author: CRENSHAW, Judge.

text:
    Jose CANTU, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-2800.
    District Court of Appeal of Florida, Second District.
    May 7, 2010.

      Frank De La Grana, Tampa, for Appellant.
   CRENSHAW, Judge.

Jose Cantu appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the postconviction court erred in finding that the motion was to a large extent, proeedurally barred, we reverse and remand for further proceedings.

In 2001, law enforcement officers stopped Cantu after he traveled by bus from Texas to Florida. Their search revealed a package of cocaine strapped to his body. His attorney filed a motion to suppress in December 2002, alleging that Cantu was illegally searched. No hearing was ever held on the motion and it was withdrawn in March 2003. Cantu entered a plea of no contest in April 2003 pursuant to a substantial assistance agreement that contemplated a downward departure sentence if he performed well, but a sentence of up to the statutory maximum of thirty years if he failed to perform. Sentencing was delayed for three months, and he was released from jail. Cantu never made contact with the authorities to provide assistance. In 2007, he was arrested in Texas and returned to Florida for sentencing.

Prior to sentencing, Cantu, now represented by a new attorney, filed a motion to withdraw the plea, arguing that it was involuntary because his former counsel did not fully advise Cantu of the option of arguing the motion to suppress. If Cantu had known of a potential basis for suppression, he would not have entered a plea. This motion to withdraw plea was discussed at the sentencing hearing. The judge declined to rule on the motion before imposing the minimum mandatory sentence of fifteen years. Instead the judge directed Cantu’s attorney to obtain the transcript of the plea colloquy within fifteen days and to refile his motion with the transcript. The judge indicated that he needed to read the transcript to see if the motion would merit an evidentiary hearing and stated to counsel: “So it could end up that[ ] it’s a 3.850. You know that as well as I do now.”

Cantu’s counsel did not file the plea transcript as directed. The trial court dismissed the motion to withdraw plea in November 2007 with an order that states: “Defendant failed to timely file transcripts as he was directed by the Court on September 19, 2007. Additionally, the Court finds no basis for the Motion to Withdraw Plea.”

In May 2008, Cantu’s attorney filed the rule 3.850 motion that is the subject of this appeal. The motion alleges ineffective assistance of counsel in that trial counsel failed to investigate the propriety of the stop and misadvised Cantu concerning the possibility of challenging the stop, search, and arrest. It also alleges that counsel induced Cantu to enter the plea and Cantu would not have entered the plea had he been advised of his “true position.”

In May 2009, the postconviction court entered an order summarily denying the motion. The court construed the motion as raising two claims: first, that counsel failed to file a motion to suppress, and second, that counsel was ineffective for not fully discussing the option of arguing the motion to suppress and misinforming Cantu as to the strength of the motion. The court found that the first claim was conclusively refuted by the record because counsel did file a motion to suppress. The fact that the motion was withdrawn in March 2003 “had no bearing.” Thus the court concluded that “[bjased on the plea agreement accepted by the Defendant, counsel could not have been ineffective for not pursuing the motion to suppress.”

The court found that the second claim was procedurally barred because Cantu could have raised the issue on direct appeal: “Since the Defendant chose to challenge counsel’s representation in a Motion to Withdraw Plea, the Defendant should have raised this issue in a direct appeal following the dismissal of that motion.” Cantu argues in this appeal, in part, that the trial court did not address the merits of the claim in ruling on the motion to withdraw plea, that his claim of ineffective assistance of counsel could not have been raised on direct appeal, and that the record does not conclusively refute his claims. We agree with Cantu on these points.

We conclude that the postconviction court erred in finding the procedural bar. Cantu essentially abandoned his motion to withdraw plea in the trial court when he failed to comply with the court’s directive to file the transcript. The trial court’s dismissal — rather than denial — of Cantu’s motion to withdraw plea indicates that the trial court did not reach the merits of the motion. See Gatlin v. State, 24 So.3d 743, 744 (Fla. 2d DCA 2009) (noting that a dismissal based on insufficiency of the pleadings was not a ruling on the merits). The inclusion of the statement that “the Court finds no basis for the Motion to Withdraw Plea” in the dismissal order creates some ambiguity and might imply a ruling on the merits. But that statement would not have been enough for this court to review the denial of the motion on its merits in a direct appeal because the primary basis for the dismissal was insufficiency. The dismissal of the motion to withdraw plea was not a ruling on the merits and does not act as a procedural bar to raising the same issue in a postcon-vietion motion. See Oosterink v. State, 947 So.2d 663 (Fla. 2d DCA 2007) (concluding that the issue raised in rule 3.850 motion was not barred by the same issue raised in an earlier motion to withdraw plea where the trial court had not fully addressed the claim on the merits in ruling on the earlier motion).

The postconviction court’s attachments show only that Cantu’s trial counsel filed a motion to suppress and that Cantu later entered the plea. They do not conclusively refute the allegation that Cantu was misadvised by counsel before withdrawing the motion to suppress and entering the plea. We therefore reverse and remand for the postconviction court to reconsider the motion on the merits and grant an evidentiary hearing if necessary.

Reversed and remanded.

WHATLEY and SILBERMAN, JJ„ Concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    COLUMBIA HOSPITAL (PALM BEACHES) LIMITED PARTNERSHIP, d/b/a Columbia Hospital, Petitioner, v. Catherine HASSON, Mark Hasson and Nourhan Elsawy, Respondents.
    No. 4D09-3988.
    District Court of Appeal of Florida, Fourth District.
    May 12, 2010.

      Walter J. Taché and Marissel Descalzo of Carlton Fields, P.A., Miami and Robert E. Biasotti, Annette Marie Lang, and Stephanie Zimmerman of Carlton Fields, P.A., St. Petersburg, for petitioner.
    Patrick B. Flanagan of Flanagan, Ma-niotis & Berger, P.A., West Palm Beach, for respondents Catherine Hasson and Mark Hasson.
   ON MOTION FOR CLARIFICATION

PER CURIAM.

On the petitioner’s motion for clarification, we withdraw the opinion issued in this case on March 10, 2010, and issue the following in its place:

Columbia Hospital (the hospital), a non-party in a motor vehicle negligence case, seeks review of a non-final order denying its motion for protective order as to the discovery of confidential trade secret materials. We grant the petition in part, only to the extent that the trial court ordered production without first allowing the parties an opportunity to negotiate a confidentiality agreement.

The plaintiff alleged she suffered bodily injuries in connection with the accident and incurred medical expenses, including expenses for a procedure performed at the hospital, for which it billed over $19,000. Defendants sought discovery from the hospital concerning that particular procedure, including the amount the hospital has charged patients with and without insurance, those with letters of protection, and differences in billing for litigation patients versus non-litigation patients. The hospital moved for a protective order, asserting that the information requested by the subpoena was confidential and amounted to protected trade secrets under Florida law. Defendants, who concede the information is protected as trade secrets, explained below why the information they sought was relevant, inter alia, to the reasonableness of the hospital’s bills. At the hearing on the motion, defense counsel cited authority that the discovery of a hospital’s charges, and discounts to different classes of patients, and its internal cost structure was relevant information; what a health care provider accepts as payment from private non-litigation payors is relevant for a jury to determine what amount is a reasonable charge for the procedure.

The trial court decided to deny the motion for protective order, finding that the information sought was reasonably calculated to lead to the discovery of admissible evidence. The judge balanced the hospital’s interest in nondisclosure of its confidential information against Defendants’ need for the information, and decided it was more important to produce the information. The hospital asked whether the information could be produced subject to a confidentiality order, but the judge said “right now just produce it,” indicating that the matter of a confidentiality order would be another hearing on another day. It issued a written order denying the hospital’s motion.

The hospital seeks certiorari relief, including requiring the trial court to narrowly tailor any order requiring disclosure in such a way as to protect its trade secret interests. To that extent, we agree with the hospital.

Given that the trial court did treat the information as entitled to protection as trade secrets, we disagree with the hospital that an in camera hearing was necessary to determine whether it was.

The hospital also contends that the trial court departed from the essential requirements of the law in ordering production without balancing the interests. Salick Health Care, Inc. v. Spunberg, 722 So.2d 944, 946 (Fla. 4th DCA 1998) (“When trade secret privilege is asserted as the basis for resisting production, the trial court must determine whether the requested production constitutes a trade secret; if so, the court must require the party seeking production to show reasonable necessity for the requested materials .... If production is then ordered, the court must set forth its findings.”) (quoting Rare Coin-it, Inc. v. I.J.E., Inc., 625 So.2d 1277, 1278-79 (Fla. 3d DCA 1993)) (emphasis added).

We conclude that Defendants sufficiently explained below why they needed the information: in order to dispute, as unreasonable, the amount of medical expenses that the plaintiff will seek to recover from them, if the hospital charges non-litigation patients a lower fee for the same medical services. A claimant for damages for bodily injuries has the burden of proving the reasonableness of his or her medical expenses. E.W. Karate Ass’n v. Riquelme, 638 So.2d 604 (Fla. 4th DCA 1994); Irwin v. Blake, 589 So.2d 973, 974 (Fla. 4th DCA 1991) (citing Garrett v. Morris Kirschman & Co., 336 So.2d 566, 571 (Fla.1976)); A.J. v. State, 677 So.2d 935, 937 (Fla. 4th DCA 1996) (“The patient’s obligation is not to pay whatever the provider demands, but only a reasonable amount.”). The trial court’s findings, while brief, sufficed for this purpose.

However, the trial court also must take such protective measures as are required. § 90.506, Fla. Stat. (‘When the court directs disclosure, it shall take the protective measures that the interests of the holder of the privilege, the interests of the parties, and the furtherance of justice require.”); Fla. R. Civ. P. 1.280(c)(7). When counsel for the hospital asked about a confidentiality order, the trial court stated:

You can ask, but right now just produce it and that’s another hearing on another day, okay, and I’ll give you 15 days to produce it.

(Emphasis added.)

The trial court simply denied the hospital’s motion for protective order without taking protective measures. Defendants do not dispute that the hospital was entitled to an accommodation to protect its trade secrets, such as a confidentiality order.

We conclude that the hospital is entitled to relief only insofar as the trial court should have stayed the discovery until the parties had an opportunity to negotiate a confidentiality agreement. In the event the parties are unable to agree, the trial court shall narrowly tailor any order requiring disclosure in such a way as to protect the hospital’s trade secret interests.

Granted in part.

POLEN, STEVENSON and LEVINE, JJ., concur.

      . Percutaneous disc decompression.

      . Trade secrets are privileged from disclosure by section 90.506, Florida Statutes, which provides as follows:
      A person has a privilege to refuse to disclose, and to prevent other persons from disclosing, a trade secret owned by that person if the allowance of the privilege will not conceal fraud or otherwise work injustice. When the court directs disclosure, it shall take the protective measures that the interests of the holder of the privilege, the interests of the parties, and the furtherance of justice require. The privilege may be claimed by the person or the person’s agent or employee.
      Here, no one disputes that hospital's reimbursement data are confidential and exempt from public records laws, see § 408.061(l)(d), Fla. Stat. (2009), or that the terms of its managed care contracts and reimbursement information are confidential, § 395.3035(2), Fla. Stat. (2009).

      . As Defendants assert, a hospital’s cost to provide a service no longer bears much relationship to what it charges, but reimbursement rates from third party payors give hospitals an incentive to set their usual charges at an artificially high amount, from which discounts are negotiated; cost-shifting results in discriminalorily high charges to uninsured patients, in that every patient is billed at full charges, but only the uninsured are expected to pay those amounts; as a result, actual charges are not instructive on what is reasonable; instead, Defendants argue, a realistic amount is what hospitals are willing to accept.


author: WARNER, J.

text:
    Ricky Bernard YOUNG, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-4266.
    District Court of Appeal of Florida, Fourth District.
    May 12, 2010.

      Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   On Motion for Rehearing

WARNER, J.

We grant appellant’s motion for rehearing, withdraw our previously issued opinion, and substitute the following in its place.

Appellant, Ricky Young, appeals his convictions for robbery with a firearm or other deadly weapon, and other charges, arguing that the court erred in denying his motion to suppress evidence, because the officer who initiated the vehicular stop which preceded the search did not have probable cause. There was, however, evidence of speeding as well as a reasonable suspicion that the occupants of the vehicle had committed a crime. He also claims that the court improperly admitted a test that a detective made to determine the operability of a firearm. We conclude that the test was relevant and admissible. Finally, he challenges his sentence, claiming that the trial court relied on improper factors. We reject this claim as well, as he did not object to their consideration at sentencing, and the issue is not cognizable under Rule 3.800(b)(2). While appellant claims that we should consider this a fundamental error, we disagree, concluding that no error in the sentencing process occurred. We thus affirm on all issues.

Young and two others robbed an employee of a Domino’s restaurant. The employee was waiting by his vehicle outside the restaurant after it closed. The assailants hit him with a gun, causing significant injury, took his money and the food he was eating, rummaged through his vehicle, and fled in their own car. The police arrived shortly after the incident and broadcast in a BOLO the employee’s description of his assailants. Another deputy on road patrol at a location close to the Domino’s restaurant heard the BOLO and observed a vehicle driving at a high rate of speed heading out of town on a rural road. The deputy initiated a stop. The description in the BOLO of the assailants matched the persons in the vehicle. A search revealed the exact amount of money taken from the victim, a cell phone, a BB gun, and a Domino’s box. The victim identified Young as one of his assailants.

The state charged Young with robbery with a firearm, aggravated assault with a weapon, and burglary of a conveyance. He was tried with his co-defendant and the jury convicted Young of all charges. The court sentenced Young to life in prison for the robbery and lesser sentences for the other crimes.

Young contends that the trial court erred in admitting evidence seized after a stop of his vehicle without probable cause. We agree with the trial court that Young’s speeding justified the stop. See Hurd v. State, 958 So.2d 600, 602 (Fla. 4th DCA 2007) (citing Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996)) (“Under search and seizure law, the stopping of a motorist is reasonable where a police officer has probable cause to believe a traffic violation has occurred.”). The officer’s trained observation of Young speeding sufficed to provide probable cause for the stop. See State v. Allen, 978 So.2d 254, 255 (Fla. 2d DCA 2008) (explaining that “police may stop a vehicle for a speeding violation based on the officer’s visual or aural perceptions and that verification of actual speed by the use of radar equipment or clocking is not necessary to justify the stop”); see also Byrd v. State, 964 So.2d 806, 806 (Fla. 4th DCA 2007).

We also agree with the trial court that the officer initiating the stop had a reasonable suspicion that Young had just committed a crime based upon the factors set forth in Jean v. State, 987 So.2d 196, 198 (Fla. 4th DCA 2008) (citing Rodriguez v. State, 948 So.2d 912, 914 (Fla. 4th DCA 2007)). In Jean we said: “In determining the legality of a stop as a consequence of a BOLO, this court has looked to factors such as the length of time and distance from the offense, specificity of the description of the alleged perpetrator(s), the source of the BOLO information, the time of day, absence of other persons in the vicinity of the sighting, suspicious conduct, and any other activity consistent with guilt.”

Consistent with these factors, minutes after learning from dispatch that a robbery occurred at Domino’s Pizza, the road deputy relatively close to the pizza restaurant observed a car speed past him on a rural highway, traveling in the opposite direction of the scene of the crime. By following the car with his bright lights on, the deputy observed that the car’s occupants matched the BOLO description that he had just received of the assailants. The occupants acted suspiciously in that they kept looking back at the deputy’s car, and the driver repeatedly changed lanes. Based on this evidence, the officer possessed reasonable suspicion to stop the car and determine whether the men inside had been involved in the robbery. The court did not err in denying the motion to suppress.

In his second point, Young contends that the court erred in admitting the results of a detective’s test firing of the BB gun found in Young’s vehicle to prove its operability. Because the state did not charge Young with firing a weapon, he claims that the admission of such tests was irrelevant and prejudicial. Young’s argument is flawed because the detective’s experiment was not meant to recreate Young’s firing of the weapon during the crime but to establish whether the weapon was operational, and by extension, deadly.

The state charged Young with robbery with a deadly weapon, aggravated battery with a deadly weapon, and burglary of a conveyance while armed with explosives or a dangerous weapon, to wit: a BB gun. At the outset of trial, Young admitted to committing robbery and battery but expressly disputed that the BB gun constituted a deadly weapon. Whether a BB gun is a deadly weapon is a question for the jury to decide. See Dale v. State, 703 So.2d 1045, 1047 (Fla.1997). In order to prove the charged crime, the state needed to prove that Young carried a firearm or other deadly weapon. Proof that the BB gun was operational was relevant to proving that it was a deadly weapon. The assailants used the gun as a club to strike the victim and pointed it at his head. The test firings constituted evidence relevant for the jury’s consideration of the deadliness of the weapon.

Finally, Young challenges his sentence, arguing that the court considered improper factors in its determination. Specifically, he claims that the court relied on the statement of a deceased co-defendant which was not presented at trial in determining the level of Young’s involvement in the crime. He did not object at the sentencing hearing to the trial court’s references to the co-defendant. He then filed a motion to correct a sentencing error pursuant to Rule 3.800(b)(2). The trial court considered the motion and denied it in a written order. The court determined that, while the court was aware of the co-defendant’s statement, the record did not reflect that the court gave any consideration to the statement. The court explained how Young had essentially taken the court’s words at the sentencing hearing out of their intended context. On appeal, Young continues to contend that the court considered improper factors and violated his right to confront witnesses against him in relying on the statement of one of the other participants in the robbery.

A motion to correct a sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2) is not the proper vehicle to raise an issue involving the use of improper factors during sentencing. See Hannum v. State, 13 So.3d 132, 135 (Fla. 2d DCA 2009) (“Initially, we must point out that rule 3.800(b)(2) is not the proper mechanism for preserving for appeal the issue of whether the court improperly considered certain factors in imposing sentence.”); see also Jackson v. State, 983 So.2d 562, 572 (Fla.2008) (explaining that rule 3.800(b)(2) is intended to permit defendants to bring to the trial court’s attention errors in sentence-related orders, not any error in the sentencing process).

Nevertheless, the trial court did consider and rule on the motion and determined that it had not relied on improper sentencing factors. Despite this, we would still be required to conclude that fundamental error occurred in order to reverse. Jackson, 983 So.2d at 568-69.

Even if the trial court had relied on the hearsay statements of the deceased co-defendant, a summary of which appears in the trial record, the court would not have fundamentally erred or erred at all, for that matter. The Sixth Amendment right of confrontation does not apply in sentencing proceedings. See Cameron v. State, 943 So.2d 938, 939 (Fla. 4th DCA 2006). As Justice Cantero noted in concurring in Rodgers v. State, 948 So.2d 655, 674 (Fla.2006), “Virtually every federal appellate court has recently addressed the issue and has reaffirmed the longstanding principle that the Confrontation Clause does not apply to sentencing.” (Citations omitted) (emphasis in original). Therefore, and particularly in light of the lack of objection, the court could have considered the statement of the co-defendant, and any such consideration would not constitute reliance on improper factors in sentencing Young. We also reject Young’s contention that the court relied on other improper factors.

For the foregoing reasons, we affirm the conviction and sentence.

FARMER and LEVINE, JJ., concur.


text:
    STATE of Louisiana v. Eric T. Maxwell.
    No. 2009-K-2235.
    Supreme Court of Louisiana.
    April 16, 2010.
   PER CURIAM.

| granted. The decision of the court of appeal is vacated to the extent that it reversed defendant’s conviction and sentence outright after finding that the trial court erred in ruling that defendant had failed to make a prima facie showing of discriminatory intent in the prosecutor’s exercise of peremptory challenges against African-American venirepersons, and thus did not require the prosecutor to explain his peremptory challenges, and this case is remanded to the district court for further proceedings. The district court shall provide the state with the opportunity to articulate race-neutral reasons for the exercise of eight peremptory challenges against African-American venirepersons and thereafter rule on the ultimate question under Batson v. Kentucky, 476 U.S. 79, 95, 106 S.Ct. 1712, 1722, 90 L.Ed.2d 69 (1986), of whether the prosecutor intentionally used race as a basis for selection of jurors to try defendant’s case. See State v. Drake, 08-1194, p. |?2 (La.1/30/09), 2 So.3d 416, 417 (“The Batson frame work is designed to produce actual answers to suspicions and inferences that discrimination may have infected the jury selection process.... The inherent uncertainty present in inquiries of discriminatory purpose counsels against engaging in needless and imperfect speculation when a direct answer can be obtained by asking a simple question.’ ”)(quoting Johnson v. California, 545 U.S. 162, 172, 125 S.Ct. 2410, 2418, 116 L.Ed.2d 129 (2005)). In the event of an adverse ruling on the Batson issue, defendant may appeal and may also appeal regarding the assignments of error pretermitted by the court of appeal on original hearing.

      . Kimball, C.J., not participating.


text:
    In re Harvey Wayne COOK.
    No. 2010-B-0092.
    Supreme Court of Louisiana.
    April 16, 2010.
   | ¶ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

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

UNDERLYING FACTS

The underlying facts of this matter are not in dispute, having been stipulated to by the parties. The joint written stipulations provide, in pertinent part:

1) Respondent was admitted to practice law in the state of Louisiana on October 11, 1991. Respondent has no prior formal disciplinary action taken against his license.
2) During the calendar years 2000 and 2001, Respondent was employed as an attorney by Lonny A. Myles, APLC d/b/a “Myles, Cook, and Day” or “Myles, Cook, Day and Hernandez”.
3) Despite the fact that Respondent had gross income of $106,944 for the taxable year 2000, he failed to file a personal income tax return for the taxable year 2000 on or before April 16, 2001. Respondent never requested an extension of time in which to file his 2000 tax return.
|24) Despite the fact that Respondent had gross income of $170,229 for the taxable year 2001, he failed to file a personal income tax return of the taxable year [2001] on or before [April 15, 2002]. Respondent never requested an extension of time in which to file his 2001 tax return.
5) On March 30, 2007, a bill of information was filed in the Eastern District of Louisiana charging Respondent with two (2) counts of Misdemeanor Failure to File a Tax Return in violation of 26 U.S.C. § 7203 for the taxable years 2000 and 2001. The case was docketed as case number 2:07CR00119-001 “C”.
6) By letter dated May 10, 2007, Respondent self-reported to the Office of Disciplinary Counsel that he was charged with the violations as set forth in Stipulation No. 5.
7) On June 13, 2007 Respondent pled guilty to two (2) counts of Misdemeanor Failure to File a Tax Return in violation of 26 U.S.C. § 7203 for the taxable years 2000 and 2001 in violation of Rule 8.4(b) of the Rules of Professional Conduct.
8) On October 3, 2007, Respondent was sentenced to five (5) years of supervised probation on each count to run concurrently. This sentence was below the federal advisory sentencing guideline range. Along with all the standard conditions of supervision, certain special conditions were imposed on Respondent, including:
* Must provide the probation officer with access to any requested financial information.
⅜ Shall not incur new credit charges or open additional lines of credit without approval of the probation officer unless he is in compliance with the installment payment schedule.
* Shall participate in an orientation and life skills program as directed by the probation officer.
|s* Shall participate in a program of testing and/or treatment for drug abuse, as directed by the probation officer, until he is released from the program by the probation officer.
⅜ Shall participate in a program of mental health treatment, as directed by the probation officer, until he is released from the program by the probation officer.
* Shall pay restitution in the amount of $121,233.00, an assessment in the amount of $50.00, and prosecutorial costs in the amount of $1,704.00.
* Shall be placed on home detention for a period of twelve (12) months.

DISCIPLINARY PROCEEDINGS

In March 2009, the ODC filed one count of formal charges against respondent, alleging that his misconduct as set forth above violated Rule 8.4(b) of the Rules of Professional Conduct. Respondent answered the formal charges and admitted the factual allegations contained therein. However, he denied the allegations “reflect on his honesty, trustworthiness or fitness as a lawyer.” In addition, respondent stated he was “amicable to entering into a Stipulation of Facts and setting this matter for a hearing on Mitigation of Sanctions.”

_J¿Formal Hearing

This matter proceeded to a formal hearing solely for the purpose of considering mitigating evidence. Respondent appeared at the hearing and was represented by counsel. He introduced documentary evidence, including the Statement of Reasons set forth by United States District Judge Helen G. Berrigan, which indicated respondent’s offenses were motivated by financial pressure and family problems rather than greed.

Respondent also called several witnesses to testify about his character. Collectively, these character witnesses testified that respondent is a sincere, honest, and dedicated member of Court Appointed Special Advocates (“CASA”) and OPTIONS, a program for people with disabilities. Finally, they testified that respondent is a very competent real estate attorney and a loving and devoted father to his teenage daughter.

| ¿Hearing Committee Report

After reviewing the testimony and the evidence presented at the hearing, the hearing committee determined respondent violated Rule 8.4(b) of the Rules of Professional Conduct. The committee determined respondent’s failure to file income tax returns was a criminal act that reflects adversely on his moral fitness to practice law, in violation of the Rules of Professional Conduct. The committee noted the failure to file income tax returns is professional misconduct that reflects poorly on a profession as a whole, even though the offense may have nothing to do with client representation. Additionally, the committee noted a tax loss to the government constitutes actual injury. Relying on the ABA’s Standards for Imposing Lawyer Sanctions, the committee determined suspension is the baseline sanction.

The committee determined there were no aggravating factors present. In mitigation, the committee identified several factors, including the absence of a prior disciplinary record, the absence of a dishonest or selfish motive, personal or emotional problems, full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, character or reputation, imposition of other penalties or sanctions, and remorse.

Relying on this court’s prior jurisprudence, the committee recommended respondent be suspended from the practice of law for six months, with three months deferred, followed by a one-year period of supervised probation.

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

\fPisciplinary Board Recommendation

After reviewing the record, the disciplinary board determined the hearing committee accepted the joint stipulations of fact as its factual findings and concurred in the committee’s factual findings. The board noted the joint stipulations of fact established respondent entered a guilty plea to the misdemeanor offense of failure to file his tax return. The board also pointed out the certificate of respondent’s conviction introduced into evidence by the ODC provided conclusive evidence of his guilt. Based on these facts, the board determined respondent violated Rule 8.4(b) of the Rules of Professional Conduct as charged.

The board found respondent knowingly violated a duty owed to the public. The board determined respondent’s commission of a criminal act undermines the public confidence in the integrity of attorneys. The board also found respondent’s failure to promptly pay his taxes resulted in some harm to the public fiscal system. After considering the ABA’s Standards for Imposing Lawyer Sanctions, the board determined the applicable baseline sanction in this matter is suspension.

In aggravation, the board cited respondent’s substantial experience in the practice of law, as he was admitted to the bar in 1991. In mitigation, the board recognized the following factors: the absence of a prior disciplinary record, the absence of a dishonest or selfish motive, personal or emotional problems, full and free disclosure to the disciplinary board and a cooperative attitude towards the proceedings, character or reputation, imposition of other penalties or sanctions, and remorse.

17After considering respondent’s misconduct in light of this court’s prior jurisprudence, the board recommended respondent be suspended from the practice of law for six months, with three months deferred, followed by a one-year period of supervised probation.

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

DISCUSSION

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

Based on respondent’s stipulations and the other evidence establishing his conviction of misdemeanor failure to file a tax return in violation of 26 U.S.C. § 7203, it is clear he has violated Rule 8.4(b) of the Rules of Professional Conduct. Therefore, the sole issue presented for this court’s consideration is the appropriate sanction for this misconduct.

Prior to 1997, we typically imposed fully-deferred suspensions on attorneys convicted of the misdemeanor offense of failure to file tax returns. See, e.g., In re: Early, 93-2973 (La.1/7/94), 628 So.2d 1131 (six-month | ^suspension, deferred, with probation for one year, for misdemeanor conviction of willful failure to file income tax returns); In re: Ellerman, 626 So.2d 1188 (La.1993) (two-year suspension, deferred, based on misdemeanor conviction of four counts of willful failure to file income tax returns).

We departed from this jurisprudence in In re: Huckaby, 96-2643 (La.5/20/97), 694 So.2d 906, in which we imposed a one-year suspension, with six months deferred (resulting in a six-month actual suspension), on an attorney and former judge convicted of misdemeanor failure to file income tax returns. The Huckaby court acknowledged Louisiana had never previously imposed an actual period of suspension in a disciplinary case arising from a conviction for misdemeanor failure to file. Id. at p. 3, 694 So.2d at 907, fn. 2. Nonetheless, the Huckaby court found an actual period of suspension was warranted under the facts presented:

Based upon our review of the record, we agree with disciplinary counsel that the facts of this case warrant a greater sanction than that recommended by the disciplinary board. We find that several aggravating factors are present in this case. First, respondent’s actions occurred over a number of years, demonstrating a pattern of misconduct. Although respondent only pled guilty to one count of violating 26 U.S.C. § 7203, based on his failure to file a federal income tax return for 1987, the presen-tencing investigation from the federal court revealed that respondent had also failed to file his tax returns in a prompt fashion for twelve other years. Secondly, the very nature of respondent’s actions, which the federal court found to be intentional and willful, indicates a selfish or dishonest motive on the part of respondent. Finally, we feel that respondent’s substantial experience in the practice of law, combined with the fact that he held the office of district judge, requires that he should be held to even a higher standard of conduct than an ordinary attorney.
19In imposing discipline, we are mindful that respondent has been punished for his conduct, in that he has served a one year jail sentence and was removed from office by this court. Nonetheless, we believe that an actual period of suspension is justified under the circumstances. Therefore, we conclude that a one year suspension from the practice of law, with six months of the suspension being deferred, and a two year period of supervised probation subject to the conditions recommended by the disciplinary board, is an appropriate sanction in this matter.
Id. at p. 2, 694 So.2d at 907 [footnotes omitted].

Following the rendition of Huckaby in 1997, we addressed several other disciplinary cases involving lawyers who were convicted of misdemeanor failure to file income tax returns. In each of these cases, we imposed suspensions ranging from one year to eighteen months, with some period of the suspension deferred. See, e.g., In re: Stout, 97-0217 (La.5/20/97), 694 So.2d 908 (eighteen-month suspension, with six months deferred, imposed on an attorney and former city court judge who failed to file timely tax returns for a total of eight years and still owed a substantial sum in tax liability); In re: Thomas, 97-0881 (La.10/10/97), 700 So.2d 490 (fifteen-month suspension, with all but nine months deferred, imposed on an attorney who served on a public board and had a prior disciplinary record, who was convicted of failing to file tax returns for two years and was ordered to pay more than $100,000 in restitution for unpaid taxes); In re: Shealy, 97-0835 (La.10/10/97), 700 So.2d 488 (one-year suspension, with all but six months deferred, imposed on an attorney who was a member of the school board, who was convicted of failing to file a tax return for one year and was ordered to pay nearly $30,000 in restitution for unpaid taxes); In re: Rodney, 08-2318 (La.10/31/08), 993 So.2d | in218 (one-year suspension, with six months deferred, by consent, imposed on an attorney who failed to file an income tax return timely, despite receiving an extension).

Considering this jurisprudence as a whole, we conclude the discipline imposed in similar cases has been in the form of suspensions from the practice of law ranging from six months to two years, all or part of which may be deferred. In distilling a common thread from the cases, we find four principal factors have influenced our decisions regarding sanctions in this area: (1) whether there is a pattern of failure to file over a number of years; (2) the amount of money involved; (3) whether the respondent’s actions were selfish or dishonest in nature; and (4) whether respondent is held to a higher standard as a result of having a position as a public official. Applying these factors to the instant case, we find:

(1) Respondent’s conviction involved failure to file income tax returns for two years, which is considerably less than the twelve years in Huckaby and the eight years in Stout.
(2) Respondent owes restitution of $121,233.00, which is comparable to the $100,000 restitution in Thomas, but greater than the $30,000 in restitution in Shealy.
(3) The hearing committee and disciplinary board found respondent did not act with a dishonest or selfish motive. Additionally, the federal court found respondent “was not motivated by greed or other selfish motives but rather hit a period of financial pressure and problems due to family matters.”
| n(4) Respondent is not a current or former public official.

An analysis of these factors suggests the appropriate sanction for respondent’s misconduct falls on the lower end of the range of discipline imposed in similar cases. Additionally, we are cognizant of the numerous mitigating factors present in this case, including respondent’s lack of a prior disciplinary record, personal or emotional problems, full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, character or reputation, imposition of other penalties or sanctions, and remorse.

Considering all the facts of this case, we conclude a six-month suspension from the practice of law, with three months deferred, followed by a one-year period of supervised probation, is the appropriate sanction for respondent’s misconduct.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Harvey Wayne Cook, Louisiana Bar Roll number 20759, be suspended from the practice law for a period of six months. Three months of this suspension shall be deferred, subject to respondent’s successful completion of a one-year period of supervised probation. The probationary period shall commence from the date respondent, the ODC, and the probation monitor execute a formal probation plan. Any misconduct during the period of probation may be grounds for making the deferred portion of the suspension executory or imposing additional discipline as appropriate. All costs and expenses in the matter are assessed | l2against 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.

      . Rule 8.4(b) provides "[i]t is professional misconduct for a lawyer to ... [c]ommit a criminal act especially one that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other re-spectsf.]”

      . The federal court stated:
      Tax cheating is serious, but in this case, it appears [respondent] was not motivated by greed or other selfish motives but rather hit a period of financial pressure and problems due to family matters.
      [Respondent] appears to be an excellent and devoted father. Despite his divorce, he has provided substantial support, both financially and personally, to his daughter. He also appears to be an unusually altruistic contributing member of this community. I am familiar with CASA, having served briefly on the Board here in New Orleans and know the type of commitment that entails. I am also impressed with his involvement [in] OPTIONS, a program for persons with disabilities. Both of these organizations are committed to assisting disadvantaged people and it's to [respondent’s] credit that he used his free time in those directions.

      . At the outset, we distinguish cases involving misdemeanor failure to file tax returns from cases in which the lawyer is convicted of more serious crimes such as tax evasion or filing false returns. In these cases, this court has consistently imposed actual suspensions. See, e.g., Louisiana State Bar Association v. O'Halloran, 412 So.2d 523 (La.1982); Louisiana State Bar Association v. Ponder, 340 So.2d 134 (La.1976).

      . We acknowledge some of these factors overlap the general aggravating and mitigating factors listed in the ABA's Standards for Imposing Lawyer Sanctions. However, we find the enumerated factors have particular relevance in the context of determining discipline for lawyers convicted of misdemeanor failure to file tax returns and should be weighted accordingly.

      . In addition to Huckaby, the cases of Stout, Thomas and Shealy all involved attorneys who served as public officials.


author: PER CURIAM

text:
    In re Richard BATES.
    No. 2009-B-2623.
    Supreme Court of Louisiana.
    April 16, 2010.
   | ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Richard Bates, an attorney licensed to practice law in Louisiana but currently on interim suspension for threat of harm to the public. In re: Bates, 08-0296 (La.2/13/08), 974 So.2d 664.

UNDERLYING FACTS AND PROCEDURAL HISTORY

The ODC filed two sets of formal charges against respondent, consisting of a total of thirty 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.

[iM-DB-010

Count I — The Johnson Matter

In June 2006, Mira Johnson hired respondent to handle her personal injury claim. Initially, respondent worked on Ms. Johnson’s case and communicated with her. However, beginning in August 2006, Ms. Johnson was unable to contact respondent, despite numerous attempts.

In October 2006, Ms. Johnson filed a disciplinary complaint against respondent. In December 2006, respondent indicated he would promptly provide Ms. Johnson with a copy of her file. However, he failed to do so.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), and 1.16(d) (obligations upon termination of the representation).

Counts II & III — The Unauthorized Practice of Law Matters

From February 4, 2005 to August 17, 2005, respondent was declared ineligible to practice law for failure to comply with the mandatory continuing legal education requirements. Likewise, from October 31, 2005 to February 9, 2006, and again from September 11, 2006 to December 11, 2006, respondent was ineligible to practice for failure to pay his bar dues and the disciplinary assessment.

Notwithstanding his ineligibility to practice law, respondent filed motions on behalf of his criminal client, Keshondria Amos, on February 15, 2005, and appeared in court with Ms. Amos for a hearing on the motions on March 11, 2005. Respondent also appeared in court with Ms. Amos for trial on April 11, 2005 and June 16, 2005.

| ¡¡Furthermore, respondent appeared in court on September 26, 2006 to represent his criminal client, Cassie Lee, at her arraignment. He also appeared in court with Ms. Lee for trial on October 18, 2006 and November 28, 2006.

Additionally, respondent filed the following pleadings on behalf of various clients: a petition for damages on February 2, 2006; a petition for damages on November 2, 2006; a petition for damages on November 6, 2006; and an objection to a proposed relocation of a minor child with a rule to show cause on November 22, 2006.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.1(b) (failure to comply with MCLE requirements), 5.5(a) (engaging in the unauthorized practice of law), and 8.4(d) (engaging in conduct prejudicial to the administration of justice).

Count IV — The Weathersby Matter

In August 2006, Hope Weathersby hired respondent to represent her in a criminal matter, and Ms. Weathersby’s family paid respondent $1,500. Respondent met with Ms. Weathersby on August 11, 2006. Respondent did not speak to Ms. Weathersby again until September 18, 2006, when he appeared in court with her. At that time, respondent was ineligible to practice law for failing to pay his bar dues and the disciplinary assessment.

On October 13, 2006, respondent again appeared in court on Ms. Weathersby’s behalf. The judge advised respondent he was ineligible to practice law. Respondent insisted to the judge that he had paid his bar dues and the disciplinary assessment, but the judge would not allow him to represent Ms. Weathersby. Despite the judge’s action, respondent advised Ms. Weathersby’s family that the judge had made a Lmistake, and he requested additional funds to continue the representation. A week later, respondent withdrew from the representation. He failed to refund any portion of the $1,500 fee.

Respondent did not pay his bar dues and the disciplinary assessment until December 12, 2006, at which time he was returned to eligible status. He deliberately attempted to mislead the judge into believing these fees were paid prior to October 13, 2006.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.5(f)(6) (failure to refund an unearned fee), 1.16(d), 3.2 (failure to make reasonable efforts to expedite litigation), 3.3(a)(1) (knowingly making a false statement of fact or law to a tribunal), 5.5(a), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d).

Count V — The Lafayette Matter

In February 2007, Tanya Lafayette paid respondent $600 of his $1,200 fee to handle her bankruptcy. Thereafter, with the exception of leaving one voice mail message, respondent failed to communicate with Ms. Lafayette. On March 16, 2007, Ms. Lafayette mailed a letter to respondent terminating his services.

Also in March 2007, Ms. Lafayette filed a disciplinary complaint against respondent. In a May 31, 2007 sworn statement to the ODC, respondent acknowledged that he failed to complete Ms. Lafayette’s bankruptcy.

| sThe ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4,1.5(f)(6), and 1.16(d).

Count VI — The White Matter

On January 17, 2006, Leslie White paid respondent $2,000 to assist her in getting her son released from jail. Respondent agreed to return all but $300 if he was unsuccessful in having Ms. White’s son released. Respondent was ultimately unsuccessful. Accordingly, respondent spoke to Ms. White and promised to refund $1,700. Ms. White never received the money. Respondent also failed to further communicate with Ms. White.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.4, 1.5(f)(6), 1.16(d), and 8.4(c).

Counts VII & VIII — The Van Wormer Matters

From June 23, 2006 to July 17, 2006, Dr. George Van Wormer treated respondent’s clients, Shabriell McKay and her two minor children, for injuries they sustained in an automobile accident. Dr. Van Worm-er’s total charges for Ms. McKay and her children were $1,994. By letter dated June 26, 2006, Dr. Van Wormer notified respondent of his health care provider lien. On December 28, 2006, respondent settled the three claims, and the insurance company issued the checks payable to the clients, respondent, and Dr. Van Wormer. Despite the fact that Dr. Van Wormer did not endorse the checks, they all bear his purported endorsement. On March 20, 2007, Dr. Van Wormer contacted the insurance company and learned of the settlements. The next day, he sent respondent a certified letter, demanding payment. However, the letter was returned, marked “not deliverable as addressed” | fiand “unable to forward.” To date, Dr. Van Wormer has not received payment from respondent.

From April 24, 2006 to June 26, 2006, Dr. Van Wormer treated respondent’s client, Jahvan Frazier. Dr. Van Wormer’s total charges were $1,850. By letter dated May 4, 2006, Dr. Van Wormer notified respondent of his health care provider lien. On September 8, 2006, respondent settled Mr. Frazier’s claim, and the insurance company issued a check payable to Mr. Frazier and respondent. On October 12, 2006, Mr. Frazier informed Dr. Van Wormer of the settlement. On January 19, 2007, Dr. Van Wormer sent respondent a letter, demanding payment. To date, Dr. Van Wormer has not received payment from respondent.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.15(d) (failure to timely remit funds to a client or third person), 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 IX — The Louisiana Board of Pharmacy Matter

Respondent represented Southern Discount Drugs, through owner Candace Wilson, in a disciplinary action pending before the Louisiana Board of Pharmacy. Southern Discount Drugs entered into a consent agreement, wherein it agreed to pay the Board $5,750 in fines and costs. On March 7, 2007, respondent issued a trust account check to the Board for his client’s payment. However, the check was returned due to insufficient funds in the account.

During respondent’s May 31, 2007 sworn statement to the ODC, he stated the overdraft was caused by his client’s failure to deposit the funds into his trust account 17following the Board proceedings, as she had promised. However, Ms. Wilson paid respondent $5,750 in cash prior to respondent’s issuance of the check.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 8.1(a) (a lawyer shall not knowingly make a false statement of material fact in connection with a disciplinary matter), 8.4(b), and 8.4(c).

Count X — The Failure to Cooperate Matter

On February 13, 2007, respondent gave a sworn statement to the ODC. During the sworn statement, respondent failed to provide copies of client flies which the ODC had requested. Respondent also failed to provide the ODC with copies of the files in response to an April 4, 2007 subpoena duces tecum.

On April 28, 2007, the ODC’s investigator served respondent with a subpoena to give his sworn statement on May 31, 2007 and provide copies of other relevant client flies. The investigator also provided respondent with copies of subsequent complaints filed against him. Respondent appeared for the May 2007 sworn statement but failed to produce the client files. Respondent also agreed to provide the ODC with copies of his trust account records, but he failed to produce said records.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 8.1(c) (failure to cooperate with the ODC in its investigation) and 8.4(c).

Count XI — The Bar Registration Matter

Respondent moved from his law office in Metairie in April 2007 but did not update his primary registration address with the Louisiana State Bar Association | s(“LSBA”) until September 2007. He has been advised on more than one occasion that he is required to provide the LSBA with up-to-date contact information.

The ODC alleged respondent’s conduct violated Rule 1.1(c) (failure to timely notify the LSBA of changes of address) of the Rules of Professional Conduct.

Count XII — The Breaux Matter

Some time in late 2005, Richard Breaux hired respondent to handle litigation against Mr. Breaux’s former tenant, Joshua Desselles. Mr. Breaux paid respondent a $1,000 advance deposit and gave respondent documents related to the matter. Nonetheless, respondent failed to file a lawsuit on Mr. Breaux’s behalf.

On February 9, 2006, the Jefferson Parish District Attorney’s Office charged Mr. Breaux with aggravated assault, based on allegations made by Mr. Desselles. On May 16, 2006, Mr. Breaux paid respondent $500 to represent him in connection with the criminal charge. That same day, respondent appeared in court with Mr. Breaux and obtained a continuance. On July 11, 2006, respondent again appeared in court on Mr. Breaux’s behalf, but the trial was again continued until August 29, 2006. Respondent assured Mr. Breaux he would try to get the criminal charges dropped before August 29; thus, Mr. Breaux would not need to appear in court on that date. However, respondent failed to resolve the matter and did not appear for the trial. Accordingly, the court issued an instanter attachment for Mr. Breaux.

After receiving notice of the attachment, Mr. Breaux attempted to contact respondent numerous times but was unsuccessful. Instead, on September 5, 2006, he paid a $50 fine to have the attachment recalled.

On October 19, 2006, Mr. Breaux hired another attorney to handle the criminal matter because he still could not contact respondent. The matter was resolved on |January 16, 2007, with Mr. Breaux pleading guilty to disturbing the peace, paying a $75 fine, and being placed on probation until May 7, 2007.

Approximately a week later, Mr. Des-selles filed a lawsuit against Mr. Breaux. Mr. Breaux attempted to contact respondent to obtain the documents associated with his dispute with Mr. Desselles. Respondent did not return Mr. Breaux’s calls or return the documents. Mr. Desselles was ultimately awarded $1,300, and Mr. Breaux hired a third attorney to handle the appeal. Mr. Breaux continued to try to obtain his documents from respondent but was unsuccessful.

In June 2007, Mr. Breaux filed a disciplinary complaint against respondent. Shortly after respondent received notice of the complaint, respondent’s business associate, Mark Jeff, contacted Mr. Breaux to return the documents. However, before he returned the documents, Mr. Jeff made Mr. Breaux sign a letter drafted by respondent, in which Mr. Breaux withdrew his disciplinary complaint. Mr. Jeff also returned the $1,500 Mr. Breaux had paid respondent. Mr. Jeff then mailed the letter to the LSBA in an envelope with Mr. Breaux’s return address.

Mr. Breaux gave the ODC a sworn statement, wherein he testified that he only signed the letter because he believed he would not get the documents if he did not do so. He also testified that he wished to pursue the complaint against respondent. Mr. Jeff also provided the ODC with a sworn statement, wherein he testified that respondent instructed him not to return Mr. Breaux’s money or documents unless Mr. Breaux signed the letter.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.5(f) (failure to account for or refund an unearned fee), 1.16(d), 3.2, 3.4(b) (a lawyer shall not falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that | ]nis prohibited by law), 3.4(f) (a lawyer shall not request a person other than a client to refrain from voluntarily giving relevant information to another party), 8.4(c), and 8.4(d).

Count XIII — The Kruse Matter

In October 2004, Dr. Mark Kruse began treating Julius Landry, respondent’s personal injury client. Dr. Kruse received a letter from respondent guaranteeing payment of Mr. Landry’s medical expenses. Dr. Kruse also provided respondent with notification of his health care provider lien.

Mr. Landry’s medical treatment ended on April 20, 2005, and Dr. Kruse’s final bill was $1,165. Thereafter, Dr. Kruse made numerous attempts to obtain information from respondent about the status of Mr. Landry’s personal injury claim. In August 2006, Mr. Landry informed Dr. Kruse that his case had settled some time in 2005. Dr. Kruse eventually reached respondent on his cell phone, and respondent agreed to submit payment to Dr. Kruse. However, respondent still owes Dr. Kruse $550.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.15(d), 8.4(b), and 8.4(c).

Hearing Committee Report

As previously indicated, respondent failed to answer the formal charges in 08-DB-010. Accordingly, the factual allegations were deemed admitted. After considering the ODC’s deemed admitted submission, the hearing committee determined, based on the deemed admitted facts and the additional evidence presented by the ODC, that respondent has violated the following provisions of the Rules of Professional Conduct: 1.1(b), 1.1(c), 1.3, 1.4, 1.5(f), 1.5(f)(6), 1.15(d)i_Jbjl.l6(d), 3.2, 3.3(a)(1), 3.4(b), 3.4(f), 5.5(a), 8.1(a), 8.1(c), 8.4(b), 8.4(c), and 8.4(d). The committee found the deemed admitted facts and supporting documentation establish by clear and convincing evidence a pattern of respondent: a) accepting fees and not doing the agreed-upon work; b) failing to return unearned fees and/or client files; c) failing to communicate with clients; d) engaging in the unauthorized practice of law; and e) making misrepresentations to the judiciary and the ODC.

The committee further determined respondent’s actions violated duties owed to his clients, the legal system, and the legal profession. At a minimum, he acted negligently, and his violations caused serious harm to his clients. Respondent’s actions resulted in the delay of legal proceedings and additional expenses to his clients. Furthermore, the record reflects respondent has abandoned his law practice with clients not receiving their files or the unearned portion of fees paid. Citing the ABA’s Standards for Imposing Lawyer Sanctions, the committee determined the baseline sanction is disbarment.

In aggravation, the committee found pri- or disciplinary offenses (2006 admonition for practicing law while ineligible due to failure to comply with MCLE requirements), a dishonest or selfish motive, a pattern of misconduct, and multiple offenses. The committee did not address the presence of mitigating factors.

Under these circumstances, the committee recommended respondent be disbarred.

Neither respondent nor the ODC filed an objection to the hearing committee’s report in 08-DB-010.

11208-DB-088

Count I — The Gabriel Matter

From February 4, 2005 until August 17, 2005, respondent was ineligible to practice law for failing to comply with MCLE requirements. From October 31, 2005 until February 9, 2006, respondent was ineligible to practice law for failing to pay bar dues and the disciplinary assessment. Nonetheless, on July 18, 2005, respondent agreed to represent Al’Demon Gabriel in a criminal matter for a $10,000 fee. Over the next eighteen months, Terry Lynn Gabriel, Al’Demon’s mother, paid respondent a total of $5,775.

Between July 27, 2005 and March 26, 2007, respondent filed various motions and pleadings and appeared in court on numerous occasions on Al’Demon’s behalf. However, on March 26, 2007, respondent withdrew from the representation because Ms. Gabriel had failed to pay the entire $10,000 fee. After withdrawing, respondent failed to provide Ms. Gabriel or Al’Demon with an accounting and/or refund of any unearned portion of the fee. Furthermore, during the representation, respondent failed to keep Al’Demon reasonably informed about the status of his case. From August 24, 2005 to August 3, 2006, respondent failed to communicate with Al’Demon at all.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.1(b), 1.1(c) (failure to pay bar dues and the disciplinary assessment), 1.4, 1.5(f)(5) (failure to refund an unearned fee), 1.16(d), 3.2, and 5.5(a).

Count II — The Poplus Matter

On October 21, 2007, George Poplus hired respondent to represent him in a criminal matter, paying respondent $500 of the $1,000 fee, with the balance due after 1iaMr. Poplus’ trial. Thereafter, respondent failed to meet with Mr. Poplus as promised. Respondent also failed to communicate with Mr. Poplus, despite Mr. Po-plus’ numerous attempts to contact him. On November 12, 2007, Mr. Poplus appeared in court for his trial. Respondent failed to appear, despite receiving notice of the trial date.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.5(f)(5), 1.16(d), 3.2, 8.4(c), and 8.4(d).

Count III — The Filer Matter

In late September 2007, Cornell Filer hired respondent to represent him in a criminal matter. In October and November 2007, Mr. Filer paid respondent a total of $1,500 towards his $10,000 fee.

Respondent assured Mr. Filer he would file a motion to reduce bond and later advised Mr. Filer he had filed the motion when, in fact, he had not done so. Respondent also falsely informed Mr. Filer he had appeared in court at a hearing on the motion, and the motion was denied.

On October 19, 2007, respondent filed a motion for preliminary examination, which was set for November 15, 2007. Respondent failed to appear in court for the preliminary examination.

Thereafter, Mr. Filer was unsuccessful in contacting respondent, as respondent’s office telephone number had been disconnected and his cell phone number was being directed to voice mail. Respondent failed to respond to Mr. Filer’s voice mail messages.

114The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.5(f)(5), 1.16(d), 3.2, 8.4(c), and 8.4(d).

Count IV — The Ball Matter

Some time after May 3, 2007, Jasper Ball hired respondent to represent him in a criminal matter. Mr. Ball paid respondent $1,000 towards his $1,500 fee.

On August 2, 2007 and August 15, 2007, respondent appeared in court on Mr. Ball’s behalf and requested continuances. Respondent failed to appear in court on the next two scheduled court dates. Mr. Ball also did not appear. Consequently, the criminal commissioner ordered an attachment be issued for Mr. Ball and ordered his $500 bail be forfeited. The commissioner delayed implementation of her order until October 12, 2007. On that date, respondent appeared at the courthouse and accepted notice of a new hearing date, and the attachment/forfeiture order was not issued. However, respondent also failed to appear at the next two scheduled court dates.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4,1.5(f)(5), 1.16(d), 3.2, 8.4(c), and 8.4(d).

Count V — The Brown Matter

In May 2007, Eugene Brown hired respondent to handle his divorce and child custody matter. Mr. Brown paid respondent $750 in three payments.

On May 31, 2007, respondent filed a petition for divorce on Mr. Brown’s behalf. Mr. Brown signed an affidavit of verification that was filed with the petition. However, respondent’s secretary signed respondent’s name as notary on the affidavit.

| , ¡¡After their initial meeting, respondent would not return Mr. Brown’s phone calls. Respondent appeared with Mr. Brown at a hearing officer’s conference on October 5, 2007. Thereafter, Mr. Brown was only able to contact respondent once, despite numerous attempts.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4,1.5(f)(5), 1.16(d), 3.2, 5.3(b) (failure to properly superase a non-lawyer assistant), 8.4(c), and 8.4(d).

Counts VI & VIII — The Gerac/Garris Matters

On April 2, 2007, Peggy Gerac hired respondent to represent her grandson, Christopher Garris, on charges of failure to appear at a scheduled court date. She paid respondent $1,000.

Respondent met privately with Mr. Gar-ris on that date. At the time, Mr. Garris had outstanding attachments for his arrest for failing to appear. According to Mr. Garris, respondent spoke with the judge and handled the matter. Respondent also advised Mr. Garris he would not have to make any additional court appearances to conclude the matter. A week or two later, Ms. Gerac spoke with respondent, who told her the same thing he had told Mr. Garris.

In June 2007, Ms. Gerac paid respondent a $750 fee and $250 in court costs to assist her in quieting title to property she had acquired at a sheriffs sale. In July 2007, respondent filed a petition to quiet tax title on Ms. Gerae’s behalf. Thereafter, respondent closed his law office without notifying Ms. Gerac and failed to take further action on the matter.

On December 31, 2007, Mr. Garris was taken into custody on the failure to appear attachments issued prior to his consultation with respondent. The court | ¡(¡records of the cases pending against Mr. Garris indicate respondent did not file a motion to enroll as counsel or any other pleadings on Mr. Garris’ behalf.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4,1.5(f)(5), 1.16(d), 3.2, 8.4(c), and 8.4(d).

Count VII — The Wendell Gerac Matter

In 2007, Wendell Gerac paid respondent $400 towards an $800 fee to have respondent assist him in changing his son’s last name. After paying the $400, Mr. Gerac had trouble communicating with respondent and his office staff. Two weeks after making the payment, respondent’s non-lawyer assistant contacted Mr. Gerac and threatened to sue him if he did not pay the remaining $400. Thereafter, Mr. Gerac made three visits to respondent’s office, but his office was closed each time. Since then, Mr. Gerac has had no further communication with respondent or anyone from his office.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.4, 1.5(f)(5), and 1.16(d).

Count IX — The Lewis Matter

In March 2007, Michael Lewis hired respondent to represent him in a criminal matter. At their initial meeting, Mr. Lewis, with his father’s help, paid respondent $2,500 towards the $7,500 fee. On April B, 2007, respondent appeared with Mr. Lewis for his arraignment. A trial date was set for June 25, 2007. On April 23, 2007, Mr. Lewis, again with his father’s help, paid respondent the remainder of the fee. On 117May 8, 2007, respondent filed several motions on Mr. Lewis’ behalf, which motions were ultimately set for hearing on December 17, 2007.

Some time in May 2007, Mr. Lewis began to have trouble communicating with respondent. Thereafter, Mr. Lewis’ father encountered respondent at the courthouse and requested a refund of the fee paid. Respondent failed to provide the refund or an accounting.

Respondent also failed to inform Mr. Lewis of the court dates. As a result, Mr. Lewis failed to appear at the December 17, 2007 hearing, and a bench warrant was issued for his arrest. Mr. Lewis had to hire another attorney to have the warrant recalled.

Mr. Lewis’ attempts to contact respondent since May 2007 have been unsuccessful. Some time in late 2007, respondent abandoned his law office without notifying his clients, including Mr. Lewis.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.8, 1.4,1.16(d), 3.2, and 8.4(d).

Count X — The Pittman Matter

In September 2007, David Pittman hired respondent to represent him in a criminal matter for a $2,000 fee. Respondent filed two motions on Mr. Pittman’s behalf, one being a motion to reduce Mr. Pittman’s bond. Following the bond reduction hearing on November 5, 2007, Mr. Pittman was unable to contact respondent.

Other than one conversation in September 2007, Mr. Pittman has not met with or spoken to respondent because his attempts to contact respondent have been | ^unsuccessful. Some time in late 2007, respondent abandoned his law office without notifying his clients, including Mr. Pittman.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4,1.16(d), 3.2, and 8.4(d).

Count XI — The Dauterive Matter

In April 2007, Joey Dauterive hired respondent to represent him in a criminal matter. Mr. Dauterive paid respondent a $10,000 fee, plus $1,500 to cover the expense of independent fingerprint testing.

Respondent filed numerous motions and appeared in court on Mr. Dauterive’s behalf. However, beginning in November 2007, Mr. Dauterive was unable to contact respondent, despite repeated attempts. Some time in late 2007, respondent abandoned his law office without notifying his clients, including Mr. Dauterive. Thereafter, respondent failed to appear in court or take any other action on Mr. Dauterive’s behalf.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4,1.16(d), 3.2, and 8.4(d).

Count XII — The Alexander Matter

In September 2007, respondent appeared in court to represent Andrew Alexander in a criminal matter. In December 2007, respondent missed two court dates on Mr. Alexander’s behalf. On both occasions, Mr. Alexander notified the court that he had been unable to contact respondent. Some time in late 2007, respondent abandoned his law office without notifying his clients, including Mr. Alexander. Mr. Alexander had to retain another attorney to assist him.

11sThe ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3,1.4,1.16(d), 3.2, and 8.4(d).

Count XIII — The James Matter

Some time after April 20, 2007, Ali James hired respondent to represent him in a criminal matter. Mr. James paid respondent $6,300 towards his $10,000 fee.

Respondent filed numerous motions and appeared in court on Mr. James’ behalf. However, respondent failed to appear at a scheduled hearing in December 2007. Some time in late 2007, respondent abandoned his law office without notifying his clients, including Mr. James.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4,1.16(d), 3.2, and 8.4(d).

Counts XIV & XVI — The Nerve Matter

In September 2007, Sandral Nerve hired respondent to represent her sons, Charles Nerve and Jeric Nerve, in criminal matters for a combined fee of $11,000. Initially, Ms. Nerve paid respondent $4,000.

Respondent filed numerous motions and appeared in court on Charles’ behalf. However, in November 2007, the Nerves began to have trouble contacting respondent. Just before Thanksgiving 2007, Ms. Nerve attempted to contact respondent to make an additional $1,000 payment, but respondent failed to respond to her messages. On December 17, 2007, respondent failed to appear in court for Charles’ trial, and the court appointed the Indigent Defender Board to represent him.

Respondent filed one motion on behalf of Jeric. However, the sheriffs office was unable to locate respondent to serve him with notice of the hearing on the motion | j>nbecause he had moved from his law office. Respondent abandoned his law office without notifying his clients, including Jeric.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4,1.16(d), 3.2, and 8.4(d).

Count XV— The Walker Matter

Shortly after August 24, 2007, Travon Walker hired respondent to represent him in a criminal matter. Mr. Walker paid a total of $3,000 towards respondent’s $8,500 fee. Respondent agreed to allow Mr. Walker to pay the balance at a rate of $200 per month. Respondent filed motions and appeared in court on Mr. Walker’s behalf. Thereafter, respondent’s office staff called Mr. Walker to demand additional payments, despite the payment arrangement. Some time in late 2007, respondent abandoned his law office with notifying his clients, including Mr. Walker.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4,1.16(d), 3.2, and 8.4(d).

Count XVII — The Failure to Cooperate Matter

Copies of the complaints associated with Counts II-XVI were forwarded to respondent via certified mail, all of which were returned marked “Unclaimed,” “Refused,” or “Vacant.” Copies of the complaints sent to an additional known address for respondent via regular mail were not returned.

The ODC’s investigators also made several attempts to serve respondent with copies of the complaints and subpoenas compelling him to provide a sworn statement. These attempts were unsuccessful because respondent was not at the address, or in at least one instance, was present but refused to answer the door.

|¡>iThe ODC alleged respondent’s conduct violated Rule 8.1(c) of the Rules of Professional Conduct.

Hearing Committee Report

As previously indicated, respondent failed to answer the formal charges in 08-DB-088. Accordingly, the factual allegations were deemed admitted. After considering the ODC’s deemed admitted submission, the hearing committee determined the following was proven by clear and convincing evidence: respondent failed to comply with the minimum requirements of continuing legal education, in violation of Rule 1.1(b) of the Rules of Professional Conduct; he failed to comply with rules regarding payment of bar dues and the disciplinary assessment, in violation of Rule 1.1(c); he neglected legal cases, in violation of Rule 1.3; he failed to reasonably communicate with clients, in violation of Rule 1.4, he failed to return unearned fees or render accountings, in violation of Rules 1.5(f)(5) and 1.16(d); he failed to expedite litigation, in violation of Rule 3.2; he failed to properly supervise a non-lawyer assistant, in violation of Rule 5.3; and he engaged in conduct prejudicial to the administration of justice, in violation of Rule 8.4(d). However, the committee found the ODC failed to prove respondent deliberately or intentionally failed to cooperate with a disciplinary investigation, in violation of Rule 8.1(c).

The committee also noted aggravating factors, including a dishonest or selfish motive, a pattern of misconduct, and illegal conduct. The committee did not note any mitigating factors.

After considering this court’s prior jurisprudence involving similar misconduct, the committee determined “[a] very stiff sanction is generally warranted for a | ¡^combination of violations such as those at hand.” Accordingly, the committee recommended respondent be permanently disbarred.

Neither respondent nor the ODC filed an objection to the hearing committee’s report in 08-DB-088.

Disciplinary Board Recommendation 08-DB-010 & 08-DB-088

After reviewing these consolidated matters, the disciplinary board determined that the factual findings of both hearing committees are supported by the factual allegations asserted by the ODC in the formal charges and/or by the evidence submitted in support of the deemed admitted factual allegations. The board also determined the committees correctly applied the Rules of Professional Conduct, with one exception. In 08-DB-088, the committee found respondent did not violate Rule 8.1(c) because the ODC failed to prove respondent “deliberately or intentionally failed to cooperate” with the ODC’s investigation. However, the board noted that the language of Rule 8.1(c) does not mandate a finding of intent. Therefore, the board determined respondent violated Rule 8.1(c) by either failing to update his registration address or failing to accept mail at his registration address, both of which constitute at least a negligent violation of the rule. The board determined the other rule violations are amply supported by specific deemed admitted factual allegations.

The board also determined respondent knowingly, if not intentionally, violated duties owed to his clients, the legal system, and the legal profession. Respondent essentially abandoned his law practice at the end of 2007. He caused significant harm to several clients by failing to return unearned fees after abandoning those clients. He also left several criminal clients unrepresented without notifying those clients or | ^the courts. He harmed the legal system by failing to appear at hearings without notice to the courts and by practicing law while ineligible. He also harmed the legal system by failing to maintain his MCLE and registration requirements, which caused the ODC to expend additional resources in its investigations. After considering the ABA’s Standards for Imposing Lawyer Sanctions, the board determined the baseline sanction is disbarment.

The board found the following aggravating factors present: prior disciplinary offenses, a dishonest or selfish motive, a pattern of misconduct, multiple offenses, vulnerability of the victim, substantial experience in the practice of law (admitted 1989), and indifference to making restitution. The board found no mitigating factors present.

Turning to the issue of an appropriate sanction, the board determined respondent failed to return unearned fees to his clients, which this court has held constitutes conversion of those funds. See In re: Deshotels, 03-2060 (La.12/12/03), 863 So.2d 507. Respondent also intentionally converted money owed to third parties. Therefore, the board determined Guideline 1 of the permanent disbarment guidelines, which states that permanent disbarment may be warranted for “[r]epeated or multiple instances of intentional conversion of client funds with substantial harm,” applies in this matter. The board also cited In re: Alleman, 07-2060 (La.5/30/08), 982 So.2d 814, in which this court permanently disbarred an attorney, based on Guideline 1, who “neglected numerous legal matters, abandoned his law practice, and failed to refund unearned fees and unused costs, converting those funds to his own use.” The board noted respondent engaged in conduct similar to that found in Alleman. However, he also engaged in the unauthorized practice of law on several occasions by practicing law while ineligible. In In re: Pitre, 05-0853 (La.6/17/05), | ¾903 So.2d 1130, this court disbarred an attorney who repeatedly practiced law while ineligible.

Under these circumstances, and given the egregious and extensive nature of respondent’s misconduct, the board recommended respondent be permanently disbarred.

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

DISCUSSION

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

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

12¡jln this consolidated matter, the deemed admitted facts establish respondent neglected legal matters, failed to communicate with clients, failed to refund unearned fees, failed to pay third-party medical providers, issued an NSF check from his trust account, practiced law while ineligible, refused to return an unearned fee and documents to a client until the client dismissed his disciplinary complaint, engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation, gave false statements to the ODC, and failed to cooperate with the ODC. The deemed admitted factual allegations and/or the documentary evidence submitted in support of them indicate respondent violated the Rules of Professional Conduct as alleged in the formal charges, with one exception. The record does not support a finding that respondent violated Rule 8.4(c) in the Ball matter. Furthermore, in the Weathersby, Lafayette, and White matters, all of which occurred after 2004, respondent violated Rule 1.5(f)(5) and not Rule 1.5(f)(6) as alleged by the ODC.

With respect to the unearned fees, the record reflects respondent failed to account for or refund unearned fees totaling $51,525. Additionally, respondent failed to remit payments to third-party medical providers totaling $4,344, and he wrote a $5,750 trust account check that was returned due to insufficient funds in the account.

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, the legal system, and the legal profession. He caused significant monetary harm to his clients and third-party medical providers. He also harmed the legal system and the legal profession. His behavior towards Mr. Breaux was particularly reprehensible, and he engaged in dishonest conduct on numerous occasions. The baseline sanction for this type of misconduct is disbarment.

The record supports the aggravating factors found by the disciplinary board. There are no mitigating factors present. Accordingly, a downward deviation from the baseline sanction is unwarranted.

Therefore, the only issue for our consideration is whether respondent’s conduct is so egregious as to warrant his permanent disbarment from the practice of law. We agree with the board that Guideline 1 of the permanent disbarment guidelines listed in Appendix E of Supreme Court Rule XIX is applicable in this matter. In accepting fees, then failing to do any substantial work, respondent converted more than $51,000 in client funds. He has abandoned his law practice and appears to have no intention of ever providing refunds of the unearned fees. In In re: Alleman, 07-2060 (La.5/30/08), 982 So.2d 814, and In re: Straub, 08-2354 (La.1/30/09), 999 So.2d 1123, we permanently disbarred attorneys for similar conduct. Additionally, respondent failed to remit funds to third-party medical providers and wrote an NSF check on his trust account.

Accordingly, we will adopt the disciplinary board’s recommendation and permanently disbar respondent. We further order respondent to make restitution to his victims.

|27DECREE

Upon review of the findings and recommendations of the hearing committees and disciplinary board, and considering the record, it is ordered that the name of Richard Bates, Louisiana Bar Roll number 19476, be stricken from the roll of attorneys and that his license to practice law in the State of Louisiana 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 respondent render an accounting to his clients subject of the formal charges and make restitution of any unearned fees. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

       Chief Justice Kimball not participating in the opinion.

      . On May 3, 2006, respondent received an admonition for practicing law during this MCLE ineligibility period.

      . The obligation to refund an unearned fee was set forth in Rule 1.5(f)(6) prior to the 2004 amendments to the Rules of Professional
        Conduct; however, after 2004, this requirement is contained in Rule 1.5(f)(5).

      . On May 9, 2007, respondent forwarded to the Board a cashier’s check in the amount of $5,775, which represented payment of the original amount, plus a $25 NSF fee.

      . See note 2, supra.


text:
    In re Tyffanie A. VIAL.
    No. 2010-B-0598.
    Supreme Court of Louisiana.
    April 16, 2010.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent notarized an act of sale although she was not present when the parties signed the document, signed as a witness to the accompanying mortgage document, and then filed the document into the public record. Prior to the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted, and that Tyffanie A. Vial, Louisiana Bar Roll number 27125, be and she hereby is publicly reprimanded.

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.

       Chief Justice Kimball not participating in the opinion.


text:
    Rose GOUDEAU, et al. v. The ADMINISTRATORS OF the TULANE EDUCATIONAL FUND, et al.
    No. 2010-CC-0925.
    Supreme Court of Louisiana.
    May 7, 2010.
   In re Administrators of the Tulane Educational Fund et al.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. E, No. 2004-4758; to the Court of Appeal, Fourth Circuit, No. 2010-C-0576.

Granted. Although the “temporary transfer” rale does not necessarily conflict with principles of random allotment, we find the interests of judicial economy in this matter favor maintaining the suit in the division to which it was randomly allotted following the recusation of the judge pro tempore. Accordingly, the trial court’s April 13, 2010 order is vacated, and the suit is returned to Division “E-7.”

GUIDRY, J„ would deny.

CLARK, J., would deny.