author: RAMIREZ, C.J.

text:
    Gladys HIDELGO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-2165.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 2009.
    Rehearing Denied Jan. 20, 2010.
    Gustavo J. Garcia-Montes, Miami, for appellant.
    Bill McCollum, Attorney General, and Forrest L. Andrews, Jr., Assistant Attorney General, for appellee.
    Before RAMIREZ, C.J., and SALTER, J., and SCHWARTZ, Senior Judge.
   RAMIREZ, C.J.

Gladys Hidalgo appeals the denial of her motion to suppress cocaine she ostensibly abandoned after she was illegally detained. Because we agree with Hidalgo that she was illegally detained, we reverse.

On March 5, 2006, at approximately 9:30 p.m., Officer Richard Maharaj was on road patrol on route 836. He testified that he observed a Lincoln Navigator switch lanes causing the driver of another vehicle to slam on the brakes and honk the horn. Officer Carlos Fernandez was behind Officer Maharaj when he activated his emergency lights. The two officers then conducted a traffic stop. Officer Ma-haraj approached the driver while Officer Fernandez went to the passenger side. Roberto Contreras was the driver and Hi-dalgo the front seat passenger. Hidalgo’s twelve year old daughter was in the back seat.

Officer Maharaj testified that he was not aware that a DEA agent had requested the Miami-Dade Police Department to develop probable cause and stop the Navigator. According to Officer Maharaj, while he was in the process of obtaining Contreras’ identification information, Hidalgo tried to answer questions for him and was talking to Contreras in Spanish. This raised a safety concern in Officer Maha-raj’s mind because he did not speak Spanish and did not know what Hidalgo was telling Contreras.

Officer Maharaj then directed his questions towards Hidalgo. Once he began talking to her, he noticed that her voice changed, she slurred, and she became nervous. When asked what the problem was, she responded that “cops make her nervous” because she had previously been arrested for drugs. Officer Maharaj then asked Contreras and Hidalgo: “Do you have a problem if we look into the vehicle?” She said no. He then asked the driver: “Do you have a problem if we look into the vehicle?” He also said no.

At this point, Officer Fernandez asked Hidalgo to get out of the car, patted her down and handcuffed her. A more intrusive search of Hidalgo was later conducted by a female sergeant when she arrived. Hidalgo was taken to Officer Fernandez’s police vehicle, sat in the back and the door was closed. Officer Fernandez admitted that Hidalgo was not free to leave.

Contreras was also handcuffed and placed in the back of Officer Maharaj’s vehicle. Hidalgo’s daughter was allowed to remain in the Navigator while the officers conducted part of their search, but when other officers arrived at the scene, she too was removed from the car and placed in another police vehicle. During the next 15 to 25 minutes, the officers searched the Navigator. At one point, a canine unit arrived at the scene, as well as DEA Special Agent DeLeo.

The officers did not find any contraband in the Navigator. They then removed the handcuffs from Contreras and Hidalgo. Contreras was issued a citation and allowed to leave. When Officer Fernandez checked the back seat of his police vehicle, he found a plastic bag containing cocaine. The officers then drove after the Navigator and arrested Hidalgo. The trial court denied Hidalgo’s motion to suppress, relying primarily on State v. Cromatie, 668 So.2d 1075 (Fla. 2d DCA 1996).

Review of a motion to suppress is a mixed question of law and fact. The standard of review applicable to the factual findings is whether competent substantial evidence supports those findings. The standard of review applicable to the trial court’s application of the law to the factual findings is de novo. Johnson v. State, 995 So.2d 1011, 1013 (Fla. 1st DCA 2008).

We conclude that the trial court properly found that this was a legitimate traffic stop. The court agreed with the State that Hidalgo consented to the search. The United States Supreme Court has held that “[wjhen a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given.” Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797, (1968); see also Davis v. State, 594 So.2d 264, 266 (Fla.1992) (stating voluntary consent is a prerequisite for a proper constitutional search). The only evidence of consent is the testimony of Officer Maharaj asking the two adult occupants if they had “a problem if we look into the vehicle?” We will assume that this question and answer was sufficient for the trial court to find that the traffic stop was properly extended by consent of the two occupants. The problem with the trial court’s analysis is that no contraband was discovered as a result of the search of the vehicle. Assuming that the consent extended to a search of the persons, this too yielded no contraband.

The State argues that the contraband was discovered as a result of abandonment after Hidalgo was handcuffed and placed in the back of a police vehicle for almost thirty minutes, while she was separated from her daughter and the driver of the car, Contreras. The State introduced no evidence that Hidalgo consented to being handcuffed and placed by herself in the back of a police vehicle for a lengthy period of time. Even if we were to assume that “not having a problem” with a search of the Navigator extended to Hidalgo’s temporary detention, as the court stated in Johnson, supra, “it would be unreasonable to assume consent continues indefinitely, no matter what action law enforcement takes.” 995 So.2d at 1014. Unlike in Cro-matie, where the two occupants exited the vehicle and stood nearby with back-up officers, Hidalgo was treated no differently than someone under arrest. In fact, Officer Fernandez candidly admitted that Hi-dalgo was not free to leave.

The Cromatie case relied on Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981) for three identifiable law enforcement interests justifying limited detention of occupants during search of premises pursuant to valid search warrant: (1) preventing flight in event incriminating evidence found; (2) minimizing risk of harm both to officers and occupants; and (3) orderly completion of search. In our case, the danger of flight at 9:30 p.m. in the middle of a busy highway like route 836 is ludicrous. But all three interests could have been achieved as in Cromatie by having the occupants stand nearby with back-up officers. We know that in addition to Officer Fernandez and Maharaj, two sergeants, a canine unit and a DEA Special Agent were on the scene.

The State attempts to justify the use of handcuffs by citing Reynolds v. State, 592 So.2d 1082 (Fla.1992), which stated:

The United States Supreme Court has refused to apply a bright-line test for determining what police action is permissible in an investigatory stop. Rather, each case tons on its particular facts. The appropriate question in each case is whether the action was reasonable under the circumstances. This requires a twofold inquiry — whether the action was justified at its inception and whether it was reasonably related in scope to the circumstances which justified the interference in the first place. Courts have generally upheld the use of handcuffs in the context of a Terry stop where it was reasonably necessary to protect the officers’ safety or to thwart a suspect’s attempt to flee.
We do not suggest that police may routinely handcuff suspects in order to conduct an investigative stop. Whether such action is appropriate depends on whether it is a reasonable response to the demands of the situation. When such restraint is used in the course of an investigative detention, it must be temporary and last no longer than necessary to effectuate the purpose of the stop. The methods employed must be the least intrusive means reasonably available to verify or dispel in a short period of time the officers’ suspicions that the suspect may be armed and dangerous .... Absent other threatening circumstances, once the pat-down reveals the absence of weapons the handcuffs should be removed.

Id. at 1084-85 (citations omitted) (emphasis added).

Thus, we conclude that the trial court failed to analyze the legality of Hidalgo’s seizure, which allegedly resulted in the abandonment of the cocaine. We hold that a valid consent to search a vehicle does not authorize law enforcement officers to order the occupants out of the vehicle and place them in handcuffs for a lengthy period of time in the back of a police vehicle.

Reversed and remanded.

      . Appellant’s name is interchangeably spelled Hidalgo and Hidelgo. We will use Hidalgo.


source: Caselaw Access Project

author: SUAREZ, J.

license: Public Domain

text:
    BANNER SUPPLY CO., Petitioner, v. Jason HARRELL and Melissa Harrell, etc., Respondents.
    No. 3D09-2165.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 2009.
    Adorno & Yoss, and Jack R. Reiter and Jordan S. Kosches, Miami, for petitioner.
    Podhurst Orseck, and Stephen F. Ro-senthal, Robert C. Josefsberg, Victor M. Diaz, Jr., and Alexander Rundlet, Miami; Mark Blumstein, Aventura; Higer Lichter & Givner, and David H. Lichter, Clear-water and J. Joseph Givner, for respondents.

      Before SUAREZ and SALTER, JJ., and SCHWARTZ, Senior Judge.
   SUAREZ, J.

Banner Supply Company (“Banner”) petitions for a writ of certiorari to quash the trial court’s order denying Banner’s motion to abate or, in the alternative, for a writ of mandamus directing the trial court to fulfill a mandatory duty to abate the proceedings below. We deny the petition for certiorari as well as the alternative petition for a writ of mandamus.

The claimants below (“Harrells”) filed the initial complaint on February 3, 2009, as a putative class action suit seeking damages allegedly arising out of construction using defective drywall imported from China. The initial complaint asserted claims for personal injury due to alleged defective drywall. It did not assert a claim for property damage due to the defective drywall. Although Chapter 558 does not apply to claims for personal injury, the Har-rells simultaneously served Banner with a letter advising it of notice of claim under Chapter 558 of the Florida Statutes. On March 17, 2009, the Harrells filed an amended complaint asserting a claim for property damage due to the alleged defective drywall, to which Chapter 558 does apply. Banner Supply filed a motion to abate pursuant to Chapter 558, which was denied by the trial court judge. Based on the facts of this case, we adopt the trial court’s reasoning and deny the petition for certiorari.

The record shows that the Harrells failed to follow the statutory requirements of notice and opportunity to inspect prior to filing suit. They gave separate “notice” at time of filing the initial complaint, which claims were not subject to Chapter 558. Although the Harrells invited inspection, Banner Supply did nothing to attempt to comply with the noticed statute and to inspect the property. Forty-two days later, the Harrells amended their initial complaint to include a claim for property damages due to the alleged defective dry wall thereby invoking Chapter 558, but without giving the statutorily required sixty days notice prior to filing the amended complaint. Banner Supply, again, did nothing to comply with Chapter 558 in response to the amended complaint. It did not seek to inspect or negotiate a resolution. All it did was file a motion to abate and wait until the hearing. By the time Banner’s motion to abate was heard by the trial court on July 1, 2009, more than sixty days had passed since the amended complaint was filed and the trial court determined, and we agree, that abatement would have been futile. Banner Supply had the opportunity to comply with the requirements of Chapter 558 and was given the opportunity by the Harrells to timely inspect and it chose not to do so. Abatement, at that point, would have been futile. See generally Angrand v. Fox, 552 So.2d 1113 (Fla. 3d DCA 1989). Petition for certiorari denied.

      . The Harrells served the initial Complaint on several entities, alleging breach of contract, express warranty and habitability, violation of the Magnuson-Moss Warranty Act and Florida's Deceptive and Unfair Trade Practices Act, strict product liability, and negligence. Banner, one of the named defendants, is the supplier of the allegedly defective drywall.

      . See §§ 558.001-005, Fla. Stat. (2008) (controlling litigation arising from construction defects).

      . See § 558.003, Fla. Stat. (2008) (“A claimant may not file an action subject to this chapter without first complying with the requirements of this chapter. If a claimant files an action alleging a construction defect without first complying with the requirements of this chapter, on timely motion by a party to the action the court shall stay the action, without prejudice, and the action may not proceed until the claimant has complied with such requirements. The notice requirement is not intended to interfere with an owner's ability to complete a project that has not been substantially completed. The notice is not required for a project that has not reached the stage of completion of the building or improvement.'').

      .None of the statutory time and notice requirements were met by the parties involved. See generally §§ 558.004(1) — (15) Fla. Stat., (2008) ("(1) In actions brought alleging a construction defect, the claimant shall, at least 60 days before filing any action, ... serve written notice of claim on the contractor, subcontractor, supplier, or design professional, as applicable, which notice shall refer to this chapter....; (2) Within 30 days after service of the notice of claim, ... the person served with the notice of claim under subsection (1) is entitled to perform a reasonable inspection of the property or of each unit subject to the claim to assess each alleged construction defect.... ;(3) Within 10 days after service of the notice of claim, ... the person served with notice under subsection (1) may serve a copy of the notice of claim to each contractor, subcontractor, supplier, or design professional whom it reasonably believes is responsible for each defect specified in the notice of claim and shall note the specific defect for which it believes the particular contractor, subcontractor, supplier, or design professional is responsible. ...; (4) Within 15 days after service of a copy of the notice of claim pursuant to subsection (3), ... the contractor, subcontractor, supplier, or design professional must serve a written response to the person who served a copy of the notice of claim. The written response shall include a report, if any, of the scope of any inspection of the property, the findings and results of the inspection, a statement of whether the contractor, subcontractor, supplier, or design professional is willing to make repairs to the property or whether such claim is disputed, a description of any repairs they are willing to make to remedy the alleged construction defect, and a timetable for the completion of such repairs.”).[e.s.]

      . The contractor (not Banner) failed to correctly set forth notice to the consumer in its contract pursuant to § 558.005(2)(b), Fla. Stat. (2008), which states that *‘[f]or a claim of a construction defect pursuant to contracts for improvement entered into as described in this subsection, the following applicable notices are required: ... (b) Between October 1, 2006, and September 30, 2009, which contract contains the notice set forth in paragraph (3)(b) and is conspicuously set forth in capitalized letters."

      . We do not reach the issue of whether Chapter 558 even applies to the current case.


author:
PER CURIAM.
     VICTORY, J., KNOLL, J,

text:
    In re Randy J. UNGAR.
    No. 2009-B-0573.
    Supreme Court of Louisiana.
    Oct. 30, 2009.
    Charles Bennett Plattsmier, Baton Rouge, Robert Samuel Kennedy, Jr., Shreveport, for applicant.
    Pascal F. Calogero, Jr., Dane S. Ciolino; Perry, Atkinson, Balhoff, Mengis & Burns, LLC, John W. Perry, Jr., Daniel Joseph Balhoff, Baton Rouge; Stanley, Reuter, Ross, Thornton & Alford, LLC, Richard Charles Stanley, New Orleans, Vicki Ann Elmer; Ungar & Byrne, APLC, Randy J. Ungar, for respondent.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

| iThis disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Randy J. Ungar, an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

In 1997, Kim Bullock Cutrera and John Meehan retained respondent to represent them in a putative class action against The Equitable Life Assurance Society of the United States (“the Equitable”). This action, known as the Duncan litigation, was pending in Orleans Civil District Court and alleged breach of contract, fraud, and deceptive practices by the Equitable and its agents in the marketing and sale of so-called “vanishing premium” life insurance policies. Respondent accepted the representation of Mrs. Cutrera and Mr. Meehan on a contingency fee basis. In connection with the representation, respondent associated with the Houston law firm of O’Quinn & Laminack (“O’Quinn”), which in turn associated the New York City law firm of Milberg, Weiss, Bershad, Hynes & Lerach (“Milberg Weiss”). Respondent had an agreement with O’Quinn to share any attorney’s fees generated from the Duncan litigation “65% to your firm [O’Quinn] and 35% to Randy J. Ungar & Associates.”

|2In December 1999, the trial court issued a ruling denying plaintiffs’ motion to certify the Duncan class. Plaintiffs appealed this ruling to the Fourth Circuit Court of Appeal. While the appeal was pending, respondent entered into negotiations with the Equitable’s local counsel to settle Duncan. Mrs. Cutrera and Mr. Meehan were not aware of these efforts. When respondent’s settlement attempts did not prove successful, Milberg Weiss began negotiating directly with the Equitable’s national counsel in New York in the latter part of 2000. These settlement negotiations covered Duncan as well as two similar cases pending against the Equitable in courts in New York.

In October 2000, the parties reached a “global settlement” in which the Equitable agreed to pay $15 million to settle the three cases pending against it. The global settlement specified that the Equitable had no responsibility to divide the settlement funds among the plaintiffs or the lawyers. Rather, that task fell to the plaintiffs’ counsel. As documented in correspondence subsequently circulated among the three plaintiffs’ firms, plaintiffs’ counsel proposed to allocate $4 million of the $15 million settlement to clients’ claims, with the remaining $11 million to be divided among the lawyers.

The global settlement contemplated the execution of two documents: first, a “Settlement Agreement,” which was to be executed by the attorneys, and second, a “General Release,” which was to be executed by the individual clients in compromise of them claims against the Equitable. The Release did not specify or disclose the terms of the global settlement, nor did it specify the amount of the settlement the individual client would receive or the amount of legal fees charged to the client. |sRather, only the Settlement Agreement executed by the attorneys specified the amount of the $15 million global settlement. Respondent received the Settlement Agreement no later than December 13, 2000, but he did not give a copy of it to his clients, Mrs. Cutrera and Mr. Meehan.

Only after the global settlement was negotiated did the plaintiffs’ lawyers set out to contact their clients to obtain their consent to the proposed settlement. In December 2000, O’Quinn attorney Angie Lev-inthal called Mrs. Cutrera to offer her the sum of $100,000 to settle her claims against the Equitable. Mrs. Cutrera asked Ms. Levinthal for details concerning the settlement, including the amounts the other plaintiffs would be receiving; however, Ms. Levinthal said she could not disclose this information because it was confidential. Mrs. Cutrera also inquired how much the plaintiffs’ lawyers were going to obtain from the settlement, but Ms. Levin-thal merely advised, falsely, that the lawyers were “taking a loss” on the case. Finally, Mrs. Cutrera expressed concern whether any attorney’s fees would be taken from her portion of the settlement. In response, Ms. Levinthal told Mrs. Cutrera that respondent’s contingency fees were not being deducted from her recovery but were being paid directly by the Equitable. At Ms. Levinthal’s request, respondent wrote to Mrs. Cutrera on December 21, 2000 to confirm this advice, stating:

No additional attorneys fee will be charged to you out of your settlement as my fees will be paid directly by the defendant. You are relieved of your contingency fee with Randy J. Ungar & Associates.

Notably, the letter did not advise Mrs. Cutrera that respondent would collect an undisclosed amount of fees out of the $11 million portion of the settlement allocated by plaintiffs’ counsel as attorney’s fees. Moreover, the letter did not provide Mrs. Cutrera with any details of the Settlement Agreement.

|4On December 7, 2000, Milberg Weiss lawyers filed a motion to dismiss the Dim-can lawsuit in Orleans Civil District Court. The court thereafter ordered the case dismissed with prejudice. At the time of the dismissal, neither Mrs. Cutrera nor Mr. Meehan had (1) authorized a settlement, (2) received any details of the settlement, (3) signed any release, or (4) been advised that their lawsuit had been dismissed.

In early January 2001, on instructions from the Milberg Weiss lawyers, Ms. Lev-inthal forwarded the Release to Mrs. Cutr-era and Mr. Meehan. Mr. Meehan brought the Release to respondent’s office, seeking details of the settlement and a copy of the Settlement Agreement. Respondent promised his client he would get the requested information, but he never did. He further advised his client that if he did not sign the Release, he would get nothing from the settlement. Mr. Meehan was ultimately able to obtain a copy of the Settlement Agreement from Ms. Levin-thal. He then signed the Release, settling his claim against the Equitable for $170,000.

For her part, when Mrs. Cutrera discovered that the Release required her to certify that she had been provided with details of the settlement, when in fact she had not, she refused to sign the Release. In January 2001, Mrs. Cutrera hired attorney Thomas Cortazzo to represent her in connection with the Equitable settlement. On January 25, 2001, Mr. Cortazzo sent a letter to respondent and to the lawyers at | sO’Quinn and Milberg Weiss in which he requested details of the settlement in order to allow Mrs. Cutrera to evaluate the $100,000 settlement offer. Mr. Cortazzo also specifically requested a copy of the “Settlement Agreement, all exhibits thereto, and any other related documents.”

After receiving Mr. Cortazzo’s letter, respondent retained New Orleans attorney Richard Stanley as his “ethics counsel” to advise him regarding his obligations in this matter. Neither respondent nor Mr. Stanley ever provided Mr. Cortazzo with a copy of the Settlement Agreement, which as previously stated had been a part of respondent’s file since December 2000. However, upon Mr. Stanley’s suggestion, respondent filed on Mrs. Cutrera’s behalf a motion to set aside the order of dismissal in the Duncan case which the Milberg Weiss lawyers had previously obtained in Orleans Civil District Court. Respondent also decided to waive his fee interest in the Duncan litigation.

In March 2001, Mr. Cortazzo met with respondent, Mr. O’Quinn, and Mr. Weiss and learned for the first time that there was a firm agreement to settle the litigation against the Equitable. In April 2001, Mr. Cortazzo learned from Milberg Weiss that the settlement was for $15 million and that the plaintiffs’ counsel were proposing to retain $11,460,000 as fees and costs.

With the assistance of Mr. Cortazzo, Mrs. Cutrera ultimately agreed to settle her claim against the Equitable for $550,000. Of this sum, Mrs. Cutrera paid $90,000 in legal fees to Mr. Cortazzo.

In 2002, Mrs. Cutrera and Mr. Meehan filed legal malpractice suits against respondent, O’Quinn, and Milberg Weiss. The suits were subsequently settled; Mrs. | (¡Cutrera received a $400,000 settlement and Mr. Meehan received a $335,000 settlement. Respondent did not admit liability in connection with the settlements.

DISCIPLINARY PROCEEDINGS

In 2001, both Mrs. Cutrera and Mr. Meehan filed complaints against respondent with the ODC. In November 2006, the ODC filed one count of formal charges against respondent, alleging that his conduct as set forth above violated Rules 1.2 (scope of the representation), 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.5(a) (a lawyer shall not make an agreement for, charge, or collect an unreasonable fee), 1.5(c) upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement showing the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination), 1.8(a) (a lawyer shall not knowingly acquire an ownership, possessory, security, or other pecuniary interest adverse to a client), 1.8(f) (a lawyer shall not accept compensation for representing a client from one other than the client), 1.8(g) (a lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients unless each client consents after consultation, including disclosure of the existence and nature of all the claims involved and of the participation of each person in the settlement), 1.8(i) (a lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client), 1.8(k) (a lawyer shall not solicit or obtain a power of attorney or mandate from a client which would authorize the attorney, without first 17obtaining the client’s informed consent to settle, to enter into a binding settlement agreement on the client’s behalf or to execute on behalf of the client any settlement or release documents), 8.4(a) (violation of the Rules of Professional Conduct), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation) of the Rules of Professional Conduct.

Respondent answered the formal charges and denied any misconduct. He contended that he did not participate in the negotiations of the aggregate settlement of the litigation against the Equitable. Respondent suggested that there was a division of responsibility among his co-counsel, pursuant to which that responsibility fell to Milberg Weiss. At some point, respondent was told, without being shown any documents, that a $15 million settlement had been reached. Respondent maintained, however, that he was never privy to the proposed distribution of settlement funds between the clients and the lawyers, or how and by whom the decisions regarding the distribution would be made. Therefore, respondent contended that he did not refuse to share that information with his clients. Moreover, again referencing the division of responsibility among the plaintiffs’ counsel, respondent noted the O’Quinn firm served as the clients’ primary contact. On the few occasions when inquiries were directed to respondent, he suggested that he responded to them timely and to the best of his ability. Regarding the dismissal of Duncan, respondent stated that he was not consulted regarding the filing of the motion to dismiss and had no knowledge that it would be filed. Respondent later learned that Mrs. Cutrera and Mr. Meehan, at the time of the filing of the motion to dismiss, had not authorized the settlement, had not signed the releases sent to them by O’Quinn, and had not been informed of the terms | sof the settlement or of the fact that them claims were being dismissed. However, respondent maintained that he was unaware of these circumstances until after Duncan had been dismissed by the trial court. Respondent noted that when he was informed of the “infirmities with the settlement,” he promptly took remedial measures to protect the interests of his clients by filing a motion to set aside the dismissal in Duncan. Based on this reasoning, respondent denied that he violated the Rules of Professional Conduct as charged in the formal charges.

Hearing Committee Report

This matter proceeded to a formal hearing on the merits. After considering the evidence and testimony presented at the hearing, the hearing committee made the following findings:

Respondent maintains that after the denial of class certification, the O’Quinn and Milberg Weiss firms made all of the decisions and confected the settlement of the case, and that Mrs. Cutrera and Mr. Mee-han were well aware that O’Quinn and Milberg Weiss were their attorneys post-certification hearing. Respondent therefore submits that he cannot be held ethically liable for the alleged misconduct of the out-of-state lawyers who were associated on the case. He avers that the Rules of Professional Conduct do not impose such a duty on him.

The committee found that respondent’s restriction of his representation to the class certification heaihng would not technically be a violation of Rule 1.2 of the Rules of Professional Conduct, as the retainer agreement signed by the clients clearly stated that respondent was under no obligation to continue the representation if the class was not certified. However, because respondent did not affirmatively or formally withdraw from the case after the certification hearing or otherwise discuss |9with or advise his clients of a change in his representation of them, the committee found it was reasonable for the clients to believe that respondent continued to represent them in all aspects of the litigation. In fact, respondent’s actions evidenced that he continued to be involved in the case. Accordingly, the committee found that respondent’s argument that he did not continue to represent the claimants after the certification hearing, and that O’Quinn and Milberg Weiss took over the case at that point, “was more a convenient shift of responsibility than was factual based on the actions of Respondent.” Moreover, the committee observed that the association of other counsel does not allow respondent to unilaterally forego or abdicate his responsibilities to his client, or that the client acquiesces in that interpretation of the contract. Therefore, the committee concluded that respondent had an obligation to keep his clients informed and to engage them in decision making.

Likewise, the committee found that respondent violated Rule 1.3 in failing to act with reasonable diligence in obtaining information about the proposed settlement to permit his clients to determine whether that was in their best interests. He also violated Rule 1.4 in failing to communicate necessary and important information to permit his clients to make informed decisions about their legal matter. Neither Mrs. Cutrera nor Mr. Meehan were advised or otherwise consulted during the settlement negotiation process, and they had absolutely no idea about what was being proposed in settlement or what the actual settlement amounted to. Although respondent characterized his participation in the settlement negotiations as “very brief negotiations that occurred in Louisiana” and stated that the local lawyers were “nothing more than conduits for communications,” the committee found that respondent signed a settlement offer, which evidenced his active participation in the | ]0settlement process. At every stage of the process, respondent’s clients should have been made aware of the specifics of the settlement offers and of the ultimate settlement of the case; indeed, the committee noted, respondent’s clients should have pre-approved the settlement.

Turning to the issue of fees, the ODC alleges that respondent violated Rule 1.5(a) by attempting to charge or collect an improper and/or excessive contingency fee. Additionally, the ODC avers that at the conclusion of Mr. Meehan’s case, respondent failed to provide his client with a ■written statement reflecting receipts and disbursements.

Mrs. Cutrera signed a 40% contingency fee agreement with respondent. Mr. Mee-han signed the same agreement but his attorney’s fees were capped at 33⅛%. However, the Equitable litigation was settled for the total sum of $15 million; the plaintiffs’ attorneys proposed that $9-10 million of this sum would be retained for attorney’s fees and nearly $2 million would be set aside for expenses. Based on these facts, the committee found that respondent attempted to secure a fee in derogation of the contingency fee contract.

The committee specifically noted that it found respondent’s defense of “ignorance and incompetence to be unsupported and simply untruthful.” In support of his case, respondent called his office assistant, Sharon Romero, to testify about how his office handled the Duncan litigation. Generally, Ms. Romero testified that after class certification was denied, all correspondence and pleadings relating to the Incase went directly to the file without respondent’s review of the documents. The committee rejected this testimony, stating:

The Committee found Ms. Romero’s testimony incredulous. Respondent would have this Committee believe that in a multi-million dollar case, in which he stood to make a substantial fee, he simply kept quiet, was not “really” consulted and would agree to whatever the O’Quinn firm deemed was fair for their team. We do not believe it and the record does not support it. We find Respondent consciously engaged in an attempt to withhold information from Cutrera and Meehan in complete derogation of their rights and in violation of the Rules of Professional Conduct.

Rather, the committee found “particularly enlightening” the testimony of attorney Thomas Cortazzo, whom Mrs. Cutrera retained after her repeated attempts to secure settlement information fell on deaf ears. On January 25, 2001, Mr. Cortazzo sent respondent, Mr. O’Quinn, and Mr. Weiss a letter questioning the settlement and requesting documents associated with the settlement. Prior to receiving Mr. Cortazzo’s letter, respondent testified that he did not know there was any problem with the case generally or with his clients. He testified that after he received the letter he began to attempt to get to the bottom of the problem. Approximately a week after Mr. Cortazzo started calling respondent, he finally spoke with him. Mr. Cortazzo reiterated his request for the information outlined in his January 25, 2001 letter. Respondent advised Mr. Cor-tazzo that he did not have the information, but would speak with the other attorneys and secure it from them.

Respondent did not provide the requested documents, but in March 2001 there was a meeting at the New Orleans Lakefront Airport with respondent, Melvyn Weiss, and John O’Quinn. Mr. Cortazzo was invited to attend. While waiting for Mr. Weiss to arrive at the airport, Mr. Cortazzo had an opportunity to speak briefly with respondent. Mr. Cortazzo re-urged his position on securing needed information and documents so that Mrs. Cutrera could make an informed decision with respect to the 112settlement offer. According to Mr. Cortazzo, respondent was “pretty adamant that [Mrs. Cutrera] should go ahead and accept the deal.” Respondent informed Mr. Cortazzo that by not signing the settlement offer, Mrs. Cutrera “was risking the deal for herself and for everyone else.”

Once Mr. Weiss arrived at the meeting, Mr. Cortazzo testified, it was simply “more of the same. They were trying to convince me that she should take the deal. And she was putting it all at risk for everyone involved.... [T]here was a lot of pressure. They were seeking to bring to bear on us to take the deal that they had offered to her.” Mr. Cortazzo testified that at no point during the meeting did respondent make a request of his co-counsel to produce the information Mrs. Cutrera had requested to determine whether the settlement was in her best interest. Mr. Cor-tazzo stated that he felt respondent did not advocate on Mrs. Cutrera’s behalf to try to get the information he had been seeking on her behalf.

The committee found this testimony by Mr. Cortazzo “illuminating and credible.” The committee observed that respondent’s role in Duncan after the class certification hearing “was far from passive.” The committee found that respondent withheld information from his clients and attempted to do so with respect to Mr. Cortazzo, all in an effort to hide the amount of the settlement and thereby charge an excessive fee.

Furthermore, as to Mr. Meehan, the committee determined respondent failed to provide him with a disbursement sheet in his contingency fee matter, a violation of Rule 1.5(c) of the Rules of Professional Conduct.

Having found that respondent participated in the settlement negotiations and the proposed client and attorney’s fee disbursement, the committee found it is clear that the proposed disbursement was contrary to the interests of Mrs. Cutrera and Mr. Meehan; that it was confected without full disclosure to the clients; that coercion was | ^employed in an attempt to get the clients to sign the Release and to accept the settlement; and that the filing of a dismissal in Duncan was not authorized by the clients, all in violation of Rules 1.8(a)(f)(g)(i)(k) of the Rules of Professional Conduct. Most certainly, respondent’s actions constituted a conflict of interest. Moreover, the committee found that respondent’s actions were deliberate and were dishonest, deceitful, and motivated by self-interest, in violation of Rules 8.4(a)(c).

The committee determined that respondent violated duties owed to his clients and to the profession, and that he acted with knowledge of his wrongdoing. His securing a fee (or attempting to secure a fee) in violation of the retainer agreement between the parties is a significant potential injury to the affected clients, to respondent’s law firm, and to the legal profession. Considering the ABA’s Standards for Imposing Lawyer Sanctions, the baseline sanction for respondent’s misconduct is suspension.

The committee found the following aggravating factors apply: a dishonest or selfish motive, vulnerability of the victim, and substantial experience in the practice of law (admitted 1975). In mitigation, the committee recognized the following factors: absence of a prior disciplinary record, good faith effort to rectify the consequences of the misconduct, and a cooperative attitude toward the disciplinary proceedings.

Considering all the circumstances, and reiterating that respondent’s conduct was intentional and not negligent, the committee recommended that respondent be suspended from the practice of law for two years.

Respondent filed an objection to the hearing committee’s report. Respondent took issue with nearly all of the committee’s findings and reiterated that the sanction in this case should not be more severe than a public reprimand.

| uDisciplinary Board Recommendation

After review, the disciplinary board found that the hearing committee’s factual findings are not manifestly erroneous and are amply supported by the record. The board agreed with the committee that respondent violated the Rules of Professional Conduct as charged in the formal charges, with some minor modifications. The board also clarified that respondent did not violate Rule 1.8(f), but is culpable for his attempt to do so relating to his efforts to steer the settlement money to the plaintiffs’ attorneys.

The board determined that respondent violated duties owed to his clients and to the profession. His conduct was knowing and intentional, and caused actual harm. Considering the ABA’s Standards for Imposing Lawyer Sanctions, the board found that the applicable baseline sanction is disbarment.

The board found the following aggravating factors apply: prior disciplinary offenses, a dishonest or selfish motive, vulnerability of the victim, and substantial experience in the practice of law. The board found the record supports no mitigating factors.

Finding that under all the circumstances, no downward deviation from the baseline sanction is warranted, a majority of the board recommended that respondent be disbarred. Two board members dissented and would recommend that respondent be suspended from the practice of law for two years, with one year deferred.

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

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: 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 anyway 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.

While the underlying facts of this case are very complex, the crux of the misconduct alleged by the ODC is that respondent intentionally withheld information from his clients regarding the Equitable settlement in order to facilitate collection of an excessive fee. By contrast, respondent blames many of the problems in this case on his out-of-state co-counsel and characterizes any failure to communicate with his clients as negligent.

As a threshold matter, we reject any attempt by respondent to deflect culpability from himself to his out-of-state co-counsel. While there is nothing inherently wrong with dividing responsibilities among co-counsel, no division of labor agreement can relieve respondent of his ethical duties and responsibilities to his clients, Mrs. Cutrera and Mr. Meehan.

| ^Turning to respondent’s actions, a critical factual question is whether respondent intentionally misled his clients concerning the existence of the Settlement Agreement. The hearing committee, which had the benefit of actually seeing and hearing the testimony of respondent and the other witnesses, concluded that respondent’s actions were intentional and deliberate. Based on our independent review of the record, we cannot say the hearing committee’s factual findings are manifestly erroneous.

In brief to this court, respondent makes much of the fact that Mrs. Cutrera did not ask him for a copy of the Settlement Agreement. However, a plain reading of Rule 1.4 makes it clear that it is incumbent upon respondent to provide relevant information to his clients; it was not his client’s duty to request it. Moreover, it is beyond dispute that such a request was made once Mrs. Cutrera retained Mr. Cortazzo to represent her, but even at this point, respondent did not turn over the Settlement Agreement, notwithstanding that it was in his file and had been there for several months.

Based on these findings, we conclude the rule violations, as found by the hearing committee and disciplinary board, are supported by the record. Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent’s actions.

In considering that issue, 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).

The misconduct in this case, which involves elements of dishonesty and self-interest, is clearly serious in nature. Further, respondent’s actions caused his clients actual harm, especially with regard to Mrs. Cutrera, who was required to retain new counsel. However, we recognize respondent eventually took some steps (admittedly belated) to minimize the harm of his actions by consulting counsel to determine his ethical duties, seeking to have the order of dismissal in Duncan set aside, and ultimately waiving his fee.

As aggravating factors, we recognize prior disciplinary offenses, a dishonest or selfish motive, vulnerability of the victim, and substantial experience in the practice of law (admitted 1975). However, these factors are counterbalanced by several mitigating factors, including a timely good faith effort to rectify the consequences of the misconduct, a cooperative attitude toward the disciplinary proceedings, delay in the disciplinary proceedings, and remorse.

Considering all the facts and circumstances of this case, we find the appropriate sanction for respondent’s misconduct is a three-year suspension from the practice of law.

| isDECREE

Upon review of the findings and recommendations of the hearing committee and the disciplinary board, and considering the record, briefs, and oral argument, it is ordered that Randy J. Ungar, Louisiana Bar Roll number 12387, be and he hereby is suspended from the practice of law for three years. 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.

JOHNSON, J., would impose disbarment.

VICTORY, J., dissents and assigns reasons.

KNOLL, J., dissents in part and assigns reasons.

VICTORY, J.,

VICTORY, J.,

dissenting.

LI dissent and would follow the Board’s recommendation that respondent be disbarred.

KNOLL, J,

concurring in part, dissenting in part.

Li agree with the majority opinion’s determination that there was no manifest error in the hearing committee’s factual findings and that the record fully supports the rule violations as found by the hearing committee and disciplinary board. However, I dissent from the imposition of a sanction less than disbarment, finding a three-year suspension makes light of the severity of this attorney’s conduct and sends the wrong message to the members of the bar and the public to whom attorneys owe a sacred trust.

Standard 4.31 of the ABA’s Standards for Imposing Lawyer Sanctions makes it clear disbarment is generally appropriate when a lawyer represents a client knowing his own interest are adverse to the client’s with the intent to benefit the lawyer or another, and causes serious or potentially serious injury to the client. Moreover, Standard 4.61 of the ABA’s Standards for Imposing Lawyer Sanctions calls for disbarment when a lawyer knowingly deceives a client with the intent to benefit the lawyer or another, and causes serious or potentially serious injury to a client.

Ungar would have us believe that after rejection of the class action certification his involvement was merely passive and that the Milberg Weiss and O’Quinn firms made all the decisions and confected the settlement agreement. Despite finding no merit to that contention, a majority of this Court nevertheless diminishes Ungar’s wrongdoing when it opts for a downward deviation from the baseline sanction. I simply cannot agree with that choice.

12After hearing live testimony and evaluating various pieces of documentary evidence, the hearing committee found Un-gar:

• had an obligation to keep his clients informed and engage them in decision-making because his association of other counsel did not allow him to unilaterally forego or abdicate his responsibilities to his clients;

• failed to communicate necessary and important information to permit his clients to make informed decisions about their legal matter, specifically with regard to the settlement offers and the ultimate settlement of the case;

• attempted to secure a fee in derogation of the contingency fee contracts he . signed with his clients;

• withheld information from his clients and attempted to hide the amount of the settlement so that he could charge an excessive fee;

• participated in settlement negotiations and proposed a disbursement to his clients that were contrary to the best interest of his clients;

• participated in the confection of a settlement without full disclosure to his clients; and,

• employed coercive tactics in an attempt to obtain his clients’ signature to a release and settlement.

Finally, and most importantly, it was found Ungar’s actions were deliberate, dishonest, deceitful, and motivated by self-interest.

“I am not bound to win, but I am bound to be true. I am not bound to succeed, but I am bound to live by the light that I have. I must stand with anybody that stands right, and stand with him while he is right, and part with him when he goes wrong.” Abraham Lincoln, Speech at Peoria, IL (Oct. 16, 1854). Ungar failed to heed this sage advice — instead of divulging the terms of the settlement agreement and | .-¡disassociating himself from the Milberg Weiss and O’Quinn firms, he opted to leave his clients in the dark as he was blinded by the lucre that was almost certain to be his. As the record shows, Ungar, fully aware of the existence of the contingent fee contracts he entered into and the terms of the settlement agreement, continued to hide the pea as if this was nothing more than a shell game. Moreover, Ungar went so far as to attempt to have his clients sign release documents in which they were required to certify they had been provided the details of the settlement. “[T]he love of property and a consciousness of right or wrong have conflicting places ... which often make a man’s course seem crook[ed,] his conduct a riddle.” Abraham Lincoln, Speech at Hartford, Connecticut (March 5, 1860). Significantly, Ungar’s conduct was not self-reported. Rather, his conduct mirrors the classical conduct of one “getting caught with his hand in the cookie jar.” Although Ungar did not ultimately receive a legal fee, a course of action that only developed after Mrs. Cutrera retained Thomas Cortazzo as independent counsel and Ungar retained an “ethics counsel” to advise him, the course of Ungar’s conduct speaks volumes and further highlights the obvious — Ungar’s paramount concern was not the representation of his clients, but an attempt to secure an ill-contrived fee.

Most telling in this regard was the March 2001 meeting at the New Orleans Lakefront Airport which Ungar, Melvyn Weiss, John O’Quinn, and Cortazzo attended after he had retained an “ethics counsel.” Despite Cortazzo’s continued attempts to receive settlement information, Ungar persisted in his request that Mrs. Cutrera should accept the settlement, all to the detriment of Mrs. Cutrera, who was denied the very tool needed for her to properly evaluate the settlement offer. Clearly, Ungar’s deceptive conduct at this meeting highlights the fact he chose to advocate against his client.

|4It gives me great pause to think what would have happened if Ungar’s roadblocks to truth had been successful and Mrs. Cutrera had simply acquiesced to Ungar’s self-motivated and deceptive counsel to sign the release. Had this happened, Ungar’s egregious conduct would have been swept under the carpet and he would have been free to use his license to practice law to feather his own nest to the detriment of a future, unsuspecting public. Ungar’s use of his license to practice law in this manner causes great harm to the legal profession and the public. Such questionable conduct should neither be condoned nor tolerated. Moreover, Un-gar’s conduct causes the public to harbor a real disdain for the legal profession and forever tarnishes the legal profession. Abraham Lincoln once said, “[Rjesolve to be honest at all events; and if in your own judgment you cannot be an honest lawyer, resolve to be honest without being a lawyer.” Abraham Lincoln, Notes for a Law Lecture (July 1,1850).

I find Standards 4.31 and 4.61 of the ABA Standards for Imposing Lawyer Sanctions particularly applicable to the present case. For these reasons, I find Ungar’s disbarment is the baseline standard from which I find no downward deviation merited. Rather, I find instead of considering a downward deviation, we should be debating whether permanent disbarment is merited.

       Judge Benjamin Jones, of the Fourth Judicial District Court, assigned as Justice Pro Tem-pore, participating in the decision.

      . The retainer agreements that Mrs. Cutrera and Mr. Meehan signed with respondent each contained a provision stating "that should any court ever determine that this claim ought not proceed as a class action, that ATTORNEY has no obligation to prosecute CLIENT'S claim in an individual action.” However, both clients testified that they received no indication from respondent that he intended to withdraw from their representation following the trial court's December 1999 ruling.

      . Respondent was provided with a copy of the dismissal order but he testified that he did not read it before it was placed in the file. He further testified that he did not learn of the dismissal until his “ethics counsel,” Richard Stanley, told him about it in February 2001.

      . In pertinent part, the Release provided: I represent and warrant that I have had a full opportunity to obtain, and have in fact obtained, the advice of my independent counsel with respect to the Settlement Agreement and this General Release. My independent counsel has fully apprised me of the terms, conditions and effect of the Settlement Agreement I am entering into with Equitable. I fully understand and agree to be bound by all of the terms of the Settlement Agreement. I have expressly authorized my counsel to sign the Settlement Agreement on my behalf, and by such execution, to bind me to the terms thereof.

      . Mrs. Cutrera did not discharge respondent when she retained Mr. Cortazzo.

      . Respondent testified that he did not realize he had the Settlement Agreement in his file. Mr. Stanley testified that he took respondent at his word when respondent told him that he did not have the information Mr. Cortazzo was looking for. Mr. Stanley further testified that he did not ask respondent specifically whether he had a copy of the Settlement Agreement, nor did he independently check respondent's file.

      .Mrs. Cutrera and Mr. Meehan also filed disciplinary complaints against the lawyers from O'Quinn; however, the disciplinary agency in Texas dismissed the complaints without action. In addition, Mrs. Cutrera filed a complaint in New York against the lawyers from Milberg Weiss, but this complaint was likewise dismissed.

      . The formal charges also alleged that respondent violated Rule 3.3 (candor toward the tribunal) by filing a pleading in the trial court “after being discharged by his client" in which he made a false representation of material fact, i.e., "his current representation of Klim Cutrera.” However, this charge was withdrawn by the ODC during the formal hearing.

      . In May 2000, Gene Fendler, local counsel for the Equitable, wrote to respondent and proposed the settlement of the Duncan litigation, based upon the value of each plaintiff's policy, the premiums paid, the policy death benefit, and similar parameters. On July 25, 2000, respondent submitted a counteroffer to Mr. Fendler in which he proposed that his clients should each receive the actual face amounts of their respective life insurance policies. Respondent also sought attorney's fees of $2 million and costs of $962,062.25.

      . Respondent has been admonished on three prior occasions, two of which relate to some of the very types of misconduct he committed in this case. In 2000, respondent consented to an admonition for failing to provide disbursement sheets to his clients at the time of settlement. In 1997, respondent was admonished for misconduct in the first putative class action suit he handled. For allowing a solicitation letter to be sent to potential clients over his signature in violation of the advertising rules, respondent was also ordered by the trial judge to send a letter of correction, because the solicitation letter stated that the defendant's life insurance policies were worthless, when in fact they were not.

      . The board made a finding that respondent lied to Mr. Stanley regarding the Settlement Agreement. First, even assuming for purposes of argument that such conduct occurred, it does not form part of the formal charges. Second, the record does not support the board's finding, as the only evidence on this point is to the effect that respondent was mistaken when he told Mr. Stanley that he did not have the Settlement Agreement. There is nothing in the record to suggest that respondent intentionally misled Mr. Stanley. Finally, the hearing committee did not make such a factual finding. As this court recently observed in In re: Holliday, 09-0116 (La.6/26/09), 15 So.3d 82, the board serves an appellate review function under Supreme Rule XIX, § 11(F) and should therefore "refrain from making findings based on a cold record.”

      . The complaints in this matter were filed in 2001, but the ODC did not file formal charges until November 2006.