text:
    In re Darien D. LESTER.
    No. 2009-B-2052.
    Supreme Court of Louisiana.
    Jan. 29, 2010.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

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

UNDERLYING FACTS AND PROCEDURAL HISTORY

The ODC filed three sets of formal charges against respondent. The first set of formal charges, 02-DB-101, was filed in September 2002. The second set of formal charges, 06-DB-039, was filed in July 2006. Respondent answered both sets of formal charges, admitting some misconduct while denying other misconduct. The two matters were consolidated by order of the hearing committee chair before proceeding to a formal hearing on the merits conducted by the hearing committee on June 25, 2008.

The third set of formal charges, 08-DB-054, was filed in June 2008. Respondent failed to answer the formal charges. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal hearing was held, but the parties were given an opportunity to file with the hearing committee 12written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the hearing committee’s consideration.

Thereafter, the three sets of formal charges were consolidated by order of the disciplinary board. The board subsequently filed in this court a single recommendation of discipline encompassing all three sets of formal charges.

02-DB-101

Count I — The Petterway Matter

Respondent’s personal injury client, Fel-ton Petterway, received medical treatment from Chiro-Plus. When Mr. Petterway’s case settled in June 1998, respondent sent Chiro-Plus a $2,165 check drawn on his operating account to pay Mr. Petterway’s medical expenses. However, the check was dishonored due to insufficient funds in the account. Thereafter, respondent sent Chiro-Plus $650. In the latter part of 1999, when respondent failed to pay the balance, Chiro-Plus referred the check to the Caddo Parish District Attorney’s Office. Between February 2000 and May 2001, respondent made sporadic monthly payments to Chiro-Plus totaling $2,165.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.15(a) (safekeeping property of clients or third persons) and 1.15(b) (failure to timely remit funds to a client or third person).

Count II — The Birmingham Matter

Respondent’s personal injury client, William Birmingham, also received medical treatment from Chiro-Plus. When Mr. Birmingham’s case settled in July |¾1998, respondent deducted $1,116 from the settlement to pay the expenses owed to Chi-ro-Plus. However, respondent failed to promptly forward the funds to Chiro-Plus. While the funds were in respondent’s client trust account, the balance of the account fell below zero. In the latter part of 1999, respondent finally sent Chiro-Plus the funds.

The ODC alleged that respondent’s conduct violated Rule 1.15(b) of the Rules of Professional Conduct.

Count III — The Autrey Matter

Respondent was retained to handle Fle-nard Autrey, Jr.’s criminal appeal in the Louisiana Court of Appeal, Second Circuit. Respondent failed to meet briefing deadlines imposed by the court of appeal and failed to comply with its direct orders to file appropriate briefs and assignment of errors. Accordingly, on May 8, 1998, the court of appeal found respondent guilty of contempt of court and ordered him to pay a $100 fine, plus $5 in court costs.

Thereafter, respondent filed improper motions to reconsider, which the court of appeal specifically instructed him not to file. Accordingly, on November 9, 1998, the court of appeal again found respondent guilty of contempt of court and ordered him to pay a $350 fine, plus court costs. The court of appeal also sentenced him to serve six months in jail, which sentence was suspended for one year subject to respondent’s compliance with special conditions.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.1 (failure to provide competent representation to a client), 1.3 (failure to act with reasonable diligence and | promptness in representing a client), and 8.4(d) (engaging in conduct prejudicial to the administration of justice).

06-DB-039

Count I — The Bratton Matter

In 1998, respondent represented Alvin Bratton in a criminal matter. After Mr. Bratton was convicted, respondent agreed to represent him in the appeal and post-conviction relief process. Thereafter, respondent failed to adequately communicate with Mr. Bratton. As such, Mr. Bratton requested the return of his file. However, respondent failed to return the file.

In June 2003, Mr. Bratton filed a disciplinary complaint against respondent. Respondent failed to timely respond to the complaint.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.4 (failure to communicate with a client), 1.16 (obligations upon termination of the representation), and 8.1(c) (failure to cooperate with the ODC in its investigation).

Count II — The Thompson Matter

Several of respondent’s personal injury clients were treated by Dr. John Thompson. In June 2001, respondent forwarded Dr. Thompson a $2,200 check from his trust account to pay a client’s bill. However, the check was dishonored due to insufficient funds in the account. Dr. Thompson turned the check over to the District Attorney’s Office. In November 2002, respondent forwarded a $2,200 payment to the District Attorney’s Office to reimburse Dr. Thompson.

| sin the meantime, Dr. Thompson’s office contacted several of respondent’s clients and learned that them cases had settled. Nonetheless, respondent did not forward medical bill payments to Dr. Thompson. He informed Dr. Thompson that he had instead converted the funds to his own use. In December 2001, after repeated demands from Dr. Thompson, respondent tendered a $10,000 cashier’s check as a lump sum payment for his clients’ bills. However, he failed to remit the balance of $6,255.

In September 2003, Dr. Thompson filed a disciplinary complaint against respondent. Respondent failed to timely respond to the complaint.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.15 (safekeeping property of clients or third persons), 8.1(c), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation).

Count III — The Allen Matter

In August 1999, Audrey Allen hired respondent to represent her in an employment discrimination claim and paid respondent’s $500 retainer fee. Thereafter, respondent failed to communicate with Ms. Allen, including failing to timely notify her of his office address change. Ms. Allen made numerous appointments to meet with respondent; however, respondent either canceled the appointments or simply failed to show up for them.

In September 2003, Ms. Allen filed a disciplinary complaint against respondent. Respondent failed to timely respond to the complaint.

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

Count TV — The Chapman Matter

Patrick Chapman hired respondent to represent him in a police brutality claim. Respondent neglected the case, causing it to be dismissed. Thereafter, respondent attempted to settle the resulting malpractice claim by agreeing to pay Mr. Chapman $1,000. However, respondent failed to inform Mr. Chapman to seek independent counsel to advise him about the malpractice claim.

In November 2003, Mr. Chapman filed a disciplinary complaint against i'espondent. Respondent failed to timely respond to the complaint.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.8(h) (a lawyer shall not settle a malpractice claim with an unrepresented client unless the client is advised in writing to seek the advice of independent legal counsel), and 8.1(c).

Count V — The Lane Matter

In July 2005, Kimberly Lane hired respondent to represent her in a child custody matter. Respondent was to defend Ms. Lane against a rule for contempt. She also requested representation with respect to visitation and child support.

Ms. Lane provided respondent with documents that would aid her defense. She also informed respondent that her private investigator had information to help her case. Nonetheless, respondent did not contact the investigator and did not use any of the documents or information at the hearing. Instead, respondent pressured Ms. Lane to accept a settlement increasing visitation for the opposing party and reducing the 17amount of child support she received from the opposing party. Respondent advised her that the judge was “in a bad mood” and would put her in jail if she tried to present evidence in her defense or did not agree to the settlement. However, Ms. Lane contended that the judge’s secretary later told her this was not true.

In October 2005, Ms. Lane filed a disciplinary complaint against respondent. Respondent failed to respond to the complaint.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.2(a) (scope of the representation), 1.3, 1.4, 8.1(c), 8.4(c).

Hearing Committee Report

As previously noted, the formal charges in 02-DB-101 and 06-DB-039 were consolidated for a formal hearing on the merits. After considering the testimony and evidence presented at the hearing, the hearing committee made the following findings:

The Petterway Matter-Respondent admitted the factual allegations and alleged rule violations.

The Birmingham Matter — Respondent admitted the factual allegations, and the committee further found that respondent never paid Chiro-Plus for the services rendered to Mr. Birmingham. The committee determined that respondent violated Rule 1.15(b) of the Rules of Professional Conduct.

The Aiitrey Matter — Respondent admitted the factual allegations and admitted that he violated Rule 1.3. Additionally, the committee found that respondent violated Rules 1.1 and 8.4(d).

| ¿The Bratton Matter — Respondent failed to keep Mr. Bratton informed of the status of his case and failed to include him in the decision-making concerning his post-conviction relief. Respondent also failed to surrender Mr. Bratton’s file. Finally, respondent failed to cooperate with the ODC’s investigation. Based on these facts, the committee found that respondent violated Rules 1.4,1.16, and 8.1(c).

The Thompson Matter- — Several of respondent’s clients utilized Dr. Thompson’s chiropractic services. Respondent failed to remit to Dr. Thompson the money he retained from settlement funds when he settled several personal injury matters. Respondent also attempted to pay one account with a check that was dishonored by his bank. Respondent used the funds to maintain his office while he was recovering from surgery. He still owes Dr. Thompson $6,255. Respondent admitted that he violated Rules 1.15 and 8.1(c). Additionally, the committee found that respondent violated Rule 8.4(c) by engaging in dishonest conduct.

The Allen Matter — Respondent admitted the factual allegations and alleged rule violations.

The Chapman Matter — Respondent admitted the factual allegations and alleged rule violations.

The Lane Matter — Respondent had an obligation to attempt to present a defense to the rule for contempt as that was what Ms. Lane hired him to do, but he failed to do so. Respondent also failed to contact the investigator and failed to meet with Ms. Lane prior to the contempt hearing in order to prepare her for her testimony. Based on these facts, the committee found that respondent violated Rules 1.2(a) and 1.3. Respondent also admitted that he violated Rule 8.1(c). However, the committee found there was insufficient evidence of a violation of Rules 1.4 and 8.4(c).

|flThe committee determined that respondent violated duties owed to his clients, the public, the legal system, and the legal profession. He acted knowingly and negligently. He caused actual harm in an amount less than $15,000. He also harmed the judicial system and caused potential harm to his clients. After reviewing the ABA’s Standards for Imposing Larvyer Sanctions, the committee determined that the baseline sanction is disbarment.

In aggravation, the committee found a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, vulnerability of the victims, and indifference to making restitution. In mitigation, the committee found the absence of a prior disciplinary record, the absence of a dishonest or selfish motive, inexperience in the practice of law (admitted 1997), delay in the disciplinary proceedings, and remorse.

Under these circumstances, and considering the applicable case law, the committee recommended that respondent be suspended from the practice of law for three years, with all but one year deferred, followed by two years of supervised probation with conditions.

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

08-DB-054

Count I — The Davis Matter

Gloria Davis filed a complaint against respondent with the ODC. Despite receiving notice of the complaint by certified mail, respondent failed to provide a response.

ImThe ODC alleged that respondent’s conduct violated Rule 8.1(c) of the Rules of Professional Conduct.

Count II — The Unauthorized Practice of Law Matter

On October 31, 2005, respondent was declared ineligible to practice law for failure to pay his bar dues and the disciplinary assessment. Despite receiving written notice regarding his ineligibility, on February 15, 2006, respondent appeared in district court to represent a client in a civil matter. The trial judge confronted respondent about his ineligibility, and respondent admitted to the opposing counsel that he received notice of his ineligibility prior to February 15, 2006. On February 17, 2006, respondent was returned to eligible status.

In October 2006, the opposing counsel filed a disciplinary complaint against respondent. Respondent failed to respond to the complaint.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 5.5(a) (engaging in the unauthorized practice of law) and 8.1(c).

Count III — The Holmes Matter

Peoples State Bank (“PSB”) brought a foreclosure action against respondent’s client, Patricia Holmes. In response, respondent filed two successive and frivolous lawsuits against PSB under the state and federal Equal Credit Opportunity Act.

In the state court action, the trial court concluded after a trial on the merits that there was “not a scintilla of evidence” to support Ms. Holmes’ claim that she had _Jjjbeen unfairly denied credit. Rather, the court noted that Ms. Holmes “got the money even though there was testimony from the bank president that based on the amount of money she made and based on her assets, she probably should not have received the money.” The court concluded that Ms. Holmes’ claim was “in essence ... that the bank was negligent for loaning her too much money too fast.”

On December 1, 2000, the judge sanctioned respondent and found him in constructive contempt for failing and/or refusing to permanently remove a notice of lis pendens from Ms. Holmes’ foreclosed property after being ordered to do so. He was sentenced to serve ninety days in jail, which sentence was suspended, and placed on one year of unsupervised probation. He was also ordered to pay costs and attorney’s fees totaling approximately $9,000, which he has never paid.

After the state court suit was dismissed, respondent filed the same claim against PSB on Ms. Holmes’ behalf in the United States District Court for the Western District of Louisiana. PSB filed a motion for summary judgment, which the judge granted. Accordingly, the federal lawsuit was dismissed on December 7, 2000. On February 23, 2001, the judge found that the lawsuit “was presented for an improper purpose, namely to harass the defendants, to cause unnecessary delay and ultimately, to increase the cost of this litigation.” Consequently, the judge sanctioned respondent pursuant to PSB’s unopposed motion for sanctions.

In September 2006, the attorney for PSB filed a disciplinary complaint against respondent. Respondent failed to respond to the complaint, necessitating the issuance of a subpoena to obtain his sworn statement.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 3.1 (meritorious claims and contentions), 11⅞3.3 (candor toward the tribunal), 4.4 (respect for rights of third persons), 8.1(c), and 8.4(d).

Count IV — The Hayes Matter

In November 2005, James Hayes, Jr. hired respondent to handle his divorce. Mr. Hayes paid respondent’s $550 fee plus $100 for court costs. Respondent did not appear in court on Mr. Hayes’ behalf on April 27, 2006 due to a scheduling conflict. Instead, he had another attorney stand in for him, and the matter was continued to June 29, 2006. However, the matter was continued yet again because respondent failed to subpoena a necessary witness. Thereafter, respondent failed to communicate with Mr. Hayes. According to respondent, Mr. Hayes then discharged him. Nevertheless, respondent did not refund the unearned portion of the fee or make any attempt to resolve the fee dispute, claiming instead that he earned the entire fee.

In November 2006, Mr. Hayes filed a disciplinary complaint against respondent. Respondent failed to respond to the complaint, necessitating the issuance of a subpoena to obtain his sworn statement.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.5(f)(5) (failure to refund an unearned fee), and 8.1(c).

Count V — The Devers Matter

In March 2007, Sandra Devers hired respondent to handle a child support and community property settlement matter. Ms. Devers paid respondent $300 toward his $1,000 fee. Thereafter, Ms. Devers had trouble contacting respondent via telephone. On several occasions she went to his office, but the office was always closed. | ^Respondent did not file any pleadings on Ms. Devers’ behalf. On May 16, 2007, Ms. Devers sent respondent a letter, discharging him and requesting a refund of the $300. Respondent did not respond to Ms. Devers’ request for a refund.

In June 2007, Ms. Devers filed a disciplinary complaint against respondent. Respondent failed to respond to the complaint, necessitating the issuance of a subpoena to obtain his sworn statement. Respondent failed to appear for the sworn statement. Instead, he faxed a written response to Ms. Devers’ complaint, wherein he indicated that he should return $200 to Ms. Devers.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3,1.4,1.5(f)(5), and 8.1(c).

Heating Committee Report

As previously noted, respondent failed to file an answer to the formal charges in 08-DB-054, and consequently, the factual allegations contained therein were deemed admitted. After considering the ODC’s deemed admitted submission, the hearing committee determined that respondent violated the Rules of Professional Conduct as charged in the formal charges. The committee found that the following aggravating factors are present: a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, substantial experience in the practice of law (admitted 1997), and indifference to making restitution. The sole mitigating factor found by the committee was the absence of a prior disciplinary record.

|l4In light of this court’s prior jurisprudence involving similar misconduct and the aggravating factors present, the committee recommended that respondent be suspended from the practice of law for three years.

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

Disciplinary Board Recommendation

02-DB-101 & 06-DB-0S9 & 08-DB-05U

After reviewing these consolidated matters, the disciplinary board determined that the hearing committee’s factual findings in 02-DB-101 and 06-DB-039 are not manifestly erroneous, except the finding that respondent did not pay Mr. Birmingham’s bill with Chiro-Plus. The board noted that an employee of Chiro-Plus testified that Chiro-Plus did receive full payment from respondent for the balance of Mr. Birmingham’s account. The board further determined that the committee’s factual findings in 08-DB-054, which is a deemed admitted matter, are supported by the factual allegations in the formal charges and/or by the evidence submitted in support of the allegations. The board also determined that respondent violated the Rules of Professional Conduct as charged in the formal charges, with the exception of Rules 1.4 and 8.4(c) in the Lane matter and Rule 3.3 in the Holmes matter.

The board determined that respondent acted negligently in some matters, which was attributable to his inexperience in the practice of law, while he acted knowingly, if not intentionally, in other matters. He violated duties owed to his clients, the legal system, and the legal profession. He has also caused significant actual harm to his clients, the legal system, opposing parties in litigation, and third-party medical 11fiproviders. Citing the ABA’s Standards for Imposing Laivyer Sanctions, the board determined that disbarment is the baseline sanction.

Aggravating factors found by the board are as follows: a dishonest or selfish motive, a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceedings by intentionally failing to comply with the rules or orders of the disciplinary agency, vulnerability of the victims, and indifference to making restitution. The board found the following mitigating factors present: absence of a prior disciplinary record, inexperience in the practice of law (only in the Petterway, Birmingham, Autrey, Bratton, Allen, and Holmes matters), and remorse (only in 02-DB-101 and 06-DB-039).

Noting that “the vexatious litigation [in the Holmes matter] would subject Respondent to at least an active period of suspension,” the board found that, when this “intentional contemptuous” conduct is considered with respondent’s other misconduct, disbarment is appropriate. Accordingly, the board recommended that respondent be disbarred. The board also recommended that respondent be ordered to pay any remaining restitution to his victims and pay the sanctions imposed by the courts referenced above.

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 11Bindependent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Quaid, 94-1316 (La.11/30/94), 646 So.2d 343; Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444 (La.1992). While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee’s factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

In this consolidated matter, the hearing committees’ factual findings, as modified by the disciplinary board, are supported by the testimony, evidence, and deemed admitted facts presented in this record. The facts and evidence indicate that respondent failed to provide competent representation to a client, neglected legal matters, failed to communicate with clients, failed to refund unearned fees, failed to return a client’s file, issued checks on accounts containing insufficient funds, failed to timely pay third-party medical providers, converted client and third-party funds to his own use, practiced law while ineligible to do so, attempted to settle a malpractice claim without advising his client to seek independent counsel, engaged in frivolous and vexatious litigation, was found in contempt of court and sanctioned in both state and federal court, engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation, and failed to cooperate with the ODC in several investigations. Based on this conduct, respondent has violated the Rules of Professional Conduct as found by the committees and 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|17deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

The record supports a finding that respondent’s conduct was negligent, knowing, and intentional. He violated duties owed to his clients, the public, the legal profession, and the legal system. His conduct caused actual harm to his clients, third-party medical providers, and opposing parties in litigation. The record supports the aggravating and mitigating factors found by the board.

By far, respondent’s most egregious misconduct involves his knowing and intentional conversion of client and third-party funds. Respondent testified at the formal hearing that he used these funds to maintain his office while he was recovering from surgery. Under the ABA’s Standards for Imposing Lawyer Sanctions, the baseline sanction for this type of misconduct is disbarment.

In Louisiana State Bar Ass’n v. Hinrichs, 486 So.2d 116 (La.1986), we determined that disbarment was appropriate for conversion cases in which one or more of the following elements are present:

the lawyer acts in bad faith and intends a result inconsistent with his client’s interest; the lawyer commits forgery or other fraudulent acts in connection with the violation; the magnitude or the duration of the deprivation is extensive; the magnitude of the damage or risk of damage, expense and inconvenience caused the client is great; the lawyer either fails to make full restitution or does so tardily after extended pressure of disciplinary or legal proceedings.

We find that a number of these elements are present in this case, which further supports the baseline sanction of disbarment.

| )8Case law also indicates that a lengthy period of suspension is appropriate for an attorney who engages in frivolous and vexatious litigation. See, e.g., In re: Simpson, 07-0070 (La.6/29/07), 959 So.2d 836 (three-year suspension, with all but one year and one day deferred, imposed upon an attorney who charged an excessive legal fee and engaged in harassing litigation with his client), and In re: Cook, 06-0426 (La.6/16/06), 932 So.2d 669 (three-year suspension, with all but eighteen months deferred, imposed upon an attorney who filed repetitive and unwarranted pleadings in ongoing litigation and made frivolous and harassing claims for discovery against third persons not involved in the litigation).

Given respondent’s other misconduct and the numerous aggravating factors present, we find that a downward deviation from the baseline sanction is not warranted. Accordingly, we will adopt the disciplinary board’s recommendation and disbar respondent. We will further order respondent to pay restitution to his victims as well as the sanctions imposed against him.

DECREE

Upon review of the findings and recommendations of the hearing committees and the disciplinary board, and considering the record, it is ordered that Darien D. Lester, Louisiana Bar Roll number 24831, be and he hereby is disbarred. His name shall be stricken from the roll of attorneys and his license to practice law in the State of Louisiana shall be revoked. It is further ordered that respondent shall pay restitution to his victims subject of the formal charges and shall pay any sanctions which have been imposed against him. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, |19with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

       Chief Justice Kimball not participating in the opinion.

      . During the formal hearing, the ODC withdrew Count IV of 02-DB-101. Accordingly, we will not address that alleged misconduct.

      . Respondent testified at the formal hearing that he did not have a trust account at this time.

      . Respondent testified at the formal hearing that he used the money to maintain his office while he was recovering from surgery.

      . Respondent has a long history of brief periods of ineligibility to practice law for failing to timely pay bar dues and the disciplinary assessment as well as failing to timely comply with mandatory continuing legal education requirements.

      . The officer attempting to serve respondent with the subpoena indicated that, on at least two occasions, respondent's office was locked during regular business hours.

      . Although the committee did not specifically find as an aggravating factor that respondent acted with a dishonest or selfish motive, it refused to find "absence of a dishonest or selfish motive” as a mitigating factor, stating, "... it appears to this committee that dishonesty, or selfish motive, was the background of some of the complaints alleged against respondent.”

      . See, e.g., In re: Boydell, 00-0086 (La.5/26/00), 760 So.2d 326 (three-year suspension); In re: Stratton, 03-3198 (La.4/2/04), 869 So.2d 794 (three-year suspension); and In re: Cook, 06-0426 (La.6/16/06), 932 So.2d 669 (three-year suspension with eighteen months deferred).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Louisiana v. Michael M. SHELTON.
    No. 2009-KP-2071.
    Supreme Court of Louisiana.
    Jan. 29, 2010.
   PER CURIAM.

11 Granted. On application by the state from the order denying relief in State v. Shelton, 09-1077 (La.App. 4th Cir.9/18/09)(Kirby, J., dissenting), the judgment of the trial court is vacated and respondent’s original sentence is reinstated.

It clearly appears from the guilty plea colloquy and the printed waiver form that respondent entered his guilty plea as part of a plea bargain to a reduced charge which called for an habitual offender sentence of 15 years imprisonment at hard labor. When respondent then moved to withdraw his guilty plea only a week after he entered it, and followed that motion with a motion to reconsider his 15-year sentence under La.C.Cr.P. art. 881.1, he asked the court in different ways to withdraw from his plea bargain with the state, as any reconsideration of sentence would constitute a unilateral modification and breach of the original plea bargain providing grounds for setting aside the plea for a failure of cause, a remedy that the motion to withdraw the guilty plea also requested. See State v. Lewis, 539 So.2d 1199, 1205 (La.1989); State v. Nall, 379 So.2d 731, 734 (La.1980). Accordingly, when the court denied respondent’s motion to withdraw from the plea bargain at the hearing conducted on March 28, 2001, it necessarily denied his motion to reconsider a sentence imposed as part of that plea bargain, as the judge recognized when it stated that respondent was “remanded to the department of Corrections for the Period of Time as I have him originally.” See State v. Bush, 39,150, p. 2 (La.App. 2nd Cir.7/8/04), 875 So.2d 134, 135 (La.C.Cr.P. art. 881.2(A)(2), which precludes a defendant from appealing or seeking review of a sentence agreed as part of a plea bargain, also precludes a trial court from granting a motion to reconsider sentence; any other rule “would mean that any defendant could plead guilty with an agreed sentence but still subject it to judicial review by the imposing court ... eviscerat[ing] the efficacy of plea negotiations involving agreed sentences and ... removing] the district attorney’s power to obtain final resolutions of cases as provided by La.C.Cr.P. art. 61.”), writ denied 04-2052 (La.11/7/05), 891 So.2d 668

Accordingly, the trial court had no basis for considering the motion to reconsider sentence as still open eight years later and for granting respondent relief, although the ruling which denied his motion to withdraw the guilty plea had long since become final. See State v. Shelton, 01-0980 (La.App. 4th Cir.6/20/01)(“Because relator plea bargained for the sentence he received as a multiple offender .... [t]here is no error in the district court’s March 28, 2001 denial of relator’s motion to withdraw his guilty plea.”), writ denied 01-2395 (La.5/24/02), 816 So.2d 301.


text:
    In re Alton BATES.
    No. 2009-B-2780.
    Supreme Court of Louisiana.
    Jan. 29, 2010.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations of professional misconduct by respondent, including violations of Rules 8.4(a), 8.4(b), and 8.4(c) of the Rules of Professional Conduct stemming from his criminal conviction of two counts of health care fraud and two counts of paying illegal remuneration to Medicare beneficiaries. Prior to the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline. The parties stipulate to respondent’s misconduct, and seek his permanent disbarment from the practice of law.

Based on our review of the petition, we agree that permanent disbarment is the appropriate sanction under Guideline 6 (insurance fraud) of the permanent disbarment guidelines set forth in Supreme Court Rule XIX, Appendix E. Accordingly, having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted. The name of Alton Bates, Louisiana Bar Roll number 17913, shall be stricken from the roll of attorneys and his license to practice law in the State of Louisiana shall be revoked. Pursuant to Supreme Court Rule XIX, § 24(A), it is further ordered that respondent be permanently prohibited from being readmitted to the practice of law in this state.

IT IS FURTHER ORDERED that 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.


text:
    In re Gregory Van JUDICE.
    No. 2009-B-1828.
    Supreme Court of Louisiana.
    Feb. 5, 2010.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

| ]This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Gregory Van Judice, an attorney licensed to practice law in Louisiana but currently on interim suspension for threat of harm to the public. In re: Judice, 08-0340 (La.2/20/08), 974 So.2d 1280.

UNDERLYING FACTS AND PROCEDURAL HISTORY

The ODC filed two sets of formal charges against respondent, consisting of a total of seven counts of misconduct. Respondent failed to answer either set of formal charges. ■ Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal hearings were held, but the parties were given an opportunity to file with the hearing committees written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the hearing committee’s consideration in either matter.

The formal charges were considered by separate hearing committees before being consolidated by order of the disciplinary board. The board subsequently filed in this court a single recommendation of discipline encompassing both sets of formal charges.

U08-DB-028

Counts I & III

Respondent represented Betty Bertrand in a personal injury matter arising from a May 2004 automobile accident. On November 5, 2004, Dr. Robert Hanks, Ms. Bertrand’s chiropractor, sent respondent notice of his medical provider lien. Ms. Bertrand’s final bill for her treatment with Dr. Hanks was $801.

Eventually, Ms. Bertrand’s case settled for $8,500, and respondent deposited the funds into his trust account on May 11, 2005. Respondent disbursed the funds to himself and Ms. Bertrand without withholding funds for or paying Dr. Hanks.

In August 2005, after learning of the settlement, Dr. Hanks filed a disciplinary complaint against respondent. In response to the complaint, on September 13, 2005, respondent paid Dr. Hanks $801 from his operating account.

In connection with its investigation of Dr. Hanks’ complaint, the ODC’s auditor reviewed respondent’s trust account for the period of January 1, 2004 through December 31, 2005. The auditor’s August 21, 2007 report revealed that between February 2004 and December 2005, settlement proceeds for six of respondent’s clients were deposited into his trust account. Respondent withheld a total of $10,613.57 from those settlement funds to pay third party medical providers. However, respondent failed to disburse those funds to said medical providers. He also failed to properly maintain those funds in his trust account, as the account had a negative balance on several occasions in April, May, and June 2005.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.15(a)(b)(c) (safekeeping property of Isdients or third persons), 8.4(a) (violation of the Rules of Professional Conduct), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation).

Count II

Between January 1, 2004 and December 2005, Trina Pousson and Patty Bertrand worked as secretaries and/or bookkeepers in respondent’s law office. Respondent allowed them access to his trust account and operating account, giving them the authority to prepare checks and reconcile the accounts. However, respondent failed to properly supervise their handling of the accounts.

Respondent alleged that, as a result of his failure to properly supervise the handling of his bank accounts, Ms. Pousson and/or Ms. Bertrand may have embezzled funds from him, which resulted in conversion of client or third-party funds from his trust account. However, the ODC’s auditor was unable to ascertain whether any embezzlement took place and, if so, whether said embezzlement caused the non-payments to third-party medical providers or the negative balances in respondent’s trust account as described above.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.15(a)(b)(c), 5.3 (failure to properly supervise a non-lawyer assistant), and 8.4(a).

Hearing Committee Report

After considering the ODC’s deemed admitted submission in 08-DB-028, the hearing committee made the following factual findings:

Between January 1, 2004 and December 31, 2005, over $10,613.57 in client funds were, at best, commingled and misappropriated and, at worst, converted by | respondent from his trust account. The negative balances in the trust account in April, May, and June 2005 were, by necessity, the result of respondent withdrawing funds from the account that did not belong to him. Respondent wrote letters to the ODC and gave a sworn statement in which he attempted to shift responsibility for these acts to a former employee whom he contended embezzled funds from his office. He also blamed his inattention on treatment he was receiving for cancer. However, the committee noted that respondent provided no evidence of the alleged embezzlement or of his illness. The ODC’s auditor was also unable to determine if any embezzlement occurred.

The committee’s report did not specifically address which provisions of the Rules of Professional Conduct respondent violated. The committee determined that respondent acted knowingly but did not greatly harm his clients. Respondent also fully reimbursed Dr. Hanks without the necessity of extensive disciplinary or legal proceedings. After considering the ABA’s Standards for Imposing Lawyer Sanctions, the committee determined that the baseline sanction is disbarment.

In aggravation, the committee found multiple offenses, vulnerability of the victim, and substantial experience in the practice of law (admitted 1996). The committee found the following mitigating factors present: absence of a prior disciplinary record, timely good faith effort to make restitution or to rectify the consequences of the misconduct, and full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings.

^Turning to the issue of an appropriate sanction, the committee cited Louisiana State Bar Ass’n v. Hinnchs, 486 So.2d 116 (La.1986), wherein this court held that a three-year suspension from the practice of law is appropriate in conversion cases in which

the lawyer is guilty of at least a high degree of negligence in causing his client’s funds to be withdrawn or retained in violation of the disciplinary rule. He usually does not commit other fraudulent acts in connection therewith. The attorney usually benefits from the infraction but, in contrast with disbarment cases, the client may not be greatly harmed or exposed to great risk of harm. The attorney fully reimburses or pays his client the funds due without the necessity of extensive disciplinary or legal proceedings.

Based on the ABA standards, as well as this court’s holding in Hinrichs, the committee recommended that respondent be suspended from the practice of law for three years.

Respondent filed an objection to the hearing committee’s recommendation and submitted evidence of mitigating factors, which he claimed would require a reduction of the committee’s recommended sanction. The evidence included copies of checks from respondent’s trust account, which he claimed his employees forged; copies of receipts indicating he made restitution to clients and third parties as their identities were discovered; and his medical records regarding his cancer treatment in 2003 and 2004 (see note 2, supra).

08-DB-047

Count I

In November 2006, Debra Woods hired respondent to handle a personal injury/worker’s compensation matter. Respondent did not file a lawsuit or a worker’s compensation claim on Ms. Woods’ behalf before the claim prescribed. He also | ¿failed to return Ms. Woods’ telephone calls or otherwise communicate with her. Furthermore, respondent did not properly supervise the minimal amount of work his non-lawyer assistants performed on Ms. Woods’ case.

In October 2007, Ms. Woods filed a disciplinary complaint against respondent. In response to the complaint, respondent falsely informed the ODC that he had been unable to locate Ms. Woods.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.1 (failure to provide competent representation to a client), 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 5.3, 8.1(a) (a lawyer shall not knowingly make a false statement of material fact in connection with a disciplinary matter), and 8.4(c).

Count II

In January 2007, Joshua Hughes hired respondent to handle two claims arising from a January 17, 2007 automobile accident. On May 1, 2007, Mr. Hughes’ insurance company issued a property damage check in the amount of $2,433.06 made payable to Mr. Hughes and respondent. Respondent endorsed the check but failed to inform Mr. Hughes of the check. As such, Mr. Hughes’ endorsement on the check 17was a forgery. On May 4, 2007, the check was cashed, but at that time, Mr. Hughes received no portion of the proceeds.

When Mr. Hughes confronted respondent, respondent claimed his secretary forged the endorsement and cashed the check. However, the bank teller who cashed the check informed Mr. Hughes that respondent personally came into the bank with the check.

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

Count III

On September 29, 2007, respondent was declared ineligible to practice law in Louisiana for failing to fulfill his mandatory continuing legal education requirements. On October 8, 2007, he was declared ineligible to practice law for failing to pay his bar dues and the disciplinary assessment. Thereafter, on February 20, 2008, respondent was interimly suspended by this court. Accordingly, he has been ineligible to practice law since September 29, 2007.

[¡Nonetheless, on November 6, 2007, Paul Beason, Jr. retained respondent in a contract dispute involving restoration work on Mr. Beason’s automobile. Between November 6, 2007 and November 20, 2007, Mr. Beason paid respondent $750 in advanced fees.

At the end of November 2007, Mr. Bea-son received some of his property from the automobile restoration company. However, respondent did not obtain a refund of the unused portion of the deposit Mr. Bea-son paid to the company or provide Mr. Beason with documentation of the work the company performed. By that time, respondent had become unavailable to Mr. Beason, failing to return his telephone calls or otherwise communicate with him. Respondent did not provide Mr. Beason with an accounting of the $750 advanced fee or refund the unearned portion of the fee.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.1(b) (failure to comply with MCLE requirements), 1.1(c) (failure to pay bar dues and the disciplinary assessment), 1.3, 1.4, 1.5(a) (charging an unreasonable fee), 1.5(f) (failure to account for or refund an unearned fee), 1.16(d) (obligations upon termination of the representation), 5.5 (engaging in the unauthorized practice of law), 8.4(b), and 8.4(c).

Count IV

In February 2006, Dat Luong hired respondent to handle two claims arising from a January 28, 2006 automobile accident. In March 2006, respondent received a property damage check in the amount of $2,660 made payable to himself and Mr. 1 ¡¡Luong. In December 2006, respondent received another property damage check on Mr. Luong’s behalf in the amount of $1,463 made payable to himself.

Both checks were deposited into respondent’s bank account, and Mr. Luong’s endorsement on the March 2006 check was forged. Respondent did not inform Mr. Luong that he received the checks, and Mr. Luong received no portion of the proceeds from either check. Thereafter, respondent and/or his employees gave Mr. Luong false and misleading information about the checks.

After July 4, 2007, Mr. Luong was no longer able to reach respondent by telephone. As such, he obtained new counsel, who contacted respondent via letter dated July 31, 2007. In response, respondent indicated to Mr. Luong’s attorney that his employee embezzled funds from him. On October 22, 2007, November 2, 2007, and January 15, 2008, Mr. Luong’s attorney forwarded copies of the two checks to respondent. Respondent did not respond to the letters or forward Mr. Luong’s funds.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.15(a), 1.15(d), 5.3, 8.4(a), 8.4(b), and 8.4(c).

Hearing Committee Report

After considering the ODC’s deemed admitted submission in 08-DB-047, the hearing committee determined that the factual allegations contained in the formal charges have been deemed admitted and proven by clear and convincing evidence. Based on these facts, the committee determined that respondent violated the Rules of Professional Conduct as follows: In the Woods matter, respondent violated Rules 1.1, 1.3, 1.4, and 8.1(a), but the committee did not address whether respondent violated Rules 5.3 and 8.4(c). In the Hughes matter, respondent violated Rules |in1.15(a), 1.15(d), and 8.4(c), but the committee did not address whether respondent violated Rules 5.3, 8.4(a), and 8.4(b). In the Bea-son matter, respondent violated Rules 1.1(b), 1.1(c), 1.4, 1.5(f), 5.5, and 8.4(c), but the committee did not address whether respondent violated Rules 1.3, 1.5(a), 1.16(d), and 8.4(b). In the Luong matter, respondent violated Rules 1.15(a), 1.15(d), and 5.3. However, with respect to Rules 8.4(a), 8.4(b), and 8.4(c), the committee noted that “[i]t is not established by the deemed admissions or by clear and convincing evidence in the record whether the forgery and misleading information were acts of Respondent, Respondent’s employees or both.” Thus, the committee found that the 8.4 rule violations were not proven by clear and convincing evidence in the Luong matter.

The committee determined that respondent violated duties owed to his clients and the legal system. He acted intentionally, knowingly, and negligently, causing serious actual harm to his clients. Based on the ABA’s Standards for Imposing Lawyer Sanctions, the committee determined that the baseline sanction is disbarment.

Finding that respondent attempted to cover up his misconduct in the Hughes matter in his statements to both Mr. Hughes and the ODC, the committee determined the following aggravating factors are present: a dishonest or selfish motive, submission of false evidence, false statements, or other deceptive practices during the disciplinary process, refusal to acknowledge the wrongful nature of the conduct, and illegal conduct. Additionally, the committee found the aggravating factors of multiple offenses and substantial experience in the practice of law to be present. The only mitigating factor the committee found was the absence of a prior disciplinary record.

lnThe committee further noted that respondent’s misconduct includes forgery, fraud, and conversion of client funds and, thus, meets the disbarment guidelines for conversion as detailed in Hinrichs, supra:

In a typical case of disbarment for violation of DR 9-102 [now Rule 1.15], one or more of the following elements are usually present: the lawyer acts in bad faith and intends a result inconsistent with his client’s interest; the lawyer commits forgery or other fraudulent acts in connection with the violation; the magnitude or the duration of the deprivation is extensive; the magnitude of the damage or risk of damage, expense and inconvenience caused the client is great; the lawyer either fails to make full restitution or does so tardily after extended pressure of disciplinary or legal proceedings.

Under these circumstances, the committee recommended that respondent be disbarred. Additionally, the committee recommended that respondent undergo a Lawyers Assistance Program substance abuse analysis and establish that he has been treated for and is recovering from any substance abuse problems prior to applying for readmission.

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

Disciplinary Board Recommendation

08-DB-028 & 08-DB-0Í7

After reviewing these consolidated matters, the disciplinary board determined that the hearing committee’s factual findings in 08-DB-028 are not manifestly erroneous. Based on these findings, the board determined that respondent violated the Rules of Professional Conduct as follows: In Counts I and III, respondent violated Rules 1.15(a), 8.4(a), and 8.4(c). However, respondent did not violate Rules 1.15(b) | ls,and 1.15(c) because these rules concern depositing an attorney’s own funds or advance payments into a trust account, and there was no allegation that respondent deposited his own funds into his trust account or withdrew advance payments contrary to the rules. In Count II, respondent violated Rules 5.3 and 8.4(a), but he did not violate Rules 1.15(a), 1.15(b), or 1.15(c).

In 08-DB-047, the board determined that the hearing committee’s factual findings are not manifestly erroneous except the finding that respondent did not commit forgery in the Luong matter. The board stated that the evidence in the record suggests that it is highly probable respondent forged signatures on Mr. Luong’s settlement checks. The board also noted two minor errors in the deemed admitted facts in the Luong matter and corrected these errors. Based on these findings, the board determined that respondent violated the Rules of Professional Conduct as follows: In the Woods matter, respondent violated Rules 1.1, 1.3, 1.4, 8.1(a), and 8.4(c), but he did not violate Rule 5.3. In the Hughes matter, respondent violated Rules 1.15(a), 1.15(d), 8.4(b), and 8.4(c), but he did not violate Rules 5.3 and 8.4(a). In the Reason matter, respondent violated Rules 1.1(b), 1.1(c), 1.3, 1.4, 1.5(f), 1.16(d), 5.5, 8.4(b), and 8.4(c). However, respondent did not violate Rule 1.5(a), as there was no allegation or evidence that the fee respondent charged was unreasonable. In the Luong matter, respondent violated Rules 1.15(a), 1.15(d), 8.4(b), and 8.4(c), but he did not violate Rules 5.3 and 8.4(a).

The board determined that respondent knowingly and intentionally violated duties owed to his clients, the public, and the legal profession. He caused serious harm to several clients and third parties by misappropriating and/or converting funds from his trust account. Furthermore, respondent forged his clients’ endorsements on settlement checks on at least two occasions. Relying on the ARA’s Standards for \ ^Imposing Lawyer Sanctions, the board determined that the baseline sanction is disbarment.

The board found the following aggravating factors are present: a dishonest or selfish motive, a pattern of misconduct, multiple offenses, submission of false evidence, false statements, or other deceptive practices during the disciplinary process, refusal to acknowledge the wrongful nature of the conduct, vulnerability of the victims, substantial experience in the practice of law, and illegal conduct. The board found only two mitigating factors, those being the absence of a prior disciplinary record and personal or emotional problems (cancer and subsequent treatment). However, the board assigned very little weight to the personal or emotional problems as there was no evidence that respondent’s cancer and treatment caused the misconduct.

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

Although neither respondent nor the ODC filed an objection to the board’s recommendation, on December 8, 2009, we ordered briefing addressing the issue of an appropriate sanction.

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 | l4been 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.

In this consolidated matter, the hearing committees’ factual findings, as modified by the disciplinary board, are supported by the deemed admitted facts and documentary evidence present in the record. The facts and evidence indicate that respondent neglected legal matters, failed to communicate with clients, failed to account for or refund unearned fees, failed to timely pay third-party medical providers, commingled client funds with his own, converted client and third-party funds to his own use, failed to properly supervise his non-lawyer assistants, practiced law while ineligible to do so; forged clients’ signatures on settlement checks, and engaged in other dishonest or fraudulent conduct. Based on this conduct, respondent has 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).

Respondent knowingly and intentionally violated duties owed to his clients, the public, and the legal profession. His conduct caused actual harm to his clients and third-party medical providers. The baseline sanction for this type of misconduct is disbarment.

Aggravating factors include the following: a dishonest or selfish motive, multiple offenses, submission of false evidence, false statements, or other deceptive practices during the disciplinary process, refusal to acknowledge the wrongful nature of the conduct, substantial experience in the practice of law, and illegal conduct. The sole mitigating factors are respondent’s lack of a prior disciplinary record and personal problems, although we, like the board, give little weight to the latter factor given the lack of supporting evidence in the record.

Considering the misconduct in light of the aggravating and mitigating factors, we see no reason to deviate from the baseline sanction of disbarment. Accordingly, 1 ir,we will disbar respondent. Additionally, we will order him to render a full accounting to his clients and make complete restitution to them.

DECREE

Upon review of the findings and recommendations of the hearing committees and the disciplinary board, and considering the record and the brief filed by the ODC, it is ordered that Gregory Van Judice, Louisiana Bar Roll number 24481, be and he hereby is disbarred, retroactive to February 20, 2008, the date of his interim suspension. His name shall be stricken from the roll of attorneys and his license to practice law in the State of Louisiana shall be revoked. It is further ordered that respondent shall pay full restitution to his victims. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

       Chief Justice Kimball not participating in the opinion.

      . According to the ODC’s auditor, Ms. Bertrand’s settlement sheet stated she would be responsible for paying any and all medical bills.

      . After the hearing committee issued its report, respondent submitted a limited amount of medical records to the disciplinary board. These records revealed that respondent was diagnosed with testicular cancer in late 2003 and underwent treatment. In October 2004, his family doctor indicated that he would need related cancer treatment and maintenance every two to three months for the next three years. As a result of the treatments and maintenance, respondent was receiving pain management from his family doctor.

      . In a March 4, 2008 sworn statement to the ODC, respondent indicated that his assistant signed up Ms. Woods as a client while he was on medical leave, and he never had any contact with Ms. Woods. Respondent's assistant, who worked for him as a paralegal/office manager from July 2006 until January 2007, essentially corroborated respondent’s assertion, stating that she performed all of the bookkeeping for the law office, met with clients, worked die files, settled personal injury matters, and disbursed settlement funds. She also claimed that respondent was not working any of the cases, and it took "an act of congress to try and get him to sit still long enough to discuss anything with him.”

      . The record reflects that respondent paid Mr. Hughes a total of $1,200 in restitution between October 2, 2007 and December 7, 2007.

      . In a March 4, 2008 sworn statement to the ODC, respondent claimed that, in the last four years, four of his employees have misappropriated funds from his law office bank accounts, including forging signatures and cashing checks at the bank. However, respondent’s assistant from July 2006 until January 2007 informed the ODC that respondent was "going through pain management with a local doctor in town who was known for freely writing scripts” and would use money from the law office's operating accounting to pay for his prescriptions. She further stated that respondent withdrew between $200 and $500 from the operating accounting daily for his personal use and would transfer funds from the trust account to the operating account without justification.

      . The ODC interviewed the bank teller, who verified that respondent came into the bank to cash the check.

      . Mr. Beason paid an automobile restoration company a $4,000 deposit on September 20, 2005. Hurricane Rita struck on September 24, 2005, and the work was not completed. Mr. Beason hired respondent to recover his property, obtain documentation of any work performed, and obtain a refund of the unused portion of the deposit.

      . The committee noted that the record suggests respondent may have a drug problem, possibly related to his cancer.

      . The disciplinary board recommended that respondent be permanently disbarred. However, based upon our review of the record as well as the supplemental brief filed by the ODC, we are not convinced that Guideline 1 of the permanent disbarment guidelines, which suggests that permanent disbarment may be warranted in cases involving "repeated or multiple instances of intentional conversion of client funds with substantial harm," is applicable under the facts of this case. Although any instance of conversion is serious misconduct, it is well settled that we do not impose permanent disbarment lightly. Rather, permanent disbarment is reserved for those cases where the respondent's conduct convincingly demonstrates that he does not possess the requisite moral fitness to practice law in this state, thereby making it highly unlikely readmission would ever be granted. See, e.g., In re: Muhammad, 08-2769 (La.3/4/09), 3 So.3d 458. Based on the record before us, we do not believe respondent's conduct rises to this level.


text:
    In re Michael Wayne McCLANAHAN.
    No. 2009-B-1883.
    Supreme Court of Louisiana.
    Feb. 5, 2010.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

| iThis disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Michael Wayne McClanahan, an attorney licensed to practice law in Louisiana but currently on interim suspension pursuant to a joint motion of the parties filed in October 1997. In re: McClanahan, 97-2555 (La.11/5/97), 701 So.2d 959. The interim suspension followed respondent’s acknowledgment to the ODC that he was addicted to drugs and alcohol. Thereafter, respondent entered substance abuse treatment for his addiction and achieved sobriety.

UNDERLYING FACTS

99-DB-088

Count I — The Gros Matter

The following facts are not in dispute, having been stipulated to by the parties:

Respondent was employed as an associate with the Law Offices of Marvin Gros. As an associate, respondent was authorized to issue checks from the office operating account, including issuing checks to himself to pay his salary and commission. In April 1995, respondent issued a $5,000 check to himself for 12“commission reimbursement.” However, the check was inadvertently drawn on the firm’s client trust account.

The following additional facts were alleged in the formal charges and have not been stipulated to by respondent:

Respondent instructed a non-lawyer assistant to obtain the check from the checkbook and to go to the bank for him. On September 14, 1995, the drawee bank reimbursed the funds to the account as a fraud loss. Respondent failed to repay the funds.

In the formal charges, the ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct, as those rules were in effect at the time of the misconduct: Rules 1.15(a) (safekeeping property of clients or third persons), 5.3 (failure to properly supervise a non-lawyer assistant), 8.4(b) (commission of a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation). Respondent stipulated that he violated Rules 1.15(a) and 5.3.

Count II — The Elzy/Rome Matter

The following facts are not in dispute, having been stipulated to by the parties:

In June 1995, respondent’s employment with Mr. Gros ended. Respondent took the files of Wendell Elzy, Jocelyn Rome, and Tameka Rome without Mr. Gros’ knowledge or consent, later informing Mr. Gros that these clients no longer desired Mr. Gros’ services. During his representation of these clients, respondent provided them with unexplained cash advances. In December 1995, he settled the three cases |3but did not disburse the funds withheld for the clients’ medical providers until February 18, 1997. During the ODC’s investigation of this matter, respondent failed to provide the ODC with a supplemental response.

In the formal charges, the ODC alleged that respondent violated Rules 1.2(a) (scope of the representation), 1.4 (failure to communicate with a client), 1.8(e) (a lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation), 1.15(a), 1.15(b) (failure to timely remit funds to a client or third person), 1.16(d) (obligations upon termination of the representation), 8.1(c) (failure to cooperate with the ODC in its investigation), 8.4(a) (violation of the Rules of Professional Conduct), 8.4(c), and 8.4(g) (failure to cooperate with the ODC in its investigation) of the Rules of Professional Conduct. Respondent stipulated that he violated Rules 1.4, 1.8(e), 1.15(a), 1.15(b), and 8.1(c).

Count III — The Perniciaro Matter

The following facts are not in dispute, having been stipulated to by the parties:

After leaving his employment with Mr. Gros, respondent established an agreement with Dr. Jay Perniciaro concerning payments for medical treatment of respondent’s personal injury clients. As of July 1996, Dr. Perniciaro’s bills for services rendered to nine of respondent’s clients totaled $14,336. Respondent settled the clients’ cases and withheld funds to pay Dr. Perniciaro. However, he did not promptly disburse Dr. Perniciaro’s funds. Respondent informed Dr. Pernicia-ro that his employee had stolen funds on deposit for payment of client expenses. During the ODC’s investigation of this matter, respondent failed to appear on March 26, 1997 to provide the ODC with subpoenaed financial records.

Lin the formal charges, the ODC alleged that respondent violated Rules 1.15(b), 5.3, 8.1(c), 8.4(a), 8.4(b), 8.4(c), and 8.4(g) of the Rules of Professional Conduct. Respondent stipulated that he violated Rules 1.15(b), 5.3, 3.4(c) (knowing disobedience of an obligation under the rules of a tribunal), 8.1(c), 8.4(a), and 8.4(d) (engaging in conduct prejudicial to the administration of justice).

Count IV — The Jones Mutter

The following facts are not in dispute, having been stipulated to by the parties:

Respondent represented George Jones in a personal injury matter. On June 30,1995, he issued a letter of guarantee to Uptown Physical Medicine and Rehabilitation, Mr. Jones’ medical provider. Thereafter, respondent settled Mr. Jones’ case and withheld funds from the settlement to pay Uptown’s bill. However, he failed to disburse the funds to Uptown. During the ODC’s investigation of this matter, respondent failed to provide the ODC with subpoenaed financial records and settlement documents.

In the formal charges, the ODC alleged that respondent violated Rules 1.15(a), 1.15(b), 1.15(c) (when a lawyer is in possession of property in which both the lawyer and another person claim interests, the property shall be kept separate by the lawyer until there is an accounting and severance of their interests), 1.16(d), 8.1(c), 8.4(a), 8.4(c), and 8.4(g) of the Rules of Professional Conduct. Respondent stipulated that he violated Rules 1.15(a), 1.15(b), 1.15(c), 3.4(c), 8.1(c), 8.4(a), and 8.4(d).

Count V — The Diggs Matter

The following facts are not in dispute, having been stipulated to by the parties:

In October 1996, respondent set-tied a personal injury claim on behalf of Bernice Diggs. The settlement agreement required Ms. Diggs to execute release and Ldismissal documents prior to respondent disbursing the funds. Nonetheless, respondent disbursed the funds without filing a judgment of dismissal in Ms. Diggs’ case. During the ODC’s investigation of this matter, respondent failed to respond to the initial complaint.

In the formal charges, the ODC alleged that respondent violated Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 3.2 (failure to make reasonable efforts to expedite litigation), 3.4(c), 8.1(c), 8.4(a), 8.4(c), 8.4(d), and 8.4(g) of the Rules of Professional Conduct. Respondent stipulated that he violated Rules 1.3, 3.2, 3.4(c), 8.1(e), 8.4(a), and 8.4(d).

Count VI — The Oxner/Craig Matter

The following facts are not in dispute, having been stipulated to by the parties:

In 1994, respondent served as Tamela Oxner’s indigent defense counsel in a criminal matter. On April 2, 1997, Shirley Craig hired respondent to represent Ms. Oxner in the same criminal matter. Ms. Craig paid respondent $650 toward his $2,500 fee. However, when respondent appeared in court, he did not inform Ms. Oxner or the court that he was acting as Ms. Oxner’s retained counsel instead of her indigent defense counsel. During the ODC’s investigation of this matter, respondent failed to respond to the initial complaint.

The following additional facts were alleged in the formal charges and have not been stipulated to by respondent:

16Respondent failed to appear in court for Ms. Oxner’s trial on April 21, 1997 and failed to return Ms. Craig’s numerous telephone calls. He also failed to account for or refund the unearned portion of the fee paid by Ms. Craig.

In the formal charges, the ODC alleged that respondent violated Rules 1.3, 1.4, 1.16(d), 8.1(c), 8.4(a), 8.4(c), 8.4(d), and 8.4(g) of the Rules of Professional Conduct. Respondent stipulated that he violated Rules 1.4,1.16(d), 3.4(c), 8.1(c), 8.4(a), and 8.4(d).

Count VII—The Bracken Matter

In October 1995, Leonard Bracken hired respondent to handle his personal injury claim. In March 1996, after rejecting two settlement offers, Mr. Bracken informed respondent that he wanted to file a lawsuit in the matter. For approximately a year thereafter, Mr. Bracken received no communication from respondent. As such, in March 1997, he terminated respondent’s services and requested his file. Nonetheless, on April 11,1997, respondent informed Mr. Bracken that he settled his claim and was in possession of the settlement check. Respondent settled the claim without Mr. Bracken’s knowledge or consent, failed to return Mr. Bracken’s file, and failed to account for the funds he received on Mr. Bracken’s behalf. During the ODC’s investigation of this matter, respondent failed to respond to the initial complaint.

In the formal charges, the ODC alleged that respondent violated Rules 1.2(a), 1.3, 1.4, 1.16(a) (a lawyer shall withdraw from the representation of a client if the |7lawyer is discharged), 1.16(d), 3.2, 8.1(c), 8.4(a), 8.4(b), 8.4(c), 8.4(d), and 8.4(g) of the Rules of Professional Conduct.

Count VIII—The Williams Matter

The following facts are not in dispute, having been stipulated to by the parties:

In July 1995, Mary Williams hired respondent to handle her bankruptcy. Ms. Williams paid respondent $400 in fees and $175 for court costs. Respondent neglected the matter and failed to communicate with Ms. Williams.

In the formal charges, the ODC alleged that respondent violated Rules 1.3, 1.4, 1.16(d), 3.2, 8.4(a), 8.4(b), and 8.4(c) of the Rules of Professional Conduct. Respondent stipulated that he violated Rules 1.3, 1.4,1.16(d), 3.2, and 8.4(a).

Count IX—The Gillard/Wright Matter

The following facts are not in dispute, having been stipulated to by the parties:

Gwendolyn Gillard, Bridgette Wright, and Tiffany Wright hired respondent to represent them in personal injury matters. In March 1997, respondent settled their claims without their knowledge or consent. He then negotiated the settlement checks and retained the proceeds for his own use and benefit.

In the formal charges, the ODC alleged that respondent violated Rules 1.2(a), 1.4, 1.15(b), 1.16(d), 8.4(a), 8.4(b), 8.4(c), and 8.4(d) of the Rules of Professional Conduct. Respondent stipulated that he violated Rules 1.2, 1.4, 1.15(b), 1.16(d), 8.4(a), and 8.4(c).

laCcnmis X & XI—The Welch Matter

The following facts are not in dispute, having been stipulated to by the parties:

Respondent represented Glen Welch in a criminal matter. On August 14, 1997, respondent failed to appear in court for Mr. Welch’s trial. Consequently, the judge issued a bench warrant for respondent’s arrest, and Mr. Welch’s trial was suspended. Respondent returned to court the next day, and the judge recalled the bench warrant. The judge sentenced respondent to serve twenty-four hours in the parish prison for contempt of court and ordered him to submit to a drug test, which he failed.

The following additional facts were alleged in the formal charges and have not been stipulated to by respondent:

In November 1996, Mr. Welch hired respondent to represent him in the above criminal matter. Mr. Welch paid respondent $850 toward his $6,000 fee, of which $500 was non-refundable. Respondent failed to appeal1 in court because of his drug abuse. The court declared a mistrial in Mr. Welch’s case.

In the formal charges, the ODC alleged that respondent violated Rules 1.1(a) (failure to provide competent representation to a client), 1.3, 1.4, 1.7(b) (a lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person or by the lawyer’s own interests), 1.16(a)(2) (a lawyer shall withdraw from the representation of a client if the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client), 3.2, 3.4(c), 3.5(c) (a lawyer shall not engage in conduct intended to disrupt a tribunal), 8.3(a) (reporting professional misconduct), 8.4(a), 8.4(c), and 8.4(d) of the Rules of Professional Conduct. Respondent stipulated that he violated Rules 1.1(a), 1.3, 1.7(b), 3.2, 3.4(c), 3.5(c), 8.3(a), 8.4(a), 8.4(c), and 8.4(d).

| oPount XII—The Collins/Howard Matter

The following facts are not in dispute, having been stipulated to by the parties:

On July 29, 1995, Carol Collins and Carrisa Howard hired respondent to handle their personal injury claims. Thereafter, respondent failed to keep them fully informed of the status of their cases. Although he settled part of their property damage claims, he did not complete the representation.

In the formal charges, the ODC alleged that respondent violated Rules 1.2(a), 1.3, 1.4, 1.16(d), and 8.4(a) of the Rules of Professional Conduct. Respondent stipulated that he violated Rules 1.2, 1.3, 1.4, and 8.4(a).

Count XIII—The Hathorn Matter

During respondent’s employment with Mr. Gros, he represented Gracie Mae Hathorn in various matters. On August 2, 1995, after respondent’s employment with Mr. Gros ended, he informed Ms. Hathorn that he retained her file to continue the representations. Thereafter, respondent failed to complete the representations and failed to communicate with Ms. Hathorn.

In the formal charges, the ODC alleged that respondent violated Rules 1.3, 1.4, 1.16(d), and 8.4(a) of the Rules of Professional Conduct.

Count XIV—The Guarisco Matter

While employed with Mr. Gros, respondent represented Brian Kelly in a personal injury matter. On January 5, 1994, respondent issued a letter of guarantee to Dr. Charles Guarisco for the payment of Mr. Kelly’s medical bills. In May 1995, respondent settled Mr. Kelly’s case for $6,958. On July 3, 1995, Dr. Guarisco agreed to reduce his bill, and respondent indicated that he would forward $3,000 to pay the |lflreduced bill within one week. Respondent’s employment with Mr. Gros ended on July 21, 1995, and respondent retained Mr. Kelly’s file to continue the representation. Nonetheless, respondent failed to pay Dr. Guarisco’s bill from the settlement proceeds.

In the formal charges, the ODC alleged that respondent violated Rules 1.15(a), 1.15(b), 1.15(c), 8.4(a), 8.4(b), and 8.4(c) of the Rules of Professional Conduct.

Count XV — The Myles Matter

The following facts are not in dispute, having been stipulated to by the parties:

Beginning in February 1997, Danielle Myles hired respondent to represent her in three separate personal injury matters. Without Ms. Myles’ knowledge or consent, respondent settled the claims, negotiated the settlement checks, and retained the proceeds for his own use and benefit.

In the formal charges, the ODC alleged that respondent violated Rules 1.1(a), 1.3, 1.4, 1.7(b), 1.15(a), 1.15(b), 1.16(a), 1.16(d), 8.4(a), 8.4(b), 8.4(c), and 8.4(d) of the Rules of Professional Conduct. Respondent stipulated that he violated Rules 1.1(a), 1.3, 1.4, 1.7(b), 1.15(a), 1.15(b), 8.4(a), 8.4(b), 8.4(c), and 8.4(d).

Count XVI — The Valery Matter

The following facts are not in dispute, having been stipulated to by the parties:

Respondent represented Ronald Valery in a misdemeanor criminal matter. On the day of Mr. Valery’s trial, respondent did not make an appearance until after court adjourned for the day. Meanwhile, the judge issued a bench warrant for respondent’s |narrest for his failure to appear. On August 15, 1997, the judge sentenced respondent to serve twenty-four hours in the parish prison for contempt of court.

In the formal charges, the ODC alleged that respondent violated Rules 1.1(a), 3.2, 3.4(c), 3.5(c), 8.4(a) and 8.4(d) of the Rules of Professional Conduct. Respondent stipulated that he violated the above rules as alleged.

Count XVII — The Fonseca Matter

The following facts are not in dispute, having been stipulated to by the parties:

Respondent represented Tina Fonseca in a criminal appeal. In accordance with the rules of the court of appeal, respondent was obligated to file a brief on Ms. Fonseca’s behalf. Respondent requested an extension of time to file the brief but, thereafter, failed to do so.

In the formal charges, the ODC alleged that respondent violated Rules 1.1(a), 1.3, 3.2, 3.4(c), 3.5(c), 8.4(a) and 8.4(d) of the Rules of Professional Conduct. Respondent stipulated that he violated the above rules as alleged.

08-DB-076

Respondent’s Criminal Conviction

The following facts are not in dispute, having been stipulated to by the parties:

In July 1997, a warrant was issued for respondent’s arrest arising from his misconduct in the Gillard/Wright matter (Count IX of 99-DB-088). In May 1998, respondent pled guilty to four counts of felony theft. In September 1998, respondent 112was sentenced to serve a total of four years in prison, with credit for time served. Respondent was released from custody in September 2000.

In the formal charges, the ODC alleged that respondent violated Rules 8.4(a), 8.4(b), and 8.4(c) of the Rules of Professional Conduct. Respondent stipulated that he violated the above rules as alleged,

DISCIPLINARY PROCEEDINGS

In September 1999, the ODC filed the formal charges in 99-DB-088. In September 2008, the ODC filed the formal charges in 08-DB-076. Respondent answered both sets of formal charges, which were then consolidated by order of the hearing committee chair.

Hearing Committee RepoH

The consolidated matters proceeded to a formal hearing on the merits. After considering the evidence and testimony presented at the hearing, the hearing committee accepted the parties’ stipulation of facts. The committee also noted that the stipulation enumerated respondent’s violations of the Rules of Professional Conduct. As such, the committee decided it “will not further analyze the violations as they have been deemed admitted pursuant to the stipulation.”

The committee determined that respondent intentionally violated duties owed to his clients’ the leSal system> the disciplinary system, and the public. The committee also found that respondent “caused real harm to real PeoPle while ^contemporaneously disgracing our besieged [legal] profession.” After reviewing the ABA’s Standards for Imposing Laiv-yer Sanctions, the committee determined that the baseline sanction is disbarment and “may be much closer to permanent disbarment” based on respondent’s repeated and multiple instances of intentional violations.

The committee found the following aggravating factors: a dishonest or selfish motive, a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, vulnerability of the victims, substantial experience in the practice of law (admitted 1992), and illegal conduct, including that involving the use of controlled substances. The committee found the following mitigating factors: absence of a prior disciplinary record, good faith effort to make restitution or to rectify the consequences of the misconduct, a cooperative attitude toward the proceedings, mental disability or chemical dependency including alcoholism or drug abuse, imposition of other penalties or sanctions, and remorse.

Finding the circumstances of this case to be compelling, the committee recommended a one-year suspension from the practice of law, retroactive to the date of respondent’s interim suspension. The committee further recommended that | ^respondent be placed on probation for two years beginning with the issuance of the court’s final order, subject to conditions.

The ODC filed an objection to the hearing committee’s report and recommendation, stating that the recommended sanction was unduly lenient.

Disciplinary Board Recommendation

After reviewing these consolidated matters, the disciplinary board found that the hearing committee’s factual findings of misconduct are supported by respondent’s stipulations and/or by the documentary evidence submitted in support of the allegations. Therefore, the board adopted the committee’s findings of misconduct. The board noted that the admitted misconduct includes conviction of a felony for stealing client funds, numerous instances of neglect, including failure to attend his client’s criminal trial, resulting in a mistrial, trust account violations, failure to communicate, failure to return client files, misrepresentation and dishonesty, and failure to cooperate with the ODC in its investigation.

The board determined that respondent knowingly and intentionally violated duties owed to his clients, the legal system, the legal profession, and the public. His conduct caused serious and/or potentially serious harm to his clients, the legal system, the legal profession, and the public.

1 iSThe board agreed with the aggravating and mitigating factors found by the committee. The board also agreed with the committee that the baseline sanction is permanent disbarment. Although a downward deviation is appropriate given the mitigating factors, the board determined that the committee’s proposed one-year suspension is unduly lenient because respondent has not yet made complete restitution and, thus, should be required to petition for reinstatement.

After further considering this court’s prior jurisprudence involving similar misconduct, the board recommended that respondent be suspended from the practice of law for three years, retroactive to the date of his interim suspension. The board also recommended that respondent be ordered to make restitution to the parties to whom restitution remains incomplete. Four board members dissented and would recommend disbarment.

Although neither respondent nor the ODC filed an objection to the board’s recommendation, we directed the parties to submit briefs addressing the issue of the appropriate sanction under the facts of this ease. Both parties 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. While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the | |fimanifest error standard is applicable to the committee’s factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

In this matter, respondent stipulated to numerous facts, which facts are supported by the record. The record further supports respondent’s admitted violations of the Buies of Professional Conduct as set forth in the stipulation of facts.

Respondent did not stipulate to any facts or rule violations in the Bracken, Hathorn, and Guarisco matters. However, the record and respondent’s testimony at the formal hearing indicate that he violated Rules 1.2(a), 1.3, 1.4, 1.16(a), 1.16(d), 3.2, 8.1(c), 8.4(a), and 8.4(c) of the Rules of Professional Conduct in the Bracken matter and violated Rules 1.15(a), 1.15(b), 8.4(a), and 8.4(c) of the Rules of Professional Conduct in the Guarisco matter. With respect to the Hathorn matter, on August 15, 2005, respondent wrote to Ms. Hathorn, stating, “Please accept my humblest apology for my actions in handling your cases. The way in which I handled them was unprofessional and unethical ... Also, I hope to develop a repayment plan with approval from the State Bar Ass’n that will make you whole again.” Respondent’s admissions in his letter to Ms. Hat-horn, along with the alleged facts in this count, indicate that respondent violated Rules 1.3, 1.4, and 8.4(a) of the Rules of Professional Conduct.

In all, respondent neglected legal matters, failed to communicate with clients, failed to account for or refund unearned fees, failed to timely remit funds to third-party medical providers, converted client funds to his own use, failed to properly supervise his non-lawyer assistants, was twice held in contempt of court, was convicted of felony theft, and failed to cooperate with the ODC in its investigations.

117Having 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 his clients, the legal system, the legal profession, and the public. He caused actual serious harm to numerous clients and third-party medical providers, as well as to the legal system and the legal profession. The baseline sanction for this type of misconduct is disbarment.

The record supports the following aggravating factors: a dishonest or selfish motive, a pattern of misconduct, multiple offenses, vulnerability of the victims, and illegal conduct, including that involving the use of controlled substances. As mitigating factors, we recognize the absence of a prior disciplinary record, a cooperative attitude toward the proceedings, character and reputation, delay in the disciplinary proceedings, imposition of other penalties or sanctions, and remorse. Additionally, the record reveals that respondent’s drug addiction played a large role in his misconduct, and that respondent has addressed his addiction through a sustained period of successful rehabilitation.

While we acknowledge the considerable mitigating circumstances in this case, we cannot ignore the sheer volume of harm visited by respondent upon his clients and third parties. The egregious facts of this case simply will not allow us to deviate | isbelow the baseline penalty of disbarment. Accordingly, we must disbar respondent retroactive to the date of his interim suspension.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record and the briefs filed by the parties, it is ordered that Michael Wayne McCla-nahan, Louisiana Bar Roll number 21348, be and he hereby is disbarred, retroactive to November 5, 1997, the date of his interim suspension. His name shall be stricken from the roll of attorneys and his license to practice law in the State of Louisiana shall be revoked. It is further ordered that respondent shall pay full restitution to his victims. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

       Chief Justice Kimball not participating in the opinion.

      . The non-lawyer assistant informed the ODC that he inadvertently provided respondent with a check from (lie client trust account instead of the operating account.

      . The record indicates that respondent was removed as Ms. Oxner's indigent defense counsel in 1994, and her case was subsequently delayed almost three years. When Ms. Oxner was re-arrested on the same charges in March 1997, Ms. Craig hired respondent to represent her.

      .Respondent testified at the formal hearing that he stole Mr. Bracken's money to “support my habit.” Mr. Bracken has a $9,000 judgment against respondent and is currently garnishing his wages.

      . Ms. Williams indicated that respondent refunded $100 without explanation.

      . The formal charges alleged, but respondent did not stipulate, that the settlement proceeds totaled $11,957.

      . The formal charges alleged, but respondent did not stipulate, that Ms. Myles terminated respondent's services in the three matters via letter dated August 14, 1998.
      Respondent testified at the formal hearing that he owes Ms. Myles approximately $10,000.

      . During his incarceration, respondent was determined to be affected by chemical dependency and was ordered to undergo rehabilitation at the state's Blue Waters substance abuse treatment program.

      . The committee did not make factual findings regarding the counts of misconduct that were not included in the stipulation.

      . Insofar as the committee assessed the baseline sanction at permanent disbarment, it is incorrect. Permanent disbarment only affects the right of a disbarred lawyer to seek readmission. See In re: Laudumiey & Mann, 03-0234 (La.6/27/03), 849 So.2d 515. Because the most serious sanction available under Supreme Court Rule XIX (and under the ABA Standards) is disbarment, the applicable baseline sanction in this case is disbarment.

      .Respondent introduced documentary evidence at the hearing showing that he has paid restitution as follows: 1) $2,000 paid to Dr. Charles Guarisco on December 27, 2006; 2) $475 paid to Mary Williams on December 22, 2006; 3) $1,200 paid to Carol Collins on December 22, 2006; 4) $500 paid to Carol Collins’ mechanic on December 28, 2006; and 5) $1,000 paid to Uptown Physical Medicine and Rehabilitation on December 27, 2006. Respondent testified that he still owes restitution to Dr. Perniciaro (with whom he has worked out a repayment plan) and Mr. Bracken totaling approximately $20,000. He also still owes restitution to Ms. Myles and to Ms. Craig, whom he has been unable to contact.

      . The committee proposed that respondent make full restitution during the probationary period; that he enroll in and abide by a LAP contract; and that he secure the assistance of a mentoring attorney for two years.

      . The board made one correction, stating that respondent’s stipulation does not admit a Rule 8.3(a) violation, and there is no evidence or argument presented by the ODC in support of this allegation. Accordingly, the board dismissed the Rule 8.3(a) charge as abandoned by the ODC. However, a review of the stipulation reveals that, in the Welch matter, respondent did, in fact, admit to a violation of Rule 8.3(a).

      . Like the committee, the board did not make factual findings regarding the counts of misconduct that were not included in the stipulation.

      . As discussed in connection with the hearing committee's report, the baseline sanction is correctly said to be disbarment. See note 9, supra.

      . We recognize that from respondent’s point of view, the practical distinction between a three-year suspension and disbarment is somewhat academic under the facts of this case. Because respondent has been on interim suspension for over ten years, he would be immediately eligible to seek reinstatement/readmission in either event. Nonetheless, such considerations do not impact our decision, which is based on the facts of the case and prior jurisprudence.