La.3/15/11), 62 So.3d 721, 726; see also Bailey v. Khoury, 04-0620, 04-0647, 04-0684, p. 9 (La.1/20/05), 891 So.2d 1268, 1275. Ordinarily, the party urging prescription bears the burden of proof at trial of the exception; however, if the petition is prescribed on its face, the burden shifts to the plaintiff to show the action is not prescribed. Taranto, 10-0105 at 5, 62 So.3d at 726; Cichirillo v. Avondale Industries, Inc., 04-2894, 04-2918, p. 5 (La.11/29/05), 917 So.2d 424, 428; Bailey, 04-0620, 04-0647, 04-0684 at 9, 891 So.2d at 1275. Although evidence may be introduced to support or controvert the exception, in the absence of evidence, an exception of prescription must be decided upon the facts alleged in the petition with all allegations accepted as true. La. C.C.P. art. 931; Wells v. Zadeck, 11-1232, p. 7 (La.3/30/12), 89 So.3d 1145, 1149-1150; Cichirillo, 04-2894, 04-2918 at 5, 917 So.2d at 428.

In the present case, no evidence was introduced at the hearing on the prescription exception. As a result, the exception must be decided on the basis of the Jjjfacts pleaded in the Quinns’ petition. That petition, filed October 28, 2009, seeks damages pursuant to a homeowner’s insurance policy for losses resulting from Hurricanes Katrina and Rita. Through 2006 La. Acts 739 and 802, the legislature extended the prescriptive period on such claims until September 1, 2007 (for claims resulting from Hurricane Katrina), and October 1, 2007 (for claims resulting from Hurricane Rita). The Quinns’ claims, asserted more than two years after these dates, would at first glance appear to be prescribed. However, the Quinns’ petition additionally alleges that Citizens was a defendant in a “recently dismissed” class action proceeding filed in the United States District Court for the Eastern District of Louisiana, and that plaintiffs “desire to file their individual claims as a result of this ruling.” In other words, the petition affirmatively alleges facts to show that prescription has been suspended by virtue of the filing of a class action proceeding in which plaintiffs were putative class members.

Ordinarily, such allegations would be sufficient to allow this court to conclude that the Quinns’ petition was not prescribed on its face and, therefore, it was Citizens’ burden to prove the Quinns’ claims are prescribed-a burden clearly not met because Citizens did not introduce any evidence at the trial of the exception. However, the class action proceeding on which plaintiffs rely in their petition to establish a suspension of prescription was filed in federal district court. Seizing upon this fact, Citizens argues that La. C.C.P. art. 596 does not apply to suspend prescription when the class action is filed in another jurisdiction. In other words, Citizens argues that |nplaintiffs are not entitled to the benefits of La. C.C.P. art. 596 because that article does not provide for “cross-jurisdictional tolling.”

This court has not previously addressed whether the provisions of La. C.C.P. art. 596 suspend prescription where the applicable Louisiana prescriptive period has expired while a claim has been pending as a putative class action in another jurisdiction-in this case a Louisiana federal district court. Mindful of our civilian mandate, in resolving the matter now squarely placed before us, we begin, as we must, with the language of the code article itself. In re Succession of Faget, 10-0188, p. 8 (La.11/30/10), 53 So.3d 414, 420; Touchard v. Williams, 617 So.2d 885, 888 (La.1993).

An examination of the plain words of La. C.C.P. art. 596, quoted supra, reveals the article contains no express language limiting its effect to class actions filed only in Louisiana state courts, ordinarily an indication that such a limitation was not intended. However, a closer reading of the article reveals its operative provisions are specifically tied to several unique features of Louisiana class action procedure. For example, La.C.C.P. art. 596(A)(1) provides that prescription begins to run again thirty days from the submission of an “election form” seeking to be excluded from a certified class. As we pointed out in Duck-worth, through La. C.C.P. art. | is592(B)(2)(b), the legislature has chosen to tie exclusion from a class (and the recommencing of prescription under Article 596(A)(1)) to the submission of an election form, a form particular to Louisiana practice. Duckworth, 11-2835 at 18, 85 So.3d at 100.

Likewise, La. C.C.P. art. 596(A)(3) provides that prescription begins to run again thirty days “after mailing or other delivery or publication of a notice to the class” that, inter alia, “the demand for class relief has been stricken pursuant to Article 592.” La. C.C.P. art. 596(A)(3). Again, the motion to strike a demand for class relief, authorized by La. C.C.P. art. 592(A)(2) when a proponent of a class action fails to file a timely motion for certification, is particular to Louisiana.

Most significant are the provisions of La. C.C.P. art. 596(A)(2) and (3), which require, before prescription begins to run again, “mailing or other delivery or publication of a notice to the class” of certain events: (1) the class has been restricted or otherwise redefined to exclude certain individuals, (2) the action has been dismissed, (3) the demand for class relief has been stricken, or (4) certification has been denied or vacated. This requirement of notice to restart the running of prescription is unique to Louisiana. The federal rules, in particular, do not require notice of such exclusionary events. Rineheart v. Ciba-Geigy Corp., 190 F.R.D. 197, 200 (M.D.La.1999) (“[N]o notice of a dismissal or settlement to asserted class 11smembers is required if there has been a judicial denial of class certification.”) citing inter alia, Pearson v. Ecological Science Corp., 522 F.2d 171, 177 (5th Cir.1975) (“Hence, where a court has ruled under Rule 23(c)(1) that an action cannot properly be maintained as a class action the notice requirements of Rule 23(e) do not apply, at least where the dismissal and settlement of the action do not directly affect adversely the rights of individuals not before the court.”). See also, In re Katrina Canal Breaches Litigation, 401 Fed.Appx. 884, 887 (5th Cir.2010) (“[TJhere is nothing that requires the court to order notice of the denial of class certification, and we find no abuse of discretion in the court’s refusal to do so.”). Moreover, the content of the notice required under La. C.C.P. art. 596(A)(2) or (3) in the event of exclusion is tied firmly to the provisions of Louisiana law. Thus, for example, La. C.C.P. art. 596(B) dictates that “[t]he notice required by Subparagraphs (A)(2) and (3) of this Article shall contain a statement of the delay periods provided herein.”

The significance of this language specifically linking the recommencement of prescription to particular aspects of Louisiana class action procedure is evident. By tying the operative provisions of La. C.C.P. art. 596 to unique aspects of Louisiana class action procedure, the legislature has expressed an intent that suspension of prescription under La. C.C.P. art. 596 can apply only to putative class actions filed in Louisiana state courts. Because Louisiana’s procedural laws do not extend to foreign jurisdictions, including the federal courts, any other interpretation of the article would produce the absurd result that prescription could, potentially, be indefinitely suspended — a result clearly at odds with the purpose of prescriptive | ,4statutes. Cichirillo, 04-2894, 04-2918 at 9, 917 So.2d at 430 (“The fundamental purpose of prescription statutes is to afford a defendant economic and psychological security if no claim is made timely and to protect the defendant from stale claims and from the loss or non-preservation of relevant proof.”).

For example, as noted, Fed. Rule Civ. Proc. 23 does not require notice to class members of denial of class certification. Thus, in putative class actions filed in federal court, if certification is denied, no notice is provided (and certainly not such notice as would include a statement of the relevant delay periods under Louisiana law, as required by La. C.C.P. art. 596(B)). The individual claims of putative class members arising under Louisiana law would, thus, remain suspended indefinitely.

Clearly, such was not the intent of the legislature in enacting La. C.C.P. art. 596. Its provisions contemplate that prescription, once suspended, “begins to run again” at some point. La. C.C.P. art. 596(A). To interpret the article to provide for cross-jurisdictional tolling would not only subvert the purpose of prescriptive statutes, but would render much of the language of Article 596 meaningless when a class action is filed in a jurisdiction other than Louisiana. Our rules of statutory interpretation do not permit us to reach such a result. The distinctions between | ^Louisiana class action procedure and federal class action procedure reinforce our conviction that the legislature, in linking the suspension of La. C.C.P. art. 596 to unique provisions of Louisiana law, did not intend to adopt “cross jurisdictional tolling.”

After examining the words of the article, we find, therefore, that the plain language of La. C.C.P. art. 596 dictates that the suspension of prescription provided therein applies only to “petition[s] brought on behalf of a class” in the state courts of Louisiana.

While our conclusion in this regard is based on the statutory language, it is reinforced by an examination of the decisions of other jurisdictions that have addressed the issue of “cross-jurisdictional tolling” in the context of class action proceedings. Admittedly, the jurisprudence is not yet thoroughly developed. The majority of states have not had occasion to address the issue directly and the states that have considered cross-jurisdictional tolling have been split in their acceptance of the doctrine and the rationale for their decisions.

Instates which have adopted “cross-jurisdictional tolling” have generally done so on the basis of the rationale expressed in Vaccariello v. Smith & Nephew Richards, Inc., 94 Ohio St.3d 380, 763 N.E.2d 160 (2002). In Vaccariello, the Ohio Supreme Court cited two reasons for adopting cross-jurisdictional tolling. First, noting “that the bulk of Ohio’s class action rule, Civ.R. 23(A) through (E), is identical to the bulk of the federal class action rule, Fed. R.Civ.P. 23(a) through (e),” the court found that “a class action filed in federal court serves the same purpose as a class action filed in Ohio,” and “[wjhether a class action is filed or the federal court system, the defendant is put on notice of the substance and nature of the claims against it.” Id. at 162-63. Therefore, the court reasoned, “allowing the filing of a class action in the federal court system to toll the statute of limitations in Ohio does not defeat the purpose of the statute.” Id. at 163. Second, the court concluded, to hold “otherwise would encourage all potential plaintiffs in Ohio who might be part of a class that is seeking certification in a federal class action to file suit individually in Ohio courts to preserve their Ohio claims should the class certification be denied,” resulting in a “multiplicity of filings” that “would defeat the purpose of class actions.” Id.

Thus, the courts that have accepted cross-jurisdictional tolling have largely done so on the theory that, regardless of the jurisdiction in which it is accomplished, the defendant is put on notice of the claims and, as a result, the staleness of claims is not a genuine threat. As for the inevitable delays and vagaries in certification, the 117courts reason those would occur in any event. For these courts, there is no perceived incompatibility with the principles underlying statutes of limitation. However, unlike those cases such as Vaccariello, where Ohio’s class action rule was found to be virtually identical to federal law, Louisiana’s class action provisions differ from their federal counterpart in significant respects, creating the potential for disparate results depending on whether the class action is filed in Louisiana or federal court. To reiterate, because Louisiana requires notice to recommence the running of prescription, a putative class member in a federal class action in which certification is denied may have prescription on his or her claim suspended indefinitely, whereas a putative class member in a Louisiana class action will not be so fortunate. These vagaries, and the resultant potential for the indefinite suspension of prescription, are incompatible with the principles underlying prescription.

On the other hand, states which have rejected “cross-jurisdictional tolling” have generally done so on the basis of the rationale expressed in Portwood v. Ford Motor Co., 183 Ill.2d 459, 233 Ill.Dec. 828, 701 N.E.2d 1102 (1998). In Portwood, the Illinois Supreme Court reasoned that while class action tolling in the same court system furthers judicial economy and is sound policy, tolling across jurisdictional lines “may actually increase the burden” on a state’s court system “because plaintiffs from across the country may elect to file a subsequent suit in that state solely to take advantage of the generous tolling rule.” Id. at 1104. In addition to its concern with forum shopping, the Illinois court expressed concern with the delay occasioned by the pendency of a class action in federal court, noting that “because state courts have no control over the work of the federal judiciary, ... it would be unwise to adopt a policy basing the length of Illinois limitation periods on the federal courts’ disposition of suits seeking class certification.” Id. The court cited as an example of the dangers of forum shopping |isand the untoward delay occasioned by the pen-dency of a class action in federal court the facts of the case before it:

Most of the current plaintiffs originally filed suit against defendant in federal court in Washington, D.C., in 1981. After numerous orders and appeals, that suit was finally dismissed in March of 1990. Plaintiffs thereafter brought two similar suits, one in the local courts of the District of Columbia and the other in Pennsylvania state court. Each of those suits was also dismissed. The fourth incarnation of this action in Illinois thus follows three unsuccessful forays by plaintiffs elsewhere, spanning a period now approaching two decades.

Portwood, 233 Ill.Dec. 828, 701 N.E.2d at 1105 (emphasis added).

We believe the rationale of the courts rejecting “cross-jurisdictional tolling” is the one most consistent with our interpretation of the provisions of Louisiana’s tolling statute, La. C.C.P. art. 596, and is the rationale which most effectively balances the twin concerns of judicial efficiency and protection against stale claims. These cases, and particularly Portwood, underscore the unfairness to defendants, and to the state itself, of permitting another jurisdiction’s laws and the efficiency (or inefficiency) of its operations to control the commencement of a statute of limitations, potentially suspending it indefinitely into the future and, in the process, undermining the very purpose of statutes of limitation. As the Portwood court noted, any resultant blow to judicial efficiency occasioned by the necessity of protective filings in state court pending the resolution of the certification issue in federal court can be ameliorated by measures available to the state courts: “[Ejarly filings in state court by plaintiffs who are pursuing a class action elsewhere could not be entirely undesirable, as such filings would put that state’s court system on notice of the potential claim. If necessary, the state suit could be stayed pending proceedings elsewhere.” Portwood, 233 Ill.Dec. 828, 701 N.E.2d at 1105.

|19In sum, and for the reasons expressed herein, our analysis of La. C.C.P. art. 596 leads us to conclude that the legislature has rejected “cross-jurisdictional tolling” in class action proceedings. As a result, the Quinns cannot rely on the “recently dismissed” class action claim in the U.S. District Court for the Eastern District of Louisiana to establish a suspension of prescription as to the “individual” claims asserted in their lawsuit. The petition is prescribed on its face. Because there was no evidence introduced at the hearing on the prescription exception and the Quinns’ petition is prescribed on its face, the district court erred in denying the exception of prescription urged by Citizens. The judgment of the district court is, therefore, reversed and the exception of prescription is sustained.

In brief to this court, the Quinns anticipated the ruling of this court and argued that even if a federal class action would not serve to suspend prescription on the claims of putative class members under La. C.C.P. art. 596, they are putative class members in class action proceedings in state court and prescription on their claims is suspended by virtue of those proceedings. Citing La. C.C.P. art. 934 and Whitnell v. Menville, 540 So.2d 304 (La.1989), the Quinns assert this case should be remanded to the district court and they be allowed to amend their petition to allege facts to show their claims are not prescribed.

Citing Whitnell, in Wyman v. Dupepe Construction, 09-0817 (La.12/1/09), 24 So.3d 848, this court reiterated that “when a court sustains an exception of prescription, it shotild permit amendment of the plaintiffs pleadings if the new allegations which the plaintiff proposes raise the possibility the claim is not prescribed, even if the ultimate outcome of the prescription issue, once the petition is amended, is uncertain.” Id., 09-0817 at 1, 24 So.3d at 849. Considering the established jurisprudence, we find the Quinns’ request for a remand and permission |20to amend to be well-founded. Thus, we reverse the judgment denying the exception of prescription and sustain the exception, but remand this ease to the district court to allow the Quinns to amend their petition, if they can, within the delay allowed by the district court, to allege facts that would show their claims are not prescribed.

CONCLUSION

For the reasons stated herein, the judgment of the district court is reversed and judgment is rendered sustaining the exception of prescription; however, the case is remanded to the district court to allow plaintiffs an opportunity to amend and supplement their petition.

REVERSED; EXCEPTION OF PRESCRIPTION SUSTAINED; CASE REMANDED.

VICTORY, J.,

dissents in part and concurs in part. '

hi concur in the portion of the majority opinion holding that La. C.C.P. art. 596 does not suspend prescription when the putative class action is filed in another jurisdiction, but I dissent from the rest of the opinion.

      . The petition was originally filed on behalf of several unrelated plaintiffs. Pursuant to a consent judgment, the claims of all except the Quinns were dismissed without prejudice.

      . See, 2006 La. Acts 739 and 802 (imposing special time limitations for claims related to hurricanes Katrina and Rita) discussed further infra.

      .Identified by plaintiffs as "Orrill v. Citizens, 38 So.2d 457 (La.App 4th Cir.2010).”

      . Because the premise which underpins the extension of the benefit of suspension of prescription to putative class members is that defendants in the class proceeding have been put on notice of the claims against them and can, thus, take appropriate action to preserve evidence and prepare a defense, it is crucial that there be identity or at least a close nexus between the claims. As Justice Powell cautioned in his oft-quoted concurrence in Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983):
      The [American Pipe & Const. Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974) tolling] rule should not be read, however, as leaving a plaintiff free to raise different or peripheral claims following denial of class status.... [W]hen a plaintiff invokes American Pipe [tolling] in support of a separate lawsuit, the district court should take care to ensure that the suit raises claims that "concern the same evidence, memories, and witnesses as the subject matter of the original class suit,” so that "the defendant will not be prejudiced.” ... Claims as to which the defendant was not fairly placed on notice by the class suit are not protected under American Pipe and are barred by the statute of limitations.
        Id., 462 U.S. at 354-355, 103 S.Ct. 2392 (Powell, J., concurring).
      Louisiana law honors this important caveat in La. C.C.P. art. 596, setting forth that suspension applies only with respect to claims "arising out of the transactions or occurrences described” in the class petition. La. C.C.P. art. 596(A).

      . While the record indicates that certain documents and pleadings were appended to the plaintiffs’ memoranda filed in the district court, these documents were not offered and introduced into evidence at the hearing on the prescription exception. As we have previously ruled: "Evidence not properly and officially offered and introduced cannot be considered, even if it is physically placed in the record. Documents attached to memoranda do not constitute evidence and cannot be considered as such on appeal.” Denoux v. Vessel Management Services, Inc., 07-2143, p. 6 (La.5/21/08), 983 So.2d 84, 88.

      . While this represents a generous reading of the allegations, it is consistent with the well-settled principle that liberal rules of pleading prevail in Louisiana and that each pleading should be construed so as to do substantial justice. La. C.C.P. art. 865; Haskins v. Clary, 346 So.2d 193, 194 (La.1977).

      . Cross-jurisdictional tolling has been defined as "a rule whereby a court in one jurisdiction tolls the applicable statute of limitations based on the filing of a class action in another jurisdiction.” Primavera Familienstifung v. Askin, 130 F.Supp.2d 450, 515 (S.D.N.Y.2001), abrogated by Casey v. Merck & Co., Inc., 653 F.3d 95 (2nd Cir.2011).

      . Although the issue is res nova in this court, the plaintiffs point to the court of appeal’s decision in Smith v. Transport Services Co., 10-1238 (La.App. 4 Cir. 5/4/11), 67 So.3d 487, as persuasive authority. In Smith, the court of appeal applied the provisions of La. C.C.P. art. 596 to a putative class action filed in federal court. Id. 10-1238 at 7-8, 67 So.3d at 491-92. However, it did so as a matter of course, without any analysis. Rather than serving as persuasive authority, the decision, especially the lengthy concurrence in part, dissent in part, illustrates the problems encountered when La. C.C.P. art. 596 is applied to a class action proceeding in a foreign jurisdiction. Id., 67 So.3d at 494 (Tobias, J., concurring in part, dissenting in part).

      . As noted in Duckworth, under federal class action procedure, for example, there is no set procedure or form for requesting exclusion; rather, the court must simply send notice of class members describing "the time and manner for requesting exclusion.” Fed. Rule Civ. Proc. 23(c)(2)(B)(iv). Duckworth, 11-2835 at 18 and n. 9, 85 So.3d at 100.

      . La. C.C.P. art. 592(A)(2) provides, in pertinent part:
      If the proponent fails to file a motion for certification within the delay allowed by Subparagraph A(l), any adverse party may file a notice of the failure to move for certification. On the filing of such a notice and after hearing thereon, the demand for class relief may be stricken.
      This provision has no counterpart in Fed. Rnle Civ Pror 73

      . Subparagraph B of La. C.C.P. art. 596 was added by 2010 La. Acts 185, § 1.

      . It is no answer to this absurd and patently unfair (to defendants) result that, as plaintiffs suggest, federal courts sitting in diversity ap-PL state law on limitations and tolling, Hensgens v. Deere & Co., 869 F.2d 879, 880 (5th Cir.1989), and, thus, would be constrained to adopt the notice requirements of La. C.C.P. art- 596- Under the Erie doctrine, federal courts sitting in diversity apply state substan-Uve law and federal procedural law. Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996), citing Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). While some aspects of La. C.C.P. art. 596 are undoubtedly substantive-for example, the provisions setting forth the circumstances under which prescription is suspended-other provisions, such as those dealing with the method and conditions of providing notice, are clearly procedural. The federal rules of procedure delineate when notice must be provided to class members and the federal courts have held that federal class action certification is controlled by federal procedural rules, including the notice requirements (or lack thereof). In re: Katrina Canal Breaches Litigation, 401 Fed.Appx. at 887, citing Shady Grove Orthopedic Assocs. v. Allstate Ins. Co., 559 U.S. 393, 130 S.Ct. 1431, 1437, 176 L.Ed.2d 311 (2010).

      .Those rules instruct:
      It is presumed every word, sentence or provision in the statute was intended to serve some useful purpose, that some effect is to be given to each such provision, and that no unnecessary words or provisions were used. It is presumed the Legislature understands the effect and meaning of the words its uses in a statute. The Legislature is presumed to have enacted each statute with deliberation and with full knowledge of all existing laws on the same subject.

        Louisiana Safety Ass’n of Timbermen Self-Insurers Fund v. Louisiana Ins. Guar. Ass’n, 09-0023, pp. 9-10 (La.6/26/09), 17 So.3d 350, 356 (citations omitted).

      . While certainly not dispositive, the article's use of the word "petition” supports our conclusion in this regard. "Petition” is another term unique to Louisiana procedure. In federal court, for example, the pleading is referred to as a "complaint.” Fed. Rule Civ. Proc. 7(a)(1).

      . While defendants argue that the majority of jurisdictions to consider the issue of cross-jurisdictional tolling have rejected it, many of the cases cited for this proposition are federal court decisions that decline to extend the doctrine before the state's highest court has had the chance to rule on it. See, e.g., Clemens v. DaimlerChrysler Corp., 534 F.3d 1017, 1025 (9th Cir.2008); Wade v. Danek Med., Inc., 182 F.3d 281, 286-87 (4th Cir.1999).

      . Although not an exhaustive review, cases from some of the states that have accepted cross-jurisdictional tolling for class actions include: Stevens v. Novartis Pharmaceuticals Corp., 358 Mont. 474, 247 P.3d 244 (2010); Vaccariello v. Smith & Nephew Richards, Inc., 94 Ohio St.3d 380, 763 N.E.2d 160 (2002); Staub v. Eastman Kodak Co., 320 N.J.Super. 34, 726 A.2d 955 (N.J.Sup.Ct.App.Div.1999); Hyatt Corp. v. Occidental Fire & Cas. Ins. Co., 801 S.W.2d 382 (Mo.Ct.App.W.D.1990); Lee v. Grand Rapids Bd. of Educ., 148 Mich.App. 364, 384 N.W.2d 165 (1986).
      Cases from states rejecting cross-jurisdictional tolling include: Casey v. Merck & Co., 283 Va. 411, 722 S.E.2d 842 (2012); Ravitch v. Pricewaterhouse, 793 A.2d 939 (Pa.Super.2002); Maestas v. Sofamor Danek Group, Inc., 33 S.W.3d 805 (Tenn.2000); Portwood v. Ford Motor Co., 183 Ill.2d 459, 233 Ill.Dec. 828, 701 N.E.2d 1102 (1998); Bell v. Showa Denko K.K., 899 S.W.2d 749 (Tex.App.1995).


source: Caselaw Access Project

author: PER CURIAM. WEIMER, J., GUIDRY, J.,

license: Public Domain

text:
    In re Katherine M. GUSTE.
    No. 2012-B-1434.
    Supreme Court of Louisiana.
    Dec. 4, 2012.
    Rehearing Denied Jan. 25, 2013.

      Office of Disciplinary Counsel, Charles Bennet Plattsmier, Yolanda Cezar, for Applicant.
    Katherine M. Guste, Sehiff, Scheckman & White, Julie Brown White, for Applicant.
   h ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

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

UNDERLYING FACTS

Count I

In August 2007, respondent was retained to prepare a power of attorney for Anthony Perniciaro, a 63-year old nursing home resident who suffered from Huntington’s disease (“HD”). At the same time, Mr. Perniciaro also asked respondent to represent him in a criminal proceeding in the Kenner Mayor’s Court arising out of his involvement in a hit and run accident. Respondent performed these services and was paid a fee by Mr. Perniciaro.

Thereafter, respondent continued to provide services for Mr. Perniciaro, including assisting him in canceling the power of attorney, taking him to the bank and running other errands with him, and packing and storing his personal and household belongings in preparation for his move from one nursing home to another. Respondent and Mr. Perniciaro did not enter into a written contract for | ¡>these services, but agreed that respondent would be paid an hourly fee of $125, the same fee she charged to handle legal matters.

By February 2008, the relationship between respondent and Mr. Perniciaro had become strained, and he objected to paying her hourly fee. Respondent then agreed that she would no longer provide any legal or non-legal services for Mr. Perniciaro.

After Mr. Perniciaro filed a complaint against respondent, she prepared an accounting reflecting that she had spent approximately 220 hours providing services on his behalf. The value of these services totaled $26,987.50; however, respondent acknowledged that she had received $29,000 in payments from Mr. Perniciaro.

The ODC alleged that respondent’s conduct in the Perniciaro matter violated Rules 1.5(a)(charging an unreasonable fee), 1.8(a) (a lawyer shall not enter into a business transaction with a client), 1.14 (client with diminished capacity), 8.4(a)(violation of the Rules of Professional Conduct), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation) of the Rules of Professional Conduct.

Respondent denied any misconduct relating to her representation of Mr. Pernici-aro. Respondent testified that she was initially retained to prepare a power of attorney for Mr. Perniciaro in favor of the administrator of the nursing home where he lived. When respondent met Mr. Per-niciaro, she was told he had HD but that it was in the beginning stages. According to respondent, Mr. Perniciaro slurred his words a bit when he spoke and he occasionally tripped over things, but she said his cognitive functions were intact and “he understood everything that was going on.”

|3In the course of preparing the power of attorney, respondent met with Mr. Pernici-aro several times and reviewed several boxes of his financial documents. Once the power of attorney was executed, Mr. Perniciaro asked respondent to take copies of it to all of the banks where he maintained accounts. Respondent told Mr. Perniciaro that he did not need her to do that, but he insisted, so she agreed. Respondent was paid a fee of $1,500 for her services related to the power of attorney. Mr. Perniciaro then asked respondent to handle the criminal charges against him arising out of the hit and run accident. Respondent was successful in having the charges dismissed. Mr. Perniciaro paid respondent $3,000 to handle the criminal matter.

Mr. Perniciaro subsequently began having problems with the staff at the nursing home, and came to believe that the nursing home administrator was using his power of attorney to steal his money. At Mr. Per-niciaro’s request, respondent canceled the power of attorney, and she was able to make arrangements to have Mr. Perniciaro transferred to another nursing home. Mr. Perniciaro then requested that respondent help him with other personal matters, like shopping and packing up his personal belongings to be moved into storage or to the new nursing home. Respondent testified that she told Mr. Perniciaro her hourly fee was $125 and that he could find somebody else to do personal things for him, but he told her that he had money and was not concerned about her fee. Respondent denied that Mr. Perniciaro was not “in his right mind” when he made this decision, stating that “he knew exactly what he was doing.” Respondent also believed that Mr. Perniciaro trusted her, and so she felt she just “couldn’t tell him no.”

14At the conclusion of her relationship with Mr. Perniciaro, respondent prepared an accounting covering the power of attorney, the criminal matter, and the other services he requested she perform. Respondent completed this accounting by referring to entries in her desk calendar. The July 8, 2008 accounting reflected that Mr. Perniciaro paid respondent a total of $29,000 and that she performed 215.9 hours of services (both legal and non-legal) at $125 per hour, for a total of $26,987.50. Respondent testified that the accounting did not include 4.98 hours of telephone calls from Mr. Perniciaro that were documented in records from her cellular telephone provider. Nevertheless, respondent admitted that she was overpaid by Mr. Perniciaro and that she “probably” owes him a refund.

Count II

In February 2008, Craig Conners retained respondent to handle his divorce and ancillary matters. Respondent was paid a total of $3,500 for representing Mr. Conners, of which $500 was intended for court costs. Respondent did not deposit any portion of these funds into her client trust account.

By April 2009, Mr. Conners had become frustrated with respondent’s lack of communication regarding his legal matters. He therefore sent respondent a letter terminating her representation and requesting a detailed accounting of the services she had performed on his behalf. In June 2009, Mr. Conners sent respondent another letter reiterating his request for an accounting and also requesting that his file be sent to his new attorney.

In July 2009, when respondent still had not complied with Mr. Conners’ requests, he filed a complaint against her with the ODC. In her August 2009 reply to the complaint, respondent indicated that she had prepared pleadings and performed other legal services for Mr. Conners. Respondent also stated that she would forward copies of Mr. Conners’ entire file as well as a complete accounting; 15h owe ver, she did not do so until May 2011, when the hearing was held on the formal charges.

The ODC alleged that respondent’s conduct in the Conners matter violated Rules 1.4 (failure to communicate with a client), 1.5(f)(payment of fees in advance of services), 1.15 (safekeeping property of clients or third persons), 1.16 (obligations upon termination of the representation), and 8.4(a) of the Rules of Professional Conduct.

In the Conners matter, respondent conceded that she was at fault for not immediately withdrawing from Mr. Conners’ case when he terminated her representation, and that she had delayed in returning his file. However, respondent denied any other misconduct.

DISCIPLINARY PROCEEDINGS

In July 2010, the ODC filed two counts of formal charges against respondent. Respondent answered the formal charges and denied any misconduct. 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 made the following factual findings:

In Count I, the committee found that when respondent began representing Mr. Perniciaro in August 2007, he had been diagnosed with HD and lived in a nursing home. Respondent testified that Mr. Per-niciaro was very paranoid. By IfiNovember 2007, he had difficulty with speech and walking and could not buckle a seat belt. At one point, he was hysterical about getting out of the nursing home.

Respondent represented Mr. Perniciaro from August 2007 until mid-February 2008. She did not have a written contract with Mr. Perniciaro and did not provide billing statements to him. No contemporaneous record keeping of hours expended was done; rather, only after the ODC’s inquiry did respondent attempt to “reconstruct” the number of hours she may have expended by reviewing her desk calendar. Respondent was paid approximately $30,000 by Mr. Perniciaro and admits that she was overpaid. None of these funds were deposited into respondent’s client trust account.

Respondent represented Mr. Perniciaro related to a traffic accident and drafted a power of attorney for him. Respondent produced only her notes to support her fee, but no evidence such as a court docket sheet. She also produced a copy of a power of attorney but admitted that it was not the actual document signed by Mr. Perniciaro. Respondent was paid approximately $4,500 for those services.

Respondent’s additional “representation” of Mr. Perniciaro consisted, according to her own testimony, of chauffeuring services and other assistance as detailed in her billing statement. Respondent was aware that she was billing at a rate of $125 per hour for non-legal services. In February 2008, Mr. Perniciaro objected to respondent’s billing rate.

Based on these factual findings, the committee concluded that respondent violated Rules 1.5(a), 1.14, 8.4(a), and 8.4(c) in the Pernieiaro matter. The committee also found a violation of Rule 1.15, which was not charged in the formal charges. The committee did not find clear and convincing evidence that respondent entered into an improper business transaction with her client, in violation of Rule 1.8(a).

17In Count II, the committee found that respondent represented Mr. Conners in a divorce proceeding from February 2008 to mid-April 2009. Mr. Conners had difficulty communicating with respondent, and eventually told her he no longer wanted her to represent him. He also asked her to send his file to his new attorney. Respondent admitted that she failed to withdraw from the case and failed to return Mr. Conners’ file for more than two years, despite repeated requests. She also did not provide the file to the ODC, although she had promised to do so. Respondent finally provided the file to Mr. Conners at the May 4, 2011 formal charge hearing, along with her accounting.

The accounting was not prepared contemporaneously with the services rendered to Mr. Conners, but rather was prepared in March 2011, shortly before the formal charge hearing. Respondent did not explain why the statement did not include $500 of the $3,500 she was paid, purportedly for court costs. Only $321 was referenced on the statement for filing fees. Respondent asserted a claim for additional fees for conversations with Mr. Conners that were not listed on the statement. Further, she admitted that she placed all of the funds she received from Mr. Con-ners into her operating account, rather than her trust account.

Based on these factual findings, the committee concluded that respondent violated Rules 1.4, 1.5(f), 1.15, 1.16, and 8.4(a) in the Conners matter.

Turning to the issue of an appropriate sanction, the committee determined that respondent knowingly violated duties owed to her clients, the public, the legal system, and the profession. Her conduct caused actual harm to Mr. Pernieiaro and to Mr. Conners. The committee determined that the applicable baseline sanction is disbarment based on the ABA’s Standards for Imposing Lawyer Sanctions.

lain aggravation, the committee found only that respondent has a prior disciplinary record. In mitigation, the committee noted respondent’s claim of a heavy case load in connection with her employment at the Jefferson Parish Public Defender’s Office.

After further considering this court’s prior jurisprudence involving similar misconduct, the committee recommended respondent be disbarred. The committee further recommended that respondent be ordered to provide a full accounting to each of the complainants and that she refund all unearned fees as determined by an agreement between respondent and the ODC, or if they are unable to reach an agreement, as determined by an arbitrator or other neutral party.

Respondent filed an objection to the hearing committee’s report and recommendation, asserting that the committee erred in its finding of certain rule violations and that the sanction of disbarment is too harsh.

Disciplinary Board Recommendation

After review, the disciplinary board determined that the hearing committee’s factual findings are not manifestly erroneous, except the board disagreed with the committee that the ODC proved Mr. Pernicia-ro was a client “of diminished capacity.” The committee apparently based its conclusion upon the fact that Mr. Perniciaro had been diagnosed with HD. However, the ODC did not introduce any medical records, depositions of Mr. Perniciaro’s treating physicians, or expert testimony substantiating that Mr. Perniciaro was, indeed, of diminished capacity at the pertinent time. According to the general information in the record about HD, it is a progressive disease which may affect a patient’s judgment and other cognitive 13functions, depending upon the stage to which the disease has progressed as well as a multitude of other factors. However, without a report or testimony from Mr. Perniciaro’s treating physicians, the ODC failed to establish the extent to which Mr. Perniciaro’s mental capacity was actually affected by HD at the time he was represented by respondent. The board declined to assume that Mr. Perniciaro was of diminished capacity simply because he had been diagnosed with HD.

The board made the following findings concerned the alleged violations by respondent of the Rules of Professional Conduct:

In Count I, the board found respondent violated Rule 1.5(a), which requires that a lawyer’s fee be reasonable. Respondent billed Mr. Perniciaro for 215.9 hours of work at a rate of $125 per hour. However, respondent worked on legal matters for Mr. Perniciaro (the hit and run accident and the power of attorney) for only eight hours; the remaining hours were spent providing non-legal services. Respondent also committed a dishonest act in violation of Rules 8.4(a) and 8.4(c) by charging her legal hourly rate for six months of menial non-legal services. The board found respondent did not violate Rules 1.8(a), 1.14, or 1.15 in the Perniciaro matter.

In Count II, the board found respondent violated Rule 1.4 by failing to reasonably communicate with her client. While the two parties have different opinions concerning the level of communication that took place between them, the committee found Mr. Conners’ version of the story to be more credible and concluded that respondent violated Rule 1.4. The board agreed, noting that respondent was retained in the matter in February 2008, but Mr. Conners had to hire another lawyer to finalize his divorce and did not receive his file or even a billing statement until March 2011.

hnThe board found respondent violated Rule 1.5(f), which requires a lawyer to promptly refund the unearned portion of an advance fee when a fee dispute arises with the client. Mr. Conners initially paid respondent $2,500 in February 2008 to handle his divorce. On January 9, 2009, he gave her an additional check for $1,000. Unhappy with respondent’s services, Mr. Conners terminated her representation in April 2009. Respondent had not completed the divorce proceedings by this time, and therefore she owes Mr. Conners some portion of the $3,500 fee he paid. Accordingly, the board agreed that respondent violated Rule 1.5(f).

The board found respondent violated Rule 1.15(e), which requires a lawyer to maintain disputed fees in a trust account until such time as the dispute is resolved. Here, Mr. Conners disputed respondent’s fee in writing on multiple occasions, but respondent failed to hold these funds in trust pending a resolution of the matter.

The board found respondent violated Rule 1.16 by failing to withdraw as counsel of record after Mr. Conners requested that she do so. She also failed to refund the unearned portion of the fee she was paid, and failed to return Mr. Conners’ file to him until the day of the hearing.

The board determined respondent violated duties owed to her clients, the legal system, and the profession, causing actual financial harm to both Mr. Perniciaro and Mr. Conners. By its very nature, respondent’s conduct was knowing and intentional. Considering the ABA’s Standards for Imposing Lawyer Sanctions, the board determined the baseline sanction is suspension.

In aggravation, the board found the following factors: prior disciplinary offenses, a dishonest or selfish motive, refusal to acknowledge the wrongful nature of the conduct, vulnerability of the victim, substantial experience in the practice of | ulaw (admitted 1995), and indifference to making restitution. The board found no mitigating factors are present.

Turning to the issue of an appropriate sanction, the board noted that a wide range of sanctions may be imposed for charging an excessive fee, with the case law supporting a public reprimand to disbarment. However, the board felt a suspension was the most appropriate sanction here. Respondent overcharged Mr. Perni-ciaro for both legal and non-legal work performed, and she failed to refund unearned fees to Mr. Conners, among other misconduct. Given these circumstances, and considering the lack of mitigating factors, the board concluded that a two-year suspension is warranted.

Based on this reasoning, the board recommended that respondent be suspended from the practice of law for two years. The board further recommended that respondent be ordered to make restitution to the heirs of Mr. Perniciaro and refund unearned fees to Mr. Conners.

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

DISCUSSION

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

112After reviewing the record, we find it is clear that in the Conners matter, respondent failed to communicate with her client, failed to withdraw from the representation when she was discharged, failed to provide an accounting or refund the unearned portion of the fee she was paid, and failed to return the client’s file in a timely fashion. Therefore, we accept the board’s conclusion that respondent’s conduct with regard to this count violates Rules 1.4, 1.5(f), 1.15(e) and 1.16 of the Rules of Professional Conduct.

The more difficult question presented is the nature of respondent’s actions in the Perniciaro matter. It is undisputed that respondent was initially retained in August 2007 to handle two legal matters for Mr. Perniciaro, namely the preparation of a power of attorney and representing him in a criminal case in the Kenner Mayor’s Court. However, the nature of respondent’s actions beyond these two matters, which account for the bulk of the fees respondent charged to Mr. Perniciaro, is in dispute. Respondent characterizes these other actions as purely personal services which cannot be regulated under the Rules of Professional Conduct. In contrast, the ODC asks us to find these services were in the nature of legal services as shown by the fact that respondent billed Mr. Pernici-aro for these services at her usual legal rate of $125 per hour.

At the outset, we accept the factual findings of the board that the ODC failed to establish Mr. Perniciaro was a client of diminished capacity during the time frame in question. We further accept the finding that respondent did not enter into any prohibited business transactions with Mr. Perniciaro. Against this backdrop, the issue presented to us is whether an attorney and client may enter into an agreement whereby the attorney provides both legal and non-legal services for a specified fee.

This issue is res novo in Louisiana. However, we draw some guidance from Cincinnati Bar Ass’n v. Alsfelder, 103 Ohio St.3d 375, 816 N.E.2d 218 (2004). In Alsfelder, the 11sattorney was retained by a client in connection with litigation involving a trust. The client often contacted the lawyer three, four, or more times a day, usually during business hours, but sometimes at night. The client’s communications, however, did not always require legal advice. Instead, the lawyer and his client regularly discussed her personal concerns, frequently also meeting in person, sometimes for lunch or dinner, for these conversations. The attorney charged his client for these discussions, explaining to her that he had only an “attorney’s time” to give. In finding the attorney charged an excessive fee, the Supreme Court of Ohio stated:

We agree that an attorney may not serve in “a self-appointed role as a para-clete, comforter, helper, or hand holder, under the guise of legal services and at a lawyer’s compensation rate.” Stanley v. Bd. of Professional Responsibility (Tenn.1982), 640 S.W.2d 210, 213.
* * *
The decision to advise a client concerning nonlegal issues and accept compensation for that advice is not a bright-line test, but the propriety of this conduct may be assessed by applying the standard of a reasonable attorney in the same situation. John M. Burman, Advising Clients About Non-Legal Factors (Feb. 2004), 27 Wyoming Lawyer 40. Unquestionably, respondent did not act as a reasonable probate and business lawyer in basically befriending his unsophisticated client and charging for his “attorney’s time” to do it. He admits in hindsight that he should have terminated their retainer agreement for his client’s welfare.

The crux of the Alsfelder holding is that there is a clear danger of overreaching when an attorney blurs the line between legal and non-legal services. We find the facts of the instant case readily illustrate that danger. Respondent herself testified that during her six-month relationship with Mr. Perniciaro, he frequently told her that he “wanted an attorney” on a full-time basis and that because of her legal training, he trusted her to handle his affairs. It is clearly apparent from a reading of the record that Mr. Perniciaro came to rely upon 114respondent because of her position as a lawyer and that this confidence did not dissipate simply because she had concluded a court case. Thus, respondent’s ability to charge her legal rate of $125 for services which were nominally personal stemmed from Mr. Perniciaro’s implicit trust of her as a lawyer.

Under such circumstances, it is impossible to draw any line of demarcation between respondent’s legal services and personal services. Rather, we must treat all fees charged by respondent to Mr. Per-niciaro as legal fees.

Having found that respondent was acting as Mr. Perniciaro’s attorney when she performed services for him from August 2007 to February 2008, we must now address the issue of whether the fee respondent collected was excessive. As previously stated, Mr. Perniciaro paid respondent a total of $29,000, and according to her accounting, she performed 215.9 hours of services (both legal and non-legal) for him at $125 per hour, for a total of $26,987.50. However, respondent could not ethically charge her client for her time as a lawyer when she was providing nonlegal services. Therefore, her fee is excessive.

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

Respondent knowingly violated duties owed to her clients, causing actual harm. The baseline sanction for this type of misconduct is suspension. The record supports the aggravating factors found by the board, and no mitigating factors are present.

Under these circumstances, we will adopt the board’s recommendation and suspend respondent from the practice of law for two years. We further order respondent to make restitution to the heirs of Mr. Perniciaro and to refund the unearned portion of fee paid by Mr. Conners, or 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, briefs, and oral argument, it is ordered that Katherine M. Guste, Louisiana Bar Roll number 23486, be and she hereby is suspended from the practice of law for two years. It is further ordered that respondent shall make restitution to the heirs of Anthony Perniciaro and shall refund the unearned portion of the legal fee paid by Craig Conners, or submit the matters to the Louisiana State Bar Association’s Fee Dispute Resolution Program. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

WEIMER, Justice, concurs in part and dissents in part and assigns reasons.

GUIDRY, Justice, dissents and assigns reasons.

WEIMER, J.,

concurring in part and dissenting in part.

^Because this matter represents a res novo issue and there is insufficient evidence to establish Mr. Perniciaro was incapacitated, I believe a less harsh sanction would adequately serve the interests of the disciplinary system.

GUIDRY, J.,

dissents.

hi believe that suspension from the practice of law for two years is excessive under the facts of this case.

      . HD is a genetic brain disorder that results in the progressive loss of both cognitive functions and physical control.

      . Mr. Perniciaro died before the hearing on the formal charges.

      . According to respondent, Mr. Perniciaro was estranged from his family, and he relied on her to do things that did not necessarily involve the rendition of legal services.

      . Mr. Perniciaro was apparently quite paranoid, but it is not clear this was necessarily related to his HD.

      . Respondent’s accounting reflects that she billed Mr. Conners $125 per hour for the 32.5 hours she spent working on his legal matters, for a total of $4,062.50. Respondent testified at the formal charge hearing that she prepared this accounting in March 2011 by referring to entries in her appointment book. She also indicated that her actual time in the matter was probably more than what she included in the accounting, but stated that she used the numbers she did “because that’s what I had documented.”

      . In In re: Guste, 06-0917 (La.5/26/06), 929 So.2d 1233, this court accepted a petition for consent discipline and imposed a fully deferred six-month suspension with probation for respondent's failure to communicate with her clients, failure to make reasonable efforts to expedite litigation, and failure to promptly refund unearned fees.

      . The board also noted in this regard respondent’s testimony that Mr. Perniciaro was mentally sharp and knew exactly what he was doing in his dealings with her.

      . The board rejected the mitigating factor of "job stress” found by the committee, noting that the ABA Standards do not recognize any such mitigating circumstance.

      . We do not mean to suggest that a lawyer may never enter into an arrangement to provide purely personal services to a current or former client. For example, a lawyer who is an accomplished artist might enter into an agreement with a client to paint a portrait for the client. However, in such instances, the parties must clearly set forth the nature of the arrangement in writing and make it clear the lawyer is providing the agreed-upon service in a purely personal capacity and not as a lawyer. The lawyer should maintain appropriate records and ensure that there is no overlap between the amount charged for personal services and for the lawyer's legal services. Obviously, none of these precautions were observed in the instant case.

      . The record contains a copy of a promissory note in the amount of $11,000 executed by respondent in favor of Mr. Perniciaro. Although respondent disputes the legal validity of this promissory note, she admits she executed it after Mr. Perniciaro objected to her billing rate. Under these circumstances, we find the promissory note represents an implicit acknowledgment by respondent that she owed Mr. Perniciaro a refund of a portion of the fees she charged. While we express no opinion regarding the enforceability of this promissory note, this evidence reinforces our conclusion that respondent charged an excessive fee.