In re Donald

127 So. 3d 918, 2013 WL 5909833, 2013 La. LEXIS 2371
CourtSupreme Court of Louisiana
DecidedNovember 1, 2013
DocketNo. 2013-B-2056
StatusPublished
Cited by1 cases

This text of 127 So. 3d 918 (In re Donald) 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 Donald, 127 So. 3d 918, 2013 WL 5909833, 2013 La. LEXIS 2371 (La. 2013).

Opinion

[919]*919ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

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

UNDERLYING FACTS

By way of background, in 2003, Timothy Mims obtained an $18,800 judgment against Cynthia DeLaSalle, which resulted in a lien against her home. In 2004, Ms. DeLaSalle filed for bankruptcy, and Mr. Mims’ judgment was discharged in the bankruptcy proceedings. Nevertheless, the judgment was not canceled.

In February 2007, Ms. DeLaSalle and her husband attempted to refinance their home. Respondent, acting as the title attorney for the refinance, discovered Mr. Mims’ still-recorded judgment. He informed the DeLaSalles that he could have the judgment canceled for an additional fee of $600. The DeLaSalles agreed to pay the $600 as part of the refinance closing costs.

Following the closing, respondent contacted Mr. Mims’ attorney, Sam Henry, III, but Mr. Henry informed respondent that Mr. Mims would not voluntarily cancel the judgment, despite it having been discharged in Ms. DeLaSalle’s 2004 bankruptcy.

12Without consulting with the DeLa-Salles, respondent decided to take no action at that time, believing the judgment [920]*920would prescribe in 2013 due to Mr. Mims’ failure to re-inscribe same. He never informed the DeLaSalles of his intention to wait out the judgment’s prescription and never informed them that they could file pleadings with the bankruptcy court to secure an order canceling the judgment.

Over the next two and a half years, the DeLaSalles made numerous attempts to obtain information from respondent about the cancellation of the judgment, to no avail. In August 2009, Ms. DeLaSalle sent respondent a letter requesting a refund of the $600 fee so she could hire another attorney to obtain a cancellation of the judgment. Respondent failed to respond to this request.

In September 2009, the DeLaSalles filed a disciplinary complaint against respondent. In response to the complaint, respondent indicated that he was “still working” on the matter. He also indicated that he would file pleadings with the bankruptcy court to start proceedings to have the judgment canceled, or he would refund the $600 to the DeLaSalles so they could hire another attorney, whichever they preferred. The DeLaSalles again expressed to the ODC their wish to obtain a refund and hire another attorney. Nevertheless, respondent did not provide the refund.

In March 2010, respondent gave a sworn statement to the ODC, during which he agreed to address the issue of a possible resolution with Ms. DeLaSalle. In April 2010, he wrote to the DeLaSalles, indicating that he could continue trying to cancel the judgment on their behalf or refund the $600 so they could hire another attorney. In response, Ms. DeLaSalle sent respondent a letter requesting the refund. Respondent never provided the refund.

^DISCIPLINARY PROCEEDINGS

In November 2011, the ODC filed formal charges against respondent, alleging that his conduct as set forth above 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), 1.5(f)(5) (failure to refund an unearned fee), and 1.15 (safekeeping property of clients or third persons). Respondent, through counsel, answered the formal charges, denying any misconduct. He also indicated that he placed the $600 at issue in his client trust account. The matter then proceeded to a formal hearing on the merits.

Hearing Committee Report

After considering the testimony and evidence presented at the hearing, the hearing committee determined that the testimony of the DeLaSalles was credible. They both testified that they had no contact with respondent following the closing in February 2007 until after they filed the disciplinary complaint against him in September 2009. During this time period, they placed numerous calls to his office, none of which were returned. Mr. DeLa-Salle also testified that he attempted to speak with respondent at his office on several occasions. However, he was only able to speak with respondent once, at which time respondent informed him that he had misplaced their file and would get back to them after locating it. Respondent also did not respond to Ms. DeLa-Salle’s letter requesting a refund so she could hire another attorney.

The committee further determined, based on the testimony and evidence, that respondent designated $600 in his client trust account as “segregated for disputed fee” upon receiving the disciplinary complaint. He testified that he would happily return the $600 fee immediately only if the DeLaSalles hired another |4attorney who could seek cancellation of the judgment. [921]*921Respondent admitted that this concern was, at least in part, self-serving.

After analyzing the testimony and evidence, the committee made the following factual findings:

When respondent accepted the $600 to have Mr. Mims’ judgment canceled, he anticipated a quick resolution via a telephone call to his friend, Mr. Henry. Upon learning that Mr. Mims would not agree to cancel the judgment, respondent was faced with a conflict. He needed to get the judgment canceled, but the only definite way to immediately accomplish this involved re-opening Ms. DeLaSalle’s bankruptcy, the cost of which would exceed the $600 fee. Assuming that the DeLaSalles would not want to pay for further legal services, and fearing for his business relationship with lenders and title insurance companies if the judgment was not canceled, respondent decided to do nothing with the hope that the judgment would prescribe. The DeLaSalles repeatedly indicated their wish to discharge respondent and to receive a refund of the $600 fee. Respondent ignored these requests and failed to offer them the option of the Louisiana State Bar Association’s Fee Dispute Resolution Program. He ultimately indicated he would refund the entire $600 but only if the DeLaSalles hired another attorney to pursue the cancellation of Mr. Mims’ judgment.

Based on these findings, the committee determined that respondent violated the Rules of Professional Conduct as alleged, with the exception of Rule 1.15. Specifically, the committee found that respondent violated Rule 1.4 by failing to keep the DeLaSalles apprised of the status of their matter and failing to communicate with them despite their repeated attempts to contact him. Respondent’s failure to communicate .deprived the DeLaSalles of a prompt resolution to their legal problem, resulting in a violation of Rule 1.3. Furthermore, by failing to either immediately refund the unearned fee upon his termination or | .¡suggest resolution of the fee dispute through the Fee Dispute Resolution Program, respondent violated Rule 1.5(f)(5). He also violated Rule 1.5(f)(5) by indicating he would only refund the $600 fee if the DeLaSalles hired another attorney to pursue cancellation of Mr. Mims’ judgment. However, the committee determined that respondent did not violate Rule 1.15 becausé he returned the disputed fee to his client trust account after receiving notice of the DeLaSalle’s disciplinary complaint.

The committee further determined that respondent knowingly and intentionally violated duties owed to his clients.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In re Watkins
256 So. 3d 259 (Supreme Court of Louisiana, 2018)

Cite This Page — Counsel Stack

Bluebook (online)
127 So. 3d 918, 2013 WL 5909833, 2013 La. LEXIS 2371, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-donald-la-2013.