In re Fontenot

255 So. 3d 1009
CourtSupreme Court of Louisiana
DecidedNovember 5, 2018
DocketNO. 2018-B-1213
StatusPublished

This text of 255 So. 3d 1009 (In re Fontenot) 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 Fontenot, 255 So. 3d 1009 (La. 2018).

Opinion

PER CURIAM

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel ("ODC") against respondent, Timmy James Fontenot, a disbarred attorney.

PRIOR DISCIPLINARY HISTORY

Before we address the current charges, we find it helpful to review respondent's prior disciplinary history. Respondent was admitted to the practice of law in Louisiana in 1995.

In 2011, we considered a joint petition for consent discipline filed by respondent and the ODC wherein respondent acknowledged that he neglected a legal matter, failed to communicate with a client, charged an excessive fee, and made misrepresentations. We accepted the petition for consent discipline and suspended respondent from the practice of law for one year, fully deferred, subject to two years of supervised probation. In re: Fontenot , 11-0989 (La. 6/17/11), 63 So.3d 130 (" Fontenot I ").

In October 2015, the ODC filed formal charges against respondent, alleging that he settled a personal injury case for $52,500 without his clients' consent, forged his clients' signatures on the settlement documents, misled his clients as to the status of the case, failed to disburse the settlement proceeds to his clients for five years, failed to reduce the contingency fee agreement to writing, and made cash withdrawals from his client trust account. In November 2017, we disbarred respondent for this misconduct. In re: Fontenot , 17-1661 (La. 11/28/17), 230 So.3d 185 (" Fontenot II "). Respondent will not be eligible to apply for readmission to the practice of law until 2022.

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

FORMAL CHARGES

On January 7, 2013, respondent and attorney Marcus Fontenot1 entered into a contract to provide legal services to Evangeline Construction & Trucking, LLC ("the client") with respect to the BP oil spill. On January 9, 2013, respondent and Mr. Fontenot referred the matter to the Fayard & Honeycutt law firm ("the firm") with the client's permission and knowledge. The firm designated respondent as the lead attorney to communicate and assist with the client's contact data and information. With the help of respondent and Mr. Fontenot, the firm pursued a claim in the Deepwater Horizon Court Supervised Settlement Program on behalf of the client.

In April 2016, the firm received a settlement offer, which had been negotiated *1011through the court-appointed neutrals' opt-out and exclusions confidential settlement program. Respondent presented the settlement offer to the client, and the client accepted the offer, signing the formal release on April 19, 2016. BP ratified the settlement offer on May 14, 2016.2

The settlement funds were subsequently wired to the firm's trust account. The firm then prepared the final disbursement sheet, release, and dismissal of the client's action. On June 1, 2016, the funds were disbursed according to the final disbursement sheet. The client's portion of the settlement check was made payable directly to Evangeline Construction & Trucking, LLC. The client's settlement check, the disbursement sheet, and the check for attorney's fees were then forwarded to respondent. The firm's trust account records indicate that the checks cleared the account in June 2016.

On July 27, 2016, Mr. Fontenot called the firm to inquire about the status of the funding of the client's settlement. The firm informed Mr. Fontenot that it had sent $275,214.02 in client settlement funds along with all appropriate disbursement and settlement documents to respondent on June 1, 2016. Thereafter, the firm called the client and learned that respondent had issued the client a check for $200,214.02 instead of $275,214.02. The firm then learned respondent had forged the client's name on the back of the firm's trust account check made payable to the client and deposited the check into his trust account. The firm also learned that, when respondent issued the $200,214.02 check to the client, respondent had the client sign a handwritten receipt acknowledging it had received the settlement check.

On July 28, 2016, attorney Blayne Honeycutt, a partner at the firm, instructed respondent to disburse the entire $275,214.02 immediately to the client, and respondent agreed to do so. On July 29, 2016, respondent advised Mr. Honeycutt that he had disbursed all funds in accordance with the disbursement sheet. Respondent also sent the firm and Mr. Fontenot a copy of his trust account check number 1771 in the amount of $275,214.02, which contained a copy of the client's signed acknowledgement that it had received these funds.

However, the firm later learned that respondent had copied the client's handwritten acknowledgment of receipt of funds from the $200,214.02 check and transferred it to the copy of his trust account check number 1771 in the amount of $275,214.02. Respondent's trust account check number 1771 in the amount of $275,214.02 never cleared the bank because it was only written by respondent to convince the firm and Mr. Fontenot that he had paid the client the entire settlement amount when he had, in fact, not done so.

When confronted with these findings, respondent indicated that he had not paid the client the entire amount because he simply did not have all the money in his trust account. Upon learning of respondent's actions, the firm and/or Mr. Fontenot contacted the client and asked it not to deposit the $200,214.02 check. Then, on August 1, 2016, Mr. Honeycutt and Mr. Fontenot deposited $75,000 into respondent's trust account and had respondent direct the bank to issue a cashier's check to the client in the amount of $275,214.02.

*1012The client has now received all funds owed to it. However, respondent has never explained the whereabouts of the $75,000.

In August 2016, the firm and Mr. Fontenot filed disciplinary complaints against respondent. Respondent failed to provide written responses to the complaints, despite receiving notice of them.

On October 26, 2016, the ODC's investigator went to respondent's office to serve him with a subpoena and subpoena duces tecum. Respondent was not present to be served. Thereafter, the investigator contacted respondent on his cell phone, and respondent agreed to accept service of the subpoena and subpoena duces tecum via e-mail. The investigator e-mailed respondent the subpoena and subpoena duces tecum on November 3, 2016 at 10:11 a.m. Respondent confirmed receipt of the subpoena and subpoena duces tecum via e-mail to the investigator at 1:47 p.m. on November 3, 2016.

The ODC heard nothing from respondent until November 21, 2016 when it received a fax from him indicating he just realized he had a scheduling conflict with the November 22, 2016 sworn statement date. Thereafter, respondent faxed a written response to the complaints, denying the allegations in the complaints and attaching copies of the cashier's check paid to the client on August 1, 2016 and the settlement disbursement sheet.

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Related

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)
La. State Bar Ass'n v. Hinrichs
486 So. 2d 116 (Supreme Court of Louisiana, 1986)
In re Richard
148 So. 3d 923 (Supreme Court of Louisiana, 2014)
In re Fontenot
230 So. 3d 185 (Supreme Court of Louisiana, 2017)
In re Smith
75 So. 3d 902 (Supreme Court of Louisiana, 2011)

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Bluebook (online)
255 So. 3d 1009, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-fontenot-la-2018.