In Re Bernstein

966 So. 2d 537, 2007 WL 2994612
CourtSupreme Court of Louisiana
DecidedOctober 16, 2007
Docket2007-B-1049
StatusPublished
Cited by5 cases

This text of 966 So. 2d 537 (In Re Bernstein) 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 Bernstein, 966 So. 2d 537, 2007 WL 2994612 (La. 2007).

Opinion

966 So.2d 537 (2007)

In re David H. BERNSTEIN.

No. 2007-B-1049.

Supreme Court of Louisiana.

October 16, 2007.

*538 Charles Bennett Plattsmier, Baton Rouge, for applicant.

Alston Law Firm, Elizabeth A. Alston, New Orleans, David Howard Bernstein, Metairie, for respondent.

ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

This disciplinary matter arises from formal charges filed by the Office of Disciplinary *539 Counsel ("ODC") against respondent, David H. Bernstein, an attorney licensed to practice law in Louisiana. For the reasons that follow, we now disbar respondent.

UNDERLYING FACTS

The facts of this matter are largely undisputed. Respondent was employed by the New Orleans law firm of Lowe, Stein, Hoffman, Allweiss & Hauver ("Lowe Stein") from 1987 to 1996. On several occasions during respondent's tenure at the firm, his clients paid him directly for legal services rendered. Respondent cashed these checks and did not turn over the money to the Lowe Stein firm. To cover up his actions, respondent instructed the firm's accounting department to write off the client's bill in question. In one instance, respondent cashed a check made payable to him by a client but neglected to tell the accounting department to write off the bill. While respondent was on vacation, the firm issued a follow-up bill to the client, who called the accounting department and advised that the bill had already been paid. The accounting department requested that the client provide a copy of the check, and upon examination, it was apparent that respondent had endorsed the check and cashed it. When respondent returned from his vacation, his partners at Lowe Stein confronted him. Respondent initially denied any knowledge of the theft and blamed his secretary for making a "mistake,"[1] but after the partners told respondent they had proof he had taken the money, he admitted what he had done. Respondent was then dismissed from Lowe Stein; however, the firm took no other action against him and did not report the misconduct to the ODC.[2] The firm also agreed that it would not disclose the matter to anyone else.

After leaving Lowe Stein, respondent met with Jack Alltmont, the managing partner of the law firm of Sessions Fishman & Nathan ("Sessions Fishman"). Respondent told Mr. Alltmont that he was interested in making a move to the firm if there was an opportunity available to do so. During the discussion, Mr. Alltmont asked respondent why he was leaving Lowe Stein. Respondent did not tell Mr. Alltmont that he had been dismissed from his firm, but when Mr. Alltmont mentioned that he would be contacting Lowe Stein, respondent realized that he had little choice but to authorize Lowe Stein to discuss the details of his dismissal from the firm. Respondent did so, but not before telling Mr. Alltmont that he had only taken money from Lowe Stein on one occasion. After speaking to a partner of the Lowe Stein firm, Mr. Alltmont learned that respondent had taken the firm's money more than once. Respondent was then interviewed a second time by Mr. Alltmont and the other partners of Sessions Fishman. During the second interview, respondent assured the partners that "it would never happen again."

Respondent did not take money belonging to Sessions Fishman for several years after he first started working for the firm *540 in 1996. However, in 2001, respondent began sending clients billing statements on his personal letterhead stationery. These "letterhead billing statements" were not handled through the Sessions Fishman accounting department, and indeed, the firm had no knowledge that respondent had done any work for these clients because he did not enter his hours in the firm's timekeeping system. Respondent would then receive the check from the client, cash it, and keep the money for himself.

Early in 2004, Marguerite Bougere, a client of the Sessions Fishman firm for whom respondent had handled several legal matters, questioned the amount of the legal fees on a "letterhead billing statement" she received from respondent. Ms. Bougere consulted with a friend, attorney Edith Morris, who suggested that Ms. Bougere call the accounting department at Sessions Fishman to request copies of her detailed billing statements. Upon learning that the accounting department had never sent bills to Ms. Bougere, and further that Ms. Bougere had made her checks payable directly to respondent, Ms. Morris contacted Mr. Alltmont to alert him to the problem. A limited investigation by Mr. Alltmont found that the firm had no record of any billings or collection activity regarding Ms. Bougere in the time frame covered by the "letterhead billing statements." The law firm also discovered that respondent's misconduct was not confined to the Bougere file, and that he had on multiple occasions created false billings "off the books" in order to collect fees from clients which he then converted to his own use.

Mr. Alltmont and others confronted respondent, who initially denied that he had done anything improper.[3] Respondent eventually admitted his misconduct, and in March 2004 he was dismissed from Sessions Fishman.[4] In April 2004, after respondent had accepted a position with his present law firm, Mr. Alltmont told respondent that if he did not report this matter to the ODC, the firm would have no choice but to do so.

By letter dated July 1, 2004, respondent's counsel reported to the ODC that respondent suffers from a "condition of mental impairment," specifically his "impulsive and uncontrollable urges to cash relatively small checks for payment of his legal services which should have been deposited into his former law firms' accounts."

DISCIPLINARY PROCEEDINGS

Following its investigation, the ODC filed one count of formal charges against respondent, alleging that his conduct violated Rules 8.4(a) (violation of the Rules of Professional Conduct) and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation) of the Rules of Professional Conduct. Respondent answered the formal charges and admitted his misconduct, but requested a hearing in mitigation.

Prior to the hearing, respondent filed a memorandum characterizing his misconduct as "more in the nature of a breach of *541 contract with his law firm." Respondent asserted that this misconduct was caused by a mental disability, and he proposed that he be publicly reprimanded with indefinite probation and monitoring. The ODC sought permanent disbarment for respondent's commission "of the most serious form of professional misconduct under our rules . . . dishonesty, fraud, deceit and misrepresentation."

Mitigation Hearing

Because respondent did not dispute the ODC's allegations of misconduct, the hearing before the committee was limited to the issue of mitigation. The committee received documentary evidence submitted by both respondent and the ODC.

The ODC presented testimony from five of respondent's former law partners. These witnesses testified they believed that respondent was living beyond his means and that his lifestyle was not consistent with the income he earned as an attorney.

Respondent introduced medical reports and testimony in support of his contention that his misconduct was caused by a compulsive disorder. In particular, respondent relied on testimony from Chester Scrignar, M.D., a psychiatrist who had treated him since March 2004.[5] Dr.

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Related

In re Henry
191 So. 3d 562 (Supreme Court of Louisiana, 2016)
In re Bernstein
182 So. 3d 41 (Supreme Court of Louisiana, 2015)
In re Mitchell
145 So. 3d 305 (Supreme Court of Louisiana, 2014)
In re Pearson
100 So. 3d 313 (Supreme Court of Louisiana, 2012)
In Re Sharp
16 So. 3d 343 (Supreme Court of Louisiana, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
966 So. 2d 537, 2007 WL 2994612, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-bernstein-la-2007.