In re Barrios

108 So. 3d 742, 2013 WL 766176, 2013 La. LEXIS 337
CourtSupreme Court of Louisiana
DecidedMarch 1, 2013
DocketNo. 2012-B-2705
StatusPublished

This text of 108 So. 3d 742 (In re Barrios) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Barrios, 108 So. 3d 742, 2013 WL 766176, 2013 La. LEXIS 337 (La. 2013).

Opinion

[743]*743ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

| iThis disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Robert L. Barrios, a disbarred attorney.

PRIOR DISCIPLINARY HISTORY

Before we address the current charges, we find it helpful to review respondent’s prior disciplinary history. After being admitted to the practice of law in Louisiana in 1977, respondent’s first disciplinary infraction occurred in October 1984, when he was privately reprimanded by the Committee on Professional Responsibility for neglecting a legal matter. In November 1984, he was privately reprimanded for neglecting a legal matter and failing to communicate with a client. In June 1989, respondent was privately reprimanded for failing to cooperate in a disciplinary investigation. In March 1993, he was admonished by the disciplinary board for neglecting a legal matter, failing to communicate with a chent, failing to promptly refund an unearned fee, and failing to cooperate with the ODC in an investigation. Later that year, he was twice admonished by the board for failing to cooperate with the ODC in its investigations.

[744]*744In April 2006, this court suspended respondent from the practice of law for two years for engaging in a pattern of misconduct involving the neglect of legal matters, failure to communicate with clients, failure to account for and timely | ¿refund unearned fees, and failure to cooperate with the ODC in its investigation. In re: Barnos, 05-1982 (La.4/17/06), 929 So.2d 63 (“Barrios I ”). In November 2008, we disbarred respondent for nearly identical misconduct. In re: Barrios, 08-1679 (La.11/10/08), 993 So.2d 1200 (“Barrios II”). In February 2011, we adjudged respondent guilty of identical misconduct and extended by two years the minimum time period in which he can apply for readmission. In re: Barrios, 10-2582 (La.2/4/11), 54 So.3d 649 (“Barrios III”). Respondent remains disbarred from the practice of law.

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

FORMAL CHARGES

In October 2010, the ODC received a complaint from Rosaline Martin alleging that in 2000 or 2002, she hired respondent to represent her in a civil action against her son for injuries she sustained following an argument with him. Pursuant to the representation, Ms. Martin paid respondent $2,500, which she borrowed from a friend. A few days after hiring respondent, Ms. Martin decided to drop the suit. She informed respondent of her decision and requested a refund. In response, respondent advised that he would contact her once he calculated how much she owed him. When respondent failed to contact Ms. Martin, she attempted to contact him for the next two years, to no avail. Respondent failed to cooperate with the ODC in its investigation of the complaint filed against him by Ms. Martin.

DISCIPLINARY PROCEEDINGS

In November 2011, the ODC filed one count of formal charges against respondent, alleging that his conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3 (failure to act with reasonable diligence and 1 spromptness in representing a client), 1.4 (failure to communicate with a client), 1.5(f)(5) (failure to refund an unearned fee), 1.16(d) (obligations upon termination of the representation), and 8.1(c) (failure to cooperate with the ODC in its investigation).

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

Hearing Committee Report

After considering the ODC’s deemed admitted submission, the hearing committee adopted the deemed admitted factual allegations of the formal charges as its factual findings. Based on those facts, the committee determined respondent violated the Rules of Professional Conduct as charged.

The committee did not discuss the factors listed in Supreme Court Rule XIX, § 10(C), to be considered in imposing a sanction. Instead, the committee simply recommended that respondent’s misconduct be taken into consideration in the event he applies for readmission to the bar.1 The committee also recommended [745]*745that respondent be required to make full restitution to his client and be assessed with the costs and expenses of this proceeding.

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

14Disciplinary Board Recommendation

After review, the disciplinary board determined that the hearing committee’s factual findings in this deemed admitted matter are supported by the factual allegations in the formal charges and/or by the evidence submitted in support of those allegations. The board also found respondent violated the Rules of Professional Conduct as alleged in the formal charges.

The board determined that respondent knowingly, and perhaps intentionally, violated duties owed to his client and the profession. Despite the fact that Ms. Martin requested a refund within days of retaining respondent, he failed to respond to her request. Ms. Martin has yet to receive a refund, which amounts to significant harm.

As aggravating factors, the board found a prior disciplinary record, a dishonest or selfish motive, a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, indifference to making restitution, and substantial experience in the practice of law (admitted 1977). The board determined that the record does not support any mitigating factors.

Turning to the issue of an appropriate sanction, the board determined that respondent’s substantive misconduct occurred during the same time period as the misconduct subject of Barrios II and Barrios III. Accordingly, the board determined that the approach of Louisiana State Bar Ass’n v. Chatelain, 573 So.2d 470 (La.1991), is applicable to the substantive misconduct in this case.2 However, the board pointed out that respondent’s failure to cooperate occurred outside of the time period subject to the Chatelain analysis. Therefore, for respondent’s misconduct in failing to cooperate with the ODC in . its investigation, the board | ¿recommended that the time period in which respondent can apply for readmission be extended by one year, to run consecutive to the extension ordered by this court in Barrios III. Finally, the board recommended that respondent be assessed with all costs of these proceedings and be ordered to make restitution to his client.

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).

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Related

In Re Barrios
993 So. 2d 1200 (Supreme Court of Louisiana, 2008)
Louisiana State Bar Ass'n v. Chatelain
573 So. 2d 470 (Supreme Court of Louisiana, 1991)
In Re Banks
18 So. 3d 57 (Supreme Court of Louisiana, 2009)
Louisiana State Bar Ass'n v. Whittington
459 So. 2d 520 (Supreme Court of Louisiana, 1984)
Louisiana State Bar Ass'n v. Reis
513 So. 2d 1173 (Supreme Court of Louisiana, 1987)
In re Barrios
54 So. 3d 649 (Supreme Court of Louisiana, 2011)
In re Donnan
838 So. 2d 715 (Supreme Court of Louisiana, 2003)
In re Boudreau
860 So. 2d 1119 (Supreme Court of Louisiana, 2003)
In re Barrios
929 So. 2d 63 (Supreme Court of Louisiana, 2006)

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Bluebook (online)
108 So. 3d 742, 2013 WL 766176, 2013 La. LEXIS 337, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-barrios-la-2013.